J-A19016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID MATTHEW MAZZOCCO

                            Appellant                 No. 466 WDA 2014


           Appeal from the Judgment of Sentence February 18, 2014
              in the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0004913-2013


BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                          FILED AUGUST 12, 2015

        Appellant David Mazzocco appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas following his jury

trial conviction for first-degree murder,1 attempted murder,2 aggravated

assault,3 and recklessly endangering another person (“REAP”).4 We affirm.

        The trial court summarized the underlying facts of this matter as

follows:

        . . . [O]n Sunday, March 10, 2013, [Appellant] and his girlfriend,
        Samantha Snatchko, had dinner at a friend’s house. During
____________________________________________


1
    18 Pa.C.S. § 2502(a).
2
    18 Pa.C.S. § 901(a).
3
    18 Pa.C.S. § 2702(a).
4
    18 Pa.C.S. § 2705.
J-A19016-15


       dinner [Appellant] had between 4 and 6 beers. He also bought
       40 Xanax pills from a friend earlier that day and had taken 15 of
       them throughout the day. After dinner, [Appellant] displayed
       three (3) handguns and an AR-15 rifle to other guests at the
       party, who were gun enthusiasts. At the conclusion of the meal,
       [Appellant] took Snatchko home because she was uncomfortable
       with his drinking and drug use and also with the display of guns.
       He then went to the Fort Pitt Inn, a bar located on Steubenville
       Pike in North Fayette. While in the bar, he had 2 beers and 2
       shots of Crown Royal, at which point the bartender refused to
       serve him any more alcohol.             Throughout the evening,
       [Appellant] was telephoning and texting Snatchko on his cell
       phone and repeatedly left the bar and then came back inside. It
       was subsequently revealed that Snatchko was attempting to end
       the relationship and [Appellant] was alternately upset and
       begging to come see her and jealous because he thought she
       had another man at her house. During one of the trips outside,
       [Appellant] returned with a smashed cell phone and then asked
       to use the bar phone. Later in the evening, [Appellant] went
       outside and returned with a bloody hand from breaking a window
       in his truck and told his friends Dave and Ryan Thomas, with
       whom he had been sitting, to leave the bar. He then reached
       into his pocket, pulled a handgun and fired two shots, hitting
       patrons James Adams and James Quirk in the head.[5] At that
       point, two other patrons, Gerald Maroni and Juan Rodriguez,
       rushed [Appellant] and attempted to subdue him. Another shot
       was fired, this time hitting Maroni in the arm. Eventually Maroni
       and Rodriguez managed to wrestle the gun away from
       [Appellant], and Maroni beat [Appellant] in the head several
       times with the gun in order to subdue him.           Maroni and
       Rodriguez held [Appellant] down until the police arrived and
       handcuffed him. [Appellant] was taken to Mercy Hospital, where
       he was treated and released. He was then transported to the
       Homicide Division, where he was permitted to sleep and offered
       food. He told police that he had not been provoked, but rather
       began shooting for no reason and intended to keep shooting
       until the police arrived.


____________________________________________


5
  The shot to the head killed James Adams. James Quirk survived, but with
grievous and permanent injuries.



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1925(a) Opinion, pp. 2-3.

        Following a trial conducted November 7-21, 2013, a jury convicted

Appellant of first-degree murder, two counts of attempted murder, two

counts of aggravated assault, and one count of REAP. 6            On February 18,

2014, the trial court sentenced Appellant to life imprisonment without parole

on the first-degree murder conviction and consecutive sentences of 10 to 20

years of imprisonment for each of the attempted murder convictions. The

trial court imposed no further penalties for the remaining convictions.

        Appellant filed post-sentence motions7 on February 25, 2014, which

the trial court denied by order filed on March 4, 2014.           Appellant filed a

notice of appeal on March 24, 2014.              Both Appellant and the trial court

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

        Appellant raises the following four claims for review:

        I. Did the [t]rial [c]ourt err when it denied [Appellant’s] post-
        trial motion to vacate the verdict of guilty and enter judgment of
        acquittal as to first-degree murder, third-degree murder,
        attempted homicide, aggravated assault and recklessly
        endangering another person on grounds that the evidence was
        insufficient to support verdicts of guilty, in particular the
        [Commonwealth] failed to disprove the defenses of self-defense
        and imperfect self-defense?


