Com. v. Edmonds, J. ( 2016 )

J-S27041-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMAR CHARLES EDMONDS,
Appellant No. 1520 MDA 2015
Appeal from the Judgment of Sentence March 25, 2015
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000772-2014
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 22, 2016
Appellant Jamar Charles Edmonds appeals from the judgment of
sentence entered in the Court of Common Pleas of Lebanon County by the
Honorable John C. Tylwalk on March 25, 2015, following his convictions of
Persons not to possess, use, manufacture, control, sell or transfer firearms,
Firearms not to be carried without a license, Possession of drug
paraphernalia and a violation of The Controlled Substance, Drug, Device and
Cosmetic Act.1 Upon our review of the record, we affirm.
The trial court aptly set forth the relevant facts and procedural history
herein as follows:
____________________________________________
1
18 Pa. C.S.A. §§ 6105(a)(1); 6106(a)(1); 35 P.S. §§ 780-113(a)(32),
(30), respectively.
*Former Justice specially assigned to the Superior Court.
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[Appellant] was charged with Possession With Intent to
Deliver a Controlled Substance (Heroin), Persons Not to Possess
a Firearm, Firearms Not to be Carried Without a License,
Possession of Drug Paraphernalia, Possession of a Controlled
Substance (Heroin), Simple Assault, and two counts of
Recklessly Endangering Another Person1 as the result of an
incident which occurred on March 26, 2014. Defendant initially
filed a pro se Motion to Suppress. An Amended Motion seeking
suppression and dismissal of the charges was subsequently filed
by counsel. We conducted a hearing on the Motion on August 27,
2014. At that hearing, Officer David Lear testified as to the
circumstances which led to [Appellant’s] arrest and the
confiscation of the evidence. On October 15, 2014, we issued an
Order and Opinion denying [Appellant's] request for suppression.
After a jury trial was conducted on February 11, 2015,
[Appellant] was found guilty of Count 2 - Person Not to Possess,
Manufacture, Control, Sell or Transfer Firearm, Count 3 -
Firearms Not to be Carried Without a License, Count 4 -
Possession of Paraphernalia, and Count 5 - Possession of Heroin.
Due to the non-appearance of two Commonwealth witnesses,
the Simple Assault count and the two counts of Recklessly
Endangering Another Person were nol prossed.
At the jury trial, Officer David Lear of the Lebanon City
Police testified that on March 26, 2014, he was dispatched for a
report of an individual threatening other persons with a gun at a
residence located at 32 North 12th Street in the City of Lebanon.
The suspect was described as a black male with a beard wearing
a black top and blue pants. The suspect was reported to have
just left the residence and to be heading south on 12th Street
from Number 32. As Officer Lear neared the scene, he received
another report that the suspect was known to the persons he
had threatened and was then heading north on 12th Street
toward his own residence which had a red car parked in front of
it.
Officer Lear proceeded to that area and observed a red
vehicle parked on 12th Street. He also observed [Appellant], who
fit the description of the suspect, emerging from the rear of the
area near house numbers 59 and 61, which corresponded to
where the red car was parked. When [Appellant] noticed Officer
Lear, he walked away and turned into an alley. When Officer
Lear entered the alley, he lost sight of [Appellant] for a few
seconds, but then found him standing beside a vehicle which he
was about to enter. After [Appellant] got into the vehicle, Officer
Lear activated his lights and stopped his own vehicle. He then
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commanded the female driver, Yomara Berrios, and [Appellant]
to show their hands. [Appellant], who was in the front passenger
seat of the vehicle, refused to show his hands and could be seen
reaching down between his legs and around the side of the
seats. Office Lear was unable to see whether he was reaching for
a weapon. Officer Lear repeated his commands, but [Appellant]
continued to refuse to show his hands. [Appellant] got out of the
vehicle and fled the scene. He was apprehended a few blocks
away by other officers who arrived on the scene.
After [Appellant] fled, Officer Lear had Berrios exit the
vehicle while he checked it. The front passenger-side door had
been left open by Defendant. When Officer Lear looked inside, he
could see the butt of a pistol sticking out from under the
passenger seat, where he had observed Defendant reaching.
