J-S50040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DARNELL WHITE

                            Appellant               No. 2957 EDA 2014


               Appeal from the Judgment of Sentence July 8, 2014
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012882-2012


BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED DECEMBER 10, 2015

        Appellant Darnell White appeals from the judgment of sentence

entered following his open guilty plea to firearms not to be carried without a

license1 and possession of firearms prohibited.2    After careful review, we

affirm.

        We summarize the relevant facts and procedural history as follows.

On the afternoon of April 12, 2012, Appellant and his cohort, Hakeem

Burley, engaged in a gunfight with another individual, Shekinah Williams,

which resulted from a perceived insult uttered by Burley with respect to

Williams.    After the insult, Williams produced a 9 mm handgun and fired

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1
    18 Pa.C.S. § 6106(a)(1).
2
    18 Pa.C.S. § 6105(a)(1).
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eleven (11) shots at Appellant and Burley.            Appellant produced a 9 mm

handgun of his own and fired ten (10) shots at Williams. The firefight left

Burley with a bullet wound to the arm. Additionally, a bullet from Williams’

gun shot and killed Clarice Douglas, a 41-year-old innocent bystander.

        The night of the gunfight, a confidential informant told police that

Appellant had been involved in the shooting. Later, at approximately 7:30

p.m. on May 9, 2012, police located Appellant and transported him to the

homicide unit at police headquarters for an interview.            After waiving his

Miranda3 rights, Appellant spoke with police and ultimately remained in the

interview room that evening and throughout the following day. 4                  At

approximately 7:00 p.m. on the evening of May 10, 2012, Appellant again

waived his Miranda rights and gave a statement wherein he admitted his

possession of the 9 mm gun and his involvement in the firefight, although he

explained he had not killed anyone.              Police released Appellant after he

provided the statement.

        Police arrested Appellant in October 2012 on gun charges stemming

from the firefight.      On July 18, 2013, Appellant filed a motion seeking

suppression of his statements made to police on May 9-10, 2012, which he



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3
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
4
  Appellant was not handcuffed, and was allowed to sleep, eat, drink, and go
to the bathroom upon request.



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claimed were involuntary. The suppression court conducted a hearing and

denied Appellant’s motion on August 22, 2013.

       On March 24, 2014, Appellant entered an open guilty plea to firearms

not to be carried without a license and possession of firearms prohibited

subject to an agreement between Appellant and the Commonwealth that

Appellant would be allowed to challenge the denial of his suppression motion

on direct appeal.      On July 8, 2013, the trial court sentenced Appellant to

three (3) to six (6) years of incarceration on the firearms not to be carried

without a license conviction, followed by two (2) years of probation on the

possession of firearms prohibited conviction.

       On July 16, 2014, Appellant filed a post-sentence motion for

reconsideration of sentence, which the trial court denied on October 2, 2014.

Appellant filed a notice of appeal on October 9, 2014. Appellant and the trial

court complied with Pa.R.A.P. 1925.5

       Appellant raises the following issues for our review:

       A. Did the suppression court improperly deny [Appellant’s]
       motion to suppress his inculpatory statements where the
       detectives unnecessarily delayed his arraignment following his
       arrest to conduct unnecessary investigation and extended his
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5
  The certified record contains two Pa.R.A.P. 1925(a) opinions: one filed by
the trial court judge on February 2, 2015 (“trial court 1925(a) opinion”), and
a second filed by the suppression court judge on March 16, 2015
(“suppression court 1925(a) opinion”) in response to the trial court’s
December 12, 2014 request that the suppression judge file a separate
Pa.R.A.P. 1925(a) opinion addressing the suppression motion, the hearing
on the motion, and the resulting order.



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      detention for   the   sole   purpose   of obtaining   incriminating
      statements?

      B. Did the suppression court improperly deny [Appellant’s]
      motion to suppress his inculpatory statements where police
      arrested him without a warrant and without probable cause, and
      detained him in the homicide unit overnight?

Appellant’s Brief, pp. 2-3 (all capitals removed).

      Both of Appellant’s claims concern alleged error regarding the

suppression court’s ruling. This Court’s well-settled standard of review of a

denial of a motion to suppress evidence is as follows:

      [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. 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, [the appellate court
      is] bound by [those] findings and may reverse only if the 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 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 []
      plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.2010) (internal citations

and quotation marks omitted).

      Appellant first claims that improper police interrogation tactics,

specifically detaining him at the police station for over 24 hours without




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arrest, coerced him into confessing involuntarily. See Appellant’s Brief, pp.

13-27. He is incorrect.

             When a court is called upon to determine whether a
      confession is voluntary and, hence, admissible at trial, it
      examines the totality of the circumstances surrounding the
      confession to ascertain whether it is the product of an essentially
      free and unconstrained choice by its maker. In making this
      inquiry, a court is not concerned with the issue of whether the
      substance of the confession is true.         Rather, a court is
      constrained to examine only whether an individual’s confession
      was the product of coercion, duress, or the use of other
      measures by interrogators deliberately calculated to overcome
      his or her free will.

