J-S58003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

HENRY CULVER,

                            Appellant                   No. 321 WDA 2013


          Appeal from the Judgment of Sentence December 13, 2012
             in the Court of Common Pleas of Allegheny County
              Criminal Division at No.: CP-02-CR-0008632-2011


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED OCTOBER 1, 2014

        Appellant, Henry Culver, appeals from the judgment of sentence

imposed after his jury conviction of murder of the first degree, person not to

possess a firearm, firearms not to be carried without a license, terroristic

threats, and simple assault.1 We affirm.

        The trial court set forth the background of this case, as follows:

               The Commonwealth’s evidence established that on
        December 14, 2011, the victim, Scott Goodman, was at the
        home of his father, Albert Goodman. The elder Goodman was
        sitting in his home when he heard an argument coming from the
        kitchen. [(See N.T. Albert Goodman Trial Deposition (AGTD),
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 2502(a), 6105(a)(1), 6106(a)(1), 2706(a)(1), and 2701,
respectively.
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       9/01/11, at 7-8, 11).2] He recognized both voices[:] that of his
       son and that of [Appellant], with whom he was also familiar.
       [(See id. at 9-11).] Mr. Goodman walked into the kitchen and
       saw [Appellant] shoot his son. [(See id. at 13, 52, 54).]
       [Appellant] then turned to Mr. Goodman and told him to back off
       or he would be next. [(See id. at 16, 61-62).] Mr. Goodman
       then fled out the front door while [Appellant] left through the
       back door. [(See id. at 16-17, 64-65).]

             At approximately the same time that Mr. Goodman was
       leaving his house, a witness, [Rasheeda3] Saxton, was arriving.
       She saw [Appellant come from the back of the house,] get into
       his car and drive off. [(See N.T. Trial, 9/19/12, at 126-29).]
       While she was walking toward the Goodman residence, she
       heard Albert Goodman calling for help and, as she went around
       to the back, she saw Scott Goodman lying on the ground,
       bleeding. [(See id. at 129-31). [When police arrived on the
       scene, Ms. Saxton told them that “Hank (meaning Appellant) did
       this.” (Id. at 116).] Scott Goodman was taken to the hospital
       where he eventually died of his wounds.

              LaPerry Raymond, the mother of [Rasheeda] Saxton, also
       testified. [(See id. at 181-86).] She said that during that
       evening, she was on the phone with Scott Goodman. She heard
       a door slam and Scott told her to hold on. [(See id. at 185).]
       He then told her that it was “Hank” and he would call her back
       later. [(See id.).] A few minutes later, her daughter called and
       told her that Scott Goodman had been shot. [(See id. at 185-
       86).] . . .

             [Detective Kenneth Ruckel of the Allegheny County police
       department testified that he found a black leather glove with a
       zipper near the cuff at the scene of the murder. (See N.T. Trial,
____________________________________________


2
  Because of his his poor health, Albert Goodman’s trial deposition was
videotaped in advance of trial. He passed away prior to trial, and the jury
viewed the videotaped deposition. (See N.T. Trial, 9/19/12, at 232-33).
3
  The trial court spells Ms. Saxton’s first name as “Rashida,” however a
review of the notes of testimony reveals that the proper spelling is
“Rasheeda.” (See N.T. Trial, 9/20/12, at 123). For the sake of consistency,
we will spell Ms. Saxton’s first name as “Rasheeda.”



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      9/18/12, at 42). A dark brown glove that was inside the black
      one as though the two were worn together contained Appellant’s
      DNA. (See N.T. Trial, 9/20/12, at 287).]

           The Commonwealth also presented evidence concerning
      [Appellant’s] arrest sometime later in Miami. . . .

                                  *    *     *

             After receiving a tip as to where [Appellant] might be
      found, Deputy US Marshal[] Ty Fallow and others went to this
      location [at a rescue mission in Miami, Florida]. [(See id. at
      207-09, 222).] They observed [Appellant] and Marshal[] Fallow
      addressed [him], “Mr. Culver, Hank, Henry.” [(Id. at 212).] At
      this point, [Appellant] turned around. [(See id.).] Later, as
      they were asking him his name, he told them that his name was
      Rocky Wallace. [(See id.).] He showed them an ID [from the
      rescue mission] that bore the name Rocky Wallace but had his
      photograph on it. [(See id. at 212-13).] [Appellant] was
      [detained] and transported to the Dade County Jail [where
      fingerprint analysis confirmed that he was Henry Culver and he
      was then arrested]. [(See id. at 213; N.T. Trial, 9/20/12, at
      253).] He was in a holding cell for a lengthy time as he waited
      his turn to be processed. The defendants’ names are called out
      frequently.    Marshal[] Fallow observed that on all but one
      occasion when the jail called out for Henry Culver, [Appellant]
      did not respond. [(See N.T. Trial, 9/19/12, at 213-16).] Once,
      however, when a nurse called the name Henry Culver, he did
      verbally respond. [(See id. at 215-16).]

