Com. v. Brown, B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
BRANDON BROWN
Appellant No. 3796 EDA 2017
Appeal from the Judgment of Sentence imposed April 24, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0009821-2011
BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 21, 2019
Appellant, Brandon Brown, appeals from the judgment of sentence
imposed on April 24, 2014 in the Court of Common Pleas of Philadelphia
County following his conviction of firearms violations and possession of drug
paraphernalia. Appellant argues that the verdict was contrary to law, in light
of evidence presented at trial, and that the trial court erred in denying various
pre- and post-sentence motions. Following review, we affirm.
In his Rule 1925(a) opinion, the Honorable Daniel D. McCaffery provided
the following procedural background:
On February 27, 2014, Appellant was tried before this court,
sitting without a jury, and was found guilty of the crimes of
possession of firearm by a prohibited person, 18 Pa.C.S. § 6105,
firearms not to be carried without a license, 18 Pa.C.S. § 6101,
carrying firearms on a public street, 18 Pa.C.S. § 6108, and
possession/use-drug paraphernalia, 35 P.S. § 780-113(A)(32).
The matter had previously been before the Honorable Stephen R.
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Geroff who heard and denied Appellant’s various motions to
suppress. On April 24, 201[4], this court imposed an aggregate
sentence of two to five years’ incarceration followed by two years’
reporting probation. On April 30, 2014, Appellant filed a post-
sentence motion, which was denied by operation of law on August
29, 2014.
Appellant did not file a notice of appeal following the denial of his
post-sentence motion. However, Appellant filed a timely petition
pursuant to the Post-Conviction Relief Act, 42 Pa.C.S. § 9541 et
seq., and this court issued an order granting Appellant the right
to file a notice of appeal nunc pro tunc, which he filed on
November 9, 2017. On December 7, 2017, Appellant’s counsel
filed a court-ordered Pa.R.A.P. 1925(b) statement of matters to
be raised on appeal.
Rule 1925(a) Opinion, 3/27/18, at 1-2 (some capitalization omitted). After
summarizing the underlying facts of Appellant’s case, Judge McCaffery
addressed the first two of the five “errors” asserted by Appellant in his Rule
1925(b) statement. At the request of Judge McCaffery, Judge Geroff issued
an opinion addressing the remaining three “errors” related to the pre-trial
motions on which Judge Geroff ruled. Opinion on Pre-Trial Motions, 5/3/18.
The Rule 1925(b) statement filed by appellate counsel states, in its
entirety:
[Appellant], by his attorney, Peter A. Levin, respectfully notes the
following matters to be raised on appeal, pursuant to Pennsylvania
Rules of Appellate Procedure 1925(b):
1. The verdict was contrary to law on the firearms and drug
offenses for the reasons stated by trial counsel at the
trial.
2. The court was in error in denying the post sentence
motions.
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3. The court (Judge Geroff) was in error in denying the
Motion to Quash.
4. The court (Judge Geroff) was in error in granting and
then reversing [Appellant’s] Motion to Suppress.
5. The court (Judge Geroff) was in error in denying the Four
Corners Motion filed by [Appellant].
Respectfully submitted,
/s/ Peter A. Levin
Statement of Matters Complained on Appeal, 12/7/17, at 1-2.
In his Rule 1925(a) opinion, Judge McCaffery appropriately recognized
the mandate of Rule 1925(b)(4)(ii), which directs that an appellant’s concise
statement of errors complained of on appeal shall “concisely identify each
ruling or error that the appellant intends to challenge with sufficient detail to
identify all pertinent issues for the judge.” Rule 1925(a) Opinion, 3/27/18, at
4 (quoting Pa.R.A.P. 1925(b)(4)(ii)). Further, “[a] Rule 1925(b) statement
‘must be sufficiently specific so as to afford the trial court the ability to draft
a meaningful opinion without resorting to speculation regarding what issues
or arguments appellant wishes to present.’” Id. (quoting Kern v. Kern, 892
A.2d 1, 6 (Pa. Super. 2005) (in turn citing Commonwealth v. Dowling, 778
A.2d 683 (Pa. Super. 2001) (Lord1 waiver doctrine bars review of issues
presented in Pa.R.A.P. 1925(b) statement where Pa.R.A.P. 1925(b) statement
is too vague to permit meaningful appellate review)). Moreover, “a concise
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1 Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998).
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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.(quoting Commonwealth v. Lemon, 804 A2d 34, 37 (Pa. Super. 2002) (in
turn citing Dowling, 778 A.2d at 686-87)).
