Com. v. Vazquez, F. ( 2023 )

J-A29018-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FELIPE VAZQUEZ :
:
Appellant : No. 1123 WDA 2021
Appeal from the Judgment of Sentence Entered August 17, 2021
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0005098-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FELIPE VAZQUEZ :
:
Appellant : No. 1124 WDA 2021
Appeal from the Judgment of Sentence Entered August 20, 2021
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0005102-2019
BEFORE: BENDER, P.J.E., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY OLSON, J.: FILED: MARCH 13, 2023
In this consolidated appeal, Appellant, Felipe Vazquez, appeals from the
August 17, 2021 judgment of sentence entered in the Court of Common Pleas
of Westmoreland County at trial court docket number
CP-65-CR-0005098-2019 (“5098-CR-2019”), as well as the August 20, 2021
amended judgment of sentence entered in the Court of Common Pleas of
Westmoreland County at trial court docket number CP-65-CR-0005102-2019
J-A29018-22
(“5102-CR-2019”).1 A jury convicted Appellant of corruption of
minor – defendant age 18 years and above (Count 1) and sexual abuse of a
child – child pornography (Counts 2 to 11) at 5098-CR-2019.2 At
5102-CR-2019, the jury convicted Appellant of statutory sexual
assault – complainant under the age of 16, defendant 11 or more years older
than complainant (Count 1), unlawful contact with minor (sexual offenses)
(Count 2), corruption of minor (sexual offenses) – defendant age 18 years and
above (Count 3), and indecent assault – complainant less than 16 years old.3
The trial court imposed an aggregate sentence of two to four years’
incarceration followed by two years’ probation. We affirm.
The record demonstrates that, at 5102-CR-2019, Appellant was charged
with the aforementioned criminal offenses based on a sexual encounter
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1 The original judgment of sentence docketed at 5102-CR-2019 was entered
on August 17, 2021. On August 20, 2021, the trial court amended its August
17, 2017 sentencing order docketed at 5102-CR-2019, vacating a portion of
the original sentencing order that amended Count 3 (corruption of minor) of
the criminal information from a third-degree felony (18 Pa.C.S.A.
§ 6301(a)(1)(ii)) to a first-degree misdemeanor (18 Pa.C.S.A.
§ 6301(a)(1)(i)). Compare Sentencing Order, 8/20/21, with Sentencing
Order, 8/17/21. The amended sentencing order docketed at 5102-CR-2019
on August 20, 2021, now accurately reflects that, at Count 3, Appellant was
convicted of, and sentenced for, corruption of minor – defendant age 18 years
and above, a third-degree felony, pursuant to 18 Pa.C.S.A. § 6301(a)(1)(ii).
2 18 Pa.C.S.A. §§ 6301(a)(1)(i) and 6312(d), respectively. Appellant was
found not guilty of unlawful contact with minor (sexual offenses) (Counts 12
to 21), 18 Pa.C.S.A. § 6318(a)(1).
3 18 Pa.C.S.A. §§ 3122.1(b), 6318(a)(1), 6301(a)(1)(ii), and 3126(a)(8),
respectively.
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Appellant had on August 21, 2017 with a then-thirteen-year-old female victim
in Westmoreland County, Pennsylvania.4 Appellant’s criminal charges at
5098-CR-2019 stemmed from improper electronic communications Appellant
had with the victim following the August 21, 2017 sexual encounter and while
Appellant was located in Allegheny County, Pennsylvania.5
On June 25, 2020, Appellant filed an omnibus pre-trial motion, seeking
to, inter alia, suppress statements he made to the Pennsylvania State Police
(“PSP”) and the Florida Department of Law Enforcement (“FDLE”)6 on
September 17, 2019, on the grounds that, inter alia, Appellant did not receive
Miranda7 warnings prior to interrogation. Omnibus Motion, 6/25/20, at § IV.
At the July 9, 2020 hearing on Appellant’s omnibus motion, the trial court
permitted Appellant to orally amend his omnibus motion to include a challenge
to a September 6, 2019 traffic stop. N.T., 7/9/20, at 4-6. As amended,
Appellant’s omnibus motion asserted that the traffic stop was pretextual,
____________________________________________
4 At the time of this encounter, Appellant was 26 years old and a relief pitcher
for the Pittsburgh Pirates, a professional baseball team based in Pittsburgh,
Pennsylvania.
5 For purposes of trial, the two criminal cases were consolidated.
6 The FDLE began investigating Appellant after the victim and her mother,
both of whom were then residing in Florida, reported the sexual encounter
and communications by Appellant to Florida law enforcement. Once the FDLE
learned that the sexual encounter and some of the communications between
Appellant and the victim occurred in Pennsylvania, the PSP were notified of
the allegations and the PSP began investigating the allegations.
7 Miranda v. Arizona, 384 U.S. 436 (1966).
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without justification to stop Appellant’s vehicle, for the purpose of obtaining
his local address in Pittsburgh, as well as his cellular telephone number, in
violation of his constitutional rights. Id. An evidentiary hearing on Appellant’s
amended omnibus motion was conducted on July 9, 2020, and September 1,
2020. On January 14, 2021, the trial court denied Appellant’s amended
omnibus motion.
A jury trial was conducted on May 17, 2021, through May 20, 2021. On
May 20, 2021, the jury found Appellant guilty of the aforementioned criminal
offenses. On August 17, 2021, the trial court sentenced Appellant to an
aggregate sentence of two to four years’ incarceration followed by two years’
probation.8 The trial court designated Appellant as a Tier III sex offender
pursuant to Section 9799.14(d)(4) of the Sexual Offenders Registration and
Notification Act (“SORNA”)9 because he was convicted of statutory sexual
____________________________________________
8 At 5102-CR-2019, Appellant received two to four years’ incarceration at
Count 1, two to four years’ incarceration at Count 2, one to two years’
incarceration at Count 3, and three to six months’ incarceration at Count 4.
The sentences imposed for his convictions at Counts 2, 3, and 4 were set to
run concurrently to the sentence imposed for his conviction at Count 1.
At 5098-CR-2019, Appellant received three to six months’ incarceration for
his conviction at Count 1 with the sentence to run concurrently to the sentence
imposed at 5102-CR-2019. At Count 2 of 5098-CR-2019, Appellant received
two years’ probation set to run consecutively to the sentence imposed at
5102-CR-2019. At Counts 3 through 11 of 5098-CR-2019, Appellant received
two years’ probation at each count with each sentence set to run consecutively
to the sentence imposed at Count 1 at 5098-CR-2019 and concurrently to the
sentence imposed at Count 2 at 5098-CR-2019.
9 42 Pa.C.S.A. §§ 9799.10 to 9799.42.
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assault. Appellant was ordered to comply with all SORNA registration
requirements. Appellant was also ordered to pay restitution in the amount of
$2,422.74, as well as the cost of prosecution. Finally, Appellant was ordered
to have no contact with minors (except his own children), as well as the victim
and her family. Appellant did not file a post-sentence motion.
On September 13, 2021, Appellant filed a notice of appeal. The trial
court ordered Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b), which Appellant filed on November 5,
2021.10 The trial court filed its Rule 1925(a) opinion on January 4, 2022.11
Appellant raises the following issues for our review:
[1.] As a traffic stop was impermissibly prolonged to gather
information necessary for the criminal investigation of
Appellant and he was subsequently subjected to searches
and custodial interrogations without being informed of
Miranda warnings, was it error for the [trial] court to deny
his suppression motions?
[2.] Was it prejudicial error to compel a black criminal defendant
to unwillingly engage in a humiliating cross-gender
performance of a woman’s sexy walk before an all[-]white
jury?
____________________________________________
10Pursuant to agreement of the parties, the trial court extended the time in
which to file a Rule 1925(b) statement to November 5, 2021. Trial Court
Order, 9/29/21.
11We note that the copy of the Rule 1925(a) opinion that is part of the
5098-CR-2019 certified record is missing pages 50 through 73 of the opinion.
Those missing pages of the 5098-CR-2019 Rule 1925(a) opinion appear to
have been mistakenly interspersed in the pages of the trial court’s Rule
1925(a) opinion that is part of the 5102-CR-2019 certified record.
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[3.] Where there was overwhelming uncontroverted evidence
that [the victim], a minor female, lied about her age, was
considered to be older by others, produced sexually explicit
[photographs] and videos of herself that appeared to
portray an adult[,] and the primary defense was mistake of
age, was there sufficient evidence to support the guilty
verdicts?
[4.] Where there was overwhelming uncontroverted evidence
that [the victim], a minor female, lied about her age, was
considered to be older by others, produced sexually explicit
[photographs] and videos of herself that appeared to
portray an adult[,] and the primary defense was mistake of
age, were the guilty verdicts against the weight of the
evidence?
Appellant’s Brief at 3-4 (extraneous capitalization omitted).12
Issue 1 – Omnibus Motion
In his first issue, Appellant challenges the trial court’s denial of his
amended omnibus motion that sought to suppress information Appellant
provided during a traffic stop on September 6, 2019, as well as statements
Appellant made to law enforcement on September 17, 2019, and items
obtained through a subsequent search that same day of Appellant’s residence
pursuant to a warrant. Appellant’s Brief at 41-53.
An appellate court’s standard and scope of review of a challenge to the
denial of a suppression motion is well-settled.
An appellate court's standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court's factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. [When] the
____________________________________________
12 For purpose of disposition, we renumbered Appellant’s issues.
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Commonwealth prevailed before the suppression court, 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. Where the suppression court's factual findings are
supported by the record, the appellate court is bound by
those findings and may reverse only if the [suppression]
court's legal conclusions are erroneous. Where the appeal
of the determination of the suppression court turns on
allegations of legal error, the suppression court's legal
conclusions are not binding on the appellate court, whose
duty it is to determine if the suppression court properly
applied the law to the facts. Thus, the conclusions of law of
the [suppression] court are subject to plenary review.
Commonwealth v. Hoppert, 39 A.3d 358, 361-[3]62
(Pa. Super. 2012)[, appeal denied, 57 A.3d 68 (Pa. 2012)].
Moreover, “appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining a
ruling on a pre-trial motion to suppress.” Commonwealth v.
Stilo, 138 A.3d 33, 35-36 (Pa. Super. 2016)[.]
Commonwealth v. Wright, 224 A.3d 1104, 1108 (Pa. Super. 2019) (original
brackets and ellipsis omitted), appeal denied, 237 A.3d 393 (Pa. 2020).
A. Traffic Stop
Here, Appellant concedes the “only legitimate reason” for initiating a
traffic stop of his vehicle on September 6, 2019, was that PSP Trooper Glenn
Adams (“Trooper Adams”) observed Appellant failing to use a traffic signal
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before initiating a turn of his vehicle in violation of the Motor Vehicle Code.13, 14
Appellant’s Brief at 44-45. Appellant further concedes that Trooper Adams’
request of Appellant to produce this driver’s license and vehicle registration,
as well as Trooper Adams’ verification of those documents, was
constitutionally permissible as part of the lawful traffic stop. Id. Appellant
asserts, however, that upon returning the driver’s license and vehicle
registration to Appellant, a permissible “seizure” of Appellant for purpose of
Fourth Amendment constitutional protections ended because Trooper Adams
did not issue Appellant a traffic citation or provide him with a written warning
____________________________________________
13On September 6, 2019, Trooper Adams was employed as a trooper with the
patrol division of the PSP and assigned to the Greensburg, Westmoreland
County, Pennsylvania barracks. N.T., 7/9/20, at 3.
14 Section 3334 of the Motor Vehicle Code states, in pertinent part, as
follows:
§ 3334. Turning movements and required signals
(a) General rule. - Upon a roadway no person shall turn a
vehicle or move from one traffic lane to another or enter the traffic
stream from a parked position unless and until the movement can
be made with reasonable safety nor without giving an appropriate
signal in the manner provided in this section.
(b) Signals on turning and starting. - At speeds of less than
35 miles per hour, an appropriate signal of intention to turn right
or left shall be given continuously during not less than the last 100
feet traveled by the vehicle before turning. The signal shall be
given during not less than the last 300 feet at speeds in excess of
35 miles per hour. The signal shall also be given prior to entry of
the vehicle into the traffic stream from a parked position.
75 Pa.C.S.A. § 3334(a) and (b).
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of the traffic offense. Id. at 46. Appellant contends, Trooper Adams
“impermissibly continued [Appellant’s] seizure [by questioning Appellant]
about his local domicile and personal telephone number.” Id. Appellant
argues that the information regarding his local address and telephone number
was “not necessary to complete the mission of issuing a [citation] for the
[traffic] violation” and, therefore, the questions soliciting this information
violated his constitutional rights. Id. at 46-47. Appellant asserts that “[b]y
restricting [Appellant’s] liberty and freedom of movement for any length of
time beyond that which was required to check his [driver’s license and vehicle
registration] and prepare a [citation,] no matter how briefly, [Trooper] Adams
violated [Appellant’s] fundamental right not to be subjected to an
unreasonable search and seizure.” Id. at 47.
