Com. v. Smith, G. (memorandum)

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J-S13024-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. GERALD SMITH Appellant No. 2660 EDA 2015 Appeal from the Judgment of Sentence March 4, 2008 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0312371-2006 BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.* MEMORANDUM BY LAZARUS, J.: FILED APRIL 13, 2017 Gerald Smith appeals nunc pro tunc from the judgment of sentence, entered in the Court of Common Pleas of Philadelphia County, following his conviction for third-degree murder,1 possessing an instrument of crime (PIC),2 and recklessly endangering another person (REAP).3 Upon review, we affirm on the basis of the opinion authored by the Honorable Steven R. Geroff. ____________________________________________ * Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. § 2502(c). 2 18 Pa.C.S. § 907. 3 18 Pa.C.S. § 2705. J-S13024-17 The trial court summarized the relevant facts and procedural history of this matter as follows: On November 26, 2007, following a jury trial before Judge Carolyn Engel Temin, [(now retired)], [Smith] was found guilty of murder of the third degree, [PIC], and [REAP]. On March 4, 2008, [Smith] was sentenced to [9½ to 20] years[’] incarceration for the offense of murder of the third degree and a consecutive prison term of [1 to 2] years[’ incarceration] for the offense of REAP. No further penalty was imposed on the [PIC] conviction. At trial, [Smith] was represented by Brian McMonagle, Esquire. No direct appeal was filed on [Smith’s] behalf. On February 17, 2009, [Smith] filed a timely pro se petition under the Post[-]Conviction Relief Act (“PCRA”), 42 Pa.C.S. §[§] 9541 et seq., in which he alleged ineffective assistance of his trial counsel for failure to appeal [his] convictions. Attorney James Bruno was subsequently appointed to represent [Smith] in the PCRA proceedings. On February 3, 2011, the trial court gave an instruction to Mr. Bruno to obtain from [Smith] a statement explaining whether he had requested his trial attorney to take an appeal. On or about December 7, 2011, Mr. Bruno filed an affidavit [] on [Smith’s] behalf[, which indicated a desire on Smith’s part to file an appeal but did not include an indication of a direct request for an appeal]. On December 9, 2011, the court issued [n]otice under [Pa.R.Crim.P.] 907[,] notifying [Smith] of its intention to dismiss his PCRA [p]etition for the reason that the issues he raised in the [p]etition were without merit. On January 23, 2012, the court dismissed [Smith’s] [p]etition. [Smith] timely appealed; however, Mr. Bruno failed to comply with the court’s February 23, 2012 order to provide the court with a [c]oncise [s]tatement of [m]atters [c]omplained of on [a]ppeal pursuant to Pennsylvania rule of Appellate Procedure[] 1925(b). In addition, Mr. Bruno neglected to file a brief on [Smith’s] behalf; this neglect resulted in the matter being remanded to the PCRA court to determine whether or not counsel had abandoned [Smith]. The appeal was reinstated on July 31, 2012, after counsel belatedly filed the brief. On April 5, 2012, Judge Temin issued an opinion in this matter[, denying -2- J-S13024-17 the petition because the affidavit did not aver that Smith requested counsel to file an appeal]. On March 22, 2013, following a temporary suspension from the practice of law, Mr. Bruno requested the Superior Court’s permission to withdraw from the case. He also petitioned the Court to have the case remanded to the PCRA court for the appointment of [] new counsel. The petition was granted on April 10, 2013. Thereafter, Janis Smarro, Esquire, was appointed as [Smith’s] new counsel. On May 20, 2013, Attorney Smarro filed an “Application to Vacate Briefing Order and for Remand to Trial Court with Leave to File a Concise Statement of Errors Complained of on Appeal and for the Trial Court’s Preparation of a Supplemental Pa.R.A.P. 1925(a) Opinion” on [Smith’s] behalf. On June 7, 2013, the Superior Court granted the Application to Vacate. The Superior Court issued an [o]rder remanding the Application to Vacate and the certified record to the PCRA court for a period of 60 days, permitting [Smith] to file a new Rule 1925(b) statement with the PCRA court and instructing the PCRA court to prepare a supplemental opinion pursuant to Rule 1925(a) within thirty days of the date the 1925(b) statement was received. On June 11, 2013, [Smith] filed a 1925(b) [c]oncise [s]tatement of [e]rrors [c]omplained of on [a]ppeal. In the 1925(b) [s]tatement, [Smith claimed that his trial counsel was ineffective for failure to protect [his] appellate rights by filing a [n]otice of [a]ppeal as requested by [Smith]. [Smith] argued that he was entitled to post-conviction relief in the form of the grant of leave to file