Com. v. Miller, H. ( 2020 )

J-S30043-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HARRY EMERSON MILLER :
:
Appellant : No. 1815 WDA 2019
Appeal from the Judgment of Sentence Entered November 2, 2017
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0001155-2016
BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 21, 2020
Appellant, Harry Emerson Miller, appeals nunc pro tunc from the
judgment of sentence entered on November 2, 2017, in the Court of Common
Pleas of Blair County following his conviction by a jury on four counts of
possession of firearms prohibited, 18 Pa.C.S.A. § 6105(a)(1).1 After a careful
review, we affirm.
The relevant facts and procedural history are as follows: Appellant was
arrested, and, represented by counsel, he proceeded to a jury trial on August
7, 2017. The trial court has aptly summarized the evidence offered at the
jury trial as follows:
____________________________________________
* Former Justice specially assigned to the Superior Court.
1As discussed infra, Appellant’s appeal rights were reinstated via the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
J-S30043-20
The jury first heard from the Blair County Prothonotary and
clerk of courts, Carol Newman. She testified and provided
certified copies of records from her office which reflected that
[Appellant] pled guilty at [lower court docket] number 756 of
2004, Count One, Possession with Intent to Deliver, an ungraded
Felony. She established the identity of Appellant using his birth
date, address, and social security number. In this manner, it was
established that Appellant had a felony record for delivery of
narcotics.
The Commonwealth’s next witness was Kerry Hoover, chief
of the Martinsburg Police Department, who was qualified as an
expert witness in the field of firearms. He testified that if you have
a felony conviction you are not permitted to possess even a
portion of certain firearms, in particular, an AR-15. The law
prohibits possession of even the portion of the AR-15 that contains
the serial number, called the “lower”. Chief Hoover identified
Appellant in the courtroom and noted that his residence is right
across a narrow alley from the police station. Chief Hoover
testified that Appellant frequently would come over to converse
with police. Appellant presented himself as being very interested
in firearms. He talked a lot about target shooting and
ammunition.
From the police station, if Appellant’s garage door was up,
officers could see him sitting at his workbench, which had a
reloading press attached to it with other reloading supplies, and
he would sit there reloading ammunition. Appellant had discussed
shooting weapons at the target range with Chief Hoover, and he
had discussed building different weapons for different people. He
told the Chief that he had sold a weapon to someone else,
specifically, Chris Patrick, who was retiring from the Pennsylvania
State [P]olice and was buying himself an AR-15 as a retirement
gift. On October 22, 2015, Appellant showed Chief Hoover a lever
action rifle, a Henry style. On March 7, 2016, the Chief had to go
over to Appellant’s house and ask him to turn down his music
because there was a meeting at the police department. Appellant
was sitting reloading ammunition and listening to music.
On or about March 18 or 19[,] 2016, Appellant evicted a
person named Martin Fisher from his residence, and [he] was
concerned about giving weapons back to Mr. Fisher or his family,
so he wanted to turn them over to the Martinsburg Police
Department. Appellant told the police that Mr. Fisher had a felony
record and was not entitled to possess firearms. Appellant showed
police a large bolt action rifle in the house that day that was not
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Mr. Fisher’s. At this point, Chief Hoover took it upon himself to
investigate Appellant’s criminal record. He discovered that
Appellant had pled guilty to a felony possession with intent to
deliver charge. The police decided to apply for a search warrant
for Appellant’s house. The warrant was obtained [on] March 30,
2016[,] and executed the next day. When they executed the
warrant the police found four guns. There were two handguns
and two rifles; one rifle was an AR-15[,] which was pink and black
in color. The other rifle was a Remington .308 bolt action rifle
with a very large scope. These weapons were produced as
exhibits at trial and identified by Chief Hoover. Appellant told the
police that all guns belonged to his wife.
