J-S65023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

VERNON LEE DAVIS

                            Appellant                        No. 21 EDA 2014


          Appeal from the Judgment of Sentence November 22, 2013
            In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0002430-2011


BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                               FILED NOVEMBER 12, 2014

       Appellant, Vernon Lee Davis, appeals from the judgment of sentence

entered on November 22, 2013, following his jury trial conviction for

indecent assault of a person less than 13 years of age.1             On this direct

appeal, Appellant’s court-appointed counsel filed both a petition to withdraw

as counsel and an accompanying brief pursuant to Anders v. California,

386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009).     We conclude that Appellant’s counsel has complied with the

procedural     requirements      necessary     for   withdrawal.   Moreover,   after

independently reviewing the record, we conclude that the instant appeal is



____________________________________________


1
    18 Pa.C.S.A. § 3126(a)(7).



*Retired Senior Judge assigned to the Superior Court.
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wholly frivolous.      We therefore grant counsel’s petition to withdraw and

affirm Appellant’s judgment of sentence.

        We briefly summarize the facts and procedural history of this case as

follows. The Commonwealth filed a complaint against Appellant in February

2011, charging him with the aforementioned crime, as well as aggravated

indecent assault of a person less than 13 years of age and endangering the

welfare of a child.2       The charges resulted after the Montgomery County

Office of Children and Youth received information that Appellant improperly

touched his five-year old granddaughter’s vaginal area. In April 2012, the

Commonwealth withdrew the aggravated indecent assault charge.                On

October 10, 2012, Appellant filed a counseled motion to suppress separate

statements made to police.           First, Appellant claimed that he made oral

statements to police that were involuntarily coerced in violation of Miranda

v. Arizona, 384 U.S. 436 (1966). Next, Appellant argued that further oral

and written statements made to police after Miranda warnings were given,

but after he invoked his right to counsel, required suppression.       The trial

court held a suppression hearing on October 10, 2012.          On February 26,

2013, the trial court granted Appellant partial relief on his suppression

motion in a written opinion, stating:

          [Appellant’s] oral statement at the outset of questioning by
          the detectives, after being given and acknowledging
____________________________________________


2
    18 Pa.C.S.A. §§ 3125(b) and 4304(a), respectively.



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         Miranda warnings, admitting “inappropriate contact’’ with
         his minor granddaughter, shall be admissible at trial;
         [Appellant’s] subsequent written statement and any other
         statements to the detectives made by him after he
         suggested to them that he thought he ought to invoke his
         right to an attorney are suppressed, on [Appellant’s]
         motion, as taken in violation of Miranda and its progeny.

Trial Court Opinion, 2/26/2013, at 21 (emphasis in original).

       The case proceeded to a two-day jury trial wherein the jury convicted

Appellant of indecent assault of a person less than 13 years of age and

acquitted him of endangering the welfare of a child. On November 22, 2013,

the trial court sentenced Appellant to four to 12 months of imprisonment,

followed by three years of probation consecutive to the expiration of his

parole. This timely appeal resulted.3

       On appeal, Appellant’s court-appointed counsel filed a petition for

leave to withdraw and accompanied this petition with an Anders brief. The

Anders brief raises the following claim:

         Did the trial court commit reversible legal error when it
         denied Appellant’s motion to suppress statements that he
         had provided to police after he was given Miranda
         warnings but before he invoked his right to counsel?

Anders Brief at 4 (complete capitalization omitted).


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3
    Appellant filed a notice of appeal on December 20, 2013. On January 8,
2014, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
on January 24, 2014. The trial court relied upon its earlier opinion issued on
February 24, 2013 that addressed Appellant’s suppression issues in lieu of
filing a new opinion pursuant to Pa.R.A.P. 1925(a).



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     Before reviewing the merits of this appeal, however, this Court must

first determine whether counsel has fulfilled the necessary procedural

requirements for withdrawing as counsel. Commonwealth v. Miller, 715

A.2d 1203, 1207 (Pa. Super. 1998).

     To withdraw under Anders, court-appointed counsel must satisfy

certain technical requirements.   First, counsel must “petition the court for

leave to withdraw stating that, after making a conscientious examination of

the record, counsel has determined that the appeal would be frivolous.”

Miller, 715 A.2d at 1207.     Second, counsel must file an Anders brief, in

which counsel:

        (1) provide[s] a summary of the procedural history and
        facts, with citations to the record; (2) refer[s] to anything in
        the record that counsel believes arguably supports the
        appeal; (3) set[s] forth counsel’s conclusion that the appeal
        is frivolous; and (4) state[s] counsel’s reasons for
        concluding that the appeal is frivolous. Counsel should
        articulate the relevant facts of record, controlling case law,
        and/or statutes on point that have led to the conclusion that
        the appeal is frivolous.

Santiago, 978 A.2d at 361.

     Finally, counsel must furnish a copy of the Anders brief to his client

and advise the client “of [the client’s] right to retain new counsel, proceed

pro se or raise any additional points worthy of this Court’s attention.”

Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).

     If counsel meets all of the above obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the


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proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5, quoting

Commonwealth v. McClendon, 434 A.2d 1185, 1187 (Pa. 1981).                 It is

only when both the procedural and substantive requirements are satisfied

that counsel will be permitted to withdraw.

        In the case at bar, counsel has met all of the above procedural

obligations.4    We must, therefore, review the entire record and analyze

whether this appeal is, in fact, wholly frivolous. Our analysis begins with the

issue raised in the Anders brief.

