Com. v. White, S. ( 2018 )

J-S79041-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
Appellee :
:
v. :
:
STEPHEN WHITE :
:
Appellant : No. 239 EDA 2017
Appeal from the Judgment of Sentence August 11, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0002455-2015
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 19, 2018
Appellant, Stephen White, appeals from the judgment of sentence
entered in the Montgomery County Court of Common Pleas, following his jury
trial convictions for one count each of loitering and prowling, conspiracy to
commit loitering and prowling, persons not to possess firearms, and two
counts of receiving stolen property (“RSP”).1 We affirm.
The trial court opinion accurately set forth the relevant facts and
procedural history of this case. Therefore, we have no reason to restate them.
Appellant raises four issues for our review:2
WAS [APPELLANT] PROPERLY PROSECUTED IN
MONTGOMERY COUNTY FOR CRIMES WHICH, IF
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1
18 Pa.C.S.A. §§ 5506; 903; 6105; 3925, respectively.
2
For purposes of disposition, we have reordered some of Appellant’s issues.
J-S79041-17
SUFFICIENTLY SUPPORTED BY RELIABLE EVIDENCE, TOOK
PLACE IN PHILADELPHIA COUNTY? WAS THERE AN “OVERT
ACT” AS DISCUSSED IN [COMMONWEALTH V. MCPHAIL,
547 PA. 519, 692 A.2D 139 (1997) (PLURALITY)] THAT
TOOK PLACE IN MONTGOMERY COUNTY THAT WOULD
SUPPORT THE TRIAL COURT’S VENUE AND JURISDICTION?
DID THE TRIAL COURT ERR WHEN IT FAILED TO SUPPRESS
EVIDENCE OBTAINED AS THE RESULT OF WARRANTS FOR
TWO SEPARATE RESIDENCES IN PHILADELPHIA AND THEN
AGAIN WHEN SAID EVIDENCE WAS ADMITTED DURING THE
TRIAL IN THIS CASE? DID THE POLICE OVERREACH BY
SEEKING ANY POSSIBLE LOCATION WHERE [APPELLANT]
MIGHT HAVE RESIDED IN THE PAST, LEAVING THE
WARRANTS TO LACK A SUFFICIENT NEXUS BETWEEN THE
ALLEGED CRIMES AND THE LOCATION TO BE SEARCHED AS
WELL AS LACKING PROBABLE CAUSE? WERE THE
WARRANTS OVERBROAD AND FAILING TO STATE WITH
PARTICULARITY THE ITEMS TO BE SEIZED? WERE THE
WARRANTS BASED UPON AN UNLAWFUL AND
WARRANTLESS DETENTION OF [APPELLANT] AND
SUBSEQUENT INVESTIGATION OF HIM?
WAS THERE SUFFICIENT EVIDENCE TO SUPPORT A
CONVICTION OF [APPELLANT] FOR EITHER POSSESSION
OF A STOLEN WEAPON, A RING[,] OR OF BEING A PERSON
NOT TO POSSESS THAT WEAPON?
DID THE TRIAL COURT ERR IN SENTENCING [APPELLANT]
TO CONSECUTIVE TERMS OF INCARCERATION FOR CRIMES
FOR WHICH THE ELEMENTS ARE NEARLY IDENTICAL.
SPECIFICALLY, [APPELLANT] WAS SENTENCED FOR BOTH
POSSESSING A STOLEN FIREARM AND FOR BEING A
PERSON NOT TO POSSESS THAT SAME FIREARM?
(Appellant’s Brief at 5-6).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Steven T.
O’Neill, we conclude Appellant’s issues merit no relief. The trial court opinion
comprehensively discusses and properly disposes of the questions presented.
-2-
J-S79041-17
(See Trial Court Opinion, filed April 19, 2017, at 7-17) (finding: (1)
Pennsylvania Courts of Common Pleas have subject matter jurisdiction over
violations of Crimes Code; court in which Appellant was tried is Court of
Common Pleas, so it had jurisdiction over all charges against Appellant; under
Pa.R.Crim.P. 130(A)(3), when charges arising from same criminal episode
occur in more than one judicial district, criminal proceeding on all charges may
be brought before one issuing authority in magisterial district within any of
judicial districts in which charges arising from same criminal episode occurred;
by letter of March 31, 2015, Philadelphia County District Attorney’s office sent
McPhail letter3 to Montgomery County District Attorney’s office agreeing to
let Montgomery County prosecute charges of RSP and persons not to possess
firearm (which occurred in Philadelphia County); Appellant did not challenge
at any time before trial ability of Montgomery County to prosecute charges
related to property recovered from his Philadelphia apartment;4 further, fact
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3
In McPhail, a plurality of our Supreme Court held that all charges stemming
from a single criminal episode must be heard in a single trial, even where
some of the charges arose in more than one judicial district. See McPhail,
supra at 530, 692 A.2d at 145. To implement the holding in McPhail, Rule
130 was added to the Pennsylvania Rules of Criminal Procedure. McPhail was
later superseded by statute. Nevertheless, district attorney’s offices still use
the term “McPhail letter” when discussing the transfer of cases involving a
continuing criminal episode spanning different counties.
