J-A13045-23
2023 PA Super 155
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANA GANJEH :
:
Appellant : No. 586 MDA 2022
Appeal from the Judgment of Sentence Entered March 30, 2022
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0003535-2018
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: AUGUST 15, 2023
Dana Ganjeh appeals from the March 30, 2022 judgment of sentence of
life imprisonment without the possibility of parole after a jury found him guilty
of first-degree murder in connection with the bludgeoning death of his female
companion.1 After careful review, we affirm the judgment of sentence.
The suppression court summarized the relevant findings of fact and
procedural history of this case as follows:
On or about November 5, 2018, the Luzerne County
District Attorney filed a criminal information charging
[Appellant] with criminal homicide.
The aforementioned criminal information alleged that
the [Appellant] intentionally, knowingly, recklessly or
negligently caused the death of Linda Frick on or
about August 4, 2018.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 2502(a).
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[Appellant’s] counsel filed pre-trial motions on August
13, 2019, which alleged that statements made by the
[Appellant] to law enforcement were obtained in a
manner contrary to the [Appellant’s] rights and in
violation of the 14th Amendment to the United States
Constitution and Article 1, section 9 of the
Pennsylvania Constitution.
A hearing on [Appellant’s] motions was conducted
before the [trial c]ourt and the parties submitted
briefs.
On August 4, 2018, Officer Jude Allen was employed
a patrolman with the Kingston Borough Police
Department.
On that same date, Officer Allen and Officer Robert
Miller, also employed by Kingston Borough Police
Department were dispatched to investigate a report of
a deceased person and a suicidal male at 71 Price
Street, Kingston, Pennsylvania.
As the officers approached the residence, a male, later
identified as [Appellant] opened the door and without
prompting or questioning, handed officer Miller a key
and stated, “She’s around back in a vehicle.”
[Appellant] was placed in handcuffs to protect the
safety of the responding officers and the public.
Officer Allen asked [Appellant] “What happened?”
[Appellant] responded that the victim, Linda Frick,
“wasn’t feeling well, that he was going to take her to
the hospital and she just died…[.]”
[Appellant] continued, stating that he was “screwed.”
At the time [Appellant] was handcuffed, he was not
yet a suspect in this homicide and in fact officers did
not even know that a crime had been committed[.]
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[Appellant] was subsequently interviewed by
Detective James Noone, and Detective Lieutenant
John Anthony Of the Kingston Police Department.
Detective Noone and Detective Lieutenant Anthony,
hereinafter the investigators, interviewed [Appellant]
in a meeting room located inside the Kingston Police
Department which was a large room with tables and
chairs.
[Appellant] was allowed to use the bathroom, and was
provided food and drink and allowed to smoke
cigarettes.
The investigators did not threaten, intimidate or
coerce [Appellant] during the interview.
Detective Noone asked [Appellant] if he could record
the interview and [Appellant] declined. Therefore, the
investigators did not audio or video record the
interaction.
Detective Noone read the Constitutional warnings
pursuant to Miranda v. Arizona[2] to [Appellant]
from a form document, hereinafter Miranda rights
waiver.
[Appellant] then initialed and signed the Miranda
rights waiver.
When [Appellant] signed the Miranda rights waiver
he did not appear to be under the influence of drugs
or alcohol.
When [Appellant] signed the Miranda rights waiver
he did not appear to be in any distress and clearly
understood said constitutional warnings.
____________________________________________
2 Miranda v. Arizona, 384 U.S. 436 (1966).
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After executing the Miranda rights waiver,
[Appellant] agreed to and was interviewed by the
investigators.
[Appellant] answered some of the investigators[’]
questions and declined to answer others.
During the interview [Appellant] indicated that he was
with the deceased earlier and that she was feeling ill.
[Appellant] indicated that he and the decedent were
driving around in the vehicle on the night before and
at some point he discovered that she was deceased in
the vehicle.
The investigators asked [Appellant] about injuries to
his hands.
When the investigators inquired about the injuries to
the decedent, [Appellant] invoked his right to counsel.
Subsequent to [Appellant’s] request for counsel, the
investigators ceased their questioning and terminated
the interview.
Suppression court order and opinion, 4/8/20 at 2-5 (extraneous capitalization,
numeration, and citations omitted).3
On October 15, 2019, the Commonwealth filed a notice of its intention
to introduce prior bad acts evidence. This evidence concerned (1) Appellant’s
pending criminal case in Wayne County, Pennsylvania involving his alleged
simple assault and strangulation of the victim; and (2) the history of contact
between Appellant and the Kingston Police Department related to his prior
____________________________________________
3 The suppression court’s April 8, 2020 order and opinion does not contain
pagination. For the ease of our discussion, we have assigned each page a
corresponding number.
