J-S75035-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TERRY LOUISE HOLMES,

                            Appellant                  No. 1394 EDA 2014


         Appeal from the Judgment of Sentence entered April 4, 2014,
            in the Court of Common Pleas of Montgomery County,
             Criminal Division, at No(s): CP-46-CR-0005569-2012


BEFORE: ALLEN, LAZARUS, and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.:                          FILED DECEMBER 01, 2014

        Terry Louise Holmes (“Appellant”) appeals from the judgment of

sentence imposed after the trial court convicted her of theft by unlawful

taking or disposition, theft by deception, receiving stolen property, unsworn

falsification to    authorities,    and securing execution of documents       by

deception.1 Appellant’s convictions arose from her tenant fraud relative to

her residence in public housing administered by the Montgomery County

Housing Authority (“MCHA”) and funded by the United States Department of

Housing and Urban Development (“HUD”).

        The trial court summarized the facts pertinent to this case as follows:

             In 2003, [Appellant] executed a Montgomery County
        Housing Authority Dwelling lease for 305 Linden Avenue, which
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1
    18 Pa.C.S.A. §§ 3921(a), 3922(a), 3925(a), 4904(a) and 4114(a).
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     is located within North Hills Manor. Id. at 21; Exh. C-5. She
     represented in the lease documents that the family members
     living at 305 Linden Avenue were herself and her daughters,
     Cassandra Holmes and Natasha Holmes.           Id. at 23.   She
     identified herself in the lease documents as the head of the
     household. Id. The lease, which was reviewed with [Appellant]
     when she signed it, included provisions regarding guests,
     overnight visitors, the procedures for adding an occupant to the
     residence and the effect any change in occupancy or occupant
     income may have on rental rates. Id. at 24-27; Exh. C-5, p. 5.

           [Appellant] subsequently executed annual recertifications
     that require tenants to provide information regarding the
     occupants of the household and their income(s). Id. at 31.
     Relevantly, she reported in 2008 that the occupants of 305
     Linden Avenue were herself, Cassandra Holmes and Natasha
     Holmes. Id. at 34. From 2009 through 2011, she identified
     herself and Natasha Holmes as the only occupants. Id. At no
     time did [Appellant] report that either her husband, Craig
     Holmes, Sr., or their son, Craig Holmes, Jr., resided at 305
     Linden Avenue. Id.

            Nevertheless, MCHA employee Valerie Yancey received an
     anonymous tip in her capacity as development manager at North
     Hills Manor that [Appellant] was in violation of her lease. Yancey
     worked in an office at 300 Linden Avenue, which is directly
     across the street from [Appellant’s] residence. Id. at 19. She
     often saw Holmes Sr. throughout the development and going in
     and out of the residence. Id. at 38. She saw him inside the
     residence during two maintenance visits. Id. at 36-38. In
     addition, for almost a year beginning in late 2010 Yancey saw
     Holmes Sr. leave the residence every Thursday and Friday
     shortly before 7:00 a.m. Id. at 40-41. Holmes Sr. would drive
     away in a vehicle often parked in front of the residence. Id. at
     42. Over that nearly year-long period, Yancey rode to work on
     Thursdays and Fridays with Fran Hibberd, an MCHA maintenance
     mechanic. Id. at 40-41. Hibberd, for his part, got to know
     Holmes Sr. from seeing him around North Hills Manor at least
     once a month and speaking with him both inside and outside the
     residence. Id. at 46-48.

           Yancey referred the anonymous tip to MCHA’s manager of
     public housing, Beth Wentzel. Id. at 53,55. A subsequent
     investigation by MCHA revealed that both Holmes Sr. and


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     Holmes Jr. were using 305 Linden Avenue as a mailing address.
     Id. at 56.

           The Office of Inspector General eventually joined the
     investigation on behalf of HUD. A check of PennDot records
     linked Holmes Sr. and Holmes Jr. to the 305 Linden Avenue
     residence.    (N.T., Suppression Hrg., 8/26/13, p. 10).  The
     registration for a vehicle in Holmes Sr.’s name bore the 305
     Linden Avenue address. Id. Holmes Sr., who worked for the
     U.S. Postal Service (“USPS”), listed 305 Linden Avenue as his
     address on a health benefits form received by his employer in
     January 2010. Id. at 11.

           Income records from the USPS showed that Holmes Sr.
     had reported gross earnings of $50,343.46 in 2008, $54,582.03
     in 2009, $43,072.28 in 2010 and $7,907.14 for the reported
     period of 2011.      (N.T., Trial, 8/26/13, pp. 71-72).     An
     investigation into Holmes Jr.’s employment status revealed that
     he had a couple of employers, with at least one of them having
     his address listed at 305 Linden Avenue. (N.T., Suppression
     Hrg., 8/26/13, p. 11).