4
Appellant insists his issue is a non-waivable jurisdictional challenge.
Appellant’s claim, however, actually attacks the venue of the court. See
McPhail, supra at 529, 692 A.2d at 144 (stating: “[T]he place of trial,
whether within or without the county where the alleged crime occurred, is a
-3-
J-S79041-17
that jury was deadlocked on burglary charge arising out of Montgomery
County does not somehow invalidate proper transfer which took place in this
case; because Philadelphia and Montgomery counties agreed to prosecute all
charges against Appellant in Montgomery County, venue and jurisdiction in
Montgomery County was proper, and Appellant’s claim lacks merit; (2) police
established burglary detail due to multiple burglaries which occurred in
Montgomery County; Detective Sergeant Fink testified that during burglary
detail on March 21, 2015, Officer Bullock observed Appellant and his cohort
drive slowly around high-end neighborhoods at night; when Officer Bullock
ran tag on car, there was no record of registration; Detective Sergeant Fink
joined in surveillance and twice observed Appellant exit vehicle and approach
houses; Detective Sergeant Fink saw Appellant “creeping” around one home
and crouching to look into window; based on his training and experience,
Detective Sergeant Fink believed Appellant and his cohort were casing homes
to burglarize, which gave police reasonable suspicion to stop vehicle; once
police stopped vehicle, Detective Sergeant Fink observed, in plain view, ladder
____________________________________________
matter of venue, not jurisdiction”; unlike subject matter jurisdiction, venue is
waivable if not properly preserved). Appellant raised this issue for the first
time at the hearing on his post-sentence motion. Appellant’s failure to object
to venue at the appropriate stage of the proceedings constitutes waiver of his
claim on appeal. See generally Pa.R.Crim.P. 578 (stating motion for change
of venue should be raised in omnibus pre-trial motion at “earliest feasible”
time); Commonwealth v. Strunk, 953 A.2d 577 (Pa.Super. 2008) (stating
party’s failure to raise error and request remedy at appropriate stage of
proceedings constitutes waiver on appeal; party may not remain silent and
later complain of matters which, if erroneous, court could have corrected).
-4-
J-S79041-17
matching description of ladder contained in intelligence bulletin regarding
February 7, 2015 burglary, as well as multiple cell phones, gloves, and
screwdrivers, which are commonly used in burglaries; officers had probable
cause to arrest Appellant for loitering and prowling; affidavits of probable
cause issued for search warrants of Appellant’s homes outlined Detective
Sergeant Fink’s training and experience, Appellant’s criminal history, and
contained extensive detail regarding recent Montgomery County burglaries,
as well as facts which led to instant charges; affidavits also indicated that at
time of Appellant’s arrest, he had Pennsylvania driver’s license and parole card
with address on 10th Street in Philadelphia; further investigation revealed
Appellant was registered with Department of Human Services with address on
Haverford Avenue in Philadelphia; PennDot records indicated Appellant had
car registered to Haverford Avenue address; there was sufficient probable
cause to believe items stolen in Montgomery County burglaries would be found
in any one of these residences; warrants for Appellant’s Philadelphia addresses
were not overly broad and stated specifically that police sought: proof of
residence, Beretta 9-mm handgun, and assorted jewelry; police ultimately
recovered from Appellant’s residence ring and gun stolen in February 7, 2015
burglary; court properly denied motion to suppress;5 (3) totality of
____________________________________________
5
We depart only from the trial court’s statement on page nine that Appellant
waived his challenge to the admissibility at trial of the search warrants and
property recovered during execution of those warrants. Appellant preserved
-5-
J-S79041-17
circumstances showed Appellant had constructive possession of firearm; mail,
phone records, expired driver’s license, and testimony from Appellant’s
girlfriend tied Appellant to location where police recovered stolen gun; in
bifurcated portion of trial following jury’s verdict on other charges, parties
stipulated Appellant was person not to possess firearms due to prior burglary
conviction; evidence was sufficient to sustain Appellant’s convictions for RSP
(firearm) and persons not to possess firearms;6 (4) as presented, Appellant’s
challenge to imposition of consecutive sentences does not raise substantial
question; moreover, sentence was not “clearly unreasonable”; in light of
Appellant’s extensive criminal history, aggregate sentence of 9 to 20 years’
imprisonment is wholly appropriate; court considered Appellant’s extensive
____________________________________________
his evidentiary challenge by filing a pre-trial motion to suppress, so he did not
need to object to admission of the evidence again at trial. See Pa.R.Crim.P.
