Com. v. Crable, B. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON MARCEL CRABLE :
:
Appellant : No. 599 WDA 2018
Appeal from the Judgment of Sentence April 4, 2018
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0001769-2017
BEFORE: OTT, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E: FILED DECEMBER 19, 2018
Appellant, Brandon Marcel Crable, appeals from the judgment of
sentence of five to ten years of confinement, which was imposed after his jury
trial convictions for: possession of firearm with altered manufacturer’s
number; possession of firearm prohibited; flight to avoid apprehension, trial,
or punishment; escape; possession of a small amount of marijuana for
personal use; and use or possession of drug paraphernalia. 1 After a careful
review, we affirm.
In its opinions, the trial court fully and correctly sets forth the facts and
procedural history underlying this case. See Trial Court Opinion, filed
____________________________________________
* Former Justice specially assigned to the Superior Court.
118 Pa.C.S.A. §§ 6110.2(a), 6105(a)(1), 5126(a), 5121(a), and 35 P.S. §
780-113(a)(31)(i) and (a)(32), respectively.
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February 5, 2018, at 1-4; Trial Court Opinion, filed June 7, 2018, at 2-4.
Relevantly, we note that, on November 3, 2017, Appellant filed an omnibus
pretrial motion, including a motion to suppress a photograph found on his
cellular telephone (“the Phone”) when police searched the contents of the
Phone without a warrant. On January 10, 2018, the trial court held a hearing
on the suppression motion, during which the Commonwealth presented the
testimony of Corporal Patrick Bouch of the Pennsylvania State Police. N.T.,
1/10/2018, at 5.
Corporal Bouch testified that, on February 11, 2017, at 2:40 a.m., in
Uniontown City, he conducted a traffic stop on a vehicle with dark tinted
windows and an inoperable license plate light; during the stop, a passenger,
later identified as Appellant, opened his door and fled the vehicle on foot,
leaving behind the Phone. Id. at 5-8, 10-12. Corporal Bouch testified that
the driver and another passenger denied ownership of the Phone. Id. at 12.
Corporal Bouch observed that, while fleeing, Appellant had “his right
arm . . . pinned against his body in a rigid fashion” and appeared to be
concealing something against his side. Id. at 11. Corporal Bouch testified
that he “felt there was exigency in order to identify” the absconder, given that
Appellant “ran from [the] stop[,]” appeared to “be concealing a firearm[,]”
and “may come into contact with Uniontown City [o]fficers[.]” Id. at 11-12.
Corporal Bouch further testified that the Phone had “no locking
device[,]” and, due to these circumstances, he opened the photographs saved
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on the Phone, looking for a photograph of Appellant in order to identify him.
Id. at 13. The corporal asserted that he immediately saw a photograph of
Appellant “holding an AR 15 style rifle with clear after market modification[,]”
including the removal of its serial number. Id. at 13-14. Corporal Bouch
added that he later obtained a search warrant for the entirety of the Phone.
Id. at 14.
On February 5, 2018, the trial court denied the suppression motion,
finding abandonment and exigent circumstances.2 Trial Court Opinion, filed
February 5, 2018, at 5. The case proceeded to a jury trial, and following his
convictions, Appellant was sentenced on April 4, 2018.
On April 24, 2018, Appellant filed this timely direct appeal, and the trial
court directed Appellant to file a Pa.R.A.P. 1925(b) statement. 3 Appellant
timely complied on May 4, 2018, presenting the following issues in his Rule
1925(b) statement (verbatim):
Issue No. 1: Whether the Suppression Court committed
reversible error in denying the Defendant’s request to suppress
the search of the cell phone, for which the Commonwealth lacked
probable cause.
Issue No. 2: Whether the evidence was legally and factually
sufficient to prove that the Defendant committed the crime of
possession of a firearm prohibited.
____________________________________________
2 The trial court filed an opinion in support of its denial of Appellant’s
suppression motion on February 5, 2018.
3 The trial court’s order complied with Pa.R.A.P. 1925(b)(c) pertaining to
required contents of the trial court’s Rule 1925(b) order.
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Concise Statement of the Matters Complained on Appeal, 5/4/2018.4
In his brief to this Court, Appellant presents the following issues for our
review:
[1.] Whether the evidence was legally and factually sufficient to
prove that Appellant committed the crime of possession of a
firearm prohibited.
[2.] Whether the suppression court committed reversible error in
denying Appellant’s request to suppress the search of the cell
phone, for which the Commonwealth lacked probable cause.
Appellant’s Brief at 4 (issues re-ordered to facilitate disposition) (trial court’s
answers omitted).
Preliminarily, we note that “[i]n order to preserve a challenge to the
sufficiency of the evidence on appeal, an appellant’s Rule 1925(b) statement
must state with specificity the element or elements upon which the appellant
alleges that the evidence was insufficient.” In re J.G., 145 A.3d 1179, 1189
(Pa.Super. 2016) (citation omitted). In his Rule 1925(b) statement,
reproduced in its entirety above, Appellant did not state with specificity the
element or elements upon which he alleges that the evidence was insufficient.
See Concise Statement of the Matters Complained on Appeal, 5/4/2018, at ¶
2. See also Commonwealth v. Batty, 169 A.3d 70, 76-77 (Pa.Super. 2017)
(listing elements of possession of firearm prohibited).
In its Rule 1925(a) opinion, the trial court urges this Court to find
Appellant’s sufficiency claim waived because he did “not identify which
____________________________________________
4 The trial court filed a responsive opinion pursuant to Pa.R.A.P. 1925(a) on
June 7, 2018.