Officer Lear then spoke with Berrios, who agreed that he could
search the car. Officer Lear also found a bookbag on the back
seat. Berrios informed Officer Lear that the bookbag belonged to
[Appellant]. Officer Lear checked it and found approximately
three hundred dollars ($300.00) in currency and school items
with [Appellant’s] name on them. He secured the bag at the
scene. When [Appellant] was apprehended by the other officers
a few blocks away, eleven glassine baggies containing a
substance which was suspected to be heroin, a rubber band, an
additional sixty dollars ($60.00) and two cell phones were found
on his person.
Detective Keith Uhrich testified that he was one of the
police officers who had responded to assist Officer Lear.
Detective Uhrich interviewed [Appellant] shortly after his arrest.
During the interview, Defendant admitted that the gun found in
Berrios' car belonged to him.2
The parties stipulated that [Appellant] was a person who
was prohibited by law in Pennsylvania from possessing a firearm
because of a prior conviction. It was also stipulated that the
glassine baggies contained a total of twenty–seven (27) grams
of heroin.
At the trial, Berrios testified that she and [Appellant] were
friends. She explained that she is the only person who drives her
vehicle and that she has three children who have access to it.
She further testified that the gun did not belong to her, that she
had never seen it before, that it was not there before [Appellant]
got in, and that she did not know it was in her car once
[Appellant] had entered. She did not see [Appellant] put the gun
down beneath the seat as she was facing toward the window
when Officer Lear was approaching her vehicle.
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[Appellant’s] stepfather, Wilbert Lewis, testified that in
March 2014 he had given [Appellant] three hundred dollars
($300.00) in cash as [Appellant] was going to pay his electric bill
for him. He explained that he had arranged for [Appellant] to run
the errand for him as he did not want to bring the cash to his
own place of employment.
[Appellant] also testified at the trial. He noted that the car
belonged to Berrios. He insisted that he did not have a gun when
he got into the car and that he did not know it was there. When
Officer Lear told [Appellant] and Berrios to show their hands,
[Appellant] ran because he did not want to go to jail. He
explained that he had sniffed heroin approximately a half hour
before this incident. He claimed that he admitted that the gun
belonged to him during the interview because he did not want
anyone else to get in trouble. [Appellant] also claimed that he
did not know why he was being pursued by the police and had
fled from Officer Lear because had had seen the red lights from
the police vehicle.
______
1
Counts 1 through 8, 35 P.S. §780-113(a)(30), 18 Pa.C.S.A.
§6105(a)(1), 18 Pa.C.S.A. §6106(a)(1), 35 P.S. §780-
113(a)(32), 35 P.S. §780- 113(a)(16), 18 Pa.C.S.A.§2701(a)(3),
and 18 Pa.C.S.A. §2705, respectively.
2
A recording of this interview was played at trial. (Exhibit “9”)
Trial Court Opinion, filed August 3, 2015, at 1-6.
On March 25, 2015, Appellant received an aggregate sentence of five
years to ten years in prison. Appellant filed his consolidated post-sentence
motions on April 6, 2015, and the trial court denied the same on August 3,
2015. This timely appeal followed.
On appeal, Appellant raises the following questions for our review:
I. Should [Appellant’s] Motion for Judgment of Acquittal be
granted because the Commonwealth failed to present sufficient
evidence at trial to prove beyond a reasonable doubt that
[Appellant] was the person who possessed the firearm found in
Jomara Berrios’ car on March 26, 2015?
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II. Should [Appellant’s] Motion for a New Trial be granted
because the Trial Court erred by denying [Appellant’s] Omnibus
Pretrial Motion to Suppress Evidence and Dismiss Charges?
III. Should [Appellant’s] Motion for a New Trial be granted
because the jury placed too great a weight on the testimony of
the [sic] Jomara Berrios?
Brief of Appellant at 4.
