J-A26032-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ABRAHAM JOHN KLINE

                            Appellant              No. 166 MDA 2014


           Appeal from the Judgment of Sentence December 5, 2013
              In the Court of Common Pleas of Columbia County
             Criminal Division at No(s): CP-19-CR-0000592-2012


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED NOVEMBER 03, 2014

        Appellant Abraham Kline (“Appellant”) appeals from the judgment of

sentence entered in the Columbia County Court of Common Pleas following

his jury trial conviction for third degree murder1 and aggravated assault.2

After careful review, we affirm.

        We summarize the relevant trial evidence and procedural posture as

follows. Appellant and his paramour, Jocelyn Romano, resided together in

an RV on property owned by Catherine Kline, Appellant’s mother.     On the

morning of May 15, 2012, Appellant shot Ms. Romano in the back with a rifle

that he then used to shoot himself in the chest. First responders took the

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1
    18 Pa.C.S. § 2502(c).
2
    18 Pa.C.S. § 2702(a)(4).
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pair to the hospital, where Ms. Romano was pronounced dead later that

morning.

      Also on May 15, 2012, at 12:10 p.m., Catherine Kline executed a

written consent allowing the Pennsylvania State Police to search the “outside

areas” of the property. A trooper searched and photographed the outside of

the premises, giving special attention to evidence subject to degradation

from the elements such as bloodstains.       While the trooper conducted this

exterior search/photography, other off-scene troopers had begun the

process of obtaining a search warrant for the entire Kline property.     The

trooper conducting the exterior search knew that other troopers were

seeking a warrant to search the entire property.

      After surveying and photographing the exterior of the property, the

trooper entered the RV and took photographs intended to document the

interior of the vehicle in the event that evidence therein might also be

subject to degradation. During this entry, the trooper did not touch, seize,

or remove anything, but instead simply took photographs to document the

condition of the RV.

      Later, after learning the court had issued a search warrant for the

entire Kline property, the state police returned to the RV and conducted a

full search and seizure of evidence.

      Three days later, on May 18, 2012, hospital personnel removed

Appellant’s breathing tube and pronounced him fit to communicate with

police.   Unarmed, plain-clothes state troopers interviewed Appellant after

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administering Miranda3 rights and explaining the state police’s standard

Rights and Waivers Form, which Appellant signed. Three days later, on May

21, 2012, the state police served a search warrant authorizing the collection

of Appellant’s DNA, and again interviewed Appellant in his hospital bed after

once more administering Miranda rights and after Appellant signed another

waiver.

        Appellant later sought the suppression of the evidence from the RV

and the statements he made to the state police while in the hospital. The

trial court denied the requested suppression.

        A jury convicted Appellant of third degree murder and aggravated

assault.4    The trial court then sentenced Appellant to 20 to 40 years of

incarceration on the third-degree murder conviction.5 Appellant filed a post-

sentence Motion to Modify and Reduce Sentence, which the trial court

denied. Appellant then timely appealed.

        Appellant presents the following issues for our review:

        A. WHETHER THE TRIAL COURT ERRED IN ITS SENTENCE BY
        FAILING  TO   CONSIDER    MITIGATING   FACTORS   AND
        SENTENCING KLINE TO THE MAXIMUM STATUTORY LIMIT.




____________________________________________


3
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
4
    The jury acquitted Appellant of first-degree murder.
5
    The aggravated assault conviction merged for sentencing purposes.



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      B.  WHETHER THE TRIAL COURT ERRED IN DENYING THE
      APPELLANT’S MOTION TO SUPPRESS ITEMS SEIZED FROM HIS
      HOME AS THE SEARCH WAS ILLEGAL AND UNCONSTITUTIONAL.

      C.  WHETHER THE TRIAL COURT              ERRED IN DENYING THE
      APPELLANT’S MOTION TO SUPPRESS           APPELLANT’S STATEMENTS
      AS THE STATEMENTS WERE NOT                MADE KNOWINGLY AND
      VOLUNTARILY AS THE DEFENDANT             WAS HOSPITALIZED AND
      HIGHLY MEDICATED.

Appellant’s Brief, p. 6.

A. The Sentencing Claim

      Appellant first claims that the trial court abused its discretion in

imposing a statutory maximum sentence of 20 to 40 years of incarceration

for his third degree murder conviction because the trial court failed to take

into account certain mitigating factors during sentencing.     See Appellant’s

Brief, pp. 19-21. This claim fails to raise a substantial question for review.