            HUD Special Agent Danny Barbat-Gonce eventually paid a
     daytime visit to [Appellant] at 305 Linden Avenue on October
     14, 2011. (N.T., Trial, 8/26/13, p. 72). Barbat-Gonce began
     working as a HUD agent in 1991. She left that post around 1995
     to work for the Treasury Department, and returned to HUD in
     2003. (N.T., Suppression Hrg., 8/26/13, p. 8). Her duties
     include investigating fraud involving HUD programs. A “big part”
     of her job involves investigating tenant fraud, and she often has
     occasion to go out and speak to tenants about the make-up of
     their households. Id. at 8-9.

           On the day of the visit, Barbat-Gonce was dressed in plain
     clothes. Id. at 12-13. She had a badge and gun in her
     possession. Id. at 13. She was accompanied by HUD Agent
     Dennis Madarang, who also was in plain clothes and in
     possession of a badge and gun. Id. at 14, 19-20. The agents
     knocked on the front door of the residence and were greeted by
     [Appellant].  Id. at 14.      The agents identified themselves,
     showed [Appellant] their credentials and asked if they could
     speak with her about the certifications she had made to MCHA.
     Id.

          [Appellant] agreed and the three moved into the living
     room. Id. at 14. She sat on a chair while the agents sat on an

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      adjacent couch about five to ten feet away. Id. at 15-16.
      Barbat-Gonce advised [Appellant] that she did not have to
      answer any questions, that the interview was voluntary and that
      [Appellant] could ask the agents to leave. Id. at 32-33. The
      agent did not provide Miranda warnings because she did not
      believe the interview was custodial. Id. at 35-36. [Appellant]
      was not placed under arrest, nor was she handcuffed. She
      agreed to speak with the agents and Barbat-Gonce inquired how
      long [Appellant] had lived in the residence and with whom she
      resided.

             [Appellant] initially stated that only her daughter was
      living with her at the time. Id. at 17. When informed that
      driving and employment records linked her husband and son to
      the residence, [Appellant] admitted that her son had been living
      with her off and on and that Holmes Sr. had been there for the
      last five or six months. Id. at 17-18. The interview, which had a
      conversational tone, lasted about 15 minutes until [Appellant]
      terminated it and the agents left. Id. at 17-19.

            Based on the information [Appellant] repeatedly provided
      to MCHA, she was receiving $2.00 per month to live in the
      residence. (N.T., Trial, 8/26/13, p. 60). Her monthly rental was
      $50.00, but she received a $52 credit for utilities. Id. Had
      Holmes Sr.’s occupancy and income been reported to MCHA, the
      agency would have received at least $27,870 in rent during the
      relevant time period based on a flat rent calculation. Id. at 61.

Trial Court Opinion, 8/7/14, at 2-6 (footnotes omitted).

      On July 9, 2012, the Commonwealth charged Appellant with the

aforementioned crimes. Appellant filed a motion to suppress her statements

to the HUD agents.      On August 26, 2013, the trial court convened a

suppression hearing, after which it denied Appellant’s suppression motion.

The case proceeded to a bench trial, and the trial court rendered its guilty

verdicts. On April 4, 2014, the trial court sentenced Appellant to three (3)




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months to twenty three (23) months of incarceration. Appellant appealed.

Both the trial court and Appellant have complied with Pa.R.A.P. 1925.2

        Appellant presents two issues for our review:

        I.    Whether the trial court erred in denying [A]ppellant’s
        Motion to suppress statements where the court erroneously
        found that [A]ppellant was not in custody at the time of the
        interrogation by HUD agents?

        II.   Whether the trial court erred in finding [A]ppellant guilty of
        the charges as there was insufficient circumstantial evidence to
        support the finding of guilt in that no one could identify
        [A]ppellant’s husband or son as residents of the apartment
        [A]ppellant lived at with her daughters?

Appellant’s Brief a 4.

        In her first issue, Appellant contends that the trial court erred in

denying her suppression motion because she was subject to a custodial

detention when she met with the HUD agents, who improperly failed to give

her Miranda3 warnings.         Appellant specifically claims that “the HUD Agents,

with badges and loaded guns, arrived at the home residence of [A]ppellant

… and conducted an interrogation of [A]ppellant. The HUD Agents intended

to use any information gained from that interrogation against [A]ppellant,

and even confronted her with the evidence that they had found when she

____________________________________________


2
  Judge Silow presided over Appellant’s suppression motion and bench trial,
while Judge Demchick-Allow presided over Appellant’s sentencing. Because
Appellant challenges the guilt phase of her case and not her sentence, Judge
Silow authored the Pa.R.A.P. 1925(a) opinion.
3
    Miranda v. Arizona, 384 U.S. 436 (1966).



