Com. v. Classen, J.

J-S33036-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE CLASSEN :
:
Appellant : No. 1829 EDA 2020
Appeal from the Judgment of Sentence Entered July 29, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004537-2018
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 11, 2022
Jose Classen appeals from the judgment of sentence imposed following
his conviction for Criminal Conspiracy, 18 Pa.C.S.A. § 903. Classen argues
that the trial court erred in denying his motion to suppress evidence, motion
in limine, and post-sentence motions. We affirm.
The trial court set forth the facts of this case as follows.
In June of 2017, Raul Maldonado was approached by his
neighbor, [Jose Classen], who had been his next-door
neighbor on the 3900 block of Franklin Street in North
Philadelphia for the preceding two months. [Classen] was
not eligible to carry or own a firearm due to previous felony
convictions, but nonetheless wanted to purchase a
handgun. [Classen] convinced Maldonado to accompany
him to Frank’s Gun Shop at 4730 Blakiston Street in
Northeast Philadelphia on June 16, 2017. There, [Classen]
provided money for Maldonado to purchase both a Glock and
Taurus handgun, provided that Maldonado complete each
application and register each firearm in his name. In
exchange for completing the purchase and registering each
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firearm, [Classen] permitted Maldonado to keep the Taurus
firearm while [Classen] kept the Glock for himself.
A couple of weeks after the purchase, Maldonado had
misgivings about maintaining the agreement for [Classen]
to keep the Glock registered in Maldonado’s name, and he
asked [Classen] to transfer the weapon to someone else.
[Classen] agreed on the condition that Maldonado give him
the Taurus he had also purchased. Then [Classen] and
Maldonado, together with [Classen]’s wife Miriam Classen,
returned to Frank’s Gun Shop, where Maldonado formally
transferred ownership of the Glock to Miriam Classen.
Now feeling apprehensive about [Classen] possessing the
Taurus that was registered in his name, Maldonado again
approached [Classen] about transferring formal ownership
of the firearm, upon which [Classen] suggested that
Maldonado report the Taurus as stolen. After that
conversation, Maldonado directed his mother, Cynthia
Rivera, to call the police to report a burglary.
On August 11, 2017, Philadelphia Police Detective Matthew
Dydak responded to the Maldonados’ reported burglary, and
at the home, Maldonado claimed that his firearm was stolen,
while Rivera reported that her jewelry was missing. After a
half-hour search, Dydak did not discover any signs of forced
entry consistent with a burglary. Dydak escorted Maldonado
and Rivera to the East Detectives division for an interview.
Midway trough the interview, Maldonado indicated that his
burglary report was false, so Dydak stopped the interview,
gave Maldonado Miranda warnings, and took a video-
recorded formal statement.
During his statement, Maldonado revealed that he falsely
reported the burglary because he felt uncomfortable having
a firearm registered to his name in [Classen]’s possession.
He identified [Classen] via photograph and described how
[Classen] approached him and they went to Frank’s Gun
Shop and purchased both the Glock and Taurus firearms.
Based on this information, investigators obtained a search
warrant for [Classen]’s residence at 3906 North Franklin
Street.
At 12:30 a.m. on August 12, 2017, Dydak and other
investigators served the warrant at 3906 North Franklin
Street. Inside the home, investigators discovered gun cases
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for two firearms, a Glock handgun Serial Number AAYW 228,
and another Glock handgun Serial Number BCYN 370, with
associated paperwork. Investigators did not recover any
firearms from the property, but discovered mail addressed
to [Classen] and a marriage certificate between himself and
his wife Miriam Classen.
On April 12, 2018, Agent Mark Schmidheiser of the
Pennsylvania Attorney General Gun Violence Task Force
executed an arrest warrant for [Classen] at 3906 Franklin
Street. Upon arrest, [Classen] told Schmidheiser that two
weapons, belonging to his wife, were in the property. Agents
quickly secured a search warrant for the property, and
recovered two firearms, the BCYN 370 Glock, a 9mm
handgun Serial Number 580475, and [] a pellet gun. Agents
cross referenced this serial number with a Federal Firearms
Transaction Record obtained from Frank’s Gun Shop, which
listed both a Taurus PT 111 9mm Serial Number JY 57294
and the Glock 20 Serial Number BCYN 370 as having been
purchased by Maldonado. The Taurus firearm was never
recovered.
