J. S71045/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                            Appellee        :
                                            :
                    v.                      :
                                            :
                                            :
ELMER CHARLES GREEN,                        :
                                            :
                            Appellant       :     No. 232 MDA 2014


             Appeal from the Judgment of Sentence January 7, 2014
              In the Court of Common Pleas of Cumberland County
               Criminal Division No(s).: CP-21-CR-0000346-2012

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 24, 2014

        Appellant, Elmer Charles Green, appeals from the judgment of

sentence entered in the Cumberland County Court of Common Pleas

following a jury trial and his convictions for multiple counts of, inter alia,

involuntary deviate sexual intercourse1 (“IDSI”) and indecent assault.2 He

challenges, pursuant to Alleyne v. United States, 133 S. Ct. 2151 (2013),

the imposition of a mandatory minimum sentence based on his prior




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3123(a).
2
    18 Pa.C.S. § 3126(a).
J. S71045/14


conviction for IDSI and asserts the trial court erred by denying his motion to

suppress. We affirm.

      We adopt the facts set forth by the trial court’s opinion. See Trial Ct.

Op., 4/16/14, at 1-6. On January 7, 2014, the court sentenced Appellant to

a mandatory minimum sentence of twenty-five to fifty years’ imprisonment

because he had a prior IDSI conviction.       Appellant timely appealed and

timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

      Appellant raises the following issues on appeal:

         Did the trial court err when it imposed a 25-year
         mandatory minimum sentence on count 1—involuntary
         deviate sexual intercourse?

         Did the suppression court err when it denied Appellant’s
         motion to suppress?

Appellant’s Brief at 6.

      For his first issue, Appellant argues the court violated Alleyne,

because the fact that he was previously convicted of IDSI should have been

submitted to the jury.     Accordingly, he suggests the court violated his

constitutional rights by imposing the mandatory minimum sentence. For his

second issue, Appellant insists that his various mental infirmities should

have led the suppression court to suppress the statements he made to the

police. We hold Appellant is due no relief.

      This Court has stated:

            Application of a mandatory sentencing provision
         implicates the legality, not the discretionary, aspects of
         sentencing. In reviewing the trial court’s interpretation of


                                     -2-
J. S71045/14


          statutory language, we are mindful of the well-settled rule
          that statutory interpretation implicates a question of law.
          Thus, our scope of review is plenary, and our standard of
          review is de novo.

Commonwealth        v.   Dixon,   53     A.3d   839,   842   (Pa.   Super.     2012)

(punctuation and citations omitted).

        Alleyne held that facts that increase the mandatory minimum

sentence for a crime must be submitted to a jury and found beyond a

reasonable doubt. See Alleyne, 133 S. Ct. at 2155, 2161, 2163. The High

Court noted that “the essential Sixth Amendment inquiry is whether a fact is

an element of the crime. When a finding of fact alters the legally prescribed

punishment so as to aggravate it, the fact necessarily forms a constituent

part of a new offense and must be submitted to the jury.”             Id. at 2162.

Alleyne does not require that the fact of a prior conviction be presented at

trial and found beyond a reasonable doubt.         Id. at 2160 n.1 (noting, “In

Almendarez–Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140

L. Ed. 2d 350 (1998), we recognized a narrow exception . . . for the fact of a

prior conviction.”); United States v. Blair, 734 F.3d 218, 227 (3d Cir.

2013) (noting, “Alleyne d[id] nothing to restrict the established exception

under    Almendarez–Torres        that    allows   judges    to     consider    prior

convictions.”); Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super.

2013) (en banc), appeal denied, 95 A.3d 277 (Pa. 2014).

               Our standard of review in addressing a
               challenge to the denial of a suppression motion
               is   limited  to   determining    whether   the


                                       -3-
J. S71045/14


               suppression    court’s   factual   findings   are
               supported by the record and whether the legal
               conclusions drawn from those facts are correct.
               Because the 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, we are bound by these findings and may
               reverse only if the court’s legal conclusions are
               erroneous. Where, as here, 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 an
               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
               courts below are subject to our plenary review.

          Moreover, it is within the suppression court’s sole province
          as fact finder to pass on the credibility of witnesses and
          the weight to be given their testimony.

Commonwealth v. Baker, 24 A.3d 1006, 1015 (Pa. Super. 2011)

(punctuation and citations omitted), affirmed on other grounds, 78 A.3d

1044 (Pa. 2013).

        In Commonwealth v. Hughes, 555 A.2d 1264 (Pa. 1989), a juvenile

with schizophrenia and low I.Q. contended his waiver of Miranda3 rights

was invalid. Id. at 1274. Our Supreme Court disagreed:

          Appellant's low I.Q. does not establish his inability to
          comprehend his rights. Commonwealth v. Whitney,
          511 Pa. 232, 512 A.2d 1152 (1986) (plurality opinion) (low

3
    Miranda v. Arizona, 384 U.S. 346 (1966).




                                     -4-
J. S71045/14


         I.Q. does not invalidate confession); Commonwealth v.
         Hernandez, [446 A.2d 1268 (Pa. 1982)] (sixteen-year-old
         Hispanic defendant with I.Q. of fifty-seven capable of
         understanding constitutional rights). Moreover, we have
         consistently refused to adhere to a per se rule of incapacity
         to waive constitutional rights based on mental disease or
         deficiency.

