Com. v. Harris, M., Jr. ( 2022 )

J-S18021-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL GEORGE HARRIS, JR. :
:
Appellant : No. 105 MDA 2022
Appeal from the Judgment of Sentence Entered September 14, 2021
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0001125-2019
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: SEPTEMBER 21, 2022
Michael George Harris, Jr. appeals the judgment of sentence entered
after a jury convicted him of numerous sex crimes: rape of a child, statutory
sexual assault, involuntary deviate sexual intercourse, criminal attempt,
aggravated indecent assault of child, aggravated indecent assault - victim less
than 16 years old, indecent assault, indecent assault – victim less than 13
years old, indecent assault – victim less than 16 years old, endangering
welfare of children, corruption of minors, and indecent exposure.1 He
challenges the admission of evidence at trial and the discretionary aspects of
his sentence. We affirm.
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1 18 Pa.C.S.A. §§ 3121(c), 3122.1(b), 3123(a)(7), 901(a), 3125(b),
3125(a)(8), 3126(a)(1), 3126(a)(7), 3126(a)(8), 4304(a)(1), 6301(a)(1)(ii),
and 3127(a), respectively.
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Police received information in May 2019 from Facebook, Inc., that Harris
was messaging two separate Facebook accounts about sex acts with his 10-
year-old stepdaughter, P.C. Following an interview with P.C. and her eventual
relay of information regarding Harris’s abuse, police arrested and charged
Harris.
Before trial, the Commonwealth filed a notice of intent to introduce bad
acts evidence pursuant to Rule 404(b) of the Pennsylvania Rules of Evidence.
It stated that it wished to introduce the Facebook messages between Harris
and a 14-year-old white female, A.W. See Notice of Intent to Introduce
Evidence Pursuant to Rule 404(b) (“Notice”), at 2 (unpaginated). It also stated
that it wished to introduce Facebook messages between Harris and an adult
female, R.W.2
In his conversation with A.W., Harris told her that another victim with a
first name beginning with “P” did not get pregnant despite “years of not pulling
out.” Id. In his conversation with R.W, Harris told the woman that he began
having sex with his stepdaughter when she was 10 years old. He suggested
to R.W. that they should have a child together and then engage in a threesome
with the child.
Upon being interviewed, A.W. explained that Harris began having sexual
intercourse with her when she was in the eighth grade. She also stated that
Harris was her father’s friend and lived next door. She detailed that his
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2 The messages were not included in the certified record.
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assaults began with him touching her vaginal area and escalated to
intercourse. She stated that he never used a condom and that he told her not
to tell anyone about their interactions and to keep it a secret.
The Commonwealth’s Rule 404(b) notice stated that P.C., the victim in
the instant case, is a white female, who at the time of the filing of the
complaint was 14 years of age. It stated that Harris began his sexual assault
of P.C. when she was 11 or 12 years old. Harris was married to P.C.’s mother
at the time and lived in the home. Harris’s assault of P.C. began with touching
her breasts, progressed to digital penetration of her vagina, and eventually
escalated to sexual intercourse. Harris told P.C. that her mother knew about
what he was doing and that she should not tell her because she did not care.
The Commonwealth also noted that Harris had been found guilty of
statutory sexual assault and corruption of minors in Bradford County for his
acts against N.W., a 14-year-old victim. N.W. is also a white female. N.W.
stated that Harris never used a condom when he had sexual intercourse with
her and that he was living with her mother during the time of the assaults. He
also told N.W. not to tell anyone what was happening.
The Commonwealth contended that the sexual relationships between
Harris and N.W and A.W were admissible in the instant case. It argued that
the crimes against each victim including P.C. were similar. It noted that all the
victims were white females under the age of 15, they all lived on the same
property as Harris, Harris gained access to each of the victims through their
parent or guardian, he engaged in sexual and deviate sexual intercourse with
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the victims and did not use a condom. It also noted that in each case, Harris
told the victims not to tell anyone.
The Commonwealth maintained that the conversations between A.W.
and Harris were admissible because they “are part of a chain or sequence of
events that form the history of this case and are part of its natural
development.” See Notice, at 4 (unpaginated). It noted that charges were
only filed in the instant case because of the discovered conversation between
A.W. and Harris that made references to his sexual contact with P.C. It argued
that Harris tried to convince A.W. that it was safe to continue to have sex with
him without a condom because he did the same with P.C. and he never
impregnated her. It also argued that the messages were admissible as proof
of consciousness of guilt. It stated that Harris had sent A.W. messages on five
separate occasions, telling her to delete their messages. The Commonwealth
also maintained that the evidence was necessary to rebut Harris’s claim that
his conversations with A.W. about sex with her and with P.C was just “talk.”
