J-S81018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    EDGARDO YARIEL ALFARO-RODRIGUEZ

                             Appellant                 No. 497 MDA 2017


        Appeal from the Judgment of Sentence Entered January 31, 2017
               In the Court of Common Pleas of Lancaster County
               Criminal Division at No.: CP-36-CR-0000738-2016


BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                           FILED MARCH 27, 2018

        Appellant Edgardo Yariel Alfaro-Rodriguez appeals from the January 31,

2017 judgment of sentence entered in the Court of Common Pleas of Lancaster

County (“trial court”), following his jury conviction for robbery (threatening

immediate serious bodily injury) under Section 3701(a)(1)(ii) of the Crimes

Code, 18 Pa.C.S.A. § 3701(a)(1)(ii). Upon review, we affirm.

        The facts and procedural history of this case are uncontroverted. As the

trial court aptly recounted:

               On December 2, 2015, at approximately 4:15 p.m., an
        individual with a partially covered face entered the Family Dollar
        store on Duke Street, pointed what appeared to be a handgun at
        an employee and demanded money. The individual fled when an
        alarm sounded, but initially approached the entrance door and
        appear[ed] to try and push it open with his ungloved hands. When
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S81018-17


       the door did not open, the individual moved to the exit door and
       fled the store. Responding officers retrieved video surveillance
       footage and were able to process a latent writer’s palm print from
       a sticker that was on the area of the door that the individual
       appeared to have touched. It was later determined that the print
       belonged to [Appellant].[1]

              Detective Michael Gerace [(Lancaster City Bureau of Police)]
       had the opportunity to interview [Appellant] on January 27, 2016
       in the presence of Detective Stanley Roche. That interview was
       recorded and played for the jury at trial pursuant to certain
       stipulations by the parties. Immediately prior to the interview
       beginning, Detective Gerace read [Appellant] his Miranda[2]
       rights and [Appellant] signed a waiver of those rights. During the
       interview, [Appellant] initially denied having been in the Family
       Dollar store subsequent to March of 2015 and specifically denied
       having been in the store in December 2015. However, when
       [Appellant] was asked to explain how his print was recovered from
       within the store, [Appellant] stated that he probably went into the
       store and did not remember. Later, [Appellant] stated that he
       was going to be honest and that he was in the store in November
       2015 with a friend. Appellant repeatedly denied robbing the
       Family Dollar store, but eventually admitted that he probably was
       in the store on the same day of the robbery. Furthermore, despite
       never having been told that the individual in the surveillance video
       had his face covered, [Appellant] asked Detective Gerace
       pointedly if his face could be seen in the video.

             At some point during the interview, [Appellant] suddenly
       stated “I don’t want to talk no more, because it really wasn’t me.
       It really wasn’t me. I don’t want to talk no more.” Detective
       Gerace confirmed, stating “ok” and then asked “why, why don’t
       you want to talk?” [Appellant] responded by repeating that while
       he probably went in the same day, he did not rob the store.
____________________________________________


1 Following his arrest on unrelated charges, Appellant was fingerprinted. His
fingerprints matched the fingerprints lifted from the front door of the Family
Dollar store.
2 Miranda v. Arizona, 384 U.S. 436 (1966) (holding that statements
obtained from defendants during interrogation in police-dominated
atmosphere, made without full warning of applicable constitutional rights,
were inadmissible as having been obtained in violation of Fifth Amendment
privilege against self-incrimination).

                                           -2-
J-S81018-17


      [Appellant] stated again that he did not want to speak, but the
      interrogation continued.

Trial Court Opinion, 5/2/17, at 2-4 (internal citations and footnotes omitted)

(footnotes 1 and 2 added). On April 21, 2016, Appellant filed an omnibus

pretrial motion, which he amended on June 7, 2016. In the amended motion,

Appellant sought to suppress all statements obtained from him by Detective

Gerace following Appellant’s affirmative invocation of his right to remain silent.

      On the day of, but prior to the start of, trial, the court held a hearing on

Appellant’s pretrial suppression motion, following which the trial court granted

in part and denied in part relief.    Specifically, with respect to Appellant’s

constitutional privilege against self-incrimination, the trial court granted the

suppression of any statement Appellant made to Detective Gerace after he

invoked his right to remain silent for the second time. In other words, the

trial court allowed the Commonwealth to introduce Appellant’s statements to

Detective Gerace “up to and including the responses after the first invocation”

of his right against self-incrimination. N.T. Suppression, 11/28/16, at 38.

      At trial, the trial court permitted the Commonwealth to play the video

recording of Appellant’s interview by Detective Gerace. In so doing, and over

Appellant’s repeated objections, the jury was permitted to hear Appellant’s

invocation of his Fifth Amendment right against self-incrimination, i.e.,

Appellant’s statements that he did not want to talk. See N.T. Trial, 11/29/16,

at 149-50, 157, 165. Appellant moved for a mistrial, which the trial court

denied.    In addition, over Appellant’s objections again, the trial court



                                      -3-
J-S81018-17



permitted the Commonwealth’s witnesses to point out to the jury the exact

location on the video surveillance footage where Appellant touched the front

door.    Id. at 109-10, 119-20. Following trial, the jury found Appellant guilty

of robbery. On January 31, 2017, the trial court sentenced Appellant to four

to ten years’ imprisonment. Appellant filed post-sentence motions, which the

trial court denied. Appellant timely appealed to this Court. The trial court

directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained

of on appeal.      Appellant complied.    In response, the trial court issued a

Pa.R.A.P. 1925(a) opinion, concluding, among other things, that, even if

Appellant’s Fifth Amendment rights against self-incrimination were violated,

the error was harmless because “[t]he statements by [Appellant] after his first

invocation of silence merely repeated, almost word for word, what he had

previously stated.” Trial Court Opinion, 5/2/17, at 8.

