Com. v. Booze, 2854 EDA 2006.

• Decision Date: 25 July 2008
• Docket Number: No. 2854 EDA 2006.,2854 EDA 2006.
• Citation: 2008 PA Super 166,953 A.2d 1263
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Joshua BOOZE, Appellant.
• Court: Pennsylvania Superior Court

953 A.2d 1263

2008 PA Super 166

COMMONWEALTH of Pennsylvania, Appellee v. Joshua BOOZE, Appellant.

No. 2854 EDA 2006.

Superior Court of Pennsylvania.

Submitted March 17, 2008.

Filed July 25, 2008.

Michael E. Brunnabend, Public Defender, Allentown, for appellant.

James B. Martin, Assistant District Attorney, Allentown, for Commonwealth, appellee.

BEFORE: BOWES, ALLEN and KELLY, JJ.

OPINION BY BOWES, J.:

¶ 1 Joshua Michael Booze appeals from the September 11, 2006 judgment of sentence of twenty-three to forty-six years incarceration imposed after a jury found him guilty of two counts each of robbery and false imprisonment, and one count each of burglary, theft, and criminal conspiracy to commit robbery and burglary. After careful review, we affirm.

¶ 2 The record establishes the following. Sometime between 1:00 and 2:00 a.m. on November 9, 2002, Appellant and three cohorts broke into an apartment located at 925 Delaware Avenue in Fountain Hill, Pennsylvania. All four men were armed. Appellant, unlike the others, was not wearing a mask over his face. For approximately twenty minutes, the men held Lamarr Watson, Vanessa Mendez, and Vanessa's two-year-old daughter, Desiree, at gunpoint while they ransacked the apartment. They bound Watson's hands and feet with rope, put duct tape across his mouth, and kept him separated from Ms. Mendez and Desiree, who were restrained in another room. Appellant subsequently directed Ms. Mendez into the bathroom with Desiree where they remained until the perpetrators fled the apartment. N.T. Trial, 07/12/06, at 50-63.

¶ 3 The men stole various items including jewelry, clothing, cell phones, Play Stations, radios, and two handguns lawfully possessed by Mr. Watson. Id. at 61-62, 90. At one point, Appellant brazenly demanded that Ms. Mendez look at his face, concurrently admonishing and threatening to kill the victims if they reported the incident to the police. Id. at 124-25. After the robbery, Mr. Watson, Ms. Mendez, and Desiree fled to their families' homes. Mr. Watson reported the home invasion to police at approximately 9:30 a.m. that day. Id. at 66-67.

¶ 4 On November 27, 2002, Bridgewater Township Police Officer Paul Payne responded to a report of an automobile fire in Bridgewater, New Jersey. Officer Payne arrived on the scene and found a brown Nissan Maxima burning while Appellant stood nearby. Appellant claimed to have been a passenger in the vehicle and stated the driver had run away, but Appellant was unable to provide the driver's identity. N.T. Rule 600 and Suppression ("Pretrial Hearing"), 8/25/05, at 11. The police impounded the vehicle and retained possession for several months while they continued their investigation. Upon acquiring a search warrant in March 2003, police found parts of a handgun in the car that were traced back to the Fountain Hill robbery. Id. at 17, 29-33.

¶ 5 Detective Christopher Burke of the Bridgewater Township Police Department then contacted Fountain Hill Police Investigator Wallace Fry. Detective Burke sent Officer Fry Appellant's picture, which the officer utilized in creating a photographic array. N.T. Trial, 7/12/06, at 155-56. On April 4, 2003, Fountain Hill Police showed Ms. Mendez the array, and she identified Appellant as the unmasked man in the November 2002 robbery. Id. at 136-37.

¶ 6 Bridgewater Police apprehended Appellant and his wife, Shante Knight, on April 5, 2003, on unrelated charges. At the police station, Appellant was given his Miranda rights. Appellant then signed a form indicating he understood each of his rights and put his initials on the form next to each individual statement. Appellant later made incriminating statements concerning his participation in the Fountain Hill robbery. Id. at 161-77, 181-86.

¶ 7 On April 8, 2003, the Fountain Hill Police filed a criminal complaint against Appellant for the Pennsylvania robbery. Lehigh County Detective Dennis Steckel contacted New Jersey Corrections Officer Petruche,¹ notified him that he had an open warrant for Appellant, and faxed a copy of the complaint and warrant "to the CO to file a detainer against [Appellant] in light of our open charge." N.T. Pretrial Hearing, 8/24/05, at 9. Detective Steckel confirmed that New Jersey filed the detainer.² Id. at 10. On June 2, 2003, Detective Steckel learned that Appellant had been sentenced on the Somerset County, New Jersey charges on May 19, 2003, to eighteen months imprisonment. Id. at 11. On July 21, 2003, New Jersey officials told Detective Steckel they would talk to Appellant to ascertain whether he was willing to voluntarily proceed under the Interstate Agreement on Detainers ("IAD").³ Id. at 12. Detective Steckel testified that he still could not proceed under the IAD without Appellant's voluntary agreement because Appellant had other open charges pending against him in New Jersey; Appellant thus was unavailable for involuntary transfer pursuant to the IAD.⁴ Id. at 14.

