J-S79010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WYDELL M. BRONSON                          :
                                               :
                       Appellant               :   No. 1226 EDA 2017

           Appeal from the Judgment of Sentence February 21, 2017
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0007168-2015


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                   FILED MARCH 06, 2018

        Wydell M. Bronson appeals from the judgment of sentence imposed on

February 21, 2017, in the Court of Common Pleas of Delaware County

following his conviction by a jury on charges of aggravated assault (two

counts), conspiracy to commit aggravated assault, and possession of an

instrument of crime.1        Bronson received an aggregate sentence of 14-28

years’ incarceration. In this timely appeal, Bronson raises four issues. He

claims: (1) there was insufficient evidence to support his convictions, (2) the

convictions were against the weight of the evidence, (3) the trial court erred

in granting the Commonwealth’s motion in limine forbidding the use of crimen

falsi convictions to impeach certain Commonwealth witnesses, and (4) the trial


____________________________________________


1   18 Pa.C.S. §§ 2702(a)(1), 903, and 907(a), respectively.
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court erred in failing to suppress a statement Bronson gave to the police

without having been read his Miranda2 rights.          Although we agree with

Bronson regarding the last issue, we find harmless error and affirm the

judgment of sentence.

        The history of this incident is as follows. In September, 2015, Randi

Jackson, Wayne Carrington and Matt Jeffries3 were at the Waterford Inn, a

bar/restaurant located in Upper Darby, Pennsylvania. While they were there,

Bronson, co-defendant Christopher Lugowski4 and Shatanya Miller also

entered the bar. At closing time, approximately 2:00 a.m., Miller and Jackson

got into an altercation during which the two women traded punches and

eventually rolled down a steep incline just outside the bar. At some point,

Lugowski allegedly punched Jackson as well. The women were separated and

the parties went their respective ways prior to the arrival or involvement of

the police.5


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2   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct 1602, 16 L.Ed.2d 694 (1966).

3   Mr. Jeffries was also referred to by his stage name, Matt Black.

4 Prior to trial, Lugowski pleaded guilty to charges related to this crime. See
Trial Court Opinion, 7/18/2017 at 1, n.1. His statement to the police and text
messages between his phone and Bronson’s were excluded from Bronson’s
trial. The substance of the statement and text messages are not part of this
certified record and play no part in our resolution of this matter.

5 There was testimony that sirens were heard approaching the scene, but as
the participants left the scene, it is not clear if those sirens had anything to
do with the fight or were in response to an unrelated incident. See N.T. Trial,
12/13/2016 at 99.

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      Approximately one month later, on October 16, 2015, both groups of

people once again found themselves at the Waterford Inn. The groups were

sitting at opposite ends of the bar. Miller blew kisses toward Jackson a number

of times.   Near closing time, Miller went to the rest room while Lugowski

waited outside for her.    Carrington followed and told Lugowski he did not

appreciate how Lugowski had hit Jackson in the prior altercation. Lugowski

attempted to hit Carrington. Carrington struck Lugowski, knocking him to the

ground. Bronson, Miller and Lugowski then left the scene in a white four-door

sedan; the same vehicle they had been seen in at the prior incident.

      Carrington, Jeffries and Jackson all stayed at the Waterford Inn to help

the bartender, a friend of theirs, close up. At approximately 4:00 a.m., Jeffries

held open one of the doors to allow Carrington to exit and take out some trash.

At that time, from behind some bushes across the street, several shots were

fired, Carrington was struck in the leg, and one of the bullets went into the

door and struck Jackson, who was sitting down, in the abdomen. Jeffries fell

to the ground and was not shot. He did, however, see a figure he identified

as Bronson leave the area of the bushes where the shots had come from, and

get into the same white car that had taken Miller, Bronson, and Lugowski away

earlier that morning. Carrington identified Lugowski as the driver of the car.