            Marshal[] Fallow also testified that he was present when
      [Appellant] was provided with several intake forms including a
      property form. [(See id. at 219-20).] This form itemizes the
      property that was on his person when he was arrested. [(See
      id.).] It has a place for the inmate’s signature. Marshal[] Fallow
      observed [Appellant] sign the name Rocky Wallace to that form.
      [(See id. at 220).]        [The Commonwealth] introduced [the
      document] into evidence at trial. [(See id.).]

(Trial Court Opinion, 1/17/14, at 3-4, 5).

      Appellant’s counsel moved to suppress any testimony regarding

Appellant’s refusal to acknowledge his name.     (See id. at 248).   The trial

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court ruled that all statements made by Appellant prior to having been read

his Miranda4 rights would be excluded, but that the property intake form

that Appellant signed after his rights had been read to him was admissible.

(See id. at 248-49).         The trial court instructed the jury that it was to

disregard any statements made by Appellant prior to being given his

Miranda warnings, but could consider whether or not he signed the property

intake form using a fraudulent name. (See id. at 250-51).

        At the conclusion of trial, the jury convicted Appellant of the

aforementioned charges.          On December 13, 2012, the court sentenced

Appellant to a term of life in prison without the possibility of parole on the

murder of the first degree conviction, plus a concurrent aggregate term of

imprisonment of not less than nine and one-half nor more than nineteen

years on the remaining counts. The court denied Appellant’s post-sentence

motions on January 17, 2013. Appellant timely appealed.5

        Appellant raises two questions for this Court’s review:

        I.     Did the trial court err in failing to suppress evidence that
        [Appellant] signed a different name on a property inventory form
        when he was booked in jail considering [Appellant] had invoked
        his right to remain silent and the question, which asked for his
        name, was calculated to elicit an incriminating response?

____________________________________________


4
    Miranda v. Arizona, 384 U.S. 436 (1966).
5
   On May 7, 2013, Appellant filed a timely statement of errors complained of
on appeal pursuant to the court’s order. See Pa.R.A.P. 1925(b). The court
filed an opinion on January 17, 2014. See Pa.R.A.P. 1925(a).



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      II.   Did the trial court abuse its discretion in denying
      [Appellant’s] post[-]sentence motion that the verdict was
      against the weight of the evidence where the three witnesses
      who implicated [Appellant] in the shooting provided entirely
      inconsistent and contradictory accounts of the incident, the
      witnesses’ statements and actions immediately after the incident
      suggested they were covering up what actually occurred, the
      prosecution provided only a contrived and far-fetched motive for
      the shooting, and two of the Commonwealth’s primary witnesses
      had a motive to fabricate their accounts of the incident?

(Appellant’s Brief, at 6).

      In Appellant’s first issue, he argues that “[t]he [c]ourt erred in denying

defense counsel’s motion to suppress evidence that [Appellant] signed the

name ‘Rocky Wallace’ on a property inventory form when he was booked in

the Dade County Jail.” (Id. at 34). Specifically, Appellant claims that “the

[trial] court erred in admitting evidence of [his] false signature as it was

obtained in violation of his constitutional right against self-incrimination.”

(Id.). We disagree.

      Our standard of review of a challenge to a court’s ruling on a

suppression motion is well-settled:

                   Our standard of review of a denial of
            suppression is whether the record supports the trial
            court’s factual findings and whether the legal
            conclusions drawn therefrom are free from error.
            Our scope of review is limited; we may consider only
            the evidence of the prosecution 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 record supports the findings of the
            suppression court, we are bound by those facts and
            may reverse only if the court erred in reaching its
            legal conclusions based upon the facts.


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           In addition, [i]t is within the suppression court’s sole
     province as factfinder to pass on the credibility of witnesses and
     the weight to be given their testimony. The suppression court is
     also entitled to believe all, part or none of the evidence
     presented. Finally, . . . the Commonwealth has the burden of
     establish[ing] by a preponderance of the evidence that the
     evidence was properly obtained.

Commonwealth v. Galendez, 27 A.3d 1042, 1045-46 (Pa. Super. 2011)

(en banc), appeal denied, 40 A.3d 120 (Pa. 2012) (citations and quotation

marks omitted).

            . . . [W]e note that not every statement made by an
     individual during a police encounter constitutes an interrogation.
     Miranda rights are required only prior to a custodial
     interrogation. Custodial interrogation is questioning initiated by
     law enforcement officers after a person has been taken into
     custody or otherwise deprived of [his] freedom of action in any
     significant way.     Furthermore, volunteered or spontaneous
     utterances by an individual are admissible without the
     administration of Miranda warnings. When a defendant gives a
     statement without police interrogation, we consider the
     statement to be volunteered and not subject to suppression. . . .
     Interrogation is police conduct calculated to, expected to, or
     likely to evoke admission.

