Com. v. Bullman, N. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
NATHAN BULLMAN, :
:
Appellant : No. 3338 EDA 2014
Appeal from the Judgment of Sentence October 1, 2014,
Court of Common Pleas, Delaware County,
Criminal Division at No. CP-23-CR-0000136-2014
BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 04, 2015
Nathan Bullman (“Bullman”) appeals from the judgment of sentence
entered following his convictions of robbery, possession of an instrument of
crime, persons not to possess firearms, and firearms not to be carried
without a license.1 Bullman challenges the trial court’s denial of his motion
to suppress and the sufficiency of the evidence supporting his convictions.
We affirm.
The facts, as found by the trial court, are as follows:
The [v]ictim in this case, Eric Taylor, drives a
cab for the Crown Cab Company. At about 1:55 a.m.
on October 31, 2013 he received a dispatch
concerning a possible fare. Information regarding the
fare is transmitted to a computer located in the cab
through an automated system. Mr. Taylor received
the name and location of the customer and accepted
the fare. N.T. 6/26/14 pp. 12-15, 34-37. Mr. Taylor
1
18 Pa.C.S.A. §§ 3701, 907,6105, 6106.
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testified that the name transmitted to him was
possibly “Bowman” and that he was directed to the
vicinity of a Seven-Eleven store near a bar on
Baltimore Avenue for the pick -up. Id. at 34 -37. Mr.
Taylor pulled into the Seven-Eleven store parking lot
and saw [Bullman] waiting, wearing a black hoodie.
[Bullman] indicated to Mr. Taylor that he was waiting
for his girlfriend but then walked over to the cab
alone. In the lighted parking lot he looked through
the cab's passenger side window at Mr. Taylor and
told him that he wanted to go to 162 Melrose
Avenue. Id. at 16 -17, 39. [Bullman] entered the
rear of the cab and Mr. Taylor drove to Melrose
Avenue. The trip took about eight minutes. Id. at 41
-42.
Melrose Avenue is a dead-end street. On
Melrose[,] [Bullman] directed Mr. Taylor past 162
Melrose Avenue to the far end of the street and told
him to pull over. Mr. Taylor complied. Id. at 19, 41-
42. The driver's area of the cab is not protected from
the rear passenger compartment by a divider of any
kind. Id. at 22. [Bullman] attempted to pay his fare
with a credit card by “swiping” the card through a
card reader located in the rear passenger
compartment. Mr. Taylor told [Bullman] that the
card reader was broken and that he (Mr. Taylor)
would have to use another card reader In the front
seat. [Bullman] responded in a hostile manner and
refused to give Mr. Taylor the card. Id. at 19 -20, 49
-51. [Bullman] then pulled a black and chrome
firearm from his right side and pointed the gun at
Mr. Taylor's upper chest and face and said, “you
know what man? You know what? Just give me your
dough.” Id. at 21 -22.
Mr. Taylor reached into his pocket and took out
all of the money he had: about seventy dollars. He
threw the cash at [Bullman], got out of the cab and
ran, leaving his cell phone and his hoodie in the
vehicle. He ran about a half a mile to Baltimore
Avenue looking for a telephone. Finally, he found an
occupied shop and reported the robbery to police.
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Id. at 24 -25, 53. A responding police officer took
him back to Melrose Avenue where the cab was at
rest and unoccupied about a block away from where
Mr. Taylor left it. Id. at 26, 55. Mr. Taylor's cell
phone and hoodie were still in the vehicle. Id. at 55.
Officer John Meehan of the East Lansdowne
Police Department was patrolling the vicinity of
Melrose Avenue when he came upon the cab. It was
unoccupied, west of Melrose Avenue on Glenwood
Avenue at the side of the road. It was over the on
[sic] the grassy berm. Id. at 63-64. The car was
running, the lights were on and the rear door was
open. Id. at 64. Officer Meehan reported the cab to
DELCOM and was informed that there was a robbery
reported in the area and that the victim was a half
mile away. Officer Meehan called the Crown Cab
Company and interviewed Mr. Taylor after he arrived
back at the scene. Id. at 64- 65. Mr. Taylor told the
officer about the robbery and described his
passenger as a white male, six feet tall, in his 30's,
with a medium build and wearing a black hoodie and
blue jeans. Id. at 66. From his investigation Officer
Meehan learned that the man who called for the cab
was named “Nate.” Id. at 102.
At about 7:00 a.m. Officer Meehan went to 162
Melrose Avenue. This is a three unit apartment
building that was formerly a single family dwelling.
Officer Meehan was familiar with the building and
with its residents through prior police contacts. He
knew that the front units were occupied by a family
and a couple in their fifties and that William
Slaughter lives in the rear unit. Id. at 70-72. Officer
Meehan knocked on the door and Mr. Slaughter
answered. He asked if Mr. Slaughter had visitors
and he replied that he did. Id. Officer Meehan asked
Mr. Slaughter if he and his partner could come in and
Mr. Slaughter consented. Id. at 72.
