J-A06031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SERGIO DROZ

                            Appellant                  No. 630 EDA 2014


            Appeal from the Judgment of Sentence January 23, 2014
                in the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0000844-2013


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                           FILED MARCH 31, 2015

        Sergio Droz (“Appellant”) appeals the judgment of sentence entered in

the Chester County Court of Common Pleas following his jury trial conviction

for felony murder,1 robbery (inflict serious bodily injury),2 robbery (threaten

or intentionally put in fear of immediate serious bodily injury), 3 conspiracy to

commit robbery,4 possession of an instrument of crime (“PIC”),5 firearms not


____________________________________________


1
    18 Pa.C.S. § 2502(b).
2
    18 Pa.C.S. § 3701(a)(1)(i).
3
    18 Pa.C.S. § 3701(a)(1)(ii).
4
    18 Pa.C.S. § 903(c).
5
    18 Pa.C.S. § 907(a).
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to be carried without a license,6 and persons not to possess firearms.7 After

careful review, we affirm.

        The trial court summarized the underlying facts of this matter as

follows:

        On February 4, 2013, [Appellant] was arrested in the City of
        Chester, Delaware County, Pennsylvania on the charges of
        [c]riminal [h]omicide and other related offenses under the
        Crimes Code. After being transported by detectives from the
        City of Chester to the West Chester Police Department,
        [Appellant] was apprised of his Miranda[8] rights, which he
        voluntarily waived. In the early morning hours of February 5,
        2013, [Appellant] provided recorded interviews to police.

        On January 25, 2013, at approximately 10:50 p.m., Jamal
        Ahmed Scott suffered a fatal gun-shot wound to the heart while
        on the 200 [b]lock of East Union Street. The 200 [b]lock of East
        Union Street is in West Chester Borough, Chester County,
        Pennsylvania, and encompasses 201 South Matlack Street. The
        Apartments for Modern Living (colloquially referred to as the
        “Sidetrack Apartments”) are located at 201 Matlack Street.

        On the night in question, [Appellant] (aka “Serge” or “Cool S”)
        and four co-defendants traveled from the City of Chester to West
        Chester Borough for the purpose of robbing a drug dealer. The
        five men discussed this plan to rob a drug dealer amongst
        themselves prior to arriving in West Chester. The four co-
        defendants are as follows: Anthony Brightwell (aka “Tone” or
        “Skeez”), Calvin Thompson (aka “Crash”), Tyrone Palmer (aka
        “Millz”), and Nafis Janey. Mr. Janey supplied the transportation
        to and from West Chester in the form of a white Nissan Maxima.
        Mr. Thompson was responsible for assisting in locating the
____________________________________________


6
    18 Pa.C.S. § 6106(a)(1).
7
  18 Pa.C.S. § 6105(a)(1). The trial court found Appellant guilty of this
charge pursuant to a stipulation.
8
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).



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     robbery victim and for facilitating the crime. Mr. Palmer is the
     registered owner of the Kel-Tec [.]9mm and Taurus [.]45caliber
     semiautomatic pistols used in the commission of the robbery and
     murder of Mr. Scott. Mr. Brightwell entered Mr. Scott’s Honda
     Civic and discharged a single round from Mr. Palmer’s .45 caliber
     into the vehicle’s ceiling during the course of the robbery.
     Additionally, Mr. Brightwell removed Mr. Scott’s backpack from
     the vehicle.    Mr. Scott’s backpack contained four sandwich
     baggies of marijuana.        Upon hearing the .45 discharge,
     [Appellant,] armed with Mr. Palmer’s .9mm, discharged three
     rounds into the driver’s side window area of the Honda. Mr.
     Scott was fatally struck in the heart by one of the .9mm bullets
     fired by [Appellant].

     Having briefly set out the relevant cast of characters and their
     roles as they relate to this case, we now review the pertinent
     facts of the underlying robbery and murder of Mr. Scott. After
     two unsuccessful attempts to locate a robbery victim, once near
     the Star Social Club, an establishment located on East Market
     Street in West Chester Borough, and once at the Giant
     supermarket just off Strasburg Road in East Bradford Township,
     the five men aborted the plan to rob a drug dealer and instead
     proceeded to Burger King located on West Chester Pike.
     However, the five of them were unable to purchase food from
     the Burger King because [Appellant’s] debit card was declined.
     At this point, the group decided to drive back home to the City of
     Chester. While in [sic] route to the City of Chester, the men
     received a phone call about a potential robbery target. In
     response to this phone call, [Appellant and] [the] [co-
     ]Defendants[] chose to turn around and head back to the
     Sidetrack Apartments. Once back at the Sidetrack Apartments,
     [Appellant,] armed with Mr. Palmer’s Kel-Tec .9mm and Mr.
     Brightwell[,] armed with Mr. Palmer’s Taurus .45 caliber[,]
     exited Mr. Janey’s Maxima.        [Appellant] positioned himself
     directly in front of apartment building “D” while Mr. Brightwell
     strategically waited across the street from building “D” for Mr.
     Scott to arrive. Mr. Janey, Mr. Palmer, and Mr. Thompson
     remained inside the vehicle and waited for [Appellant] and Mr.
     Brightwell to complete the robbery.

