J. S76021/16
                                 2017 PA Super 197

COMMONWEALTH OF PENNSYLVANIA                    :     IN THE SUPERIOR COURT OF
                                                :          PENNSYLVANIA
                                                :
                    v.                          :
                                                :
EDWIN DOLORES QUILES,                           :
                                                :
                           Appellant            :
                                                :     No. 2274 EDA 2015

             Appeal from the Judgment of Sentence March 12, 2015
                 In the Court of Common Pleas of Pike County
              Criminal Division at No(s): CP-52-CR-0000531-2013

BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*

OPINION BY DUBOW, J.:                                        FILED JUNE 23, 2017

        Appellant, Edwin Dolores Quiles, appeals from the Judgment of

Sentence entered in the Pike County Court of Common Pleas following his

conviction of two counts of Delivery of a Controlled Substance, and one

count of Criminal Conspiracy to Deliver a Controlled Substance. 1               After

careful review, we affirm Appellant’s convictions, but vacate his Judgment of

Sentence     because     the   trial   court   erroneously   considered   Appellant’s

Connecticut conviction for simple assault when determining Appellant’s

Recidivism Risk Reduction Incentive (“RRRI”) eligibility.

        We summarize the relevant factual and procedural history as follows.

On October 24, 2013, Appellant and his co-defendant pulled into a gas

station in Pike County, Pennsylvania.          Appellant went into the gas station,

*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 903(a)(1), respectively.
J. S76021/16


while his co-defendant made a pre-arranged sale of heroin to an undercover

member of the Pike County Detective’s Office. Following the controlled buy,

Police Officer Joseph Ostrom entered the gas station and placed Appellant

under arrest, while other officers took his co-defendant into custody.

        Officers transported Appellant to the Pike County Detective Bureau

Office, where Chief Detective Michael Jones and Officer Ostrom interviewed

Appellant.    At the beginning of the interview, which was conducted in

English, Chief Detective Jones advised Appellant of his rights pursuant to

Miranda.2     Appellant acknowledged his rights, signed a written waiver of

those rights, and spoke with Chief Detective Jones and Officer Ostrom.

Appellant also signed written consent forms for the search of his automobile

and his cellular phone.

        Appellant was arrested and charged with two counts of Delivery of a

Controlled Substance, one count of Criminal Conspiracy to Deliver a

Controlled Substance, and related possession charges.        Appellant filed a

Motion to Suppress, seeking to suppress statements he gave to investigators

and the evidence the investigators recovered in his phone and car on the

grounds that he did not sufficiently understand English and was under the

influence of heroin at the time he waived his rights and consented to the

search.



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



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      The trial court held a hearing on the Motion, at which Chief Detective

Jones, Officer Ostrom, and Appellant testified.    The trial court denied the

Motion.

      Appellant proceeded to a jury trial, and the jury convicted him of two

counts of Delivery of a Controlled Substance, and one count of Criminal

Conspiracy to Deliver a Controlled Substance.

      On March 12, 2015, the trial court sentenced Appellant to an

aggregate term of nine to thirty years of imprisonment.      The court found

that Appellant was precluded from RRRI eligibility “due to [Appellant’s]

previous conviction for Assault in the State of Connecticut.”     Sentencing

Order, filed 3/12/15, at 2.

      Appellant filed Post-Sentence Motions, which the trial court denied.

Appellant timely appealed, raising the following issues:

      1. Did the [t]rial [c]ourt commit error by denying [Appellant’s]
      motions to suppress the contents of his cell phone and his
      statements to the police by a finding that he knowingly,
      intelligently, and voluntarily consented to both the search of the
      phone and to speak with the police?

      2. Did the [t]rial [c]ourt commit error in its Sentencing Order by
      finding [that Appellant] was ineligible for RRRI?

Appellant’s Brief at 8.

