J-A25013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    OMAR PRIOLEAU                              :
                                               :
                       Appellant               :   No. 2901 EDA 2015

           Appeal from the Judgment of Sentence September 4, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0014598-2013


BEFORE:      OTT, J., STABILE, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                                 FILED JANUARY 22, 2018

        Omar Prioleau appeals from the judgment of sentence imposed on

September 4, 2015, in the Court of Common Pleas of Philadelphia County,

following his conviction on the charge of conspiracy to possess an instrument

of a crime (PIC).1 Prioleau received a sentence of two and one-half to five

years’ incarceration. In this timely appeal, Prioleau raises two issues: 1) the

trial court erred in failing to suppress statements obtained pursuant to a

defective Miranda2 waiver, and 2) the sentence imposed is manifestly

excessive in light of Prioleau’s prior record score of zero and the trial court’s



____________________________________________


   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S. §§ 903, 907.

2   Miranda v. Arizona, 384 U.S. 436 (1966).
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reliance on improper factors. After a thorough review of the submissions by

the parties, relevant law, and the certified record, we affirm.

      On the night of July 6, 2013, Marquieta Johnson, her boyfriend,

Demetrius Bowman, and their friend, Hakeem Keith, were sitting on the steps

of a church near Johnson’s home when two men approached them and began

shooting.   Bowman was struck twice and seriously wounded, eventually

spending more than two months in a hospital. Police found 13 shell casings

at the site, 10 of the casings were from a 9 mm gun, and three were from a

.40 caliber gun. During subsequent police interviews, both Bowman and Keith

identified Prioleau and co-defendant Dahmir Morrison as the shooters. Both

men later recanted their identifications.

      Prioleau, 17 years, 7 months old at the time, was interviewed by the

police on July 10, 2013. Prioleau waived his Miranda rights and spoke with

the police for approximately 20 minutes. During the interview, Prioleau told

the police, “There wasn’t nothing to be sorry about out there. I did what I did

and I ain’t putting nothing on nobody else.” Commonwealth Exhibit C-10.

Prioleau’s mother had been notified by the police they had arrested him and

wanted to interview him.    Prioleau’s mother did not forbid the police from

questioning her son and told them, “do what you are going to do.”         N.T.

Suppression, 1/29/2015 at 21-22. Accordingly, no adult was present when

the police questioned Prioleau.

      Prioleau was charged with a variety of crimes, including attempted

murder, aggravated assault, PIC, VUFA and conspiracy to commit murder.

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The jury acquitted Prioleau of all charges except conspiracy. The verdict sheet

supplied to the jury failed to list the object of the conspiracy, therefore

judgment was entered on the lowest graded charge, PIC, a first-degree

misdemeanor.

      In his first issue, Prioleau claims the trial court erred in failing to

suppress the statement given during his police interview. He argues he did

not knowingly and voluntarily waive his Miranda rights as he did not consult

with an adult, had never been interrogated by the police before this, and

exhibited mental problems.

      Our standard of review for the denial of a motion to suppress 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. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (citation

omitted).



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        When determining the voluntariness of a confession, a court should

consider 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. Nester, 709 A.2d 879, 882 (Pa. 1998) (citation omitted).

        Further, specifically relevant to this matter, our Supreme Court has

held:
        The requirements of due process are satisfied, and the protection
        against the use of involuntary confessions which law and reason
        demand is met by the application of the totality of circumstances
        analysis to all questions involving the waiver of rights and the
        voluntariness of confessions made by juveniles.         All of the
        attending acts and circumstances must be considered and
        weighed in determining whether a juvenile’s confessions was
        knowingly and freely given.       Among those factors are the
        juvenile’s youth, experience, comprehension and the presence or
        absence of an interested adult.

Commonwealth v. Williams, 475 A.2d 1283, 1288 (Pa. 1984) (superseded

by statute on other grounds).

