Com. v. Ali, S. ( 2015 )

J-S10012-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SULIMAN ALI,
Appellant No. 525 EDA 2014
Appeal from the Judgment of Sentence September 16, 2013
in the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0004208-2012
BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 25, 2015
Appellant, Suliman Ali, appeals from two concurrent sentences of life
imprisonment without the possibility of parole imposed following his
conviction after a bench trial of three counts of robbery,1 and violations of
the Uniform Firearms Act (VUFA), pursuant to the “Three Strikes” Law.2
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 3701(a)(1)(ii) (threatens another with or intentionally puts
him in fear of immediate serious bodily injury in the course of committing a
theft); 18 Pa.C.S.A. § 3701(a)(1)(iii) (commits or threatens immediately to
commit any felony of the first or second degree); 18 Pa.C.S.A.
§ 3701(a)(1)(v) (physically takes or removes property from person of
another by force however slight).
2
Specifically, the court convicted Appellant of persons not to possess, use,
manufacture, control, sell or transfer firearms, 18 Pa.C.S.A. § 6105, and
firearms not to be carried without a license, 18 Pa.C.S.A. § 6106. The
parties stipulated that the weapon found was operable, and that Appellant
(Footnote Continued Next Page)
J-S10012-15
Specifically, Appellant alleges his sentence is illegal under Alleyne v.
United States, 133 S. Ct. 2151 (2013). He also challenges the denial of his
pre-trial motion to suppress two inculpatory statements he gave to the
police, and the denial of his post-trial motion claiming, in pertinent part, that
the verdict was against the weight of the evidence. We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them in their entirety here.3
Appellant raises three questions for our review:
[1.] Did the trial court abuse its discretion and err[ ] as a
matter of law when it denied Appellant’s motion to suppress
statements that he had provided to the Hatboro police on April
20, 2012, on the basis that his waiver of his constitutional rights
_______________________
(Footnote Continued)
was ineligible to carry a concealed weapon, or get a license to carry, by
virtue of his prior convictions. (See N.T. Trial, 4/22/13, at 184, 200).
3
For ease of reference, we note briefly that Appellant’s conviction arose out
of an armed robbery of customers and the owner/cashier of Burdick’s News
Agency in Hatboro, Pennsylvania. The robbery was recorded on the store’s
surveillance video. Another surveillance video also captured Appellant
outside the bank building next door, first while he waited for several
customers at Burdick’s to leave, and later when he returned to flee on his
distinctive bicycle after the Burdick’s owner sounded an alarm. A neighbor
who observed Appellant and his wife parked in the middle of a street, close
to the scene of the robbery, alerted police. On execution of a search
warrant at Appellant’s home nearby, the police found a firearm, bicycle,
clothing, and related items similar to those used in the robbery on the
videos. After apprehension, and waiver of his Miranda rights, Appellant
gave the Hatboro police two inculpatory statements, in part to exculpate his
wife. (See Trial Court Opinion, 4/16/14, at 1-7).
-2-
J-S10012-15
to assistance of counsel and right to remain silent were not
knowingly, voluntarily, nor intelligently made[?]
[2.] Did the trial court abuse its discretion in denying
Appellant’s motion for a new trial on the basis that the guilty
verdicts were against the weight of the evidence[?]
[3.] Is the trial court’s imposition of two (2) consecutive
life sentences without the possibility of parole constitutes [sic]
an illegal sentence pursuant to the [United] States Supreme
Court’s holding in Alleyne v. United States, insofar as the trial
court made a finding by a preponderance of the evidence that a
sentence of twenty-five (25) years of total incarceration was
insufficient to protect the public safety[?]
(Appellant’s Brief, at 5).
We address Appellant’s third issue first. Our standard of review for a
challenge to the legality of a sentence is well-settled.
Initially, we note “[a] claim that implicates the
fundamental legal authority of the court to impose a particular
sentence constitutes a challenge to the legality of the sentence.
If no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction.” Commonwealth
v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013) (quotations and
quotation marks omitted). Issues relating to the legality of
sentence are questions of law, and thus, our standard of review
is de novo and our scope of review is plenary. Id.Commonwealth v. Clarke, 70 A.3d 1281, 1284 (Pa. Super. 2013), appeal
denied, 85 A.3d 481 (Pa. 2014).
Preliminarily, on this issue, we note that in his statement of questions,
Appellant misstates the sentence imposed. The court imposed the two life
sentences concurrently, as elsewhere conceded by Appellant. (See Trial Ct.
Op., at 7; see also Appellant’s Post-Sentence Motion, 9/26/13, at
unnumbered page 2).
-3-
J-S10012-15
On his illegality of sentence claim, Appellant argues chiefly that the
trial court should have made an explicit finding that twenty-five years of
total confinement was insufficient to protect the public safety, and in any
event, it improperly increased his sentence (to life without parole) based on
judicial fact-finding, in violation of Alleyne.4 (See Appellant’s Brief, at 16-
17, 27-29). We disagree.
The sentencing court imposed Appellant’s “third strike” sentence
pursuant to 42 Pa.C.S.A. § 9714(a)(2), and (d). In pertinent part, the
statute in force at the relevant time provided that:
(2) Where the person had at the time of the commission of
the current offense previously been convicted of two or more
such crimes of violence arising from separate criminal
transactions, the person shall be sentenced to a minimum
sentence of at least 25 years of total confinement,
notwithstanding any other provision of this title or other statute
to the contrary. Proof that the offender received notice of or
otherwise knew or should have known of the penalties under this
paragraph shall not be required. Upon conviction for a third or
subsequent crime of violence the court may, if it determines that
25 years of total confinement is insufficient to protect the public
safety, sentence the offender to life imprisonment without
parole.
