Com. v. Saunders, D. ( 2023 )

J-S29045-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARRIN CHARLE SAUNDERS :
:
Appellant : No. 325 WDA 2022
Appeal from the Judgment of Sentence Entered October 6, 2021
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0000381-2020
BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: JANUARY 17, 2023
Appellant, Darrin Charle Saunders, appeals from the judgment of
sentence of 4½ to 10 years’ incarceration, imposed after he was convicted by
a jury of burglary, conspiracy to commit burglary, criminal trespass, theft by
unlawful taking, and receiving stolen property.1 After careful review, we
affirm.
This case arises out of break-ins at and thefts from the home of Walter
Lapic (Victim) in Daugherty Township, Pennsylvania between September 1,
2019 and January 17, 2020. Appellant was charged with burglary, conspiracy
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3502(a)(2), 903(a)(i), 3503(a)(1)(ii), 3921(a), and 3925(a),
respectively.
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to commit burglary, criminal trespass, two counts of theft by unlawful taking,
one for theft of firearms and the other for theft of other property, and two
counts of receiving stolen property, one for stolen firearms and the other for
property other than firearms. On April 24, 2020, Appellant filed a motion to
suppress evidence seized from the house where he had been living on the
ground that the affidavit of probable cause for the warrant under which the
search and seizure were conducted allegedly contained an intentional,
material misstatement. Omnibus Pretrial Motion § III(A), ¶¶12-28. Following
a hearing, the trial court denied Appellant’s motion to suppress. Trial Court
Order, 9/18/20.
The seven charges against Appellant were tried to a jury from August
31, 2021 to September 2, 2021. At trial, Victim testified that he had copper
scrap stored in the basement of his house and that he reported to the police
in September 2019 that this copper was missing. N.T. Trial, 9/1/21, at 123-
28, 160-63. Victim also testified that guns, a lamp made from a gun, tools,
guitars, car parts and other items were stolen from his house after he
temporarily moved out in December 2019 and identified as his a number of
items that were found in the house where Appellant was living. Id. at 128-
46, 158-60. Victim’s brother testified that in September 2019 when he was
at a nearby scrap yard in Rochester, Pennsylvania, he saw boxes of copper
wire and copper pipe that were wound and folded in the peculiar way that
Victim kept these items. Id. at 89-95, 106. Victim’s brother also testified
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that on January 16, 2020, he checked on Victim’s house after Victim had
recently moved in with another relative, found that the house had been broken
into, and boarded it up. Id. at 77-79, 89, 96. Victim’s brother testified that
the next day, January 17, 2020, he saw several individuals burglarizing
Victim’s house. Id. at 79-87.
Anthony Besiso, in whose house Appellant and Appellant’s girlfriend
were living, testified that he drove Appellant and Appellant’s girlfriend to
Victim’s house in September 2019 and that when he came back to pick them
up, Appellant and Appellant’s girlfriend were carrying buckets of scrap metal.
N.T. Trial, 9/1/21, at 243-44, 249-50, 270-73; N.T. Trial, 9/2/21, at 12, 14.
Besiso testified that he later drove Appellant to a scrap yard in Rochester,
Pennsylvania where Appellant exchanged the scrap metal for cash. N.T. Trial,
9/1/21, at 249-50, 273-74. Besiso also testified that Appellant told him that
there was an abandoned house to which he liked to go and that Appellant had
antiques, car parts, guitars and other items at Besiso’s house, including items
that Victim identified as his. Id. at 252-61. An employee of the Rochester
scrap yard testified that the scrap yard’s records showed that an individual
who was identified as Appellant by his driver’s license sold copper to the scrap
yard in September 2019. Id. at 281-84, 296-99, 302-03.
Two other witnesses testified concerning the January 17, 2020 burglary
of Victim’s house. These witnesses, however, testified that the January 17,
2020 burglary was committed by four individuals other than Appellant and,
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while there was testimony that those perpetrators knew Appellant, neither of
these witnesses testified that Appellant had any involvement in the January
17, 2020 burglary. N.T. Trial, 9/1/21, at 175, 179-81, 184-92, 206-13; N.T.
Trial, 9/2/21, at 20-27, 30-35, 41-42.