     . . . . [O]ur Supreme Court [has] stated . . . that a statement
     made in a custodial setting would not be suppressed where the
     suspect . . . is merely responding to biographical questioning[.]
     Generally speaking, general information such as name, height,
     weight, residence, occupation, etc. is not the kind of information
     which requires Miranda warnings since it is not information
     generally considered as part of an interrogation. Such questions
     are not calculated to, expected to, or likely to elicit an
     incriminating response, or . . . asked with [the] intent to extract
     or an expectation of eliciting an incriminating [response]. Also,
     there is no requirement that a suspect be advised of any
     Miranda rights where the police seek biographical, general
     information . . . .




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Commonwealth v. Garvin, 50 A.3d 694, 698-99 (Pa. Super. 2012)

(citations and quotation marks omitted).

       In Garvin, the appellant was arrested for prostitution and related

charges after soliciting undercover police officer, Joseph Ferraro. See id. at

695-96. During the booking process, Officer Ferraro was required to obtain

information from the appellant in order to fill out a medical checklist. See

id. at 696. Officer Ferraro read the questions on the form to the appellant

prior to giving him his Miranda warnings.     See id. One of the questions

was, “Are you receiving any type of treatment?,” to which the appellant

responded, “Yes,” voluntarily indicating he was receiving treatment for HIV.

Id. The appellant moved to suppress his responses, but the court denied his

request, and he appealed. See id.

       Like Appellant does here, the appellant in Garvin argued on appeal

that the suppression court erred because, Officer Ferraro “knew or had

reason to know that the questions, though biographical in nature, were

reasonably likely to elicit an incriminating response[,]” thus violating his

right against self-incrimination. Id. at 697; (see also Appellant’s Brief, at

34).    This Court disagreed, concluding that “the record supports the

suppression court’s finding that Appellant’s responses to the standard

questionnaire were not suppressible and that the medical checklist fell within

the ‘routine booking exception.’” Garvin, supra at 701-02.




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       Similarly, here, Appellant signed a standard form during booking at

the Dade County Jail. (See N.T. Trial, 9/19/12, at 219-20). Marshal Fallow

testified that he routinely gives the property intake form to an individual

when he enters the jail in order to record the items on his person that will be

held by the facility and given back to him when he is released, testimony

that was within the sole province of the trial court to believe. (See id. at

219-20); see also Galendez, supra at 1046. Therefore, we conclude that

the suppression court did not abuse its discretion when it denied Appellant’s

motion to suppress the property intake form.6        See Galendez, supra at

1045-46. Appellant’s first issue does not merit relief.

       In Appellant’s second issue, he challenges the weight of the evidence

to support his conviction. (See Appellant’s Brief, at 41-54). This issue lacks

merit.

       Our standard of review of a challenge to the weight of the evidence is

well-settled:

                    A verdict is not contrary to the weight of the
              evidence because of a conflict in testimony or
              because the reviewing court on the same facts might
              have arrived at a different conclusion than the fact[-
              ]finder. Rather, a new trial is warranted only when
____________________________________________


6
  Moreover, we note that the court properly found that Appellant’s use of an
alias on the property intake form was relevant to show consciousness of
guilt. (See Trial Ct. Op., at 6); see also Commonwealth v. Robinson,
721 A.2d 344, 352 (Pa. 1998), cert. denied, 528 U.S. 1082 (2000) (“Use of
an alias has been recognized as evidence of a consciousness of guilt.”)
(citation omitted).



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            the jury’s verdict is so contrary to the evidence that
            it shocks one’s sense of justice and the award of a
            new trial is imperative so that right may be given
            another opportunity to prevail. Where, as here, the
            judge who presided at trial ruled on the weight claim
            below, an appellate court’s role is not to consider the
            underlying question of whether the verdict is against
            the weight of the evidence. Rather, appellate review
            is limited to whether the trial court palpably abused
            its discretion in ruling on the weight claim.

           One of the least assailable reasons for granting or denying
      a new trial is the lower court's determination that the verdict
      was or was not against the weight of the evidence and that new
      process was or was not dictated by the interests of justice.
      Thus, only where the facts and inferences disclose a palpable
      abuse of discretion will the denial of a motion for a new trial
      based on the weight of the evidence be upset on appeal.

Commonwealth v. Morales, 91 A.3d 80, 91-92 (Pa. 2014) (citations

omitted; emphasis in original).

      In this case, Appellant has not argued or demonstrated that the trial

court palpably abused its discretion when it denied his motion for a new trial

on the basis of the weight of the evidence.       He merely argues that the

witnesses offered contradictory testimony and suggested a motive for

fabricating their stories. (See Appellant’s Brief, at 41). Thus, Appellant has

failed to advance an argument that invokes the appropriate standard of

review. See Morales, supra at 91-92.

      Moreover, our independent review of the record reveals that the trial

court properly viewed the issue as one of credibility, which the jury was free

to resolve in Appellant’s favor, and determined that the verdict “did not

shock [its] sense of justice.” (Trial Ct. Op., at 9). Therefore, we conclude

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that the trial court did not palpably abuse its discretion in deciding the

weight of the evidence issue, see Morales, supra at 91-92, and Appellant’s

second claim does not merit relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/1/2014




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