____________________________________________


6
  At the conclusion of the Commonwealth’s case, the trial court granted
Appellant’s motion for acquittal on four other counts of REAP.
7
    Appellant’s post-sentence motions included a weight of the evidence claim.




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       [II.] Did the [t]rial [c]ourt err when it denied [Appellant’s] post-
       trial motion to vacate the verdict of guilty and order a new trial
       as to first-degree murder, third-degree murder, attempted
       homicide, aggravated assault and recklessly endangering
       another person on grounds that [the] verdict was against the
       weight of the evidence, in particular the [Commonwealth] failed
       to disprove the defenses of self-defense and imperfect self-
       defense?

       [III.] Did the [t]rial [c]ourt err when it denied [Appellant’s]
       motion to suppress the statement he allegedly made to the
       Allegheny County Police because it was not a knowing and
       voluntary statement?

       [IV.] Did the [t]rial [c]ourt err when it imposed a sentence of
       “life without the possibility of parole” because it is an unlawful
       sentence in that a sentencing court’s authority is limited to
       imposing a sentence of life imprisonment?

Appellant’s Brief, p. 6.8

    A. The Sufficiency of the Evidence Claim

       Appellant first claims that the Commonwealth adduced insufficient

evidence to convict him of his various crimes. See Appellant’s Brief, p. 16.

Specifically, Appellant claims the Commonwealth failed to adequately

disprove the defenses of self-defense and imperfect self-defense. See id. at

19-24. He is incorrect.

       When examining a challenge to the sufficiency of evidence, this Court’s

standard of review is as follows:


____________________________________________


8
  The argument section of Appellant’s brief combines his sufficiency of the
evidence and weight of the evidence claims into a single claim. See
Appellant’s Brief, pp. 6, 16-24. For the sake of clarity, we regard and
discuss these claims as separate claims herein.



                                           -4-
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      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying [the above] test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.     In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.           Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      [trier] of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Smith, 97 A.3d 782, 790 (Pa.Super.2014).

      Pennsylvania’s Crimes Code governs self-defense, and provides, in

relevant part, as follows:

      § 505. Use of force in self-protection

      (a) Use of force justifiable for protection of the person.--
      The use of force upon or toward another person is justifiable
      when the actor believes that such force is immediately necessary
      for the purpose of protecting himself against the use of unlawful
      force by such other person on the present occasion.

      (b) Limitations on justifying necessity for use of force.--

                                     ...

      (2) The use of deadly force is not justifiable under this section
      unless the actor believes that such force is necessary to protect
      himself against death, serious bodily injury, kidnapping or sexual
      intercourse compelled by force or threat; nor is it justifiable if:




                                     -5-
J-A19016-15


         (i) the actor, with the intent of causing death or serious
         bodily injury, provoked the use of force against himself in
         the same encounter; or

         (ii) the actor knows that he can avoid the necessity of
         using such force with complete safety by retreating, except
         the actor is not obliged to retreat from his dwelling or
         place of work, unless he was the initial aggressor or is
         assailed in his place of work by another person whose
         place of work the actor knows it to be.

                                     ...

      (2.3) An actor who is not engaged in a criminal activity, who is
      not in illegal possession of a firearm and who is attacked in any
      place where the actor would have a duty to retreat under
      paragraph (2)(ii) has no duty to retreat and has the right to
      stand his ground and use force, including deadly force, if:

         (i) the actor has a right to be in the place where he was
         attacked;

         (ii) the actor believes it is immediately necessary to do so
         to protect himself against death, serious bodily injury,
         kidnapping or sexual intercourse by force or threat; and

         (iii) the person against whom the force is used displays or
         otherwise uses:

         (A) a firearm or replica of a firearm as defined in 42
         Pa.C.S. § 9712 (relating to sentences for offenses
         committed with firearms); or

         (B) any other weapon readily or apparently capable of
         lethal use.

18 Pa.C.S. § 505.

      This Court recently explained justified use of deadly force in self-

defense in detail as follows:

      According to our Supreme Court, the justified use of deadly force
      requires:




                                    -6-
J-A19016-15


         a) the actor was free from fault in provoking or continuing
         the difficulty which resulted in the use of deadly force; b)
         the actor must have reasonably believed that he was in
         imminent danger of death or serious bodily injury, and that
         there was a necessity to use such force in order to save
         himself or others therefrom; and c) the actor did not
         violate any duty to retreat or to avoid the danger.

