J-S02025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

EDDIE TATE

                         Appellant                 No. 1180 EDA 2016


                 Appeal from the PCRA Order March 30, 2016
              In the Court of Common Pleas of Delaware County
              Criminal Division at No: CP-23-CR-0004358-2012


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ.

MEMORANDUM BY STABILE, J.:                         FILED APRIL 13, 2017

     Appellant, Eddie Tate, appeals pro se from the March 30, 2016 order

entered in the Court of Common Pleas of Delaware County (“PCRA court”)

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

     The PCRA court summarized the factual history of the case as follows.

            At 6:25 a.m. on September 13, 2008, while waiting at a
     bus stop, Ms. Nicole Scott saw two African American men, one
     wearing a dark hooded sweatshirt and the other wearing a white
     hooded sweatshirt, walking down Church Lane from the direction
     of Redwood Avenue in Yeadon Borough, Delaware County, Pa.
     She watched them cross the street diagonally and turn into the
     driveway of 645 Church Lane where she lost sight of them. At
     6:45 a.m. Ms. Scott heard two gunshots coming from that
     direction and saw the two males quickly run out of the driveway
     back towards Redwood Avenue. About ten minutes later, police
     found Veno Leigertwood, Jr. dead in the driveway of his home.
     The cause of death was a single gunshot wound to the back of
     the neck from a .22 caliber handgun. Although the victim’s
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     wallet, laptop, computer accessories, and car were left at the
     scene, his cell phone and pocket Bible were missing.

            The Yeadon Borough Police Department and the Delaware
     County Criminal Investigation Division initiated a homicide
     investigation that was joined by the Federal Bureau of
     Investigation (FBI) in February 2010. Initially, the investigation
     focused on Mr. Leigertwood’s wife, Ms. Raven Leigertwood.
     However, in the summer of 2010, the focus shifted to Mr.
     Braheim Thompson. As a result of the FBI’s investigation of Mr.
     Thompson, it was revealed that he had a close friend named
     Eddie Tate, whom the FBI decided to interview based upon this
     relationship.

            The FBI first interviewed Appellant about Mr. Leigertwood’s
     death on February 18, 2011. During that interview, Appellant
     told officials that a man named Marquis Robinson1 [FN1:
     “Marquis Robinson” was later correctly identified as Mr. Marquis
     Roberts] had bragged “to the neighborhood that he had shot”
     Mr. Leigertwood. Appellant claimed that Mr. Roberts “had said
     that he stuck a gun in Veno’s face trying to rob him and that the
     victim punched him and when he punched him he . . . shot him a
     few times.” Appellant also indicated that Mr. Roberts had stolen
     a cell phone and a laptop from the victim. Finally, Appellant told
     officials that Mr. Roberts had shot Mr. Leigertwood with either a
     .22 or .25 caliber, small, black handgun.

            The FBI conducted a second interview of Appellant on July
     22, 2011. During this interview, Appellant told officials “that he
     was in a car with Marquis Roberts and Braheim Thompson when
     Braheim and Marquis were having a conversation about the
     murder [of Mr. Leigertwood], and . . . Mr. Tate deduced from
     listening to the two of them talk . . . that they had . . . shot
     Veno in the course of a robbery.” Appellant also revealed that
     Mr. Roberts and Mr. Thompson had previously committed other
     robberies and that when they did so, Mr. Roberts wore a white
     zip-up hooded sweatshirt while Mr. Thomspon wore a black
     hooded sweatshirt. However, Appellant averred that despite
     knowing about the murder, he was not present when Mr.
     Leigertwood was shot.

          Appellant was interviewed a third time by Special Agent
     Thomas Scanzano on July 27, 2011. At this time, Mr. Thompson
     and Mr. Roberts were both suspects in the case, but Appellant
     was being interviewed as “a possible cooperating witness.”

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     Agent Scanzano testified that before the interview, he placed his
     laptop, which was displaying an electronic version of the
     standard Miranda form, in front of Appellant and directed him to
     read through it. Appellant acknowledged that he understood and
     was waiving his Miranda rights by signing an electronic
     signature pad.      When asked what he knew about Mr.
     Leigertwood’s murder, initially Appellant repeated that he heard
     about the robbery/murder from Mr. Thompson and Mr. Roberts a
     few days after it took place. He maintained that he was not
     present for and did not participate in the murder.

            However, after observing that when these questions were
     asked Appellant’s shoulders slumped and he broke eye contact,
     Agent Scanzano said, “Eddie it’s obvious to me that you’re not
     telling the truth . . . We just need to get to the truth.” Appellant
     then confessed that he was lying and “afraid to tell the truth
     because he could be charged in the murder or conspiracy to
     commit murder.” When prompted to explain, Appellant stated
     that on the morning of Setpember 13, 2008, he was driving
     around Yeadon with Mr. Roberts and Mr. Thompson “looking for
     someone to rob.” Appellant said he stopped the car when they
     saw Mr. Leigertwood, and Mr. Roberts and Mr. Thomspon exited
     the vehicle. Appellant said he could tell there was an altercation
     and then heard multiple gun shots, after which Mr. Roberts and
     Mr. Thomspon immediately ran back to the car. All three men
     then went back to Appellant’s apartment, where “Mr. Roberts
     said that he pulled out a gun, attempted to rob the black male,
     the black male punched him in the face, and as he was falling
     backwards he shot the black male multiple times.” Appellant
     stated that the men concluded that Mr. Leigertwood was likely
     dead. Finally, Appellant told Agent Scanzano that the victim’s
     cell phone was stolen and that Mr. Roberts had used either a .22
     or .25 caliber black handgun, but he did not know what
     happened to either of those items.

