Com. v. Cavallero, R. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RICHARD CAVALLERO, II
Appellant No. 58 WDA 2016
Appeal from the Judgment of Sentence October 14, 2013
In the Court of Common Pleas of McKean County
Criminal Division at No(s): CP-42-CR-0000486-2012
BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 10, 2016
Richard Cavallero, II, appeals from the judgment of sentence entered
in the Court of Common Pleas of McKean County following his jury-trial
convictions for criminal conspiracy1/robbery,2 criminal solicitation3/robbery,
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1
18 Pa.C.S.A. § 903.
2
18 Pa.C.S.A. § 3701.
3
18 Pa.C.S.A. § 902(a).
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criminal conspiracy/burglary,4 criminal conspiracy/criminal trespass-enter
structure,5 and criminal conspiracy/simple assault.6 Upon review, we affirm.
The charges in this matter relate to the robbery of a fifty-year-old
woman that occurred in her apartment. The testimony at trial revealed the
following. The victim, Sheila Goodnow, had a prescription for Fentanyl
patches to help manage her pain. On July 26, 2012, at about 10:00 PM,
after Goodnow had recently filled her prescription, Tyler Sherman knocked
on Goodnow’s door, claiming to be a police officer. When Goodnow opened
the door, Sherman pushed her onto a seat, put a knife to her throat,
covered her eyes, and demanded her Fentanyl patches. Goodnow told
Sherman to take one off her arm, which he did, and ran out of the
apartment.
Jessica Smith was walking down the street when she heard a woman
scream. Smith saw a man dressed in all black run down the street and jump
into the passenger seat of a red pick-up truck that drove away with the
lights off. She noted the license plate and phoned the police with the
information.
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4
18 Pa.C.S.A. § 3502.
5
18 Pa.C.S.A. § 3503.
6
18 Pa.C.S.A. § 2701.
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Michelle Distrola, a practical nurse working for the Smethport Family
Practice, testified that on the date in question, Cavallero and Goodnow were
both at Smethport Family Practice. Goodnow was discussing her Fentanyl
patch medication at the reception window while Cavallero was in the waiting
room.
Jessica Abplanalp, Sherman’s girlfriend, testified that on July 26, 2012,
Cavallero came to the house she shared with Sherman to cut her hair. She
overheard a conversation between Cavallero and Sherman, in which
Cavallero told Sherman he knew of a woman that had just received a
Fentanyl prescription and it would be easy to take them from her. Cavallero
told Sherman he needed his help because the woman knew who he was;
thus, around 9:00 PM, Sherman left the house dressed in dark clothing and
got into Cavallero’s red pick-up truck. Abplanalp testified Sherman returned
about 40 minutes later, and told her he had gone into a woman’s house and
taken a Fentanyl patch from her arm.
Sherman testified, corroborating that Cavallero had informed him
about the woman with the Fentanyl prescription and that it would be easy to
take them. Sherman further stated that he and Cavallero discussed robbing
her. After entering Cavallero’s truck to go to Goodnow’s building, Sherman
told Cavallero he was worried someone else would be in the apartment.
Cavallero indicated he had a knife, which Sherman took and used in the
robbery. Sherman also used a bandana that had been in Cavallero’s truck to
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cover his face. After arriving at the apartment building, Cavallero directed
Sherman to Goodnow’s apartment.
Assistant Chief Mike Ward of the Bradford City Police Department
received information regarding the incident and suspected Abplanalp might
have relevant information. Chief Ward contacted her, and based on their
conversation, began preparing an application for a search warrant. On July
27, 2012, at about 3:00 PM, Cavallero was apprehended while standing with
his red pick-up truck outside the police station, where he was given
Miranda warnings.7 A search warrant was executed on his truck, from
which a black bandana and knife were recovered. Sherman was also taken
into custody and interviewed, and he admitted that he had robbed Goodnow.
He further stated he had used the black bandana and the knife from
Cavallero’s truck in the robbery.
On July 27, 2012, Cavallero was arrested and charged with the
aforementioned conspiracy and solicitation offenses. On August 6, 2013, a
jury found Cavallero guilty on all counts. On October 14, 2013, Cavallero
was sentenced to an aggregate sentence of 7½ to 17 years’ incarceration.
