Com v. Brown, J. ( 2016 )


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  • J-S67027-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    JOSHUA BROWN
    Appellant                        No. 3299 EDA 2015
    Appeal from the Judgment of Sentence October 22, 2015
    in the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0009707-2012
    BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*
    MEMORANDUM BY RANSOM, J.:                                 FILED OCTOBER 27, 2016
    Appellant, Joshua Brown, appeals from the judgment of sentence of
    eleven and one-half to twenty-three months’ incarceration, three years of
    consecutive     probation,     and    five     years’   probation   concurrent   to   his
    incarceration, imposed after his conviction for possession with intent to
    deliver a controlled substance, possession of a controlled substance, and
    possessing an instrument of crime.1 We affirm.
    We adopt the following statement of facts, derived from the trial
    court’s opinion, which in turn is supported by the trial record.             See Trial
    Court Opinion (TCO), 1/21/16, at 2-3.
    ____________________________________________
    1
    35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), and 18 Pa.C.S. §
    907, respectively.
    *
    Former Justice specially assigned to the Superior Court.
    J-S67027-16
    On May 23, 2012, Philadelphia Police Detective Patrick Smith was
    assigned to assist a Federal Bureau of Investigation (“FBI”) task force. The
    task force had received information that Appellant may have been involved
    in a New York double homicide and that he may have been located at 2005
    West Mayfield Street in Philadelphia. Accompanied by FBI agents and police
    officers, Detective Smith responded to that location and approached the
    front door. He detected a strong odor of fresh marijuana emanating from
    the residence.
    Another officer knocked on the front door of the residence, at which
    time Appellant engaged in a brief conversation with officers through a
    partially open front window.     Officers requested Appellant open the front
    door, but Appellant fled further into the residence and up the stairs. Officers
    could hear him breaking glass and throwing items around.               Officers
    attempted to gain entry through the front door but were unable to open it.
    After that initial interaction, though the front window, Detective Smith
    observed a handgun lying on a couch, in plain view. Another officer moved
    the curtain to maintain the line of sight.
    After five to ten minutes, Appellant allowed officers inside. Thereafter,
    Philadelphia Police Officer Joseph Hanson apprehended Appellant as he
    opened the door.      Officers conducted a protective sweep, secured the
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    residence, and apprehended a woman on the second floor.2 Appellant told
    Officer Hanson his name was Jamie Ellis and gave 2005 West Mayfield Street
    as his home address.
    With Appellant in custody, officers obtained a search warrant for the
    property and executed it later that same day. Police seized a loaded black
    .45 caliber handgun from the couch; two bags of marijuana; fifty-four
    marijuana plants, twelve from the living room and the rest from the second
    floor; a scale; a PH tester; an electric bill in the name of Nakea Williams and
    bearing the 2005 West Mayfield Street address; and $230.96.
    In addition to the facts discussed above, Appellant testified that he
    had gone to the residence May 23, 2012 around 3:00 or 4:00 a.m. to visit
    Williams, with whom he was having a relationship, and slept at the
    residence. Appellant testified that he did not live at the residence and that
    he had not observed the gun or any drugs due to the early hour of his
    arrival.
    Prior to trial, on December 14, 2013, Appellant filed an Omnibus Pre-
    Trial Motion seeking to suppress all evidence recovered from the residence,
    as they were the fruits of an illegal search and arrest. On March 27, 2014,
    Appellant argued this motion before the suppression court.           Appellant
    ____________________________________________
    2
    It is not clear from the record whether this woman was in fact Nakea
    Williams, whose residence this was, or whether she was detained or released
    in connection with this case.
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    averred that police illegally attempted to gain entry to the property and
    should not have moved a curtain blocking their view into the residence, and
    that the smell of marijuana from the home alone did not constitute exigent
    circumstances.      At the conclusion of testimony and argument, the
    suppression court continued the hearing to review case law submitted by
    Appellant. See Notes of Testimony (N. T.), 3/27/14, at 32-36.
    On May 15, 2014, the suppression court denied Appellant’s Motion
    concluding that, based upon the circumstances, officers were permitted to
    conduct a protective sweep of the residence. See N. T., 5/15/14, at 6-7.
    On August 18, 2015, the case proceeded to waiver trial, which
    concluded the same day. The trial court found Appellant guilty of the above
    charges. The court sentenced Appellant to the above-enumerated sentence
    on October 22, 2015.
    Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
    statement. The trial court issued a responsive opinion.
    On appeal, Appellant challenges the legality of the search as well as
    the sufficiency and weight of the evidence. See Appellant’s Brief, at 4. For
    the following reasons, Appellant has waived consideration of his claims.
    Appellant first claims that the court erred in denying his motion to
    suppress. We discern no error in the court’s decision.
    The Pennsylvania Supreme Court has held that “[a]ny issues not
    raised   in   a   [Rule]   1925(b)   statement   will   be   deemed   waived.”
    Commonwealth v. Castillo, 
    888 A.2d 775
    , 780 (Pa. 2005) (quoting
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    Commonwealth v. Lord, 
    719 A.2d 306
    , 309 (Pa. 1998). Issues that are
    only generally raised are also waived.      See Pa.R.A.P.1925(b)(4)(ii) (“The
    [1925(b)] Statement shall concisely identify each ruling or error that the
    appellant intends to challenge with sufficient detail to identify all pertinent
    issues for the judge.”).   A Rule 1925(b) statement “which is too vague to
    allow the court to identify the issues raised on appeal is the functional
    equivalent of no . . . Statement at all.” Lineberger v. Wyeth, 
    894 A.2d 141
    , 148 (Pa. Super. 2006).
