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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
OBATAIYE KAREE SCOTT, JR.,               :         No. 1595 WDA 2013
                                         :
                        Appellant        :


       Appeal from the Judgment of Sentence, September 27, 2013,
              in the Court of Common Pleas of Fayette County
      Criminal Division at Nos. 454 OF 2013, CP-26-CR-0000454-2013


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 14, 2014

      This is an appeal from the judgment of sentence entered on

September 27, 2013, in the Court of Common Pleas of Fayette County.

Following a jury trial, appellant was convicted of burglary, theft by unlawful

taking, and criminal mischief.      Appellant was sentenced on the burglary

conviction to three to six years’ incarceration.     No further penalty was

imposed on the remaining convictions. We affirm.

      We adopt the facts as recounted by the trial court:

                  On    October    16,    2012,   the   victim,
            Tiffany Woods, was residing with her 7-year-old
            daughter in a two story home at 63 Steel Street,
            Republic, Fayette County, Pennsylvania.          On
            October 16, 2012, after completing her shift at
            Teletech, her place of employment in Uniontown,
            Pa., Tiffany picked up her daughter at her sister’s
            residence and returned to the home at 63 Steel
            Street, Republic. Following the evening meal[,] she
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          watched TV, got her daughter ready for bed and
          retired for the night to her second floor bedroom at
          approximately 11:15 P.M. (N.T. 10, 11)

                The following morning, October 17, 2012,
          Tiffany awoke before 6:30 A.M. to get ready for
          work. When she descended the stairs from the
          second floor, she saw that her dining room, living
          room and kitchen lights were turned on when she
          had turned them off the night before. She also
          observed that drawers were open and that papers
          were strewn across the floor.      She entered the
          kitchen and observed that her purses had been
          emptied out. She went back into the living room and
          discovered that two sets of car keys and house keys
          which she kept on a table were missing.
          Tiffany Woods then ran outside to see if her car had
          been stolen. Before reentering her home[,] she
          noticed that her garbage can was propped against
          the dining room window and the screen on the
          window had been cut. One set of keys to her house
          and car were on a smiley face keychain, and the
          other set were on a yellow Polo keychain which also
          contained her daughter’s picture. (N.T. 11)

                On October 17, 2012, around 3:00 A.M.,
          Sergeant Norman Howard of the Redstone Township
          Police Department had occasion to enter a residence
          at 7 Johnson Street, Republic, Pa. The residence at
          7 Johnson Street is located one street down from
          Steel Street and a distance of approximately
          200 yards from Tiffany Woods’ residence at 62 Steel
          Street, Republic. Upon entering the residence at
          7 Johnson Street, Republic, Officer Howard observed
          the defendant and noticed that defendant had two
          sets of keys in his hand. Officer Howard observed
          the defendant throw the keys onto the floor in front
          of him. (N.T. 17, 18, 19) Howard retrieved the two
          sets of keys and entered them into evidence at the
          Redstone Township Police Station.

                Following consultation with the Pennsylvania
          State Police officer who had investigated the burglary
          at 63 Steel Street, Officer Troy Rice of the Redstone


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            Township Police Department met with Tiffany Woods
            at the Redstone Township Police Station. Woods
            identified the two sets of keys as being the keys
            stolen from her house during the night of
            October 16-17, 2012. Officer Rice then observed as
            Tiffany Woods utilized the keys to start her white
            Sunfire vehicle. (N.T. 13, 18, 19, 24)

                   On October 30, 2012, the defendant met with
            Trooper Matthew Gavrish, a criminal investigator,
            with the Belle Vernon Barracks of the Pennsylvania
            State Police. Gavrish informed the defendant of his
            Miranda rights following which defendant waived his
            right to remain silent and provided Trooper Gavrish
            with a statement. (N.T. 30, 31) Defendant admitted
            to    his   involvement   in   the   [b]urglary  of
            Tiffany Woods’ residence at 63 Steel Street,
            Republic. Defendant indicated that he stood on the
            road as a lookout while Amnie stood on a trash can.
            He heard him cutting something and then Amnie
            went through the window.          According to the
            defendant[,] “all we got was two sets of car keys.”
            Defendant stated that the police came to
            Robert Savage’s house and took possession of the
            sets of keys. (N.T. 33)

Trial court opinion, 1/8/14 at 2-4.

      On October 17, 2012, appellant was charged with burglary, theft by

unlawful taking, receiving stolen property and criminal mischief.1         A

preliminary hearing took place on March 11, 2013, and all charges were

bound over to the court of common pleas.           Following a jury trial on

September 4, 2013, appellant was found not guilty of receiving stolen




1
   18 Pa.C.S.A.    §§   3502(A)(1),    3921(A),   3925(A)   and   3304(A)(5),
respectively.


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property but guilty of the remaining charges.          Sentencing occurred on

September 27, 2013. This appeal followed.