Before trial, Harris moved to suppress statements he made when police
interviewed him. See Omnibus Pre-Trial Motion, filed 6/22/20.3 Harris stated
that he made statements to Trooper Jamesan Keeler but that they should be
suppressed because they were involuntary. He argued that he made an
unambiguous request for counsel, but Trooper Keeler continued speaking with
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3 Harris also asked the court to sever charges relating to his alleged sexual
interactions with a dog and sexual assault of P.C.’s mother.
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him. Harris also argued that any prior bad acts involving minors should be
excluded.
At a hearing on the motion, Trooper Keeler testified that when he
interviewed Harris, he read Harris his Miranda warnings and that Harris
signed a waiver form. See N.T., Omnibus Pre-Trial Motion, 9/24/20, at 6, 8,
10.4 The Commonwealth introduced a video of the interview as well as a
transcript of the interview. Id. at 8. The Commonwealth played the entirety
of the video for the court. Id. at 10. Trooper Keeler testified that when Harris
referenced counsel, he continued questioning him because “I wanted him to
be specific on what he meant by that remark.” Id. at 18. The Commonwealth
also admitted Harris’s criminal history rap sheet to show his familiarity with
the criminal justice system. Id. at 20. Harris testified that he signed an
application for a public defender before being interviewed by Trooper Keeler.
Id. at 24-25.
Following the hearing, the court ordered both parties to submit briefs
for their respective arguments. In his brief, Harris argued that in the following
exchange between him and Trooper Keeler, he invoked his right to counsel.
Harris: And before we get started with anything, I’m not
planning to be mean or nothing, but I probably will lawyer
up.
Trooper Keeler: Okay. And that’s - that’s
Harris: I’m not being a dick or nothing, but with the charges
and everything, I think it would be the best bet to –
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4 Miranda v. Arizona, 384 U.S. 436 (1966).
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Trooper Keeler: Okay. Because once you – once you
lawyer up, basically I’m probably never – you’ll never talk
to me.
Harris: Okay.
Trooper Keeler: But that’s your – that’s your right as, you
know, you have, so if that’s
Harris: Well, let’s keep going to see –
Trooper Keeler: Okay
Harris: Because I want to know everything that is going on.
Trooper Keeler: Okay. So you wanna keep talking? You
don’t want an attorney?
Harris: Well, eventually, yes, I do.
Brief in Support of Omnibus Pretrial Motion, filed 10/19/20, at 2-3
(unpaginated) (quoting Harris Interview Transcript, 7/9/19, at 3-4). Later in
the interview, Harris stated, “This is where the lawyer – like – I’m not – I don’t
want to spend the rest of my life in prison.” Id. at 3 (quoting Harris Transcript,
at 19-20).
Harris argued that the interview with Trooper Keeler should have ceased
at the point he stated he would eventually get a lawyer. Harris also argued
that his statements should be suppressed because his right to counsel
attached at the time that he signed his application for a public defender. He
further argued that Trooper Keeler explained the Miranda rights in a
confusing and manipulative way. For its part, the Commonwealth argued that
Harris waived his right to counsel when he signed the Miranda waiver form
and that the four references he made to counsel were “hypothetical,
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ambiguous, and/or equivocal.” Brief in Opposition to Defendant’s Omnibus
Motion, filed 10/26/20, at 6.
The trial court denied the motion.5 Upon reviewing the interview video,
the court noted that Harris stated that he was “familiar with the process,” and
that he continued to speak with Trooper Keeler after being told that they would
need to cease talking if he wanted a lawyer. See Opinion and Order, filed
3/4/21, at 6. The court also noted that Trooper Keeler informed Harris on
multiple occasions that he could refuse to answer questions and could stop
the interview at any time and request counsel. The court pointed out that
Harris merely said that he “eventually” wanted to obtain counsel. Id. The court
therefore concluded that “[Harris] did not clearly and unambiguously invoke
his right[] to [an] attorney under Miranda and waived his rights under
Miranda knowingly, intelligently, and voluntarily.” Id. Regarding Harris’s
argument that his statement should be suppressed because the right to
counsel had attached, the court concluded that although the right had
attached, “[Harris] executed a valid waiver of his rights, including that of
counsel, before he spoke with Keeler.” Id. at 7.
