Com. v. Dale, D. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DARREN DALE :
:
Appellant : No. 1063 EDA 2019
Appeal from the Judgment of Sentence Entered April 4, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012513-2015
BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 13, 2020
Darren Dale appeals from his judgment of sentence of seven to fourteen
years of imprisonment imposed after a jury convicted him of robbery,
burglary, conspiracy, and related offenses. After thorough review, we affirm.
The facts giving rise to the Appellant’s conviction are as follows. On
October 8, 2015, upon returning to the Philadelphia home she shared with her
daughter, Maribelen Carrasquillo (the “victim”) noticed damage to her front
door. N.T. Trial, 9/28/16, at 82. When she could not open it, she started
kicking the door to force it open. Id. at 83. As the door gave way, she was
accosted by two males, one of whom grabbed her by the hair, placed a gun
to her head, and ordered her to lay face down on the floor. Id. She saw the
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* Former Justice specially assigned to the Superior Court.
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face of the individual who assaulted her, and she was aware that he had a
weapon. Id. at 83-84. Her assailant, later identified as Appellant, began
interrogating her about “pins” and marijuana. Id. at 87-88. She said she did
not know what “pins” were, and Appellant told her that they were guns. Id.
at 88. When she replied she did not have guns or marijuana, the other man
made a phone call and inquired whether he and Appellant were in the right
house. Id. at 89.
Following the phone call, Appellant accompanied the victim to her
basement at gunpoint. Id. at 90. The basement lights were illuminated and,
once there, the victim turned around and looked at the Appellant. Id. at 92.
As she stood face-to-face with Appellant, he placed the gun against her
forehead. Id. The victim assured him that she would not call the police, but
Appellant expressed concern that she had seen his face. Id. Appellant
ordered the victim to turn around and get on her knees. Id. She testified at
trial that she feared for her life. Id.
The next thing the victim heard was her cousin screaming outside, and
when she turned around, Appellant was gone. Id. at 94. Her house was
ransacked, her car was gone, and she called the police. Id. at 95-96. The
victim provided police with a description of her assailants and her missing car,
including the make and model. Id. at 96. Shortly thereafter, police took the
victim to identify a potential suspect, but she told police that this individual
was not her assailant. Id. at 97.
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Later that evening, the victim went to the Philadelphia East Detective
Division to give a formal statement. Id. at 98. She described Appellant as a
dark-skinned male, about 5’9” tall, in his middle to late twenties, “dirty
looking,” with a scar on his face, and wearing a blue hoody, dark pants, and
boots. Id. at 98-99. During a subsequent interview with a detective, she
mentioned that Appellant’s gun had a silver ring on the front of the barrel.
Id. at 113.
Police recovered the victim’s stolen vehicle within hours, impounded it,
and processed it for fingerprints. N.T. Trial, 9/29/16, at 86-87. The police
lifted eight latent fingerprints from the interior of the car. Id. at 88. Two
prints were entered into a fingerprint identification system, and one print was
a match to Appellant. Id. at 106-107.
Thereafter, the victim identified Appellant from a photographic array.
N.T. Trial, 9/28/16, at 101-103. Upon seeing Appellant’s photograph, the
victim said that she was “a hundred percent positive that this was the man
that was in my house, that held a gun to my head.” Id. at 103.
Based on the fingerprint identification and the victim’s positive
identification of Appellant, police secured a search warrant for Appellant’s
residence. The search yielded three .45 caliber guns. N.T. Trial, 9/30/16, at
72-73. The victim later identified one of the guns seized as the gun with the
silver ring on the barrel wielded by Appellant in the home invasion. Id. at 78.
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Prior to trial, Appellant filed motions to suppress the identification and
evidence obtained from the search of his house based on a lack of probable
cause in the four corners of the warrant. Following a hearing on September
28, 2016, the court denied both motions. N.T. Motion, 9/28/16, at 57.
At the conclusion of the jury trial, Appellant was convicted of robbery,
burglary, conspiracy, unlawful restraint, theft by unlawful taking, violations of
the Uniform Firearms Act, and simple assault, and sentenced as aforesaid on
April 4, 2017. Appellant filed a motion for reconsideration of sentence, which
was denied on April 18, 2017.