        Instantly, the trial court conducted a totality of the circumstances

analysis, opining:

        In the present case, after a consideration of the totality of the
        circumstances, the Court concluded that [Prioleau] made a
        knowing and intelligent waiver of his Miranda rights and gave the
        detective a voluntary statement. Here, the interview with the
        detective was only about 20 minutes long. There was no evidence
        of any coercion through physical or psychological abuse.
        [Prioleau] was given his rights and said that he understood them.
        He knew that he could stop the interview at any time, which he
        did by saying, “Look, man, I think I am done with this.” (N.T.
        1/29/15, p. 25). This was a sophisticated juvenile who was only

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      five months shy of his 18th birthday. He had previous experiences
      with the legal system having lived in a juvenile placement facility.
      And he had been living on his own having been previously been
      reported as a runaway. All these factors show a consciousness of
      the system and that he knowingly waived his rights and gave a
      voluntary statement.

      Although [Prioleau] did not speak with his mother, Detective
      Wolkiewicz testified [Prioleau] never said anything about him not
      speaking without his mother or another guardian present. (N.T.
      1/29/15, p. 23). Detective Wolkiewicz also testified that he had
      called [Prioleau’s] mother and said he wanted to talk to [Prioleau]
      and get some information about the incident. He testified that the
      mother told him “to do what you are going to do.” (N.T. 1/29/15,
      pp. 20-21).      Though [Prioleau’s] mother testified that the
      Detective hung up on her when she asked to speak with her son,
      questions of witness credibility and the weight to be afforded the
      evidence are within the sole province of the finder of fact, who is
      free to believe all, part, or none of the evidence. Here, the Court
      found that the testimony of Detective Wolkiewicz was entirely
      reasonable and credible, more so than the testimony of
      [Prioleau’s] mother which the Court found to be inconsistent,
      biased, and incredible.

Trial Court Opinion, 6/6/2016, at 5-6 (case law citations omitted).

      The certified record supports the trial court’s recitation of facts and the

legal reasoning is sound. The evidence of record shows the interview lasted

a short time, less than one-half hour; at that time, Prioleau was almost 18

years old, there is no evidence that Prioleau’s will was overborne in any

manner, and Prioleau appeared to understand his rights by voluntarily

terminating the interview. The totality of the circumstances supports the trial

court’s finding that Prioleau knowingly and voluntarily waived his right to

remain silent. Accordingly, we have no basis to reverse the order denying

suppression. Prioleau is not entitled to relief on this issue.




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       We also comment upon Prioleau’s assertion that his behavior during the

police questioning indicated a relevant physical or mental problem.          This

argument is only somewhat amplified in his discussion of the facts. Prioleau

asserts:

       Furthermore, where the T.B.[3] defendant had intellectual
       disabilities, Mr. Prioleau became unresponsive after only twenty-
       eight minutes of questioning, despite no evidence of physical or
       psychological coercion.

Prioleau’s Brief at 20. We assume this argument means that Prioleau’s silence,

after only a short period of questioning, was indicative of some manner of

intellectual disability, hence the reference to In re T.B., supra. During the

suppression hearing, Detective Wolkiewicz’s interview with Prioleau was

marked as an exhibit and entered into evidence as Commonwealth Exhibit C-

10. The entire interview encompassed two pages and ten questions. Relevant

to Prioleau’s assertion, the exhibit read, in part:

       Question: You know you’re charged with three counts of
       att[empted] murder, assault, and firearms charges; is that
       correct?

       Prioleau: They told me when I got here.

       Question: Omar, what can you tell me about that incident?

       Prioleau: Look, man, I mean it was all bullshit. I mean, you asking
       me like I care. There wasn’t nothing to be sorry about out there.
       I did what I did and I ain’t putting nothing on nobody else.

____________________________________________


3 In re T.B., 11 A.3d 500 (Pa. Super. 2010). In T.B., the defendant was 16
year old, had a 67 I.Q., read at the third grade level, and was not provided
the company of an informed, interested adult for the interview.