* * *
____________________________________________
4
Appellant failed to raise the issue of illegality of sentence in his Rule
1925(b) statement of errors. (See Concise Statement of Errors, 4/03/14, at
1-3). However, challenges to an illegal sentence cannot be waived and may
be reviewed sua sponte by this Court. See Commonwealth v. Melvin, 103
A.3d 1, 52 (Pa. Super. 2014) (citing cases). Accordingly, we will review the
merits of Appellant’s claim.
-4-
J-S10012-15
(d) Proof at sentencing.─Provisions of this section shall
not be an element of the crime and notice thereof to the
defendant shall not be required prior to conviction, but
reasonable notice of the Commonwealth's intention to proceed
under this section shall be provided after conviction and before
sentencing. The applicability of this section shall be determined
at sentencing. The sentencing court, prior to imposing sentence
on an offender under subsection (a), shall have a complete
record of the previous convictions of the offender, copies of
which shall be furnished to the offender. If the offender or the
attorney for the Commonwealth contests the accuracy of the
record, the court shall schedule a hearing and direct the offender
and the attorney for the Commonwealth to submit evidence
regarding the previous convictions of the offender. The court
shall then determine, by a preponderance of the evidence, the
previous convictions of the offender and, if this section is
applicable, shall impose sentence in accordance with this section.
Should a previous conviction be vacated and an acquittal or final
discharge entered subsequent to imposition of sentence under
this section, the offender shall have the right to petition the
sentencing court for reconsideration of sentence if this section
would not have been applicable except for the conviction which
was vacated.
42 Pa.C.S.A. § 9714(a)(2), (d).
See also 42 Pa.C.S.A. § 9721(b):
(b) General standards.─In selecting from the
alternatives set forth in subsection (a), the court shall follow the
general principle that the sentence imposed should call for
confinement that is consistent with the protection of the public,
the gravity of the offense as it relates to the impact on the life of
the victim and on the community, and the rehabilitative needs of
the defendant. . . .
42 Pa.C.S.A. § 9721(b).
Notably, Alleyne, while holding that “facts that increase mandatory
minimum sentences must be submitted to the jury,” expressly recognized
that “[o]ur ruling today does not mean that any fact that influences judicial
-5-
J-S10012-15
discretion must be found by a jury. We have long recognized that broad
sentencing discretion, informed by judicial factfinding, does not violate the
Sixth Amendment.” Alleyne, supra at 2163 (citing cases). In particular,
the Alleyne Court acknowledged an “exception for the fact of a prior
conviction.” Id. at 2160 n.1; see also Apprendi v. New Jersey, 530 U.S.
466, 490 (2000): (“Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.”) (emphasis added).
Here, on review, we conclude that the sentencing court did no more
than take into consideration the long history (from the 1960’s) of Appellant’s
prior convictions for crimes of violence, including the use of firearms. (See
N.T. Sentencing, 9/16/13, at 24-25). Appellant’s sentence does not violate
Alleyne.5
Moreover, Appellant misperceives the scope and applicability of
Alleyne’s holding. In pertinent part, Alleyne held that:
____________________________________________
5
The court also took into consideration Appellant’s Pre-Sentence
Investigation Report, his lack of remorse, his long history of committing
violent crimes, the impact of these crimes on the victims, and the high risk
of re-offense if not given a sentence of total confinement. (See N.T.
Sentencing, at 26-28). Appellant does not dispute that these factors were
permissible considerations in the determination of his sentence. (See
Appellant’s Brief, at 27-29).
-6-
J-S10012-15
Any fact that, by law, increases the penalty for a crime is an
“element” that must be submitted to the jury and found beyond
a reasonable doubt. Mandatory minimum sentences increase the
penalty for a crime. It follows, then, that any fact that increases
the mandatory minimum is an “element” that must be submitted
to the jury.
Alleyne, supra at 2155, overruling Harris v. United States, 536 U.S. 545(2002) (opinion announcing the judgment of the court) (quotation marks in
original) (citation omitted). Here, the sentencing court did not increase the
mandatory minimum sentence by finding an element of a crime not
submitted to the finder of fact.6
Rather, the Commonwealth gave proper notice of its intention to
pursue a mandatory minimum sentence under the “Three Strikes” Act. The
court then properly exercised its discretion by imposing a statutorily
permitted longer sentence for the same crime. Notably, the court did not
impose an additional sentence. Nor did the court find an enhanced or
additional crime with a new element, not previously considered by the fact-
finder. Instead, on its determination that the mandatory minimum sentence
was insufficient to protect the public safety, the court chose the option of
____________________________________________
6
For this reason alone, Alleyne and Commonwealth v. Newman, 99 A.3d
86 (Pa. Super. 2014), are distinguishable on their facts and do not apply.
(See Appellant’s Brief, at 27).
-7-
J-S10012-15
sentencing in the higher range provided by the statute.7 See 42 Pa.C.S.A. §
9714(a)(2); (see also N.T. Sentencing, at 24-25, 27-28).
Appellant also argues that the sentencing court failed to make a
“require[d] showing that 25 years of incarceration would be insufficient to
protect the public safety.” (Appellant’s Brief, at 27). We disagree.
First, Appellant fails to develop an argument that some formal,
explicitly noted “showing” is required. Secondly, Appellant offers no
pertinent authority for this assertion. (See id.). For both these reasons,
Appellant’s issue is waived. See Pa.R.A.P. 2119(a), (b). Moreover, it would
not merit relief.
