Com. v. Royal, H.

J-S27042-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HOZAY A. ROYAL :
:
Appellant : No. 2203 EDA 2021
Appeal from the Judgment of Sentence Entered July 19, 2021
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0005423-2018
BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED DECEMBER 12, 2023
Hozay A. Royal (“Royal”) appeals pro se from the judgment of sentence
imposed following his jury conviction for two counts of retail theft.1 We affirm.
The evidence at the suppression hearing established the following. On
an evening in August 2018, Michael Matarazzo (“Matarazzo”), a loan
prevention officer at Bloomingdales (“the store”) at the Willow Grove Mall in
Montgomery County, was watching a security camera and saw Royal put
bedsheets inside of his bag. See N.T., 1/29/20, at 5-6. After watching Royal
leave the store without paying for the bedsheets, Matarazzo radioed mall
security and any available police unit in the area. See id. at 6-7. Matarazzo
also telephoned Abington Township Police Officer Andrew Ammaturo (“Officer
Ammaturo”), with whom he worked, and gave him “a brief description of the
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1 18 Pa.C.S.A. § 3929(a)(1).
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person and what he was carrying, clothing, beard, stuff like that,
distinguishing marks.” Id. at 6-7, 12-13.
Abington Township Police Officer Dustin Wittmer (“Officer Wittmer”)
received a report of the theft, Royal’s description, and his approximate
location from Officer Ammaturo. See id. at 18-19. Officer Wittmer pulled
beside Royal’s car and turned on his emergency lights. See id. at 20. Royal
drove slowly away, then stopped, and fled on foot to a Cheesecake Factory
restaurant. See id. at 20-21. Officer Wittmer caught and detained him in the
restaurant. See id. at 21-22.
Officer Ammaturo arrived at the scene and heard Matarazzo identify
Royal as the thief. See id. at 14-15. In plain view in the front passenger
seat of Royal’s car, Officer Ammaturo saw the stolen bedsheets. See id. at
15.
Prior to trial, Royal filed a suppression motion challenging the legality of
his arrest. See Omnibus Pre-Trial Motion, 1/23/20, at 3-6. A suppression
hearing took place, at which Matarazzo, and Officers Ammaturo and Wittmer
testified as described above. The trial court denied Royal’s motion to
suppress. The case immediately proceeded to a jury trial and the jury
convicted Royal of retail theft. After his conviction, Royal stated he wished to
waive the right to counsel and proceed pro se. The court conducted a Grazier2
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2 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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hearing and permitted Royal to proceed pro se with stand-by counsel. See
N.T., 10/20/20, at 7.
At Royal’s sentencing for these offenses and another crime,3 he
challenged the court’s ruling on the motion to suppress and asserted he could
not be sentenced for felonies because the criminal information did not give
him sufficient notice of his prior offenses. See N.T., 7/19/21, at 13, 29-31.
The trial court denied Royal’s claims and imposed a sentence for this docket
of one and one-half to seven years of imprisonment.4
Royal filed a timely post-sentence motion, a later supplement, and an
untimely notice of appeal, which the trial court denied.5 Both Royal and the
trial court complied with Pa.R.A.P. 1925.
Royal presents the following issues for our review:
1. Did the trial court err in refusing to arrest judgment when it
considered oral testimony at the suppression hearing and
[Royal] challenged the face of the affidavit of probable cause
as insufficient to establish probable cause pursuant to
Pa.R.Crim.P. 513(B)(4)?
2. Did the sentencing court err as a matter of law when it imposed
an illegal sentence when the Commonwealth failed to aver prior
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3 See CP-46-CR-4389-19, the appeal of which is before this Court at
J-S27043-22.
4 In case CP-46-CR-4389-19, the Court sentenced Royal to three to fourteen
years of imprisonment to be served consecutively to the sentence in this
matter.
5 We will regard this appeal as having been filed after the entry of an order
denying post-trial motions. See Pa.R.A.P. 905(a)(5).
