Opinion
J-S48014-19 No. 636 EDA 2019
10-29-2019
COMMONWEALTH OF PENNSYLVANIA v. ERNEST GOODMAN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered January 15, 2019
In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005146-2017 BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J. MEMORANDUM BY BOWES, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant Ernest Goodman appeals from the judgment of sentence entered January 15, 2019. Appellant's counsel, Patrick J. Connors, Esquire, has moved to withdraw pursuant to Anders v. California , 386 U.S. 738, (1967) and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). We grant counsel's motion to withdraw, and affirm.
This case stems from an incident on April 24, 2017, wherein Appellant was involved in a vehicular police chase with members of the Lansdowne Police Department. Specifically, Appellant fled after Officer Jonathan Downs attempted to effect a traffic stop on Easton Road in Upper Darby based upon information indicating that the car Appellant was driving at the time of this incident had been reported stolen. Appellant was driving at a very high rate of speed, and eventually lost control of the vehicle and crashed into a telephone pole located on East Baltimore Street in Yeadon Borough in Delaware County. Following the crash, Appellant was trapped inside of the vehicle due to the resulting damage to its structure. See N.T. Preliminary Hearing, 8/15/17, at 7-10. As Officer Downs approached the vehicle after the collision, Appellant made several "excited utterances" confirming that he had, in fact, stolen the vehicle and requesting medical treatment. Id. at 11, 19-21. These exclamations were not made in response to questioning from the police. Id. Appellant was contemporaneously placed in handcuffs with his arms extended out of the window, while the Yeadon and Lansdowne Fire Companies worked to extricate Appellant from the vehicle. Id. Afterwards, Appellant was transported to Penn Presbyterian Hospital.
Specifically, Officer Downs relied upon information from the Commonwealth Law Enforcement Assistance Network ("CLEAN"), which provides Pennsylvania law enforcement officers with access to motor vehicle information, amongst other things. See N.T. Preliminary Hearing, 8/15/17, at 7.
Officer Downs' testimony regarding the timing of when Appellant was placed into handcuffs is conflicting. During the preliminary hearing, Officer Downs testified that Appellant made excited utterances regarding having stolen the at-issue vehicle before being handcuffed. See N.T. Preliminary Hearing, 8/15/17, at 11, 19-21. However, at the suppression hearing, Officer Downs testified that Appellant's admissions occurred after he had been handcuffed. See N.T. Suppression I, 6/13/18, at 29-30.
An arrest warrant was issued for Appellant that same day. However, Appellant was discharged from Penn Presbyterian on April 26, 2017 without being taken into custody due to insufficient prior notice to authorities. Thereafter, the Lansdowne Police Department undertook extensive-but-unsuccessful efforts to apprehend Appellant, who was finally taken into custody by the Philadelphia Police Department on July 23, 2017, on separate charges. See N.T. Suppression II, 8/14/18, at 22-23. Appellant first appeared before the trial court on August 15, 2017, with regard to these charges, and waived his preliminary arraignment. See N.T. Preliminary Hearing, 8/15/17, at 3-4.
On April 23, 2018, Appellant filed an omnibus pre-trial motion in which Appellant argued in relevant part that: (1) his case should be dismissed because of the delay between Appellant's criminal activities and his "arraignment" on or about August 15, 2017; and (2) the above-discussed inculpatory statements should be suppressed because he had not received any warnings regarding his rights pursuant to Miranda v. Arizona , 384 U.S. 436 (1966). Hearings on Appellant's omnibus pre-trial motion were held on June 13, 2018 and August 14, 2018, respectively. On September 10, 2018, the trial court denied Appellant's motion in its entirety.
A non-jury trial was held on November 2, 2018. Appellant was found guilty of theft by unlawful taking, receiving stolen property, recklessly endangering another person, driving under the influence—general impairment, and fleeing or attempting to elude police officers. Prior to the imposition of sentence, Appellant filed a premature, pro se notice of appeal on or about December 8, 2018. On January 15, 2019, Appellant was sentenced to an aggregate term of 76 to 152 months imprisonment. Appellant filed a post-sentence motion on January 22, 2019 seeking modification of his term of imprisonment. On January 28, 2019, the trial court denied Appellant's post-sentence motion. Thereafter, Appellant filed a timely, counseled notice of appeal on February 26, 2019. The trial court ordered Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Attorney Connors timely filed a statement advising the trial court that he intended to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4). In light of counsel's decision to file an Anders brief, the trial court filed a statement that it did not intend to prepare an opinion.
