J-A31030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KALI A. SMITH

                            Appellant                No. 1645 MDA 2014


           Appeal from the Judgment of Sentence September 2, 2014
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0001740-2013


BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED JANUARY 05, 2016

        Kali A. Smith appeals from the judgment of sentence imposed by the

Court of Common Pleas of Berks County following his convictions for two

counts of robbery,1 two counts of conspiracy to commit robbery,2 one count

of burglary,3 and one count of conspiracy to commit burglary.4 After careful

review, we affirm.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 3701(a)(1)(ii), (iv).
2
    18 Pa.C.S § 903(a)(1).
3
    18 Pa.C.S. § 3502(a).
4
    18 Pa.C.S. § 903(a)(1).
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      The underlying facts are as follows.        On March 30, 2012, at

approximately 1:20 p.m., a robbery occurred at an off-campus apartment

near Kutztown University.     Borough of Kutztown police officers arrested

Christopher Biney, Anthony Battle and Jesse Thomas, all of whom identified

Smith as a participant in the robbery. Todd Dawson was subsequently

arrested as well.

      Almost a year later, on March 28, 2013, Corporal P. Michael Clery, Jr.

arrested Smith, who at the time was a nineteen-year-old football player at

Kutztown University. The arrest occurred at approximately 7:00 a.m. in the

office of the football coach. Pennsylvania State Trooper Alyssa Becker and

Corporal Justin Soumas of the Kutztown University Police were also present

at the arrest.

      Smith asked police to retrieve items from his unsecured locker.

Corporal Soumas directed the coach to bring him the items, which included

Smith’s set of keys, a student identification card and a cell phone. Corporal

Soumas gave the cell phone to Corporal Clery, who retained it as evidence.

      Corporal Clery and Trooper Becker then transported Smith to the

Kutztown Police Department.

      At approximately 7:15 a.m., Corporal Clery removed his firearm, put it

in a safe, brought Smith into the cell block area and removed his handcuffs.

Smith was alone in the cell block for approximately fifteen minutes while

Corporal Clery went to get some paperwork. When Corporal Clery returned,

he shackled Smith’s feet and brought him to an interview room down the

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hall where Trooper Becker and Corporal Soumas were also present.

Although Trooper Becker and Corporal Soumas were armed they did not

display their weapons to Smith.

        Corporal   Clery    read    the   Kutztown    Borough   Police   Department

Miranda5 rights form to Smith, and then handed it to him to review.

Corporal Clery asked Smith if he understood his rights, and Smith nodded

his head up and down.          Corporal Clery asked Smith to sign the Miranda

rights form and Smith indicated that he did not want to sign it.

        Corporal Clery began questioning Smith about the March 30, 2012

robbery. Smith stated that he was unaware of the incident and that he did

not know Biney, Thomas, Battle or Dawson. The interview concluded when

Smith indicated that he did not want to speak anymore.

        Based on Smith’s statement during the interview that he did not know

Biney, Corporal Cleary obtained a warrant for Smith’s cellular phone records.

In the affidavit of probable cause, Corporal Clery averred that a previous

search of Biney’s cellphone had yielded “Smith, Kali” as a contact.

        Smith filed an omnibus pretrial motion seeking to suppress Smith’s

statements and the evidence seized.              The trial court held a hearing on

August 9, 2013, and denied the motion by order dated August 27, 2013.

The court concluded that police properly obtained and searched his cell


____________________________________________


5
    Miranda v. Arizona, 384 U.S. 436 (166).



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phone, Smith understood his Miranda rights and that “the answers he gave

to the questions posed by police were knowingly, intelligently, and

voluntarily given and, therefore     admissible.”    Findings of Fact and

Conclusions of Law, 8/27/13, at 4.

      The matter proceeded to trial on August 6, 2014, and on August 8,

2014, a jury convicted Smith of the above-referenced offenses. At a hearing

on September 2, 2014, the court imposed an aggregate sentence of six to

twelve years’ incarceration.

      This timely appeal followed in which Smith raises the following issues

for our review:

      1. Should the lower court have suppressed [Smith’s] statements
         and all evidence derived therefrom where the investigating
         officer did not secure a knowing, voluntary, and intelligent
         waiver of [Smith’s] Miranda rights before continuing to
         pepper him with interrogative questions?

      2. Should this Court remand this matter to the trial court for a
         hearing on after discovered evidence in the form of a [signed
         statement] implicating alleged co-conspirator’s recantation of
         his trial testimony?

Appellant’s Brief, at 4.

      With respect to Smith’s first issue, our Supreme Court has stated:

      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

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     may reverse only if the court’s legal conclusions are erroneous.
     Where, as here, the appeal of the determination of the
     suppression court turns on allegations of legal error, the
     suppression court’s legal conclusions are not binding on an
     appellate court, whose duty it is to determine if the suppression
     court properly applied the law to the facts.           Thus, the
     conclusions of law of the courts below are subject to our plenary
     review.

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

quotations omitted).

     Regardless of whether a waiver of Miranda is voluntary, the
     Commonwealth must prove by a preponderance of the evidence
     that the waiver is also knowing and intelligent.

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

In the Interest of T.B., 11 A.3d 500, 505 (Pa. Super. 2010) (citations

omitted).

