J-S30043-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HARRY EMERSON MILLER                       :
                                               :
                       Appellant               :   No. 1815 WDA 2019

       Appeal from the Judgment of Sentence Entered November 2, 2017
    In the Court of Common Pleas of Blair County Criminal Division at No(s):
                          CP-07-CR-0001155-2016


BEFORE:      MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED JULY 21, 2020

        Appellant, Harry Emerson Miller, appeals nunc pro tunc from the

judgment of sentence entered on November 2, 2017, in the Court of Common

Pleas of Blair County following his conviction by a jury on four counts of

possession of firearms prohibited, 18 Pa.C.S.A. § 6105(a)(1).1 After a careful

review, we affirm.

        The relevant facts and procedural history are as follows: Appellant was

arrested, and, represented by counsel, he proceeded to a jury trial on August

7, 2017. The trial court has aptly summarized the evidence offered at the

jury trial as follows:

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1As discussed infra, Appellant’s appeal rights were reinstated via the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
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            The jury first heard from the Blair County Prothonotary and
     clerk of courts, Carol Newman. She testified and provided
     certified copies of records from her office which reflected that
     [Appellant] pled guilty at [lower court docket] number 756 of
     2004, Count One, Possession with Intent to Deliver, an ungraded
     Felony. She established the identity of Appellant using his birth
     date, address, and social security number. In this manner, it was
     established that Appellant had a felony record for delivery of
     narcotics.
            The Commonwealth’s next witness was Kerry Hoover, chief
     of the Martinsburg Police Department, who was qualified as an
     expert witness in the field of firearms. He testified that if you have
     a felony conviction you are not permitted to possess even a
     portion of certain firearms, in particular, an AR-15. The law
     prohibits possession of even the portion of the AR-15 that contains
     the serial number, called the “lower”. Chief Hoover identified
     Appellant in the courtroom and noted that his residence is right
     across a narrow alley from the police station. Chief Hoover
     testified that Appellant frequently would come over to converse
     with police. Appellant presented himself as being very interested
     in firearms.     He talked a lot about target shooting and
     ammunition.
            From the police station, if Appellant’s garage door was up,
     officers could see him sitting at his workbench, which had a
     reloading press attached to it with other reloading supplies, and
     he would sit there reloading ammunition. Appellant had discussed
     shooting weapons at the target range with Chief Hoover, and he
     had discussed building different weapons for different people. He
     told the Chief that he had sold a weapon to someone else,
     specifically, Chris Patrick, who was retiring from the Pennsylvania
     State [P]olice and was buying himself an AR-15 as a retirement
     gift. On October 22, 2015, Appellant showed Chief Hoover a lever
     action rifle, a Henry style. On March 7, 2016, the Chief had to go
     over to Appellant’s house and ask him to turn down his music
     because there was a meeting at the police department. Appellant
     was sitting reloading ammunition and listening to music.
           On or about March 18 or 19[,] 2016, Appellant evicted a
     person named Martin Fisher from his residence, and [he] was
     concerned about giving weapons back to Mr. Fisher or his family,
     so he wanted to turn them over to the Martinsburg Police
     Department. Appellant told the police that Mr. Fisher had a felony
     record and was not entitled to possess firearms. Appellant showed
     police a large bolt action rifle in the house that day that was not