The Fourth Amendment to the United States Constitution, made
applicable to the states through the Fourteenth Amendment, and Article I,
Section 8, of the Pennsylvania Constitution protect individuals from unlawful
searches and seizures.15 It is well-established that “[a] vehicle stop
____________________________________________
15 The Fourth Amendment provides,
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized.
U.S. CONST. amend. IV. The Pennsylvania Constitution provides,
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constitutes a seizure under the Fourth Amendment.” Commonwealth v.
Chase, 960 A.2d 108, 113 (Pa. 2008), citing Whren v. United States, 517
U.S. 806, 809-810 (1996). “Pennsylvania law makes clear that a police officer
has probable cause to stop a motor vehicle if the officer observes a traffic code
violation, even if it is a minor offense.” Commonwealth v. Harris, 176 A.3d
1009, 1019 (Pa. Super. 2017) (stating, “[t]he Fourth Amendment does not
prevent police from stopping and questioning motorists when they witness or
suspect a violation of traffic laws, even if it is a minor offense”), citing, Chase,
960 A.2d at 113. “[A]ny violation of the Motor Vehicle Code legitimizes a stop,
even if the stop is merely a pretext for an investigation of some other crime.”
Harris, 176 A.3d at 1020.
The United States Supreme Court has explained,
[T]he tolerable duration of police inquiries in the traffic-stop
context is determined by the seizure's “mission” - to address the
traffic violation that warranted the stop and attend to related
safety concerns. Because addressing the infraction is the purpose
of the stop, it may last no longer than is necessary to effectuate
that purpose. Authority for the seizure thus ends when tasks tied
to the traffic infraction are - or reasonably should have
been - completed.
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The people shall be secure in their persons, houses, papers and
possessions from unreasonable searches and seizures, and no
warrant to search any place or to seize any person or things shall
issue without describing them as nearly as may be, nor without
probable cause, supported by oath or affirmation subscribed to by
the affiant.
PA CONST. art. I, § 8.
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[W]e concluded that the Fourth Amendment tolerated certain
unrelated investigations that did not lengthen the roadside
detention. [A] traffic stop can become unlawful if it is prolonged
beyond the time reasonably required to complete the mission of
issuing a warning ticket. . . . The seizure remains lawful only so
long as unrelated inquiries do not measurably extend the duration
of the stop. [A police] officer, in other words, may conduct certain
unrelated checks during an otherwise lawful traffic stop. [The
police officer, however,] may not do so in a way that prolongs the
stop, absent the reasonable suspicion ordinarily demanded to
justify detaining an individual.
Beyond determining whether to issue a traffic [citation, a police]
officer's mission includes ordinary inquiries incident to the traffic
stop. Typically[,] such inquiries involve checking the driver's
license, determining whether there are outstanding warrants
against the driver, and inspecting the automobile's registration
and proof of insurance. These checks serve the same objective
as enforcement of the traffic code: ensuring that vehicles on the
road are operated safely and responsibly.
Rodriguez v. United States, 575 U.S. 348, 354-355 (2015) (citations,
original brackets, and some quotation marks omitted); see also
Commonwealth v. Malloy, 257 A.3d 142, 149-150 (Pa. Super. 2021)
(stating, “within the context of a lawful traffic stop, [‘]mission related[’]
inquiries addressed to the traffic violations which originally prompted the
detention [are permitted], as well as incidental inquiries aimed at ensuring
the safe and responsible operation of vehicles on the highway”).
Thus, in sum, even if a traffic stop is a pretext for an investigation of
another unrelated crime, the traffic stop is lawful provided (1) a police officer
observes a violation of the Motor Vehicle Code, even if a minor offense, and
(2) the traffic stop lasts no longer than is necessary to effectuate the “mission”
of the traffic stop, which is to address the Motor Vehicle Code violation and
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attend to related safety concerns. See Whren, 517 U.S. at 813 (stating, a
police officer’s “[s]ubjective intentions play no role in ordinary, probable-cause
Fourth Amendment analysis”).
Here, the trial court summarized the evidence presented at the
suppression hearing as follows:
The Commonwealth's first witness was Trooper Adams. He
testified that on September 6, [2019], he was on duty at the
Greensburg barracks of the [PSP] when he was asked to engage
in a surveillance detail. He was asked to assist a team of law
enforcement officers, headed by [PSP] Trooper Michael Thompson
[(“Trooper Thompson”)], in ascertaining the residential address of
[Appellant], whom he knew to play for the Pittsburgh Pirates. He
knew that the investigation related to alleged sexual contact that
[Appellant] had with a minor, but he did not know many details.
His goal was to follow [Appellant] home from a Pirate [baseball]
game to see where he lived. If [Appellant] were to commit a
traffic violation, his plan was to pull him over.
According to [Trooper] Adams, [Appellant] left PNC Park,[16
between] 11:30 [p.m. and] 11:35 [p.m.], driving a 2019 Dodge
Challenger Hellcat. Trooper Adams followed him in his unmarked
[vehicle], which was equipped with only lights, sirens, and a radio,
but not a motor vehicle recorder ([“]MVR[”]). Although [Trooper]
Adams did not have radar equipment, he observed [Appellant]
traveling at "an excessive rate of speed between traffic lights and
through [heavy] traffic[.]" As [Appellant] was traveling on Fort
Duquesne Boulevard, [Trooper] Adams noted that [Appellant’s
vehicle] had a dealer license plate[.] According to [Trooper]
Adams, [Appellant] failed to use his turn signal when making a
right turn onto 11th Street or a left turn onto Smallman Street. As
a result, [Trooper Adams] stopped [Appellant] at 11:55 [p.m.] in
a parking lot [that was one] mile from PNC Park.
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16 PNC Park is a baseball stadium in Pittsburgh where the Pittsburgh Pirates
play home games.
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[Trooper] Adams testified that given the violations, he had
authority to issue a traffic citation or mail [Appellant] a written
warning. [Trooper Adams] asked [Appellant] from where he was
coming, and he told [Appellant] that he [] stopped him for reckless
driving and failure to use his turn signals. [Appellant] provided
[Trooper] Adams with his Florida driver's license and the dealer
registration [for the vehicle], neither of which contained a local
[residence] address [for Appellant. Trooper] Adams testified that
he then asked [Appellant] for his local address and [telephone]
number because he was going to issue a warning and might need
to "contact [Appellant] or provide him with [] paperwork."[FN1]
[Trooper] Adams testified that they had a cordial and polite
conversation and that [Appellant] expressed support for law
enforcement and the difficult job [law enforcement officers] have.
[Footnote 1 Trooper] Adams denied that he was asked to
obtain [Appellant’s] telephone number when he was asked
to perform the surveillance detail.
On September 7, 2019, Trooper Adams contacted Trooper
Thompson and provided him with [Appellant’s] local address.
[Trooper] Adams never issued a citation or a written warning to
[Appellant].
[Appellant] was called to testify [at the suppression hearing] on
September 1, 2020. He advised that on September 6, 2019, he
was living in the Strip District section in the City of Pittsburgh. He
had [] a home [baseball] game that night, which ended at
approximately 10:30 [p.m.] He showered and left the [ballpark]
afterwards. Before the game, he [] parked [his vehicle], which
was owned by a dealer, in the players' parking garage and, upon
leaving [the parking garage], turned onto General Robinson
Street. He said that traffic was bumper-to-bumper, and numerous
fans were milling about on the street and sidewalk. [Appellant
stated he] committed no Vehicle Code violations and [] proceeded
only 60-70 yards when he stopped in response to police lights in
his rearview mirror. Contrary to Trooper Adams' testimony, he
stated that he was pulled over just before 11:00 [p.m.]
According to [Appellant, Trooper] Adams was wearing a uniform.
His badge, gun, and handcuffs were visible. [Trooper Adams]
approached [Appellant] and asked if he could see his driver's
license and [vehicle] registration. [Appellant] showed [Trooper
Adams] both documents, and [Trooper Adams] asked him for his
[local] address and [tele]phone number "for future references."
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[Appellant did not] understand why [Trooper Adams] would need
the [telephone] number given that he [] told [Trooper] Adams he
was a member of the [Pittsburgh] Pirates [baseball team] and
would be easy to locate, but he provided the information because
he was afraid of the police. He denied that [Trooper] Adams ever
gave him a justification for stopping him.
Trial Court Opinion, 1/20/21, at 3-5 (extraneous capitalization omitted).
In denying Appellant’s amended omnibus motion related to the
September 6, 2019 traffic stop, the trial court found that Trooper Adams,
having observed Appellant failing to use a turn signal while negotiating turns
with his vehicle, had probable cause to conduct a traffic stop of Appellant’s
vehicle. Id. at 22, 26. The trial court further found that, while conducting a
traffic stop of this nature, Trooper Adams’ questions regarding Appellant’s
local address and his telephone number were “ordinary inquiries” made by
police officers because this information could be used for mailing a citation or
written warning or contacting the driver. Id. at 24, 26. In so finding, the trial
court deemed Appellant’s testimony not to be credible, noting, in particular,
[a]s an example, [Appellant] testified that Trooper Adams stopped
him for no stated reason only 60 or 70 feet from the parking
[garage] next to PNC Park on September 6, 2019. However, he
never specified where [Trooper Adams] stopped him, and it is
difficult to envision a location on General Robinson Street where
this kind of stop could have occurred. It is also difficult to imagine
that Trooper Adams, who testified that the stop actually occurred
in a quieter area, [] a mile away, would have lied about this given
the possibility that the numerous fans [leaving PNC Park after the
baseball game concluded] could have videotaped an encounter
between the police and a [Pittsburgh] Pirate [baseball] player.
Certainly, there are various business establishments in that area
that could have been equipped with surveillance cameras. If
Trooper Adams were caught in this kind of a lie, it would likely
have dire consequences for his career.
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Id. at 19.
At the suppression hearing, Trooper Adams testified that, on September
6, 2019, he was involved in an undercover surveillance operation to obtain
Appellant’s residential address in the City of Pittsburgh. N.T., 7/9/20, at 14.
While following Appellant’s vehicle after Appellant left the players’ parking
garage at PNC Park, Trooper Adams observed Appellant failing to use a turn
signal when he turned his vehicle right onto Fort Duquesne Boulevard and
again when Appellant turned his vehicle left onto Smallman Street. Id. at
15-17. After the second instance of observing a Vehicle Code violation for
failing to use a turn signal, Trooper Adams initiated a traffic stop of Appellant’s
vehicle. Id. at 17. Trooper Adams explained that with a traffic stop of this
nature, a police officer, at the conclusion of the traffic stop, can issue a verbal
warning directly to the driver, provide the driver with a written warning or
mail the same to the driver on a future date, or provide the driver with a
written citation or file the same within 10 days. Id. at 18. Because Trooper
Adams was using an unmarked police vehicle as part of the undercover
surveillance operation, providing Appellant a written warning or citation that
evening was not an option because his unmarked police vehicle was not
equipped with the necessary computer equipment used to generate a written
warning or citation. Id. at 33-42.
After approaching Appellant’s stopped vehicle, Trooper Adams asked
Appellant where he was coming from and advised him of the reason for the
traffic stop. Id. at 20. Appellant provided Trooper Adams with his Florida
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driver’s license and the vehicle’s registration card. Id. at 19. Trooper Adams
returned to his unmarked police vehicle with these documents to conduct a
review.17 Id. at 21. After verifying the information provided by Appellant,
Trooper Adams returned to Appellant’s vehicle and asked Appellant for his
local address and telephone number. Id. When asked if he indicated to
Appellant the purpose of obtaining this information, Trooper Adams
responded, “Yes. Just that with him being an out-of-state resident[,] if we
would need to contact him or provide him with any paperwork we would need
to send it directly to him.” Id. Trooper Adams further explained that it was
desirable to have a local address rather than an out-of-state address for a
driver. Id. at 19-20. Trooper Adams knew that as a baseball player for the
Pittsburgh Pirates, Appellant would have a local address where he resided
while in the Pittsburgh area. Id. at 19. After Appellant provided Trooper
Adams with his local address and telephone number, Trooper Adams advised
Appellant that he would issue him a verbal warning, at this time, for his
violation of the Motor Vehicle Code. Trooper Adams then returned the driver’s
license and vehicle registration card to Appellant, thereby, concluding the
traffic stop.
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17 Trooper Adams presumably used radio communication with another police
officer to conduct a review of Appellant’s driver’s license and vehicle
registration information because the unmarked police vehicle he was using
that evening was not equipped with an on-board computer system, which
would have permitted Trooper Adams to conduct the verification of
information himself.