      Herein, appellant raises two issues:

            I.     Whether the statement of the Appellant should
                   have been suppressed since it was not entered
                   into voluntarily, knowingly, and/or intelligently,
                   since the Appellant was under duress with
                   strong police influence and had been
                   interrogated for over an hour by the police?

            II.    Whether the Jury erred by finding the
                   Appellant guilty of the crimes charged,
                   specifically Burglary, Theft By Unlawful Taking,
                   and Receiving Stolen Property?

Appellant’s brief at 6.

      Turning to appellant’s first issue, the trial court advises appellant did

not file a motion to suppress his statement in the present case. (See trial

court opinion, 1/8/14 at 11.) According to the trial court:

                  Defendant did file a motion to suppress his
            statement made to the police in a companion case
            filed at Fayette County Common Pleas Court
            No. 1983 of 2012.       In the companion case[,]
            defendant was charged with Burglary and related
            offenses relative to the residence of Joshua A.
            Osborne located at 23 Rollie Street, Republic,
            Pennsylvania.    The break[-]in at the Osborne
            residence occurred on October 10, 2012.

                  In his Omnibus Pretrial Motion filed at 1983 of
            2012, defendant sought suppression of his
            confessions contending that at the time [] the
            statement was made to the police[,] defendant was
            represented [by] Attorney Blaine Jones and that
            Attorney Jones was not contacted about the police’s
            intent to question him.



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                  A hearing on the omnibus motion was held
            before the Honorable Nancy D. Vernon on
            September 10, 2013.      Attorney Rodney Blaine
            Jones II was called and testified that he
            represented the defendant on only two cases
            involving     victims,    Robert    Savage     and
            Joshua Osborne, and only up to the completion
            of the preliminary hearing held October 29,
            2012. According to Attorney Jones, he made it clear
            to defendant and his mother that he was only
            representing him for those two cases until the
            preliminary hearing.    He did not represent the
            defendant for any proceedings beyond the
            preliminary hearing. (O.P.T. 9-10-13, p. 4-5)

                  Trooper Matthew Gavrish testified that he went
            to the Fayette County Jail on October 30, 2012, to
            interview the defendant. (O.P.T. 9-10-13, p. 14)
            Gavrish had been present at the preliminary hearing
            held October 29, 2012 and was aware that
            Attorney Jones’ representation of the defendant had
            ceased with the completion of the preliminary
            hearing.

Id. at 11-12 (emphasis added).

     A motion to suppress evidence must be made pretrial, unless “the

opportunity did not previously exist, or the interests of justice otherwise

require.” Commonwealth v. Long, 753 A.2d 272, 279 (Pa.Super. 2000),

quoting Commonwealth v. Barnyak, 639 A.2d 40, 45 (Pa.Super. 1994),

appeal denied, 652 A.2d 1319 (Pa. 1994), cert. denied, 515 U.S. 1130

(1995). Based on the record, a pretrial motion to suppress was not filed in

the instant case involving Woods; hence, the issue is waived.

     Even if this issue was not waived, there is no merit to appellant’s

argument.      Appellant claims that the conduct of the police was so



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manipulative and coercive that but for that conduct, he would not have

confessed.      An individual under police suspicion may waive his Miranda2

rights    and   agree   to   answer   the   questions   or   make   a   statement.

Commonwealth v. DeJesus, 787 A.2d 394, 402 (Pa. 2001), cert. denied,

537 U.S. 1028 (2002).           These rights, however, must be knowingly,

voluntarily, and intelligently waived; that is, the waiver “must be the product

of a free and deliberate choice rather than intimidation, coercion, or

deception,” and “made with a full awareness both of the nature of the right

being abandoned and the consequences of the decision to abandon it.” Id.

         The voluntariness of a confession is determined by the totality of the

circumstances.      Commonwealth v. Templin, 795 A.2d 959, 964 (Pa.

2002).     Specifically, to determine whether the defendant’s waiver was the

product of undue coercion, we consider the totality of circumstances, giving

special attention to the “duration and means of the interrogation; the

physical and psychological state of the accused; the conditions attendant to

the detention; the attitude of the interrogator; and any and all other factors

that could drain a person’s ability to withstand suggestion and coercion.”

Templin, 795 A.2d at 966. The question to determine voluntariness “is not

whether the defendant would have confessed without interrogation, but

whether the interrogation was so manipulative or coercive that it deprived




2
    Miranda v. Arizona, 384 U.S. 436 (1966).


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the defendant of his ability to make a free and unconstrained decision to

confess.” Id.

       According to Trooper Gavrish, he first made contact with appellant at

1:15 p.m. on October 30, 2012, and he read appellant his Miranda rights.

(Notes of testimony, 9/4/13 at 30.) Appellant acknowledged the reading of

his Miranda rights by signing the waiver form.                  (Id. at 30-31.)

Trooper Gavrish testified that he then talked to appellant, and at 2:25 p.m.,

he informed appellant that he was going to be recorded.              (Id. at 32.)