Appellant first contends the Commonwealth failed to present sufficient
evidence to convict him of the firearms charges. Our standard of review in
assessing the sufficiency of the evidence is well-settled:
[W]hether[,] viewing all the evidence admitted at trial in the
light most favorable to the [Commonwealth as the] verdict
winner, there is sufficient evidence to enable the fact-finder to
find every element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence and
substitute our judgment for the fact-finder. In addition, we note
that the facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence.
Any doubts regarding a defendant's guilt may be resolved by the
fact-finder unless the evidence is so weak and inconclusive that
as a matter of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain its
burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial evidence.
Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa.Super. 2015)
(citation omitted).
Section 6105(a) provides that ”a person who has been convicted of an
offense enumerated in subsection (b), within or without this Commonwealth,
regardless of the length of sentence or whose conduct meets the criteria in
subsection (c) shall not possess, use, control, sell, transfer or manufacture
or obtain a license to possess, use, control, sell, transfer or manufacture a
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firearm in this Commonwealth.” 18 Pa.C.S.A. § 6105(a)(1). Further, a
person is guilty of carrying a firearm without a license if he “carries a firearm
in any vehicle or . . . concealed on or about his person, except in his place of
abode or fixed place of business, without a valid and lawfully issued license.
. . . ” 18 Pa.C.S.A. § 6106(a)(1). The Commonwealth may prove a
defendant carried a firearm inside a vehicle through evidence of either actual
or constructive possession. See Commonwealth v. Hopkins, 67 A.3d 817,
821 (Pa.Super. 2013) (evidence was sufficient to show defendant
constructively possessed firearm found in a vehicle he was driving, as
required to support convictions for carrying a firearm without a license;
firearm was discovered within arm’s length of where defendant had been
seated).
Upon our review of Appellant’s appellate brief, we find he has waived
this issue for lack of development. The Pennsylvania Rules of Appellate
Procedure unequivocally state that each question an appellant raises is to be
supported by discussion and analysis of pertinent authority. Estate of
Haiko v. McGinley, 799 A.2d 155, 161 (Pa.Super. 2002); Pa.R.A.P.
2119(b). Appellate arguments which fail to adhere to these procedural rules
may be considered waived, and arguments which are not appropriately
developed are waived. The latter include those where the party has failed to
cite any authority in support of a contention. Lackner v. Glosser, 892 A.2d
21, 29–30 (Pa.Super. 2006). This Court will not act as counsel and will not
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develop arguments on behalf of an appellant. Irwin Union National Bank
and Trust Company v. Famous and Famous and ATL Ventures, 4 A.3d
1099, 1103 (Pa.Super. 2010).
The entirety of Appellant’s argument pertaining to this issue reads as
follows:
[Appellant] asserts that the Commonwealth failed to
present sufficient evidence at trial to prove that he possessed
the firearm found in Berrios’ car. Specifically, [Appellant] alleges
the following facts presented at trial demonstrate that he did not
possess the firearm:
(1) Ofc. Lear did not see [Appellant] holding a firearm prior to
[Appellant] entering Berrios’ car (Notes of Trial, 22).
(2) Ofc. Lear did not see [Appellant] holding a firearm while
[Appellant] was inside of Berrios’ car. (N.T. 22).
(3) No fingerprint or DNA analysis was presented at trial to
show that [Appellants’] fingerprints or DNA were found on the
firearm. (N.T. 22).
(4) [Appellant] testified at trial that at no time on March 26,
2015 did he possess a firearm. (N.T. 44-45).
(5) Berrios testified at trial that on March 26, 2014, she
neither saw [Appellant] possess a firearm, nor did she see
[Appellant] place a firearm underneath the passenger seat of her
car. (N.T. 54).
Brief of Appellant at 10.
As the aforementioned quotation therefrom illustrates, the argument
portion of Appellant's brief does not contain meaningful discussion of, or
citation to, relevant legal authority with regard to a sufficiency of the
evidence challenge. Such lack of analysis precludes meaningful appellate
review. Accordingly, we conclude that the issue is waived for lack of
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development. Coulter v. Ramsden, 94 A.3d 1080, 1088–1090 (Pa.Super.
