J-S07007-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL MOORE                              :
                                               :
                       Appellant               :   No. 3076 EDA 2018

          Appeal from the Judgment of Sentence Entered June 29, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0008499-2011


BEFORE:      NICHOLS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                                   Filed: May 8, 2020

        Appellant Michael Moore appeals from the judgment of sentence

imposed following his bench trial convictions for first-degree murder,

conspiracy, and related offenses. Appellant challenges the denial of his motion

to suppress, the admissibility of his proffer statement, the weight of the

evidence supporting his first-degree murder conviction, and the legality of his

sentence.     Appellant also requests that we remand the matter for an

evidentiary hearing based on after-discovered evidence.                We affirm

Appellant’s convictions and deny Appellant’s motion for remand. We vacate

Appellant’s judgment of sentence and remand the matter solely for correction

of the sentencing order.

        By way of background, Appellant was charged with murder and related

offenses after he shot and killed Shawn Outlaw (the decedent) on June 24,
____________________________________________
*   Retired Senior Judge assigned to the Superior Court.
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2010. At the time of the shooting, Appellant was thirteen years old. The trial

court explained that on the night of the shooting, Appellant’s cousins,

      Lionell Walker and Stephen Massenberg[, drove Appellant] to
      2124 Estaugh Street [in] Philadelphia. . . . In retaliation for a
      2008 shooting resulting in Walker’s partial paralysis, [Appellant]
      lured [the decedent] around the corner and shot [him] four times.
      [The decedent] was pronounced [dead at] the scene.

      [Prior to the shooting, Appellant] spent nearly fifteen to twenty
      minutes loitering around Estaugh Street before walking up to the
      [decedent’s] home. Lathan Barfield and Kareem Williams, both
      nephews of the decedent, testified that shortly after midnight on
      June 24, 2010, [Appellant] approached them while they were
      sitting outside on the front porch and asked if the “boy with the
      red hat” was home, indicating [the decedent] and his Phillies hat.
      Barfield testified that he believed [Appellant] was there to buy
      marijuana from his uncle. Williams went inside the home to
      retrieve [the decedent]. When [the decedent] came outside the
      house, he followed [Appellant] around the corner of Estaugh
      Street. Barfield began to follow his uncle[,] but [the decedent
      instructed him] to hang back and wait. . . . Within a matter of
      minutes, Barfield heard several gun shots and ran around the
      corner to find his uncle[, the decedent,] falling to the ground while
      thirteen-year-old [Appellant] fled down the street, gun in hand.
      Shortly after emergency personnel arrived on the scene, Barfield
      and Williams were taken to the Philadelphia Police Department’s
      Homicide Unit where they were questioned about the incident,
      shown a photo array, and subsequently identified [Appellant] as
      the shooter.

      The testimony of Detective [Thomas] Gaul of the Philadelphia
      Police Department established that on March 2, 2011, pursuant to
      an arrest warrant, [Appellant] was transported to the Homicide
      Unit from a juvenile placement, where he was being held in
      connection with an unrelated matter.         Prior to beginning
      questioning, Detective Gaul obtained the consent of [Appellant]’s
      legal guardian, his aunt, Ms. Toka Johnson. Detective Gaul’s
      testimony further established that [Appellant] was sufficiently
      informed, by both himself as well as Detective Verrecchio, of the
      charges against him as well as his constitutionally protected




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        Miranda[1] rights. According to the testimony presented at trial,
        [Appellant] fully understood his situation.      Before beginning
        questioning, Detectives Gaul and Verrechio read and explained the
        entirety of the Miranda warnings and obtained [Appellant]’s
        signature as a confirmation that he was willing to waive his rights.
        Not only did [Appellant] verify his understanding of his rights at
        the start of the interview, but also, Detective Gaul repeatedly
        reaffirmed [Appellant]’s waiver throughout the interview. During
        this interview, [Appellant] readily confessed to having shot [the
        decedent] and having done so on behalf of his two older cousins,
        Walker and Massenberg.

        At some point during this interview, [Appellant] asked Detective
        Gaul whether or not he would be able to work out a deal if he
        agreed to testify against his cousins. Detective Gaul explained
        that he did not have the authority to make such an [arrangement]
        and that such a deal could only be accomplished through a District
        Attorney and his own attorney. At that point, [Appellant] declined
        to continue the interview and invoked his right to remain silent
        until he could have the opportunity to speak with a lawyer. It was
        then that the interview ceased.

Trial Ct. Op., 7/17/19, at 3-5 (record citations omitted).

        On July 26, 2011, the Commonwealth filed a criminal information

charging Appellant with first-degree murder, possessing an instrument of

crime (PIC), firearms not to be carried without a license, possession of a

firearm by a minor, and carrying firearms in public.2

        On December 14, 2012, Appellant, who was represented by counsel,

agreed to participate in a proffer session.3 During the interview, Appellant

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

2  18 Pa.C.S. §§ 2502(a), 907(a), 6106(a)(1), 6110.1(c), and 6108,
respectively.

3In addition to Appellant and Appellant’s counsel, Detective John Verrecchio,
Detective Gaul, and an assistant district attorney were present at the proffer
session.


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stated that Massenberg gave him a gun and instructed him to shoot the

decedent in the head. See N.T. Trial, 11/29/16, at 81. Appellant explained

that Massenberg told him “if things go wrong and [Appellant gets] caught up

in it,” then Appellant would “just go to placement at [j]uvenile.” Id. Appellant

also stated that, after the shooting, Massenberg and Walker warned him that

he “better not say anything or tell what happened.” Id.

