Com. v. Holmes, D.

J-S23038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DUANE MARCEL HOLMES, :
:
Appellant : No. 2485 EDA 2015
Appeal from the Judgment of Sentence July 27, 2015
in the Court of Common Pleas of Lehigh County,
Criminal Division, No(s): CP-39-CR-0003636-2014
BEFORE: OLSON, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 12, 2017
Duane Marcel Holmes (“Holmes”), pro se,1 appeals from the judgment
of sentence imposed following his conviction of receiving stolen property.
See 18 Pa.C.S.A. § 3925. We affirm.
On August 13, 2014, at approximately 6:33 a.m., the Upper Saucon
Township Police Department was notified that the burglar alarm for the
Verizon Wireless Store at the Promenade Shops had been activated. The
responding patrol officers determined that the front door had been smashed,
and several thousand dollars’ worth of high-end electronics had been stolen,
including cell phones and hotspot devices.
1
Holmes filed a pro se Motion for Withdrawal of Counsel on August 5, 2015.
The trial court conducted a Grazier hearing on September 16, 2015, and
subsequently granted Holmes’s Motion for Withdrawal of Counsel. See
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998); see also
Pa.R.Crim.P. 121.
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At approximately 7:00 a.m., Whitehall Police Detective Jeffrey Bruchak
(“Detective Bruchak”) and Bethlehem Police Detective Chad Wasserman
(“Detective Wasserman”), members of the Lehigh County Auto Theft Task
Force, heard a transmission on the Bethlehem Police radio regarding a
burglary at a Radio Shack located on Stefko Boulevard in Bethlehem,
Pennsylvania. At approximately 7:15 a.m., Detectives Bruchak and
Wasserman, in an unmarked police vehicle and in plain clothes, proceeded to
the area of 602 North Randolph Street in Allentown, Pennsylvania (“the
residence”). Detective Wasserman had previously received information from
Detective Edward Kazmierczak (“Detective Kazmierczak”), of the Teaneck,
New Jersey Police Department, regarding an investigation of similar crimes
in New Jersey, and identifying Holmes as a person involved in those crimes.
Detective Kazmierczak also told Detective Wasserman that Holmes would
likely be staying at 602 North Randolph Street. When Detectives Bruchak
and Wasserman arrived, they observed a green minivan with New Jersey
license plates parked on the street, on the south side of the house, and a
black Lexus2 pulling up around minivan. Both vehicles drove away.
Detectives Bruchak and Wasserman relocated their vehicle, stopping
about one block east of the residence, to set up surveillance. At that time,
Detective Wasserman was in communication with Bethlehem Police
2
Detective Wasserman had previously driven past the residence and had
observed the black Lexus, registered to Holmes, parked in front of the
residence.
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Detective Jason Fulmer and Detective Sergeant Michelle Kott (“Detective
Sergeant Kott”) (collectively, “the Bethlehem detectives”), who were
reviewing video surveillance from the Radio Shack burglary.3 The
Bethlehem detectives informed Detective Wasserman that the video
surveillance showed a male throwing what appeared to be a hammer
through the door to smash the window. The Bethlehem detectives told
Detective Wasserman that two males entered the store, carrying a crowbar,
a blue tote, and yellow bolt cutters. Additionally, the Bethlehem detectives
told Detective Wasserman that one of the males was wearing a black shirt
and camouflage pants; the other was wearing a camouflage jacket; and both
of their faces were covered. The Bethlehem detectives also told Detective
Wasserman that they could see a green minivan near the store.
The black Lexus was parked in front of the residence by the time
Detectives Bruchack and Wasserman relocated their vehicle. Using
binoculars, Detective Bruchak observed two black males, who were wearing
light-colored t-shirts, in the backyard of the residence carrying a large blue
tote. Detective Bruchak opined that the tote was heavy because the two
males appeared to be struggling to carry it. The males entered the
residence carrying the blue tote. Several minutes later, Detective Bruchak
observed another black male, wearing a camouflage jacket, walk west on
3
Detective Wasserman also communicated Detective Bruchak’s observations
to Allentown Police Detective Raymond Ferraro (“Detective Ferraro”), as well
as the Allentown and Bethlehem Police Departments.