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Based upon our review of the record, we concur with the trial court, and
the record supports, that Trooper Adams obtained Appellant’s local address
and telephone number while engaged in the “mission” of addressing the
observed Motor Vehicle Code violation that warranted the traffic stop. During
the series of events that unfolded after Trooper Adams stopped Appellant’s
vehicle for the traffic violation, Trooper Adams informed Appellant of the
reason for the stop, obtained Appellant’s driver’s license and vehicle
registration card, conducted a review of the same, noting the out-of-state
address on the driver’s license, obtained a local address and telephone
number for purpose of contacting Appellant regarding the traffic stop, if
necessary, issued a verbal warning to Appellant for the Motor Vehicle Code
violation, and returned Appellant’s driver’s license and vehicle registration
card to him. Trooper Adams’ act of obtaining Appellant’s local address and
telephone number did not unreasonably prolong the traffic stop and was
conducted within the framework of the traffic stop’s mission. Therefore, we
discern no error of law or abuse of discretion in the trial court’s denial of
Appellant’s amended omnibus motion on this ground.18
B. September 2019 Police Encounters
____________________________________________
18Trooper Adams’ subjective intent of obtaining knowledge of Appellant’s local
address that evening is of no consequence to our analysis because Trooper
Adams had probable cause to stop Appellant’s vehicle for an observed traffic
violation, and the information was provided by Appellant during the traffic
stop’s mission without undue extension of the traffic stop.
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Concerning police questioning of Appellant on September 17, 2019,
Appellant asserts that neither the PSP officers nor the FDLE officers
Mirandized Appellant prior to interrogating him about the events involving
the minor victim.19 Appellant’s Brief at 47-52. Appellant asserts that his
involvement with Trooper Thompson and Trooper Yeager on September 17,
2019, amounted to a custodial interrogation and, as such, required him to be
advised of his Miranda rights, which did not occur prior to the police officers’
interrogation.20 Id. at 51. Appellant contends that the trial court failed to
consider, inter alia, Appellant’s immigrant roots, education, understanding of
____________________________________________
19 As discussed more fully infra, on September 17, 2019, Appellant was
questioned at his Pittsburgh residence by Trooper Thompson and PSP Trooper
Brandon Yeager (“Trooper Yeager”). Later that same day, and separate from
the interview conducted by Trooper Thompson and Trooper Yeager, FDLE
Special Agent Orlando Esquibel (“Agent Esquibel”) and FDLE Special Agent
Christopher Tissot (“Agent Tissot”) questioned Appellant and subsequently
arrested Appellant pursuant to a Florida-issued arrest warrant. PSP Trooper
Jeff Tagmyer (“Trooper Tagmyer”) was also present at this time as local law
enforcement for the purpose of assisting Agent Esquibel and Agent Tissot in
the execution of the arrest warrant.
20 Appellant argues that Trooper Thompson’s statement - “We didn’t want to
give the appearance that [Appellant] was in police custody” - implicitly
evidences that he was in police custody and that Miranda warnings were
necessary before the PSP officers questioned him. Appellant’s Brief at 49. In
so arguing, Appellant references a statement Trooper Thompson made while
testifying at Appellant’s trial. See N.T., 5/18/21, at 173. It is well-settled
that “[w]hen reviewing the denial of a suppression motion, [an appellate
court] reviews only the suppression hearing record, and not the evidence
elicited at trial.” Commonwealth v. Frein, 206 A.3d 1049, 1064 (Pa. 2019),
cert. denied, 140 S.Ct. 844 (2020). Because Trooper Thompson’s testimony
was elicited at trial, we may not consider it in reviewing the denial of
Appellant’s omnibus motion.
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the English language, fear of law enforcement, and his placement at the time
of the questioning when the trial court conducted its totality of the
circumstances analysis and concluded Appellant’s interaction with Trooper
Thompson and Trooper Yeager did not give rise to a custodial interrogation
requiring Miranda warnings. Id. at 50-51.
Our law is well-settled that,
before law enforcement officers question an individual who has
been [] taken into custody or has been deprived of his freedom in
any significant way, the officers must first warn the individual that
he[, or she,] has the right to remain silent, that anything he[, or
she,] says can be used against him[, or her,] in a court of law,
that he[, or she,] has the right to the presence of an attorney, and
that if he[, or she,] cannot afford an attorney one will be
appointed.
Commonwealth Yandamuri, 159 A.3d 503, 519-520 (Pa. 2017), citing
Miranda, 384 U.S. at 478-479. Simply stated, an individual is entitled to
Miranda warnings prior to custodial police interrogation. Commonwealth
v. Witmayer, 144 A.3d 939, 948 (Pa. Super. 2016), appeal denied, 169 A.3d
27 (Pa. 2017). Two issues emerge here. First, we must determine whether
the individual has been interrogated. Next, we need to ascertain whether the
individual was in custody when the interrogation occurred.
Regarding Appellant’s interaction with Trooper Thompson and Trooper
Yeager, we concur with the trial court, and the Commonwealth concedes, that
Appellant was subjected to police interrogation. Trial Court Opinion, 1/20/21,
at 27 (stating, “there is no question that [Appellant] was interrogated by the
police”); see also Commonwealth Brief at 43 (stating, “the question for the
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suppression court was limited to a determination of whether [Appellant] was
‘in custody’ so as to trigger” the need for Miranda warnings). Thus, our
inquiry is limited to determining whether the trial court erred in denying
Appellant’s amended omnibus motion on the basis that Appellant was not “in
custody” at the time of his interaction with Trooper Thompson and Trooper
Yeager.
Our Supreme Court has explained that Miranda warnings “are required
only where a suspect is both taken into custody and subjected to
interrogation.” Yandamuri, 159 A.3d at 520.
In determining whether a suspect is in custody, two discrete
inquiries are essential: (1) an examination of the circumstances
surrounding the interrogation; and (2) a determination of
whether, given those circumstances, would a reasonable person
have felt that he or she was at liberty to terminate the
interrogation and leave. [A] person is in custody for Miranda
purposes only when he[, or she,] is physically denied his[, or her,]
freedom of action in any significant way or is placed in a situation
in which he[, or she,] reasonably believes that his[, or her,]
freedom of action or movement is restricted by the interrogation.
Statements not made in response to custodial interrogation are
classified as gratuitous and not subject to suppression for lack of
Miranda warnings. Whether an encounter is deemed “custodial”
must be determined by examining the totality of the
circumstances.
Yandamuri, 159 A.3d at 520 (citations omitted). “The standard for
determining whether an encounter is custodial is an objective one, focusing
on the totality of the circumstances with due consideration given to the
reasonable impression conveyed to the individual being questioned.”
Commonwealth v. Cooley, 118 A.3d 370, 376 (Pa. 2015).
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In determining whether an interrogation by law enforcement amounts
to a custodial interrogation, under the totality of the circumstances, courts
should consider the following factors: “the basis for the detention; its length;
its location; whether the suspect was transported against his or her will, how
far, and why; whether restraints were used; whether the law enforcement
officer showed, threatened or used force; and the investigative methods
employed to confirm or dispel suspicions.” Witmayer, 144 A.3d at 949, citing
Commonwealth v. Baker, 963 A.2d 495, 501 (Pa. Super. 2008), appeal
denied, 992 A.2d 885 (Pa. 2010). An additional factor for the courts to
consider is whether the individual was released at the end of the questioning
by law enforcement. Howes v. Fields, 565 U.S. 499, 509 (2012).
In denying Appellant’s amended omnibus motion as it relates to
statements Appellant made during his interrogation by Trooper Thompson and
Trooper Yeager, the trial court summarized its factual findings as follows:
During the early part of September 2019, [Trooper] Thompson
put together search warrants for [Appellant’s] residence, [cellular
telephone, certain areas of] PNC Park, and various vehicles.
Those warrants[, upon issuance,] were . . . executed on
September 17, 2019. Prior to executing those warrants, however,
Trooper Thompson wanted to interview [Appellant] at his
residence.
At 7:00 [a.m.,] on September 17, 2019, Trooper Thompson met
with a team of law enforcement officers on Smallman Street in
Pittsburgh to coordinate issues relating to [two] search teams.
The teams were going to search [Appellant’s] residence, [the
baseball team’s locker room at] PNC Park, and two [] of
[Appellant’s] vehicles. [Agent] Esquibel and [Agent] Tissot were
present for that meeting. [Trooper] Thompson was advised that
Agent Esquibel had a warrant for [Appellant’s] arrest from the
State of Florida. [Trooper] Thompson, on the other hand, had no
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plans to arrest [Appellant] that day. On September 17, 2019, at
7:40 [a.m., Trooper] Thompson arrived at [Appellant’s residence]
along with [] Trooper [] Yeager. . . . Both [police] officers were
out of uniform, wearing suits. [Trooper] Thompson had [an]
identification [card identifying that he was] a [PSP] trooper around
his neck and [he] wore his badge on his hip. [Trooper] Thompson
knocked on [Appellant’s] door, and [Appellant] partially opened
[the door. Trooper] Thompson introduced himself, told [Appellant
he and Trooper Yeager] wanted to speak to him about a private
investigation, and asked if they could come in. [Appellant], who
was wearing boxer briefs, opened the door and allowed them [to
enter. Appellant] led them into the kitchen area as the front door
closed behind them. On the way to the kitchen, [Appellant] put
on jeans that he retrieved from a suitcase. The [police officers]
smelled burnt marijuana in the [residence] when they entered but
never brought that issue up with [Appellant]. Although Trooper
Thompson [possessed a warrant to search the residence], he did
not advise [Appellant] of this prior to the interview[.]
The police [officers] conducted the interview in the kitchen, with
all three individuals standing throughout [the interview]. For the
most part, [Appellant stood] on one side of a kitchen island while
the [police officers stood] on the other side [of the kitchen island
and] closer to the entrance door. The exception to this
[positioning of the police officers] was when [Appellant] showed
them images on a laptop [computer] and they walked over to his
side of the [kitchen] island.
[Trooper] Thompson denied having ever restricted [Appellant’s]
movements during the interview. [Appellant] left their sight on at
least two occasions during the interview to enter his bedroom, and
the [police officers] never objected to this. On one of these
occasions, [Appellant] was wearing what appeared to be a
bracelet when he left the [kitchen area] but was no longer wearing
it when he reappeared. [Trooper] Thompson asked him about
this, and [Appellant] told him that it was a hair tie as opposed to
a bracelet and that he was now wearing it in his hair. [Trooper]
Thompson stated that he and [Trooper] Yeager were polite to
[Appellant], never raised their voices, and never drew their
weapons. [Appellant], in turn, was cooperative, polite, and
non-threatening with them. [Appellant] never indicated that he
wanted to end the interview. In, fact, [Trooper] Thompson
testified that [Appellant] joked with the [police officers] on
multiple occasions. [Trooper] Thompson felt that [Appellant’s use
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of the English language] was "proficient," and he never thought of
consulting an interpreter.
Trooper Thompson first obtained [Appellant’s] name, date of birth,
and telephone number. He advised [Appellant] that he was
investigating an alleged sexual relationship between [Appellant]
and a minor child, and [Trooper Thompson] showed [Appellant] a
photo of [the victim. Appellant] never denied knowing the []
victim. At the beginning of the interview, [Appellant] denied that
[he and the victim were involved in] an illicit relationship, but by
the end of the interview, he [] admitted [to their sexual
relationship. Appellant] also advised that his cell[ular tele]phone
was linked with his laptop [computer]. At that point, early in the
interview, he went into the bedroom, retrieved the laptop
[computer], and showed [the police officers] multiple
photo[graphs] and sexual videos of the victim, whom [Trooper]
Thompson had previously met. Although [Trooper] Thompson
knew then that [Appellant] was in possession of child
pornography, he did not arrest [Appellant] or restrict his
movement because he wanted to continue the interview. He
further asked [Appellant] for the pass codes [used to access] his
cell[ular tele]phone and the laptop [computer], and [Appellant]
provided them. The interview ultimately ended when [Appellant]
allegedly admitted to having a sexual relationship with the
[victim].
At the end of the interview, at 8:30 [a.m., Trooper] Thompson
advised [Appellant] that he had a search warrant. He showed
[Appellant] the warrant and some photo[graphs] that he []
extracted from the victim's [cellular telephone. Trooper
Thompson] told [Appellant] that he was looking for [certain]
items, such as [items of Appellant’s] clothing[] that appeared in
those photo[graphs. Trooper] Thompson then contacted other
[police] officers, who were outside the [residence], told them he
was done with the interview process, and asked them to [proceed
to] the [residence] to help with the search. [Appellant] remained
in the kitchen. At one point, [Trooper] Thompson showed
[Appellant] a photo[graph] of a [] belt, and [Appellant] retrieved
[the clothing item.] Before [Appellant] handed [Trooper
Thompson] the belt, [Trooper] Thompson told him to stop because
the items were to be photographed as they were [discovered.
Appellant] complied with the request and dropped the belt at the
threshold of his bedroom. At another point, the police [officers]
found the marijuana [Trooper] Thompson [] smelled earlier.
