Com. v. Poole, D. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DETRICK DARNELL POOLE
Appellant No. 1159 WDA 2016
Appeal from the Judgment of Sentence June 9, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001223-2015
BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 10, 2017
Detrick Darnell Poole appeals from the judgment of sentence,1 entered
in the Court of Common Pleas of Erie County, following the denial of his
post-sentence motion. In 2016, Poole was convicted by a jury of receiving
stolen property (RSP),2 possession of drug paraphernalia,3 possession with
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*
Former Justice specially assigned to the Superior Court.
1
Although Poole filed his notice of appeal from the July 5, 2016 order
denying his post-sentence motions, we have amended the caption to reflect
that the appeal is technically taken from the judgment of sentence. See
Commonwealth v. Chamberlain, 658 A.2d 395 (Pa. Super. 1995) (order
denying post-sentence motion acts to finalize judgment of sentence; thus,
appeal is taken from judgment of sentence, not order denying post-sentence
motion).
2
18 Pa.C.S.§ 3925(A).
3
35 P.S. § 780-113(a)(32).
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intent to deliver4 and simple possession.5 After careful review, we vacate
Poole’s judgment of sentence on the RSP conviction 6 and remand for
resentencing.
The trial court set forth the facts of the case as follows:
The convictions arose from eyewitness testimony that on March
21, 2015, near 10th and Raspberry Streets in Erie, Pennsylvania,
[Poole] was in an altercation outside his upstairs apartment at
1110 Raspberry Street; [Poole] hurriedly entered the residence,
and returned outside brandishing an AK[-]47 rifle; [Poole] fired
numerous shots in the air with the weapon and ran back into the
residence; [Poole] exited the residence once again, this time
without the weapon, got into a vehicle and drove away, heading
north on Raspberry Street.
City of Erie Police were dispatched to the area based upon a call
about a domestic incident, and shots fired in the air. When
Officer James Cousins arrived, he observed approximately one
dozen people standing in the road, very excited and yelling.
They indicated to the officer the shooter had just left the
residence and was headed in a silver vehicle across 11th Street.
The officer quickly looked down 11th [S]treet and spotted a silver
vehicle traveling down the street. The officer proceeded after
the vehicle, activating the lights and sirens on the patrol vehicle.
Initially, [Poole] did not slow his vehicle, and the officer
increased his speed to keep up with [Poole]. When [Poole]
finally pulled over, Officer Cousins conducted a felony stop. He
approached the vehicle with his weapon drawn and ordered
[Poole] to show his hands out the window. Instead of heeding
the officer’s commands, [Poole] opened the door and began to
exit the vehicle. The officer repeatedly ordered [Poole] to
remain in the vehicle and show his hands. Eventually, [Poole]
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4
35 P.S. § 780-113(a)(30).
5
35 P.S. § 780-113(a)(16).
6
All other judgments of sentence on Poole’s remaining convictions are
affirmed.
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complied. Officer Cousins next directed [Poole] to exit the
vehicle and go to the ground. [Poole] refused, and instead re-
entered the vehicle. When [Poole] finally exited the vehicle,
despite further repeated orders, he refused to go to the ground.
Once Officer Cousins enlisted the assistance of a passerby,
[Poole] became more compliant, and he was arrested.
That evening, pursuant to a search warrant, five police officers
entered [Poole’s] residence and conducted a search. The police
found a 9 mm handgun, reported as stolen, [in the drawer of]7
an entertainment center in the residence. An AK[-]47 rifle was
found under the mattress of a child’s bedroom. The police found
powder cocaine and crack cocaine in the residence. Police also
recovered clear sandwich-style plastic bags and a spoon with
white powdery residue on it, and ties for knotting off the bags.
Based upon the quantity of the cocaine recovered from the
residence, and the absence of evidence of means to ingest
cocaine, other than a spoon that was found, the police concluded
the cocaine was possessed with the intent to deliver or sell.
Detective Michael Chodubski, sergeant of the vice and narcotics
division of the City of Erie Police Department and an expert in
determining whether illicit drugs are used for consumption or
delivery, testified to the violent nature of the drug-dealing
business; the practice of drug dealers in using firearms to
protect their proceeds and inventory; and his experience that
firearms and drug-dealing go hand-in-hand.
[Poole’s] mail was found at the residence, indicating [Poole]
lived there. In a recorded telephone conversation between
[Poole] and his mother on March 22, 2015, [Poole]
acknowledged the residence was his. [Poole] also told his
mother, “I got caught with an AK[-]47 and a nine, the nine Hi-
point.”
William Miller identified the 9mm handgun as one of two guns
that were stolen from his vehicle on July 14, 2014, while the
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7
While the trial court’s opinion indicates the 9mm was found “on an
entertainment center,” Trial Court Opinion, 10/31/16, at 2 (emphasis
added), at trial Officer Cheryl Frey testified that she found the gun “in a
drawer that [she] pulled out” in the entertainment center. N.T. Jury Trial,
3/15/16, at 40.