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     Mr. Fisher’s. At this point, Chief Hoover took it upon himself to
     investigate Appellant’s criminal record. He discovered that
     Appellant had pled guilty to a felony possession with intent to
     deliver charge. The police decided to apply for a search warrant
     for Appellant’s house. The warrant was obtained [on] March 30,
     2016[,] and executed the next day. When they executed the
     warrant the police found four guns. There were two handguns
     and two rifles; one rifle was an AR-15[,] which was pink and black
     in color. The other rifle was a Remington .308 bolt action rifle
     with a very large scope. These weapons were produced as
     exhibits at trial and identified by Chief Hoover. Appellant told the
     police that all guns belonged to his wife.
            The next witness was Adam Ingram of the Roaring Spring
     Police Department who responded to Appellant’s house [on March
     19, 2016,] and [he] saw Appellant take three rifles out of his closet
     near the kitchen area. Appellant represented that these were
     Martin Fisher’s firearms. Appellant showed the officer a military
     style rifle that was inside [of] a hard green case in his living room
     that was separate from the closet area. The witness identified
     Commonwealth’s Exhibit 8 A as being a photograph of the same
     rifle that Appellant displayed to him that night. He noted that
     Appellant’s wife was not present when this happened. Appellant
     told the police that the rifle had a $4000[.00] scope on it and could
     hit a target from an extended range.
           Lance Morris was called to testify and said he was a
     patrolman for multiple police departments, and on March 19,
     2016[,] [he] responded to Appellant’s home. He saw Appellant
     show Officer Ingram the Remington .308 bolt action rifle. He also
     saw the two AR-15 style rifles.
            Justin Davis was also called to testify and described that he
     was a police offer and also responded to Appellant’s house on
     [March 19, 2016]. He testified he saw a rifle leaning against the
     wall[,] he inspected it[,] and [he] found that it was loaded. He
     [testified] that two rifles and two handguns were found in the
     residence.
            Richard Schuh was called to testify[,] and [he] said that he
     was self-employed putting graphics onto firearms and selling
     firearms. He maintains a federal license and is licensed within the
     Blair County Sheriff’s Department to sell firearms. He testified he
     knew Appellant and his wife through his gun shop. He testified
     that he has known Appellant for about 15 years. He recalled



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     selling firearms to Appellant’s wife.    He described firearms
     transfers he had made with Appellant’s wife.
            John Frederick Simpson was called to testify. He said he
     was a licensed gun dealer. He showed an AR-15 rifle and
     explained the parts of it. He testified that he knew Appellant. He
     testified that Appellant contacted him via social media on a
     Facebook messenger app. He said that Appellant had come to his
     shop in Alexandria twice. Appellant and a man he was with
     wanted to barter ammunition for AR-15 parts, specifically lower
     parts kits. The witness testified that he bartered with Appellant
     for lower parts kits for the AR-15 rifle and supplied Appellant with
     three. An exchange on social media was read into the record,
     representing that Appellant was looking for parts for AR-15 rifles.
     The social media also depicted AR-15 rifles. The photographs
     were purportedly sent by Appellant. The witness’s testimony also
     described characteristics of weapons in this case, including their
     weight and difficulty in shooting them, introduced by the
     Commonwealth to cast doubt on the theory that the weapons were
     owned by Appellant’s wife.
            The next witness was Martin Fisher, who testified that he
     previously was friends with Appellant and briefly lived with him in
     March 2016. He testified that in addition to the weapons that he
     brought to Appellant’s residence, while he lived there, there were
     anywhere between a dozen and a half to two dozen firearms that
     went through the house. He testified that Appellant would handle
     them and trade them, keep some a while, and then trade them
     for other firearms. He testified that he saw Appellant shoot
     firearms and build them. The witness testified that Appellant built
     semi-automatic rifles like [an] AR-15[.] He testified that he saw
     Appellant build around 8 to 10 AR-15s. He testified specifically
     that he saw Appellant shooting a .338 Lapua, a Remington 835,
     and a Mossberg. He said that after he moved in he saw Appellant
     fire a pink camo AR-15 and several other AR-15s[,] as well as a
     .308 sniper rifle and a Sig Sauer handgun.
            The Commonwealth brought [up] Martin Fisher’s criminal
     record of theft and receiving stolen property. [Fisher] also
     testified that he had pending criminal charges that he was
     fighting. (N.T. Day 2 of 3, p. 132). He stated that he was facing
     a felony charge of carrying a firearm without a license. He
     testified that he was receiving no consideration from the
     Commonwealth in exchange for his testimony. (N.T. Day 2 of 3,
     p. 133).