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East Allen Street and enter the residence. After several minutes passed,
Detective Bruchak observed a black male exit the front door, carrying a
dark-colored duffle bag with orange trim, place the duffle bag in the trunk of
the Lexus, and return to the house. Detective Bruchak then observed a
black male exit the house, place a plastic garbage bag behind the front
passenger seat of the Lexus, and return to the house.
Several minutes later, Detective Bruchak observed one of the males
exit the front door of the residence, and walk east on East Allen Street. A
second male subsequently left the house and walked in the same direction.
Detective Bruchak observed the green minivan pull up and park on the side
of the residence. According to Detective Bruchak, a black male exited the
minivan from the front passenger door, walked to the back of the house,
retrieved an item that was “long and rectangular in shape” and covered by a
white towel or blanket, and placed the item in the van. The minivan pulled
away from the house and proceeded west on East Allen Street. Detective
Bruchak then observed a black male exit from the front door of the
residence, get into the black Lexus, and travel west on East Allen Street.
Detective Wasserman informed officers in the Allentown Police Department
that the vehicles had left the residence. Detectives Bruchak and Wasserman
remained at their surveillance location for several more minutes to make
sure no one else came to or left the house.
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At approximately 8:34 a.m., an Allentown Police Officer stopped the
black Lexus, which Holmes was driving, at the direction of Detective
Ferraro.4 When Detective Ferraro arrived at the location of the traffic stop,
Holmes was in the back seat of a police car. By looking into the window of
the Lexus, Detective Ferraro observed, in plain view, a camouflage jacket on
the back seat, on top of a garbage bag. A subsequent warrantless search of
the Lexus revealed gloves, head socks, a ninja-style mask, and a
camouflage bag with orange trim containing approximately 80 cell phones in
their original packaging. The Upper Saucon detectives, who responded to
the Verizon Wireless Store burglary, confirmed that the recovered cell
phones had been stolen from the Verizon Wireless Store.
Holmes filed an Omnibus Pretrial Motion, including, inter alia, Motions
to suppress physical evidence recovered from his vehicle and residence.
4
At approximately 8:42 a.m., the minivan stopped at the Congress
Apartments, and the occupants fled on foot. At that time, Detectives
Bruchak and Wasserman left their surveillance location, and drove to the
Congress Apartments. When Detective Bruchak looked into the minivan’s
passenger side window, he noticed that the ignition had been punched out of
the steering column. The green minivan was registered to the New Jersey
Department of the Treasury, but had not been reported stolen at that time.
However, after being informed that officers found the minivan and the
ignition had been removed, the New Jersey Department of the Treasury
confirmed that the minivan had, in fact, been stolen from their lot, and gave
the detectives permission to conduct a search. A search of the minivan
revealed a white towel, broken glass, a yellow crowbar, a mallet, and orange
bolt cutters. Detectives Bruchak and Wasserman stayed in that location
until a tow truck arrived. Thereafter, Detectives Bruchak and Wasserman
briefly met Detective Ferraro at the residence, and proceeded to the vehicle
stop.
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Following a suppression hearing, the trial court denied Holmes’s Motion to
suppress physical evidence recovered from his vehicle, and, by agreement of
counsel,5 the trial court granted his Motion to suppress physical evidence
from his residence.
On April 28, 2015, following a jury trial, Holmes was convicted of
receiving stolen property, graded as a felony of the third degree. On July
27, 2015, the trial court sentenced Holmes a term of 2½ to 5 years in
prison. Holmes, through counsel, filed a timely Notice of Appeal. Holmes
filed a counseled, court-ordered Pa.R.A.P. 1925(b) Concise Statement of
errors complained of on appeal. Holmes thereafter filed a pro se Concise
Statement.