This rear apartment does not have “designated
rooms.” The room that is entered from the outer
door had a bed in it and Officer Meehan could see a
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white male, [Bullman], and a white female under
covers in a bed before he entered the apartment. Id.
at 72-73. The bed consisted of either two mattresses
or a mattress and a box spring stacked on the floor.
Id. at 74. The occupants of the bed woke. [Bullman]
matched the description that Mr. Taylor had provided
and when Officer Meehan asked him for his name,
[Bullman] replied, “Nate.” Officer Meehan asked the
couple to show their hands and themselves and they
both stood up. Id. at 74. Before allowing the couple
to sit back down on the bed he conducted a sweep of
the bed and found a black semi-automatic handgun
and two crack pipes between the mattresses, about
ten inches in from the edge. Id. at 75. All three
occupants were immediately detained and the
firearm was secured. Officer Meehan found that
there was a live round in the chamber of the firearm
and the magazine contained five additional rounds.
Id. at 76-79.
At the police station after his arrest [Bullman]
was orally advised of his Miranda rights. Id. at 80-
83, 110-13. He waived his rights and told Officer
Meehan that he was a passenger in Mr. Taylor's cab,
that he was picked up at the Seven-Eleven, and that
he wanted to use his credit card to pay the fare but
that the driver wanted cash. Id. at 84. When he
explained that he had no cash, the driver said that
he could leave without paying and he did. He did not
have a gun with him in the cab. Id. at 84 -85, 114.
Trial Court Opinion, 3/24/15, at 4-6.
Bullman filed three motions to suppress.2 Following a hearing, the trial
court granted only Bullman’s motion to suppress identifications and denied
the other motions. The parties immediately proceeded to a bench trial. The
trial court then convicted Bullman of the above-stated offenses and later
2
See Motion to Suppress Physical Evidence, 4/28/14; Motion to Suppress
Statements, 4/28/14; Motion to Suppress Identifications, 5/12/14.
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sentenced him to an aggregate term of six to twelve years of incarceration,
following by six years of probation. The trial court denied Bullman’s post-
sentence motions, and this timely appeal followed.
Bullman presents six issues for our review:
1. Whether the [t]rial [c]ourt erred in denying
[Bullman’s] [m]otion to [s]uppress [p]hysical
[e]vidence because the evidence was insufficient to
establish that Mr. Slaughter had the requisite
authority, actual or apparent, to give consent to
Officer Meehan's otherwise illegal and warrantless
entry into the apartment?
2. Whether the [t]rial [c]ourt erred in denying
[Bullman’s] [m]otion to [s]uppress [p]hysical
[e]vidence because the evidence was insufficient to
establish that Mr. Slaughter had the requisite
authority, actual or apparent, to give consent to
Officer Meehan's otherwise illegal and warrantless
entry into the bedroom occupied by Bullman?
3. Whether the [t]rial [c]ourt erred in denying
[Bullman’s] [m]otion to [s]uppress [p]hysical
[e]vidence because the evidence was insufficient to
establish that Mr. Slaughter had the requisite
authority, actual or apparent, to give consent to
Officer Meehan's otherwise illegal and warrantless
search under the mattress?
4. Whether the [t]rial [c]ourt erred in denying
[Bullman’s] [m]otion to [s]uppress [p]hysical
[e]vidence recovered from under the mattress
because at this time, Officer Meehan detained
[Bullman] when he ordered him out of the bed and
the facts known and articulated by Officer Meehan
were insufficient to support reasonable suspicion
justifying the search?
5. Whether the evidence presented at the non[-]ury
trial was insufficient to support the verdict of guilty
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on [p]ossession of [f]irearm [p]rohibited because the
Commonwealth failed to prove identity beyond a
reasonable doubt?
6. Whether the evidence presented at the non-jury
trial was insufficient to support the verdict of guilty
on [r]obbery because the Commonwealth failed to
prove identity and whether [Bullman] threatened the
victim or put the victim in fear of immediate serious
bodily injury beyond a reasonable doubt?
Bullman’s Brief at 9-10. The first four of these issues challenge the trial
court’s denial of his motion to suppress the physical evidence recovered
from Mr. Slaughter’s apartment. We need not consider the particulars of
these claims. Because Bullman failed to establish an expectation of privacy
in the apartment, his suppression motion could not succeed.3
“Generally, to have standing to pursue a suppression motion under
Pa.R.Crim.P. 581, the defendant's own constitutional rights must have been
3
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, we are
bound by these findings and may reverse only if the
court’s legal conclusions are erroneous.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010).
