Opinion
J-A13017-18 No. 871 WDA 2017
01-23-2019
COMMONWEALTH OF PENNSYLVANIA v. JEREMEY DANIEL SICKENBERGER, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 15, 2016
In the Court of Common Pleas of Butler County
Criminal Division at No.: CP-10-CR-0000805-2014 BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J. MEMORANDUM BY DUBOW, J.:
Appellant, Jeremey Daniel Sickenberger, appeals from the Judgment of Sentence entered by the Butler County Court of Common Pleas after his conviction by a jury of Third-Degree Murder. We affirm on the basis of the trial court's November 23, 2015 Opinion.
The court summarized many of the relevant facts in its November 23, 2015 Opinion, so we will not repeat them in detail. Briefly, on April 17, 2014, Appellant shot the victim, Thomas Stockman, in the chest using a .22 caliber pump-action rifle, killing him.
During the subsequent police investigation of the shooting, troopers interviewed Appellant without an attorney present. After troopers read Miranda warnings, Appellant provided incriminating statements both before and after his arrest during separate recorded interviews.
Miranda v. Arizona , 384 U.S. 436 (1966).
During a pre-arrest interview, the troopers issued Miranda warnings and informed him that he was not under arrest. Appellant asked: "So if I sign this, I can't get an attorney?" Trial Court Opinion, filed 11/23/15, at 4. The troopers told Appellant "No, it's not[,]" and explained that the form simply clarified that he had read it to Appellant and that it informed Appellant of his rights. Id. Appellant signed the Miranda waiver and then spoke with the troopers for forty minutes.
After the troopers arrested Appellant for the shooting, Appellant agreed to another recorded interview. The troopers again issued Miranda warnings and Appellant indicated he understood the rights he was waiving. During the warnings, Appellant asked for the following clarification: "So I can still stop to [inaudible] that I can get an attorney?" Id. at 5. The trooper responded "Absolutely. Whatever you want to do. That's, that's what this, that's what this tells you." Id. After this final interview, the troopers informed Appellant about his hearing and appearance before a magistrate the next morning. Appellant asked, "How can I get an attorney arranged for it?" Id. at 6. The troopers informed Appellant about the paperwork and process and his opportunity to make a telephone call.
Appellant filed a counseled Motion to Suppress his statements to police. At the October 29, 2015 suppression hearing, Trooper Michael Taylor testified about his recorded interviews with Appellant. The Commonwealth also presented the video recordings of Appellant's interviews, and Appellant's written and signed waiver forms. After the hearing, the court denied Appellant's Motion in a thorough Opinion filed on November 23, 2015.
Appellant requested a jury trial, and on September 21, 2016, the jury convicted Appellant of Third-Degree Murder.
On December 15, 2016, the trial court sentenced Appellant to an aggregate term of 18 to 40 years' incarceration. Appellant filed a timely Post-Sentence Motion seeking, inter alia, the reconsideration of his sentence. The trial court denied Appellant's Post-Sentence Motion in an Order and accompanying Opinion filed on May 16, 2017.
Notably, the trial court's sentence fell within the standard range of the applicable sentencing guidelines.
On June 15, 2017, Appellant filed a Notice of Appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents three issues for our review:
1. Did the trial court err[] by failing to suppress statements made by [Appellant] during the interrogations that took place at the police barracks when [Appellant] had invoked his right to counsel but police continued to question him rather than halt the interview?
2. In the alternative, assuming arguendo this Court finds [Appellant] did not invoke his right to counsel, was [Appellant's] waiver of counsel a knowing and intelligent waiver?Appellant's Brief at 5.
3. Did the sentencing court fail to adequately consider the mitigating factors, fail to adequately consider [Appellant's] rehabilitative needs, and did the sentencing court base the length of sentence exclusively on the seriousness of the crime and thus impose a "manifestly excessive" sentence?
Motion to Suppress
In his first two issues, Appellant argues that the court erred in denying his Motion to Suppress. Appellant's Brief at 16-27. First, Appellant avers that two of his statements indicated that he had invoked his right to counsel: (1) when the troopers were issuing Miranda warnings and explaining his rights during a pre-arrest interview, Appellant asked: "So if I sign this, I can't get an attorney?" and (2) during subsequent Miranda warnings for a different post-arrest interview, Appellant asked, "So I can still stop to [inaudible] that I can get an attorney?" Appellant's Brief at 16-24. Second, Appellant alternatively claims that he "did not knowingly and intelligently waive his Miranda rights." Appellant's Brief at 25.
Appellant also claims that the troopers did so knowing that Appellant had been diagnosed with autism spectrum disorder. Appellant's Brief at 21 n.1. In his Brief, Appellant concedes that the suppression court did not have any evidence about Appellant's "learning disability" because trial counsel did not present any such evidence.
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). 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. 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. 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).
