Com. v. Kline, A. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ABRAHAM JOHN KLINE
Appellant No. 166 MDA 2014
Appeal from the Judgment of Sentence December 5, 2013
In the Court of Common Pleas of Columbia County
Criminal Division at No(s): CP-19-CR-0000592-2012
BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 03, 2014
Appellant Abraham Kline (“Appellant”) appeals from the judgment of
sentence entered in the Columbia County Court of Common Pleas following
his jury trial conviction for third degree murder1 and aggravated assault.2
After careful review, we affirm.
We summarize the relevant trial evidence and procedural posture as
follows. Appellant and his paramour, Jocelyn Romano, resided together in
an RV on property owned by Catherine Kline, Appellant’s mother. On the
morning of May 15, 2012, Appellant shot Ms. Romano in the back with a rifle
that he then used to shoot himself in the chest. First responders took the
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1
18 Pa.C.S. § 2502(c).
2
18 Pa.C.S. § 2702(a)(4).
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pair to the hospital, where Ms. Romano was pronounced dead later that
morning.
Also on May 15, 2012, at 12:10 p.m., Catherine Kline executed a
written consent allowing the Pennsylvania State Police to search the “outside
areas” of the property. A trooper searched and photographed the outside of
the premises, giving special attention to evidence subject to degradation
from the elements such as bloodstains. While the trooper conducted this
exterior search/photography, other off-scene troopers had begun the
process of obtaining a search warrant for the entire Kline property. The
trooper conducting the exterior search knew that other troopers were
seeking a warrant to search the entire property.
After surveying and photographing the exterior of the property, the
trooper entered the RV and took photographs intended to document the
interior of the vehicle in the event that evidence therein might also be
subject to degradation. During this entry, the trooper did not touch, seize,
or remove anything, but instead simply took photographs to document the
condition of the RV.
Later, after learning the court had issued a search warrant for the
entire Kline property, the state police returned to the RV and conducted a
full search and seizure of evidence.
Three days later, on May 18, 2012, hospital personnel removed
Appellant’s breathing tube and pronounced him fit to communicate with
police. Unarmed, plain-clothes state troopers interviewed Appellant after
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administering Miranda3 rights and explaining the state police’s standard
Rights and Waivers Form, which Appellant signed. Three days later, on May
21, 2012, the state police served a search warrant authorizing the collection
of Appellant’s DNA, and again interviewed Appellant in his hospital bed after
once more administering Miranda rights and after Appellant signed another
waiver.
Appellant later sought the suppression of the evidence from the RV
and the statements he made to the state police while in the hospital. The
trial court denied the requested suppression.
A jury convicted Appellant of third degree murder and aggravated
assault.4 The trial court then sentenced Appellant to 20 to 40 years of
incarceration on the third-degree murder conviction.5 Appellant filed a post-
sentence Motion to Modify and Reduce Sentence, which the trial court
denied. Appellant then timely appealed.
Appellant presents the following issues for our review:
A. WHETHER THE TRIAL COURT ERRED IN ITS SENTENCE BY
FAILING TO CONSIDER MITIGATING FACTORS AND
SENTENCING KLINE TO THE MAXIMUM STATUTORY LIMIT.
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3
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
4
The jury acquitted Appellant of first-degree murder.
5
The aggravated assault conviction merged for sentencing purposes.
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B. WHETHER THE TRIAL COURT ERRED IN DENYING THE
APPELLANT’S MOTION TO SUPPRESS ITEMS SEIZED FROM HIS
HOME AS THE SEARCH WAS ILLEGAL AND UNCONSTITUTIONAL.
C. WHETHER THE TRIAL COURT ERRED IN DENYING THE
APPELLANT’S MOTION TO SUPPRESS APPELLANT’S STATEMENTS
AS THE STATEMENTS WERE NOT MADE KNOWINGLY AND
VOLUNTARILY AS THE DEFENDANT WAS HOSPITALIZED AND
HIGHLY MEDICATED.
Appellant’s Brief, p. 6.
A. The Sentencing Claim
Appellant first claims that the trial court abused its discretion in
imposing a statutory maximum sentence of 20 to 40 years of incarceration
for his third degree murder conviction because the trial court failed to take
into account certain mitigating factors during sentencing. See Appellant’s
Brief, pp. 19-21. This claim fails to raise a substantial question for review.
