Commonwealth v. Foreus

1

COMMONWEALTH OF PENNSYLVANIA v. JOHN VESLY FOREUS Appellant

No. 161 MDA 2024

No. J-S35042-24

Superior Court of Pennsylvania

October 10, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered September 13, 2023 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0000600-2020

BEFORE: PANELLA, P.J.E., MURRAY, J., and KING, J.

MEMORANDUM

KING J.

Appellant John Vesly Foreus, appeals from the judgment of sentence entered in the Franklin County Court of Common Pleas following his jury trial convictions for conspiracy to commit burglary, terroristic threats, and simple assault.^[1] We affirm.

The relevant facts and procedural history of this case are as follows. Chambersburg Police identified Appellant as one of four individuals present at the scene of an attempted burglary in the area of Lincoln Way West on May 7, 2020. The four individuals attempted forcible entry into the home of Frislet Joseph, threatened him in an attempt to force him from the home, and fired gunshots at the home.

In the early morning hours of May 8, 2020, police transported Appellant to the Chambersburg Police Department, where he spoke to Corporal James Iverson. Corporal Iverson had previously interacted with Appellant in the community, as well as received Appellant's assistance and information in multiple past criminal incidents. These incidents involved individuals whom Appellant, a Haitian immigrant who has lived in this country for at least sixteen years, knew from the local community. During those interactions, Corporal Iverson did not require an interpreter to converse with Appellant, who spoke conversational English, although Creole is his first language.

Appellant had an unrecorded conversation with Corporal Iverson at the police station which continued as they walked towards the interview room. Initially, Corporal Iverson did not tell Appellant the purpose of the interview, but asked if he was aware of the attempted burglary. Corporal Iverson asked Appellant whether he had any issues speaking to him about what had occurred on Lincoln Way West, or what had occurred earlier, and Appellant stated that he did not. Corporal Iverson began to record the subsequent interview, during which Appellant was advised of his Miranda^[2] rights, signed a waiver, declined the services of an interpreter, and answered questions regarding the incident. During this interview, Appellant admitted his participation in the crimes and stated that he and his cousin carried machetes when they went to the victim's house. Following the interview, police arrested Appellant, and on June 10, 2020, the Commonwealth charged Appellant with the above-mentioned crimes.

On July 29, 2022, Appellant filed a motion to suppress all statements made to police during his detention, arguing that his waiver of his Miranda rights was invalid because he was not informed of the crime being investigated prior to executing a written waiver, and that his waiver was not knowing and intelligent because his primary language is Haitian Creole. The Commonwealth filed a response in opposition to the motion. The court held a suppression hearing on October 6, 2022. Following the hearing, the court entered an order granting in part and denying in part Appellant's motion. Specifically, the trial court suppressed statements made in the hallway and prior to the timestamp 4:16:08 a.m. on the recording of the interview, when the Corporal had expressly informed Appellant that police were conducting the interview in reference to a burglary in which shots were fired. The court denied the remainder of the suppression motion.

The matter proceeded to trial, and on July 20, 2023, a jury convicted Appellant of the aforementioned charges. On September 13, 2023, the trial court sentenced Appellant to an aggregate term of 27 to 60 months' incarceration. Both Appellant and the Commonwealth timely filed post-sentence motions. The court held a hearing on the post-sentence motions on October 27, 2023. On December 29, 2023, the trial court denied the post-sentence motions.

On January 26, 2024, Appellant timely filed a notice of appeal. That same day, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On February 16, 2024, Appellant complied with the order.

On appeal, Appellant raises the following issues for our review:

1. Did the trial court err in denying Appellant's Motion to Suppress his statement to police due to an unknowing and unintelligent waiver of his Miranda rights due to Appellant's language barrier as well as the law enforcement officer failing to advise Appellant of the crime being investigated?

2. Did the trial court abuse its discretion when it found that a deadly weapon enhancement was applicable and further when it sentenced Appellant to an aggregate sentence of 27 to 60 months in a State Correctional Institution?

3. Was it error for the trial court to allow the Commonwealth to admit hearsay evidence through the testimony of several different law enforcement officers, under the guise of a course of conduct exception, in violation of Appellant's rights under the Confrontation Clause of the U.S. Constitution and the Pennsylvania Constitution?

4. Did the trial court err when it denied Appellant's Motion for Judgment of Acquittal due to a deficiency in the Bill of Information charging Appellant with Conspiracy to Commit Burglary?

5. Did the trial court err when it considered the application of the corpus delicti rule both when it admitted Appellant's statement into evidence and further when it denied Appellant's Motion for Directed Verdict and allowed the jury to consider Appellant's statement when determining a verdict?

(Appellant's Brief at 11-12).

In Appellant's first issue, he argues that the trial court erred in denying his motion to suppress. Appellant contends that his waiver of Miranda was invalid for two reasons. First, Appellant argues that at the time Corporal Iverson informed Appellant of his Miranda rights, he failed to inform Appellant of the matter that was being investigated, resulting in an invalid waiver of rights. Second, Appellant contends that Corporal Iverson was aware that Appellant's primary language is Haitian Creole, not English, and that to obtain a valid waiver of Appellant's rights, he should have been provided with either an interpreter or with the waiver form in his primary language. Appellant concludes that his Miranda waiver was not knowingly, intelligently, or voluntarily made, and that the court should have granted his suppression motion in its entirety. We disagree.

Our standard of review of a trial court's ruling on a suppression motion is "whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct." Commonwealth v. Rosario, 248 A.3d 599, 607 (Pa.Super. 2021). We are bound by the facts found by the trial court so long as they are supported by the record, but we review its legal conclusions de novo. Id. at 607-08. The trial court has sole authority to pass on the credibility of witnesses and the weight to be given to their testimony. Id. at 608. "Our scope of review is limited to the record developed at the suppression hearing, considering the evidence presented by the Commonwealth as the prevailing party and any uncontradicted evidence presented by the defendant." Commonwealth v. Kane, 210 A.3d 324, 329 (Pa.Super. 2019).

Commonwealth v. Rivera, 316 A.3d 1026, 1031 (Pa.Super. 2024).

Generally, statements made during a custodial interrogation are presumptively involuntary, unless the police first inform the accused of his Miranda rights. Commonwealth v. DiStefano, 782 A.2d 574, 579 (Pa.Super. 2001), appeal denied, 569 Pa. 716, 806 A.2d 858 (2002).

"Custodial interrogation is 'questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'" Commonwealth v. Williams, 941 A.2d 14, 30 (Pa.Super. 2008) (en banc) (internal citations omitted) (quoting Miranda, supra at 444, 86 S.Ct. at 1612).

"[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent." Commonwealth v. Gaul 590 Pa. 175, 180, 912 A.2d 252, 255 (2006), cert. denied, 552 U.S. 939, 128 S.Ct. 43, 169 L.Ed.2d 242 (2007). "[I]n evaluating whether Miranda warnings were necessary, a court must consider the totality of the circumstances." Id. Where a defendant challenges the admission of a statement made during a custodial interrogation,

the Commonwealth bears the burden to prove by a preponderance of the evidence that the defendant's Miranda waiver was knowing, intelligent, and voluntary. We engage in a two-part inquiry:

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that Miranda rights have been waived.

An examination of the totality of the circumstances includes a consideration of (1) the duration and means of an interrogation; (2) the defendant's physical and psychological state; (3) the conditions attendant to the detention; (4) the attitude of the interrogator; and (5) any and all other factors that could drain a

...