[Appellant] said it was his and jokingly asked the [police] officers
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to leave it there. The police seized his cell[ular tele]phone, laptop
[computer], and car keys among other items.
At the end of the search, at 10:30 [a.m., Trooper] Thompson,
[Trooper] Yeager, and the other [police] officers who had
searched the apartment left together. They [] caused no damage
to the apartment. [Appellant] remained alone in the apartment,
unrestrained, [after] the [police] officers left. Before leaving,
[Trooper] Thompson told [Appellant] that Florida investigators
would be contacting him to talk to him. [Trooper] Thompson
never read [Appellant] his Miranda warnings. [Appellant] never
asked to contact an attorney. [Trooper] Thompson could not
recall if [Appellant’s] car keys had been returned to [Appellant] at
that point.
[Appellant’s version of the events] was much different from that
of [Trooper] Thompson. [On September 17, 2019, at] 7:40 [a.m.,
Appellant] heard banging on his door which was so loud "it was
like somebody wanted to break the door open and come in." He
"jumped" out of bed, came to the door, looked through the
peephole, and saw two males carrying police identification. Both
[men] carried firearms and handcuffs. [Appellant] was afraid and
tried to hide his [] marijuana. He then came to the door in his
boxer shorts and cracked the door open. He asked the police
[officers] if he could help them. They said, in angry tones, that
they needed to talk to him. He said, "let's talk." They told him
they needed to talk inside, and they forced their way in.
According to [Appellant, Trooper] Thompson entered the kitchen,
followed by [Trooper] Yeager. [Appellant] entered the kitchen,
and the [police] officers positioned themselves in such a way that
[Appellant’s] access to the entryway[,] the bathroom[,] and [the]
bedroom [was] blocked. [The police officers] told him their names
and showed him a photo[graph] of the [] victim. In a
"demanding" tone, they told [Appellant] that they wanted to ask
him about his interactions with [the victim]. One of the [police]
officers told [Appellant] that they already knew what happened
but needed to hear his version. [Appellant was holding his cellular
telephone] and indicated that he needed to speak to the [baseball]
team's lawyer, but the [police officers] told him to "put the
f[*****]g phone down" - that he wouldn't be calling anyone.
They told him that agents from the FDLE were downstairs and
wanted to arrest him, and they suggested that he speak to them
first.
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Two to four minutes after [Trooper] Thompson and [Trooper]
Yeager entered, a male and a female entered [Appellant’s
residence] and began searching his bedroom. [These two
individuals] never knocked, asked to enter, or showed him a
[search] warrant. Two to four minutes after they entered, another
two [police] officers came in and began searching his bathroom.
[Appellant] was never told they had a search warrant until
immediately before the [police] officers left.
At some point during the questioning by [Trooper] Thompson and
[Trooper] Yeager, [Appellant’s] car keys were on the kitchen
island. [The police officers] told [Appellant] to give the keys to
them, and he complied. On six or seven occasions, [the police
officers] asked him what happened [with the victim], and he
stated that he needed to call the [baseball] team's lawyers. He
was denied [the opportunity to contact an attorney] in a harsh
tone on each occasion. When he asked to go to the bathroom, he
was followed [] by Trooper Yeager. When he picked up his
[cellular tele]phone to try to call the [baseball] team lawyers,
[Trooper] Yeager again told him to "put the f[*****]g phone
down." [Appellant] used a beaded bracelet to put his hair into a
"man bun" when he was in the bathroom, but when he returned,
[Trooper] Thompson accused him of [hiding] the bracelet.
[Trooper Thompson] told [Appellant] to give him the bracelet. He
complied. Then [Trooper] Yeager told [Trooper] Thompson about
the attempted [telephone] call in the bathroom. [Trooper]
Thompson demanded that [Appellant] give him the [cellular
tele]phone, and he did. [Trooper] Thompson told him to "go put
some f[*****]g clothes on." [Appellant] put on pants and
[Trooper] Thompson directed him to sit [on] a specific stool in the
kitchen - away from his [car] keys and his [cellular tele]phone. At
that point, he gave up trying to avoid talking and adopted a
friendly joking manner to avoid escalation. At that point, he began
showing [the police officers] images of the victim from his
computer. The [police] officers never advised him of his
[Miranda] rights, and he felt that he was in custody throughout
the ordeal. Eventually, [Trooper] Thompson, [Trooper] Yeager,
and the other individuals searching the [residence] left together.
Trial Court Opinion, 1/20/21, at 6-11 (record citations omitted).
As discussed supra, the trial court found Appellant not to be a credible
witness at the suppression hearing. Id. at 16-20. As the trial court explained,
- 25 -
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Appellant, during his testimony, attempted “to portray himself as an
unsophisticated foreigner, deserving of sympathy due to his inability to
understand basic concepts” including his “grasp of the English language,” how
to spell his last name, and an “ability to understand police and legal
procedures.” Id. at 16-17. The trial court found, however, that Appellant
“appeared to be quite intelligent and proficient in the English language,”
generally providing responsive and appropriate answers to questions he was
asked by counsel at the suppression hearing. Id. at 17-18. The trial court
further noted that Appellant regularly signed his name in autographs as a
professional baseball player and was “relatively active on social media” using
the English language. Id. at 17.
Finding Trooper Thompson’s testimony regarding the September 17,
2019 interrogation to be credible, the trial court, in denying Appellant’s
amended omnibus motion as it pertained to this event, explained,
The police [officers] never forced their way into [Appellant’s
residence]. They knocked and then asked to come in so that they
could question [Appellant] about his alleged relationship with the
victim. He consented by opening the door and leading them into
the kitchen. Much was made of the fact that during questioning,
[Appellant] was located on the far side of the kitchen island, and
the [police] officers were located on the side closest to the
entrance, thereby potentially permitting them to "block" any
attempted egress. But the far side of the [kitchen] island is where
[Appellant] gravitated upon letting them in. It would have been
intimidating if the police [officers] walked to the same side of the
[kitchen] island as [Appellant] and questioned him from there.
Furthermore, [Appellant] obviously felt comfortable leaving the
kitchen despite their presence because he did so twice. They did
not follow him. During the 50-minute interview, [Appellant] was
never transported against his will. No restraints were used. No
- 26 -
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force or threat of force was used. To the contrary, all [of the
parties] were polite and cordial, and [Appellant] even joked with
the [police] officers. Had the questioning continued after
[Appellant] requested an end to it or requested an attorney, the
interview might have become custodial, but he never did.
[Appellant] was never denied his freedom of action in any
significant way or placed in a situation in which he would
reasonably believe that his freedom of action or movement might
be restricted by the [interrogating officers]. For these reasons,
the [trial c]ourt finds that [Appellant] was not in custody when
[Trooper Thompson and Trooper Yeager interrogated] him.
Id. at 28.
At the suppression hearing, Trooper Thompson testified that both he
and Trooper Yeager arrived at Appellant’s residence at 7:40 a.m., wearing
suits rather than their police uniforms. N.T., 9/1/20, at 6, 33-34. In Trooper
Thompson’s case, his photo identification was attached to a lanyard around
his neck, his police badge was located on his hip in plain sight, his firearm was
located on his right hip and was generally covered by his suit jacket, and a
pair of handcuffs were located on his left hip. 21 Id. at 6, 62. Upon arriving
at Appellant’s residence, Trooper Thompson knocked on the door and
Appellant opened the door partially with only Appellant’s head fully visible to
the police officers. Id. at 6, 69. Trooper Thompson, upon seeing Appellant,
introduced himself, informed Appellant that he and Trooper Yeager wanted to
speak to him regarding an on-going police investigation, and asked to come
____________________________________________
21Trooper Yeager was outfitted in a similar fashion, according to Trooper
Thompson. N.T., 9/1/20, at 6.
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into the residence “due to the private nature” of the investigation.22 Id. at 7,
61, 69. As Appellant opened the door fully and let the police officers into the
residence, Appellant retrieved pants from a suitcase in the entryway and put
them on.23 Id. at 7. Appellant led the police officers to the kitchen area of
the residence where Appellant positioned himself on one side of the kitchen
island and Trooper Thompson and Trooper Yeager positioned themselves on
the other side of the kitchen island with Trooper Yeager closest to the entry
door.24 Id. at 8-9.
Initially, Trooper Thompson asked Appellant general questions
regarding his name, date of birth, telephone number, and general background
information. Id. at 72. Afterward, Trooper Thompson informed Appellant
that they were “investigating a sexual relationship with a minor that
____________________________________________
22At this time, Trooper Thompson did not inform Appellant that he was the
subject of the police investigation. N.T., 9/1/20, at 63.
23When Appellant answered the door, he was wearing what was described as
“boxer briefs,” and Appellant appeared, in Trooper Thompson’s opinion, to
have been awaken by the knocking. N.T., 9/1/20, at 70, 79, 91-92.
24As Trooper Thompson entered the residence, he detected a strong odor of
marijuana but did not question Appellant about the suspected use of
marijuana, at that time. N.T., 9/1/20, at 11-12, 65. Later, during the
execution of a search warrant for Appellant’s residence, as discussed infra, a
suspected substance was discovered that Appellant confirmed was marijuana.
Id. at 30. Appellant informed Trooper Thompson that he ingested marijuana
the prior evening to help him sleep. Id. at 91. Based upon his training and
experience, Trooper Thompson testified that, during the interrogation, he
detected no indication that Appellant was under the influence of marijuana.
Id. at 90.
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[Appellant] was accused of having,” and he showed Appellant a photograph
of the victim. Id. at 12, 72. Trooper Thompson testified that Appellant, at
first, denied having an inappropriate relationship and contact with the victim,
but later, Appellant admitted to the sexual relationship. Id. at 13. Trooper
Thompson testified that at no point during the interrogation did he provide
Appellant with his Miranda warnings. Id. at 43, 63-67.
Throughout the interrogation, Trooper Thompson stated that Appellant
was free to move about the residence and was not restrained in his
movements at any point. Id. Trooper Thompson testified that Appellant, in
fact, left the sight of the police officers on at least two occasions during the
interview, one of these instances being when Appellant retrieved his laptop
computer from the bedroom. Id. at 10. Trooper Thompson described the
interrogation as a “polite, open conversation” in which Appellant was free to
move about, to decline answering any question posed, and to ask the police
officers to leave the residence at any time, which Appellant never requested.
Id. at 11. At no point throughout the interrogation did any party raise their
voice, and there was never a need for the police officers to draw their
weapons. Id. Trooper Thompson stated that, throughout the interrogation,
Appellant never asked to contact an attorney or contact the baseball team for
the purpose of contacting an attorney. Id. at 72. In fact, during most of the
interrogation, Appellant had his cellular telephone in his hand. Id. at 92.
After acknowledging his relationship with the victim, Appellant informed
Trooper Thompson that he had photographs and recorded video footage
- 29 -
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involving the victim. Id. at 14. Appellant first attempted to access the
photographs and video footage via his cellular telephone but, due to a
technical issue, had to retrieve his laptop computer from the adjacent
bedroom to show the police officers the photographs and video footage. Id.
at 14. When Appellant returned to the kitchen island after retrieving his laptop
computer, the police officers moved to Appellant’s side of the island so they
could view the photographs and video footage that Appellant wanted to show
them.25 Id. at 17-18. After the police officers reviewed the photographs and
video footage, they returned to the opposite side of the kitchen island. Id. at
18. Trooper Thompson described Appellant’s responses to police inquiries as
polite and communicated in a non-threatening manner, with Appellant even
joking and laughing during the interrogation. Id. at 19-20. The interrogation
lasted until 8:30 a.m.
After the interrogation concluded, Trooper Thompson informed
Appellant that they had a search warrant for his residence, which included
photographs of certain items they needed to locate. Id. at 23-24. Trooper
Thompson contacted the search team that was located outside Appellant’s
____________________________________________
25 Although Trooper Thompson knew that it was illegal for Appellant to have
the photographs and video footage (child pornography) stored on his laptop
computer, Trooper Thompson did not arrest Appellant at this time or restrain
his actions in any way. N.T., 9/1/20, at 17.
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residence building.26 Id. at 25. Appellant complied with the execution of the
search warrant, allowing the search team to photograph certain portions of
his body, and he even retrieved a belt that the police officers sought to
recover. Trooper Thompson testified that the search warrant was executed at
8:30 a.m. and the search was completed at 10:30 a.m., at which time the
police officers, including Trooper Thompson and Trooper Yeager, left
Appellant’s residence. Id. at 32. Appellant remained in the residence after
the police officers left.27 Id. at 32. Prior to vacating the residence, Trooper
Thompson informed Appellant that FDLE officers also wanted to speak with
him at some point. Id.