On September 2, 2021, the jury convicted Appellant of burglary,
conspiracy to commit burglary, criminal trespass, one count of theft by
unlawful taking of property other than firearms, and one count of receiving
stolen property other than firearms, finding that the value of the stolen
property was more than $200 but less than $2,000. N.T. Trial, 9/2/21, at
137-40; Verdict Sheet at 1-3. The jury acquitted Appellant of the theft by
unlawful taking and receiving stolen property counts that were based on theft
of firearms and possession of stolen firearms. N.T. Trial, 9/2/21, at 138;
Verdict Sheet at 2.
On October 6, 2021, the trial court sentenced Appellant to consecutive
terms of 30 to 60 months’ incarceration and 24 to 60 months’ incarceration
for the burglary and conspiracy to commit burglary convictions and concurrent
terms of 16 to 120 months’ incarceration, 6 to 60 months’ incarceration, and
6 to 60 months’ incarceration for the criminal trespass, theft by unlawful
taking, and receiving stolen property convictions, resulting in an aggregate
sentence of 4½ to 10 years’ incarceration. N.T. Sentencing at 21-23;
Sentencing Order. Appellant filed a post-sentence motion in which he sought,
inter alia, a new trial on the ground that the verdict was against the weight of
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the evidence. Post-Sentence Motion at 2. On February 3, 2022, the trial court
denied Appellant’s post-sentence motion in its entirety. Trial Court Order,
2/3/22. This timely appeal followed.
Appellant presents the following three issues for our review:
[1.] Was the evidence insufficient as a matter of law to sustain the
convictions for burglary and criminal conspiracy to commit burglary?
[2.] Were the guilty verdicts for burglary and criminal conspiracy to
commit burglary against the weight of the evidence presented at trial?
[3.] Did the suppression court err by denying the Defendant’s motion to
suppress the evidence seized during the execution of the search warrant
on January 17, 2020, based upon intentional material misstatements of
fact contained in the affidavit of probable cause that rendered the search
warrant invalid?
Appellant’s Brief at 8 (suggested answers omitted). None of these issues
merits relief.
Our standard of review in a challenge to the sufficiency of the evidence
is well-settled:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence.
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Commonwealth v. Reed, 216 A.3d 1114, 1119 (Pa. Super. 2019).
The burglary offense with which Appellant was charged required proof
that Appellant without license or privilege and “with the intent to commit a
crime therein, … enter[ed] a building or occupied structure, or separately
secured or occupied portion thereof that is adapted for overnight
accommodations.” 18 Pa.C.S. § 3502(a)(2), (b). Appellant argues that the
evidence was insufficient to support his convictions for burglary and
conspiracy to commit burglary because the evidence allegedly showed only
that Appellant stole copper scrap from a sawmill on Victim’s property, not that
he entered and stole from a building or structure adapted for overnight
accommodations. This argument misstates the evidence at trial.
Victim testified that copper scrap that he had in the basement of his
house was missing in early September 2019 and that he was living in the
house at the time. N.T. Trial, 9/1/21, at 118, 123-28, 147, 160-63. While
Victim also testified that copper that he stored in a separate sawmill building
was stolen, he testified that the theft from the sawmill was a different incident
that had happened years earlier. Id. at 123-24, 163-64. Victim also testified
that he never permitted Appellant to come into his house or take anything
from his house. Id. at 147. Another witness, Besisio, testified that in
September 2019 he drove Appellant and Appellant’s girlfriend to Victim’s
house and that when he later picked them up, they were carrying buckets of
scrap metal. Id. at 249, 270-73; N.T. Trial, 9/2/21, at 12, 14. The evidence
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also showed that in September 2019 near the time that Victim reported the
theft of copper scrap from his house, Appellant sold copper scrap to a scrap
yard and that copper scrap was found at that scrap yard that was wound and
folded in the distinctive way that Victim prepared and kept his copper scrap.
N.T. Trial, 9/1/21, at 89-95, 106, 281-84, 296-99, 302-03. This
circumstantial evidence, in combination, was sufficient for the jury to conclude
that Appellant entered Victim’s house, a building adapted for overnight
accommodations, without Victim’s permission to steal copper scrap from
Victim’s house.
