Com. v. Lambert, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JONATHAN R. LAMBERT :
:
Appellant : No. 3563 EDA 2019
Appeal from the Judgment of Sentence Entered November 19, 2019
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000315-2018
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: Filed: September 24, 2020
Jonathan R. Lambert appeals from the judgment of sentence imposed
on November 19, 2019, in the Chester County Court of Common Pleas. On
May 14, 2019, a jury convicted Lambert of criminal use of a communication
facility, possessing instruments of crime, criminal conspiracy to commit
burglary, criminal conspiracy to commit criminal trespass, criminal conspiracy
to commit possessing instruments of crime, and criminal conspiracy to commit
theft by unlawful taking.1 The trial court sentenced Lambert to an aggregate
term of four to nine years’ incarceration plus two years of probation. On
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa. C.S.A. § 7512(a), 907(a), 903(a)(1-2)/3502(a)(4), 903(a)(1-
2)/3503(a)(1)(ii), 903(a)(1-2)/907(a), and 903(a)(1-2)/3921(a),
respectively.
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appeal, Lambert raises the following claims: (1) the trial court erred in denying
his motion to suppress because the vehicle stop at issue was purportedly
illegal; and (2) the court erred in denying his petition for writ of habeas corpus
by finding that the Commonwealth had met its burden of establishing a prima
facie case for the offenses held at his trial. After careful consideration, we
affirm the judgment of sentence.
The trial court set forth the facts and procedural history as follows:
The facts of this matter in a nutshell are that the [Lambert]
participated in a conspiracy to commit Burglary and other related
offenses in Coatesville, Chester County, Pennsylvania over the
course of six (6) days from November 18, 2017 through November
3, 2017. [Lambert]’s participation was revealed in two (2)
recorded phone calls he received from his brother, Douglas
Lambert, who was in prison when he made these and other
recorded calls to the members of the conspiracy, surveillance
conducted by the Coatesville Police Department upon their receipt
of the records of these calls, and [Lambert]’s presence with two
(2) of the co-conspirators during a traffic stop at approximately
11:30 p.m. on the night of November 23, 2017, Thanksgiving
night, during which stop various tools, including ski masks, wire
bolt cutters, night-vision goggles, machetes, and other
implements utilized in burglaries were found in the car. [Lambert]
was taken into custody. No burglary was ever consummated.
A Police Criminal Complaint was filed on November 24, 2017
charging [Lambert] with Burglary and related offenses. At the
Preliminary Hearing held on January 29, 2018, the Commonwealth
amended the Police Criminal Complaint by withdrawing the
following offenses: Burglary, 18 Pa.C.S.A. § 3502(a); Criminal
Conspiracy to Commit Burglary, 18 Pa.C.S.A. §§903, 3502(a);
Criminal Use of Communication Facility, 18 Pa.C.S.A. § 7512(a);
and Possessing Instruments of Crime, 18 Pa.C.S.A. § 907(a).
The Commonwealth then added the following charges:
Criminal Conspiracy to Commit Burglary, 18 Pa.C.S.A. §§ 903,
3502(a)(4), graded as an F-2; Criminal Attempt to Commit
Burglary, 18 Pa.C.S.A. §§ 901, 3502(a)(4), graded as an F-2; two
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(2) counts of Criminal Use of a Communication Facility, 18
Pa.C.S.A. § 7512(a), graded as F-3’s; Criminal Conspiracy to
Commit Criminal Use of a Communication Facility, 18 Pa.C.S.A.
§§ 903, 7512(a), graded as an F-3; Prohibited Offensive Weapons,
18 Pa.C.S.A. § 908(a), graded as an M-1; Criminal Conspiracy to
Commit Prohibited Offensive Weapons, 18 Pa.C.S.A. §§ 903,
908(a), graded as an M-1; two (2) counts of Possessing
Instruments of Crime, 18 Pa.C.S.A. § 907(a), graded as an M-1;
Criminal Conspiracy to Commit Possessing Instruments of Crime,
18 Pa.C.S.A. §§ 903, 907(a), graded as an M-1; Criminal
Conspiracy to Commit Criminal Trespass, 18 Pa.C.S.A. §§ 903,
3503(a)(1)(ii), graded as an F-2; Criminal Attempt to Commit
Criminal Trespass, 18 Pa.C.S.A. §§ 901 , 3503(a)(1 )(ii), graded
as an F-2; Criminal Conspiracy to Commit Theft by Unlawful
Taking or Disposition, 18 Pa.C.S.A. §§ 903, 3921(a), graded as an
M-3; Criminal Attempt to Commit Theft by Unlawful Taking or
Disposition, 18 Pa.C.S.A. §§ 901, 3921 (a), graded as an M-3;
Criminal Conspiracy to Commit Receiving Stolen Property, 18
Pa.C.S.A. §§ 903, 3925(a), graded as an M-3; and Criminal
Attempt to Commit Receiving Stolen Property, 18 Pa.C.S.A. §§
901, 3925(a), graded as an M-3. At the conclusion of the
Preliminary Hearing, the Magisterial District Justice dismissed the
charges of Criminal Attempt to Commit Receiving Stolen Property
and Criminal Attempt to Commit Theft by Unlawful Taking.
