J-A16003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

RICHARD P. CORKERY,

                            Appellant                     No. 2956 EDA 2014


          Appeal from the Judgment of Sentence September 16, 2014
               in the Court of Common Pleas of Carbon County
              Criminal Division at No.: CP-13-CR-0000527-2011


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

MEMORANDUM BY PLATT, J.:                           FILED JUNE 25, 2015

        Appellant, Richard P. Corkery, appeals from the judgment of sentence

imposed following his jury conviction of twenty-seven counts of possession

of child pornography.1 We affirm.

        We take the following facts from the trial court’s opinion and our

independent review of the record.              On April 6, 2011, the Nesquehoning

Police Department received an anonymous letter that requested they look

into child pornography allegations against Appellant. The letter stated, and

Borough Police Chief Sean T. Smith confirmed, that Appellant recently had

been terminated from his employment at a local radio station because of his
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 6312(d)(1).
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use of a company computer to access child pornography.           Chief Smith

obtained the consent of the station owner and manager to seize the

computer. A forensic examination revealed that thirty-four images of naked

males performing sex acts had been accessed on the computer between the

hours of 8:00 a.m. and 10:00 a.m. on several dates from February 15, 2011

to March 28, 2011. The Commonwealth consulted Dr. Thomas Novinger who

offered his expert opinion that twenty-eight of the males were under the age

of eighteen at the time the pictures were taken.

      Thereafter, Chief Smith telephoned Appellant and asked that he come

to the Nesquehoning Police Station for an interview, but the officer agreed to

Appellant’s request that the interview be conducted at his home in Coaldale,

Pennsylvania, instead.   On May 16, 2011, Chief Smith, Federal Bureau of

Investigation Agent John Bates, and Pennsylvania State Trooper Scott Sotak

met with Appellant at his home.      Before questioning began, the officers

advised Appellant that he had the right to refuse to answer any questions.

Appellant invited the men into his kitchen, and they joined him around the

kitchen table. Agent Bates again informed Appellant that he had the right to

decline to answer any questions.     Agent Bates and Trooper Sotack then

asked Appellant about his possible connection to the pornographic images on

the radio station’s computer.       Appellant admitted he had accessed

pornographic photographs on the dates in question, and named the website

that was the source of some of the images.


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        During the course of the approximately two hour interview, Appellant

offered to show the officers various examples of his community involvement,

including photographs from youth sports teams.            When informed that he

could move freely about his home as long as, for their own safety, the

officers were able to accompany him, Appellant led them into the basement,

living room, and bedroom areas of his home.

        On July 13, 2011, the Commonwealth filed a criminal complaint

against Appellant, charging him with the previously mentioned twenty-seven

counts of possession of child pornography.           On July 15, 2011, Appellant

waived formal arraignment on the charges and, on August 8, 2011, the

Commonwealth filed an information.

        On October 12, 2012, Appellant filed a motion to suppress, arguing for

the suppression of his May 16, 2011 statements to the officers on the

ground that he had not received his Miranda2 warnings prior to questioning.

The Commonwealth filed a response on December 3, 2012, asking that

Appellant’s motion be denied because it violated Pennsylvania Rules of

Criminal Procedure 579(A) and 581(b).            See Pa.R.Crim.P. 579(A), 581(B).




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




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On March 11, 2013, the trial court denied Appellant’s motion to suppress on

the basis of untimeliness and on its merits.3

       On June 12, 2014, a jury found Appellant guilty of the twenty-seven

counts of possession of child pornography.       On September 16, 2014, the

court sentenced Appellant to not less than nine months’ nor more than three

years’ incarceration, followed by three years’ probation.         Appellant timely

appealed.4

       Appellant raises four questions for this Court’s review:

       1.     Whether the trial court erred in denying the motion to
       suppress the Appellant’s statement, as the statement was taken
       in violation of the Appellant’s [Miranda] rights . . . ?

       2.   Whether trial counsel was ineffective in failing to object to
       the admission of Commonwealth’s Exhibit “2”, which was the
       handwritten notes of Chief Smith?

       3.     Whether trial counsel was ineffective in failing to properly
       cross-examine [the] Commonwealth’s expert witness on his
       qualifications and in failing to object to his qualifications as an
       expert witness?
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3
  Appellant has not raised an issue of the timeliness of his suppression
motion. However, we observe for sake of completeness that the trial court
properly found that the suppression motion was untimely pursuant to Rule
581(B) and could have been dismissed on that basis alone where Appellant
failed to prove an exception. (See Trial Court Opinion, 3/11/13, at 6); see
also Pa.R.Crim.P. 581(B) (requiring that motion to suppress be filed with
omnibus pretrial motion within thirty days of arraignment “[u]nless the
opportunity did not previously exist, or the interests of justice otherwise
require[.]”).
4
  Appellant filed a timely Rule 1925(b) statement pursuant to the court’s
order on November 12, 2014. See Pa.R.A.P. 1925(b). The court filed an
opinion on December 12, 2014. See Pa.R.A.P. 1925(a).



