J-S60020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                             Appellee

                        v.

ISIAH MICKEALS

                             Appellant             No. 3564 EDA 2014


           Appeal from the Judgment of Sentence November 21, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000701-2013


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                     FILED NOVEMBER 20, 2015

        Isiah Mickeals appeals from the judgment of sentence entered in the

Court of Common Pleas of Philadelphia County after he was convicted of

second-degree murder,1 robbery,2 carrying a firearm without a license,3 and

possession of an instrument of crime (PIC).4 Upon review, we affirm.

        The Honorable Barbara A. McDermott summarized the facts of this

matter as follows:

        On September 5, 2012, at about 12:30 a.m., Maria Davilla was
        locked out of her home. She called her friend, Jose Ortiz, who
____________________________________________


1
    18 Pa.C.S. § 2502(b).
2
    18 Pa.C.S. § 3701(a)(1)(ii).
3
    18 Pa.C.S. § 6106.
4
    18 Pa.C.S. § 907.
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     told her she could stay with him and that he would walk her to
     his house. Davilla and Ortiz met around Germantown Avenue
     and walked together to Ortiz’s home, located at 15th Street and
     Allegheny Avenue[.] As they were standing on Ortiz’s steps,
     [Mickeals] approached on a bicycle. [Mickeals] pointed a silver
     gun at Davilla and told her to drop her bag. Davilla immediately
     complied with the command.            Ortiz intervened[,] telling
     [Mickeals] that “he didn’t need to do this.” [Mickeals] swung the
     gun in Ortiz’s direction. As a car drove by Ortiz tried to get its
     attention, [Mickeals] shot Ortiz in the chest, and then [Mickeals]
     fled on a bicycle.

     On September 5, 2012, at about 1:50 a.m.[,] in response to
     Davilla’s call to 911, Sergeant John McWilliams of the
     Philadelphia Police Department arrived at 15th Street and
     Allegheny Avenue. Sergeant McWilliams observed Ortiz lying on
     the ground. At this time, Davilla was applying pressure to a
     gunshot wound to Ortiz’[s] chest. Officer Allen, who arrived
     after Sergeant McWilliams, transported Ortiz to Temple
     University Hospital. After securing the scene of the murder,
     Sergeant McWilliams spoke to Davilla. Davilla told Sergeant
     McWilliams that [Mickeals] had attempted to rob her and shot
     Ortiz in the process.

     According to Dr. Edwin Lieberman, Assistant Medical Examiner,
     Ortiz [d]ied at Temple University Hospital on September 5,
     2012, at 2:19 a.m. Ortiz’s cause of death was a single gunshot
     wound to the chest that hit his heart and lungs.

     Detective Thorsten Lucke recovered surveillance video from
     Temple University that depicted a man riding a bike southbound
     on 15th Street near Tioga Street at 1:44 a.m. on September 5,
     2012.

     After the murder, police officers received information from
     multiple members of the community regarding the identity of the
     murderer. A few days after the murder, Police Officer Eric
     Hidalgo received information from John Washington, a man who
     lived in the area of the murder. Washington explained that he
     was in the area of 3200-block of Carlisle Street with a group of
     acquantances when a man name Zeke admitted to killing Ortiz.
     Zeke stated that he had messed up because he did not mean to
     kill Ortiz.

     On September 14, 201[2], Malcom Ransom gave a statement to
     the Philadelphia police indicating that Zeke had murdered Ortiz.

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        On September 15, 2012, Police Officer Brian Graves received
        information from an informant that he had known for fifteen
        years, who lived in the area of 15th Street and had provided
        information in approximately fifty to seventy[-]five other
        investigations. The informant told officer Graves that Zeke was
        at 20th and Westmoreland Streets and described his clothing.

        After the murder, Sergeant Bob Wilkins received information
        from between four to six individuals that the murder was
        committed by a man name Zeke who lived in the area. On
        September 15, 2012, Sergeant Wilkins received a call by a
        woman named Raven. Sergeant Wilkins had known Raven for
        about twelve years and she had provided information that had
        led to arrests in homicide cases. Raven gave information of
        where Zeke was located and that Zeke was wearing a turquoise
        hat and camouflage pants.

        On September 15, 201[2], at about 11:15 a.m., Officer Jonathon
        Switaj was patrolling in the 39th District. Officer Switaj received
        a call to bring in a man for questioning. The person was
        described as a black male who was wearing Army fatigue pants,
        a turquoise hat, about six feet tall, who goes by the nickname
        Zeke or Z[,] who was located at 20th Street and Westmoreland
        Street. When Officer Switaj arrived at 20th and Westmoreland
        Street[s] he observed [Mickeals] wearing Army fatigue shorts
        and a turquoise hat[,] standing with another male in front of a
        corner store. Officer Switaj asked [Mickeals] what his name was
        and [Mickeals] responded that his name was “Zeke.” At that
        point, Officer Switaj arrested [Mickeals] and transported him to
        [the] homicide unit.

