Com. v. Mitchell, B. ( 2017 )

J-S57031-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BYRON MITCHELL, :
:
Appellant : No. 2693 EDA 2016
Appeal from the Judgment of Sentence July 13, 2016
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0000253-2014;
CP-51-CR-0000254-2014; CP-51-CR-0000255-2014
BEFORE: PANELLA, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 17, 2017
Byron Mitchell (“Mitchell”) appeals from the judgment of sentence
imposed following his conviction of one count each of rape, involuntary
deviate sexual intercourse, robbery, sexual assault, attempted kidnapping,
carrying a firearm on a public street in Philadelphia, two counts each of
possession of an instrument of crime, kidnapping and possession of a
firearm prohibited, and three counts each of unlawful restraint and false
imprisonment.1 See 18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 3701(a)(1)(i),
3124.1, 901(a), 6108, 907(a), 2901(a)(1), 6105(a)(1), 2902(a)(1),
2903(a). We affirm.
1
Mitchell was charged on three separate dockets, which were consolidated
for trial.
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In its Opinion, the trial court set forth the relevant factual and
procedural history, which we adopt herein for the purpose of this appeal.
See Trial Court Opinion, 1/4/17, at 1-3 (unnumbered).2
On appeal, Mitchell raises the following issues for our review:
I. Is [Mitchell] entitled to an arrest of judgment with respect
to his convictions for attempted kidnapping, unlawful
restraint, and false imprisonment[,] since the evidence is
insufficient to sustain the verdicts of guilt[,] as the
Commonwealth failed to sustain its burden of proving
[Mitchell’s] guilt beyond a reasonable doubt?
II. Even if the evidence [was] sufficient to support [Mitchell’s]
convictions on all charges[, were] the guilty verdicts []
against the weight of the evidence[?]
III. Did the trial court commit prejudicial error by granting the
Commonwealth’s Motion to consolidate the three cases for
a single trial[?]
IV. [Whether Mitchell] is entitled to a new trial because the
suppression court improperly denied [Mitchell’s] Motion to
suppress the evidence obtained during his arrest and
detention by the police because the police lacked probable
cause to initially detain [Mitchell?]
1. [Whether Mitchell’s] seizure by police following the
traffic stop was unreasonable and not supported by
probable cause[?]
Brief for Appellant at 11 (capitalization omitted, issues renumbered for ease
of disposition).
In his first issue, Mitchell contends that the evidence was insufficient
2
In its Opinion, the trial court incorrectly stated the crimes and counts of
which Mitchell was convicted. The convictions and counts thereof, as stated
previously in this Memorandum, are correct.
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to support his conviction of kidnapping and attempted kidnapping because
the alleged victims had not been moved a “substantial distance” nor
confined for a “substantial period of time.” Id. at 19-21.
In its Opinion, the trial court determined that Mitchell’s challenge to
the sufficiency of the evidence was waived due to his failure to articulate in
his Concise Statement which elements of which crimes were not sufficiently
proven by the Commonwealth.3 See Trial Court Opinion, 1/4/17, at 6-7
(unnumbered). Given that Mitchell was convicted of numerous crimes
against multiple victims, we agree with the reasoning of the trial court, as
stated in its Opinion, and affirm the trial court’s determination that Mitchell’s
challenge to the sufficiency of the evidence is waived. See id.
In his second issue, Mitchell challenges the weight of the evidence
supporting his convictions. Brief for Appellant at 25-26.
Mitchell did not raise any challenge to the weight of the evidence in his
Concise Statement. We therefore affirm the trial court’s determination that
Mitchell’s challenge to the weight of the evidence is waived. See Pa.R.A.P.
1925(b)(3)(vii) (providing that “issues not included in the Statement … are
waived.”); see also Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.
1998) (holding that, if an appellant is directed to file a concise statement of
3
In his Concise Statement, Mitchell stated his sufficiency claim as follows:
“When considering all of the evidence in the light most favorable to the
Commonwealth, there was insufficient [sic] to prove the allegations beyond
a reasonable doubt.” Concise Statement, 10/26/16, at 2 (unnumbered).
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matters to be raised on appeal pursuant to Pa.R.A.P. 1925(b), any issues
not raised in that statement are waived).