      While the instant appeal was pending, our review of the record

revealed that the Pre-Sentence Investigation (“PSI”) report was missing

from the certified record.    We issued an Order directing the trial court to




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supplement the record, and the trial court complied.      With all necessary

documents now before us, we turn to Appellant’s arguments on appeal.

                            Motion to Suppress

      Our well-settled standard of review in an appeal from an order denying

a motion to suppress is as follows:

      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.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citation

omitted).

      In Pennsylvania, “the Fourth Amendment to the United States

Constitution and Article I, Section 8 of the Pennsylvania Constitution protect

citizens from unreasonable searches and seizures.”       Commonwealth v.

Clemens, 66 A.3d 373, 378 (Pa. Super. 2013) (internal alteration and

quotation marks omitted).    If an individual gives valid consent, then the

ensuing search is not unreasonable and the individual’s constitutional rights

are not violated by the police’s conduct. See Florida v. Jimeno, 500 U.S.

248, 250–51 (1991).     To be considered valid, the consent must be “the

product of an essentially free and unconstrained choice—not the result of



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duress or coercion, express or implied, or a will overborne—under the

totality of the circumstances.”    Commonwealth v. Caban, 60 A.3d 120,

130 (Pa. Super. 2012), overruled on other grounds as recognized in

Commonwealth v. Coleman, 130 A.3d 38, 42 n.1 (Pa. Super. 2015).

        Similarly, “the Fifth Amendment of the United States Constitution and

Article I, Section 9 of the Pennsylvania Constitution protect an individual’s

right not to be compelled to be a witness against himself.” Commonwealth

v. Fischere, 70 A.3d 1270, 1275-76 (Pa. Super. 2013). This right may also

be waived, if, under the totality of the circumstances, the waiver is “the

product of an essentially free and unconstrained choice.” Commonwealth

v. Cruz, 71 A.3d 998, 1005 (Pa. Super. 2013).

        Appellant argues that neither his consent to search his property nor his

waiver of his Miranda rights were freely and voluntarily given. Specifically,

Appellant avers that he was under the influence of heroin during his

interview and does not sufficiently understand the English language.

        The trial court disagreed with both of these factual averments.

Regarding Appellant’s grasp of the English language, the trial court found

that:

        [T]he evidence presented at the Suppression Hearing clearly
        indicated that [Appellant] understood English sufficiently to know
        what he was consenting to. Specifically, a tape of [Appellant’s]
        interview with the arresting officer was introduced at the Hearing
        which clearly demonstrated that [Appellant] understood English,
        could comprehend questions posed to him by police, and could
        fully answer those questions in English without confusion,
        uncertainty, or any indication of lack of fully understanding the


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      questions posed . . . . Finally, at the Hearing itself, it was clear
      that even though an interpreter was provided to [Appellant],
      [Appellant] understood what was said in English, and was
      responding to his Counsel before the interpreter completed the
      translation of the question or other information into Spanish.

      In addition, [Appellant] has resided in the United States most of
      his life. He obtained most of his education through 7 th grade in
      the United States.

                                      ***

      Officer Ostrom also testified that he was present at the time of
      the arrest of [Appellant], that [Appellant] acted normal, spoke
      English well and could understand what was being said to him
      and could both understand questions asked in English and could
      answer those questions in English.

      Also introduced into evidence was the Consent to Search filled
      out and signed by [Appellant] on October 24, 2013 as well as
      the completed Miranda Warnings signed by [Appellant] on that
      same day. Those documents are signed by [Appellant] and the
      Consent to Search has [handwritten] additions to the Consent
      added by [Appellant] in English.

                                      ***

      In addition, despite [Appellant’s] claim that he requested an
      interpreter several times during his interrogation, the officer
      involved indicated that no such requests were made by
      [Appellant]. Further, a review of the recorded conversation
      indicates that no such requests were made during the recorded
      portion of the interrogation.

Order, filed 6/25/14, at 1-3.

