Com. v. Hughes, P.

• Court: Superior Court of Pennsylvania
• Decided: April 3, 2019
• Docket: 2853 EDA 2017
• Status: Unpublished

Opinion

J-S51009-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : PATRICK T. HUGHES, : : Appellant : No. 2853 EDA 2017

Appeal from the Judgment of Sentence February 28, 2017 In the Court of Common Pleas of Northampton County Criminal Division at No.: CP-48-CR-0001892-2015

BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED APRIL 03, 2019

Appellant, Patrick T. Hughes, appeals from the Judgment of Sentence

entered by the Northampton County Court of Common Pleas following his

convictions after a jury trial of First-Degree Murder and Criminal Conspiracy.1

Appellant raises thirteen issues on appeal, challenging, inter alia, the

sufficiency and weight of the evidence, the admission at trial of certain

evidence, the trial court’s denial of various pre-trial Motions, and the legality

of his mandatory sentence of life imprisonment without parole. After thorough

review, we affirm, adopting in part the trial court’s August 15, 2016 and

October 30, 2017 Opinions as our own.

On November 23, 2012, the narcotics division of the Easton Police

Department was involved in an ongoing investigation targeting the home of

____________________________________________

1 18 Pa.C.S. § 2502(a) and 18 Pa.C.S. § 903, respectively. J-S51009-18

Corey Reavis. That day, officers conducted a controlled purchase of heroin

from Appellant using a confidential informant. Police officers observed

Appellant leave Reavis’s home, walk to the informant, engage in a brief hand-

to-hand transaction, and return to Reavis’s home. When Appellant returned

to Reavis’s home, police observed Appellant interact with individuals on the

front porch, including Omar Robinson. Police took photographs of Appellant,

Robinson, and the transaction. Police also observed Robinson’s minivan

parked outside the residence.

Later that day, Appellant and Robinson shot and killed Ervin Holton

(“Victim”) in Easton.2 A witness who was driving near the scene called 911 to

report the shooting. She stated that, after hearing the gunshots, she saw two

individuals in dark clothing running toward a nearby minivan. The Victim died

from multiple gunshot wounds; ballistics evidence confirmed that there were

two shooters.

During the subsequent investigation, detectives from the Easton Police

Department obtained consistent surveillance video that showed two

individuals exit a minivan one block from the crime scene, walk towards the

location of the shooting, and shortly thereafter, run back towards the minivan

2 The Victim and Appellant were rival drug dealers and may have been in a dispute about Nicole Greene, a woman they both dated. N.T. Trial, 1/10/17, at 31-32.

-2- J-S51009-18

and drive away. Police officers also learned that Robinson’s girlfriend, Lisa

Doorley, owned the minivan.

When police officers located the minivan at Robinson’s home, which he

shared with Doorley, Robinson confirmed that only he and Doorley drive the

minivan, and that he did not allow anyone else to drive the minivan. Upon

confirming that he had been driving the minivan on the night of the murder,

Robinson started crying. Police searched the minivan with Doorley’s consent

and found gunshot residue on the steering wheel and the driver’s side interior

door handle.

Homicide detectives also learned that Appellant and Robinson had spent

much of the day together before the murder. Reavis confirmed that he had

been hanging out with Appellant and Robinson that day. Reavis admitted that

he had driven and dropped off the Victim at a store near the scene of the

murder shortly before Appellant and Robinson murdered him.

Also, cell phone records from Appellant and Robinson confirmed their

whereabouts in south Easton, where the shooting occurred, and their close

proximity to the area and each other when they placed the calls. The

eyewitness called 911 at 5:39 P.M., and the cell phone records showed that

Appellant and Robinson made numerous calls to Reavis before and after the

murder. All calls stopped at the precise time of the shooting, consistent with

the surveillance video.

-3- J-S51009-18

During the investigation, Appellant provided several different,

inconsistent, and unsubstantiated alibis to police investigators. After his

arrest, Appellant made several incriminating statements to fellow inmates (1)

regarding his motive for the murder, and (2) claiming that he and his men

were responsible for the murder. Relevant to this appeal, Appellant provided

two recorded statements to police after reading and waiving his Miranda3

rights: on December 5, 2012, and December 4, 2014.

Thereafter, the Commonwealth charged Appellant with Criminal

Homicide and Criminal Conspiracy. In October 2015, the trial court granted

the Commonwealth’s Motion to try Appellant and Robinson jointly.

Appellant filed numerous pre-trial motions, including a Motion to Sever

his trial from Robinson, a Motion to Suppress his statements to police, and a

Motion for Change of Venue. The trial court denied each of these relevant

motions.4

On August 16, 2016, the Commonwealth filed a Motion in Limine seeking

to introduce “prior bad acts” evidence pursuant to Pennsylvania Rule of

Evidence 404(b) of the drug transaction between the confidential informant

and Appellant earlier on the day of the murder. On November 14, 2016, the

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

4 The trial court did, however, grant Appellant’s Motion to Suppress a December 11, 2012 statement to police because there was no evidence the officers gave Miranda warnings to Appellant prior to questioning.

-4- J-S51009-18

trial court granted the Commonwealth’s Motion, concluding that the evidence

of the drug deal was relevant and admissible to show: (1) the motive of

Appellant and Robinson for the shooting; and (2) the complete story of the

case.5 The trial court also concluded that the probative value of the evidence

outweighed its potential for prejudice, particularly with the provision of

appropriate cautionary jury instructions. See Trial Court Opinion, 11/14/16,

at 2-7.

In January 2017, Appellant and Robinson proceeded to an eight-day jury

trial. The Commonwealth presented testimony from numerous witnesses,

including Reavis, Greene, the Northampton County coroner, numerous

detectives and police officers, and James Martin, Appellant’s cellmate.

Appellant and Robinson did not testify and presented no evidence.

On January 20, 2017, the jury convicted Appellant of First-Degree

Murder and Criminal Conspiracy.6

5At trial, the Commonwealth also argued that the motive for the shooting was a romantic rivalry between the Victim and Appellant. N.T. Trial, 1/10/17, at 31-32.

6 The jury also convicted Robinson of First-Degree Murder and Criminal Conspiracy, and the trial court sentenced him to life imprisonment without parole. Robinson also filed a direct appeal to this Court, which remains pending at docket No. 2790 EDA 2017.

-5- J-S51009-18

On February 28, 2017, the trial court sentenced Appellant to the

mandatory term of life imprisonment without parole.7 Appellant filed a timely

Post-Sentence Motion, which the trial court denied on August 4, 2017.

On August 31, 2017, Appellant filed a Notice of Appeal. Both Appellant

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

Appellant presents thirteen issues for our review:

1. Whether the evidence was sufficient to [sustain] a conviction of criminal homicide, criminal conspiracy to commit homicide where the Commonwealth failed to establish, beyond a reasonable doubt, the existence of a conspiratorial agreement, the specific intent of which was to commit criminal homicide, prior to the death of Ervin Holton?

2. Whether the evidence was sufficient to [sustain] a conviction of criminal homicide or criminal conspiracy to commit homicide where the Commonwealth conceded at trial that [Appellant] was not a shooter, and offered no evidence of his presence at the scene, when, a conviction of murder cannot stand without sufficient evidence of accomplice liability?

3. Whether the trial court erred in granting the Commonwealth’s motion in limine to present evidence of [Appellant’s] drug dealing and prior drug arrests under [Pa.R.E.] 404(b) by order and opinion on November 14, 2016?

4. Whether the trial court erred in admitting 911 tapes referencing a Honda Odyssey without affording the Appellant his right to cross-examination guaranteed and by the confrontation clause of the United States Constitution?

5. Whether this honorable court erred when it barred the defense from cross-examining James Martin on his status as a sex offender registrant?

718 Pa.C.S. § 1102(a). The trial court imposed a concurrent term of 20 to 40 years’ incarceration for the Criminal Conspiracy conviction.

-6- J-S51009-18

6. Whether this honorable court erred when it failed to grant Appellant’s request for a mistrial due to Nicole Green[e]’s testimony that Appellant was incarcerated during most of the time they dated?

7. Whether the verdict was against the weight of the evidence?

8. Whether the trial court erred over Appellant’s objection in denying Appellant’s motion for severance, failing to order separate trials, and determining that [] Appellant would not be prejudiced by being tried with his co-defendant Omar Robinson[?]

9. Whether the trial court erred in failing to grant Appellant’s motion for change of venue/venire where the pretrial publicity was sustained, pervasive, inflammatory, and inculpatory and there was a presumption of prejudice in selecting a fair and impartial jury from Northampton County?

10. Whether the trial court erred in failing to grant Appellant[’s] motion to suppress statements made to police on December 5, 2012 and December 4, 2014?

11. Whether the sentence of the court to a mandatory life sentence without the possibility of parole for First[-]Degree Murder is unlawful where the underlying statute is unconstitutional and the sentencing issue was not presented to the jury?

12. Whether the mandatory sentence of Appellant to life imprisonment without the possibility of parole for murder of the first degree violates the Eighth Amendment prohibition on cruel and unusual punishment?

13. Whether the court erred in denying Appellant’s request to instruct the jury that in Pennsylvania the mandatory sentence for First[-]Degree Murder is life imprisonment without the possibility of parole?

Appellant’s Brief at 3-5 (capitalization, suggested answers, and some citations

omitted).

-7- J-S51009-18

Issues 1-2: Sufficiency of the Evidence

Appellant first challenges the sufficiency of the evidence supporting his

convictions for First-Degree Murder and Criminal Conspiracy. Appellant’s Brief

at 11-12. Appellant generally challenges the elements of identity and specific

intent to kill. Id.8

“A claim challenging the sufficiency of the evidence is a question of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We review

claims regarding the sufficiency of the evidence by considering 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.” Commonwealth v.

Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation marks and

citations omitted). “Further, a conviction may be sustained wholly on

circumstantial evidence, and the trier of fact—while passing on the credibility

of the witnesses and the weight of the evidence—is free to believe all, part, or

none of the evidence.” Id. “In conducting this review, the appellate court

8 In his Brief, Appellant “hereby incorporates the entire record as it relates to the within issues as though said portion was set forth herein at length.” Appellant’s Brief at 11. Our Supreme Court has categorically rejected incorporation by reference as a means of presenting an issue. See Commonwealth v. Briggs, 12 A.3d 291, 342-43 (Pa. 2011) (stating that, where an appellant incorporates prior arguments by reference in contravention of Pa.R.A.P. 2119(a) and (b), he or she waives such claims on appeal). In light of the trial court’s thorough review of the issues with reference to the record and relevant case law, we decline to find waiver in this case, and will consider the two-paragraph argument presented in his Brief.

-8- J-S51009-18

may not weigh the evidence and substitute its judgment for the fact-finder.”

Id.

It is well-established that to sustain a First-Degree Murder conviction

“the Commonwealth must prove that: (1) a human being was unlawfully

killed; (2) the person accused is responsible for the killing; and (3) the

accused acted with malice and specific intent to kill.” Commonwealth v.

Hitcho, 123 A.3d 731, 746 (Pa. 2015); 18 Pa.C.S. § 2502(a). “Section 2502

of the Crimes Code defines murder of the first degree as an ‘intentional

killing,’” which, in turn, is defined as a “willful, deliberate and premeditated

killing.” Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citing

18 Pa.C.S. § 2502(a), (d)). A jury may infer the intent to kill based upon the

defendant’s use of a deadly weapon on “a vital part of the victim’s body.”

Commonwealth v. Sanchez, 82 A.3d 943, 967 (Pa. 2013) (citation omitted).

Additionally, “[a] person is legally accountable for the conduct of

another person when … he is an accomplice of such other person in the

commission of the offense.” 18 Pa.C.S. § 306(b)(3). The statute sets forth

that “[a] person is an accomplice of another person in the commission of an

offense if … with the intent of promoting or facilitating the commission of the

offense, he … aids or agrees or attempts to aid such other person in planning

or committing it.” 18 Pa.C.S. § 306(c)(1)(ii).

Moreover, “[a]ccomplice liability may be established wholly by

circumstantial evidence. Only the least degree of concert or collusion in the

-9- J-S51009-18

commission of the offense is sufficient to sustain a finding of responsibility as

an accomplice. No agreement is required, only aid.” Commonwealth v.

Mitchell, 135 A.3d 1097, 1102 (Pa. Super. 2016) (internal quotations marks

and citation omitted).

To sustain the conviction for Criminal Conspiracy, there must be proof

beyond a reasonable doubt that the defendant “(1) entered into an agreement

to commit or aid in an unlawful act with another person or persons, (2) with

a shared criminal intent[,] and (3) an overt act was done in furtherance of the

conspiracy. This overt act need not be committed by the defendant; it need

only be committed by a co-conspirator.” Commonwealth v. McCall, 911

A.2d 992, 996 (Pa. Super. 2006) (citations and quotation marks omitted).

See also 18 Pa.C.S. § 903 (defining Criminal Conspiracy).

“In addition to proving the statutory elements of the crimes charged

beyond a reasonable doubt, the Commonwealth must also establish the

identity of the defendant as the perpetrator of the crimes.” Commonwealth

v. Brooks, 7 A.3d 852, 857 (Pa. Super. 2010). “Evidence of identification

need not be positive and certain to sustain a conviction.” Commonwealth

v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en banc) (citation omitted).

Our Supreme Court has stated that “any indefiniteness and uncertainty

in the identification testimony goes to its weight. Direct evidence of identity

is, of course, not necessary and a defendant may be convicted solely on

- 10 - J-S51009-18

circumstantial evidence.” Commonwealth v. Hickman, 309 A.2d 564, 566

(Pa. 1973) (citations omitted).

Our review of the record, in the light most favorable to the

Commonwealth as the verdict winner, indicates that the evidence was

sufficient to support every element of the offenses beyond a reasonable doubt.

The Honorable Jennifer R. Sletvold, who presided at the trial, has authored a

comprehensive, thorough, and well-reasoned Opinion, citing the record and

relevant case law in addressing Appellant’s sufficiency claims. See Trial Court

Opinion, filed 10/30/17, at 4-11 (concluding that there is no merit to

Appellant’s sufficiency claims because: (1) the Victim died from multiple

gunshot wounds; (2) ballistics evidence confirmed that there were two

shooters; (3) the eyewitness who called 911 and the video surveillance

showed that Appellant and Robinson used Doorley’s minivan and drove to the

area of the shooting, exited the minivan, walked in the direction of the

shooting, and then fled back to the minivan and drove away; (4) cell phone

records confirmed Appellant and Robinson were together at the time of the

shooting and made numerous calls between themselves and Reavis both

before and after the murder, but the calls abruptly stopped at the precise time

of the murder while Appellant and Robinson were captured on video; (5)

Appellant made incriminating statements taking responsibility for the Victim’s

murder; and (6) other evidence corroborated the motive that Appellant and

Robinson killed the Victim because of a romantic rivalry between rival drug

- 11 - J-S51009-18

dealers). We, thus, affirm on the basis of the trial court’s October 30, 2017

Opinion.

Issue 3: Pa.R.E. 404(b) – Prior Bad Acts

Appellant next challenges the admission of evidence that he sold drugs

to a confidential informant the day of the murder. Appellant’s Brief at 12-14.

Appellant avers that the Commonwealth offered this evidence of Appellant’s

prior drug dealing “to arouse the jury to overmastering hostility.” Id. at 14.

The “[a]dmission of evidence is within the sound discretion of the trial

court and will be reversed only upon a showing that the trial court clearly

abused its discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa.

Super. 2015) (en banc) (citations and quotation marks omitted).

“Accordingly, a ruling admitting evidence will not be disturbed on appeal

unless that ruling reflects manifest unreasonableness, or partiality, prejudice,

bias, or ill-will, or such lack of support to be clearly erroneous.”

Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013) (citations

and internal quotations omitted).

Pennsylvania Rule of Evidence 404(b) prohibits evidence of a

defendant’s prior bad acts “to prove a person’s character” or demonstrate

“that on a particular occasion the person acted in accordance with the

character.” Pa.R.E. 404(b)(1). Nevertheless, the Rule also provides that prior

bad acts evidence “may be admissible for another purpose, such as proving

- 12 - J-S51009-18

motive, opportunity, intent, preparation, plan, knowledge, identity, absence

of mistake, or lack of accident.” Pa.R.E. 404(b)(2).

“In order for evidence of prior bad acts to be admissible as evidence of

motive, the prior bad acts must give sufficient ground to believe that the crime

currently being considered grew out of or was in any way caused by the prior

set of facts and circumstances.” Commonwealth v. Knox, 142 A.3d 863,

866-67 (Pa. Super. 2016) (citations and quotation marks omitted). Although

consideration of these claims is often very fact dependent, this Court has

previously admitted evidence of prior drug deals to establish motive for a

subsequent crime. See, e.g., id. at 867 (concluding the trial court properly

admitted evidence of a prior drug transaction between defendant and victim

as relevant and probative of defendant-shooter’s identity and motive of

revenge); Commonwealth v. Collins, 70 A.3d 1245, 1252 (Pa. Super. 2013)

(concluding trial court did not abuse its discretion in admitting evidence that

co-defendants and victim were members of rival drug distribution

organizations in order to link them and suggest a motive for the killing,

particularly where the trial court issued a cautionary jury instruction).

In addition, Rule 404(b)(2) provides a res gestae exception to prior bad

acts evidence that “permits the admission of evidence where it became part

of the history of the case and formed part of the natural development of facts.”

Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa. Super. 2016). “In a criminal

case[,] this evidence is admissible only if the probative value of the evidence

- 13 - J-S51009-18

outweighs its potential for unfair prejudice.” Pa.R.E. 404(b)(2). See also

Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of Evidence § 404.11 et

seq. (2019 ed. LexisNexis Matthew Bender).

“Where evidence of prior bad acts is admitted, the defendant is entitled

to a jury instruction that the evidence is admissible only for a limited purpose.”

Ivy, 146 A.3d at 251 (citations omitted). “It is well settled that the jury is

presumed to follow the trial court’s instructions[.]” Commonwealth v. Cash,

137 A.3d 1262, 1280 (Pa. 2016) (citation omitted).

In this case, the Commonwealth presented evidence that, on the same

day of the murder, Appellant and Robinson were together for much of the day.

The narcotics division police officers watched as Appellant left Reavis’s home,

walked to the informant, engaged in a brief hand-to-hand transaction, and

returned to Reavis’s home where police officers observed Hughes interact with

individuals on the front porch, including Robinson. Police officers took

photographs of Appellant, the transaction, Robinson, and Robinson’s minivan

parked outside Reavis’s residence.

The trial court concluded that the evidence of the drug transaction was

relevant and admissible to show the defendants’ motive for the shooting and

to complete the story of the case. See Trial Court Opinion, 11/14/16, at 2-7.

We agree with the trial court’s analysis and conclude that this evidence

was admissible under Pa.R.E. 404(b)(2) as both motive for the shooting and

as res gestae evidence. The drug transaction evidence, combined with the

- 14 - J-S51009-18

cell phone records, showed that Appellant and Robinson were together on the

date of the murder with the minivan at a location targeted by the narcotics

division for suspected drug activity. Evidence of their coordinated movements

throughout the day supported the Commonwealth’s conspiracy allegations

against Appellant. Appellant’s relationship with Robinson was consistent with

the Commonwealth’s theory that Appellant enlisted Robinson to help him kill

the Victim. Moreover, the evidence was relevant to the circumstances leading

up to and including the shooting, i.e., the res gestae.

The trial court properly weighed the probative value of the evidence in

light of the potential for unfair prejudice in accordance with Pa.R.E. 404(b)(2).

Moreover, the trial court provided a cautionary jury instruction explaining the

limited purpose of this evidence. See N.T. Trial, 1/10/17, at 87-88. We, thus,

discern no abuse of the trial court’s discretion in admitting this evidence.

Appellant is not entitled to relief.

Issue 4: Admission of 911 Tapes

Appellant challenges the trial court’s admission of 911 tapes containing

statements made by eyewitness Christine Sandt and her husband that the

shooters fled the scene in a Honda Odyssey. Appellant’s Brief at 15-18.

Appellant argues that the admission of Mr. Sandt’s hearsay statements

violated his confrontation right because Mr. Sandt did not testify at trial. Id.,

citing Crawford v. Washington, 541 U.S. 36 (2004), and Davis v.

Washington, 547 U.S. 813 (2006).

- 15 - J-S51009-18

The “[a]dmission of evidence is within the sound discretion of the trial

court and will be reversed only upon a showing that the trial court clearly

abused its discretion.” Tyson, 119 A.3d at 357 (citations and quotation marks

omitted). “Accordingly, a ruling admitting evidence will not be disturbed on

appeal unless that ruling reflects manifest unreasonableness, or partiality,

prejudice, bias, or ill-will, or such lack of support to be clearly erroneous.”

Huggins, 68 A.3d at 966 (citations and internal quotations omitted).

The Sixth Amendment to the United States Constitution, made

applicable to the States via the Fourteenth Amendment, mandates that “[i]n

all criminal prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him.” U.S. Const. amend. VI. The Supreme Court

of the United States has interpreted the Confrontation Clause to prohibit the

admission of “testimonial” statements of a witness who did not appear at trial

unless the witness was unavailable and the defendant had a prior opportunity

to cross-examine the witness. Crawford, 541 U.S. at 68. In contrast,

regardless of whether the witness is available or was subjected to cross-

examination, non-testimonial statements are admissible. See Davis, 547

U.S. at 827-29.

In 2006, the United States Supreme Court in Davis provided guidance

on the distinction between testimonial and non-testimonial statements in the

Confrontation Clause context. The Davis Court explained that “[s]tatements

are nontestimonial when made in the course of police interrogation under

- 16 - J-S51009-18

circumstances objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency.”