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domestic abuse of the victim in September 2017, December 2017, and
February 2018. Following a hearing on September 13, 2021, the trial court
determined that this evidence was admissible under Pennsylvania Rule of
Evidence 404(b). Notes of testimony, 9/13/21 at 34.
On August 13, 2019, Appellant filed two separate pretrial motions to
suppress the statements that he made to police at the Price Street residence
and during his subsequent interview at the Kingston Police Headquarters, on
the basis that his statements were made in violation of his Miranda rights.
The suppression court held a hearing on Appellant’s suppression motions on
October 16, 2019 and ultimately denied said motions on April 8, 2020.
Following several continuances, Appellant proceeded to a jury trial on
September 14, 2021. On September 17, 2021, the jury found Appellant guilty
of first-degree murder. On March 21, 2022, Appellant filed a post-verdict
motion for a new trial that was denied by the trial court on March 30, 2022.
As noted, the trial court sentenced Appellant that same day to life
imprisonment without the possibility of parole. This timely appeal followed on
April 12, 2022.4
Appellant raises the following issues for our review:
A. Should [Appellant’s] custodial statements have
been suppressed?
____________________________________________
4 Appellant and the trial court have complied with Pa.R.A.P. 1925.
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B. Did the [trial] court abuse its discretion by
admitting testimony about Appellant’s prior bad
acts?
C. Did the [trial] court abuse its discretion by
denying [Appellant’s] motions for substitute
counsel?
Appellant’s brief at 5.
Appellant first argues that the suppression court erred in denying his
pretrial motion to suppress the statements that he made to police at the Price
Street residence and during his subsequent interview at the Kingston Police
Headquarters. Id. at 14. The crux of Appellant’s argument is that these
statements were made in violation of his Miranda rights. Id. For the
following reasons, we disagree.
[Our] standard of review in addressing a challenge to
the denial of a suppression motion is limited to
determining whether the suppression court’s factual
findings are supported by the record and whether the
legal conclusions drawn from those facts are correct.
Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence
of the Commonwealth and so much of the evidence
for the defense as remains uncontradicted when read
in the context of the record as a whole. Where the
suppression court’s factual findings are supported by
the record, [the appellate court is] bound by [those]
findings and may reverse only if the court’s legal
conclusions are erroneous.
Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation
omitted; brackets in original), appeal denied,
135 A.3d 584 (Pa. 2016).
Additionally, “[i]t is within the suppression court’s sole province as factfinder
to pass on the credibility of witnesses and the weight to be given to their
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testimony. The suppression court is free to believe all, some or none of the
evidence presented at the suppression hearing.” Commonwealth v. Byrd,
185 A.3d 1015, 1019 (Pa.Super. 2018) (citation omitted).
It is well settled that when an individual is “both taken into custody and
subjected to interrogation,” that individual is entitled to Miranda warnings.
Commonwealth v. Yandamuri, 159 A.3d 503, 520 (Pa. 2017). Specifically,
our Supreme Court has explained:
The United States Supreme Court has held that,
before law enforcement officers question an individual
who has been in taken into custody or has been
deprived of his freedom in any significant way, the
officers must first warn the individual that he has the
right to remain silent, that anything he says can be
used against him in a court of law, that he has the
right to the presence of an attorney, and that if he
cannot afford an attorney one will be appointed.
However, these special procedural safeguards are
required only where a suspect is both taken into
custody and subjected to interrogation. In
determining whether a suspect is in custody, two
discrete inquiries are essential: (1) an examination of
the circumstances surrounding the interrogation; and
(2) a determination of whether, given those
circumstances, would a reasonable person have felt
that he or she was at liberty to terminate the
interrogation and leave. As noted, a person is in
custody for Miranda purposes only when he is
physically denied his freedom of action in any
significant way or is placed in a situation in which he
reasonably believes that his freedom of action or
movement is restricted by the interrogation. ...
Whether an encounter is deemed “custodial” must be
determined by examining the totality of the
circumstances.
Id. at 520-521 (citations omitted).
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Here, the trial court found “that all of the statements obtained by law
enforcement were obtained in a manner consistent with [Appellant’s] rights
pursuant to the United States and Pennsylvania Constitutions and were
admissible at the time of trial.” Trial court opinion, 10/17/22 at 11. Following
our careful of the evidentiary record, we agree with this assessment.