By Information filed February 9, 2018, the Commonwealth
charged [Lambert] with one (1) count (Count I) of Criminal
Attempt to Commit Burglary, 18 Pa.C.S.A. §§ 901, 3502(a)(4),
graded as an F-2; one (1) count (Count II) of Criminal Attempt to
Commit Criminal Trespass, 18 Pa.C.S.A. §§ 901, 3503(a)(1 )(ii),
graded as an F-2; two (2) counts (Counts III and IV) of Criminal
Use of a Communication Facility, 18 Pa.C.S.A. § 7512(a), graded
as an F-3; two (2) counts (Counts V and VI) of Possessing
Instruments of Crime, 18 Pa.C.S.A. § 907(a), graded as an M-1;
one (1) count (Count VII) of Prohibited Offensive Weapons, 18
Pa.C.S.A. § 908(a), graded as an M-1; and seven (7) counts
(Counts VIII - XIV) of Criminal Conspiracy, 18 Pa.C.S.A. §
903(a)(1 ), -(2), with the objectives being Burglary, Criminal
Trespass, Criminal Use of a Communication Facility, Possessing
Instruments of Crime, Prohibited Offensive Weapons, Theft by
Unlawful Taking, and Receiving Stolen Property.
[Lambert] filed an Omnibus Pretrial Motion on April 16,
2018. In his Omnibus Pretrial Motion, [Lambert] brought a Motion
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to Dismiss/Motion for Writ of Habeas Corpus and a Motion for
Compulsory Disclosure, Discovery, and Inspection. The Motion for
Compulsory Disclosure, Discovery, and Inspection was addressed
in a separate Order and is not implicated in this appeal. On May
4, 2018 [Lambert] filed a Motion to Suppress. [He] also submitted
a Memorandum of Law in support of his Motions, although it does
not appear to have been filed.
[The trial court] held a hearing on [Lambert]’s Motion to
Dismiss/Motion for Writ of Habeas Corpus and his Motion to
Suppress on October 29, 2018. With respect to the habeas Motion,
the Commonwealth and the defense stipulated that the
Commonwealth would rely on the transcript of the Preliminary
Hearing and not supplement that transcript with further evidence.
By Order dated February 28, 2019, … [the trial court] denied
[Lambert]’s Motion to Suppress but granted in part and denied in
part his Motion to Dismiss/Motion for Writ of Habeas Corpus. With
respect to the Motion to Dismiss/Motion for Writ of Habeas Corpus,
[the court] determined that the Commonwealth failed to establish
a prima facie case on the charges of Criminal Attempt to Commit
Burglary and Criminal Attempt to Commit Criminal Trespass, and
[the court] dismissed those charges. With respect to the
remaining charges [the court] determined that the
Commonwealth had met its burden.
[Lambert] was tried before a jury over the course of six (6)
days: May 7, 2019, May 8, 2019, May 9, 2019, May 10, 2019, May
13, 2019, and May 14, 2019. Further modifications by the
Commonwealth were made to the charges levied, such that
ultimately the charges presented to the jury included only the
following: Count I – Criminal use of a Communication Facility, 18
Pa.C.S.A. § 7512(a); Count II – Possessing Instruments of Crime,
18 Pa.C.S.A. § 907(a); Count III – Criminal Conspiracy to Commit
Burglary, 18 Pa.C.S.A. §§ 903(a)(1), -(2), 3502(a)(4); Count IV
– Criminal Conspiracy to Commit Criminal Trespass, 18 Pa.C.S.A.
§§ 903(a)(1), -(2), 3503(a)(1)(ii); Count V – Criminal Conspiracy
to Commit Possessing Instruments of Crime, 18 Pa.C.S.A. §§
903(a)(1), -(2), 907(a); and Count VI – Criminal Conspiracy to
Commit Theft by Unlawful Taking, 18 Pa.C.S.A. §§ 903(a)(1), -
(2), 3921 (a). The jury convicted [Lambert] on all charges.
