Commonwealth v. Miklos

159 A.3d 962

COMMONWEALTH of Pennsylvania, Appellee

v.David MIKLOS, Appellant

No. 978 WDA 2016

Superior Court of Pennsylvania.

Submitted January 3, 2017

FILED APRIL 17, 2017

Brian P. McDermott, Bellevue, for appellant.

Rebecca G. McBride, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: OLSON, SOLANO, and STRASSBURGER,^* JJ.

OPINION BY STRASSBURGER, J.:

David Miklos (Appellant) appeals nunc pro tunc from the judgment of sentence entered April 20, 2015, after he was found guilty of persons not to possess a firearm. We affirm.

The trial court summarized the evidence offered at trial as follows.

The Commonwealth called Officer Anthony Beatty to testify. Officer Beatty has been employed by the City of Pittsburgh Police, Zone 1, for over seven years. Zone 1 encompasses all of the North Side, from the North Shore to Brighton Heights. He was working as an officer on the night of February 10, 201[4] when he received a call to respond to the area of Woodland Avenue at approximately 8:00 pm. Officer Beatty responded to the area with his partner Officer Anthony Rosato. The nature of the call was for shots fired and a man shot. It took them under five minutes to arrive at the scene where they observed a white male [later identified as Richard Didonato (Victim) ] laying [sic ] on the sidewalk with a gunshot wound to his chest area. [ ] Detective Fallert was also present and he started rendering first aid.

The two officers, Beatty and Fallert, conversed with [V]ictim and Detective Fallert asked for a dying declaration to which [V]ictim responded that the male that shot him was named Dave. Officer Beatty was present for this declaration and clearly heard all of it. Officer Beatty stayed with [V]ictim until the medics arrived. As they were loading him onto the stretcher, Officer Beatty observed a clear bag with pills fall from [V]ictim's pocket and thereafter recovered several more bags in the area containing pills. Officer Beatty also recovered $757[.00] from [Victim's] pocket.

The Commonwealth additionally called Detective Scott Evans to testify. Detective Evans is a detective with the Allegheny County District Attorney's office. He has been employed there for approximately four months and prior to that he was a City of Pittsburgh detective and retired after twenty years of service. He was assigned lead investigator of the shooting death involving the [V]ictim. His supervisor called and asked him to process the crime scene. He directly spoke with an individual by the name of Helen Ohrman, nickname Angel. Through Ms. Ohrman, Detective Evans learned that [Appellant], David Miklos, was associated with the [V]ictim. [Appellant] was eventually apprehended in March of 2014; he was arrested by members of the Greater Pittsburgh Fugitive Task Force; he was transported to police headquarters in custody; and he was interviewed by Detective Evans that same day.

During the interview, [Appellant] referred to [V]ictim as Rich and said he ha [d] known [Victim] for about a year. At times, [Appellant] would purchase pills from [Victim] and vice versa. At least initially, the purchase of pills was arranged through [Ms. Ohrman]. Recent to this incident, [Appellant] ran into [Victim] on the North Side and personally got [Victim's] cell phone number and they alone planned the transaction to occur on February 10, 2014. According to what [Appellant] told Detective Evans, on February 10, [V]ictim picked [Appellant] up on Woodland Avenue and he told [V]ictim they had to go to somewhere else to get the pills. [Appellant] then stated [V]ictim became suspicious and pulled out a gun and ordered [Appellant] to get out of the car and walk around to the driver's side. [V]ictim then began to go through [Appellant's] pockets, at which time [Appellant] grabbed for the gun and the two of them were fighting for the gun, when it got twisted behind [V]ictim's back and discharged.

[Appellant] told Detective Evans that he pulled [V]ictim out from underneath the wheels of the car, picked up shell casings, took about [$1,100.00] from [V]ictim and got into [V]ictim's car and drove away. [Appellant] told the detective that he threw the firearm and shell casings over the McKees Rocks Bridge.

Detective Fallert's testimony is entirely consistent with the testimony of Officer Beatty and will not be duplicated herein.

[Appellant] took the stand to testify on his own behalf. [Appellant] admitted knowing the [V]ictim, through drug interactions. The two men were introduced to each other by [Ms. Ohrman]. [Appellant] has known [Ms. Ohrman] for approximately four years and [Victim] for approximately four months. [Appellant] and [V]ictim would buy and sell each other oxycodone. [Appellant] got his pills from [a] valid prescription, as well as from others he knew.