     Mr. Scott arrived at the Sidetrack Apartments driving a silver
     Honda Civic registered to his girlfriend, Deanna Di’Domenico.
     Upon arriving at the Sidetrack Apartments, Mr. Scott called Mr.
     Brightwell. After making phone contact with Mr. Scott, Mr.
     Brightwell entered the front passenger door of the Honda. At

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     this point, Mr. Brightwell realized that he knew Mr. Scott from
     prior dealings. In fact, Mr. Scott had fronted Mr. Brightwell
     drugs in the past.      Mr. Brightwell knew Mr. Scott by the
     nickname of “Mutters”. Mr. Scott drove the Honda a short
     distance on East Union Street. The Honda came to an abrupt
     stop on the side of the road, across from building “E” of the
     Sidetrack Apartments. While inside the Honda, Mr. Brightwell
     pulled Mr. Palmer’s .45 caliber pistol as a result of which a
     struggle ensued during which Mr. Brightwell discharged a single
     round from the firearm into the vehicle’s ceiling. While this was
     happening, Mr. Brightwell grabbed the victim’s backpack
     containing the marijuana and fled from the vehicle. Having
     heard the .45 caliber discharge, [Appellant] approached the
     driver’s door area of the Honda. [Appellant] used Mr. Palmer’s
     .9mm to tap on the driver’s side window. [Appellant] told the
     victim not to move.         Although Mr. Scott complied with
     [Appellant’s] request and immediately put his hands up [in] the
     air, [Appellant] discharged three .9mm bullets at the driver side
     window/door area. One of these bullets struck Mr. Scott in the
     heart, fatally wounding him. Ballistic evidence confirmed that
     the bullet removed from the victim’s heart was of the .9mm
     class and was consistent with being fired from a Kel-Tec .9mm
     semiautomatic pistol.       After fatally shooting Mr. Scott,
     [Appellant] and Mr. Brigh[t]well called Mr. Palmer for a ride.
     [Appellant] and Mr. Brightwell were then picked up by Mr. Janey,
     Mr. Palmer, and Mr. Thompson whereupon the five men returned
     to the City of Chester and divided Mr. Scott’s stolen marijuana
     amongst them.

1925(a) Opinion, pp. 2-3 (record citations and footnote omitted).

     On November 18, 2013, a jury convicted Appellant as referenced

supra.   On January 23, 2014, the trial court sentenced Appellant to life

imprisonment without parole on the felony murder conviction, 5 to 10 years’

incarceration consecutive to the life sentence on the conspiracy conviction,

and 4 to 8 years’ incarceration consecutive to the conspiracy conviction on

the persons not to possess firearms conviction. Additionally, the trial court

sentenced Appellant to concurrent terms of 1 to 2 years’ incarceration on the

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PIC conviction, and a concurrent sentence of 3 to 6 years’ incarceration for

the firearms not to be carried without a license conviction.          In total,

Appellant received an aggregate sentence of life without parole followed by 9

to 18 years’ incarceration.9

       Appellant did not file post-sentence motions, but instead filed a timely

notice of appeal on February 24, 2014.10 Appellant and the trial court each

complied with Pa.R.A.P. 1925.

       Appellant raises the following two claims for review:

       (1) Whether the trial court erred in denying [Appellant’s] Omni-
       bus Pre-trial Motion for the Suppression of [Appellant’s]
       videotape and recorded confession?

       (2) Whether [Appellant’s] Motion for a mistrial was improperly
       denied because several of the jurors admitted reading a
       newspaper during the trial that contained an article regarding
       the case.

Appellant’s Brief, p. 7.