Harris later filed a motion in limine on May 27, 2021, to preclude the
Commonwealth from introducing the bad acts evidence identified in its Rule
404(b) notice. Harris argued that the evidence was propensity evidence and
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5 The court granted Harris’ request to sever the case.
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was more prejudicial than probative. He also argued that the acts listed were
“somewhat similar acts.” See Motion in Limine, filed 5/27/21, at ¶ 7.
Following a hearing, the court granted the motion in part and denied it
in part. The court noted that the Commonwealth had agreed not to introduce
Harris’ prior conviction involving N.W. and had conceded that portions of the
messages it wished to introduce were “unnecessary.” See Opinion, filed
6/2/21 at 2 (citing Com. Exh. 3, at 7, 11-16). It also noted that Harris
conceded that any messages explicitly mentioning P.C. were admissible but
contended “that the context of the references to P.C. be limited to the fact
that the conversation was sexual in nature.” Id.
The court found the facts of the instant case and those of Harris’ past
crimes were “strikingly similar.” Id. at 5. These similarities included:
- All the victims were white females between the ages of 10 and 14;
- All were in the same class in school;
- Harris either lived with or near the victims;
- Harris either was in a relationship with or friends with the victim’s
parent or guardian;
- Harris committed acts of digital and anal penetration as well as breast
fondling and/or attempted vaginal penetration;
- Harris tried to keep the victims from telling anyone;
- Harris never used a condom; and
- All three victims were unwilling to tell the police initially.
See id. at 4-5.
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The court determined that the entirety of messages between R.W. and
Harris were admissible. It stated that they were “necessary to give context to
the conversation regarding what [Harris] has done with P.C. and why.” Id. at
6. However, the court determined that only the portions of the messages
between A.W. and Harris that referenced P.C. were admissible. Id. It found
that the messages with A.W. “connect[] all of the messages into one
interconnected chain of events that are part of the natural development of the
case.” Id. It concluded that the probative value of the evidence outweighed
any prejudice since the Commonwealth needed to rebut Harris’s defense, it
was not speculative, and was entirely relevant to the victim P.C. See id. Thus,
the court entered an order that permitted portions of the messages into
evidence. See Amended Order, filed 6/2/21.
The case proceeded to trial and the jury found Harris guilty of the above-
referenced offenses. At sentencing, psychologist C. Townsend Velkroff
testified as an expert for the Commonwealth that Harris was a sexually violent
predator (“SVP”). See N.T., Sentencing, 9/14/21, at 13. During allocution,
Harris said that he was sorry and that he needed help. See id. at 31. The
court also heard testimony from P.C.’s mother that P.C. is on the autism
spectrum. See id. at 32.
Before announcing its sentence, the court stated that it was taking into
consideration “the reports that have been provided, the statements provided
today . . . that [Harris] wants treatment, needs treatment[.]” Id. at 43. The
court stated that it questioned the sincerity of Harris’s desire for treatment
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and that “his pleas now, you know, seem somewhat contrite compared to the
manipulation he employed on this victim.” Id. at 44. The court then stated
that based on the offenses, Harris’s actions, and his prior history that it would
impose an aggregate term of 47 to 94 years of incarceration followed by a 36-
month probationary period. It also found Harris to be an SVP.
Harris filed a post-sentence motion claiming that the trial court’s
sentence “is both exorbitant and disproportionate punishment considering the
nature of the damage that was caused to both the victim and society in this
case.” Post-Sentence Motion, filed 9/23/21, at ¶ 13. The court denied the
motion and this timely appeal followed. See Opinion and Order, filed 1/12/22.
Harris presents the following issues:
I. Whether the [trial] [c]ourt erred in permitting the
Commonwealth to present social media messages
involving an out-of-county victim and an adult third
party to improperly display criminal propensity.
II. Whether the statements that [Harris] made to police
while he was in custody should be suppressed because
he expressed interest in obtaining counsel.
III. Whether the sentencing court abused its discretion by
imposing a manifestly excessive and unduly harsh
sentence without sufficiently considering the
fundamental norms underlying the sentencing
process.
Harris’s Br. at 9 (suggested answers omitted).
Harris’s first issue challenges the court’s admission into evidence of the
messages that were the subject of his motion in limine. He argues that the
messages showed criminal propensity and had little probative value. He also
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maintains that the messages were not properly admissible as part of a
common plan or scheme. He argues that any similarities were too vague to
show a common pattern and that the victims and the offenses were distinctive.
