J-S85003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

INDIA SPELLMAN

                        Appellant                      No. 3781 EDA 2015


           Appeal from the Judgment of Sentence May 30, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0001160-2011
                                       CP-51-CR-0001161-2011


BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                        FILED JANUARY 09, 2017

      Appellant, India Spellman, appeals nunc pro tunc from the judgment

of sentence entered after a jury found her guilty of, among others, second

degree murder, robbery, conspiracy, and violations of the Uniform Firearms

Act. Spellman argues that the trial court erred in finding that her confession

to investigators was admissible, and in failing to declare a mistrial when a

Commonwealth witness unexpectedly testified to an in-court identification of

Spellman. After careful review, we affirm.

      At trial, the Commonwealth presented the testimony of Spellman’s co-

defendant, Von Combs. Combs, 14 years old at the time in question,

testified that he and Spellman, who was then 17, were walking through the

neighborhood    when    they   encountered   Shirley    Phillips.   As   the   two
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approached Phillips, Combs testified that Spellman announced that she

intended to rob Phillips.

      According to Combs, Spellman pointed a gun at Phillips and demanded

she surrender her property. Phillips dropped her belongings and fled down

the street. Spellman and Combs gathered Phillips’s property and quickly

departed the scene of the crime.

      Shortly   thereafter,   the   two   resumed   their   prowl   through   the

neighborhood. As they walked, they approached George Greaves, who was

standing in his driveway. Combs testified that once again, Spellman

announced her intent to rob Greaves before committing the crime. Combs

claimed that he had attempted to talk Spellman out of the crime, but that

she proceeded to rob Greaves anyway. During the robbery, Greaves

struggled with Spellman, and Spellman placed her gun against Greaves’s

chest and shot him. Greaves did not survive the shooting.

      The Commonwealth also presented the testimony of Kathy Mathis.

During direct examination, Mathis positively identified Spellman as the

young woman she observed fleeing from the scene of Greaves’s murder. She

had never made a positive identification of Spellman prior to her in-court

testimony.

      Furthermore,    the     Commonwealth    presented     Spellman’s    signed

confession to the above crimes. Prior to trial, Spellman attempted to have

the confession suppressed, but the trial court had denied the motion.


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      As noted above, the jury convicted Spellman of second-degree

murder, two counts of robbery, and other associated charges. The trial court

imposed an aggregate sentence of imprisonment of 30 years to life. No

direct appeal was filed.

      Spellman’s direct appeal rights were restored through the Post

Conviction Relief Act. However, her right to file post-sentence motions was

not restored. This nunc pro tunc appeal followed.

      Spellman raises two issues on appeal. First, she argues that the trial

court erred in denying her motion to suppress her confession.

       Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is limited to determining
      whether the factual findings are supported by the record and
      whether the legal conclusions drawn from those facts are
      correct.

      [W]e may consider only the evidence of the prosecution 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
      record supports the findings of the suppression court, we are
      bound by those facts and may reverse only if the court erred in
      reaching its legal conclusions based upon the facts.

      Further, [i]t is within the suppression court’s sole province as
      factfinder to pass on the credibility of witnesses and the weight
      to be given their testimony.

Commonwealth v. Houck, 102 A.3d 443, 455 (Pa. Super. 2014) (internal

citations and quotations omitted; first brackets in original, second brackets

supplied).

      Spellman contends that her confession was not voluntary. Specifically,

she argues that, given a subsequent history of suppressed confessions

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procured by detectives involved in this case, the trial court’s conclusion that

Spellman was permitted to consult with her father is unsupportable.

However, evidence of the detectives’ objectionable actions in other cases is

not part of the certified record in this case. We therefore cannot consider it

in resolving Spellman’s argument on appeal. See Roth Cash Register

Company, Inc. v. Micro Systems, Inc., 868 A.2d 1222, 1223 (Pa. Super.

2005).1

       In determining the admissibility of a juvenile’s confession, a court

must consider and weigh all the attending facts and circumstances

surrounding the confession. See Commonwealth v. Carter, 855 A.2d 885,

890 (Pa. Super. 2004). Among the relevant circumstances are the juvenile’s

“youth, experience, comprehension, and the presence or absence of an

interested adult[,]” as well as the manner, location, and duration of the

questioning that led to the confession. Id. (citation omitted).