      Appellant’s claim raises a challenge to the discretionary aspects of his

sentence.   “Challenges to the discretionary aspects of sentencing do not

entitle a petitioner to review as of right.”    Commonwealth v. Allen, 24

A.3d 1058, 1064 (Pa.Super.2011).       Before this Court can address such a

discretionary challenge, an appellant must comply with the following

requirements:

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test: (1) whether appellant has filed a timely notice of
      appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was
      properly preserved at sentencing or in a motion to reconsider
      and modify sentence, see Pa.R.Crim.P. [720]; (3) whether
      appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4)
      whether there is a substantial question that the sentence
      appealed from is not appropriate under the Sentencing Code.

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Allen, 24 A.3d at 1064.

      Appellant in the present case filed a timely notice of appeal and

preserved his issues in a Motion to Modify and Reduce Sentence. Further,

Appellant’s brief includes a concise statement of the reasons relied upon for

allowance of appeal pursuant to Pa.R.A.P. 2119(f).             See Appellant’s Brief,

pp. 17-18. Accordingly, we now determine whether Appellant has raised a

substantial question for review and, if so, proceed to a discussion of the

merits of the claim.     Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki,

522 A.2d 17 (Pa.1987).

      “A substantial question will be found where the defendant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the [sentencing] code or is contrary to the fundamental

norms     which   underlie    the    sentencing    process.”   Commonwealth        v.

Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see

also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises a

substantial question on a case-by-case basis.” Christine, 78 A.3d at 10. A

bald or generic assertion that a sentence is excessive does not, by itself,

raise a substantial question justifying this Court’s review of the merits of the

underlying claim. Id.; see also Commonwealth v. Harvard, 64 A.3d 690,

701 (Pa.Super.2013).         Further, a claim that the court failed to consider

certain mitigating factors does not present a substantial question.              See

Commonwealth v. Johnson, 961 A.2d 877 (Pa.Super.2008), appeal

denied,    968    A.2d   1280       (Pa.2009);    see   also   Commonwealth        v.

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Coolbaugh, 770 A.2d 788, 793 (Pa.Super.2001) (“Appellant’s claim that the

court did not consider his personal life situation of having a drug problem

does not raise a substantial question”); Commonwealth v. Rhoades, 8

A.3d 912 (Pa.Super.2010) (a claim that the trial court ignored the evidence

of an appellant’s alleged brain damage, limited mental capacity, and good

behavior in prison is essentially a claim that the trial court inappropriately

applied the mitigating information when imposing sentence, which does not

present a substantial question for appellate review); Commonwealth v.

Urrutia, 653 A.2d 706, 710 (Pa.Super.1995) (“an allegation that a

sentencing court ‘failed to consider’ or ‘did not adequately consider’ certain

factors does not raise a substantial question that the sentence was

inappropriate”);   Commonwealth       v.   Lawson,    650   A.2d   876,   881

(Pa.Super.1995) (claim that trial court ignored rehabilitative needs in

imposing sentence does not constitute a substantial question for review);

Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa.Super.1997) (claim

that trial court did not give adequate consideration to rehabilitative needs

does not present a substantial question); Commonwealth v. Williams,

562 A.2d 1385, 1387-88 (Pa.Super.1989) (claim that trial court should have

imposed a lesser, more appropriate sentence in light of the defendant’s poor

health and family situation constituted a request that this Court substitute

its judgment regarding an appropriate sentence, which does not raise a

substantial question).




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       Here, Appellant’s 2119(f) statement does not identify a violation of a

specific provision of the Sentencing Code or a fundamental norm of the

sentencing process that the trial court contravened.           Instead, in his

Pa.R.A.P. 2119(f) statement, Appellant alleges that the trial court imposed

an unreasonable sentence for third degree murder because it failed to

properly consider certain alleged mitigating factors.    See Appellant’s Brief,

pp. 17-18. Importantly, Appellant does not argue that the sentencing court

relied upon any impermissible factors in sentencing, relied solely on the

severity of the crime committed, or sentenced beyond statutory limits.

Instead, he alleges that the sentencing court failed to consider what he felt

were mitigating factors6 in imposing its sentence.      Accordingly, Appellant’s

Rule 2119(f) statement does not raise a substantial question for our review.7

       Even had the Appellant stated a substantial question for review, the

claim fails on the merits. In imposing sentence, the trial court considered

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6
  Appellant’s 2119(f) statement discusses the alleged mitigating factors that
Appellant would have liked the sentencing court to consider.              See
Appellant’s Brief, p. 17. These factors included: “(1) Kline’s sincere and
genuine remorse; (2) Kline’s ability to appreciate [the] wrongfulness of [his]
conduct; (3) Kline’s low likelihood of re-offending; and (4) Kline’s lack of a
prior criminal history.” Id.
7
  We acknowledge that “a substantial question exists when a sentencing
court imposed a sentence in the aggravated range without considering
mitigating factors.” Rhoades, 8 A.3d at 919 n.12 (citing Commonwealth
v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super.2003) (emphasis in original).
However, in this case, the trial court sentenced Appellant within the
standard range of the sentencing guidelines, as discussed infra.