[The trial court] ordered a Pre-Sentence Investigative
Report on July 10, 2019, after it was brought to the [c]ourt’s
attention that one had not been ordered, and deferred sentencing
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with the agreement of the parties.… Finally, [Lambert] was
sentenced on November 19, 2019.
[The trial court] sentenced [Lambert] as follows: on Count
III, Criminal Conspiracy to Commit Burglary, [Lambert] received
a term of two and a half (2 ½) years to five (5) years in a State
Correctional Facility plus a fine of $10.00; on Count I, Criminal
Use of a Communication Facility, [he] received a term of one and
a half (1 ½) years to four (4) years in a State Correctional Facility,
to run consecutive to the sentence imposed on Count Ill; on Count
II, Possessing Instruments of Crime, [he] received a sentence of
two (2) years of probation, to run consecutive to the sentence
imposed on Count I; on Count V, Conspiracy to Commit
Possessing Instruments of Crime, [the court] determined that this
offense merged with Count II and did not impose a sentence on
Count V; on Count VI , Criminal Conspiracy to Commit Theft by
Unlawful Taking, [the court] determined that this offense merged
with Count III, and so [it] did not impose a sentence on this
conviction; finally, with respect to Count IV, Criminal Conspiracy
to Commit Criminal Trespass, [the court] imposed no further
penalty upon the [Lambert]. Thus, [Lambert]’s aggregate term of
imprisonment is four (4) to nine (9) years in a State Correctional
Facility followed by two (2) years of consecutive probation. [The
court] gave [Lambert] credit for time served from November 24,
2017 through November 19, 2019, directed him to have no
criminal contact with his co-defendants, and ordered him to pay
the costs of prosecution. [Lambert] did not file a post-sentence
motion.
Trial Court Opinion, 2/27/2020, at 1-6. This timely appeal followed.2
In his first argument, Lambert contends the trial court improperly denied
his motion to suppress. He claims police lacked reasonable suspicion or
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2 The trial court directed Lambert to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) on December 19,
2019. Lambert complied with the order by filing a statement on January 8,
2020. Thereafter, the trial court issued a Pa.R.A.P. 1925(a) opinion on
February 27, 2020.
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probable cause to stop the vehicle he was riding in. See Appellant’s Brief, at
18-28.
In reviewing the denial of a motion to suppress, this Court must
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 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 ... Our scope of review is limited to
the evidence presented at the suppression hearing.
Commonwealth v. Thran, 185 A.3d 1041, 1043 (Pa. Super. 2018) (citations
omitted), appeal denied, 195 A.3d 558 (Pa. 2018).
Here, the trial court found Lambert waived his suppression issue
because he did not properly preserve the claim. See Trial Court Opinion,
2/27/2020, at 41. This determination is supported by the record.
In his motion to suppress, Lambert briefly makes an allegation that the
traffic stop was conducted without reasonable suspicion or probable cause.
See Motion to Suppress, 5/4/2018, at ¶ 4. However, he focuses the majority
of his argument on the assertion that law enforcement conducted a
warrantless search of the vehicle, no exception to the warrant requirement
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was established, and that the subsequent arrest was not supported by
probable cause. See Motion to Suppress, 5/4/2018, at ¶¶ 9-19.
At the October 2018 suppression hearing, the following exchange
clarified the scope of Lambert’s argument:
[The Commonwealth]: Your Honor, as a preliminary motion, I
would ask that [defense counsel]’s motion to suppress be
dismissed as a matter of law, your Honor.
He’s seeking suppression over the search of a vehicle. The
search of the vehicle that belonged to William Roussos[, the driver
and Lambert’s co-conspirator]. Under Pennsylvania law, your
Honor, he has no standing to be able to address that particular
issue in Pennsylvania. We’re dealing with issues of search and
seizure. The defendant must establish standing to challenge and
they must also demonstrate a reasonable expectation of privacy
in the property searched. Commonwealth versus Black, 758 A.2nd
1253.
In cases involving the possessory offense, it is well
established that a possessory offense automatically defers
standing to object to a search, Commonwealth versus Peterson,
636 A.2nd 615, but, having brought any such claim, those with
standing must demonstrate its merits, and the burden is on the
defense, by showing his or her reasonable or legitimate
expectation of privacy in the premises. Again, Commonwealth
versus Peterson and Commonwealth versus Cameron, 561 A.2nd
783.
