Appeal from the Judgment of Sentence entered on April 13, 2010 in the Court of Common Pleas of Montgomery County, Criminal Division, No. CP-46-CR-0001914-2009
BEFORE: FORD ELLIOTT, P.J.E., WECHT and MUSMANNO, JJ.
Joseph Page ("Page") appeals from the judgment of sentence imposed following his conviction for one count each of murder in the second degree and burglary, four counts of robbery, and two counts of criminal conspiracy.We affirm.
The trial court has set forth the relevant underlying facts in its Opinion. See Trial Court Opinion, 4/25/12, at 2-14. We adopt the trial court's recitation for the purpose of this appeal. See id.
Page proceeded to a jury trial in January 2010. After hearing the evidence, the jury found Page guilty of the above-mentioned crimes. The trial court sentenced Page to life in prison for the murder conviction, with an aggregate consecutive prison term of forty to eighty years for the robbery and criminal conspiracy convictions. Page filed post-sentence Motions, which the trial court denied. Page timely filed a Notice of Appeal. On appeal, Page raises the following issues for our review:
1. Did the trial court abuse its discretion by denying [Page's] Motion to Suppress statements and evidence seized during the warrantless search at the time of his arrest ?
2. Did the trial court abuse its discretion by qualifying [A]gent Shute as an expert in historical cell site analysis?
3. Did the trial court abuse its discretion and commit reversible errors of law when it denied [Page's] mistrial motions at various points during the trial?
4. Did the trial court commit reversible error when it submitted confusing jury instructions, over [Page's] objections, relating to accomplice liability, to the jury?
5. Is the evidence of record legally insufficient to sustain [Page's] convictions for murder, robbery and related offenses?
6. Did the trial court abuse its discretion [by] not granting [Page] a discharge of all charges or a new trial on the basis of discovery and Brady violations committed by the Commonwealth?
Brief for Appellant at 5 (some capitalization omitted).
In his first claim, Page contends that the trial court abused its discretion when it denied his Motion to Suppress the statements he made to police falsely identifying himself as "James Mears, " as well as a letter addressed to "James Mears" and pieces of false identification (a photo identification card, social security card and a birth certificate), which were seized at the time of his arrest. Id. at 22, 32. Page further contends that, because the police failed to read him his Miranda rights before he made the statements, the statements were neither knowing nor voluntary. Id. at 28. Page also claims that, because one of the police detectives knew that Page was lying about his identity (due to a distinctive tattoo on Page's neck), the police should not have asked him to provide biographical information, as they reasonably expected that their request would elicit an incriminating response from Page. Id. at 29.
Notwithstanding these arguments, Page concedes in his appellate brief that a spontaneous utterance, such as his claim to have been "James Mears, " is admissible even if not preceded by the provision of a Miranda warning. Id. at 28. Page further concedes that the physical evidence found on his person at the time of his arrest (the letter and false identification documents) were properly within the scope of the search conducted by police incident to his arrest. Id. at 33-34.
Based on Page's concessions, we conclude that his first claim is without merit. Even if Page had not conceded that his claims are without legal support, we concur with the sound reasoning of the trial court, and would affirm the trial court's ruling on the basis of its opinion with regard to this claim. See Trial Court Opinion, 4/25/12, at 19-25.
In his second claim, Page contends that the trial court abused its discretion by qualifying FBI Special Agent William Shute ("Agent Shute") as an expert in the field of cellular telephone and cellular tower technology. Brief for Appellant at 37. Page claims that there is no evidence or precedence that the science underlying cellular telephone registering, trapping, or tracking is generally accepted in the scientific community. Id. at 42. Page contends that the trial court should have conducted a Fryehearing on this issue before qualifying Agent Shute as an expert in that field. Id. at 43. Page also contends that trial court should not have qualified Agent Shute because the Commonwealth failed to provide Page with the data, analytical process or method, and scientific bases relied upon by Agent Shute in forming his opinions, thereby hindering Page's ability to retain an expert or refute Agent Shute's opinions. Id. at 43-44. Additionally, Page contends that, because he filed a Motion in limine regarding Agent Shute's qualifications and the lack of general acceptance in the scientific community of the science about which he was to testify, Page preserved these objections, despite his failure to object to them at trial. Id. at 37-38. Finally, Page contends that the trial court should have precluded Agent Shute from testifying as an expert as a sanction for the Commonwealth's repeated discovery violations, which prejudiced Page at trial. Id. at 47.
Prior to trial, the trial court granted Page's Motion in limine in part, but deferred ruling on whether Agent Shute was qualified to testify as an expert in the field of cellular site analysis. Trial Court Order, 12/17/09, at 2. However, during trial, Page failed to renew his objection when the trial court qualified Agent Shute to testify as an expert. Moreover, Page did not request a Frye hearing at any point. Therefore, Page has waived his second claim. See Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010) (stating that the failure to raise a contemporaneous objection to an error at trial waives any claim regarding that error on appeal); Commonwealth v. Arroyo, 723 A.2d 162, 170 (Pa. 1999) (holding that defendant waived a Frye challenge when he merely challenged an expert's qualifications).