In his third issue, Mitchell contends that the trial court erred by
consolidating his three criminal cases for trial. Brief for Appellant at 23.
Mitchell asserts that he was prejudiced by the consolidation, as it caused
unnecessary juror confusion. Id. According to Mitchell, while the separate
attacks bore many similarities, those similarities also prejudiced him. Id.Mitchell argues that, at a minimum, he should have received a separate trial
for the rape case because the other two cases did not involve any sexual
assault or rape. Id. at 24.
In its Opinion, the trial court addressed Mitchell’s third issue, set forth
the relevant law, and concluded that the issue lacked merit. See Trial Court
Opinion, 1/4/17, at 4-6 (unnumbered). We discern no abuse of discretion
by the trial court, and affirm on this basis as to Mitchell’s third issue. See
id.
In his fourth issue, Mitchell contends that the suppression court
improperly denied his Motion to suppress evidence discovered by police
during Mitchell’s initial arrest and search. Brief for Appellant at 26. Mitchell
claims that, at the time the police pulled him out of his vehicle, they had no
reasonable articulable facts to support the contention that criminal activity
was afoot, nor probable cause to arrest him for alleged rape. Id. at 28.
Mitchell argues that, although the initial investigatory detention was
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arguably proper, it evolved into a custodial detention when the responding
officers handcuffed him and transported him to the police station. Id. at 29.
Mitchell contends that the police, by their actions and testimony,
acknowledge that probable cause did not exist. Id. On this basis, Mitchell
asserts that the .38 caliber rounds, bandana and the DNA swab are
inadmissible as “fruits of the poisonous tree.” Id. Mitchell claims that his
consent to the DNA swab is presumed to be involuntary because it was a
product of an illegal detention. Id. at 30.
In cases involving a review of the denial of a defendant’s suppression
motion, we are subject to the following standard of review:
[An appellate court’s] standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. Because the Commonwealth
prevailed before the suppression court, we may consider only
the evidence of the Commonwealth 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 suppression court’s
factual findings are supported by the record, [the appellate
court] is bound by [those] findings and may reverse only if the
court’s legal conclusions are erroneous. Where ... the appeal of
the determination of the suppression court turns on allegations
of legal error, the suppression court’s legal conclusions are not
binding on an appellate court, whose duty it is to determine if
the suppression court properly applied the law to the facts.
Thus, the conclusions of law of the courts below are subject to []
plenary review.
Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa. Super. 2015)
(quoting Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal
citations and quotation marks omitted)).
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In evaluating an interaction between law enforcement and other
citizens, Pennsylvania courts look to whether the interaction is a mere
encounter, an investigatory detention, or a custodial detention. See
Commonwealth v. Downey, 39 A.3d 401, 405 (Pa. Super. 2012). A mere
encounter does not require police to have any level of suspicion that the
person is engaged in wrongdoing. Id. Such an encounter does not compel
the party to stop or respond. Id.An investigative detention subjects an individual to a stop and a short
period of detention. Id. With regard to an investigatory detention,
a police officer may, short of an arrest, conduct an investigative
detention if he has a reasonable suspicion, based upon specific
and articulable facts, that criminality is afoot. The fundamental
inquiry is an objective one, namely, whether the facts available
to the officer at the moment of the intrusion warrant a man of
reasonable caution in the belief that the action taken was
appropriate. This assessment, like that applicable to the
determination of probable cause, requires an evaluation of the
totality of the circumstances, with a lesser showing needed to
demonstrate reasonable suspicion in terms of both quantity or
content and reliability.
Commonwealth v. Shabezz, 129 A.3d 529, 534 (Pa. Super. 2015)
(citation omitted, internal brackets omitted).
A custodial detention must be supported by probable cause, which
exists if there are facts and circumstances within the police officer’s
knowledge that would warrant a person of reasonable caution to believe an
offense has been committed. Commonwealth v. Myers, 728 A.2d 960,
962 (Pa. Super. 1999).
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An arrest must also be supported by probable cause, which exists
when the facts and circumstances within the police officer’s
knowledge and of which the officer has reasonably trustworthy
information are sufficient in themselves to warrant a person of
reasonable caution in the belief that an offense has been
committed by the person to be arrested. Probable cause
justifying a warrantless arrest is determined by the totality of
the circumstances.
Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008) (internal
citations and quotation marks omitted).
Probable cause is governed by an objective standard and “exists when
criminality is one reasonable inference—not necessarily even the most likely
inference.” Commonwealth v. Spieler, 887 A.2d 1271, 1275 (Pa. Super.
2005); see also Commonwealth v. Dennis, 612 A.2d 1014, 1016 (Pa.
Super. 1992) (holding that “we must remember that in dealing with
questions of probable cause, we are not dealing with certainties. We are
dealing with the factual and practical considerations of everyday life on
which reasonable and prudent men act.”); Commonwealth v. Kendrick,
490 A.2d 923, 927 (Pa. Super. 1985) (holding that probable cause “does not
demand any showing that such a belief be correct or more likely true than
false.”).
Here, the following evidence was presented at the suppression
hearing. Detective James Owens (“Detective Owens”) of the Special
Investigations Unit testified that, after the third attack had occurred on
October 15, 2013, the investigation was assigned to his unit. Id. at 51. He
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further testified that two of the victims met with a sketch artist on October
15, 2013, following the third attack, to create the composite sketches. Id.
at 47-49. Detective Owens contacted the Fugitive Squad of the Marshal’s
Task Force and the Major Crimes Home Violence Unit, and asked what
manpower their units could provide to assist in the search for the male
suspect. Id. at 52. These units diverted their officers to help the Special
Investigations Unit patrol the Juniata area on the morning of October 16,
2013. Id. According to Detective Owens, all of the units participating in the
search had been provided with copies of the composite sketches of the male
suspect. Id. at 54.
Officer Jose Silva (“Officer Silva”) testified that, on the morning of
October 16, 2013, he and his partner, Officer Cortes,4 were on duty, in
uniform and in a marked police car, patrolling the Juniata area of
Philadelphia. N.T., 4/5/16, at 4, 17. At that time, they were aware of a
description of a male suspect wanted in connection with the three attacks
that had occurred between October 10-15, 2016, in the Juniata area. Id. at
5. The male suspect had been described as “thin build, black male, five-six,
five-eight possibly[,] dark-complected, wearing Adidas-type jacket or jacket
with stripes across arms, possible bandana.” Id. Additionally, during the
rollcall prior to their shift, Officers Silva and Cortes had received composite
sketches of the male suspect, which depicted the additional distinctive
4
The record does not contain any reference to Officer Cortes’s first name.
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feature of “gappy teeth.” Id. at 5-6. At approximately 9:00 a.m., less than
one hour after seeing the composite sketches, Officers Silva and Cortes saw
a van parked with two occupants: a female on the driver’s side; and a male
on the passenger’s side. Id. at 8, 26. As the officers looked at the male
passenger, he acted in a peculiar way by trying to “scrunch down” to get out
of the officers’ view. Id. at 8. The officers decided to investigate the
vehicle. Id.
After parking behind the vehicle, Officer Cortes approached the
passenger side of the vehicle, opened the door and either asked Mitchell to
step out of the vehicle or pulled him out. Id. at 10, 22. Mitchell somewhat
fit the description of the male that police were searching for, due to “the
thinness, the build, the height, [and] the dark complexion of him.” Id. at
12. Mitchell was also wearing a jacket with white stripes. Id. at 9. Officer
Cortes conducted a pat-down and held Mitchell by the belt. Id. at 10-11.
Officers Silva and Cortes observed Mitchell “looking back and forth
sideways[,]” as if he was “trying to think of an escape.” Id. at 11. Officers
Silva and Cortes, afraid that Mitchell would try to run away, placed him in
the back seat of their patrol car. Id. The officers asked Mitchell to smile,
and observed that he had gap in his teeth. Id. at 12-13, 68. Mitchell
initially told the officers that he did not have any identification, and gave
them a name which they were unable to trace. Id. at 12. When confronted
with this information, Mitchell produced identification. Id.
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Meanwhile, Detective Owens had been alerted that a patrol car had
stopped a van, and he and his partner proceeded to the scene. Id. at 53.
