J-A26032-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ABRAHAM JOHN KLINE

Appellant No. 166 MDA 2014

Appeal from the Judgment of Sentence December 5, 2013

In the Court of Common Pleas of Columbia County

Criminal Division at No(s): CP-19-CR-0000592-2012

BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 03, 2014

Appellant Abraham Kline (“Appellant”) appeals from the judgment of 

sentence entered in the Columbia County Court of Common Pleas following 

his jury trial conviction for third degree murder1and aggravated assault.2 

After careful review, we affirm.

We summarize the relevant trial evidence and procedural posture as 

follows. Appellant and his paramour, Jocelyn Romano, resided together in 

an RV on property owned by Catherine Kline, Appellant’s mother. On the

morning of May 15, 2012, Appellant shot Ms. Romano in the back with a rifle 

that he then used to shoot himself in the chest. First responders took the 

____________________________________________

1 18 Pa.C.S. § 2502(c).

2 18 Pa.C.S. § 2702(a)(4).
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pair to the hospital, where Ms. Romano was pronounced dead later that 

morning. 

Also on May 15, 2012, at 12:10 p.m., Catherine Kline executed a 

written consent allowing the Pennsylvania State Police to search the “outside 

areas” of the property. A trooper searched and photographed the outside of 

the premises, giving special attention to evidence subject to degradation 

from the elements such as bloodstains. While the trooper conducted this 

exterior search/photography, other off-scene troopers had begun the 

process of obtaining a search warrant for the entire Kline property. The 

trooper conducting the exterior search knew that other troopers were 

seeking a warrant to search the entire property.

After surveying and photographing the exterior of the property, the 

trooper entered the RV and took photographs intended to document the 

interior of the vehicle in the event that evidence therein might also be 

subject to degradation. During this entry, the trooper did not touch, seize, 

or remove anything, but instead simply took photographs to document the 

condition of the RV. 

Later, after learning the court had issued a search warrant for the 

entire Kline property, the state police returned to the RV and conducted a 

full search and seizure of evidence.

Three days later, on May 18, 2012, hospital personnel removed 

Appellant’s breathing tube and pronounced him fit to communicate with 

police. Unarmed, plain-clothes state troopers interviewed Appellant after 
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administering Miranda3rights and explaining the state police’s standard 

Rights and Waivers Form, which Appellant signed. Three days later, on May 

21, 2012, the state police served a search warrant authorizing the collection 

of Appellant’s DNA, and again interviewed Appellant in his hospital bed after 

once more administering Miranda rights and after Appellant signed another 

waiver. 

Appellant later sought the suppression of the evidence from the RV 

and the statements he made to the state police while in the hospital. The 

trial court denied the requested suppression. 

A jury convicted Appellant of third degree murder and aggravated 

assault.4 The trial court then sentenced Appellant to 20 to 40 years of 

incarceration on the third-degree murder conviction.5 Appellant filed a postsentence Motion to Modify and Reduce Sentence, which the trial court 

denied. Appellant then timely appealed. 

Appellant presents the following issues for our review:

A. WHETHER THE TRIAL COURT ERRED IN ITS SENTENCE BY 

FAILING TO CONSIDER MITIGATING FACTORS AND 

SENTENCING KLINE TO THE MAXIMUM STATUTORY LIMIT.

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3 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).

4 The jury acquitted Appellant of first-degree murder.

5 The aggravated assault conviction merged for sentencing purposes.
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B. WHETHER THE TRIAL COURT ERRED IN DENYING THE 

APPELLANT’S MOTION TO SUPPRESS ITEMS SEIZED FROM HIS 

HOME AS THE SEARCH WAS ILLEGAL AND UNCONSTITUTIONAL.

C. WHETHER THE TRIAL COURT ERRED IN DENYING THE 

APPELLANT’S MOTION TO SUPPRESS APPELLANT’S STATEMENTS 

AS THE STATEMENTS WERE NOT MADE KNOWINGLY AND 

VOLUNTARILY AS THE DEFENDANT WAS HOSPITALIZED AND 

HIGHLY MEDICATED.

Appellant’s Brief, p. 6.

A. The Sentencing Claim

Appellant first claims that the trial court abused its discretion in 

imposing a statutory maximum sentence of 20 to 40 years of incarceration 

for his third degree murder conviction because the trial court failed to take 

into account certain mitigating factors during sentencing. See Appellant’s 

Brief, pp. 19-21. This claim fails to raise a substantial question for review. 