On September 6, 2017, Appellant filed an untimely notice of appeal,
which the Commonwealth moved to quash. This Court granted the motion,
quashed the appeal, and denied Appellant’s application for reconsideration of
the quashal. On February 1, 2019, Appellant filed a pro se Post Conviction
Relief Act Petition seeking reinstatement of his appellate rights nunc pro tunc,
which was granted on March 26, 2019. Appellant filed a notice of appeal and
complied with the court’s order to file a Pa.R.A.P. 1925(b) concise statement
of errors complained of on appeal.
Appellant raises three issues for our review:
1. Whether the lower court erred in denying Appellant’s
motion to suppress evidence recovered from his home
where the warrant authorizing the search failed to
establish there was probable cause to believe there was
contraband on the premises?
2. Whether the lower court abused its discretion in granting
the Commonwealth’s motion in limine to preclude the
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defense from eliciting evidence that the [C]omplainant’s
house was a drug house?
3. Whether the lower court abused its discretion when it
denied Appellant’s request to issue a Kloiber charge
where the evidence established that the Complainant had
only a very limited opportunity to observe her assailant?
Appellant’s brief at 5.
Appellant’s first issue is a challenge to the denial of his motion to
suppress the items seized during the search of his home. Our scope and
standard of review of a trial court’s denial of suppression requires that we
determine “whether the factual findings are supported by the record and
whether the legal conclusions drawn from these facts are correct.”
Commonwealth v. Tiffany, 926 A.2d 502, 506 (Pa.Super. 2007).
Additionally,
When reviewing the rulings of a suppression court, we must
consider only the evidence of the prosecution and as 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 legal conclusions drawn therefrom are
in error.
Id.Essentially, Appellant argues that because this case is about a home
invasion of the victim’s home, it was unreasonable that his own home was the
target of a search. Appellant contends that the lower court erred in finding
that the affidavit established probable cause that contraband would be
discovered in his residence, as there was no nexus between the criminal
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activity alleged in the affidavit and the place to be searched. Appellant’s brief
at 11.
The following principles inform our review. The validity of a search
warrant is based on the standard of probable cause. The Fourth Amendment
of the United States Constitution requires a showing of probable cause before
a warrant shall issue. See U.S. Const. Amend. IV. Similarly, the Pennsylvania
Constitution provides that no search warrant shall issue unless there is a
showing of probable cause supported by oath or affirmation. See Pa. Const.,
art. I, Section 8.
The United States Supreme Court held in Illinois v. Gates, 462 U.S.
213 (1983), that probable cause is evaluated according to the totality of
circumstances test. Our Pennsylvania Supreme Court adopted that standard
in Commonwealth v. Gray, 503 A.2d 921, 926 (Pa. 1985), finding that the
probable cause test articulated by the Gates Court was a practical standard,
and that the Gates “totality of the circumstances” test was consonant with
Art. I, Sec. 8 of the Pennsylvania Constitution. Id. “Probable cause exists
where the facts and circumstances within the affiant’s knowledge and of which
he has reasonably trustworthy information are sufficient in themselves to
warrant a man of reasonable caution in the belief that a search should be
conducted.” Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)
(quoting Commonwealth v. Thomas, 292 A.2d 353, 357 (Pa.1972)).
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When considering whether to issue a search warrant, the district
magistrate must:
make a practical, common-sense decision whether, given all of
the circumstances set forth in the affidavit before him, including
the veracity and basis of knowledge of persons supplying hearsay
information, there is a fair probability that the contraband or
evidence of a crime will be found in a particular place. And the
duty of a reviewing court is simply to ensure that the magistrate
had a ‘substantial basis for . . . conclud[ing] that probable cause
existed.’
Gray, supra at 925 (quoting Gates, supra at 238). This remains the
applicable standard in the Commonwealth. See Commonwealth v. Batista,
219 A.3d 1199, 1203 n.3 (Pa.Super. 2019) (applying totality of the
circumstances test to determine if probable cause existed for issuance of
warrant). “It is the duty of a court reviewing the issuing authority’s probable
cause determination to ensure that the magistrate had a substantial basis for
concluding that probable cause existed.” Commonwealth v. Jones, 988 A.2d
649, 655 (Pa. 2010). The reviewing court must accord deference to the
magistrate’s probable cause determination and view the information offered
in a “common sense, non-technical manner.” Id.The suppression court examined the affidavit and the search warrant.