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infringed. However, it is well settled that a defendant charged with a
possessory offense in this Commonwealth has ‘automatic standing’ because
the charge itself alleges an interest sufficient to support a claim under Article
I, § 8 [of the Pennsylvania Constitution].” Commonwealth v. Enimpah,
106 A.3d 695, 698 (Pa. 2014) (citation omitted). Bullman was charged with
a possessory offense, and so he has automatic standing to seek suppression
of the items seized from Slaughter’s apartment. “In addition to standing,
though, a defendant must show that he had a privacy interest in the place
invaded or thing seized that society is prepared to recognize as reasonable.”
Id. See also Commonwealth v. Millner, 888 A.2d 680, 692 (Pa. 2005)
(“[A] defendant cannot prevail upon a suppression motion unless he
demonstrates that the challenged police conduct violated his own, personal
privacy interests.”).
[F]actors to be considered in determining whether a
defendant has a legitimate expectation of privacy in
another person's home include: (1) possession of a
key to the premises; (2) having unlimited access to
the premises; (3) storing of clothing or other
possessions on the premises; (4) involvement in
illegal activities conducted on the premises; (5)
ability to exclude other persons from the premises;
and (6) expression of a subjective expectation of
privacy in the premises.
Commonwealth v. Bostick, 958 A.2d 543, 553 (Pa. Super. 2008) (quoting
Commonwealth v. Govens, 632 A.2d 1316, 1319 (Pa. Super. 1993)).
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“Whether a defendant has a legitimate expectation of privacy is a
component of the merits analysis of the suppression motion ... made upon
evaluation of the evidence presented by the Commonwealth and the
defendant.” Enimpah, 106 A.3d at 699 (quoting Commonwealth v.
Burton, 973 A.2d 428, 435 (Pa. Super. 2009) (en banc)). The record
contains absolutely no evidence that would support a finding of any of these
factors in Bullman’s favor. Furthermore, Bullman presented no evidence at
all, much less any that would support a finding of any of these factors. “To
be sure, under our jurisprudence, the defendant bears the burden of
persuasion with respect to his privacy interest.” Id. at 701. Bullman has
failed in this regard, as he did not present any evidence that would support a
finding of any of the six Bostick factors or other indicia that he had a
privacy interest in Mr. Slaughter’s apartment. For that reason, we find no
error in the trial court’s determination that Bullman did not establish a
privacy interest in the apartment in which the search occurred, see Trial
Court Opinion, 3/24/15, at 13 n.6, and therefore we affirm the trial court’s
denial of his suppression motion.4
Bullman’s remaining issues challenge the sufficiency of the evidence
underlying his convictions of robbery and persons not to possess firearms.
We review these issues mindful that
4
We note Bullman’s contention that the Commonwealth did not raise his
failure to establish a privacy interest in the trial court, but he is mistaken.
See N.T., 6/26/14, at 127.
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[w]hen evaluating a sufficiency claim, our standard is
whether, viewing all the evidence and reasonable
inferences in the light most favorable to the
Commonwealth, the fact[-]finder reasonably could
have determined that each element of the crime was
established beyond a reasonable doubt. This Court
considers all the evidence admitted, without regard to
any claim that some of the evidence was wrongly
allowed. We do not weigh the evidence or make
credibility determinations. Moreover, any doubts
concerning a defendant's guilt were to be resolved by
the fact[-]finder unless the evidence was so weak
and inconclusive that no probability of fact could be
drawn from that evidence.
Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010).
With regard to both convictions, Bullman argues only that the
Commonwealth failed to establish that he was the person that robbed the
cab driver, Mr. Taylor, with a firearm. Bullman’s Brief at 29-34. However,
in making this argument, Bullman challenges the trial court’s credibility
determinations by pointing to inconsistencies in Mr. Taylor’s testimony and
his past crimen falsi conviction, as well as fact that prior to any court
proceeding, he only identified Bullman as the assailant in a photo array (the
suppression of which the parties agreed upon) and not in person. Id. at 31-
32. The credibility of the witness is addressed to the weight of the evidence,
not the sufficiency of the evidence. Commonwealth v. Gibbs, 981 A.2d
274, 281 (Pa. Super. 2009). Bullman did not include a challenge to the
weight of the evidence in his statement of questions involved, and so it is
waived. Commonwealth v. Bryant, 57 A.3d 191, 196 n.7 (Pa. Super.
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2012) (finding issues waived where appellant did not include them in
statement of questions involved); Pa.R.A.P. 2116(a) (“No question will be
considered unless it is stated in the statement of questions involved or is
fairly suggested thereby.”). Furthermore, Bullman did not include a
challenge to the weight of the evidence in his Pa.R.A.P. 1925(b) statement
of matters complained of on appeal. It is well established that failure to
include an issue in a Rule 1925(b) statement results in waiver of that issue
on appeal. Commonwealth v. Garland, 63 A.3d 339, 342 (Pa. Super.
2013); Pa.R.A.P. 1925(b)(4)(vii). Bullman’s weight challenge is waived for
this reason, as well.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/4/2015
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