Com. v. Jones, J. ( 2016 )


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  • J-S02014-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    JAMAZ JONES,
    Appellant                  No. 3468 EDA 2014
    Appeal from the Judgment of Sentence November 18, 2014
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0008253-2013
    BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.
    MEMORANDUM BY SHOGAN, J.:                           FILED MARCH 15, 2016
    Appellant, Jamaz Jones, appeals from the judgment of sentence
    entered following his convictions of possession of a controlled substance with
    intent to deliver, simple possession of a controlled substance, and
    conspiracy. We affirm.
    The trial court summarized the underlying facts of this case as follows:
    At about 6:45 AM, on June 8, 2013, Philadelphia Police
    Officer Stacy Wallace was conducting surveillance in the area of
    900 North Broad Street, in Philadelphia, with her partner Police
    Officer Shipman. Officer Wallace observed [Appellant] and Kevin
    Baldwin having a conversation in a parking lot common to a
    McDonald’s restaurant and a gas station.
    At approximately 7:00 AM, a black female approached
    Baldwin and engaged in a brief conversation. Baldwin then
    pointed to [Appellant] who was standing nearby. The female
    approached [Appellant], engaged in a brief conversation, then
    handed him an unknown amount of United States Currency
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    (USC), whereupon [Appellant] retrieved a clear baggy from his
    buttocks area and handed objects to the female.
    Approximately 10 minutes later, a white female later
    identified as Dana Ramenter approached Baldwin and engaged in
    a brief conversation. Baldwin again pointed to [Appellant] and
    both Baldwin and Ramenter walked over to [Appellant]. After a
    brief conversation, Ramenter handed [Appellant] an unknown
    amount of USC. [Appellant] again retrieved a clear baggy from
    the area of his buttocks and handed pink objects to Ramenter,
    who then left the area.
    Ramenter was stopped nearby, within view of Officer
    Wallace, Baldwin and [Appellant]. Baldwin and [Appellant] were
    looking in the direction of the arrest of Ramenter, then started to
    leave. Backup officers stopped [Appellant] and recovered from
    his person $327 in USC and a black iPhone. Nothing was
    recovered from Baldwin.
    At the police station a more thorough search was done of
    [Appellant’s] person, yielding a clear baggy with nine heat-
    sealed packets[,] which was recovered from his anus. Those
    packets proved to contain cocaine.
    Trial Court Opinion, 4/30/15, at 3-4 (citations omitted)
    In an information filed on July 2, 2013, Appellant was charged with the
    crimes of possession of a controlled substance with intent to deliver, simple
    possession of a controlled substance, and conspiracy.          Appellant filed a
    motion to suppress all physical evidence, and the trial court held a hearing
    on January 28, 2014. The trial court denied Appellant’s motion to suppress
    on February 5, 2014. On November 18, 2014, at the conclusion of a nonjury
    trial, Appellant was convicted of the crimes stated above. Also on that date,
    the trial court sentenced Appellant to serve an aggregate term of
    incarceration   of   eleven   and   one-half   to   twenty-three   months,   with
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    permission for the sentence to be served on house arrest, to be followed by
    three years of probation. This timely appeal followed.
    On December 17, 2014, the trial court entered an order directing
    Appellant to comply with Pa.R.A.P. 1925(b) and file a concise statement
    within twenty-one days. However, Appellant erroneously filed an untimely
    Rule 1925(b) concise statement with this Court on January 12, 2015.
    Appellant’s Rule 1925(b) concise statement was eventually received in the
    trial court on January 30, 2015. The trial court issued its opinion pursuant
    to Pa.R.A.P. 1925(a) on April 30, 2015.1
    ____________________________________________
    1
    We note that, ordinarily, the failure to file a timely court-ordered Rule
    1925(b) concise statement results in a waiver of all issues on appeal. See
    Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Hill, 
    16 A.3d 484
    , 494 (Pa.
    2011) (explaining Rule 1925(b) is a bright-line rule). However, “[t]he
    complete failure to file the [Rule] 1925 concise statement is per se
    ineffectiveness because it is without reasonable basis designed to effectuate
    the client’s interest and waives all issues on appeal.” Commonwealth v.
    Thompson, 
    39 A.3d 335
    , 339 (Pa. Super. 2012) (quoting Commonwealth
    v. Burton, 
    973 A.2d 428
    , 432 (Pa. Super. 2009) (en banc)); see also
    generally Commonwealth v. Scott, 
    952 A.2d 1190
    , 1192 (Pa. Super.