      At approximately 7:00 p.m. that day, more than 15 hours after the

shooting, the police arrested Bronson at his place of employment, a




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restaurant.6 The police also seized Bronson’s cell phone, which was in the

office, charging. Investigating the scene of the crime, the police found bullet

fragments and spent .223 caliber shell casings, some of which were found in

the bushes across the street from the Waterford Inn. The .223 caliber casings

are associated with assault weapons.7 Approximately 30 to 45 minutes after

Bronson was taken to the police station, Detective Thomas Thompson asked

Bronson where the gun was. Detective Thompson testified at the suppression

hearing held immediately prior to trial, that Bronson said he would call his

father to have the gun brought in. Bronson had not, at any time prior to this

limited questioning, been read his Miranda rights.       The gun was never

located.

       Relevant to this appeal, the Commonwealth filed a motion in limine

seeking to prevent Bronson from impeaching Carrington, Jeffries and Jackson

with prior convictions. Bronson filed a motion to suppress the statement given

____________________________________________


6Police also interviewed other patrons of the Waterford Inn who indicated they
had witnessed an altercation between the victims and a group of people
wearing clothing from the same restaurant Bronson worked at. Both Lugowski
and Jackson also worked at that restaurant. See N.T. Trial, 12/15/2016 at
11.

7  The police also located two spent 5.56 mm NATO cartridges. 5.56
millimeters converts to approximately .218 inches, making them similar to the
.223 caliber cartridges found. Both calibers of ammunition can be fired from
either caliber of weapon, although it is not recommended to fire 5.56 mm
ammunition from a .223 caliber weapon. See N.T. Trial, 12/14/2016 at 79-
80.




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to the police regarding the phone call to his father and the gun. The trial court

granted the Commonwealth’s motion in limine and denied Bronson’s motion

to suppress.

       Before we engage in a substantive analysis of the issues, we first note

that Bronson’s challenges to the sufficiency and weight of the evidence have

not been properly preserved. The challenge to the sufficiency of the evidence

was not included in Bronson’s Pa.R.A.P. 1925(b) statement, thereby waiving

that issue.8 Additionally, Bronson did not challenge the weight of the evidence

in either a pre-sentence motion or written post-sentence motion as required

by Pa.R.Crim.P. 607(A)(1)-(3).9 Therefore, we will not address either of those

claims.

       The first substantive issue we will address is Bronson’s claim that the

trial court erred in granting the Commonwealth’s motion in limine regarding

the prior convictions of the Commonwealth’s main witnesses.

       Our standard of review is as follows.

       The determination of the scope and limits of cross-examination
       are within the discretion of the trial court, and we cannot reverse
       those findings absent a clear abuse of discretion or an error of
       law. Commonwealth v. Nolen, 535 Pa. 77, 82, 634 A.2d 192,

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8  See Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005)
(superseded by Rule on other grounds) (any issues not raised in Pa.R.A.P.
1925(b) statement will be deemed waived).

9 See Commonwealth v. Kinney, 157 A.3d 968, 972 (Pa. Super. 2017)
(pursuant to Pa.R.Crim.P. 607, a challenge to the weight of the evidence must
be raised with the trial judge or it will be waived).


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        195 (1993). Evidence of prior convictions may be introduced for
        the purpose of impeaching the credibility of a witness if

          the conviction was for an offense involving dishonesty or false
          statement, and the date of conviction or the last day of
          confinement is within ten years of the trial date. If a period
          of greater than ten years has expired the presiding judge
          must determine whether the value of the evidence
          substantially outweighs its prejudicial effect.

        Commonwealth v. Randall, 515 Pa. 410, 415, 528 A.2d 1326,
        1329 (1987).

Commonwealth v. Brown, 673 A.2d 975, 978 (Pa. Super. 1996).10

        Each of the Commonwealth’s witnesses in question, Carrington, Jeffries

and Jackson, had prior convictions. It is the burden of the party seeking to

introduce the crimes to demonstrate the crimes at issue represent crimen

falsi. See Commonwealth v. Davis, 17 A.3d 390, 396 (Pa. Super. 2011).

        Carrington pled guilty to simple assault and possession of a controlled

substance in 2010. While these conviction were clearly within the ten year

limit, neither of these crimes represent crimen falsi. Accordingly, we find no

error in excluding impeachment of Carrington based on these convictions.