Cavallero filed a timely notice of appeal and court-ordered concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On appeal, Cavallero raises two issues for our review:
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7
Miranda v. Arizona, 384 U.S. 436 (1966).
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I. Did the [t]rial [c]ourt err when it denied [Cavallero’s]
[m]otion to [s]uppress [e]vidence as it pertains to a black
bandana, when the [a]pplication for [s]earch [w]arrant only
describes a “blue bandana,” and a Case fixed-blade knife, when
the same [a]pplication for [s]earch [w]arrant merely describes
“a knife” with no particularity?
II. Were the [j]ury’s verdicts supported by sufficient evidence to
convict [Cavallero] of [c]riminal [c]onspiracy/[r]obbery,
[c]riminal [c]onspiracy/[b]urglary, [c]riminal [c]onspiracy/
[c]riminal [t]respass-[e]nter [s]tructure, and [c]riminal
[c]onspiracy/[s]imple [a]ssault?[8]
Brief for Appellant, at 4.
Cavallero first challenges the sufficiency of the evidence. We review
the sufficiency of evidence according to the following standard:
[W]e evaluate the record in the light most favorable to the
verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013)
(internal citations and quotation marks omitted).
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Cavallero does not include in his statement of questions a claim that the
conviction for criminal solicitation was not supported by sufficient evidence;
however, he does include that charge in the argument section of his brief.
Because we are able to engage in meaningful review of the claim, we will not
consider it waived.
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“[T]he trier of fact, while passing upon the credibility of the witnesses
and weight of the evidence produced, is free to believe all, part or none of
the evidence.” Commonwealth v. Valette, 613 A.2d 548, 549 (Pa. 1992)
(internal citations omitted). In applying this test, we may not weigh the
evidence and substitute our judgment for that of the fact-finder.
Commonwealth v. Blystone, 617 A.2d 778, 780 (Pa. Super. 1992).
Here, four of Cavallero’s five convictions were for conspiracy.
Sherman committed the acts constituting the underlying crimes of robbery,
burglary, criminal trespass, and simple assault, while Cavallero was involved
in planning and aiding Sherman in carrying out those acts.
To establish robbery, the Commonwealth must show:
[I]n the course of committing a theft, [a person]: (i) inflicts
serious bodily injury upon another; (ii) threatens another with or
intentionally puts him in fear of immediate serious bodily injury;
(iii) commits or threatens immediately to commit any felony of
the first or second degree; (iv) inflicts bodily injury upon another
or threatens with or intentionally puts him in fear of immediate
bodily injury; (v) physically takes or removes the property from
the person of another by force however slight[.]
18 Pa.C.S.A. § 3701.
To establish burglary, the Commonwealth must show: “[W]ith the
intent to commit a crime therein, the person: (1) enters a building or
occupied structure, or separately secured or occupied portion thereof that is
adapted for overnight accommodations in which at the time of the offense
any person is present[.]” 18 Pa.C.S.A. § 3502.
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To establish criminal trespass, the Commonwealth must show:
“[K]nowing that he is not licensed or privileged to do so, [a person]: (i)
enters, gains entry by subterfuge or surreptitiously remains in any building
or occupied structure or separately secured or occupied portion thereof; or
(ii) breaks into any building or occupied structure or separately secured or
occupied portion thereof.” 18 Pa.C.S.A. § 3503(a).
To establish simple assault, the Commonwealth must show an
individual “(1) attempts to cause or intentionally, knowingly or recklessly
causes bodily injury to another . . . [or] (3) attempts by physical menace to
put another in fear of imminent serious bodily injury[.]” 18 Pa.C.S.A. §
2701.
Here, the Commonwealth presented evidence that Sherman knocked
on Goodnow’s residence pretending to be a police officer, pushed her onto a
seat, put a knife to her throat and demanded her Fentanyl patches. In the
course of a theft, he put Goodnow in fear of immediate serious bodily injury,
thus establishing robbery. With the intent to perform a robbery, Sherman
entered Goodnow’s apartment, a building adapted for overnight
accommodations where she was present at the time of the offense,
establishing burglary. He gained entry to an occupied structure by
subterfuge, claiming to be a police officer, establishing criminal trespass.
Finally, he attempted to put Goodnow in fear of imminent serious bodily
injury by putting the knife to her throat, establishing simple assault.