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elements he alleges to be lacking for the possession of a firearm prohibited
offense. With such a blank, indistinct, and vague Concise Statement, th[e]
[trial] court is left with mere speculation as to what specifically Appellant
complains of on appeal as insufficient.” Trial Court Opinion, filed June7, 2018,
at 5. We agree and find Appellant’s sufficiency issue to be waived. See J.G.,
145 A.3d at 1189.
Appellant next contends that “the suppression court committed
reversible error in denying [his] request to suppress the search of the cell
phone, for which the Commonwealth lacked probable cause.” Appellant’s Brief
at 8. Appellant argues that “[t]his warrantless search was unreasonable in
light of the circumstances, and the evidence against [] Appellant should be
suppressed.” Id. at 10. Although Appellant’s brief is unclear as to how the
outcome of his trial would have changed if the photographs found on the
Phone had been suppressed, see id. at 8-10, we infer that he is suggesting
he would not have been convicted of the two firearms charges: possession of
firearm with altered manufacturer’s number and possession of firearm
prohibited. See also id. at 13.
The standard of review for an order denying a suppression motion
is as follows:
In reviewing the denial of a suppression motion, our role is
to determine:
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
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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. Where, as here, 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
our plenary review.
Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654
(2010) (internal quotations and citations omitted). Our
scope of review is limited to the evidence presented at the
suppression hearing. In re L.J., 622 Pa. 126, 79 A.3d 1073,
1080 (2013).
Commonwealth v. Mackey, 177 A.3d 221, 226 (Pa.Super.
2017).
Commonwealth v. Thran, 185 A.3d 1041, 1043 (Pa.Super. 2018).
As noted above, the trial court found exigent circumstances to search
the Phone. Trial Court Opinion, filed February 5, 2018, at 5. Exigent
circumstances are an exception to the warrant requirement, excusing the need
for a warrant where “prompt police action is imperative” - i.e., when the delay
in obtaining a search warrant would result in personal injury or the loss of
evidence. Commonwealth v. Hakim Johnson, 969 A.2d 565, 569
(Pa.Super. 2009) (citation omitted); accord Schmerber v. California, 384
U.S. 757 (1966).
[V]arious factors need to be taken into account to assess the
presence of exigent circumstances; for example: (1) the gravity
of the offense; (2) whether the suspect is reasonably believed to
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be armed; (3) whether there is a clear showing of probable cause;
(4) whether there is a strong reason to believe that the suspect is
within the premises being entered; (5) whether there is a
likelihood that the suspect will escape if not swiftly apprehended;
(6) whether the entry is peaceable; (7) the timing of the entry;
(8) whether there is hot pursuit of a fleeing felon; (9) whether
there is a likelihood that evidence will be destroyed if police take
the time to obtain a warrant; and (10) whether there is a danger
to police or other persons inside or outside of the dwelling to
require immediate and swift action.
Commonwealth v. Brian Johnson, 68 A.3d 930, 937 (Pa.Super. 2013)
(quoting Commonwealth v. Dean, 940 A.2d 514, 522 (Pa.Super. 2008)).
In the case sub judice, police reasonably believed Appellant was armed
based on the way in which he ran from the scene, appearing to conceal
something against his side. N.T., 1/10/2018, at 11. See Brian Johnson, 68
A.3d at 937 (factor (2)). The officer did not need to enter any premises in
order to obtain or to search the Phone. N.T., 1/10/2018, at 12. See Brian
Johnson, 68 A.3d at 937 (factor (4)). Appellant opened the car door and fled
from a traffic stop, and thus there was a likelihood that he would escape if not
swiftly apprehended. N.T., 1/10/2018, at 10-11. See Brian Johnson, 68
A.3d at 937 (factor (5)). The search was “peaceable,” as it only involved
looking through saved files on the Phone and did not require police to break
physical or digital locks, to destroy property, or otherwise to disturb anyone.
N.T., 1/10/2018, at 13-14. See Brian Johnson, 68 A.3d at 937 (factor (6)).
The search occurred immediately after Appellant had fled, and Corporal Bouch
searched for a photograph in order to identify Appellant to assist other officers
involved in the pursuit. N.T., 1/10/2018, at 10-14. See Brian Johnson, 68
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A.3d at 937 (factors (7) and (8)). Given that Appellant was running away
while appearing to conceal a weapon, there was a likelihood that Appellant
could have destroyed or hidden the weapon if police had taken the time to
obtain a warrant before searching the Phone. N.T., 1/10/2018, at 10-13. See
Brian Johnson, 68 A.3d at 937 (factor (9)). If Appellant still had a weapon
on his person, there could be danger to other persons, including to the other
police officers who Corporal Bouch knew were in the area. N.T., 1/10/2018,
at 12-13. See Brian Johnson, 68 A.3d at 937 (factor (10)).
Hence, when taking into account the factors to assess the presence of
exigent circumstances enumerated in Brian Johnson, 68 A.3d at 937, we
find that the majority of the factors were present to some degree.
Accordingly, we agree with the trial court that exigent circumstances were
present when Corporal Bouch searched the Phone, that no warrant was
required for the search, and that the search thereby was proper. Trial Court
Opinion, filed February 5, 2018, at 5. See Hakim Johnson, 969 A.2d at 569.5
For the above reasons, Appellant’s first issue is waived and, with respect
to his second issue, Appellant is not entitled to relief. Consequently, we affirm
the judgment of sentence.
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5 As we concur with the trial court that exigent circumstances existed, we need
not analyze whether the trial court’s alternate rationale for finding the search
of the Phone to be proper— abandonment— was correct, Trial Court Opinion,
filed February 5, 2018, at 5, including whether the Phone was voluntarily
discarded and whether Appellant had the clear intent to relinquish control of
his property.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2018
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