a [n]otice of [a]ppeal nunc pro tunc. On June 18, 2014, Natasha L. Lowe, Trial Division/Appeal Unit Supervisor, sent a letter addressed to Joseph D. Seletyn, Esq[uire], Prothonotary of the Superior Court of Pennsylvania, in which she noted that no supplemental opinion would be filed in this matter because Carolyn E. Temin, the trial judge who presided over this case, was no longer sitting as a [j]udge in Philadelphia County. On February 9, 2015, the Superior Court issued a decision vacating the PCRA court’s order and remanding for an evidentiary hearing. The Superior Court concluded that the PCRA court erred in dismissing [Smith’s] PCRA [p]etition without -3- J-S13024-17 first conducting an evidentiary hearing; the Superior Court, therefore, relinquished its jurisdiction. On September 1, 2015, [Smith’s] motion to reinstate appellate rights nunc pro tunc was heard and granted. On September 2, 2015, [Smith], through his counsel, filed a [n]otice of [a]ppeal [n]unc [p]ro [t]unc. On Nobembver 3, 2015, [Smith’s] counsel field, sua sponte, a [c]oncise [s]tatement of [e]rrors [c]omplained of on [a]ppeal pursuant to Pa.R.A.P. 1925(b). ... The evidence adduced at trial established . . . that on March 11, 2006, [Smith] committed murder of the third degree by firing a bullet into the head of the decedent, Lynette (“Net”) Logan, then six month[s’] pregnant with [Smith’s] child, at 906 North 41[st] Street in the City of Philadelphia. The decedent was killed with a .38 caliber Special Magnum five-shot chrome with black rubber grips, which, by [Smith’s] own admission, was the weapon from which the fatal shot was fired. The jury also found the evidence to be sufficient to support the guilty verdict on the charges of [PIC] and [REAP].4 Trial Court Opinion, 8/22/16, at 1-5 (citations omitted). On appeal, Smith raises the following questions for our review: 1. Is [Smith] entitled to the grant of a new trial since the trial court erred when it denied his pretrial motion to suppress his statement[s]? 2. Is [Smith] entitled to an arrest of judgment with regard to his convictions for third-degree murder, [REAP] and [PIC,] since the evidence is insufficient to sustain these convictions as the Commonwealth failed to prove [Smith’s] guilt of these crimes beyond a reasonable doubt? ____________________________________________ 4 The trial court’s Rule 1925(a) opinion details the specific testimony of the individuals who testified at trial, which detail we will not recite here. See Trial Court Opinion, 8/22/16, at 5-19. -4- J-S13024-17 3. Is [Smith] entitled to a new trial as a result of the trial court’s ruling that precluded his attempt to introduce evidence concerning the victim’s prior suicide attempt?5 Brief for Appellant, at 4. In his first issue, Smith asserts that the trial court erred by denying his motion to suppress statement[s] he made in which he indicated that he fired the .38 caliber gun and caused the victim’s death during an attempt to take the gun from her. In addressing a challenge to the denial of a suppression motion, our review 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, we are bound by these findings and may reverse only if the court’s legal conclusions are erroneous. Commonwealth v. Hoppert, 39 A.3d 358, 361 (Pa. Super. 2012) (citation omitted). Prosecutors may not use statements stemming from the custodial interrogation of a defendant unless procedural safeguards are in place to secure the defendant’s privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444 (1966). However, voluntary statements are not ____________________________________________ 5 Smith’s claims on appeal have been renumbered for ease of disposition. -5- J-S13024-17 barred from admission by Miranda in criminal prosecutions. Commonwealth v. Wiggins, 371 A.2d 207, 211 (Pa. 1977). In this matter, at the time Smith first made statements to police, he was being questioned as a witness rather than a suspect. The detective testified that she believed the incident to be a suicide6 rather than a homicide at that point and conducted her interview of Smith accordingly. Thus, the police did not consider Smith to be in custody and did not read him Miranda rights. Smith was not handcuffed or otherwise restrained. Thereafter, when asked if there was anything Smith would like to tell police, he responded affirmatively; he was Mirandized and indicated he wished to proceed without an attorney before making incriminating statements. Accordingly, the court’s finding that Smith was free to leave is supported by the record. Hoppert, supra. Moreover, Smith states in his brief that he was Mirandized and made voluntary statements afterward. Brief for Appellant, at 17. Judge Geroff’s opinion thoroughly analyzes this issue, and we affirm on the basis of his well-reasoned opinion. Next, Smith argues that the evidence was insufficient to convict him of third-degree murder, PIC, and REAP. In considering sufficiency of the evidence claims, we must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in the ____________________________________________ 6 The victim was in the bathtub, allegedly threatening to commit suicide. -6- J-S13024-17 light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. . . . Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail. Of course, the evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part or none of the evidence presented. Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc). The Commonwealth can satisfy its burden via wholly circumstantial evidence. Id. “Third[-]degree murder occurs when a person commits a killing which is neither intentional nor committed during the perpetration of a felony, but contains the requisite malice.” Commonwealth v. Morris, 958 A.2d 569, 576 (Pa. Super. 2008); 18 Pa.C.S. § 2502(c). Malice can be shown by “proving that a defendant used a dangerous weapon on a vital part of another’s body.” Commonwealth v. Clark, 411 A.2d 800, 802 (Pa. Super. 1979). A gun is clearly a dangerous weapon, and, here, it is undisputed that the victim died from a gunshot wound to the head. Smith confessed to firing the shot that killed the victim. As noted above, the trial court correctly denied Smith’s motion to suppress this evidence. Accordingly, sufficient evidence was presented to convict Smith of third-degree murder. Watley, supra. Judge Geroff thoroughly analyzes the sufficiency of Smith’s conviction, and we rely on his opinion in disposing of this issue. As to PIC, a person is guilty “if he possesses any instrument of crime with intent to employ it criminally.” 18 Pa.C.S. § 907. Criminal intent may -7- J-S13024-17 be inferred from the circumstances surrounding the possession of the instrument of crime. Commonwealth v. Andrews, 768 A.2d 309, 318 (Pa. 2001). Here, according to statements he made to police, Smith possessed a .38 caliber handgun, which killed the victim when it fired while in his possession. Accordingly, the requisite intent can be inferred from the situation, id., and sufficient evidence was presented to convict Smith of PIC. Watley, supra. Judge Geroff thoroughly analyzes this issue, and we rely on his opinion in disposing of this sufficiency claim. A person is guilty of REAP if he “recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.” 18 Pa.C.S. § 2705. Here, Smith and the victim were verbally fighting and Smith introduced a loaded gun into the altercation and ultimately fired it at the victim. Thus, the elements of REAP are satisfied. See Commonwealth v. Hopkins, 747 A.2d 910 (Pa. Super. 2000) (brandishing loaded firearm during commission of crime provides sufficient basis for factfinder to conclude that defendant proceeded with conscious disregard for the safety of others had present ability to inflict great bodily harm or death). Accordingly, sufficient evidence was produced to convict Smith of REAP, Watley, supra, and we rely upon the thorough analysis of Judge Geroff’s opinion to affirm Smith’s conviction. Finally, Smith asserts that the trial court erred by refusing to admit evidence of the victim’s prior suicide attempt. We note that our standard of review is one of deference, since “[t]he admissibility of evidence is solely -8- J-S13024-17 within the discretion of the trial court and will be reversed only if the trial court has abused its discretion.” Commonwealth v. Herb, 852 A.2d 356, 363 (Pa. Super. 2004). Instantly, the trial court permitted evidence of the victim’s previous suicide attempt to be admitted into the trial, but held that this would open the door to rebuttal evidence regarding the contentious relationship between Smith and the victim that may have affected her state of mind.7 See Pa.R.E. 404(a)(2)(B)(i) (evidence of alleged victim’s character trait admissible in criminal case; if such evidence admitted, prosecutor may offer rebuttal evidence). Accordingly, we do not find that the court abused its discretion, Herb, supra, and we rely upon Judge Geroff’s well-reasoned opinion in this regard. For the foregoing reasons, we affirm the judgment of sentence on the basis of the opinion of Judge Steven R. Geroff. The parties are instructed to attach a copy of the opinion dated August 22, 2016, in the event of further proceedings in this matter. Judgment of sentence affirmed. ____________________________________________ 7 Smith, however, chose not to introduce such evidence, and the Commonwealth therefore did not have an occasion to offer rebuttal evidence. Thus, we find no abuse of discretion. -9- J-S13024-17 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/13/2017 - 10 - Circulated 03/21/2017 03:28 PM

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