Commonwealth v. Smith, 85 A.3d 530, 537-38 (Pa.Super.2014). “By the

same token, the law does not require the coddling of those accused of crime.

One such need not be protected against his own innate desire to unburden

himself.”   Commonwealth v. Templin, 795 A.2d 959, 966 (Pa.2002)

(quoting Commonwealth v. Graham, 182 A.2d 727, 730–31 (Pa.1962)).

      As our Supreme Court has explained:

      The mere fact that there is some passage of time between when
      an accused is arrested and when he or she gives an inculpatory
      statement does not constitute grounds for suppression of the
      statement. Numerous factors should be considered under a
      totality of the circumstances test to determine whether a
      statement was freely and voluntarily made: the means and
      duration of the interrogation, including whether questioning was
      repeated, prolonged, or accompanied by physical abuse or
      threats thereof; the length of the accused’s detention prior to
      the confession; whether the accused was advised of his or her
      constitutional rights; the attitude exhibited by the police during
      the interrogation; the accused’s physical and psychological state,
      including whether he or she was injured, ill, drugged, or
      intoxicated; the conditions attendant to the detention, including
      whether the accused was deprived of food, drink, sleep, or


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       medical attention; the age, education, and intelligence of the
       accused; the experience of the accused with law enforcement
       and the criminal justice system; and any other factors which
       might serve to drain one’s powers of resistance to suggestion
       and coercion.

Commonwealth v. Martin, 101 A.3d 706, 724-25 (Pa.2014), cert. denied

sub   nom.     Martin     v.   Pennsylvania,          136   S.Ct.    201   (2015)    (citing

Commonwealth v. Perez, 845 A.2d 779, 785-787 (Pa.2004)) (internal

citations omitted).

       “The Commonwealth has the burden of proving by a preponderance of

the evidence that the defendant confessed voluntarily.” Commonwealth v.

Harrell, 65 A.3d 420, 434 (Pa.Super.2013), appeal denied, 101 A.3d 785

(Pa.2014).     “The determination of whether a confession is voluntary is a

conclusion     of   law   and,    as    such,    is    subject      to   plenary    review.”

Commonwealth v. Roberts, 969 A.2d 594, 599 (Pa.Super.2009).

       The suppression court summarized the suppression hearing evidence

as follows:

              The Commonwealth called as their only witness Detective
       Philip Nordo[6] who testified regarding his investigation of the
       homicide of Clarice Douglass which occurred on April 20, 2012.
       Detective Nordo interviewed [Appellant] based upon information
       that he had received that [Appellant] had been involved in a
       gunfight which led to the victim’s death. He was placed in an
       interview room at approximately 7:30 p.m. on May 9, 2012.
____________________________________________


6
   The suppression court “determined Detective Nordo’s testimony to be
credible and consistent throughout both direct and cross-examination and no
bias or prejudice was elicited which would bring any aspect of his testimony
into doubt.” Suppression Court Opinion, p. 5.



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           According to Detective Nordo, he advised [Appellant] of his
     Miranda rights and began interviewing him within an hour of his
     arrival.    [Appellant] volunteered information about his
     whereabouts at the time of the incident and the names of others
     involved.    Detective Nordo then worked on an unrelated
     homicide investigation and also attempted to verify the
     information that [Appellant] had initially provided, none of which
     he was able to substantiate.

           Detective Nordo returned his attention back to [Appellant]
     at approximately 11:30 p.m. At that time, [Appellant] provided
     no further information to either Det. Nordo or his partner, other
     than stating he felt nervous. [Appellant] then stayed the night
     in the interview room. [Appellant] was not handcuffed and the
     door was not locked.

            Detective Nordo and his partner, Detective Jenkins, after
     further investigating the homicide returned the next day to meet
     with [Appellant]. They again gave [Appellant] his Miranda
     rights and resumed the interview process with him in the early
     evening. At this point, [Appellant] voluntarily provided further
     information which resulted in a 15-page formal statement signed
     by [Appellant] on May 10, 2012. The statement was provided to
     the officers after [Appellant] had spent approximately 24 hours
     in police custody.

           In his statement, [Appellant] acknowledged that he had
     been given and understood his constitutional rights. He also
     acknowledged that he had been given food, the ability to use the
     bathroom and had been permitted to sleep while there.
     [Appellant] also acknowledged that he has not been promised
     anything in return for or coerced by the officers in giving his
     statement. The detectives did inform him that if he possessed a
     gun, he could be charged for that crime.          In regard to
     [Appellant’s] unsubstantiated statements from May 9, 2012,
     [Appellant] admitted to Det. Nordo that he had not wanted to be
     involved and was nervous.