        On appeal, Appellant presents three issues for our review:

        I.     Did the trial court err in denying [Appellant’s] motion to
               suppress his statement to police, from his first invocation of
               his right to remain silent, and in allowing the jury to hear
               that he told police he did not want to talk anymore?

        II.    Did the trial court err in finding that the jury’s verdict of
               guilty of robbery was against the weight of the evidence,
               where [Appellant] acknowledged that he had been in the
               Family Dollar store before, there were other unidentifiable
               prints recovered from the area of the door which the robber
               had touched, and [Appellant] did not match the store clerk’s
               description of the robber?

        III.   Did the trial court err in denying defense counsel’s repeated
               objections to the police officers identifying the location
               where the robbery suspect touched the “in” door of the


                                        -4-
J-S81018-17


            Family Dollar store, where the best evidence of where the
            suspect touched the door was the video itself?

Appellant’s Brief at 7 (unnecessary capitalization omitted). At the outset, we

note that Appellant’s first issue subsumes two distinct issues.        First, he

challenges the trial court’s denial to suppress all statements solicited from him

by Detective Gerace after he invoked his right to remain silent.        Second,

Appellant challenges the trial court’s discretion to allow the Commonwealth to

play to the jury the video recording of his interview with Detective Gerace

where he can be heard invoking his Fifth Amendment right against self-

incrimination.

      We first address his suppression issue. As stated, Appellant argues that

the trial court erred in failing to suppress all statements obtained from him by

Detective Gerace after he invoked his right to remain silent. We agree.

      In reviewing appeals from an order denying suppression, our standard

of review is limited to determining

      whether [the trial court’s] factual findings are supported by the
      record and whether [its] legal conclusions drawn from those facts
      are correct. When reviewing the rulings of a [trial] court, the
      appellate court considers 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.
      When the record supports the 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. Griffin, 116 A.3d 1139, 1142 (Pa. Super. 2015). Our

scope of review is limited to the evidence presented at the suppression

hearing. In the interest of L.J., 79 A.3d 1073, 1088-89 (Pa. 2013).


                                      -5-
J-S81018-17



       It is settled that a suspect is entitled to Miranda warnings prior to a

custodial interrogation.3 Commonwealth v. Boyer, 962 A.2d 1213, 1216

(Pa. Super. 2008) (noting that defendant’s statement, “I don’t want to talk to

you,” was an invocation of his Miranda rights). If a suspect “indicates, in any

manner, at any time prior to or during questioning, that he wishes to remain

silent, the interrogation must cease.” Commonwealth v. Henry, 599 A.2d

1321, 1323 (Pa. Super. 1991) (internal citations omitted). The United States

Supreme Court, however, has held that the invocation of the right to remain

silent or the request for an attorney must be affirmative, clear and

unambiguous. See Berghuis v. Thompkins, 560 U.S. 370 (2010) (noting

that mere silence in the face of police questioning after being given Miranda

warnings is insufficient to invoke Miranda rights).

       In Commonwealth v. Lukach, 163 A.3d 1003 (Pa. Super. 2017), we

held that the trial court did not err in suppressing statements obtained from a

defendant after the defendant stated, “I don’t know, just, I’m done talking. I

don’t have nothing to talk about.” Lukach, 163 A.3d at 1009. We concluded

the defendant’s statement was “a clear and unequivocal invocation of his right

to remain silent[.]” Id. We explained that, “[a]lthough ineloquently phrased,

the [defendant’s] statements were not qualified. They were not ambiguous.
____________________________________________


3 Under Miranda, police officers are required to apprise suspects prior to
questioning that they have the right to remain silent, that any statement made
may be used against them, and that they have the right to an attorney.
Miranda, 384 U.S. at 444. “The defendant may waive effectuation of these
rights, provided the waiver is made voluntarily, knowingly and intelligently.”
Id.

                                           -6-
J-S81018-17



They were not equivocal.” Id. We further explained that “[t]his was the sort

of statement that would lead a reasonable police officer . . . to understand the

statement to be a request to remain silent.” Id. at 1010.

        Thus, consistent with Lukach, Appellant’s statement to Detective

Gerace that “I don’t want to talk no more” was a proper, clear and

unambiguous invocation of his Fifth Amendment right to remain silent. As a

result, the trial court erred in failing to suppress all statements obtained from

Appellant by Detective Gerace after Appellant’s affirmative invocation of his

right to remain silent.

        Nonetheless, even though the trial court erred in failing to suppress

Appellant’s statements made following the invocation of his Fifth Amendment

right, such error was harmless.