Detective Owens testified that each of the three attacks had occurred within
a few blocks of the location where the van was parked. Id. When Detective
Owens arrived at the scene, Mitchell was outside the van, speaking to the
officers. Id. at 54. According to Detective Owens, Mitchell was wearing a
blue jacket with red and white stripes. Id. at 59. Based on the description
provided by the victims, Mitchell’s physical appearance, and his proximity to
the locations where the assaults had occurred, Detective Owens directed the
officers to bring Mitchell to the 24th District police station for questioning.
Id. at 55.
Mitchell was taken to the police station, where officers found two .38
caliber rounds and a blue and white bandana in his possession. Id. at 57.
Although Mitchell had told Detective Owens that he was not on probation or
parole, upon investigation, Detective Owens discovered that Mitchell was on
parole, and contacted Mitchell’s parole officer, Sean Finnegan (“Finnegan”).
Id. at 56-57, 59. Finnegan thereafter stopped at Mitchell’s residence before
proceeding to the police station, where Finnegan confronted Mitchell
regarding the two rounds of ammunition that had been found in Mitchell’s
possession. Id. at 68-69. Mitchell admitted to Finnegan that the rounds
were for a firearm, that Mitchell had used illegal drugs, and had left town
without permission, all in violation of his parole. Id. at 69.
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At the conclusion of the suppression hearing, the suppression court
made the following factual findings:
THE COURT:
Officer Silva from the 24th [D]istrict testified [that] on
[October 16, 2013,] he was out in the early morning, or [8:00]
a.m., [9:00] a.m. in uniform, in a marked car, and happened
upon a van in which [Mitchell] was riding. As [Officer Silva]
looked towards the van that morning, gone over the sketch[es],
which [are Exhibits] C-1 and C-2, of an individual wanted for
assaults in the neighborhood, as he looked towards the van, he
could see the male was slouching down, seeming to avoid police.
The car is stopped and [Mitchell] is questioned. At some
point [Mitchell] is in the back of the [police] car …. [Mitchell]
fitted the description of the sketches. The officers asked him to
smile, at which time he showed a gap between his teeth, which
apparently was one of the descriptions given by one of the
victims.
With this, this was someone who matched the description
of an individual responsible for three violent assaults. They were
speaking to him and detained him. He was brought to the police
24th district and [] Finnegan, [Mitchell’s] parole officer, sat down
with him.
At that time, [Finnegan] had the information that [Mitchell]
had two rounds of amm[unition], which is a violation of his
parole. He was asked about the amm[unition]. And according
to [Finnegan], he did not warn [Mitchell] of his Miranda[5]
warnings because of his position as a parole officer. [Mitchell]
told [Finnegan] it was ammunition for a firearm. [Finnegan]
asked [Mitchell] if he had left the area. [Mitchell] said [“]yes[”],
he [had] left the area. [Finnegan a]sked [Mitchell] if he [had]
used [illegal] drugs, [and Mitchell told Finnegan that] he had
used [illegal] drugs ….
[Finnegan], I believe[,] had been contacted [by police].
[Finnegan] went to [Mitchell’s] house before [Finnegan]
interviewed [Mitchell].
5
Miranda v. Arizona, 384 U.S. 436 (1966).
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Is that my understanding?
[THE PROSECUTOR]:
Yes.
THE COURT:
[Finnegan] was at [Mitchell’s] house before and observed,
and he was allowed to go into that house in his position as a
parole officer. [Finnegan] understood that [Mitchell] was being
detained, and he observed a jacket with stripes on the sleeves.
[Finnegan] eventually filed a detainer, had [Mitchell] held,
which would have happened whether or not there were charges
or no charges. [Mitchell] was going to be held for parole
violations.
Detective Owens testified that he was part of a team that
was on the lookout for the individual involved with the three
serious assaults on October 10, 2013, October 10, 2013, and
October 15, 2013, and because of the information, he had a
good idea of what the suspect would look like, having seen the
sketches, [and] the location where [Mitchell] was stopped.
[Detective Owens] spoke to [Mitchell]. [Mitchell,] at that
time[,] told [Detective Owens] that [Mitchell] was not on
probation or parole, which of course was untrue.
N.T., 4/5/16, at 67-70 (footnote added).6 Upon these findings, the
suppression court denied Mitchell’s Motion to suppress.7
6 Notably, Officer Silva testified that, when Mitchell was placed in the back of
the patrol car, he was not handcuffed. See N.T., 4/5/16, at 11, 25.