      On April 24, 2015, while plea negotiations were ongoing, Appellant filed

a motion to suppress his 2011 statement to homicide detectives. The trial

court conducted suppression hearings on April 24, 2015 and May 4, 2015.

Appellant argued that there was “nothing on the record to establish that he

knowingly, intelligently and voluntarily waived his [Miranda] right[s],” and

that, due to his age, he was “incapable of doing so.” N.T. Suppression Hr’g,

5/4/15, at 9. Further, Appellant argued that at the time of the statement, he

“didn’t really understand what was going on.” Id.

      At the suppression hearing, the Commonwealth presented testimony

from Detective Gaul, which the trial court summarized as follows:

      Detective Gaul testified that [Appellant] was arrested on a warrant
      for this homicide on March 2, 2011. At the time of his arrest,
      [Appellant] was already in custody in western Pennsylvania for an
      unrelated shooting. Furthermore, it should be noted that at the
      time of his arrest, [Appellant] had a previous arrest for a third
      shooting. On the day Appellant was served with the warrant, he
      was scheduled to appear in Philadelphia Juvenile Court on a
      separate matter.

      Sometime after 8:00 a.m. [on March 2, 2011, Appellant] was
      picked up at juvenile court in Philadelphia and transported to the
      Homicide Division of the Philadelphia Police Department.



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     [Appellant] was not placed in handcuffs when he was in homicide,
     but placed in an interview room. Detective Gaul met with
     [Appellant] around 11:00 a.m., advised [Appellant] of the charges
     against him and the procedure to be followed, explained to
     Appellant his Miranda rights including that he was under arrest
     for the murder of [the decedent], that anything he said could be
     used against him in a court of law, that if he couldn’t afford an
     attorney one would be provided to him and that he could stop the
     interview any time he desired.

     [Appellant] signed the waiver of his rights. [Appellant] completed,
     initialed, and signed the first page of a form acknowledging that
     he was waiving his Miranda rights. The form was introduced
     during the motion to suppress, identifying the murder of [the
     decedent] as the subject of the interview. Detective Gaul further
     advised [Appellant] that because of his age[,] the detective
     needed the permission of a parent or legal guardian. [Appellant]
     told the detective that his mother had passed, that his legal
     guardian was Toka Johnson, and [provided] a telephone number
     for the guardian. [Detective] Gaul phoned Ms. Johnson, advised
     her that [Appellant] was under arrest for the murder of [the
     decedent] and that the detective wanted to take a statement from
     [Appellant]. The detective advised [Appellant]’s guardian of the
     Miranda warnings that had been provided to [Appellant,]
     including that any statement taken from the juvenile would be
     used against him in court. Ms. Johnson gave her permission to
     interview [Appellant].

     Detective Gaul testified that [Appellant] was not physically abused
     or threatened in any way, was not injured or appear to be under
     the influence of any drugs or alcohol, that he was given
     opportunity to use the bathroom and provided water and snacks
     and that he appeared to understand and comprehend all that was
     going on. During the interview, [Appellant] stated the whole story
     of what had happened. They then proceeded to the form in order
     to document [Appellant’s] statement to written form. It was at
     that time when [Appellant] told the detectives he still wanted to
     continue cooperating, but wanted an attorney present as the
     detective could not promise him how much time he would be doing
     as a result of his involvement in the murder. [Appellant] told the
     detectives that he knew how the system worked and that he didn’t
     want his statement to be passed to the other people who will be
     arrested. For the same reason[, Appellant] picked out the pictures



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       of his cousins but would not sign the photographs. The interview
       was then concluded. . . .

Trial Ct. Op. at 8-10 (citations omitted and some formatting altered). On May

4, 2015, the trial court denied Appellant’s suppression motion.

       On May 18, 2015, Appellant signed a written plea agreement with the

Commonwealth.        Therein, Appellant agreed to plead guilty to third-degree

murder, conspiracy, possession of a firearm by a minor, carrying firearms in

public, and PIC in exchange for a sentence of nineteen to forty years’

incarceration. Under the terms of the agreement, Appellant was also required

to testify against his cousins. The agreement stated that if Appellant failed to

comply with the terms of the deal, then the Commonwealth would use

Appellant’s December 14, 2012 proffer statement at trial in its case-in-chief.4

       Ultimately, Appellant breached the terms of the agreement by refusing

to testify against his cousins. On November 28, 2016, Appellant withdrew his

guilty plea, and the matter proceeded to a bench trial.5       See N.T. Trial,

11/28/16, at 10.



____________________________________________
4 The Commonwealth read the terms of the agreement into the record at trial.
See N.T. Trial, 11/29/16, at 69. The agreement was also marked and moved
into evidence as Commonwealth’s Exhibit 78.            See id. Although the
agreement is not included in the certified record, the Commonwealth attached
a copy of the agreement to its brief.

5 The trial court’s “Trial Disposition and Dismissal Form” included the charges
for third-degree murder and criminal conspiracy, which were part of
Appellant’s guilty plea. See Trial Disposition and Dismissal Form, 11/28/16,
at 1.