By way of background to this claim, Appellant’s initial statements were
made to responding officers upon their arrival at the Price Street residence on
the morning of August 4, 2018. The suppression court summarized this
encounter as follows:
[T]he Commonwealth introduced testimony that
Officer Jude Allen and Officer Robert Miller of the
Kingston Borough Police Department were dispatched
to 71 Price Street, Kingston on the morning of August
4, 2018, to investigate a 911 call reporting a deceased
person and a separate 911 call reporting a suicidal
male. When the officers approached the residence, a
male, later identified as [Appellant], exited and,
without prompting of questioning, handed Officer
Miller a key and stated, “She’s around back in a
vehicle.” Officer Miller went to investigate, and Officer
Allen placed [Appellant] in handcuffs, not because he
was a person of interest in any crime at that point, but
because he was distraught, and was cuffed for safety
purposes in light of the report of a suicidal male and
Officer Miller’s departure from the immediate scene.
Unaware that a crime had even been committed at
that point, and attempting to figure out what was
going on, Officer Allen asked [Appellant] “What
happened?” Officer Allen explained that in asking this
question, he was trying to gather information and
learn with whom he had to make contact and speak
to, and that he was not attempting to get [Appellant]
to admit to committing a crime. [Appellant]
responded that “she wasn’t feeling well,” and that he
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tried to take her to the hospital, and “she just died.”
Then [Appellant] said “I’m screwed.”
Trial court opinion, 10/17/22 at 8-9 (citations to notes of testimony omitted).
Upon review, we agree with the suppression court that Appellant was
not subject to custodial interrogation at the time he made these voluntary and
spontaneous statements to police, and thus, they were not obtained in
violation of Appellant’s constitutional rights. This Court has long recognized
that “not every statement made by an individual during a police encounter
amounts to an interrogation. Volunteered or spontaneous utterances by an
individual are admissible even without Miranda warnings.” Interest of N.M.,
222 A.3d 759, 771 (Pa.Super. 2019) (citation omitted), appeal denied,
229
A.3d 562 (Pa. 2020).
Additionally, the record further supports the trial court’s determination
that all the statements Appellant made during his subsequent interview at the
Kingston Police Headquarters were made after he knowingly, intelligently, and
voluntary waived his Miranda rights, and were thus admissible.
In addressing such a claim, we are guided by the following principles:
When 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
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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
person’s ability to withstand suggestion and coercion.
Commonwealth v. Smith, 210 A.3d 1050, 1058 (Pa.Super. 2019) (citations,
internal quotation marks, and brackets omitted), appeal denied,
218 A.3d
1199 (Pa. 2019).
Here, the record reflects that Appellant was provided Miranda warnings
prior to his interview at the Kingston Police Headquarters and executed a
written Miranda waiver form wherein he acknowledged that he understood
that his rights and was waiving them in agreeing to speak with Detectives
Noone and Anthony. Notes of testimony, 10/16/19 at 28-33. Detective Noone
testified that Appellant did not appear to be under the influence of drugs or
alcohol at the time he waived his Miranda rights nor did he appear to be in
any distress. Id. at 29. Detective Noone further testified that at no point
during this interview was Appellant threatened, intimidated, or coerced. Id.
at 28, 35. Appellant was also permitted to eat, drink, use the bathroom, and
smoke during the course of this interview. Id. at 27, 42-43. The trial court
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explicitly credited Detective Noone’s testimony regarding the circumstances
of Appellant’s Miranda waiver. Trial court opinion, 10/17/22 at 11. We are
bound by the court’s credibility determinations, which are supported by the
record. See Byrd, 185 A.3d at 1019. Furthermore, under the totality of these
circumstances, we agree with the trial court that Appellant’s Miranda waiver
was proper. See trial court opinion, 10/17/22 at 11; see also Smith,
210
A.3d at 1058.
Accordingly, for all the foregoing reasons, we discern no error on the
part of the suppression court in denying Appellant’s suppression motions.
Appellant next argues that the trial court abused its discretion admitting
prior bad act evidence, specifically evidence of his pending 2018 criminal case
in Wayne County, Pennsylvania involving the victim; and the history of contact
between Appellant and the Kingston Police Department related to his prior
domestic abuse of the victim in September 2017, December 2017, and
February 2018. Appellant’s brief at 21.
“[T]he admission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court clearly
abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106
(Pa.Super. 2012) (citation omitted), appeal denied,
76 A.3d 538 (Pa. 2013).
“An abuse of discretion is not merely an error in judgment, but is rather the
overriding or misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,
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as shown by the evidence of record.” Commonwealth v. Belknap, 105 A.3d
7, 10 (Pa.Super. 2014) (citation omitted), appeal denied,
117 A.3d 294 (Pa.
2015).