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the circumstances of the crime, sentencing guidelines, and the mitigating

factors Appellant alleged it ignored.          See 1925(a) Opinion, pp. 1-3.   The

court sentenced Appellant to a standard range sentence within the statutory

maximum.8       See id. at 1-2.        The trial court explained the sentence in

relation to the guidelines as follows:

       The Sentencing Guidelines indicate that [Appellant’s] Prior
       Record Score was “0,” and a[] third degree murder carries an
       Offense Gravity Score of 14. Applying the “Deadly Weapon
       Used” matrix ([Appellant] shot the Victim with a rifle), the
       standard range was “90-SL,” or 7 years, 6 month[s], to the
       statutory limit. Since the statutory maximum was 40 years, and
       since the minimum sentence must be at least half of the
       maximum sentence, the upper end of the standard range would
       dictate a sentence of 20-40 years. This is the exact sentence
       which was imposed.

1925(a) Opinion, pp. 1-2. “[W]here a sentence is within the standard range

of the guidelines, Pennsylvania law views the sentence as appropriate under

the Sentencing Code.”          Commonwealth v. Moury, 992 A.2d 162, 171

(Pa.Super.2010).       Accordingly, in addition to failing to raise a substantial

question for review, this excessiveness claim fails on the merits as well.

____________________________________________


8
  The upper level of the sentencing guidelines’ standard range for third
degree murder is the statutory limit regardless of prior record score. See
204 Pa.Code § 303.16. The OGS for third degree murder is 14. Appellant
had a PRS of zero (0). These facts combined with the “Deadly Weapon
Used” guideline matrix enhancement yielded a standard range sentence of
90-SL.   See 204 Pa.Code § 303.16. The statutory maximum for third
degree murder is 40 years. See 18 Pa.C.S. § 1102(d).




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B. The Suppression Claims

     In his next two issues, Appellant claims the trial court erred in denying

suppression of evidence. He is incorrect.

1.   Evidence from the RV

     Appellant first argues that the trial court erred in denying suppression

of the evidence recovered from his RV because the state police had originally

entered and photographed the RV without first securing a search warrant.

See Appellant’s Brief, pp. 22-25. This claim lacks merit.

     Initially, the Commonwealth argued that the pre-warrant entry into

the RV was intended solely to photograph the interior to identify and

document any evidence that may have degraded over time.                  See

Commonwealth Brief, p. 10.     This possibility of evidence degradation, the

Commonwealth claimed, constituted exigent circumstances to permit a

warrantless entry. Id. The trial court did not agree and determined that the

initial entry into the RV was illegal because there were no exigent

circumstances for the entry into the home. See June 12, 2013 Suppression

Memorandum Opinion and Order (“Suppression Order”), pp. 1-2.

     Nonetheless, based on the “independent source” doctrine, the trial

court refused to suppress the evidence obtained from the RV.             See

Suppression Order, pp. 2-3. The independent source doctrine provides that

the prosecution may introduce evidence seized improperly where the

prosecution establishes that the evidence would have been discovered

inevitably through an independent source.         See Commonwealth v.

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J-A26032-14



Brundidge, 620 A.2d 1115, 1119 (Pa.1993).                    A properly-secured search

warrant can constitute an independent source where (1) the decision to seek

the warrant was not prompted by what police saw during the initial entry,

and/or (2) information gained in the first entry does not affect the decision

of the warrant-issuing magistrate.             Id. (citing Murray v. United States,

487 U.S. 533, 108 S.Ct. 2529 (1988)).

       The trial court properly applied the independent source doctrine to the

facts of this case.     Here, the police’s decision to seek a warrant was not

prompted by what the trooper saw during the initial entry; other troopers

were already in the process of seeking a search warrant for the property

when the initial entry occurred. See Suppression Order, p. 2. Additionally,

the affidavit used to seek the warrant did not include any information from

the   trooper    who    conducted      the     initial   entry,   nor   did   that   trooper

communicate any of his observations to the issuing Magisterial District

Justice. Id. Further, the state police did not seize any items from the RV

until after the issuance of the warrant.9 Id. Because the initial illegal entry

into the RV did not affect or influence the issuance of the legal search

____________________________________________


9
  While the trial court criticized the State Police’s “standard procedure” of
conducting warrantless searches of homes without adequate exigent
circumstances, noting that such similar searches could be viewed as
“contrived and in bad faith” in the future, and observing that “[i]t would
have been better to wait 49 minutes for the [s]earch [w]arrant[,]” the court
ultimately found that under these circumstances, the application of the
independent source doctrine was appropriate. Suppression Order, pp. 2-3.



