J-S73015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
OMAR ANGELERO COLON, JR.                 :
                                         :
                   Appellant             :   No. 621 MDA 2017

           Appeal from the Judgment of Sentence March 7, 2017
   In the Court of Common Pleas of Lancaster County Criminal Division at
                     No(s): CP-36-CR-0003592-2016,
                         CP-36-CR-0006001-2015


BEFORE:    OLSON, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                              FILED APRIL 02, 2018

      Appellant, Omar Angelero Colon, Jr., appeals from the judgment of

sentence entered on March 7, 2017. We affirm.

      The trial court ably summarized the underlying facts and procedural

posture of this case. As the trial court explained:

        On November 9, 2015, Josh Domena was waiting for his
        girlfriend, Mariah Griffy, while talking to her mother, Sherry
        Griffy, on the back porch of the Griffys’ house [in Ephrata,
        Pennsylvania]. Sherry shared the home with Mariah, her
        daughter Gina Griffy, and [Appellant]. While they were on
        the porch, Mr. Domena was “talking smack” to Sherry about
        [Appellant]. [Appellant] overheard the conversation from
        inside the house, and came out onto the porch to confront
        Mr. Domena. After a brief argument, [Appellant] hit Mr.
        Domena on the back, and Mr. Domena hit him back. After
        they each struck each other once, [Appellant] went back
        into the house. While he was inside, Mr. Domena heard
        [Appellant] “rack” a gun, before returning to the rear porch
        with a black and silver handgun in his hand. [Appellant]
        then verbally threatened to shoot Mr. Domena, who

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S73015-17


       responded with a threat of his own before walking away
       down an alley. While in the alley, Mr. Domena stopped a
       car Mariah Griffy was driving and got [inside the vehicle].
       Ms. Griffy then drove them back to the house. When they
       arrived, Mr. Domena got out of the car and walked toward
       the house. At the same time, [Appellant] was walking
       toward a parked, silver Audi sedan. As they passed each
       other, the men got into another argument before walking
       away in opposite directions - [Appellant] toward the silver
       Audi and Mr. Domena toward the house. [Appellant’s] gun
       was not visible during this exchange. While Mr. Domena
       was still walking to the house, however, [Appellant] entered
       the silver Audi, emerged with a gun, and fired it in Mr.
       Domena’s direction before fleeing the scene in the vehicle.
       The bullet did not hit Mr. Domena, but struck a nearby
       [cinderblock] garage wall.

       After the gunshot, Mariah Griffy dialed [911].         Officer
       Michael Andrew Orwig was the first [officer on] scene,
       arriving at 12:30 [p.m.], around 20 [to] 30 minutes after
       the shot was fired. Five minutes later, at 12:35 [p.m.],
       Officer Matthew Bender, who was stopped as part of a
       speed trap along Route 222 near its intersection with Route
       30, was informed by another officer, Sergeant Pia Santina,
       that a silver Audi sedan was [traveling] toward him at [74]
       miles per hour in a [55-mile-per-hour] zone. When the
       silver Audi passed him about ten seconds later, [Officer
       Bender] activated his lights and siren[], exited the shoulder,
       and caught up to the vehicle. In response, the silver Audi
       pulled over and slowed to a stop on the right shoulder,
       followed by Officer Bender.      About [15] seconds after
       stopping, and just after Officer Bender entered the silver
       Audi’s license plate number into the “mobile cop” system,
       the vehicle [re-entered] the roadway at a high rate of
       speed. In doing so, the silver Audi passed at least one
       other vehicle on the right shoulder. Having only pulled the
       vehicle over for speeding, Officer Bender reported the
       activity and the license plate, but did not continue the
       pursuit. The mobile cop system indicated that the vehicle
       belonged to Gina Mariah Griffy. . . .

       Later that afternoon, back at the Griffys’ residence, the area
       had been secured with police tape, and Sergeant Eric
       Schmitt, an experienced forensic examiner with training in

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       bullet striking, photographed the scene. Amongst Sergeant
       Schmitt’s photos was a silver Audi sedan with a missing
       license plate that was parked in a stone lot directly behind
       the house. This silver Audi was the same vehicle that
       Officer Bender had briefly pulled over earlier that day, as
       determined by the VIN number which was visible through
       the windshield.

       After photographing the scene, Sergeant Schmitt attempted
       to locate the bullet and determine where it had struck.
       While Sergeant Schmitt was searching for the bullet with a
       metal detector, another officer, Lieutenant Shumaker,
       happened to notice the spent, deformed bullet lying at the
       edge of the crime scene.         Sergeant Schmitt then re-
       photographed the entire area, placing “scales in the screen
       to show where the bullet was located in reference to the
       cinderblock garage that was at the scene.” Consistent with
       standard practice, Sergeant Schmitt then placed the
       deformed[] bullet in a small jewelry box with cotton to
       preserve it for evidence. Next, Sergeant Schmitt surveyed
       the cinderblock garage to determine exactly where the
       bullet had struck, locating a chip in the corner of the garage
       that was probably caused by the bullet strike. Sergeant
       Schmitt also had Mr. Domena stand where he was when the
       shot was fired. The resulting measurements indicat[ed]
       that the bullet struck about four feet, ten inches above the
       ground, and approximately eight feet behind where Mr.
       Domena was standing.