It is well settled that “evidence of prior crimes is not admissible for the
sole purpose of demonstrating a criminal defendant’s propensity to commit
crimes.” Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283
(Pa.Super. 2004) (en banc); see also Pa.R.E. 404(b)(1). Nevertheless,
“[e]vidence may be admissible in certain circumstances where it is relevant
for some other legitimate purpose and not utilized solely to blacken the
defendant’s character.”
Id. Specifically, evidence of other crimes or bad acts
may be admissible to show “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake.” Commonwealth v. Hairston,
84 A.3d 657, 665 (Pa. 2014) (citations omitted), cert. denied,
574 U.S. 863
(2014); see also Pa.R.E. 404(b)(2). Evidence of this kind may also be
admissible under the res gestae exception, “where such evidence became
part of history of the case and formed part of the natural development of
facts.” Commonwealth v. Ivy,
146 A.3d 241, 251, (Pa.Super. 2016)
(citation omitted). In criminal matters, “this evidence is admissible only if the
probative value of the evidence outweighs its potential for unfair prejudice.”
Pa.R.E. 402(b)(2).
Upon review, we conclude that the trial court did not abuse its discretion
in holding that evidence of prior incidents of domestic abuse between
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Appellant and victim and Appellant’s pending criminal charges were relevant
and admissible. Here, the evidence established that, since as early as 2017,
Kingston Police Department officers responded to multiple incidents of
domestic abuse by Appellant against the victim. The evidence suggests that
the abuse of the victim continued to escalate until Appellant ultimately
murdered her. The challenged evidence shows the chain or sequence of
events which formed the history of the case, is part of the natural development
of the case, and demonstrates Appellant’s malice and ill-will toward the victim.
Moreover, the evidence of Appellant’s pending criminal charges for his alleged
April 2018 simple assault and strangulation of the victim was specifically
relevant to demonstrate that Appellant had a clear motive to murder her. See
Ivy, 146 A.3d at 252 (stating that evidence of prior abuse between a
defendant and an abused victim is generally admissible to establish motive,
intent, malice, or ill-will).
Lastly, we agree with the Commonwealth that the probative value of the
aforementioned evidence outweighed its prejudicial effect. “[T]he trial court
is not required to sanitize the trial to eliminate all unpleasant facts from the
jury’s consideration where those facts are relevant to the issues at hand and
form part of the history and natural development of the events and offenses
for which the defendant is charged.” Hairston, 84 A.3d at 666. Here, the
challenged evidence was not so unduly prejudicial that it likely diverted the
jury’s intention away from its duty of weighing the evidence impartially.
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Accordingly, for all the foregoing reasons, we discern no abuse of
discretion on the part of the trial court in permitting this evidence to be
introduced at trial.
In his final claim, Appellant contends that the trial court abused its
discretion in denying his motions for substitute counsel. Appellant’s brief at
26. We disagree.
“A motion for change of counsel by a defendant for whom counsel has
been appointed shall not be granted except for substantial reasons.”
Pa.R.Crim.P. 122(C). “To satisfy this standard, a defendant must demonstrate
that he has an irreconcilable difference with counsel that precludes counsel
from representing him.” Commonwealth v. Spotz, 756 A.2d 1139, 1150
(Pa. 2000) (citation omitted), cert. denied,
532 U.S. 932 (2001). We have
held that a strained relationship with counsel, a difference of opinion in trial
strategy, a lack of confidence in counsel’s ability, or brevity of pretrial
communications do not necessarily establish irreconcilable differences. See
Commonwealth v. Floyd,
937 A.2d 494, 497-498, 500 (Pa.Super. 2007).
Ultimately, “[t]he decision of whether to appoint new counsel lies within the
sound discretion of the trial court.” Spotz, 756 A.2d at 1150 (citation
omitted).
Upon review, we find Appellant’s contention that he was denied right
counsel in this matter to be entirely devoid of merit. The record reflects that
on November 4, 2019, Appellant filed a pro se motion while represented by
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Assistant Public Defenders Mark Singer and Michael Kostelaba, requesting new
counsel on account of an “irreconcilable personality conflict and difference of
opinion….” Motion for Change of Counsel, 11/4/19 at 1. In response,
Assistant Public Defender Demetrius Fannick entered his appearance on
Appellant’s behalf on October 19, 2020, replacing Attorneys Kostelaba and
Singer. Following Appellant’s subsequent dissatisfaction with Attorney
Fannick’s representation, the trial court granted Appellant’s November 9, 2021
“Motion for Appointment of Conflict Counsel” and Attorney David Lampman
entered his appearance on November 15, 2021. Accordingly, Appellant’s
request for substitute counsel was twice satisfied in this matter, and his claim
to the contrary warrants no relief.
For all the foregoing reasons, we affirm the trial court’s March 30, 2022
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2023
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