2014). 2
Before considering the merits of Appellant’s second issue, we must
first consider whether Appellant has properly preserved it for our review. As
this Court has noted, a timely-filed Pa.R.A.P. 1925(b) statement does not
automatically equate to issue preservation. Jiricko v. Geico Ins. Co., 947
A.2d 206, 210 (Pa.Super. 2008). “[T]he Pa.R.A.P.1925(b) statement must
be sufficiently ‘concise’ and ‘coherent’ such that the trial court judge may be
able to identify the issues to be raised on appeal. . . .” Id. In this regard,
Pa.R.A.P. 1925(b) provides in pertinent part:
(4) Requirements; waiver.
....
(ii) The Statement shall concisely identify each ruling or error
that the appellant intends to challenge with sufficient detail to
identify all pertinent issues for the judge. The judge shall not
require the citation to authorities; however, appellant may
choose to include pertinent authorities in the Statement.
....
(vii) Issues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph
(b)(4) are waived.
____________________________________________
2
Notwithstanding, in highlighting these five points, Appellant fails to
acknowledge that one may be deemed in constructive possession of a
firearm. Hopkins, supra. Officer Lear testified Appellant refused to show
his hands while in the vehicle and reached around the seats and between his
legs. After Appellant fled, Officer Lear located the firearm under the
passenger seat, the area wherein Appellant had been touching. Appellant
also ignores the fact that Appellant later admitted to officers the firearm
belonged to him, while Ms. Berrios denied ownership of it.
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Pa.R.A.P. 1925(b) (emphasis added).
In Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.Super. 1998), our
Supreme Court held that when a trial court directs a defendant to file a
concise statement of matters complained of on appeal, “any issues not
raised in a 1925(b) statement will be waived.” In Commonwealth v.
Dowling, 778 A.2d 683, 686–87 (Pa.Super. 2001), this Court extended
that holding to include vague 1925(b) statements and in doing so held that
“a concise statement which is too vague to allow the court to identify the
issues raised on appeal is the functional equivalent of no concise statement
at all.” Id. Therefore, an appellant waives any issues he attempts to raise in
a Rule 1925(b) statement the vagary of which prevents the trial court from
sufficiently identifying and properly addressing them. This remains true
even if the trial court correctly guesses the issues the appellant wished to
assert on appeal and writes an opinion pursuant to that supposition.
Commonwealth v. Heggins, 809 A.2d 908, 912 (Pa.Super. 2002).
In his concise statement of matters complained of on appeal, Appellant
framed his challenge to the suppression court’s denial of his pretrial motions
as follows:
2. The Trial Court erred in denying [Appellant’s] Motion for a
New Trial because the Trial Court erred by denying [Appellant’s]
Omnibus Pretrial motion to Suppress Evidence and Dismiss
Charges.
Concise Statement of Matters Complained of on Appel Statement Pursuant to
Pa.R.A.P. 1925(b) at ¶ 2. This language does not specify which evidence the
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trial court erred in failing to suppress and which elements of the four
charges offenses were unproven thus justifying the dismissal of those
charges.
In addition, Appellant does not resolve this confusion in his appellate
brief, for he frames his second issue in the statement of questions involved
portion thereof in terms of the same, general language. See Krebs v.
United Refining Co. of Pennsylvania, 893 A.2d 776, 797 (Pa.Super.
2006) (holding that this Court will not consider any issue if it has not been
set forth in or suggested by the statement of questions involved) see also
Pa.R.A.P. 2116(a) (stating that “[n]o question will be considered unless it is
stated in the statement of questions involved or is fairly suggested
thereby”). As such, this issue is arguably waived; however, to the extent a
reading of the Rule 1925(b) statement and the statement of questions
involved in Appellant’s brief in their totality suggest Appellant is challenging
the trial court’s denial of his motion to suppress the firearm obtained as a
result of Officer Lear’s search of Ms. Berrios’ automobile, we will consider the
merits of this claim.