Appellant also argues that there was not sufficient evidence that
Appellant had any involvement in the January 17, 2020 burglary to convict
him of conspiracy with respect to that burglary. That assertion is correct.2
The fact that the Commonwealth did not prove that Appellant conspired with
the perpetrators of the January 17, 2020 burglary of Victim’s home to commit
that burglary, however, does not make the evidence insufficient to prove
conspiracy to commit burglary. The evidence showed that Appellant
committed the September 2019 burglary with his girlfriend and that they were
____________________________________________
2 Although there was testimony from one of the January 17, 2020 burglars
that two of the other burglars told her that Appellant said that they could
remove property from Victim’s house, N.T. Trial, 9/1/21, at 208-10, that
testimony cannot prove that Appellant conspired with the January 17, 2020
burglars, as it was hearsay admitted solely to show that burglar’s state of
mind and was not admitted as substantive evidence that Appellant made the
statement. N.T. Trial, 9/2/21, at 112-13.
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assisted by Besiso, who drove them to Victim’s house, picked them up with
the stolen copper, and drove Appellant to the scrap yard to sell the stolen
copper. N.T. Trial, 9/1/21, at 249-50, 270-74; N.T. Trial, 9/2/21, at 12, 14.
That evidence of joint participation and assistance from those two other
individuals is sufficient to prove conspiracy to commit the September 2019
burglary. Reed, 216 A.3d at 1122-23 (evidence that defendant and his
girlfriend went to and from the building that was broken into together and
were together in the building was sufficient to prove conspiracy);
Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa. Super. 2001)
(evidence that two co-defendants went to house together and both attempted
to kick in door was sufficient to prove conspiracy).
Appellant’s second issue similarly fails. A new trial may be granted on
the ground that the verdict is against the weight of the evidence only where
the verdict was so contrary to the evidence that it shocks the trial court’s
sense of justice. Commonwealth v. James, 268 A.3d 461, 468 (Pa. Super.
2021); Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa. Super. 2014).
Our review of the denial of a motion for a new trial based on weight of the
evidence is limited. We review whether the trial court abused its discretion in
concluding that the verdict was not against the weight of the evidence, not
whether the verdict, in this Court’s opinion, was against the weight of the
evidence. Commonwealth v. Clemons, 200 A.3d 441, 463-64 (Pa. 2019);
Commonwealth v. Delmonico, 251 A.3d 829, 837 (Pa. Super. 2021).
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Because the trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge …. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence.
Antidormi, 84 A.3d at 758 (quoting Commonwealth v. Clay, 64 A.3d 1049(Pa. 2013)) (brackets omitted).
Appellant’s challenge to the weight of the evidence is simply a rehashing
of his contention that the evidence was insufficient to prove that Appellant
entered and stole from Victim’s house and conspired to do so. As discussed
above, however, the evidence was sufficient to prove those facts. The trial
court, who heard the witnesses’ testimony and observed their demeanor,
found that there was nothing shocking in the jury’s conclusion that this
evidence was credible. Trial Court Opinion, 2/3/22, at 10. Appellant does not
point to any evidence that the trial court failed to consider or contend that any
item of evidence supporting the verdict was clearly incredible or contradicted
by evidence that should have been given greater weight. Appellant therefore
has not shown that the trial court abused its discretion in ruling that the verdict
was not against the weight of the evidence.
In his final issue, Appellant argues that the trial court erred in denying
his motion to suppress evidence.
Our 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
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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, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous.
Commonwealth v. Andrews, 213 A.3d 1004, 1014 (Pa. Super. 2019)
(quoting Commonwealth v. Mbewe, 203 A.3d 983 (Pa. Super. 2019)). In
reviewing whether the trial court’s findings are supported by the record, we
may consider only the evidentiary record from the suppression hearing.
Commonwealth v. Heidelberg, 267 A.3d 492, 499 (Pa. Super. 2021) (en
banc); Andrews, 213 A.3d at 1014.
The January 17, 2020 affidavit for the warrant to search the house
where Appellant was living stated that a witness had told police that that house
“had been and is currently” being used to hide property stolen from Victim’s
house. Search Warrant Affidavit. Appellant contends that this statement by
the police officer affiant was false because the witness only stated that she
had been in the house in September 2019. Appellant argues this invalidated
the search warrant and that suppression was therefore required because the
search violated his rights under the Fourth Amendment to the United States
Constitution and Article I, Section 8 of the Pennsylvania Constitution.