Testing conducted upon Appellant's blood confirmed the presence of cocaine and a blood-alcohol content of 1.18, to which Appellant stipulated. See N.T. Preliminary Hearing, 8/15/17, at 5-6.
The irregularities regarding Appellant's "snap," pro se notice of appeal do not have any negative or appreciable impact on our jurisdiction to review the merits of this case. See Commonwealth v. Cooper , 27 A.3d 994, 1007-08 (Pa. 2011); see also Pa.R.A.P. 905(a)(5); Pa.R.Crim.P. 720.
See Commonwealth v. McBride , 957 A.2d 752, 758 (Pa.Super. 2008) ("If counsel files a statement of intent to file an [ Anders ] brief pursuant to Rule 1925(c)(4), a trial court opinion is not necessary and the trial court record shall be certified and transmitted back to this Court.").
Before we address the merits of this appeal, we must determine whether counsel has complied with the procedures provided in Anders and its progeny. Commonwealth v. Goodwin , 928 A.2d 287, 290 (Pa.Super. 2007) (en banc). Any counsel who wishes to withdraw under this framework must file a petition stating that he has made a conscientious examination of the record and determined that an appeal would be frivolous. Commonwealth v. Wright , 846 A.2d 730, 736 (Pa.Super. 2004). Counsel must also provide a copy of the Anders brief to the appellant and inform him of the right to proceed pro se. See Commonwealth v . Daniels , 999 A.2d 590, 594 (Pa.Super. 2010) (holding counsel must inform client via letter of right to proceed once counsel moves to withdraw and attach copy to petition). In pertinent part, an Anders brief must:
(1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel's conclusion that the appeal is frivolous; and (4) state counsel's reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.Commonwealth v. Santiago , 978 A.2d 349, 361 (Pa. 2009).
Reviewing the record before us, we confirm that counsel informed Appellant via correspondence dated July 1, 2019 that he intended to seek permission to withdraw from the appeal pursuant to Anders. In relevant part, counsel advised Appellant that: (1) his review of the record and law had led him to the conclusion that Appellant's issues were frivolous; (2) counsel intended to file an Anders brief with this Court; and (3) Appellant had the right to retain new counsel, proceed on his own, or bring any other matters to the attention of this Court. See Letter, 7/1/19, at unnumbered 1. In his petition to withdraw filed on July 8, 2019, counsel averred that he had completed a "thorough" review of Appellant's case, and concluded that any potential appellate issues would be frivolous. Counsel also provided Appellant with copies of both his petition to withdraw and brief. Based upon the record before us, we find that counsel has complied with the procedural requirements attendant to the Anders/Santiago paradigm.
As of the filing of this memorandum, Appellant has not responded to counsel's letter, petition, and/or brief based upon the record before us.
Counsel's brief complies with the mandated procedure for withdrawing as counsel. Counsel outlined two issues of arguable in his Anders brief, and provided his reasoning as to why those issues lacked substantive merit. Overall, the brief contained the required summary of facts and procedural history, references to the record and applicable Pennsylvania law, and, critically, counsel's reasons in support of his belief that the appeal was frivolous. In particular, counsel concluded that: (1) Appellant was not entitled to a Miranda warning at the time that he made the aforementioned "excited utterances" because he was never subjected to an interrogation; and (2) Appellant could not demonstrate prejudice with regard to the delay between his criminal activities and functional "arrest." Reviewing these claims on the merits, we agree with both of counsel's conclusions.
Although described as a single issue, counsel's brief actually discusses two separate claims that touch upon Miranda and the delay between the underlying criminal actions and Appellant's arrest.