     In Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), our

Supreme Court noted:

     [A]n explicit waiver . . . after being advised of [one’s] Miranda
     rights . . . is not necessary to a finding of waiver under the Fifth
     Amendment. North Carolina v. Butler, 441 U.S. 369, 373
     (1979). The pertinent question is “whether the defendant in fact
     knowingly and voluntarily waived the rights delineated in the



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      Miranda case.” Id. “Waiver can be clearly inferred from the
      actions and words of the person interrogated.” Id.

Bomar, 826 A.2d. at 843.

      The test for determining . . . the validity of a waiver looks to the
      totality of the circumstances.      Some of the factors to be
      considered include: the duration and means of interrogation;
      the defendant’s physical and psychological state; the conditions
      attendant to the detention; the attitude exhibited by the police
      during the interrogation; and any other factors which may serve
      to drain one’s powers of resistance to suggestion and coercion.

Commonwealth v. DeJesus, 787 A.2d 394, 403 (Pa. 2001) (citations

omitted).

      With respect to the totality of the circumstances in the instant matter,

it is clear that Smith was in custody. However, there is nothing in the record

indicating that the police acted in a suggestive or coercive matter.         No

threats or promises were made and no intimidation occurred. N.T. Pretrial

Hearing, 8/9/13, at 19.    Although two out of three officers present were

armed, neither of them displayed their weapon. Id. at 19, 43, 54. All of the

officers were seated at the table with Smith, not standing over him. Id. at

13.   Smith’s legs were shackled, but his arms were not.        Id.   The entire

interview lasted approximately thirty minutes.     Id. at 37.    Smith did not

appear to be under the influence of drugs or alcohol. Id. at 20, 45, 55.

      Before questioning Smith about the charges, Corporal Clery read the

Miranda rights to him from a preprinted form. Id. at 16. Corporal Clery

then asked Smith if he understood his rights, to which Smith responded by

nodding his head up and down. Id. Corporal Cleary then read to Smith the


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waiver portion of the Miranda rights form. When Smith said, “I don’t want

to sign anything,” Smith replied, “You don’t need to sign it. That’s okay.”

Id. at 17. Corporal Clery testified, “I proceeded with questioning him at that

point.” Id.

      Significantly, this Court has held that “after a defendant is given his or

her Miranda rights, a statement by the defendant that he understands

those rights followed by the answering of questions posed by the

interrogating officer constitutes a sufficient manifestation of a defendant’s

intent to waive those rights so as to satisfy state constitutional protections.”

Commonwealth v. Baez, 21 A.3d 1280, 1286 (Pa. Super. 2011).

      In light of the fact that Smith acknowledged that he understood his

Miranda rights by nodding his head up and down (the non-verbal equivalent

of expressing assent), and the interview ended when Smith stated that he

did not want to talk anymore, we conclude that the trial court did not err as

a matter of law when it determined that Smith’s statements were

admissible.

      Smith filed a timely appeal of his judgment of sentence on September

30, 2014. “In late October 2014,” Appellant’s Brief, at 15, Smith obtained a

signed statement by Battle dated October 21, 2014, in which Battle states

that he planned and committed the robbery with Biney and Thomas.             He

further avers that they falsely implicated Smith and Dawson in the crime

even though “they really didn[’]t have anything to do with the whole thing.”

Statement of Anthony Battle, 10/21/14, at 1.

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      On February 6, 2015, Smith filed a motion for a new trial based on

after-discovered evidence, which the trial court properly deemed it had no

jurisdiction to consider in light of the September 30, 2014 notice of appeal

from Smith’s judgment of sentence.

      On February 18, 2015, Smith filed in this Court a request for remand

to the trial court to consider his application for a new trial based on after-

discovered evidence.

      Pa.R.CrimP. 702(C) provides that “[a] post sentence motion for a new

trial on the ground of after-discovered evidence must be filed in writing

promptly after such discovery.”    The comment to Rule 720 provides, in

relevant part:

      Paragraph (C) requires that any claim of after-discovered
      evidence must be raised promptly after its discovery.
      Accordingly, . . . after-discovered evidence discovered during the
      direct appeal process must be raised promptly during the direct
      appeal process, and should include a request for a remand to the
      trial judge.

Pa.R.Crim.P. 720(C), comment.

      The Commonwealth argues that Smith is not entitled to relief because

he failed to raise his after-discovered evidence claim promptly. We agree.

As noted, Smith became aware of Battle’s statement in late October 2014.

Even if we assume this occurred on October 31, 2014, Smith did not file his

petition in this Court until February 18, 2015, which is 110 days after he

became aware of the evidence. Although the Rules of Criminal Procedure do

not define the term “promptly,” Rule 101(C) provides that “to the extent


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practicable these rules shall be construed in consonance with the rules of

statutory construction.”        Pa.R.Crim.P. 101(C).   Section 1903(a) of the

Statutory Construction Act of 1972, provides in relevant part, “words and

phrases shall be construed according to their common and approved usage.”

1 Pa.C.S. § 1903(a). “Promptly” is defined as “with little or no delay.” The

Free Dictionary, http://www.thefreedictionary.com/promptly (last visited

Dec. 10, 2015). We have no difficulty concluding that a period of 110 days

does not constitute little or no delay.

        Furthermore, we note that in the context of the Post Conviction Relief

Act,6 a petition seeking an after-discovered evidence exception to the

timeliness requirement of the Act must be “filed within 60 days of the date

the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

        Because we conclude Smith did not file his petition for remand

promptly, we are precluded from granting relief.

        Judgment of sentence affirmed. Request for remand denied.

        Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2016
____________________________________________


6
    42 Pa.C.S. §§ 9541-9546.



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