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       At trial, Detective Gaul testified regarding Appellant’s 2011 statement

to homicide detectives. See N.T. Trial, 11/29/16, at 64. Over Appellant’s

objection,6 the Commonwealth also elicited testimony from Detective Gaul

regarding Appellant’s statement at the 2012 proffer session. Id. at 68.

       Appellant also testified at trial. Consistent with his earlier statements,

Appellant testified that Massenberg instructed him to shoot the decedent in

the head. N.T. Trial, 11/29/16, at 118, 132. However, Appellant added that

before the shooting, Massenberg “made it clear” that he would kill Appellant

if he did not comply with Massenberg’s instructions.               Id. at 117-18, 136.

Appellant stated that he looked up to his older cousins, but they “took

advantage” of him. Id. at 125. Further, although Appellant acknowledged

that he shot the decedent in the head, he stated that “at the time, I don’t

know what I was thinking. I wasn’t thinking at all probably. I didn’t intend

to do that. I don’t know what happened or where that came from.” Id.

       Appellant also introduced into evidence a letter that Massenberg sent to

both parties and the trial court. Id. at 138-39; Appellant’s Trial Ex. 1. In the

letter, dated July 24, 2014, Massenberg stated that he used a .38-caliber

revolver to murder the decedent in retaliation for a 2008 shooting.                See

Appellant’s Trial Ex. 1 at 1.        Massenberg indicated that although he used

Appellant    “to   lure   the   deceased       out,”   Appellant   “did   not   know   of
____________________________________________
6 In response to Appellant’s objection, the Commonwealth presented the
agreement that Appellant signed in 2015, which stated that the
Commonwealth would use Appellant’s proffer statement during its case-in-
chief if Appellant failed to cooperate.    N.T. Trial, 11/29/16, at 69;
Commonwealth’s Ex. 78.


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[Massenberg’s] intent to kill.” Id. Massenberg also stated that he provided

Appellant with a gun. Id. at 2. He explained that he “took advantage” of

Appellant, who was “orphaned” and “less fortunate.” Id. at 2-3.

       On November 29, 2016, the trial court found Appellant guilty of all

charges.    N.T. Trial, 11/29/16, at 158.        On June 29, 2017, the trial court

sentenced Appellant to twenty-five years to life in prison for first-degree

murder and a concurrent term of five to ten years’ imprisonment for

conspiracy.7 N.T. Sentencing Hr’g, 6/29/17, at 58-59. The trial court also

ordered Appellant to serve consecutive terms of seven years’ probation for

carrying a firearm without a license, seven years’ probation for possession of

a firearm without a license, and five years’ probation for carrying firearms on

public streets. Id.

       On July 14, 2017, Appellant filed an untimely post-sentence motion

challenging, among other things, the weight of the evidence supporting his

first-degree murder conviction. On July 18, 2017, the trial court accepted

Appellant’s post-sentence motion as timely filed and reinstated Appellant’s

direct appeal rights nunc pro tunc. Appellant’s counsel did not file a direct

appeal.     Appellant subsequently filed a pro se petition under the Post

____________________________________________
7 Although the trial court sentenced Appellant to a concurrent term of five-to-
ten years’ imprisonment for conspiracy, the docket reflected a five-to-ten-
year-sentence for third-degree murder. See Docket No. 8499-2011 at 7. The
trial court docket also references a June 29, 2017 sentencing order, but there
is no independent sentencing order in the certified record. Id. However, the
record does contain a “Court Commitment” sheet which includes a five-to-ten
year sentence for third-degree murder and appears to have been signed by
the sentencing judge. See Ct. Commitment Form, 6/29/17, at 1.


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Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking reinstatement

of his direct appeal rights. On October 18, 2017, the trial court reinstated

Appellant’s direct appeal rights nunc pro tunc.

      On October 18, 2018, Appellant filed a timely notice of appeal. Appellant

subsequently filed a timely court-ordered Pa.R.A.P. 1925(b) statement. In its

Rule 1925(a) opinion, the trial court explained that the sentencing order

incorrectly reflected a sentence for third-degree murder, rather than for

conspiracy. See Trial Ct. Op. at 14. The trial court indicated that this was “a

patent and obvious mistake” and requested that we remand the matter for

correction. Id. at 15.

      On August 5, 2019, Appellant filed a motion to remand the matter for

an evidentiary hearing based on after-discovered evidence.         See Mot. for

Remand, 8/5/19, at 1. Therein, Appellant indicated that counsel received a

copy of a PCRA petition that was filed by his cousin, Massenberg. Id. In that

PCRA petition, Massenberg stated that he killed the decedent and that

Appellant was innocent. Id. On August 27, 2019, this Court issued an order

deferring Appellant’s motion to this panel for disposition.

      Appellant raises the following issues on appeal:

      1. Should Appellant’s confession have been suppressed because
         it could not have been voluntary given that, inter alia, Appellant
         was [fourteen years old] at the time of the confession and he
         did not have a guardian or an attorney present?

      2. Did the trial court err in admitting Appellant’s off-the-record
         proffer statement to the District Attorney of Philadelphia in the
         Commonwealth’s case in chief and not as rebuttal to any denial



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         on the part of Appellant and, therefore, a new trial should be
         ordered?

      3. Is Appellant’s first-degree murder conviction [] against the
         weight of the evidence and should a new trial should be ordered
         given that Appellant was [thirteen years old] at the time of the
         shooting and was under duress because he was driven to the
         scene by two uncles, these two uncles gave Appellant a gun,
         and instructed Appellant to shoot [the d]ecedent?