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             Appellant took the stand and testified that he was convicted
       of Possession with Intent to Deliver marijuana in September [of]
       2004. He testified that his wife was intensely interested in
       firearms and owned many weapons. He testified that the Sig
       Sauer handgun was hers. He testified that the Lapua rifle was
       hers. He testified that Martin Fisher had lived with him for a time.
       He testified that the Henry rifle[, which] he showed [to] Chief
       Hoover[,] was a replica, like a movie prop. He testified that he
       had never been at a shooting range with Mr. Fisher. He testified
       that the guns in his house belonged either to Mr. Fisher or to
       Appellant’s wife.

Trial Court Opinion, filed 6/20/18, at 3-9.2

       At the conclusion of the trial, the jury convicted Appellant on four counts

of possession of firearms prohibited, and on November 2, 2017, the trial court

sentenced Appellant to an aggregate of 48 months to 96 months in prison.

On Monday, November 13, 2017, Appellant filed a timely, counseled post-

sentence motion3 wherein he sought, inter alia, a new trial based on after-

discovered evidence. Relevantly, Appellant specifically averred the following

(verbatim):

       B. Motion for a New Trial based upon After Discovered Evidence
       Pursuant to Pa.R.Crim.P. # 720(C)
                                        ***


____________________________________________


2 On January 14, 2020, the trial court filed a brief Pa.R.A.P. 1925(a) opinion
indicating it was relying on its previous opinion, which was filed on June 20,
2018, for purposes of this appeal.

3See 1 Pa.C.S.A. § 1908 (when last day of any period of time referred to in
any statute falls on Saturday, Sunday, or legal holiday, such day shall be
omitted from computation).



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       6. Defense Counsel has learned that a member of the District
       Attorney’s staff met with the Defendant days prior to the
       beginning of Jury Trial and:
              a. such meeting was held without counsel present
              despite there being no question that the Defendant
              was represented by counsel, and
              b. it is [Defense Counsel’s] belief that the information
              gleaned at that meeting resulted in the disclosure of
              the Defendant’s trial strategy potentially prejudicing
              his ability to have a fair trial[.]

Appellant’s Counseled Post-Sentence Motion, filed 11/13/17, at 3.4

       On January 23, 2018, the trial court held an evidentiary hearing

regarding Appellant’s post-sentence motion. The trial court has summarized

the relevant testimony offered during the post-sentence hearing as follows:

               Appellant testified that he was in attendance at a meeting
       [on July 28, 2017,] at the Original Italian Pizza restaurant in
       Hollidaysburg with local TV and radio personality Jim Gregory and
       another person named Christopher Irvin. The meeting with Jim
       Gregory ended, and Randy Feathers, who is employed by the Blair
       County District Attorney’s Office as a detective, came into the
       pizza shop. Appellant testified that [Detective] Feathers asked
       him a few questions. Appellant testified that [Detective] Feathers
       asked him about the “302’ ing” (involuntary civil mental health
       commitment) of Martin Fisher, and asked him, “Do you think your
       lawyer can win this?”           He asked Appellant about “jury
       nullification,” and whether he was doing that.

____________________________________________


4 Appellant also claimed in his post-sentence motion that he was entitled to a
new trial due to the Commonwealth withholding information that a witness
had a then pending criminal case. He claimed that he learned of the witness’
criminal case after trial, and therefore, he was entitled to a new trial based on
after-discovered evidence. The trial court denied Appellant’s post-sentence
motion as to this claim. Appellant has not developed any argument regarding
this claim and has abandoned it on appeal. Therefore, we shall not address
this issue further. See Pa.R.A.P. 2119 (pertaining to argument in the
appellate brief).

