J-S34005-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

AARON J. MORRISON,

                        Appellant                  No. 1660 MDA 2014


           Appeal from the Judgment of Sentence May 21, 2014
            In the Court of Common Pleas of Lycoming County
           Criminal Division at No(s): CP-41-CR-0001792-2012


BEFORE: BOWES, OTT and STABILE, JJ.

MEMORANDUM BY BOWES, J.:                            FILED JUNE 22, 2015

     Aaron J. Morrison appeals from the judgment of sentence of three and

one-half to seven years imprisonment followed by three years probation.

The court imposed that sentence after a jury convicted Appellant of

kidnapping, false imprisonment, terroristic threats, and simple assault, and

the trial judge thereafter convicted him of the summary offense of

harassment. We affirm.

     On September 25, 2012, after previous unsuccessful attempts, the

victim, Keshia Trimble, terminated a romantic relationship with Appellant.

The following morning, September 26, 2012, Appellant telephoned her and

became enraged after she ended the call to get ready for work. Thereafter,

Appellant made 189 telephone calls to the victim between 8:15 a.m. and
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10:35 a.m.     During this same period, Appellant sent her threatening text

messages. Appellant told the victim that he was going to steal the money

from her bank account and that he would report Ms. Trimble to the local

children and youth services and accuse her of drug use and owning guns so

that she would lose custody of her child.

      In another text message, Appellant said that he was going to the

victim’s work and place her in his car and that her co-workers would not see

her, her son would not see her, and that no one would hear from her. About

five minutes after this menacing text, Ms. Trimble arrived at work.

Appellant’s vehicle was in the parking lot, and Appellant grabbed her and

forced her into his car, telling her that he had duct tape and knives. He then

forced her to telephone work and say that she would not be coming in.

      Appellant drove to a secluded location about fifteen minutes and five

miles away from Ms. Trimble’s place of work. He took a knife and started to

threaten to harm himself. Appellant briefly left his vehicle, and the victim

quickly managed to telephone police and quietly inform them that she

needed help.    During these events, Ms. Trimble was afraid that she was

going to be killed.

      In the meantime, at around 11:00 a.m. on September 26, 2012,

Marlee Roles of Hoopla’s Family Fun & Grill (“Hoopla’s”), where Ms. Trimble

was employed, telephoned police and told the dispatcher that she believed

that one of her employees was in trouble.      Muncy Township Police Chief

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Christopher McKibben arrived to investigate. Ms. Roles explained that Ms.

Trimble did not sound normal when she called off work. Ms. Roles also said

that another employee saw Ms. Trimble arrive at the parking lot at Hoopla’s

and that her car, with the keys still in the ignition, was still there.

      Chief McKibben ascertained that the victim’s car engine was still warm,

as if it had been driven recently. He was not able to locate Ms. Trimble at

Hoopla’s and unsuccessfully searched for her at a nearby vacant home. One

of the Hoopla’s employees then told him that the victim had a protection

from abuse order (“PFA”) against an ex-boyfriend.          While inside Hoopla’s,

Chief McKibben received a dispatch telling him that Ms. Trimble had

telephoned police asking for help.

      The cell phone signal was triangulated, and Chief McKibben was able

to ascertain that it was located on Peter Gray Road, which has no outlet, is

isolated, and is overgrown.     Chief McKibben, who was alone, immediately

traveled to the entrance of the mile-long road and saw Appellant’s car

backed into the brush.     As Chief McKibben approached Appellant’s car, he

observed the victim in the backseat, and she appeared upset.

      To protect himself and the victim and investigate the situation in

safety, Chief McKibben pointed his gun at Appellant, ordered him from the

car and onto the ground, and handcuffed him.           Ms. Trimble was flushed,

crying, and disheveled, and she told Chief McKibben that Appellant

kidnapped her from Hoopla’s parking lot.

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        After hearing this account, Chief McKibben arrested Appellant at 11:30

a.m., and gave him Miranda warnings.               At that time, Appellant admitted

that he had kidnapped the victim but he denied that he intended to harm

her.    Chief McKibben then drove Appellant to the police station, where

Appellant was asked but refused to make a written statement. Questioning

ceased. Appellant was seated in the chair of Chief McKibben’s office being

processed when another police officer arrived. It was 1:30 p.m. that same

day. The police officer entered Chief McKibben’s office and asked Appellant

if he had been caught stealing. Chief McKibbens told Appellant to tell the

other officer what he had done, and Appellant said that he had kidnapped a

girl.

