Commonwealth v. Mitchell

1

COMMONWEALTH OF PENNSYLVANIA v. BOBBIE MITCHELL, JR. Appellant

No. 1242 EDA 2021

No. J-S22041-22

Superior Court of Pennsylvania

December 22, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered September 26, 2019 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0004404-2018

Benjamln D. Kohler, Esq.

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM

SULLIVAN, J.

Bobbie Mitchell, Jr. ("Mitchell") appeals nunc pro tunc from the judgments of sentence imposed following his convictions of first-degree murder, persons not to possess firearms, and possessing an instrument of crime (firearm).^[1] After careful review, we affirm Mitchell's convictions, vacate the judgment of sentence for possessing an instrument of crime, and remand for the limited purpose of allowing the trial court to correct its self-recognized error at sentencing.

The trial court summarized the factual history of the case as follows:

On the [morning] of April 1, 2018, the Pottstown police received notification of a possible shooting victim and information that someone was seen leaving the scene on foot. In the early morning hours of April 1, 2018 . . ., Siani Overby ["the victim"] was found lying in a pool of blood . . ., clearly deceased.

Witnesses saw an African American man fleeing the scene after screaming alerted the witnesses that something was wrong.

Police at the scene of the crime recovered a cell phone that was lying between the victim's legs.^[2] This cell phone was a black Alcatel phone ["the Alcatel phone"] with the phone number ending in 8227. It was assumed by police that the phone located between the victim's legs belonged to the victim. A download of the phone revealed this assumption to be incorrect, and police were able to determine that the phone belonged to [Mitchell]. [Mitchell] and the victim had previously been in an intimate relationship and it was once believed that they shared a child. Based upon the testimony of [Mitchell], a DNA test was performed a year and a half before the victim's death, and it was determined that [Mitchell] was not the child's father.

In the hours after the murder, [Mitchell] called his girlfriend Deniqua Butler to let her know that he would be coming to her home in Norristown and that they would be traveling to Connecticut that morning to visit [Mitchell]'s father. [Mitchell] arrived at the home of Ms. Butler in the very early morning hours wearing a white t-shirt under a dark jacket with dark jeans. [Mitchell], Ms. Butler and their children left for Connecticut around 4 a.m. in Ms. Butler's Chevy Malibu.

The police initiated a search for [Mitchell] after it was discovered that he was no longer in Pottstown and that his kids were unexpectedly not in school. Out of concern for the safety of [Mitchell]'s children and Ms. Butler, the police performed an emergency ping on Ms. Butler's phone. As a result of the ping, the police discovered Ms. Butler and [Mitchell] in Waterbury, Connecticut.

An arrest warrant was issued in Montgomery County, and pursuant to that warrant, police in Waterbury, Connecticut arrested [Mitchell]. Search warrants for both the apartment where [Mitchell] was staying and . . . the Chevy Malibu ["the Malibu"] were obtained and executed. Detective Todd Richard of the Montgomery County Detective Bureau and Detective Heather Long of the Pottstown Police Department performed an interview of [Mitchell] upon his arrest.

Trial Court Opinion, 8/3/21, at 2-3 (record citations omitted).

Police charged Mitchell with murder, persons not to possess firearms, and possessing an instrument of crime. Thereafter, Mitchell sought to suppress several items of evidence pre-trial, including, in relevant part, the Alcatel phone found between the victim's legs at the murder scene, and the fruits of that search, an audio recording of the homicide, and the evidence seized from the Chevy Malibu Mitchell drove to Waterbury, Connecticut, hours after the murder. See Mitchell's Motion to Suppress and Motion to Exclude Audio Evidence, 1/9/19; Mitchell's Motion in Limine 1/9/19, Mitchell's Motion to Suppress, 3/29/19. The Commonwealth sought the admission of the cell phone, the audio recording of the homicide, evidence recovered from the Malibu, statements the victim made to her brother concerning Mitchell's gun and drug involvement, and Mitchell's history of violence against the victim. See Commonwealth's motions in limine, 1/9/19.