The affidavit and application for the search warrant of Appellant’s residence
was completed by Detective Marc Johnson. The affiant provided a thorough
description of the October 8, 2015 home invasion at the victim’s residence.
Two males looking for guns and marijuana had ransacked the home and stolen
jewelry. They restrained the victim at gunpoint when she entered her home.
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They left in her vehicle, a 2015 Nissan, which was recovered approximately
five hours later. The vehicle was towed to the impound lot and processed for
prints. Eight latent prints were lifted, one of which was a positive match for
Appellant. The affiant described the photographic array and the victim’s
positive identification of Appellant as the person who had placed a gun to her
head. Based on the foregoing, the affiant averred that there was probable
cause to believe that “items taken in the robbery, jewelry, firearms, clothing,
and any and all ballistic evidence and any items of evidentiary value” would
be located in Appellant’s residence. Application for Search Warrant and
Affidavit, 10/27/15 at 2. The search warrant issued.
In evaluating whether there was probable cause for the issuance of the
warrant for purposes of suppression, the trial court found that, based on the
averments in the affidavit, there was a fair probability that evidence of the
crime would be located at his address. Trial Court Opinion, 6/6/19, at 4. The
affidavit related the facts of the home invasion and robbery, described what
the victim had reported to police, and detailed what items were missing. It
also described the investigatory steps that pointed police to Appellant as the
perpetrator, i.e., Appellant’s fingerprint found in the victim’s car and her
identification of Appellant from the photographic array. In short, the affidavit
specifically stated what was sought and why. The trial court denied
Appellant’s suppression motion.
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Viewing the evidence adduced at the suppression hearing in the light
most favorable to the Commonwealth, and there being no controverting
evidence offered by the defense, we find ample record support for the trial
court’s factual findings. Furthermore, its conclusion that there was probable
cause for the issuance of the search warrant was legally sound. The facts
alleged in the warrant “were sufficient in themselves to warrant a man of
reasonable caution in the belief that a search should be conducted pursuant
to Pa. Const. art. I, sec. 8 and the Fourth Amendment.” Commonwealth v.
Jones, supra at 645 (quoting Commonwealth v. Thomas, 292 A.2d 352,
357 (Pa. 1972)). No relief is due.
Next, Appellant faults the trial court for granting the Commonwealth’s
motion in limine and precluding the defense from eliciting evidence that the
victim’s house was a “drug house.” Appellant’s brief at 22. When reviewing
an evidentiary ruling, we apply an abuse of discretion standard of review.
Commonwealth v. Kane, 188 A.3d 1217, 1229 (Pa.Super. 2018). We defer
to the “sound discretion” of the trial court. Id. “Discretion” is defined as:
import[ing] the exercise of judgment, wisdom and skill so as to
reach a dispassionate conclusion, within the framework of the law,
and is not exercised for the purpose of giving effect to the will of
the judge. Discretion must be exercised on the foundation of
reason, as opposed to prejudice, personal motivations, caprice, or
arbitrary actions. Discretion is abused when the course pursued
represents not merely an error of judgment, but where the
judgement is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result of
partiality, prejudice, bias, or ill will.
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Commonwealth v. Goldman, 70 A.3d 874, 878-79 (Pa.Super. 2013).
Additionally, “[t]o constitute reversible error, an evidentiary ruling must not
only be erroneous, but also harmful or prejudicial to the complaining party.”
Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.Super. 2012).
Our rules of evidence provide that evidence is relevant if it has any
tendency to make a fact of consequence in issue more or less probable than
it would be without the evidence. See Pa.R.E. 401. Irrelevant evidence is not
admissible. See Pa.R.E. 402. However, a court may exclude relevant
evidence if its probative value is outweighed by a danger of “unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” See Pa.R.E. 403.
Appellant argues that evidence that the victim’s home was a “drug
house” and that her husband was incarcerated on drug charges was relevant
and should have been admitted because it supplied a motivation for other
individuals to rob the home. Appellant’s brief at 24; N.T. Trial, 9/28/16, at
59. Furthermore, he contended that the proffered evidence was not unduly
prejudicial because it did not implicate him or the victim in criminal
wrongdoing. Id.The trial court determined that this evidence was of little probative
value, and if admitted, could confuse the jury by diverting its attention to the
criminality of the victim’s husband rather than the conduct of the Appellant.