        Harmless error exists where: (1) the error did not prejudice the
        defendant or the prejudice was de minimis; (2) the erroneously
        admitted evidence was merely cumulative of other untainted
        evidence which was substantially similar to the erroneously
        admitted evidence; or (3) the properly admitted and
        uncontradicted evidence of guilt was so overwhelming and the
        prejudicial effect of the error was so insignificant by comparison
        that the error could not have contributed to the verdict.

Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002) (citation

omitted). As the trial court reasoned, “The statements by [Appellant] after

his first invocation of silence merely repeated, almost word for word, what he

had previously stated.     Those statements were in no way inculpatory or

incriminating and, in fact, were denials of guilt.” Trial Court Opinion, 5/2/17,

at 8.    As noted earlier, during the interview, Appellant invoked his Fifth


                                      -7-
J-S81018-17



Amendment right to remain silent by stating, “I don’t want to talk no more,

because it really wasn’t me.   It really wasn’t me.   I don’t want to talk no

more.”   In response, Detective Gerace stated, “ok,” and proceeded to ask

Appellant, “[W]hy, why don’t you want to talk?”       Appellant responded by

repeating what he said previously (prior to invoking his Fifth Amendment

right) to Detective Gerace during the interview: that while he probably went

into the Family Dollar store on the same day of the armed robbery, he did not

rob the store.     Accordingly, because the statements given by Appellant

following the invocation of his Fifth Amendment rights were cumulative of

near-identical statements he had given to Detective Gerace earlier during the

interview, the trial court correctly concluded that its error was harmless. See

Commonwealth v. Cartagena, 63 A.3d 294, 301 (Pa. Super. 2013) (“[I]f

the record supports the result reached by the suppression court, we may

affirm on any ground.”) (en banc) (citing Commonwealth v. Lewis, 39 A.3d

341, 345 (Pa. Super. 2012)).

      Appellant next argues that the trial court abused its discretion in

allowing the Commonwealth to play to the jury the video recording of his

interview by Detective Gerace insofar as the jury was permitted to hear his

invocation of his Fifth Amendment right against self-incrimination. In support,

Appellant argues that his statements invoking his right to remain silent “were

admitted for no purpose other than to incriminate [him].” Appellant’s Brief at

17.

      It is settled:

                                     -8-
J-S81018-17


      [a]dmission of evidence is within the sound discretion of the trial
      court and will be reversed only upon a showing that the trial court
      clearly abused its discretion. An abuse of discretion is not merely
      an error of judgment, but is rather the overriding or misapplication
      of the law, or the exercise of judgment that is manifestly
      unreasonable, or the result of bias, prejudice, ill-will or partiality,
      as shown by the evidence of record.

Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015) (internal

citations omitted). Moreover, an appellant bears a “heavy burden” to show

that the trial court has abused its discretion. Commonwealth v. Christine,

125 A.3d 394, 398 (Pa. 2015).        “[A]n appellate court may affirm a valid

judgment based on any reason appearing as of record, regardless of whether

it is raised by appellee.” Commonwealth v. Moore, 937 A.2d 1062, 1073

(Pa. 2007) (citation omitted).

      In Commonwealth v. Holloman, 621 A.2d 1046 (Pa. Super. 1993),

we held that “[i]t is a clear violation of the accused’s constitutional right

against self-incrimination to make a reference at trial to his silence while in

police custody.” Holloman, 621 A.2d at 1048. We, however, cautioned that

a defendant’s Fifth Amendment right to remain silent is not violated when “[a]

witness’s remark about [a defendant’s] post-arrest silence was brief[,]”

unintentionally “solicited by the prosecuting attorney,” who does not “make

any attempt to exploit the remark.” Id. at 1049.

      In Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010), we

concluded that the defendant’s Fifth Amendment rights were not violated

when, at trial, a Commonwealth witness referenced the defendant’s invocation

of his right to remain silent during a post-arrest interview because the


                                       -9-
J-S81018-17



Commonwealth did not “seek to exploit the reference.” Moury, 992 A.2d at

177.     We also noted that the Commonwealth did not have “any improper

purpose in asking the question.” Id.

         In Commonwealth v. Molina, 104 A.3d 430 (Pa. 2014) (plurality), the

investigating detective testified that while the defendant reluctantly answered

several questions on the telephone and ended the call, he refused to go to the

police    station   for   further   questioning.   In   closing   arguments,   the

Commonwealth relied on this silence as constituting evidence of guilt.

Molina, 104 A.3d at 438. Discounting the defendant’s reluctance to talk to

police on the telephone, the Molina Court found that the defendant’s “actions

in affirmatively and definitively refusing to come to the police station” were

sufficient to invoke his right against self-incrimination. Id. at 438. Thus, the

Court cautioned that the right against self-incrimination “prohibits use of a

defendant’s pre-arrest silence as substantive evidence of guilty, unless it falls

within an exception such as impeachment of a testifying defendant or fair

response to an argument of the defense.” Id. at 451.