Investigators obtained DNA samples from both [Classen]
and the BCYN 370 Glock and submitted them to the Office
of Forensic Science of the Philadelphia Police Department for
analysis. Brittney Rehrig, a forensic scientist with the office
compared [Classen]’s reference sample with those obtained
from the firearm and prepared a report. Two samples,
obtained from the left and right sides of the BCYN 370 Glock,
were consistent with a mixture originating from two
individuals, with [Classen]’s DNA serving as a partial major
component of the right-side sample, and a major
component of the left side sample. Rehrig made her
conclusions to a reasonable degree of scientific certainty.
Trial Ct. Op., filed 2/12/21, at 2-5 (citations to the record omitted).
Classen filed a motion to suppress a concealed carry handgun permit
that bore his name and address, contending that the information in the
affidavits were “the words of person or persons whom [sic] admittedly lied to
police and without any other corroboration whatsoever that [Classen] was
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responsible for any criminal activity.” See Mot. To Suppress, 1/13/19, at 1-2.
At the suppression hearing, the court asked Classen to clarify the grounds for
the motion, as it had been “pretty boilerplate” and did not attach a copy of
the challenged warrant. N.T., 3/18/19, at 10-11. Although Classen presented
no evidence, at the hearing Classen presented the motion as a Franks1
motion. Classen argued that the search warrant had been based upon lies by
Maldonado and Rivera, specifically, that the house had been burglarized. Id.
at 4-5. Classen did not present witnesses or ask to do so.
The Commonwealth responded that Classen had not made a substantial
preliminary showing that the false statement was knowing and intentional or
with reckless disregard to the truth. Id. at 6. The Commonwealth noted that
while Maldonado and Rivera had initially lied, it quickly became clear to
investigators that they had done so; they admitted their lies, and additional
investigation was conducted through record checks. Id. at 7-8. The prosecutor
pointed out that all this information had been presented to the magistrate
issuing the warrant. Id.
The court held the matter under advisement so that counsel could
provide copies of the search warrant and a letter brief. Id. at 11-12. Both
parties submitted briefs. In his brief, Classen argued for the first time that
there were false statements in the affidavit; that the affidavit improperly
mentioned that Miriam Classen had two guns registered in her name; and that
____________________________________________
1 Franks v. Delaware, 438 U.S. 154 (1978).
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the affidavit made a material omission by failing to note that the Glock
purchased by Maldonado was later transferred to Classen. The court formally
denied the motion on January 7, 2020. N.T., 1/7/20, at 6-7.
On January 8, 2020, the court held a jury trial; on January 13, 2020,
the jury found Classen guilty of conspiracy to provide false information and
not guilty of one count each of 18 Pa.C.S.A. § 6105 and § 6111(g)(2). The
jury could not reach a verdict on the remaining charges. On July 29, 2020,
the court sentenced Classen to three and a half to seven years of
incarceration. Classen filed a post-sentence motion, which the court denied.
Classen timely appealed.
Classen presents the following issues on appeal:
1. Did the [motion court] err in denying [Classen’s] motion
to suppress physical evidence obtained from the August 11,
2017 search warrant?
2. Did the [trial court] abuse its discretion in denying
[Classen’s] motion in limine to preclude the
Commonwealth’s DNA expert testimony?
3. Did the [trial court] abuse its discretion in denying
[Classen’s] post-sentence motions challenging the weight of
the evidence presented to the jury when it convicted
[Classen] of conspiring to provide false information in
connection with the purchase of a firearm contrary to 18
Pa.C.S.A. § 6111(g)(4) and in violation of 18 Pa.C.S.A. §
903?
Classen’s Br. at 3 (unnecessary capitalization omitted).
Classen first challenges the court’s denial of his motion to suppress. Our
standard of review of the denial of a suppression motion requires us to
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determine whether the record supports the trial court’s factual findings and
legal conclusions. Commonwealth v. Knox, 219 A.3d 186, 193 (Pa.Super.
2019), appeal denied, 228 A.3d 256 (Pa. 2020). Where, as here, the
Commonwealth prevailed on the suppression motion, we consider only the
Commonwealth’s evidence and “so much of the evidence for the defense as
remains uncontradicted when read in context of the record as a whole.” Id.(quoting Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)). We
reverse only if the record does not support the trial court’s factual findings, or
the court's legal conclusions are erroneous. Id.In Franks, the United States Supreme Court held:
[W]here the defendant makes a substantial preliminary
showing that a false statement knowingly and intentionally,
or with reckless disregard for the truth, was included by the
affiant in the warrant affidavit, and if the allegedly false
statement is necessary to the finding of probable cause, the
Fourth Amendment requires that a hearing be held at the
defendant’s request. In the event that at that hearing the
allegation of perjury or reckless disregard is established by
the defendant by a preponderance of the evidence, and,
with the affidavit’s false material set to one side, the
affidavit’s remaining content is insufficient to establish
probable cause, the search warrant must be voided and the
fruits of the search excluded to the same extent as if
probable cause was lacking on the face of the affidavit.