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J-A26032-14



warrant for the RV, the trial court properly applied the independent source

doctrine in this matter.10

2.     Appellant’s Statements from his hospital bed

       Appellant next argues that the trial court erred in failing to suppress

the statements he made to the police from his hospital bed because he was

“highly medicated”. See Appellant’s Brief, pp. 26-29. This claim also fails.

       “The determination of whether a confession is voluntary is a conclusion

of law and, as such, is subject to plenary review.”       Commonwealth v.

Harrell, 65 A.3d 420, 434 (Pa.Super.2013).

       Miranda holds that “[t]he defendant may waive effectuation” of
       the rights conveyed in the warnings “provided the waiver is
       made voluntarily, knowingly and intelligently.” The inquiry has
       two distinct dimensions. First the relinquishment of the right
       must have been voluntary in the sense that it was the product of
       a free and deliberate choice rather than intimidation, coercion or
       deception. Second, the waiver must have been made with a full
       awareness both of the nature of the right being abandoned and
       the consequences of the decision to abandon it. Only if the
       “totality of the circumstances surrounding the interrogation”
       reveal both an uncoerced choice and the requisite level of
____________________________________________


10
    To the extent that the Commonwealth argues the inevitable discovery
doctrine allows for the admission of the evidence, it is mistaken. The
inevitable discovery doctrine provides that, “[i]f the prosecution can
establish by a preponderance of the evidence that the illegally obtained
evidence ultimately or inevitably would have been discovered by lawful
means, then the evidence is admissible.” Commonwealth v. McLaurin, 45
A.3d 1131, 1136 (Pa.Super.2012). This doctrine deals with scenarios where
someone would have somehow discovered evidence legally in any event –
like a volunteer search party spread out across a field and finding a weapon
or a body as a result of a systematic search. Here, the evidence was inside
Appellant’s RV.    Only the investigating police on scene were going to
encounter the evidence inside the RV.



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      comprehension may a court properly conclude that Miranda
      rights have been waived.

In re T.B., 11 A.3d 500, 505-06 (Pa.Super.2010).              “In examining the

totality of circumstances, we also consider: (1) the duration and means of

an interrogation; (2) the defendant’s physical and psychological state; (3)

the conditions attendant to the detention; (4) the               attitude of the

interrogator; and (5) any and all other factors that could drain a person’s

ability to withstand suggestion and coercion.”             Id. at 506 (internal

quotations omitted). A defendant’s statement to police while medicated and

in the hospital is subject to this totality of the circumstances examination.

See Commonwealth v. Harm, 416 A.2d 533, 535 (Pa.Super.1979).

Where an alert, responsive, and cooperative defendant in no acute physical

distress is in a hospital bed but appears to understand his Miranda rights

before voluntarily waiving them and giving a statement, a trial court may

deny suppression of such statements.          Id.   This Court defers to the trial

court’s findings in such situations. Id.

      Here, the trial court found credible the evidence proffered at the

suppression hearing that Appellant was clearly responsive and able to

answer questions posed to him during the interrogations.             Suppression

Order, p. 3.    The trial court applied the above-referenced factors and

determined as follows:

      [T]he duration [of the interviews] (2 hours on May 18th; 1 hour
      on May 21st) was not inordinate; the [Appellant’s] physical and
      psychological states were stable (he did not laugh or cry; he
      coughed up dried bloody phlegm from time to time, but seemed

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      comfortable); the conditions of his detention were benign, in
      that he was comfortable and cared for in his hospital room and
      was not in shackles; the attitude of the interrogators was
      professional and courteous; and no other factors are of record to
      indicate that [Appellant’s] ability to withstand coercion and
      suggestion was compromised.

Suppression Order, pp. 3-4. Further, the trial court credited the testimony

of multiple nurses who testified that they had no concerns that Appellant

could not or did not understand the police questioning. Id. The police read

Appellant his rights before each interview and he agreed to proceed and

signed waivers. Id. The trial court did not abuse its discretion in refusing to

suppress Appellant’s statements from his hospital bed.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/3/2014




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