However, Detective Owens testified as to his belief that Mitchell was
handcuffed when in the back of the patrol car. See id. at 61. Because we
may only consider so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a whole, we may
not consider this evidence. See Jones, supra.
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Based on our independent review, we conclude that suppression
court’s factual findings are supported by the record. See id.; see also id.
at 4-25, 46-61. Officer Silva provided specific and articulable facts to
support his reasonable suspicion that criminality activity was afoot; namely,
that Mitchell had attempted to “scrunch down” in the van so as to avoid
detection by police. Therefore, the initial investigatory detention conducted
by Officers Silva and Cortes was legal. Further, probable cause supporting
the custodial detention and subsequent arrest was established, as Mitchell fit
the physical description of the male suspect that police were looking for (i.e.,
gender, ethnicity, height, build, complexion, and “gappy teeth”), his clothing
matched that of the male suspect (a jacket with white stripes), he had
attempted to avoid detection by police, and was spotted by police just blocks
from where the incidents had occurred, and on the day after the last attack
had occurred. See Commonwealth v. Powers, 398 A.2d 1013, 1015 (Pa.
1979) (holding that the police had probable cause to arrest three men who
were in the general area and fit the description of suspects in an assault that
had occurred 15 minutes before); Commonwealth v. Riley, 425 A.2d 813,
817 (Pa. Super. 1981) (holding that, even if the “arrest” occurred at the
7
Although Mitchell contends on appeal that the suppression court erred by
denying his request to suppress a DNA swab, Mitchell’s Motion to suppress
failed to make any reference to the DNA swab, nor was any testimony
offered, or argument made, at the suppression hearing regarding the DNA
swab. Thus, Mitchell failed to preserve any claim regarding the DNA swab
for our review. See Pa.R.A.P. 302 (providing that “[i]ssues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).
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stationhouse, the arresting officer was entitled to rely upon the comparison
of appellant to the composite sketch); Commonwealth v. Lybrand, 416
A.2d 555, 559 (Pa. Super. 1979) (holding that suppression of a statement
the defendant made in custody was properly denied because the defendant
matched the composite drawing of the suspect in a murder which had
occurred the day before, and because of the circumstances under which the
drawing was obtained, there was probable cause for the arrest for murder);
Commonwealth v. Sabb, 409 A.2d 437, 441 (Pa. Super. 1979) (holding
that there was probable cause to arrest the defendant a half-hour after the
crime occurred, and three and one-half blocks from the scene, based on the
victim’s general description). Moreover, Mitchell was subject to arrest
because he was in violation of his parole due to his possession of
ammunition and admissions that he had left town and used illegal drugs.
Therefore, based on the totality of the circumstances, we conclude that
Mitchell’s detention and subsequent arrest were legal, and the suppression
court did not err in denying Mitchell’s Motion to suppress. Accordingly, we
affirm as to Mitchell’s final issue.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:11/17/2017
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0024_Opinion
Circulated 10/20/2017 01:01 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEAL TH OF PENNSYLVANIA PHILADELPHIA COUNTY
COURT OF COMMON PLEAS
VS. NOS. 51-CR-0000253-2014,
5I-CR-0000254-2014,
5I-CR-0000255-2014
CP-51-CR-0000253-2014 Comm. v. Mitchell, Byron
Opinion
BYRON MITCHELL
FILED
I 1111111111111111 1111111
7884011471 JAN 04 2017
OPINION Appeals/Post ll'laJ
Office of Judicial Aecortfs
PROCEDURAL HISTORY
Defendant, Byron Mitchell, was charged by way of the above three Bills of Information
· with, inter alia, single counts of rape, involuntary deviate sexual intercourse, robbery, sexual
assault, attempted kidnapping, carrying a firearm on a public street, and possession of an
instrument of crime, generally, two counts of kidnapping, three counts of unlawful restraint, two
counts of false imprisonment, and two counts of possession of a firearm prohibited. These
charges arose out of three separate following incidents that occurred on October 13, 2013, and
October 15, 2013, during which Defendant victimized three women, A. B., then twenty-two (22)
years old, C. F., then twenty (20) years old, and N. A., then fifteen (15) years old, near the Erie-
-----·---- -~~----- ....... ..-....--...---..-------------- ......... .-.-- .... -...-... ..... .-..--.. ................. Q,MM••ttMRW_..._.,,_, ---•Mta_, __
1
Torresdale Market-Frankford Line in Juniata Park, Philadelphia. The first victim, A.8. was
raped at gunpoint and robbed. The second victim, C. F. was assaulted at gun point and the third
victim, N. A. was accosted and threatened.