      4. Should Appellant’s judgment of sentence be vacated because
         Appellant’s sentence is illegal per the sentencing order of June
         29, 2017 and docket and in violation of double jeopardy in that
         Appellant is sentenced for both first and third-degree murder
         when there was one decedent and, therefore, the sentence of
         [five to ten] years for third-degree murder should be vacated?

Appellant’s Brief at 4.

      In his first claim, Appellant argues that the trial court should have

suppressed his 2011 statement to homicide detectives. Id. at 10. In support,

Appellant notes that he was fourteen years old when he gave the statement.

Id. He also asserts there was no legal guardian or attorney present and that

he “had expectations of being released at the age of [twenty-one] on what

was a first-degree murder case with little possibility of decertification.” Id.

Further, he argues that he “had little conception of the seriousness of the case

and his cooperation with authorities,” and that “[t]here is no way that a

[fourteen-]year-old could properly evaluate the implications of the exploitative

interaction with experienced homicide detectives.” Id. at 12. He concludes

that “[g]iven Appellant’s age and expectations as well as the totality of the

circumstances, Appellant’s confession cannot be deemed voluntary and should

have been suppressed.” Id. at 10.




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      The Commonwealth responds that “in view of the totality of the

circumstances, the confession was knowing, voluntary, and intelligent.”

Commonwealth’s Brief at 13. In support, the Commonwealth explains that

Appellant had “prior contact with the criminal justice system . . . [which] was

relevant to determining the voluntariness of his waiver of Miranda rights.”

Id. at 13-14.    Further, the Commonwealth states that “before taking his

confession[,] the police contacted [Appellant’s] legal guardian, explained to

her that [Appellant] was under arrest for the murder of [the decedent] and

that he had been given his Miranda warnings, and obtained her consent.”

Id. Under these circumstances, the Commonwealth argues that “the [trial]

court did not abuse its discretion in denying [Appellant’s] suppression motion.”

Id. at 13-14.

      We apply the following standard when reviewing the denial of a

suppression motion:

      [O]ur initial task is to determine whether the [trial court’s] factual
      findings are supported by the record.              In making this
      determination, we must consider only the evidence of the
      prosecution’s witnesses, and so much evidence of the defense that
      remains uncontradicted when fairly read in the context of the
      record as a whole. When the evidence supports the factual
      findings, we are bound by such findings; we may reverse only if
      the legal conclusions drawn therefrom are erroneous.

Commonwealth v. Bryant, 67 A.3d 716, 724 (Pa. 2013) (citation omitted).

      The validity of a waiver of Miranda rights is a question of law.

Commonwealth v. Knox, 50 A.3d 732, 746 (Pa. Super. 2012) (citations

omitted).



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      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.

      A determination of whether a juvenile knowingly waived his
      Miranda rights and made a voluntary confession is to be based
      on a consideration of the totality of the circumstances, including
      a consideration of the juvenile’s age, experience, comprehension
      and the presence or absence of an interested adult.

In re B.T., 82 A.3d 431, 436 (Pa. Super. 2013) (quoting In re T.B., 11 A.3d

500, 505-06 (Pa. Super. 2010)) (some formatting altered).

      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.”

T.B., 11 A.3d at 506 (citation omitted).

      However, we have reiterated that “the presence of an interested adult

is . . . no longer a per se requirement during a police interview of a juvenile.

The presence of an interested adult, however, is a factor in determining the

voluntariness of a juvenile’s waiver of Miranda rights.” Interest of N.M.,

222 A.3d 759, 772 (Pa. Super. 2019) (citations omitted).           “Because the

totality of the circumstances varies from case to case, we have both affirmed

and reversed orders denying suppression where a juvenile defendant waived

Miranda without first consulting with an interested adult.” Commonwealth


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v. Smith, 210 A.3d 1050, 1059 (Pa. Super. 2019) (citations omitted), appeal

denied, 218 A.3d 1199 (Pa. 2019).

     Here, the trial court addressed Appellant’s claim as follows:

     This court found the testimony of Detective Gaul to be credible,
     [in] that [Appellant]’s guardian[, Ms. Johnson,] gave the police a
     knowing, intelligent and voluntary consent to interview
     [Appellant], that both juvenile and guardian were aware that
     [Appellant] was being interviewed concerning the murder of [the
     decedent] and that [Appellant] was a suspect in that murder. This
     court further found that [Appellant] and Ms. Johnson understood
     the Miranda rights that had been read to them and that
     [Appellant] intended to make a statement and to cooperate with
     the police. Furthermore, the questioning was not protracted,
     [Appellant] was not under the influence of any drugs or alcohol,
     and not deprived of food, drink or the use of a bathroom.
     Additionally, [Appellant] was not threatened or otherwise coerced
     into making the statement. The uncontradicted testimony was
     that Detective Gaul maintained a calm and cordial demeanor
     throughout the interview and that [Appellant] understood the
     rights he was giving up and what was happening.