Appellant’s claim raises a challenge to the discretionary aspects of his 

sentence. “Challenges to the discretionary aspects of sentencing do not 

entitle a petitioner to review as of right.” Commonwealth v. Allen, 24 

A.3d 1058, 1064 (Pa.Super.2011). Before this Court can address such a 

discretionary challenge, an appellant must comply with the following 

requirements:

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test: (1) whether appellant has filed a timely notice of 

appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was 

properly preserved at sentencing or in a motion to reconsider 

and modify sentence, see Pa.R.Crim.P. [720]; (3) whether 

appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) 

whether there is a substantial question that the sentence 

appealed from is not appropriate under the Sentencing Code.
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Allen, 24 A.3d at 1064.

Appellant in the present case filed a timely notice of appeal and 

preserved his issues in a Motion to Modify and Reduce Sentence. Further, 

Appellant’s brief includes a concise statement of the reasons relied upon for 

allowance of appeal pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief, 

pp. 17-18. Accordingly, we now determine whether Appellant has raised a 

substantial question for review and, if so, proceed to a discussion of the 

merits of the claim. Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 

522 A.2d 17 (Pa.1987).

“A substantial question will be found where the defendant advances a 

colorable argument that the sentence imposed is either inconsistent with a 

specific provision of the [sentencing] code or is contrary to the fundamental 

norms which underlie the sentencing process.” Commonwealth v. 

Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see 

also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises a 

substantial question on a case-by-case basis.” Christine, 78 A.3d at 10. A 

bald or generic assertion that a sentence is excessive does not, by itself, 

raise a substantial question justifying this Court’s review of the merits of the 

underlying claim. Id.; see also Commonwealth v. Harvard, 64 A.3d 690, 

701 (Pa.Super.2013). Further, a claim that the court failed to consider 

certain mitigating factors does not present a substantial question. See 

Commonwealth v. Johnson, 961 A.2d 877 (Pa.Super.2008), appeal 

denied, 968 A.2d 1280 (Pa.2009); see also Commonwealth v. 
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Coolbaugh, 770 A.2d 788, 793 (Pa.Super.2001) (“Appellant’s claim that the 

court did not consider his personal life situation of having a drug problem 

does not raise a substantial question”); Commonwealth v. Rhoades, 8 

A.3d 912 (Pa.Super.2010) (a claim that the trial court ignored the evidence 

of an appellant’s alleged brain damage, limited mental capacity, and good 

behavior in prison is essentially a claim that the trial court inappropriately 

applied the mitigating information when imposing sentence, which does not 

present a substantial question for appellate review); Commonwealth v. 

Urrutia, 653 A.2d 706, 710 (Pa.Super.1995) (“an allegation that a 

sentencing court ‘failed to consider’ or ‘did not adequately consider’ certain 

factors does not raise a substantial question that the sentence was 

inappropriate”); Commonwealth v. Lawson, 650 A.2d 876, 881 

(Pa.Super.1995) (claim that trial court ignored rehabilitative needs in 

imposing sentence does not constitute a substantial question for review); 

Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa.Super.1997) (claim 

that trial court did not give adequate consideration to rehabilitative needs 

does not present a substantial question); Commonwealth v. Williams, 

562 A.2d 1385, 1387-88 (Pa.Super.1989) (claim that trial court should have 

imposed a lesser, more appropriate sentence in light of the defendant’s poor 

health and family situation constituted a request that this Court substitute 

its judgment regarding an appropriate sentence, which does not raise a 

substantial question).
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Here, Appellant’s 2119(f) statement does not identify a violation of a 

specific provision of the Sentencing Code or a fundamental norm of the 

sentencing process that the trial court contravened. Instead, in his 

Pa.R.A.P. 2119(f) statement, Appellant alleges that the trial court imposed 

an unreasonable sentence for third degree murder because it failed to 

properly consider certain alleged mitigating factors. See Appellant’s Brief, 

pp. 17-18. Importantly, Appellant does not argue that the sentencing court 

relied upon any impermissible factors in sentencing, relied solely on the 

severity of the crime committed, or sentenced beyond statutory limits. 