Even if Page's second claim had not been waived, the trial court set forth the relevant law and concluded that it properly qualified Agent Shute to testify as an expert in the area of historical cell site analysis. See Trial Court Opinion, 4/25/12, at 34-38. We agree with the sound reasoning of the trial court and would adopt its reasoning for the purpose of this appeal. See id.
In his third claim, Page contends that the trial court abused its discretion by denying his Motions for mistrial made at various points during the trial. Brief for Appellant at 48. Page contends that various errors and prosecutorial violations throughout the trial caused extreme prejudice to his defense, which could not be cured by curative instructions to the jury. Id. at 50-79. Page further contends that the total cumulative effect of the errors and prosecutorial violations compounded the prejudice to him and prevented a fair trial, compelling application of the cumulative error doctrine and Pennsylvania's double jeopardy clause. Id. at 79-87.
The trial court set forth the relevant law and concluded that it properly denied Page's Motions for mistrial. See Trial Court Opinion, 4/25/12, at 38-61, 70. We agree with the sound reasoning of the trial court and adopt its reasoning for the purpose of this appeal. See id.
In his fourth claim, Page contends that the trial court's instructions to the jury regarding accomplice and co-conspirator criminal liability were unclear and confusing. Brief for Appellant at 88. Page further contends that the trial court erred when, in response to the jury's request for re-instruction on accomplice liability during its deliberations, the trial court re-instructed the jury on both accomplice liability and co-conspiracy, thereby prejudicing Page. Id. Page does not claim that the instructions provided an incorrect statement of the law. Id. at 94. Rather, Page contends that the co-conspiracy instruction could have confused the jury by permitting it to think that it could apply co-conspirator liability to the murder charge when the co-conspirator charges only applied to the robbery and burglary charges. Id.
The trial court set forth the relevant law and concluded that it properly instructed the jury in response to its request for re-instruction. See Trial Court Opinion, 4/25/12, at 68-70. We agree with the sound reasoning of the trial court and adopt its reasoning for the purpose of this appeal. See id.
In his fifth claim, Page contends that his convictions and the trial court's judgment of sentence are not supported by the evidence. Brief for Appellant at 97. Page contends that the testimony of Sybil White, Robert Eatman, Angelo Shin and Julius Wise, placing Page at the scene of the crime, was "not worthy of belief" because each of these witnesses had a motive to place blame on Page. Id. at 103-05. Page also asserts that the presence of his DNA in the tip of a rubber glove found next to Robert Chae's body does not establish that he was at the crime scene. Id. at 104.
The trial court set forth the relevant evidence and applicable law, and concluded that the Commonwealth presented sufficient evidence to support Page's convictions. See Trial Court Opinion, 4/25/12, at 25-32. We agree with the sound reasoning of the trial court and adopt its reasoning for the purpose of this appeal. See id.
In his final claim, Page contends that the trial court abused its discretion when it denied his Motion for a New Trial based upon the Commonwealth's Brady violations for failure to turn over favorable material and potentially exculpatory evidence. Brief for Appellant at 106. Specifically, Page claims that the Commonwealth withheld a statement made by co-defendant Karre Pitts ("Pitts"), during his plea negotiations, wherein Pitts admitted "to his role in the home invasion." Id. Page contends that Pitts's statement, although inadmissible at trial, supported the defense theory that Pitts, rather than Page, was the third assailant in the home invasion. Id. at 111-12. Page further contends that, had he been provided with Pitts's statement, he might have uncovered additional corroborative evidence, thereby raising a reasonable doubt that he was at the Chae residence at the time of the invasion. Id. at 112.
The trial court set forth the relevant law and concluded that Page failed to establish that the Commonwealth committed a Brady violation. See Trial Court Opinion, 4/25/12, at 61-67. We agree with the sound reasoning of the trial court and adopt its reasoning for the purpose of this appeal. See id.
Judgment of Sentence affirmed.
LOWER COURT NO. 1914-09
Following a three-week trial in January 2010, a jury convicted Joseph Page ("Appellant") of one (1) count of Murder in the Second Degree,  four (4) counts of Robbery,  one (1) count of Burglary,  and two (2) counts of Criminal Conspiracy for his role in a deadly home invasion in 2009. The undersigned sentenced Appellant to life imprisonment without the possibility of parole for Second-Degree Murder. In addition, Appellant received three (3) consecutive sentences of ten (10) to twenty (20) years imprisonment with respect to three (3) of the four (4) convictions for Robbery; a consecutive sentence of ten (10) to twenty (20) years imprisonment for one (1) count of Criminal Conspiracy, and no further penalty on the remaining conviction for Criminal Conspiracy. Appellant now appeals from this judgment of sentence.