On appeal, Holmes raises the following questions for our review:
1. Did the trial court err as a matter of law in denying Holmes’[s
M]otion to suppress evidence seized from the search of his
automobile[,] in violation of his state and federal constitutional
rights to be free from unreasonable searches and seizures?
2. Were [Holmes’s] rights under the Fourth Amendment to the
United States Constitution[,] and Article [1], Section[s 8] and
[9] of the Pennsylvania Constitution[,] violated when
suppressed, illegally[-]obtained evidence was affirmatively used
throughout Holmes’[s] jury trial to convict Holmes of [a] crime?
Brief for Appellant at 2.
5
During the suppression hearing, the Commonwealth conceded that the
search warrant for Holmes’s residence was not supported by probable cause.
See N.T., 3/25/15, at 7.
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In his first claim, Holmes argues that the trial court erred in denying
his Motion to suppress physical evidence seized from the search of his
vehicle (the black Lexus). Id. at 12. Holmes asserts that he was subjected
to an investigative detention without the requisite reasonable suspicion. Id.
at 13-15.6 Holmes claims that “there was no identification of Holmes as
having played a role in any activities described by law enforcement.” Id. at
22.
In reviewing the denial of a motion to suppress, our
responsibility is to determine whether the record supports the
suppression court’s factual findings and legitimacy of the
inferences and legal conclusions drawn from those findings. If
the suppression court held for the prosecution, we consider only
the evidence of the prosecution’s witnesses and so much of the
evidence for the defense as, fairly read in the context of the
record as a whole, remains uncontradicted. When the factual
findings of the suppression court are supported by the evidence,
the appellate court may reverse if there is an error in the legal
conclusions drawn from those factual findings.
Commonwealth v. Arnold, 932 A.2d 143, 145 (Pa. Super. 2007) (citation
omitted).
6
As part of a lengthy discussion regarding the search of the residence,
Holmes also argues that he was subjected to a custodial detention, without
the requisite probable cause, because he was held in the back of a police car
during the residence search. See Brief for Appellant at 17, 20, 21.
However, the residence search is not at issue in the instant appeal, as all
evidence arising therefrom was suppressed during the suppression hearing.
Moreover, to the extent that Holmes challenges his detention during the
vehicle search, we note that detention in a police car, without more, does
not necessarily escalate an investigative detention into a custodial detention.
See Commonwealth v. Revere, 814 A.2d 197, 200-01 (Pa. Super. 2002)
(concluding that appellant was not subjected to a custodial detention, where
he was detained in a police car for a brief period of time, the officers did not
use force or restraints, and the transportation of appellant was supported by
exigent circumstances).
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There are three categories of interactions between police and a citizen,
pursuant to Article I, Section 8 of the Pennsylvania Constitution:
The first is a “mere encounter,” which need not be supported by
any level of suspicion. The second is an “investigative
detention,” which must be supported by reasonable suspicion.
This interaction 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. The third
category, a “custodial detention,” must be supported by probable
cause. The police have probable cause where the facts and
circumstances within the officer’s knowledge are sufficient to
warrant a person of reasonable caution in the belief that an
offense has been or is being committed.
Commonwealth v. Randolph, 151 A.3d 170, 177 (Pa. Super. 2016)
(citations and some quotation marks omitted).
Here, the trial court concluded that Holmes was subjected to an
investigative detention when police stopped his vehicle. When evaluating
the legality of investigative detentions, Pennsylvania has adopted the
holding of Terry v. Ohio, 392 U.S. 1 (1968), wherein the United States
Supreme Court held that police may conduct an investigative detention if
they have reasonable suspicion that criminal activity is afoot.