            Once the interview was completed and the statement
     finalized, [Appellant] was given the opportunity to review his
     answers, which he did, and he then signed every page of the
     statement.    [Appellant] also signed a non-consent form for
     having his interview video or audio recorded.

           On cross-examination, Detective Nordo testified that the
     decision to hold a witness in custody who was initially untruthful

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     is made by the investigator, in this case him, along with the
     district attorney’s office while other investigation is performed in
     order to pinpoint [a] defendant’s whereabouts and actions at the
     time of the crime. This particular investigation took time due to
     the detectives’ heavy workload involving multiple crimes during
     that time frame.

           From the time of the crime occurring and the interviewing
     of witnesses, the detectives had received information about
     [Appellant’s] involvement in the shooting, his name, and the
     house where he had been hiding at the time. Detective Nordo
     confirmed that there were three witnesses that provided
     information to the police regarding [Appellant]. Two witnesses,
     Michelle Richardson and April Brown, had provided written
     statements and the third witness was a confidential informant.
     Ms. Richardson and Ms. Brown both identified [Appellant] in a
     photograph. Further, Ms. Brown stated that [Appellant] was an
     associate of another victim of the shooting, however, neither
     woman placed [Appellant] at the scene of the crime.

           The other shooting victim, Hakeem Burley, also gave a
     statement to police relating that he had possessed the .45
     caliber handgun that was found at the scene, but he did not fire
     it. This statement was corroborated by a ballistics report which
     determined that the 21 shell casings found at the scene were
     from two different 9 millimeter firearms, not a .45 caliber. It
     was the confidential informant however, that had provided
     information to Officer Lai, who later, along with his partner,
     Officer Dougherty, found [Appellant] and brought him to the
     station for questioning.

           Detective Nordo testified that [Appellant] was not
     handcuffed at any point during the interview process. While he
     was in the interview room for the approximately 24 hour period,
     he was free to exit and use the bathroom, but did have to ask
     permission of the officers in order to escort him to and from.
     Detective Nordo did take possession of [Appellant’s] cellphone as
     it was not permitted in the interview room.

          [Appellant] had not been placed under arrest on May 9,
     2012 or even on the following day, as the detectives did not
     have sufficient evidence to charge him with homicide, despite
     him having implicated himself in the shooting. By 11:30 p.m. on
     May 9, 2012, when the detectives went home, [Appellant] had
     not been given any food or water that that point, as Detective


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      Nordo testified it would have been recorded if [Appellant] had
      asked for food or water. A chronology of the detention was not
      kept and it was not requested by the district attorney, as
      [Appellant] was only held for 24 hours which does not require a
      chronology. When Detective Nordo spoke again with [Appellant]
      on the evening of May 10, 2012, at no point did he indicate that
      [he] had been deprived of food or bathroom access. [Appellant]
      was also fed at that time.

Suppression Court Opinion, pp. 2-5 (record citations and footnote omitted).

      Based on this evidence, the suppression court concluded that, under

these circumstances “[t]he interrogation in and of itself was not overbearing,

relentless or in any way coercive.”         Suppression Court Opinion, p. 7.

Further, the suppression court elaborated:

            The evidence fails to show any other factors, aside from
      time, for this [c]ourt to consider in order to conclude, by a
      preponderance of the evidence, that the statement was
      involuntarily coerced.    [Appellant] was aware he was being
      questioned in regard to a shooting. He was twice given his
      Miranda warnings, which he expressly agreed to waive. His
      statement cannot be said to have been anything other than
      knowing, intelligent, and voluntary.

Suppression Court Opinion, pp. 7-8.

      Our review of the record confirms the evidence supports the

suppression court’s factual findings.   Further, the suppression court’s legal

conclusions drawn from those facts are correct. Accordingly, Appellant’s first

claim fails.

      In his second claim, Appellant forwards the alternative argument that

his detention by police amounted to an arrest affected without warrant or

probable cause, and was therefore illegal. See Appellant’s Brief, pp. 27-35.


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Appellant argues that his statements should have been suppressed as fruit

of the poisonous tree of this illegal arrest. Id. Appellant did not previously

raise this claim in his motion to suppress or at the suppression hearing.

Accordingly, it is waived.       See Pa.R.A.P. 302(a) (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”);

Commonwealth v. Colavita, 993 A.2d 874, 891 (Pa.2010) (“[The

Pennsylvania Supreme] Court has consistently held that an appellate court

cannot reverse a trial court judgment on a basis that was not properly raised

and preserved by the parties.”).7

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/2015




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7
  Appellant also failed to raise this alternative suppression theory in his
Pa.R.A.P. 1925(b) statement. See Appellant’s Pa.R.A.P. 1925(b) Statement;
see also Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa.2005) (issues
not raised in 1925(b) Statements will be deemed waived).



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