    In support of his motion, Appellant challenged, on several grounds, the
    police officers’ protective sweep of the residence.       However, Appellant
    seemingly abandoned this claim on appeal. In Appellant’s Pa.R.A.P. 1925(b)
    Statement, Appellant asserted that “[the] stop and search of Mr. Brown
    was illegal.”   (emphasis added).    In its responsive opinion, the trial court
    addressed solely the legality of a search of Appellant’s person, concluding
    that Appellant’s claim was moot because “no evidence presented indicat[ed]
    that police seized anything from his person when they detained him.” TCO,
    at 6.    Now, in his brief, Appellant reprises the argument raised at the
    suppression hearing by enumerating two allegedly illegal searches: first,
    officers “peering through a window” into the home and second, an officer
    moving the window’s curtain. See Appellant’s Brief, at 8.
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    In the instant case it is apparent that the statement was too vague to
    allow the trial court to properly address the merits of Appellant’s argument,
    and Appellant has waived it for purposes of appeal.3
    In his second issue, Appellant argues that the verdict was against the
    weight of the evidence; however, he has waived this argument for the
    purposes of appeal.        Pennsylvania law is well settled that a weight claim
    must be “preserved either in a post-sentence motion, by a written motion
    before sentencing, or orally prior to sentencing.”         Commonwealth v.
    Thompson, 
    93 A.3d 478
    , 490 (Pa. Super. 2014), (quoting Commonwealth
    v. Lofton, 
    57 A.3d 1270
    , 1273 (Pa. Super. 2012)); see also Pa.R.Crim.P.
    607(A). The trial court opinion accurately reflects that Appellant did not file
    a pre- or post-sentence motion preserving a weight of the evidence claim,
    ____________________________________________
    3
    Even if Appellant had not waived this argument, there was no error in the
    denial of Appellant’s motion. Here, police properly viewed evidence from
    the curtilage. See Commonwealth v. Eichler, 
    133 A.3d 775
    , 783-784
    (2016) (noting officers may enter curtilage in the course of legitimate
    investigations, if they confine the search to areas visitors may reasonably be
    expected to go); see also Commonwealth v. Gibson, 
    638 A.2d 203
    , 207
    (“Police have the power to knock on the doors of the citizens of this
    Commonwealth for investigatory purposes”). Additionally, officers were
    permitted to move the curtain for the limited purpose of determining
    whether the previously viewed weapon remained on the couch and ensuring
    their safety in the process of investigating a double homicide; smelling the
    strong smell of fresh marijuana coming from the home; and hearing
    Appellant smashing things upstairs. See Commonwealth v. Bostick, 
    958 A.2d 543
    , 558 (Pa. Super. 2008) (holding that defendant’s furtive
    movements in home where drug activity was suspected justified exigent
    circumstances in warrantless entry).
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    nor did he argue such a claim orally prior to sentencing.           Thus, he has
    waived this argument on appeal.
    In his sole remaining claim, Appellant argues that the evidence was
    insufficient to support his convictions.         He has waived this argument.   In
    Appellant’s Pa.R.A.P. 1925(b) Statement, he stated that the evidence was
    insufficient to support his convictions because his testimony was credible, a
    weight claim in the guise of a sufficiency argument. See Commonwealth
    v. Small, 
    741 A.2d 666
    , 672 (Pa. 1999) (holding that challenges to the
    sufficiency of the evidence which actually go to the weight of the evidence
    fail); see also 
    Castillo, 888 A.3d at 780
    (noting arguments not raised in
    1925(b) statement are waived for purposes of appeal). In his brief, he now
    attempts to present a proper sufficiency argument, namely that the
    Commonwealth failed to prove constructive possession of the marijuana
    plants.4   Consequently, Appellant has waived his sufficiency argument for
    purposes of appeal.
    ____________________________________________
    4
    Appellant has abandoned the argument found in his Pa.R.A.P. 1925(b)
    Statement that the evidence was insufficient to support his conviction for
    Possession of an Instrument of Crime. In his brief, he raises no argument
    regarding the gun, only argument regarding constructive possession of the
    marijuana.      With regard to Appellant’s claim that the evidence was
    insufficient to support his conviction for possession of marijuana, even if it
    was not waived, it is meritless. Constructive possession may be established
    even absent a marital relationship if the contraband is found in an area of
    joint control and equal access. See Commonwealth v. Mudrick, 
    507 A.2d 1212
    , 1214 (Pa. 1986) (noting that shared access and control is the critical
    factor in determining constructive possession); see also Commonwealth
    v. Jackson, 
    659 A.2d 549
    , 550 (Pa. Super. 1995) (noting siblings had equal
    (Footnote Continued Next Page)
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    J-S67027-16
    Accordingly, Appellant has failed to preserve any claims on appeal.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/27/2016
    _______________________
    (Footnote Continued)
    access to contraband in kitchen cabinets and hallway closets). In the instant
    case, Appellant had equal access to and control of the fifty-four marijuana
    plants contained within the living room and second floor middle bedroom,
    where Appellant had been present at the residence for hours, was involved
    in a relationship with the homeowner, listed the residence as his home
    address on police paperwork, and attempted to destroy evidence of the
    operation by “rummaging” and “breaking glass.”
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