     [Appellant] contends that based on a totality of the circumstances,
     his confession to the police should have been suppressed as
     involuntary exclusively because he was fourteen years old at the
     time and no guardian was present. . . . the law is clear that the
     determination of whether a juvenile knowingly waived his
     Miranda rights and made a voluntary confession [is] based upon
     a consideration of the totality of the circumstances, including the
     duration and means of interrogation[,] the defendant’s physical
     and psychological state, the conditions attendant to the detention,
     the attitude of the investigator, the juvenile’s age, experience,
     comprehension[,] and the presence or absence of an interested
     adult and any and all other relevant factors. Although [Appellant]
     was only fourteen at the time of the interview, he had considerable
     experience with the legal system, with two prior arrests for
     assault, at the time being housed in a juvenile facility[,] and on
     the day he was brought to police headquarters[,] he had been at
     the juvenile court for an unrelated shooting case.




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      [Appellant] was not subject to physical or psychological abuse and
      he was informed of his rights as was his guardian who consented
      to the interview. Appellant signed the Miranda waiver and only
      invoked his right to stop the interview when presented with a
      written statement, at which time the interview was stopped.
      Although the law no longer requires the presence of an interested
      adult, it is a factor in determining the voluntariness of the waiver.
      Under the circumstances, as this juvenile[, (Appellant), ] was
      quite familiar with the justice system, with at least two prior
      arrests, as well as a commitment to juvenile placement, both he
      and his guardian having been properly informed of the Miranda
      rights, the short duration of the interview, the lack of any physical
      or psychological abuse, the totality of the circumstances require a
      finding that the waiver was knowing, intelligent and voluntary.

Trial Ct. Op. at 10-11 (citations omitted).

      Based on our review of the record, we discern no factual or legal error

in the trial court’s analysis of Appellant’s claim. See Bryant, 67 A.3d at 724.

The trial court credited Detective Gaul’s testimony that he did not threaten,

intimidate, or coerce Appellant into making a statement.     See In re B.T., 82

A.3d at 436.   Further, although Appellant was fourteen at the time of the

interview, the trial court found that Appellant understood his rights and the

consequences of making a statement to police. See id. As noted by the trial

court, Appellant was familiar with the juvenile system and was also in custody

for an unrelated shooting case. See Trial Ct. Op. at 11. Finally, the trial court

considered the short duration of the detention, Appellant’s physical and

psychological state, and Detective Gaul’s calm demeanor throughout the

interview. See T.B., 11 A.3d at 506. Therefore, in light of the totality of

these circumstances, we agree that Appellant’s waiver of his Miranda rights

was knowing, voluntary, and intelligent. See B.T., 82 A.3d at 431; see also




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Knox, 50 A.3d at 746. Accordingly, the trial court properly denied Appellant’s

motion to suppress his statement. See Bryant, 67 A.3d at 724.

      In his second claim, Appellant argues that the trial court erred by

allowing the Commonwealth to use Appellant’s off-the-record proffer

statement during its case-in-chief. Appellant’s Brief at 13. Appellant contends

that his proffer statement was inadmissible under Pa.R.E. 410. Id. Further,

he asserts that because the trial court admitted the proffer statement before

Appellant testified at trial, it was not harmless error. Id. at 14.

      The Commonwealth responds that “[t]he admissibility of [Appellant’s]

statement is governed by an agreement, which [Appellant] signed in the

presence of his attorney, and in which he agreed that the statement could be

used in court under certain circumstances,           which were met here.”

Commonwealth’s Brief at 14.      Therefore, the Commonwealth contends that

Appellant’s statement was properly admitted at trial. Id.

      “The admission 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.” Commonwealth v. Treiber, 874 A.2d 26, 31 (Pa.

2005) (citation omitted).

      Rule 410 of the Pennsylvania Rules of Evidence provides, in relevant

part, as follows:

      (a) Prohibited Uses. In a civil or criminal case, evidence of the
      following is not admissible against the defendant who made the
      plea or participated in the plea discussions:

                                 *     *      *


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            (4) a statement made during plea discussions with an
            attorney for the prosecuting authority if the discussions did
            not result in a guilty plea or they resulted in a later
            withdrawn guilty plea.

Pa.R.E. 410(a)(4).

      Ordinarily, any statement made by the defendant during plea

negotiations is inadmissible at trial during the Commonwealth’s case-in-chief.

Commonwealth v. Widmer, 120 A.3d 1023, 1026 (Pa. Super. 2015).

However, we have recognized that during the plea-bargaining process, “a

defendant is permitted to waive valuable rights in exchange for important

concessions by the Commonwealth when the defendant is facing a slim

possibility of acquittal.” Commonwealth v. Byrne, 833 A.2d 729, 736 (Pa.

Super. 2003) (citation omitted). Therefore, a defendant may waive his right

to assert that a statement is inadmissible under Rule 410, so long as that

waiver is knowing, voluntary, and intelligent.   Widmer, 120 A.3d at 1027

(citing Byrne, 833 A.2d at 736).

      In Widmer, the defendant agreed to participate in a proffer with the

Commonwealth. Widmer, 120 A.3d at 1027. Before the defendant provided

a statement, the Commonwealth indicated that if the defendant later withdrew

his plea, then the Commonwealth would use the defendant’s proffer statement

against him at trial. Id. The defendant signed an agreement in which he

expressly agreed to those terms. Id. at 1024-25. Ultimately, the defendant

withdrew his plea and the trial court allowed the Commonwealth to use the

defendant’s proffer statement at trial during its case-in-chief. Id. at 1025.