      Regarding Appellant’s claim that he was under the influence of heroin

at the time of his interrogation, the trial court found that:

      [E]ven though [Appellant] claims he was under the influence of
      heroin at the time, [Chief Detective] Jones testified that he did
      not appear to be under the influence; that he acted normally;
      [and that] he was aware of what was going on and understood
      what was said to him.


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                                     ***

      It is clear from listening to the taped conversation that
      [Appellant] sounded alert and aware of everything being asked
      of him.    His answers were direct, complete[,] and fully in
      response to the questions posed.

Id. at 1-2.

      In short, the trial court found that the factual predicates to Appellant’s

suppression claim were simply not true; i.e., that Appellant was not so

intoxicated or deficient in English that his waiver and consent were not freely

given.   Our independent review of the record supports these findings, and

we are, therefore, bound by them. Jones, supra at 654. Moreover, we can

find no error in the trial court’s legal conclusions.    We, therefore, affirm

Appellant’s convictions.

                               RRRI Eligibility

      Appellant also avers that he is RRRI eligible, and the trial court did not

have sufficient information at the sentencing hearing with which to

determine that his criminal record for assault in Connecticut rendered him

RRRI ineligible. Specifically, Appellant argues that “[a]s the record stands, it

is impossible to deduce whether the Connecticut arrest[:] a) resulted in a

conviction; b) if convicted, under which Connecticut statute; and c) whether

that Connecticut statute has a Pennsylvania equivalent which disqualifies

[Appellant] from RRRI consideration.” Appellant’s Brief at 19.

      The question of whether a defendant is RRRI eligible “presents a

question of statutory construction and implicates the legality of the sentence


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imposed.”    Commonwealth v. Barbaro, 94 A.3d 389, 391 (Pa. Super.

2014). “Therefore, our standard of review is de novo and the scope of our

review is plenary. Id. (citation omitted).

      RRRI eligibility “permits offenders who exhibit good behavior and who

complete rehabilitative programs in prison to be eligible for reduced

sentences.” Commonwealth v. Hansley, 47 A.3d 1180, 1186 (Pa. 2012).

Not all defendants qualify for RRRI eligibility, and, therefore, “[w]hen a court

imposes a sentence of imprisonment in a state correctional facility, the court

must also determine if the defendant is eligible for an RRRI Act minimum

sentence[.]” Id. at 1187.

      For the reasons discussed in the next section, we find that there is

sufficient evidence in the record to show that Appellant was, in fact,

convicted of Assault in the Third Degree in Connecticut. However, we also

find that Connecticut’s Assault in the Third Degree is not an “equivalent

offense” to Simple Assault and the trial court erred in considering it when

determining the Appellant’s eligibility for RRRI.

Sufficiency of Evidence of Connecticut Conviction

      We begin by addressing Appellant’s contention that the record does

not contain sufficient evidence to support the conclusion that he had a

conviction in Connecticut. Our review of the record and relevant Connecticut

laws readily demonstrates that Appellant has a conviction in Connecticut for

an assault and that Connecticut grades the assault as a M-A.



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      First, the PSI report notes that on January 8, 2001, the Hartford,

Connecticut Police Department arrested Appellant and charged him with

“Assault (M-A)” and “Breach of Peace (M-B)[.]” PSI report, dated 3/6/15, at

3.   The PSI report further notes that Appellant received an “Unconditional

Discharge” of the charges.     Id.   Under Connecticut law, an “Unconditional

Discharge”     releases   a   defendant   “without   imprisonment,   probation

supervision or conditions” but “is for all purposes a final judgment of

conviction.”     C.G.S. § 53a-34(b) (emphasis added).      Therefore, there is

sufficient evidence to establish that the Appellant has a conviction for

Assault.