Trial Court Opinion, 6/6/19, at 5. Furthermore, the court believed that
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evidence that the victim’s home was a “drug house” would unfairly connect
her husband’s criminal acts with those of Appellant, and there was no
evidentiary link between the two. Id. The court aptly noted that there was
no evidence that the home invasion was connected to the husband’s drug’s
charges, citing the realization of Appellant and his cohort that they had broken
into the wrong house.
We find no abuse of discretion on the part of the trial court in excluding
the proffered evidence. Evidence of the conduct of the victim’s husband was
not probative, and if admitted likely would have confused the jury.
Accordingly, Appellant is not entitled to relief on this ground.
The final issue raised by the Appellant is that the trial court erred in
denying his request for a jury charge pursuant to Commonwealth v.
Kloiber, 106 A.2d 820 (Pa. 1954), generally referred to as a “Kloiber
instruction.” We review a challenge to jury instructions under the abuse of
discretion standard.
The law is well settled that jury instructions will only be given when they
are warranted by the evidence in the case. Commonwealth v. Boyle, 733
A.2d 633, 639 (Pa.Super. 1999). A trial court “should not instruct the jury on
legal principles which have no application to the facts presented at trial.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1257 (Pa.Super. 2014)
(citing Commonwealth v. McCloskey, 656 A.2d 1369, 1374 (Pa.Super
1995)).
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A Kloiber instruction is given when a defendant raises demonstrable
concerns about the reliability of his identification by a witness. Kloiber,
supra at 826-27. When “a witness did not have the opportunity to clearly
view the defendant, equivocated in his identification of a defendant, or had
difficulty making an identification in the past,” the Kloiber instruction informs
the jury that it should view an eyewitness identification with caution.
Commonwealth v. Rollins, 738 A.2d 435, 448 (Pa. 1999). Conversely,
where identification testimony “is positive, unshaken, and not weakened by a
prior failure to identify[,]” it “need not be received with caution” and a Kloiber
instruction is not warranted. Commonwealth v. Upshur, 764 A.2d 69, 77
(Pa.Super. 2000) (citing Kloiber, supra at 826).
Appellant contends that the evidence established that the victim “had
only a very limited opportunity to observe her assailant.” Appellant’s brief at
26. Based solely on that fact, he argues that a Kloiber charge should have
been given because her identification of him as her assailant may have been
in error. Id. The trial court found, however, that the victim had several
opportunities to observe her assailant and that she was consistent throughout
in identifying Appellant. Trial Court Opinion, 6/6/19, at 6. The record
supports the trial court’s finding.
The victim testified that she first saw Appellant when she opened her
door. N.T. Trial, 9/28/16, at 84. She saw his face again and for a longer time
while standing face-to-face in her well-lit basement. Id. at 90-91. During the
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interaction in the basement, Appellant expressed concern to her that she had
seen his face. Id. at 92.
Following the home invasion, the victim gave a statement to police. She
described Appellant’s clothing, his approximate age and height, and stated
that he had a scar on his face. Id. at 99. On the night of the home invasion,
police presented her with a suspect whom they believed could have been her
assailant, but she unequivocally rejected that notion. Id. at 12. She
consistently maintained that Appellant had a scar on his face. Id. at 99-100.
She later identified him in a photographic array, and at that time, she stated
she was “a hundred percent positive” that the person depicted in the photo
was her assailant. Id. at 103.
At the preliminary hearing, the victim identified Appellant as her
assailant. N.T. Preliminary Hearing, 12/09/15, at 21-22. She identified him
again at trial. N.T. Trial, 9/28/16, at 85. She testified on cross-examination
that, during the home invasion, she focused on the scar on her assailant’s face
so that she could identify him accurately later. Id. at 149. Detectives testified
at trial that Appellant does indeed have a scar on his cheek. N.T. Trial,
9/29/16, at 28.
Throughout the proceedings, the victim never once recanted or
equivocated in her identification of Appellant. The court found, and the record
supports its finding, that the victim had ample opportunity to see Appellant’s
face. Additionally, her identification was corroborated by fingerprint evidence
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linking Appellant to her vehicle stolen during the home invasion. Accordingly,
we find that the trial court did not abuse its discretion in refusing to give a
Kloiber charge, and no relief is warranted.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/20
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