Instead, he alleges that the sentencing court failed to consider what he felt 

were mitigating factors6in imposing its sentence. Accordingly, Appellant’s 

Rule 2119(f) statement does not raise a substantial question for our review.7

Even had the Appellant stated a substantial question for review, the 

claim fails on the merits. In imposing sentence, the trial court considered 

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6 Appellant’s 2119(f) statement discusses the alleged mitigating factors that 

Appellant would have liked the sentencing court to consider. See

Appellant’s Brief, p. 17. These factors included: “(1) Kline’s sincere and 

genuine remorse; (2) Kline’s ability to appreciate [the] wrongfulness of [his] 

conduct; (3) Kline’s low likelihood of re-offending; and (4) Kline’s lack of a 

prior criminal history.” Id.

7 We acknowledge that “a substantial question exists when a sentencing 

court imposed a sentence in the aggravated range without considering 

mitigating factors.” Rhoades, 8 A.3d at 919 n.12 (citing Commonwealth 

v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super.2003) (emphasis in original). 

However, in this case, the trial court sentenced Appellant within the 

standard range of the sentencing guidelines, as discussed infra.
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the circumstances of the crime, sentencing guidelines, and the mitigating 

factors Appellant alleged it ignored. See 1925(a) Opinion, pp. 1-3. The 

court sentenced Appellant to a standard range sentence within the statutory 

maximum.8 See id. at 1-2. The trial court explained the sentence in 

relation to the guidelines as follows:

The Sentencing Guidelines indicate that [Appellant’s] Prior 

Record Score was “0,” and a[] third degree murder carries an 

Offense Gravity Score of 14. Applying the “Deadly Weapon 

Used” matrix ([Appellant] shot the Victim with a rifle), the 

standard range was “90-SL,” or 7 years, 6 month[s], to the 

statutory limit. Since the statutory maximum was 40 years, and 

since the minimum sentence must be at least half of the 

maximum sentence, the upper end of the standard range would 

dictate a sentence of 20-40 years. This is the exact sentence 

which was imposed.

1925(a) Opinion, pp. 1-2. “[W]here a sentence is within the standard range 

of the guidelines, Pennsylvania law views the sentence as appropriate under 

the Sentencing Code.” Commonwealth v. Moury, 992 A.2d 162, 171 

(Pa.Super.2010). Accordingly, in addition to failing to raise a substantial 

question for review, this excessiveness claim fails on the merits as well.

____________________________________________

8 The upper level of the sentencing guidelines’ standard range for third 

degree murder is the statutory limit regardless of prior record score. See

204 Pa.Code § 303.16. The OGS for third degree murder is 14. Appellant 

had a PRS of zero (0). These facts combined with the “Deadly Weapon 

Used” guideline matrix enhancement yielded a standard range sentence of 

90-SL. See 204 Pa.Code § 303.16. The statutory maximum for third 

degree murder is 40 years. See 18 Pa.C.S. § 1102(d).
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B. The Suppression Claims

In his next two issues, Appellant claims the trial court erred in denying 

suppression of evidence. He is incorrect.

1. Evidence from the RV

Appellant first argues that the trial court erred in denying suppression 

of the evidence recovered from his RV because the state police had originally 

entered and photographed the RV without first securing a search warrant. 

See Appellant’s Brief, pp. 22-25. This claim lacks merit.

Initially, the Commonwealth argued that the pre-warrant entry into 

the RV was intended solely to photograph the interior to identify and 

document any evidence that may have degraded over time. See

Commonwealth Brief, p. 10. This possibility of evidence degradation, the 

Commonwealth claimed, constituted exigent circumstances to permit a 

warrantless entry. Id. The trial court did not agree and determined that the 

initial entry into the RV was illegal because there were no exigent 

circumstances for the entry into the home. See June 12, 2013 Suppression 

Memorandum Opinion and Order (“Suppression Order”), pp. 1-2.

Nonetheless, based on the “independent source” doctrine, the trial 

court refused to suppress the evidence obtained from the RV. See

Suppression Order, pp. 2-3. The independent source doctrine provides that 

the prosecution may introduce evidence seized improperly where the 

prosecution establishes that the evidence would have been discovered 

inevitably through an independent source. See Commonwealth v. 
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Brundidge, 620 A.2d 1115, 1119 (Pa.1993). A properly-secured search 