        On September 15, 2012, at about 2:00 p.m.[, Mickeals] gave a
        formal statement to homicide detectives after waiving his
        Miranda[5] rights. In his statement[, Mickeals] confessed to
        shooting Ortiz and confirmed that he was the man in the video
        recovered by Detective Lucke. According to [Mickeals,] he was
        unaware his gun was loaded[,] and [] while he was robbing the
        victims, the gun went off.

        Davilla identified [Mickeals] on four occasions: On September
        15, 2012, from a photo array; on December 11, 2012, from a
____________________________________________


5
    Miranda v. Arizona, 385 U.S. 436 (1966).



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       lineup; on January 16, 2013, at the preliminary hearing; and, at
       trial.

Trial Court Opinion, 2/13/15, at 2-4 (citations omitted).

       A jury found Mickeals guilty of the above-mentioned charges on

November 21, 2014.           This timely appeal followed.   Mickeals raises the

following issues for our review:

       1. Is [Mickeals] entitled to a new trial as a result of [c]ourt error
          where the [c]ourt denied [Mickeals] Motion to Suppress an
          out-of-court statement even though the record reflects that
          [Mickeals] was arrested without a warrant, without probable
          cause, without exigent circumstances and where the
          statement flowed directly from the illegal arrest as fruit of the
          poisonous tree?[6]

       2. Is [Mickeals] entitled to an arrest of judgment on all charges
          where the evidence is insufficient to sustain the verdict?

Brief for Appellant, at 3.

       Mickeals first asserts that his motion to suppress statements he made

to the police while in custody was improperly denied. Specifically, Mickeals

sought to suppress statements in which he confessed to committing the

crimes for which he had been arrested.           Mickeals asserts that he was

arrested without probable cause and that his statements flowed directly from

his illegal arrest.



____________________________________________


6
 “The ‘fruit of the poisonous tree’ doctrine excludes evidence obtained from,
or acquired as a consequence of lawless official acts.” Commonwealth v.
Johnson, 68 A.3d 930, 946 (Pa. Super. 2013).




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      In addressing a challenge to the denial of a suppression motion, our

review

      is limited to determining whether the suppression court’s factual
      findings are supported by the record and whether the legal
      conclusions drawn from those facts are correct. Because the
      Commonwealth prevailed before the suppression court, we may
      consider only the evidence of the Commonwealth 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
      suppression court’s factual findings are supported by the record,
      we are bound by these findings and may reverse only if the
      court’s legal conclusions are erroneous.

Commonwealth v. Hoppert, 39 A.3d 358, 361 (Pa. Super. 2012) (citation

omitted).

      It is well-established that police may arrest without a warrant in

certain situations.    “Both the Pennsylvania Supreme Court and the United

States Supreme Court have consistently held police may arrest without a

warrant where the arresting officer has at least probable cause to believe the

person      arrested   has   committed   or   is   committing   an   offense.”

Commonwealth v. Williams, 568 A.2d 1281, 1286 (Pa. Super. 1990).

      To determine whether probable cause exists to justify a
      warrantless arrest, we must consider the totality of the
      circumstances.   Probable cause exists where the facts and
      circumstances within the officer’s knowledge are sufficient to
      warrant a person of reasonable caution in the belief that an
      offense has been or is being committed.

Commonwealth v. Clark, 735 A.2d 1248, 1252 (Pa. 1999) (citations and

quotation marks omitted). “Under the totality of the circumstances, a police

officer must make a practical common sense decision whether, given all of



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the circumstances known to him at that time, including hearsay information,

there is a fair probability that a crime was committed and that the suspect

committed the crime.” Commonwealth v. Holton, 906 A.2d 1246, 1249

(Pa. Super. 2006).

      Here, Mickeals admits that “[t]he issue is not whether the police had

probable cause to arrest “Ze[ke].”     Brief for Appellant, at 10.   However,

Mickeals argues that the police did not have probable cause to arrest him

because he “had not been identified as Ze[ke] by anybody or anything that

would have given the police probable cause to believe that [he] was, in fact,

Ze[ke].” Id. We disagree.

      The record reveals that after the police received tips from multiple

identified individuals indicating that Zeke had perpetrated Ortiz’s murder,

two other individuals provided information to describe the location and

appearance of the individual known in the neighborhood as Zeke and known

to have committed the crimes in question.          Such hearsay is properly

considered in determining whether probable cause exists.      Holton, supra.

Additionally, “[w]hen an arrest is based on a description, the description

must be specific.” Commonwealth v. Burton, 770 A.2d 771, 782 (Pa.

Super. 2001) (citing Commonwealth v. Jackson, 331 A.2d 189, 191 (Pa.

1975)).