The next witness was Adam Ingram of the Roaring Spring
Police Department who responded to Appellant’s house [on March
19, 2016,] and [he] saw Appellant take three rifles out of his closet
near the kitchen area. Appellant represented that these were
Martin Fisher’s firearms. Appellant showed the officer a military
style rifle that was inside [of] a hard green case in his living room
that was separate from the closet area. The witness identified
Commonwealth’s Exhibit 8 A as being a photograph of the same
rifle that Appellant displayed to him that night. He noted that
Appellant’s wife was not present when this happened. Appellant
told the police that the rifle had a $4000[.00] scope on it and could
hit a target from an extended range.
Lance Morris was called to testify and said he was a
patrolman for multiple police departments, and on March 19,
2016[,] [he] responded to Appellant’s home. He saw Appellant
show Officer Ingram the Remington .308 bolt action rifle. He also
saw the two AR-15 style rifles.
Justin Davis was also called to testify and described that he
was a police offer and also responded to Appellant’s house on
[March 19, 2016]. He testified he saw a rifle leaning against the
wall[,] he inspected it[,] and [he] found that it was loaded. He
[testified] that two rifles and two handguns were found in the
residence.
Richard Schuh was called to testify[,] and [he] said that he
was self-employed putting graphics onto firearms and selling
firearms. He maintains a federal license and is licensed within the
Blair County Sheriff’s Department to sell firearms. He testified he
knew Appellant and his wife through his gun shop. He testified
that he has known Appellant for about 15 years. He recalled
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selling firearms to Appellant’s wife. He described firearms
transfers he had made with Appellant’s wife.
John Frederick Simpson was called to testify. He said he
was a licensed gun dealer. He showed an AR-15 rifle and
explained the parts of it. He testified that he knew Appellant. He
testified that Appellant contacted him via social media on a
Facebook messenger app. He said that Appellant had come to his
shop in Alexandria twice. Appellant and a man he was with
wanted to barter ammunition for AR-15 parts, specifically lower
parts kits. The witness testified that he bartered with Appellant
for lower parts kits for the AR-15 rifle and supplied Appellant with
three. An exchange on social media was read into the record,
representing that Appellant was looking for parts for AR-15 rifles.
The social media also depicted AR-15 rifles. The photographs
were purportedly sent by Appellant. The witness’s testimony also
described characteristics of weapons in this case, including their
weight and difficulty in shooting them, introduced by the
Commonwealth to cast doubt on the theory that the weapons were
owned by Appellant’s wife.
The next witness was Martin Fisher, who testified that he
previously was friends with Appellant and briefly lived with him in
March 2016. He testified that in addition to the weapons that he
brought to Appellant’s residence, while he lived there, there were
anywhere between a dozen and a half to two dozen firearms that
went through the house. He testified that Appellant would handle
them and trade them, keep some a while, and then trade them
for other firearms. He testified that he saw Appellant shoot
firearms and build them. The witness testified that Appellant built
semi-automatic rifles like [an] AR-15[.] He testified that he saw
Appellant build around 8 to 10 AR-15s. He testified specifically
that he saw Appellant shooting a .338 Lapua, a Remington 835,
and a Mossberg. He said that after he moved in he saw Appellant
fire a pink camo AR-15 and several other AR-15s[,] as well as a
.308 sniper rifle and a Sig Sauer handgun.
The Commonwealth brought [up] Martin Fisher’s criminal
record of theft and receiving stolen property. [Fisher] also
testified that he had pending criminal charges that he was
fighting. (N.T. Day 2 of 3, p. 132). He stated that he was facing
a felony charge of carrying a firearm without a license. He
testified that he was receiving no consideration from the
Commonwealth in exchange for his testimony. (N.T. Day 2 of 3,
p. 133).
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Appellant took the stand and testified that he was convicted
of Possession with Intent to Deliver marijuana in September [of]
2004. He testified that his wife was intensely interested in
firearms and owned many weapons. He testified that the Sig
Sauer handgun was hers. He testified that the Lapua rifle was
hers. He testified that Martin Fisher had lived with him for a time.
He testified that the Henry rifle[, which] he showed [to] Chief
Hoover[,] was a replica, like a movie prop. He testified that he
had never been at a shooting range with Mr. Fisher. He testified
that the guns in his house belonged either to Mr. Fisher or to
Appellant’s wife.