These charges were consolidated for trial by the Honorable Diana L. Anhalt following a
hearing on the Commonwealth's motion to consolidate. (N.T. 8/5/14, 4- 7). Defendant asked for
a trial by jury, which took place from April 5th, 2016 until April 8th 2016. On April 8, 2016, the
jury found Defendant guilty of all of the above listed charges. Sentencing was deferred until July
131h, 2016, on which date this Court sentenced defendant to an aggregate sentence of
incarceration of 30 to 60 years in a state correctional facility followed by 20 years consecutive
probation.
On August 101\ 2016, Defendant filed a timely post-sentence motion alleging that the
trial court erred by failing to grant a Defense Motion to Suppress the arrest of Defendant, it was
error to fail to grant a defense motion to exclude the fruits of the search incident to the unlawful
arrest, including his statement, it was error to grant the Commonwealth's Motion to consolidate
the three (3) separate cases for trial, there was insufficient evidence to prove the allegations
beyond a reasonable doubt, it was error to deny a defense motion for judgment of acquittal, and
the verdict was against the weight of the evidence. On October 30th, 2016, this Court denied the
motion. Defendant thereafter filed a timely notice of appeal and a requested Pa.R.A.P. 1925(b)
statement.
FACTUAL HISTORY
On the morning of Oct. 13, 2013, the first victim, A. B. (22) was walking on Maywood
Street near Lycoming toward the Erie-Torresdale Market-Frankford Line stop around 6:30 a.m.,
I
The matters were consolidated by the Honorable Diana Anhalt on the motion of the Commonwealth on August 5,
2014.
. -·--·-·---------------------~---
when Defendant came out of an alley, grabbed her jacket and brandished a handgun. He then
dragged her into an alley, raped her and stole $30 cash and fled the scene. Later that same
morning, C. F., the second victim, was on O Street near Hunting Park Avenue headed toward the
same Market-Frankford Line stop when Defendant attempted to pull her into an alley at
gunpoint. In that attack, part of which was caught on a surveillance video, a car driving down the
street scared the attacker off and gave the victim time to run away.
The last incident occurred on Oct. 15, 2016. Defendant again came out of an alley and
accosted N. A., the third victim, while she was on her way to school near Hunting Park Avenue
around 7:20 a.m. Defendant grabbed Ms. Atkins' arm and threatened her, but she managed to
break free and run to her home, which was nearby.
Following the three incidents, Special Victims Unit patrol officers Silva and Cortes, part
of a task force formed to find the assailant or assailants in the three attacks, spotted Defendant,
who matched a composite sketch based on the victims' description of him, inside a parked
minivan located on the 1500 block of Cayuga Street, near where the three incidents occurred.
Defendant was arrested at approximately 9 a.m. on October 16, 2013, by officers Silva and
Cortes for violating his parole on a prior armed robbery charge.
DISCUSSION
In his first two claims, Defendant argues that this Court erred by denying his Motion to Suppress
physical evidence and statements given by him because authorities lacked probable cause to arrest him.
In addition to the findings of fact and conclusions of law set forth following the suppression hearing/ this
Court would add that the arrest was clearly legal because the arresting officer had seen the composite
sketch and had reason to conclude that Defendant, who when stopped was in the area where the incidents
herein occurred, matched the person depicted in the sketch. See Commonwealth v. Lybrand, 416 A.2d
2See N.T. 4/5/16, 67-70).
---------------------·-----·· ·- -
555, 558-559 (Pa. Super. 1979) (holding that police had probable cause to arrest based on a composite
sketch). Accordingly, it is suggested that relief be denied with respect to this claim.
Defendant next claims that it was error to grant the Commonwealth's Motion to
Consolidate the Charges. Issues of this sort are reviewed under an abuse of discretion standard.
Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa. Super. 2005). Pa.R.Crim.P. 582 controls
here and states that offenses charged in separate indictments may be consolidated for trial if the
evidence of each of the offenses would be admissible in a separate trial for the other and is
capable of separation by the jury so there is no danger of confusion. Pa.R.Crim.P. 582(A)(l)(a).
In deciding whether evidence of each offense would be admissible in another trial, courts must
remember that evidence of distinct crimes are not admissible against a defendant being
prosecuted in another crime solely to show his bad character and his propensity for committing
criminal acts. Commonwealth v. Lark, 543 A.2d 49, 497 (Pa 1988); Commonwealth v. Taylor,
671 A.2d 235 (Pa. Super. 1996). Nevertheless, evidence of other crimes may be admissible
where the evidence is relevant for some other legitimate purpose. Lark, supra; Commonwealth v.
Brown, 342 A.2d 84 (Pa. 1975); Commonwealth v. Taylor, 671 A.2d 235 (Pa. Super. 1996).
Legitimate purposes include:
"(l ) motive; (2) intent; (3) absence of mistake or
accident; (4) a common scheme, plan or design embracing
commission of two or more crimes so related to each other
that proof of one tends to prove the others; or (5) to
establish the identity of the person charged with the
commission of the crime on trial, in other words, where
there is such a logical connection between the crimes that
proof of one will naturally tend to show that the accused is
the person who committed the other."
Lark, 543 A.2d at 493, quoting Commonwealth v. Morris, 425 A.2d 715, 720 (Pa. 1981 ). See
also Commonwealth v. Brown, 342 A.2d 84 (Pa 1975). Further, evidence of other crimes is
~-----------------------------------------
admissible for a sixth legitimate purpose in situations where distinct crimes were part of a chain,
or one of sequence of events, or became part of the history of the case on trial, or was part of the
natural development of the facts. Lark, 543 A.2d at 497.
Instantly, Judge Anhalt granted the Commonwealth's motion because of the numerous
similarities in the commission of each of the three crimes. First, they each occurred within a
couple of days and a few blocks of one another under almost identical circumstances. In each
crime, defendant accosted young women who were alone at the time, at approximately the same
time of day. In each case defendant intended to force his victim into a desolate spot and luckily
he succeeded in that endeavor only once. Confronted with this evidence, Judge Anhalt properly
granted the Commonwealth's motion.
In Commonwealth v. Armstrong, 74 A.3d 228 (Pa. Super. 2013), the Superior Court
ruled that the lower court did not abuse its discretion by granting consolidation of two counts of
burglary that took place in close temporal and geographic location, and which were committed
against women who were alone in their homes late at night. In both instances Armstrong
employed similar methods in his attempts to gain entry and the burglaries occurred two months
apart, late at night, in the same area of the city. The Superior Court rested its decision on the fact
that the Commonwealth demonstrated a high levels in the details of the crimes making it very
unlikely that any one other than defendant committed them. Id., 74 A.3d at 234. See also
Commonwealth v. Janda, 14 A.3d 147 (Pa. Super. 2011) (holding that consolidation of nine
burglary cases was appropriate because the nine burglarized homes were located within
approximately a five- to six-mile radius of one another, the residences were mostly not
observable from a nearby road, the burglaries were committed over a five-month time span, and
evidence from each theft was relevant to the prosecution of the other thefts to establish identity
as the perpetrator. Janda, 14 A.3d at 156.
Accordingly, for all of the foregoing reasons, Defendant's claim with respect to this issue
should be denied.
In his last three issues, defendant baldly argues that the evidence was insufficient to
sustain the charges, this Court erred by denying a motion seeking a Judgment of Acquittal, and
the verdicts were against the weight of the evidence. It is respectfully suggested that these claims
be deemed waived because of defects in the manner in which these issues were presented in his
Pa.R.A.P. l 925(b) statement. Specifically, Defendant fai Jed to articulate why the evidence was
insufficient, how or why it was e1TOr to deny his motion for judgment of acquittal, and how the
verdicts were against the weight of the evidence.3
The purpose of Rule I 925(b) is "to aid trial judges in identifying and focusing upon those issues
which the parties plan to raise on appeal," Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa. Super. 2002),
citing Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), so that the trial court may prepare an appropriate
opinion. "The absence of a trial court opinion poses a substantial impediment to meaningful and effective
appellate review." Commonwealth v. Siebert, 799 A.2d 54, 62 (Pa. Super. 2002), quoting Lord, 719 A.2d
at 308. For this reason, Rule 1925 is considered "a crucial component of the appellate process." Lemon,
804 A.2d at 62, quoting Lord, 719 A.2d at 308. The failure to prepare a proper Rule I 925(b) statement
impedes the trial court's "preparation of a legal analysis which is pertinent to those issues," thereby
hindering appellate review. Id., quoting, In re Estate of Daubert, 757 A.2d 962, 963 (Pa. Super. 2000).
