J. S21027/17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA         :    IN THE SUPERIOR COURT OF
                                     :         PENNSYLVANIA
                                     :
               v.                    :
                                     :
LEON PLATT,                          :
                    APPELLANT        :
                                     :
                                     :    No. 1326 WDA 2016

         Appeal from the Judgment of Sentence August 3, 2016
           In the Court of Common Pleas of Lawrence County
          Criminal Division at No(s): CP-37-CR-0001434-2013

COMMONWEALTH OF PENNSYLVANIA         :    IN THE SUPERIOR COURT OF
                                     :         PENNSYLVANIA
                                     :
               v.                    :
                                     :
LEON PLATT,                          :
                    APPELLANT        :
                                     :
                                     :    No. 1327 WDA 2016

         Appeal from the Judgment of Sentence August 3, 2016
           In the Court of Common Pleas of Lawrence County
          Criminal Division at No(s): CP-37-CR-0001432-2013

COMMONWEALTH OF PENNSYLVANIA         :    IN THE SUPERIOR COURT OF
                                     :         PENNSYLVANIA
                                     :
               v.                    :
                                     :
LEON PLATT,                          :
                    APPELLANT        :
                                     :
                                     :    No. 1328 WDA 2016

         Appeal from the Judgment of Sentence August 3, 2016
           In the Court of Common Pleas of Lawrence County
          Criminal Division at No(s): CP-37-CR-0001417-2013
J. S21027/17


BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                              FILED APRIL 13, 2017

        Appellant, Leon Platt, appeals from the Judgment of Sentence entered

in the Lawrence County Court of Common Pleas in these consolidated

appeals following his conviction at Case No. 1434 of Murder of the Third

Degree, Recklessly Endangering Another Person (“REAP”), Persons not to

Possess or Use Firearms, and Firearms not to Be Carried without a License, 1

at Case No. 1417 of Discharge of a Firearm into an Occupied Structure;2 and

at Case No. 1432 of Criminal Mischief and REAP.3 We affirm.

        We summarize the facts as follows. On November 11, 2013, Appellant

and Taylor Foley (“Foley”) went to the home of Michael Pounds, with whom

Foley and Appellant had an ongoing dispute.       Foley drove the two to Mr.

Pounds’ home in a white Chevrolet Cruz owned by Foley’s mother. Appellant

fired shots toward and into the side of the house. The bullets did not pass

through to the interior of the home, but at least some bullets stuck in the

house. Police found four .45 caliber shell casings around Pounds’ home.




*
    Retired Senior Judge assigned to the Superior Court.
1
 18 Pa.C.S. § 2502(c), 18 Pa.C.S. § 2705, 18 Pa.C.S. § 6105(a)(1), and 18
Pa.C.S. § 6106(a)(1), respectively.
2
    18 Pa.C.S. § 2707.1(a).
3
    18 Pa.C.S. § 3304(a) and 18 Pa.C.S. § 2705, respectively.




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      On the evening of November 15, 2013, Appellant, Foley, Foley’s infant

child, LaXavier Crumb (“Crumb”), Heather Hall (“Hall”), and Shane Mihalko

(“Mihalko”) were at Hall and Crumb’s apartment at 411 Loop Street. That

night, Appellant, Foley, Crumb, and Richard Hogue (the “Victim”) left 411

Loop Street and drove to the West End Café.

      The group drove to a road behind the West End Café, and Appellant

and Foley exited the vehicle. Foley shot her 9 mm pistol and Appellant shot

his .45 caliber Kimber pistol near the West End Café, hitting the car of Linda

Boots and going through the window of Tim and Allison Phillippi’s residence

at 1217 Lawrence Ave.4 Crumb and the Victim stayed in the car.5

      Following the shooting, Appellant, Crumb, Foley, and the Victim

returned to 411 Loop Street. Foley and the Victim left to get cigarettes and,

while they were out, checked to see the damage Appellant and Foley had

caused by the shooting at the West End Café.

      Upon their return to 411 Loop Street, an argument between the Victim

and Appellant about the scope of the damage caused by Appellant and Foley

ensued.

4
  Both Tim and Allison Phillippi were present in the living room when the
bullets went through the living room window.
5
  After investigating the scene, police found five empty .45 caliber casings
and two empty 9 mm casings near Linda Boots’ Jeep, and a bullet hole in its
passenger side door. Police also found two bullet holes in the window of the
Phillippi residence and one bullet fragment, which police determined to have
come from Lawrence Avenue.