        After   Appellant was charged, he           moved to    suppress the   two

admissions that he made to police.               After that motion was denied, he

proceeded to trial where he was convicted of the above-described charges.

In this appeal that followed imposition of judgment of sentence, Appellant

raises five issues:1

              I. Did the Honorable Court err when it denied the motion
        to suppress the incriminating statements as fruit of an unlawful
        arrest when the Appellant was placed in handcuffs at gunpoint
        and not given proper Miranda warnings?

____________________________________________


1
  Appellant’s statement of issues involved references six issues, but
Appellant withdrew the final one in the body of his brief. Appellant’s brief at
21.



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             [II. The Honorable Court erred when it denied the motion
       to suppress the incriminating statements made at the police
       station after officers failed to renew the Miranda warnings.]

             III. Did the Honorable Court err when it denied the motion
       for a new trial due to the failure of the Commonwealth to
       present sufficient evidence regarding the charge of kidnapping,
       namely that the Appellant did not unlawfully remove complainant
       for a substantial distance and did not intend to inflict bodily
       injury or terrorize the complainant when he made no threats or
       aggressive physical movements toward the complainant?

             IV. Did the Honorable Court err in denying the motion for
       mistrial for a violation of Pa. R. Evid. § 404(b), when
       complainant testified on direct examination concerning prior bad
       acts by Appellant, namely that she testified that he had
       threatened to “slit her throat” on prior occasions?

            V. Did the Honorable Court err in allowing the
       Commonwealth to cross-examine Appellant concerning irrelevant
       and prejudicial cellular text messages in violation of Pa. R. Evid.
       § 403?

Appellant’s brief at 8-9, 15.2

       Appellant’s first two claims pertain to the denial of his motion to

suppress.     Our standard of review of a suppression court’s denial of a

suppression motion is settled:

____________________________________________


2
  In his statement of issues raised on appeal, Appellant inadvertently repeats
issue one and outlines identical contentions as both issue one and issue two.
However, in the body of his brief, Appellant clarifies that the first issue
challenges the admissibility of his first statement, which was made at the
scene of the crime, while his second issue relates to the admissibility of the
second statement, which was made at the police station. These were the
positions raised in the Pa.R.A.P. 1925(b) statement. We have corrected the
typographical error on page eight in Appellant’s brief by replacing it with the
one presented in the body of Appellant’s brief.



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             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. Postie, 110 A.3d 1034, 1039 (Pa.Super. 2015).

      Appellant claims his crime-scene confession was the product of an

unlawful arrest unsupported by probable cause. He first argues that he was

arrested when placed on the ground and handcuffed.          Appellant further

asserts that Chief McKibben lacked probable cause to arrest him after the

officer spoke with Ms. Trimble.     The suppression court ruled that Chief

McKibben had grounds to conduct an investigatory detention upon his arrival

at the scene and that such an investigation was occurring when Appellant

was first handcuffed.

      We agree with this assessment. When Chief McKibben arrived at Peter

Gray Road, he had the following facts at his disposal. He was told that the

victim had a PFA against a former boyfriend, had arrived at work, and had

disappeared.    While Chief McKibben was investigating Ms. Trimble’s

disappearance, he was informed that she had called police asking for help.

After finding the location of her cell phone, Chief McKibben saw the victim in

Appellant’s car, which was located in an isolated area, and she appeared

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distraught. These circumstances gave Chief McKibben reasonable suspicion

to believe that a crime may have been occurring and justified an

investigatory    detention.     Commonwealth v. Davis,           102   A.3d     996

(Pa.Super. 2014) (police can conduct investigation if they have reasonable

suspicion that criminality is afoot and that test is an objective one

determined by examining the totality of the circumstances).