        In 1990, Jeffries pled guilty to forgery and was convicted of third degree

murder. In 2005, he was convicted of failing to provide identification to police

in Virginia. Third degree murder is not crimen falsi. The trial court noted that

Bronson failed to demonstrate that the Virginia crime represented crimen falsi

and did not provide the court with the elements of that crime, making analysis

of the crime impossible. Forgery is clearly crimen falsi. However, Jeffries’

____________________________________________


10   See also Pa.R.E. 609.

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conviction for that crime was more than 25 years before the date of the instant

trial. In denying Bronson the use of this crime, the trial court noted that the

crime was not repeated and there was no demonstration of record indicating

such dishonesty was a habit with Jeffries. Accordingly, we find no error in the

trial court excluding these crimes from use as impeachment.

      Finally, Jackson was convicted of retail theft, a crimen falsi, in 1998.

This conviction was 18 years prior to trial.     As with Jeffries’ conviction for

forgery, the trial court reasoned that, given the gap between conviction and

the instant trial, and the fact that there was no evidence of record indicting a

habit of dishonesty, the conviction was irrelevant for impeachment purposes.

Once again, we find no error in that determination.

      In light of the foregoing, Bronson is not entitled to relief on this issue.

      In his final issue, Bronson argues the trial court erred in failing to

suppress the non-Mirandized statement given to the police regarding the

possible location of the gun.

      Our standard of review for the denial of a motion to suppress evidence

is well settled.

         [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]


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        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, 121 A.3d 524, 526-27 (Pa. Super.
      2015) (citation omitted).
      Additionally, the Pennsylvania Supreme Court has ruled that when
      reviewing a motion to suppress evidence, we may not look beyond
      the suppression record. See In re L.J., 622 Pa. 126, 79 A.3d 1073
      (2013).

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017).

      The shooting in this matter took place at approximately 4:00 a.m. The

caliber of shell casings found at the scene indicated an assault rifle type

weapon had been used. Approximately 18 hours later, at 8:00 p.m., which is

also approximately ½ to ¾ of an hour after being taken into custody, Detective

Thompson interviewed Bronson without first providing Bronson with his

Miranda rights. Detective Thompson testified that the sole subject of the

interview was the location of the weapon. Both the Commonwealth and the

trial court assert that this questioning was allowable under the public safety

doctrine, which permits a limited inquiry of a suspect, without Miranda

warnings, in order to prevent an immediate harm.

      Both the Commonwealth and the trial court cite New York v. Quarles,

104 S.Ct. 2626 (1984) and Commonwealth v. Bowers, 583 A.2d 1165 (Pa.

Super. 1990) in support of their analysis. The Commonwealth additionally

relies upon Commonwealth v. Sepulveda, 885 A.2d 783 (Pa. Super. 2004)


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and Commonwealth v. Stewart, 740 A.2d 712 (Pa. Super. 1999).                 Our

review of the certified record and case law leads us to conclude this analysis

and reliance are in error.

       The public safety exception is a narrowly tailored exception to the

requirement that before a person is subjected to a custodial interrogation, that

person must be informed of his or her Miranda rights.         The public safety

exception was announced in Quarles, supra. The United States Supreme

Court, in a divided decision,11 held that under limited circumstances, Miranda

warnings were not required. In Quarels, a rape suspect fled into a nearby

supermarket immediately following the crime. The victim also informed the

police officers that the suspect was carrying a gun.      Officers entered the

supermarket and located the suspect, who attempted to flee. Officers briefly

lost sight of him. When he was located, he was apprehended and frisked. The

police found an empty shoulder holster. One of the officers asked Quarles

where the gun was and he nodded his head toward some boxes and replied

“the gun is over there.” Id. 104 S.Ct. at 2627. In explaining the public safety

exception, the majority stated:

       The police in this case, in the very act of apprehending a suspect,
       were confronted with the immediate necessity of ascertaining the
       whereabouts of a gun which they had every reason to believe the
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11 Justice Rehnquist delivered the majority opinion.    Justice O’Connor,
concurred in part and dissented in part. She disagreed with the creation of
the public safety exception, but would not have suppressed the non-
testimonial evidence derived from the interrogation.    Justices Marshall,
Brennan and Stevens dissented.