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Cavallero alleges that the Commonwealth’s evidence was insufficient
to sustain his convictions for criminal conspiracy with respect to the above
crimes. Conspiracy is defined, in relevant part, as follows:
A person is guilty of conspiracy with another person or persons
to commit a crime if with the intent of promoting or facilitating
its commission he: (1) agrees with such other person or
persons that they or one or more of them will engage in conduct
which constitutes such crime or an attempt or solicitation to
commit such crime; or (2) agrees to aid such other person or
persons in the planning or commission of such crime or of an
attempt or solicitation to commit such crime[.]
18 Pa.C.S.A. § 903.
“[A] conspiracy conviction requires proof of (1) an intent to commit or
aid in an unlawful act, (2) an agreement with a co-conspirator and (3) an
overt act in furtherance of the conspiracy.” Commonwealth v. Spotz, 716
A.2d 580, 592 (Pa. 1998). A conspiracy conviction requires proof of a
shared criminal intent; however, because it is difficult to prove an explicit or
formal agreement to commit an unlawful act, the agreement may be proven
by circumstantial evidence, such as the relations, conduct, or circumstances
of the parties of overt acts of the co-conspirators. Id.The agreement to engage in an unlawful act creates a theory of
vicarious liability called conspiracy liability. Commonwealth v. Hannibal,
753 A.2d 1265, 1273 (Pa. 2000). This liability theory “assigns legal
culpability equally to all members of the conspiracy. All co-conspirators are
responsible for actions undertaken in furtherance of the conspiracy
regardless of their individual knowledge of such actions and regardless of
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which members of the conspiracy undertook the action.” Id. (internal
citations omitted).
Instantly, the Commonwealth presented sufficient evidence to
establish criminal conspiracy. The evidence, when viewed in the light most
favorable to the Commonwealth as verdict winner, shows that Cavallero was
present in the waiting room of the Smethport Family Practice when Goodnow
discussed her Fentanyl prescription. Later that same day, he went to cut
Abplanalp’s hair and told Sherman that he knew of a woman with a Fentanyl
prescription and that it would be easy to take her patches. Cavallero elicited
Sherman’s help because he believed Goodnow would recognize him. He
then returned to Sherman’s home later in the evening and drove Sherman to
Goodnow’s residence, providing him with a knife, a bandana to cover his
face, and the location of the apartment. Finally, Cavallero provided the
escape vehicle, driving away after the robbery with his lights off, evincing his
knowledge that Sherman had committed a criminal act. All of these
relations, circumstances, and actions provided sufficient evidence for the
jury to find a criminal conspiracy. Spotz, supra.
Furthermore, because a criminal conspiracy to commit a robbery was
found, all the overt criminal acts Sherman committed in furtherance of that
conspiracy are imputable to Cavallero through co-conspirator liability.
Hannibal, supra. Therefore, we find that there was sufficient evidence to
support the jury’s verdicts on the conspiracy charges.
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Cavallero also argues that the evidence was insufficient to prove
criminal solicitation. “A person is guilty of solicitation to commit a crime if
with the intent of promoting or facilitating its commission he commands,
encourages, or requests another person to engage in specific conduct which
would constitute such crime[.]” 18 Pa.C.S.A. § 902(a). Here, the evidence
demonstrated that Cavallero informed Sherman that he needed his help for
fear of being recognized, and provided transportation and items needed for
the robbery. Accordingly, the Commonwealth submitted sufficient evidence
to support the jury’s verdict on criminal solicitation.
Cavallero’s final claim is that the trial court erred when it denied his
motion to suppress evidence, specifically, the black bandana and “Case
fixed-blade knife.” Cavallero argues that the bandana described in the
search warrant is a “blue bandana” and a black bandana was seized; thus it
should have been suppressed because of the discrepancy between the
description in the warrant and the actual item seized. He further alleges
that because a knife is a common item and the one used in the robbery had
distinct features, the knife should have been described with more
particularity in the warrant. This claim is meritless.
We review the denial of a motion to suppress physical evidence as
follows:
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is limited to determining
whether the factual findings are supported by the record and
whether the legal conclusions drawn from those facts are
correct.