Davis, 547 U.S. at 822.

In contrast, statements are testimonial “when the circumstances

objectively indicate that there is no such ongoing emergency, and that the

primary purpose of the interrogation is to establish or prove past events

potentially relevant to later criminal prosecution.” Id. The U.S. Supreme

Court in Davis addressed several factors a court should consider when

determining whether a statement a person made is testimonial or non-

testimonial.

Relevant here, courts have frequently concluded that statements made

to 911 operators are non-testimonial under the Confrontation Clause when

the primary purpose of the statement is “to describe current circumstances

requiring police assistance.” Davis, 547 U.S. at 827. See also, e.g.,

Commonwealth v. Williams, 103 A.3d 354, 363-64 (Pa. Super. 2014).

After a thorough review of the certified record, the applicable law, and

the comprehensive and well-reasoned Opinion of the trial court, we conclude

that there is no merit to Appellant’s claim. Accordingly, we affirm on the basis

of the trial court’s October 30, 2017 Opinion. See Trial Court Opinion,

10/30/17, at 12-15 (concluding that it properly admitted the statements by

the eyewitnesses on the 911 call because the statements were “made for the

primary purpose of responding to an ongoing emergency” and were, thus,

- 17 - J-S51009-18

non-testimonial; the statements were otherwise admissible under the hearsay

exceptions as excited utterances and present sense impressions pursuant to

the Pennsylvania Rules of Evidence).

Issue 5: Limitation on Cross-Examination of James Martin

Appellant claims that the trial court erroneously barred him from

questioning James Martin about his status as a “sex offender registrant.”

Appellant’s Brief at 18-20 (citing Pa.R.E. 607). Specifically, Appellant “desired

to establish that [Martin] was a Megan’s Law tier three sexual offender, that

he was in prison for 22 years beginning at the age of 18, that his sentence

was 10-20 years for rape, and that subsequently he was sentenced for

additional time for escape – attempted escape from a State Correctional

Institution.” Id. at 18. Likening Martin’s status to probation or parole,

Appellant argues that “such an individual witness may wish to testify favorably

for the Commonwealth in order to avoid” a violation and this information was

relevant to Martin’s credibility. Id. at 18-20.

“[A] ruling admitting evidence will not be disturbed on appeal unless

that ruling reflects manifest unreasonableness, or partiality, prejudice, bias,

or ill-will, or such lack of support to be clearly erroneous.” Huggins, 68 A.3d

at 966 (citation and internal quotation marks omitted).

Relevance is the threshold for admissibility of evidence.

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008). “Evidence is

relevant if: (a) it has any tendency to make a fact more or less probable than

- 18 - J-S51009-18

it would be without the evidence; and (b) the fact is of consequence in

determining the action.” Pa.R.E. 401. “Evidence that is not relevant is not

admissible.” Pa.R.E. 402. In addition, “[t]he court may exclude relevant

evidence if its probative value is outweighed by a danger of one or more of

the following: unfair prejudice, confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly presenting cumulative evidence.”

Pa.R.E. 403.

Under our Rules of Evidence, “[t]he credibility of a witness may be

impeached by any evidence relevant to that issue, except as otherwise

provided by statute or these Rules.” Pa.R.E. 607(b). As the Comment to Rule

607 indicates, “Pa.R.E. 607(b) applies the test for relevant evidence of Pa.R.E.

401 to evidence offered to impeach the credibility of a witness.” Comment to

Pa.R.E. 607.

After a thorough review of the certified record, the applicable law, and

the comprehensive and well-reasoned Opinion of the trial court, we conclude

that there is no merit to Appellant’s claim. Accordingly, we affirm on the basis

of the trial court’s October 30, 2017 Opinion. See Trial Court Opinion,

10/30/17, at 16-18 (concluding that it properly limited Appellant’s cross-

examination of Martin because: (1) the Commonwealth’s direct examination

did not elicit any facts “that would have opened the door for this testimony[;]”

(2) Martin’s status as a sex offender registrant “would have been entirely

irrelevant[;]” (3) Appellant “had no case law which indicated that a status as

- 19 - J-S51009-18

a sex offender registrant was equivalent to that of being on probation[;]” (4)

Appellant had “sufficient opportunity” to question Martin about “any potential

motivation he may have had for testifying favorably for the Commonwealth[;]”

and (5) Appellant cross-examined Martin about “bias and why he might have

cooperated with the Commonwealth[,]” as well as “the charges he believed

he was facing in terms of jail time at the time he cooperated with the

Commonwealth, the minimum and maximum sentences possible for those

crimes, as well as the ultimate sentence that he received.”).

Issue 6: Greene’s Testimony about Appellant’s Incarceration

Appellant asserts that the trial court erred when it failed to grant his

request for a mistrial after Commonwealth witness Nicole Greene blurted out,

in response to a question about whether her relationship with Appellant was

intense, that Appellant “was in jail most of the time that we were together.”

Appellant’s Brief at 20-21. See also N.T. Trial, 1/13/17, at 207. Appellant

states that “it must be presumed that an individual who was in jail from 2005

through 2012 must have a substantial criminal record history and the

reference was not simply to a single reference to the fact that he was

incarcerated.” Appellant’s Brief at 21. As a result, Appellant claims that he

“was deprived of a fair [t]rial and no curative instruction by the [c]ourt could

cure it. In fact, the curative instruction was a reminder for the [j]ury to

embellish.” Id.

- 20 - J-S51009-18

This Court reviews the denial of a motion for a mistrial based on a

reference to the defendant’s past incarceration for an abuse of discretion.

Commonwealth v. Kerrigan, 920 A.2d 190, 199 (Pa. Super. 2007) (citation

and quotation omitted). “[G]enerally no reference may be made at trial in a

criminal case to a defendant’s arrest or incarceration for a previous crime[.]”

Commonwealth v. Johnson, 838 A.2d 663, 680 (Pa. 2003) (citation

Relevant considerations for determining whether to grant a mistrial

include “the nature of the reference and whether the remark was intentionally

elicited by the Commonwealth[.]” Kerrigan, 920 A.2d at 199. A “passing

reference” to a prior conviction or incarceration is insufficient to require a

mistrial. Id. at 200; see also Commonwealth v. Guilford, 861 A.2d 365,

370 (Pa. Super. 2004) (holding that two passing references to prior criminal

activity did not require a mistrial).

“[T]he possible prejudicial effect of a witness’s reference to the prior

criminal conduct of a defendant may, under certain circumstances, be

removed by an immediate cautionary instruction to the jury.”

Commonwealth v. Pursell, 495 A.2d 183, 192 (Pa. 1985).

We have reviewed the record, the applicable law, and the trial court’s

Opinion, and we conclude that there is no merit to Appellant’s claim.

Accordingly, we affirm on the basis of the trial court’s October 30, 2017

Opinion. See Trial Court Opinion, 10/30/17, at 18-20 (concluding that it

- 21 - J-S51009-18

properly denied Appellant’s mistrial motion because: (1) Greene’s statement

was a single passing reference to Appellant’s incarceration; (2) Greene did not

state when or why Appellant had been incarcerated; (3) Appellant immediately

objected and cut off her testimony; (4) the prosecutor “did not intentionally

elicit the information” because Greene’s answer was not responsive to the

question and the Commonwealth “unequivocally stated several times on the

record that the subject remark regarding Appellant’s jail time was something

Ms. Greene blurted out after being advised and warned about[;]” (5) the

Commonwealth cautioned Greene again to refrain from mentioning Appellant’s

prior incarceration or convictions before she resumed her testimony; (6) the

reference “was not so prejudicial as to warrant a mistrial[;]” and (7) the jury

followed the trial court’s prompt curative instruction).

Issue 7: Weight of the Evidence

In his next issue, Appellant challenges the weight of the evidence

because the “[t]he evidence and testimony of Nicole Green[e] and James

Martin shocked the sense of fairness and conscious of justice. The testimony

of a snitch, James Martin, and Appellant’s girlfriend for many years while in

jail was relied on by the [j]ury in a verdict that is devoid of justice.”

Appellant’s Brief at 22.9

9 In his Brief, Appellant again “incorporates the record made before the [t]rial [c]ourt to support his claim.” Appellant’s Brief at 22. As previously stated, Pennsylvania appellate courts categorically reject incorporation by reference

- 22 - J-S51009-18

When considering challenges to the weight of the evidence, we apply

the following precepts. “The weight of the evidence is exclusively for the

finder of fact, who is free to believe all, none[,] or some of the evidence and

to determine the credibility of the witnesses.” Commonwealth v. Talbert,

129 A.3d 536, 545 (Pa. Super. 2015) (quotation marks and citation omitted).

Resolving questions of credibility and contradictory testimony are matters for

the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa.

Super. 2000). It is well settled that we cannot substitute our judgment for

that of the trier of fact. Talbert, 129 A.3d at 546.

Moreover, appellate review of a weight claim is a review of the trial

court’s exercise of discretion in denying the weight challenge raised in the

post-sentence motion; this court does not review the underlying question of

whether the verdict is against the weight of the evidence. See id. at 545-46.

“Because the trial judge has had the opportunity to hear and see the evidence

presented, an appellate court will give the gravest consideration to the

findings and reasons advanced by the trial judge when reviewing a trial court’s

determination that the verdict is [or is not] against the weight of the

evidence.” Id. at 546. “One of the least assailable reasons for granting or

denying a new trial is the lower court’s conviction that the verdict was or was

as a means of presenting an issue and we will consider only the argument presented to this Court in Appellant’s Brief. See Briggs, 12 A.3d at 342-43.

- 23 - J-S51009-18

not against the weight of the evidence and that a new trial should be granted

in the interest of justice.” Id.

Furthermore, “[i]n order for a defendant to prevail on a challenge to the

weight of the evidence, the evidence must be so tenuous, vague and uncertain

that the verdict shocks the conscience of the court.” Id. (citation and internal

quotation marks omitted). As our Supreme Court has made clear, reversal is

only appropriate “where the facts and inferences disclose a palpable abuse

of discretion[.]” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014)

(citations omitted, emphasis in original).

A defendant concedes that sufficient evidence supports the verdict in a

true challenge to the weight of the evidence and instead questions which

evidence the fact-finder should have believed. Commonwealth v.

Thompson, 106 A.3d 742, 758 (Pa. Super. 2014). For that reason, the trial

court need not view the evidence in the light most favorable to the verdict

winner, and may instead use its discretion in concluding whether the verdict

was against the weight of the evidence. Commonwealth v. Widmer, 744

A.2d 745, 751 n.3 (Pa. 2000).

After a thorough review of the certified record, the briefs of the parties,

the applicable law, and the comprehensive and well-reasoned trial court

Opinion, we conclude that there is no merit to Appellant’s challenge to the

weight of the evidence. The trial court carefully evaluated the record and the

- 24 - J-S51009-18

evidence in denying Appellant’s weight claim. See Trial Court Opinion,

10/30/17, at 20-22.

Appellant essentially asks us to reassess the credibility of the two

witnesses and reweigh the testimony and evidence presented at trial. We

cannot and will not do so. Our review of the record shows that the evidence

is not tenuous, vague, or uncertain, and the verdict was not so contrary to the

evidence as to shock the court’s conscience.

We discern no abuse of discretion in the trial court’s denial of Appellant’s

weight claim. Accordingly, Appellant is not entitled to relief.

Issue 8: Denial of Motion to Sever

Appellant avers that the trial court erred in denying his motion to sever

his case from co-defendant Robinson’s case. Appellant’s Brief at 22-23.

Appellant claims he and Robinson “may have had antagonistic defenses where

the jury, in order to believe the testimony offered on behalf of one defendant,

must disbelieve the testimony offered by each co-defendant.” Id. at 23

(citation omitted). Appellant baldly claims that “a joint trial prohibited [him]

from introducing evidence to the allegations against him and to demonstrate

his innocence to these allegations.” Id.

A trial court’s denial of a motion for severance rests within the sound

discretion of the trial court, and we will not disturb its decision on appeal

“absent a manifest abuse of discretion.” Commonwealth v. Mollett, 5 A.3d

291, 305 (Pa. Super. 2010) (quotation and citation omitted).

- 25 - J-S51009-18

Rule of Criminal Procedure 583 provides that “[t]he court may order

separate trials of offenses or defendants, or provide other appropriate relief,

if it appears that any party may be prejudiced by offenses or defendants being

tried together.” Pa.R.Crim.P. 583. When considering a motion to sever, a

trial court must determine: (1) “whether the evidence of each of the offenses

would be admissible in a separate trial for the other;” (2) “whether such

evidence is capable of separation by the jury so as to avoid danger of

confusion;” and (3) “if the answers to these inquiries are in the affirmative,

whether the defendant will be unduly prejudiced by the consolidation of

offenses.” Commonwealth v. Kunkle, 79 A.3d 1173, 1190 (Pa. Super.

2013) (quotation and citations omitted).

“The critical consideration is whether the appellant was prejudiced by

the trial court’s decision not to sever. The appellant bears the burden of

establishing such prejudice.” Mollett, 5 A.3d at 305 (quotation and citation

omitted). Prejudice in this context is “that which would occur if the evidence

tended to convict appellant only by showing his propensity to commit crimes,

or because the jury was incapable of separating the evidence or could not

avoid cumulating the evidence.” Commonwealth v. Boyle, 733 A.2d 633,

637 (Pa. Super. 1999) (quotation and citation omitted).

After carefully reviewing of the record, the applicable law, and the trial

court’s Opinion, we find that Appellant is not entitled to relief on this meritless

claim. Accordingly, we affirm on the basis of the trial court’s August 15, 2016

- 26 - J-S51009-18

Opinion. See Trial Court Opinion, 8/15/16, at 17-21 (concluding that it

properly denied Appellant’s motion for severance because: (1) Appellant “does

not elaborate” or explain how specific defenses are antagonistic and

irreconcilable and the request “is predicated upon an undefined theory of

possibilities[;]” (2) Appellant failed to “specify why a joint trial would be

prejudicial[;]” and (3) the prosecutor “indicated that there is ‘but one possible

statement’ that may implicate the [d]efendants together which statement may

be redacted[.]”).

Issue 9: Denial of Motion for Change of Venue

Appellant claims that the trial court erred in denying his motion for

change of venue or venire. Appellant’s Brief at 24-25. Relying on thirty-five

local newspapers articles about the murder published over four years,

Appellant argues that the “pretrial publicity was sustained, pervasive,

inflammatory, and culpatory and there is a presumption of prejudice in

selecting a fair and impartial jury in Northampton County.” Id. at 25.

Pennsylvania Rule of Criminal Procedure 584 governs requests for

changes of venue and provides that a trial court “may” grant a motion for

change of venue or venire “when it is determined after hearing that a fair and

impartial trial cannot otherwise be had in the county where the case is

currently pending.” Pa.R.Crim.P. 584(A).

A trial court’s denial of a motion for change of venue or venire rests

within the sound discretion of the trial judge, and we will not disturb its ruling

- 27 - J-S51009-18

on appeal absent an abuse of that discretion. Commonwealth v. Brookins,

10 A.3d 1251, 1258 (Pa. Super. 2010). “In reviewing the trial court’s decision,

our inquiry must focus upon whether any juror formed a fixed opinion of the

defendant’s guilt or innocence as a result of the pre-trial publicity.”

Commonwealth v. Drumheller, 808 A.2d 893, 902 (Pa. 2002).

“Normally, one who claims that he has been denied a fair trial because

of pretrial publicity must show actual prejudice in the empanelling of the jury.”

Id. We will presume prejudice in certain extreme cases where such pretrial

publicity is pervasive or inflammatory. Id. Our Supreme Court has held that

courts will presume prejudice if: “(1) the publicity is sensational,

inflammatory, and slanted toward conviction rather than factual and

objective; (2) the publicity reveals the defendant’s prior criminal record, or if

it refers to confessions, admissions or reenactments of the crime by the

accused; and (3) the publicity is derived from police and prosecuting officer

reports.” Id.

Even presuming such prejudice exists, a defendant must “also show[]

that the pre-trial publicity was so extensive, sustained, and pervasive that the

community must be deemed to have been saturated with it, and that there

was insufficient time between the publicity and the trial for any prejudice to

have dissipated.” Id. In examining whether there has been a sufficient

cooling period, courts must examine “what a panel of prospective jurors has

said about its exposure to the publicity in question.” Id. at 902-03.

- 28 - J-S51009-18

After a thorough review of the certified record, the applicable law, and

the comprehensive and well-reasoned Opinion of the trial court, we hold that

Appellant is not entitled to any relief on this claim. Accordingly, we affirm on

the basis of the trial court’s August 15, 2016 Opinion. See Trial Court Opinion,

8/15/16, at 14-17 (concluding that it properly denied Appellant’s motion

because: (1) the thirty-five articles over four years referenced police reports

and statements by law enforcement personnel about the incident; (2)

Appellant failed to meet “his burden in demonstrating that the pretrial publicity

regarding this case has been so prejudicial as to preclude the empaneling of

a fair and impartial jury[;]” (3) any biased or prejudiced jurors based on the

pretrial publicity would be (and were) questioned during voir dire; and (4)

Appellant was free to renew his motion during voir dire if such bias or prejudice

became apparent.10).

Issue 10: Denial of Motion to Suppress Appellant’s Statements

Appellant argues that the court erred in denying his Motion to Suppress.

Appellant’s Brief at 25-26. Appellant claims that “based on the totality of the

circumstances, his [December 5, 2012 and December 4, 2014] statement[s]

could not be knowing, intelligent, and voluntary.” Id. at 26.

10Moreover, the trial court investigated whether there had been a sufficient cooling off period during voir dire and confirmed that the pretrial publicity read by just four members of the jury panel “would not affect their ability to be fair and impartial jurors in this case.” See Trial Court Opinion, 10/30/17, at 22- 23.

- 29 - J-S51009-18

In reviewing the denial of a motion to suppress, we are limited to

considering 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.” Commonwealth v. McCoy, 154 A.3d 813, 815-16 (Pa.

Super. 2017) (citations omitted). Where the testimony and other evidence

supports the court’s findings of fact, we are bound by them and “may reverse

only if the court erred in reaching its legal conclusions based upon the facts.”

Id. at 816 (citations omitted). It is within the exclusive province of the

suppression court to “pass on the credibility of witnesses and determine the

weight to be given to their testimony.” Id. (citations omitted). This Court

will not disturb a suppression court’s credibility determination absent a clear

and manifest error. Commonwealth v. Camacho, 625 A.2d 1242, 1245 (Pa.

Super. 1993).

“The scope of review from a suppression ruling is limited to the

evidentiary record created at the suppression hearing.” Commonwealth v.

Neal, 151 A.3d 1068, 1071 (Pa. Super. 2016), citing In re L.J., 79 A.3d 1073,

1087 (Pa. 2013).

Importantly, “[o]nce a motion to suppress evidence has been filed, it is

the Commonwealth’s burden to prove, by a preponderance of the evidence,

that the challenged evidence was not obtained in violation of the defendant’s

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-48 (Pa. 2012)

(citations omitted); see also Pa.R.Crim.P. 581(H).

- 30 - J-S51009-18

It is the Commonwealth’s burden to establish that a defendant

“knowingly and voluntarily waived his Miranda rights.” Commonwealth v.

Johnson, 42 A.3d 1017, 1029 (Pa. 2012). A defendant must explicitly waive

his Miranda rights by making an “outward manifestation” of that waiver.

Commonwealth v. Cohen, 53 A.3d 882, 886 (Pa. Super. 2012). A

suppression court may properly find that Miranda rights have been waived

where the totality of the circumstances shows “an uncoerced choice and the

requisite level of comprehension[.]” In re T.B., 11 A.3d 500, 505-06 (Pa.

Super. 2010) (citation omitted).

After a thorough review of the certified record, the applicable law, and

the comprehensive and well-reasoned Opinion of the trial court, we conclude

that there is no merit to Appellant’s suppression claim. Accordingly, we affirm

on the basis of the trial court’s August 15, 2016 Opinion. See Trial Court

Opinion, 8/15/16, at 21-25, 27-29 (concluding that there is no merit to

Appellant’s suppression claims because, inter alia, Appellant “was properly

advised of his Miranda rights, including the right to have counsel present,

and that he waived same prior to these interviews.”).

Issues 11-12: Legality of Sentence

In his eleventh and twelfth issues, Appellant challenges the legality of

his sentence and presents several consolidated arguments. Appellant argues

that: (1) his sentence constitutes cruel and unusual punishment; (2) he is

entitled to relief pursuant to Miller v. Alabama, 567 U.S. 460 (2012); and

- 31 - J-S51009-18

(3) “mandatory sentencing is unlawful” because “the [j]ury never determined

the mandatory sentence pursuant to” Alleyne v. United States, 570 U.S. 99

(2013). Appellant’s Brief at 26-29. We address these claims seriatim.

First, our statutes provide that “a person who has been convicted of a

murder of the first degree . . . shall be sentenced to death or to a term of life

imprisonment[.]” 18 Pa.C.S. § 1102(a)(1). This Court has previously held

that “[a] mandatory life sentence, as established by the legislature, is clearly

not cruel and unusual punishment for the crime of first-degree murder.”

Commonwealth v. Waters, 483 A.2d 855, 861 (Pa. Super. 1984).

Second, Miller does not entitle Appellant to any relief. In Miller, the

U.S. Supreme Court held that it is unconstitutional for state courts to impose

an automatic life sentence without possibility of parole upon a homicide

defendant for a murder committed while the defendant was under 18 years of

age.

As Appellant recognizes, this Court has previously ruled that Miller does

not apply to individuals who were 18 or older at the time they committed

murder. See Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super.