      Appellant    maintains    that   Chief   McKibben   did   not   conduct    an

investigation upon his arrival but rather immediately arrested him because

Appellant was ordered to lay down on the ground and was handcuffed. We

cannot agree. Chief McKibben stated that, when he arrived at the crime

scene, he did not place Appellant under arrest.           He continued, “I put

handcuffs on him to put him in custodial detention until I could figure out

what was going on. I’m by myself.” N.T., Suppression Hearing, 5/17/13, at

13. Chief McKibben explained that Appellant was handcuffed for the officer’s

safety.   Id. at 19.    The mere fact that Appellant was handcuffed did not

convert the investigation into an arrest.      Commonwealth v. Rosas, 875

A.2d 341, 348 (Pa.Super. 2005) (“[P]olice officers may handcuff individuals

during    an   investigative   detention.”)    Chief   McKibben’s actions were

unassailable given his knowledge of the situation and his sole presence at

the scene.




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       Appellant next claims that Chief McKibben did not have probable cause

to arrest him after speaking with the victim since he did not have cause to

believe that she was trustworthy.

              Probable cause to effectuate an arrest exists when the
       facts and circumstances within the knowledge of the arresting
       officer are reasonably trustworthy and sufficient to justify a
       person of reasonable caution in believing that the arrestee has
       committed an offense. In addressing the existence of probable
       cause, courts must focus on the circumstances as seen through
       the eyes of the trained police officer, taking into consideration
       that probable cause does not involve certainties, but rather the
       factual and practical considerations of everyday life on which
       reasonable and prudent men act.

Commonwealth v. Thompson, 93 A.3d 478, 486 (Pa.Super. 2014).

       Herein, Chief McKibben said that the victim told him that Appellant

“grabbed her from her place of employment, threw her in the back of the

vehicle, locked the doors and took off towards Muncy with her.”                 N.T.

Suppression Hearing, 5/17/13, at 11.          She also reported that Appellant

made the following threat to her: “You’re going to make me do something

with this knife that I’m going to regret the rest of my life.” Id.

       We reject Appellant’s position that there was no indication that Ms.

Trimble was being truthful. Chief McKibben knew that Ms. Trimble arrived at

work   in   her   car,   mysteriously   reported   off   after   coming   to   work,

disappeared, and had a PFA against a former boyfriend.            That officer also

was aware that she had telephoned police asking for help. Her veracity was

additionally bolstered by the evidence that the victim appeared distraught



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when Chief McKibben arrived. Id. at 19 (Chief McKibben testifying that the

victim appeared, “Very upset, face was flush, she had make-up running all

over her face, clothes were disheveled.”). Finally, Ms. Trimble was located

in an isolated, wooded area with a man. Hence, we find that, after speaking

with Ms. Trimble, Chief McKibben had probable cause to arrest Appellant for

committing the crime of kidnapping. Since Appellant’s arrest was supported

by probable cause and he was given Miranda warnings before confessing,

the suppression court properly refused to suppress Appellant’s inculpatory

remark at the scene of the crime.

       Appellant’s second position is that the suppression court’s erred in

refusing to suppress the statement that he made at the police station.

Appellant avers that the Miranda warnings given to him at the scene were

stale and should have been re-administered to him before he gave the

second inculpatory remark.3 As we noted in Commonwealth v. Cohen, 53

A.3d 882, 888 (Pa.Super. 2012) (citation omitted), when determining

whether Miranda warnings are stale, we examine these factors:


____________________________________________


3
  We note that Appellant does not suggest that he invoked his Miranda
rights at any point and merely maintains that the first warnings were stale.
Chief McKibben did not indicate either that Appellant said that he did not
want to speak with police any longer or that Appellant requested a lawyer.
Chief McKibben explained that, at the police station, Appellant merely
refused to provide a written statement and that they began to talk about
other matters. N.T. Suppression Hearing, 5/17/13, at 15.



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          The length of time between the warnings and the challenged
      interrogation, whether the interrogation was conducted at the
      same place where the warnings were given, whether the officer
      who gave the warnings also conducted the questioning, and
      whether the statements obtained are materially different from
      other statements that may have been made at the time of the
      warnings.

