Commonwealth v. Garland

• Decision Date: 01 March 2013
• Citation: 63 A.3d 339,2013 PA Super 41
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Khashion M. GARLAND, Appellant.
• Court: Pennsylvania Superior Court

63 A.3d 339

2013 PA Super 41

COMMONWEALTH of Pennsylvania, Appellee

v.Khashion M. GARLAND, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 14, 2013.

Filed March 1, 2013.

Laurence A. Narcisi, III, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: STEVENS, P.J., GANTMAN, J., and LAZARUS, J.

OPINION BY STEVENS, P.J.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County following Appellant's conviction by a jury on the charges of murder in the third degree,¹ carrying an unregistered firearm,² unlawfully carrying a firearm on public streets or public property in Philadelphia,³ and possession of an instrument of crime (PIC).⁴ Upon our review, we affirm.

The relevant facts and procedural history are as follows: At approximately 7:30 p.m. on October 4, 2008, Nafis Golphin, Marqule Colbert, Jamil Ransom (Mil), and several other people were gathered on the front steps of a friend's house on the 1300 block of Pratt Street in Philadelphia when a car being driven by Appellant and Ronald Bradley drove past, skidded around the corner, and then abruptly stopped. Appellant and Mr. Bradley approached the group brandishing firearms. Appellant rambled a few threatening words at Mr. Ransom, and in response, Mr. Ransom ran.

Appellant and Mr. Bradley both fired their guns, first shooting at Mr. Ransom and then spraying bullets into the group towards those who were running. Mr. Colbert was shot four times, twice in his buttocks, once in the foot, and the fourth and fatal shot entered again in his buttocks and travelled across his body, hitting his major organs before lodging in his shoulder.

Appellant and Mr. Bradley fled the scene together in the same vehicle in which they had arrived. Mr. Golphin later identified Appellant from a photographic array. At the crime scene, fourteen bullet casings were recovered: Seven of the bullet casings were from a .40 caliber semiautomatic handgun; and, seven were from a .45 caliber semiautomatic handgun. The same .40 caliber bullets that were at the crime scene were found in Mr. Colbert's body. When Mr. Bradley was arrested, police found a loaded .45 caliber semiautomatic handgun under his mattress.

Veteran Police Officer Galiczynski testified that, on March 13, 2009, he and fellow veteran Police Officer Perry were on duty and driving on the 5300 block of Oakland Street at 12:50 p.m. in full uniform and in a marked police car when they received a radio dispatch to report to an armed robbery in progress. As the officers drove by the crime scene, they saw Appellant riding a bicycle very fast in the opposite direction of the crime scene. Appellant looked startled when he saw the officers and, based on their observations, the officers turned their vehicle around and began to follow Appellant. The officers activated the police cruiser's lights and sirens; however, Appellant did not stop. Officer Galiczynski followed on foot while Officer Perry stayed in the car and attempted to cut off Appellant as he ran up a driveway. The pursuit continued through a neighborhood with Office Galiczynski continually asking Appellant to show him his hands. Appellant eventually showed his hands, taking a gun from his waistband and dropping it. Finally, the officers apprehended Appellant and recovered a stolen loaded .380 semi-automatic black and silver gun.

Upon his arrest, Appellant gave the name of “Brandon Garland.” One of the apprehending officers recognized the last name of “Garland” as belonging to a person wanted in connection with a homicide. After confirming Appellant's real identity, the officers arrested Appellant in connection with the October 4, 2008 homicide and took him to the police station for questioning.

That evening, after the police gave Appellant his Miranda⁵ warnings and informed him that they wanted to question him about the murder of Mr. Colbert, Appellant, who appeared to be coherent, cooperative, and not under the influence of drugs or alcohol, gave the police a statement admitting he was involved in the shooting. While Appellant admitted he shot into the group, he indicated he intentionally missed hitting anyone and indicated Mr. Bradley was the person who “had a problem” with Mr. Ransom.

Appellant subsequently filed a pre-trial motion seeking to suppress the statement, which he gave to the police, as well as the firearm, which was recovered by the police when he was arrested. On September 14, 2010, Appellant's pre-trial suppression hearing was held, and the trial court denied Appellant's suppression motion.

