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[U] Commonwealth v. Jordan

Superior Court of Pennsylvania

February 14, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DAVID VASQUEZ JORDAN, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence Entered March 23, 2011, In the Court of Common Pleas of Lancaster County, Criminal Division, at No. CP-36-CR-000261-2010.

BEFORE: SHOGAN, MUNDY and OTT, JJ.

MEMORANDUM

SHOGAN, J.

Appellant, David Vasquez Jordan, appeals from the judgment of sentence entered on March 23, 2011. We affirm.

The trial court summarized the factual history of this case as follows:

The charges in this case arose from the stabbing death of Lamar Lewis on December 13, 2009. In December of 2009, Defendant stayed several nights a week at the apartment of Angelica Rivera . . . [in] Lancaster City, Pennsylvania.2 Also staying in the apartment was Ms. Rivera's ex-boyfriend, his son and daughter-in-law, and their kids. On December 9, 2009, an altercation broke out at the apartment between Defendant, Ms. Rivera's son Lionel James, and his friend L[a]mar Lewis. Ms. Rivera called the police. Defendant was the alleged victim, but the police were not able to take a statement from Defendant because he fled the scene. Sometime thereafter Defendant returned to [the apartment].
2 Defendant received mail at his mother's residence.
On December 13, 2009, Lionel James and L[a]mar Lewis were present at [the apartment] when Defendant arrived. Mr. Lewis met Defendant at the front door and they entered the vestibule of the apartment home. On the steps inside, Defendant stabbed Mr. Lewis multiple times in his back and once in his chest. Defendant fled the scene before police and medical personnel arrived. Mr. Lewis was transported to the hospital, but ultimately died from his wounds. Defendant voluntarily arrived at the Lancaster City Police Department (LCPD). In the lobby of LCPD, Officer Reppert was speaking with the desk sergeant when Defendant walked into the building. (N.T. Suppression Hr'g, 10/19/10, at 29.) Defendant asked to speak with a detective and made unsolicited statements related to the stabbing. (See id. at 29-30, 33; see also Suppression Op., 10/25/10, at 3.) Defendant stated that he was being extorted for pills and stabbed the victim in self-defense. (N.T. Suppression Hr'g at 29-30, 33.)
Sergeant Heim arrived and conducted a safety pat-down because Defendant indicated his involvement in the stabbing. Officer Reppert took Defendant to a room behind the desk sergeant in order to get his biographical information for a guest information sheet. (Id. at 35; see also Suppression Op. at 4.) A routine check revealed the existence of a bench warrant for Defendant's arrest. (N.T. Suppression Hr'g at 38; see also Suppression Op. at 4.) At that point, Defendant was placed under arrest and taken to the secure area of LCPD. (N.T. Suppression Op. at 72, 75-76.) Defendant complained about a head injury. (Id. at 82-83.) Sergeant Heim directed officers to take Defendant to the hospital for treatment. (Id. at 83.)
After Defendant was returned to LCPD from the hospital, detectives issued Miranda3 warnings. (N.T. Suppression Hr'g at 89; see also Suppression Op. at 5.) Defendant asked about Mr. Lewis's condition. (N.T. Suppression Hr'g at 107.) Despite knowing the victim had died, Detective Weiser told Defendant that Mr. Lewis was hurt badly. (N.T. Suppression Hr'g at 107.) During the question and answer sessions with detectives, Defendant gave two different statements about the night in question. (See N.T. Trial 253-58, 260-61, 274-81.) The session continued until Defendant stated: "You have asked millions of questions. We're done." (N.T. Suppression Hr'g at 117.) At this point, questioning ceased, but Defendant decided to review his typed statement and make changes. (Id. at 104.)
3 Miranda v. Arizona, 384, U.S. 436, 86 S.Ct. 1602 (1966).

Following the police investigation, Defendant was charged with criminal homicide.

4 418 P.S. § 2501(a).

Trial Court Opinion, 1/29/13, at 1–2.

Appellant, who was represented by the public defender's office, filed a motion to suppress on June 30, 2010, and a motion to recuse on September 16, 2010, which were addressed at a hearing on October 19, 2010. Appellant asserted the evidence should be suppressed because 1) he was under arrest after he arrived at LCPD, 2) he requested an attorney but questioning did not cease, and 3) his Fifth Amendment privilege was violated when detectives failed to inform him of the victim's death. The recusal request related to the trial judge's representation of Appellant, who was then a juvenile, at a certification hearing twelve years earlier. On October 25, 2010, the trial court denied Appellant's suppression motion and denied the motion to recuse.

A jury trial began on November 8, 2010, and culminated on November 16, 2010, when the jury found Appellant guilty of third-degree murder. On March 23, 2011, the trial court sentenced Appellant to a term of incarceration of twenty to forty years, consecutive to a mandatory life sentence imposed for second-degree murder in an unrelated case at Docket Number 1618-2010.

Appellant filed a post-sentence motion challenging the consecutive nature of the sentence, which was denied on April 19, 2011. Appellant filed a pro se notice of appeal, and the trial court appointed new counsel to represent Appellant on appeal. On June 19, 2011, counsel timely filed a court-ordered Pa.R.A.P. 1925(b) statement, and Appellant, pro se, filed a petition to amend the Rule 1925(b) statement on July 14, 2011. The trial court filed its Rule 1925 opinion on August 4, 2011. Appellant thereafter filed a pro se application for remand in this Court on August 22, 2011. Pursuant to that motion, we remanded the matter on October 4, 2011, for an on-the-record inquiry pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988), and a determination of whether Appellant's waiver of counsel was knowing, intelligent, and voluntary.

Following the Grazier hearing on October 31, 2011, the trial court concluded that Appellant's waiver of counsel was knowing, intelligent, and voluntary. The trial court filed orders on November 1, 2011, and November 2, 2011, granting counsel leave to withdraw and permitting Appellant to proceed pro se and in forma pauperis. Appellant filed an Application for Exercise of King's Bench Power in the Supreme Court of Pennsylvania, which was denied on May 16, 2012.

Appellant sought leave to amend the previously filed, counseled Rule 1925(b) statement. In the aftermath of the Grazier hearing, this Court ordered on November 2, 2012, that Appellant, now pro se, was permitted to amend the Rule 1925(b) statement. We further ordered the trial court to file a new opinion, followed by the issuance of a new briefing schedule. Appellant filed an amended Pa.R.A.P. 1925(b) statement on December 3, 2012, the trial court filed its opinion on January 29, 2013, and the parties now have filed their briefs.

Appellant raises the following issues for our review:[1]

I. Did the trial court abuse its discretion in improper denial of Appellant's motion for recusal, therefore, was the trial court acting contrary to the ...

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