    2008). In such circumstances, Rule 1925(c)(3) directs us to remand for the
    filing of a Rule 1925(b) concise statement nunc pro tunc and for the
    preparation of an opinion by the trial court. Pa.R.A.P. 1925(c)(3). Instantly,
    however, Appellant’s Rule 1925(b) concise statement received in the trial
    court on January 30, 2015, although untimely filed, cures the defect that
    would be rectified by a remand pursuant to Rule 1925(c)(3). Further, the
    trial court did not file its Rule 1925(a) opinion until after the filing of the
    untimely Rule 1925(b) concise statement. Therefore, the trial court had the
    opportunity to address Appellant’s issues on appeal. Accordingly, we are not
    precluded from reviewing the issues Appellant advances on appeal as they
    were included in his Rule 1925(b) concise statement.
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    In addition, on January 10, 2015, Appellant filed with the trial court an
    untimely post-sentence motion for modification of sentence.        The record
    does not reflect that the trial court took any action on Appellant’s untimely
    post-sentence motion.
    Appellant presents the following issues for our review:
    [1.] Did the Trial Court review the facts and apply the law
    properly to the determination of Probable Cause when denying
    [Appellant’s] Motion to Suppress his arrest of June 8, 2013[.]
    [2.] Was the evidence that the Commonwealth presented
    at trial sufficient to convict [Appellant] beyond a reasonable
    Doubt of Possession of a Controlled Dangerous Substance and
    Conspiracy.
    Appellant’s Brief at 5.
    We address Appellant’s contentions in reverse order because he would
    be entitled to discharge if the evidence was insufficient to support the
    verdict.   “Because a successful sufficiency of the evidence claim warrants
    discharge on the pertinent crime, we must address this issue first.”
    Commonwealth v. Toritto, 
    67 A.3d 29
    , 33 (Pa. Super. 2013). Moreover,
    we do not review that type of allegation based upon a diminished record;
    instead, we consider all evidence adduced, even that which Appellant claims
    should be suppressed. See Commonwealth v. Koch, 
    39 A.3d 996
    , 1001
    (Pa. Super. 2011) (explaining that “in conducting our [sufficiency] analysis,
    we consider all of the evidence actually admitted at trial and do not review a
    diminished record”).
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    Appellant attempts to argue that the Commonwealth presented
    insufficient evidence to support his convictions.     However, Appellant has
    abandoned any argument concerning the sufficiency of the evidence.
    Regarding sufficiency-of-the-evidence issues, an appellant must specify the
    elements upon which the evidence was insufficient in order to preserve the
    issue for appeal. See Commonwealth v. Williams, 
    959 A.2d 1252
    , 1257–
    1258 (Pa. Super. 2008) (finding waiver where the appellant failed to specify
    the elements of particular crime not proven by the Commonwealth).          See
    also Commonwealth v. Gibbs, 
    981 A.2d 274
    , 281 (Pa. Super. 2009)
    (finding claim waived under Williams for failure to specify either in Rule
    1925(b) statement or in argument portion of appellate brief which elements
    of crimes were not proven beyond a reasonable doubt).
    Appellant has failed to specify in his appellate brief the elements of the
    crimes that were allegedly not established.     Rather, Appellant’s argument
    consists of citation to case law pertaining to the standard of review for
    sufficiency of the evidence, a reference to Merriam Webster’s Dictionary, a
    self-serving recitation of the facts of the case, and a veiled challenge to the
    trial court’s determination of the credibility and reliability of the evidence.
    Appellant’s Brief at 11-12.   Appellant’s argument ends with the following
    summation:
    All the Commonwealth has proven is that [Appellant] had
    two conversations in the Parking lot of a McDonalds and a Gas
    Station at the Corner of 900 Broad Street, while a police officer
    watched.
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    They have not proven at anytime that [Appellant] sold
    anything, when he was stopped and arrested at the scene, even
    the arresting officers, knowing where the drugs were located
    were unable [t]o locate those drugs. It was not until they
    conducted a strip search of [Appellant] that any Drugs were
    located.
    Appellant’s Brief at 13.   Completely missing from Appellant’s argument is
    any discussion as to which elements of which particular crimes were
    allegedly not proven by the Commonwealth. Consequently, Appellant’s non-
    specific claim challenging the sufficiency of the evidence is waived.
    Williams, 
    959 A.2d at
    1257–1258.