        Appellant’s Anders brief claims that he made an oral statement to

police that required suppression because:

          the statement was not knowingly, voluntarily, nor
          intelligently provided to the detectives in that he was not in
          his right mind at the time of the statement to comprehend
          its significance and the rights he was waiving as a result of
          a long delay between his arrest and preliminary
          arraignment; the fact that he did not sleep the previous
          night as a result of being in a cold holding cell and provided
          with only a thin blanket; that he suffered from diabetes and
          did not have his medication; and the fact that he had a
          difficult time reading the Miranda rights form and waiver
          due to the fact that he did not have his glasses with him at
          the Pottstown Police station.

Anders Brief at 17.

        When reviewing a challenge to a trial court's denial of a suppression

motion, our standard of review is as follows:
____________________________________________


4
    Appellant has not responded to counsel’s petition to withdraw.



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        Our 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, we are bound by these findings
        and may reverse only if the court's legal conclusions are
        erroneous. [However], 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 our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa. Super. 2012)

(citation omitted).

      Regarding statements made to police during an interrogation, our

Supreme Court has recently determined:

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

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

Commonwealth v. Martin, 2014 WL 4745782, at *14 (Pa. Sept. 24, 2014)

(citation omitted).

      At the suppression hearing, the Commonwealth introduced the

testimony of Pottstown Police Detective Heather Long, the police investigator

assigned to investigate sexually based offenses in that jurisdiction.   N.T.,

10/10/2012, at 4-5.     Police arrested Appellant on a warrant in Manor

Township on March 28, 2011 and “transported [him] to Pottstown’s police

station where he was held overnight until he could be arraigned.” Id. at 7.

“Due to his length of incarceration, [Appellant] was provided breakfast”

including juice, coffee and a breakfast sandwich after he was removed from

a holding cell and relocated to Detective Long’s office. Id. at 7, 24. Once

inside her office, Detective Long “read [Appellant] his Miranda rights and he

signed the form waiving those rights at that time.” Id. Detective Long read

Appellant his constitutional rights “verbatim” from a pre-printed form and

gave Appellant an opportunity to read, sign and date the form. Id. at 7-8.

On that printed form, Appellant handwrote that he understood his rights and

was willing to give a voluntary statement.       Id. at 8-11.    During the

interview, Appellant remained in leg shackles, but his hands remained free.

Id. at 11. Appellant did not appear intoxicated. Id. No threats or promises

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were made to Appellant. Id. at 18. Appellant did not ask for food or to use

the bathroom.   Id. at 19.   Appellant asked questions about the length of

sentence and collateral consequences under Megan’s Law he was potentially

facing. Id. at 28-29.

     Appellant testified on his own behalf at the suppression hearing.

Appellant stated that he was arrested at approximately 3:45 p.m. on March

28, 2011.    Id. at 35-36.   He testified he was handcuffed to a bar of a

holding cell in Manor Township until Pottstown police could pick him up that

evening. Id. at 37. Appellant estimated that he was placed in a holding cell

in Pottstown at 9:00 p.m.    Id. at 38.    Appellant did not speak to anyone

until the following morning. Id.   He was not offered food or drink while he

was in the holding cell.   Id. at 38-39.   Appellant testified that he did not

sleep well because it was cold in the holding cell and he was only given “a

thin blanket.” Id. at 40. Police provided breakfast the following morning.

Id. at 42.    Appellant concedes that Detective Long advised him of his

Miranda rights after he ate. Id. at 42-43, 45. She read Miranda warnings

to him aloud and Appellant did not have problems understanding what

Detective Long was saying. Id. at 54-55. Appellant testified that he was

diagnosed as a diabetic in 1986, that he is supposed to take two proscribed

pills a day for the ailment, but because he did not have medical insurance at

the time of the police interview he did not have his medication on that day

anyway. Id. at 43-44, 53-54. Appellant admitted that Detective Long did


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not treat him unfairly or threaten him at any time. Id. at 50-52. Appellant

never told police that he required medical attention. Id. at 53. At the time

of the police interview, Appellant was 61 years old. Id. at Exhibit C-2.

      Examining the totality of the facts in the light most favorable to the

Commonwealth, as our standard of requires, we agree with the trial court

that suppression was unwarranted. While police held Appellant overnight in

a holding cell, Appellant was clearly advised of his constitutional rights the

following morning.     It does not matter that Appellant did not have his

reading glasses, because there is no dispute that Detective Long verbally

provided him with Miranda warnings and he readily understood them.

Appellant did not appear ill or intoxicated when he was speaking with police.

The interview was conducted in an office setting and was not prolonged.

Police provided Appellant with something to eat prior to being advised of his

rights. They did not withhold medical attention, coerce, or threaten

Appellant.     Appellant was 61 years old at the time and asked pointed

questions    about   the    potential   penal   consequences   he   faced,   thus,

demonstrating knowledge of the criminal justice system. Based upon all of

the foregoing, we conclude that Appellant voluntarily made an inculpatory

statement to police.       Accordingly, the trial court did not err by denying

suppression.




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      On the foregoing basis, and because our independent assessment of

the record yields no non-frivolous issues which merit our review, we grant

counsel leave to withdraw and we affirm the judgment of sentence.

      Leave   to   withdraw   granted.       Judgment   of   sentence   affirmed.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2014




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