Franks, 438 U.S. at 155–56. “[A] court must invalidate an affidavit of
probable cause where the sole basis for the finding of probable cause is
material misstatements.” Commonwealth v. Batista, 219 A.3d 1199, 1206
(Pa.Super. 2019) (citation omitted). A reviewing court does not err in rejecting
a challenge where the defendant fails to offer evidence that the affiant made
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false statements deliberately or with a reckless disregard for the truth. Id. at
1207.
In the instant case, Classen’s arguments are predicated on the following
facts: Maldonado lied to the police about the burglary, and that the warrant
omitted information regarding Rivera’s false police report. As noted above, no
testimony or evidence was introduced beyond the affidavit itself. However,
Classen’s arguments are unavailing.
Regardless of who initiated the report of the burglary, both Rivera and
Maldonado admitted that they had lied about the burglary. Indeed, the
affidavit clearly indicated that Maldonado had lied and that the lie was the
foundation of the investigation. The fact that the affidavit did not specifically
indicate that Rivera had lied as well did not rise to the level of a material
misstatement. Batista, 219 A.3d at 1206-07. Maldonado and Rivera’s
statements to police were further supported by record searches, revealing that
two guns were registered to Classen’s wife, and that Classen had a felony
conviction. The affidavit’s mention of Mrs. Classen’s gun ownership and the
transfer of the Glock firearm from Mrs. Classen to Classen was a plain
statement of the facts of a straw purchase case. No relief is due.
Classen next argues that the court erred in denying his motion to
preclude the Commonwealth’s DNA expert from testifying regarding “touch-
DNA” using short tandem repeats (“STR”) software, a type of probabilistic
genotyping software. Classen’s Br. at 16. He additionally argues the report
was unreliable and misleading to the jury. Id. Classen cites United States v.
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Gissantaner, 417 F.Supp.3d 857 (W.D. Mich. 2019), rev’d, 990 F.3d 457 (6th
Cir. 2021) in support of his argument that probabilistic genotyping software
was not sufficiently reliable and that there was no evidence the test itself was
generally accepted in the scientific community. Id. at 19-20.
The trial court has discretion in deciding whether to admit expert
testimony over an objection. See Commonwealth v. Ventura, 975 A.2d
1128, 1140 (Pa.Super. 2009). Such a decision will be reversed only if the
appellate court finds an abuse of discretion or an error of law. See id.;
Commonwealth v. Foley, 38 A.3d 882, 887 (Pa.Super. 2012).
A witness may provide expert opinion testimony based upon knowledge,
skill, training, experience, or education if the expert’s scientific, technical, or
other specialized knowledge is beyond that possessed by the average
layperson, and the testimony will help the trier of fact understand the evidence
or to determine a fact in issue. The expert’s methodology must be generally
accepted in the relevant field. Pa.R.E. 702.
Pennsylvania continues to adhere to the Frye test, which
provides that “novel scientific evidence is admissible if the
methodology that underlies the evidence has general
acceptance in the relevant scientific community.” Betz v.
Pneumo Abex LLC, 998 A.2d 962, 972 (Pa.Super. 2010)
(en banc) (citing Grady v. Frito–Lay, Inc., 576 Pa. 546,
839 A.2d 1038 (2003)). The Frye test is a two-step process.
See id. First, the party opposing the evidence must show
that the scientific evidence is “novel” by demonstrating “that
there is a legitimate dispute regarding the reliability of the
expert’s conclusions.” Id. If the moving party has identified
novel scientific evidence, then the proponent of the scientific
evidence must show that “the expert’s methodology has
general acceptance in the relevant scientific community”
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despite the legitimate dispute. Id. (internal quotation marks
omitted).
Foley, 38 A.3d at 888.
A Frye hearing is warranted only where the trial court has articulable
grounds to believe an expert witness has not applied accepted scientific
methodology. See Commonwealth v. Bonnett, 239 A.3d 1096, 1102
(Pa.Super. 2020). The opposing party must demonstrate that the testimony
is based on novel scientific evidence and that a legitimate dispute regarding
the reliability of the conclusions exists. Id.Classen did not file a written motion seeking a Frye hearing. Instead,
he made his objection to the introduction of the evidence, with citation to
Gissantaner, on the record on the first day of trial. N.T., 1/8/20, at 186-92.