It is apparent on the face of Appellant’s Rule 1925(b) statement that
Appellant has listed nothing more than five conclusory statements of trial court
error without specifying any detail that might identify pertinent issues for the
trial judges to consider. Judge McCaffery, to whom the first two allegations
of error are addressed, looked to case law, including Kern, Dowling and
Lemon, and suggested that Appellant’s first Rule 1925(b) claim, i.e., that the
verdict was contrary to law “for the reasons stated by trial counsel at the trial,”
“be deemed waived for lack of specificity in the 1925(b) statement. It is not
this [c]ourt’s job to comb the record to discern what arguments trial counsel
may have made and to guess which of those Appellant is currently referring
[to] and intends to raise on appeal.” Trial Court Rule 1925(a) Opinion,
3/27/18, at 5.
Although he suggested that the issue was waived, Judge McCaffery
embarked on an attempt to address the claim, examining statements made in
counsel’s closing argument, speculating as to Appellant’s bases for challenging
the sufficiency of evidence, and concluding that the evidence was sufficient to
support Appellant’s conviction of firearms and paraphernalia offenses. Id. at
5-8. While Judge McCaffery’s efforts are laudable, a trial judge should not
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have to “resort[] to speculation regarding what issues or arguments appellant
wishes to present.” Kern, 892 A.2d at 6. In Lemon, this Court “specifically
conclude[d] that when an appellant fails to identify in a vague Pa.R.A.P.
1925(b) statement the specific issue he/she wants to raise on appeal, the
issue is waived, even if the trial court guesses correctly and addresses the
issue in its Pa.R.A.P. 1925(a) opinion.” Lemon, 804 A2d at 38. Further,
[a]s this Court has consistently held:
If Appellant wants to preserve a claim that the evidence was
insufficient, then the 1925(b) statement needs to specify
the element or elements upon which the evidence was
insufficient. This Court can then analyze the element or
elements on appeal. Where a 1925(b) statement does not
specify the allegedly unproven element, the sufficiency
issue is waived on appeal.
Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015) (quoting
Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008)
(additional citation and alterations omitted)). Appellant’s first issue, as set
forth in his Rule 1925(b) statement and as reframed in his brief,2 is waived.
In both his Rule 1925(b) statement and his brief, Appellant’s second
claim is an assertion of “error in denying [Appellant’s] post-sentence motions.”
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2 Appellant reframed his first issue in his brief, asking this Court to consider
“[w]hether the verdict was insufficient as a matter of law, due to the
inconsistency and insufficiency of testimony, and whether the elements of the
crimes were sufficiently proven given the facts as alleged at trial.” Appellant’s
Brief at 8, ¶ 1. As with his Rule 1925(b) statement, Appellant fails to “specify
the element or elements upon which the evidence was insufficient” and his
“sufficiency issue is waived on appeal.” Tyack, 128 A.3d at 260.
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Rule 1925(b) Statement at ¶ 2; Appellant’s Brief at 8, ¶ II. Again, Judge
McCaffery contends the issue is too vague to address. Rule 1925(a) Trial
Court Opinion, 3/27/18, at 8. We agree. Moreover, in his brief, after disputing
the trial court’s vagueness assertion, Appellant reveals that he is actually
challenging the discretionary aspects of his sentence. Appellant’s Brief at 16.
However, Appellant did not include the mandatory Rule 2119(f) statement of
reasons relied upon for allowance of appeal. While this defect may be waived
if not raised by the Commonwealth, see Commonwealth v. Krum, 533 A.2d
134, 138 (Pa. Super. 1987), the Commonwealth did preserve its objection.
See Commonwealth Brief at 12 (citing Commonwealth v. Tuladziecki, 522
A.2d 17, 20 (Pa. 1987)). “[I]f the appellee objects to a 2119(f) omission . . .
this Court is precluded from reviewing the merits of the claim and the appeal
must be denied.” Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super.
2004) (citations omitted). Even if reviewable, Appellant’s sole challenge
raised in his brief is a claim the trial court failed to consider mitigating factors.
“A claim that a sentencing court failed to consider certain mitigating factors
does not raise a substantial question that the sentence is inappropriate.”
Commonwealth v. Lewis, 911 A.2d 558, 567 (Pa. Super. 2006) (citations
omitted). Appellant’s second issue, even if not waived for lack of specificity
or for failure to include a Rule 2119(f) statement, would fail for lack of merit.