Trooper Gavrish proceeded to give the Miranda warnings again to appellant.

(Id.) Appellant once more acknowledged the Miranda warnings. (Id.) At

that   point,   appellant   described   what    took    place   on   the   evening

Tiffany Woods’ home was broken into.          (Id. at 32-33.)    Trooper Gavrish

testified that no promises or threats were made during appellant’s

interrogation at the Fayette County Prison. (Id. at 35.)

       Here, the fact that appellant was apprised of, and expressly waived,

his Miranda      rights before   questioning    began    is a   consideration of

“primary importance” in our analysis of the voluntariness of both the verbal

and written confessions.

       We observe that:

            The fact that warnings were given is an important
            factor in the direction of a voluntariness finding.
            This fact is important in two respects. It bears on
            the coerciveness of the circumstances, for it reveals
            that the police were aware of the suspect’s rights
            and presumably prepared to honor them. And . . . it


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             bears upon the defendant’s susceptibility, for it
             shows that the defendant was aware that he had a
             right not to talk to the police.

Templin, 795 A.2d at 966.

      Despite appellant’s argument that he did not confess of his own free

will, based on this record, we do not find that the conditions or duration of

the interrogation were so manipulative or coercive that appellant was

deprived of his ability to make a “free and unconstrained decision to

confess.” See Commonwealth v. Taylor, 431 A.2d 915, 918 (Pa. 1981)

(actual period of interrogation lasting slightly more than one hour did not

overwhelm defendant’s will).    We also note that the police were under no

obligation to contact Attorney Jones when he no longer represented

appellant.

      In his second issue, appellant claims the evidence was insufficient to

convict him of burglary, theft by unlawful taking, and criminal mischief.

                   When reviewing challenges to the sufficiency of
             the evidence, we evaluate the record in the light
             most favorable to the Commonwealth as the verdict
             winner, giving the prosecution the benefit of all
             reasonable inferences to be drawn from the
             evidence. Commonwealth v. Duncan, 932 A.2d
             226, 231 (Pa. Super. 2007) (citation omitted).
             “Evidence will be deemed sufficient to support the
             verdict when it establishes each material element of
             the crime charged and the commission thereof by
             the accused, beyond a reasonable doubt.”          Id.
             (quoting Commonwealth v. Brewer, 876 A.2d
             1029, 1032 (Pa. Super. 2005), appeal denied, 585
             Pa. 685, 887 A.2d 1239 (2005).        However, the
             Commonwealth need not establish guilt to a
             mathematical certainty, and it may sustain its


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            burden by means of wholly circumstantial evidence.
            Id. Moreover, this Court may not substitute its
            judgment for that of the factfinder, and where the
            record contains support for the convictions, they
            may not be disturbed. Id. Lastly, we note that the
            finder of fact is free to believe some, all, or none of
            the evidence presented.           Commonwealth v.
            Hartle, 894 A.2d 800, 804 (Pa. Super. 2006).

Commonwealth v. Yasipour, 957 A.2d 734, 745 (Pa.Super. 2008),

appeal denied, 980 A.2d 111 (Pa. 2009).

       Appellant’s sufficiency of the evidence argument fails to challenge any

specific element of the crimes for which he was convicted.            Instead,

appellant’s argument centers on his confession, and challenges a credibility

determination made by the jury.      Appellant contends that his confession

should have been suppressed, and without it, the jury would have had

reasonable doubt.    (Appellant’s brief at 14.)    We have already concluded

appellant voluntarily waived his Miranda rights and his confession was

properly admitted.      The testimony, along with appellant’s statement,

established his guilt beyond a reasonable doubt.

       Additionally, appellant contends “that he was in another person’s

residence, and that person could have had those keys.” (Appellant’s brief at

15.)   That argument goes to credibility, and the jury obviously chose to

believe Officer Norman Howard who testified that he encountered appellant

at 3:00 a.m. on October 17, 2012, inside a residence at 7 Johnson Street

which was a couple hundred yards from Tiffany Woods’ residence. (Notes of

testimony, 9/4/13 at 17-20.)     Officer Howard testified that appellant “had


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two sets of keys in his hand.” (Id. at 18.) When asked what appellant did

with the keys, the officer responded, “he kind of threw it on the ground in

front of him.”   (Id.)   The officer was asked what happened next, and he

responded, “[appellant] threw them on the floor, laid on top of them. After

[appellant] got up off the ground[,] I took possession of the keys.” (Id. at

22.) Those keys were later identified by Tiffany Woods as the keys taken

from her residence. (Id. at 13.)

      The failure to identify which element of an offense was not proven

waives a sufficiency claim.    Commonwealth v. Manley, 985 A.2d 256,

261-262 (Pa.Super. 2009), appeal denied, 996 A.2d 491 (Pa. 2010).

Accordingly, appellant’s argument that the evidence was insufficient is

waived.   Moreover, our review of this matter indicates the evidence was

sufficient. Therefore, we will affirm appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/14/2014




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