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[W]e may consider only the evidence of the prosecution and so
much of the evidence for the defense as remains uncontradicted
when read in the context of the record as a whole. Where the
record supports the findings of the suppression court, we are
bound by those facts and may reverse only if the court erred in
reaching its legal conclusions based upon the facts.
Commonwealth v. Houck, 102 A.3d 443, 455 (Pa. Super. 2014) (internal
citations and quotations omitted). Here, the record supports the trial court’s
factual findings, so we proceed to examine the court’s legal conclusions.
A search warrant may not be used as a general investigatory tool to
uncover evidence of a crime. In re Casale, 517 A.2d 1260, 1263 (Pa.
1986). The necessary components of a search warrant are set forth in
Pa.R.Crim.P. 205, which provides as follows:
Each search warrant shall be signed by the issuing authority and
shall: (1) specify the date and time of issuance; (2) identify
specifically the property to be seized; (3) name or describe with
particularity the person or place to be searched; (4) direct that
the search be executed either; (a) within a specified period of
time, not to exceed 2 days from the time of issuance, or; (b)
when the warrant is issued for a prospective event, only after
the specified event has occurred; (5) direct that the warrant be
served in the daytime unless otherwise authorized on the
warrant . . .; (6) designate by title the judicial officer to whom
the warrant shall be returned; (7) certify that the issuing
authority has found probable cause based upon the facts sworn
to or affirmed before the issuing authority by written affidavit(s)
attached to the warrant; and (8) when applicable, certify on the
face of the warrant that for good cause shown the affidavit(s) is
sealed pursuant to Rule 211 and state the length of time the
affidavit(s) will be sealed.
Pa.R.Crim.P. 205.
However, even though Rule 205 forbids general or exploratory
searches, search warrants should “be read in common sense fashion and
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should not be invalidated by hypertechnical interpretations. This may mean,
for instance, that when an exact description of a particular item is not
possible, a generic description will suffice.” Pa.R.Crim.P. 205 (cmt.); see
also, Commonwealth v. Matthews, 285 A.2d 510, 513-14 (Pa. 1971)
(affirming denial of motion to suppress because, “[t]o rule otherwise, merely
because the warrant specified a ‘pocket knife’ whereas ‘a kitchen knife’ was
seized would be hypertechnical and contrary to the common-sense approach
mandated by [the United States Supreme Court]”).
Under the Pennsylvania Constitution, the items sought to be seized
must be described as nearly as possible before the issuance of a warrant.
Pa. Const. Art. I, § 8. When assessing “the validity of the description
contained in a warrant, a court must determine for what items probable
cause existed.” Commonwealth v. Grossman, 555 A.2d, 896, 900 (Pa.
1989). The sufficiency of the description is measured against those items
for which probable cause existed, and any unreasonable discrepancies
between the items and the description require suppression. Id.Instantly, the application for the search warrant lists, inter alia, a “blue
bandana” and “a knife.” Although a discrepancy does exist between the
black bandana seized and the description contained in the search warrant
application, it is not an unreasonable discrepancy warranting suppression.
The description of the items for which probable cause existed were based on
the testimony of the victim, Goodnow, and an eyewitness, Smith. The
women testified that the attacker was wearing either “all black” or, as stated
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in the probable cause affidavit, “dark” clothing. Both women also testified
that it was approximately 10:00 PM and pitch-black outside. Therefore, it
would be contrary to common sense and “hypertechnical” to invalidate the
search warrant describing a bandana as blue when it is in fact black, when
the victim managed only to briefly glimpse her attacker before being
blindfolded. Pa.R.Crim.P. 205; Matthews, supra.
Cavallero also claims the knife should have been described with more
particularity because it is a “Case fixed-blade knife.” Goodnow testified that
she only briefly saw the knife before Sherman put his hands over her eyes,
but that it felt “like a blade” against her throat. N.T. Trial, 8/15/13, at 52.
Because an exact description of the particular item was not possible, and
because we are convinced that the search in this case was not exploratory, a
“generic description” is sufficient. Pa.R.Crim.P. 205. Accordingly, the trial
court did not err in declining to suppress the knife.
In sum, we find that the Commonwealth presented sufficient evidence
to support the jury’s verdicts for all five counts and that the trial court did
not err in denying Cavallero’s motion to suppress.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2016
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