       Appellant first claims that the police induced his confession by falsely

promising that he would not be incarcerated for life if he confessed.     See

Appellant’s Brief, p. 15. Specifically, he claims that the police convinced him

that they had the authority to prevent him from being incarcerated for life
____________________________________________


9
  The robbery convictions merged with the felony murder conviction for
sentencing purposes.
10
  The 30th day following the imposition of sentence was February 22, 2014,
a Saturday. Accordingly, Appellant had until the following business day,
Monday, February 24, 2014, to timely file his Notice of Appeal. See
Pa.R.A.P. 903, comment; Pa.R.A.P. 107; 1 Pa.C.S. § 1908.



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J-A06031-15



and, that if he confessed, they would exercise that authority. See id. at 17.

Accordingly, he claims the trial court erred in denying his suppression

motion challenging the voluntariness of his confession to the police. He is

incorrect.

      This Court’s well-settled standard of review of a denial of a motion to

suppress evidence is as follows:

      [An appellate court’s] standard of review in addressing a
      challenge to the denial of a suppression motion 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, [the appellate court
      is] bound by [those] findings and may reverse only if the court’s
      legal conclusions are erroneous. Where . . . the appeal of the
      determination of the suppression court turns on allegations of
      legal error, the suppression court’s legal conclusions are not
      binding on an appellate court, whose duty it is to determine if
      the suppression court properly applied the law to the facts.
      Thus, the conclusions of law of the courts below are subject to []
      plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.2010) (internal citations

and quotation marks omitted).

      When a court is called upon to determine whether a confession is
      voluntary and, hence, admissible at trial, it examines the totality
      of the circumstances surrounding the confession to ascertain
      whether it is the product of an essentially free and unconstrained
      choice by its maker. In making this inquiry, a court is not
      concerned with the issue of whether the substance of the
      confession is true. Rather, a court is constrained to examine
      only whether an individual’s confession was the product of


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J-A06031-15


      coercion, duress, or the use of other measures by interrogators
      deliberately calculated to overcome his or her free will.

Commonwealth v. Smith, 85 A.3d 530, 537-38 (Pa.Super.2014). “By the

same token, the law does not require the coddling of those accused of crime.

One . . . need not be protected against his own innate desire to unburden

himself.”     Commonwealth v. Templin, 795 A.2d 959, 966 (Pa.2002)

(quoting Commonwealth v. Graham, 182 A.2d 727, 730–31 (Pa.1962)).

      When assessing voluntariness pursuant to the totality of the
      circumstances, a court should look at the following factors: the
      duration and means of the interrogation; the physical and
      psychological state of the accused; the conditions attendant to
      the detention; the attitude of the interrogator; and any and all
      other factors that could drain a person’s ability to withstand
      suggestion and coercion.

Commonwealth v. Harrell, 65 A.3d 420, 434 (Pa.Super.2013), appeal

denied, 101 A.3d 785 (Pa.2014) (quoting Commonwealth v. Nester, 709

A.2d 879, 882 (Pa.1998)).

      “The Commonwealth has the burden of proving by a preponderance of

the evidence that the defendant confessed voluntarily.” Harrell, 65 A.3d at

434. “The determination of whether a confession is voluntary is a conclusion

of law and, as such, is subject to plenary review.”       Commonwealth v.

Roberts, 969 A.2d 594, 599 (Pa.Super.2009).

      Here,    the   police   interviewed   Appellant   over   the   course   of

approximately 4.5 hours from 1:30 a.m. to 6 a.m. on the morning of

February 5, 2013. Contrary to Appellant’s suggestion, this period was not

simply one long “marathon interview.”          See Appellant’s Brief, p. 15.


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Instead, Appellant gave two separate statements during this time, with a

lengthy break between the two during which Appellant took a car ride with

police to show them where he had disposed of the murder weapon. Police

did not handcuff, shackle, or otherwise restrain Appellant during the

interviews, and their demeanor remained relaxed and non-threatening

throughout.   Appellant did not appear fatigued or under the influence of

drugs or alcohol at any time during the interview process, but instead

appeared awake, coherent, and aware of his surroundings.      Police offered

Appellant food and water throughout the process, and repeatedly explained

that he could invoke his Miranda rights and stop the interviews at any time.

Further, it is undisputed that police gave Appellant his Miranda rights

during the first interview and again before the second interview, and that

Appellant executed waivers of his rights on both occasions.

     Appellant points to two exchanges that occurred during the interviews

to support his argument that police coerced him to confess.        The first

exchange occurred as follows:

     Sergeant Louis DeShullo: And why you guys were there to begin
     with. Maybe – maybe it wasn’t supposed to happen the way it
     happened. There’s two types of people in this world. Listen.
     People that make bad choices meaning they make a mistake.
     They do something. They regret it. They’re sorry for it. They
     wish it didn’t happen.

     Appellant: Mm-hm.