581(J) (stating: “If the court determines that the evidence shall not be
suppressed, such determination shall be final, conclusive, and binding at trial,
except upon a showing of evidence which was theretofore unavailable, but
nothing herein shall prevent a defendant from opposing such evidence at trial
upon any ground except its admissibility”); Commonwealth v. Walker, 477
Pa. 370, 383 A.2d 1253 (1978) (explaining objection at trial to evidence which
court already ruled was admissible in pre-trial suppression proceeding would
constitute “useless act”; appellant did not waive challenge to admissibility of
evidence at trial where he challenged admissibility of that evidence in pre-trial
suppression motion). In any event, because the court properly denied
Appellant’s suppression motion, admission of the evidence at trial was proper.
6
To the extent Appellant challenges the sufficiency of the evidence to sustain
any other convictions in this case, he waived those complaints for failure to
raise them in his Rule 1925(b) statement. See Commonwealth v. Castillo,
585 Pa. 395, 888 A.2d 775 (2005) (holding as general rule that issues not
raised in Rule 1925(b) statement are waived on appeal).
-6-
J-S79041-17
criminal history, which included numerous crimes against persons, when court
fashioned sentence that protected community from Appellant’s recidivist
behavior; Appellant’s firearm offenses are serious and pose danger to
community; harms sought to be remedied by Appellant’s RSP (firearm) and
persons not to possess offenses are different, so court imposed consecutive
terms of imprisonment for those crimes; additionally, court imposed
concurrent sentences for Appellant’s remaining convictions; court did not
abuse its discretion in sentencing Appellant7). Accordingly, we affirm on the
basis of the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2018
____________________________________________
7
Appellant’s remaining sentencing claims on appeal are waived for failure to
preserve them in his Rule 1925(b) statement. See id.
-7-
Circulated 01/05/2018 01:02 PM
IN THE COURT OF COMMON PLEAS OF MONTGOMERY <586fiT.i:,;-.
PENNSYLVANIA
CRIMINAL DMSION 20!7 AF'f{ i 9 PM 2: 57
COMMONWEALTH OF PENNSYLVANIA NO. 2455-15
v.
....,\
�: STEPHEN RODNEY WHITE
If"\'
.....�
OPINION
O'NEILL, J. April If, 2017
The Defendant, Stephen Rodney White appeals from the judgement of
sentence entered on August 11, 2016. For the reasons set forth below, the
judgement of sentence should be affirmed.
I. Facts and Procedural History
On February 7, 2015, the home at 1277 Burnett Road, Huntingdon
Valley, Lower Mo�elan�1_Montgomery County was burglarized. The
homeowners returned to their home that evening to find that the upstairs had
been ransacked and jewelry, watches, $2,800 cash, and a 9-millimeter Beretta,
serial number J24532Z, were taken. (N.T. May 24, 2016 at 50; 55). The home
was entered through the upstairs master bathroom window. Id. at 58; 78. On
the ground outside the window, police found a spider web like ladder footprint
in the snow. Id. at 80. Sneaker prints and Timberland boot prints were also
found at the scene, indicating there were two perpetrators. There were
footprints that matched the sneaker print in the master bathroom. Id. at 96.
The window was pried open with a pry bar or screw driver. Id. at 97 .
... , ... _
As a result of this burglary and other burglaries that occurred in Lower
Moreland and Abington Townships, Montgomery County, during the months of
February and March 2015, Detective Sergeant Stephen Fink of the Abington
Police Department was assigned to head a burglary task force. Prior to
commencing surveillance, Det. Sgt. Fink reviewed an intelligence bulletin put
"'� out by the Lower Moreland Police Department. (Commonwealth's Exhibit 122
("C-122"); N.T. May 24, 2016 at 147). The bulletin outlined the February 7,
2015 burglary and contained pictures· of the two sets of shoe prints and ladder
print found at 1277 Burnett Road on February 7, 2015. Id. at 147-150.
On March 21, 2015, the taskforce was conducting surveillance in the
residential areas adjacent to Huntingdon Pike for the 11th night in a row. Det,
Sgt. Fink positioned plainclothes officers throughout the residential areas
adjacent to Huntingdon Pike, which runs through both Lower Moreland and
Abington and is in close proximity to Burnett Road. Id. at 151-152.