2013) (holding that petitioners who were eighteen or older at the time they

committed murder are not within the ambit of the Miller decision), abrogated

in part by Montgomery v. Louisiana, 136 S.Ct. 718 (2016);11 see also

11The United States Supreme Court held in Montgomery that its decision in Miller applies retroactively.

- 32 - J-S51009-18

Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016) (holding that

Miller did not apply to a 19–year–old appellant convicted of homicide, even

though that appellant claimed he was a “technical juvenile” and relied on

neuroscientific theories regarding immature brain development to support his

claim; acknowledging that additional holding in Cintora, that Miller had not

been applied retroactively, was “no longer good law” after Montgomery).

Appellant, born August 4, 1978, was 34 years old on November 23,

2012, when he and Robinson murdered Holton. Thus, Miller is inapplicable

to Appellant.

Third, Alleyne does not warrant any relief. The U.S. Supreme Court

held in Alleyne that, other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory minimum

must be submitted to a jury and proved beyond a reasonable doubt. Alleyne,

570 U.S. at 114-15.

Alleyne is not applicable to the instant case. Appellant received a

mandatory sentence pursuant to 18 Pa.C.S. § 1102(a). Thus, the only “fact”

that led to Appellant’s life sentence was his jury conviction of First-Degree

Murder; the trial court engaged in no fact-finding at sentencing. Because

Appellant’s mandatory sentence of life imprisonment was based on his

conviction, and not on any aggravating fact, his sentence is not

unconstitutional under Alleyne. See Commonwealth v. Resto, 179 A.3d

18, 20-21 (Pa. 2018) (OAJC) (upholding judgment of sentence where

- 33 - J-S51009-18

mandatory minimum was based on conviction and explaining that “a

conviction returned by a jury to which a mandatory minimum sentence directly

attaches is not the same as an aggravating fact that increases a mandatory

minimum sentence.”).

Based on the foregoing, we conclude that Appellant is not serving an

illegal sentence and he is not entitled to relief.

Issue 13: Jury Instruction about Mandatory Sentence

In his thirteenth and final issue, Appellant claims that the trial court

erred when it denied his request “to instruct the [j]ury that the mandatory

sentence in Pennsylvania for a conviction of [First-]Degree Murder is life

imprisonment without the possibility of parole.” Appellant’s Brief at 29.

We review a trial court’s refusal to give a requested jury instruction to

“determine whether the record supports the trial court’s decision.”

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013)

(quotation omitted). We must determine “whether the trial court committed

a clear abuse of discretion or an error of law which controlled the outcome of

the case.” Id. (quotation omitted).

It is well settled that a “trial court has wide discretion in fashioning jury

instructions.” Id. (quotation omitted). The trial court need not provide every

instruction requested by a party, and this Court will not reverse the refusal to

provide a requested instruction unless the refusal prejudiced Appellant. Id.

- 34 - J-S51009-18

This Court will conclude that a jury charge was “erroneous only if the

charge as a whole is inadequate, not clear[,] or has a tendency to mislead or

confuse, rather than clarify, a material issue.” Id. (quotation omitted). We

will hold that a charge was inadequate only where the court “palpably misled”

the jury “or there is an omission which is tantamount to fundamental error.”

Id. (quotation omitted).

Regarding jury instructions about mandatory sentences, this Court has

recognized that “punishment is a matter solely for the court and not for the

jury to know or [to] consider during its deliberations.” Commonwealth v.

White, 504 A.2d 930 (Pa. Super. 1986) (citing Commonwealth v. Lucier,

225 A.2d 890, 891 (Pa. 1967)). “[T]he jury has nothing to do with the

punishment of an offense[.]” White, 504 A.2d at 930.

After reviewing the certified record, the applicable law, and the trial

court’s Opinion, we reject Appellant’s claim as meritless. We affirm on the

basis of the trial court’s October 30, 2017 Opinion. See Trial Court Opinion,

10/30/17, at 25-26 (concluding that there is no merit to Appellant’s claim

because, inter alia, the “[c]ourt clearly and accurately instructed the jury that

the verdict should be based on evidence and not on what the penalty might

be in the event of a conviction.”).

The parties are instructed to attach a copy of the trial court’s August 15,

2016 and October 30, 2017 Opinions to all future filings.

Judgment of Sentence affirmed.

- 35 - J-S51009-18

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/3/19

- 36 - Circulated 02/26/2019 01:54 PM

IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA o. 2853 EDA 2017 vs.

PATRICK T. HUGHES, rial Court No.: CR-1892-2015

Appellant.

MEMORANDUM OPINION .. ''

I. Introduction

This Memorandum Opinion is filed in accordance with Rule l 925(a) of the Pennsylvania

Rules of Appellate Procedure. Following an eight-day jury trial before the undersigned judge, the

Appellant, Patrick Hughes (hereinafter, "Appellant"), was found guilty of criminal homicide as

murder of the first degree, in violation of 18 Pa.C.S.A. § 25011; and criminal conspiracy to commit

murder of the first degree, in violation of 18 Pa.C.S.A. § 903 Al. These crimes arose out of

Appellant's role in the shooting death of Ervin Holton (hereinafter, "Holton") on November 23.

2012 in the City of Easton, Pennsylvania.

For purposes of trial, Appellant's criminal information was joined with the criminal

information of Omar Robinson (hereinafter, "Robinson"), who was charged with Criminal

1 Appellant was charged with Criminal Homicide for soliciting his co-conspirator and co-defendant, Omar Robinson, to commit the criminal homicide and/or aiding, agreeing, or attempting to aid Robinson in planning or committing same.

1 ...... ----------------

Homicide, in violation of 18 Pa.C.S.A. § 25012 and Criminal Conspiracy to Commit Criminal

Homicide, in violation of 18 Pa.C.S.A. § 903 AL Both Appellant and Robinson were convicted

as charged.

This Court sentenced Appellant on February 28, 2017 as follows: 1) for the charge of

murder in the first degree, to serve a term oflife imprisonment without the possibility of parole in

a Pennsylvania state correctional institution; and 2) for the charge of criminal conspiracy to

commit criminal homicide as murder in the first degree, to a concurrent period of incarceration of

twenty (20) to forty ( 40) years in a Pennsylvania state correctional institution.

On March 8, 2017, Appellant filed a Post-Sentence Motion Pursuant to Rule 720(8). We

denied this Motion on August 4, 2017. Appellant filed a Notice of Appeal to the Superior Court

of Pennsylvania on August 31, 2017. Thereafter, on September 11, 2017, Appellant filed a Concise

Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).

II. Matters Complained of on Appeal

In his Concise Statement of Matters Complained of on Appeal, Appellant contends that

this Court erred as a matter of law and/or fact, stating the following as issues in error:

"Whether the evidence was sufficient to [sic] a conviction of Criminal Homicide, Criminal Conspiracy to Commit Homicide where the Commonwealth failed to establish, beyond a reasonable doubt, the existence of a conspiratorial agreement, the specific intent of which was to commit criminal homicide, prior to the death of Ervin Holton?";

2 "Whether the evidence was sufficient to [sic] a conviction of Criminal Homicide or Criminal Conspiracy to Commit Criminal Homicide where the Commonwealth conceded at Trial that Patrick Hughes was not a shooter, and offered no evidence of his presence at the scene, when, a conviction of murder cannot stand without sufficient evidence of accomplice liability?";

2Robinson was charged with Criminal Homicide for intentionally, knowingly, recklessly or negligently causing the shooting death of Holton.

2 ·- 3 "Whether the Trial Court erred in granting the Commonwealth's Motion in Limine to present evidence of Patrick Hughes' drug dealing and prior drug arrests under Pa.R.P.E. [sic] 404(8) by Order and Opinion on November 14, 2016?";

4 "Whether the Trial Court erred in admitting 911 tapes referencing a Honda Odyssey without affording the Defendant his right to cross-examination guaranteed and [sic] by the Confrontation Clause of the United States Constitution? Crawford v. Washington. 541 US. 36 (2004) and its progeny" [sic] (emphasis in original); 5 "Whether this Honorable Court erred when it barred the Defense from cross- examining James Martin on his status as a sex offender registrant? See generally Pa.R.E. 607; Commonwealth v. Cox, A.2d 923 (Pa. 1999); Commonwealth v. Afurphy, 591 A.2d 278 (Pa. 1991); Commonwealth v. Harris, 852 A.2d 1168 (Pa. 2004)" (emphasis in original);

6 "Whether this Honorable Court erred when it failed to grant Defendant's request for a mistrial due to Nicole Green's [sic] testimony that Defendant was incarcerated during most of the time they dated? [N.T., 1/13/17, Page 207-208.]";

7 "Whether the verdict was against the weight of the evidence.";

8 "Whether the Trial Court erred over Defendant's objection in denying Defendant's Motion for Severance, failing to order separate Trials, and determining that your Defendant would not be prejudiced by being tried with his Co-Defendant, Omar Robinson: See Pa.R.Crim.P. Rule 583";

9 "Whether the Trial Court erred in failing to grant Defendant's Motion for Change of Venue/Venire where the pretrial publicity was sustained, pervasive, inflammatory, and inculpatory and there was a presumption of prejudice in selecting a fair and impartial jury from Northampton County? See Commonwealth v. Bridges, 757 A.2d 859, 871 (Pa.Super. 2000)" (emphasis in original); b '

10 "Whether the Trial Court erred in failing to grant Defendant, Hughes', motion to suppress statements made to police on December 5, 2012 and December 4, 2014?";

11 "Whether the sentence of the Court to a mandatory life sentence without the possibility of parole for first degree murder is unlawful where the underlying statute is unconstitutional and the sentencing issue was not presented to the jury? Alleyne v. United States, 133 S.Ct. 2151 (2013); 18 Pa. C.S.A. §1102, 42 Pa.CS.A. §9711" (emphasis in original);

3 - 12 "Whether the mandatory sentence of Defendant to life imprisonment without the possibility of parole for Murder of the First Degree violates the Eighth Amendment Prohibition on cruel and unusual punishment?";

13 "Whether the Court erred in denying Defendant's request to instruct the Jury that in Pennsylvania the mandatory sentence for first degree murder is life imprisonment without the possibility of parole." We will address below Appellant's statements of matters complained of on appeal as he

has presented them.

III. Discussion

1. "Whether the evidence was sufficient to [sic} a conviction of Criminal Homicide, Criminal Conspiracy to Commit Homicide where the Commonwealth failed to establish, beyond a reasonable doubt, the existence of a conspiratorial agreement, the specific intent of which was to commit criminal homicide, prior to the death of Ervin Holton?"

2. "Whether the evidence was sufficient to [sic] a conviction of Criminal Homicide or Criminal Conspiracy to Commit Criminal Homicide where the Commonwealth conceded at Trial that Patrick Hughes was not a shooter, and offered no evidence of his presence at the scene, when, a conviction of murder cannot stand without sufficient evidence of accomplice liability?"

The standard to apply in determining the sufficiency of the evidence is whether, "viewing

the evidence in the light most favorable to the Commonwealth and drawing all proper inferences

favorable to the Commonwealth, the trier of fact could reasonably have determined that all of

elements of the crime to have been established beyond a reasonable doubt." Com. v. Keblitis,

500 Pa. 321, 456 A.2d 149 (1983). Further, our Superior Court has stated:

"Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt." Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005). Nevertheless, "the Commonwealth need not establish guilt to a mathematical certainty." Id; see also Commonwealth. v. Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000) ("[T]he facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence"). Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the 4 ------------·-···-· ·-·· -

combined circumstances. See Commonwealth v. DitStefano. 782 A.2d 574, 582 (Pa. Super. 2001 ).

The Commonwealth may sustain its burden by means of wholly circumstantial evidence. See Brewer, 876 A.2d at 1032. Accordingly, "[t]he fact that the evidence establishing a defendant's participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence." Id. (quoting Commonwealth v. Murphy, 795 A.2d 1025, 1038-39 (Pa. Super. 2002)). Significantly, (the appellate court) may not substitute ... judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant's crimes beyond a reasonable doubt, the appellant's convictions will be upheld. See Brewer, 876 A.2d at 1032.

Com. v. Rahman, 75 A.3d 497, 500-01 (Pa. Super. 2013) (citing Com. v. Pettyjohn, 64 A.3d 1072

(Pa. Super. 2013) ( citations omitted)).

In the instant case, the Commonwealth presented sufficient evidence in order to sustain

convictions against Appellant for both Criminal Homicide for intentionally, knowingly,

recklessly or negligently causing the shooting death of Holton on November 23, 2012; and

Criminal Conspiracy to Commit Criminal Homicide for conspiring with Robinson to cause the

death of Holton. As further discussed below, all evidence presented at trial, including the testimony

of multiple witnesses presented at trial, establish that Appellant caused the shooting death of Holton

on November 23, 2012.

A person commits the crime of criminal homicide and violates 18 Pa. C.S. § 2501 (a) "Ifhe

intentionally, knowingly, recklessly or negligently causes the death of another human being." To

sustain a criminal conspiracy conviction, the Commonwealth must establish that a defendant entered

into an agreement to commit or aid in an unlawful act with another person or persons, with a shared

criminal intent, and an overt act was done in the conspiracy's furtherance. I 8 Pa.C.S. § 903;3 Com. v.

J Section 903 provides, in relevant part: (a) Definition of conspiracy. -A person is guilty ofconspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he: 5 - -- -��· --------

Rios, 546 Pa. 271, 684 A.2d I 025, 1030 (1996). The overt act need not accomplish the crime - it

need only be in furtherance thereof. In fact, no crime at all need be accomplished for the conspiracy

to be committed. Com. v. Weimer, 602 Pa. 33, 38-39, 977 A.2d 1103, 1105-06 (2009). Notably, it

is of no consequence whether or not Appellant was a shooter - he can be held criminally liable for

conduct committed by another by being a member of a conspiracy or by being an accomplice of the

person who actually commits the crime at issue. Further, and in response to Appellant's argument

herein:

a person who is an accomplice will not be responsible for a crime if, and only if, the person, before the other person commits the crime, either stops his or her own efforts to promote or facilitate the commission of the crime and either wholly deprives his or her previous efforts of effectiveness in the commission of the crime or gives timely warning to the law enforcement authorities or otherwise makes a proper effort to prevent the commission of the cnme.

Pa. SSJI (Crim), §8.306(a)(l) (2016); see also Com. v. Kimbrough, 872 A.2d 1244, 1253 (Pa. Super.

2005) ( citing 18 Pa.C.S.A. §306 (f)(3)). In the case sub Judice, Appellant did not offer evidence

which would demonstrate that he either stopped and/or wholly deprived his previous efforts of

effectiveness in the commission of the murder.

The evidence presented at trial, including the extensive testimony of multiple witnesses, was

sufficient to enable the jury to find that all of the elements of the charged offenses were established

beyond a reasonable doubt. Detectives from the Easton Police Department reported to a residence on

the south side of Easton in response to a 911 call that was made at approximately 5 :45 p.m. on

November 23, 2012. Notes of Testimony (N.T.), 1/12/17, at p. 73; N.T., 1/17/17 at pp. 42, 45. The

911 call revealed that a witness, Christine Sandt, heard gunshots fired when she was driving in the

City of Easton across the street from the Sole Mio Restaurant and observed two individuals in dark

(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime ...

6 ·----�·�-. ··---

clothing running toward a minivan. N.T., 1/12/17, at pp. 73-75; N.T., 1/17/17, at pp. 42-43, 46-47;

See also Com. Exhibit 12.

At the scene, the detectives identified Holton as the victim. N .T., 1/10/17, at p. 102. The

coroner determined that the cause of death was a homicide by multiple gunshot wounds. Id. at p.

156. An expert in forensic pathology, Dr. Zhongxue Hua, M.D., testified that an autopsy of Holtons

body revealed that there were six wounds caused by five shots fired at Holton. N.T., l/12/17, at pp.

128-129. Dr. Hua testified that a bullet that entered Holton from "the left side armpit area cross

midline into the left lung into the midline major blood vessel into the right upper and lower portion,

subsequently exit in the right side of the back" was the fatal gunshot wound. Id. at p. 124.

Further, Detectives Darren Snyder, Christopher Miller and Matthew Rush, who are employed

with the City of Easton Police Department, testified regarding video surveillance from the evening of

the shooting. The video depicted two individuals exit a dark-colored minivan about a block away

from the crime scene, walk in the direction of the scene, then run back toward the minivan in the area

of the Sole Mio Restaurant and drive away minutes later. N.T., 1/12117, at pp. 181, 212; N.T.,

1/13/17, at pp. 10, 12; N.T., 1/17/17 at pp. 143-145. The Commonwealth also presented evidence

that Appellant and Robinson were the individuals seen in the video surveillance. Robinson's

girlfriend, Ms. Doorley, was the owner of a dark-colored minivan. N.T., 1/12/17, at pp. 189-192.

When Detectives Miller and Rush went to search the minivan at the home of Robinson and Ms.

Doorley, Robinson indicated that he was the operator of the minivan on the date of the homicide, and

he became emotional when he was questioned further about the incident. Id. at pp. 194-195, 196-

197, 219-220. A search of the minivan revealed gunshot residue on the steering wheel and the

driver's side interior door handle. N.T., l/11/17 at p. 125.

Testimony from an individual named Corey Reavis (hereinafter, "Reavis") established that

Appellant and Robinson were together during the afternoon on the date of the homicide. Reavis

7 testified that, subsequent to "hanging out" with Appellant and Robinson at his house on that day, just

before the shooting occurred, he drove Holton to a location near the residence where Holton was

shot. N.T., 1/13/17, at pp. 190, 192-193, 196.

Cell phone records confirmed that Appellant and Robinson had been making several phone

calls between themselves and Reavis shortly before the time of the homicide, but at approximately

5:39 p.m. - just before the time that the 911 call was made- all calls between them ceased, only to

resume again minutes following reports ofthe shooting. N.T., 1/12/17, atpp. 15-16, 19-20, 22-25.

The cell phone records also evidenced that Appellant and Robinson were in close proximity to one

another when the calls were made because the calls were being transmitted from the cell tower

located on the south side of Easton. Id. at pp. 15-16.

Other testimony confirmed that Appellant and Robinson were together during the afternoon

on the date of the homicide. Specifically, the vice unit of the Easton Police Department was

investigating Appellant on that day. As a result of this vice investigation, photographs were taken

showing that Appellant made a hand-to-hand drug transaction and then went to a house located

several minutes from the murder scene. Detective Arrendondo testified that he observed a Honda

Odyssey, parked outside of this house. N.T., 1/12/17, at pp. 140-145.

The police investigation further disclosed that Appellant had provided several different and

inconsistent alibis as to where he was on the day of the homicide, none of which the detectives could

substantiate. N .T., 1 I 18/17, at p. 7. Detective Darren Snyder conducted an interview of Appellant.

Detective Snyder testified as follows:

When I first asked him where were you on this date, it's a significant date we're talking about, Black Friday, the day after Thanksgiving. This is less than two weeks afterwards. When I first spoke to him, his first indication was he was at his girlfriend's the entire day. Then the photographs and make the purchase or the sale by the vice detectives, then he changed his story. [sic] I was at my girlfriend's house from 3 p.m. until 8:30 p.m. when I went to my other girlfriend's house. During the course of speaking with him, again it continued to evolve to, I was selling drugs to a guy name [sic] Mike; in this case he did.

8 "�-� ·-�---.---···----, --.- --- .

- ·-.-·

However, that was earlier in the morning not at the time his homicide occurred. Then he changed his story again that he sold to a white guy named Dan and he provided me a description, at Center and Berwick Street, which is near where it happened but still a significant distance away. Speaking to him further, he admits to driving by the victim's house shortly before the homicide occurs. He also says that he sees Sabree,4 the person who drove up to - the victim up to the scene. He also indicates that he would have been driving. By his own words, he admits that he was probably driving by the scene around the time the homicide occurs. This evolution of where it's at to me it struck me as it kept changing. Any time I threw something else at him, it would change to adapt to whatever I was saying. That was, to me, a significant event in there.

Id. at pp. 7-9.

Timothy Graves (hereinafter, "Graves"), an inmate incarcerated in a state correctional facility

who shared a prison transport with Appellant. testified that Appellant boasted to him about the fact

that he had prepared an alibi for the time of the homicide. N.T., 1117/17, at pp. 88, 92. Appellant

indicated to Graves that the reason for the instant homicide was because Appellant felt disrespected

by the actions of a girl he was seeing while he was incarcerated. Id. at pp. 90-92. Graves testified

that Appellant stated to him that "his mans handled that." When Appellant made this statement to

Graves, Graves testified that Appellant used a hand gesture to give the impression that Appellant' s

"mans" shot the new boyfriend of Appellant's ex-girlfriend. Id. at p. 92.

Multiple letters that Appellant wrote to the girl referred to in Graves' testimony, Nicole

Greene, were submitted at trial. In these letters, Appellant professed his love to Ms. Greene. See

Com. Exhibit 47 B; see also N.T. 1(18/17 at pp. 27-61.

Appellant's cellmate, James Martin, testified at trial regarding what Appellant told him about

this case. The testimony was as follows:

Attorney Pepper: Did he tell you anything about it after reading that newspaper article about the murder in this case?

Martin: Not at first. It was like a couple days later, and I don't know how the conversation started but it came up, the homicide, you know, with the boy. It was a big thing about Larry Holmes about putting up for the

4 Sabree is Corey Reavis' nickname. N.T., 1/13/17, at p. 198. 9 ·�·

boy and stuff like that and I let it go. He said, yeah, that's my work .

Attorney Pepper: . . . He said in referring to the article about the killing, the murder, he said, that's my work?

Martin: Yeah. He was like, that's my work. My mans did it.