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        On appeal, the Widmer Court held that the defendant’s waiver of his

Rule 410 rights was valid, as the Commonwealth unequivocally indicated that

the defendant’s statements would be used at trial if he withdrew his plea. Id.

at 1028. Further, we noted that the defendant’s chances of acquittal were

relatively slim.     Id.   Under those circumstances, we concluded that the

defendant properly waived his Rule 410 rights during the plea-bargaining

process and that “the trial court did not err in admitting into evidence the

statements [the defendant] made during plea negotiations with the

Commonwealth.” Id.

        Here, as in Widmer, the Commonwealth conditioned its plea offer on

Appellant’s waiver of his Rule 410 rights. See Widmer, 120 A.3d at 1027.

As noted by the trial court,8 the Commonwealth specifically stated in the

____________________________________________


8   The agreement provided, in relevant part, as follows:

           [Appellant] agrees that if he participates in any criminal
           activity after the date of this agreement, or if he lies to the
           District Attorney or Philadelphia Police Department or any
           other law enforcement or prosecutorial agency, or if he lies
           in any testimony about a material matter, or if he stops
           cooperating under this agreement, or if he violates any
           other term or condition of this agreement, this agreement
           is null and void. And [Appellant] will be prosecuted to the
           fullest extent, including reinstatement of the lead charge of
           murder of the first degree. And any and all statements
           and testimony made under this agreement, including
           the proffer statement given by [Appellant] to the
           District Attorney’s Office on or about December 14,
           2012, which [Appellant] hereby agrees that the
           District Attorney’s office shall be permitted to use
           that proffer statement in the Commonwealth’s case in



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J-S07007-20



agreement that it would use Appellant’s proffer statement at trial if Appellant

ultimately failed to comply with the terms of the plea deal. See N.T. Trial,

11/29/16, at 69; see also Widmer, 120 A.3d at 1027. Both Appellant and

his counsel signed the written agreement memorializing those terms. See

N.T. Trial, 11/29/16, at 69. At the time Appellant signed the agreement, he

was facing a slim possibility of acquittal.9 See Widmer, 120 A.3d at 1028;

see also Byrne, 833 A.2d at 735. Under these circumstances, Appellant’s

waiver of his Rule 410 rights was knowing, voluntary, and intelligent. See

Widmer, 120 A.3d at 1027; see also Byrne, 833 A.2d at 735. Therefore,

we discern no abuse of discretion by the trial court in admitting Appellant’s

statement.     See Treiber, 874 A.2d at 31.        Accordingly, Appellant is not

entitled to relief.

       In his third claim, Appellant argues that his first-degree murder

“conviction is against the weight of the evidence because Appellant was under

____________________________________________

          chief. And any evidence derived directly or indirectly from
          such statements or testimony can and will be used against
          him in a court of law. If the District Attorney declares this
          agreement to be null and void, the District Attorney will not
          be bound by any obligation under this agreement.
          [Appellant] understands that the District Attorney alone will
          determine that materiality.

Trial Ct. Op. at 12 (citing N.T. Trial, 11/29/16, at 69-71).

9 By the time that Appellant signed the plea agreement, the trial court had
already denied Appellant’s motion to suppress the statement he gave to
homicide detectives. See N.T. Suppression Hr’g, 5/4/15, at 19. Moreover,
the decedent’s nephew had identified Appellant as the person who lured the
decedent down an alleyway moments before the shooting.            See N.T.
Preliminary Hr’g, 7/26/11, at 17-29.


                                          - 18 -
J-S07007-20



significant duress from his adult cousins.” Appellant’s Brief at 15. Specifically,

Appellant explains that he was thirteen “at the time of the killing, he was

brought to the scene, instructed what to do, and given the murder weapon.”

Id. Appellant asserts that his cousins “had considerable control over” him and

that “[g]iven Appellant’s age and the threat and actions of [his] cousins,

Appellant’s actions in the present matter were committed under duress. The

weight of the evidence does not support Appellant’s first-degree [m]urder

conviction.” Id. at 18-19.

      The Commonwealth responds that “[t]he trial court did not find

[Appellant’s] duress argument credible.”      Commonwealth’s Brief at 15-16.

Therefore, the Commonwealth asserts that “the trial court acted well within

its discretion when it found the verdict was not against the weight of the

evidence and did not shock one’s sense of justice.” Id. at 17.

      When reviewing a challenge to the weight of the evidence, our standard

of review is as follows:

      A claim alleging the verdict was against the weight of the evidence
      is addressed to the discretion of the trial court. Accordingly, an
      appellate court reviews the exercise of the trial court’s discretion;
      it does not answer for itself whether the verdict was against the
      weight of the evidence. It is well settled that the [fact-finder] is
      free to believe all, part, or none of the evidence and to determine
      the credibility of the witnesses, and a new trial based on a weight
      of the evidence claim is only warranted where the [fact-finder’s]
      verdict is so contrary to the evidence that it shocks one’s sense of
      justice. In determining whether this standard has been met,
      appellate review is limited to whether the trial judge’s discretion
      was properly exercised, and relief will only be granted where the
      facts and inferences of record disclose a palpable abuse of
      discretion.


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J-S07007-20



Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation

omitted).

      We have explained that

      [a] new trial 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. Rather, the role of the trial court
      is to determine that notwithstanding all the evidence, 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. A motion
      for a new trial on the grounds that the verdict is contrary to the
      weight of the evidence concedes that there is sufficient evidence
      to sustain the verdict; thus the trial court is under no obligation
      to view the evidence in the light most favorable to the verdict
      winner.