warrant can constitute an independent source where (1) the decision to seek 

the warrant was not prompted by what police saw during the initial entry, 

and/or (2) information gained in the first entry does not affect the decision 

of the warrant-issuing magistrate. Id. (citing Murray v. United States, 

487 U.S. 533, 108 S.Ct. 2529 (1988)).

The trial court properly applied the independent source doctrine to the 

facts of this case. Here, the police’s decision to seek a warrant was not 

prompted by what the trooper saw during the initial entry; other troopers 

were already in the process of seeking a search warrant for the property 

when the initial entry occurred. See Suppression Order, p. 2. Additionally, 

the affidavit used to seek the warrant did not include any information from 

the trooper who conducted the initial entry, nor did that trooper 

communicate any of his observations to the issuing Magisterial District 

Justice. Id. Further, the state police did not seize any items from the RV 

until after the issuance of the warrant.9 Id. Because the initial illegal entry 

into the RV did not affect or influence the issuance of the legal search 

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9 While the trial court criticized the State Police’s “standard procedure” of 

conducting warrantless searches of homes without adequate exigent 

circumstances, noting that such similar searches could be viewed as 

“contrived and in bad faith” in the future, and observing that “[i]t would 

have been better to wait 49 minutes for the [s]earch [w]arrant[,]” the court 

ultimately found that under these circumstances, the application of the 

independent source doctrine was appropriate. Suppression Order, pp. 2-3.
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warrant for the RV, the trial court properly applied the independent source 

doctrine in this matter.10

2. Appellant’s Statements from his hospital bed

Appellant next argues that the trial court erred in failing to suppress 

the statements he made to the police from his hospital bed because he was 

“highly medicated”. See Appellant’s Brief, pp. 26-29. This claim also fails.

“The determination of whether a confession is voluntary is a conclusion 

of law and, as such, is subject to plenary review.” Commonwealth v. 

Harrell, 65 A.3d 420, 434 (Pa.Super.2013).

Miranda holds that “[t]he defendant may waive effectuation” of 

the rights conveyed in the warnings “provided the waiver is 

made voluntarily, knowingly and intelligently.” The inquiry has 

two distinct dimensions. 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 

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10 To the extent that the Commonwealth argues the inevitable discovery 

doctrine allows for the admission of the evidence, it is mistaken. The 

inevitable discovery doctrine provides that, “[i]f the prosecution can 

establish by a preponderance of the evidence that the illegally obtained 

evidence ultimately or inevitably would have been discovered by lawful 

means, then the evidence is admissible.” Commonwealth v. McLaurin, 45 

A.3d 1131, 1136 (Pa.Super.2012). This doctrine deals with scenarios where 

someone would have somehow discovered evidence legally in any event –

like a volunteer search party spread out across a field and finding a weapon 

or a body as a result of a systematic search. Here, the evidence was inside 

Appellant’s RV. Only the investigating police on scene were going to 

encounter the evidence inside the RV.
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comprehension may a court properly conclude that Miranda

rights have been waived.

In re T.B., 11 A.3d 500, 505-06 (Pa.Super.2010). “In examining the 

totality of circumstances, we also consider: (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.” Id. at 506 (internal 

quotations omitted). A defendant’s statement to police while medicated and 

in the hospital is subject to this totality of the circumstances examination. 

See Commonwealth v. Harm, 416 A.2d 533, 535 (Pa.Super.1979). 

Where an alert, responsive, and cooperative defendant in no acute physical 

distress is in a hospital bed but appears to understand his Miranda rights 

before voluntarily waiving them and giving a statement, a trial court may 

deny suppression of such statements. Id. This Court defers to the trial 

court’s findings in such situations. Id.

Here, the trial court found credible the evidence proffered at the 

suppression hearing that Appellant was clearly responsive and able to 

answer questions posed to him during the interrogations. Suppression 

Order, p. 3. The trial court applied the above-referenced factors and 

determined as follows: 

[T]he duration [of the interviews] (2 hours on May 18th; 1 hour 

on May 21st) was not inordinate; the [Appellant’s] physical and 

psychological states were stable (he did not laugh or cry; he 

coughed up dried bloody phlegm from time to time, but seemed 
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comfortable); the conditions of his detention were benign, in 

that he was comfortable and cared for in his hospital room and 

was not in shackles; the attitude of the interrogators was 

professional and courteous; and no other factors are of record to 

indicate that [Appellant’s] ability to withstand coercion and 

suggestion was compromised.

Suppression Order, pp. 3-4. Further, the trial court credited the testimony 

of multiple nurses who testified that they had no concerns that Appellant 

could not or did not understand the police questioning. Id. The police read 

Appellant his rights before each interview and he agreed to proceed and 

signed waivers. Id. The trial court did not abuse its discretion in refusing to 

suppress Appellant’s statements from his hospital bed.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/3/2014