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retail theft convictions in the information contrary to precedent
of this Court and the Supreme Court of Pennsylvania?
Royal’s Brief at 3 (numeration added, unnecessary capitalization omitted).
In his first issue, Royal contends the trial court erred in failing to grant
his motion for an arrest of judgment because the court wrongly permitted oral
testimony at the suppression hearing. See Royal’s Brief at 7-16. We
disagree.
When ruling on a motion in arrest of judgment, a trial court is
limited to ascertaining the absence or presence of that quantum
of evidence necessary to establish the elements of the crime. At
this stage in the proceedings, the trial court is limited to rectifying
trial errors, and cannot make a redetermination of credibility and
weight of the evidence. . . .
Commonwealth v. Marquez, 980 A.2d 145, 147-48 (Pa. Super. 2009) (en
banc) (quotation marks and citation omitted). A motion for an arrest of
judgment is a vehicle for challenging the sufficiency of evidence at trial, not a
means by which to seek reconsideration of a trial court’s denial of suppression.
See id. at 148. Thus, to the extent Royal challenges the denial of his motion
to arrest judgment, the claim does not merit relief.
To the extent Royal challenges the denial of his motion to suppress, we
note our well-settled standard of review.
Our standard of review . . . is limited to determining whether the
findings of fact are supported by the record and whether the legal
conclusions drawn from those facts are in error. In making this
determination, this [C]ourt may only consider the evidence of the
Commonwealth’s witnesses, and so much of the witnesses for the
defendant, as fairly read in the context of [the record], which
remains uncontradicted. If the evidence supports the findings of
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the trial court, we are bound by such findings and may reverse
only if the legal conclusions drawn therefrom are erroneous.
Commonwealth v. Gindraw, 297 A.3d 848, 851 (Pa. Super. 2023) (citation
omitted).
The legal basis for Royal’s assertion the trial court was bound by the
four corners of the affidavit of probable cause in judging the legality of the
arrest is less than clear. In both his omnibus pre-trial motion and his brief on
appeal, Royal acknowledged his arrest was warrantless. See Omnibus Pre-
Trial Motion, 1/23/20, at 3-4; Royal’s Brief at 8. By definition, a warrantless
arrest occurs without an arrest warrant or application for an arrest warrant.
The complained-of affidavit of probable cause here was part of the criminal
complaint following Royal’s warrantless arrest and clearly labeled as such.
See Police Criminal Complaint, Affidavit of Probable Cause, 8/2/18. Thus,
Royal’s reliance on Pa.R.Crim.P. 513(B)(4)6 as a basis for precluding
testimony at the suppression hearing is misplaced. See Commonwealth v.
Evans, 303 A.3d 175, 185 (Pa. Super. 2023) (rejecting claim of
ineffectiveness premised on counsel’s failure to file a motion to suppress
challenging the legality of an arrest made prior to the filing of a criminal
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6 Pennsylvania Rule of Criminal Procedure 513 concerns the requirements for
issuance of an arrest warrant and dissemination of arrest warrant
information. Subsection (B)(4) provides, “[a]t any hearing on a motion
challenging an arrest warrant, no evidence shall be admissible to establish
probable cause for the arrest warrant other than the affidavits provided for
in paragraph (B)(2).” Pa.R.Crim.P. 513(B)(4) (emphases added).
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complaint which contained an allegedly defective affidavit of probable cause
because a preliminary hearing is the proper forum to make such a challenge).7
Because Royal did not challenge the allegedly defective affidavit at, or prior
to, the preliminary hearing, his complaints are moot. See id.Moreover, in Commonwealth v. Whitson, 334 A.2d 653 (Pa. 1975),
our Supreme Court rejected the defendant’s claim that defects in an affidavit
of probable cause attached to an arrest warrant required suppression of the
defendant’s confession where the police possessed sufficient knowledge to
justify a warrantless arrest. Whitson, 334 A.2d at 654. Here, as discussed
below, the police had ample probable cause justifying Royal’s warrantless
arrest. Thus, any defects in the affidavit of probable cause did not require
suppression. See id.