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initially denied that [her husband and son] lived at her house.” Appellant’s

Brief at 17.       Appellant further asserts, “When confronted under these

circumstances, it is reasonable to believe that [A]ppellant did not believe she

had a choice but to permit them to enter and answer their questions.” Id.

Upon review, we find Appellant’s assertion completely unavailing.

       Our standard of review of the trial court’s denial of a suppression

motion is as follows:

              An appellate court's standard of review in addressing a
       challenge to a trial court's denial of a suppression motion is
       limited to determining whether the factual findings are
       supported by the record and whether the legal conclusions
       drawn from those facts are correct. [Because] the prosecution
       prevailed in the suppression court, we may consider only the
       evidence of the prosecution 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 record supports the factual
       findings of the trial court, we are bound by those facts and may
       reverse only if the legal conclusions drawn therefrom are in
       error.

Commonwealth v. Reese, 31 A.3d 708, 721 (Pa. Super. 2011) (citations

omitted). Moreover, “[i]t is within the suppression court's sole province as

factfinder to pass on the credibility of witnesses and the weight to be given

to their testimony.     The suppression court is free to believe all, some or

none    of   the     evidence   presented   at   the   suppression   hearing.”

Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003)

(citations omitted).

       In Pennsylvania, there are three categories of interaction between the

police and members of the public:           1) mere encounters, which are

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characterized by the fact that the suspect has no official compulsion to stop

or respond to the police, and which need not be supported by any level of

suspicion; 2) investigative detentions, in which suspects are required to

stop and submit to a period of detention, but are not subject to such

coercive conditions to qualify as an arrest, and which must be supported by

reasonable suspicion; and 3) arrests, or custodial detentions, which must be

supported by probable cause. Commonwealth v. Astillero, 39 A.3d 353,

357-358 (Pa. Super. 2012) (emphasis supplied).

           To determine whether a mere encounter rises to the level
     of an investigatory detention, we must discern whether, as a
     matter of law, the police conducted a seizure of the person
     involved. To decide whether a seizure has occurred, a court
     must consider all the circumstances surrounding the encounter
     to determine whether the demeanor and conduct of the police
     would have communicated to a reasonable person that he or she
     was not free to decline the officer's request or otherwise
     terminate the encounter. Thus, the focal point of our inquiry
     must be whether, considering the circumstances surrounding the
     incident, a reasonable person innocent of any crime would have
     thought he was being restrained had he been in the defendant's
     shoes.

Commonwealth v. Collins, 950 A.2d 1041, 1046-1047 (Pa. Super. 2008)

quoting Commonwealth v. Reppert, 814 A.2d 1196, 1201–1202 (Pa.

Super. 2002). See also Commonwealth v. Au, 42 A.3d 1002, 1004 (Pa.

2012).

     “To determine whether a mere encounter rises to the level of an

investigatory detention, we must discern whether, as a matter of law, the

police conducted a seizure of the person involved.”    Collins, 950 A.2d at



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1046-1047. “To guide the crucial inquiry as to whether or not a seizure has

been effected, the United States Supreme Court has devised an objective

test entailing a determination of whether, in view of all surrounding

circumstances, a reasonable person would have believed that he was free to

leave.     In evaluating the circumstances, the focus is directed toward

whether, by means of physical force or show of authority, the citizen-

subject's movement has in some way been restrained.                In making this

determination,     courts   must     apply    the    totality-of-the-circumstances

approach, with no single factor dictating the ultimate conclusion as to

whether a seizure has occurred.” Commonwealth v. Strickler, 757 A.2d

884,     889–90   (Pa.   2000)   (internal   citations   and   footnotes   omitted).

“Examples of circumstances that might indicate a seizure, even where the

person did not attempt to leave, would be the threatening presence of

several officers, the display of a weapon by an officer, some physical

touching of the person of the citizen, or the use of language or tone of voice

indicating that compliance with the officer's request might by compelled.”

Commonwealth v. McClease, 750 A.2d 320, 324–25 (Pa. Super. 2000)

quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct.

1870, 64 L.Ed.2d 497 (1980)).

       Here, we find the trial court’s reasoning both accurate and persuasive:

             [Appellant] claims her statements to the HUD agents
       should have been suppressed because she was in custody at the
       time she made them. This vague claim leaves this court to


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     guess that [Appellant] means she should have received Miranda
     warnings prior to the interview with the HUD agents.

     Our Supreme Court has explained that:

       A person is in custody for Miranda purposes only when he
       is physically denied his freedom of action in any significant
       way or is placed in a situation in which he reasonably
       believes that his freedom of action or movement is
       restricted by the interrogation. The U.S. Supreme Court
       has elaborated that, in determining whether an individual
       was in custody, the ultimate inquiry is … whether there
       [was] a formal arrest or restraint on freedom of movement
       of the degree associated with a formal arrest.            The
       question of custody is an objective one, focusing on the
       totality of the circumstance, with due consideration given
       to the reasonable impression conveyed upon the person
       being questioned.