He maintains as well that the messages were not admissible under the
res gestae exception because they occurred after his abuse of P.C. He also
alleges that his conversations with R.W. were not part of a common plan or
scheme because they occurred “after the fact” and involved communication
with a consenting adult who was not a victim in any past or present case.
Harris’s Br. at 21. According to Harris, because his conversations with R.W.
were not criminal, and show that he had “lurid conversations” with both adult
women and children, his conversations with A.W. could not be part of a
distinctive criminal pattern. Id.
No trial transcripts and no trial exhibits are in the certified record. As a
result, we cannot review the evidence that was actually before the jury, and
our review of this claim is hindered. Although the trial court bears some
responsibility, it is ultimately the appellant’s duty to ensure that the certified
record on appeal contains all materials of record in the trial court necessary
to resolve the appeal. See Commonwealth v. Bongiorno, 905 A.2d 998,
1000 (Pa.Super. 2006) (en banc). A failure to carry out that duty results in
waiver of any claim for which a needed item is not in the certified record. See
Commonwealth v. Powell, 956 A.2d 406, 423 (Pa. 2008). Harris’s failure to
ensure that the evidence at issue was in the certified record has waived this
claim on appeal.
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In any event, to the extent we can perform review based on the motion
in limine, this issue is meritless. Rule 404(b) prohibits the admission of prior
bad acts or unrelated criminal activity of an individual for purposes of
propensity. See Pa.R.E. 404(b)(1). However, such acts may be admitted for
the limited purpose of proving motive, opportunity, intent, preparation, plan,
knowledge, identity, and absence of mistake or accident. See id. at 404(b)(2).
A court should weigh the probative value of the evidence against any
prejudicial effect. See id.
The proponent of bad acts evidence must show “a close factual nexus
sufficient to demonstrate the connective relevance of the prior bad acts to the
crime in question[.]” Commonwealth v. Sami, 243 A.3d 991, 999 (Pa.Super.
2020) (citation and emphasis omitted). Here, the Commonwealth proposed
that the bad acts evidence established a common plan or scheme and were
“part of a chain or sequence of events that form the history of this case and
are part of its natural development.” See Notice, at 4 (unpaginated).
To determine whether bad acts evidence is admissible as evidence of a
common plan or scheme, the trial court should ascertain “the details and
surrounding circumstances of each criminal incident to assure that the
evidence reveals criminal conduct which is distinctive and so nearly identical
as to become the signature of the same perpetrator.” Commonwealth v.
G.D.M., Sr., 926 A.2d 984, 987 (Pa.Super. 2007) (citation omitted). Some
factors relevant to this inquiry include the types of victims chosen by the
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perpetrator, the time and place of committing the crimes, as well as the
“patterns of action or conduct” by the perpetrator to commit the crime. Id.Here, the court determined that the acts Harris committed against A.W.
were “strikingly similar” to those against P.C. Both victims were white females
between the ages of 10 and 14 at the time of the sexual abuse, and Harris
had a relationship or friendship with their parents that gave him access to the
children. In addition, he lived in or near the home during the abuse, and he
digitally penetrated both victims vaginally and eventually escalated his abuse
of the children to sexual intercourse.
As to the probative value of the evidence compared to any prejudice,
the court determined that only a small portion of the conversation between
Harris and A.W. was admissible. Balancing the potential for undue prejudice
against the probative value of the messages, the court determined that only
the parts of the messages referencing P.C. would be admitted. The trial court
did not abuse its discretion in admitting this evidence because it established
a common scheme or plan for Harris’s assault on children. Because we
conclude that the court did not err in the admission of these messages, we
will not address Harris’s additional argument that they were inadmissible
under the res gestae exception.