So the inquiry whether the defendant had a reasonable
expectation of privacy for standing purposes in a non-possessory
offense is no different from the inquiry when analyzing whether
the policy conducted themselves a recognized zone of privacy.
Commonwealth versus Duncan, 817 A.2nd 455.
He has to establish before he goes forward with this hearing
how his client had a reasonable expectation of privacy in the
vehicle belonging to William Roussos, otherwise, your Honor, he
had no basis to challenge under Pennsylvania law.
THE COURT: All right.
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[Defense counsel]: If I may address the court.
THE COURT: Yes.
[Defense counsel]: My motion to suppress was not only
based on the search but on the arrest. We have standing to
challenge the arrest. This was a warrantless arrest. I think
on that alone, I agree in that regard. I didn’t realize when I filed
this that there had been a consent made by Mr. Roussos and that’s
why I filed it that way; however, I’m also challenging the
actual arrest of Mr. Lambert.
[The Commonwealth]: I would ask, your Honor, then he state on
the record what evidence he’s actually seeking to suppress,
because if it’s something that was found on his person, obviously
that becomes an issue, but he can’t suppress the search of the
vehicle again, because he has no reasonable expectation of
privacy of the vehicle.
[Defense counsel]: I’m not --
THE COURT: Hold on before any more argument. Do you have a
spare copy of your motion to suppress or does anyone?
[Defense counsel]: I don’t, but I can hand up my copy.
THE COURT: Remind me to give it back to you at the end, Counsel.
[Defense counsel]: Yes, your Honor.
THE COURT: I’m having a difficult time locating it. I know we had
it earlier.
[Defense counsel]: Your Honor, if I may, think we ought to put on
the record --
THE COURT: You were going to say something and I interrupted
you. Go ahead.
[Defense counsel]: The issue I’m now seeking to suppress is
the actual arrest. So, there wasn’t any reasonable
suspicion or probable cause. There was just a stop of the
vehicle and all of the occupants were detained and
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arrested. So, I’m going to that suppression of the actual
arrest.
[The Commonwealth]: Your Honor, you can’t suppress the body.
You can’t suppress the arrest. All you can suppress is evidence
that flows from the illegal activity. So, unless he’s specifically
citing something that the police got from him, whether a
statement or something that was found on his person during a
search incident to arrest, there’s nothing to suppress with an
arrest.
His motion all deals with a search. It talks about it back and
forth and just saying that there’s -- he does mention no probable
cause to arrest but he’s not mentioning or stating with
particularity as required in the rule what it is that he’s seeking to
suppress. So, if he’s not seeking what he’s saying that is flowing
from the illegal arrest, there is nothing that the Commonwealth
can do to regress it.
If he’s saying that he wants to suppress all of the items that
were found in the vehicle, it goes back to the original issue, he
has no expectation of privacy in the vehicle because the vehicle
doesn’t belong to him, therefore he can’t challenge it as a matter
of law.
[Defense counsel]: Your Honor, I have no further argument on the
matter.
[The Commonwealth]: It’s their burden to show that he has a
reasonable expectation of privacy, your Honor and I would again
like to repeat that.
[Defense counsel]: Your Honor, he is charged with conspiracy,
with possession of instruments of crime, with possession of
prohibited offensive weapons.
They’re claiming he was in possession of those and I think
that grants standing. Whether or not -- my client did not possess
instruments of crime, did not possess prohibited offensive
weapons. If they concede that, then I guess I have no argument.
THE COURT: [Roussos’ counsel], you joined in this motion?
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[Roussos’ counsel]: I filed an independent one, seeking to
suppress the stop.
THE COURT: But you’re not disputing consent?
[Roussos’ counsel]: No, I’m not. No, Mr. Roussos indeed was the
driver of the car. It was his car and he consented to the police
officer to look around the back of it.
[The Commonwealth]: Mr. Roussos is in a completely different
posture, your Honor, because it’s his vehicle, so obviously I’m not
going to challenge [Roussos’ counsel’s] expectation of privacy on
that.
THE COURT: I understand that, but I believe we wouldn’t be taking
any different evidence today. Is that fair to say?
[The Commonwealth]: The difference being [defense counsel]
would have an opportunity to cross-examine and again, I don’t
feel that’s appropriate, given the fact that he has not established
that his client has a reasonable expectation of privacy and he’s
not indicated in any way, shape or form how his client has any
reasonable expectation of privacy in Mr. Roussos’ vehicle.
THE COURT: Do either of you have authority for me on your
position?