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       4.    Whether the trial court erred in allowing the jury to view
       Commonwealth’s Exhibit “2”, which included the Appellant’s
       statement, during deliberations?

(Appellant’s Brief, at 6) (most capitalization omitted).

       In his first issue, Appellant maintains that “[h]is statement was . . .

secured by the Commonwealth in violation of [his] constitutional right and,

therefore, his statement should have been suppressed.”           (Id. at 18).

Specifically, he argues that he was custodially detained and should have

received Miranda warnings before questioning.        (See id. at 14-18).   This

claim lacks merit.5

       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.

____________________________________________


5
  We observe that the argument section of Appellant’s brief fails to identify
specifically what statement he sought to suppress pursuant to Pennsylvania
Rule of Appellate Procedure 2119(c), (d). (See Appellant’s Brief, at 14-18).
However, because this error does not affect our meaningful appellate review,
we will not find Appellant’s issue waived.



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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, at a suppression hearing, 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).

     It has long been the precedent of this Commonwealth that:

                  The test for determining whether a suspect is
           being subjected to custodial interrogation so as to
           necessitate Miranda warnings is whether he is
           physically deprived of his freedom in any significant
           way or is placed in a situation in which he reasonably
           believes that his freedom of action or movement is
           restricted by such interrogation.

           Said another way, police detentions become custodial
     when, under the totality of the circumstances, the conditions
     and/or duration of the detention become so coercive as to
     constitute the functional equivalent of arrest.

            The factors a court utilizes to determine, under the totality
     of the circumstances, whether a detention has become so
     coercive as to constitute the functional equivalent of arrest
     include: the basis for the detention; its length; its location;
     whether the suspect was transported against his or her will, how
     far, and why; whether restraints were used; whether the law
     enforcement officer showed, threatened or used force; and the
     investigative methods employed to confirm or dispel suspicions.
     The fact that a police investigation has focused on a particular
     individual does not automatically trigger “custody,” thus
     requiring Miranda warnings.

Commonwealth v. Baker, 24 A.3d 1006, 1019-20 (Pa. Super. 2011),

affirmed, 78 A.3d 1044 (Pa. 2013) (citations omitted).

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      Here, in denying Appellant’s motion to suppress, the trial court found

that he was not custodially detained when he spoke to officers at his home

on May 16, 2011. (See Trial Court Opinion, 3/11/13, at 6-9). We agree.

      The interview of Appellant occurred in his own home, a location

selected by him. (See N.T. Suppression Motion, 12/14/12, at 6). Appellant

met the officers at the front door, where each of them was introduced to

him, and he invited them inside. (See id. at 7, 21, 41, 57, 67). Chief Smith

indicated that the impetus of the interview was the anonymous letter

containing allegations about Appellant accessing child pornography at the

radio station. (See id. at 7, 54-55). Police informed him that he was not

under arrest or in their custody, and that he was free to decline to answer

any questions or to speak with the officers.       (See id. at 7, 27, 32).

Appellant invited the officers to the kitchen table where he offered them

something to drink.   (See id. at 7, 18, 22).    Appellant was free to move

about his home, and did so, voluntarily leading the officers into various

rooms to show them evidence of his civic involvement. (See id. at 7, 18,

22, 26-27, 41).   The officers never physically restrained Appellant in any

way. (See id. at 7, 27, 31, 41).

      Based on the foregoing, we conclude that the record supports the trial

court’s factual findings and that its legal conclusion, that Appellant was not

subject to custodial detention so as to necessitate Miranda warnings, is free




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from legal error. See Galendez, supra at 1045; Baker, supra at 1019-20.

Appellant’s first issue would not merit relief.

       In Appellant’s second and third claims, he argues that trial counsel was

ineffective. (See Appellant’s Brief, at 18-23). These allegations are denied

without prejudice to Appellant to raise them in a petition filed under the

Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.6

       In Appellant’s fourth issue, he argues that the trial court violated

Pennsylvania Rule of Criminal Procedure 646(C)(2) when it “allow[ed] the

jury, during its deliberations, to view Commonwealth’s exhibit 2 [(Chief

Smith’s notes)], which contained Appellant’s statement[,]” and “were

nothing more than [the officer’s] courtroom testimony reduced to writing─in

effect, a transcript of his trial testimony, which is strictly prohibited by Rule

646(C)(2).” (Appellant’s Brief, at 23, 24) (internal quotation marks,

capitalization, and citation omitted). This issue is waived.

            It is well settled that issues not raised before the trial court
       cannot be advanced for the first time on appeal. Pa.R.A.P.
       302(a).

                    Issue preservation is foundational to proper
              appellate review. . . . By requiring that an issue be
____________________________________________


6
  “[T]his Court cannot engage in review of ineffective assistance of counsel
claims on direct appeal absent an ‘express, knowing and voluntary waiver of
PCRA review.’” Commonwealth v. Holmes, 79 A.3d 562, 575 (Pa. 2013)
(citation omitted). Here, Appellant did not waive PCRA review and no
exceptions to the general rule that ineffectiveness of counsel claims must
await post-collateral review exist. See id. at 576.