Harris’s second issue challenges the denial of his motion to suppress his
statements. He alleges that he unambiguously asked for counsel. He points
out that he mentioned wanting a lawyer four times and maintains that he was
explicit in explaining that he would only continue speaking with Trooper Keeler
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so that he could understand the charges against him. He also argues that his
statements were involuntary because Trooper Keeler explained the Miranda
warnings in a confusing and manipulative way. He contends that if his
statement that he “probably will lawyer up” seems ambiguous, it is because
he “did not know when he could assert his affirmative right to counsel as
promulgated by the US Supreme Court in Miranda.” Harris’s Br. at 31
(emphasis in original). Harris likens his case to Commonwealth v. Lukach,
195 A.3d 176 (Pa. 2018).
Our standard of review of the denial of a motion to suppress is limited
to determining whether the court’s findings of fact are supported by the record
and whether it has committed legal error. See Commonwealth v. Jones,
988 A.2d 649, 654 (Pa. 2010). We are bound by the court’s factual findings
that are supported by the record and will only reverse the order if the court
has committed legal error. See id. Additionally, since the Commonwealth was
the prevailing party, “we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a whole.” Id.“The main purpose of Miranda is to ensure that an accused is advised
of and understands the right to remain silent and the right to counsel.”
Berghuis v. Thompkins, 560 U.S. 370, 383 (2010). The standard for
determining whether someone has invoked their right to remain silent is the
same as their right to counsel. See id. at 381. “[W]here an individual states
that he wants an attorney, the interrogation must cease until an attorney is
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present.” Commonwealth v. Kunkle, 79 A.3d 1173, 1183 (Pa.Super. 2013)
(citation omitted). If, however, “a suspect makes a reference to an attorney
that is ambiguous or equivocal in that a reasonable officer in light of the
circumstances would have understood only that the suspect might be invoking
the right to counsel, our precedents do not require the cessation of
questioning.” Davis v. United States, 512 U.S. 452, 459 (1994) (emphasis
in original).
The transcript and video of Harris’s interview with Trooper Keeler were
not included in the certified record. Again, it is the appellant’s responsibility
to ensure that the certified record includes all materials necessary for our
review. See Bongiorno, 905 A.2d at 1000. However, unlike the messages he
challenged, Harris included the transcript in the appendix of his brief. Where
an item in the record has not been included in the certified record but is
contained in the reproduced record, we may consider it if the accuracy of the
item is not disputed. See Commonwealth v. Holston, 211 A.3d 1264, 1276
(Pa.Super. 2019); Pa.R.A.P. 1921 Note (“where the accuracy of a pertinent
document is undisputed, the Court could consider that document if it was in
the Reproduced Record, even though it was not in the record that had been
transmitted to the Court”) (citing Commonwealth v. Brown, 52 A.3d 1139,
1145 n.4 (Pa. 2012)). Here, because the Commonwealth did not file a
responsive brief or in any other way contest the accuracy of the transcript, we
consider the transcript.
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Harris mentioned a lawyer four times during the interview. We
reproduce those instances below:
Trooper Keeler: Now, the form I have here is a – is a
waiver. It just – you signing it, says that you acknowledge
your rights.
Harris: Okay
Trooper Keeler: If that makes sense. You’re not writing a
– you’re not writing anything out, you’re just basically
saying that I read you your rights and that you understand
them before we even get started with anything. Okay?
Harris: And before we get started with anything, I’m not
planning to be mean or nothing, but I probably will lawyer
up.
***
Trooper Keeler: So what’s your – what’s your ultimate goal
out of all this?
Harris: I just – I just want it dealt with.
Trooper Keeler: Just let it fly at trial or take responsibility
for all the things people are saying that you did?
Harris: Yeah, but not all is true, though.
Trooper Keeler: Well, what is true? Some of it has to be
true.
Harris: This is where the lawyer – like – I’m not – I don’t
wanna spend the rest of my life in prison.
Trooper Keeler: That’s understandable and I can’t promise
ya any kind of deal or anything like that. That’s all up to the
District Attorney’s Office as – as far as any further court
that’s concerned. All I can do is hear you out on your side
of everything. And if I have some facts wrong, by all means,
correct me. But I know I don’t have all my facts wrong.
***
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Trooper Keeler: Now, would you be willing to take a
polygraph examination about those topics?
Harris: That I’d have to talk to a lawyer about.
Trooper Keeler: Okay. That's fine. Just throwing it out
there. If you wanted to know. Now, do you have any
questions of me or anything -- anything else you wanna
say?
Harris: And plus polygraphs aren’t admissible in court.
Trooper Keeler: Noted.
Harris: I think. Right? Correct?
Trooper Keeler: Right. We – they’re an investigative tool.
They are useful.
Harris: No, I know.
Trooper Keeler: They are a useful too, but, yeah, you are
correct.
Harris: I know.
Trooper Keeler: So that’s – that’s an option out there.
Harris: That I’d have to talk to a lawyer about.
Trooper Keeler: Correct.