     Sergeant Louis DeShullo: And then there’s other people that are
     just pure evil. Meaning they did it, they could care less, and
     that’s just the way they are. I know what type of a person I am.



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J-A06031-15


     At time in my life I have made bad choices. But overall I’m a
     decent person. What kind of person are you?

Commonwealth Exhibit 3, at 54.

     The second portion of the interview of which Appellant complains

occurred as follows:

     Sergeant Louis DeShullo: You know how long life in prison is?

     Appellant: The rest of your life.

     Sergeant Louis DeShullo: How long is that?

     Appellant: I don’t know.

     Sergeant Louis DeShullo: You don’t know.        It’s hard for a 20
     year-old person to understand that?

     Appellant: Mm-hm.

     Sergeant Louis DeShullo: This is your time and your opportunity
     to tell us exactly what happened and what you were thinking.

Commonwealth Exhibit 3, at 68.

     The police made no promises to Appellant during these exchanges.

They did not claim they were offering Appellant a sentence other than life

imprisonment, and they did not guarantee that Appellant could get such a

sentence by confessing. The trial court explained:

     …Sergeant DeShullo merely asks [Appellant] if he fully
     comprehends the length of a life sentence. Even assuming that
     the question of voluntariness in this case involves some degree
     of psychological coercion, the totality of the circumstances do
     not evidence that detectives used deceptive or unethical conduct
     to over bear [Appellant’s] free will. The detectives did not
     communicate to [Appellant] at any point during the interviews
     that they had the authority to enter into an agreement on the
     Commonwealth’s behalf. Moreover, Sergeant DeShullo did not
     say or even imply that the Commonwealth would forego seeking


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J-A06031-15


      a life sentence in exchange for [Appellant’s] confession.
      Moreover, [Appellant] acknowledged he was speaking to the
      detectives voluntarily and that he was not coerced, threatened,
      or promised anything in exchange for his confession. After
      considering the totality of the circumstances surrounding the
      initial statement of [Appellant] on February 5, 2013, and after
      viewing the videotape of that statement, the [c]ourt found the
      initial statement of [Appellant] and thereafter the second
      recorded statement, to be knowingly, voluntarily and intelligently
      made by [Appellant], and as such admissible at trial.

1925(a) Opinion, p. 6.

      The record supports the suppression court’s factual findings and its

legal conclusions drawn from those facts are correct. Therefore, Appellant’s

suppression claim fails.

      Next, Appellant claims the trial court erred by not granting his motion

for a mistrial when one of the tipstaff discovered a local newspaper in the

jury room. See Appellant’s Brief, pp. 18-20. He is incorrect.

      The standard of review regarding the denial of a motion for mistrial is

abuse of discretion:

      In criminal trials, the declaration of a mistrial serves to eliminate
      the negative effect wrought upon a defendant when prejudicial
      elements are injected into the case or otherwise discovered at
      trial. By nullifying the tainted process of the former trial and
      allowing a new trial to convene, declaration of a mistrial serves
      not only the defendant’s interests but, equally important, the
      public’s interest in fair trials designed to end in just judgments.
      Accordingly, the trial court is vested with discretion to grant a
      mistrial whenever the alleged prejudicial event may reasonably
      be said to deprive the defendant of a fair and impartial trial. In
      making its determination, the court must discern whether
      misconduct or prejudicial error actually occurred, and if so, . . .
      assess the degree of any resulting prejudice. Our review of the
      resulting order is constrained to determining whether the court
      abused its discretion.       Judicial discretion requires action in

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J-A06031-15


     conformity with [the] law on facts and circumstances before the
     trial court after hearing and consideration. Consequently, the
     court abuses its discretion if, in resolving the issue for decision,
     it misapplies the law or exercises its discretion in a manner
     lacking reason.

Commonwealth v. Culver, 51 A.3d 866, 871 (Pa.Super.2012).

     Pennsylvania’s Rules of Criminal Procedure provide, in pertinent part:

     When an event prejudicial to the defendant occurs during trial
     only the defendant may move for a mistrial; the motion shall be
     made when the event is disclosed. Otherwise, the trial judge
     may declare a mistrial only for reasons of manifest necessity.

Pa.R.Crim.P. 605. “The remedy of a mistrial is an extreme one and should

be invoked only where the ends of justice dictate.”         Commonwealth v.

Bolden, 406 A.2d 333, 336 (Pa.1979). “A trial court may grant a mistrial

only where the incident upon which the motion is based is of such a nature

that its unavoidable effect is to deprive the defendant of a fair trial by

preventing   the   jury   from   weighing     and   rendering   a   true   verdict.”