At approximately 8:30 p.m., Officer Dan Bullock observed a white Buick SUV
turn off of Moredon Road into a small cul-de-sac containing high end homes,
drive around the cul-de-sac, and return to Moredon Road and continue in the
same direction of travel. Id. at 152. Officer Bullock ran the license plate on
the vehicle and found that there was no registered owner. Id. The vehicle
began to travel toward Det. Sgt. Fink's location. Id. at 153. Officer Bullock
advised Det. Sgt. Fink that he believed there was one person in the vehicle. Id.
Officer Bullock followed the vehicle down Moredon Road and made a left on
Pine Road, at which time Det. Sgt. Fink pulled in behind Officer Bullock Id.
2
All three vehicles approached a red light at the intersection of Pine and Welsh
Road. Id. at 154. Officer Bullock entered the right turn lane and pulled up
next to the passenger side of the vehicle at which time he radioed to Det. Sgt.
Fink that there was only o:he person in the car, the driver, who was later
identified· as Brian Bosket. Id. Det. Sgt. Fink continued to follow the vehicle
into another residential neighborhood. Id. at 155.
The vehicle ultimately turned onto Bonnie Lane at which time Det. Sgt.
Fink positioned himself at the top of the street. Id. at 155-156, 158. Det. Sgt.
Fink observed the vehicle driving very slowly, approximately five miles per
hour, down Bonnie Lane. Id. The car stopped at the curve in Bonnie Lane and
Det. Sgt. Fink observed a person, later identified as the Defendant, exit the
passenger side of the vehicle. Id. at 159. Det. Sgt. Fink observed the
Defendant go across the front of the house at 2611 Bonnie Lane and up the
driveway on the right side of the house. Id. at 160. Det. Sgt. Fink radioed the
other officers on the detail and exited his vehicle. Id. at 161. Det. Sgt. Fink
approached on foot in attempt to observe the Defendant. Id. Det. Sgt. Fink
briefly lost sight of him and then observed him coming back down the driveway
and returning to the Buick. Id. The house was dark and there were no cars in
the driveway. Id. at 162.
The Buick then continued to inch down Bonnie Lane and stopped in-
front of 2635 Bonnie Lane, which was also dark. Id. Again, the Defendant
exited the passenger side of the vehicle and went up the driveway. Id. at 163.
Det. Sgt. Fink was still on foot and was able to get within about two houses of
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3
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2635 Bonnie Lane. Id. He observed the Defendant crouching in a row of
hedges at the front of the home looking in the windows. Id. at 164, 173. The
Defendant did not ring the doorbell or knock on the door. Id. Again the
Defendant returned to the Buick. Id. at 17 4.
At this point Det. Sgt. Fink returned to his car and radioed other officers.
Id. at 175. The Buick left Bonnie Lane and continued slowly through the
residential area, eventually turning onto Sunflower Way, which was the only
point of egress from the neighborhood. Id. at 175-1 76. The Buick again drove
very slowly and stopped at Morning Glory Way and Sunflower Way. Id. at 176.
All four plainclothes officers had joined Det. Sgt. Fink at this time. The car
remained stopped for a minute or two and then began driving at a normal rate
of speed. Id. at 1 77. At this point Det. Sgt. Fink radioed uniformed Lower
Moreland officers and asked them to initiate a traffic stop. Id.
Det. Sgt. Fink arrived at the scene of the traffic stop, at which time he
observed, in plain view, a ladder matching the description of the ladder in the
intelligence bulletin in the third row seating of the Buick. Id. at 179. Det. Sgt.
Fink also saw multiple cell phones and gloves in plain view in the center
console of the vehicle. Id. at 180. At this point, the Defendant and the driver
of the Buick, Brian Bosket, were taken into custody. Id.
On March 22, 2015, Det. Sgt. Fink prepared search warrants for the
Defendant's known addresses, as well as the home address of Brian Bosket.
Id. at 182. Investigation revealed that the Defendant had a vehicle registered
in his name with an address of 7212 Haverford Avenue, Apt. B-4, Philadelphia,
··----------·--··-·-····-·--
4
PA. Id. at 183. During the execution of the search warrant at the Haverford
Avenue apartment, law enforcement recovered mail addressed to the
Defendant, an expired driver's license bearing the Defendant's name and
Haverford Avenue address, Nike Air Force One sneakers, Timberland boots, a
gold diamond ring, and a Beretta 9-millimeter handgun, serial number
·�,11 J24532Z. Id. 188-197. The Beretta and the diamond ring were taken from the
home at 1277 Burnett Road on February 7, 2015.
Search warrants were also executed on the Buick and the cell phones
found in the center console. In addition to the ladder and cell phones, a ski
mask, two pairs of gloves, two screw drivers, a knife, Nike Air Max sneakers, a
license plate, dog mace, and a flashlight were recovered from the vehicle. Id. at
211; C-130.