However, Gissantaner is not binding on Pennsylvania state courts, was
reversed by the Sixth Circuit, and relied upon the Daubert standard, which
has not been adopted in Pennsylvania. See Grady, 839 A.2d at 1044.
Accordingly, it is inapposite to the case at hand.
The trial court further observed
Indeed, [Classen] did not provide any additional evidence,
such as an expert’s report challenging the Commonwealth’s
findings, that could be used to sway this [c]ourt’s opinion.
[Classen] failed to memorialize his challenge to the
admission of such evidence in the form of a written motion
filed in advance of trial, but rather presented his challenge
on the morning of jury selection. That challenge was
insufficient to establish that the DNA test in question was a
novel scientific approach, or that it was subject to legitimate
dispute within the scientific community. His citation to the
Michigan District Court’s Gissantaner holding, which was
based on a non-binding analysis of the Daubert standard,
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was of little value in demonstrating dispute or novelty under
Frye.
While [Classen], in theory, could develop his Frye claim in
the form of expert testimony or additional evidence of
novelty, he declined to further supplement his argument, or
even request a formal Frye hearing . . . [Classen] was still
permitted to challenge the reliability of both the expert and
her conclusions on both voir dire and cross-examination.
Trial Ct. Op. at 9.
Classen is not entitled to relief on this issue. The court properly denied
his motion.
Finally, Classen argues that the verdict for Conspiracy was against the
weight of the evidence and the court erred in denying his post-sentence
motion because the evidence was not credible, as Maldonado and Rivera’s
initial lies to the police rendered the testimony incredible. Classen’s Br. at 22-
23. He also contended that the jury’s not guilty verdicts for various other gun
offenses rendered his conviction for Conspiracy a legal impossibility, because
he was found not guilty of possessing the firearm he was convicted of
conspiring to purchase. Id.
A weight claim is for the trial court in the first instance. See
Commonwealth v. Stiles, 143 A.3d 968, 980 (Pa.Super. 2016). The trial
court may sustain a weight challenge and grant a new trial only “when the
jury’s verdict is so contrary to the evidence as to shock one’s sense of justice
and the award of a new trial is imperative so that right may be given another
opportunity to prevail.” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.
2013) (citation omitted). “The weight of the evidence is exclusively for the
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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. Champney,
832 A.2d 403, 408 (Pa. 2003) (quoting Commonwealth v. Small, 741 A.2d
666, 672 (Pa. 1999)). We review the trial court’s rejection of a challenge to
the weight of the evidence for an abuse of discretion. See Commonwealth
v. Windslowe, 158 A.3d 698, 712 (Pa.Super. 2017).
In the instant case, counsel cross-examined Maldonado regarding his
previous lies to the police and his testimony. N.T., 1/8/20, at 272-335. The
jury was free to believe all, part, or none of his testimony; the jury believed
the testimony, as was within its purview as factfinder and the verdict does not
shock the conscience. Commonwealth v. Page, 59 A.3d 1118, 1130
(Pa.Super. 2013); Commonwealth v. Bozic, 997 A.2d 1211, 1222
(Pa.Super. 2010).
With regard to Classen’s remaining weight argument, the trial court
observed:
[Classen] characterizes these acquittals as pertaining to the
Glock handgun, which he argues is inconsistent with the
Conspiracy to Make a Material False or Written Statement in
Connection with the Purchase, Delivery, or Transfer of a
Firearm, as [Classen] was acquitted of possessing the
firearm he allegedly conspired to possess.
[Classen] is mistaken. The jury rendered not guilty verdicts
to charges concerning [Classen]’s facilitation of transfer and
possession of the Taurus handgun. On January 8, 2021,
[Classen] pled guilty to the remaining VUFA 6105 and VUFA
6111 charges relating to the Glock handgun, rendering the
instant argument moot. Moreover, as discussed supra, the
Commonwealth was not required to demonstrate actual
possession or transfer of the Glock firearm to prove
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Conspiracy beyond a reasonable doubt, but instead
establish that [Classen] made [an] agreement to commit
those acts and took an overt act in furtherance of
completing those acts. The jury credited Maldonado’s
testimony to that effect, to no shock to this [c]ourt’s
conscience.
Trial Ct. Op. at 13. We perceive no abuse of discretion. Clay, 64 A.3d at 1054.
Accordingly, we affirm.
Judgment of sentence affirmed.
Judge Bowes joins the memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2022
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