II. FACTS AND PROCEDURAL HISTORY
The relevant facts adduced at trial are as follows. As was their custom, Robert Chae ("Mr. Chae" or "Decedent") and Janice Chae rose early on the morning of January 9, 2009. Mr. and Mrs. Chae got dressed and prepared to drive from the couple's home, which they shared with their two adult children, at 139 Gwynmont Drive in North Wales, Montgomery Township, to their beauty supply store in Philadelphia. (Notes of Testimony Trial ("N.T."), January 12, 2010 at 90-95). At approximately 5:10 a.m. that day, all sense of normality changed when Appellant and another male approached Robert Chae just outside of the family's garage. At that time, Mrs. Chae was still inside the garage putting on her shoes. (Id.). A third man immediately confronted Mrs. Chae by putting a gun to her head and demanding money. (Id.). She watched helplessly as Appellant and the second man grabbed her husband, struck him, pulled him back into the garage and closed the door. (Id.). As Mr. Chae screamed out in pain, the men secured duct tape over the mouths of both Mr. and Mrs. Chae and bound their wrists with more duct tape. (Id.). After further restraining Mr. Chae, Appellant and the second man continued to beat him for several minutes. (Id.). When Mrs. Chae told the men that the family did not keep money in the house, she saw one of them make a cell phone call. (Id.). One of the men exclaimed that they knew that the couple kept money in their master bedroom and forced Mrs. Chae up the stairs by gunpoint. (Id.).
Minna Chae awoke that morning to the sound of her mother hyperventilating in the hallway outside of her bedroom. (N.T. January 25, 2010 at 7). When Minna opened her bedroom door, a man confronted her with a gun. (Id.) After taking her to her parents' master bedroom, where she was unable to help him, the intruder took Minna to the garage, where he told her to kneel on the floor near the feet of her dying father. (Id. at 8-10). Minna called out her father's name in Korean, but she neither heard nor saw a response from him as he lay bound and gagged on the garage floor. (Id.). Within minutes, the men took Minna to the basement, where they duct taped her feet and legs. (Id. at 11-13). She noticed one of the intruders on a cell phone making phone calls and talking on the phone. (Id.). Another one of the three men brought her mother down to the basement at that time. (Id. at 12; N.T., January 12, 2010 at 98).
The couple's son, Richard Chae, awoke that morning to two men with flashlights and a gun yelling at him to get up. (N.T. January 25, 2010 at 199-200). One of the men put a gun against Richard's head and hit him twice in the head. (Id.). The intruders then directed Richard downstairs to the basement, where he saw his mother and sister on the floor bound with duct tape. (Id.). They told Richard to get down on the ground, and they bound him with duct tape. (Id.). Richard watched as the intruders paced back and forth and listened to one on a cell phone talking to someone about what was happening in the house, expressing concern about not finding the money. (Id. at 203). After Richard urged his mother in Korean to give the armed intruders the money, two of the men took Mrs. Chae back upstairs to the master bedroom to locate monies they believed to be in the house. (Id. at 14, 202; N.T., January 12, 2010 at 99-103). Mrs. Chae watched as one of the men smashed through the door to the walk-in closet of the master bedroom. (Id.). Once inside the closet, Mrs. Chae opened the safe therein and one of the men emptied the safe's contents into a duffle bag. (Id. at 101). Mrs. Chae believed that they took between fifteen and twenty thousand dollars ($15, 000.00 - $20, 000.00), gold necklaces, rings, earrings, a Korean bank account passbook and a family symbol stamp. (Id. at 103).
Ultimately, the two men returned Mrs. Chae to the basement where the third intruder held Minna and Richard captive. (Id. at 104; N.T., January 25, 2010 at 15, 206). Expressing concern about keys and leaving fingerprints, the three men left the basement and went upstairs. (Id. at 15, 207). At that point, Mrs. Chae exchanged a glance with her daughter, who signaled that the coast was clear, and Mrs. Chae fled out the basement door to a neighbor's house to call 911. (Id. at 17, 207; N.T., January 12, 2010 at 104-105). The intruders returned to the basement to find that Mrs. Chae had left the room. (N.T. January 25, 2010 at 17; 207-08). They then quickly exited the house through the basement door. (Id.). Minna found her father in a pool of blood in the garage and left him to go with her brother to call 911 from a phone in her brother's room. (Id. at 18-19, 209).
At approximately 5:59 that morning, Montgomery Township Police Officers responded to a reported burglary in progress at the Chae home. (N.T., January 13, 2010 at 83-84). Upon their arrival, the officers met a visibly distraught Janice Chae standing in the front of her neighbor's house waiting for them. (Id.).