      Commonwealth v. Harris, 542 Pa. 134, 137, 665 A.2d 1172,
      1174 (1995). The defendant has no “burden to prove” his self-
      defense claim. Commonwealth v. Torres, 564 Pa. 219, 224,
      766 A.2d 342, 345 (2001). The Supreme Court explained the
      evidentiary burdens as follows:

         While there is no burden on a defendant to prove the [self-
         defense] claim, before that defense is properly at issue at
         trial, there must be some evidence, from whatever source
         to justify a finding of self-defense. If there is any evidence
         that will support the claim, then the issue is properly
         before the fact finder.

Smith, 97 A.3d at 787.       The Commonwealth sustains this burden if it

establishes at least one of the following beyond a reasonable doubt:

         1) the accused did not reasonably believe that he was in
         danger of death or serious bodily injury; or 2) the accused
         provoked or continued the use of force; or 3) the accused
         had a duty to retreat and the retreat was possible with
         complete safety.

Id.   (quoting   Commonwealth       v.   Hammond,       953   A.2d   544,   559

(Pa.Super.2008), appeal denied, 600 Pa. 743, 964 A.2d 894 (2009).

         The requirement of reasonable belief encompasses two
         aspects, one subjective and one objective.         First, the
         defendant must have acted out of an honest, bona fide
         belief that he was in imminent danger, which involves
         consideration of the defendant’s subjective state of mind.
         Second, the defendant’s belief that he needed to defend
         himself with deadly force, if it existed, must be reasonable
         in light of the facts as they appeared to the defendant, a
         consideration that involves an objective analysis.

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J-A19016-15



Smith, 97 A.3d at 787 (quoting Commonwealth v. Mouzon, 617 Pa. 527,

551, 53 A.3d 738, 752 (2012)).

     To claim self-defense, the defendant must be free from fault in
     provoking or escalating the altercation that led to the offense,
     before the defendant can be excused from using deadly force.

Smith, 97 A.3d at 787 (quoting Mouzon, 53 A.3d at 751).

     If the defendant’s own testimony is the only evidence of self-defense,

     the Commonwealth must still disprove the asserted justification
     and cannot simply rely on the jury’s disbelief of the defendant’s
     testimony:

        The disbelief of a denial does not, taken alone, afford
        affirmative proof that the denied fact existed so as to
        satisfy a proponent’s burden of proving that fact. The trial
        court’s statement that it did not believe Appellant’s
        testimony is no substitute for the proof the Commonwealth
        was required to provide to disprove the self-defense claim.

     If there are other witnesses, however, who provide accounts of
     the material facts, it is up to the fact finder to reject or accept
     all, part or none of the testimony of any witness.              The
     complainant can serve as a witness to the incident to refute a
     self-defense claim.

Smith, 97 A.3d at 788 (internal quotations and citations omitted).

     Further,

     [a]lthough the Commonwealth is required to disprove a claim of
     self-defense arising from any source beyond a reasonable doubt,
     a [fact-finder] is not required to believe the testimony of the
     defendant who raises the claim.

     A number of factors, including whether complainant was armed,
     any actual physical contact, size and strength disparities
     between the parties, prior dealings between the parties,
     threatening or menacing actions on the part of complainant, and
     general circumstances surrounding the incident, are all relevant
     when determining the reasonableness of a defendant’s belief

                                    -8-
J-A19016-15


        that the use of deadly force was necessary to protect against
        death or serious bodily injuries. Furthermore, a physically larger
        person who grabs a smaller person does not automatically invite
        the smaller person to use deadly force in response.

Smith, 97 A.3d at 788 (internal quotations and citations omitted).

        In addition to self-defense, which, if successful, results in acquittal, a

first-degree murder defendant may also claim that he committed an

“unreasonable belief killing.” This defense, otherwise known as “imperfect

self-defense,” if employed successfully, does not result in acquittal, but

instead results in a conviction for voluntary manslaughter in lieu of first-

degree murder. The Crimes Code defines imperfect self-defense as follows:

        Unreasonable belief killing justifiable.--A person who
        intentionally or knowingly kills an individual commits voluntary
        manslaughter if at the time of the killing he believes the
        circumstances to be such that, if they existed, would justify the
        killing under Chapter 5 of this title (relating to general principles
        of justification), but his belief is unreasonable.

18 Pa.C.S. § 2503(b). “The derivative and lesser defense of imperfect belief

self-defense is imperfect in only one respect—an unreasonable rather than a

reasonable belief that deadly force was required to save the actor’s life. All

other principles of justification under 18 Pa.C.S. § 505 must [be satisfied to

prove] unreasonable belief voluntary manslaughter.”            Commonwealth v.

