J-A05023-18 & J-A05024-18

                                   2018 PA Super 55

 COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
 AARON FITZPATRICK                             :
                                               :
                      Appellant                :   No. 2636 EDA 2015

          Appeal from the Judgment of Sentence August 14, 2015
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0004733-2012


 COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
 AARON FITZPATRICK                             :
                                               :
                      Appellant                :   No. 1407 EDA 2016


           Appeal from the Judgment of Sentence April 21, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0004733-2012


BEFORE:      DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.

OPINION BY MURRAY, J.:                                  FILED MARCH 14, 2018

       Aaron Fitzpatrick (Appellant) appeals, at docket 2636 EDA 2015, from

the judgment of sentence entered on August 14, 2015, after a jury convicted


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* Former Justice specially assigned to the Superior Court.
J-A05023-18 & J-A05024-18



him of murder of the first degree, murder of the third degree of an unborn

child,1 and other offenses. Appellant additionally appeals, at 1407 EDA 2016,

from the judgment of sentence entered on April 21, 2016, following the trial

court’s sua sponte modification of Appellant’s sentence for murder of the third

degree of an unborn child.         Upon careful review, we dismiss as moot the

appeal docketed at 2636 EDA 2015, and affirm the judgment of sentence at

1407 EDA 2016.

        The trial court stated:

           The evidence adduced at trial established that on February 16,
        2012, at or about 2:25 am, the decedent, Tiffany Gillespie, was
        found in the basement of the residence located at 2327 Mildred
        Street. She was pronounced dead on the scene. The cause of
        death was a gunshot wound to her head.

           When detectives arrived at the residence, they found a cellular
        phone near the decedent. Detective John Keen looked through
        the phone and found one number consistently showing in the
        phone’s call log. Detective Keen radioed back to his superiors and
        requested that someone be assigned to pull the phone information
        for both the phone number in the call log and the phone which
        was in his possession. Shortly thereafter, Detective Keen was
        given the results of the search into the subscriber of the phone in
        the call log; [Appellant] was the owner of the cellular phone
        number within the call logs of the phone Detective Keen had
        secured.

Trial Court Opinion, 2/6/17, at 2 (citations to notes of testimony omitted).

        As discussed in further detail infra, Appellant subsequently provided

two signed statements to the police, admitting that he shot the decedent.



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1   18 Pa.C.S.A. §§ 2502(a), 2604(c)(1).

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       Appellant was charged with murder, murder of an unborn child, and

related offenses. Appellant filed a motion to suppress both of his statements

to police, and the trial court conducted a hearing on August 4, 2015. The trial

court explained:

       [Appellant’s] basis for the motion was: (1) that [Appellant] was
       not given proper Miranda[2] warnings and (2) that [Appellant’s]
       statement[s] were the product of improper influences or exertions
       by the interrogating detectives. These “influences” allegedly
       included both promises and force exerted by the interrogating
       detectives, specifically Detective Dove. By way of background,
       between the preliminary hearing and [suppression] hearing,
       Detective Dove [was] removed from his position for improprieties
       he engaged in by covering up a murder allegedly committed by a
       paramour. Although subpoenaed, under the advice of [his]
       counsel, [Detective Dove] asserted his Fifth Amendment right
       against self-incrimination.      Detective Harkins was the other
       detective who sat in on both interviews with [Appellant], as noted
       on the face of both interviews. Detective Harkins and [Appellant]
       testified at the motion hearing regarding the interviews and the
       statements. Before Mr. Dove asserted his Fifth Amendment right,
       [Appellant] intended to call Mr. Dove to question him about
       several collateral improprieties that he had engaged in while a
       detective in an effort to cast doubt on the weight and/or legitimacy
       of the interviews.

           Detective Harkins testified that at or near 9:30 am of the date
       of the murder, he and fellow detectives were on the 600 block of
       Emily Street to execute a search warrant on [Appellant’s] mother’s
       home. While there, Detective Keen spoke with [Appellant’s]
       mother. She stated that [Appellant] was on his way to the First
       Police District. Detective Keen called the First Police District to
       inform them that [Appellant] may be arriving there and that he
       should be notified if and when [Appellant] arrived.           When
       [Appellant] arrived, Detective Keen requested that uniformed
       officers transfer [Appellant] to the Homicide Unit. Detectives
       Dove and Harkins were at a diner “grabbing a meal” when they
       were informed that [Appellant] had arrived at the Homicide Unit.
____________________________________________


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

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J-A05023-18 & J-A05024-18


     Both detectives went to the Homicide Unit to meet up with and
     interview [Appellant] when he arrived.