It is axiomatic under Pennsylvania law that statements obtained during a "custodial interrogation" are presumptively involuntary unless the suspect first receives a warning pursuant to Miranda. See Commonwealth v. Luster , 71 A.3d 1029, 1050-51 (Pa.Super. 2013). Such statements are well-recognized as being subject to suppression. However, "[w]hen a person's inculpatory statement is not made in response to custodial interrogation, the statement is classified as gratuitous, and is not subject to suppression for lack of warnings." Commonwealth v. Mannion , 725 A.2d 196, 200 (Pa.Super. 1999). In this context, the issue with Appellant's claim for relief is the threshold issue of whether he was ever subjected to an "interrogation" by the Lansdowne Police Department. For these purposes, Pennsylvania law has set forth a straightforward definition of what constitutes an "interrogation":
Custodial interrogation has been defined as questioning initiated by the police after a person has been taken into custody or otherwise deprived of his or her freedom of action in any significant way. Further, an "interrogation" occurs when police "should know that their words or actions are reasonably likely to elicit an incriminating response from the suspect." Miranda warnings must precede a custodial interrogation.Commonwealth v. Clinton , 905 A.2d 1026, 1032 (Pa.Super. 2006) (emphasis added). The standard for determining whether police have initiated a custodial interrogation is an objective one based on a totality of the circumstances, with due consideration given to the reasonable impression conveyed to the person interrogated. See Mannion , supra at 200.
There is no evidence or testimony to support any claim that Appellant was ever subjected to an interrogation at the time that he made inculpatory statements to Officer Downs. Even assuming, arguendo, that Appellant was detained when he was initially handcuffed by police inside of the wreckage of the crashed vehicle, his statements to police were made freely and not in response to questions or inquiries. See N.T. Suppression I, 6/13/18, at 29-30. Appellant's only retort to this narrative was to claim that he had purchased the car earlier that day and had never told the police officers anything, which the trial court found to be incredible claims under the circumstances. See N.T. Trial, 11/2/18, at 60-66. We agree with counsel's conclusion that this issue is meritless. See Commonwealth v. Johnson , 541 A.2d 332, 336 (Pa.Super. 1988) ("[F]or Miranda purposes, appellant's statement was volunteered and need not be suppressed simply because it was made before the police [gave] Miranda warnings.").
Appellant's second issue of arguable merit is equally unavailing and concerns the pre-arrest delay in bringing Appellant up on charges related to this vehicular incident. For our purposes, "pre-arrest delay constitutes a due process violation where there has occurred actual prejudice to the defendant and there existed no proper reasons for postponing the defendant's arrest." Commonwealth v. Wright , 865 A.2d 894, 901 (Pa.Super. 2004). Moreover, "even in the face of prejudice, delay is excusable if it is a derivation of reasonable investigation." Id. In this context, "[a] trial court's conclusion that pre-arrest delay was reasonable under the facts of particular case is within the discretion of the trial court" and we may reverse only if there is "insufficient evidence in the record to support the lower court's determination." Commonwealth v. Montalvo , 641 A.2d 1176, 1182 (Pa.Super. 1994).
Instantly, Appellant offered no argument concerning prejudice in this case beyond claiming that the delay in arrest rendered him incapable of demonstrating that he legitimately purchased the at-issue vehicle. See N.T. Suppression II, 8/14/18, at 23-24. However, this allegation is belied by Appellant's own concession that he allegedly failed to obtain a bill of sale for the vehicle prior to these events transpiring. See N.T. Trial, 11/2/18, at 64-65. Moreover, the delay between the events that gave rise to Appellant's conviction and his waiving of arraignment was quite short, e.g., less than four months. Finally, Appellant has not demonstrated that this delay was the product of the Commonwealth attempting to gain a tactical advantage in the underlying litigation. As such, we similarly conclude that this issue lacks merit. See Montalvo , supra at 1182 (dismissing claim regarding pre-arrest delay where there are no facts to substantiate either bad faith on the part of the Commonwealth or "actual and substantial prejudice").
See Commonwealth v. Lightman , 489 A.2d 200, 204 (Pa.Super. 1985) ("[P]re-arrest delay does not violate fundamental conceptions of justice except where the delay caused actual and substantial prejudice to the defendant and the government intentionally delayed prosecution solely to gain a tactical advantage over the defendant." (emphasis added)).
Based on the foregoing, we conclude that counsel has also satisfied the substantive requirements of Anders. Finally, after conducting a full examination of all the proceedings as required under Pennsylvania law, we cannot discern any non-frivolous issues to be raised on appeal. See Commonwealth v. Dempster , 187 A.3d 266, 273 (Pa.Super. 2018) (en banc). We therefore grant counsel's motion to withdraw and affirm Appellant's January 15, 2019 judgment of sentence.
Patrick J. Connors, Esquire's motion to withdraw as counsel is granted. Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/29/19