***
Trooper Keeler: -- to the prison. I can’t just let ya walk
outta here. So --
Harris: No, I know that.
Trooper Keeler: -- hang tight in here. I’m gonna put my
stuff away.
Harris: Can you try and get ahold of my sister?
Trooper Keeler: Yeah, I’ll call -- I’ll can call your sister for
ya and let her know where ya are and how to get ahold of
ya and everything.
Harris: Well, I tried to get ahold of her so she can like --
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Trooper Keeler: Get money on your books and get your
affairs in order.
Harris: A lawyer and get numbers so I have local numbers.
That’s -- you know what I mean?
Trooper Keeler: Yeah, get everybody in line for ya. Okay.
Transcript of Interview, dated 7/9/19, at 3-4, 19-20, 44, 45 (emphasis
added).
The court did not abuse its discretion in denying Harris’s motion to
suppress his statements. None of his statements regarding a lawyer
constituted an unambiguous request for counsel during the interview. Rather,
they were statements either relating to or contingent on future events. The
statement that he “would” have to talk to a lawyer about a polygraph, in
context, where the trooper asked him if he “would be willing” to take a
polygraph, related to a potential future event. Indeed, Harris did not plainly
say in this instance that he wanted a lawyer for the interview. The only person
that Harris clearly said he wanted to contact was his sister, and that she would
contact a lawyer. In any event, this statement was at the conclusion of the
interview. As the trial court concluded, “[Harris] did not clearly and
unambiguously invoke his rights to attorney under Miranda and waived his
rights under Miranda knowingly, intelligently, and voluntarily.” Opinion and
Order at 6.
Furthermore, his reliance on Lukach is misplaced. In Lukach, the
appellant was accused of homicide and later interviewed by police. At some
point in his interview, in response to the officer’s question, Lukach stated
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“Yeah. I don’t know just, I’m done talking. I don’t have nothing to talk about.”
Lukach, 195 A.3d at 179. The officer continued to question Lukach. Following
a motion to suppress, the court granted the suppression of Lukach’s
statements. We affirmed and our Supreme Court agreed. Our Supreme Court
held that Lukach had unambiguously invoked his Miranda right to remain
silent and that the officer had violated this right by continuing to question
Lukach.
Lukach dealt with the Miranda right to remain silent, and the suspect’s
statements in Lukach that he was “done talking” and had “nothing more to
say” were plain statements of the desire to invoke that right there and then.
In contrast, here, Harris’s statements were not nearly so clear an invocation
of the right. Rather, his statements were conditional or related to possible
occurrences in the future. Furthermore, Harris’s argument that Trooper Keeler
explained the Miranda waiver form in a confusing and manipulative way is
unsupported by the record. Trooper Keeler repeatedly told Harris to read the
form himself after Trooper Keeler explained the contents of the form. At any
points of confusion that Harris had, he asked for clarity and was given that by
Trooper Keeler. See Com. Exh. 3 at 3-6. Harris’s claim is meritless.
Harris’s final claim is that the court imposed a manifestly excessive and
unduly harsh sentence. He alleges that the court did not consider his
rehabilitative needs. He also maintains that though the court stated on the
record what it considered in drafting his sentence, it “did not reiterate what
facts he was relying on.” Harris’s Br. at 35.
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This issue challenges the discretionary aspects of his sentence. Before
we may review the merits of this claim, we must first determine whether
Harris: 1) filed a timely notice of appeal; 2) preserved his claim in a post-
sentence motion or at the sentencing hearing; 3) complied with the
requirements of Pa.R.A.P. 2119(f); and 4) presents a substantial question that
the sentence imposed is not appropriate under the Sentencing Code. See
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa.Super. 2018).
Here, Harris filed a timely notice of appeal, but he did not preserve his
claim either in his post-sentence motion or at the sentencing hearing. On
appeal, he claims that the court imposed an unduly harsh and excessive
sentence. He also claims that the court failed to consider his rehabilitative
needs and did not specify what facts the court relied on in determining his
sentence. Harris filed a post-sentence motion, but he claimed that the
sentence was “exorbitant and disproportionate” considering the nature of the
harms caused to the victim, which he does not raise before this Court. See
Post-Sentence Motion at ¶ 8. As such, we will not review his sentencing
challenge. See Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super.
2013) (concluding waiver of challenge to discretionary aspects of sentence
where defendant did not raise the issues in a post-sentence motion). We thus
affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2022
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