The officers forced entry into the residence, and made their way to the garage area, where they found Richard and Minna Chae and the lifeless body of Robert Chae lying on the concrete floor in a large pool of blood. (Id. at 84). Mr. Chae's ankles were bound with duct tape, and virtually his entire head was wrapped in duct tape so that only a very small portion of his nose remained uncovered. (N.T., January 21, 2010 at 157-58; N.T., January 25, 2010 at 134-39). The Decedent's hands were tied behind his back. (N.T. January 25, 2010 at 155). His nose was broken, swollen, cut and clogged with blood, all of which rendered Mr. Chae unable to breathe adequately for several minutes before he died. This was a slow and painful death. (Id. at 145-48, 150).
On the floor near Mr. Chae's body, the police discovered a wood-handled folding knife, duct tape, Tuff-Tie brand plastic restraining devices, and the torn-off finger portion of a black latex glove. Officers collected the items for scientific analysis. (N.T., January 21, 2010 at 152-55, 157-60, 200-01).
On January 9, 2009, Dr. Paul Hoyer, a forensic pathologist, conducted an autopsy of Mr. Chae's body and concluded that he died as a result of asphyxia. Dr. Hoyer described Mr. Chae's death as slow and painful. (N.T., January 25, 2010 at 148-51, 156). The autopsy revealed that Mr. Chae had been struck numerous times with a hard-edged blunt instrument, struck with a blunt padded object, stabbed and cut with a knife and punched in the face. (Id. at 149-55). The pathologist also determined that the majority of the injuries had been inflicted after Mr. Chae was already restrained. (Id. at 143). Dr. Hoyer deemed the manner of Mr. Chae's death a homicide.
In addition to providing the above-stated information, Minna and Richard Chae described seeing the men wearing dark hoodies, Timberland boots and black latex gloves in their statements to the police. (N.T., January 25, 2010 at 15-16, 203-05). They also described the money, jewelry and other items taken from their home, including a cell phone, cash and designer handbags taken from their bedrooms. (N.T. January 25, 2010 at 17, 30-33, 209-10).
The exhaustive police investigation into this matter yielded information from confidential informants, tips from the public, and voluminous telephone records. For example, a neighbor out walking very early that morning reported that he had seen two vehicles that he did not recognize driving past the Chae home on Gwynmont Drive in the North Wales neighborhood. (N.T. January 19, 2010 at 7-8). He described the two vehicles as a silver SUV, either an Escalade or a GMC, and a white four-door, either Chrysler or GM. (Id.).
Based on information that the Chae family provided, detectives meticulously combed through voluminous cellular phone, Direct Connect/Boost Mobile phone and cell tower records to develop additional leads. (N.T., January 14, 2010 at 211-16; January 15, 2010 at 57-60). Through the continued analysis of the call detail records associated with the telephones, the detectives quickly identified Angelo Shin, the nephew of the deceased victim Robert Chae, as a person of interest. (N.T., January 14, 2010 at 15-17, 216-17). It was learned that the Decedent's family was staying with Angelo Shin after the murder. (Id. at 217).
On January 29, 2009, the detectives interviewed Shin, who admitted his involvement in planning the robbery and provided them with information leading to the other participants. (Id. at 21). Shin had lived with the Chae family in his uncle's home for over a year and worked intermittently in the family business. (N.T., January 13, 2010 at 126-27). Shin admitted that he enjoyed bragging to friends about his uncle's wealth. (Id. at 129, 133).
Shin explained that he met Appellant, a.k.a. "Tree Man" and "Spade", in 2008. (Id. at 129-30, 132, 192). Shin listed Appellant's phone number in his cell phone contact list under "Tree Man". (Id. at 130-31). Shin bragged to Appellant about his uncle's money, "luxury rides" and nice house. [Id. at 129, 132-33, 190, 193, 196). After several conversations with Appellant, the talk turned to robbery and eventually Shin told Appellant that his uncle kept approximately a hundred thousand dollars ($100, 000.00) in a safe in the family's master bedroom. (Id. at 133-34, 197). Shin subsequently drove Appellant out to Montgomery Township to show Appellant the Chae residence. (Id. at 134, 192-93).
In December 2008, Shin attended a meeting at 1762 Brill Street in Philadelphia. Appellant was at that meeting with Co-Defendants Amatadi Latham, Karre Pitts, Julius Wise, Robert Eatman and Angelo Shin. At that meeting, there was a discussion with Shin about his uncle's wealth. (Id. at 135, 137, 195-97; N.T., January 20, 2010 at 60). A second meeting occurred on January 8, 2009. (Id. at 61-62; N.T., January 13, 2010 at 140, 198). At this meeting, Shin observed black latex gloves, plastic Tuff-Tie restraints, which Appellant had purchased in anticipation of the robbery, a duffle bag and a knife that Appellant was playing with. (Id. at 141, 143). Shin left the meeting and returned home to await news of the robbery scheduled for the following day. (Id. at 145). Shin told detectives that on Friday, January 9, 2009, he received a cell phone call from Appellant after the robbery saying that Appellant and the others were very angry because they had not recovered as much money as Shin had predicted. (Id. at 145-46). Later that morning Shin met with Appellant in front of the house on Brill Street and received $2, 000.00 as Shin's share of the robbery proceeds. (Id. at 146). During their brief conversation, Shin asked Appellant why he had murdered Shin's uncle. Appellant "laughed" and said that he "had to do what had to do [sic]; you know, [Mr. Chae] was kicking and screaming." (Id.).