Attorney Pepper: He said, that's my work; my man did it?

Martin: Yeah.

N.T., 1/13/17, atpp. 90-91.

Finally, Detective Snyder testified that his investigation revealed that there were at least two

shooters. Scientific analysis of the shell casings that were found on the porch of the scene and the

live round that was next to it came from one weapon. N.T., 1/11/17, at pp. 5, 39. The analysis

further revealed that the bulk of the shell casings at the scene, which were found near the body of

Holton, came from a separate firearm. Id. Detective Snyder explained as follows:

All the shell casings under the tent came back to the same weapon. The live round that was found on the scene was compared to the shell casings that was [sic] found on the porch next to it. They came back to a second weapon. The way they determine this is every time a firing pin hits the back, it makes a certain impression. They examine this under a microscope. They can compare striations to each other and do that match. That's how they're able to determine that. All the shell casings that were under that tent area, one firearm. Live round and shell casing on the porch was from a second firearm even though same caliber and make and model of ammunition, they were determined to be two separate weapons.

Id. at p. 39. Detective Snyder opined that there were not only two separate firearms used, but that

there were also two separate shooters. He reached this conclusion based on the significant distance

between the location of where the bulk of the shell casings were found and the location of where the

other casings and live round were found. Id. at p. 40.

The evidence presented at trial shows that Appellant was the member of the conspiracy who

devised the murderous plot and ordered Robinson, his co-conspirator, to carry out the plot. In

accordance with these orders, Robinson went to the home of Janine Edwards, where the murder

10 ·.,""":-o-

occurred, which was where they expected the victim to be at that time, and murdered the victim by

shooting him at least five times. See N.T., 1/12/17, at pp. 128-129. As stated above, whether or not

Appellant was actually one of the shooters is of no consequence ifhe conspired with Robinson or

acted as Robinson's accomplice in carrying out the murder. The evidence presented at trial was

sufficient to establish beyond a reasonable doubt that Appellant, in a conspiratorial fashion, acted

with malice aforethought and with a specific intent to kill. See Com. v. Boyle, 470 Pa. 343, 368 A.2d

661 ( 1977) ( evidence that defendant was member of conspiracy to kill three persons was sufficient to

support guilty verdict against defendant in prosecution of three counts of first degree murder).

3. "Whether the Trial Court erred in granting the Commonwealth's Motion in Limine to present evidence of Patrick Hughes' drug dealing and prior drug arrests under Pa.R.P.E. [sic] 404(B) by Order and Opinion on November 14, 2016?";

This Statement of Error misconstrues the contents of this Court's Order of November 14,

2016. In our Order of November 14, 2016, we stated, in pertinent part, the following:

The Commonwealth is permitted to introduce evidence regarding the prior drug deal that occurred on November 23, 2012, including any related photographs and testimony.

The Commonwealth is precluded from introducing evidence regarding Hughes' prior drug arrest that occurred on February 24, 2011. However, any letters Hughes' sent to Nicole Green may be admitted in a matter consistent with the attached Opinion. Specifically, the letters must be appropriately redacted such that no reference is made to the aforementioned drug arrest or resulting incarceration.

Therefore, pursuant to the Order, we did not allow the Commonwealth to introduce

evidence of Appellant's drug dealing in general; rather, we allowed evidence of a singular "prior

bad act" of the drug deal that took place on November 23, 2012. As stated above, the reasons for

our allowance of the introduction of this evidence can be found in the detailed Opinion that

accompanied our Order ofNovember 14, 2016.

11 Importantly, we precluded the Commonwealth from introducing evidence regarding

Appellant's drug arrest that occurred on February 24, 2011. Indeed, we stated in our Opinion in

support of the Order of November 14, 2016 the following:

Even if the evidence of this prior drug arrest was relevant for the purposes claimed by the Commonwealth, we do not find that the Commonwealth has shown a sufficient connection between the drug arrest of February 24, 2011 and the homicide that occurred on November 23, 2012 such that such relevance would outweigh the potential for prejudice. We find that admitting evidence of another drug offense on the part of Hughes, which offense occurred over one year and nine months prior to the date of the homicide, would have a greater tendency to show Hughes' propensity for committing crimes and would divert the jury's attention away from its duty of weighing the evidence impartially.

See Opinion dated 11/14/16 at pp. 8-9. By way of our Order of November 14, 2016, we did not

permit evidence of any other prior drug arrest of Appellant to be introduce at trial,

4. "Whether the Trial Court erred in admitting 911 tapes referencing a Honda Odyssey without affording the Defendant his right to cross-examination guaranteed and (sic] by the Confrontation Clause of the United States Constitution? Crawford v. Washington, 541 U.S. 36 (2004) and its progeny" [sic]

In this Statement of Error, Appellant objects to the playing of one 911 tape to the jury in

which Christine Sandt reported her observations with regard to the November 23, 2014 shooting.

This 911 tape reflects a brief conversation between Ms. Sandt and the 911 operator in which Ms.

Sandt reports that there were shots fired, that she observed men running off toward a dark

colored van that was located by the Solo Mio Restaurant", and that the police could catch them if

they could get there quickly. N.T., 1/12/17, at pp. 73-75; see also Com. Exhibit 12.

Additionally, Ms. Sandt' s husband (hereinafter, "Mr. Sandt") is heard in the background of the

911 tape indicating to Ms. Sandt that the minivan toward which the suspects were running was a

Honda Odyssey. See Com. Exhibit 12. Ms. Sandt then relayed this information to the 911

5 We heard testimony from Detective Darren Snyder, that the Sole Mio Restaurant is less than half a block from the crime scene. N.T., 1/11/17, at p. 5. 12

------��- ·---· ---���--�-----"·•--·-···--··-·

operator. Id. Appellant argues that the introduction of this 911 tape violated his right to confront

Mr. Sandt because Mr. Sandt was unavailable to testify as to his knowledge regarding the make

and model of the minivan and because Ms. Sandt was not able to personally identify the minivan

as a Honda Odyssey at the time she placed the 911 call.

Initially, we point out that, via the discovery process, defense counsel had proper notice

of this 911 tape and its contents well before the start of trial. Further, Mr. Sandt was not named

on the Commonwealth's list of witnesses it intended to call at trial, which list was provided to

defense counsel prior to trial. N.T., 1/12117, at pp. 92-93, 97-98, 103. Rather than presenting

this Court with an appropriate Motion in Limine on this issue of Mr. Sandt' s availability as a trial

witness, counsel for Appellant waited until right before Ms. Sandt was about to testify during the

trial to present this issue to the Court.

Nevertheless, it was not en-or for the jury to hear the contents of the 911 tape because the

statements therein were nontestimonial. With respect to the Confrontation Clause, the Sixth

Amendment of the United States Constitution provides: "[ijn all criminal proceedings the

accused shall enjoy the right ... to be confronted with the witnesses against him." The United

States Supreme Court found that this Clause is applicable where the statement elicited is

"testimonial." In Crawford v Washington, the Supreme Court held that testimonial statements by

declarants who do not appear at trial may not be admitted unless the declarant is unavailable and

the defendant had a prior opportunity to cross-examine the declarant. Crawford v. Washington,

541 U.S. 36, 51, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177 (2004). Here, however, the

Confrontation Clause is not implicated because the statements at issue in the 911 tape are

nontestimonial.

--- -----····--··--. ··-·····--···-·-·· --··· ln Davis v. Washington, where the statements at issue were from a victim describing an

ongoing domestic disturbance to a 911 operator, the Supreme Court defined what constitutes

"testimonial" and "nontestimonial" statements as follows:

[S]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Davisv. Washington, 541 U.S. 813, 8!3-14, 126 S. Ct. 2266, 2268-69, 165 L. Ed. 2d 224

(2006). The Court further stated, C(A 911 call ... and at least the initial interrogation conducted

in connection with a 911 call, is ordinarily not designed primarily to establish or prove some past

fact, but to describe current circumstances requiring police assistance." Id. at 827 (internal

citations and punctuation omitted).

Further, in Michigan v. Bryant, the Supreme Court found that a statement made to law

enforcement for the primary purpose of responding to an ongoing emergency is nontestimonial

and not within the scope of the Confrontation Clause. Michigan v, Bryant, 562 U.S. 344, 370,

131 S. Ct. 1143, 1162, 179 L. Ed. 2d 93 (2011). The Bryant Court stated, 'lfue existence and II duration of an emergency depend on the type and scope of danger posed to the victim, the police, I and the public." Id. at 370-71.

Instantly, because the 911 call at issue was made for the primary purpose of responding I � I to an ongoing emergency, it consists ofnontestimonial evidence which falls outside of the I Confrontation Clause and need only satisfy the Evidence Rules for admissibility. See Com. v. I Williams, 103 A.3d 354 (Pa. Super. 2014). In Commonwealth v. Hood, 872 A.2d 175 {Pa. Super. I 2005), the Pennsylvania Superior Court found that a statement in a 911 call can be either an I 14

-----······--·············· . . . ···--··--· --------

excited utterance or present sense impression if the surrounding circumstances indicate that the

caller actually witnessed what they described in the call. Id. at 184.

In the instant matter, Ms. Sandt's statements consisted of excited utterances as she

described, in a hurried manner, that she had just heard shots fired in the City of Easton. This call

was made to the 911 dispatcher as Mr. and Ms. Sandt were observing the event transpire at

around 5:45 p.m. on the evening in question. Ms. Sandt indicated in the call that she observed

two men run off toward a minivan and asked for the dispatcher to quickly send police so that the

suspects could be apprehended. Therefore, it is clear that all of the descriptive statements made

in this call, including the description of the minivan as a Honda Odyssey, were made during an

ongoing emergency and to prevent any further danger to the public.

Evidence adduced at Appellant's trial contained sufficient "other corroborating evidence"

to justify the admission of the 911 tape at issue. Hood at 184.6 This other evidence that

corroborates Ms. Sandt's statement that the minivan she observed was a dark colored Honda

Odyssey includes the video recovered from the Sole Mio Restaurant that depicts two males

running toward a dark colored minivan, as well as other witnesses who testified that they

observed suspects running from the scene toward the Sole Mio Restaurant.

As such, the testimony of neither Ms. Sandt nor Mr. Sandt was required with respect to

this call as the statements made in the 911 call are nontestimonial statements not subject to the

Confrontation Clause and do not constitute inadmissible hearsay. Further, they were

corroborated by other evidence adduced at trial. Therefore, this Court did not commit an en-or

when it allowed the introduction of the statements made in the 911 call.

6 Pursuant to the Rules of Evidence, statements made in 911 calls are admissible hearsay as either excited utterances or present sense impressions, as long as there is corroborating evidence presented to indicate that the person who called actually witnessed what they describe in the call. Id. 15 5. "Whether this Honorable Court erred when it barred the Defense from cross- examining James Martin on his status as a sex offender registrant? See generally Pa.RE. 607; Commonwealth v. Cox, A.2d 923 (Pa. 1999); Commonwealth v. Murphy, 591 A.2d 278 (Pa. 1991); Commonwealth v. Harris, 852 A.2d 1168 (Pa. 2004)"

It was not error to preclude testimony regarding Mr. Martin's status as a sex offender

registrant. There were no facts elicited during the direct examination of Mr. Martin that would

have opened the door for this testimony.

To the extent Appellant argues that Mr. Martin's status as a sex offender registrant is

admissible because it is equivalent to having a parole or probationary status, this argument is

meritless. While defense counsel presented us with case law which stood for the general

proposition that evidence that a witness is on parole and/or probation is admissible because it

demonstrates that the witness had a motive to testify favorably for the Commonwealth, counsel

had no case law which indicated that a status as a sex offender registrant was equivalent to that

of being on probation.

Moreover, to the extent Appellant is arguing that Mr. Martin had a motive to provide

favorable testimony for the Commonwealth due to any potential violations he may have had with

respect to his ongoing reporting requirements pursuant to Megan's Law, this Court agreed with

defense counsel at the time of trial that they should be permitted to cross-examine Mr. Martin

regarding bias and why he might have cooperated with the Commonwealth. Id. at p. 160. We

permitted defense counsel to cross-examine Mr. Martin on the charges he believed he was facing

in terms of jail time at the time he cooperated with the Commonwealth, the minimum and

maximum sentences possible for those crimes, as well as the ultimate sentence that he received.

16 ·-----··---------

Id. at pp. 155-156, 160, 166-169. What we did not permit, however, was for Appellant's counsel

to inappropriately question Mr. Martin about his status as a sex offender registrant, which would

have been entirely irrelevant.

Mr. Martin testified at trial that he had no reason to provide favorable testimony for the

Commonwealth and that he was not offered anything for this testimony. Specifically, Mr.

Martin explained during his testimony that the reason he initially spoke to the police was because

he realized that he was being implicated for criminal actions in an entirely different case. Id. at

pp. 138-142; 145-147. When Mr. Martin spoke to the police in order to clear his name in that

particular case, that is when the detectives were notified that he was Appellant's cellmate and

began to question Mr. Martin regarding the instant case. Id. Mr. Martin testified that he did not

cooperate with the Commonwealth in exchange for any benefit because he, "[d]idn't really have

nothing to fight for. By the time [he] got to court, [he] was going to get time served anyway."

Id. at p. 137. See also id. at p. 170. Mr. Martin reiterated several times during his testimony that

the District Attorney's office did not offer anything in exchange for his testimony in this case:

Attorney Pepper: District Attorney's office offer you anything?

Mr. Martin: Never

Attorney Pepper: So much as buy you a cup of coffee?

Mr. Martin: Never.

Attorney Pepper: Offer you anything?

Mr. Martin: (Shakes head.)

Attorney Pepper: Did you get anybody from law enforcement about coming forward in this case? [sic]

17 ·-· - ---··------------ --- - ····- ----- ------------·.

Mr. Martin: No.

Attorney Pepper: Not even a cup of coffee?

Mr. Martin: No. And the Ree Figueroa case that was basically to cover my ass because somebody got on the jail phone and implicate me in a capital case.

Id. at p. 147; see also id. at p. 143. Appellant's counsel was given sufficient opportunity to

cross-examine Mr. Martin with respect to any potential motivation he may have had for

testifying favorably for the Commonwealth. See id. at pp. 135-137, 141-143.

Thus, it was not error on the part of this Court to deny defense counsel's request to elicit

evidence regarding Mr. Martin's status as a sex offender registrant which testimony would have

been irrelevant and unduly prejudicial. Accordingly, this issue is meritless.

6. "Whether this Honorable Court erred when it failed to grant Defendant's request for a mistrial due to Nicole Green's [sic] testimony that Defendant was incarcerated during most of the time they dated? [N.T., 1/13/17, Page 207-208.]"

The basis for Appellant's motion for a mistrial was a statement made by Nicole Greene,

Appellant's ex-girlfriend, which referenced Appellant's incarceration. The following exchange

between Ms. Greene and counsel for the Commonwealth contains the objected to statement:

Attorney Pepper: When were you dating, how would you characterize the relationship that you had with Mr. Hughes?

Ms. Greene: Off and on.

Attorney Pepper: Was it an intense relationship?

Ms. Greene: He ·was in jail most of the time that 'we ·were together.

N.T., 1/13/17, at p. 207. Immediately following this exchange, defense counsel made an

objection on the record, and discussion occurred in the undersigned's robing room.

-- ... ····--·-·· .. --· ·- -----··· --�--- .... -·· --- 'd•, ..... ,.• , -.,. .. .. __ ...• �.· ·•• ··-· ··-·

The remedy of a mistrial is within the sound discretion of the trial court, and a court need

only grant a mistrial where the alleged prejudicial event may reasonably be said to deprive the

defendant of a fair, impartial trial. Com. v. Messersmith, 860 A.2d 1078, 1092 (Pa. Super.

2004). When dealing with a motion for mistrial due to a reference to past criminal behavior, the

nature of the reference and whether the Commonwealth intentionally elicited the remark arc

considerations relevant to the determination of whether a mistrial is required. Com. v.

Kerrigan, 920 A.2d 190, 199 (Pa. Super. 2007). Mere passing references to a defendant's prior

criminal activity do not warrant reversal, unless the record illustrates that prejudice resulted from

the references. Com. v. Valerio, 712 A.2d 301, 303 (Pa. Super. 1998).

Primarily, we point out that the statement that Appellant "was in jail most of the time that

we were together" was a single reference to the fact that Appellant was incarcerated. Ms. Greene

did not specifically state when Appellant was incarcerated, the nature of his incarceration, or the

charges for which he was incarcerated. Indeed, any further reference to Appellant's

incarceration was terminated upon defense counsel's immediate objection. At most, the jury in

this case could have inferred that Appellant was incarcerated at some point in his past for an

unknown crime. See Kerrigan, 920 A.2d at 200. Ms. Greene's singular, passing reference to a

prior conviction/incarceration is simply not sufficient to show that we abused our discretion in

denying Appellant's motion for a mistrial. See. e.g., Kerrigan, supra. See also, Com. v.

Guilford. 861 A.2d 365 (finding no trial court error in denying a mistrial where there were two

passing references to the defendant's prior convictions).

Further, it is clear that the Commonwealth did not intentionally elicit the information

from the witness in this case. First, Ms. Greene's remark that Appellant was in jail for most of

the time that they were together was not directly responsive to the Commonwealth's question of

... ... -· - � ··-· •· .... - -···---.. ··-'·'··-·· . -···�·-- ...... ,., ..... -··-··- -- ... , ,·-····· .... whether they had an intense relationship. Also, during sidebar following Appellant's objection,

the Commonwealth unequivocally stated several times on the record that the subject remark

regarding Appellant's jail time was something Ms. Greene blurted out after being advised and

warned about. N.T., 1/13/17, at pp. 209, 210. In fact, the Commonwealth asked the Court for

permission to again caution Ms. Greene to refrain from making any additional reference to

Appellant being incarcerated or to Appellant's prior convictions before she retook the witness

stand. Id. at pp. 213, 216.

Although Ms. Greene's passing remark regarding Appellant's jail time, was not so

prejudicial as to warrant a mistrial, we nevertheless gave the following cautionary instruction to

the jury:

Members of the Jury, you heard reference from the witness to Mr. Hughes being in jail, You should not consider this information for any purpose other than only in terms of the historical background of the relationship and for no other reason. You may not consider any prior incarceration of Mr. Hughes as relevant to your determination of his guilt or innocence in this case.

Id. at pp. 216-217.

Here, it is evident that Ms. Greene's reference was not intentional and the nature of her

comment was innocuous; therefore, our prompt curative instruction effectively remedied any

negative influence the reference would have potentially had on the jury. Thus, our denial of

Appellant's request for a mistrial did not constitute an abuse of discretion, and this issue is

without merit.

7. "Whether the verdict was against the weight of the evidence."

The weight of the evidence presented at trial was sufficient to support a verdict of guilty

of criminal homicide as murder of the first degree and criminal conspiracy to commit murder of

2.0

----------------·······-· ··-··-·-····· ······· .........•. ······ ... --------····--·-··· -

'•"'-,.·

the first degree. In evaluating a challenge to the weight of the evidence, the standard has been

set forth in Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403 (2003):

The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, (an appellate court) may only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of justice. Moreover, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.

Champney at 443, 832 A.2d at 408 (internal citations, quotations, and punctuation omitted). "A

true weight of the evidence challenge concedes that sufficient evidence exists to sustain the

verdict but questions which evidence is to be believed." Com. v. Galindes, 786 A.2d 1004, 1013

(Pa. Super. 2001). It is also important to point out that "[i]n criminal proceedings, the credibility

of witnesses and weight of evidence are determinations that lie solely with the trier of fact,

[which] is free to believe all, part, or none of the evidence." Com. v. Lewis, 911 A.2d 558, 566

(Pa. Super. 2006).

In this case, credible testimony which did not weigh in Appellant's favor, was provided

by several witnesses. Along with this testamentary evidence, cell phone records placing

Appellant and Robinson together near the crime scene on the date of the homicide, letters in

which Appellant professed his love to Nicole Greene, surveillance videos depicting Appellant

making a drug transaction on the date of the homicide and then going to a house with a Honda

Odyssey parked outside of it, and the video of Appellant's interview with Detective Snyder, were

entered into evidence.7 Accordingly, given the credible testimony and other evidence presented

7 See above for a more detailed discussion regarding the sufficiency of the evidence presented at trial, which we incorporate by reference.

21 ····· -·-·------------------·

at trial, the verdict rendered was not so "contrary to the evidence as to shock one's sense of

justice," and therefore, was not against the weight of the evidence. Champney, supra.

8. "Whether the Trial Court erred over Defendant's objection in denying Defendant's Motion for Severance, failing to order separate Trials, and determining that your Defendant would not be prejudiced by being tried with his Co-Defendant, Omar Robinson: See Pa.R.Crim.P. Rule 583"

The reasons for our denial of the motion to sever the trial can be found in this Court's

detailed Opinion addressing the Omnibus Pretrial Motions of Appellant and Robinson. This

Opinion and accompanying Order were issued and filed on August 15, 2016.8

9. "Whether the Trial Court erred in failing to grant Defendant's Motion for Change of Venue/V enire where the pretrial publicity was sustained, pervasive, inflammatory, and inculpatory and there was a presumption of prejudice in selecting a fair and impartial jury from Northampton County? See Commonwealth v. Bridges, 757 A.2d 859, 871 (Pa.Super. 2000)"

The reasons for our denial of Appellant's motion to for a change of venue indicated in

this statement of error can be found in this Court's detailed Opinion addressing the Omnibus

Pretrial Motions of Appellant and Robinson dated August 15, 2016.9

Additionally, while we denied Appellant's motion for a change of venue in our Opinion

of August 15, 2016, we did so without prejudice to Appellant's right to renew his request based

upon the responses of the venire during jury selection. An extensive voir dire process took place

at the outset of Appellant's trial during which counsel for Appellant asked the following

question:" ... this particular case on west St. Joseph Street on the south side of Easton in

November 2012 received considerable publicity in the Express Times and The Morning Call and

also in the local TV outlets. Anyone read about this case or see anything on TV about this

8 We discuss our reasoning for denying the motion to sever the trial at pages 17-21 of the Opinion. 9 We discuss our reasoning for denying Appellant's motion for change of venue at pages 14-17 of the Opinion.