        When both detectives arrived, they saw [Appellant] sitting on
     a bench in the waiting area. [Appellant] was not in handcuffs
     when they arrived. They escorted [Appellant] into the secure area
     of the Homicide Unit and took him to their Lieutenant’s office for
     the purpose of an interview. After obtaining some biographical
     information from [Appellant], Detective Dove, in Detective
     Harkins’ presence, presented [Appellant] with a 75-331 form
     which stated [Appellant’s] Miranda warnings and which informed
     him that the purpose of the interview was to question [Appellant]
     about the murder of decedent. If [Appellant] was willing to waive
     his panoply of rights, Detective Dove instructed him to sign the
     form; [Appellant] did so. At all times throughout both interviews,
     Detective Dove asked questions and recorded [Appellant’s]
     answers. This interview and subsequent interview documented
     that both Detectives Dove and Harkins were present and
     conducting the questioning.

        The Miranda warnings were presented to and executed by
     [Appellant] at 11:50am.         [Appellant’s] first interview was
     memorialized starting at 1:14 pm and ending at about 2:25 pm.
     During that gap of over an hour, Detective Harkins testified that
     he was present with Detective Dove during the interview and that
     [Appellant’s] responses to informal questioning were general
     denials about his involvement. By 1:14 pm, [Appellant] admitted
     to the killing; he claimed that the weapon had been tossed into a
     sewer . . . and that he had incinerated the clothes he wore that
     night. Using Google Maps, [Appellant] showed both detectives the
     corner at which he allegedly tossed the weapon. Detective
     Harkins exited the Lieutenant’s office for a short period of time to
     inform Detective Keen of [Appellant’s] statement [as to the
     location of the gun].        Detective Harkins returned to the
     Lieutenant’s office and sat in on the remainder of the interview.
     When [Appellant] adopted the interview, he signed the first two
     pages of the complete interview and printed his name on the
     remaining pages. At the conclusion of the interview, [Appellant]
     was moved from the Lieutenant’s office to Interview Room B and
     was left by himself.

        Detective Keen called another detective . . . and requested that
     he check the sewer for the weapon. When the weapon was not
     found, Detective Keen informed Detectives Dove and Harkins.
     Detectives Dove and Harkins initiated a second interview which

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J-A05023-18 & J-A05024-18


        began at 2:58 pm and concluded at 3:30 pm. [The d]etectives
        questioned [Appellant] about the truthfulness of his first recorded
        interview. [Appellant] admitted that he had not been fully
        truthful; he informed the detectives that the weapon and clothes
        were at 2012 South Eighth Street. He informed them exactly
        where the items could be found. Upon execution of a search
        warrant, both the gun and clothes were found exactly where
        [Appellant] stated the items would be located.

           [Appellant] testified at the motion hearing. [He] denied that
        the signature on the first two pages of the first interview record
        were his . . . [but] did admit that he had signed the last page . . .
        but only because Detective Dove told him to. [Appellant] also
        stated that Detective Harkins had never been in the interview
        room at all and that he only saw Detective Harkins standing
        outside the Lieutenant’s office. [Appellant] stated that Detective
        Dove threatened him . . . that if he did not sign the document, “it”
        would be over for him. [Appellant] also stated that Detective Dove
        used physical force and, in so doing, knocked out [Appellant’s]
        front tooth.

                                       *       *   *

          Based on credibility, this court found that the Commonwealth
        had met its burden and denied [Appellant’s] motion to suppress.

Trial Court Opinion, 2/6/17, at 5-8 (citations to notes of testimony omitted).

        Subsequently, at the conclusion of trial on August 14, 2015, the jury

found Appellant guilty of first degree murder, third degree murder of an

unborn child, carrying a firearm without a license,3 and possessing an

instrument of crime.4 That same day, the trial court sentenced Appellant to,

inter alia, life imprisonment for the first-degree murder conviction. The court

also imposed a concurrent term of life imprisonment for third-degree murder

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3   18 Pa.C.S.A. § 6106(a)(1).

4   18 Pa.C.S.A. § 907(a).



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J-A05023-18 & J-A05024-18



of an unborn child, noting that the law required a mandatory life sentence

because Appellant also had, in this case, another murder conviction.5 N.T.,

8/14/15, at 9; see 42 Pa.C.S.A. § 9715(a) (generally, any person convicted

of murder of the third degree who has previously been convicted at any time

of murder shall be sentenced to life imprisonment).