In this regard, Appellant maintains Officer Lear lacked reasonable
suspicion to detain him initially and thereafter conducted an illegal search of
Ms. Berrios’ vehicle and Appellant’s bag. He also asserts that any evidence
Officer Lear obtained from his two cell phones also should be suppressed.
Finally, Appellant avers that any evidence Officers Boyle and Snavely seized
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following their search of his person should be suppressed as fruits of the
poisonous tree.
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is limited to determining
whether the factual findings are supported by the record and
whether the legal conclusions drawn from those facts are
correct.
[W]e may consider only the evidence of the prosecution
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 record supports the findings of the
suppression court, we are bound by those facts and may reverse
only if the court erred in reaching its legal conclusions based
upon the facts.
Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008) (en
banc) (citations, quotations, and quotation marks omitted). This Court has
held that there are three categories of interactions between police officers
and citizens.
The first of these is a “mere encounter” (or request for
information) which need not be supported by any level of
suspicion, but carries no official compulsion to stop or to
respond. The second, an “investigative detention” must be
supported by a reasonable suspicion; it subjects a suspect to a
stop and a period of detention, but does not involve such
coercive conditions as to constitute the functional equivalent of
an arrest. Finally, an arrest or “custodial detention” must be
supported by probable cause.
Commonwealth v. Fleet, 114 A.3d 840, 845 (Pa.Super. 2015) (quotation
omitted).
Appellant maintains Officer Lear lacked reasonable suspicion to detain
Ms. Berrios and him because he did not observe either behave in such a
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manner that would indicate they were involved in criminal activity.” 3 He also
stresses that he did not run when he initially saw Officer Lear, and the latter
did not see him holding a firearm or observe any bulges in Appellant’s
clothing which might suggest he was concealing one when he entered Ms.
Berrios’ car.
It is well-settled that police officers may “detain individuals for a brief
investigation when they possess reasonable suspicion that criminal activity is
afoot.” Commonwealth v. Brown, 996 A.2d 473, 476–477 (Pa. 2010)
(citations omitted). Factors relevant to establishing reasonable suspicion
include the suspect's temporal and spatial proximity to reported criminal
activity, whether the suspect matches the race, clothing, and descriptions of
the person involved in the crime, and whether the suspect acts evasively
upon becoming aware of police presence. In the Interest of D.M., 727
A.2d 556, 558–559 (Pa. 1999). The officer may also conduct a quick frisk for
weapons if he reasonably fears that the person with whom he is dealing may
____________________________________________
3
Our discussion concerns Appellant only as Fourth Amendment rights are
personal rights which may not be vicariously asserted. “Thus, standing to
maintain a motion to suppress [is] sustained only where the search or
seizure sought to be challenged [is] claimed to have violated the defendant's
own Fourth Amendment rights.” Commonwealth v. Sell, 470 A.2d 457,
460 (Pa. 1983).
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be armed and dangerous. Commonwealth v. Cooper, 994 A.2d 589, 592
(Pa.Super. 2010).
Upon a review of the record, we conclude Officer Lear had the requisite
reasonable suspicion to conduct an investigatory detention of Appellant.
While Officer Lear may not have seen Appellant carrying a firearm before he
entered Ms. Berrios’ vehicle, he testified at the suppression hearing that
Appellant matched the description of a man who had been reported
moments prior as pointing a firearm at several individuals and he saw him
emerge from the precise location where the threats had been made and
increase his pace when he noticed a police presence. N.T. Suppression,
8/27/15, at 3-6, 11. In addition, when he noticed Officer Lear, Appellant
“power walk[ed]” away and got into the passenger side of Ms. Berrios’
vehicle, at which time Officer Lear was concerned he had a weapon. Id. at
6, 10, 15. Under these circumstances, it was reasonable for Officer Lear to
suspect Appellant was the individual who had been brandishing a firearm
moments prior and to conduct an investigatory stop. Therefore, we find the
initial stop of Appellant had been lawful.
Next, Appellant argues the search of Ms. Berrios’ vehicle and the book
bag found on the backseat were illegal because she had not voluntarily
consented to it in light of the coercive environment from which the search
resulted. In addition, Appellant posits Ms. Berrios lacked the common
authority to consent to a search of Appellant’s bag.