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      suspect had just removed from his empty holster and discarded
      in the supermarket. So long as the gun was concealed somewhere
      in the supermarket, with its actual whereabouts unknown, it
      obviously posed more than one danger to the public safety: an
      accomplice might make use of it, a customer or employee might
      later come upon it.

      In such a situation, if the police are required to recite the familiar
      Miranda warnings before asking the whereabouts of the gun,
      suspects in Quarles’ position might well be deterred from
      responding. Procedural safeguards which deter a suspect from
      responding were deemed acceptable in Miranda in order to
      protect the Fifth Amendment privilege; when the primary social
      cost of those added protections is the possibility of fewer
      convictions, the Miranda majority was willing to bear that cost.
      Here, had Miranda warnings deterred Quarles from responding
      to Officer Kraft’s question about the whereabouts of the gun, the
      cost would have been something more than merely the failure to
      obtain evidence useful in convicting Quarles. Officer Kraft needed
      an answer to his question not simply to make his case against
      Quarles but to insure that further danger to the public did not
      result from the concealment of the gun in a public area.

New York v. Quarles, 104 S.Ct. at 2632.

      Justice Rehnquist further reasoned,

      We decline to place officers such as Officer Kraft in the untenable
      position of having to consider, often in seconds, whether it best
      serves society for them to ask the necessary questions without
      the Miranda warnings and render whatever probative evidence
      they uncover inadmissible, or for them to give the warning in order
      to preserve the admissibility of evidence they might uncover but
      possibly damage or destroy their ability to obtain that evidence
      and neutralize the volatile situation confronting them.

Id.

      A central aspect of this reasoning is the immediate nature of the

situation, one in which a police officer has limited time, perhaps seconds, to

determine a course of action and attempt to retrieve some instrument, usually


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a weapon, that may place the public in jeopardy. The necessity of exigency

of the situation is demonstrated in all of the cases cited by both the trial court

and the Commonwealth.

      In Commonwealth v. Bowers, supra, Bowers used a shotgun to

seriously injure a neighbor. He then fled into his home. By the time the police

arrived, only a short time later, Bowers had fled to a next door abandoned

home, where he was found hiding on the third floor. However, the shotgun

was not immediately located. After apprehension, Bowers was asked where

the gun was and after being asked several times, told the police where he had

hidden the weapon. A panel of our Court reasoned,

      In the instant case, the police were aware that appellant had just
      shot a young woman; and when they arrived at the scene of the
      shooting, they observed the presence of appellant’s two
      granddaughters and their friend in appellant's house. When the
      police could not find appellant in his own house, they proceeded
      to search the abandoned house next door. There they found
      appellant, but did not find his gun. Under these circumstances,
      the police, in the interest of public safety, could properly act
      promptly to ascertain the location of the gun without first
      informing appellant of his Miranda rights. Until found, that gun
      presented a threat not only to appellant's grandchildren, but also
      to any other children who unwittingly might have come upon the
      gun after venturing into the abandoned house. Therefore,
      appellant's responses to police inquiries regarding the gun’s
      location were not subject to suppression and were properly
      admitted into evidence at trial.

Id. at 1171-72.

      In Commonwealth v. Sepulvada, supra, the police were called to a

scene where witnesses had viewed an assault and gunshots had been heard.

The police believed they were investigating a situation of domestic violence.

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When they arrived, they saw blood on the porch of the house and damaged

property.   When they arrested the suspect, believing a woman had been

injured in the assault, and, given the physical evidence, believing she would

likely be in need of medical attention, asked Sepulveda where the woman was.

He responded there was no woman, he had killed them and they were in the

basement. The statement led the police to find multiple murder victims in the

basement.    The specific reasoning of the Pennsylvania Supreme Court in

allowing the introduction of the statement is remarkably similar to that of

Quarles and Bowers.