Appellant’s claim raises a challenge to the discretionary aspects of his
sentence. “Challenges to the discretionary aspects of sentencing do not
entitle a petitioner to review as of right.” Commonwealth v. Allen, 24
A.3d 1058, 1064 (Pa.Super.2011). Before this Court can address such a
discretionary challenge, an appellant must comply with the following
requirements:
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test: (1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was
properly preserved at sentencing or in a motion to reconsider
and modify sentence, see Pa.R.Crim.P. [720]; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4)
whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code.
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Allen, 24 A.3d at 1064.
Appellant in the present case filed a timely notice of appeal and
preserved his issues in a Motion to Modify and Reduce Sentence. Further,
Appellant’s brief includes a concise statement of the reasons relied upon for
allowance of appeal pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief,
pp. 17-18. Accordingly, we now determine whether Appellant has raised a
substantial question for review and, if so, proceed to a discussion of the
merits of the claim. Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki,
522 A.2d 17 (Pa.1987).
“A substantial question will be found where the defendant advances a
colorable argument that the sentence imposed is either inconsistent with a
specific provision of the [sentencing] code or is contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v.
Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see
also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises a
substantial question on a case-by-case basis.” Christine, 78 A.3d at 10. A
bald or generic assertion that a sentence is excessive does not, by itself,
raise a substantial question justifying this Court’s review of the merits of the
underlying claim. Id.; see also Commonwealth v. Harvard, 64 A.3d 690,
701 (Pa.Super.2013). Further, a claim that the court failed to consider
certain mitigating factors does not present a substantial question. See
Commonwealth v. Johnson, 961 A.2d 877 (Pa.Super.2008), appeal
denied, 968 A.2d 1280 (Pa.2009); see also Commonwealth v.
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Coolbaugh, 770 A.2d 788, 793 (Pa.Super.2001) (“Appellant’s claim that the
court did not consider his personal life situation of having a drug problem
does not raise a substantial question”); Commonwealth v. Rhoades, 8
A.3d 912 (Pa.Super.2010) (a claim that the trial court ignored the evidence
of an appellant’s alleged brain damage, limited mental capacity, and good
behavior in prison is essentially a claim that the trial court inappropriately
applied the mitigating information when imposing sentence, which does not
present a substantial question for appellate review); Commonwealth v.
Urrutia, 653 A.2d 706, 710 (Pa.Super.1995) (“an allegation that a
sentencing court ‘failed to consider’ or ‘did not adequately consider’ certain
factors does not raise a substantial question that the sentence was
inappropriate”); Commonwealth v. Lawson, 650 A.2d 876, 881
(Pa.Super.1995) (claim that trial court ignored rehabilitative needs in
imposing sentence does not constitute a substantial question for review);
Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa.Super.1997) (claim
that trial court did not give adequate consideration to rehabilitative needs
does not present a substantial question); Commonwealth v. Williams,
562 A.2d 1385, 1387-88 (Pa.Super.1989) (claim that trial court should have
imposed a lesser, more appropriate sentence in light of the defendant’s poor
health and family situation constituted a request that this Court substitute
its judgment regarding an appropriate sentence, which does not raise a
substantial question).
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Here, Appellant’s 2119(f) statement does not identify a violation of a
specific provision of the Sentencing Code or a fundamental norm of the
sentencing process that the trial court contravened. Instead, in his
Pa.R.A.P. 2119(f) statement, Appellant alleges that the trial court imposed
an unreasonable sentence for third degree murder because it failed to
properly consider certain alleged mitigating factors. See Appellant’s Brief,
pp. 17-18. Importantly, Appellant does not argue that the sentencing court
relied upon any impermissible factors in sentencing, relied solely on the
severity of the crime committed, or sentenced beyond statutory limits.
Instead, he alleges that the sentencing court failed to consider what he felt
were mitigating factors6 in imposing its sentence. Accordingly, Appellant’s
Rule 2119(f) statement does not raise a substantial question for our review.7
Even had the Appellant stated a substantial question for review, the
claim fails on the merits. In imposing sentence, the trial court considered
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6
Appellant’s 2119(f) statement discusses the alleged mitigating factors that
Appellant would have liked the sentencing court to consider. See
Appellant’s Brief, p. 17. These factors included: “(1) Kline’s sincere and
genuine remorse; (2) Kline’s ability to appreciate [the] wrongfulness of [his]
conduct; (3) Kline’s low likelihood of re-offending; and (4) Kline’s lack of a
prior criminal history.” Id.7
We acknowledge that “a substantial question exists when a sentencing
court imposed a sentence in the aggravated range without considering
mitigating factors.” Rhoades, 8 A.3d at 919 n.12 (citing Commonwealth
v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super.2003) (emphasis in original).