Id. at 1275.

      After careful consideration of the record, the parties’ briefs, and the

well-reasoned decision of the Honorable M.L. Elbert, Jr., and the Honorable

Kevin A. Hess, we affirm on the basis of the trial court’s decisions. See Trial

Ct. Op. at 12 (holding fact of Appellant’s prior conviction is not presented to

jury); Trial Ct. Op., 5/6/13, at 6 (holding mental infirmities do not per se

render one unable to waive constitutional rights; Appellant testified he was

told he was free to leave; and Appellant’s psychologist testified Appellant

could understand instructions); see also Alleyne, 133 S. Ct. at 2160 n.1;

Hughes, 555 A.2d at 1275. Accordingly, having discerned no error of law or

abuse of discretion, we affirm the judgment of sentence.      See Dixon, 53

A.3d at 842; Baker, 24 A.3d at 1015.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/24/2014




                                     -5-
                                                                                   Circulated 11/06/2014 12:42 PM




      COMMONWEALTH                                   : IN THE COURT OF COMMON PLEAS OF
                                                     : CUMBERLAND COUNTY, PENNSYLVANIA

                                                     : CP-21-CR-346-2012

                                                     : CHARGE: 1. INVOLUNTARY DEVIATE
              v.                                     : SEXUAL INTERCOURSE; 2. INDECENT
                                                     : ASSAULT; 4. INDECENT ASSAULT;
                                                     : 5. INVOLUNTARY DEVIATE SEXUAL
                                                     : INTERCOURSE

     ELMER CHARLES GREEN.
     OTN: T123942-0                                 : AFFIANT: CPL. KENNETH L. TALLMAN

                          IN RE: OPINION PURSUANT TO PA. R.A.P. 1925

     Ebert, J., April 16, 2014 -

             Elmer Charles Green (hereinafter "Defendant"), was convicted following a jury

    trial of the above-captioned offenses. Defendant filed the instant appeal and complains

    of the following errors:

            1. Mr. Green's pre-trial motion to suppress evidence was improperly
            denied. Mr. Green's limited mental capabilities affected his ability to
            understand that he was free to leave the police car where the interrogation
            occurred.

           2. The evidence presented at trial was not sufficient to convict Mr. Green
           of the above-captioned charges [two counts of involuntary sexual deviate
           intercourse and two counts of indecent assault].

          3. The mandatory 25-year minimum sentence imposed, at Count 1, was
          improper and illegal. The statute authorizing said sentence, 42 Pa.C.S.A.
          § 9718.2, is unconstitutional. The statute adds an additional element to
          the crime that was originally charged; specifically that Mr. Green had
          certain enumerated prior convictions. This additional fact increased the
          penalty of the original crime. The additional element of the chargEii:! crime,
          should have been a question for the jury. See Alleyne v. United States, ~.
          _    U.S. _,133 S. ct. 2151,186 L.Ed.2d 314 (2013).1                '




                                                                                   ..
1   Concise Statement of the Errors Complained of on Appeal, filed Feb. 28, 2014
                                                                                             Circulated 11/06/2014 12:42 PM




                                               Procedural History

               On August 17, 2012, Defendant filed an Omnibus Pretrial Motion where he

       sought to suppress inculpatory statements he made to officers. A suppression hearing

       was held on April 4, 2013. Defendant's motion to suppress these statements was

       denied on May 3, 2013.

              A jury trial was held on July 9 through July 11, 2013. The jury found Defendant

      guilty beyond a reasonable doubt of two counts of Involuntary Deviate Sexual

      Intercourse and two counts of Indecent Assault. The jury found Defendant not guilty of

      Terroristic Threats.

             Defendant was sentenced on January 7, 2014. At Count 1, Involuntary Deviate

     Sexual Intercourse by forcible compulsion, Defendant was sentenced to incarceration of

     25 to 50 years and to comply with lifetime Megan's Law registration. This was a

     standard range mandatory minimum sentence. 2 The remaining Counts 2, 4 and 5
                                                            3
    merged with Count 1 for sentencing purposes.