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vehicle was parked outside a convenience store at 10th and
French Streets in the City of Erie.
On July 23, 2015, [Poole] filed an Omnibus Pre-Trial Motion
seeking suppression of evidence seized from the residence at
1110 Raspberry Street, Apartment No. 2, Upstairs, including
crack cocaine and the AK[-]47 Assault Rifle. [Poole] asserted
the search warrant was unconstitutional and overbroad, and the
identity and reliability of the eyewitnesses who provided
information to the police officers was not established. The
parties submitted briefs, and a hearing on the suppression
motion was held before the Honorable Shad Connelly, then
President Judge, in August, 2015. . . . On December 23, 2016,
Judge Connelly denied [Poole’s] Omnibus Pre-Trial Motion to
Suppress Evidence.
Trial Court Opinion, 10/31/16, at 1-4.
A two-day jury trial was held on March 15-16, 2016. At the close of
the Commonwealth’s case, the Commonwealth withdrew Count 1
(possession of a firearm)8 and amended Count 4 (possession of a controlled
substance) to a misdemeanor offense. Poole moved for a judgment of
acquittal on the RSP charge; the court denied the motion. Poole was found
guilty of the above-mentioned crimes and, on June 9, 2016, was sentenced
to an aggregate term of 11½ months to 23 months of incarceration.9 Poole
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8
On January 8, 2016, the Court severed the charge at Count One – Persons
Not to Possess, Use, Manufacture, Control, Sell or Transfer Firearms (9 mm
handgun), from the remaining charges.
9
Poole was sentenced on each count as follows: RSP - count 2 (11½ to 23
months’ incarceration, followed by 5 years of probation); possession with
intent to deliver – count 3 (6 months to 23 months’ incarceration concurrent
to count 2); possession of a controlled substance – count 4 (1 year of
probation consecutive to counts 2 and 3); and possession of drug
paraphernalia – count 5 (1 year of probation, concurrent to count 4).
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filed timely post-sentence motions that were denied on July 5, 2016. This
timely appeal follows, in which he raises the following issues for our
consideration:
(1) Did the Commonwealth present insufficient evidence to
sustain [Poole’s] conviction for receiving stolen property
where the evidence does not establish the element that
[Poole] knew or should have known the 9[mm] was
stolen?10
(2) Did the suppression court err by denying [Poole’s] motion
to suppress the evidence seized at 1110 Raspberry Street,
Apartment 2[,] where the search warrant did not identify
the items to be seized with particularity and where the
accompanying affidavit did not provide probable cause to
conclude that the items would be discovered at that
location?11
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10
The standard of review for a challenge to the sufficiency of the evidence is
de novo, but the scope of review is limited to considering the evidence of
record, and all reasonable inferences arising therefrom, viewed in the light
most favorable to the Commonwealth as the verdict winner.
Commonwealth v. Robinson, 128 A.3d 261 (Pa. Super. 2015) (en banc).
Evidence is sufficient if it can support every element of the crime charged
beyond a reasonable doubt. Id. The trier of fact, while passing upon the
credibility of witnesses and the weight of the proof, is free to believe all,
part, or none of the evidence. Id.11
When reviewing an order denying a motion to suppress evidence, we must
determine whether the trial court’s factual findings are supported by the
evidence of record. If the evidence supports the trial court’s findings, we are
bound by them and may reverse only if the legal conclusions drawn
therefrom are erroneous. Commonwealth v. Blair, 860 A.2d 567, 571
(Pa. Super. 2004).
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Poole first contends that the Commonwealth failed to prove that he
possessed the mens rea for RSP or, namely, that he knew the 9mm handgun
to be stolen or believe that it probably was stolen.
The crime of receiving stolen property is defined as follows:
§ 3925. Receiving stolen property
(a) Offense defined.--A person is guilty of theft if he
intentionally receives, retains, or disposes of movable
property of another knowing that it has been stolen, or
believing that it has probably been stolen, unless the
property is received, retained, or disposed with intent to
restore it to the owner.
18 Pa.C.S. § 3925(a). See Commonwealth v. Young, 35 A.3d 54, 63 (Pa.
Super. 2011) (identifying elements of RSP as: “(1) intentionally acquiring
possession . . . of movable property of another; (2) with knowledge or
belief that it was probably stolen; and (3) intent to deprive
permanently.”) (emphasis added).
A person “knows” that goods are stolen if he is “aware” of the fact.
Commonwealth v. Newton, 994 A.2d 1127 (Pa. Super. 2010). The
Legislature expressly defined the required mental state, under section 3925,
as “knowing” or “believing.” Robinson, 128 A.3d at 265 (citations omitted).