Viewing the evidence in the light most favorable to the Commonwealth,
as the prevailing party at the suppression hearing, we concur with the trial
court, and the record supports, that while Trooper Thompson’s questioning of
Appellant amounted to interrogation, Appellant was not in custody during the
interrogation. Therefore, no Miranda warnings were required. Yandamuri,
159 A.3d at 520. A review of the totality of the circumstances demonstrates
____________________________________________
26Trooper Thompson testified that the search team did not accompany him
and Trooper Yeager when they first arrived at Appellant’s residence because
he did not want the presence of additional police officers to be intimidating to
Appellant. N.T., 9/1/20, at 25.
27 Trooper Thompson testified that the purpose of his visit to Appellant’s
residence that day was to interview Appellant and to execute the search
warrant. Trooper Thompson had no intention of arresting Appellant at his
residence on the morning of September 17, 2019, because the police
investigation was still in the “evidence collecting mode.” N.T., 9/1/20, at
86-88.
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that the interrogation lasted 50 minutes; the interrogation took place in
Appellant’s residence, where Appellant was free to move about and had access
to his cellular telephone much of the time; Appellant allowed the police officers
into his residence; no restraints, force, weapons, or threats were used; and
at the conclusion of the interrogation, Appellant remained in his residence.
Under these circumstances, a reasonable person would feel at liberty to
terminate the interrogation at any point by, inter alia, asking the police officers
to leave the residence or asking to speak to, or contacting, an attorney.
Therefore, Appellant was not subject to a custodial interrogation in the case
sub judice. Consequently, Appellant’s challenge to the denial of his amended
omnibus motion on this basis is without merit.
Regarding the subsequent questioning conducted by Agent Esquibel and
Agent Tissot, as well as Trooper Tagmyer, Appellant asserts that, contrary to
Trooper Tagmyer’s testimony that Appellant was Mirandized prior to the
police interrogation, he was, in fact, not Mirandized at any point during this
police questioning. Appellant’s Brief at 52. Appellant argues that because the
police recording of his interrogation by these police officers does not show that
Miranda warnings were issued and there is no evidence of a signed Miranda
rights waiver form, the trial court erred in not granting his suppression motion.
Id.
The trial court concluded, and the record supports, that questioning by
Agent Esquibel and Agent Tissot amounted to a custodial interrogation,
requiring the issuance of Miranda warnings prior to the start of the
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interrogation. Trial Court Opinion, 1/20/21, at 32. Therefore, our review is
limited to whether the trial court erred in finding Appellant was advised of,
and validly waived, his Miranda rights prior to the commencement of the
interrogation.
“It is the Commonwealth's burden to establish whether a defendant
knowingly and voluntarily waived his Miranda rights. In order to do so, the
Commonwealth must demonstrate that the proper warnings were given, and
that the accused manifested an understanding of these warnings.”
Commonwealth v. Eichinger, 915 A.2d 1122, 1135-1136 (Pa. 2007)
(brackets omitted), cert. denied, 552 U.S. 894 (2007). Although the person
interrogated must explicitly waive his or her Miranda rights, there is no formal
protocol for memorializing the waiver. Commonwealth v. Clemons, 200
A.3d 441, 520-522 (Pa. 2019), cert. denied, 140 S.Ct. 176 (2019). Waiver
may be inferred from the actions and words of the interviewee after he or she
has been advised of his or her Miranda rights. Clemons, 200 A.3d at 520.
A verbal expression of waiver is not required, nor is a written waiver required.
Id.; see also Commonwealth v. O’Bryant, 388 A.2d 1059, 1061 (Pa.
1978), cert. denied, 439 U.S. 990 (1978). Rather, waiver occurs when there
is a sufficient manifestation of an intent to waive one’s rights. Clemons, 200
A.3d at 520; see also Commonwealth v. Baez, 21 A.3d 1280, 1286
(Pa. Super. 2011) (holding that, a defendant’s indication he or she understood
his or her rights and then proceeded to answer questions was sufficient
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manifestation of intent to waive his or her rights), appeal denied, 37 A.3d
1193 (Pa. 2012).
Here, the trial court summarized its factual findings as follows:
Trooper Tagmyer testified that on September 17, 2019, he was
employed [as a PSP trooper assigned to the] Pittsburgh barracks
and was asked to assist with a security detail relative to the search
of [Appellant’s residence.] Teams of investigators [met] earlier
[that same day] in the Strip District [section of] Pittsburgh and
were assigned to various locations that were to be searched,
including [Appellant’s] residence, his vehicle or vehicles, and PNC
Park. [Trooper] Tagmyer was assigned to [the activities occurring
at Appellant’s] residence. While he was in the garage underneath
[the residence] complex that day, he was asked, approximately
10-15 minutes ahead of time, to assist Florida investigators in
arresting [Appellant]. He[, Agent Esquibel, and Agent Tissot]
arrived at [Appellant’s residence] 10-15 minutes after the PSP
[(including Trooper Thompson, as discussed supra)] had left. The
[FDLE agents], who had arrest warrants [for Appellant], briefly
advised [Trooper] Tagmyer that they just needed him to
Mirandize [Appellant], and they would handle the rest. Each of
the three [police] officers wore a uniform, and [Trooper] Tagmyer
had [his weapon] holstered. [Trooper] Tagmyer knew that the
goal of [Agent] Esquibel and [Agent] Tissot was to obtain a
statement from [Appellant] and then to arrest him.
On September 17, [2019,] in the late morning, [Trooper] Tagmyer
knocked on [Appellant’s] door, introduced himself as a [PSP
t]rooper, and provided his name. [Appellant] let the three [police
officers] in[to his residence. Appellant] walked into the kitchen,
and the three [police officers] followed [him]. When [Trooper]
Tagmyer was in the area of the kitchen island, he read [Appellant]
the Miranda warnings from an "SP 7" form that he carried with
him. He did not record the reading of the [Miranda] rights in any
way or have [Appellant] sign an acknowledgement form
afterwards. No one handcuffed or restrained [Appellant] at the
time, and [Appellant] appeared to understand the warnings.
According to [Trooper] Tagmyer, [Appellant] orally waived his
[Miranda] rights and agreed to speak to the three [police
officers].
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Immediately after the [Miranda] rights were waived, Agent
Esquibel introduced a recording device and recorded an interview
with [Appellant. Trooper] Tagmyer was unaware until that point
that the interview would be recorded. [Trooper Tagmyer did not
participate in the questioning of Appellant.]
The tape of the recorded interview was admitted into evidence.
The first statement in that interview was a question from
[Appellant] as to whether he would be going to jail that day.
[Agent] Esquibel, who directed the interview, indicated that he
had warrants for [Appellant’s] arrest for soliciting a child for sex
and distributing harmful material to a minor, and he asked
[Appellant] if it was "okay if we still talk." [Appellant] consented.
Trial Court Opinion, 1/20/21, at 11-12 (record citations and footnote omitted).
The record demonstrates that, on September 17, 2019, Trooper
Tagmyer was assigned to security detail as part of the police operation
unfolding at Appellant’s residence that morning.28 N.T., 7/9/20, at 44.
Shortly before the FDLE engaged Appellant that morning for the purpose of
interviewing him and executing the Florida arrest warrants, Trooper Tagmyer
was reassigned to assist Agent Esquibel and Agent Tissot because a PSP officer
had to take Appellant into custody upon execution of the Florida-issued arrest
warrants. Id. at 44, 72. In addition to taking Appellant into custody, Trooper
Tagmyer was asked to Mirandize Appellant. Trooper Tagmyer did not
participate in the questioning of Appellant. Id. at 74-75.
____________________________________________
28Trooper Tagmyer explained that “security detail” involved making sure that
the news media was kept a safe distance away from the police investigation
and that vehicles driving in the area adjacent to Appellant’s residence “were
taken care of.” N.T., 7/9/20, at 74.
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Upon approaching the door to Appellant’s residence, Trooper Tagmyer
testified that he knocked on the door and that Appellant allowed the police
officers into his residence after Trooper Tagmyer indicated the police officers
wanted to speak with him. Id. at 45. Trooper Tagmyer stated that he was in
police uniform at the time and that no show of force was used to gain access
to Appellant’s residence. Id. at 46. After introducing himself to Appellant and
informing Appellant that the police officers were there to arrest him on a
warrant issued by the State of Florida, Trooper Tagmyer read Appellant his
Miranda rights verbatim from the PSP SP 7 Mirandizing form.29 Trooper
Tagmyer testified that, during the reading of the Miranda rights, Appellant
appeared to be listening and understanding Trooper Tagmyer, and Appellant
never expressed “a lack of understanding or concern” about what was being
read to him. Id. at 47-48. Trooper Tagmyer stated that, upon being read his
____________________________________________
29 Trooper Tagmyer testified that the PSP SP 7 form reads as follows:
My name is Trooper Tagmyer of the Pennsylvania State Police.
You have an absolute right to remain silent. Anything you say can
and will be used against you in a court of law. You also have a
right to talk to an attorney before and have an attorney present
with you during questioning. If you cannot afford to hire an
attorney, one will be appointed to represent you without charge
before questioning if you so desire. If you decide to answer
questions, you may stop at any time you wish, and you cannot be
forced to continue.
N.T., 7/9/20, at 49 (form personalized for use by Trooper Tagmyer).
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Miranda rights, Appellant waived those rights orally and proceeded to answer
the questions of Agent Esquibel and Agent Tissot. Id. at 48.
In denying Appellant’s amended omnibus motion on this ground, the
trial court found Trooper Tagmyer’s testimony – that Appellant understood his
Miranda rights as they were explained to him and waived those rights – to
be credible. Appellant asserts that, “[a] fair reading of the record establishes
that no [Miranda] rights warning was given” and, therefore, the trial court’s
finding that Miranda rights were provided and validly waived is “inconsistent
with other uncontradicted evidence,” i.e., Appellant’s testimony that he was
never informed of his Miranda rights. This argument invites us to reassess
the credibility of the evidence. We decline Appellant’s invitation. Our role,
here, is to view the record in the light most favorable to the Commonwealth,
as the prevailing party at the suppression hearing, and assess whether the
trial court’s findings are supported by the record and are free of legal errors.
In so doing, we concur with the trial court, and the record supports, that
Trooper Tagmyer informed Appellant of his Miranda rights, verbally, and that
Appellant waived those rights. A written confirmation of Appellant’s waiver,
or a recording of the same, although advisable in interrogations, such as the
interrogation in the case sub judice, are not mandated in order to find waiver
of those rights.30 Rather, the record demonstrates a sufficient manifestation
____________________________________________
30Given the media attention and legal scrutiny this case was sure to garner,
we concur with the trial court that “[i]t is difficult to understand why the police
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of Appellant’s intent to waive those rights because, after being informed of his
Miranda rights, Appellant proceeded to answer Agent Esquibel’s questions.
Clemons, 200 A.3d at 520. Therefore, Appellant’s challenge to the trial
court’s denial of his amended omnibus motion on this basis is without merit.
Issue 2 – Trial Error
In his second issue, Appellant raises an evidentiary issue, asserting that
the trial court erred in compelling Appellant to perform “a woman’s sexy walk”
in front of the jury after the Commonwealth asked him to do so on
cross-examination. Appellant’s Brief at 29-41.
We review of a trial court’s decision to admit certain evidence as follows:
[T]he admissibility of evidence is a matter within the sound
discretion of the trial court and will be reversed only where there
is a clear abuse of discretion. Our standard of review of a
challenge to an evidentiary ruling is therefore limited. Abuse of
discretion is not merely an error of judgment, but rather where
the judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result of
partiality, prejudice, bias[,] or ill[-]will.
Commonwealth v. Wilson, 273 A.3d 13, 19 (Pa. Super. 2022) (citation and
original brackets omitted), appeal denied, 285 A.3d 324 (Pa. 2022). While
“[r]elevance is the threshold for admissibility of evidence[,]” Commonwealth
____________________________________________
did not record the reading of the [Miranda] warnings or obtain a written
waiver from [Appellant].” Trial Court Opinion, 1/20/21, at 33 (explaining that,
“[t]he police obviously had good recording equipment with them, as the
high-quality recording of [Appellant’s] statement demonstrates”); see also
N.T., 7/9/20, at 75 (acknowledging the opportunity to read Appellant his
Miranda rights a second time and obtain a waiver again once the recording
device was activated).
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v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (en banc), appeal denied,
128 A.3d 220 (Pa. 2015), our primary task in the context of this appeal is to
address whether Appellant waived his evidentiary challenge for failure to raise
an objection at trial. “The applicability of waiver principles presents a question
of law, over which our standard of review is de novo and our scope of review
is plenary.” Stapas v. Giant Eagle, Inc., 198 A.3d 1033, 1037 (Pa. 2018).
“[I]t is axiomatic that issues are preserved when objections are made
timely to the error or offense[,]” and the “failure to offer a timely and specific
objection results is waiver of the claim[.]” Commonwealth v.
Baumhammers, 960 A.2d 59, 73 (Pa. 2008), cert. denied, 558 U.S. 821(2009). In order to preserve a challenge to the admissibility of evidence for
appellate review, Pennsylvania Rule of Evidence 103(a)(1) requires a party to
make “a timely objection, motion to strike, or motion in limine” that “states
the specific ground, unless it is apparent from the context,” for the objection.