Shin's statement led police to Robert Eatman. According to Eatman, Appellant approached him in November 2008 about committing a robbery. (N.T., January 20, 2010 at 58-59). At the time, Eatman was living at 1761 Brill Street with his sister. (Id. at 52-53). Julius Wise lived across the street. (Id. at 62). Eatman confirmed Shin's account of the two meetings at Wise's home on Brill Street. (Id. at 60-62). Sometime in the middle of December, between the first and second meetings, Eatman drove Appellant out to the Chae residence in Eatman's white four-door Chevy Impala. (Id.). The pair became lost and Appellant had to call Shin for directions. (Id. at 60, 133; N.T., January 13, 2010 at 139-40). At the meetings, the men discussed the items that they would need for the robbery, including their cell phones and Direct Connect or Boost Mobile phones with a walkie-talkie or chirp feature, duct tape, hand ties, latex gloves and duffle bags. (N.T., January 20, 2010 at 62, 65, 103, 146). Eatman explained that he was with Appellant when Appellant purchased items for the robbery at a police supply store, including plastic wrist ties. (Id. at 65-66). Eatman also conveyed how Shin provided the men with information about the Chae couples' morning habits and where they kept the money in their house (Id. at 61, 98-100).
On January 9, 2009, Eatman, in his white Chevy Impala, followed a Cadillac Escalade, driven by Sybil White, out to the Chae residence. (Id. at 68, 71). He explained that he watched Appellant, Latham and Pitts get out of the Escalade and walk toward the Chae house. (Id. at 71, 191). While Eatman waited in his car at a nearby Wawa, where Sybil White was also waiting in the Escalade, he received a call from Latham. (Id. at 72-73). Latham told Eatman that "[Appellant] went cra2y inside of there, beat the Chinese dude real bad." (Id. at 73). During that conversation, Eatman could hear a female crying and "heard Page say, where the money at." (Id. at 74). Eatman then returned to Philadelphia (Id.). Eatman went to his sister's home on Brill Street and minutes later others arrived with duffle bags full of items. (Id. at 76, 109). Appellant and Latham had "blood from head to toe", so Eatman told them they had to leave. (Id. at 76, 141). For his role as the "lookout", Eatman received $1, 000 of the robbery proceeds. (Id. at 109).
Police identified Sybil White as the individual who drove Appellant, Latham and Pitts to the Chae residence in a silver Cadillac Escalade owned by the young woman's mother. (N.T., January 19, 2010 at 28, 44-46). In her statement to police and subsequent testimony, White explained that Appellant sat in the passenger seat and told her where to drive. (Id. at 45, 47, 51, 127, 202). Appellant put on black latex gloves before exiting the Escalade to go into the Chae home. (Id. at 52, 208). White saw the men get out of the Escalade with duct tape and two black duffle bags ( Id. at 46, 53). Appellant also had a gun. [Id. at 52-53). After the drop off, White drove to a nearby Wawa as instructed. (Id. at 56-58). White received a call to return to the Chae residence to pick up the three men that she had dropped off, and returned them to Brill Street. (Id. at 58-59). On the drive back to Brill Street, Pitts asked Appellant why did Appellant "have to do it", why did Appellant "have to kill him" and Appellant responded "he was coming after [me], so [I] had to do what [I] had to do." (Id. at 74-75).
Julius Wise's statements to police and subsequent testimony confirmed much of the information concerning the home invasion previously provided by Shin, Eatman and White, including the identity of the men who participated in the planning and execution of the home invasion, robbery and death of Robert Chae. (See, N.T., January 21, 2010 at 35-36, 39-40, 43-45, 50-51). Through these interviews and the identification of certain cell phones, detectives were able to establish probable cause to believe that Appellant, Eatman, Latham, Pitts, Wise and Shin met, conspired and planned the home invasion robbery of the Chae family, which resulted in the death of Robert Chae.