                                    -3-
J. S21027/17


      Appellant was on one side of the room in a rocking chair, Foley and

her baby were on a loveseat adjacent to the chair. The Victim was in the

middle of a couch across the room from Appellant with Crumb to his left and

Mihalko to his right, and a coffee table in the middle of the seating

arrangement. As the argument got more intense, Mihalko, sensing trouble,

left the house. The argument continued and both the Victim and Appellant

stood up across the living room from each other.       Foley then covered her

baby in a protective position, Appellant raised his .45 caliber Kimber pistol

and shot the Victim once. The Victim later died.

      After Appellant shot the Victim, Appellant, Crumb, and Hall all left 411

Loop Street.   Foley stayed at the house with the Victim and called 911.

When the police arrived, they spoke with Foley who eventually told them

that Appellant was the shooter and gave them a description of him.

Appellant, who was allegedly at Foley’s parents’ residence, called Foley. 6

      After being called to Elwood City to investigate the shooting, Sgt.

Matthew Smock, of nearby Koppel Borough, observed Appellant heading

away from Elwood City.      Upon the arrest, Appellant identified himself as

“Mike.”   The Koppel Borough officers exchanged custody of Appellant with

the Pennsylvania State Police, who transported him to the Elwood City Police

Department.


6
 Police conducted a protective sweep of the Foley residence, but did not find
Appellant.



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      On November 16, 2013, the Commonwealth charged Appellant with

the above crimes.

      On December 17, 2013, the court held a preliminary hearing at which

Appellant entered not guilty pleas to all charges.         On June 11, 2014,

Appellant filed an Omnibus Pretrial Motion for Suppression and Writ of

Habeas Corpus. After hearings on the Motion, the court denied the Motion.

      The case proceeded to trial on April 4, 2016. On April 14, 2016, a jury

convicted Appellant of the above charges.       On August 3, 2016, the court

sentenced Appellant to an aggregate term of 22 to 52 years’ incarceration.

Appellant did not file a Post-Sentence Motion.       Rather, on September 1,

2016, Appellant filed a Notice of Appeal to this Court. Both Appellant and

the trial court complied with Pa.R.A.P. 1925.

      Appellant raises the following three issues on appeal:

         1. Whether     the    prosecuting attorney committed
         misconduct when arguing in closing argument facts not
         placed into evidence?

         2. Whether the court erred in failing to suppress
         [Appellant’s] statements made to Trooper Douglas Price
         and Officer Brian Damon?

         3. Whether the verdict was against the weight of the
         evidence to convict for third degree murder?

Appellant’s Brief at 21.

      In his first issue, Appellant claims that the trial court erred in allowing

the district attorney to commit misconduct by referring to facts not in

evidence during his closing argument. Id. at 29. Appellant argues that the


                                      -5-
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trial court erred in overruling Appellant’s objection to the Commonwealth’s

statement in its closing argument that the Victim flinched or attempted to

move out of the way of the gun’s line of fire—a fact that Appellant claims is

unsupported by the facts of record.      Id. at 35.   Appellant avers that the

Commonwealth intentionally made this unsupported statement to undermine

Appellant’s defense that it was Crumb, and not the Appellant, who shot the

Victim. Id. at 29, 34. Appellant argues that the inference that the Victim

flinched was unreasonable in light of Crumb’s testimony that the Victim was

“not letting his guard down”7 while staring down the barrel of the Victim’s

gun.    Specifically Appellant argues as follows:

           The sole purpose of the prosecutor’s extensive description
           of [the Victim’s] movement was to somehow explain away
           the angle and direction of the shot. Based on the physical
           evidence of the internal path of the bullet by Dr.
           [Luckasevic] and the testimony of both Foley and Crumb[,]
           the shot could not have come from the location in which
           [A]ppellant was standing. The path and direction of the
           bullet was the most crucial piece of evidence for the
           defense and the prosecutor took that away from both the
           defense and the jury when he made up evidence that he
           could not produce at trial.

Id. at 34.

        When delivering a closing argument, a prosecutor must limit his

statements to the facts introduced at trial and the legitimate inferences

therefrom.    Commonwealth v. Stafford, 749 A.2d 489, 499 (Pa. Super.

2000). The Commonwealth is free to argue that the evidence adduced at

7
    N.T., 4/5/16, at 134-35.



                                      -6-
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trial leads to guilt and is permitted to suggest all favorable and reasonable

inferences arising from that evidence. Id.

      The following guides our review of a claim of prosecutorial misconduct:

         Our standard of review for a claim of prosecutorial
         misconduct is limited to whether the trial court abused its
         discretion.

            In considering this claim, our attention is focused on
            whether the defendant was deprived of a fair trial,
            not a perfect one.