     However, we also agree with the trial court that overriding
     considerations of public safety justified Trooper Tretter's failure to
     provide Appellant with Miranda warnings before asking him the
     limited question regarding the woman's whereabouts while
     Appellant was in the patrol car. Based on the call from Appellant's
     neighbor, Trooper Tretter and Trooper Rutter believed that they
     were responding to a violent domestic dispute. When they arrived
     at the scene, the troopers not only observed damaged property,
     but also saw blood on the neighbor's front door, on a jacket left in
     the yard, and on the door of Appellant's residence. The troopers
     then received a confusing account of events from Appellant. Given
     these circumstances, the troopers could not be certain of the
     extent of danger before them nor could they be sure of the safety
     of the alleged woman involved in the reported domestic violence
     incident. In addition, once Appellant was placed in the patrol car,
     Trooper Tretter asked Appellant a very focused question, aimed
     at discovering the whereabouts of the alleged woman. Based on
     these circumstances, we conclude that the troopers were not
     attempting to elicit an incriminating response from Appellant when
     they placed him in the patrol car and asked him about the
     woman's location, but rather, were motivated solely by a concern
     for their own safety and the safety of the alleged woman. See
     Quarles, 467 U.S. at 657, 104 S.Ct. 2626 (concluding that “the
     need for answers to questions in a situation posing a threat to the
     public safety outweighs the need for the prophylactic rule
     protecting the Fifth Amendment's privilege against self-

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      incrimination”); see also Commonwealth v. Bowers, 400
      Pa.Super. 377, 583 A.2d 1165, 1171 (1990) (recognizing the
      reasoning in Quarles). Accordingly, Appellant’s statements to
      Trooper Tretter were admissible under the public safety exception
      and thus were properly admitted by the trial court. See Quarles,
      467 U.S. at 655-57, 104 S.Ct. 2626; Stewart, 740 A.2d at 719-
      20.

Id. at 790-91.

      Finally, Commonwealth v. Stewart, supra, is not directly on point.

Stewart did not involve non-Miranda questioning.          Rather, it involved a

warrantless search of an automobile for handguns – specifically, opening the

car door and looking under a floor mat - immediately following a shooting.

      All the cases invoking public safety as an exception to either Miranda

or obtaining a warrant, took place immediately following the crime in question,

at or near the crime scene, in a situation where the danger to others was

manifestly apparent, and the police officers in question had little time to weigh

their options.

      Instantly, a missing weapon, used in a shooting, is undoubtedly a

possible danger to others. This is an unfortunately common scenario.

However, unlike the situations presented in the case law, there was an 18-

hour gap between the crime and the questioning. The United States Supreme

Court spoke of the seconds allowed the police officer to determine his or her

course of action, not hours and certainly not three-quarters of a day. There

was no evidence that the gun, believed to be an assault rifle, had been

disposed of anywhere near children or other civilians as in Quarles or


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Bowers. There was no indication that an undiscovered person was in need

of immediate medical attention as in Sepulveda. We do not believe that the

all too common fact, by itself, of a missing weapon, 18 hours after the crime,

represents the exigency described in Quarles. We are unwilling to extend the

public safety exception to the requirement of providing Miranda warnings to

the questioning of a person in custody in the instant factual situation. If we

did so, we would essentially be ruling that a missing weapon alone, provides

the authorities with the ability to question a suspect without Miranda

warnings, no matter how attenuated the crime itself. Accordingly, we find the

trial court erred in failing to suppress Bronson’s statement made in response

to Detective Thompson’s questions regarding the location of the weapon.

      However, while the trial court erred, we believe that error did not

prejudice Bronson to the point of requiring a new trial.      The statement,

although incriminating by inference, was not a confession. The evidence

presented at trial, a mixture of direct and circumstantial evidence, provided a

sufficient foundation for conviction.   One eyewitness positively identified

Bronson as the person he saw leaving the bushes across the street from the

Waterford Inn and getting into the car that was driven by the person who was

with him at the bar. The car was seen on CCTV at the scene, at the time of

the shooting. Cell phone records placed Bronson in the area of the shooting

at the time of the shooting and placed him leaving the area immediately

following the shooting. Bronson admitted to being at the bar on both nights


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in question and admitted there had been altercations between the parties.

Bronson testified that he could not explain why his cell phone records would

place him at the scene of the crime, stating only that he was vague about

what happened with his phone. The eyewitness testimony combined with the

strong circumstantial evidence and Bronson’s testimony provide a sufficient

basis for conviction.     Accordingly, the error in allowing Bronson’s non-

Mirandized statement was harmless.

     In light of the foregoing, Bronson is not entitled to relief.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/18




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