         In contrast, in Commonwealth v. Adams, 104 A.3d 511 (Pa. 2014)

(plurality), the detective testified over objection that he attempted to

interview the defendant about a homicide, but the defendant responded that

he had nothing to say. Adams, 104 A.3d at 513. No further reference was

made to the defendant’s pre-arrest silence. The plurality in Adams noted that

mere reference to a defendant’s silence does not necessarily impinge

constitutional rights when guilt is not implied. Id. at 517 (citation omitted).

                                        - 10 -
J-S81018-17



“While we have interpreted the constitutional right against self-incrimination

generally to prohibit prosecutors from referencing a defendant’s silence as

substantive evidence of guilty,” the plurality continues, “this Court has also

concluded that the right against self-incrimination is not burdened when the

reference to silence is ‘circumspect’ and does not ‘create an inference of an

admission of guilt.’” Id. (citation omitted).

       Here, consistent with the foregoing cases,4 we conclude that the trial

court did not abuse its discretion in allowing the Commonwealth to play the

video surveillance recording to the jury where Appellant can be heard invoking

his right against self-incrimination during the interview. The Commonwealth

here did not call to the stand any witnesses who testified that Appellant had

invoked his right to remain silent during the interview. Stated differently, no

witnesses referenced Appellant’s invocation of his right to remain silent.

Similarly, at no point during trial, including closing arguments, did the

Commonwealth exploit, emphasize, or use as substantive evidence of guilt

Appellant’s invocation of his Fifth Amendment right against self-incrimination.

On the contrary, as the trial court noted, to the extent the jury heard

____________________________________________


4  Even though Molina and Adams concerned pre-arrest silence, their
rationale is equally applicable to cases involving post-arrest invocation of
Miranda rights. Molina, 104 A.3d at 449-50 (noting that “the timing of the
silence, whether it be pre or post-arrest, or pre or post-Miranda warnings, is
not relevant to the question of whether a prosecutor’s use of the silence as
substantive evidence of guilt violates an individual’s right against self-
incrimination.”).



                                          - 11 -
J-S81018-17



Appellant’s invocation of his right against self-incrimination, it was “in the

context of a denial of guilt.” Trial Court Opinion, 5/2/17, at 8. Specifically,

the jury heard Appellant state to Detective Gerace, “I don’t want to talk no

more, because it really wasn’t me. It really wasn’t me. I don’t want to talk

no more.” Accordingly, the trial court did not abuse its discretion.5

       With respect to Appellant’s remaining two issues, we conclude, after

careful review of the record and the relevant case law, that the trial court

accurately and thoroughly addressed the merits of Appellant’s claims. See

Trial Court Opinion, 5/2/17, at 8-16.              Accordingly, we affirm Appellant’s

January 31, 2017 judgment of sentence. We further direct that a copy of the

trial court’s May 2, 2017 opinion be attached to any future filings in this case.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/27/2018




____________________________________________


5  We observe that Appellant’s trial counsel did not request a curative
instruction regarding the effect of Appellant’s invocation of his right to remain
silent as shown to the jury on the video recording.

                                          - 12 -
                                                                       Circulated 02/28/2018 03:49 PM
                       )                                    )



  IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                         CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

      VS.                                            No.   0738-2016           r-
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EDGARDO ALF ARO-RODRIGUEZ                                                       )>     >      :::0
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      Appellant/Defendant, Edgardo Alfaro-Rodriguez, appeals from the jW:Jgrffent

of sentence imposed on January 31, 2017. Defendant claims reversible error

occurred in the admission of certain non-inculpatory statements made by Defendant

in response to a neutral, clarifying question concerning Defendant's right to remain

silent and in the admission of testimony by investigating officers concerning their

observations of video and physical evidence as it related to the course of their

investigation. Defendant also asserts that the jury's verdict is against the weight of

the evidence. The record demonstrates that Defendant's right to remain silent was

scrupulously honored, that the testimony of the officers did not cause unfair

prejudice or mislead the jury where the jury viewed the video and physical evidence

and was free to draw their own conclusions and that the preponderance of the

evidence supports the jury's verdict. Therefore, the January 31, 2017 Judgment of

Sentence should not be disturbed.
                                          BACKGROUND

          On December 2, 2015, at approximately 4:15 p.m., an individual with a

partially covered face entered the Family Dollar store on Duke Street, pointed what

appeared to be a handgun at an employee and demanded money.1 The individual fled

when an alarm sounded, but initially approached the entrance door and appears to

try and push it open with his ungloved hands.2 When the door did not open, the

individual moved to the exit door and fled the store. 3 Responding officers retrieved

video surveillance footage and were able to process a latent writer's palm print from

a sticker that was on the area of the door that the individual appeared to have

touched.4 It was later determined that the print belonged to Defendant.5

         Detective Michael Gerace had the opportunity to interview Defendant on

January 27, 2016 in the presence of Detective Stanley Roche.6 That interview was

recorded and played for the jury at trial pursuant to certain stipulations by the

parties.7 Immediately prior to the interview beginning, Detective Gerace read

Defendant his Miranda rights and Defendant signed a waiver of those rights.8 During