       Appellant did not file a post-sentence motion, but on August 20, 2015,

filed a timely notice of appeal, docketed in this Court at 2636 EDA 2015. On

April 21, 2016, while Appellant’s appeal was pending, the trial court sua

sponte modified his sentence for the third degree murder of an unborn child

conviction; the court vacated the term of life imprisonment and imposed 20

to 40 years’ imprisonment, to run concurrently with the life sentence for first-

degree murder.       Although the trial court did not provide a reason for this

modification, we note that on October 5, 2015, this Court issued a decision in

Commonwealth v. Haynes, 125 A.3d 800 (Pa. Super 2015), holding that

third-degree murder of an unborn child did not trigger a mandatory life

sentence under 42 Pa.C.S.A. § 9715(a). Id. at 804-06.

       On May 10, 2016, Appellant filed an appeal, docketed at 1407 EDA 2016,

from the April 21, 2016 resentencing order. The trial court directed Appellant

to file a Pa.R.A.P. 1925 concise statement of errors complained of on appeal,

and Appellant complied.             In this Court, Appellant, as well as the

____________________________________________


5 The trial court additionally imposed concurrent sentences of 3½ to 7 years’
imprisonment for carrying a firearm without a license and 2½ to 5 years for
possessing an instrument of crime.

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J-A05023-18 & J-A05024-18



Commonwealth, have filed identical briefs at both dockets.

      In both appeals, Appellant raises the following issues for our review:

      [1.] Whether the court abused its discretion when it denied
      [A]ppellant’s motion to suppress his two written statements when
      he testified at the motion’s hearing that the Homicide Detectives
      threatened, physically abused and coerced him to make the
      alleged statements all in violation of his 5th and 14th Amendment
      rights under both the United States and Pennsylvania
      Constitutions.

      [2.] Whether the verdict was against the sufficiency of the
      evidence to prove [A]ppellant guilty beyond a reasonable doubt.

Appellant’s Brief at 6.

      Preliminarily, we note that the trial court lacked jurisdiction to modify

its original sentencing order. See 42 Pa.C.S.A. § 5505 (court, upon notice to

the parties may modify or rescind any order within 30 days after its entry “if

no appeal from such order has been taken or allowed”). Nonetheless, our

Supreme Court has held that Section 5505 does not impinge on a trial court’s

inherent power to correct patent errors despite the lack of traditional

jurisdiction. Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa. 2007). In

Holmes, our Supreme Court approved of the trial court’s sua sponte

correction of an illegal sentence despite the fact that the defendant had

already taken an appeal. Id. at 66.

      As stated above, after Appellant took a timely appeal from his August

14, 2015 judgment of sentence, this Court decided Haynes, a decision which

would have applied to Appellant’s appeal and rendered illegal his term of life

imprisonment for third degree murder of an unborn child. See In re Cain,

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J-A05023-18 & J-A05024-18


590 A.2d 291, 292 (Pa. 1991) (“An issue can become moot during the

pendency of an appeal due to . . . an intervening change in the applicable

law.”); Haynes, 125 A.3d at 804-06. Accordingly, pursuant to Holmes, we

hold that the trial court did not err in sua sponte modifying Appellant’s

sentence for third degree murder of an unborn child to comply with Haynes.

See Holmes, 933 A.3d at 66. We thus dismiss as moot the appeal docketed

at 2636 EDA 2015, and proceed to the merits of the appeal at 1407 EDA 2016.

       Appellant first argues that the trial court erred in denying his motion to

suppress the two written statements he made to police, claiming that his

statements were involuntary. Appellant’s Brief at 12. Specifically, Appellant

cites his testimony at the suppression hearing that “he was coerced, physically

abuse [sic] and threated [sic] by Detective Dove,” and he was “punched in

the mouth losing a tooth.” Id. (citations to notes of testimony omitted).

       We note our standard of review when addressing a challenge to the

denial of a suppression motion:

       We may consider only the Commonwealth’s evidence and so much
       of the evidence for the defense as remains uncontradicted when
       read in the context of the record as a whole.[6] Where the record
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6 We recognize that a majority of our Supreme Court held that, in the absence
of exceptional circumstances, we limit the scope of appellate review for
suppression denials to the suppression record, rather than the record as a
whole. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013). However, a plurality of
the Supreme Court joined Justice Baer’s conclusion that the new rule of law
should apply prospectively to “all litigation commenced Commonwealth-wide
after [October 30, 2013].” This Court has comprehensively addressed the
issue of prospective application and has adopted the plurality rationale set



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J-A05023-18 & J-A05024-18


       supports the factual findings of the trial court, we are bound by
       those facts and may reverse only if the legal conclusions drawn
       therefrom are in error. An appellate court, of course, is not bound
       by the suppression court’s conclusions of law.