Our Supreme Court has mandated that law enforcement officers,
prior to subjecting a citizen to an investigatory detention, must
harbor at least a reasonable suspicion that the person seized is
then engaged in unlawful activity. The question of whether
reasonable suspicion existed at the time of an investigatory
detention must be answered by examining the totality of the
circumstances to determine whether the officer who initiated the
stop had a particularized and objective basis for suspecting the
individual stopped. Thus, to establish grounds for reasonable
suspicion, the officer must articulate specific observations which,
in conjunction with reasonable inferences derived from those
observations, led him reasonably to conclude, in light of his
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experience, that criminal activity was afoot and that the person
he stopped was involved in that activity.
Commonwealth v. Reppert, 814 A.2d 1196, 1203-04 (Pa. Super. 2002)
(en banc) (internal citations omitted). Additionally,
[f]or a stop to be valid, someone in the police department must
possess sufficient information to give rise to reasonable
suspicion. The officer with the reasonable suspicion, usually the
dispatcher, need not convey all of this background information to
the officer who actually effectuates the stop. Thus, the police
may justify the search by presenting sufficient evidence at the
suppression hearing that someone in the chain of command had
reasonable suspicion before the stop, even if the arresting officer
did not.
Commonwealth v. Wiley, 858 A.2d 1191, 1197 n.4 (Pa. Super. 2004)
(citations omitted).
The trial court considered Holmes’s claim, and concluded that the
vehicle stop was supported by reasonable suspicion, based on Detective
Wasserman’s knowledge regarding an ongoing investigation of Holmes’s
involvement in similar crimes, the description of the Radio Shack robbery
provided by the Bethlehem detectives, and Detective Bruchak’s observations
at the residence. See Trial Court Opinion, 4/24/15, at 21-24. The trial
court also concluded that the warrantless search of Holmes’s black Lexus
was supported by probable cause based on Detective Bruchak’s observations
at the residence (which had been communicated to Detective Ferraro by
Detective Wasserman), Detective Ferraro’s knowledge that a crowbar and a
mallet had been recovered from the minivan, and Detective Ferraro’s own
observations of a garbage bag and camouflage jacket, in plain view, in the
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back seat of the Lexus after the stop. See id. at 24-27. The trial court’s
findings are supported in the record.
At the suppression hearing, Upper Saucon Township Detective Dane
Carroll (“Detective Carroll”) testified that on August 13, 2014, at
approximately 6:30 a.m., the Upper Saucon Township Police Department
was alerted to the activation of the burglar alarm at the Verizon Wireless
Store at the Promenade Shops. See N.T., 3/20/15, at 45-46.
Detective Wasserman testified that at approximately 7:00 a.m., he
heard a transmission on his Bethlehem Police radio regarding a burglary that
occurred at the Radio Shack on Stefko Boulevard. See N.T., 3/17/15, at 15-
16. Detective Wasserman testified that upon hearing the transmission, he
and Detective Bruchak proceeded to 602 North Randolph Street, based on
his work on an ongoing investigation with other agencies. See id. at 17-18.
Specifically, according to Detective Wasserman, Detective Kazmierczak told
him about recent “smash-and-grab” burglaries of cell phone stores in New
Jersey, identified Holmes as someone involved in those burglaries, and told
him that he believed Holmes would be staying at 602 North Randolph Street.
See id. at 17-18, 20-21, 22, 23-24. Detective Wasserman testified that he
had previously driven past the residence, and had seen a black Lexus
registered to Holmes, parked outside. See id. at 24-25.
Detective Bruchak testified that he and Detective Wasserman arrived
at the residence, in an unmarked vehicle and in plain clothes, about 10 to 15
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minutes after hearing the radio transmission. See N.T., 3/20/15, at 7.
According to Detective Bruchak, a green minivan was parked on the street,
on the south side of the house, and a black Lexus pulled around it. See id.
at 8-9. Detective Bruchak testified that both vehicles passed their unmarked
car, and he and Detective Wasserman subsequently relocated their vehicle
to conduct surveillance. See id. at 9-10.