22 - case?" N.T., 1/9/17, at p. 105. In response, four members ofthejury panel indicated that they

remembered seeing and/or hearing about this case in the media. Id. at pp. 105-107. All four of

these individuals indicated that the fact that they encountered this case in the media would not

affect their ability to be fair and impartial jurors in the case. Id. Also, counsel for Appellant did

not renew the request for a change of venue. Therefore, this issue is without merit.

10. "Whether the Trial Court erred in failing to grant Defendant, Hughes', motion to suppress statements made to police on December 5, 2012 and December 4, 2014?"

The reasons for our denial of Appellant's motion to suppress statements indicated in this

statement of error can be found in this Court's detailed Opinion addressing the Omnibus Pretrial

Motions of Appellant and Robinson dated August 15, 2016. 10

11. "Whether the sentence of the Court to a mandatory life sentence without the possibility of parole for first degree murder is unlawful where the underlying statute is unconstitutional and the sentencing issue was not presented to the jury? Alleyne v. U11ited States, 133 S.Ct. 2151 (2013); 18 Pa. C.S.A. §1102, 42 Pa.C.S.A. §9711"

12. "Whether the mandatory sentence of Defendant to life imprisonment without the possibility of parole for Murder of the First Degree violates the Eighth Amendment Prohibition on cruel and unusual punishment?"

At Appellant's sentencing, this Court imposed a mandatory term oflife in prison for the

first-degree murder conviction, which rendered Appellant ineligible for parole.!' See 61 Pa.C.S.

§ 6137(a)(l )12•

10 We discuss our reasoning for denying Appellant's motion to suppress statements made to police on December 5, 2012 and December 4, 2014 at pages 21-29 of the Opinion.

11 We also ordered Appellant to serve a concurrent tenn of twenty to forty years' imprisonment for the conviction of criminal conspiracy to commit criminal homicide as murder in the first degree.

12 61 Pa.C.S. § 6137 provides in relevant part:

(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 in its opinion: 23 We imposed this sentence pursuant to 18 Pa.C.S.A. § 1102, which states:

(a) First degree>- ( l) 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.A. § 1102(a) (emphasis added).

The Pennsylvania Superior Court has previously addressed the constitutionality of

mandatory life sentences for the crime of first-degree murder. In Commonwealth v. Waters, the

Superior Court stated:

A mandatory life sentence, as established by the legislature, is clearly not cruel and unusual punishment for the crime of first-degree murder. Indeed, this issue has already been decided in Commonwealth v. Sourbeer, [422 A.2d 116, 123 (Pa. 1980)], in which the Supreme Court stated that a mandatory life sentence: is not cruel and unusual punishment for it is not an excessive and unnecessary punishment disproportionate to the crime and does not shock the moral conscience of the community.

Com. v. TVaters, 483 A.2d 855, 861 (Pa. Super. 1984).

In the case subjudice, Appellant was convicted of committing first degree murder as an

adult and was sentenced pursuant to the mandatory sentence provision established by the

legislature at 18 Pa.C.S.A. § 1102.13 Our current jurisprudence holds that mandatory life

(i) The best interests of the inmate justify or require that the inmate be paroled. (ii) It does not appear that the interests of the Commonwealth will be injured by the inmate's parole.

61 Pa.C.S. § 6137(a)(l) (emphasis added).

13 While the United States Supreme Court has held unconstitutional the application of mandatory life sentences

without the possibility of parole to individuals under the age of eighteen at the time they committed the crime for which they received the life sentence, we need not consider this application as there is no dispute that Appellant was over the age of eighteen at the time he committed murder in the first degree. See Miller v. Alabama, 132 S. Ct. 2455 (2012).

24 , __

sentences without the possibility of parole for individuals over the age of eighteen convicted of

first degree murder do not violate the United States or Pennsylvania constitutional prohibitions

against cruel and unusual punishment. See Waters, 483 A.2d at 861; see also Miller v. Alabama,

132 S. Ct. 2455 (2012).

Given the foregoing, it is clear that this Court lacked any legal authority to impose a

sentence less severe than that mandated by the legislature. These statements of error are without

merit.

13. "Whether the Court erred in denying Defendant's request to instruct the Jury that in Pennsylvania the mandatory sentence for first degree murder is life imprisonment without the possibility of parole."

The role of the jury is to determine guilt or innocence. According to the Pennsylvania

Supreme Court, «the jury has nothing to do with the punishment of an offense, ... [i]n all other

instances, punishment is a matter solely for the court and not for the jury to know or consider

during its deliberations." Com. v. White, 504 A.2d 930, 930 (Pa. Super. 1986) ( citing

Com. v. Lucier, 424 Pa. 47, 49, 225 A.2d 890, 891 (1967)).14 See also Com. v. Waters, 483 A.2d

855, 860 (Pa. Super. 1984) (trial court was correct in prohibiting defense counsel from

discussing the penalties of the offense in his closing arguments).

Here, this Court clearly and accurately instructed the jury that the verdict should be based

on evidence and not on what the penalty might be in the event of a conviction. We instructed as

follows:

In arriving at a verdict, you should not concern yourselves with any possible future consequences of your verdict, including what the penalty might be if you should find the defendants guilty. The question of guilt and the question of penalty are decided separately.

t4In White, the appellate court found that the trial court was correct in refusing to instruct the jury that a mandatory sentence would be imposed if appellant were found guilty. 25 --------··--- -··---

N.T., 1/19117, at p. 143. This instruction properly informed the jurors as to their appropriate

function of determining the facts of the case. No error was committed in denying Appellant's

improper request to instruct the jury regarding the mandatory sentence of first degree murder.

IV. Conclusion

In conclusion and as indicated above, this Court did not err as a matter of law and/or fact

in the matter sub Judice, and Appellant's appeal should be denied.

BY THE COURT t

DATE: ,·o/ ��,1/ I,(, 1, I 7

26 Circulated 02/26/2019 01:54 PM

COPY IN THE COURT OF COI\1MON PLEAS OF NORTHAMPTON COUNTY COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

v. No. CR-1347-2015 No. CR-1892-2015 .OMAR ROBINSON; PATRICKT. HUGHES, Defendants. r-:» .-;:, �.:.; c., ,. � � ·:, ..>l:• .·,:..·, : 1 : '!=�� ,· "11••····•1 J :J ) . • .� .. 'I (.

Appearances: Brian M. Monahan, Esquire, fur Defendant Patrick T. Hughes :··'. ·./.:; Cf I l ·•··· Liam J. Riley, Esquire, for Defendant Omar'Robinson . '.. '.'::"< ···r ·.1 Assistant District Attorney William Blake, Esquire, for the Commonwe�lt.�.:f ;_i-; !· ;

: . -�.;.. ,) r·.) r::·:::J • • � • r •

.,, '" ;·.·... !'·,,) :.:� ti) OPINION U)

This matter comes before the Cmn t. on the Omnibus Pretrial Motions of Defendant Omar

Robinson {hereinafter, "Robinson") and Defendant Patrick T. Hughes (hereinafter, "Hughes")

(collectively, "Defendants"). For the reasons that follow, with the exception of Hughes' motion to

suppress statements made by him on December 11, 2012 only, all other of'Defendants' Motions are

DENIED.1

Robinson ischarged with Criminal Homicide, in violation of 18 Pa.C.S.A. § 2501, for

intentionally, knowingly, recklessly or negligently causing the shooting death of Elvin Holton on

November 23, 2012. Hughes is charged with Criminal Homicide, in violation of 18 Pa.C.S.A.

§ 2501, for soliciting Robinson to commit the offense of the aforementioned criminal homicide

and/or aiding, agreeing, or attempting to aid. Robinson in planning or committing . same. Both

Defendants are also charged with Criminal Conspiracy to Commit Criminal Homicide, in violation of

l Hughes's molfon for change of venue, more specifically described below, will be denied without prejudice to his right to renew that request if the jury selection process indicates that an impartial jury cannot be selected because the members of the venire arc unable to set aside any opinions that they formed based upon the pre-trial media reports and to decide the consolidated cases objectively based upon the evidence presented. 1 18 Pa.C.S.A. § 903 Al, for conspiring with the other to cause the death of Ervin Holton. On

December 4, 2014, Robinson and Hughes were arrested in connection with the death of Ervin

Holton.

Robinson�s Motions

Robinson seeks three2 forms of relief. First, he first seeks to sever his joint trial from the co-

defendant Hughes, arguing that he will be prejudiced by a single trial due to the prospect of Hughes

offering incriminating statements at trial. Second, Robinson seeks to suppress evidence seized from

a 2007 Honda Odyssey minivan (hereinafter, "the minivan") on the following grounds: that he had a

reasonable expectation of privacy in the minivan; that he withheld his consent for the police to search

the minivan; that the police did not have probable cause or reasonable suspicion that the minivan

contained evidence of a crime prior to conducting the search; and that any items discovered pursuant

to the subsequent execution of the search warrant obtained are products of the initial unconstitutional

search of the minivan. Third, Robinson filed a Habeas Corpus Motion to Dismiss the Information

filed against him.

Hughes' Motions

Hughes seeks several forms of relief First, Hughes seeks to sever his joint trial from the

co-defendant, Robinson. Second, citing to pre-trial publicity and media reports, Hughes requests a

change in venue/venire. Third, Hughes seeks to suppress statements he allegedly made because he

claims that he was not properly advised of his Miranda rights and that certain statements he made

were obtained by unlawful actions of the police that resulted in coercion and the overbearing of his

will. Fourth, Hughes petitions for a "writ of habeas corpus/motion to quash" on the grounds that the

2 In Robinson's Omnibus Pretrial Motion, he originally sought an additional form of requested relief, that being a "Motion to Compel Additional Discovery... However. at the hearing on the omnibus pretrial motions, counsel for Robinson stated that this motion need not be addressed by the Court as all discovery had been received from the Commonwealth up to the current point in time. See Notes of Testimony (N.T.), 3nll6, at p. 18. See also Id. at p. 10. Therefore, we need not address Robinson's Motion to Compel Additional Discovery herein.

2 Commonwealth failed to make a prima facie case and that his right to be free from unreasonable

seizures of his person was violated. Specifically, he argues that although a preliminary hearing was

held, no transcript of that hearing exists. Finally, at the hearing on the instant omnibus pretrial

motions, Hughes joined Robinson's motion to suppress evidence seized from the minivan.3 4

On March 7, 2016, Defendants and all counsel appeared before the undersigned for a hearing

on Defendants' Omnibus Pretrial Motions. The Court heard testimony from Detectives Matthew

Rush, Christopher Miller, and Darren Snyder, all of whom are employed by the City of Easton Police

Department; and Timothy Graves, who is currently an inmate in a State Correctional Facility. The

Commonwealth supplemented the factual record with the transcript of Robinson's Preliminary

Hearing, held on April 29, 2015, as well as the exhibits attached thereto. At Robinson's Preliminary

Hearing, the following individuals gave testimony: Sergeant Richard Weber, employed by the City of

Easton Bureau of Police; Zachary Lysek, employed by the County of Northampton as the coroner;

and Detectives Rush, Miller, and Snyder.5

3 In his Omnibus Pretrial Motion, Hughes also presents a "Motion to Compel," a "Motion for Disclosure of Exculpatory Evidence by the District Attorney," and a "Motion for Disclosure oflnventory of All Physical Evidence in the Possession of the Commonwealth." However, at the hearing on his Omnibus Pretrial Motion, counsel for Hughes indicated that all discovery had been received from the Commonwealth up to the current point in time. See N.T. at p. 10. Additionally, Hughes's counsel stated that his motion for exculpatory evidence was included within his discovery request which was moot. Therefore, we need not address these motions herein. 4 We note that Hughes also presented a Motion "to Extend Time for Filing of Supplemental Omnibus Pretrial Motions". This Court addressed this request at the time of the hearing on the Omnibus Pretrial Motions. While we granted Hughes the additional time he requested, Hughes filed no additional motions. 5 The exhibits admitted into evidence by the Commonwealth at Robinson's Preliminary Hearing consist of the following:

Commonwealth Exhibit IA- Overhead satellite photograph of the neighborhood of the l 00 Block of West St. Joseph Street, Easton, Pennsylvania;

Commonwealth Exhibit IB =Daytime photograph of the residence at which officers responded to the incident in question, located at 147-145 West St. Joseph Street;

Commonwealth Exhibit 1 C - Nighttime photograph of the 147-145 West St. Joseph Street residence, depicting fabric barricades set up by the criminal investigative division;

Commonwealth Exhibit ID·- Photograph of 147-145 West St. Joseph Street, taken on the evening in question,

3 On March 23, 2016, Hughes filed a Memorandum in Support of his Omnibus Pretrial

Motions. In said Memorandum, the only issues that were briefed were Hughes' Motion for Change

ofVenueNenire and Hughes' Motion to Suppress Search of the Van. Counsel for Defendant

Robinson presented oral argument during the March 7, 2016 hearing; however, he did not file any

additional written argument with respect to his Motions. The Commonwealth filed Answers to both

Defendants' Motions, as well as a Memorandum in Opposition to Hughes' Motion. Trial in this

matter is scheduled to commence on September 6, 2016.

depicting a tan-colored car in front of the residence, a blue canopy set up in order to preserve evidence from the rain, and evidence markers on the sidewalk;

Commonwealth Exhibit IE-Photograph of 147-145 West St. Joseph Street, depicting crime scene tape in front of 145 West St. Joseph Street, a black sheet shielding a direct view of the residence at 147 West St. Joseph Street, and evidence markers;

Commonwealth Exhibit lF +Photograph of the porch of 147 West St. Joseph Street, depicting a deceased male in the threshold ofthe doorway;

Commonwealth Exhibit lG- Photograph of the body of Ervin Holton as identified by Northampton County coroner, Zachary Lysek;

Commonwealth Exhibit l H-J - Photographs of Patrick Hughes, Omar Robinson, and Qawi Hutcheson, taken on November 231 2012 on or around the 300 Block ofNorth 7'h Street near the intersection of Sassafras Street in Easton, Pennsylvania;

Commonwealth Exhibit 2 - Coroner's Investigative Report;

Commonwealth Exhibit 3 -Autopsy Report, prepared by Dr. Edward Chmara;

Commonwealth Exhibit 4 - Death Certificate of Ervin Holton;

Commonwealth Exhibit 5 - Video footage from November 23, 2012, which was obtained from Tommy's Sole Mio Restaurant in Easton, Pennsylvania;

Commonwealth Exhibit 6 =Lab report from the Pennsylvania State Police Bureau of Forensic Sciences regarding shell casings and a live round obtained from the scene of the homicide;

Commonwealth Exhibit 7 - Report from RJ Lee Group regarding samples collected from inside of the minivan.

4 I. Factual Background

On November 23, 2012, the day after Thanksgiving, commonly referred to as "Black Friday'",

Sergeant Weber and Detectives Rush, Snyder, and Miller responded to the scene of a shooting at

145-147 West St. Joseph Street, Easton, Northampton County, Pennsylvania (the south side of

Easton), where they found a deceased male with multiple gunshot wound injuries. N.T., 4/29/15, at

pp. 7-14, 37, 57, 94, 112-113. These officers responded to the scene as a result of an initial call to

the 911 dispatch center which was placed earlier that day at approximately 5 :41 p.m. Id. See also id.

at p. 52.

Coroner Zachary Lysek, who also reported to the scene, identified the victim as Mr. Ervin Holton

(hereinafter, "Holton"), and ruled that the manner of death was a homicide as a result of multiple

gunshot wounds. Id. at pp. 38, 39, 40, 48-50. Upon the officers' arrival at the scene, they observed

Bolton's lifeless body in the threshold of the doorway of 147 West St. Joseph Street in a slouched

position between the screen door and the main door. Id. at pp. 13, 21, 57, 113. They also observed

multiple shell casings on the surrounding street and sidewalk area. Id. at pp. 16-18, 113-116.

Detective Snyder found a live round on the steps leading up to the residence. Id. Photographs were

taken at the scene, depicting these observations.

While at the scene of the shooting, Sergeant Weber and two other officers went inside of the

residence at 147 West St. Joseph Street where they encountered two females. Id. at pp. 13, 25, 28,

84-85. One of the females reported to Sergeant Weber that she heard gunshots and pounding on the

door. Id. at p. 27. Detective Rush testified that he also had the opportunity to speak with Janine

Edwards, one of the women who resided at the address. Id. at pp. 57-58. See also id. at p. 125. Ms.

Edwards identified herself as Holton's friend, and she informed Detective Rush that Holton had been

coming to her residence in order to borrow her vehicle because his vehicle was experiencing

6 This was also the evening of the "Christmas Candle Lighting," a ceremonial lighting of a structure resembling a peace candle, which takes place in Eeston's downtown Center Square. N.T., 4129116, at p. 12

s mechanical problems and that he had called her briefly before she heard the gunshots. Id. at pp. 581

84.

Approximately one or two days after the date in question, Detective Miller went to Tommy's

Sole Mio Restaurant, which is approximately one block northwest from the crime scene, in order to

obtain video surveillance from cameras that were placed outside of the restaurant. Id. at p. 95; see

also id. at pp. 59-60, 70. Detective Rush, who also assisted in the collection of the video

surveillance, provided testimony regarding the footage. The footage collected from Tommy's Sole

Mio Restaurant is from November 23, 2012 between the times of roughly 5 p.m. and 7 p.m., however

the relevant footage about which Detective Rush testified during Robinson's preliminary hearing is

an eleven minute clip. Id. at pp. 66, 70, 81. The footage was taken from cameras that were placed at

different locations of the restaurant so that different angles and directions were able to be viewed.

See Id. at pp. 62- 70. The camera that faced Madison Street in Easton showed a dark-colored minivan

pulling west onto Madison Street and parking along the roadway at approximately 5:39 p.m. Id. at p.

67; see also id at Com. Exhibit "5.,. The surveillance shows that the minivan was parked for a few

moments when two individuals exited it and headed south through the restaurant's parking lot. Id.

The camera that faced the alleyway to the left of the restaurant showed a closer view of the same two

individuals walking through the parking lot until they walked out of sight of all cameras. Id. at p. 68;

see also id. at Com. Exhibit "5". Approximately one minute and twenty seconds later, both cameras

show the two individuals running from the direction that they had previously been going. Id. at pp.

69, 71; see also id. at Com. Exhibit "5''. They are seen running back towards the minivan, getting

into the minivan, and pulling away west onto Madison Street. Id.

Detective Rush testified that on November 24, 2012, an individual identified as Miss Sandt called

him and reported that she had been in the area at the time of the shooting and that she observed two

males running in front of her vehicle and through the Tommy's Sole Mio parking lot. Id. at pp. 72-

73. She indicated that these males got into a dark-colored Honda Odyssey minivan and left the area, 6 driving west on Madison Street. Id. at p. 73. Based on this information, officers within the Easton

Police Department determined that the minivan in question was registered to an individual named

Barbara Doorley. Id. at pp. 73-74; see also N.T., 3nl16, at p. 26. The officers obtained two

addresses in connection with the minivan and Barbara Doorley. N.T., 3/7/16, at pp. 52, 70.

On November 28, 2012, Detective Miller went to 3040 Eldridge A venue in Palmer Township,

Northampton County, in an attempt to locate the minivan. Id. at pp. 60, 69-70; see also N.T.,

4/29/15, at pp. 96-97. Detective Miller came into contact with Robinson, who resided at this address.

Id. Robinson indicated that his girlfriend and her mother owned a minivan; however, neither of them

were present at the residence at that time. N.T., 3/7/16, at pp 62; 72-73. Detective Miller testified

that he advised Robinson that he was there in connection with a homicide investigation, at which

point Robinson became upset and did not want to talk any further to Detective Miller. Id. at pp. 71-

72. Robinson gave Detective Miller his phone number and said that maybe he would be willing to

speak to him at a later time. Id. at pp. 72-74.

On that same date, Detective Rush spoke to Barbara Doorley's daughter, Lisa Doorley,

(hereinafter, "Ms. Doorley") on the telephone. Id. at p. 52; N.T., 4/29/15 at p. 75. Lisa Doorley

confirmed that she had access to a dark-colored Honda Odyssey and that she would arrive home at

3040 Eldridge Avenue in Palmer Township between 7:30 and 8:00 that night. N.T., 4/29/15, at p. 75.

Detectives Miller and Rush responded to the 3040 Eldridge Avenue residence that same night at

approximately 7:30 p.m. Id. at pp. 74-75. They waited in their vehicle for several minutes until Ms.

Doorley arrived in the dark-colored Honda Odyssey and pulled into the driveway. Id. at p. 75.

According to the testimony of Detectives Miller and Rush, they then exited their vehicle, approached

Ms. Doorley, identified themselves, and indicated that they would like to speak with her because they

were investigating the minivan in connection with a homicide. Id. At some point soon thereafter,

Detectives Miller and Rush entered the residence and encountered Robinson. Id.; See also N.T.,

3/7/16, at pp. 29-32.

7 A conversation about the minivan ensued between Detective Rush, Ms. Doorley, and Robinson

inside the residence. N.T., 3n/16, at pp. 30-32. Ms. Doorley indicated that although the minivan

was registered in her mother's name, she was the primary operator. N.T., 4/29/1 S, at pp. 79-80.