At sentencing, counsel for Appellant, while conceding Appellant’s
“sordid history,” cited his age, seventy-five, as a reason for a lower
sentence.8 (N.T. Sentencing, at 20). The Commonwealth argued that
Appellant, threatening his victims with a handgun, committed the crime at
____________________________________________
7
Overlooked in Appellant’s entire argument is the fact that because this was
a bench trial, the finder of fact and the sentencing court were one and the
same trial judge.
8
We recognize the irony that on appeal counsel for Appellant appears to
assume that a twenty-five year sentence would be an acceptable alternative
to a life sentence, (see Appellant’s Brief, at 27), even though at sentencing
prior defense counsel argued that a twenty-five year sentence was the
equivalent of a life sentence for this seventy-five year old defendant. (See
N.T. Sentencing, at 19-21). However, we must assess Appellant’s claims on
appeal under our standard of review. It is not our role on direct review to
weigh the varied strategies of different counsel at different stages of the
proceedings.
-8-
J-S10012-15
issue here when he was seventy-four, and on parole from incarceration for
his last preceding offense (attempted murder). (See id. at 17). The
sentencing court, accepting the Commonwealth’s argument, gave extensive
and comprehensive reasons for its determination that a lesser sentence was
insufficient to protect the public safety. (See id. at 19-20, 24-25, 27-28).
We conclude that ample statutory authority existed for the sentencing
court to impose the sentence it chose, and that Alleyne did not prevent the
trial court’s exercise of that duty. See Clarke, supra at 1284. For all of
these reasons, Appellant’s third issue, illegality of sentence, does not merit
relief.
In Appellant’s first and second questions, he challenges the trial
court’s denial of suppression of his two confessions, and the weight of the
evidence. (See Appellant’s Brief, at 5).9
____________________________________________
9
Counsel for Appellant filed the concise statement of errors on April 3, 2014,
twenty-two days late, without having requested an extension or permission
to file nunc pro tunc. The Commonwealth argues that Appellant has waived
his issues on appeal, citing Commonwealth v. Lord, 719 A.2d 306 (Pa.
1998), Commonwealth v. Butler, 812 A.2d 631 (Pa. 2002), and
Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005). (See
Commonwealth’s Brief, at 11-12). Counsel for Appellant concedes that the
concise statement was untimely filed. (See Appellant’s Brief, at 14 n.7).
Nevertheless, citing Pa.R.A.P. 1925(c)(3), Appellant’s counsel urges us to
consider the questions on appeal on their merits, to prevent a “repetitious”
claim under the Post Conviction Relief Act. (Id.). We disagree with
counsel’s reasoning. However, recognizing that the trial court has addressed
the questions raised, in the interest of judicial economy, we will review the
remaining claims on their merits. See Commonwealth v. Burton, 973
A.2d 428, 433 (Pa. Super. 2009) (en banc) (holding that, if there has been
(Footnote Continued Next Page)
-9-
J-S10012-15
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the trial court we conclude
that there is no merit to these issues. The trial court opinion properly
disposes of the questions presented. (See Trial Ct. Op., at pages 11-17)
(concluding that: (1) in the totality of circumstances, including the
administering and acknowledgement of Miranda10 warnings, Appellant’s two
confessions were knowingly, voluntarily, and intelligently made; and (2) trial
court properly exercised its discretion in ruling on Appellant’s weight claim,
where the trial court’s factual findings were supported by the record, and
assessment of the credibility of witnesses is solely for the fact-finder).
Accordingly, on the first and second issues raised, we affirm on the basis of
the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/25/2015
_______________________
(Footnote Continued)
an untimely filing, this Court may decide appeal on merits if trial court had
adequate opportunity to prepare opinion addressing issues raised on
appeal).
10
See Miranda v. Arizona, 384 U.S. 436 (1966).
- 10 -
Circulated 02/24/2015 09:19 AM
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY
PEN NSYLVAN IA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA 525 EDA 2014
V.
SULIMAN ALI CP-46-CR-0004208-2012
OPINION
SILOW, J. April / (p ,2014
INTRODUCTION
Appellant Suliman Ali {"Appellant"} appeals from this Court's judgment of sentence
issued on September 16,2013. For the reasons stated below, this Court respectfully submits
that Appellant's judgment of sentence should be affirmed.
FACTS AND PROCEDURAL HISTORY
The instant case arises out of events that occurred on January 27, 2012, in Hatboro,
Montgomery County. That day, Appellant entered Burdick's News Agency ("Burdick's") and
robbed Sandra Hollis, Mirta Atreides, Martin Atreides, and Michael Ballasy at gunpoint. {Notes
of Testimony {"N.T ."L Apr. 23, 2013, 5-8, 22, 31, 38.} Evidence at trial revealed that Mirta
Atreides was eating lunch at the counter with her husband, Martin Atreides, when she felt
someone nudge her twice on her back. {ld. at 6.} When she turned around, she saw that an
unknown man was holding a gun against her. {ld. at 7.} Martin Atreides, who was able to see
,/
the handgun in the robber's hand, described it as a small, black revolver, similar to a .38 caliber.
(ld. at 29.) The robber told Mr. and Mrs. Atreides "I want your money," and forced them to the ;~
1 /
Circulated 02/24/2015 09:19 AM
register where Sandra Hollis, the owner of Burdick's, was standing. (/d. at 8.) At the register, the
robber pointed the gun at Hollis. (/d. at 39.) She immediately opened the register, began
counting the money, and giving it to the robber. (/d. at 40.) At this time, Michael Ballasy, a
regular customer at Burdick's, walked in through the back door. (/d. at 22.) Appellant made the
"1:",
four (4) victims walk to the back of the store. (/d. at 40.) Once there, Hollis was able to hit the
alarm button and the robber fled the scene. (/d. at 42.)