At that time, Detective Wasserman was in communication with the
Bethlehem detectives, who were reviewing video surveillance of the Radio
Shack burglary, as well as Detective Ferraro and the Allentown and
Bethlehem Police Departments. See N.T., 3/17/15, at 28-29. According to
Detective Wasserman, the Bethlehem detectives informed him that two
males entered the store by throwing what appeared to be a hammer through
the window, and that the men were carrying a large blue tote, bolt cutters,
and a yellow crowbar. See id. at 31-32. The Bethlehem detectives also told
Detective Wasserman that they could see a green minivan outside the store.
See id. at 32, 33. Detective Wasserman also learned that one of the males
was wearing a black shirt and camouflage pants; the other was wearing a
camouflage jacket; and both had their faces covered. See id. at 33.
Detective Bruchak testified that, using binoculars, he saw the black
Lexus parked in front of the residence. See N.T., 3/20/15, at 12. Further,
he observed two black males in the backyard of the residence, carrying a
large blue tote toward the house. See id. Detective Bruchak noted that “it
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looked like [] they were struggling to carry it….” Id. Detective Bruchak
then observed a black male walk west on East Allen Street and enter the
residence through the front door. See id. at 14. Detective Bruchak testified
that, several minutes later, a black male exited the residence, placed a dark-
colored duffle bag with orange trim in the trunk of the Lexus, and returned
to the residence. See id. Detective Bruchak also testified that, several
minutes later, the same male exited the residence, placed a plastic garbage
bag (which “appeared to have items in it”) in the back seat of the Lexus, and
returned to the residence. Id. at 15.
Detective Bruchak testified that, about 10 to 15 minutes later, a black
male exited the residence and walked east on East Allen Street. See id. at
16. Several minutes later, Detective Bruchak observed another black male
exit the residence and walk east on East Allen Street. See id. at 19.
Detective Bruchak testified that the green minivan, coming from the
direction in which the two males had just walked, returned to the residence
and parked on the south side of the residence. See id. at 19-20. Detective
Bruchak observed the front passenger exit the minivan and place a white
towel or blanket on top of something in the backyard, and then place the
item, which was rectangular in shape, in the back of the minivan. See id. at
23. Detective Bruchak testified that the minivan then drove west on East
Allen Street. See id. at 24. Additionally, Detective Bruchak testified that a
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black male exited the residence through the front door, got into the Lexus,
and drove west on East Allen Street. See id.
Detective Wasserman informed the Allentown Police Department that
the vehicles had left 602 North Randolph Street and provided their direction
of travel. See N.T., 3/17/15, at 35. Detectives Wasserman and Bruchak
remained at the residence for several minutes. See id. Detective Bruchak
testified that they heard over the police radio that the minivan had parked at
the Congress Apartments, and two males were seen fleeing on foot. See
N.T., 3/20/15, at 26. Detectives Bruchak and Wasserman proceeded to the
Congress Apartments. See id. at 26. Detective Bruchak testified that by
looking through the passenger window of the minivan, he could see that the
ignition had been punched out. See id. at 28. Detective Bruchak stated
that the minivan was registered to the New Jersey Department of the
Treasury, but had not been reported stolen at that time. See id.
Additionally, Detective Bruchak testified that the New Jersey Department of
the Treasury subsequently confirmed that the minivan had been stolen from
their lot and gave the detectives permission to conduct a search. See id.
Detective Bruchak observed broken glass on the floor of the minivan, and
found a white towel, a yellow crowbar and orange bolt cutters. See id.
Detective Ferraro testified that on August 13, 2014, at approximately
7:00 a.m., he received a call from Detective Wasserman, who advised him
of the Radio Shack burglary, and told Detective Ferraro that he was going to
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602 North Randolph Street to conduct surveillance. See N.T., 3/25/15, at
17-18. Detective Ferraro added that he had spoken to Detective
Kazmierczak in February 2014, who told Detective Ferraro about an ongoing
investigation of Holmes in connection with smash-and-grab burglaries in
New Jersey. See id. at 19; see also id. (wherein Detective Ferraro testified
that Detective Kazmierczak had also told him that Holmes would probably be
staying at 602 North Randolph Street). Detective Ferraro testified that,
throughout the morning, he was communicating via cell phone and police
radio with Detective Wasserman and other detectives. See id. at 21.