Commonwealth v. Manley, 985 A.2d 256, 268 (Pa.Super.2009) (internal

quotations and citation omitted).

     “The preferred procedure when highly prejudicial material is publicized

during the trial and the jury is not sequestered is to question the jurors

individually, out of the presence of other jurors.”         Commonwealth v.

Bruno, 352 A.2d 40, 52 (Pa.1976).           “However, questioning jurors as a

group or giving special precautionary instructions may be a sufficient

precaution depending on the facts of the particular case.” Id.




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     Here, after jury selection, the trial court instructed the jury not to

“read any newspapers or other stories about the trial or about the

defendant.”   N.T. 11/12/2013, p. 12.   Upon adjourning that day, the trial

court reminded the jury not to talk to anyone about the matter, not to read

any newspaper articles, and not to otherwise conduct any type of

investigation into the case on their own. See id. at 33-34.

     Despite the trial court’s instructions and admonitions, the following

morning, one of the jurors brought a local newspaper containing an article

about Appellant’s trial into the jury room.   The court immediately stopped

the trial when the tipstaff informed the court about the newspaper.      The

court informed the parties about the newspaper at sidebar and then

addressed the jury. The following exchange occurred:

     THE COURT: . . . I think yesterday I asked everyone not to
     read the newspapers.

     Guess where I found this? In the jury room.

     Guess what the front page article is? About this trial.

     So let me ask you with a show of hands who read the newspaper
     this morning? Juror 2 and Juror 6.

     Who read the article about this trial? Nobody raised their hand.

     Juror 2, did you discuss any of the -- you did not read the
     newspaper article?

     JUROR NO. 2: That’s correct. I saw the headline, I knew it was
     off limits so I passed by it, your Honor, went to the other parts
     of this paper.

     There’s more to life than this courtroom.

     THE COURT: Juror No. 6, did you read the newspaper article?


                                   - 12 -
J-A06031-15


      JUROR NO. 6: No, I did not, your Honor.         I read the sports
      section in the Philadelphia Inquirer.

      THE COURT: You didn’t read the Daily Local News?

      JUROR NO. 6: Don’t get that particular paper where I live.

      THE COURT: Juror No. 2, did you bring the newspaper into the
      jury room?

      JUROR NO. 2: Yes, I did.

      THE COURT: Did you discuss any of the contents? Well, I
      guess if you said you didn’t read any newspaper article, nothing
      about it?

      JUROR NO. 2: I did not read the article.

N.T. 11/12/2013, pp. 23-24.

      Following this exchange, defense counsel moved for a mistrial at

sidebar. The trial court denied the motion, but still then asked all the jurors

on the record whether they had read the Daily Local News that morning.

See N.T. 11/12/2013, pp. 25-27. Aside from Juror No. 2, only Juror No. 11

had seen the Daily Local News that morning, and only to the extent that the

juror had read that day’s Sudoku puzzle. See id. at 27-32. Following this

juror inquiry, the trial court dismissed Juror No. 2 from the jury. See id. at

32.

      The trial court explained as follows:

      Although the juror who viewed the article insisted that he could
      nevertheless decide the case fairly on the evidence that he
      would hear in the courtroom, the [c]ourt excused him from jury
      service. Juror No. 2 was replaced with an alternate juror.
      Satisfied the remaining members of the panel were not tainted
      by the article, the [c]ourt stated they were to draw no inferences
      from the fact that one of their members had been excused.
      They, in turn, assured the [c]ourt that they would hear the

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J-A06031-15


      evidence impartially. Finally, the [c]ourt reiterated that each
      juror was required to determine the facts of the case based upon
      the evidence and testimony heard during the course of the trial.

      Potential juror exposure to this material may appear superficially
      to call into question the integrity of [Appellant’s] trial. However,
      it is important to note that the jury had already been exposed to
      the majority of the article’s content. With the exception of the
      statement regarding the two co-defendants’ guilty pleas, the jury
      heard the remaining information during opening statements.
      Essentially, the article merely provided an accurate summary of
      the parties’ opening statements.         Given the totality of the
      circumstances, the [c]ourt properly replaced Juror No. 2 with an
      alternate juror and continued with the trial. After being in the
      best position to gauge jury prejudice, the [c]ourt was confident
      that [Appellant] would receive a constitutionally fair trial.

1925(a) Opinion, p. 8 (record citation omitted).      The trial court’s decision

does not amount to an abuse of discretion.

      Because the trial court did not abuse its discretion in denying the

motion for a mistrial, Appellant’s second claim also fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/31/2015




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