            Generally, a prosecutor’s arguments to the jury are
            not a basis for the granting of a new trial unless the
            unavoidable effect of such comments would be to
            prejudice the jury, forming in their minds fixed bias
            and hostility towards the accused which would
            prevent them from properly weighing the evidence
            and rendering a true verdict.

         A prosecutor must have reasonable latitude in fairly
         presenting a case to the jury and must be free to present
         his or her arguments with logical force and vigor. The
         prosecutor is also permitted to respond to defense
         arguments.    Finally, in order to evaluate whether the
         comments were improper, we do not look at the comments
         in a vacuum; rather we must look at them in the context in
         which they were made.

Commonwealth v. Rolan, 964 A.2d 398, 410 (Pa. Super. 2008) (citations

omitted).

      The trial court found that, notwithstanding Crumb’s testimony that the

Victim was holding his ground and not letting down his guard when

threatened with Appellant’s gun, the prosecutor’s statement was based on

reasonable inferences from the testimony of Dr. Todd Luckasevic, an expert

forensic pathologist at trial, and witness Taylor Foley. We agree.


                                    -7-
J. S21027/17


      Dr. Luckasevic had performed an autopsy on the Victim and testified to

the particulars of the point of entry of the fatal bullet, the course it traveled,

and its placement in the Victim’s body. N.T., 4/5/16, at 90-92. He testified

that, “once the bullet hit the skin, it travelled from front to back, left to right

and downward.”      Id. at 91-92.     He explained that the placement of the

bullet is relative to the “standard anatomic position,” which he described as

“standing straight up, facing forward, arms at your side with palms facing

out.” Id. at 92.

      Taylor Foley also testified at Appellant’s trial.       She testified that

Appellant and the Victim were on opposite sides of the room from each

other, standing, and were arguing when Appellant loaded the firearm, aimed

it at the Victim, and slowly lowered it from shoulder height, approximately 8

or 9 inches. N.T., 4/8//16, at 43-44. Then the gun fired. Id. at 48. Ms.

Foley also testified that LaXavier Crumb was to the Victim’s left side when

the shot was fired into the Victim’s abdomen.         Id. at 46.     Foley denied

seeing who discharged the gun. Id. at 48.

      At trial, the district attorney made the following statement in his

closing argument:

         While the pathologist told us the anatomical position, the
         normal anatomical position is what he references that
         gunshot by, he didn’t say that [Appellant] or whoever shot
         Richard Hogue was shooting him from a normal anatomic
         position, and I’d suggest to you that no one was standing
         there in this manner, in what pathologists call a normal
         anatomic position, for that shot to be fired.



                                       -8-
J. S21027/17


         What’s really happening? The defendant takes out the gun
         across the distance, but less than this of the coffee table.
         Hogue is there with Laxavier Crumb, good sized man to his
         left. To his right, there’s at the end of the other couch and
         that table. As [Appellant] puts that gun on him, Richard
         Hogue is looking into the barrel of that .45 and he flinches
         in the only quick way to get out of there. He flinches to
         his right.

         Taylor [Foley] told about the gun dropping, the aim
         dropping, and that’s what you’re seeing. Hogue is up.
         Hogue sees the barrel and he starts to go to the open way,
         down to his corner, behind the corner of that couch.

         But then we hear about the bullet coming in [from Dr.
         Luckasevic]. The bullet came in about belly button high,
         three inches to the left. It also had the abrasion in the 1
         o’clock position. That would be just a little to the left , but
         we know that that was – the bullet was coming down in
         this direction. It wasn’t the normal anatomic position, it
         was the flinch. When he dropped to get out of the line of
         that gun, he put himself in a position to receive that shot.

N.T., 4/13/16, at 55-56.

      Appellant objected to that statement on the basis that, “[t]here’s no

evidence that he moved. The testimony is that he was standing directly in

front of him.” Id. at 56. The Commonwealth explained that the statement

is “within the range of argument[,]” and the court overruled Appellant’s

objection.

      The trial court explained its decision to permit the district attorney to

refer to the victim as flinching or moving into a position to “receive that

shot” as follows:

         Reasonable inferences of these pieces of evidence would
         include that the Victim and [Appellant] were facing each
         other, and[,] for the bullet to have entered as described by


                                      -9-
J. S21027/17


           the [f]orensic [p]athologist Victim would have had to have
           changed his position. This is the argument presented by
           the Commonwealth during closing.          Based on these
           reasonable inferences, this [c]ourt properly held the
           statements of the Commonwealth to be within the scope of
           argument and overruled the objection.

Trial Ct. Op., 10/24/16, at 6.