Sepulveda,      55   A.3d   1108,    1124    (Pa.2012)     (internal   citations   and

quotations omitted). As with self-defense, a defendant must be free from

fault   to   successfully   employ   the    defense   of   imperfect    self-defense.

Sepulveda, 55 A.3d at 1124-25.



                                        -9-
J-A19016-15



         Here, Appellant presented a justification defense of self-defense at

trial.    Appellant testified that Adams had earlier threatened to kill him

because Appellant had taken Adams’ job. Appellant further testified that he

saw Adams reach into his pocket and pull out a gun. He claims, fearing for

his life, he shot Adams in the face and then accidentally shot Quirk. He also

testified someone else fired the shot that hit Maroni in the arm. Appellant’s

own testimony was the only self-defense evidence.

         The physical evidence and the testimony of other witnesses, however,

refute Appellant’s testimony. This evidence established that all three shots

fired in the altercation came from the same weapon – Appellant’s gun – and

that Adams did not have a gun at all. Further, the bartender and the other

bar patrons all testified that they had not witnessed any interaction

whatsoever between the two men prior to Appellant shooting Adams.

         The trial court correctly assessed the evidence presented in relation to

Appellant’s self-defense and imperfect self-defense claims:

               Here, the Commonwealth presented evidence that was
         more than sufficient to disprove [Appellant’s] trial claim of self-
         defense (and his appellate claim of imperfect self-defense). The
         Commonwealth was able to establish, through the testimony of
         the bartender and every patron who was at the bar at the time
         of the shooting, that there had been no confrontation between
         [Appellant] and Adams, and, in fact, there had been no contact
         or conversation at all between them. The Commonwealth was
         able to prove through physical evidence that Adams did not have
         a gun, and so could not have been pulling out a gun as
         [Appellant] claimed. Although [Appellant] claimed that someone
         else was shooting (presumably at him), the Commonwealth was
         able to prove through ballistics evidence that all three shots
         were fired by [Appellant], from his weapon. Moreover, the


                                       - 10 -
J-A19016-15


      Commonwealth was able to prove that once [Appellant] shot
      Adams – who [Appellant] claimed was the only threat or source
      of confrontation – he continued to shoot, hitting James Quirk in
      the head and Gerald Maroni in the arm.

            Ultimately, the evidence very clearly demonstrated that
      there was no threat or confrontation that would have required
      [Appellant] to protect or defend himself. Rather, the evidence
      demonstrated that [Appellant], who had been drinking and
      taking prescription drugs was angered and upset over the break-
      up with his girlfriend, left the bar and went to his truck where he
      deliberately armed himself with three handguns.            When he
      returned to the bar he told his friends to leave, then pulled out a
      gun and, without warning or provocation, began shooting.

            These facts provide absolutely no basis for a claim of self-
      defense or imperfect self-defense. The Commonwealth clearly
      established that [Appellant] was the aggressor, and so met its
      burden of disproving the claim of self-defense (as well as the
      [appellate] claim of imperfect self-defense). This claim must
      fail.

1925(a) Opinion, pp. 5-6.

      Accordingly, Appellant’s sufficiency of the evidence claim based on the

Commonwealth’s alleged failure to disprove self-defense and/or imperfect

self-defense fails.

   B. The Weight of the Evidence Claim

      Appellant next claims that the verdict was against the weight of the

evidence.   See Appellant’s Brief, p. 16.    Appellant bases this claim on his

argument that the Commonwealth failed to adequately disprove the

defenses of self-defense and imperfect self-defense. See id. at 19-24. He

is again incorrect.

      The denial of a new trial based on a lower court’s determination that

the verdict was not against the weight of the evidence is one of the least

                                    - 11 -
J-A19016-15



assailable    reasons     for    granting      or   denying   a   new   trial.   See

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.2013).                        This Court

reviews weight of the evidence claims pursuant to the following standard:

       A motion for new trial on the grounds that the verdict is contrary
       to the weight of the evidence, concedes that there is sufficient
       evidence to sustain the verdict. Thus, the trial court is under no
       obligation to view the evidence in the light most favorable to the
       verdict winner. An allegation that the verdict is against the
       weight of the evidence is addressed to the discretion of the trial
       court. A new trial should not be granted because of a mere
       conflict in the testimony or because the judge on the same facts
       would have arrived at a different conclusion. A trial judge must
       do more than reassess the credibility of the witnesses and allege
       that he would not have assented to the verdict if he were a
       juror. Trial judges, in reviewing a claim that the verdict is
       against the weight of the evidence do not sit as the thirteenth
       juror. Rather, the role of the trial judge is to determine that
       notwithstanding all the facts, certain facts are so clearly of
       greater weight that to ignore them or to give them equal weight
       with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal

citations, quotations, and footnote omitted).