However, in this case, the trial court sentenced Appellant within the
standard range of the sentencing guidelines, as discussed infra.
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the circumstances of the crime, sentencing guidelines, and the mitigating
factors Appellant alleged it ignored. See 1925(a) Opinion, pp. 1-3. The
court sentenced Appellant to a standard range sentence within the statutory
maximum.8 See id. at 1-2. The trial court explained the sentence in
relation to the guidelines as follows:
The Sentencing Guidelines indicate that [Appellant’s] Prior
Record Score was “0,” and a[] third degree murder carries an
Offense Gravity Score of 14. Applying the “Deadly Weapon
Used” matrix ([Appellant] shot the Victim with a rifle), the
standard range was “90-SL,” or 7 years, 6 month[s], to the
statutory limit. Since the statutory maximum was 40 years, and
since the minimum sentence must be at least half of the
maximum sentence, the upper end of the standard range would
dictate a sentence of 20-40 years. This is the exact sentence
which was imposed.
1925(a) Opinion, pp. 1-2. “[W]here a sentence is within the standard range
of the guidelines, Pennsylvania law views the sentence as appropriate under
the Sentencing Code.” Commonwealth v. Moury, 992 A.2d 162, 171
(Pa.Super.2010). Accordingly, in addition to failing to raise a substantial
question for review, this excessiveness claim fails on the merits as well.
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8
The upper level of the sentencing guidelines’ standard range for third
degree murder is the statutory limit regardless of prior record score. See
204 Pa.Code § 303.16. The OGS for third degree murder is 14. Appellant
had a PRS of zero (0). These facts combined with the “Deadly Weapon
Used” guideline matrix enhancement yielded a standard range sentence of
90-SL. See 204 Pa.Code § 303.16. The statutory maximum for third
degree murder is 40 years. See 18 Pa.C.S. § 1102(d).
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B. The Suppression Claims
In his next two issues, Appellant claims the trial court erred in denying
suppression of evidence. He is incorrect.
1. Evidence from the RV
Appellant first argues that the trial court erred in denying suppression
of the evidence recovered from his RV because the state police had originally
entered and photographed the RV without first securing a search warrant.
See Appellant’s Brief, pp. 22-25. This claim lacks merit.
Initially, the Commonwealth argued that the pre-warrant entry into
the RV was intended solely to photograph the interior to identify and
document any evidence that may have degraded over time. See
Commonwealth Brief, p. 10. This possibility of evidence degradation, the
Commonwealth claimed, constituted exigent circumstances to permit a
warrantless entry. Id. The trial court did not agree and determined that the
initial entry into the RV was illegal because there were no exigent
circumstances for the entry into the home. See June 12, 2013 Suppression
Memorandum Opinion and Order (“Suppression Order”), pp. 1-2.
Nonetheless, based on the “independent source” doctrine, the trial
court refused to suppress the evidence obtained from the RV. See
Suppression Order, pp. 2-3. The independent source doctrine provides that
the prosecution may introduce evidence seized improperly where the
prosecution establishes that the evidence would have been discovered
inevitably through an independent source. See Commonwealth v.
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Brundidge, 620 A.2d 1115, 1119 (Pa.1993). A properly-secured search
warrant can constitute an independent source where (1) the decision to seek
the warrant was not prompted by what police saw during the initial entry,
and/or (2) information gained in the first entry does not affect the decision
of the warrant-issuing magistrate. Id. (citing Murray v. United States,
487 U.S. 533, 108 S.Ct. 2529 (1988)).
The trial court properly applied the independent source doctrine to the
facts of this case. Here, the police’s decision to seek a warrant was not
prompted by what the trooper saw during the initial entry; other troopers
were already in the process of seeking a search warrant for the property
when the initial entry occurred. See Suppression Order, p. 2. Additionally,
the affidavit used to seek the warrant did not include any information from
the trooper who conducted the initial entry, nor did that trooper
communicate any of his observations to the issuing Magisterial District
Justice. Id. Further, the state police did not seize any items from the RV
until after the issuance of the warrant.9 Id. Because the initial illegal entry
into the RV did not affect or influence the issuance of the legal search
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9
While the trial court criticized the State Police’s “standard procedure” of
conducting warrantless searches of homes without adequate exigent
circumstances, noting that such similar searches could be viewed as
“contrived and in bad faith” in the future, and observing that “[i]t would
have been better to wait 49 minutes for the [s]earch [w]arrant[,]” the court
ultimately found that under these circumstances, the application of the
independent source doctrine was appropriate. Suppression Order, pp. 2-3.