Pa.R.Evid. 103(a)(1)(A) and (B). “The rule is well[-]settled that a party
complaining, on appeal, of the admission of evidence in the [trial] court [] will
be confined to the specific objection there made.” Commonwealth v.
Cousar, 928 A.2d 1025, 1041 (Pa. 2007) (original brackets omitted), citing
Commonwealth v. Boden, 159 A.2d 894, 900 (Pa. 1960), cert. denied, 553
U.S. 1035 (2008). “[E]ven where a defendant objects to specific conduct, the
failure to request a remedy such as a mistrial or curative instruction is
sufficient to constitute waiver.” Commonwealth v. Sandusky, 77 A.3d 663,
670, (Pa. Super. 2013) (citation omitted). “Issues not raised in the trial court
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are waived and cannot be raised for the first time on appeal.” Pa.R.A.P.
302(a).
Here, concerning the Commonwealth’s request on cross-examination
that Appellant replicate the way the victim walked, Appellant asserts that this
request “by which [Appellant] had to unwillingly give a humiliating,
demeaning[,] and emasculating cross-gender performance, had the effect of
evoking base racial stereotypes that influenced the jury’s perception of
[Appellant] and the evidence presented at trial.” Appellant’s Brief at 29.
Appellant argues that the trial court, in its Rule 1925(a) opinion, “recognized
that the [Commonwealth’s] demand for [Appellant] to perform before the jury
was improper,” and the trial court “would have disallowed the performance
had a proper objection been made.” Id. at 30 (emphasis added).
Appellant contends that a de facto objection was made, at a minimum, and
“that both [Appellant] and his counsel objected to the demand, even if the
words ‘I object’ were not used.” Id. at 30, 35. Appellant asserts that a “fair
reading of [the portion of trial transcript regarding this issue] is that defense
counsel, having already expressed his opposition, saw which way the
discussion was heading[,] and acquiesced in order to make the best of a bad
situation.” Id. at 36.
The trial court, in addressing Appellant’s evidentiary challenge in its Rule
1925(a) opinion, found the issue was waived because “trial counsel, who was
explicitly asked if he wanted to object, declined to do so.” Trial Court Opinion,
1/4/22, at 43. We agree.
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The pertinent excerpt from the trial transcript is as follows:
[Commonwealth:] So I think yesterday I thought you said
that she had a saucy walk, but today you
said sassy?[31]
[Appellant:] Yeah.
[Commonwealth:] Which one is it?
[Appellant:] It's the same word. Sassy, saucy. Saucy,
sassy. I don't know.
[Commonwealth:] Those are the same to you?
[Appellant:] I mean, yeah. I mean, I don't know the
difference between one and two letters. I
don't know that.
[Commonwealth:] That's fine. So did she have the sassy or
saucy walk as she's holding the leash for
her dog?
[Appellant:] Yeah.
[Commonwealth:] Your Honor, may [Appellant] be permitted
to step off the witness stand and
demonstrate for us the walk that he's
describing?
[Trial Court:] Sure. You can do that.
[Appellant:] Do you know how they walk when they
doing the -
[Commonwealth:] When you say they, do you just mean
women?
[Appellant:] Yeah. When they doing like a clothing
exhibition or some stuff like that?
____________________________________________
31During his direct testimony on the previous day, Appellant, in fact, described
the victim’s walk as “sassy.” N.T., 5/19/21, at 192 (stating, “It was – when I
saw [the victim] walking down, she was walking – I don’t know if you guys
know the word sassy. She was, like, swinging.”).
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[Commonwealth:] No, I don't.
[Appellant:] You don't know?
[Commonwealth:] No.
[Appellant:] Fashion shows. You know that?
[Commonwealth:] The way this works is I ask you questions,
and you answer them.
[Appellant:] I don't want to walk like a woman. That's
what I'm trying to say. I'm not a woman.
I'm not trying to do that stuff.
[Commonwealth:] But this jury is being asked by you to
regard your impression of [the victim]
based upon a description, a one-word
description. I'm asking you, can you show
us how it was that she walked?
[Defense Counsel:] Your Honor, [Appellant] has indicated that
she was walking like a model on a runway
in a fashion show. He's indicating that he
doesn't want to walk like a woman. How
much more does the jury have to hear? I
think we all can take judicial notice -
[Appellant:] She was walking like a model.
[Commonwealth:] So what we're doing here is we're going
to allow the witness to refuse to answer a
question because he doesn't feel
comfortable.
[Appellant:] I'm not refusing. I'm just -
[Trial Court:] Hold on. Is there an objection?
[Defense Counsel:] If [the Commonwealth] insists that
[Appellant] walk like a woman,
[Appellant] can do his best imitation
of a woman that he would know.
[Trial Court:] Okay. You have to comply.
[Appellant:] Man, that’s weird. Do you guys want me
to do it?
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[Trial Court:] You can’t talk to the jury sir. You can’t
talk to them.
[Appellant:] Here goes nothing. Sorry if I don’t do it
right. She was holding the dog. I don’t
remember what hand she was holding.
She was walking, you know, like - I just
feel weird, you know. I feel weird.
[Commonwealth:] Thank you.
[Trial Court:] You can be seated, sir.
[Defense Counsel:] Your Honor, I’d like the record to reflect
that [Appellant] was sashaying in front of
the jury.
[Trial Court:] That’s your word. I would disagree with
that, I guess.
[Commonwealth:] So that’s how she walked out to your car?
[Appellant:] Yeah. That’s how she walked.
N.T., 5/20/21, at 62-65 (emphasis added).
Although defense counsel’s statement – “How much more does the jury
have to hear? I think we all can take judicial notice.” – appears to be an
attempt to bring closure to the Commonwealth’s request for a demonstration
that was “fraught with evidentiary problems,” this statement does not amount
to a specific objection, much less a generalized objection that can be
understood from the context of the statement. Appellant’s argument that this
statement expressed defense counsel’s opposition and, therefore, is the
equivalent of an objection, i.e., a de facto objection, is negated further by the
fact that the trial court specifically asked defense counsel if there were an
objection, to which defense counsel conceded to the admissibility of the
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evidence by replying, “If [the Commonwealth] insists that [Appellant] walk
like a woman, [Appellant] can do his best imitation of a woman that he would
know.”32 A concession that the evidence is admissible is insufficient to
preserve the issue for appellate review. Commonwealth v. Cohen, 410 A.2d
1264, 1265-1266 (Pa. Super. 1979) (indicating that, the withdrawal of an
objection to the admissibility of evidence, thereby indicating that the evidence
is admissible, does not preserve the issue for appellate review, even if the
evidence is ultimately determined to be inadmissible); see also
Commonwealth v. Wholaver, 989 A.2d 883, 893 (Pa. 2010) (finding,
defense counsel’s indication that there was no objection to the admissibility of
the evidence constitutes waiver of the issue), cert. denied, 562 U.S. 933(2010); Commonwealth v. Lehman, 275 A.3d 513, 529 (Pa. Super. 2022)
(finding, defense counsel’s statement that “he did not think this is the proper
way to impeach a witness’s credibility from some prior incident” did not
____________________________________________
32In Commonwealth v. Vucich, 194 A.3d 1103 (Pa. Super. 2018), defense
counsel stated, “I put my objection on the record,” and the trial court
immediately replied, “It will be so noted.” Vucich, 194 A.3d at 1107, n.1.
This Court, in Vucich, did not find waiver of the evidentiary issue despite
defense counsel lodging a general objection because the trial court “readily
apprehended the nature of [defense counsel’s] objection” before a more
specific objection could be put on the record.
In contrast, the trial court, in the case sub judice, specifically asked defense
counsel if he had an objection to place on the record, thereby indicating, thus
far, that the trial court was unaware that a specific objection had been raised.
In reply, defense counsel failed to lodge an objection but, rather, acquiesced
to the Commonwealth’s request.
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constitute an objection for purpose of preserving the issue on appeal (original
quotation marks and brackets omitted)), appeal denied, 286 A.3d 213 (Pa.
2022); Commonwealth v. Ames, 2022 WL 17769538, at 5 (Pa. Super. filed
Dec. 19, 2022) (unpublished memorandum) (stating, a finding that the issue
has been waived on appellate review, “is an appropriate sanction because
permitting a party to concede admissibility of evidence only to later complain
on appeal creates a tactical advantage” (footnote omitted)). Moreover,
defense counsel’s dialogue regarding the Commonwealth’s request did not
contain a request for a mistrial, a curative instruction, or a motion in limine.
Sandusky, 77 A.3d at 670. Consequently, we find that Appellant waived his
challenge to the admissibility of the evidence in the form of Appellant
performing a demonstration of the victim’s walk for the jury.33
____________________________________________
33 Appellant asserts, without citation to supporting caselaw, that this Court’s
“rigid adherence to the waiver doctrine should be reconsidered so as to permit
review in exceptional cases, such as here, where the verdict is likely to have
been the product of abhorrent bias.” Appellant’s Brief at 39. We find no
support to up-end the well-established waiver principle requiring a defendant
to raise the issue before the trial court, so the trial court may properly address
the issue at that time, or face waiver of that issue on appeal.
Commonwealth v. Cornelius, 180 A.3d 1256, 1262 (Pa. Super. 2018)
(stating, “When an event prejudicial to the defendant occurs during trial only
the defendant may move for a mistrial[. T]he motion shall be made when the
event is disclosed. Failure to object when the disclosure occurs constitutes
waiver of the issue.” (citations and original quotation marks omitted)).
Defense counsel’s failure, in the case sub judice, to preserve this issue for
appeal by placing a specific objection on the record contemporaneous with the
Commonwealth’s request for performance of a walk by Appellant, may give
rise to a claim of ineffective assistance of counsel. See 42 Pa.C.S.A.
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Issue 3 – Sufficiency of the Evidence
Appellant’s third issue challenges the trial court’s denial of his motion
for judgment of acquittal on the ground the evidence presented by the
Commonwealth was insufficient to disprove the mistake of age defense.34
Appellant’s Brief at 53-56.
Our standard and scope of review of a challenge to the sufficiency of the
evidence are well-settled.
____________________________________________
§ 9543(a)(2)(ii). Such a claim, however, is not before this Court in the case
sub judice, and we cannot address it.
34 Pennsylvania Rule of Criminal Procedure 606(A)(5) permits a defendant to
“challenge the sufficiency of the evidence to sustain a conviction of one or
more of the offenses charged” by orally moving for judgement of acquittal
before sentencing pursuant to Pa.R.Crim.P. 704(B). See Pa.R.Crim.P.
606(A)(5); see also Pa.R.Crim.P. 704(B)(1) (stating, “[u]nder extraordinary
circumstances, when the interests of justice require, the trial [court] may,
before sentencing, hear an oral motion in arrest of judgment, for a judgment
of acquittal, or for a new trial”).
Here, Appellant made a motion for judgment of acquittal at the close of the
Commonwealth’s case-in-chief, pursuant to Pa.R.Crim.P. 606(A)(1), which the
trial court denied. Pa.R.Crim.P. 606(A)(1) (permitting a defendant to
“challenge the sufficiency of the evidence to sustain a conviction of one or
more of the offenses charged” by orally moving for judgement of acquittal at
the close of the Commonwealth’s case-in-chief); see also N.T., 5/19/21, at
133-139. Appellant also made an oral motion for judgment of acquittal prior
to sentencing, which the trial court denied. N.T., 8/17/21, at 5-10, 18.
Because Appellant asserts, in his third issue, that there was insufficient
evidence presented by the Commonwealth to disprove a mistake of age
defense, which must be asserted by a defendant, as discussed more fully infra,
and Appellant relies upon evidence presented during his case-in-chief in
support of his motion, it appears Appellant is challenging the trial court’s
denial of his oral motion for judgment of acquittal that was presented prior to
sentencing.
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The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. 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. The Commonwealth
may sustain its burden of proof or proving every element of the
crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above test,
the entire record must be evaluated and all the evidence actually
received must be considered. Finally, the trier[-]of[-]fact while
passing upon the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part[,] or none of the
evidence.
Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa. Super. 2004)
(citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004); see also
Commonwealth v. Brown, 52 A.3d 1139, 1163 (Pa. 2012) (stating that, in
reviewing a claim of insufficient evidence, “the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier[-]of[-]fact could have found the essential elements of the crime
beyond a reasonable doubt” (emphasis in original)); Commonwealth v.
Stahl, 175 A.3d 301, 303-304 (Pa. Super. 2017) (applying the same standard
of review, as set forth supra, for a sufficiency claim that arose in the context
of a motion for judgment of acquittal), appeal denied, 189 A.3d 389 (Pa.
2018).