Additionally, Detective Ferraro testified that, after being made aware that
the minivan’s ignition had been punched out, he made contact with the New
Jersey Department of the Treasury, which ultimately verified that the
minivan had been stolen from their lot. See id. at 23-24. Detective Ferraro
stated that he was aware that a crowbar and a mallet had been recovered
from the van. See id. at 24-25. According to Detective Ferraro, Holmes
was in the back of an Allentown police car when he arrived at the vehicle
stop of the Lexus. See id. at 26-27. Detective Ferraro testified that, by
looking into the window of the Lexus, he immediately observed a camouflage
jacket in the passenger side of the back seat, sitting on top of a garbage
bag. See id. at 26; see also id. (wherein Detective Ferraro testified that he
had information that one of the males involved in the Radio Shack burglary
was wearing a camouflage jacket). Detective Ferraro also testified that
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during the course of the vehicle search, the detectives found a large duffle
bag in the trunk, which contained approximately 80 cell phones in their
original packaging. See id. at 27-28. Further, Detective Ferraro confirmed
that the phones had been stolen during the Verizon Wireless Store burglary.
See id. at 29; see also N.T., 3/20/15, at 47 (wherein Detective Carroll
testified that he matched the serial numbers on the recovered cell phones to
the inventory list provided by the manager of the Verizon Wireless Store).
Upon review, we conclude that the evidence of record supports the
trial court’s factual findings. See Arnold, 932 A.2d at 145. Detectives
Wasserman and Ferraro had both received information from Detective
Kazmierczak regarding an ongoing investigation of Holmes in connection
with a series of smash-and-grab burglaries in New Jersey. Detective
Wasserman and Detective Ferraro were also aware that Holmes would likely
be staying at 602 North Randolph Street, and previous drive-bys confirmed
that the black Lexus was registered to Holmes. Based on the Bethlehem
detectives’ review of the Radio Shack surveillance footage, Detective
Wasserman and Detective Bruchak were aware that one of the males
involved in the burglary was wearing a camouflage jacket; the suspects used
a blue tote; and a green minivan was parked outside of the store.
Detectives Wasserman and Bruchak arrived at the residence within 10 to 15
minutes of receiving the radio transmission. Additionally, while conducting
surveillance of the residence, Detective Bruchak observed two black males
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carry a large blue tote into the house from the backyard, before another
black male, wearing a camouflage jacket, entered the front door of the
residence. Officer Bruchak then observed a black male carry a dark-colored
duffle bag and a garbage bag to the Lexus. Further, Officer Bruchak
observed two males place a covered object into the back of the minivan
before leaving. Finally, a black male exited the front of the residence, and
drove away in the black Lexus. Thus, based on the totality of the
circumstances, we discern no abuse of discretion in the trial court’s
determination that Detective Ferraro had reasonable suspicion that criminal
activity was afoot at the time he ordered the stop of the Lexus. See
Commonwealth v. Roman, 714 A.2d 440, 443 (Pa. Super. 1998)
(concluding that investigatory detention was supported by reasonable
suspicion, where, within minutes of receiving a tip that two individuals were
on a stolen bike, the police officer saw two individuals on a bike in that
location, and determined that the bike was stolen based on the serial
number); see also Wiley, supra.