      Here, a confidential informant indicated that Zeke was located at 20 th

and Westmoreland Streets.     A woman named Raven also indicated Zeke’s

location and provided a specific description of his clothing, including that he

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was wearing a turquoise hat and camouflage pants.7              When Officer Switaj

went to 20th and Westmoreland Streets, he observed an individual wearing

the clothing described and determined that he used the name Zeke. When

Mickeals provided the name “Zeke,” it corroborated the tips regarding his

location and physical appearance, and when Officer Switaj arrested Mickeals,

it was on the basis of a specific description.          Burton, supra.     Moreover,

considering that the location, physical appearance and name matched the

tips from all sources, common sense indicates that Officer Switaj had

probable cause to believe that the individual was the person who had

committed the crime. Holton, supra.              Thus, Mickeals’ arrest was legal and

his confession was not fruit of the poisonous tree.8
____________________________________________


7
   We note that “information received from confidential informants may
properly form the basis of a probable cause determination. A determination
of probable cause based upon information received from a confidential
informant depends upon the informant’s reliability and basis of knowledge
viewed in a common sense, non-technical manner.” Commonwealth v.
Luv, 735 A.2d 87, 90 (Pa. 1999). Here, the confidential informant was
known to be reliable from providing information in approximately fifty to
seventy-five investigations, and Raven was known for providing reliable
information in other homicide cases.
8
   Even if probable cause did not exist at the time of his arrest, Mickeals’
statement confessing to the crime was nevertheless voluntary and
admissible. As our Supreme Court noted in Commonwealth v. Smith, 995
A.2d 1143 (Pa. 2010), “not all confessions or admissions secured from an
illegally arrested person are per se inadmissible as trial evidence.” Id. at
1152. The following factors are used to determine whether such evidence is
admissible:

          (1) whether Miranda warnings were given; (2) the
          “temporal proximity of the arrest and the confession”; (3)
(Footnote Continued Next Page)


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      Mickeals also asserts that the evidence was insufficient to convict him

of the charges for which he was found guilty.

      As a general matter, our standard of review of sufficiency claims
      requires that we evaluate the record in the light most favorable
      to the verdict winner[,] giving the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence. Evidence
      will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. Any doubt about the defendant’s guilt is
      to be resolved by the fact finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.

Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013)

(internal citations and quotation marks omitted).

      Second-degree murder occurs when a criminal homicide is “committed

while defendant is engaged as a principal or an accomplice in the
                       _______________________
(Footnote Continued)

          “the presence of intervening circumstances”; and, (4) “the
          purpose and flagrancy of the official misconduct”. The
          voluntariness of the statement is, of course, a threshold
          requirement, and the confession must also be “free of any
          element of coerciveness due to the unlawful arrest.”

Id. (quoting Commonwealth v. McFeely, 502 A.2d 167, 170 (Pa. 1985)).
Instantly, the record indicates that the officers were not unduly coercive,
Mickeals was given his Miranda warnings properly, he was not held for a
lengthy period of time before giving his statement, and he voluntarily waived
his rights and then provided a formal statement to the police. Moreover,
Mickeals made an inculpatory statement as a spontaneous reaction upon
seeing himself depicted on a video recording leaving the scene of the crime.
N.T. Trial, 11/18/14, at 39. For these reasons, Mickeals’ confession would
have been admissible regardless of whether probable cause existed for his
arrest.




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perpetration of a felony.” 18 Pa.C.S. § 2502(b). Robbery is one such felony.

18 Pa.C.S. § 2502(d).     Robbery occurs if, in the course of committing a

theft, a person “threatens another with or intentionally puts him in fear of

immediate serious bodily injury.” 18 Pa.C.S. § 3701(a)(1)(ii).

      Here, Mickeals’ does not dispute that he had possession of the gun,

that he was attempting to rob Davilla and Ortiz, or that the gun discharged,

resulting in Ortiz’s death.    Instead, Mickeals’ sole argument regarding

insufficiency of the evidence is that he did not “volitionally pull the trigger”

when he shot Ortiz. Brief for Appellant, at 21. However,

      the felony-murder rule[] allows the finder of fact to infer the
      killing was malicious from the fact the actor was engaged in a
      felony of such a dangerous nature to human life because the
      actor, as held to the standard of a reasonable man, knew or
      should have known that death might result from the felony.

Commonwealth v. Lambert, 795 A.2d 1010, 1023 (Pa. Super. 2002)

(quoting Commonwealth v. Legg, 417 A.2d 1152, 1154 (Pa. 1980)). Ortiz

was shot during the perpetration of the robbery, since Mickeals was trying to

obtain Ortiz’s cell phone and Davilla’s purse when the gun discharged.

Mickeals carried a loaded gun during the crime, which a reasonable person

should know risks causing death.         Lambert, supra.       Thus, Mickeals’

sufficiency argument is meritless.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2015




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