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      Question: Omar, I am going to ask you to explain what you meant.
      Do you understand?

      Prioleau: Look man, I think I am done with this.

      At 5:20 p.m. the def[endant] stopped talking and stared at the
      table. This statement was concluded at that time. The statement
      was read to Omar. He refused to comment and refused to say
      anything. [Written by Det. Wolkiewicz at the end of questioning.]

Exhibit C-10; see N.T. Suppression, 1/29/2015.

      Absent any other compelling evidence, this exchange at the end of the

police interview indicates only that Prioleau exercised his right to terminate

the interview. Accordingly, we decline the opportunity to classify this exercise

of one’s constitutional Fifth Amendment right as evidence of an intellectual

disability.

      Prioleau’s second claim is that the trial court abused its discretion during

sentencing. Prioleau argues the statutory maximum sentence imposed, two

and one-half to five years’ incarceration, was manifestly excessive and was

based upon improper factors, specifically, the charges for which he was

acquitted. This argument is unavailing.

      As Prioleau raises a challenge to the discretionary aspects of his

sentence, we note the applicable standard of review is as follows.

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.
      ***

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      When imposing sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. In considering these factors, the court should refer to
      the defendant’s prior criminal record, age, personal characteristics
      and potential for rehabilitation.

      Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super.
      2014) (internal citations and quotation marks omitted).

      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the following
      four factors:

      (1) whether appellant has filed a timely notice of appeal, see
      Pa.R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify
      sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has
      a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

      Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.
      Super. 2014) (some citations omitted).

Commonwealth v. Kearns, 150 A.3d 79, 84 (Pa. Super. 2016).

      Instantly, there is no question that the first three factors have been

complied with. Regarding the existence of a substantial question, Prioleau has

claimed the trial court relied upon improper factors. Specifically, he claims he

is being punished for the crimes of which he was acquitted. This claim raises

a substantial question. Commonwealth v. Downing, 990 A.2d 788, 792

(Pa. Super. 2010) (claim the trial court relied on an improper factor raises a

substantial question permitting review).




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      Prioleau was sentenced for conspiracy to possess an instrument of

crime. 18 Pa.C.S. §§ 903/907. This is a first-degree misdemeanor (M1) with

an offense gravity score (OGS) of 4. Prioleau’s prior record score (PRS) was

zero. Accordingly, a standard range sentence was Restorative Sanctions (RS)

to 3 months’ incarceration. As noted above, Prioleau received the statutory

maximum sentence for an M1, two and one-half to five years’ incarceration.

As an aggravated range minimum sentence would have been three to six

months’ incarceration, the sentence imposed was clearly outside the

guidelines.

      In every case where a sentencing court imposes a sentence
      outside of the sentencing guidelines, the court must provide in
      open court a contemporaneous statement of reasons in support of
      its sentence.

Commonwealth v. Kitchen, 162 A.3d 1140, 1147 (Pa. Super. 2017)

(citation omitted).

      Here, the trial court provided the following contemporaneous statement

during the sentencing hearing:

      A PIC that was used to shoot another human being…He was part
      of a conspiracy to possess a firearm… that was used to shoot a
      human being.

N.T. Sentencing, 9/4/2015 at 6.

      Also,

      I don’t agree that you can’t look at the totality of the
      circumstances of the case to come to an analysis of the fact that
      they convicted him of conspiring to, you know, possess a firearm
      and what happened with regard to that case. It’s not the same
      thing as, you know, someone walking down the street with a

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      screwdriver in their hand that was just used to burglarize a house.
      That’s a way different set of facts, right? Than a situation where
      a firearm was used with intent to employ it criminally to commit
      the crime of attempted murder. I think those are different, that
      I’m allowed to consider all that.

Id. at 10-11.