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[T]he [trier-of-fact's] individualized assessment of the credibility
of the trial evidence is, as a general principle, not to be questioned
by an appellate court as part of its review, even if the evidence is
conflicting. [C]ourts presume the [trier-of-fact] resolved
evidentiary disputes reasonably so long as sufficient evidence
supports the verdict. [M]ere inconsistency and conflicts in
witnesses[’] testimony, by itself, will not furnish a basis for an
appellate court to reverse a conviction [] on the grounds of
evidentiary insufficiency.
Brown, 52 A.3d at 1165 (citations omitted). Rather, the trier-of-fact’s
resolution will only be disturbed “in those exceptional instances [] where the
evidence is so patently unreliable that the [trier-of-fact] was forced to engage
in surmise and conjecture in arriving at a verdict based upon that evidence.”
Id., citing Commonwealth v. Karkaria, 625 A.2d 1167, 1170 (Pa. 1993).
It is well-established that,
In any criminal prosecution, the Commonwealth has the unshifting
burden to prove beyond a reasonable doubt all elements of the
crime charged. The burden is neither increased nor diminished
when a defendant attempts to disprove an element of the crime
by introducing an affirmative defense[, such as the mistake of age
defense]. Accordingly, when charging a jury, a trial [court] must
communicate to the jury that when evidence of an affirmative
defense is offered, the Commonwealth still has the burden to
prove each element of the crime charged beyond a reasonable
doubt. Thus, the burden never shifts to the defendant. Moreover,
the trial [court] must state that the jury's determination that the
affirmative defense has not been established is essential to finding
that the Commonwealth has met its burden.
Commonwealth v. Cottam, 616 A.2d 988, 1000-1001 (Pa. Super. 1992)
(citations omitted), appeal denied, 636 A.2d 632 (Pa. 1993); see also
Commonwealth v. Scott, 73 A.3d 599, 603 (Pa. Super. 2013).
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Section 3102 of the Crimes Code sets forth the mistake of age defense
as follows:
Except as otherwise provided, whenever in this chapter the
criminality of conduct depends on a child being below the age of
14 years, it is no defense that the defendant did not know the age
of the child or reasonably believed the child to be the age of 14
years or older. When criminality depends on the child's being
below a critical age older than 14 years, it is a defense for the
defendant to prove by a preponderance of the evidence that he or
she reasonably believed the child to be above the critical age.
18 Pa.C.S.A. § 3102.35 Thus, “Section 3102 places the initial burden on the
accused to prove [a] mistake of age” defense. Commonwealth v. Bohonyi,
900 A.2d 877, 884 (Pa. Super. 2006) (emphasis in original), appeal denied,
917 A.2d 312 (Pa. 2007). Once a mistake of age defense has been proffered
by a defendant, the burden shifts to the Commonwealth to disprove the
defense. Bohonyi, 900 A.2d at 884 (stating, “the Commonwealth bears no
____________________________________________
35We concur with the trial court that the mistake of age defense was appliable
to all of Appellant’s aforementioned convictions except his conviction at
5098-CR-2019 of corruption of minors under 18 Pa.C.S.A. § 6301(a)(1)(i).
Trial Court Opinion, 1/4/22, at 69 n.4. The corruption of minors charge at
5098-CR-2019 related to acts by Appellant that were not a violation of Chapter
31 of the Crimes Code (relating to sexual offenses). Specifically, Appellant’s
conduct that led to the charge of corruption of minors at 5098-CR-2019 was
his communication with the victim about graphic sexual matters in a way that
corrupted or tended to corrupt the morals of the victim during the period of
June 2, 2019, through June 6, 2019, when the victim’s actual age was less
than 16 years. See N.T., 5/20/21, at 211-212; see also 18 Pa.C.S.A.
§ 6301(a)(1)(i); 18 Pa.C.S.A. § 6301(d)(1) (stating, “[w]henever in this
section the criminality of conduct depends upon the corruption of a minor
whose actual age is under 16 years, it is no defense that the actor did not
know the age of the minor or reasonably believed the minor to be older than
18 years”).
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burden of proof regarding the defendant’s knowledge of or belief as to the age
of the child victim” until the defendant proffers the defense); see also
Commonwealth v. A.W.C., 951 A.2d 1174, 1181 n.5 (Pa. Super. 2008)
(stating, “the Commonwealth [bears] no burden of proof regarding [a
defendant’s] knowledge of or belief as to the age of [the victim] until after
[the defendant] asserts a mistake of age defense”).
Here, Appellant asserts that he “met his burden of production with
overwhelming evidence that he was mistaken about [the victim’s] actual age[
and the] Commonwealth bore the burden, which it failed to satisfy, of
disproving his reasonable mistake of [the victim’s] age beyond a reasonable
doubt.”36 Appellant’s Brief at 53-54. Appellant contends,
____________________________________________
36 Appellant asserts that,
[The victim] knew that people thought she looked older than her
actual age and she took full advantage of this fact in her reverse
grooming of [Appellant. The victim] had no reason to believe that
[Appellant] considered her age to be anything other than what she
told him.
Appellant’s Brief at 54 (citations to reproduced record omitted).
To the extent that Appellant contends that the victim’s beliefs regarding “how
old she looked” established, conclusively, the mistake of age defense, we find
this argument misplaced. The victim’s beliefs as to how old she appeared to
Appellant are irrelevant to determining Appellant’s beliefs and knowledge of
the victim’s actual age. See Commonwealth v. Fetter, 770 A.2d 762, 768
(Pa. Super. 2001) (stating, in establishing a mistake of age defense, “the
victim’s beliefs as to how old she[, or he,] looks [are] irrelevant to
[determining a defendant’s] beliefs and knowledge of her[, or his,] actual
age”).
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The Commonwealth produced no direct evidence that [Appellant]
knew that [the victim] was underage[.] The Commonwealth was
left with attempting to counter [Appellant’s] mistake of age
defense through speculation and strained interpretations of
ambiguous events. The Commonwealth fell far short of satisfying
its burden of proving guilt beyond a reasonable doubt.
Id. (quotation marks, original brackets, citations to reproduced record, and
ellipsis omitted).
In denying Appellant’s motion for judgment of acquittal based upon the
sufficiency of the evidence to disprove a mistake of age defense, the trial court
explained,
In this case, there is no direct evidence that [Appellant] knew that
[the victim] was underage when he performed the prohibited acts,
but there is ample circumstantial evidence of this knowledge.
[The victim] admitted that she misrepresented her age when they
first began corresponding, and she never did tell him her real
age.[FN5]
[Footnote 5: Appellant] claims that [the victim] sent him a
copy of a fake [identification card], but she denied that, and,
aside from his claim, there was no evidence of this.
However, the victim was only thirteen [] years old when they met
for sex in [Westmoreland County] on August 21, 2017, and
photographs of her appearance at that point in time were admitted
into evidence. [Appellant] knew that [the victim] was living with
her parents at that time, and he would have presumed that they
disapproved of the relationship given the fact that she only
suggested he visit when her parents were away. [The victim]
never invited him into the [house] that day and never invited him
to her home or suggested that he meet her family thereafter. If
she were of age, there is no clear explanation of why [the victim’s
parents] would disapprove. [Appellant and the victim] attempted
to have sex on August 21, 2017, but were unable because his
penis did not fit. In the years following the meeting, [the victim]
would tell [Appellant] on occasion that she couldn't communicate
because her mother had taken away her [cellular tele]phone.
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More than anything, [Appellant’s] behavior after the meeting on
August 21, 2017[,] suggests that he knew she was underage.
[The victim] testified that [Appellant] told her not to tell anyone
about their meeting. If [Appellant] believed [the victim] was of
age, it is difficult to understand why he would tell her that.
Reflecting on their only meeting, [Appellant] told [the victim] in
the following years that he wanted to "finish what they started,"
meaning "breaking her p[***]y." Trooper Haslett's review of
[the] content on [Appellant’s] electronic devices from August
2018[,] to June 2019[,] revealed that [Appellant] told [the victim]
he wanted to "stretch" that area. [The victim] testified that when
she broke plans to meet [Appellant] at a hotel, he "would call her
a little kid, tell her that she needed to grow up[.]" When she
would fail to communicate with him, he would complain that she
was never home, telling her that she was "a little kid and [she]
played too much." Trooper Haslett's review of [the] content
confirmed multiple instances of [Appellant] referring [to] her [as]
a little kid or telling her to grow up. On April 8, 2019, after [the
victim] sent [Appellant] a photograph of her wearing only
underwear, he responded, "well, look at you[,] not the little kid I
me[t] a few years ago[.]" On June 1, 2019, in response to a text
indicating that [the victim] had gotten into trouble, [Appellant]
sent her a text expressing alarm that she might have her [cellular
tele]phone taken away. If he truly believed she was of age, it is
difficult to understand why this would cause him concern.
Perhaps the most incriminating behavior [Appellant] engaged in
took place after being confronted by [the victim’s mother] about
[the victim being a minor] in July 2019. At that time, [the victim’s
mother] had taken a screen shot of [] messages received by [the
victim] from [Appellant] containing images of him in various
stages of undress. [The victim’s mother] forwarded those [screen
shots] to [Appellant] from [the mother’s cellular tele]phone, with
a message indicating that [the victim] was a minor, and that she
assumed his "career meant nothing to" him[.] If [Appellant] truly
believed that [the victim] was of age at that time, one would
expect that he would immediately respond to [the victim’s]
mother, indicating that he believed she was of age based on [the
victim’s] years-long misrepresentations. Instead, he did not
respond at all. [Appellant] later testified that he thought the
message he received from [the victim’s mother] was "a joke," but
his subsequent messages to [the victim] belie that. On July 23,
2019, [Appellant] confronted [the victim] about the text
[message], asking "what the f[**]k was going on," and
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threatening to forward to [the victim’s] mother copies of the
explicit text[ messages] that [the victim] had just sent to him.
That is not how a person usually responds to a joke. Again, if
[Appellant] believed, at that point, that [the victim] was
underage, one would expect him to confront [the victim] about
her misrepresentations. One would expect that he would ask her
how old she was or why she [] lied to him. But, he never did.
Instead, [Appellant] asked [the victim] how she could be so calm
and indicated that he believed he was now in trouble. Those
appear to be the statements of a person who knew he had broken
the[] law.
Trial Court Opinion, 1/4/22, at 71-74 (record citations and original brackets
omitted).
Upon assertion by Appellant of the mistake of age defense, the
Commonwealth had the burden of proof regarding Appellant’s knowledge of
or belief as to the victim’s age at the time of the various criminal acts. To
reiterate, the Commonwealth may sustain its burden of proof by wholly
circumstantial evidence. Pappas, 845 A.2d at 836. In addition to the
evidence noted by the trial court, as discussed supra, and supported by the
record, Appellant claimed that in late July 2017, or early August 2017, the
victim sent him a photograph of an identification card via a social media
application. The identification card, Appellant contends, contained the victim’s
birth date as proof that she was 17 years old and would be 18 shortly.37 N.T.,
5/19/21, at 173-181. Later, during cross-examination, Appellant stated that
the photograph of the victim’s identification card was sent via cellular
____________________________________________
37 We note that information, including photographs, sent via the social media
application Appellant alleged the victim used for sending a photograph of her
identification card, disappear after 24 hours.
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telephone text messages in a series of more than 200 message exchanges
between Appellant and the victim, many of which were presented as evidence
at trial. N.T., 5/20/21, at 54. Regardless of the method the victim allegedly
used to transmit a photograph of the identification card, physical evidence
depicting the identification card was not presented at trial. Moreover,
Appellant admitted at trial to having lied under oath in earlier court
proceedings involving this case. Id. at 33. Appellant also denied telling
Trooper Thompson that he “knew [the victim] was too young to have sex.”
Id. at 28.
The victim testified that in July 2017, she told Appellant she was 17
years old and that she would turn 18 years old on September 5th, without
specifying the year. N.T., 5/17/21, at 153; see also N.T., 5/18/21, at 41-42.
The victim often told Appellant that she was unable to communicate with him
via her cellular telephone because her parents had taken her cellular telephone
as punishment for when she got in trouble. N.T., 5/17/21, at 158; see also
N.T., 5/20/21, at 22. The victim further testified that throughout her digital
exchanges with Appellant, Appellant referred to her as “a little kid,” told her
that she needed “to grow up” and to stop acting like a little kid, and remarked
that she was not the little kid he first met a few years ago in response to a
photograph she sent him. N.T., 5/17/21, at 157-160; see also N.T., 5/18/21,
at 112-113, 121-122. The forensic investigation of Appellant’s electronic
devises did not reveal any digital exchanges between Appellant and third
parties in which Appellant referred to the third party as “a kid” or told the third
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party “to grow up” during the conversations. N.T., 5/19/21, at 123. The
investigation also did not uncover any messages between Appellant and the
victim in which Appellant specifically referred to the victim’s age, despite
Appellant’s claim that he received a photograph of an identification card and
believed she was 17, about to turn 18, years old when they first began
communication in July 2017. Id. Finally, upon receiving the text message
from the victim’s mother stating that the victim was a minor, Appellant’s first
question directed to the victim was not to ask how old she really was, but
rather, Appellant testified that the first question he asked the victim was “are
you showing my stuff [(, i.e., the photographs Appellant sent the victim,)] to
anybody?” N.T., 5/20/21, at 25.