      Appellant further argues that the evidence is insufficient to establish

under which Connecticut statute he was convicted.          We can, however,

determine the offense Appellant was convicted of by reviewing relevant

Connecticut law. The PSI report establishes that Appellant was convicted of

Assault graded as a Class A Misdemeanor and given an Unconditional

Discharge.3    In Connecticut, the only assault offense graded as a Class A

Misdemeanor for which a defendant is eligible for an Unconditional Discharge




3
   In addition to distinguishing between felonies and misdemeanors,
Connecticut “classifies” offenses using letter designations, similar to the way
in which Pennsylvania “grades” offenses using a numeric system. See
C.G.S. § 53a-26 (classifying misdemeanor offenses).




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is Assault in the Third Degree,4 codified under Connecticut law in C.G.S. §

53a-61. Thus, Appellant has a conviction for Assault in the Third Degree and

we find no merit to Appellant’s first two arguments that the record does not

sufficiently establish whether Appellant was convicted of an offense in

Connecticut, and, if so, under which statute.

Appellant’s Third Degree Assault Charge from Connecticut and RRRI
Eligibility

      Having determined that Appellant has a prior conviction for Assault in

the Third Degree in Connecticut, as defined in C.G.S. § 53a-61, we turn to

the question of whether this prior conviction makes Appellant RRRI

ineligible.

      The trial court, when evaluating a conviction from another state,

should compare the statute from the other state that defines the offense

with the Pennsylvania statute defining the same offense to determine

whether the two statutes are “substantially equivalent.” Barbaro, 94 A.3d

at 393.       If the two statutes are not “substantially equivalent,” then the

foreign conviction should not be used in determining a defendant’s RRRI

eligibility. Id.

      In making the comparison between statutes, “the court must consider

the elements of the foreign offense in terms of classification of the conduct

4
  Assault in the Third Degree of an Elderly, Blind, Disabled, or Pregnant
Person is the only other Class A Misdemeanor Assault in Connecticut. C.G.S.
§ 53a-61a. However it carries a mandatory minimum sentence of one year
of imprisonment “which shall not be suspended or reduced.” Id.



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proscribed,    its    definition   of   the   offense,   and   the   requirements   for

culpability.” Barbaro, 94 A.3d at 394 (emphasis omitted). “[T]he offenses

do not identically have to mirror each other but must be substantially

equivalent.”         Id. at 395 (citation omitted).            Two statutes will be

“substantially equivalent” where “the differences between the two statutes

are insignificant when compared to the similarities.” Id.

     Importantly, our Supreme Court has held that even where two laws

“appear to have similar elements[,]” they should not be considered

“substantially equivalent” if they grade the offenses with different severity

and reflect different policy considerations.              See Commonwealth v.

Northrip, 985 A.2d 734, 741-42 (Pa. 2009) (finding Pennsylvania’s crime of

Arson Endangering Persons is not “substantially equivalent” to New York’s

Arson in the Third Degree where (i) New York’s arson offense was graded as

a third-degree felony while the Pennsylvania offense is a first-degree felony;

and (ii) the Pennsylvania statute reflected a choice by the legislature to

punish those who endanger individuals, while the New York statute was

intended to protect property).

     Finally, trial courts should not focus on the particular facts underlying

the conviction at issue, “but rather on the statute that triggered the

conviction.” Id. at 741; see also Barbaro, 94 A.3d at 394 (“We conclude

that the test set forth in Northrip for determining the equivalence of crimes




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under the Three Strikes Law is the appropriate test to use for purposes of

the RRRI Act.”).

      With these precepts in mind, we turn to the question of whether

Appellant’s conviction for Assault in the Third Degree in Connecticut is

analogous to the Pennsylvania offense of Simple Assault.          Connecticut

defines Assault in the Third Degree as follows:

      A person is guilty of assault in the third degree when: (1) With
      intent to cause physical injury to another person, he causes such
      injury to such person or to a third person; or (2) he recklessly
      causes serious physical injury to another person; or (3) with
      criminal negligence, he causes physical injury to another person
      by means of a deadly weapon, a dangerous instrument[,] or an
      electronic defense weapon.

C.G.S. § 53a-61(a).