The robber was caught on Burdick's video surveillance inside the store. (N.T., Apr. 22,
2013, 140.) He was also caught on All Systems TV and Satellite video surveillance, riding a
mountain bike up to Burdick's at the time of the robbery. (/d. at 160.) Appellant, through
counsel, stipulated to the authenticity of the videos recovered and that they appeared in court
in the same condition as they did on January 27,2012. (/d. at 140.)
Shortly after the robbery occurred, Hatboro resident James OeHope saw a gold Jeep
Grand Cherokee stopped in the middle of South Chester Avenue near his neighbor's residence
at 87 Williams Lane. (/d. at 169, 194; N.T., Apr. 23, 2013, 57-59.) South Chester Avenue parallels
York Road. (N .T., Apr. 23, 2013, 57.) Burdick's is located at the intersection of Byberry Road and
York Road. (N .T., Apr. 22, 2013,138.) The distance from Burdick's to 87 Williams Lane along
roadways is about one quarter (.25) of a mile. (/d. at 169.) The distance from 87 Williams Lane
to 9 Hunters Way is approximately one (1) mile. (/d. at 170.) Appellant's residence is 9 Hunters
Way. (Id. at 156.)
OeHope noticed that the gold Jeep had its front passenger door open. (N.T., Apr. 23,
2013, 57.) He saw that an African-American man, later identified to be Appellant, was behind
the wheel of the vehicle. (N.T., Apr. 22, 2013,191; N.T., Apr. 23, 2013, 58.) OeHope observed an
2
Circulated 02/24/2015 09:19 AM
African -American woman, later identified to be Appellant's wife, Connie Johnson, walk around
from behind the vehicle and get into the passenger seat. (N .T., Apr. 22, 2013, 191; N.T., Apr. 23,
2013, 58-60.) She was carrying a bundle wrapped in cloth that resembled a jacket under her
arm . (N .T., Apr. 23, 2013, 58 ~ 59.) The car's hatch was not open nor was any door on the driver's
side . (ld.) The only other location the woman could have come from was DeHope's neighbor's
house at 87 Williams Lane. (ld.) DeHope had never seen these two (2) people before. (ld.)
DeHope told a nearby police officer what he had seen and pointed out the gold Jeep to the
officer. (ld. at 62.)
Officer Andrew Valleley stopped the gold Jeep seen by DeHope on January 27,2012
within a few blocks of Burdick's about forty-five (45) minutes to one (1) hour after the robbery
occurred . (N .T., Apr. 22, 2013, 188.) Appellant was in the driver's seat and Johnson was in the
front passenger seat. (ld. at 191.) Appellant was wearing a gray sleeveless T-shirt and
sweat pants, despite cold January weather. (ld. at 192.) Appellant told Ofc. Valleley that he had
stopped his vehicle on South Chester Avenue because Johnson was vomiting outside the
vehicle. {ld. at 193-94.} There was no odor or sign of vomiting about Johnson . (ld. at 195.) At
South Cheste r Avenue, where Appellant and Johnson had been stopped, there were no signs
that anyone had been vomiting in that area or the area nearby. (ld.) Sergeant James Petrik later
found a black knit cap under the bushes outside 87 Williams Lane . (Id. at 204.) An NMS Labs
report found that the black knit cap located under the bushes at 87 Williams Lane had
Appellant's DNA on it. (Id. at 165-66.) Appellant, through counsel, stipulated to the contents
and results of the NMS report . (Id.)
3
Circulated 02/24/2015 09:19 AM
Police officers executed a search warrant on Appe"ant's home at 9 Hunters Way in
Hatboro. (ld. at 143-44, 155.) From Appe"ant's home, police recovered a Taurus handgun, a
bicycle, a pair of sweatpants, a blue nylon bag, a pair of sneakers, a pair of fingerless gloves,
and four hundred sixteen dollars ($416) in U.S. currency. (ld. at 146-158.) The black Taurus
handgun closely resembled the gun used in the robbery at Burdick' s on January 27, 2012. (ld. at
164.) The bicycle closely resembled the robber's bicycle from the surveillance video in that both
bicycles had two (2) LED headlights on the handlebars, the same or similar color scheme, and a
full-suspension mountain bike frame. (ld. at 149, 202-03.) The sweatpants also closely
resembled the ones that the robber wore. (ld. at 150-51.) The blue nylon bag, sneakers, and
fingerless gloves recovered from Appe"ant's residence, a" of which contained Appe"ant's DNA,
closely resembled the items the robber is shown to use in the video surveillance . (ld. at 152-55,
162-64. ) Police found the four hundred sixteen dollars ($416) in U.S. currency in a purse
belonging to Johnson . (ld. at 158.)
Appe"ant, through counsel, stipulated that his prior record makes him a person not to
possess a firearm pursuant to 18 Pa. C.S . § 6105 and that he did not possess a licenSE; to carry a
firearm pursuant to 18 Pa. C.S. § 6106. (ld. at 184, 200.) Appe"ant also stipulated to the fact
that the firearm recovered at his home was tested by Detective John Finor and found to be
operable and within the definition of "firearm" under 18 Pa . C.S . §§ 6105 and 6106. (ld. at 184.)
On April 20, 2012, Appe"ant was taken into custody by the Hatboro Police Department.