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              considered waived if raised for the first time on
              appeal, our courts ensure that the trial court that
              initially hears a dispute has had an opportunity to
              consider the issue. This jurisprudential mandate is
              also grounded upon the principle that a trial court . . .
              must be given the opportunity to correct its errors as
              early as possible. Related thereto, we have explained
              in detail the importance of this preservation
              requirement as it advances the orderly and efficient
              use of our judicial resources. Finally, concepts of
              fairness and expense to the parties are implicated as
              well.

Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super. 2013) (case

citation omitted).

       In   this   case,   during    deliberations,   the   jury   requested   to   see

Commonwealth’s Exhibit 2, Chief Smith’s police report.               (See N.T. Trial,

6/12/14, at 149-50, 152).           Appellant’s counsel objected, not on the Rule

646(C)(2) grounds asserted here, but on the basis that the report

“contain[ed] statements from witnesses who weren’t even offered during the

trial,” specifically, those of Trooper Sotack, who was unavailable due to a

medical disability. (N.T. Trial, 6/12/14, at 152, 168-69).7

       Therefore, because Appellant failed to raise any issue in the trial court

that allowing the jury to view Chief Smith’s notes during deliberations
____________________________________________


7
  In fact, at trial, per Appellant’s counsel’s request, the court redacted the
police report to remove any statements of Trooper Sotack, and gave the jury
a cautionary instruction making it clear that the subject report was not a
transcript, but merely contained Chief Smith’s notes. (See N.T. Trial,
6/12/14, at 158, 160-64, 168-69). At the conclusion of the instruction,
Appellant’s counsel agreed that the court properly addressed the concerns
that had been discussed by the parties. (See id. at 169).



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violated Rule 646(C)(2), specifically because the notes contained his

statement and were a transcript of Chief Smith’s trial testimony, the issue is

waived for our review.       See Miller, supra at 811; see also Pa.R.A.P.

302(a).

      Additionally, we observe that “[i]t is an appellant's duty to present

arguments that are sufficiently developed for our review . . . . [and] the brief

must support the claims with pertinent discussion, with references to the

record and with citations to legal authorities.” Commonwealth v. Hardy,

918 A.2d 766, 771 (Pa. Super. 2007), appeal denied, 940 A.2d 362 (Pa.

2008) (citations omitted).    “This Court will not act as counsel and will not

develop arguments on behalf of an appellant. Moreover, when defects in a

brief impede our ability to conduct meaningful appellate review, we may . . .

find certain issues to be waived.” Id. (citations omitted).

      Here, other than to include the text of Rule 646, Appellant fails to

provide any pertinent discussion, citation of authority, or references to the

record regarding his argument that the court erred in allowing the jury to

view Chief Smith’s notes during deliberations because they contained his

statement. (See Appellant’s Brief, at 23-24); Pa.R.A.P. 2119(a)-(c); Hardy,

supra at 771. Therefore, we deem this challenge waived on this basis as

well. See Hardy, supra at 771.

      Finally, Appellant’s argument in issue four that the court erred in

allowing the jury to view Chief Smith’s notes during deliberations because


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they were a transcript of his trial testimony also is waived for his failure to

raise the issue in his Rule 1925(b) statement. (See Appellant’s Brief, at 23-

24).

             Pursuant to Rule 1925(b)(4)(vii), “Issues not included in
       the Statement and/or not raised in accordance with [Rule
       1925(b)(4)] are waived.”    As our Supreme Court recently
       reiterated:

                   Our jurisprudence is clear and well-settled, and
            firmly establishes that: Rule 1925(b) sets out a
            simple bright-line rule, which obligates an appellant
            to file and serve a Rule 1925(b) statement, when so
            ordered; any issues not raised in a Rule 1925(b)
            statement will be deemed waived; the courts lack
            the authority to countenance deviations from the
            Rule’s terms; the Rule’s provisions are not subject to
            ad hoc exceptions or selective enforcement;
            appellants and their counsel are responsible for
            complying with the Rule’s requirements.

Commonwealth v. Elia, 83 A.3d 254, 263 (Pa. Super. 2013), appeal

denied, 94 A.3d 1007 (Pa. 2014) (citation omitted) (waiving and declining to

review Appellant’s claim for failure to include it in Rule 1925(b) statement).

       Here, Appellant’s Rule 1925(b) statement claims that the trial court

erred in allowing the jury to view Commonwealth’s Exhibit 2 because counsel

objected and because the hand-written notes contained Chief Smith’s

recollection of what Appellant told law enforcement on May 16, 2011. (See

Rule 1925(b) Statement, 11/12/14, at unnumbered page 3-5). However, it

did not contain Appellant’s current argument that the notes were “a

transcript of [Chief Smith’s] trial testimony, which is strictly prohibited under




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Rule 646(C)(2).” (Appellant’s Brief, at 24) (citation omitted). Therefore, we

deem this argument waived on this basis, as well. See Elia, supra at 263.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/2015




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