       The presence of an interested adult is but one factor among many

when reviewing the circumstances surrounding a juvenile’s confession. See

id. The Supreme Court of Pennsylvania has “reject[ed] the application of a

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1
  Spellman cites to three cases from the Court of Common Pleas. Arguably,
these decisions are subject to judicial notice. However, to determine the
relevance of those cases to the present case, we must assess the credibility
and weight of evidence in this case and the effect those cases have on the
circumstances of this case. For these reasons, and given our standard of
review, we find the mechanism of judicial notice inappropriate in reviewing
this issue on direct appeal.



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rebuttable presumption that a juvenile is incompetent to waive his

constitutional rights without first having an opportunity to consult with an

interested [adult].”   Commonwealth v. Williams, 475 A.2d 1283, 1287

(Pa. 1984).

      The trial court found credible the detective’s testimony that he had

discussed the situation with Spellman and her father before interrogating

her. See N.T., Suppression Hearing, 2/13/13, at 42. The detective also

testified, and the trial court also found this testimony credible, that neither

Spellman nor her father ever requested the presence of an attorney. See id.

These findings are supported by the record, and do not constitute an abuse

of discretion. They are therefore sufficient to overcome Spellman’s argument

on appeal.

      Next, Spellman contends that the trial court erred in refusing to

declare a mistrial when Mathis testified, for the first time, that Spellman was

the person who shot Greaves. Mathis was a neighbor of Greaves, and

testified that she was in her house when she heard gunshots. See N.T.,

Trial, 2/13/13, at 23-24. She ran outside to check on her grandson, and saw

a young man and young woman running away. See id., at 24. At trial, the

prosecutor asked if the young woman Mathis saw fleeing the scene of the

crime was in court. See id., at 27. She affirmatively responded and pointed

to Spellman. See id.




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      Spellman argues that this identification constituted trial by ambush. It

is true that trial by ambush is disfavored in this Commonwealth. See

Commonwealth v. Thiel, 470 A.2d 145, 149 (Pa. Super. 1983). However,

Spellman has failed to establish that Mathis’s identification testimony was an

ambush.

      Spellman premises her argument on an allegation of prosecutorial

misconduct. See Appellant’s Brief, at 15.

      The phrase “prosecutorial misconduct” has been so abused as to
      lose any particular meaning. The claim either sounds in a specific
      constitutional provision that the prosecutor allegedly violated or,
      more frequently, like most trial issues, it implicates the narrow
      review available under Fourteenth Amendment due process. See
      Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 97 L.Ed.2d
      618 (1987) (“To constitute a due process violation, the
      prosecutorial misconduct must be of sufficient significance to
      result in the denial of the defendant’s right to a fair trial.”)
      (internal    quotation     marks     omitted);     Donnelly      v.
      DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d
      431 (1974) (“When specific guarantees of the Bill of Rights are
      involved, this Court has taken special care to assure that
      prosecutorial conduct in no way impermissibly infringes them.”).
      However, “[t]he Due Process Clause is not a code of ethics for
      prosecutors; its concern is with the manner in which persons are
      deprived of their liberty.” Mabry v. Johnson, 467 U.S. 504,
      511, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). The touchstone is
      the fairness of the trial, not the culpability of the prosecutor.
      Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d
      78 (1982).

Commonwealth v. Tedford, 960 A.2d 1, 28-29 (Pa. 2008).

      Spellman’s claim is not based upon a constitutional provision. Rather,

she argues that she did not receive a fair trial because the prosecutor

violated the discovery rules contained in the Rules of Criminal Procedure.


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          While we share Spellman’s skepticism of the prosecutor’s claim that he

was unaware of what Mathis’s answer would be when he asked her if the

fleeing woman was in the courtroom, this skepticism is insufficient to provide

relief on appeal. Spellman does not contest that Mathis was identified as an

eyewitness in several police reports that were provided to Spellman during

discovery. Mathis was therefore not a new witness under Pa.R.Crim.P.

573(D). See Commonwealth v. Honesty, 850 A.2d 1283, 1287 n.2 (Pa.

Super. 2004).

          Nor is there any evidence in the certified record that Mathis

participated in a pre-trial procedure to identify Spellman. Indeed, Spellman

conceded that she had cancelled a scheduled pre-trial line-up for Mathis.

See N.T., Trial, 2/14/13, at 28. This line-up was never rescheduled. See id.,

at 28-29. Thus, Spellman was given an opportunity to discover Mathis’s

identification testimony prior to trial. Under these circumstances, we simply

cannot conclude that the Commonwealth violated Pa.R.Crim.P. 573(B)(1)(d).

          As we cannot conclude that the prosecutor violated any Rule of

Criminal Procedure, Spellman has failed to establish that she was denied a

fair trial on this ground. Her second issue on appeal therefore merits no

relief.

          Judgment of sentence affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/2017




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