Following a four dayjury trial, the Defendant was convicted of Loitering
and Prowling at Nighttime1, Conspiracy to Loitering and Prowling at Nighttimes,
Receiving Stolen Property3, and, following a bifurcated trial, Person Not to
Possess a Firearm. 4 The jury deadlocked on the charges of Burglary>, Theft By
Unlawful Takings and Criminal Trespass.?
On August 11, 2016, the Defendant was sentenced to an aggregate term
of nine (9) to twenty (20) years' incarceration in a state correctional institution.
1
18 Pa. C.S.A. § 5506.
2 18 Pa. C,S.A. § 903(a)(l).
3 18 Pa. C.S.A. § 3925(a).
4 18 Pa. C.S.A. § 6105 (a}.
5
18 Pa. C.S.A. § 3502(a)(2).
6 18 Pa. C.S.A. § 392l(a).
7 18 Pa. C.S.A. § 3503(a)(l)(ii).
·----··-
5
On August 22, 2016, the Defendant filed a timely post-sentence motion.
Following a hearing on November 29, 2016, this Court denied the motion by
Order of December 16, 2016. This appeal followed. By Order of January 9,
2017, the Court directed the Defendant to produce a statement of matters
complained of on appeal, pursuant to Pa.R.A.P. 1925(b). The Defendant has
"'1 since complied with that directive.
II. Issues
The Defendant raises the following issues in his concise statement,
renumbered in the order in which they will be addressed:
1. Defendant was prosecuted for crimes in Montgomery County
which, if supported by reliable evidence, took place in Philadelphia
County. Although a request was sent in accordance with
Commonwealth v. McPhail, 69;2 A.2d 139 (Pa. 1997), the letter
specifically stated that said prosecution was to be used in a
Montgomery County investigation into Montgomery County
burglaries. The jury in this matter was unable to reach a verdict
on the burglary charges and only found Defendant guilty of
misdemeanor charges of Loitering and Conspiracy to loiter for
actions within Montgomery County and therefore no "overt act" as
discussed in McPhail took place in Montgomery County that would
support the trial court's venue and jurisdiction.
2. The Trial court erred when it failed to first suppress evidence
obtained as the result of warrants for two separate residences in
Philadelphia and then again when the Trial Court admitted said
evidence during the trial in this case. The warrants were based
upon allegations of loitering in Montgomery County and the
Defendant, upon detention for those allegations, provided two
forms of proper identification for his actual residence. The police
overreached by seeking any possible locations where the Defendant
might have resided in the past and the warrants thus lacked a
sufficient nexus between the alleged crimes and the location to be
searched and also lack· probable cause. The warrants were
overbroad and failed to state with particularity the items to be
seized. The warrants were based upon an unlawful and
warrantless detention of the · Defendant and subsequent
investigation of him;
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6
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3. Absent the evidence gained in reliance of [sic] the improper
warrants, there was no evidence sufficient to support a conviction
of the Defendant for either possession of a stolen weapon or being
a person not to possess that weapon.
4. The Trial Court erred in sentencing Defendant to cons.ecutive terms
of incarceration for crimes for which the elements are nearly
identical. Specifically, the Defendant was sentenced for both
possessing a stolen firearm and for being a person not to possess
that same firearm. While the imposed sentence is a legal sentence,
the punitive nature of the consecutive sentences as a whole is an
abuse of discretion, particularly when the firearm was never found
in the Defendant's actual possession.
III. Discussion
1. All of the charges against the Defendant were properly tried in
Montgomery County.
Defendant's first claim is that the jury's inability to reach a verdict on
Burglary and Theft By Unlawful taking while finding him guilty of Receiving
Stolen Property based on the recovery of property from a Philadelphia address,
somehow divested this Court of jurisdiction over these charges and rendered
Montgomery County the inappropriate venue. This claim is wholly illogical and
without merit and, therefore, must fail.
All courts of common pleas have subject matter jurisdiction over
violations of the Crimes Code. See, Commonwealth v. Bethea, 828 A.2d 1066,
1074-75 (Pa. 2003). "Subject matter jurisdiction and venue. are distinct.
However, since jurisdiction references the power of a court to entertain and
adjudicate a matter while venue pertains to the locality most convenient to the
proper disposition of a matter, venue can only be proper where jurisdiction
already exists." Id. (citation omitted). The terms are often loosely used
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7
interchangeably because they must both exist for a court to exercise its power.
Id. Clearly, as a Court of Common Pleas, this Court had jurisdiction over all of
the charges against the Defendant.
Pursuant to the Rules of Criminal Procedure regarding venue, "[w]hen
charges arising from the same criminal episode occur in more than one judicial
district, the criminal proceeding on all the charges may be brought before one
issuing authority in a magisterial district within any of the judicial districts in
which the charges arising from the same criminal episode occurred." Pa. R.