       Stated differently, a court may award a new trial because the verdict is

against the weight of the evidence only when the verdict is so contrary to

the evidence as to shock one’s sense of justice,9 “such that right must be

____________________________________________


9
 This Court has explained the notion of “shocking to one’s sense of justice”
as follows:

       When the figure of Justice totters on her pedestal, or when the
       jury’s verdict, at the time of its rendition, causes the trial judge
       to lose his breath, temporarily, and causes him to almost fall
(Footnote Continued Next Page)


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J-A19016-15



given another opportunity to prevail.” Commonwealth v. Goodwine, 692

A.2d 233, 236 (Pa.Super.1997).             Moreover, appellate review of a weight

claim consists of a review of the trial court’s exercise of discretion, not a

review of the underlying question of whether the verdict is against the

weight of the evidence.         Widmer, 744 A.2d at 753.       When reviewing the

trial court’s determination, this Court gives the gravest deference to the

findings of the court below. We review the court’s actions for an abuse of

discretion. Id.

      Simply stated, the jury’s verdict in this matter illustrates that the jury

found credible the testimony of the Commonwealth’s witnesses that

Appellant was the aggressor and fired his weapon unprovoked, and

incredible Appellant’s testimony to the contrary. This evidence, as discussed

supra, clearly disproved Appellant’s defenses of self-defense and imperfect

self-defense. The trial court agreed with the jury’s assessment in denying

Appellant’s post-sentence motion for a new trial based on the weight of the

evidence. See 1925(a) Opinion, p. 8. Nothing about the verdict or the trial

court’s reasoning shocks the conscience.            Thus, Appellant’s weight of the

evidence claim warrants no relief.
                       _______________________
(Footnote Continued)

      from the bench, then it is truly shocking to the judicial
      conscience.

Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.Super.2004)
(internal citations and quotations omitted).




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  C. The Suppression Claim

     Next, Appellant claims that the trial court erred by not suppressing his

post-arrest statement to police.       See Appellant’s Brief, pp. 24-30.

Specifically, he claims the statement was not knowingly and voluntarily

made because he was still suffering from the combined effects of a head

injury, medication received at the hospital, and his drug and alcohol use

from the previous day. See id. 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


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     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
     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.

[The accused] 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).

                                   - 15 -
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        The testimony at the suppression hearing revealed the following.

Appellant had a blood alcohol level of 1.57% at 2:22 a.m.             He was

combative and needed to be restrained at 3:00 a.m. Additionally, he was

given Haldol and Ativan to calm him so the medical personnel could

administer a CT scan. Although Appellant was diagnosed with a concussion,

the CT scan was negative for head injury. After receiving stitches for a head

laceration, Appellant was discharged in an alert and stable condition, with a

zero pain score, and with no evidence learning considerations or barriers

prevented him from understanding discharge instructions.

        Upon his transport to the police station, police placed Appellant in a

12-foot-by-12-foot interrogation room and shackled one of his legs to a bolt

on the floor. Appellant declined food and drink. The police allowed him to

sleep until 11:00 a.m.

        At 11:00 a.m., two detectives entered the interrogation room and

spoke with Appellant.       Appellant requested and received a cigarette.   The

police explained that this would be Appellant’s opportunity to tell his version

of the events, and advised him of his Miranda10 rights by reading Allegheny

County Police’s “Rights Warning Waiver” form. Appellant had no questions

about the form, which he initialed and signed in the appropriate places. In

addition to executing the waiver form, Appellant indicated verbally that he

____________________________________________


10
     Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).




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wished to speak with police about the incident. Although he seemed tired

during the conversation regarding his waiver of rights, Appellant asked

appropriate questions. During the interview, Appellant gave responsive and

appropriate answers to the questions posed. He did not appear intoxicated;

his speech was not slurred, and he was not swaying in his seat.                  The

interview concluded at 11:45 a.m.