    We next address Appellant’s argument that the trial court erred in
    failing to grant his motion to suppress physical evidence. Appellant’s Brief at
    9-11.    Specifically, Appellant claims that the police lacked the necessary
    probable cause to arrest him. We disagree.
    With respect to an appeal from the denial of a motion to suppress, our
    Supreme Court has stated the following:
    Our standard of review in addressing a challenge to a trial
    court’s denial of a suppression motion is whether the factual
    findings are supported by the record and whether the legal
    conclusions drawn from those facts are correct. When reviewing
    the ruling of a suppression court, we must consider only the
    evidence of the prosecution and so much of the evidence of the
    defense as remains uncontradicted when read in the context of
    the record. . . . Where the record supports the findings of the
    suppression court, we are bound by those facts and may reverse
    only if the legal conclusions drawn therefrom are in error.
    Commonwealth v. Eichinger, 
    915 A.2d 1122
    , 1134 (Pa. 2007) (citations
    omitted). “It is within the suppression court’s sole province as factfinder to
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    pass on the credibility of witnesses and the weight to be given their
    testimony.” Commonwealth v. Gallagher, 
    896 A.2d 583
    , 585 (Pa. Super.
    2006).    Moreover, we note that our scope of review from a suppression
    ruling is limited to the evidentiary record that was created at the
    suppression hearing. In re L.J., 
    79 A.3d 1073
    , 1087 (Pa. 2013).2
    Further, we are aware that Pa.R.Crim.P. 581, which addresses the
    suppression of evidence, provides in relevant part as follows:
    (H) The Commonwealth shall have the burden . . . of
    establishing that the challenged evidence was not obtained in
    violation of the defendant’s rights.
    Pa.R.Crim.P. 581(H).
    The Fourth Amendment to the United States Constitution
    and Article I, Section 8 of the Pennsylvania Constitution protect
    individuals from unreasonable searches and seizures, thereby
    ensuring the “right of each individual to be let alone.”
    Schneckloth v. Bustamonte, 
    412 U.S. 218
    , 236, 
    36 L. Ed. 2d 854
    , 
    93 S. Ct. 2041
     (1973); Commonwealth v. Blair, 
    394 Pa. Super. 207
    , 
    575 A.2d 593
    , 596 (Pa. Super. 1990).
    ____________________________________________
    2
    On October 30, 2013, our Supreme Court decided In re L.J., in which the
    Court held that our scope of review from a suppression ruling is limited to
    the evidentiary record that was created at the suppression hearing. L.J., 79
    A.3d at 1087. Prior to L.J., this Court routinely held that, when reviewing a
    suppression court’s ruling, our scope of review included “the evidence
    presented both at the suppression hearing and at trial.” Commonwealth v.
    Charleston, 
    16 A.3d 505
    , 516 (Pa. Super. 2011) (quoting Commonwealth
    v. Chacko, 
    459 A.2d 311
     (Pa. 1983)). L.J. thus narrowed our scope of
    review of suppression court rulings to the evidence presented at the
    suppression hearing. In this case, Appellant’s suppression hearing was held
    after L.J. was decided. Therefore, we will apply the rule announced in L.J.
    to the case at bar. See L.J., 79 A.3d at 1089 (stating holding applies to “all
    litigation commenced Commonwealth-wide after the filing of this decision”).
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    Commonwealth v. By, 
    812 A.2d 1250
    , 1254 (Pa. Super. 2002).
    To secure the right of citizens to be free from intrusions by police,
    courts in Pennsylvania require law enforcement officers to demonstrate
    ascending levels of suspicion to justify their interactions with citizens as
    those interactions become more intrusive.     Commonwealth v. Beasley,
    
    761 A.2d 621
    , 624 (Pa. Super. 2000).
    It is undisputed that:
    [s]tate case law recognizes three categories of interaction
    between police officers and citizens, which include: (1) a mere
    encounter, or request for information, which need not be
    supported by any level of suspicion, but which carries no official
    compulsion to stop or to respond; (2) an investigative detention,
    which must be supported by reasonable suspicion as it 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; and (3) arrest or custodial detention,
    which must be supported by probable cause.
    Commonwealth v. Acosta, 
    815 A.2d 1078
    , 1082 (Pa. Super. 2003) (en
    banc).