                                             Statement of Facts

              Christopher Coble (hereinafter "Chris") first met Defendant at a bingo hall in

    Shippensburg, Pennsylvania that he went to with his mother. 4 It must be noted that

    Chris was 23 years old at the time of the trial and lived with this mother. While Chris

    graduated from high school, he was always in full time learning support classes. In

    addition to being described as a "slow" learner, Chris was hit by a drunk driver in 2000

while riding on his bicycle. The injuries he sustained affected his mental capacity.s



2   In Re: Sentence, Order of Court, filed Jan 10, 2014
3   1d .
4   Notes of Testimony, In Re: Jury Trial- Vol. 1,22. July 9 and 10, 2013, page 22 (hereinafter N.T.     )
5   N.T. 66-68                                                                                       -

                                                       2
                                                                                          Circulated 11/06/2014 12:42 PM




       Even though they did not talk much, Chris considered Defendant a close friend. 6 Chris

      testified that sometime in the summertime of 2011 while at the bingo hall, Defendant

      asked Chris if he would like to come back to his house.? Chris's mother believed the

      incident occurred on a Saturday in September, but was unable to recall the exact year. 8

      Chris believed that Defendant lived with his grandparents at the time, but Defendant
                                                 9
      actually lived with his aunt and uncle.        Chris told Defendant he would come because

      Defendant told him his father passed away and Chris wanted to support him.1o Chris

     and Defendant were driven to where Defendant was living by Defendant's relatives. 11

            Once at the house, Chris stated he looked around both outside and inside the

     home. Chris went inside and sat on the couch in the living room and Defendant sat on

     the other side of the couch.12 Everyone else was upstairs and Chris testified that

     Defendant was just looking at him and he felt awkward. 13 Chris was tired and asked

     Defendant for a blanket and fell asleep on thecouch.14

           Chris next recalls waking up around 2:30 a.m. with his pants and underwear

 down around his ankles. 15 Chris stated that Defendant was touching his genitals with·

 his hands and then Defendant put Chris's genitals in his mouth. 16 During these acts




 6  N.T. 22, 23
 7  N. T. 26. There was some confusion about the date of the actual offense. While Chris testified at trial
  that it occurred in 2011, the offense must have occurred much earlier as Chris waited two years before
  telling police and his first interview with police was in October of 2011 (N.T. 103). In any case, Defendant
  is not contesting the statute of limitations in filing these charges, so the actual date of the offense is
 immaterial.
 • N.T. 69
 9 N.T. 27, 135
 10 N.T. 27
 11 N.T. 27. Neither Defendant nor Chris has a driver's license
12 N.T 31-32
13 N.T. 33
14 N.T. 33-34
15 N.T. 34-35
16 N. T. 36-37


                                                      3
                                                                                    Circulated 11/06/2014 12:42 PM




       Chris stated he "felt so uncomfortable, and [he] felt scared."17 Chris told Defendant to

       stop five times, and Defendant eventually stopped. '8 Then Chris described how

       Defendant got on top of him, with his knees on his chest, and told Chris he would kill

       him if he said anything. '9 Chris was "tossing and turning with [his] body" to try to get

       Defendant off of him.20 Chris told Defendant to get off of him and eventually Defendant

      complied. 21

             After Defendant moved off of him, Chris testified he pulled his pants up and ran

      to the bathroom after grabbing the house phone, located in the upstairs hallway.22 Chris

      locked himself in the bathroom for the rest of the night and said he "sat on the bathroom

      floor and cried.,,23 Chris was afraid to leave the bathroom because Defendant was

      outside the door. 24 Chris eventually called his mother to come and pick him up, and

      around 8:00 a.m. he went outside to wait for her. 25 Chris did not tell his mother what

  happened when she picked him up because he was scared. 26

            In fact, Chris waited for two years before he finally told a friend and then his

  mother what happened. 27 Wh~n asked why he waited so long to tell someone what

 happened, Chris stated he was "afraid that [Defendant] was going to come and find me

 and kill me cause of what he told me".28 His mother took him to the state police station




17  N.T. 37
 fa N. T. 64-65
 19 N.T. 38
 20 NT 38
 2f N. T. 38-39, 65
 22 N.T. 42
 23 NT 43
24 NT 44-45
25 N.T. 46
26 N.T. 46, 47
27
   NT 48,73
2a N.T 49-50

                                                 4
                                                                               Circulated 11/06/2014 12:42 PM




       after he told her what happened. 29 Chris talked to Corporal Kenneth Tallman and

       Trooper Benjamin Wilson on October 12, 2011, and told them what happened. 3D

       Corporal Tallman said that Chris's testimony at trial was consistent with what he told

      him, although he did not remember Chris mentioning grabbing the telephone and going

      to the bathroom.31

                  Corporal Tallman made arrangements for a consensual wiretap, during which

      Chris would call Defendant and get Defendant to talk about the incident. 32 Chris agreed

      and called Defendant. A recording of the phone call was made and played for the

     jury.33 During the consensual wiretap, Chris stated to the Defendant "... you can

     apologize to me for what you did to me at your grandmother's house. That time I spent

     the night. Because right now, I've been ... " The Defendant replied "I'm sorry.,,34

               Corporal Tallman and Trooper Wilson then talked to Defendant on October 26,

     2011. 35 They asked Defendant if he would speak to them in the police car so that the

     conversation was private. Defendant sat in the front of the police car and the doors

 were kept unlocked. Defendant was told he was free to leave at any time. 36 During this

 interview, Defendant admitted to touching Chris's penis the night he stayed over, that