Moreover, after the initial stop of the Lexus, Detective Ferraro became
aware that the minivan had been stolen from the New Jersey Department of
the Treasury, and that a search of the minivan revealed a mallet, bolt
cutters, and a crowbar. Consistent with Detective Bruchak’s observations at
the residence, Detective Ferraro observed, in plain sight through the window
of the Lexus, a garbage bag and camouflage jacket. Therefore, we discern
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no abuse of discretion in the trial court’s conclusion that the warrantless
search of the Lexus was supported by probable cause. See
Commonwealth v. Gary, 91 A.3d 102, 138 (Pa. 2014) (holding that “[t]he
prerequisite for a warrantless search of a motor vehicle is probable cause to
search; no exigency beyond the inherent mobility of a motor vehicle is
required.”). Accordingly, Holmes is not entitled to relief on his first claim.7
In his second claim, Holmes contends that the trial court erred in
allowing the admission of illegally-obtained evidence during trial. Brief for
Appellant at 26. Holmes argues that the trial court improperly referenced
the blue tote found in his residence multiple times during his trial. Id. at
28-29. Holmes claims that the Commonwealth also improperly admitted as
evidence video surveillance footage of the suspects carrying a blue tote, a
photograph of the blue tote positioned behind reportedly stolen
merchandise, and various items documented during the search of his
residence (i.e., a mallet, black head socks, and a ninja-style mask). Id. at
29.
7
Holmes argues that the evidence recovered from the vehicle search should
be suppressed as “fruit of the poisonous tree,” resulting from the illegal
search of his residence. Brief for Appellant at 18, 26. However, we observe
the vehicle search occurred several hours before the search of Holmes’s
residence. Thus, the evidence recovered from the vehicle search did not
arise out of the illegal search of Holmes’s residence. See Commonwealth
v. Johnson, 68 A.3d 930, 946 (Pa. Super. 2013) (stating that “[a] fruit of
the poisonous tree argument requires an antecedent illegality.”) (emphasis
added, citation omitted).
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Our standard of review concerning the admissibility of evidence is well
settled:
With regard to the admission of evidence, we give the trial court
broad discretion, and we will only reverse a trial court’s decision
to admit or deny evidence on a showing that the trial court
clearly abused its discretion. An abuse of discretion is not
merely an error in judgment, but an overriding misapplication of
the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will or partiality,
as shown by the evidence of the record.
Commonwealth v. Talbert, 129 A.3d 536, 539 (Pa. Super. 2015) (citation
omitted).
Initially, our review of the record reveals that Holmes failed to object
to any of the references made to the blue tote at trial. Additionally,
Holmes’s trial counsel specifically stated that he had no objection to the
admission of the other challenged evidence (i.e., surveillance footage, a
photograph of the blue tote, a mallet, and various masks). Accordingly,
Holmes’s second claim is waived. See Commonwealth v. Molina, 33 A.3d
51, 55 (Pa. Super. 2011) (stating that “a defendant’s failure to object to
allegedly improper testimony at the appropriate stage in the questioning of
the witness constitutes waiver.” (citation and quotation marks omitted));
see also Commonwealth v. Pearson, 685 A.2d 551, 555 (Pa. Super.
1996) (en banc) (stating that “[f]ailure to raise a contemporaneous
objection to the evidence at trial waives that claim on appeal.” (citing
Pa.R.A.P. 302(a)).
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We additionally note that, the challenged references to the blue tote
were made by Detective Bruchak, based on his personal observations while
conducting surveillance, prior to the search of Holmes’s residence. See
Commonwealth v. Povish, 387 A.2d 1282, 1284-85 (Pa. 1978)
(concluding that, although certain items of clothing had been suppressed,
the trial court did not err in allowing the introduction of a copy of the police
report containing descriptions of that clothing, as reported by witnesses,
because “[t]here was ample evidence that the description of the clothing
worn by the perpetrator of the robberies had been ascertained from
independent sources prior to the illegal search.”). Moreover, contrary to
Holmes’s assertion, the complained-of items were not found during the
search of his residence. See N.T., 4/27/15, at 106 (wherein Detective
Sergeant Kott testified that she collected the hammer mallet from the
minivan); see also N.T., 4/28/15, at 38 (wherein Detective Ferraro testified
that the ninja-style mask and head socks were recovered from the Lexus).
Accordingly, the trial court did not err in admitting the challenged evidence,
and Holmes is not entitled to relief on his second claim.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2017
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