Id. (citation omitted).

      Further, “[b]ecause 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.” Id. (citation omitted). “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.” Id. (citation omitted).

      Here, the trial court addressed Appellant’s weight claim as follows:

      [Appellant] testified that he was living with his two cousins,
      Walker and Massenberg, although he did not know the address,
      and that on the night of the murder they found [Appellant] in the
      park, picked him up, drove him to the crime scene, then gave him
      a gun and told him to shoot [the decedent] in the head or they
      would kill [Appellant]. [Appellant] ended his direct examination



                                     - 20 -
J-S07007-20


      with the explanation that if he had any place else to live he would
      not have committed the crime. [Appellant’s] testimony was not
      credible. Despite claiming that he had been living with his two
      cousins, [Appellant] did not know the address that he was living,
      what street the house faced, how long he had lived there, when
      he had been kicked out of his guardian’s house, or provide any
      explanation as to how he could have lived with both of his cousins
      when they had two separate addresses. While acknowledging that
      the plan was to “Shoot him in the head,” he disputed that the plan
      was to murder [the decedent], claiming that he did not think about
      what would happen when he shot [the decedent] in the head
      during the half hour he was waiting for the decedent to appear.
      [Appellant] shot [the decedent] a total of four times, twice in the
      head. Accordingly, the verdict was not contrary to the weight of
      evidence.

Trial Ct. Op. at 6-7.

      Based on our review of the record, we discern no abuse of discretion in

the trial court’s ruling. See Landis, 89 A.3d at 699. The trial court did not

find Appellant’s testimony credible. Therefore, the trial court appropriately

concluded that its verdict was not so contrary to the evidence as to require a

new trial. See id. Moreover, we decline to reassess the credibility of the

witnesses and to reweigh the testimony and evidence presented at trial. See

id. (emphasizing that the trier of fact is “free to believe all, part or none of

the evidence,” and “[t]his Court may not [re]weigh the evidence or substitute

its judgment [f]or that of the fact finder” (citation omitted)). Accordingly,

Appellant is not entitled to relief on his weight claim.

      In his fourth issue, Appellant challenges the legality of his sentence.

Appellant’s Brief at 9.    Specifically, Appellant argues that the trial court

violated double jeopardy principles by imposing a sentence for both first and




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J-S07007-20



third-degree murder. Id. Appellant requests that we remand the matter for

resentencing or for the trial court to correct his sentence. Id.

      The Commonwealth agrees that we should remand the matter to the

trial court. Commonwealth’s Brief at 9. The Commonwealth contends that

the sentencing order contains a clerical error, as “the trial court clearly stated

that [Appellant] was to be sentenced [to twenty-five] years to life for first-

degree murder, and five-to-ten years for conspiracy.” Id.

      The question of whether a trial court has the “authority to correct an

alleged sentencing error poses a pure question of law.” Commonwealth v.

Borrin, 12 A.3d 466, 471 (Pa. Super. 2011) (en banc) (Borrin I) (citation

omitted), aff’d, 80 A.3d 1219 (Pa. 2013) (Borrin II). “Accordingly, our scope

of review is plenary and our standard of review is de novo.”         Id. (citation

omitted).

      “In Pennsylvania, the text of the sentencing order, and not the

statements a trial court makes about a defendant’s sentence, is determinative

of the court’s sentencing intentions and the sentence imposed.” Borrin II,

80 A.3d at 1226 (citations omitted). However, we have explained that

      a trial court has the inherent, common-law authority to correct
      ‘clear clerical errors’ in its orders. This authority exists even after
      the [thirty]-day time limitation for the modification of orders
      expires. We have previously concluded that a ‘clear clerical error’
      exists on the face of the record when a trial court’s intentions are
      clearly and unambiguously declared during the sentencing
      hearing. When this situation arises, the sentencing order is
      subject to later correction. Accordingly, an oral sentence which is
      on the record, written incorrectly by the clerk of courts, and then
      corrected by the trial judge, is a clerical error.



                                      - 22 -
J-S07007-20



Commonwealth v. Thompson, 106 A.3d 742, 766 (Pa. Super. 2014)

(citations omitted and some formatting altered).

     Here, at sentencing, the trial court stated the following:

     [Appellant], I have read the Supreme Court decision in
     [Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017),] which
     came down two days ago. I have considered all the reports that
     have been provided, including the ones for a request to have this
     sent back to juvenile court many years ago. I have considered
     your age, the fact you have changed, circumstances of the crime,
     your background, and emotional maturity and development, as
     well as a potential for rehabilitation. And based on my reading of
     [Batts,] the sentence on murder of the first degree is twenty-five
     years to life; firearm to be carried without a license, seven years’
     probation[;] possession of a firearm by minor, seven years’
     probation to run consecutive; carrying firearms on public street,
     five years’ reporting probation, consecutive; possessing
     instrument of crime, five years reporting probation, consecutive;
     and conspiracy to murder, five to ten years to run concurrent with
     the [twenty-five] to life.

     So in essence, you got [twenty-five] to life.

N.T. Sentencing Hr’g at 58-59.