 Chris told him to stop, and that Defendant continued to do it. 37 When asked why he

 touched Chris, Defendant replied "because I wanted to do something.,,38 Trooper




29   N.T. 73
30
     N. T . 79,
             102
31 N.T. 79
32 N. T. 81-82
33 N. T. 81-82, 85; Com. Ex. 1
34   Com. Ex. 2 - Transcript of recorded interception.
35
   N.T. 88, 103
36 N. T. 89-91
37 N.T. 92
38 N.T. 92


                                                         5
                                                                                     Circulated 11/06/2014 12:42 PM




        Steven Nesbit arrested Defendant on January 20,2012. 39 When he arrested him,

        Defendant was confused as to why it took so long to arrest him when the incident

        happened so long ago. 40

              Defendant presented testimony from Doctor Wayne Schmoyer, a psychologist,

       who performed an intellectual disability evaluation on Defendant. 41 Dr. Schmoyer

       testified that Defendant scored a 65 on the overall IQ test, which places him in the mild

       mental retardation level. 42 Through other behavioral and developmental testing, Dr.

       Schmoyer also determined that Defendant is generally placed at the age of eight years

       and one month for his ability to do things. 43 On the scale for social communication and

       interaction, Dr. Schmoyer found Defendant to be placed at about six years and five

      months old. 44 However, Dr. Schmoyer testified that Defendant understood all directions

   he was given for the testing and was clearly understandable when he spoke. 45

             Defendant testified at trial that on the night of the incident, he went upstairs to

   sleep in his own room. At some point he was awakened when Chris came into his

  room.46 The two then went back downstairs and sat in the living room.47 Defendant

  admitted at trial that he put Chris's penis in his mouth and touched it that night while

  Chris was asleep.48 Defendant also admitted that Chris woke up and asked him to stop

  and he did not stop.49



. 39N.T. 121
 '0N.T. 120
 " N.T. 124-25
 42N.T.125-26
" N.T. 127
" N.T. 127
45 N.T. 129-30
'6 N.T. 138
47 N.T. 140
" N.T. 142
49 N.T. 143


                                                  6
                                                                              Circulated 11/06/2014 12:42 PM




                                            Discussion

                                      I. Motion to Suppress

          The Honorable President Judge Kevin A. Hess issued an opinion denying

   Defendant's Omnibus Pretrial Motion to suppress the statements the Defendant made

   to the State Police. This Opinion dated May 3, 2013, will be incorporated herein.

                                II. Sufficiency of the Evidence

         When reviewing the sufficiency of the evidence, all the evidence and reasonable

  inferences from that evidence are viewed in the light most favorable to the

  Commonwealth as verdict winner. Commonwealth v. Wilson, 825 A.2d 710,713 (Pa.

  Super. 2003). The jury, as the fact-finder, is free to believe "all, part or none" of the

  evidence presented to it. Id. at 713 (citing Commonwealth v. Krouse, 799 A.2d 835,

 838 (Pa. Super. 2002)). The question of reasonable doubt is also for the fact-finder,

 "unless the evidence be so weak and inconclusive that as a matter of law no probability

 of fact can be drawn[.J" Id. at 713 (internal citations omitted). It is also "well-established

 that 'the uncorroborated testimony of the complaining witness is sufficient to convict a

 defendant of sexual offenses.'" Commonwealth v. Castelhun, 889 A.2d 1228, 1232 (Pa.

 Super. 2005) (citing Commonwealth v. Bishop, 742 A.2d 178,189 (Pa. Super. 1990)).

       In order to prove IDSI, the Commonwealth must show that a defendant engaged

in deviate sexual intercourse with a complainant by forcible compulsion or with a

complainant who was unconscious or who was unaware that the sexual intercourse is

occurring. 18 Pa.C.S.A. § 3123(1), (3). The defendant must have known the victim

was unaware the intercourse was occurring or knew of or recklessly disregarded the

victim's unconsciousness. Id. A person recklessly disregards a victim's



                                              7
                                                                            Circulated 11/06/2014 12:42 PM




   unconsciousness by consciously disregarding a substantial and unjustifiable risk that

   the victim is unconscious. See 18 Pa.C.S.A. § 302(3). Deviate sexual intercourse is

   defined as "sexual intercourse per os or per anus between human beings." 18

   Pa.C.S.A. § 3101; see also Casthehun, 889 A.2d at 1232.

          In order to prove indecent assault, the Commonwealth must show that the

  defendant had indecent contact with the complainant or caused the complainant to have

  indecent contact with the defendant. 18 Pa.C.S.A. § 3126(a). The defendant must

  have caused the contact without the complainant's consent, by forcible compulsion, or

  by threat of forcible compulsion that would prevent resistance by a person of reasonable

  resolution. 18 Pa.C.S.A. § 3126(a)(1)-(3). In order to show indecent contact, the

  Commonwealth must establish that the defendant brought about a touching of the

 sexual or intimate parts of the body of the complainant for the purpose of arousing or

 gratifying his own or the complainant's sexual desire. 18 Pa.C.S.A. § 3126(a).