        Our review of the Notes of Testimony confirms that the trial court

appropriately determined that it was reasonable to infer from the testimony

of Dr. Luckasevic and Ms. Foley that the victim may have moved just before

Appellant shot him.     Because the district attorney based his statement on

reasonable inferences from evidence of record, and the Commonwealth is

permitted to suggest to the jury all favorable and reasonable inferences that

arise from the evidence, the trial court did not abuse its discretion in

concluding that he did not engage in misconduct. Accordingly, Appellant is

not entitled to relief on this claim.

        In his second issue, Appellant challenges the trial court’s denial of his

Motion to Suppress the statements he made to Trooper Douglas Price and

Officer Brian Damon while in police custody.        Appellant’s Brief at 36-39.

First, Appellant argues that the court erred in not suppressing statements he

made to Trooper Price because Trooper Price improperly detained him and

did not give him a Miranda8 warning before questioning him.            Appellant

argues that, during the period when he was in Trooper Price’s custody, any


8
    Miranda v. Arizona, 384 U.S. 436 (1966).



                                        - 10 -
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questions posed by police were in the nature of an interrogation and,

therefore, the police were obliged to provide Appellant with a Miranda

warning.      Id. at 38.    Appellant argues that, since Officer Price did not

Mirandize Appellant, any statements made to police, including those

following Officer Damon twice advising Appellant of his Miranda rights, were

not knowing and voluntary and the court should have suppressed them. Id.

at 39.

         Our standard of review is well-settled:

            When reviewing the denial of a motion to suppress
            evidence, we examine “the evidence of the Commonwealth
            and so much of the evidence for the defense as remains
            uncontradicted when read in context of the record as a
            whole.” Commonwealth v. Jones, 605 Pa. 188, 988
            A.2d 649, 654 (2010). We then determine “whether the
            suppression court’s factual findings are supported by the
            record and whether the legal conclusions drawn from those
            facts are correct.” Id. Our review of the application of the
            law to the facts is plenary. Id.

Commonwealth v. Washington, 51 A.3d 895, 897 (Pa. Super. 2012).

         The obligation of the police to inform a criminal defendant of his rights

is well-settled:

            A law enforcement officer must administer Miranda
            warnings      prior     to     custodial    interrogation.
            Commonwealth v. Johnson, 373 Pa. Super. 312, 541
            A.2d 332, 336 (1988). The standard for determining
            whether an encounter with the police is deemed “custodial”
            or police have initiated a custodial interrogation is an
            objective one based on a totality of the circumstances,
            with due consideration given to the reasonable impression
            conveyed to the person interrogated. Commonwealth v.
            Gwynn, 555 Pa. 86, ––––, 723 A.2d 143, 148 (1998).
            Custodial interrogation has been defined as “questioning


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       initiated by law enforcement officers after a person has
       been taken into custody or otherwise deprived of his [or
       her] freedom of action in any significant way.” Johnson,
       541 A.2d at 336 quoting Miranda[, 384 U.S. at 444].
       “Interrogation” is police conduct “calculated to, expected
       to, or likely to evoke admission.”             Id. quoting
       Commonwealth v. Simala, 434 Pa. 219, 226, 252 A.2d
       575, 578 (1969). When a person's inculpatory statement
       is not made in response to custodial interrogation, the
       statement is classified as gratuitous, and is not subject to
       suppression for lack of warnings. Id.

          The appropriate test for determining whether a situation
       involves custodial interrogation is as follows:

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

       Commonwealth v. Busch, 713 A.2d 97, 100 (Pa. Super.
       1998) quoting Commonwealth v. Rosario, 438
       Pa.Super. 241, 652 A.2d 354, 365–66 (1994) (en banc),
       appeal denied, 546 Pa. 668, 685 A.2d 547 (1996) (other
       citations omitted). Said another way, police detentions
       become custodial when, under the totality of the
       circumstances, the conditions and/or duration of the
       detention become so coercive as to constitute the
       functional equivalent of arrest. Commonwealth v. Ellis,
       379 Pa.Super. 337, 549 A.2d 1323, 1332 (1988), appeal
       denied, 522 Pa. 601, 562 A.2d 824 (1989), citing
       California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct.
       3517, 3520, 77 L.Ed.2d 1275 (1983).

       The factors a court utilizes to determine, under the totality
       of the circumstances, whether a detention has become so
       coercive as to constitute the functional equivalent of arrest
       include: the basis for the detention; its length; its location;
       whether the suspect was transported against his or her
       will, how far, and why; whether restraints were used;
       whether the law enforcement officer showed, threatened


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        or used force; and the investigative methods employed to
        confirm or dispel suspicions. Busch, 713 A.2d at 101. The
        fact that a police investigation has focused on a particular
        individual does not automatically trigger “custody,” thus
        requiring Miranda warnings. Commonwealth v. Fento,
        363 Pa.Super. 488, 526 A.2d 784, 787 (1987).

Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999).

     With respect to the voluntariness of a defendant’s statements to the

police, we are guided by the following:

        The test for determining the voluntariness of a confession
        and whether an accused knowingly waived his or her rights
        looks to the totality of the circumstances surrounding the
        giving of the confession.      Some of the factors to be
        considered include: the duration and means of
        interrogation; the accused’s physical and psychological
        state; the conditions attendant to the detention; the
        attitude exhibited by the police during the interrogation;
        and any and all other factors which may serve to drain
        one’s powers of resistance to suggestion and coercion.

Commonwealth v. Jones, 683 A.2d 1181, 1189 (Pa. 1996) (citations

omitted).

     The suppression court based its decision to deny Appellant’s Motion to

Suppress on the testimony of Trooper Doug Price and Officer Brian Damon.

In denying Appellant’s Motion to Suppress statements to Trooper Price the

court considered Trooper Price’s testimony that he

        patted down [Appellant] prior to putting him in the back of
        the patrol car and asked [Appellant] his name. [Appellant]
        responded that his name was Mike Williams. Trooper Price
        then asked [Appellant] where he was headed, and
        [Appellant] stated that he was headed home to Rochester.
        [Appellant] was transported to the Elwood City Police
        Stat[ion] and placed in a holding cell. Trooper Price again



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         asked [Appellant] his name, and this time, [Appellant]
         responded Leon Platt.

Trial Ct. Op., 5/12/15, at 11-12, 6-7.

      The suppression court concluded that “prior to a formal interrogation

taking place, [Appellant] was asked his name and intended destination on

two separate occasions.” Id. at 14-15. We agree with the trial court that

the questions posed to Appellant by Trooper Price did not constitute an

interrogation. These two questions were of the most basic kind, and merely

informational in nature, and were not “calculated to, expected to, or likely to

evoke admission.”      Johnson, supra at 336.          Because the interaction

between Trooper Price and Appellant was not an interrogation, Appellant was

not entitled to a Miranda warning.       The suppression court, therefore, did

not err in denying Appellant’s Motion to Suppress the statements he had

made to Trooper Price.

      Appellant predicates his claim that the court erred in not suppressing

his statements to Officer Damon on Trooper Price’s prior alleged Miranda

violation.   Because we have concluded that Trooper Price’s questioning of

Appellant was not an interrogation, and Trooper Price did not violate

Appellant’s Miranda rights, this claim necessarily fails. Moreover, as noted

by the trial court “Officer Damon specifically testified to providing [Appellant]

with his Miranda [rights] prior to commencing an interrogation at 7:00

a.m.” Trial Ct. Op, 5/12/15, at 15. Our review of the Notes of Testimony

confirms this factual finding. Appellant is, thus, not entitled to relief.


                                      - 14 -
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      In his final claim, Appellant challenges the weight of the evidence.

See Appellant’s Brief at 39-40.

      A challenge to the weight of the evidence must be preserved by a

Post-Trial Motion. Pa.R.Crim.P. 607 provides:

         Rule 607. Challenges to the Weight of the Evidence

         (A) A claim that the verdict was against the weight of the
         evidence shall be raised with the trial judge in a motion for
         a new trial:

            (1) orally, on the record, at any time before
            sentencing;

            (2) by written motion at any time before sentencing;
            or

            (3) in a post-sentence motion.

Pa.R.Crim.P. 607(A)(1)-(3).    “As noted in the comment to Rule 607, the

purpose of this rule is to make it clear that a challenge to the weight of the

evidence must be raised with the trial judge or it will be waived.”

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa. Super. 2004)

(quotation marks omitted). A claim challenging the weight of the evidence

generally cannot be raised for the first time in a Rule 1925(b) statement.

Commonwealth v. Burkett, 830 A.2d 1034, 1037 (Pa. Super. 2003). An

appellant’s failure to avail himself of any of the prescribed methods for

presenting a weight of the evidence issue to the trial court constitutes

waiver of that claim, even if the trial court responds to the claim in its Rule

1925(a) opinion. Id.



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     Instantly, Appellant failed to challenge the weight of the evidence

before the trial court in a motion for a new trial.   See Pa.R.Crim.P. 607.

Rather, Appellant raised his weight claim for the first time in his Rule

1925(b) statement. See Burkett, supra. Thus, his third issue on appeal is

waived. See Pa.R.Crim.P. 607; Gillard, supra; Burkett, supra.

     Judgments of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2017




                                   - 16 -