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            Randy Feathers testified that Jim Gregory asked him to
      come to a meeting with himself and Christopher Irvin and
      Appellant. The discussion was going to be about a website that
      Appellant and Mr. Irvin were involved with, and the organization,
      Operation Our Town. [Detective] Feathers is a board member of
      Operation Our Town. He testified that he wanted to explain to the
      gentlemen [the] Operation Our Town process. Appellant and Mr.
      Irvin had been publishing a webpage alleging that Operation Our
      Town was committing federal violations, and [Detective] Feathers
      wanted to explain to them what the organization does.
             [Detective] Feathers testified…that his motivation in going
      to the meeting was to get the gentlemen to put accurate
      information on their website because he felt that they were putting
      things on the website that were false. His motivation was to help
      them with the website, to get them to put, in his words, “…truthful
      stuff on there”. (N.T. 1/23/18 p. 19).
            [Detective] Feathers testified that he did not set the
      meeting up. He was told where it was going to be held.
      [Detective] Feathers testified…that he said in the beginning of the
      meeting that he was there to talk about Operation Our Town and
      not criminal cases. He testified that he told the gentlemen how
      the organization worked, explained its funding process, and how
      the organization pays a prosecutor in the District Attorney’s Office
      and police officers.
            [Detective] Feathers testified…that he did not ask Appellant
      questions about his criminal case. He testified that Appellant
      talked about his case, but that he did not discuss anything about
      the case with Appellant. (N.T. 1/23/18 p. 22).
            [Detective] Feathers testified that he knew he should not be
      talking to a defendant about their criminal case. He testified that
      he understood he should not be talking to someone who is
      represented by counsel.

Trial Court Opinion, filed 6/20/18, at 10-12.

      On March 19, 2018, the trial court denied Appellant’s post-sentence

motion, and Appellant filed a timely, counseled appeal to this Court. However,

on September 4, 2018, this Court dismissed Appellant’s appeal for failure to

file a brief. Appellant did not seek review in our Supreme Court.

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      Instead, on April 12, 2019, Appellant filed a timely, counseled PCRA

petition seeking the reinstatement of his direct appeal rights nunc pro tunc.

See 42 Pa.C.S.A. § 9545(b)(1) (stating petition shall be filed within one year

of the date the underlying judgment becomes final); 42 Pa.C.S.A. §

9545(b)(3) (stating judgment is final “at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review”).

      On November 14, 2019, the lower court granted Appellant’s PCRA

petition and reinstated Appellant’s direct appeal rights. This counseled appeal

followed on December 6, 2019, and all Pa.R.A.P. 1925 requirements have

been met.

      On appeal, Appellant sets forth the following sole issue in his “Statement

of Questions Involved” (verbatim):

      1. Did the trial court abuse it’s [sic] discretion when it denied the
         Appellant’s post-sentence motion for a new trial based on after-
         discovered evidence of the Commonwealth’s failure to disclose
         that a member of the District Attorney’s Office met with the
         Appellant without his attorney present and discussed aspects
         of the case[?]

Appellant’s Brief at 5 (suggested answer omitted).

      Appellant’s sole appellate issue is whether the trial court erred in

denying his post-sentence motion for a new trial based on after-discovered

evidence.   Specifically, Appellant contends the Commonwealth violated his

constitutional rights when Appellant met with a detective from the District

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Attorney’s Office, Randy Feathers, on July 28, 2017, without Appellant’s

counsel being present. Appellant claims that during the meeting the detective

questioned Appellant about his trial strategy, and in response, Appellant

revealed his planned strategy of jury nullification based on the guns being

owned by Appellant’s wife, as opposed to being owned by Appellant. Appellant

contends his counsel did not learn of the meeting until after trial, and at this

point, counsel revealed to Appellant the “significance” of the meeting,

including the fact that Detective Feathers violated Appellant’s Miranda5

rights, his Fifth Amendment right against self-incrimination,6 and his Sixth

Amendment right to counsel.7

        Initially, we note 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). Further, a trial court’s refusal to grant

a new trial on the basis of after-discovered evidence will not be disturbed on

appeal absent a clear abuse of discretion. Commonwealth v. Weis, 611

A.2d 1218, 1228 (Pa.Super. 1992).



____________________________________________


5   Miranda v. Arizona, 384 U.S. 36, 86 S.Ct. 1602 (1966).

6The Fifth Amendment protects a witness from compelled self-incrimination
and renders that testimony unavailable. United States v. Doe, 465 U.S.
605, 104 S.Ct. 1237 (1984).

7 The Sixth Amendment guarantees a defendant the right to have counsel
present at all critical stages of the criminal proceedings. U.S.C.A. Const.
Amend. 6.