When there is no direct proof that the defendant knew, for a fact, that the
item or good was stolen, the guilty knowledge may be inferred from
circumstantial evidence. Commonwealth v. Pruitt, 951 A.2d 307 (Pa.
2008).
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Circumstantial evidence of guilty knowledge may include: the place
and manner or possession; alterations to the property indicative of theft; the
defendant’s conduct or statements at the time of the arrest (including
attempts to flee apprehension); a false explanation for the possession, the
location of the theft in comparison to where the defendant gained
possession; the value of the property compared to the price paid for it; or
any other evidence connecting the defendant to the crime. Robinson, 128
A.3d at 268. Mere possession of stolen property, without more, however, is
not sufficient circumstantial evidence to support an inference of guilty
knowledge. Commonwealth v. Williams, 362 A.2d 244 (Pa. 1976);
Commonwealth v. Foreman, 797 A.2d 1005 (Pa. Super. 2002).
Here, Poole contends that the Commonwealth did not present any
direct or circumstantial evidence sufficient to show that he knew or believed
the 9mm handgun was stolen.
In the instant case, because the gun was stolen from its owner
approximately eight months before it was discovered in the Raspberry Street
apartment, the recency element for purposes of inferring guilty knowledge
for RSP is lacking. See Commonwealth v. Stover, 436 A.2d 232, 233-34
(Pa. Super. 1981) (possession thirty-seven days after theft of automobile
was not recent); Commonwealth v. Caesar, 369 A.2d 341, 344 (Pa.
Super. 1976) (guilty knowledge would be "conjectural at best" where theft of
automobile occurred four weeks prior).
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Instantly, the trial court concluded the guilty knowledge element of
RSP was proven through the following circumstantial evidence: Poole fled
from the apartment when the police were initially called, requiring them to
conduct a felony traffic stop; Poole’s uncooperative and evasive behavior
when officers attempted to pull his vehicle over on the roadway; Poole’s
failure to follow the officers’ repeated commands when attempting to arrest
him; the 9mm handgun found in the same residence as illegal narcotics and
drug paraphernalia which is indicative of the fact that drug dealers use
weapons to protect drug and drug proceeds; Poole’s conversation with his
mother that “[he had been] caught with an AK[-]47 and a nine, the nine Hi-
point;” and Poole’s lack of explanation for presence of stolen handgun.
First, we note that because the handgun had not been recently stolen
when it was recovered from Poole’s apartment, it was not necessary that
Poole provide an explanation for his possession of the stolen item.
Robinson, supra. Second, merely because Poole told his mother that the
police had caught him with two weapons does not necessarily infer his guilty
knowledge of the stolen nature of the 9mm; his remarks could have been
made in response to the criminal charges (possession of a firearm
(prohibited)) that had been filed against him. See Commonwealth v.
Stevenson, 363 A.2d 1144 (Pa. Super. 1976) (reasonable inference of guilt
must be based on facts and conditions proved; it cannot rest solely on
suspicion or surmise).
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While an “attempt to avoid pursuit, or flight, is some evidence of guilty
knowledge,” Commonwealth v. Brabham, 407 A.2d 424, 427 (Pa. Super.
1979) (citations omitted), here Poole fled from his apartment, after
discharging the AK-47 in the air on the street, before the officers responded
to the scene. Although Poole intentionally evaded the officers as they
attempted to stop his vehicle and repeatedly ignored their commands to
surrender, we cannot say that this behavior infers his guilty knowledge of
the stolen nature of the handgun found back in his apartment. Moreover,
while the stolen item was clearly found in Poole’s residence, it is well
established that possession alone cannot support the mens rea necessary to
prove RSP. Williams, supra; Foreman, supra. Under these
circumstances, we cannot conclude that the Commonwealth provided
sufficient circumstantial evidence to infer Poole’s guilty knowledge that the
9mm handgun was stolen. Robinson, supra. Thus, we vacate Poole’s
judgment of sentence for his RSP conviction.
Poole also asserts that the trial court erred in suppressing the evidence
obtained during a search of the Raspberry Street apartment where the
affidavit “did not identify the items to be seized with particularity and where
the search warrant did not provide probable cause to conclude that the items
would be discovered at that location.” Appellant’s Brief, at 29.
Pennsylvania Rule of Criminal Procedure 205 provides, in part, that a
search warrant “shall be signed by the issuing authority and shall: (1)
specify the date and time of issuance; (2) identify specifically the property to
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be seized; (3) name or describe with particularity the person or place to be
searched; (4) direct that the search be executed either . . . (a) within a
specified period of time, not to exceed 2 days from the time of issuance[;] .