Magisterial District Judge David A. Keightly issued an arrest warrant for Appellant, based upon an affidavit of probable cause and a criminal complaint, which charged Appellant with Murder of the Second Degree; Criminal Conspiracy; and several lesser-included offenses. Police arrested Appellant on February 19, 2009 at 5216 Carlisle Street, Philadelphia, PA based upon information that they had obtained advising that Appellant was hiding at that location. (N.T., Supplemental Suppression Hearing, September 18, 2009 at 32-33; N.T., January 25, 2010 at 163-64). Appellant initially identified himself to officers as James Mears. (N.T., Supplemental Suppression Hearing, September 18, 2009 at 33-34, 43). The arresting detective also found three forms of identification for James Mears in Appellant's pocket. (Id. at 34-35; N.T., January 25, 2010 at 164-65, 167). However, when later questioned about certain discrepancies, including a fingerprint match, Appellant eventually admitted his real identity. (N.T., Supplemental Suppression Hearing, September 18, 2009 at 37, 49; N.T., January 25, 2010 at 168).
This court denied Appellant's Supplemental Motion to Suppress Evidence Seized at the time of Appellant's arrest by order dated October 20, 2009. The trial of Appellant, Amatadi Latham and Karre Pitts commenced with jury selection on Friday, January 8, 2010, and concluded on Friday, January 29, 2010. In addition to the witnesses previously mentioned, the Commonwealth presented testimony from additional witnesses who corroborated Shin's, Eatman's, White's and Wise's version of the events culminating in the death of Robert Chae. The Commonwealth presented Special Agent William Shute as an expert in cellular telephone and cellular tower technology. Agent Shute explained how the police were able to analyze the cell phone and cell tower data in this case and determine approximately where the suspects were located when they made a pattern of cell phone calls on the days in question. (N.T., January 15, 2010 at 112, 179-201). Another witness, Anthony Vanderslice, testified that he sold three (3) Boost Mobile phones to three men at Wireless Tech on Frankford Avenue on December 18, 2008, one of whom he identified as Appellant. (N.T., January 14, 2010 at 140-47, 159-61, 164-65).
The Commonwealth also presented the testimony of Julia Brolley, a Pennsylvania State Police DNA analyst. (N.T., January 22, 2010 at 109). Ms. Brolley testified regarding the DNA evidence extracted from, inter alia, the crime scene as well as from the Cadillac Escalade. (Id. at 116-17, 122, 132-33). The evidence established the presence of Decedent's blood on the front passenger seat headrest of the Escalade and the presence of Decedent's DNA and Appellant's DNA on the swab of the finger-shaped piece of black latex glove found in the Chae family's garage next to Mr. Chae's body. (Id. at 134-35).
Following deliberations, the jury found Appellant guilty of the aforementioned offenses. Appellant filed a Motion for Extraordinary Relief Pursuant to Pa.R.Crim.P. 704(B) on April 1, 2010. The undersigned denied the motion without prejudice by order docketed on April 8, 2010. This court sentenced Appellant on April 13, 2010. In total, Appellant received a life sentence plus forty (40) to eighty (80) years imprisonment. Appellant filed post-sentence motions on April 23, 2010. The undersigned denied Appellant's post-sentence motions on August 18, 2010. On September 17, 2010, Appellant filed a notice of appeal to the Superior Court of Pennsylvania ("Superior Court"). On the same date, the undersigned directed Appellant to file a Concise Statement of the Errors Complained of on Appeal ("concise statement") pursuant to Pa.R.A.P. 1925(b). Appellant filed a Motion for Extension of Time to File 1925(b) Concise Statement on October 5, 2010, which this court granted by order docketed on October 7, 2010. Appellant then filed a concise statement on November 5, 2010, and a corrected concise statement on November 9, 2010.
Appellant presents the following issues on appeal:
I. [A-l.] The trial court committed reversible legal error in violation of [Appellant's rights under Article I, Sections 8 8b 9 of the Pennsylvania Constitution and the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution by denying [Appellant's pre-trial motion to exclude all statements and physical evidence seized when [Appellant] was illegally arrested in his home without an arrest warrant on February 19, 2009 and various items on his person and in his premises were seized without a search warrant. Further, statements were elicited from [Appellant] without any waiver of his constitutional rights under Miranda V- Arizona.
II. [A-ll.] The evidence against [Appellant] was insufficient as a matter of law to sustain his conviction on all charges for the reasons set forth in [Appellant's Post-Sentence Motions Pursuant to Pa.R.Crim.P. 720(B) (attached hereto and marked as Exhibit "A"). As a result, the judgment of sentence and jury verdict should be set aside and [Appellant] should be discharged. Furthermore, there is no direct, unpolluted evidence which places [Appellant] at the scene of the crime on 1/9/09. The Commonwealth's theory that [Appellant] was the biggest of the three (3) intruders is directly contradicted by testimony of Minna and Janice Chae who could not identify [Appellant's] photograph or [Appellant] at a physical lineup as being at the scene. Furthermore, Minna Chae specifically identifies Robert Eatman as the "biggest guy."
III. [A-12.] The verdict of guilt on all charges was against the weight of the evidence for the reasons set forth in Matter No. 11, supra, and in [Appellant's Post-Sentence Motions Pursuant to Pa.R.Crim.P. 720(B) (attached as Exhibit "A"). As a result, the judgment of sentence and jury verdict should be set aside and a new trial should be ordered.