When [Appellant] had transactions with [V]ictim, he would sell the [V]ictim forty to fifty pills, at $20.00 per pill, or $800.00-$1,000.00. [Appellant] would only buy pills from [V]ictim if he ran out or someone else wanted them. According to [Appellant], it was mostly [V]ictim [who] bought pills from him and [Appellant] only bought a few from [V]ictim. [Appellant] admitted he had gotten [V]ictim's cell phone number approximately one month before this incident. And although the normal go between was [Ms. Ohrman], the last few transactions had no middle man.

The night before this incident, [Appellant] told [V]ictim that there would [be] pills available from somebody else the next day and [V]ictim said he would want some. [Appellant] told him to call tomorrow. [Appellant] told [V]ictim to pick him up on Woodland Avenue at 8:00[p.m.]. It was cold and snowy that night as [V]ictim pulled up with the driver's side closest to the curb. [Appellant] got into the front passenger seat and told [V]ictim they had to go down the street to get the pills. [V]ictim became mad because [Appellant] did not have them on him. [Appellant] did not think it was a big deal, but [V]ictim started saying "[t]his is bullshit" and produced a handgun with his left hand. This was the first time [Appellant] had to go somewhere else to get pills for [V]ictim.

After [V]ictim pulled out the gun, he ordered [Appellant] to get out of the car and directed him to come to the other side. When [Appellant] arrived on the other side, [V]ictim was still pointing the gun at him and [Appellant] was very surprised as [V]ictim never had a gun before. [V]ictim was standing by the driver's door when [Appellant] approached him. [V]ictim then reached his left hand into [Appellant's] pocket, as the gun was now in his right hand, and found nothing there. [V]ictim then puts the gun in his other hand and reaches into [Appellant's] other pocket. He found only money, no pills were found.

According to [Appellant], the gun was now back in [V]ictim's left hand. [Appellant] grabbed his hand, turned the gun and twisted his arm directly behind him. [Appellant] believed one of [V]ictim's fingers was still on the trigger guard. The gun eventually discharged when it was pointed at [V]ictim's back. [V]ictim fell, the gun fell and his feet and legs slid under the vehicle. [Appellant] stepped towards the open driver's door, he looked down and saw the gun right next to [V]ictim and he grabbed the gun. [Appellant] grabbed [V]ictim's jacket and pulled him up to the curb, but [V]ictim had ahold of [Appellant]'s jacket and when [Appellant] leaned back, it lifted [V]ictim to a sitting position. [V]ictim started grabbing at [Appellant] when [Appellant] fired a second shot into the front of [V]ictim's body. [Appellant] next grabbed money and shell casings he found on the ground and threw the gun on the floor of the driver's side of the vehicle. [Appellant] took [V]ictim's car and drove to McClure Avenue and pulled into a parking lot next to a bar. There is a hillside next to the parking lot and [Appellant] tossed the gun, shell casings and car keys over into the woods, but kept the money.

Trial Court Opinion, 9/26/2016, at 3-9 (citations omitted).

Appellant was found guilty of the aforementioned crime following a non-jury trial on April 20, 2015.¹ That same day, Appellant was sentenced to five to ten years' incarceration. Appellant timely filed a motion for reconsideration, which the trial court denied. No direct appeal was filed and on October 7, 2015, Appellant filed pro se a Post-Conviction Relief Act (PCRA) petition. Counsel was appointed, and on February 3, 2016, Appellant filed an amended petition seeking to reinstate his post-sentencing and appellate rights nunc pro tunc . The trial court granted Appellant's petition, and on March 10, 2016, Appellant's post-sentence motions were filed. By order dated June 27, 2016, those motions were denied. This timely filed appeal followed.²

On appeal, Appellant raises claims challenging the weight and sufficiency of the evidence to sustain his conviction, as well as the discretionary aspects of his sentence. Appellant's Brief at 6.

In reviewing Appellant's sufficiency claim, we are mindful of the following.

[O]ur standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.

Commonwealth v. Lynch , 72 A.3d 706, 707-08 (Pa. Super. 2013) (internal citations and quotations omitted). The Commonwealth may sustain its burden by means of wholly circumstantial evidence, and we must evaluate the entire trial record...