Trial Court Opinion, filed 6/20/18, at 3-9.2
At the conclusion of the trial, the jury convicted Appellant on four counts
of possession of firearms prohibited, and on November 2, 2017, the trial court
sentenced Appellant to an aggregate of 48 months to 96 months in prison.
On Monday, November 13, 2017, Appellant filed a timely, counseled post-
sentence motion3 wherein he sought, inter alia, a new trial based on after-
discovered evidence. Relevantly, Appellant specifically averred the following
(verbatim):
B. Motion for a New Trial based upon After Discovered Evidence
Pursuant to Pa.R.Crim.P. # 720(C)
***
____________________________________________
2 On January 14, 2020, the trial court filed a brief Pa.R.A.P. 1925(a) opinion
indicating it was relying on its previous opinion, which was filed on June 20,
2018, for purposes of this appeal.
3See 1 Pa.C.S.A. § 1908 (when last day of any period of time referred to in
any statute falls on Saturday, Sunday, or legal holiday, such day shall be
omitted from computation).
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6. Defense Counsel has learned that a member of the District
Attorney’s staff met with the Defendant days prior to the
beginning of Jury Trial and:
a. such meeting was held without counsel present
despite there being no question that the Defendant
was represented by counsel, and
b. it is [Defense Counsel’s] belief that the information
gleaned at that meeting resulted in the disclosure of
the Defendant’s trial strategy potentially prejudicing
his ability to have a fair trial[.]
Appellant’s Counseled Post-Sentence Motion, filed 11/13/17, at 3.4
On January 23, 2018, the trial court held an evidentiary hearing
regarding Appellant’s post-sentence motion. The trial court has summarized
the relevant testimony offered during the post-sentence hearing as follows:
Appellant testified that he was in attendance at a meeting
[on July 28, 2017,] at the Original Italian Pizza restaurant in
Hollidaysburg with local TV and radio personality Jim Gregory and
another person named Christopher Irvin. The meeting with Jim
Gregory ended, and Randy Feathers, who is employed by the Blair
County District Attorney’s Office as a detective, came into the
pizza shop. Appellant testified that [Detective] Feathers asked
him a few questions. Appellant testified that [Detective] Feathers
asked him about the “302’ ing” (involuntary civil mental health
commitment) of Martin Fisher, and asked him, “Do you think your
lawyer can win this?” He asked Appellant about “jury
nullification,” and whether he was doing that.
____________________________________________
4 Appellant also claimed in his post-sentence motion that he was entitled to a
new trial due to the Commonwealth withholding information that a witness
had a then pending criminal case. He claimed that he learned of the witness’
criminal case after trial, and therefore, he was entitled to a new trial based on
after-discovered evidence. The trial court denied Appellant’s post-sentence
motion as to this claim. Appellant has not developed any argument regarding
this claim and has abandoned it on appeal. Therefore, we shall not address
this issue further. See Pa.R.A.P. 2119 (pertaining to argument in the
appellate brief).
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Randy Feathers testified that Jim Gregory asked him to
come to a meeting with himself and Christopher Irvin and
Appellant. The discussion was going to be about a website that
Appellant and Mr. Irvin were involved with, and the organization,
Operation Our Town. [Detective] Feathers is a board member of
Operation Our Town. He testified that he wanted to explain to the
gentlemen [the] Operation Our Town process. Appellant and Mr.
Irvin had been publishing a webpage alleging that Operation Our
Town was committing federal violations, and [Detective] Feathers
wanted to explain to them what the organization does.
[Detective] Feathers testified…that his motivation in going
to the meeting was to get the gentlemen to put accurate
information on their website because he felt that they were putting
things on the website that were false. His motivation was to help
them with the website, to get them to put, in his words, “…truthful
stuff on there”. (N.T. 1/23/18 p. 19).
[Detective] Feathers testified that he did not set the
meeting up. He was told where it was going to be held.