            When he had concluded his interview, Agent Scanzano
     asked Appellant if he would be willing to speak to Agent Carter
     and Detective Benham, and Appellant agreed. Agent Carter
     testified that both he and Detective Benham first verbally
     reminded Appellant of his Miranda rights, which Appellant chose
     not to invoke. Appellant repeated the story he had told Agent
     Scanzano, adding that before stopping the car to let Mr. Roberts
     and Mr. Thompson out, he made a right turn onto the next street
     past Mr. Leigertwood’s driveway. Detective Benham testified


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     that this street is Redwood Avenue, which corroborated the
     earlier testimony of Ms. Scott. According to Agent Carter’s
     testimony, the only inconsistency between Appellant’s July 27
     statements concerned where the discussion after the shooting
     took place, since he indicated to Agent Scanzano that the
     conversation took place in his apartment, but told Agent Carter it
     occurred while the men were still in the car.

PCRA Court Opinion, 7/15/16, at 1-5 (citations and footnote 2 omitted).

     Following a jury trial held from February 26, 2013, through March 1,

2013, Appellant was convicted of murder in the second degree, robbery, and

conspiracy to commit robbery. On April 2, 2013, Appellant was sentenced to

life without the possibility of parole for murder in the second degree and a

consecutive term of imprisonment on the conspiracy to commit robbery

charge. Following a direct appeal, this Court affirmed Appellant’s judgment

of sentence on August 15, 2014. See Commonwealth v. Tate, 1404 EDA

2013, unpublished memorandum at 17 (Pa. Super. filed August 15, 2014).

On January 8, 2015, our Supreme Court denied Appellant’s petition for

allowance of appeal.

     On June 4, 2015, Appellant filed a timely pro se PCRA petition along

with a memorandum of law. On June 23, 2015, the PCRA court appointed

Henry Dibendetto Forrest, Esq., as counsel for Appellant. Following multiple

extensions of time to file an amended PCRA petition, Attorney Forrest filed a

no merit letter and application to withdraw pursuant to Commonweatlh v.

Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc) on February 17, 2016.       The PCRA court

granted counsel’s application to withdraw and issued a Rule 907 notice on


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February 22, 2016.         Appellant filed a pro se objection letter on March 11,

2016.         On March 31, 2016, the PCRA court dismissed Appellant’s PCRA

petition.      Appellant field a timely notice of appeal on April 18, 2016.       The

PCRA court did not direct Appellant’s compliance with Pa.R.A.P. 1925 but

filed an opinion pursuant to 1925(a) on July 5, 2016.

        On appeal, Appellant raises seven issues, which we quote verbatim.

        I.       Whether the trial court abused its discretion or committed
                 an error of law in finding that the commonwealth met its
                 heavy burden of proving that petitioner knowingly and
                 intelligently waived his Miranda rights and that the waiver
                 was made with the full awareness of both the rights being
                 abandon and the consequence thereof[.]

        II.      Whether the trial court abused its discretion or committed
                 an error of law in failing to find that [Appellant] was
                 deceived into waiving his rights trough manipulative
                 methods[.]

        III.     Whether the trial court abused its discretion or committed
                 an error of law in failing to find that the interrogating
                 officer violated [Appellant’s] Fifth Amendment right by
                 undermining the procedural safeguards established in
                 Miranda v. Arizona[.]

        IV.      Whether the trial court abused its discretion or committed
                 an error of law by allowing for the introduction of a
                 secondary copy of [Appellant’s] waiver to be admitted into
                 evidence at trial[.]

        V.       Whether the trial court abused its discretion or committed
                 an error of law by failing to find that [Appellant’s] transfer
                 from a state correctional institution to a federal detention
                 center amounted to the functional equivalent of an arrest
                 which was not supported by probable cause[.]

        VI.      Whether the trial court abused its discretion or committed
                 an error of law by failing to find that [Appellant’s] Due
                 Process right guaranteed by the Fourteenth Amendment


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             was violated were there was no judicial proceeding to
             determine the voluntariness of the confession admitted
             into evidence at trial[.]

      VII.   Whether the trial court abused its discretion or committed
             an error of law by failing to find that [Appellant’s] Miranda
             rights were violated were prior to being questioned
             [Appellant] was never advised of his right against self-
             incrimination[.]

Appellant’s Brief at 4-5 (emphasis added) (sic).

      Appellant’s claims either are waived or have been previously litigated

and therefore, no relief is warranted. Appellant’s Miranda claims involve a

“[a] violation of the Constitution of this Commonwealth or the Constitution

or laws of the United States which, in the circumstances of the particular

case, so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A. §

9543(a)(2)(i).   However, in order to be eligible for relief, the allegation of

error must not have been previously litigated or waived.        42 Pa.C.S.A. §

9543(a)(3). In his direct appeal, Appellant raised the same Miranda issues,

and this Court affirmed his judgment of sentence; therefore, Appellant is not

eligible for relief on his Miranda claims.       See Tate, 1404 EDA 2013,

Unpublished Memorandum at 6-12. We note that on direct appeal Appellant

did not challenge the content of the warnings; however, his failure to litigate

that at the time of his direct appeal results in waiver. See 42 Pa.C.S.A. §§

9543(a)(3), 9544.

      Appellant’s only claim that does not implicate Miranda is that the trial

court’s transfer of Appellant to a federal detention center was the functional


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equivalent of arrest and was done without probable cause in violation of his

Fourth Amendment rights.     Appellant’s argument is meritless.    It is well

established that an administrative transfer does not implicate rights under

the Fourth Amendment as the subject is already lawfully in custody.     See

Commonwealth v. Bomar, 826 A.2d 831, 846 (Pa. 2003).              Appellant’s

claim fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2017




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