I
  N.T.   Criminal Trial,   11/28/17-11/29/l 7, pp. 96-99; Com. Ex. 2.
2
  N.T.   Criminal Trial,   11/28/17-11/29/17, pp. 98, 100; Com. Ex. 2.
3
  N.T.   Criminal Trial,   11/28/17-11/29/17, pp. 98, 100; Com. Ex. 2.
4
  N.T.   Criminal Trial,   11/28/17-11/29/17, pp. 105, 108-111, 118-122; Com. Ex. 7; Com. Ex. 8.
5
  N.T.   Criminal Trial,   l l/28/17-11/29/17, pp. 124-125, 144-149, 151; Com. Ex. 7; Com. Ex. 8.
6N.T.    Criminal Trial,   11/28/17-11/29/17,pp.151-152
7N.T.    Criminal Trial,   ll/28/17-11/29/17,pp.152-153, 156-157.
8
  N.T.   Criminal Trial,   1 l/28/17-11/29/17, pp. 153-154; Com. Ex. 5; Com. Ex. 6, clip 2 at 00:33-
2:47.
                                                    2
the interview, Defendant initially denied having been in the Family Dollar store

subsequent to March of 2015 and specifically denied having been in the store in

December 2015.9 However, when Defendant was asked to explain how his print was

recovered from within the store, Defendant stated that he probably went into the

store and did not remember.I? Later, Defendant stated that he was going to be honest

and that he was in the store in November 2015 with a friend. 11 Defendant repeatedly

denied robbing the Family Dollar store, 12 but eventually admitted that he probably

was in the store on the same day of the robbery.13 Furthermore, despite never having

been told that the individual in the surveillance video had his face covered,

Defendant asked Detective Gerace pointedly if his face could be seen in the video.14

       At some point during the interview, Defendant suddenly stated "I don't want

to talk no more, because it really wasn't me. It really wasn't me. I don't want to talk

no more."15 Detective Gerace confirmed, stating "ok" and then asked "well why

don't you want to talk?"16 Defendant responded by repeating that while he probably




9  Com. Ex. 6, clip 3 at 2:43-4:34.
°
1
11
    Com. Ex. 6, clip 3 at 4:33-4:48.
    Com. Ex. 6, clip 3 at 4:57-5:00, clip 4 at 00:00-00:27.
12 Com. Ex. 6,
                clip 4 at 2:36-2:45, clip 5 at 00:14-00:28, 1:16-1:31; 1:49-2:18, 3:21-3:25, 3:28-
3:48.
13
    Com. Ex. 6, clip 5 at 3 :08-3: 11, 3 :28-3 :48.
14
    N.T. Criminal Trial, l 1/28/17-11/29/17, pp. 152; Com. Ex. 6, clip 5 at 2:58-3:01.
15
    Com. Ex. 6, clip 5 at 3:21-3:25.
16
    Com. Ex. 6, clip 5 at 3:26-3:28.
                                                  3
went in the same day, he did not rob the store.17 Defendant stated again that he did

not want to speak, but the interrogation continued.18

       Prior to and during trial, Defendant moved to suppress and objected to the

admission of Defendant's initial statement that he did not want to speak anymore

and everything thereafter.19 It was found that Defendant's right to remain silent was

scrupulously honored following his initial statement that he no longer wished to

speak and that Detective Gerace's clarifying question following Defendant's

statement was neutral and not meant to entice Defendant into abandoning his right."

However, it was also found that following Defendant's second statement that he did

not wish to speak anymore, that Defendant's right to remain silent was not

scrupulously honored.21 Therefore, it was ruled that the video would be suppressed

from the point where Defendant states for the second time that he does not wish to

speak any longer. 22

       Following trial on November 28 and 29, 2017, a jury found Defendant guilty

of robbery.23 Following the completion of a presentence investigation, Defendant

was sentenced on January 31, 2017 to four (4) to ten (10) years of incarceration.



17
   Com. Ex. 6, clip 5 at 3 :28-3 :48.
18
   Com. Ex. 6, clip 5 at 3:49-5:00, clip 6 at 00:00-4:50.
19
   N.T. Criminal Trial, 11/28/17-11/29/l 7, pp. 4, 30-32, 149-150, 157.
20
   N.T. Criminal Trial, 11/28/17-11/29/l 7, pp. 38, 150.
21
   N.T. Criminal Trial, ll/28/17-11/29/17,pp. 38, 150.
22
   N.T. Criminal Trial, 11/28/17-11 /29/17, pp. 38, 150.
23
   18 Pa.C.S.A. 3701(a)(l)(ii).
                                                4
Defendant filed a post-sentence motion on February 8, 2017, which was denied by

Order dated February 17, 2017. Defendant filed his notice of appeal on March 20,

2017.

                  Statement of Errors Complained of on Appeal

        On April 11, 201 7, Defendant filed a Statement of Errors Complained of on

Appeal asserting the following:

        1.    It was error to deny Defendant's motion to suppress Defendant's

              recorded statements beginning with Defendant's first assertion that he

              did not wish to speak anymore;

        2.    It was error to overrule Defendant's objections to testimony from

              officers indicating the area of the door they observed the suspect touch

              in the video because the best evidence of such was the video; and

        3.    The jury's verdict was against the weight of the evidence where there

              were multiple prints recovered from the entrance door and where the

              eyewitness' estimate of the suspect height and weight differed from

              Defendant's height and weight.