"The law is well-settled that a defendant who requests counsel at any time during a custodial interview is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Commonwealth v. Edwards , 903 A.2d 1139, 1150 (Pa. 2006) (citation and quotation marks omitted).
A suspect is entitled to Miranda warnings prior to a custodial interrogation. Commonwealth v. Boyer , 962 A.2d 1213, 1216 (Pa. Super. 2008) (noting that defendant's statement "I don't want to talk to you" was an invocation of his Miranda rights). If a suspect "indicates, in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Commonwealth v. Henry , 599 A.2d 1321, 1323 (Pa. Super. 1991) (internal citations omitted). However, the United States Supreme Court has held that the invocation of the right to remain silent or request an attorney must be affirmative, clear, and unambiguous. See Berghuis v. Thompkins , 560 U.S. 370 (2010); see also Commonwealth v. Briggs , 12 A.3d 291, 318 n.27 (Pa. 2011) (noting that the Supreme Court has held that an individual in police custody subject to interrogation must affirmatively invoke his or her Miranda rights).
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 and quotation marks omitted).
The Honorable William R. Shaffer, sitting as the trial court, has authored a comprehensive, thorough, and well-reasoned Opinion, citing the record and relevant case law in addressing Appellant's suppression claim. See Trial Court Opinion, filed 11/23/15, at 1-11 (concluding that there is no merit to Appellant's suppression claims because, inter alia, Appellant "did not ask for an attorney before or during [any] interview, nor did he assert his right to remain silent[;]" and Appellant understood and voluntarily waived his rights as demonstrated by the video recordings and the signed waiver forms, which show that Appellant provided his statements to police voluntarily "following a valid knowing and intelligent waiver of his Miranda rights."). We, thus, affirm on the basis of the trial court's November 23, 2015 Opinion.
Discretionary Aspects of Sentencing
In his third issue on appeal, Appellant acknowledges that his sentence fell within the standard range of the sentencing guidelines, but avers that the trial court failed to consider various mitigating factors adequately, such as Appellant's rehabilitative needs, which resulted in the imposition of an excessive sentence. Appellant's Brief at 29, 32. Such a claim challenges the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentence are not appealable as of right. Commonwealth v. Leatherby , 116 A.3d 73, 83 (Pa. Super. 2015). Rather, an appellant challenging the sentencing court's discretion must invoke this Court's jurisdiction by (1) filing a timely notice of appeal; (2) properly preserving the issue at sentencing or in a motion to reconsider and modify the sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a separate section of the brief setting forth a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence; and (4) presenting a substantial question that the sentence appealed from is not appropriate under the Sentencing Code. See id.
An appellant raises a "substantial question" when he "sets forth a plausible argument that the sentence violates a provision of the sentencing code or is contrary to the fundamental norms of the sentencing process." Commonwealth v. Crump , 995 A.2d 1280, 1282 (Pa. Super. 2010) (citation omitted).
It is clear from our precedent that Appellant has failed to raise a substantial question with respect to his sentencing arguments. See , e.g., Commonwealth v. Griffin , 65 A.3d 932, 936-37 (Pa. Super. 2013) (claim that the trial court failed to consider defendant's rehabilitative needs in imposing standard-range sentences did not raise a substantial question); Commonwealth v. Mobley , 581 A.2d 949, 952 (Pa. Super. 1990) (claim that sentence failed to take into consideration the defendant's rehabilitative needs and was manifestly excessive did not raise a substantial question where sentence was within statutory limits and within sentencing guidelines). See also Commonwealth v. Miklos , 159 A.3d 962, 970 (Pa. Super. 2017), appeal denied, 170 A.3d 1042 (Pa. 2017) (holding that an argument that the sentencing court failed to adequately consider mitigating factors in favor of a lesser sentence does not present a substantial question appropriate for our review); Commonwealth v. Williams , 562 A.2d 1385, 1388 (Pa. Super. 1989) (en banc) (concluding that an allegation that the sentencing court did not adequately consider various factors is, in effect, a request that this court substitute its judgment for that of the lower court in fashioning a defendant's sentence).
Moreover, even had Appellant presented a substantial question, he would not be entitled to relief. The trial court acknowledged and considered, inter alia, the facts of this case, the pre-sentence investigation report, the sentencing guidelines, the witnesses at sentencing, the letters about Appellant's good character, and the expert testimony and report about Appellant's autism spectrum disorder diagnosis. See Trial Court Opinion, filed 5/16/17, at 8; N.T. Sentencing, 12/15/16, at 69-71. After thoroughly reviewing the certified record, including the sentencing transcript, the briefs of the parties, the applicable law, and the comprehensive and well-reasoned Opinion of the trial court, we conclude that there is no merit to Appellant's sentencing claims. --------
In light of the foregoing, we affirm Appellant's Judgment of Sentence.
The parties are instructed to attach a copy of the trial court's November 23, 2015 Opinion to all future filings.
Judgment of Sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/23/2019
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