      In contrast, Pennsylvania defines Simple Assault as follows:

      (a) Offense defined.-- Except as provided under section 2702
      (relating to aggravated assault), a person is guilty of assault if
      he:

         (1) attempts to cause or intentionally, knowingly or
         recklessly causes bodily injury to another;

         (2) negligently causes bodily injury to another with a
         deadly weapon;

         (3) attempts by physical menace to put another in fear of
         imminent serious bodily injury; or

         (4) conceals or attempts to conceal a hypodermic needle
         on his person and intentionally or knowingly penetrates a
         law enforcement officer or an officer or an employee of a
         correctional institution, county jail or prison, detention
         facility or mental hospital during the course of an arrest
         or any search of the person.




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      (b) Grading.--Simple assault is a misdemeanor of the second
      degree unless committed:

          (1) in a fight or scuffle entered into by mutual
          consent, in which case it is a misdemeanor of the
          third degree; or

          (2) against a child under 12 years of age by a person 18
          years of age or older, in which case it is a misdemeanor
          of the first degree.

18 Pa.C.S. § 2701 (emphasis added).

      Relevant to the instant appeal, the RRRI Act provides, inter alia, that a

defendant is not eligible for RRRI if he has a conviction for a personal injury

crime, such as an assault, or an equivalent offense under the laws of

another state. 61 Pa.C.S. § 4503.

      This statute, however, has an exception and permits a defendant with

a conviction for a simple assault to remain RRRI eligible if the defendant was

convicted of a simple assault graded as a misdemeanor of the third degree.

Id. A Simple Assault is a misdemeanor of the third degree if the defendant

committed the assault “in a fight or scuffle entered into by mutual consent.”

18 Pa.C.S. § 2701. In contrast, a Simple Assault that was not the result of

mutual consent is graded as a misdemeanor of the second degree. Thus, if

a defendant commits a simple assault that was initiated by “mutual

consent,” the defendant is still eligible for RRRI.

      The Connecticut statute, however, does not differentiate between a

simple assault that a defendant initiates and one that the defendant and




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victim initiate by mutual consent. Rather, the Connecticut statute treats all

simple assaults the same.

        Although this difference might not be significant for determining

whether the assault statutes are similar generally, it is significant in light of

the fact that the legislature specifically chose to permit defendants to remain

RRRI eligible if they commit a simple assault that is initiated by “mutual

consent.”

        Since the Connecticut statute does not provide for such a distinction

and treats all simple assaults the same, regardless of whether they began by

mutual consent, and our legislature provided for such an exception, we are

constrained to find that in this situation, the simple assault statutes are not

“substantially equivalent” and the trial court should not consider the

Connecticut conviction when determining whether the Appellant is eligible for

RRRI. For although the elements of the offenses may appear similar at first

glance, much like the statutes in Northrip, there are meaningful differences

in the way in which the two offenses are graded, and in the policy

considerations    reflected   in   the    language   of   the   statutes.   Namely,

Pennsylvania has made a policy determination that defendants who engage

in fights by “mutual consent” are less culpable, and should have their Simple

Assault convictions graded at a lesser degree, and should remain eligible for

RRRI.




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      The trial court attempts to circumvent the problem posed by the

mutual consent provision by noting that “[t]here is no evidence in the

hearing record to establish that the prior Connecticut conviction involved

mutual consent which would warrant it being treated as a misdemeanor of

the third degree.”    Trial Court Opinion, filed 12/2/15, at 3.      As discussed

supra, however, the facts underlying Appellant’s conviction are irrelevant to

our analysis. Northrip, 985 A.2d at 741.

      Accordingly, we affirm Appellant’s convictions, but vacate Appellant’s

Judgment of Sentence and remand for resentencing and consideration of

Appellant’s eligibility for RRRI in light of the holding of this Opinion.

      Convictions affirmed. Judgment of sentence vacated. Case remanded

with instructions. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/23/2017




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