However, Robinson informed Detective Rush that, on November 23, 2012 between the hours of S

p.m. and 6 p.m., he was in possession of the minivan at a liquor store and a gas station. Id. at p. 81.

When Detective Rush informed Robinson that he would be able to obtain video surveillance to verify

what Robinson was telling him, Robinson asked the Detectives to step outside to continue the

conversation, away from Ms. Doorley and their children. Id. at pp. 81-82.

Further conversation took place outside of the residence between Detective Rush and Robinson.

Id. at p. 82. When Detective Rush informed Robinson that he had a video showing the minivan near

the scene of the homicide, Robinson became emotional and started shaking his head and crying. Id.

at p. 83. Detective Rush asked whether Robinson could have loaned the minivan out to someone else

at the time of the incident, but Robinson told Detective Rush that no one other than himself or Lisa

Doorley drove the minivan. Id. At some point while Detectives Rush and Miller were at the

Eldridge Avenue residence for purposes ofinvestigating the minivan, Robinson also had a

conversation with Detective Miller7 during which he again became upset, indicated that he did not

wish to speak any further, and returned to the inside of the residence. N.T., 3n/l6, at p. 67.

While Detectives Miller and Rush were outside of the residence, they spoke to Ms. Doorley

regarding her consent to search the minivan. Id. at pp. 64-65. Detective Rush testified that he asked

for Ms. Doorley's consent as opposed to Robinson's consent because Ms. Doorley was the one who

maintained the minivan financially and who operated it on a day-to-day basis. Id. at pp. 43-44. Both

Detectives Rush and Miller testified that Robinson never told them that he did not want them to

7 Detective Rush testified that this conversation took place after he spoke outside with Robinson, but before the minivan was searched. N,T., 3n/I6, at p. 32. Detective Miller testified that this conversation took place after the search of the minivan was concluded. N.T., 311/16, at p. 67.

8 search the minivan, and Robinson never exited the residence in an attempt to terminate the search.

Id. at pp. 42-43, 77.

Detectives Rush and Miller testified that Ms. Doorley gave them permission to search the

minivan by signing a written consent form, which signing they both witnessed; however, the form

was misplaced sometime thereafter. Id. at p. 33-35. Detective Rush also testified that Ms. Doorley

verbally consented to the search and provided them with the keys to the minivan. Id. at p. 33.

Further, Detective Rush testified that he informed Ms. Doorley that she had the right to terminate the

search at any time and that he stood next to Ms. Doorley while Detective Miller conducted the search

in case Ms. Doorley wanted to terminate the search. Id. at pp. 35-36, 46.

During Detective Miller's search of the minivan, which took approximately ten minutes. he

looked for the presence of a handgun, bullets, and casings. Id. at p. 41; N.T., 4/29/151 at p. 100. He

also performed a gunshot residue test on the passenger's and driver's side exterior door handles. the

passenger's and driver's side interior door handle8, the gear shift, and the steering wheel. N.T.,

4/29115, at pp. I 00-101. This test is performed by collecting microscopic particles onto a sticky

surface of a tube and then capping and securing the tube, and bagging it as evidence. Id. at p. 100.

Detective Miller testified that he later secured all six tubes in the Police Department's evidence

room. Id.

Detective Snyder sent four of the six tubes to the RJ Lee lab group for gunshot residue testing.

Id. at p. 120. Detective Snyder explained that he did not send out the two tubes from the exterior

door handles because they were exposed to the outside elements. Id. at p. 122. The test results

·BDetective Miller clarified that this is the handle that one would pull in order to close the door, not the handle one would pull to open the door from the inside.

9 revealed a positive presence for gunshot residue on the steering wheel and the driver's side interior

door handle.9 Id.

Detective Snyder was also responsible for collecting and sending out for testing the shell casings

and live bullet" that were found at the scene of the shooting at 145 and 14 7 West St. Joseph Street in

Easton. Id. at pp. 115-118. Detective Snyder testified as to the corresponding lab report results from

the Pennsylvania State Police Bureau of Forensic Sciences. He indicated that the report concluded

that two separate weapons were used in the incident with the bulk of rounds coming from one

weapon. Id. at p. 119. The report also concluded that the live round was chambered, attempted to

fire, but failed to discharge. Id.

Detective Snyder also testified that at an earlier time on the date of the shooting, a separate

investigation of Robinson, Hughes, and an individual named Corey Reavis (hereinafter, "Reavis")

was conducted by the vice department.11 Id. at p. 133. Specificaliy, Detective Arrendondo. who led

this investigation, conducted a controlled purchase of heroin at approximately 12:55 p.m. on

November 23, 2012 wherein a confidential informant, called "Mike Miller," was sent to purchase

heroin from Hughes at a location close to Reavis' residence on the 300 block of North 71h Street in

Easton. Id. at pp. 133-134; N.T.1 3/7/16. at p. 111-112. During the course of this controlled purchase

operation, Detective Arrendondo photographed the drug transaction taking place as well as several

males who were with Hughes at the time. (See Com. Exhibits "I H-J"). Detective Arrendondo

informed Detective Snyder that Robinson, Hughes, and an individual identified as Qawi Hutchinson

9 Detective Snyder explained that he sent the samples to RJ Lee for testing as opposed to the State Police because the State Police only accept samples taken directly from the suspect, not from other objects or locations such as a vehicle. Further, Detective Snyder testified that RJ Lee is a private lab company which is well known in the law enforcement field for forensic testing and that the turnaround time to receive results from RJ Lee is faster than if the State Police had performed the test. 10 Detective Snyder testified that when he reported to the scene, he observed a live round approximately three to four feet from Holton's body. Detective Snyder explained that a live bullet is a round that was not fired. 11 Detective Snyder testified that Reavis stated during an interview with police that he was the individual who drove Holton to King Mart, which is near the residence at 147 West St. Joseph Street, around the time of the incident, in order to pick up a vehicle from Janine Edwards.

10 (hereinafter, "Hutchinson") could be seen in the photos near Reavis' residence and that they arrived

at Reavis' residence together in a dark blue Honda Odyssey. N.T., 4/29/15, at p. 135. Detective

Snyder testified that his investigation of the homicide further revealed that Robinson and Hughes

were last seen together in the minivan at approximately 3:00 or 4:00 in the afternoon on November

23, 2012 prior to the homicide. N.T.i 3/7/16, at p. 92.

As part of the continuing investigation, Detective Snyder also obtained court orders for cell

phone records of Robinson, Hughes, and Reavis. Detective Snyder testified that these individuals,

themselves, provided their phone numbers to the police. N.T., 4/29/15, at pp. 124-125.

Subsequently, phone records of Robinson, Hughes, and Reavis were obtained for the days leading up

to and after the homicide. Id. at p, 126. Detective Snyder testified that in the hour and twenty

minutes leading up to the shooting, there were about forty answered and unanswered calls that took

place between Robinson, Hughes, and Reavis. Id. at pp. 130-131. At the time that the shooting was

reported to the police to have occurred, approximately 5:39 p.m., the calls between the three

individuals stopped. Id. at pp. 126, 130. An additional nine calls took place in the forty-five minutes

following the shooting. Id. at p. 131. The cell tower information revealed that the calls made to and

from the three individuals during this time period were all transmitted from the cell tower located on

the south side of Easton, indicating that the three individuals were in close proximity to this tower at

the time the calls were placed. Id. at pp. 144, 146.

On December 5, 2012, Hughes was arrested as a result of the controlled purchase/vice

investigation. N.T., 3/7/16, at pp. 93, 98. On that same day, Hughes was taken to the Easton Police

Department for an interview with Detectives Snyder and Rush. Id. at pp. 98, IO l. Prior to the

interview, Hughes signed a "Rights and Waiver" form indicating that he understood his Miranda

rights and that he was willing to waive these rights by answering questions without an attorney

present. Id. at pp. 100-101. Hughes' execution of the form, as well as the entire interview) was

audio/video recorded. Id. at p. 99. Detective Snyder testified that during this interview) he spoke to 11 Hughes about the vice investigation and about the shooting that occurred on that same day. Id. at p.

101.

Hughes initially indicated to Detective Snyder that on November 23, 2012, he was with his

girlfriend, Shanice Mendola, for most of the day. Id. at p. 102-104. When Detective Snyder

confronted him with his knowledge of photographs depicting Hughes' presence in Easton with

Robinson, Reavis, and Hutchinson for an undercover drug deal, Hughes provided another alibi,

indicating that at the time of the shooting, he was with his mother and had been making drug sales

throughout the city of Easton. Id. at pp. 104-105. While Hughes did relay to Detective Snyder that

he had passed Reavis around 5:00 p.m. near Reavis' residence, Hughes stated that he was selling

heroin to individuals named Lala, Sequoia, and Dan. Id. at pp. 105-107. Thereafter, Detective

Snyder spoke with Shanice Mendola, Lala, and Sequoia, and these individuals all provided differing

accounts. Id. at pp. 107-108. Sequoia specifically stated she did not believe Hughes was at her

residence on the date in question. Id. at p. 108.

On December 4, 2014, while Hughes had already been incarcerated on his drug-related charges,

he was served with a warrant with respect to the instant homicide case. Id. at p. 108. Detective

Snyder interviewed Hughes at which time Hughes executed another "Rights and Waiver'' form

wherein he waived his Miranda rights. Id. at pp. 108-109. During this interview, Hughes stated that

he did not understand why he was arrested for a homicide when he was not present at the scene on

that date. Id. at p. 111. The alibi he provided during this interview was that he was selling drugs to a

confidential informant named "Mike" at the time of the homicide.12 Id. at pp. 111-113. After

providing this alibi, Hughes requested to return to his cell. Id. at p. 113.

The Commonwealth also provided testimony from Timothy Graves (hereinafter, "Graves"), an

inmate incarcerated in a state correctional facility. Graves testified that he shared a prison transport

12 Notably, the vice investigation revealed that Hughes sold drugs to a confidential infonnant, "Mike Miller," at around 12:55 p.m. on November 23, 2012, not at the time of the homicide.

12 with Hughes on April 25, 2015 as they were both riding to Northampton County to appear in court on

unrelated matters. Id. at pp. J 30-13 I. Graves testified that during this transport, Hughes discussed

information relative to the case he had pending in Northampton County. Specifically, Graves

testified that Hughes first informed him that he was being transported to Northampton County

because he was caught possessing a cell phone in the prison. Id. at pp. 132-l 33. Hughes then

proceeded to tell Graves that Hughes was also being investigated regarding a case involving a

homicide in the City of Easton. Id. at pp. 132-133. According to Graves, Hughes indicated that he

"needed to be very careful about what he said to who because he had a previous 'cellie' that turned

around and apparently said everything that he told him about his crime." Id. at p. 134. Graves

testified regarding the conversation with Hughes as follows:

... then he continued on to say that that's going- it couldn't be used against him because it's hearsay. And he started to talk about how he was - when he was incarcerated on a previous charge, I guess an ex-girlfriend got with another guy. He mentioned that he might have been a rival drug dealer in Easton. And that he felt disrespected by that. And warned the guy several times not to talk to the girl anymore. And then went on to say that when he didn't stop seeing the girl, his mans handled that were his exact words.

Id. Graves also testified that Hughes told him that he prepared an alibi for the time of the homicide

because he was familiar with the City of Easton's police investigative tactics. Id. at p. 136.

Graves relayed the contents of this conversation to Detective Rush, who was one of Graves'

prosecuting officers, and later sent a letter to Detective Rush that included information that Graves

forgot to mention during his discussion with Detective Rush. Id. at pp. 136-13 7; 163-164 ; see also

Exhibit admitted on 3n/16 as "Exhibit 11." Graves testified that he was unaware at that time that

Detective Rush was involved with the investigation of the instant homicide case. Id. at p. 164.

Graves stated that he did not receive any promises for testifying about his conversation with Hughes

and that he was not aware of any circumstances where he could be released prior to his minimum

sentence. Id. at pp. 158-159. Rather, he indicated that his incentive for testifying in this matter was

13 "to do the right thing." Id. at p. 159. Notably, Graves is incarcerated as a result of a number of theft-

related convictions, or crimenfalsi.13 Id. at p. 138.

II. Discussion

A. Hughes' Motion for Change of Venue

Hughes requests a change of venue on the grounds that the pre-trial publicity regarding the

homicide in question and Hughes' arrest and official presentation of the charges in this case have

been «sustained, pervasive, inflammatory, inculpatory, and there is a presumption of prejudice in

selecting a fair and impartial jury from Northampton County." Counsel for Hughes was given an

opportunity to be heard on his Motion for a Change of Venue at the omnibus pretrial hearing that

took place on March 7, 2016. Counsel stated that he would address the Motion for Change of Venue

by submitting newspaper articles to the Court on a later date. See N. T. at p. 11. In his Memorandum

in Support of Omnibus Pretrial Motions, filed on March 23, 2016, Hughes provided the Court with

argument regarding his Motion for Change in Venue as well as headlines and articles that appeared

in local press, including the Morning Call newspaper, the Express-Times newspaper and the

companion Lehighvalleylive.com news website. See Hughes' Memorandum in Support of Omnibus

Pretrial Motions at pp. 2-5, Exhibits 1-35. Hughes argues that these publications «will create an aura

of pervasive and inflammatory media publicity that will prevent (him) from receiving a fair trial."

Id. at p. 5.

13 Graves was initially arrested in Lehigh County for one count of burglary. Id. at 16 l. Later, foi1r more counts of p. burglary were added in Northampton County. id. Graves pied guilty to two counts of burglary in Northampton County. Id. His case in Lehigh County was also disposed of; and Graves received consecutive sentences. Id. Graves subsequently confessed to other incidents of burglary, and additional charges were added in both Nonhampton and Lehigh Counties. Id. at p. 162. Graves testified that he confessed to these incidents because he "wanted to do the right thing," but he later stated that in return for his cooperation in these cases, he was given a plea bargain so that he would receive "less on the front and more on the back" end of his sentence. Id. at pp. l.52, 165- 166. Graves was sentenced on those charges, originally receiving a sentence of six to fifteen years; however, after requesting to have his sentence modified, he received a sentence of two and a half to twenty years to run consecutive lo all of the other sentences he received. Id. atp. 162.

14 A request for a change of venue is within the sound discretion of the trial court because "the

trial court is in the best position to assess the atmosphere of the community and to judge the necessity

of any requested change." Com. v. Briggs, 608 Pa. 430, 466, 12 A.3d 291, 313 (2011) (quoting Com.

v. Tharp, 574 Pa. 202, 219, 830 A.2d 519, 529 (2003)). Pursuant to Pennsylvania Rule of Criminal

Procedure No. 584, a change in venue is mandated only where a fair and impartial trial cannot be

otherwise had in the county where the case is currently pending. Pa. R. Crim. P. 584 (A). The

moving party bears the burden of demonstrating the necessity of a change of venue and must show

actual prejudice in the empanelling of the jury. Com. v, Karenbauer, 552 Pa. 420, 715 A.2d 1086

(1998).

The mere existence of pretrial publicity does not justify a presumption of prejudice, nor does

it warrant a change of venue. Com. v. Birdsong, 53 8 Pa. 587, 596, 650 A.2d 26, 31 ( 1994 ); Com. v.

Tharp, 574 Pa. 202, 219, 830 A.2d 519, 529 (2003). Prejudice will only be presumed if the

defendant proves that the pretrial publicity: 1) "was sensational, inflammatory, and slanted toward

conviction, rather than factual and objective;" 2) "revealed the defendant's prior criminal record, if

any, or referred to confessions, admissions or reenactments of the crime by the defendant;" or 3) was

"derived from official police or prosecutorial reports," Com. v. Chmiel, 612 Pa. 333, 404, 30 A.3d

1111, 1152 (2011 ). Even if a defendant proves the existence of one or more of these circumstances,

and the publicity is deemed to be inherently prejudicial, a change of venue is not warranted unless

the defendant also shows that the pretrial publicity was "so extensive, so sustained, and so pervasive

that the community must be deemed to have been saturated with it." Birdsong, 611 Pa. at 224, 24

A.3d at 332.

The inquiry must tum on whether any juror formed a fixed opinion of the defendant's guilt or

innocence as a result of the pretrial publicity. Id.

Simply because prospective jurors may have heard about a case through media reports does not render them incapable ofjury service, since, in today's "information age" where news of community events are disseminated virtually instantaneously by an ever multiplying array of 15 delivery methods, it would be difficult to find 12 jurors who do not have some knowledge of the facts of an important and tragic incident like this one ... the pivotal question in determining whether an impartial jury may be selected is not whether prospective jurors have knowledge of the crime being tried, or have even fonned an initial opinion based on the news coverage they had been exposed to, but, rather, whether it is possible for those jurors to set aside their impressions or preliminary opinions and render a verdict solely based on the evidence presented to them at trial.

Briggs, 608,Pa. at 466-468, 12 AJd at 313-314.

In sum, to obtain a change of venue, a defendant must demonstrate that pretrial publicity is

inherently prejudicial, that it saturated the community, and that the community did not have

sufficient time to cool down from the effects of the publicity. If it is determined that the pretrial

publicity is inherently prejudicial and has saturated the community, a trial court must test the

"cooling off" period in order to determine whether the prejudicial effects of the publicity have been

significantly diluted. Our Supreme Court instructed that we must "investigate what a panel of

prospective jurors has said about its exposure to the publicity in question," and "what prospective

jurors tell us about their ability to be impartial will be a reliable guide to whether the publicity is still

so fresh in their minds that it has removed their ability to be objective." Com. v. Robinson, 58 l Pa.

154, 195, 864 A.2d 460, 484 (2004).

The pretrial publicity in this case amounts to approximately thirty-five (35) articles, many of

which make reference to police reports and statements by law enforcement personnel regarding the

incident. However, these articles were published over the course of four years. At this point, we do

not find that Hughes met his burden in demonstrating that the pretrial publicity regarding this case

has been so prejudicial as to preclude the empanelling of a fair and impartial jury. Moreover, we find

that any potential bias or prejudice on the part of prospective jurors based upon their exposure to

pretrial publicity will best be gauged during voir dire. The prospective jurors' responses during voir

dire regarding their exposure to media reports and their ability to set aside any preliminary opinions

that they may have fanned will be telling as to whether the selection of a fair and impartial jury is

possible in Northampton County. Accordingly, we deny Hughes' Motion for an immediate change 16 of venue. without prejudice to his right to renew his request for a change of venue based upon the

responses of the venire duringjury selection.

B. Motion for Severance Presented by Robinson and Hughes

On September 18, 2015, the Commonwealth filed a Motion to Join Defendants' Criminal

Informations for Trial, which both Defendants opposed. On September 28, 2015, Hughes filed a

Motion for Severance. On October 9, 2015, this Court held a hearing on the Commonwealth's

Motion to Join Defendants' Criminal Informations for Trial and on Hughes' Motion for Severance.

By Order of Court, dated October 9, 2015, we granted the Commonwealth's Motion and denied

Hughes' Motion. By way of their Omnibus Pretrial Motions, both Defendants now request that their

cases be severed. 14

In his instant Motion for Severance, Hughes contends that a joint trial with Robinson would

prejudice him from receiving a fair trial because it may prohibit him from presenting evidence in his

defense. Hughes also states that he and Robinson will have antagonistic defenses "where the Jury, in

order to believe the testimony offered on behalf of one defendant, must disbelieve the testimony

offered by each co-defendant," See Hughes' Omnibus Pretrial Motion at 4;116. Likewise, in

Robinson's Motion for Severance, Robinson contends that if the cases are tried together, he will be

prejudiced. Robinson states that the Commonwealth will presumably offer evidence which would

not otherwise be admissible against him if the trials were held separately. Specifically, Robinson

indicates that the Commonwealth may intend to offer into evidence incriminating statements by

Hughes in which Hughes may take responsibility for the crimes charged and may acknowledge that

he was in the vicinity of the homicide at the time it occurred.

14 While we already ruled on and denied a Motion for Severance filed by Hughes. we will address herein the Motion for Severance raised by him in the instant Omnibus Pretrial Motions. Since the time that we decided Hughes' first Motion for Severance, we have elicited additional factual evidence at the hearing on the Omnibus Pretrial Motions. Also. because the Commonwealth has an ongoing obligation to provide Defendants with discovery, it is possible that since the time of his initial Motion for Severance, Hughes learned of additional statements and/or other information that the Commonwealth may wish to introduce at the time of trial.

17 As the parties seeking severance, Defendants bear the burden of establishing that the

potential for prejudice outweighs the interests served by a joint trial. Com. v. Housman, 604 Pa. 596,

619, 986 A.2d 822, 835 (2009), cert. denied, 131 S.Ct. 199 (U.S. 2010). 111e decision to sever co-

defendants' trials lies within the discretion of the trial judge whose decision will not be disturbed on

appeal absent an abuse of discretion. Com. v. Birdsong, 611 Pa. 203, 232, 24 A.3d 319, 336 (2011).

"Where, as here, the crimes charged against each defendant arise out of the same facts and

virtually all of the same evidence is applicable to both defendants, [the Pennsylvania Supreme]

Court, as well as the United States Supreme Court, have indicated a preference to encourage joint

trials to conserve resources, promote judicial economy, and enhance fairness to the defendants."

Com. v. Rainey, 593 Pa. 67, 94, 928 A.2d 215, 231 (2007). "It would impair both the efficiency and the fairness of the criminal justice system to require that prosecutors bring separate proceedings,

presenting the same evidence again and again, requiring victims and witnesses to repeat the

inconvenience (and sometimes trauma) of testifying, and randomly favoring the last trial defendants

who have the advantage of knowing the prosecution's case beforehand." Com. v. Travers, 564 Pa.