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            In order to be granted a new trial based on after-discovered
      evidence, the [defendant] must satisfy a four-part test requiring
            the [defendant] to demonstrate the [after-discovered]
            evidence: (1) could not have been obtained prior to
            the conclusion of the trial by the exercise of
            reasonable diligence; (2) is not merely corroborative
            or cumulative; (3) will not be used solely to impeach
            the credibility of a witness; and (4) would likely result
            in a different verdict if a new trial were granted.

Commonwealth v. Small, 647 Pa. 423, 189 A.3d 961, 972 (2018) (quotation

omitted). “The test is conjunctive; the defendant 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. Padillas, 997

A.2d 356, 363 (Pa.Super. 2010). In addition, the after-discovered evidence

must be producible and admissible. Small, supra, 189 A.3d at 972.

      Moreover, credibility determinations are an integral part of determining

whether a defendant has presented after-discovered evidence that would

entitle him to a new trial. See id. We have stated, prior to granting a new

trial based on after-discovered evidence, “a court must assess whether the

alleged after-discovered evidence is of such a nature and character that it

would likely compel a different verdict if a new trial is granted.” Padillas, 997

A.2d at 365.    “In making this determination, a court should consider the

integrity of the alleged after-discovered evidence, the motive of those offering

the evidence, and the overall strength of the evidence supporting the

conviction.” Id.




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      In the case sub judice, as to the fact Detective Feathers and Appellant

were at the same meeting on July 28, 2017, the trial court reasoned:

            [T]he allegation pertaining to District Attorney’s Office
      [D]etective Randy Feather[s]’ contact with [Appellant] outside the
      presence of his counsel fails the first prong of the [after-
      discovered evidence test]. This information was available to
      [Appellant] prior to the conclusion of trial, and indeed prior to the
      beginning of trial. In other words, Appellant knew that he met
      with Randy Feathers, knew what they talked about, and could
      have reported that to his counsel before trial.

Trial Court Opinion, filed 6/20/18, at 14.

      We agree with the trial court’s sound reasoning. Simply put, the fact

Appellant attended a meeting with Detective Feathers prior to Appellant’s jury

trial is not “after-discovered evidence” since such information was in

Appellant’s own possession.        Further, any alleged “constitutional legal

significance” of the meeting could have been learned by Appellant with the

exercise of reasonable diligence (i.e., he simply had to ask his counsel). See

Small, supra (holding the defendant must demonstrate the evidence could

not have been obtained prior to the conclusion of trial by the exercise of

reasonable diligence).

      Moreover, we note Appellant has failed to demonstrate that his alleged

after-discovered evidence would likely result in a different verdict if a new trial

were granted. See id. Appellant alleges that, upon questioning by Detective

Feathers, Appellant revealed his trial strategy, and Detective Feathers

reported this strategy to the District Attorney’s Office.




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      However, at the post-sentence hearing, Detective Feathers testified to

a contrary version of events. Specifically, while he admitted that he met with

Appellant and others to discuss the Operation Our Town organization, he

specifically denied questioning Appellant about his pending criminal matter.

N.T., 1/23/18, at 20. In fact, Detective Feathers testified he told Appellant he

did not want to hear about his criminal case, but Appellant “ranted” about his

innocence. Id. at 20-21. In any event, Detective Feathers testified he did

not report the statements Appellant made to anyone, including any member

of the District Attorney’s Office. Id. at 21-22.

      The trial court found Detective Feathers’ testimony to be credible. Trial

Court Opinion, filed 6/20/18. This fact, in combination with the trial court’s

consideration of Appellant’s motive for offering the evidence, and the

overwhelming evidence of Appellant’s guilt, supports the conclusion that

Appellant failed to meet the final prong of the after-discovered evidence test

(that the after-discovered evidence would likely result in a different verdict if

a new trial were granted). Small, supra.

      Based on the aforementioned, we conclude the trial court did not abuse

its discretion in finding no merit to Appellant’s post-sentence after-discovered

evidence claim. Therefore, we affirm Appellant’s judgment of sentence.

      Affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2020




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