(ld. at 16.) Once at the station, Detective Sergeant Cameron Goold, a 25-year veteran of the
Hatboro Police Department, gave Appe"ant his Miranda warnings, both orally and in writing.
(ld. at 18-21.) Det. Sgt. Goold reviewed the Miranda form with Appe"ant, and Appe"ant
4
Circulated 02/24/2015 09:19 AM
indicated that he understood, initialed each question, and signed the form. (ld.) Appellant
indicated that he was willing to speak with police and give a voluntary statement. (ld. at 21.) At
"\;".
around 1:30 p.m., Appellant gave a written statement to Hatboro Police stating that he did not
want to speak about the robbery at Burdick's except to say that his wife had nothing to do with
IG i!:~ it. (ld. at 26; Commonwealth's Exhibit 14.) After taking this statement, Hatboro Police placed
Appellant in a holding cell. (ld. at 28.)
At around 2:30 p.m., as Det. Sgt. Goold walked by the holding cell in order to leave the
processing room, Appellant asked to give a second statement. (ld. at 29.) Det. Sgt. Goold asked
Appellant what he wanted to tell him, and Appellant responded, "I did it./I (ld.) At this time, Det.
Sgt. Goold took Appellant out ofthe holding cell, and placed him in the processing room, where
he took out a second Miranda rights form and again advised Appellant of his rights. (ld. at 30.)
He followed the same process and procedure to obtain a signed Miranda form and statement
from Appellant. (ld.)
In Appellant's second statement, he admitted to committing the robbery at Burdick's on
January 27, 2012. (Commonwealth's Exhibit 15 at 1.) He admitted that he stole nine hundred
($900) in u.s. currency from Burdick's to pay taxes on a house in New Jersey. (ld. at 1, 3.) He
admitted that he used a gun during the robbery. (ld. at 2.) He described how when he arrived
outside of Burdick's, he sat in front of the empty bank next door, waiting for people to exit. (ld.)
He admitted that while he was committing the robbery, there were four (4) people inside the
store, and he told them to go to the cash register. (ld.) He described how when he initially
walked iJ7l, two (2) of the victims were sitting down, one (1) was by a cash register, and there
was an older gentleman in the back of the store. (ld.) Appellant admitted that he told the
5
Circulated 02/24/2015 09:19 AM
woman behind the cash register to give him the money and she then started to count it. (ld. at
3.) He then admitted that after he got the money he ran out the front door, got on his bicycle,
and f led the scene. (ld.)
Det. Sgt. Goold testified that his exchange with Appellant was cordial, polite, and
conversational in tone . (N .T., Apr. 22, 2013, 16, 22.) Appellant did not show signs of impairment
or duress. (ld. at 16, 22, 37.) Police never threatened nor made any promises to Appellant. (ld.
at 22-23, 33, 38, 54, 105.) At no time afte r waiving his rights did Appellant invoke his rights to
remain silent or to have a lawyer present. (ld. at 37.)
On April 22, 2013, this Court held a suppression hearing, where Appellant sought to
suppress the two (2) written statements given by Appellant t o Hatboro Police on April 20, 201 2
on the ground that Appellant' s waiver of his Miranda rights was involuntary. (ld. at 6-7.) This
Court denied the Motion to Suppress and held that Appellant gave both statements knowingly,
voluntarily, and intelligently after having been informed of his Miranda rights each time. (/d. at
126.) The notes of testimony of the suppression hearing held on April 22, 2013 were
stipulated to and made part of the trial record as it related to the manner in which Appellant's
statements were taken . (ld. at 173.)
On April 23, 2013, this Court found Appellant guilty beyond a reasonable doubt of one
(1) count of Robbery-Threatening Serious Bodily Injury, 18 Pa. C.S . § 3701(a)(1)(ii); one (1)
count of Robbery-Committing or Threatening to Commit any Fl or F2, 18 Pa . C.S. §
3701(a)(1)(iii); one (1) count of Robbery-Taking Property by Force, 18 Pa. C.S. § 3701(a)(1)(v) ;
one (1) count of Person not to Possess a Firearm, 18 Pa. C.S. § 61Os(a)(1); and one (1) count of
Possessing a Firearm Without a License, 18 Pa . C.S. § 6106(a)(1).
6
Circulated 02/24/2015 09:19 AM
On September 16, 2013, the Commonwealth having filed a notice of intent to seek
mandatory sentence on each of Appellant's two (2) first degree robbery convictions, this Court
sentenced Appellant to two (2) concurrent sentences of life imprisonment without the
possibility of parole . On September 26,2013, Appellant, through counsel, filed a written Post-
Sentence Motion that the evidence presented at trial was insufficient, that the verdict was
contrary to the weight of the evidence, and that the sentence imposed was an abuse of judicial
discretion . This Court issued an Order on January 16, 2014 (docketed January 17, 2014),
denying Appellant's Motion in its entirety.
Appellant, through counse" filed a Notice of Appeal on February 18, 2014. This Court
issued an Order on February 19, 2014 (docketed February 20, 2014)' directing Appellant to file a
t1
Concise Statement of Errors Complained of on Appeal ( Concise Statement") within twenty-one
(21) days. Appellant filed his Concise Statement on April 3, 2014.
ISSUES
Appellant's Concise Statement raises the following allegations of error against this Court:
I. Whether Appellant's conviction for the offenses of Robbery, Persons Not to Possess a
Firearm, and Carrying a Firearm without a License are supported by legally sufficient
evidence of the record in that:
a. The evidence pointing to Appellant as the perpetrator of the January 27, 2012
armed robbery of Burdick's is not sufficient to satisfy the beyond a reasonable
doubt standard;
b. The robbery victims were unable to identify Appellant as the individual who
had robbed them; and
7
Circulated 02/24/2015 09:19 AM
l l ~~
n
lIil
:: ~ c. The videotape of the event does not show Appellant and is insufficiently clear
I:!~II
to identify any person.