¶ 8 Detective Steckel explained the various forms and procedures under the IAD as follows:

There are a set of nine forms with the Interstate Agreement on Detainers. Forms one, two, three and four are filled out by the inmate at the facility that he is in, in whatever state we are trying to extradite him back from. And if he fills out forms one, two, three and four, that gives us information that he is either willing or not willing to do Interstate Agreement on Detainers.

Form five has to be done by the demanding state if in fact the person is not willing to sign and voluntarily do Interstate Agreement on Detainers.

Form[s] six and seven are used to actually set up a date and a time for pickup from the state that he is being incarcerated in. Form eight is another form that we would use to borrow or assume temporary custody from another agency in Pennsylvania if two of us were looking for the same individual at the same time.

And form nine is a form which we send back with the inmate to whatever state he is in, whatever prison in that state he is in, to let them know that he is finished with the charges in Pennsylvania and it also would accompany the — his sentencing sheet.

N.T. Pretrial Hearing, 8/24/05, at 13.

¶ 9 At that time, Appellant fluctuated between indicating his willingness to consent to the IAD procedures and denying his agreement. New Jersey officials communicated Appellant's back-and-forth positions to Detective Steckel. Id. at 15-18. On March 30, 2004, the detective received the IAD form signed by Appellant confirming his refusal to voluntarily comply with the IAD, but once again, an official in inmate records at New Jersey Northern State Prisons advised Detective Steckel that they were continuing to seek Appellant's cooperation. Id. at 18-19. When New Jersey authorities advised on June 16, 2004, that Appellant continued to refuse to cooperate, Detective Steckel began the involuntary transfer process. Id. at 19-20. That process required a Cuyler hearing⁵ before a New Jersey judge, which was not held until March 2005.⁶ Concerning this delay, Detective Steckel testified, "We're at the mercy of the prisons and also the court system in New Jersey as to when that is scheduled." Id. at 21. Appellant was brought to Pennsylvania on April 20, 2005.

¶ 10 On June 7, 2005, after the preliminary hearing and arraignment, Appellant filed a motion to dismiss pursuant to Pa. R.Crim.P. 600 followed by an omnibus pretrial motion on July 26, 2005, which included a motion to suppress Appellant's statement to police and evidence obtained during the vehicle search. A hearing was held on August 24 and 25, 2005, and in a memorandum issued December 28, 2005, the court suppressed the gun parts discovered during the car search. The court denied suppression of Ms. Mendez's identification, Appellant's statement to Bridgewater Township Police, and the motion to dismiss pursuant to Rule 600. Trial, originally scheduled for March 6, 2006, was continued due to the unavailability of both the prosecutor and the trial court. Pa. R.A.P.1925(a) Trial Court Opinion, 5/10/07, at 18.

¶ 11 On May 9, 2006, Appellant filed a motion to dismiss pursuant to 42 Pa.C.S. § 9101 for violation of the IAD, alleging the Commonwealth did not bring him to trial within 120 days of his return to Pennsylvania. This motion was denied after a hearing on May 17, 2006. Appellant subsequently filed motions in limine on July 10, 2006, to exclude Mr. Watson's cell phone that was found in the vehicle search, Ms. Mendez's identification of Appellant through the photo array, and Appellant's statement to police; he further sought to redact the recording and transcript of this statement. The Honorable William Ford suppressed the cell phone and allowed for redaction of the recording and transcript, but denied the motions in all other respects.

¶ 12 Appellant was tried on July 12 and 13, 2006, and was found guilty of two counts each of robbery and false imprisonment, and one count each of burglary, theft, and criminal conspiracy to commit robbery and burglary. He was sentenced on September 11, 2006, as described above. This appeal followed denial of his post-sentence motion on September 27, 2006.

¶ 13 Appellant now raises the following issues for our review:

A. Did the lower court err by failing to suppress from use at time of trial the Defendant's confession and an identification of the Defendant through the use of a photo array which were both the direct result of the improper seizure of other evidence by the police?

B. Were the Defendant's rights to a speedy trial pursuant to [Pa.R.A.P.] 600 violated due to the delay in his being returned from the State of New Jersey and then not being promptly given his trial?

C. Were the Defendant's rights to a speedy disposition of his case violated through the Commonwealth's failure to bring the Defendant to trial within 120 days after he was returned from New Jersey as required pursuant to the Interstate Agreement on Detainers Act?

D. Did the...