Pa.R.A.P. l 925(b)(4)(ii) provides that an appellant's concise statement of errors complained of on
appeal "shall concisely identify each ruling or error that the appellant intends to challenge with sufficient
detail to identify all pertinent issues for the judge"). Pa.R.A.P. l 925(b)(4)(vii) provides that "Issues not
3 Both a motion for a judgment of acquittal and a claim that the evidence was insufficient challenge the sufficiency
of the evidence to sustain a conviction and are governed by the same legal standards. See Commonwealth v.
Hutchinson, 947 A. 2d 800, 805 (Pa. Super. 2008)
included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)( 4) are
waived". See also Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) (citations omitted)
("Rule l 925(b) statement must be 'specific enough for the trial court to identify and address the issue [an
appellant] wish(es] to raise on appeal' ... if a concise statement is too vague, the court may find waiver").
Applying the foregoing to Defendant's sufficiency claim it should be deemed waived because
Defendant failed to articulate which elements of the crimes of which he was convicted the
Commonwealth failed to establish. "[W]hen challenging the sufficiency of the evidence on appeal, the
[a]ppellant's [Rule] 1925 statement must 'specify the element or elements upon which the evidence was
insufficient' in order to preserve the issue for appeal." Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.
Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010) (quoting Commonwealth v. Williams, 959 A.2d 1252,
1257 (Pa. Super. 2008)). "Such specificity is of particular importance in cases here ... the [a]ppellant was
convicted of multiple crimes each of which contains numerous elements that the Commonwealth must
prove beyond a reasonable doubt." Gibbs, supra (holding appellant waived challenge to sufficiency of
evidence where appellant failed to specify in Rule 1925(b) statement which convictions, and which
elements of those crimes, he was challenging on appeal; fact that trial court addressed appellant's
sufficiency claim in its opinion was of no moment to waiver analysis).
Similarly, case law is clear that the failure to articulate in a Pa.R.A.P. J 925(b) statement why or
how a verdict is against the weight of the evidence waives such a claim for purposes of appellate review.
See Commonwealth v. Seibert, 799 A.2d 54, 62 (Pa. Super. 2002) (holding that appellant waived review
of weigh claim because it was too vague to permit the trial court to review it).
Accordingly, it is suggested that the Honorable Court deem Defendant's last three issues waived
for purposes of appellate review because of the vague manner in which they were raised in his Pa.R.A.P.
4
J 925(b) statement.
4
Even if the claims are deemed not to have been waived, it is suggested that the claims be found to lack merit. In
assessing the sufficiency of evidence, the court must view the evidence in the light most favorable to the verdict
winner - in this case, the Commonwealth- and determine whether that evidence proves each element of the crime
........ I I PWtt ! i ·.a u:.a J U 1
CONCLUSION
Based on the foregoing, the judgment of sentence should be affirmed.
By the Court,
DATE:Jt/n_
beyond a reasonable doubt. Commonwealth v. Boczkowski, 846 A.2d 75, 80 (Pa. 2004). With regard to the
sufficiency of the evidence, the Commonwealth satisfied its burden by presenting testimony from the victims with
regard to the crimes and by establishing that each of the crimes were so similar in the manner in which they were
committed that proof of one established that defendant committed the others. In addition, the verdicts were not
against the weight of the evidence given that the witnesses gave credible testimony and the crimes were so similar
thereby undermining any claim that the verdicts shock the conscience, the test applicable to weight claims. See
Commonwealth v. Sanchez, 36 .3d 24, 27 (Pa. 2011) (stating that "(r]elief on a weight of the evidence claim is
reserved for extraordinary circumstances, when the jury's verdict is so contrary to the evidence as to shock one's
sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail."
( citation omitted)).