Im~
~ llil'
" '~', II. Whether the trial court abused its discretion in denying Appellant's Motion for a New
Ij. I ~~
~ I ;]I
'.\ ;~,
Trial because the guilty verdicts were against the weight of the evidence, in that:
1,' ,::11
~itll a. None of the victims of the January 27,2012 armed robbery of Burdick's could
~IU',
'¥luJ.
positively identify Appellant as the perpetrator;
b. When Appellant was stopped by police shortly after the robbery, he was not
wearing the clothing described by the robbery victims nor did any of the
officers detect any odor or visual presence of vomit; and
c. The videotape of the incident is not sufficiently clear to identify Appellant as
the perpetrator or as the individual who possessed the alleged firearm.
II. Whether the trial court abused its discretion and erred as a matter of.law when it
denied Appellant's Motion to Suppress Statements that he had provided to police on
April 20, 2012 because his waiver of his constitutional rights to assistance of counsel
and right to remain silent were not knowingly, voluntarily, nor intelligently made.
DISCUSSION
I. Evidence adduced at trial was sufficient to support Appellant's convictions of Robbery,
Persons Not to Possess a Firearm, and Possession of a Firearm Without a License.
Appe"ant asserts on appeal that the Commonwealth failed to present sufficient
evidence to support Appe"ant's conviction of guilty on the charges of Robbery, Person not to
Possess a Firearm, and Possession of a Firearm Without a License .
8
Circulated 02/24/2015 09:19 AM
In reviewing a sufficiency ofthe evidence claim, the standard to be applied is whether,
viewing all ofthe evidence admitted at trial in the light most favorable to the verdict
I··in,
/1: ;,I!
,~ : 111,
" \ ~,.
winne r, there is sufficient evidence to enable the fact-finder to find every element of the crime
beyond a reasonable doubt. Commonwealth v. Passmore, 857 A.2d 697, 704 (Pa . Super. 2004)
(citing Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa. Super. 2003) (citations omitted)). In
applying this test, the reviewing court may not weigh the evidence and substit ute its judgment
for that of the fact-finder. Commonwealth v. Sinnott, 30 A.3d 1105, 1110 (2011). "[T]he critical
inquiry is not whether the court believes the evidence established guilt beyond a reasonable
doubt, but whether the evidence believed by the fact-finder was sufficient to support the
verdict. The proper question is not whether the defendant's contentions are supported by the
record, but whether the verdict is so supported ." Id.To sustain a conviction, the Commonwealth need not have presented evidence such as
would preclude every possibility of the defendant's innocence. Commonwealth v. Sanders, 42
A.3d 325, 329 (Pa. Super. 2012) (citation omitted). Any doubts regarding a defendant's guilt
may be resolved by the fact-finder unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact may be drawn from the combined circumstances. Id. The
Commonwealth may sustain its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial evidence. Commonwealth v. Causey, 833
A.2d 165, 172 (Pa . Super. 2003) (citations omitted) . Furthermore, if the record contains any
support for the conviction, it may not be disturbed . Commonwealth v. Holley, 945 A.2d 241, 247
(Pa . Super. 2008) . Finally, in applying the above test, the entire record must be evaluated and
all evidence actually received must be considered . Causey, 833 A.2d at 172.
9
Circulated 02/24/2015 09:19 AM
Here, Appellant alleges that the evidence adduced at trial is insufficient to satisfy the
beyond the reasonable doubt standard because: a) the evidence pointing to Appellant as the
perpetrator of armed robbery is insufficient to satisfy the beyond a reasonable doubt standard;
b) the robbery victims were unable to identify Appellant as the individual who robbed them;
and c) the videotape does not show Appellant and is insufficiently clear to identify any person.
This claim is entirely meritless.
The Commonwealth established beyond a reasonable doubt that Appellant robbed
victims Sandra Hollis, Mirta Atreides, Martin Atreides, and Michael Ballasy at gunpoint. Each
victim testified that an individual possessed a black handgun and threatened them with it in the
course of committing a theft on January 27,2012 at Burdick's in Hatboro, Montgomery County.
Pursuant to the execution of a search warrant, police recovered a black Taurus handgun, a pair
of sweatpants, a mountain bike, fingerless riding gloves, a pair of sneakers, a blue nylon bag,
and four hundred sixteen dollars ($416) in U.S. currency from Appellant's home. The gun,
sweatpants, mountain bike, gloves, sneakers, and nylon bag all resembled those items that the
robber used. The gloves, sneakers, and bag all contained Appellant's DNA. Police found a black
knit cap in the area of South Chester Avenue within blocks of where the robbery occurred. The
knit cap was located under bushes, where Appellant was observed stopped in his vehicle
shortly after the robbery. The knit cap contained Appellant's DNA. Furthermore, Appellant gave
a signed, written statement in which he admitted to committing the robbery at Burdick's on
January 27, 2012 and provided details of the robbery.
The Commonwealth also established beyond a reasonable doubt that Appellant
possessed a firearm on January 27,2012 in violation of 18 Pa . C.S. § 6105(a), Person not to
10
Circulated 02/24/2015 09:19 AM
Possess a Firearm, and 18 Pa. C.S. § 6106{a}, Possession of a Firearm Without a License. As
mentioned supra, the four {4} victims testified that an individual robbed them at gunpoint on
that date, and Appellant signed a written confession admitting to possessing a handgun .