Appellant proceeded to a jury trial, at the conclusion of which he was convicted on the charges as indicated supra in connection with the October 4, 2008 shooting. On December 17, 2010, Appellant was sentenced to an aggregate of twenty-two years and one-half to forty-five years' incarceration, and on December 27, 2010, Appellant filed a timely post-sentence motion. The trial court denied the post-sentence motion on December 29, 2010, and this timely, counseled appeal followed.

On June 14, 2011, the trial court ordered Appellant to file a Pa.R.A.P.1925(b) statement, and Appellant filed his Pa.R.A.P.1925(b) statement on July 25, 2011. In Appellant's statement, he raised two issues: (1) the trial court committed error when it failed to suppress Appellant's statement and (2) the evidence was legally insufficient to support his convictions. On November 16, 2011, the trial court issued a Pa.R.A.P.1925(a) opinion.

Appellant's first argument is that the trial court erred in denying his motion to suppress the firearm, which he discarded as he was fleeing from police on the night he was arrested. However, we find this claim to be waived since Appellant failed to present the specific issue in his court-ordered Pa.R.A.P. 1925(b) statement.⁶Commonwealth v. Hill, 609 Pa. 410, 16 A.3d 484 (2011) (holding claims not raised in a court-ordered Pa.R.A.P. 1925(b) statement will be deemed waived).

Furthermore, we note Appellant failed to include this specific claim in his “Statement of Questions Presented.” See Appellant's Brief at 9. Thus, we deem this claim to be waived on this basis, as well. SeePa.R.A.P. 2116(a) (indicating no questions will be considered unless they are stated in the statement of questions involved or are fairly suggested thereby).

Appellant's next argument is the trial court erred in denying his motion to suppress his statement, which he made to the police following his arrest. Appellant specifically argues that his statement was involuntary because there was a delay of over eight hours between his arrest and when he gave the statement and that he was placed in a small room for much of the time.

We first note that our standard of review for “addressing a challenge to a trial court's denial of a suppression motion is whether the factual findings are supported by the record and whether the legal conclusions from those facts are correct.” Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125, 1148 (2009) (internal citations omitted).

When reviewing the ruling of a suppression court, we must consider only the evidence of the prosecution and so much of the evidence of the defense as remains uncontradicted when read in the context of the record as whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions draw therefrom are in error.

Id.

With regard to the voluntariness of a statement, our Supreme Court has explained:

[V]oluntary 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. In reviewing the totality of the circumstances, it must be considered whether, under the circumstances, the confession was freely and voluntarily made. Various other factors to consider include the interrogation's duration and means, the defendant's physical and mental state, the detention conditions, police attitude during the interrogation, and any other factors indicating whether coercion was used.

Commonwealth v. Housman, 604 Pa. 596, 986 A.2d 822, 840 (2009) (internal citations omitted).

Here, Appellant's contention of involuntariness relies primarily on the length of time he was alone between his arrest and when he gave his statement. Appellant asserts that because of the lack of human contact he was coerced into confessing. However, as indicated, the appellate courts have expressly rejected the position that the length of time is determinative. Commonwealth v. Perez, 577 Pa. 360, 845 A.2d 779 (2004).

Additionally, we note that, in ruling that Appellant's statement was voluntarily made, the trial court made the following findings of fact in open court:

On 3/13/09, [Appellant] was brought into Homicide by police. This detective along with his partner ... took a statement from [Appellant] at 9:00 p.m. that evening. The statement took approximately an hour-and-a-half to an hour and 45 minutes. [Appellant] appeared consistent and oriented is what the detective said as to time, date, and place.

[Appellant] did not appear to be under [the influence of] drugs or alcohol. [Appellant] could read and write. [Appellant's] statement was taken verbatim and handwritten. [Appellant] was given his warnings, he signed across the front page of the warnings ... [Appellant] was not handcuffed, not shackled. [Appellant], after he gave the statement, was giv[en] the opportunity to review it, signed each page of the statement, made no corrections.

The detective testified [Appellant] was not threatened, not promised anything. [Appellant] was 19 years old at the time his statement was taken. And he does not personally recollect any bathroom breaks, you know, food, breaks for [Ap...