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This Court has determined that the forcible stop of a vehicle
constitutes an investigative detention such that there must be reasonable
suspicion that illegal activity is occurring. In addition, police are justified in
stopping a vehicle when relying on information transmitted by a valid police
bulletin. Commonwealth v. Cruz, 21 A.3d 1247, 1250 (Pa.Super. 2011).
As state above, Officer Lear possessed the requisite reasonable suspicion to
justify a stop of Appellant based upon the dispatch he had just received.
Next, we must determine whether Appellant established that he had a
reasonable expectation of privacy in Ms. Berrios’ vehicle, for a defendant
who moves to suppress evidence on the basis that a search was illegal has a
preliminary burden of establishing standing and a legitimate expectation of
privacy in the area searched. Commonwealth v. Burton, 973 A.2d 428,
435 (Pa.Super. 2009) (en banc).
Standing requires a defendant to demonstrate one of the
following: (1) his presence on the premises at the time of the
search and seizure; (2) a possessory interest in the evidence
improperly seized; (3) that the offense charged includes as an
essential element the element of possession; or (4) a proprietary
or possessory interest in the searched premises. A defendant
must separately establish a legitimate expectation of privacy in
the area searched or thing seized. Whether defendant has a
legitimate expectation of privacy is a component of the merits
analysis of the suppression motion. The determination whether
defendant has met this burden is made upon evaluation of the
evidence presented by the Commonwealth and the defendant.
With more specific reference to an automobile search, this Court
has explained as follows: generally under Pennsylvania law, a
defendant charged with a possessory offense has automatic
standing to challenge a search. However, in order to prevail, the
defendant, as a preliminary matter, must show that he had a
privacy interest in the area searched.
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Commonwealth v. Maldonado, 14 A.3d 907, 910-11 (Pa.Super. 2011).
see also Commonwealth v. Millner, 888 A.2d 680, 692 (Pa. 2005)
(reiterating that a defendant cannot prevail upon a suppression motion when
he fails to demonstrate that the challenged police conduct violated his own,
personal privacy interests).
Appellant presented no evidence at the suppression hearing that he
owned the vehicle, that it was registered in his name, that he had
permission to use it to store his personal belongings, or that he had a right
to exclude another (i.e. a police officer) therefrom. To the contrary, Officer
Lear testified Ms. Berrios was the owner and operator of the vehicle and
gave him permission to conduct a search thereof. N.T. Suppression,
8/27/14 at 9. Specifically, Ms. Berrios explained she had no knowledge of
what had just transpired. When Officer Lear explained to her why he was
there, Ms. Berrios acquiesced in Officer Lear’s request to search her vehicle
told him to “get whatever’s in there out of there.” Id. at 19. Ms. Berrios
informed Officer Lear that the gun was not hers and that the bag belonged
to Appellant. Id. In addition, Ms. Berrios testified at trial that she was the
sole owner and driver of the car and that only she and her three children
when they were with her had access thereto. N.T. Trial, 2/12/15 at 53-54.
Thus, Appellant had no cognizable expectation of privacy in Ms. Berrios’ car
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and may not challenge the search thereof. Commonwealth v. Cruz, 21
A.3d 1247 (Pa.Super. 2011).
For the reasons set forth, supra, we next conclude Appellant has
waived any claim pertaining to the search of the book bag by failing to
present that claim to the trial court in its 1925(b) concise statement.
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not
raised in a 1925(b) statement will be deemed waived”). see also Com. v.
Newman, 84 A.3d 1072, 1078 (Pa.Super. 2014).4
____________________________________________
4
We note that even if Appellant had properly preserved this argument, it is
clearly meritless. One has no reasonable expectation of privacy in items
which he has abandoned. Commonwealth v. Byrd, 987 A.2d 786(Pa.Super. 2009). In Commonwealth v. Shoatz, 366 A.2d 1216 (1976),
our Supreme Court delineated the test employed to determine whether an
abandonment has occurred:
Abandonment is primarily a question of intent, and intent may
be inferred from words spoken, acts done, and other objective
facts. United States v. Cowan, 2d Cir.1968, 396 F.2d 83, 87.