Appellant stipulated that his prior record makes him a person not to possess a firearm pursuant
to 18 Pa. C.S. § 6105. Appellant stipulated that he does not have a license to possess a firearm
and the firearm recovered from 9 Hunters Way was tested by Det. Finor and found to be
operable and within the definition of 18 Pa. C.S. §§ 6105 and 6106.
Looking at all evidence in a light most favorable to the Commonwealth as the verdict
winner, sufficient evidence was presented to convict Appellant of the aforementioned crimes.
Accordingly, Appellant should be denied relief on this ground.
II . The Court properly denied Appellant's Post-Sentence Motion for a New Trial because
it granted proper weight to the evidence presented at trial to sustain Appellant's
convictions for Robbery, Person Not to Possess a Firearm, and Possession of a Firearm
Without a License.
Appellant next posits that the trial court erred in denying Appellant's Post-Sentence
Motion for a New Trial because his convictions were against the weight of the evidence. This
Court respectfully submits that Appellant is not entitled to relief on this claim.
The standard of review for a challenge to the weight of the evidence is well-settled . The
finder of fact is the exclusive judge of the weight of the evidence as the fact-finder is free to
believe all, part, or none of the evidence presented and determines the credibility of the
witnesses. Commonwealth v. Champney, 832 A.2d 403,408 {Pa . 2003} . An appellate court
11
Circulated 02/24/2015 09:19 AM
cannot substitute its judgment for that of the finder of fact. Id. Therefore, when reviewing a
challenge to the weight of the evidence, the verdict may be reversed only if the verdict is "so
contrary to the weight of the evidence as to shock one's sense of justice." Commonwealth v.
Davidson, 860 A.2d 575, 582 (Pa. Super. 2004) (citing Davis v. Mullen, 773 A.2d 764, 766 (Pa.
2001). "When the figure of Justice totters on her pedestat or when the .. . [finder of fact's]
verdict, at the time of its rendition, causes him to almost fall from the bench, then it is truly
shocking to the judicial conscience ." Davidson, 860 A.2d at 581 (internal quotations and
citations omitted). Pennsylvania courts have repeatedly emphasized that "[o]ne of the least
assailable reasons for granting or denying a new trial is the lower court's conviction that the
verdict was or was not against the weight of the evidence." Commonwealth v. Forbes, 867 A.2d
1268, 1273 (Pa . Super. 2005) (citation omitted) .
Furthermore, where the trial court has ruled on a weight of the evidence claim, an
appellate court's role is not to consider the underlying question of whether the verdict is
against the weight of the evidence. Rather, appellate review is limited to whether the trial court
palpably abused its discretion in ruling on the weight claim. Champney, 832 A.2d at 408. Even
where the evidence is conflicting, the credibility of the witnesses is solely for the fact-finder,
and if supported by the record, the trial court's denial of a motion for new trial will not be
disturbed. Burns, 765 A.2d at 1149-50; Commonwealth v. Holmes, 663 A.2d 771, 774 (Pa. Super.
1995).
Here, Appellant contends that the trial court erred in denying Appellant's Post-Sentence
Motion for a New Trial on the basis that the guilty verdicts were against the weight of the
evidence because: a) none of the victims of the January 27,2012 armed robbery of Burdick's
12
Circulated 02/24/2015 09:19 AM
could positively identify Appellant as the perpetrator; b) when Appellant was stopped by police
shortly after the robbery, he was not wearing the clothing described by the robbery victims nor
did any of the officers detect any odor or visual presence of vomit; and c) the videotape of the
incident is not sufficiently clear to identify Appellant as the perpetrator or as the individual who
'. \ ~,.
possessed the firearm. Appellant is not entitled to relief.
The Commonwealth presented compelling evidence of Appellant' s guilt. This evidence
was more than sufficient to support this Court's guilty verdicts for the crimes of Robbery,
Person Not to Possess a Firearm, and Possession of a Firearm Without a License. As was within
its province, this Court believed the testimony from the four (4) victims that an individual
robbed them at gunpoint on January 27,2012 at Burdick's. One of the victims, Mr. Atreides,
gave a detailed description of the person who robbed them at gunpoint in a statement given to
police on February 2, 2012. (N.T., Apr. 23, 2013, 35; Defense Exhibit 2.) The description
matched that of Appellant. This Court heard Det. Sgt. Goold describe the items seized pursuant
to the execution of a search warrant, including a black Taurus handgun, a pair of sweatpants, a
mountain bike, fingerless riding gloves, a pa ir of sneakers, a blue nylon bag, and four hundred
sixteen dollars ($416) in U.S. currency from Appellant's home. The Court also heard Det. Sgt.
Goold testify that the gun, sweatpants, mountain bike, gloves, sneakers, and bag all resembled
items that the robber used as seen in video surveillance from before, during, and immediately
after the robbery. Moreover, the gloves, sneakers, and bag resembling those of the robber all
contained Appellant's DNA. The Commonwealth presented evidence that the knit cap
contain ing Appellant's DNA wa s recovered from the bushes in the area of South Chester
Avenue within blocks of where the robbery occurred and where Appellant was seen to be
13
Circulated 02/24/2015 09:19 AM
stopped on South Chester Avenue shortly after the robbery. The Court heard Hatboro resident
DeHope relate his observations that, while the gold Jeep was stopped on South Chester
Avenue, Appellant's wife was carrying a bundle seemingly wrapped in a jacket. The Court also
listened to afc. Valleley's testimony that Appellant was wearing only a sleeveless T-shirt when
Appellant was stopped by police shortly after the robbery, despite cold January weather.