      At sentencing, evidence was also presented that Prioleau had been the

victim of a shooting that bore a similarity to the instant crime. The trial court

commented:

      I think it has extremely minimal, you know. I think to take the,
      you know, to sort of acknowledge that, you know, there was an
      opportunity to walk away, like, it’s a small. It’s like a very minute,
      small part.

      I’m sad that he didn’t take advantage of the opportunity to walk
      away unscathed from a shooting and change your life. That’s
      about as minimal as we get and I sort of wish he had used that
      opportunity and we wouldn’t be here. That’s how I take it.

Id. at 18.

      Finally, the trial court summarized:

      All right. So Commonwealth versus Gupton talks about the
      defendant’s prior record score not adequately reflecting a criminal
      background, and that same analysis applies with regard to I think
      the offense gravity score where I don’t believe that the offense
      gravity score of four in this case, I don’t believe that a four/zero
      adequately reflects the entirety of the situation, this case. I don’t
      think it adequately takes into account the entirety of the way in
      which this firearm.

      I’ve said this, right? This is the reason for going outside the
      guidelines is that using a weapon, a firearm, with intent to employ
      it criminally to engage in an aggravated assault and attempted
      murder is not reflective in an offense gravity score of four, and
      because of that and because of the defendant’s lack of remorse,
      lack of acceptance of responsibility, as well as just the nature of
      this entire thing that happened with regard to that firearm, the


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      fact that there were three people who were targeted for that
      attempted murder/agg assault, the sentence is two and a half to
      five.

Id. at 20-21.

      While we agree with Prioleau’s assertion that a trial court may not

impose a sentence based upon crimes the defendant was acquitted of, we also

note that the trial court is not required to ignore facts that were developed at

trial. See Commonwealth v. Druce, 796 A.2d 321, 336 (Pa. Super. 2002),

(the sentencing court may make reasonable inferences based upon the facts

of record and that the fact that the charge of homicide by vehicle was dropped

prior to trial did not negate the fact that the victim was killed by the accident).

See also Commonwealth v. Archer, 722 A.2d 203, 212 (Pa. Super. 1998)

(even though the defendant was acquitted of murder, the injuries that resulted

from the shooting were still attributable to the defendant).

      Here, the record reflects the trial court did not sentence Prioleau based

upon the acquitted felony charges of attempted murder and aggravated

assault. Rather, the trial court examined the totality of what occurred and the

obvious object of the conspiracy to possess the firearm, which was, under the

facts developed at trial, the attempted murder of one of the victims. The trial

court properly concluded that the OGS/PRS and attendant guideline range

sentences did not adequately address the specifics of the crime committed.

      Similarly, we do not believe the trial court improperly commented upon

the fact Prioleau had been the target of a shooting. Our review of the certified

record convinces us that the trial court did not punish Prioleau because an


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unknown person shot at him. Rather, the trial court found that Prioleau had

been the victim in an incident that was similar to the one in which he was a

defendant. The irony of this is readily apparent. The trial court recognized

that a person who was a victim of such a crime might have been in a good

position to appreciate the nature of such an act and avoid taking part in a

similar incident.    We do not believe this determination constitutes an

infringement on the due process rights of Prioleau.     In light of the above,

Prioleau is not entitled to relief on this issue.

        Lastly, we note that, in a footnote, Prioleau comments upon the

impropriety of relying upon “a defendant’s silence at sentencing to infer a lack

of remorse and justify a harsher sentence, as Judge Anhalt did, here.”

Piroleau’s Brief at 23 n 3. Because this footnote is the only place wherein this

argument was presented, this claim is waived.          See Pa.R.A.P. 302(a).

Nevertheless, we have previously quoted Prioleau’s statement given to

Detective Wolkiewicz in which Prioleau stated, “I mean you asking me like I

care.    There wasn’t nothing to be sorry about out there.”       Exhibit C-10.

Prioleau’s own words demonstrated his lack of remorse.        Accordingly, this

argument fails.

        Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/18




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