                                   DISCUSSION

I.      Defendant's Miranda Rights

        Statements obtained from a person after they have decided to remain silent

may be admissible if the "right to cut off questioning" was scrupulously honored.


                                          5
Com. v. Harris, 972 A.2d 1196, 1203 (Pa.Super. 2009) (citing Michigan v. Mosley,

423 U.S. 96, 103-104 (1975)). While certain factors have been recognized as

instructive in determining whether the right has been scrupulously honored, the

pivotal question is the purpose of the resumed questioning as shown by the

circumstances. Id. at 1203-05. Miranda v. Arizona, 384 U.S. 436 (1966) bars only

"words or actions on the part of the police (other than those normally attendant to

arrest and custody) that the police should know are reasonably likely to elicit an

incriminating response from the suspect." Com. v. Henry, 599 A.2d 1321, 1325

(Pa.Super. 1991) (quoting Rhode Islandv. Innis, 446 U.S. 291, 301 (1980)) (internal

citations omitted). Therefore, the appropriate test is whether the purpose of resuming

the questions was to entice the person to abandon that right. Harris, 972 A.2d at

1203-05. If the circumstances do not indicate that the police acted coercively to force

the person to change their mind, then the invocation of the right to remain silent was

scrupulously honored. Id. at 1204.

      It has been specifically noted that clarifying questions following a suspect's

attempt to invoke certain rights during custodial interrogation may help to protect

the rights of a suspect. Davis v. United States, 512 U.S. 452, 461-62 (1994). For

instance, it may be helpful to both the police and the suspect to clarify whether the

suspect wishes to remain silent because he desires the assistance of counsel. See,

Davis v. United States, 512 U.S. at 461-62 (noting that such clarification helps


                                          6
protect the rights of the suspect by ensuring that he gets an attorney ifhe wants one).

Therefore, questions that are merely for purposes of clarification, have been found

to be proper. Id.

        During questioning in the instant case, Defendant suddenly stated that he did

not want to talk anymore.24 Detective Gerace first acknowledged Defendant's

statement and then asked what could only be described as a question seeking

clarification and an explanation of the prior statement. 25 The circumstances do not

indicate coercion, an attempt to entice Defendant into abandoning his right or

knowledge that the question was reasonably likely to elicit an incriminating

response. In fact, the question did not elicit an incriminating response from

Defendant because he merely repeated what was previously said and reaffirmed that

he did not wish to speak anymore. 26 All further statements were suppressed. 27

       Even if it were found that Defendant's right to remain silent was not

scrupulously honored or that it was error to permit the jury to hear Defendant's

invocation of silence, it does, alone, mean that Defendant is entitled to a new trial.

See, e.g., Com. v. DiNicola, 866 A.2d 329, 336-37 (Pa. 2005) (holding that the mere

revelation of silence, or even an explicit reference to it, does not establish innate




24
   Com. Ex. 6, clip 5 at 3:21-3:25.
25
   Com. Ex. 6, clip 5 at 3:26-3:28.
26
   Com. Ex. 6, clip 5 at 3 :28-3 :48.
27
   N.T. Criminal Trial, 11/28/17-11/29/17, pp. 38, 150.

                                                7
prejudice); Henry, 599 A.2d at 1326-27 (1991) (holding that even the erroneous

admission of a coerced confession can be constitutionally harmless). The statements

by Defendant after his first invocation of silence merely repeated, almost word for

word, what he had previously stated. Those statements were in no way inculpatory

or incriminating and, in fact, were denials of guilt. As for the admission of

Defendant's invocation of silence, there is no indication in the record that the

admission of such in any way suggested to the jury that Defendant's wish to remain

silent was the equivalent of a tacit admission of guilt. If fact, it was offered by

Defendant in the context of a denial of guilt. It was never referenced by the

Commonwealth and was not presented in any way that burdened Defendant's Fifth

Amendment right. The record fails to demonstrate that the outcome of the case

would have been any different absent the admission Defendant's non-incriminating

statements. Therefore, admission of such, even if in error, was constitutionally

harmless and does not warrant relief.

II.       Testimony Concerning the Officers' Observations

          During the second showing of the surveillance video at trial, Officer Jonathan

Caple identified the point in the surveillance video where the suspect can be seen

touching the inside of the entrance door in the store and made a brief indication of

the general area in which he observed the suspect make contact.28 Defendant's


28
     N.T. Criminal Trial, 11/28/17-11/29/l 7, pp. 109-110.
                                                  8
objection to this testimony was overruled.29 Officer Caple then indicated, without

objection, where the suspect was observed touching the inside of the door in a still

photograph. 30 Officer Caple explained that it was his observation of the surveillance

video, specifically the area of the door touched by the suspect, that led him to contact

Detective Gerace about looking for fingerprints in that particular area.31

            Detective Gerace then testified, without objection, that he was able to

determine, from his observation of the surveillance video, that the suspect touched a

sticker located on the inside of the entrance door.32 Like Officer Caple, Detective