Crim. P. 130 (A)(3). As conceded by the Defendant, by letter of March 31,
2015, an Assistant District Attorney in the Philadelphia District Attorney's
Office sent a letter to Montgomery County agreeing, pursuant to McPhail, 54 7
Pa. 519 and Pa. R. Crim. P. 130, to let Montgomery County assume jurisdiction
over the charges of Theft by Receiving Stolen Property and Possession of a
Firearm. The fact that the jury in the instant case hung on the charge of
Burglary cannot somehow render the proper transfer of a case invalid. This
court is aware of no authority, and the Defendant has cited none, that would
support this proposition. Furthermore, at no time prior to his trial did the
Defendant challenge the ability of Montgomery County to prosecute the charges
related to the property recovered from his Philadelphia apartment. Therefore,
because Philadelphia and Montgomery County entered into an agreement to
prosecute all charges in Montgomery County, the venue and jurisdiction of this
Court was proper and this claim is devoid of merit.
8
2. This Court did not err in denying the Defendant's Motion to
Suppress.
The Defendant's next contention contains several challenges to this Court's
denial of his motion to suppress evidence obtained as a result of the search
warrants executed on his residences.s 'Specifically, the Defendant asserts that
he was unlawfully detained; therefore, the search warrants that were
subsequently obtained for his.residences were improper and not supported by
probable cause. Additionally, he asserts that the warrants were overbroad and
that there was not an established nexus between the crimes and the properties
to be searched. The Defendant also claims that the admission at trial of the
evidence obtained through the challenged warrants was error.. Counsel did not
object when either the search warrants or the ring and firearm were admitted
into evidence, therefore, he cannot raise this claim for the first time on appeal.
(N.T. May 24, 2016 at 63, 65, and 186). The motion to suppress was properly
denied, therefore, this claim must fail.
The standard of review for the denial of a suppression motion is well settled.
The Pennsylvania Supreme Court has stated:
In reviewing a trial court's suppression ruling, our initial task is to
determine whether the factual findings are supported by the
record. In making this determination, we must consider only the
evidence of the prosecution's witnesses, and so much evidence of
the defense that remains uncontradicted when fairly read in the
context of the record. as a whole.. When the evidence supports the
factual findings, we are bound by such findings; we may reverse
only if the legal conclusions drawn therefrom are erroneous.
s The Court notes that nothing of evidentiary value was found as a result of the search
of 5121 N. 1 Qth Street.
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9
Commonwealth v. Wituszynski, 784 A.2d 1284, 1285 (Pa. 2001)(citing
Commonwealth v. Bridges, 757 A.2d 859, 868 (Pa. 2000) (quoting
Commonwealth v. Williams, 650 A.2d 420, 425-26 (Pa. 1994)).
First, the Defendant was lawfully detained. It is well settled that there
are three categories of police-citizen interactions.
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. Ranson, 103 A.3d 73, 76-77 (Pa. Super. 2014), reargument
denied (Dec. 16, 2014), appeal denied, 117 A.3d 296 (Pa. 2015) (citations
omitted). Furthermore,
[ a] police officer may detain an individual in order to conduct an
investigation if that officer reasonably suspects that the individual
is engaging in criminal conduct. This standard, less stringent than
probable cause, is commonly known as reasonable suspicion. In
order to determine whether "the police officer had reasonable
suspicion, the totality of the circumstances must be considered. In
making this determination, we must give due weight to the specific
reasonable inferences the police officer is entitled to draw from the
facts in light of· his . experience. Also, the totality of the
circumstances test does not limit our inquiry to an examination of
only those facts that clearly indicate criminal conduct. Rather,
even a combination of "innocent facts, when taken together, may
warrant further investigation by the police officer.
Id. at 77. (citations omitted).
10
Det. Sgt. Fink testified that while out on a burglary detail? Officer
Bullock observed the Defendant, in a vehicle driven by Brian Bosket, drive
slowly around high end- neighborhoods at night. N.T. Feb. 29; 2016 at 32.
When Officer Bullockran the tag on the car, there was no record found. Id.
Detective Sergeant Fink joined in surveillance and, twice, Fink observed the
Defendant get out of the car and approach houses on Bonnie Lane; the
Defendant returned to the vehicle both times. Id. at 39-46. At 2635 Bonnie
Lane, Det. Sgt. Fink observed the Defendant "creeping" around the house and
crouching to look in the window of the home. Id. at 45. Det. Sgt. Fink then
followed the Buick to another residential street with high end homes, where,
again, the Buick drove very slowly. Id. at 48.
Based on his training and experience, and his observations, Det. Sgt.