Accord Commonwealth v. Scott, 752 A.2d 871, 875 (Pa. 2000) (“This

Court has never created a prophylactic rule that a suspect must be rewarned

of his constitutional rights every time a custodial interrogation is renewed.”);

see also Commonwealth v. Hill, 104 A.3d 1220 (Pa. 2014) (case

remanded for reconsideration under correct standards where we held that a

pre-polygraph counseled waiver of Miranda rights did not apply to a police

interrogation that followed conduct of polygraph).       If the circumstances

outlined above establish that there has been a clear continuity in the

interrogation, no renewal of rights is required. Scott, supra.

      In this case, Chief McKibben testified that he administered Miranda

warnings to Appellant after placing him under arrest.        That officer then

asked, “Do you know why I’m here?” N.T. Suppression Hearing, 5/17/13, at

11. Appellant responded, “Yeah because I kidnapped her but I wasn’t going

to hurt her.”    Id.   Thereafter, Appellant was transported to the police

station. Once there, Appellant declined to give a written statement so Chief

McKibben and Appellant started to talk about his family.         Another officer

arrived at 1:30 p.m., about two hours after the warnings were given. That

officer asked Appellant whether he had been caught stealing because arrests

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in that area generally were for retail theft. Chief McKibben then said, “Go

ahead and tell him what you did,” and Appellant said, “I kidnapped a girl.”

Id. at 16.

      Herein, Chief McKibben disseminated the warnings at the scene and

was the same officer who asked Appellant the question leading to the second

admission. There was only a two-hour gap between the Miranda warnings

and the second confession. Finally, the second statement was identical to

the first one. Under the circumstances, the suppression court did not err in

finding that there was a continuity in interrogation and that Appellant’s

Miranda warnings were not stale.      Commonwealth v. Bennett, 282 A.2d

276 (Pa. 1971) (applicable warnings were not stale when they were given

less than five hours before second admission, second statement was not

materially different from first one, defendant had been moved only a few

miles, and officer who gave warnings was with officer who questioned

defendant during the second interrogation).

      Appellant’s third issue is a sufficiency challenge to the kidnapping

conviction. Our standard of review in this context is as follows:

            Whether, viewing all the evidence admitted at trial in the
      light most favorable to the Commonwealth as the verdict winner,
      there is sufficient evidence to enable the fact-finder to find every
      element of the crime beyond a reasonable doubt. In applying
      the above test, we may not weigh the evidence and substitute
      our judgment for the fact-finder. In addition, we note that the
      facts and circumstances established by the Commonwealth need
      not preclude every possibility of innocence.           Any doubts
      regarding a defendant's guilt may be resolved by the fact-finder

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      unless the evidence is so weak and inconclusive that as a matter
      of law no probability of fact may be drawn from the combined
      circumstances.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa.Super. 2015).

      A person is guilty of kidnapping if he, in relevant part, “unlawfully

removes another a substantial distance under the circumstances from the

place where he is found” with the intention “to terrorize the victim.”      18

Pa.C.S. § 2901(a)(3).    Appellant contends that there was no proof either

that he removed the victim a substantial distance from Hoopla’s or that he

intended to terrorize her. As our Supreme Court noted,

            For purposes of the kidnapping statute, a substantial
      distance is not limited to a defined linear distance or a certain
      time period. The determination of whether the victim was moved
      a substantial distance is evaluated under the circumstances of
      the incident. Further, the guilt of an abductor cannot depend
      upon the fortuity of the distance he has transported his victim
      nor the length of time elapsed.

Commonwealth v. Malloy, 856 A.2d 767, 779 (Pa. 2004) (citations

omitted).

      In this case, Appellant was angry at the victim, forced her into his car,

and drove her fifteen minutes and 5.2 miles away to a secluded, wooded

area. Thus, there was sufficient evidence that Appellant transported her a

substantial distance. Id. (kidnapping occurred when victim was forced into

vehicle and driven fifteen minutes and five point two miles from point of

abduction to an isolated area of the city).




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     We also conclude that the following proof supports the jury’s

determination that Appellant’s actions were undertaken to terrorize the

victim. About five minutes before abducting her, Appellant told the victim

that he was going to take her away and that no one from work would see

her, her son would not see her, and no one would hear from her. He then

forced her into the car and told her that he had knives and duct tape. He

also said to Ms. Trimble that she was going to make him do something with

the knife that he would regret.    Finally, Appellant took the victim to an

isolated, wooded area.   The victim stated that she was afraid for her life.