        At trial, the Defendant admitted to the jury that he touched Chris's penis and put

 it in his mouth while Chris was asleep. He also admitted that he did not stop when

 Chris asked him to. This was entirely consistent with Chris's testimony. While the jury

 heard that Defendant had developmental issues, the jury also heard that Defendant

could understand and follow directions and communicate clearly with others.

Additionally, the jury also heard that Chris had developmental issues and was

considerably younger than the Defendant. The jury also saw Defendant testify and

could evaluate his mental capacity for themselves. Based on Defendant's own

testimony, there was more than sufficient evidence for the jury to find Defendant guilty

beyond a reasonable doubt of both counts of Involuntary Deviate Sexual Intercourse.



                                            8
                                                                            Circulated 11/06/2014 12:42 PM




          There was also sufficient evidence for the jury to find Defendant guilty of the two

   counts of Indecent Assault. Again, Defendant admitted to touching Chris's genitals.

   Chris testified that at one point, Defendant pinned him down and threatened him and

   Chris was unable to get away. Additionally, Defendant told the officers that he did these

   acts because he "wanted to do something," from which the jury could infer that

  Defendant performed these acts to arouse or gratify his own sexual desire. There was

  more than sufficient evidence for the jury to find Defendant guilty of indecent assault by

  forcible compulsion and with lack of consent.

                                  III. Mandatory Sentence

         Defendant's final error complained of is that this Court erred when it gave

 Defendant a mandatory minimum sentence of 25 years incarceration based on

 Defendant's prior criminal conviction. This Court did not err.

        Defendant was sentenced to a mandatory minimum of 25 years for Count 1,

 based on 42 Pa.C.S.A. § 9718.2(a)(1), which calls for a 25 year mandatory minimum

 sentence when a defendant had been convicted of an offense listed in 42 Pa.C.S.A. §

 9799.14 (relating to sex crimes) at the time of the commission of the current offense.

As Defendant had such a prior conviction, he was sentenced to the mandatory

minimum, or 25 to 50 years' incarceration. Defendant argues that since his prior

conviction increased the penalty for the crime, it became an element of the offense and

should have been submitted to the jury. Therefore, Defendant argues the sentence

enhancement of 42 Pa.C.S.A. § 9718.2(a)(1) is unconstitutional.

       Defendant relies on the United States Supreme Court case Alleyne v. United

States, _ U.S. _,133 S. Ct. 2151 (2013). In that case, the Court held that facts that



                                            9
                                                                              Circulated 11/06/2014 12:42 PM




   increase a mandatory minimum sentence are elements and must be submilted to the

   jury and found beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2158. The Court

   stated that "[t]he touchstone for determining whether a fact must be found by a jury

   beyond a reasonable doubt is whether the fact constitutes an 'element' or 'ingredient' of

   the charged offense." Id. at 2158 (internal citations omilted)(emphasis added),

         In Alleyne, the Court was reviewing 18 U.S.C. § 924(c)(1)(A), which contained a

  tiered mandatory minimum sentence scheme for those defendants who used or carried

  a firearm while commilting a crime of violence. Under that sentencing system a

  defendant was given a mandatory minimum of five years if he used or carried a firearm,

  a minimum of seven years if he "brandished" a firearm, or a minimum of ten years if a

  firearm was discharged. 18 U.S.C. § 924(c)(1)(A)(i)-(iii), See also Alleyne, 133 S. Ct. at

 2155-56. The mandatory minimum sentence, therefore, was determined by how the

 defendant used the firearm during the commission of the current offense and it is clear

 how that sentencing system can be seen as an element of the charged offense.

        Alleyne is distinguishable in this malter, because the sentencing scheme at issue

 in this case is quite different. The statute at issue here, sentences for sexual offenders,

42 Pa.C.S.A. § 9718.2, states in relevant part:

                      Any person who is convicted in any court of this
              Commonwealth of an offense set forth in section 9799.14
              (relating to sexual offenses and tier system) shall, if at the
              time of the commission of the current offense the person had
              previously been convicted of an offense set forth in section
              9799.14 ... be sentenced to a minimum sentence of at least
              25 years of total confinement... (emphasis added).

42 Pa.C.S.A. § 9718.2(a)(1). The statute goes on to state that "[t]he provisions of this

section shall not be an element of the crime ... " 42 Pa.C.S.A. § 9718.2(c)(emphasis



                                            10
                                                                                  Circulated 11/06/2014 12:42 PM




         added). Whether Defendant had previously been convicted of a sexual offense is

         therefore not an "element" or "ingredient" of the charged offense. It should not be

         viewed as an element that needs to be decided by the jury beyond a reasonable doubt.

         Rather, Defendant's previous conviction for a stated sexual offense is a fact that is

         either contained within his criminal record or not and should be for the court to

         determine at sentencing. It should also be noted that a hearing process is available if

         Defendant contests any prior convictions that led to a mandatory minimum sentence

         under this section. See 42 Pa.C.S.A. § 9718.2(c).