Royal challenges the existence of probable cause for his warrantless
arrest. See Royal’s Brief at 10. Under both the United States and
Pennsylvania Constitutions, people are generally free from unreasonable
searches and seizures absent a warrant supported by a showing of probable
cause. See U.S. Const. amend. IV; see also Pa. Const. art. I, § 8. However,
“[n]ot every search must be conducted pursuant to a warrant, for the Fourth
Amendment bars only unreasonable searches and seizures.”
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7 Royal had a preliminary hearing on August 8, 2018, and “waived all charges
to the Court of Common Pleas.” Omnibus Pre-Trial Motion, 1/23/20, at 1.
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Commonwealth v. Taylor, 771 A.2d 1261, 1266 (Pa. 2001) (emphasis
added). Police may conduct a warrantless arrest when they have probable
cause. See Commonwealth v. Thompson, 985 A.2d 928 (Pa. 2009).
Probable cause for arrest is
made out when the facts and circumstances which are within the
knowledge of the officer at the time of the arrest, and of which he
has reasonably trustworthy information, are sufficient to warrant
a man of reasonable caution in the belief that the suspect has
committed or is committing a crime.
Commonwealth v. Brogdon, 220 A.3d 592, 599 (Pa. Super. 2019) (citation
omitted). Moreover, probable cause is not a requirement of “absolute
certainty,” but exists “when criminality is one reasonable inference, not
necessarily even the most reasonable inference.” Commonwealth v.
Spieler, 887 A.2d 1271, 1275 (Pa. Super. 2005) (citation omitted).
Probable cause is evaluated according to the totality of the
circumstances test, which the United States Supreme Court described as
based on “the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.” Illinois v. Gates,
462 U.S. 213, 231 (1983) (citation omitted); see Commonwealth v. Gray,
503 A.2d 921, 926 (Pa. 1985) (holding that the totality of the circumstances
test also meets the requirements of Article I, Section 8 of our Pennsylvania
Constitution).
Here, as detailed above, Matarazzo observed Royal stuff sheets into his
bag and leave the store without paying. See N.T., 1/29/20 at 5-7. Matarazzo
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called Officer Ammaturo and gave him a description of Royal. See id. at 7.
Officer Ammaturo relayed the information to Officer Wittmer, who ultimately
detained and arrested Royal. See id. at 13, 18-21. This was sufficient
probable cause to justify Royal’s warrantless arrest. See Commonwealth v.
Goldman, 252 A.3d 668, 678 (Pa. Super. 2021) (affirming trial court’s denial
of suppression and holding police had sufficient probable cause for a
warrantless arrest where a customer called the police complaining defendant
was causing a disturbance in a store, a store clerk identified defendant to
police, and the defendant appeared intoxicated, cursed at police, then
attempted to flee); Commonwealth v. Andrews, 426 A.2d 1160, 1161-63
(Pa. Super. 1981) (holding police had sufficient probable cause to make a
warrantless arrest where store employees notified store security defendant
tried to pass a forged check, and store security detained defendant and passed
the information to the police, who arrested defendant).8 Royal’s first issue
does not merit relief.
In his second issue, Royal challenges the legality of his sentence. See
Royal’s Brief at 17-25. Royal argues the trial court erred in sentencing him
for retail theft as a third-degree felony because the criminal information did
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8 As the above-cited cases show, there is no basis in law for Royal’s contention
that the information provided to the police by store employees or security is
inherently unreliable and should be treated as if it came from anonymous
informants. See Royal’s Brief at 11-12.
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not detail his prior convictions for retail theft. See id. at 21; see also
Information, 10/1/18, at 1 (unnumbered). Royal maintains the
Commonwealth did not provide him with adequate notice of the sentence he
faced.9 See id. at 21-25.