We thus reject Appellant’s challenge to the sufficiency of the evidence

supporting the kidnapping conviction.

     Appellant’s fourth averment is that the trial court improperly denied

his request for a mistrial after the victim testified that, on a previous

occasion, Appellant had threatened to slit her throat.   We review the trial

court’s denial of a mistrial under an abuse of discretion standard.

Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013). It is settled that

“a trial court may grant a mistrial only where the incident upon which the

motion is based is of such a nature that its unavoidable effect is to deprive

the defendant of a fair trial by preventing the jury from weighing and

rendering a true verdict.” Id. (citation omitted).   Indeed the grant of a

mistrial is “an extreme remedy that is required only where the challenged

event deprived the accused of a fair and impartial trial.” Id. (citation

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omitted). If a “trial court gives adequate cautionary instructions, declaration

of a mistrial is not necessary.” Id. (citation omitted).

      Herein, the following exchange led to Appellant’s request for a mistrial:

      [District Attorney] Q.: Did [Appellant] say anything to you before
      Chief McKibben got there?

      [Ms. Trimble] A.: No.

      Q. Now you said that [Appellant] made it clear to you that he
      had knives and duct tape?

      A. Yes.

      Q. Did he tell you how may knives?

      A. Um, I can’t remember if he gave me a number, he just said
      he had knives.

      Q. Were you scared that [Appellant] would use that knife on
      you, the one that you saw?

      A. Yes.

      Q. Why were you scared?

      A. He has made threats previously about slitting my throat.

N.T. Trial, 2/25/14, at 32.

      After Appellant objected, the district attorney explained that she “was

not anticipating that answer. I had thought that she was going to say that

she was scared because he had the knife in his hand and was using it[.]”

Id. at 33.      The court denied the mistrial on the basis that it was an

“inadvertent comment by the victim and not planned to be brought out by

the Commonwealth.”       Id. at 34.    The court gave a curative instruction,

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telling the jury to disregard the statement and to give it no weight or

credibility.   Since the mention of the prior bad act was revealed by the

victim, was not intentionally elicited by the prosecution, was not exploited by

the district attorney, and the trial court immediately gave a curative

instruction, we conclude that the trial court did not abuse its discretion in

denying the mistrial request.    Commonwealth v. Manley, 985 A.2d 256

(Pa.Super. 2009).

      Appellant’s final complaint is that the trial court impermissibly allowed

him to be cross-examined about the contents of text messages that he sent

Ms. Trimble on September 15 and 16, 2012, within two weeks of the

kidnapping.     “It is well-settled that ‘the scope of cross examination is a

matter within the trial court's discretion and will not be disturbed by this

Court absent an abuse of that discretion.’” Commonwealth v. Kouma, 53

A.3d 760, 768 (Pa.Super. 2012) (citation omitted).

      In this case, Appellant maintained during his direct examination that

he ended the romantic relationship with Ms. Trimble and that, as a result,

she was suicidal. Appellant stated that the threatening text messages that

he sent on the day of the kidnapping were intended to elicit a response from

Ms. Trimble because he was worried that she would hurt herself. The trial

court then permitted Appellant to be cross-examined with a text message

that he sent Ms. Trimble on September 15, and in which Appellant said he

was going for “anger management and I’m asking around for prices on a

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therapist.” N.T. Trial, 2/25/14, at 145. In addition, the trial court allowed

Appellant to be asked about a text message that he sent on September 16

that, “All I do is hurt people. I’m so sorry. Keshia Trimble, I’ll always be

thinking of you and praying you give me another chance. I’ve learned my

lesson and I’ve already scheduled some help for myself. I hope you will be

on my side in the future.” Id. at 146.

      We conclude that the cross-examination was proper since the text

messages directly contradicted Appellant’s direct testimony that Ms. Trimble,

rather than he, was the person who was emotionally unstable as well as

Appellant’s   insistence   that   he,   instead   of   Ms.   Trimble,   ended   their

relationship. The text messages impeached Appellant’s testimony and were

properly used during cross-examination.            Hence, we reject Appellant’s

assertions on appeal and affirm.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2015




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