[Detective] Feathers testified…that he said in the beginning of the
meeting that he was there to talk about Operation Our Town and
not criminal cases. He testified that he told the gentlemen how
the organization worked, explained its funding process, and how
the organization pays a prosecutor in the District Attorney’s Office
and police officers.
[Detective] Feathers testified…that he did not ask Appellant
questions about his criminal case. He testified that Appellant
talked about his case, but that he did not discuss anything about
the case with Appellant. (N.T. 1/23/18 p. 22).
[Detective] Feathers testified that he knew he should not be
talking to a defendant about their criminal case. He testified that
he understood he should not be talking to someone who is
represented by counsel.
Trial Court Opinion, filed 6/20/18, at 10-12.
On March 19, 2018, the trial court denied Appellant’s post-sentence
motion, and Appellant filed a timely, counseled appeal to this Court. However,
on September 4, 2018, this Court dismissed Appellant’s appeal for failure to
file a brief. Appellant did not seek review in our Supreme Court.
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Instead, on April 12, 2019, Appellant filed a timely, counseled PCRA
petition seeking the reinstatement of his direct appeal rights nunc pro tunc.
See 42 Pa.C.S.A. § 9545(b)(1) (stating petition shall be filed within one year
of the date the underlying judgment becomes final); 42 Pa.C.S.A. §
9545(b)(3) (stating judgment is final “at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States and
the Supreme Court of Pennsylvania, or at the expiration of time for seeking
the review”).
On November 14, 2019, the lower court granted Appellant’s PCRA
petition and reinstated Appellant’s direct appeal rights. This counseled appeal
followed on December 6, 2019, and all Pa.R.A.P. 1925 requirements have
been met.
On appeal, Appellant sets forth the following sole issue in his “Statement
of Questions Involved” (verbatim):
1. Did the trial court abuse it’s [sic] discretion when it denied the
Appellant’s post-sentence motion for a new trial based on after-
discovered evidence of the Commonwealth’s failure to disclose
that a member of the District Attorney’s Office met with the
Appellant without his attorney present and discussed aspects
of the case[?]
Appellant’s Brief at 5 (suggested answer omitted).
Appellant’s sole appellate issue is whether the trial court erred in
denying his post-sentence motion for a new trial based on after-discovered
evidence. Specifically, Appellant contends the Commonwealth violated his
constitutional rights when Appellant met with a detective from the District
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Attorney’s Office, Randy Feathers, on July 28, 2017, without Appellant’s
counsel being present. Appellant claims that during the meeting the detective
questioned Appellant about his trial strategy, and in response, Appellant
revealed his planned strategy of jury nullification based on the guns being
owned by Appellant’s wife, as opposed to being owned by Appellant. Appellant
contends his counsel did not learn of the meeting until after trial, and at this
point, counsel revealed to Appellant the “significance” of the meeting,
including the fact that Detective Feathers violated Appellant’s Miranda5
rights, his Fifth Amendment right against self-incrimination,6 and his Sixth
Amendment right to counsel.7
Initially, we note that “[a] post-sentence motion for a new trial on the
ground of after-discovered evidence must be filed in writing promptly after
such discovery.” Pa.R.Crim.P. 720(C). Further, a trial court’s refusal to grant
a new trial on the basis of after-discovered evidence will not be disturbed on
appeal absent a clear abuse of discretion. Commonwealth v. Weis, 611
A.2d 1218, 1228 (Pa.Super. 1992).
____________________________________________
5 Miranda v. Arizona, 384 U.S. 36, 86 S.Ct. 1602 (1966).
6The Fifth Amendment protects a witness from compelled self-incrimination
and renders that testimony unavailable. United States v. Doe, 465 U.S.
605, 104 S.Ct. 1237 (1984).
7 The Sixth Amendment guarantees a defendant the right to have counsel
present at all critical stages of the criminal proceedings. U.S.C.A. Const.
Amend. 6.