Gerace was asked to indicate where in the still photograph of the entrance door that

he observed the suspect touch the door in the surveillance video.33 Defendant

objected to this line of questioning arguing that the video is the best evidence of

where the suspect touched the door.34 Defendant's objection was overruled, but the

question was reworded anyway and Detective Gerace was asked to indicate where

in the photograph of the door the suspect was observed to have touched the door and

where Detective Gerace ultimately performed the latent print processing.35 Detective

Gerace did not indicate the area he observed the suspect touch, but did describe how



29N.T.      Criminal Trial,   11/28/17-11/29/17,p. 110.
30N.T.Criminal       Trial,   11/28/17-11/29/17,pp.110-lll.
31
     N.T.   Criminal Trial,   11/28/17-11/29/17, p. 111.
32N.T.      Criminal Trial,   11/28/17-11/29/17,pp. 118-119.
33
   N.T.     Criminal Trial,   11/28/17-11/29/17, p. 119.
34
   N.T.     Criminal Trial,   11/28/17-11/29/17, p. 119.
35
   N.T.     Criminal Trial,   11/28/17-11/29/l 7, p. 119.
                                                     9
the sticker was affixed to the door and how he performed the latent print processing

before removing the sticker from the door.36

         Pennsylvania's best evidence rule requires that an original recording or

photograph be produced in order to prove its content. Com. v. Loughnane, 128 A.3d

806, 813 (Pa. Super. 2015), reargument denied (Feb. 1, 2016), appeal granted in part

sub nom. Com. v. Loughnane, No. 164 MAL 2016, 2016 WL 5819328 (Pa. July 19,

2016). See, also, Pa.R.E. 1002. The purpose of the rule, similar to the common law

rule, include: ensuring the exact words of certain documents are used for

interpretation of those documents; avoiding the inaccuracies to which secondary

evidence is susceptible; inhibiting fraud by allowing the examination of the original

content; and furnishing authenticating information that may only be present with the

original. Pa.R.E. 1002 (Comment). The best evidence rule has been applied to bar

testimony relaying the contents of a videotape when the tape itself was never

admitted into evidence to prevent misleading the jury. Com. v. Lewis, 623 A.2d 355,

358 (Pa.Super. 1993). The best evidence rule does not bar testimony concerning an

officer's observations of the content, his personal knowledge or that which might

assist the jury in understanding the content where the original is admitted into

evidence. Com. v. Brown, 134 A.3d 1097, 1106 (Pa.Super. 2016), appeal denied,




36N.T.   Criminal Trial, 11/28/17-11/29/17,p. 120.
                                                10
 145 A.3d 161 (Pa. 2016); Com. v. Cole, 135 A.3d 191, 196 (Pa.Super. 2016), appeal

denied, 145 A.3d 162 (Pa. 2016).

          In the instant case, Officer Caple and Detective Gerace gave limited testimony

after the presentation of the surveillance video, to explain the course of their

investigation, specifically, the reason prints were processed from that particular area

of the door, and to direct the jury's attention to specific portions of the surveillance

video and still photograph. The testimony of the officers was based upon their

experience, observations and personal knowledge of where and how the sticker was

located on the inside of the entrance door. Furthermore, both the video and the

photograph were admitted into evidence, they were viewed by the jury multiple

times without narration" and the jury was specifically instructed that they were the

sole judges of the facts, had the sole responsibility of weighing the evidence, and all

inferences therefrom, and were free to disregard any evidence which they found to

be not credible.38 Because the jury watched the video and saw the photograph, they

were free to disregard the officers' conclusions or use them as guides to examine the

photograph and video more closely. The record specifically demonstrates that the

jury did not simply rely upon the testimony of Officer Caple and Detective Gerace,

but instead sought to thoroughly examine that portion of video themselves to reach



37
     N.T. Criminal Trial, 11/28/17-11/29/17, pp. 204-206.
38N.T.    Criminal Trial, ll/28/17-11/29/17,pp. 188-190.
                                                 11
a determination. The testimony of the officers was, therefore, not unfairly prejudicial

and not in violation of the rules of evidence.

III.   Weight of the Evidence

       A motion for new trial on the grounds that the verdict is contrary to the weight

of the evidence is addressed to the discretion of the trial court, but "should not be

granted because of a mere conflict in the testimony or because the judge on the same

facts would have arrived at a different conclusion." Com. v. Clay, 64 A.3d 1049,

1054-55 (Pa. 2013). A challenge to the weight of the evidence "concedes that there

is sufficient evidence to sustain the verdict" and, therefore, does not require that the

trial court view the evidence in the light most favorable to the verdict winner. Com.

v. Widmer, 744 A.2d 745, 751 (Pa. 2000). However, the role of the trial judge is not

to sit as another juror, but "to determine that notwithstanding all the facts, certain

facts are so clearly of greater weight that to ignore them or to give them equal weight

with all the facts is to deny justice." Widmer, 744 A.2d at 751-52 (internal citation

omitted). Previously, it was held that a new trial is warranted if"the jury's verdict is

so contrary to the evidence as to shock one's sense of justice and the award of a new

trial is imperative so that right may be given another opportunity to prevail." Clay,

64 A.3d at 1055 (internal citation omitted).




                                           12
       Appellate review of a decision concerning the weight of the evidence is well

settled:

       An appellate court's standard of review when presented with a weight
       of the evidence claim is distinct from the standard of review applied by
       the trial court:

       Appellate review of a weight claim is a review of the exercise of
       discretion, not of the underlying question of whether the verdict is
       against the weight of the evidence. Brown, 648 A.2d at 1189. Because
       the trial judge has had the opportunity to hear and see the evidence
       presented, an appellate court will give the gravest consideration to the
       findings and reasons advanced by the trial judge when reviewing a trial
       court's determination that the verdict is against the weight of the
       evidence. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545
       (Pa.1976). One of the least assailable reasons for granting or denying a
       new trial is the lower court's conviction that the verdict was or was not
       against the weight of the evidence and that a new trial should be granted
       in the interest of justice.