Furthermore, the Commonwealth presented the Court with Appellant's signed, written
statements to police revealing his admissions to possessing a handgun and committing the
Burdick' s robbery on that date. Whether the fact-finder is to believe Appellant robbed the
victims in Burdick's at gunpoint and was in possession of an operable firearm at the time is
within the sound discretion ofthe fact-finder and ought not to be disturbed. This Court did not
palpably abuse its discretion by denying Appellant' s Post-Sentence Motion based on the weight
of the evidence; therefore, Appellant' s issue fails and Appellant should be denied relief on this
ground .
III. The Court did not err in denying Appellant's Motion to Suppress Statements.
In his third issue on appeal, Appellant contends that the Court erred in denying
Appellant's Motion to Suppress Statements to the Hatboro Police on April 20, 2012 on the basis
that Appellant' s waiver of his constitutional rights to assistance of counsel and right to remain
silent were not knOWingly, voluntarily, nor intelligently made. Appellant is not due relief on this
ground .
When evaluating a trial court's refusal to suppress evidence, the appellate court must
determine :
14
Circulated 02/24/2015 09:19 AM
whether the record supports the trial court's factual findings and
whether the legal conclusions drawn therefrom are free from
error. Our scope of review is limited; we may consider only the
evidence of the prosecution and so much of the evidence for the
defense as remains uncontradicted when read in the context of
the record as a whole. Where the record supports the findings of
the suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal conclusions
based upon the facts.
Commonwealth v. Manley, 985 A.2d 256, 263 (Pa. Super. 2009) (citing Commonwealth v.
Patterson, 940 A.2d 493, 502 (Pa . Super. 2007)). This Court respectfully submits that its findings
of fact have firm support in the record, and that this Court drew the correct legal conclusions
from them in refusing to suppress Appellant 's incrimi natory statement s to police.
To determine whether a defendant's inculpatory statements to the police should be
suppressed, a court must determine whether the statements were made voluntarily. See
Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998) (citing Arizona v. Fulminante, 499 U.S.
279, 288 (1991) ("When deciding a motion to suppress a confession, the touchstone inquiry is
whether the confession was voluntary.")). When reviewing the voluntariness of inculpatory
statements, the court must examine the totality of the circumstances. Commonwealth v.
Templin, 795 A.2d 959, 961 (Pa . 2002). To make this assessment, a court must look to factors
such as the duration and means of interrogation, the physical and psychological state of the
accused, the conditions attendant to the detention, the attitude of the interrogator, and any
and all other factors that could drain a person's ability to withstand coercion . Withrow v.
Williams, 507 U.S. 680, 693 (1992); Commonwealth v. Roberts, 969 A.2d 594, 598 (Pa . Super.
2009).
15
Circulated 02/24/2015 09:19 AM
The Pennsylvania Supreme Court has emphasized the importance of a knowing,
intelligent, and voluntary waiver of Miranda rights when considering whether a defendant's
" \ ~" rights were compromised:
the fact that warnings were given is an important factor tending in
the direction of a voluntariness finding . .. It bears on the
coerciveness of the circumstances, for it reveals that the police
were aware of the suspect's rights and presumably prepared to
honor them. And . . . it bears upon the defendant's susceptibility,
for it shows that the defendant was aware that he had a right not
to talk to the police.
Templin, 795 A.2d at 966 (citing W .R. LaFave et aI., Criminal Procedure, § 6.2(c) at 460).
Upon reviewing the totality of the circumstances surrounding Appellant's inculpatory
statements to the police, this Court finds they were voluntarily made and, therefore, properly
admitted.
Appellant's statements were the product of Appellant's voluntary decision to speak to
the police. Upon Appellant's arrival at the police station, police promptly advised him of his
Miranda rights and Appellant expressly waived those rights before proViding his first written
statement to police. After police obtained Appellant's first statement and placed him in a
holding cell, Appellant initiated a conversation with Det. Sgt. Goold as Det. Sgt. Goold walked
past the cell. Appellant voluntarily told Det. Sgt. Goold that he committed the robbery and that
he wished to provide a second statement. Police again advised Appellant of his Miranda rights
and Appellant again expressly waived those rights . Moreover, Appellant was cooperative and
polite, and did not appear to be under any impairments. Further, the record shows that Det.
Sgt. Goold was professional, polite, and calm in addressing Appellant.
16
Circulated 02/24/2015 09:19 AM
Therefore, after reviewing the totality of the circumstances surrounding Appellant's
inculpatory statements, this Court concludes that the statements were voluntary and, thus,
i ~II
properly admitted. Accordingly, Appellant's final claim is devoid of merit.
1"" CONCLUSION
Based upon the foregoing, this Court respectfully submits that the September 16, 2013
judgment of sentence should be affirmed.
BY THE COURT:
GARY SIL , ~ I J.
CO I F C~~.~ON PLEAS
I' ~
MONT1M 'Y COUNTY
PENNSV, VA A
TH
38 JU \jDISTRICT
Copies sent on April I ~ , 2014
to the following:
Clerk of Courts (original)
Robert M. Falin, Esquire, Deputy District Attorney, Chief of Appeals
Timothy P. Wile, Esquire, Assistant Public Defender, Chief, Appellate DiVision
Suliman Ali, Appellant
via certified mail # 7010-2780-0001-3020-0829
S.c.1. Huntingdon
1100 Pike Street
Huntingdon, PA 16654-1112
Judicial Secretary
17