               An examination of the Defendant's Cumberland County Probation file reveals the

     following:

     Date of Sentence         Offense                   Sentence              Tiero v
     12/17/85                 IDSI (F1) (2 counts)      5 - 10 Years SCI      Tier 3 Offense (d)(4)
                              18 Pa.C.S.A. § 3123
     "                        Indecent Assault (M2) (2                        Tier 1 Offense (b )(6)
                             counts)
                             18 Pa.C.S.A. §
                             3126(a)(1)
     "                       Corruption of Minors                            Tier 1 Offense (b )(8)
                             (M1)
                             18 Pa.C.S.A. §
                            6301 (a)(1 )(ii)
 10/15/96                   Indecent Assault (M1)      2 - 4 Years SCI       Tier 3 Offense (d)(8)
                            18 Pa.C.S.A. §
                            3126(a)(7)
 6/20100                    Indecent Assault (M2)      2 Y, - 5 Years        Tier 3 Offense (d)(8)
                            18 Pa.C.S.A. §             SCI
                           3126(a)(7)
"                          Corruption of Minors                              Tier 1 Offense (b )(8)
                           (M1)
                           18 Pa.C.S.A. §
                           6301 (a)(1 )(ii)




50   Tier based on 42 Pa.C.S.A. § 9799.14, Sexual Offenses and Tier System

                                                   11
                                                                              Circulated 11/06/2014 12:42 PM




   Based on this record, in reality the Defendant should have been sentenced to a term of

   life imprisonment under the provisions of 42 Pa.C.S.A. § 9718.2(a)(2). This did not

   happen because the Notice of Mandatory Sentence served on the Defendant prior to

   trial only requested the 25 year minimum required by 42 Pa.C.S.A. §9718.2(a)(1).

          Here, Defendant's argument is entirely implausible. Defendant is essentially

  arguing that the jury should have been informed during his trial for serious sexual

  offenses, that he had previously been convicted of very serious sexual offenses on

  three separate occasions. This is exactly the type of evidence that is kept from juries so

  that they do not make any judgments of guilt based on a defendant's prior actions. The

  sentences for sexual offenders' statute at issue here only deals with findings of previous

  convictions and is not evidence of the charged offense. A finding of a previous

 conviction is simply not the type of evidence that must be or should be submitted to a

 jury. The sentencing structure at issue in this matter is entirely distinguishable from the

 sentencing structure at issue in Alleyne and 42 Pa.C.S.A. § 9718.2 is not

 unconstitutional. This Court did not err in sentencing Defendant to a mandatory

 minimum sentence of 25 years based on his prior conviction of a sexual offense.

                                                 By the Court,




                                                 M. L. Ebert, Jr.,




District Attorney's Office

Aria Waller, Esquire
Attorney for Defendant


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  COMMON\VEALTH                                   IN THE COURT OF COMMON PLEAS OF
                                                  CUMBERLAND COUNTY, PENNSYLVANIA
                                                  CP-21 -CR.0346-20 12
         v.                                       CHARGES: (1) INVOLUNTARY DEVIATE
                                                                   SEXUAL INTERCOURSE
                                                               (2) INDECENT ASSAULT
                                                               (3) TERRORISTIC THREATS
                                                               (4) INDECENT ASSAULT
 ELMER GREEN                                  : AFFIANT:        TPR. KENNETH TALLMAN
  OTN: T 123942-0



                              IN RE: MOTION TO SUPPRESS

                                         ORDER

        AND NOW, this     3""   day of May, 2013, upon consideration of Defendant's

 Omnibus Pre-Trial Motion, and following a suppression hearing held April 4, 20 I 3,

 Defendant's motion is DENIED.

                                             BY THE COURT,



                                                       -/7      J
Emily Provencher, Esquire
                                                                                    (_.,
Assistant District Attorney                                                          "
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ArIa Waller, Esquire                                                            r
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Deputy Public Defender                                                          !              ..
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                                                                                Circulated 11/06/2014 12:42 PM




   COMMONWEALTH                                   IN THE COURT OF COMMON PLEAS OF
                                                  CUMBERLAND COUNTY, PENNSYLVANIA
                                                  CP-21-CR-0346-2012
            v.                                    CHARGES: (1) INVOLUNTARY DEVIATE
                                                                  SEXUAL INTERCOURSE
                                                             (2) INDECENT ASSAULT
                                                             (3) TERRORISTIC THREATS
                                                             (4) INDECENT ASSAULT

  ELMER GREEN                                   AFFIANT:        TPR. KENNETH TALLMAN
  OTN: T 123942-0



                             IN RE: MOTION TO SUPPRESS

                                   OPINION and ORDER


           For consideration at this time is Defendant's Omnibus Pretrial Motion.