IV. [A-5.] The trial court committed reversible legal error by failing to sustain [Appellant's] objection to the qualifications of Agent William Shute to testify as an expert in the area of historical cell site analysis [sic] (N.T., 1/15/10 at pp. 110-114, 176)
V. [A-6.] The trial court committed reversible legal error by failing to declare a mistrial as a result of extremely prejudicial statements elicited by the Commonwealth from Agent William Shute concerning, inter alia, his successes in "catching the bad guys who commit violent crimes like the kidnapping of children, homicides and robberies". The post-objection instruction offered by the court could not and did not cure the extreme prejudice resulting from the Commonwealth's efforts in eliciting highly inflammatory and irrelevant testimony. (See N.T., 1/15/10 at pp. 110-214).
VI. [A-2.] The trial court committed reversible legal error by failing to declare a mistrial when, in direct violation of this court's pre-trial rulings pertaining to alleged prior record/bad acts by [Appellant], counsel for co-defendant Karre Pitts, in questioning Angelo Shin, asked about a meeting "when [Appellant] tells you he does home invasions." The extreme prejudice was not nor could not be cured by the court's post-objection comments (N.T. 1/13/10 at pp. 193-211).
VII. [A-3.] The trial court committed reversible legal error in failing to declare a mistrial when Commonwealth witnesses improperly testified about [Appellant's prior drug use ("smoking weed"), drug business and other comments informing the jury of [Appellant's] alleged prior criminality (See, N.T., 1/13/2010 at p. 213; (Angelo Shin); N.T., 1/21/2010 (testimony of Julius Wise) (prior drug use; reference to [Appellant] being associate in drug business); N.T. 1/14/2010 (testimony of Tamara Rodgers) (business conducted on porch)).
VIII. [A-4.] The trial court committed reversible legal error by allowing in-court identification of [Appellant] by Anthony Vanderslice (N.T., 1/14/10 at p. 150-159) (sic) when the Commonwealth failed to disclose, contrary to pretrial court orders and discovery obligation, this fact prior to trial. A mistrial should have been granted.
IX. [A-7.] The trial court committed reversible legal error by failing to declare a mistrial when Sybil White was allowed to testify about alleged hearsay statements made by co-defendants Pitts and/or Latham, in violation of [Appellant's rights under the Confrontation Clauses of the federal and state constitutions as well as under the progeny of Bruton and Crawford. (See N.T. 1/19/10 at pp. 62-71)
X. [A-9.] The trial court committed reversible legal error by not declaring a mistrial when the Commonwealth, in direct violation of the court's [pretrial] orders, submitted into evidence the playing of a 911 telephone call, without ever providing - prior to trial - a written transcript of said tape, which justifiably led [Appellant] to believe no such evidence would be admitted. The electronic copy of the tape provided in discovery was inoperable. Furthermore, said tape was unduly inflammatory (screams) and irrelevant to the proof of the Commonwealth's case; and constituted unfair surprise. (See N.T. 1/25/10 testimony of Richard Chae). The attorneys for the Commonwealth were sanctioned for this behavior by the court.
XI. [A-8.] The trial court committed reversible legal error by allowing, over objection, Commonwealth's witness, Sybil White, to place a disproportionately-sized "mug shot" photograph of [Appellant] onto a diagram of a motor vehicle (N.T., 1/19/10 at pp. 99-102, 226). Such a display demonstrated, unnecessarily, prior criminality of [Appellant] and prejudice and, as such, a new trial is warranted. Said error was later compounded when the court sent the diagram and photo back to the jury during its deliberations (N.T., 1/29/10 at pp. 66-70).
XII. [A-14.] The trial court committed reversible legal error in not discharging [Appellant] or, alternatively, in not awarding him a new trial based on the reasons set forth in Exhibit "A" (Counts 1 and 2) and initially set forth in [Appellant's Motion for Extraordinary Relief filed of record on 4/1/10; and based on the transcribed hearing before this court on 7/28/10. To summarize:
(a) The Commonwealth, contrary to orders of this court, e.g. the order dated 10/14/10, did not disclose, prior to verdict, exculpatory evidence provided by co-defendant Karre Pitts that, along with discovery provided to [Appellant], would have conclusively allowed [Appellant] to demonstrate to the jury that the three (3) home invaders were Robert Eatman (not [Appellant]), Karre Pitts and Amatadi Latham.
(b) Had the disclosure of this exculpatory evidence, allegedly developed in August, 2009, been made known to this court and counsel for [Appellant] in a timely fashion, it, almost certainly, would have changed the result of [Appellant's Motion for Severance (Argued on 7/27/09; Denied by Court order dated 9/21/09). A separate trial for [Appellant] alone would have been [sic] allowed [Appellant] to fully develop his defense that he was not one of the three home invaders. The disclosure of this evidence, whether or not severance was granted, was material to [Appellant's defense and theory of the case.