Appellant’s remaining three claims involve pre-trial rulings made by
Judge Geroff. As with Appellant’s first two claims, Appellant has failed to
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preserve these claims for appellate review by failing to provide any detail in
his Rule 1925(b) statement. The claims are waived as a result. 3 Even if not
waived, these claims are likewise devoid of merit.
In his third claim, Appellant contends the trial court erred in denying his
motion to quash the transcript of his preliminary hearing. Judge Geroff
properly rejected this claim as moot. As our Supreme Court has explained:
The purpose of a preliminary hearing is to avoid the incarceration
or trial of a defendant unless there is sufficient evidence to
establish that a crime was committed and a probability that the
defendant was connected therewith. See Commonwealth v.
Jackson, 849 A.2d 1254, 1257 (Pa. Super. 2004) (holding same).
. . . [It is not] the purpose of a preliminary hearing to prove a
defendant’s guilt. Indeed, once a defendant has gone to trial and
has been found guilty of the crime or crimes charged, any defect
in the preliminary hearing is rendered immaterial. See id.Commonwealth v. Sanchez, 82 A.3d 943, 984 (Pa. 2013). Appellant is not
entitled to any relief on his third claim.4
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3 Just as Appellant’s Rule 1925(b) statement fails to specify the nature of the
claims, Appellant’s Statement of Questions Presented likewise simply asserts
error with regard to these three rulings without any detail. Appellant’s Brief
at 8, ¶¶ III-V.
4 We note that the charges filed against Appellant included only firearms
violations and drug charges. Consequently, we are perplexed by Appellant’s
argument that “[n]either could the confession of a co-defendant form the basis
of a prima facie case against Appellant at the preliminary hearing where no
testimony was elicited from any complainant that a robbery or any of its lesser
charges, excepting receipt of stolen property occurred.” Appellant’s Brief at
18. There was no confession, co-defendant, robbery, or receipt of stolen
property involved in the case before us. We can only surmise that a “cut-and-
paste” mishap occurred in the preparation of Appellant’s brief.
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In his fourth claim, Appellant argues the trial court erred by granting
and then denying his motion to suppress. Appellant asserts his arrest was the
result of racial profiling. However, as Judge Geroff explained, the testimony
revealed that the arresting officer had reasonable suspicion that criminal
activity was afoot and acted properly when he approached Appellant, spoke
to him, and searched him for safety. Opinion on Pre-Trial Motions, 5/3/18, at
2-5. While, once again, we find the issue waived, we also conclude it would
fail for lack of merit even if preserved. Appellant’s fourth claim warrants no
relief.
In his fifth claim, Appellant maintains that the trial court erred by
denying his four corners motion. Once again, as phrased in his Rule 1925(b)
statement, this claim is waived due to lack of specificity. Even if not waived,
the claim lacks merit.
Appellant suggests the affidavit of probable cause “fails to specify the
reliability of the drug testing dog as well as the experience of the arresting
officer in identifying narcotics or drug paraphernalia.” Appellant’s Brief at 23.
Therefore, he argues, the affidavit failed to establish probable cause. Id. We
do not agree. As Judge Geroff explained, the arresting officer testified that
he had six years’ experience and had participated in between 100 and 150
drug arrests. The officer knew from experience that the location in question
was a “hot spot” for drug and shooting activities; he recognized Appellant’s
actions were unusual; and he testified that Appellant stuttered and was
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extremely nervous when addressed. Opinion on Pre-Trial Motions, 5/3/18, at
4. As for the K-9 partner,
[a]ccording to the search warrant, the police officers, after
observing two suspicious bags inside the vehicle, summoned a K-
9 officer and his canine partner “Brito.” The affidavit of probable
cause stated, “Brito had a positive reaction for narcotics on the
driver’s side door and the passenger’s side door.”
[Appellant] maintained that the affidavit of probable cause should
have stated grounds on which to believe that Brito was reliable,
much as an affidavit of probable cause must state the basis for
believing that a confidential informant was credible. While it is
true that an affidavit of probable cause based on information from
a confidential informant must set forth some basis to establish the
reliability, Commonwealth v. Clark, 28 A.3d 1284 (Pa. 2011),
Pennsylvania law does not require that an affidavit of probable
cause set forth the reliability of a drug testing dog.
Opinion on Pre-Trial Motions, 5/3/18, at 5. Even if not waived, Appellant’s
fifth issue provides no basis for relief.
All of Appellant’s issues are waived for failure to comply with the dictates
of Pa.R.A.P. 1925(b). Regardless, all of the issues would fail for lack of merit.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/19
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