 (Defendant's Omnibus Pretrial Motion, filed Aug. 17, 2012).         Subsequent to being

 interviewed by the Pennsylvania State Police, Elmer Charles Green (hereinafter,

 "Defendant") was charged with the above-captioned offenses. Defendant has filed the

 instant motion asserting that he was subject to a custodial interrogation without being

 informed of his Miranda rights and that he made inCUlpatory statements as a result of the

interrogation. Therefore, he contends that his rights under the 5 th Amendment to the

United States Constitution and under Article 1, Section 9 of the Pennsylvania

Constitution were violated and that all evidence obtained as a result of the alleged

violation should be suppressed. For the reasons that follow, Defendant's Motion will be

denied.

          A suppression hearing on Defendant's Motion was held on April 4, 2013. The

testimony established the following:
                                                                                 Circulated 11/06/2014 12:42 PM




           The Defendant's name had surfaced in a report of a sexual assault that Corporal

   Kenneth Tallman was investigating. (Notes of Testimony, 3-4, In Re: Transcript of

   Proceedings Omnibus Pretrial Motion, Apr 4, 2013 (hereinafter ''N.T.    _"».     This sexual

   assault was alleged to have occurred several years before it was reported and

  investigated. (N.T. 13-14). Corporal Tallman went to the Defendant's residence with

  Trooper Ben Wilson. (N.T. 4). The officers were in plain clothes. (N.T. 12). When

  Corporal Tallman and Trooper Wilson knocked on the door, two males answered the

  door and then brought the Defendant to the door. (N.T. 4). Immediately, the Defendant

  asked the officers if they were there because of his Megan's Law registration. (N.T. 4).

  The Defendant then told the officers that he had just registered. (N.T. 4). When the

 officers notified the Defendant that they were not there because of the registration, the

 Defendant stepped out onto the porch. (N.T. 5). Corporal Tallman testified that it was a

 cold day and that he did not think it would be suitable to interview the Defendant about

 the sensitive topic of a sexual assault in the home since there were multiple people living

 there. (N. T. 5-6). As a result, the officers asked the Defendant if he would speak to them

 in their car, an unmarked police car that did not contain a cage. (N.T. 5-6).

        Iuitially, the police car was parked in front of the Defendant's residence. (N.T.

8). The Defendant sat in the front passenger seat, Corporal Tallman sat in the driver's

seat, and Trooper Wilson sat in the back. (N. T. 6). The front passenger seat door was

unlocked, and, in any event, if locked, pulling on the handle would unlock it. (N.T. 6).

The Defendant got into the car under his own control and he was not frisked or

handcuffed before doing so. (N.T. 6-7). Corporal Tallman told the Defendant that he

was not under arrest and that the officers just wanted a few minutes of his time.



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           Around that time, the Defendant's sister approached and wanted to know what

   was going on. (N. T. 8). The Defendant's sister also stated that the Defendant already

  completed his Megan's Law registration. (N.T. 8). Trooper Wilson informed the

  Defendant's sister that they were not there in relation to the Megan's Law registration,

  that the Defendant was not under arrest, and that the Defendant would be retuming soon.

  (N. T. 8). Corporal Tallman drove the car halfway up the block to avoid any further

  interference from the Defendant's sister. (N.T.8-9).

          After parki.ng the car, COIporal Talhnan began to record his interview with the

 Defendant. Corporal Talhnan testified that it was not unusual for him to record an

 interview and that he records approximately 90% of the interviews that he conducts.

 (N.T. 13). The recording of the interview was played at the suppression hearing. (N.T.

 8-9).   In conjunction with playing the interview, Corporal Tallman testified that the

 Defendant was coherent during the interview and that he understood the questions, as

 demonstrated by the Defendant being able to recall details about the night that was the'

 subject of the interview. (N.T. 10-11). The Defendant was not arrested that day, the

Defendant was retumed home, and the entire encounter lasted approximately twenty

minutes. (N.T. 7-8, II).

         The Defendant's counsel presented testimony of psychologist, Dr. Wayne

Schmoyer. (N.T. 16). Dr. Schmoyer administered intelligence quotient (hereinafter "IQ")

and adaptive behavior tests to the Defendant. In doing so, Dr. Schmoyer was with the

Defendant for approximately two hours. (N.T. 17,21-22). Though the Defendant was 48

years old at the time Dr. Schmoyer tested him, Dr. Schmoyer testified that the

Defendant's performance was comparable to a six-year-old in terms of social



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   communication. (N.T. 19). Furthermore, Dr. Schmoyer testified that the full scale IQ

   score of the Defendant .was 65 and at the level of mental retardation. (N.T. 19). Dr.

  Schmoyer testified that the Defendant was coherent during the questioning, understood

  the instmctions for the various tests, and that he was not confused. (N.T. 22-23).

         The Defendant then took the stand and testified that he remembered speaking with

  the officers. (N. T. 24). The Defendant stated that the officers told him that he was free

  to leave and that he was not under arrest. (N.T. 24). However, the Defendant further

  testified that he did not actually feel like he could leave.      (N.T. 24).     On cross-

 examination, the Defendant then went on to restate that he was told that he was not under

 arrest, that he was free to leave, that he was not arrested, and that the officers returned

 him home. (N.T. 25-26).