. . [and] (5) direct that the warrant be served in the daytime unless
otherwise authorized on the warrant[.]” Pa.R.Crim.P. 205. Paragraphs (2)
and (3) of Rule 205 are intended to proscribe general or exploratory
searches by requiring that searches be directed only towards the specific
items, persons, or places set forth in the warrant. See Pa.R.Crim.P. 205,
Comment. Such warrants should be read in a common sense fashion and
should not be invalidated by hyper-technical interpretations. Id. Moreover,
a practical, common-sense approach should be taken in determining
whether the place to be searched is specified with sufficient particularity.
Commonwealth v. Korn, 139 A.3d 249, 253 (Pa. Super. 2016), citing
Commonwealth v. Carlisle, 534 A.2d 469 (Pa. 1987).
Here, the search warrant identifies the following items to be searched
for and seized: “Any and all firearms and all other items associated to [sic]
their operation.” Search Warrant and Authorization, 3/21/15. The warrant
describes the premises to be searched as follows:
Address of 1110 Raspberry Street[,] Apartment #2, upstairs.
The door to this multi[-]dwelling building for 1110 Raspberry #2
is on the left side of the house facing Raspberry Street. It has a
glass [window] in the middle of a wooden door, the home is grey
vinyl siding with white trim. It has a front and back staircase.
Id. The accompanying affidavit of probable cause indicates that:
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Poole was seen by several witnesses beating a female at the
corner of 10th and Raspberry at approximately 1930 hours.
Poole was then confronted by a w[hite] m[ale], then ran to the
residence of 1110 Raspberry Street and went inside, Poole came
back outside immediately with a large, semi-automatic weapon,
resembling an AK[-]47 and shot it randomly about 8-12 times[,]
startling all of the neighbors in the area and putting several
neighbors and witnesses in imminent fear of serious bodily
injury. Approximately 20 people were shouting when police
arrived in the area telling us which way the suspect went and the
vehicle description. Defendant was positively identified by 3
witnesses.
Affidavit of Probable Cause, 3/21/15.
Poole contends that nowhere in the affidavit of probable cause does it
mention Apartment #2 of 1110 Raspberry Street or the upstairs apartment,
nothing in the four corners of the affidavit indicates that Pool ran back into
the apartment before he fired the random shots on the street, and that only
unidentified witnesses provided the probable cause to support issuance of
the warrant.
Here, the sources of the information forming the basis of the warrant
were eyewitnesses who first-hand watched Poole beat a female, be
confronted by a male, make threatening statements to that male, run into a
specific apartment, emerge with an assault weapon, and fire the weapon
randomly into the air. Because there is no question that the witnesses
watched Poole carry out these acts, they provided sufficient probable cause
to support the warrant. Commonwealth v. Torres, 764 A.2d 532, 537
(Pa. 2001) (internal citation and quotations omitted) (in considering affidavit
of probable cause, issuing magistrate must apply “totality of the
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circumstances test” which requires her to “make a practical, common-sense
decision whether, given all of the circumstances set forth in the affidavit . . .
including the veracity and basis of knowledge of persons supplying hearsay
information, there is a fair probability that contraband or evidence of a crime
will be found in a particular place.”).
Moreover, the fact that the search warrant generally refers to “any and
all firearms” does not make it so overbroad or non-specific to render it
invalid. Here, where Poole emerged from his apartment with an AK-47,
firing it into the air in the presence of several eyewitnesses, it is reasonable
to believe that Poole was more likely than not in possession of additional
firearms in his home. Additionally, the items to be seized are related to the
crime he was witnessed committing. See Commonwealth v. Gannon, 454
A.2d 561, 565 (Pa. Super. 1982) (“The critical element in a reasonable
search is not that the owner of the property is suspected of [a] crime but
that the specific ‘things’ to be searched for and seized are located on the
property to which entry is sought.”) (citation omitted).
Finally, we conclude that the seizure of drugs from Poole’s apartment
was valid under the plain view doctrine. The drugs were discovered during
the police’s lawful search for firearms and ammunition in accordance with
the search warrant, the incriminating nature of the drugs was readily
apparent and in plain view within the apartment and the officers reasonably
concluded that ammunition or firearms could be hidden under a mattress,
underneath the cushions of a sectional couch, and in the drawer of an
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entertainment center. See Commonwealth v. Anderson, 40 A.3d 1245(Pa. Super. 2012); Commonwealth v. Santiago, 736 A.2d 624, 633 (Pa.
Super. 1999). Thus, we find the trial court did not err in failing to grant
Poole’s motion to suppress. Blair, supra.Judgment of sentence for RSP conviction vacated. Case remanded for
resentencing.12 Jurisdiction relinquished.
Judge Ransom joins the Memorandum.
President Judge Emeritus Stevens files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2017
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12
Commonwealth v. Deshong, 850 A.2d 712 (Pa. Super. 2004) (if
appellate court's disposition alters sentencing scheme of trial court, it must
vacate sentence and remand for resentencing).
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