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warrant for the RV, the trial court properly applied the independent source
doctrine in this matter.10
2. Appellant’s Statements from his hospital bed
Appellant next argues that the trial court erred in failing to suppress
the statements he made to the police from his hospital bed because he was
“highly medicated”. See Appellant’s Brief, pp. 26-29. This claim also fails.
“The determination of whether a confession is voluntary is a conclusion
of law and, as such, is subject to plenary review.” Commonwealth v.
Harrell, 65 A.3d 420, 434 (Pa.Super.2013).
Miranda holds that “[t]he defendant may waive effectuation” of
the rights conveyed in the warnings “provided the waiver is
made voluntarily, knowingly and intelligently.” The inquiry has
two distinct dimensions. First the relinquishment of the right
must have been voluntary in the sense that it was the product of
a free and deliberate choice rather than intimidation, coercion or
deception. Second, the waiver must have been made with a full
awareness both of the nature of the right being abandoned and
the consequences of the decision to abandon it. Only if the
“totality of the circumstances surrounding the interrogation”
reveal both an uncoerced choice and the requisite level of
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10
To the extent that the Commonwealth argues the inevitable discovery
doctrine allows for the admission of the evidence, it is mistaken. The
inevitable discovery doctrine provides that, “[i]f the prosecution can
establish by a preponderance of the evidence that the illegally obtained
evidence ultimately or inevitably would have been discovered by lawful
means, then the evidence is admissible.” Commonwealth v. McLaurin, 45
A.3d 1131, 1136 (Pa.Super.2012). This doctrine deals with scenarios where
someone would have somehow discovered evidence legally in any event –
like a volunteer search party spread out across a field and finding a weapon
or a body as a result of a systematic search. Here, the evidence was inside
Appellant’s RV. Only the investigating police on scene were going to
encounter the evidence inside the RV.
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comprehension may a court properly conclude that Miranda
rights have been waived.
In re T.B., 11 A.3d 500, 505-06 (Pa.Super.2010). “In examining the
totality of circumstances, we also consider: (1) the duration and means of
an interrogation; (2) the defendant’s physical and psychological state; (3)
the conditions attendant to the detention; (4) the attitude of the
interrogator; and (5) any and all other factors that could drain a person’s
ability to withstand suggestion and coercion.” Id. at 506 (internal
quotations omitted). A defendant’s statement to police while medicated and
in the hospital is subject to this totality of the circumstances examination.
See Commonwealth v. Harm, 416 A.2d 533, 535 (Pa.Super.1979).
Where an alert, responsive, and cooperative defendant in no acute physical
distress is in a hospital bed but appears to understand his Miranda rights
before voluntarily waiving them and giving a statement, a trial court may
deny suppression of such statements. Id. This Court defers to the trial
court’s findings in such situations. Id.Here, the trial court found credible the evidence proffered at the
suppression hearing that Appellant was clearly responsive and able to
answer questions posed to him during the interrogations. Suppression
Order, p. 3. The trial court applied the above-referenced factors and
determined as follows:
[T]he duration [of the interviews] (2 hours on May 18th; 1 hour
on May 21st) was not inordinate; the [Appellant’s] physical and
psychological states were stable (he did not laugh or cry; he
coughed up dried bloody phlegm from time to time, but seemed
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comfortable); the conditions of his detention were benign, in
that he was comfortable and cared for in his hospital room and
was not in shackles; the attitude of the interrogators was
professional and courteous; and no other factors are of record to
indicate that [Appellant’s] ability to withstand coercion and
suggestion was compromised.
Suppression Order, pp. 3-4. Further, the trial court credited the testimony
of multiple nurses who testified that they had no concerns that Appellant
could not or did not understand the police questioning. Id. The police read
Appellant his rights before each interview and he agreed to proceed and
signed waivers. Id. The trial court did not abuse its discretion in refusing to
suppress Appellant’s statements from his hospital bed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/3/2014
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