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In order to be granted a new trial based on after-discovered
evidence, the [defendant] must satisfy a four-part test requiring
the [defendant] to demonstrate the [after-discovered]
evidence: (1) could not have been obtained prior to
the conclusion of the trial by the exercise of
reasonable diligence; (2) is not merely corroborative
or cumulative; (3) will not be used solely to impeach
the credibility of a witness; and (4) would likely result
in a different verdict if a new trial were granted.
Commonwealth v. Small, 647 Pa. 423, 189 A.3d 961, 972 (2018) (quotation
omitted). “The test is conjunctive; the defendant must show by a
preponderance of the evidence that each of these factors has been met in
order for a new trial to be warranted.” Commonwealth v. Padillas, 997
A.2d 356, 363 (Pa.Super. 2010). In addition, the after-discovered evidence
must be producible and admissible. Small, supra, 189 A.3d at 972.
Moreover, credibility determinations are an integral part of determining
whether a defendant has presented after-discovered evidence that would
entitle him to a new trial. See id. We have stated, prior to granting a new
trial based on after-discovered evidence, “a court must assess whether the
alleged after-discovered evidence is of such a nature and character that it
would likely compel a different verdict if a new trial is granted.” Padillas, 997
A.2d at 365. “In making this determination, a court should consider the
integrity of the alleged after-discovered evidence, the motive of those offering
the evidence, and the overall strength of the evidence supporting the
conviction.” Id.- 10 -
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In the case sub judice, as to the fact Detective Feathers and Appellant
were at the same meeting on July 28, 2017, the trial court reasoned:
[T]he allegation pertaining to District Attorney’s Office
[D]etective Randy Feather[s]’ contact with [Appellant] outside the
presence of his counsel fails the first prong of the [after-
discovered evidence test]. This information was available to
[Appellant] prior to the conclusion of trial, and indeed prior to the
beginning of trial. In other words, Appellant knew that he met
with Randy Feathers, knew what they talked about, and could
have reported that to his counsel before trial.
Trial Court Opinion, filed 6/20/18, at 14.
We agree with the trial court’s sound reasoning. Simply put, the fact
Appellant attended a meeting with Detective Feathers prior to Appellant’s jury
trial is not “after-discovered evidence” since such information was in
Appellant’s own possession. Further, any alleged “constitutional legal
significance” of the meeting could have been learned by Appellant with the
exercise of reasonable diligence (i.e., he simply had to ask his counsel). See
Small, supra (holding the defendant must demonstrate the evidence could
not have been obtained prior to the conclusion of trial by the exercise of
reasonable diligence).
Moreover, we note Appellant has failed to demonstrate that his alleged
after-discovered evidence would likely result in a different verdict if a new trial
were granted. See id. Appellant alleges that, upon questioning by Detective
Feathers, Appellant revealed his trial strategy, and Detective Feathers
reported this strategy to the District Attorney’s Office.
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However, at the post-sentence hearing, Detective Feathers testified to
a contrary version of events. Specifically, while he admitted that he met with
Appellant and others to discuss the Operation Our Town organization, he
specifically denied questioning Appellant about his pending criminal matter.
N.T., 1/23/18, at 20. In fact, Detective Feathers testified he told Appellant he
did not want to hear about his criminal case, but Appellant “ranted” about his
innocence. Id. at 20-21. In any event, Detective Feathers testified he did
not report the statements Appellant made to anyone, including any member
of the District Attorney’s Office. Id. at 21-22.
The trial court found Detective Feathers’ testimony to be credible. Trial
Court Opinion, filed 6/20/18. This fact, in combination with the trial court’s
consideration of Appellant’s motive for offering the evidence, and the
overwhelming evidence of Appellant’s guilt, supports the conclusion that
Appellant failed to meet the final prong of the after-discovered evidence test
(that the after-discovered evidence would likely result in a different verdict if
a new trial were granted). Small, supra.
Based on the aforementioned, we conclude the trial court did not abuse
its discretion in finding no merit to Appellant’s post-sentence after-discovered
evidence claim. Therefore, we affirm Appellant’s judgment of sentence.
Affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2020
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