     Commonwealth v. Boczkowski, 846 A.2d 75, 90 (2004) (internal
     quotation marks, citations and footnote omitted).

        As detailed by the undersigned on the record at the
     suppression hearing, the evidence demonstrated that [Appellant]
     was not in custody during the in-home interview with HUD
     agents. More specifically,

       The interview was only 15 minutes, . . . the [Appellant]
       was advised that she didn’t have to answer the questions,
       yet she did.       [Appellant] was not handcuffed or
       transported anywhere else against her will, there were no
       threats or use of force at any time during the
       interrogation, the interview was conducted in a
       conversational tone and . . . the [Appellant], in fact,
       terminated the interrogation.

     (N.T., Suppression Hearing, 8/26/13, p. 47).         This court,
     therefore, correctly denied [Appellant’s] motion to suppress
     because, based on the totality of the circumstances, she was not
     in custody at the time she made the statements.

           In light of the evidence from the suppression hearing,
     [Appellant’s] reliance on Commonwealth v. Dewar, 674 A.2d 714
     (Pa. Super. 1996), was misplaced. There, the trial court granted
     the defendant’s motion to suppress statements made in his
     home to state police. The Superior Court stated that it was

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      “constrained to conclude that appellee was in ‘custody’ when
      questioned” due to a lack of evidence regarding the duration of
      the detention or whether his freedom of movement had been
      restricted. Id. at 717. Here, in contrast, the evidence from the
      suppression hearing demonstrated that the interview in
      [Appellant’s] home lasted only about 15 minutes, her freedom of
      movement was not restrained, she was informed that she did
      not have to answer questions, she ultimately terminated the
      interview and the HUD agents left without incident. Thus, Dewar
      provides [Appellant] with no relief.

             Rather,   this  case    bears   more      resemblance   to
      Commonwealth v. Busch, 713 A.2d 97 (Pa. Super. 1998).
      There, the Superior Court reversed a trial court’s decision to
      suppress un-Mirandized statements made by the defendant to
      two police detectives during questioning in his home. Id. at 102.
      The defendant, who was a suspect in a theft investigation, twice
      invited the detectives into his home when they arrived at his
      door. Id. at 101. The interviews occurred in the defendant’s
      living room. Id. Neither interview lasted more than a half-hour.
      Id. The defendant’s freedom of movement was not restricted.
      Id.    During the second interview, the defendant asked the
      officers to leave and they did. Id. The Superior Court found
      these circumstances did not require Miranda warnings. Id. at
      102. The circumstances in the instant case, similarly, do not
      compel a finding that [Appellant] was in custody when she spoke
      with the HUD agents.

Trial Court Opinion, 8/7/14, at 8-10.     The trial court, as the fact-finder,

further noted that “the evidence presented at trial amply demonstrated

[Appellant’s] guilt beyond a reasonable doubt, even had the statements not

been admitted.”    Id. at 9, n.11.     Accordingly, Appellant’s first issue is

meritless.

      In her second issue, Appellant argues that “there was insufficient

circumstantial evidence to support the finding of guilt in that no one could

identify [A]ppellant’s husband or son as residents of the apartment



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[A]ppellant lived at with her daughters.”          Appellant’s Brief at 18.       Again,

Appellant’s issue is utterly meritless.      In her one paragraph of argument,

Appellant fails to cite any legal authority, and simply reargues the evidence

submitted at trial.   Id.   It is well-settled that undeveloped claims will be

deemed     waived,    and   will   not     be     considered   on     appeal.       See

Commonwealth v. Tielsch,            934     A.2d    81,   93   (Pa.   Super.     2007);

Chapman-Rolle v. Rolle, 893 A.2d 770, 774 (Pa. Super. 2006); Pa.R.A.P.

2119(a).

      In the absence of our determination of waiver, the trial court

additionally determined that Appellant waived her sufficiency claim because

in her Pa.R.A.P. 1925(b) concise statement, Appellant “not only failed to

specify the elements she is challenging on appeal, but also which

conviction(s) she is challenging.” Trial Court Opinion, 8/7/14, at 10, citing

Commonwealth v. Garland, 63 A.3d 339 (Pa. Super. 2013).                         The trial

court also determined that “had [Appellant] preserved a challenge to the

sufficiency of the evidence, no relief would be due.”           Trial Court Opinion,

8/7/14, at 10-13.     Given the foregoing, we decline to address Appellant’s

sufficiency issue any further.

      In sum, Appellant’s issues do not warrant relief. We therefore affirm

her judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2014




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