Commonwealth v. Arter, 151 A.3d 149, 153 (Pa. 2016) (citation omitted).

“[I]t is the sole province of the suppression court to weigh the credibility of

witnesses,” and “the suppression court judge ‘is entitled to believe all, part or

none of the evidence presented.’”          Commonwealth v. Blasioli, 685 A.2d

151, 157 (Pa. Super. 1996), affirmed, 713 A.2d 1117 (Pa. 1998).

       “It is well-established that when a defendant alleges that his confession

was involuntary, the inquiry becomes not whether the defendant would have

confessed without interrogation, but whether the interrogation was so

manipulative or coercive that it deprived the defendant of his ability to make

a free and unconstrained decision to confess.”             Commonwealth v.

Yandamuri, 159 A.3d 503, 525 (Pa. 2017) (internal citations omitted).

Voluntariness is the touchstone inquiry when deciding a motion to suppress a

confession, and voluntariness is determined upon review of the totality of the

circumstances. Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998).

In assessing the totality of the circumstances, the suppression court should

consider:    “the duration and means of the interrogation; the defendant’s


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forth in L.J. Commonwealth v. Eichler, 133 A.3d 775, 778-780 (Pa. Super.
2016), appeal denied, 161 A.3d 791 (Pa. 2016). Accordingly, as the instant
matter commenced prior to the Supreme Court’s issuance of L.J., our scope
of review includes both the suppression record and the trial record. See id.
at 780.

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J-A05023-18 & J-A05024-18


physical and psychological state; the conditions attendant to the detention;

the attitude exhibited by the police during the interrogation; and all other

factors that could drain a person’s ability to resist suggestion and coercion.”

Yandamuri, 159 A.3d at 525.

      Here, the trial court expressly credited Detective Harkins’ testimony

regarding the voluntariness of Appellant’s statements. N.T., 8/4/15, at 142

(“[T]his is a credibility call [and] I think that when I just balance the credibility

issues here, I find that the Commonwealth has met its burden . . . ”). After

review of the record as a whole, we conclude that the trial court did not err in

denying Appellant’s motion to suppress his two written statements. At the

suppression hearing, Detective Harkins testified that Appellant received

Miranda warnings and was cooperative with the investigation.             Id. at 14.

Detective Harkins also testified that neither he nor Detective Dove touched

Appellant at any time during the investigation, nor did they promise anything

to him in exchange for his testimony. N.T., 8/7/15, at 49; N.T., 8/4/15, at

14-15.    Contrary to Appellant’s claim at the suppression hearing, both

Detective Harkins’ testimony and documentation of the interview indicated

that Detective Harkins was present during the interviews.           The trial court

explicitly credited Detective Harkins’ testimony and discredited Appellant’s

claims to the contrary. See Trial Court Opinion at 9 (“[t]his court finds the

testimony of Detective Harkins credible”).          We may not, as Appellant’s

argument would require, supplant the trial court’s credibility findings.


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J-A05023-18 & J-A05024-18


Consequently, we hold that the trial court properly denied Appellant’s

suppression motion.

         In his second issue, Appellant purports to challenge the sufficiency of

the evidence supporting his convictions. Specifically, he contends: “If the

Superior Court rules that [A]ppellant’s statements were involuntary then the

verdict is against the sufficiency of the evidence.”     Appellant’s Brief at 10

(emphasis added). In making his conditional argument, Appellant concedes

that “[a]s it stands, from the trial the evidence is sufficient based on all

inferences in favor of the verdict winner.” Id. at 13.

         The Commonwealth responds that Appellant’s argument does not

present a proper sufficiency claim, where the sufficiency of the evidence is not

assessed on a diminished record, but rather on all the evidence presented at

trial.   Commonwealth’s Brief at 13, citing Commonwealth v. Smith, 568

A.2d 600, 603 (Pa. 1989) (in assessing the sufficiency of evidence, we are

called upon to consider all of the testimony presented during trial, without

consideration as to the admissibility of that evidence). We agree. Appellant

concedes that there was sufficient evidence to support his convictions.

Accordingly, we find no merit to Appellant’s claim.

         Appeal at 2636 EDA 2015 is dismissed as moot.

         Judgment of sentence at 1407 EDA 2016 affirmed.




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J-A05023-18 & J-A05024-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/14/18




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