       Charges were filed and a warrant was issued for
       [Appellant’s] arrest the day of the incident, but [Appellant]
       was not apprehended until December 10, 2015, when he
       was arrested by Lancaster City Police. After [Appellant] was
       arrested, he was transported to the Ephrata Police
       Department to be processed on his criminal charges, and to
       then be transported to arraignment. . . .

       Detective Kenneth D. Lockhart, Jr., the lead investigator on
       the case, was notified of [Appellant’s] arrest, and credibly
       testified at the Suppression Hearing that he then went to
       the processing room to see if [Appellant] was willing to
       schedule an interview about the incident.       Carrying no
       weapon, Detective Lockhart entered the processing room[]
       and calmly stated that he was the police officer who filed

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J-S73015-17


          the complaint and that he wanted to talk to [Appellant]
          about the incident. [Appellant] responded immediately with
          the following: “I don’t know what this is about. I didn’t
          shoot at anybody, it was a firecracker. . . . They’re not
          going to testify anyway.” . . .

          In addition to th[is statement] to Detective Lockhart, while
          in prison, [Appellant] mailed between [15] and [20] letters.
          Detective Lockhart read one of these letters to the jury at
          trial – it was addressed to Mariah Griffy, and asked that she
          read certain portions to Mr. Domena. These portions asked
          Mr. Domena not to testify against [Appellant], that [Mr.
          Domena] alternatively [invoke his Fifth Amendment right to
          not incriminate himself], or that he change his story to
          protect [Appellant]. The Commonwealth introduced the
          following evidence linking [Appellant] to the letter:
          Detective Lockhart testified that he intercepted the letter
          from the inmate mail, the letter contained [Appellant’s]
          prison identification number, the text matched other
          samples      of    [Appellant’s]    handwriting,   and    the
          Commonwealth played portions of recorded prison calls for
          the jury in which [Appellant] asked Mariah Griffy on multiple
          occasions if she received his letters.

          . . . [Appellant] was charged with [] simple assault[,]
          carrying a firearm without a license[,] recklessly
          endangering another person[,] solicitation of perjury[, and]
          . . . fleeing or attempting to elude a police officer.[1]
          [Following trial,] the jury found [Appellant] guilty of all but
          the fleeing or attempting to elude a police officer charge.
          After the jury trial, [the trial court] found [Appellant] guilty
          of [person not to possess firearms].2 . . .

          [On March 7, 2017, the trial court] sentenced [Appellant] to
          [an] aggregate sentence of six to [15] years’ incarceration
          [for his convictions]. . . .

____________________________________________


1 18 Pa.C.S.A. §§ 2701(a)(3), 6106(a)(1), 2705, and 4902(a), and 75
Pa.C.S.A. § 3733, respectively.

2   18 Pa.C.S.A. § 6105(a)(1).



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J-S73015-17



Trial Court Opinion, 6/15/17, at 1-6 (internal citations, corrections, and

footnotes omitted) (some internal quotations and capitalization omitted).

        Appellant filed a timely notice of appeal. He raises three claims to this

Court:

          [1.] Did the trial court err in denying [Appellant’s] motion to
          suppress where the detective subjected [Appellant] to a
          custodial interrogation without advising [Appellant] of his
          Miranda[3] rights?

          [2.] Did the trial court err in denying [Appellant’s] motion
          for judgment of acquittal regarding the recklessly
          endangering another person charge . . . where the
          Commonwealth failed to produce any evidence that showed
          [Appellant] placed another person in danger of death or
          serious bodily injury?

          [3.] Did the trial court err in denying [Appellant’s] motion
          for judgment of acquittal regarding the solicitation to
          commit perjury charge . . . where the Commonwealth failed
          to produce any evidence that [Appellant] commanded,
          encouraged[,] or requested Mr. Domena to make a false
          statement under oath in any official proceeding?

Appellant’s Brief at 5 (some internal capitalization omitted).

        We have reviewed the briefs of the parties, the relevant law, the

certified record, the notes of testimony, and the opinion of the able trial

court judge, the Honorable Jeffery D. Wright. We conclude that there has

been no error in this case and that Judge Wright’s opinion, entered on June

15, 2017, meticulously and accurately disposes of Appellant’s issues on

appeal.     Therefore, we affirm on the basis of Judge Wright’s thorough
____________________________________________


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



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J-S73015-17



opinion and adopt it as our own. In any future filing with this or any other

court addressing this ruling, the filing party shall attach a copy of Judge

Wright’s opinion.

      Judgment of sentence affirmed. Jurisdiction relinquished.

      Judge Dubow joins the memorandum.

      Judge Strassburger files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/2/2018




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