       Widmer, 560 Pa. at 321-22, 744 A.2d at 753 (emphasis added).

      This does not mean that the exercise of discretion by the trial court in
      granting or denying a motion for a new trial based on a challenge to the
      weight of the evidence is unfettered. In describing the limits of a trial
      court's discretion, we have explained:

      The term 'discretion' imports the exercise of judgment, wisdom and
      skill so as to reach a dispassionate conclusion within the framework of
      the law, and is not exercised for the purpose of giving effect to the will
      of the judge. Discretion must be exercised on the foundation of reason,
      as opposed to prejudice, personal motivations, caprice or arbitrary
      actions. Discretion is abused where the course pursued represents not
      merely an error of judgment, but where the judgment is manifestly
      unreasonable or where the law is not applied or where the record shows
      that the action is a result of partiality, prejudice, bias or ill-will.

      Widmer, 560 Pa. at 322, 744 A.2d at 753 (quoting Coker v. S.M
      Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-85 (1993)).
                                         13
Id. An appellate court cannot "invade the trial judge's discretion any more than a

trial judge may invade the province of a jury, unless both or either have palpably

abused their function." Id. at 1056.

          Here, Defendant claims that the verdict was against the weight of the

evidence, in part, because other prints, though not usable for identification purposes,

were also recovered from the door.39 It has been recognized that "the probative value

of fingerprint evidence 'depends entirely on the circumstances of each case.:" In re

MJ.H, 988 A.2d 694, 697 (Pa.Super. 2010) (citing Com. v. Cichy, 323 A.2d 817,

818 (Pa.Super. 1974)). In the instant matter, the verdict is not supported by the mere

existence of Defendant's prints among many others. Defendant left a clear palm print

on the inside of a door that was not intended to be used from the inside of the store.

Furthermore, Defendant's print was directly linked to the suspect because

surveillance video showed the suspect touching the door in the same area that

Defendant's print was recovered. The existence of the surveillance video permitted

the jury to do more than merely speculate, but allowed them to determine, in their

role as the sole fact finders, whether the print recovered from the door was placed

there by the suspect in the video. While Defendant admitted that he was present in

the store on prior occasions, Detective Gerace explained that prints will lose their



39
     N.T. Criminal Trial, 11/28/17-11/29/17, pp. 129-130.
                                                 14
value over time and that the heat from inside the store would have an effect on the

quality of any prints on the inside of the door over time." Additionally, Defendant's

statements concerning his presence in the store was inconsistent and contradictory.

In fact, Defendant only admitted to possibly having been in the store on the day of

the robbery when he was confronted with the evidence. Considering the record as a

whole, especially the surveillance video, Defendant's clear print, the testimony of

the responding officer and detectives and Defendant's contrary and inconsistent

statements, the existence of unidentifiable prints and smudges on the door to the

store is not so clearly of greater weight that to ignore them or to give them equal

weight with all the facts is to deny justice. Therefore, the verdict cannot be found to

be against the weight of the evidence.

       Defendant also asserts that the verdict was against the weight of the evidence

because the eye witness estimated that the suspect weighed approximately one

hundred eighty-five (185) pounds and stood approximately six (6) feet tall,41 while

Detective Gerace stated in his report that Defendant weighs one hundred fifty ( 150)

pounds and stands five (5) feet and seven (7) inches tall.42 The slight difference in

Defendant's physical characteristics as compared to the eye witness' estimate is

clearly outweighed by the positive print identification directly linking Defendant to


40
   N.T. Criminal Trial, 11/28/17-11/29/17, pp. 130-131.
41
   N.T. Criminal Trial, 11/28/17-11/29/17, pp. 99, 102
42
   N.T. Criminal Trial, 11/28/17-11/29/17, pp. 161-162.
                                               15
                         )                                     )

the robbery and the video surveillance of the suspect. The video permitted the jury,

as the sole fact finders in the case, to determine if Defendant indeed matched the

physical characteristics of the suspect in the video. Considering the record as a

whole, the eye witness' erroneous estimate is not so clearly of greater weight that to

ignore it or to give it equal weight with all the facts is to deny justice. Therefore, the

verdict cannot be found to be against the weight of the evidence.

       For all the foregoing reasons, the judgment of sentence imposed on January

31, 201 7 should not be disturbed.

                                                   BY THE COURT:



                                                   HOWARD F. KNISE
                                                   JUDGE

ATTEST:

Copies to:

                                                                               r-
MaryJean Glick, Senior Assistant Public Defender
Office of the District Attorney
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