On August 29, 2019, the court conducted a hearing on all of Mitchell's and the Commonwealth's motions. After the hearing, the court denied Mitchell's motion to suppress the results of the search of the Alcatel phone, the "fruits" of that search, and the audio recording of the homicide. In so doing, the court credited the testimony of Montgomery County Detective Todd Richard ("Detective Richard") that the detectives at the murder scene believed the Alcatel phone found between the legs of the victim lying in an alley was hers because it was found in close proximity to her body in a public area. The trial court also credited Detective Richard's testimony that when the police discovered the phone did not belong to the victim, the search was suspended and the police applied for and obtained a search warrant. See Order 9/6/19, at 1-2. The court found the Alcatel phone was abandoned because it was left lying on the victim's body of the ground at the scene of the killing, and Mitchell had no reasonable expectation of privacy in the phone. See id. at 2, 4.^[3]

The Commonwealth argued the audio testimony, which contained sounds of pleading, gunshots, and someone screaming after the gunshots, was evidence of the shooter's specific intent to kill. See N.T., 8/29/19, at 94-97. The court denied Mitchell's motion to suppress the audio testimony. See id. at 97; Order sur [Mitchell's] motion to exclude audio evidence, 9/6/19.

Mitchell asserted that the $117,000 found in the search of the Malibu was the fruit of the poisonous tree of the illegal search of the victim's cell phone and probable cause did not exist for issuance of the search warrant. See id. at 26, 91. The court found that the search warrant for the Malibu was issued upon probable cause because a warrant had been issued for Mitchell's arrest, Mitchell was seen getting into the Malibu, and the Malibu was registered to a known associate of his. See Order sur [Mitchell's] motion to suppress the evidence obtained through the April 2, 2019 warrant for the 2015 Chevy Malibu, 9/6/19, at 1-2.

The court found that the victim's statement to her brother, Carlton Overby ("Overby"), regarding Mitchell's involvement with guns and drugs was admissible evidence of Mitchell's state of mind pursuant to Pa.R.E. 803(3); it also found that the Commonwealth's proffer of the victim's mother's testimony established the existence of admissible evidence of Mitchell's prior threats and violence against the victim. See N.T., 9/23/19, at 100-03; Order sur the Commonwealth's motion in limine for the admission of victim's statements regarding [Mitchell] pursuant to state of mind hearsay exception, 9/6/19; Order sur the Commonwealth's motion in limine for the admission of evidence of [Mitchell's] prior bad acts under Pa.R.E. 404(b), 9/6/19.

In addition to the evidence discussed above, at trial the evidence also included the victim's brother Overby's testimony that Mitchell threatened to kill the victim if she revealed his drug-related activities, see N.T. 9/23/19, 48; evidence a witness heard a woman scream, "Please don't do it," after the first shot, see id. at 63-64; evidence a man dressed in dark clothes fled the scene of the killing, see id. at 41-43;^[4] Linwood Brown's testimony that Mitchell, his brother, called him crying on the morning of the killing and directed him to tell their friend, John Sutton ("Sutton"), not to call him on the Alcatel phone, see id. at 117, 127-31, 165, 167, 192; cell phone tower evidence the Alcatel phone found at the murder scene had been at Mitchell's girlfriend's house with Mitchell's other cell phones less than one hour before the killing, and then went to the area of the murder, see N.T., 9/25/19, at 62-64, 93-95; evidence that moments after the murder, Mitchell called his girlfriend and his son from the scene of the murder and told them to pack up for a trip, and they left for Connecticut at 4:00 a.m., see N.T. 9/24/19, 112, 121, 151-53, 157-58, 166-67, 181, 207; N.T., 9/25/19, at 81; evidence Mitchell activated a new cell phone shortly after the murder and had nearly a one-hour phone call with his brother, see id. at 192-96 and evidence all three cell phones Mitchell used to communicate with his girlfriend and family immediately after the murder were found with him in Connecticut, see id. at 214. Additionally, a series of angry text exchanges between the victim and Mitchell was admitted, from a phone later found in Mitchell's possession, close in time to the actual shooting and the 911 call, see id. at 8-16, 69-78.

After a four-day trial, the jury convicted Mitchell of all above-listed offenses. The trial court imposed a term of life imprisonment for murder, and erroneously imposed two sentences for one count of possessing an instrument of crime and failed to state a sentence for the charge of persons not to possess firearms, See N.T., 9/26/19, at 100-01.^[5]

Mitchell did not file post-sentence motions. He filed a timely notice of appeal but counsel failed to file an appellate brief resulting in the dismissal of the appeal in March 2021. The trial court later granted Mitchell's right to a direct appeal nunc pro tunc in the interests of justice. See Order 8/3/21, at 2. Both Mitchell and the trial court...