    “An arrest is defined as any act that indicates an intention to take the
    person into custody and subjects him to the actual control and will of the
    person making the arrest. . . . The test is an objective one, i.e., viewed in
    the light of the reasonable impression conveyed to the person subjected to
    the seizure rather than the strictly subjective view of the officers or the
    persons being seized.”   Commonwealth v. Butler, 
    729 A.2d 1134
    , 1137
    (Pa. Super. 1999) (quoting Commonwealth v. Rodriquez, 
    614 A.2d 1378
    ,
    1384 (Pa. 1992)).
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    It is well settled that the police may make a warrantless arrest if
    probable cause exists. Commonwealth v. Santiago, 
    736 A.2d 624
    , 629-
    630 (Pa. Super. 1999). Probable cause for an arrest exists if the facts and
    circumstances within the knowledge of the police officer at the time of the
    arrest are sufficient to justify a person of reasonable caution in believing the
    suspect has committed or is committing a crime.          
    Id. at 630
    .    Probable
    cause justifying an arrest is determined by the totality of the circumstances.
    Commonwealth v. Colon, 
    777 A.2d 1097
     (Pa. Super. 2001).                 Probable
    cause does not require certainty, but rather exists when criminality is one
    reasonable inference, not necessarily even the most likely inference.
    Commonwealth v. Lindblom, 
    854 A.2d 604
    , 607 (Pa. Super. 2004). We
    have long stated that in determining whether probable cause existed in a
    particular situation, a court will look not just at one or two individual factors,
    but will consider the “totality of the circumstances” as they appeared to the
    arresting officer.   Commonwealth v. Dennis, 
    612 A.2d 1014
    , 1016 (Pa.
    Super. 1992).
    Applying these standards to the instant case, we conclude that the
    Commonwealth presented facts at the suppression hearing sufficient to
    establish probable cause, thereby justifying Appellant’s arrest. Our review of
    the record reflects that at the suppression hearing the Commonwealth
    presented testimony from Philadelphia Police Officer Stacy Wallace, a
    member of the narcotics unit for over eighteen years. N.T., 1/28/14, at 9-
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    10. Officer Wallace testified that at 6:45 a.m. on June 8, 2013, she was in a
    confidential location observing the area of 900 North Broad Street for illegal
    drug sales.     Id. at 4-5.   At that time, Officer Wallace saw Appellant and
    Kevin Baldwin standing in an outdoor area shared by a McDonald’s
    restaurant and a gas station from a distance of twenty to fifty feet. Id. at 5,
    9. At approximately 7:00 a.m., Officer Wallace witnessed a female approach
    Mr. Baldwin and have a conversation with him. Id. at 6. Mr. Baldwin then
    directed the female to Appellant. Id. Officer Wallace testified that she saw
    the female then walk over to Appellant and engage in a brief conversation.
    Id.   Officer Wallace witnessed the female handing Appellant an unknown
    amount of United States currency and Appellant reaching into his buttocks
    area and retrieving a clear baggy. Id. The officer testified that Appellant
    handed the female small pink objects from the baggie in return for the
    currency. Id. The female then crossed the street and entered an apartment
    building. Id.
    In addition, Officer Wallace testified that, a short time later, she
    observed a second female approach Mr. Baldwin and engage in a brief
    conversation. N.T., 1/28/14, at 6. Again, Mr. Baldwin directed the female
    towards Appellant.     Id. The female then approached Appellant and had a
    brief conversation with him. Id. Then, Officer Wallace saw the female hand
    Appellant an unknown amount of United States currency.         Id.   Appellant
    again retrieved the clear baggy from his buttocks area and handed the
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    female pink objects. Id. During the two transactions Officer Wallace used
    binoculars to aid her vision. Id. at 9. As the female left the area, Officer
    Wallace contacted back-up officers to stop the female. Id. at 7. Upon her
    arrest, the second female placed a pink object into her mouth when the
    police approached her. Id. Officer Wallace testified that Appellant and Mr.
    Baldwin were looking in the direction of the female’s arrest and the two men
    then attempted to leave the scene. Id. Thereafter, Officer Wallace notified
    her back-up officers to arrest Appellant and Mr. Baldwin. Id.
    The totality of the facts, within the knowledge of Officer Wallace at the
    time of the arrest, was sufficient to justify a person of reasonable caution in
    believing that Appellant had committed a crime.       Santiago, 
    736 A.2d at 629-630
    .    Therefore, the officer possessed probable cause necessary to
    permit the warrantless arrest of Appellant, and the suppression court
    properly denied Appellant’s motion to suppress.          Appellant’s contrary
    argument lacks merit.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/15/2016
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