          Defendant has been charged by way of a Criminal Information with the

 following: at Count I: Involuntary Deviate Sexual Intercourse, a violation of 18 Pa.C.S.A.

 Sec. 3l23(a)(J); at Count II: Indecent Assault, a violation of 18 Pa.C.S.A. Sec.

3 126(a)(2); at Count III: Tenoristic Threats, a violation of 18 Pa.C.S.A. Sec. 2706(a)(J);

and at Count IV: Indecent Assault, a violation of 18 Pa.CS.A. Sec. 3 I 26(a)(1).

        Defendant has filed the instant suppression motion asserting that he did not feel as

if he was free to leave when being interviewed in the police car, he was not informed of

his constitutional, Miranda, rights prior to the interview, that the he made inculpatory

statements, and that those statements violated the Defendant's rights under the 5t11

Ammendment to the United States Constitution and under Article I, Section 9 of the

Pennsylvania Constitution. We disagree.




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          Initially, we note the existence of the well-established burden placed upon the

   Conunonwealth in suppression matters to establish, by a preponderance of the evidence,

   that the challenged evidence is admissible. Commonwealth v. Joseph, 2011 Pa. Super.

   273, 34 A.3d 855, 860 (citing Commonwealth v. Simmons, 2011 Pa. Super. 43, 17 A.3d

  399, 402). Miranda wamings are required only when a suspect is subjected to custodial

  interrogation. Commonwealth. v. McAliley, 2007 Pa. Super. 55, 919 A.2d 272, 278. It is

  well established that, "a person is in custody for Miranda purposes only when he is

  physically denied his freedom of action in any significant way OJ is placed in a situation

  which he reasonably believes that his freedom of action or movement is restricted by the

  interrogation." Commonwealth v. Johnson, 42. A.3d 1017, 1028 (pa. 2012) (citations

 omitted). The standard in determining whether an encounter with the police is custodial

 is an objective one, with due consideration given to the reasonable impression of the

 person interrogated, rather than the subjective view of the troopers or the person being

 seized, and must be detennined with reference to the totality of the circumstances.

 Commonwealth v. Pakacki, 587 Pa. 511, 519, 901 A.2d 983, 987 (2006).

        In Commonwealth v. Housman, the defendant, under his own free will, entered the

front seat of a police car, which was unlocked and did not contain a cage. (604 Pa. 596,

625-26, 986 A.2d 822, 839 (2009). The defendant was then interviewed for 15 to 20

minutes before leaving the car and retuming home. Jd. Under those circumstances, the

Pennsylvania Supreme Court detennined that a reasonable person would not feel that he

was under arrest; thus, Miranda warnings were not required. Jd.

       Here, from the onset, Corporal Tallman and Trooper Wilson told the Defendant

he was not under arrest and that he was free to leave. In the presence of the Defendant,



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   the officers also infonned the Defendant's sister that the Defendant was not under arrest.

   The interview was conducted in the police car so that the alleged sexual assault would not

   be discussed in presence of the multiple people that were present at the Defendant's

  residence. As in Housman, the Defendant entered the front seat of the police car under

  his own free will, the car did not contain a cage, and the car was unlocked during the

  interview. In both Housman and in this case, the police interaction lasted approximately

  20 minutes before the Defendant returned home. In tlus instance, the police car was

  parked less than a block from the Defendant's residence when he was being interviewed.

  For these reasons, we find that a reasonable person in the Defendant's position would not

 feel that he was under arrest.

         The Defendant suggests that his below average intelligence overrides the

 surrounding circumstances including the fact that he was repeatedly told that he was free

 to leave.   Mental deficiencies, however, do not make one per se unable to waive

 constitutional rights.   Commonwealth v. Hicks, 466 Pa. 499, 505, 353 A.2d 803, 805

 (1976). The Defendant had a clear recollection of being instlUcted that he was not under

arrest and that he was free to leave.        Furthennore, the testimony reflects that the

Defendant was coherent during the interview and that he understood what was going on

during the interview.     Though the Defendant has below average mental ability, he

demonstrated an ability, as verified by Dr. Schmoyer, to comprehend instlUctions. We

find no reason to believe that the Defendant would not also be able to understand the

police instlUction that he was not under arrest and free to leave.




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         Accordingly, we find that the Defendant was not in custody and therefore was not

  entitled to being informed of his Miranda rights. As a result, the statements obtained by

 the officers will not be suppressed.

                                              ORDER

        AND NOW, this ~>1 day of May, 2013, upon consideration of Defendant's

 Omnibus Pre-Trial Motion, and following a suppression hearing held Apri14, 2013,

 Defendant's motion is DENIED.

                                              BY THE COURT,




Emily Provencher, Esquire
Assistant District Attorney

ArIa Waller, Esquire
Deputy Public Defender


:r1m




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