A search warrant that is based on deliberate misstatements of fact is
invalid if those false statements were necessary to support a finding of
probable cause. Franks v. Delaware, 438 U.S. 154, 155–56, (1978);
Commonwealth v. Burno, 154 A.3d 764, 782 (Pa. 2017). The mere
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presence of an error in the affidavit of probable cause, however, does not
automatically invalidate the warrant. Andrews, 213 A.3d at 1015;
Commonwealth v. Baker, 24 A.3d 1006, 1017-18 (Pa. Super. 2011), aff’d
on other issue, 78 A.3d 1044 (Pa. 2013). The Fourth Amendment and Article
I, Section 8 do not require suppression of evidence unless the misstatement
was deliberate or made in reckless disregard for the truth. Andrews, 213
A.3d at 1014-15; Baker, 24 A.3d at 1017-18; Commonwealth v.
Gomolekoff, 910 A.2d 710, 715 (Pa. Super. 2006). “[M]isstatements of fact
will invalidate a search warrant and require suppression of the fruits of the
search only if the misstatements of fact are deliberate and material.” Baker,
24 A.3d at 1017 (emphasis omitted) (quoting Commonwealth v. Tucker,
384 A.2d 938 (Pa. Super. 1978)). Whether a misstatement in an affidavit of
probable cause was made deliberately or in reckless disregard of the truth is
a question of fact to be determined by the trial court. Baker, 24 A.3d at
1017.
Here, the trial court held a hearing on Appellant’s suppression motion
at which the police officer who prepared and swore to the search warrant
affidavit testified. The trial court found, based on that testimony, that the
officer’s statement in the affidavit of probable cause was not deliberately or
knowingly false. Trial Court Opinion, 9/18/20, at 7. The trial court further
found that the officer had reason to believe from his conversations with the
witness that she had been in the house recently. Id. These factual findings
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are supported by the record. The officer, who the trial court found credible,
id., testified that he understood from speaking to the witness that she had
recently been at the house for which the search warrant was sought and that
the witness talked about that house as if that was a place that she was “very
familiar with going to and from and had done so recently.” N.T. Suppression
Hearing at 23-24, 27-30, 46-50.
Appellant argues that the officer had to know that the witness had not
been in the house recently because on January 17, 2020, the day that the
warrant was obtained and the search was conducted, the witness in a recorded
interview only mentioned being at the house in September 2019 and gave a
written statement to the police in which she stated only that in September
2019 she was at the house and was shown items being stored there and was
asked to sell them. Kerns Statement at 3-4; N.T. Suppression Hearing at 33,
35. We do not agree that these facts required the trial court to find the
officer’s testimony incredible or that his statement in the affidavit of probable
cause was deliberately false or in reckless disregard of the truth.
The officer who prepared and swore to the affidavit of probable cause
did not take the written statement from the witness or conduct the recorded
interview and based his knowledge on conversations with the witness before
the recorded interview and written statement. N.T. Suppression Hearing at
30, 32-36, 42, 48-49. The officer further testified that he did not see the
witness’s written statement before he filed the affidavit of probable cause. Id.- 12 -
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at 30-32, 48, 55-56. This testimony is supported by the time when the events
in question occurred. The record showed that the warrant was signed by the
magisterial district judge at 6:53 p.m. on January 17, 2020, and the witness’s
written statement was not completed until 7:10 p.m. N.T. Suppression
Hearing at 30, 60-62; Kerns Statement at 1. Because the trial court found
that the statements in the affidavit of probable cause were not deliberately
false or made in reckless disregard of the truth and that factual finding is
supported by the record from the suppression hearing, Appellant failed to
show that the search warrant was invalid and his suppression motion was
properly denied. Andrews, 213 A.3d at 1014-15; Baker, 24 A.3d at 1017-
18; Gomolekoff, 910 A.2d at 715.
For the foregoing reasons, we conclude that none of Appellant’s claims
of error is meritorious. Accordingly, we affirm Appellant’s judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/17/2023
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