XIII. [A-10.] The trial court committed reversible legal error by submitting confusing jury instructions (8.306A(1) and 8.306A) after the deliberating jury asked only for an explanation of accomplice liability (found in 8.306A (1)). (See N.T. 1/29/10 at pp. 73-94). In response the court re-instructed the jury on accomplice liability (8.306A(1)) and also instructed the jury, for the first time, on conspiracy (8.306A) which was especially egregious in light of the fact that [Appellant] was never charged with conspiracy as to any murder charges. [Appellant's right to a fair trial under the federal and state constitutions was violated and a new trial is required.
XIV. [A-15.] The cumulative effect of the Commonwealth's repeated violations of the trial court's orders and the Discovery Rule in Pa.R.Crim.P. 573 denied [Appellant] a fair trial under the federal and state constitutions. See Matter No. 4 (failure to disclose Vanderslice identification of [Appellant]), Matter No. 9 (failure to produce operable copy of 911 tape played at trial and failure to transcribe tape as ordered by the court) and Matter No. 14(a) (failure to disclose statements of co-defendant Pitts to counsel for [Appellant]). The cumulative effect of this conduct was so egregious that [Appellant's conviction should be reversed and [Appellant] discharged. Alternatively, [Appellant] should be awarded a new trial.
XV. [A-13.] The trial court committed reversible legal error by denying [Appellant's] post-sentence motion seeking a modification of his sentence for the reasons set forth in Exhibit "A" (Count 5). As a result, [Appellant's case should be remanded for the imposition of the relief requested in Exhibit "A" (Count 5).
(Appellant's Concise Statement of Matters Complained of on Appeal Pursuant to PA. R.A.P. 1925 - Corrected, filed November 9, 2010).
Appellant first contends that the undersigned committed reversible error in violation of his rights by denying Appellant's pre-trial motion to exclude all statements and physical evidence seized when police illegally arrested Appellant in his home because they did not physically hand him an arrest warrant. Appellant also complains that police seized various items on his person and in his premises without a search warrant and elicited statements from Appellant without any waiver of his constitutional rights under Miranda. Accordingly, Appellant reasons that the evidence should have been suppressed. We disagree.
When the Superior Court reviews a challenge to the trial court's denial of a suppression motion, it utilizes the following well-established standard and scope of review:
When we review the ruling of a suppression court, we must ascertain whether its factual findings are supported by the record and whether the inferences and legal conclusions drawn from those facts are reasonable. Where the defendant challenges an adverse ruling of the suppression court, we will consider only the evidence for the prosecution and whatever evidence for the defense that remains uncontradicted in context of the whole record. If there is support on the record, we are bound by the facts as found by the suppression court, and we may reverse that court only if the legal conclusions drawn from these facts are in error.
Commonwealth v. Smith, 917 A.2d 848, 850 (Pa.Super. 2007) (citations omitted); accord Commonwealth v. Wells, 916 A.2d 1192, 1194-95 (Pa.Super. 2007) (citation omitted). On appeal, any legal conclusions must be reviewed de novo. Id . at 1195 (citation omitted).
As the finder of fact, it is within the suppression court's sole province to pass on the credibility of witnesses and the weight to be accorded their testimony. Commonwealth v. Galendez, 27 A.3d 1042, 1046 (Pa.Super. 2011) (en banc) (citation omitted). The factfinder is free to believe all, some, or none of the evidence presented. Id. When a defendant seeks to suppress evidence, the Commonwealth bears the burden of establishing by a preponderance of the evidence that the challenged evidence is admissible. Id.; Commonwealth v. Basinger, 982 A.2d 121, 124 (Pa.Super. 2009) (quoting Commonwealth v. Ruey, 586 Pa. 230, 892 A.2d 802, 807 (2006)).
Both the United States and Pennsylvania Constitutions protect citizens against unreasonable searches and seizures. See U.S. Const. Amend. IV; Pa. Const. Art. I § 8. To be constitutionally valid, an arrest must be based on probable cause. Galendez, supra. This is the case whether a magistrate issues an arrest warrant or in the case of a warrantless arrest. See id.; Commonwealth v. Geary, 488 Pa. 174, 178-80, 411 A.2d. 1195, 1197-98 (1980); Pa.R.Crim.P. 513. The existence of probable cause is determined by the totality of the circumstances. Commonwealth v. Smith, 979 A.2d 913, 916 (Pa.Super. 2009) (citing Commonwealth v. Dunlap, 596 Pa. 147, 941 A.2d 671 (2007), cert, denied, 555 U.S. 964, 129 S.Ct. 448, 172 L.Ed.2d 321 (2008)). Moreover, it is beyond cavil that where the arrest is lawful, based upon probable cause, a ...