     In its Rule 1925(a) opinion, the trial court explained:

     The order of sentence incorrectly states that [Appellant] was
     sentenced to five to ten years’ incarceration for third degree
     murder, concurrent to the twenty-five to life sentence for first
     degree murder. The order should have directed that concurrent
     sentence for the crime of criminal conspiracy. . . . [Appellant] was
     convicted of first-degree murder.          During the sentencing
     [hearing], [Appellant] was sentenced for first-degree murder. The
     entry of a sentence of five to ten years was for the conspiracy
     charge, not murder of the third degree as clearly stated during
     the sentencing hearing and reflected in the notes. Thus[,] the
     sentencing order imposing a concurrent sentence of five to ten
     years for third degree murder was a patent and obvious mistake
     and the trial court should be permitted to enter an order correcting




                                    - 23 -
J-S07007-20


       the sentence imposed by removing the third degree murder
       sentence.

Trial Ct. Op. at 14-15.

       As noted previously, the trial court’s written sentencing order does not

appear in the certified record. Nonetheless, both parties and the trial court

agree that Appellant is serving a sentence for third-degree murder,10 which is

inconsistent with the trial court’s unambiguous statements at the sentencing

hearing. See Thompson, 106 A.3d at 766. Under these circumstances, we

affirm Appellant’s convictions, but vacate the judgment of sentence and

remand the matter to the trial court for correction of the order. Borrin I, 12

A.3d at 471.

       Finally, we address Appellant’s application to remand the matter for an

evidentiary hearing based on after-discovered evidence.         See Appl. for

Remand, 8/5/19.         Therein, Appellant refers to Massenberg’s 2019 PCRA

petition, in which Massenberg took responsibility for killing the decedent. Id.

at 2, Ex. 1. Appellant maintains that he did not discover this evidence until

counsel received a copy of the petition via email on August 2, 2019. Id. at 2.

Further, he asserts that the evidence “would demand a different outcome at

trial because Massenberg accepts responsibility for the homicide at issue.” Id.

Therefore, Appellant requests an evidentiary hearing for the trial court to

determine whether a new trial is necessary. Id.



____________________________________________
10 Additionally, both the trial court docket and the Court Commitment form
reflect the sentencing error described by the parties and the trial court.


                                          - 24 -
J-S07007-20



      The Commonwealth responds that “[t]he purported after-discovered

evidence [Appellant] submitted does not require remand.” Commonwealth’s

Brief at 19. The Commonwealth asserts that “[t]he evidence consists of a

statement     from   [Appellant’s]   cousin,    Stephan   Massenberg,   in    which

Massenberg confesses to the murder and states that [Appellant] was not an

accomplice.    This statement is cumulative of another written statement by

Massenberg that [Appellant] entered into evidence at trial.” Id.

      Pennsylvania Rule of Criminal Procedure 720(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.” Pa.R.Crim.P. 720(C).

The comment to Rule 720 states that “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 cmt.

      To establish an after-discovered evidence claim, a petitioner must prove

by a preponderance of the evidence, the following:

      (1) the evidence could not have been obtained before the
      conclusion of the trial by reasonable diligence; (2) the evidence is
      not merely corroborative or cumulative; (3) the evidence will not
      be used solely for purposes of impeachment; and (4) the evidence
      is of such a nature and character that a different outcome is likely.
      At an evidentiary hearing, an appellant must show by a
      preponderance of the evidence that each of these factors has been
      met in order for a new trial to be warranted.

Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa. Super. 2007) (citation

omitted).



                                       - 25 -
J-S07007-20


      [A]s our Supreme Court has explained, to warrant an evidentiary
      hearing on a claim of after-discovered evidence, the request must,
      at the very least, “describe the evidence that will be presented at
      the hearing. Simply relying on conclusory accusations . . . is
      insufficient to warrant a hearing.” Commonwealth v. Castro,
      [93 A.3d 818, 827 (Pa. 2014)]. “[T]he hearing is for the
      presentation of evidence, not the potential discovery of evidence.
      An evidentiary hearing . . . is not meant to function as a fishing
      expedition for any possible evidence that may support some
      speculative claim[.]” Id. at 827-28.

Commonwealth v. Heaster, 171 A.3d 268, 273-74 (Pa. Super. 2017) (some

formatting altered).

      Here, based on our review of the record and Appellant’s motion, we

discern no basis to remand this matter for an evidentiary hearing. As noted

previously, at trial, Appellant introduced a letter from Massenberg in which he

took responsibility for murdering the decedent. See N.T. Trial, 11/29/16, at

138-39; Appellant’s Trial Ex. 1.        To the extent that the statement in

Massenberg’s PCRA petition can be considered evidence, Appellant did not

raise the claim “promptly” after his discovery. See Pa.R.Crim.P. 720 cmt.

Instead, it is clear that Appellant knew about Massenberg’s admission of guilt

at trial, and in fact presented that evidence to the trial court as part of his own

defense. See N.T. Trial, 11/29/16, at 138-39; Appellant’s Trial Ex. 1. Under

these circumstances, we cannot conclude that Appellant discovered this

evidence during the direct appeal process, or that he promptly presented the

claim upon his discovery. See Pa.R.Crim.P. 720 cmt. Therefore, Appellant is

not entitled to an evidentiary hearing on his claim.




                                      - 26 -
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         Judgment of sentence vacated. Case remanded for correction of the

sentencing order.    Appellant’s application for remand denied.   Jurisdiction

relinquished.



   Judge King joins the memorandum.

   Judge Strassburger files a concurring memorandum in which Judge Nichols

joins.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/20




                                    - 27 -