Fink believed that the Defendant and his companion were casing homes in
order to find a home to burglarize. Id. Therefore, "knowing that [he] observed
loitering and prowling at nighttime and [he] believed they were attempting to
break into homes,'' he ordered a traffic stop when the car began to leave the
area. Id. at 51. The court found that, based on the totality of the
circumstances, there was reasonable suspicion to stop the vehicle. Id. at 175.
Once the vehicle was stopped, Det. Sgt. Fink observed, in plain view, a ladder
matching the description of the ladder contained in the intelligence bulletin
regarding the February 7, 2015 burglary at 1277 Burnett Road as well as what
9 There was testimony that there were four burglaries prior to March 21, 2015, that
law enforcement believed were· related and resulted in the creation of a burglary detail.
N.T. Feb. 29, 2016 at 18. However, the Defendant was only charged with one
completed burglary.
11
he recognized as common tools used by burglars, specifically, multiple cell
phones, gloves and screw drivers. Id. at 53-56. At this point, officers had
probable cause to arrest the Defendant for loitering and prowling. Id. at 175-
177.
Second, the warrants for the Defendant's residence were properly issued.
It is well settled that probable cause for the issuance of a search warrant exists
when the facts and circumstances set forth in the affidavit are sufficient to lead
to a reasonable belief that evidence of a crime will be found as a result of the
search to be authorized by the warrant. Furthermore, an "[a]ffidavit for a
search warrant is to be tested by [the Superior Court] with common sense and
a realistic manner, and not subjected to overly technical interpretations; the
magistrate's determination of probable cause is to be accorded great deference
on review." Commonwealth v. Vergotz, 616 A.2d 1379, 1382 (Pa. Super. 1992)
(citations omitted).
The affidavits of probable cause clearly outline the training and
experience of the investigating officer, Det. Sgt. Fink, including his knowledge
regarding how burglaries are committed and what tools are used, what is
commonly taken, and where stolen property is commonly found. The affidavits
outline the criminal history of the Defendant. Additionally, the affidavits
contain extensive detail regarding the investigation involving burglaries that
occurred during this time period, as well as the facts outlined above that led to
the instant charges. Finally, the affidavits outline that at the time of his arrest,
the Defendant had a Pennsylvania Driver's License and a Parole Card with an
12
address of 5121 N. 10th Street, Philadelphia, PA. Further investigation revealed
that Defendant was actively registered with the PA Department of Human
\ Services at 7212 Haverford Avenue, Apartment B-4, Philadelphia, PA.
f'I�
�, Additionally, PENNDOT records indicated that the Defendant had a car
"\...
11'1�
� registered in his name at that location. Therefore, there was sufficient
II<•!',
"J probable cause to believe that the items searched for would be found in one of
these residences.
Furthermore, the warrants for both 5121 N. 10th Street, Philadelphia, Pa.
and 7212 Haverford Avenue, Apartment B-4, Philadelphia, Pa. are not
overbroad and state specifically that the following items were to be searched for
and seized: proof of residence, Beretta 9-mm semi-automatic handgun, serial
number J24532Z, assorted jewelry such as earrings, bracelets, mens'. watches,
diamond, gold rings, etc. (CS-20; CS:.-30). As outlined above, inter alia, the
handgun and a ring were recovered as a result of the search of Haverford
Avenue. Based on the foregoing, the Defendant's motion to suppress was
properly denied.
3. Sufficiency of the Evidence
Because the Defendant's motion to suppress was properly denied, the
evidence was sufficient to support the Defendant's convictions for Receiving
Stolen Property and Person not to Possess. The Defendant was also convicted
of Receiving Stolen Property for the diamond ring that was stolen from 1277
Burnett Rd., however, he does not appear to be challenging his conviction on
that count.
13
In reviewing the sufficiency of the evidence, we are required to view the
evidence, and all permissible inferences to be drawn therefrom, in the light
most favorable to the Commonwealth, as verdict winner. The test is whether,
taking as true the evidence most favorable to the Commonwealth, together with
all reasonable inferences therefrom, the evidence is sufficient to prove
� appellant's guilt beyond a reasonable doubt. Commonwealth v. Ruffin, 463
A.2d 1117, 1118-19 (Pa. Super. 1983).(citations omitted).
A person commits the crime of Theft by Receiving Stolen Property 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 ..
. As used in this section the word "receiving" means acquiring possession,
control or title .... " 18 Pa. C.S.A. § 3925. The Commonwealth was not required
to prove actual possession of the stolen property. '"In order to prove that a
defendant had constructive possession of a prohibited item, the
Commonwealth must establish that the defendant had both the ability to
. .
consciously exercise control over it as well as the intent to exercise such
control."' Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa. Super. 2013)
(quoting Commonwealth v. Gutierrez, 969 A.2d 584, 590 (Pa.Super.2009)). '"An
intent to maintain a conscious dominion may be inferred from the totality of
the circumstances, and circumstantial evidence may be used to establish a
defendant's possession of drugs or contraband." Id.