18 Pa.C.S.A. § 3929 provides as follows, in pertinent part, with respect
to the grading of retail theft offenses:
(1) Retail theft constitutes a:
***
(iv) Felony of the third degree when the offense is a third or
subsequent offense, regardless of the value of the
merchandise.
18 Pa.C.S.A. § 3929(b)(1)(iv).
This Court has previously held that the information does not need to
specify the prior retail thefts for a retail theft to be graded as a third-degree
felony. In Commonwealth v. Orrs, 640 A.2d 911 (Pa. Super. 1994), this
Court stated:
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9 Royal also purports to challenge the legality of the amount of restitution
imposed by the trial court, claiming it exceeded the value of the bed sheets.
See Royal’s Brief at 25. A challenge to the amount of a restitution award
based on the trial court’s consideration of the Commonwealth’s evidence
regarding loss is a challenge to the discretionary aspects of sentence, not the
legality of sentence. See Commonwealth v. Weir, 239 A.3d 25, 38 (Pa.
2020). Royal waived this claim because he did not include it in his Rule
1925(b) statement. See Statement of Errors Complained of on Appeal,
9/27/22, at 1-5. See also Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v.
Given, 244 A.3d 508, 510 (Pa. Super. 2020) (appellant waived all issues on
appeal by failing to raise them in his Rule 1925(b) statement).
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[t]he failure to specify in the information the crimes previously
committed, establishing the basis for charging a felony three, does
not affect the jurisdiction of the court to hear the case and convict
as a felony, third degree. Prior offenses need not be proven at
the preliminary hearing or at trial [to] establish the appropriate
grading of such offense for which the accused may be tried. The
accused need only be placed on notice that the Commonwealth
will seek a third[-]degree felony sentence in the event of
conviction.
Orrs, 640 A.2d 912-13 (quotation marks and citations omitted). Thus, this
Court held where the criminal complaint and the information cited the correct
statute and grading, including the notation “F3” it was sufficient to put the
defendant on notice the Commonwealth was charging him with a felony. Id.We concluded:
[h]ence, the requisite notice and averment of a third[-]degree
felony having been contained in the information and complaint,
jurisdiction to hear the matter . . . clearly was present. The prior
offenses in grading retail theft do not constitute substantive
elements of the offense (felony third degree, Retail Theft); as
such, evidence only may be produced at sentencing for purposes
of grading the crime under subsection (b), Grading.
Id. at 913 (emphasis eliminated).
In the instant matter, the criminal complaint and the bill of information
both informed Royal the charged offense was an F3. See Criminal Complaint,
8/21/18, at 3 (unnumbered); Information, 10/1/18, at 1 (unnumbered).
Moreover, the affidavit of probable cause specifically stated, “Royal has (7)
prior retail theft charges . . . with guilty dispositions[,]” and listed the dates
of the dispositions. Affidavit of Probable Cause, 8/21/18, at 1 (unnumbered).
Further, Royal acknowledged in several pretrial motions the Commonwealth
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graded the offense as a felony. See, e.g., Motion to Modify Pre-trial Bail,
1/6/20, at 1; Omnibus Pre-Trial Motion, 1/23/20, at 1. Thus, Royal received
the required notice. See Orrs, 640 A.2d at 912-13. Royal’s second and final
issue fails.10
Accordingly, for the reasons discussed above, Royal’s claims do not
merit relief. We affirm the judgment of sentence.
Judgment of sentence affirmed.
Date: 12/12/2023
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10 We are not persuaded by Royal’s attempt to distinguish Orrs. See Royal’s
Brief at 17-25. The cases he cites either predate Orrs, do not concern the
retail theft statute, are legally and factually distinguishable, or are not binding
precedent. See id. Orrs is binding precedent in this matter. See Orrs, 640
A.2d at 912-13.
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