362, 365, 768 A.2d 845, 847 (2001) (quoting Richardson v. Marsh, 481 U.S. 200, 210 (1987)). Joint

trials also "serve the interests ofjustice by avoiding inconsistent verdicts and enabling more accurate

assessment of relative culpability." Rainey, supra; Com. v. Serrano, 61 A.3d 279, 285 (Pa. Super.

2013). Moreover, "[w]here, as in the present matter, the defendants have been charged with

conspiracy.joint, rather than separate, trials are preferred." Com. v. Marinelli, 547 Pa. 294, 313, 690

A.2d 203, 212-213 (1997), cert. denied, 523 U.S. 1024 (1998).

In ruling upon a severance request, the trial court should consider the likelihood of

antagonistic defenses. Com. v. Brawn, 592 Pa. 3 76, 40 I, 925 A.2d 14 7, 161 (2007). "A defendant

claiming there is a possibility of conflicting or antagonistic defenses 'must show a real potential for

prejudice and not just mere speculation.!" Birdsong) 611 Pa at 232, 24 A.3d at 336 (quoting Com. v.

Jones, 542 Pa. 464, 486, 668 A.2d 491, 501 (1995), cert denied, 519 U.S. 826 (1996)). Separate 18 trials of co-defendants are appropriate "only where the defenses of each are antagonistic to the point

where such individual differences are irreconcilable," Rainey, 593 Pa. at 94, 928 A.2d at 232.

Further, defenses are considered to be irreconcilable if "the jury essentially would be forced to

disbelieve the testimony on behalf of one defendant in order to believe the defense of his co-

defendant." Brown, 592 Pa. at 401, 925 A.2d at 161-162. However, "the mere fact that there is

hostility between defendants, or that one may try to save himself at the expense of another is in itself

not sufficient grounds to require separate trials." Birdsong, supra. On the contrary, the Supreme

Court of Pennsylvania has consistently held "that the fact that defendants have conflicting versions of

what took place, or the extents to which they participated in it, is a reason for rather than against a

joint trial because the truth may be more easily determined if all are tried together." Birdsong, supra.

As discussed above, Hughes contends generally that severance is warranted because a joint

trial may prohibit him from presenting evidence in his defense and because he and Robinson will

have antagonistic defenses. In his instant motion, Hughes does not elaborate on any specific newly-

discovered evidence since the time of his initial Motion for Severance, nor does he indicate any

specific defenses that are "antagonistic to the point where such individual differences are

irreconcilable!' Hughes' instant request for severance, therefore, is predicated upon an undefined

theory of possibilities, and we again will deny same.

Moreover, when we addressed Hughes initial Motion for Severance at the hearing held on

October 9, 2015, counsel for the Commonwealth stated the following:

To my knowledge, there is but one possible statement from anybody (that] implicates the two defendants together. In other words, Mr. Robinson does not give a statement that implicates Mr. Hughes. Mr. Hughes does not give a statement that implicates Mr. Robinson. There is a witness, and he's mentioned in the affidavit of probable cause, that says words to the effect, Mr. Hughes admitted that this was his work and he had his boy "O" do it. He says "0". He never said Omar Robinson. Normally, under Bruton, I recall that being redacted or changed to my boy X did it, which would be the standard redaction for that type of statement. That's the only one I'm aware of. I don't think that one statement, which we would be willing to alter in some redacted form, is enough to prevent these two from being joined.

19 N.T., October 9, 2015, at pp. 24�25. Therefore, because Hughes does not specify why a joint trial

would be prejudicial and because counsel for the Commonwealth indicated that there is "but one

possible statement" that may implicate the Defendants together which statement may be redacted, we

find that Hughes does not meet his burden with respect to his request for severance.

Robinson's request is slightly more specific because he indicates that the Commonwealth

may intend to offer into evidence incriminating statements by Hughes in which Hughes may take

responsibility for the crimes charged and may acknowledge that he was in the vicinity of the

homicide at the time it occurred. We nevertheless find that Robinson does not meet his burden of

establishing that the potential for prejudice outweighs the interests served by a joint trial.

Importantly, at the time of the hearing on the instant Omnibus Pretrial Motions, counsel for Robinson

was given an opportunity to argue with respect to Robinson's Motion for Severance. Counsel for

Robinson stated: "the only thing I was unclear of is whether or not the issue of the co-defendant's

statements was addressed during that argument.15 I believe the Commonwealth intends to introduce

a statement through an informant that Mr. Hughes made some admissions." N.T., 3n/16, at p. 16.

When counsel for Robinson asked whether it was still the intention of the Commonwealth to

introduce statements of Hughes that implicate Robinson, counsel for the Commonwealth replied:

"There may be a statement, and I understand under Bruton that statement would have to be kept out

or else it would have to be redacted in some way to get it in. I'm aware of that," Id. at p. 170.

Counsel for Robinson then stated: "That is my only issue with the consolidation whether or not the

details of how that would be admitted are going to be. So 1 guess maybe before we go forward I can

clarify with counsel- it doesn't have to be today exactly- what he wants to introduce and I may

have a supplemental motion." Id. (emphasis added).

We then granted counsel for Robinson time to submit written argument and case law

regarding the Motion for Severance; however, he stated that he would need only to submit same

is Counsel was referring to argument heard on October 9, 2015.

20 pending his conversations with counsel for the Commonwealth. Id. at p. 172. This Court never

received further argument from Robinson, and as such, we infer that Robinson does not take issue

with the cases being consolidated due to any statements that may be offered by the Commonwealth.

We find that Robinson's preliminary hearing transcript, as well as the record made at the

hearing on the instant Omnibus Pretrial Motions, reflect that the factual allegations in each matter are

categorically intertwined and based upon the same fact pattern. The record reflects that essentially

the same testimony and evidence are applicable to Hughes and Robinson, such that a joint trial will

foster judicial economy, reduce any inconvenience to witnesses, prevent duplicative trial costs, and

avoid inconsistent verdicts, particularly since Hughes and Robinson have both been charged with

conspiracy. A single trial will also facilitate the jury's ultimate determination of the truth and

enhance a more accurate assessment of the Defendants' relative culpability. For these reasons, the

Defendants' motions for severance are denied.

C. Hughes' Motion to Suppress Statements

As more fully discussed below, Hughes spoke with Detectives on three occasions: December

5, 2012, December 11, 2012 and two years later, on December 4, 2014. With regard to the custodial

interrogations that took place on December 5, 2012 and December 4, 2014, we find that Hughes was

properly advised of his Miranda rights, including the right to have counsel present, and that he

waived same prior to these interviews. With respect to the interview conducted on December 11,

2012; however, we find that no such warnings were provided, and the contents of any statements

Hughes provided on that date must be suppressed.

Hughes states in his Omnibus Pretrial Motion that he made statements to the Easton Police

Department that were uncounseled, elicited in violation of his constitutional rights, and subject to

suppression for the following reasons:

21 1. "[a]t the time of his arrest and/or before his arrest, (Hughes) was not properly advised of

his rights as required by Miranda vs. Arizona, 384 U.S. 436, and was not thereafter

advised of rights as required by the circumstances." (Hughes' Omnibus Pretrial Motion at

,r 56); 2. "(Hughes) did not, at any time before or after arrest, waive any rights, and more

specifically did not waive the right to have counsel present at all critical stages of the

proceedings." (Id. at ,r 57);

3. "(Hughes) indicated, during questioning, on several occasions, by words and actions, a

desire to terminate the questioning process and consult with an attorney.

Notwithstanding these facts, the questioning continued, and (Hughes) allegedly made

certain incriminating statements thereafter." (Id. at ,r 58);

4. "(Hughes) was not promptly taken before a magistrate for arraignment, and the delay in

arraigning (Hughes) was not required for administrative processing purposes," (Id. at ,r

60);

5. "The delay in arraigning (Hughes) was unreasonably long." (Id. at ,r 61);

6. "During the time between arrest and arraignment, Defendant made certain statements to

the officers in attendance, which were the product of the lack of proper warnings and the

unreasonably long delay between arrest and arraignment." (Id. at ,r 62); and

7. "The statements taken from (Hughes) were obtained by the unlawful actions of the police

that resulted in the overbearing of (Hughes') will, and were the result of coercion,

resulting from the number and actions of the police involved, the absence of counsel, and

all of the surrounding circumstances." (Id. at ,r 63).

Counsel for Hughes did not provide this Court with any additional argument regarding the

statements purportedly made by Hughes or the circumstances under which these statements were

produced. Therefore, the exact statements to which Hughes refers in his Motion are unclear. At the

22 March 7, 2016 hearing, the Commonwealth elicited credible testimony from the officers involved in

the instant homicide investigation regarding certain statements Hughes made to them while he was in

custody16 on December S, 2012, December 11, 2012, and December 4, 2014.

"To safeguard an uncounseled individual's Fifth Amendment privilege against self-

incrimination, suspects subject to custodial interrogation by law enforcement officers must be warned

that they have the right to remain silent, that anything they say may be used against them in court,

and that they are entitled to the presence ofan attorney," In re RH, 568 Pa. I, 5, 791 A.2d 331, 333

(2002) (plurality); see also Miranda v. Arizona, 384 U.S. 436, 444-445 (1966). With regard to the

waiver of Miranda rights, the Pennsylvania Superior Court has explained the following:

Miranda holds that "[tjhe defendant may waive effectuation" of the rights conveyed in the warnings "provided the waiver is made knowingly and intelligently." The inquiry has two distinct dimensions. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that Miranda rights have been waived.

In the Interest ofT.B., 11 A.3d 500, SOS (Pa. Super. 2010) (citing Com. v. Cephas, 522 A.2d 63, 65

(Pa. Super. 1987).

Our Supreme Court has provided that

An explicit statement of waiver after being advised of [one's] Miranda rights ... is not necessary to a finding of waiver under the Fifth Amendment. The pertinent question is whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. Waiver can be clearly inferred from the actions and words of the person

16 Hughes spoke to the police on only one occasion while he was not in custody. Specifically, Detective Snyder testified that he first spoke with Hughes about this case on the telephone on December 5, 2012. N.T., 3/7/16/ at p. 93. With respect to this initial interaction between Detective Snyder and Hughes, Detective Snyder testified that Hughes agreed, over the telephone, to meet with him and/or members of the Easton Police Department at a park in Easton. id. at pp. 93, 113-114. We heard no testimony that Hughes made any other statements to the police prior to his arrest, which took place on that same day, December 5, 2012, as a result of the vice investigation. Because this initial interaction was over the phone, and Hughes voluntarily appeared to meet with Snyder at the aforementioned park, it cannot be argued, and counsel for Hughes does not argue, that Hughes was physically deprived of his freedom in any significant way or was placed in a situation in which he reasonably believed that his freedom of action or movement is restricted by the interrogation. See Com. v. Nester, 709 A.2d 879, 882 n, 4 (1998) (citations omitted). Therefore, because this interaction was not custodial, Miranda warnings were not required. See id.

2.3 interrogated.

Com. v. Bomar, 573 Pa. 426, 44 7, 826 A.2d 831, 843 (2003) (internal citations and quotes omitted).

The test for determining ... whether an accused knowingly waived his or her rights looks to the totality of the circumstances ... Some of the fact0rs 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.

Com. v. Jones, 546 Pa. 161, 178, 683 A.2d 1181, 1189 (1996)(internal citations omitted).

With respect to the totality of the circumstances of the instant matter, it is clear that Hughes was in

custody during any statements he made to the police, and therefore, the warnings articulated by

Miranda were mandatory.

The December 5, 2012 Statements 17 On December 5, 2012, when Hughes was taken into custody as a result of the vice

investigation, Detective Snyder issued Miranda wamings prior to interviewing Hughes at the Easton

Police Department. N.T., 317/16, at pp. 93-94. Detective Snyder testified that only about one hour

passed between the time Hughes was arrested and the time he was brought into the interview room

for questioning, and we heard no testimony that Hughes was questioned or that he provided any

statements to the police in this interim. Id. at pp. 116-118. Priorto the interview, Detective Snyder

filled out a standard rights waiver form used by the Easton Police Department, and Hughes signed

this form. Id. at 96.

The first part of the form indicates the location, date, and time at which the interview is

occurring, as well as the Easton Police incident number and the person being interviewed. Id. at pp.

97, 99. The next section of the form is the waiver, which includes two parts: 1. a paragraph

indicating that the individual understands his/her rights which they are waiving, and 2. a paragraph

11 This date is approximately one week following the drug investigation and the homicide, both of which occurred on the same date. N.T., 3n/16, at p. 98.

24 indicating that the individual wishes to waive their rights.18 Id. at pp. 97-98. Hughes executed this

waiver twice, indicating that he understood his rights and that he wished to waive same. Id. This

waiver, which evidences Hughes' signatures, was admitted into evidence at the March 7, 2016

hearing as Commonwealth Exhibit 9. Detective Snyder testified that after he read this form to

Hughes, Hughes verbally stated to him that he was willing to speak to him. Id. at p. 101.

During the December 5, 2012 interview, Detective Snyder testified that Detective Rush was

also present and that the entirety of this interview, including Hughes' waiver of his Miranda rights,

was audio and video recorded. Id. at pp. 98-99, 10 l, 118. Detective Snyder explained to Hughes

that he wanted to talk to him about the instant homicide which was under investigation. Id. at p. IO 1.

At this time, Hughes denied any involvement with the homicide whatsoever. As discussed supra, it

was during this interview, which lasted approximately forty-five minutes to one hour, that Hughes

provided several different alibis. Id. at pp. l 02-107.

The December 11, 2012 Statements

On December 11, 2012, Detective Snyder interviewed Hughes while he was incarcerated in

the Northampton County Prison. This interview lasted approximately thirty minutes, and a

subsequent Rights and Waiver form was not completed on this date. While we heard no evidence on

direct or cross examination regarding any specific statements that Hughes provided during this 18 Detective Snyder read the contents of the form waiver into the record as follows:

It states that my name is Detective Darren Snyder of the Easton Police Department. I wish to advise you that you have an absolute right lo remain silent; that anything you say can and will be used against you in a court of law; that you have a right to talk to an attorney before and have an attorney present during the questioning; that if you cannot afford to hire an attorney, one will be appointed to represent you without charge before any questioning, if you so desire; ... that if you do decide to answer any questions, you may stop at any time you wish.

Id. at p. 100. Detective Snyder indicated that the next part of the form, which was signed by Hughes, reads as follows:

I fully understand the statement advising me of my rights and I'm willing to answer questions. I do not want an attorney, and I understand that I may refuse to answer anytime during questioning. No promises have been made to me nor have any threats been made against me.

Id. at pp. 100-101.

25 interview, Detective Snyder testified that Hughes again denied any involvement in the homicide) but

did provide new information with respect to Hutchinson.

Detective Snyder conceded that Hughes did not sign a Rights and Waiver fonn prior to this

interview, and we heard no testimony that he informed Hughes of his Miranda rights. While there is

no "prophylactic rule" that a defendant must be again warned of his Miranda rights every time a

custodial interrogation is held, "repeat warnings are necessary where the initial warnings have

become stale or remote." Com. v. Scott, 56 l Pa. 617, 752 A.2d 871, 875 (2000). The Scott Court

declared that factors relevant to whether Miranda warnings have become stale or remote were

provided in Commonwealth v. Bennett, 445 Pa. 8, 15, 282 A.2d 276, 280 (1971), and are:

[Tjhe length of time between the warnings and the challenged interrogation, whether the interrogation was conducted at the same place where the warnings were given, whether the officer who gave the warnings also conducted the questioning, and whether the statements obtained are materially different from other statements that may have been made at the time of the warnings.

Com. v. Cohen, 53 A.3d 882, 888 (Pa. Super. 2012) (citing Scott supra.).

In the present case, although Detective Snyder was present at both the December 5, 2012 and

December 11, 2012 interviews, there was no "clear continuity" between the two interviews. See

Com. v. Hoss, 445 Pa. 98, 112, 283 A.2d 58, 66 (1971). These interviews occurred in different

locations, and most notably, the December 11, 2012 interview occurred six days after Hughes was

last informed of his Miranda rights on December 5, 2012. Our Supreme Court's decisions in Com. v.

Wideman, 460 Pa. 699, 334 A.2d 594 (1975), and Com. v. Riggins, 451 Pa. 519, 304 A.2d 473

(1973), held that time lapses of twelve and seventeen hours, respectively, necessitated the renewal of

Miranda warnings. Clearly, a six day lapse in time between warnings and an interrogation does so as well.

Moreover, during the December 11, 2012 interview, Hughes provided new information with

respect to Hutchinson, and therefore, at least one statement provided by Hughes was "materially

different" from anything he provided in the prior interview. Accordingly, assessing the Bennett 26 factors above) we conclude that the Miranda warnings given on December 5, 2012 were stale and

new warnings were required prior to the December 11, 2012 interview of Hughes. As no such

warnings were provided, we must suppress Hughes' statement given on December 11, 2012.

The December 4, 2012 Interview

Finally, Detective Snyder conducted a third interview of Hughes on December 4, 2014 at the

Detective's office in the Northampton County District Attorney's office, which is located in the

Northampton County Courthouse. N.T., 3/7/16, at pp. 109-110.19 There were no other detectives

present during this interview. Id. at p. 111. As indicated above, this interview took place on the date

that Hughes was served with a warrant for the instant homicide. Id. at p. 108. Prior to this interview,

Detective Snyder presented Hughes with another Rights and Waiver form which was, in alt material

aspects, identical to the one described supra. Id. at pp. 109-110. Detective Snyder also read the

contents of the form verbatim to Hughes. Id. at p. 11 O. Hughes again signed the portions of the form

that stated that he understood his Miranda rights, that he was waiving his Miranda rights, and that he

was willing to speak without an attorney present. Id. We heard no testimony indicating that Hughes

wished to have an attorney present during the course of this interview, and when Hughes asked to

return to his cell, Detective Snyder honored Hughes' request and terminated the interview. Id. at p.

113.

Unlike the custodial interrogation that took place on December 11, 2012, it is clear that

Detective Snyder issued Miranda warnings to Hughes prior to the custodial interrogations that took

place on December 5, 2012 and December 4, 2014. Via the "Rights and Waiver" form, Detective

Snyder read these warnings aloud to Hughes and asked if Hughes understood his rights. Hughes'

first signature on each form confirmed that he understood his rights; Hughes' second signature on

each form, as well as Hughes' verbal response to Detective Snyder, confirmed that Hughes wished to

19 Hughes was already incarcerated at this time, so for purposes of the interview, he was brought to the Northampton County Courthouse from the prison to be processed for the homicide charges. Id. at p. l 09.

27 waive his rights. Significantly, our Superior Court has held that "after a defendant is given his or her

Miranda rights, a statement by the defendant that he understands those rights followed by the

answering of questions posed by the interrogating officer constitutes a sufficient manifestation of a

defendant's intent to waive those rights so as to satisfy state constitutional protections!' Com. v.

Baez, 21 A.3d 1280, 1286 (Pa. Super. 2011) (footnote omitted).

In light of the fact that Hughes verbally, and in writing, acknowledged that he understood his

Mil'anda rights on two occasions and did not request an attorney during the interviews on December

S, 2012 and December 4, 2014, we conclude that, under the totality of the circumstances, any

custodial statements made by Hughes were the product of a voluntary, knowing, and intelligent

waiver of his Miranda rights. Beyond a broad allegation that his statements were not voluntarily

made to Detective Snyder, Hughes has not presented anything contradictory to the Commonwealth's

evidence that would suggest Hughes executed the waivers in any way except knowingly,

intelligently, and voluntarily. Therefore, Hughes' motion to suppress his statements on these

grounds must be denied.

Lastly, we find no merit with regard to Hughes' argument that he made certain statements to

officers during the time between he was arrested and arraigned and that these statements were the

product of a lack of proper warnings and unreasonably long delay between arrest and arraignment.

Our Supreme Court has held that "voluntary statements by an accused, given more than six hours

after arrest when the accused has not been arraigned, are no longer inadmissible per se. Rather, ...

regardless of the time of their making, courts must consider the totality of the circumstances surrounding the confession ... Com. v. Housman, 604 Pa. 596, 627, 986 A.2d 822, 840 (2009)

(internal citation omitted) (emphasis added).

28 We have already addressed the one custodial interrogation which occurred subsequent to

Hughes' arrest on the homicide charges and prior to his arraignmentr" the fact that Hughes

executed a Rights and Waiver fonn prior to this interview, and the totality of the circumstances

regarding this interview. Hughes has not identified any other statements that he made to officers

during the time between his arrest and arraignment. Without any specification from Hughes

regarding what statements were made and under what conditions, we cannot rule that any and all

statements made by Hughes are inadmissible.

D. Defendants' Motions to Suppress Evidence from the Search of the Minivan

In Robinson's Motion, he asks this Court to suppress the gunshot residue found during the

search of the minivan on November 28, 2012, as well as all subsequent evidence seized from the

minivan pursuant to a search warrant, which warrant was procured as a result of the detectives'

reliance on the gunshot residue found during the initial search. Robinson argues that the gunshot

residue was acquired as a result of an unlawful search and seizure because he had an expectation of

privacy in the minivan, and Detectives Rush and Miller conducted a search of the minivan without a

warrant or his consent to search it. Further, Robinson contends that, prior to the search, the police

had neither probable cause nor reasonable suspicion that the minivan contained any evidence of a

crime.