Instantly, the totality of the circumstances indicated that the Defendant
had constructive possession of the firearm. Mail, phone records, an expired
-------------·-··-· .. ·--·····-------·-·-···-· .. ·-·· ··------··· ..... -·--···-·•"" _
14
driver's license, and his girlfriend's testimony'? all tied him to the location in
which the stolen gun was found. In the bifurcated portion of his trial, following
the jury's specific
. finding that the Defendant possessed .the gun, the parties
stipulated that the Defendant was a person not to possess, pursuant to 18 Pa.
C.S.A. § 6105 (a), because of a prior conviction for burglary. N.T. May 27, 2016
at 46. Therefore, the evidence was sufficient to sustain his convictions for
receiving stolen property and person not to possess.
4. Discretionary Aspect of Sentencing
The Defendant's final claim is a challenge to the discretionary aspects of
his sentence. It is well settled under Pennsylvania law that,
[s]entencing is a matter vested in
the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context) an abuse of
discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored. or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006) (citation
omitted).
Th�re is no absolute rightto appeal the discretionary aspects of a
sentence) rather a Defendant may petition for an allowance of appeal. 42 Pa.
C.S.A. § 9781 (b). An allowance of appeal will only be granted by the Superior
Court where a substantial question exists regarding the propriety of the
sentence. Id. The existence of a substantial question is determined on a case
by case basis. A substantial question exists "only when the appellant advances
10 N.T. May 25, 2016 at 39-44, 51.
15
a colorable argument that the sentencing judge's actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or (2) contrary to
the fundamental norms which underlie the sentencing process."
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013), appeal denied,
76 A.3d 538 (Pa. 2013) (citations omitted).
A court's imposition of consecutive sentences presents a substantial
question in only "the most extreme circumstances, such as where the aggregate
sentence is unduly harsh, considering the nature of the crimes and the length
.of imprisonment." Commonwealth v. Swope, 2015 Pa. Super. 196, 123 A.3d
333, 338-39 (2015) (quoting Commonwealth v. Lamonda, 52 A.3d 365, 372
(Pa.Super.2012), appeal denied, 621 Pa. 677, 75 A.3d 1281 (2013)). A bald
claim of excessiveness based on consecutive nature of a sentence does not
raise a substantial question. Commonwealth v. Dodge, 77 A.3d 1263, 1270
(Pa.Super.2013), reargument denied (Nov. 21, 2013), appeal denied, 625 Pa.
648, 91 A.3d 161 (2014) ("Dodge III"). In order to preserve a claim challenging
the discretionary aspects of a sentence, the Defendant must raise the issue in a
post sentence motion. Commonwealth v. Lamonda, 52 A.3d 365, 370 (Pa.
Super. 2012). The Defendant has preserved his claim; however, this Court
submits that he has not raised a substantial question regarding the propriety
of his sentence. Even if his challenge to the consecutive imposition of sentence
-----------· ··-------·· .....
16
does raise a substantial question, the sentence is not "clearly unreasonable." 11
In light of the Defendant's extensive criminal history, the aggregate sentence of
9-20 years is wholly appropriate.
The Court considered the Defendant's extensive criminal history,
including numerous crimes against the person, in fashioning a sentence that
·....J protected the community from the Defendant's recidivist behavior. N.T. Aug.
11, 2016 at 67-73. At no time during sentencing did the Defendant object to
the guidelines or to his designation as a repeat felon. The Defendant was
convicted of both possessing a firearm and being a person legally unable to
possess said firearm. Both are serious offenses that pose a danger to the
community. And the harms sought to be remedied by these statutes are
different. The Defendant's consecutive, standard range sentences for the
firearm related charges are not "clearly unreasonable" in light of his
designation as a repeat felon. Additionally, the sentences for the additional
charges of which the Defendant was convicted were ordered to run concurrent
to the firearm related charges. Therefore, this Court did not abuse its
discretion in fashioning the Defendant's sentence.
11 "Appellate court shall vacate the sentence and remand the case to the sentencing
court with instructions if it finds: the sentencing court sentenced within the
sentencing guidelines but the case involves circumstances where the application of the
97��i�(�1_. ..... _ ----· --·
__________ fil!idelines wou�d be ?.�bl�:" 42 Pa. C.S.A. § _
17
IV. CONCLUSION
Based upon the foregoing, the Judgment of Sentence should be affirmed.
BY THE COURT:
STEVEN T. O'NEILL J.
�
Copies mailed on
to the following:
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