Viewing the evidence in the light most favorable to the Commonwealth,
as verdict winner, there is sufficient evidence to enable the jury, as
trier-of-fact, to find the Commonwealth disproved Appellant’s asserted
mistake of age defense. The jury, as the ultimate fact-finder in the case sub
judice, was free to pass on the credibility of witnesses and the weight of the
evidence produced and to believe all, part, or none of the evidence in reaching
its verdict. The record demonstrates that the jury was properly instructed on
the mistake of age defense. Id. at 204-210, 212-213. As such, the trial
court, as well as this Court, are bound by the jury’s credibility determinations.
We discern no abuse of discretion or error of law in the trial court’s denial of
Appellant’s motion for judgement of acquittal. Therefore, Appellant’s third
issue is without merit.
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Issue 4 – Weight of the Evidence
In his final issue, Appellant raises a claim that the verdict is against the
weight of the evidence, for which our standard and scope of review is as
follows:
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial [court]
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial [court] when reviewing a trial
court’s determination that the verdict is [or is not] against the
weight of the evidence. One of the least assailable reasons for
granting or denying a new trial is the [trial] court’s conviction that
the verdict was or was not against the weight of the evidence and
that a new trial should be granted in the interest of justice.
Commonwealth v. Horne, 89 A.3d 277, 285 (Pa. Super. 2014), citing
Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000). A trial court abuses
its discretion “where the course pursued represents not merely an error of
judgment, but where the judgment is manifestly unreasonable or where the
law is not applied or where the record shows that the action is a result of
partiality, prejudice, bias[,] or ill-will.” Horne, 89 A.3d at 285-286 (citation
omitted); see also Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)
(stating, “[t]he term ‘discretion’ imports the exercise of judgment, wisdom[,]
and skill so as to reach a dispassionate conclusion within the framework of the
law, and is not exercised for the purpose of giving effect to the will of the [trial
court]”). For an appellant to prevail on a weight of the evidence claim, “the
evidence must be so tenuous, vague[,] and uncertain that the verdict shocks
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the conscience of the [trial] court.” Commonwealth v. Sullivan, 820 A.2d
795, 806 (Pa. Super. 2003) (citation and internal quotation marks omitted),
appeal denied, 833 A.2d 143 (Pa. 2003).
When the challenge to the weight of the evidence is predicated on
the credibility of trial testimony, our review of the trial court's
decision is extremely limited. Generally, unless the evidence is so
unreliable [or] contradictory as to make any verdict based thereon
pure conjecture, these types of claims are not cognizable on
appellate review.
Commonwealth v. Bowen, 55 A.3d 1254, 1262 (Pa. Super. 2012), appeal
denied, 64 A.3d 630 (Pa. 2013).
Preliminarily, we must address whether Appellant preserved his weight
claim since the failure to present such a claim to the trial court constitutes
waiver of a challenge to the weight of the evidence. Commonwealth v.
Weir, 201 A.3d 163, 167 (Pa. Super. 2018), aff’d, 239 A.3d 25 (Pa. 2020)
(stating, “a challenge to the weight of the evidence must be raised with the
trial [court] or is waived”); see also Pa.R.A.P. 302(a) (stating, “[i]ssues not
raised in the trial court are waived and cannot be raised for the first time on
appeal”).
Pennsylvania Rule of Criminal Procedure 607(A) requires a challenge to
the weight of the evidence to be raised with the trial court in a motion for a
new trial that is presented “(1) orally, on the record, at any time before
sentencing; (2) by written motion at any time before sentencing; or (3) in a
post-sentence motion.” Pa.R.Crim.P. 607(A)(1-3) (formatting modified).
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Here, Appellant asserts that trial counsel preserved a weight of the
evidence claim by presenting an oral motion for a new trial, on the record,
prior to sentencing as follows:
I [(trial counsel)] would also note, Your Honor. I can incorporate
[my motion for judgment of acquittal] in the motion for a new
trial, but this is not a trial, and this jury were not peers of
[Appellant]. There was not a minority person in the jury pool that
we walked through, looking for anybody who might be remotely
like [Appellant] who potentially could understand [Appellant].
This case was never going to be about the evidence for this jury,
Your Honor. This case was about race. This case was about a
black man, Hispanic black man, who’s 6 foot 2 [inches tall] and
weighed 220 pounds, and a young white female. This jury wasn’t
listening to the evidence because if they did, they would
have – our mistake of age [defense] would have been upheld.
They were offended by the idea that this man, this black man, [a]
professional athlete, would be involved sexually with a young
white female, and the jury disregarded every bit of evidence that
was exculpatory in this case. This jury was predisposed to convict
is what I’m saying to you, Your Honor.
N.T., 8/17/21, at 10.
Although trial counsel did not articulate his motion for a new trial with a
clear statement specifying a challenge to the weight of the evidence, i.e.,
counsel did not use the words “weight of the evidence” or “shocks one’s
conscious,” a sensible reading of trial counsel’s oral motion for a new trial
indicates that his challenge forwarded a claim alleging that the verdict was
against the weight of the evidence because the jury entirely disregarded
Appellant’s exculpatory proof regarding the mistake of age defense and
returned a verdict motivated by its racial bias against Appellant. Therefore,
under the specific circumstances of the case sub judice, trial counsel preserved
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Appellant’s weight of the evidence claim. See Commonwealth v. Keaton,
45 A.3d 1050, 1074 (Pa. 2012) (stating, there is no basis to grant a new trial
unless the prejudice of the jury, with a fixed bias and hostility towards the
accused, prevents the jury from weighing the evidence and rendering a true
verdict); see also Commonwealth v. Marrero, 687 A.2d 1102, 1110 (Pa.
1996) (stating, a weight claim may be premised on the assertion that no
reasonable jury could have reached its verdict unless the verdict were the
result of confusion, bias, or prejudice).
In challenging the trial court’s denial of his motion for a new trial based
upon a weight of the evidence claim, Appellant asserts,
Given the efforts to which [the victim] went to lure [Appellant]
into believing that she was just shy of her 18th birthday and the
absence of direct evidence that [Appellant] knew that [the victim]
was underage, the jury’s rejection of the mistake of age defense
must be viewed as manifestly erroneous, arbitrary and
capricious[,] or flagrantly contrary to the evidence. This is
especially true given that the verdict was the product of a jury
tainted by the racially stereotyped performance evidence allowed
by the [trial] court [(referring to the Commonwealth’s request that
Appellant imitate the victim’s walk for the jury).] In light of all of
these factors, the verdict can only be viewed as contrary to the
weight of the evidence. Therefore, the [trial] court’s denial of
[Appellant’s] motion for a new trial is a manifestly prejudicial
abuse of discretion.
Appellant’s Brief at 57-58 (quotation marks, original brackets, and citations
omitted).
To reiterate, this Court’s review of a weight claim is limited to whether
the trial court’s denial of a new trial based upon a weight of the evidence claim
was manifestly unreasonable or a result of partiality, prejudice, bias, or ill-will.
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Horne, 89 A.3d at 285-286 (stating, the role of an appellate court is not to
review whether the verdict was against the weight of the evidence, that role
is exclusively reserved for the trial court, who was in the best position to have
seen and heard the evidence).
In denying Appellant’s motion for a new trial, the trial court stated,
With regard to the argument for the new trial, I met with the
attorneys ahead of time in detail, and we went through the
proposed voir dire, and there were proposed questions by
[Appellant’s trial counsel] to determine whether the jury would be
biased against [Appellant] on the basis of race. [M]y recollection
is that I permitted each of the questions that [trial counsel]
suggested with regard to race, with regard to determining whether
any juror member would be biased because of race. The parties
had an opportunity to object, to make challenges for cause with
regard to each of the [potential jurors] during the voir dire
process, and I don’t recall overruling any objection that was made
by [trial counsel] making a preemptory [challenge] or making a
challenge for cause on the basis of race. I don’t recall if any
challenges for cause were made on the basis of race. I have had
jurors in cases indicate that they were prejudiced, which is
shocking to me, but I don’t – if that happened in this case, I
certainly, without hesitation, struck those jurors from
consideration. And again, [trial counsel] had an opportunity to
make preemptory challenges and more importantly have
unlimited challenges to cause, and I don’t recall denying any
challenge to cause based on race. I don’t believe there is anything
further that the [trial c]ourt could have done to make it – to create
an environment where racial prejudice did not enter into the
decision-making process. So[,] for those reasons and others, I
mean again, I’m mentioning the reasons that come to mind, not
hav[ing] been aware that these motions would’ve been made, and
I’m sure there are other reasons. I know there are other reasons
for the denial of those motions, but I am going to deny [the motion
for a new trial].
N.T., 8/17/21, at 17-18. The trial court further explained its rationale for
denying Appellant’s request for a new trial as follows:
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[T]he jury's verdict in this matter does not "shock the conscience."
This is especially true given the credibility issues involving
[Appellant.] While the victim certainly admitted having lied to
[Appellant] and to her family in the past, she was believable at
trial. On the other hand, there were numerous instances of
[Appellant] lying in court and to the government. When Trooper
Thompson was interviewing [Appellant] on September 17, 2019,
[Appellant] denied having corresponded with [the victim] until
confronted with proof. He then denied having attempted
[intercourse] with [the victim] until confronted with proof. On
direct examination [at trial, Appellant] admitted that in a previous
proceeding, he [] lied under oath, denying that the August 2017
incident in [Westmoreland County] had even occurred. If
[Appellant] lied under oath in the past in order to extricate himself
from a troublesome situation, there was no reason to believe he
would not lie again. On cross-examination, he admitted that his
statements on direct examination about believing the text
[message] from [the victim’s mother were] a joke and confronting
[the victim] about her misrepresentations on age were
questionable. In short, based on the substantial direct and
circumstantial evidence introduced by the Commonwealth and
[Appellant’s credibility] issues, the weight of the evidence was
great enough to support the convictions.
Trial Court Opinion, 1/4/22, at 77-78.
At the outset, we find trial counsel’s assertion that his argument in
support of his sufficiency of the evidence claim is “equally applicable” to his
weight of the evidence claim to be misplaced. See Appellant’s Brief at 57. A
claim challenging the sufficiency of the evidence is distinct from a claim that
the verdict is against the weight of the evidence and, as such, the arguments
should be distinct. Widmer, 744 A.2d at 751-752.
A claim challenging the sufficiency of the evidence is a question of
law. . . . Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. . . .
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A motion for new trial on the grounds that the verdict is contrary
to the weight of the evidence, concedes that there is sufficient
evidence to sustain the verdict. Thus, the trial court is under
no obligation to view the evidence in the light most favorable to
the verdict winner. An allegation that the verdict is against the
weight of the evidence is addressed to the discretion of the trial
court.
Id. (citations omitted, emphasis added).
Critical to finding Appellant guilty of the aforementioned criminal
offenses was the jury’s assessment of the evidence and its determination of
witness credibility. As the trial court discussed in denying Appellant’s motion
for a new trial, Appellant admitted to having lied several times while under
oath or in speaking with law enforcement. As such, the jury’s rejection of
Appellant’s version of events finds support in the record. Also, the digital
exchanges between Appellant and the victim, while subject to some level of
interpretation, were compelling and could easily be said to have established,
at the very least, a perpetrator who harbored doubts about the victim's age
but who turned a willfully blind eye to multiple obvious warning signals in
order to pursue his prurient interests.
Appellant’s allegation that “the jury’s rejection of the mistake of age
defense” was contrary to the evidence invites this Court to do nothing more
than reassess the witnesses’ credibility and reweigh the evidence in an
attempt to convince us to reach a result different than the one reached by the
jury, as fact-finder. We decline Appellant’s invitation since the jury, as the
ultimate fact-finder, while passing on the credibility of the witnesses and the
weight of the evidence, was free to believe all, part, or none of the evidence.
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Commonwealth v. Dunkins, 229 A.3d 622, 631 (Pa. Super. 2020), aff’d,
263 A.3d 247 (Pa. 2021), cert. denied, 142 S.Ct. 1679 (2022). The record
demonstrates that the jury was properly instructed on the mistake of age
defense. N.T., 5/20/21, at 204-210, 212-213. Therefore, the trial court, as
well as this Court, are bound by the jury’s credibility determinations. The
testimony, taken together with the substantial quantity of circumstantial
digital evidence presented at trial, easily surpassed the threshold applied by
an appellate court in the context of a weight claim. Consequently, based upon
our review of the record and the trial court’s rationale for denying Appellant’s
motion for a new trial based on a weight of the evidence claim, we discern no
abuse of discretion in the trial court’s determination that the verdict was not
against the weight of the evidence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2023
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