     Based    on   this   evidence,   the      trial   court   assessed   Appellant’s

suppression claim as follows:

     . . . Gerald Maroni beat [Appellant] about the head in an attempt
     to subdue him after the shooting. However, [Appellant] was
     conscious, albeit belligerent and verbally abusive to the police at
     the scene. He remained so at the hospital and was sedated to
     permit medical treatment. However, upon his release from
     Mercy Hospital, [Appellant] was cleared for incarceration. He
     was permitted to, and in fact[] did, sleep for several hours and
     was offered food and beverages before questioning began.
     When the questioning began, [Appellant] gave responsive
     answers and did not appear to be impaired.

            [Appellant’s] averment that he does not remember the
     interrogation remains suspect. It appears that he is attempting
     to claim that the memory loss was the product of the beating by
     Maroni, however, careful examination of the record reveals that
     [Appellant] has also claimed selective memory loss from before
     the shooting, particularly where he denied knowing how his
     phone got smashed.        It seems clear to this [c]ourt that
     [Appellant] is attempting to use the “memory loss” to his benefit
     for “forgetting” any particularly damaging behavior or anything
     that he might otherwise not be able to explain.

           Nevertheless, [Appellant’s] claim that he does not
     remember making a statement is not sufficient to defeat its
     admissibility.  At the time of questioning, [Appellant] was
     coherent and gave appropriately responsive answers; the fact
     that the substance of the answers he gave was damaging to his
     case does not mean that the statement was involuntary or


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      inadmissible. Ultimately, that is the sum and substance of
      [Appellant’s] argument: the statement is damaging therefore it
      should not have been admitted.          All credible evidence
      demonstrates that [Appellant] knowingly, voluntarily and
      intelligently waived his Miranda rights, and, as a result, the
      statement was admissible. This [c]ourt was well within its
      discretion in denying [Appellant’s] suppression and post-trial
      motions in this regard.

1925(a) Opinion, pp. 9-10 (record citations omitted).

      The suppression court’s factual findings are supported by the record

and its legal conclusions drawn from those facts are correct.        Therefore,

Appellant’s suppression claim fails.

   D. The Sentencing Claim

      Finally, Appellant claims the trial court illegally sentenced him to serve

a life sentence without parole.    See Appellant’s Brief, pp. 30-35.         He is

incorrect.

      This Court’s scope and standard of review for illegal sentence claims is

as follows:

      The scope and standard of review applied to determine the
      legality of a sentence are well established. If no statutory
      authorization exists for a particular sentence, that sentence is
      illegal and subject to correction. An illegal sentence must be
      vacated. In evaluating a trial court’s application of a statute, our
      standard of review is plenary and is limited to determining
      whether the trial court committed an error of law.

Commonwealth v. Leverette, 911 A.2d 998, 1001-1002 (Pa.Super.2006)

(internal citations omitted).




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      Pennsylvania’s Crimes Code provides, in pertinent part:

      § 1102. Sentence for murder, murder of unborn child and
      murder of law enforcement officer

      (a) First degree.--

         (1) Except as provided under section 1102.1 (relating to
         sentence of persons under the age of 18 for murder,
         murder of an unborn child and murder of a law
         enforcement officer), a person who has been convicted of
         a murder of the first degree or of murder of a law
         enforcement officer of the first degree shall be sentenced
         to death or to a term of life imprisonment in accordance
         with 42 Pa.C.S. § 9711 (relating to sentencing procedure
         for murder of the first degree).

18 Pa.C.S. § 1102(a)(1).     Additionally, Pennsylvania’s Prisons and Parole

Code provides:

      § 6137. Parole power

      (a) General criteria for parole.--

      (1) The board may parole subject to consideration of guidelines
      established under 42 Pa.C.S. § 2154.5 (relating to adoption of
      guidelines for parole) and may release on parole any inmate to
      whom the power to parole is granted to the board by this
      chapter, except an inmate condemned to death or serving
      life imprisonment, whenever . . .

61   Pa.C.S.   §   6137   (emphasis    provided).   Further,    our   case   law

“unequivocally bars all parole for first degree murderers whether the

sentence is life or death.” Commonwealth v. Yount, 615 A.2d 1316, 1320

(Pa.Super.1992).

      Clearly, the trial court had the authority to impose the sentence it did.

Based on the above law, Appellant’s claim that the trial court lacked the



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authority to sentence Appellant to life imprisonment without parole is

without merit and borders on frivolous.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2015




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