Similarly, Hughes argues in his Motion that the gunshot residue found in the minivan as a

result of the November 28, 2012 search was the product of an unconstitutional search and should be

suppressed. Hughes contends that Detectives Rush and Miller did not obtain valid consent to search

the minivan because the minivan is owned by Barbara Doorley, not Lisa Doorley, who provided the

alleged consent. Further, Hughes maintains that even if Lisa Doorley did have authority to provide

This one custodial interrogation was the one that occurred on December 4, 2014. The December 5, 2012 2

2.9 consent to search the minivan, her consent was coerced because a reasonable person would not

conclude that Robinson and Ms. Doorley were free to_ leave when the detectives were questioning

them prior to the search.

The Commonwealth argues first that Hughes does not have standing to raise this suppression

issue because he possessed neither a proprietary nor a possessory interest in the minivan that was

searched as it belonged to Ms. Doorley and Robinson. The Commonwealth also argues that the

underlying police encounter was lawful and that Ms. Doorley provided the police with a valid

consent to search the minivan. Contrary to the assertions of Robinson and Hughes, we find that the

November 28, 2012 search was constitutional and decline to suppress the gunshot residue found as a

result.

When proffering a motion to suppress, a defendant shall ensure that the motion states

"specifically and with particularity the evidence sought to be suppressed, the grounds for

suppression, and the facts and events in support thereof." Pa.R.Crim.P. 581 (D). In a motion to

suppress, the applicable burden of persuasion is upon the Commonwealth to establish by a

preponderance of the evidence that the challenged evidence is admissible and not obtained in

violation of the defendant's rights. Com. v. Beaman, 846 A.2d 764, 767 (Pa. Super. 2004) affd, 583

Pa. 636, 880 A.2d 578 (2005); see also Com. v. West, 834 A.2d 625 (Pa. Super. 2003). In ruling on a

defendant's motion to suppress, this Court is required to "make findings of fact and conclusions of

law as to whether evidence was obtained in violation of the Defendant's [C]onstitutional rights.''

Com. v. Haynes, 577 A.2d 564, 570 (Pa. Super. 1990); see also Pa.R.Crim.P. 581(1). Moreover, as

this Court has the "sole province as [the] fact finder to pass on [the] credibility of witnesses and [the]

weight to be given to their testimony," this Court is free to believe all, some, or none of the evidence

presented. Com. v. Elmoby, 823 A.2d 180, 183 (Pa. Super. 2003).

While the Commonwealth has the burden of proof to establish that the challenged evidence is

admissible and not obtained in violation of the defendant's rights, "a defendant cannot prevail upon a 30 suppression motion unless he demonstrates that the challenged police conduct violated his own,

personal privacy interests." Com. v. Milner, 888, A.2d 680 (Pa. 2005). Therefore, while the

Commonwealth must show that the search and/or seizure was constitutional, the defendant must

demonstrate an expectation of privacy in the area searched in order to succeed on his motion. Com v.

Peterson, 11 A.3d 935 (Pa. Super. 2012); Com. v. Hawkins, 553 Pa. 76, 718A.2d 265 (1998).

It is well settled that an expectation of privacy is present when an individual "exhibits an

actual (subjective) expectation of privacy and that the subjective expectation is one that society is

prepared to recognize as reasonable:' Com. v. Burton, 973 A.2d 428, 435 (Pa. Super. 2009) (quoting

Com. v. Jones, 874 A.2d 108, 118 (Pa. Super.2005) (citations omitted)). Therefore, a subjective

privacy expectation must be coupled with objective reasonableness. Hawkins, supra. at 267 n. I.

The constitutional legitimacy of an expectation of privacy is dependent upon whether the expectation

is reasonable in light of all the surrounding circumstances. Burton, supra. at 435 (quoting

Commonwealth v. Jones, 874 A.2d l 08, 11 S(Pa. Super. 2005) (citations omitted)).

Hughes Had No Expectation of Privacv

There is no evidence whatsoever establishing an expectation of privacy in the minivan on the

part of Hughes. Specifically, Hughes did not present evidence that he used the vehicle with

authorization or permission of the registered owner. In fact, Hughes has denied his presence in the

minivan on the date in question, and does not otherwise explain his connection to the vehicle or its

owner. See Burton, 973 A.2d at 436; see also Com. v. Maldonado, 14 A.3d 907 (Pa. Super. 2011)

(holding that a driver of a car registered to his girlfriend did not prove a reasonable expectation of

privacy in his girlfriend's car where neither he nor his girlfriend testified that he had permission to

use the car). Consequently, we must deny this Motion as to Hughes for lack of an expectation of

privacy in the minivan. We will analyze the merits of this Motion regarding whether the search of

the minivan and seizure of the gunshot residue was proper only as to Robinson.

31 There Was Valid Consent To Search Vis-a-Vis Robinson

The Commonwealth contends that Detectives Rush and Miller did not need a warrant to

search the minivan because: 1) they received valid consent from Ms. Doorley; and 2) the consent

was given voluntarily during a "mere encounter" as opposed to an investigative or custodial

detention. We agree.

Pursuant to Fourth Amendment protections, before an officer may conduct a search, he must

generally obtain a search warrant. Schneckloth v. Bustamante, 412 U.S. 218, 219, 93 S.Ct. 2041, 36

L.Ed.2d 854 (l 973). A warrant is not required, however, where a person with the proper authority

unequivocally and specifically consents to the search. Com. v. Strickler, 563 Pa. 47, 757 A.2d 884,

888 (2000). «A person has authority to consent to a search if the person has a possessory or privacy

interest in the area to be searched or the person has either explicitly or implicitly been granted

permission to give consent by a person with a possessory or privacy interest in the area to be

searched." Com. v. Reid, 571 Pa. 1, 25, 811 A.2d 530, 544 (2002).

In the instant case, Ms. Doorley was an individual with authority to consent to a search of the

minivan because she had a clear possessory interest in the minivan. While Ms. Doorley's mother had

title to the minivan, Detective Miller testified that Ms. Doorley told him that the only reason the

minivan was in her mother's name was because her mother had to purchase it for credit reasons and

that she (Ms. Doorley) is the primary driver of the van. N.T., 3/7/2016, at pp. 64, 88. Ms. Doorley

indicated to Detective Miller that the minivan was hers as she was the primary day-to-day operator of

the van, which she keeps at her residence. N.T., 3/7/16, at pp. 44, 88. Ms. Doorley also indicated to

the detectives that she was the individual who was financially responsible for the minivan. Id. at p.

43. This is further bolstered Detective Rush's testimony that Robinson stated to him, "I don't loan

my van to anybody. Either I drive it or she, Lisa, drives it." Id. at p. 54; N.T., 4/29/15, at p. 83.

We find that Ms. Doorley had authority to consent to the search. We now tum to the

question of whether her consent to search the minivan was valid. To establish a valid consensual 32 search, the Commonwealth must first prove that the consent was given during a legal police

interaction; second, if the underlying encounter is found to be lawful, the Commonwealth must then

prove that the consent was given voluntarily. Com. v. Strickler, 563 Pa. 47, 57, 757 A.2d 884, 889

(2000).

Not every encounter with the police "is so intrusive as to trigger constitutional protections."

Com. v. Boswell, 554 Pa. 275, 283, 721 A.2d 336, 340 (1998) (citations omitted). Therefore,

"'[i]nteraction' between citizens and police officers, under search and seizure law, is varied and

requires different levels of justification depending upon the nature of the interaction and whether or

not the citizen is detained." Com. v. Jones, 874 A.2d 108, 116 (Pa. Super. 2006) (citation omitted).

Pennsylvania courts recognize three such levels of interaction: "mere encounters," "investigative

detentions," and "custodial detentions." Id. A "mere encounter" is a request for information which

does not need to be supported by any level of suspicion; however, it carries no official compulsion to

stop or respond. Reid, supra. at 26. An "investigative detention" subjects a person to a stop and a

period of detention and must be supported by reasonable suspicion. Id. A "custodial detention" is an

arrest and must be supported by probable cause. Id.

We find that the interaction between Ms. Doorley and Detectives Miller and Rush was a mere

encounter because she was not compelled to answer the detectives' questions; she could have

terminated the encounter at any time. This is supported by the following testimonial evidence in the

record:

Earlier in the day, Detective Rush called Ms. Doorley on the phone. He indicated to her during their phone conversation that he was conducting an investigation and that he would like to speak with her about the minivan. N.T., 3n/2016, at p, 38; N.T., 4/29/15, at p. 75. Detective Rush arranged to meet with Ms. Doorley at her house, and she gave him her address and indicated the time she would arrive home that evening. Detectives Miller and Rush arrived, in plain clothes, at Ms. Doorley's residence at the time she specified. N.T., 3n/16, at p. 27. After arriving at the residence, Ms. Doorley invited the detectives inside. Id. at p. 29. Eventually, the detectives spoke to Ms. Doorley about obtaining her consent to search the minivan. Id. at pp. 32�33. Ms. Doorley indicated that "she would be fine with that," and provided the detectives with the keys to the minivan. Id. at p. 33.

33 Upon consideration of the foregoing facts, the interaction between the detectives and Ms. Doorley

was a lawful consensual encounter. We now must tum to the issue of whether Ms. Doorley's consent

was made voluntarily under the circumstances surrounding the consent.

Detective Rush further testified that Ms. Doorley also provided her written consent after

verbally consenting to the detectives searching the minivan. Id. Per standard procedure, Detective

Rush read the consent form aloud to Ms. Doorley and also indicated that she could revoke her

consent at any time during the search. Id. at pp. 46-47. While Detective Miller conducted the search

of the vehicle, Detective Rush stood by Ms. Doorley, approximately ten feet away from the vehicle,

just in case she wished for Detective Miller to terminate the search. Id. at pp. 35-36, 46. During this

time, Detective Rush and Ms. Doorley made casual conversation, and at no time did Ms. Doorley

revoke her consent to search the vehicle. Id. at p. 36. Importantly, Robinson, who went back inside

of the residence, never indicated that he did not want the detectives to search the minivan. Id. at pp.

42-43.

There is no evidence in the record that the detectives coerced Ms. Doorley into providing

consent to search the minivan. To the contrary, the detectives told her that she had the right to

revoke her consent. Further, we do not find anything in the record that indicates that Ms. Doorley

misunderstood her rights, which were indicated on the consent form and read aloud to her. As

discussed above, Ms. Doorley was cooperative and conversational with the detectives. Thus, upon

our review of the circumstances under which Ms. Doorley provided her consent, we conclude that

her consent was made voluntarily.

Finally, we note that Detective Rush testified that although Ms. Doorley's written consent

fonn has since been misplaced and cannot be located, he undoubtedly witnessed Ms. Doorley sign

same prior to the search of the minivan. Id. at p. 34-35. With respect to any contention raised by

Defendants that the consent furm is not physically available in order to be made part of the record,

we note that, under Pennsylvania law, there is no requirement that a consent search be memorialized 34 by a signed written consent. Com. v. Gibbons, 549 A.2d 1296 (Pa. Super. 1988) (citing Com. v.

Markman, 467 A.2d 336 (Pa. Super. 1983). As stated supra, a valid consent search requires only that

the consent be voluntary and not the result of duress, force, or coercion. See, id.

E. Habeas Corpus

Robinson and Hughes have each filed a petition for habeas corpus. Defendants contend that

the Commonwealth is unable to present sufficient facts and evidence to sustain a primafacie case

against them.

"The writ of habeas corpus exists to vindicate the right of personal liberty in the face of

unlawful government deprivation:' Com. v. Jackson, 809 A.2d 411, 416 (Pa. Super. 2002) (internal

citations and quotations omitted). A writ of habeas corpus allows a defendant to challenge the

validity of the Commonwealth's evidence to sufficiently establish the charges against them. "A trial

court may grant a defendant's petition for habeas corpus when the Commonwealth has failed to

present e primafacie case againstthe defendant." Com. v. Santos, 583 Pa. 96, 100, 876 A.2d 360,

362 (2005).

The Commonwealth does not need to establish their case beyond a reasonable doubt, but

need merely establish a primafacie case, which consists of evidence, read in the light most favorable

to the Commonwealth, that sufficiently establishes "the commission of a crime and that the accused

is probably the perpetrator of that crime." Com. v. Hendricks, 927 A.2d 289, 291 (Pa. Super. 2007);

Com. ex rel. Lagana v. Office ofAttorney Gen., 662 A.2d 1127, 1129 (Pa. Super. 1995). The

evidence must be sufficient enough that if it were up resented at trial and accepted as true, the trial

judge would be warranted in allowing the case to go to the jury;' Id. In an effort to meet its burden,

the Commonwealth may utilize the evidence presented at the preliminary hearing and also may

submit additional proof. Com. v. Mannan, 541 A.2d 356, 359 (Pa. Super. 1988). With respect to

any additional evidence, it is within this Court's "sole province as [the] fact finder to pass on the

35 credibility of witnesses and the weight to be given to their testimony," Com. v. Elmoby, 823 A.2d

180, 183 (Pa. Super. 2003). Therefore, this Court is free to believe all, some) or none of the evidence

presented.

Robinson's Petition

We first address Robinson's contention that the Commonwealth is unable to prove a prima

facie case against him for the offenses of criminal homicide and conspiracy to commit criminal

homicide in the death of Holton. After hearing testimony at our March 7, 2016 Omnibus Pretrial

Hearing, reviewing the transcript of the preliminary hearing of Robinson, and viewing the evidence

and all reasonable inferences arising from the evidence in the best light to the Commonwealth, we

find that the prosecution established a prima facte case. The evidence presented established that a

crime had been committed and that both Defendants were probably the persons who committed it.

The testimony of the witnesses presented at the preliminary hearing, including Sergeant Richard

Weber, Zachary Lysek, Detective Rush, Detective Miller, and Detective Snyder, as well as the

testimony of Graves and the subsequent testimony provided by Detectives Rush, Miller, and Snyder

at our March 7, 2016 hearing on the instant Motions, establish circumstantially that the Defendants

probably caused the shooting death of Holton on November 23, 2012.

As stated above, Robinson is charged with Criminal Homicide, in violation of 18 Pa.C.S.A.

§ 2501, for intentionally, knowingly, recklessly or negligently causing the shooting death of Ervin

Holton on November 23, 2012. Hughes is charged with Criminal Homicide, in violation of 18

Pa.C.S.A. § 2501, for soliciting Robinson to committhe offense of the aforementioned criminal

homicide and/or aiding, agreeing, or attempting to aid Robinson in planning or committing same.

Both Defendants are also charged with Criminal Conspiracy to Commit Criminal Homicide, in

violation of 18 Pa.C.S.A. § 903 A 1, for conspiring with the other to cause the death of Ervin Holton.

A person commits the crime of Criminal Homicide and violates 18 Pa. C.S. § 2501 (a) "if he

intentionally, knowingly, recklessly or negligently causes the death of another human being. u To 36 sustain a criminal conspiracy conviction, the Commonwealth must establish that a defendant entered

into an agreement to commit or aid in an unlawful act with another person or persons, with a shared

criminal intent, and an overt act was done in the conspiracy's furtherance. 18 Pa.C.S. § 903;21

Commonwealth v. Rios, 546 Pa. 271) 684 A.2d I 025, 1030 (1996) (citations omitted). 111e overt act

need not accomplish the crime - it need only be in furtherance thereof. In fact, no crime at all need

be accomplished for the conspiracy to be committed. Com. v. Weimer, 602 Pa. 33, 38-39, 977 A.2d

1103, 1105-06 (2009). On behalf of both Defendants in this case, we find the evidence more than

sufficient to support «prima facie case for the offenses of Criminal Homicide and Conspiracy to

Commit Criminal Homicide.

At the Omnibus Pretrial Hearing, we heard evidence that detectives from the Easton Police

Department reported to a residence on the south side of Easton in response to a 91 I call that was

made at approximately 5 :4 I p.m. on Nov em her 23, 2012. At the scene, the detectives identified

Holton as the victim. The coroner determined that the cause of death was a homicide by multiple

gunshot wounds.

Detectives Miller and Rush testified regarding video surveillance from approximately 5:39

p.m. to 5:41 p.m. on the evening of the shooting, depicting two individuals exit a dark-colored

minivan about a block away from the crime scene, walk in the direction of the scene, and run back

toward the minivan to drive away minutes later. The Commonwealth also presented evidence that

Robinson and Hughes were probably the individuals seen in the video surveillance as Robinson's

girlfriend, Ms. Doorley, was the owner of a dark-colored minivan. When Detectives Miller and Rush

went to Robinson's home to search the minivan, Robinson indicated that he was the operator of the

21 Section 903 provides, in relevant part: (a) Definition ofconspiracy.-A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he: (1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime ...

37 minivan on the date of the homicide, and he became emotional when he was questioned further about

the incident. Additionally, a search of the minivan revealed that gunshot residue was found on the

steering wheel and the driver's side interior door handle.

Further, cell phone records confirmed that Robinson and Hughes had been making several

phone calls between themselves and Reavis just before the time of the homicide, but at around 5:39

p.m. - just before the time the 91 l call was made and the same time that the video surveillance

showed the individuals exiting the minivan - all calls between them ceased, to resume again only

five minutes following the shooting. The cell phone records also evidenced that Robinson and

Hughes were in close proximity to one another when the calls were made because the calls were

being transmitted from the cell tower located on the south side of Easton.

We heard additional testimony that Robinson and Hughes were together during the afternoon

on the date of the homicide. Specifically, the vice unit of the Easton Police Department was

investigating Hughes on that day, and as a result of this vice investigation, photographs were taken

showing that Robinson and Hughes were together near the residence of Corey Reavis. Reavis

informed the police that he had driven Holton to the area where he was shot. Additional testimony

revealed that Holton was in that area in order to see his female friend Janine Edwards.

The police investigation further disclosed that Hughes had provided several different alibis,

none of which the detectives could substantiate. Additionally, testimony from Graves, a prisoner

who shared transport with Hughes during incarceration, indicated that Hughes boasted to him about

the fact that he had prepared an alibi for the time of the homicide. Graves further testified that

Hughes told him that his ex-girlfriend "got with another guy" who might have been a rival drug

dealer in Easton. After the "guy" continued to talk to the girl, Hughes told Graves that "his mans

handled that."

Clearly, the foregoing testimony and evidence supports a primafacie finding that both

Robinson and Hughes played a vital and supportive role in the events which led to the death of 38 Holton. Specifically, the evidence supports a primafacie case that Robinson shot Holton and that

Hughes arranged for the shooting to happen and potentially took part in said shooting. With all

inferences and issues of credibility properly weighed in favor of the Commonwealth, we conclude

that e prtmafacie case of Criminal Homicide and Criminal Conspiracy has been established against

the Defendants and the Petition for Writ of Habeas Corpus and/or to quash the information must

properly be denied.

Hughes' Petition

Next, we address Hughes' petition. Hughes' petition is based primarily on the fact that no

preliminary hearing transcript has been made available with respect to him and that "holding (him)

violates his right to be free from unreasonable seizures of the person as guaranteed by the Fourth and

Fourteenth Amendments of the United States ... ". See Hughes' Omnibus Pretrial Motion at 139. He

asserts that a Preliminary Hearing was held before Magisterial District Judge Joseph Corpora on or

about June 19, 201 S and that "[i]t is remarkable that although the Preliminary Hearing was held ... ,

there was no Court Stenographer requested by Preliminary Hearing Council [sic] Jack McMahon and

no Preliminary Hearing Transcript of the proceedings exist." Id. at�� 36-37. As a result of the lack

of a preliminary hearing transcript, Hughes contends that "it is absolutely necessary in order to

facilitate due process for your Defendant that this matter be remanded and the Writ of Habeas be

granted for a new proceeding and Preliminary Hearing consistent with the Rules of Criminal

Procedure." Id. at 141.

Hughes does not argue that he was not afforded a preliminary hearing; rather, he argues that a

transcript of same was not made available. Nevertheless, there is no constitutional right, federal or

state, to a preliminary hearing. Com. v. Mayberry, 459 Pa. 91, 327 A.2d 86 (1974); Coleman v.

Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Com. v. McCloskey, 443 Pa. 117, A.2d

764 (1971); Cf. Com. ex rel. Fitzpatrick v. Mirarchi, 481 Pa. 385, 392 A.2d 1346 (1978). "The principal function of a preliminary hearing is to protect the individual against unlawful detention. 39 The prosecution, therefore, has the burden of establishing at leastprimafacie that a crime has been

committed and the accused is the one who committed It." Com. v. Ruza, 511 Pa. 59, 64, 511 A.2d

808, 810 ( 1986) (internal citations and quotations omitted).

We have determined above that the testimony and evidence presented at Robinson's

preliminary hearing and at the Omnibus Pretrial Hearing overwhelmingly indicate that a prima facie

case exists against Robinson and Hughes. Therefore, notwithstanding the lack of a preliminary

hearing transcript with respect to Hughes, there has been ample evidence adduced at the

aforementioned hearings to establish s primafacte case against Hughes. As such, the safeguards that

a preliminary hearing would afford Hughes were observed. Com. v. Hess, 489 Pa. 580, 590, 414

A.2d 1043, 1048 (1980) (holding that if it is determined at trial that the evidence of the

Commonwealth is sufficient to be submitted to the jury, then any deficiency in the presentation

before the district justice would have been harmless). See also Morman, 541 A.2d at 360 ("If the

habeas corpus court determines that a prima facie case in fact exists against an individual, then the

individual has obtained a judicial review of the legality of the government's restraint upon his

personal liberty.")

Accordingly, Hughes' motion for habeas corpus will be denied on this basis.

m. Conclusion

For the foregoing reasons, with the exception of Hughes' motion to suppress statements made

by him on December 11, 2012 only, all other Defendants' Omnibus Pretrial Motions are DENIED.

An appropriate Order follows.

BY THE COURT

JENNIFER R. SLETVOLD, J.