All relevant circumstances existing at the time of the alleged
abandonment should be considered. United States v.
Manning, 5th Cir.1971, 440 F.2d 1105, 1111. ... The issue is
not abandonment in the strict property-right sense, but whether
the person prejudiced by the search had voluntarily discarded,
left behind, or otherwise relinquished his interest in the property
in question so that he could no longer retain a reasonable
expectation of privacy with regard to it at the time of the search.
United States v. Edwards, supra, 441 F.2d [749] at 753 (5th
Cir.1971) ]; cf. Katz v. United States, 1967, 389 U.S. 347, 88
S.Ct. 507, 19 L.Ed.2d 576. United States v. Colbert, 474 F.2d
174, 176 (5th Cir.1973). Id. 469 Pa. at 553, 366 A.2d at 1220.
Id. at 1220.
(Footnote Continued Next Page)
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Appellant concludes the portion of his argument pertaining to his
second issue with a bald assertion that any evidence obtained from the
officers’ subsequent search of his person should be excluded as the fruit of
the previous illegal search of Ms. Berrios’ car. In light of the foregoing, this
argument also fails. Accordingly, we discern no error by the trial court in
denying Appellant’s suppression motion.
Finally, Appellant challenges the weight of the evidence presented at
trial. Our standard of review of such claims on appeal is extremely limited
and is confined to whether the trial court abused its discretion in finding that
the jury’s verdict did not shock its conscience; thus, our review of a weight
claim consists of a review of the trial court’s exercise of discretion, not a
review of the underlying question of whether the verdict is against the
weight of the evidence. Commonwealth v. Lyons, 79 A.3d 1053, 1067
(Pa. 2013). It is well-settled that the weight of the evidence is a matter
exclusively for the finder of fact, who is free to believe all, part, or none of
the evidence and to determine the credibility of the witnesses.
Commonwealth v. Forbes, 867 A.2d 1268, 1272-73 (Pa.Super. 2005). A
_______________________
(Footnote Continued)
When Appellant fled, he left behind all of the personal items he had
placed in Ms. Berrios’ car, including his book bag which contained $300.00.
In addition, as the trial court noted in its opinion, the cash recovered from
Appellant’s book bag, along with two cellphones and cash found on his
person upon his arrest, was evidence pertaining the offense of PWID, of
which the jury found him not guilty.
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new trial is not warranted because of “a mere conflict in the testimony” and
must have a stronger foundation than a reassessment of the credibility of
witnesses. Commonwealth v. Bruce, 916 A.2d 657, 665 (Pa.Super.
2007). Also, an appellate court will not substitute its judgement for that of
the finder of fact and may not reverse a verdict unless it is so contrary to
the evidence as to shock one’s sense of justice. Forbes, supra at 1273-74.
Appellant’s entire argument pertaining to this issue is his assertion
that “the Berrios’ [sic] had a motive to deny that she placed the firearm
under the passenger’s seat. Specifically, Berrios could have been charged
with the crime of ‘Firearms Not to be Carried Without a License (F3)’ if she
acknowledge [sic] that the firearm was her firearm, and she placed the
firearm under the passenger’s seat of her car.” Brief of Appellant at 17.
Following this two-sentence discussion, Appellant concludes the jury’s
verdict was contrary to the weight of the evidence in that it placed “too
great a weight on Berrios’ testimony.” Brief of Appellant at 17.
Appellant’s underdeveloped claim the jury overly emphasized Ms.
Berrios’ testimony actually challenges the jury’s credibility determinations
which Appellant essentially requests that this Court reassess; we decline to
do so. Moreover, Appellant fails to identify any reason why the trial court
abused its discretion in finding the jury’s verdict did not shock the
conscience. Having reviewed the record, we conclude that the trial court
acted within its discretion by determining that the evidence did not shock its
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J-S27041-16
conscience. For these reasons, the issues Appellant raises herein are devoid
of merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2016
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