[Defense counsel]: Not today, your Honor, but I can do some
research and provide that to you.
…
THE COURT: … My immediate reaction was that [the
Commonwealth] has a point, certainly as to the items. Any
physical evidence retrieved from the vehicle as it relates to your
client and his ability to fight this out on the grounds of expectation
of privacy, but your motion, it did contain also, at least in the
wherefore clause or somewhere in there, it mentions statements
or admissions and so forth. Are we dealing with any of these things
as it relates to your clients?
[Defense counsel]: Yes, we should be regarding the intercepted
calls.
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THE COURT: Which were before, correct?
[The Commonwealth]: Correct.
THE COURT: Before the stop.
[The Commonwealth]: There is no statement made by his client.
I believe from the former detective, he [invoked] his rights so he
was never interviewed.
THE COURT: So there was never anything written, oral or taped?
[Roussos’ counsel]: Recorded or anything.
THE COURT: Any other kind of statement or admission on behalf
of [defense counsel]’s client that would be at or subsequent to the
stop?
[The Commonwealth]: Then I believe the Commonwealth is
correct.
So, I’m going to grant your motion, your oral motion,
[Commonwealth] as it relates to Jonathan Lambert.
[The Commonwealth]: Thank you, your Honor.
THE COURT: It doesn’t have any effect on Mr. Roussos’ motion.
[Defense counsel], if you would like to place anything
else on the record, I will let you do that.
[Defense counsel]: No, your Honor. I think I’ve covered it. I
think we have standing. They’re charging with possession crimes.
You know, charging him with possession of instruments of crime
and prohibited offensive weapons, I think that’s a basis for a
standing. If the Court feels otherwise, I understand and accept
that.
THE COURT: Well, based on -- I reviewed your motion again and
it is all based on the -- it appears as though it was drafted not
knowing that there was a consent by the owner.
[Defense counsel]: That’s correct.
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THE COURT: Which is not being disputed at this point, so I think
it invalidates or renders moot much of that. Actually, all of the
argument that’s within your motion which is why I’m granting the
Commonwealth’s motion.
[Defense counsel]: I understand.
N.T., 10/29/2018, at 5-13 (emphases added).
From this exchange, we first conclude that defense counsel was unaware
that the driver of the vehicle and Lambert’s co-defendant, Roussos, had given
his consent to allow police to search his vehicle. See id., at 7. This
circumstance did not, as the Commonwealth argued at the hearing, prohibit
Lambert from challenging the validity of the stop. See Commonwealth v.
Strickler, 757 A.2d 884, 889 (Pa. 2000) (noting that government has
heightened standard for establishing consent in the wake of an illegal stop);
see also Commonwealth v. Shabezz, 129 A.3d 529, 535 (Pa. Super. 2015)
(holding that passenger of stopped vehicle had standing to seek suppression
of evidence garnered from search of vehicle on the basis that the stop was
illegal). Nor did it prohibit Lambert from seeking to suppress items seized from
the vehicle. See Shabezz, 129 A.3d at 535.
However, we also conclude that Roussos’s consent altered the
fundamental question before the suppression court. No longer was the issue
solely whether the police had probable cause or reasonable suspicion to stop
the vehicle. If the trial court concluded that the stop was in fact illegal, this
would not, by itself, be cause for suppression of the evidence in the car.
Rather, suppression would only be required if the Commonwealth failed to
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establish that Roussos’s consent was voluntarily given under the
circumstances. See Strickler, 752 A.2d at 901. This is a distinct factual and
legal issue from the issue of whether police had sufficient reasons to effectuate
the stop in the first place.
Finally, we observe that Lambert’s counsel did not raise a challenge to
the voluntariness of Roussos’s consent.
It is well-settled that an issue not first presented to the trial court is
waived on appeal. See Pa.R.A.P. 302(a). This Court has previously held that
“appellate review of [a ruling on] suppression is limited to examination of the
precise basis under which suppression initially was sought; no new theories of
relief may be considered on appeal.” Commonwealth v. Little, 903 A.2d
1269, 1272-1273 (Pa. Super. 2006); see also Pa.R.Crim.P. 581(D)
(explaining that an omnibus pretrial motion must “state specifically and with
particularity the evidence sought to be suppressed, the grounds for
suppression, and the facts and events in support thereof). Moreover, an issue
that is raised before the court but abandoned at a subsequent hearing is
waived for appellate purposes. See Commonwealth v. Leaner, 202 A.3d
749, 765 n.3 (Pa. Super. 2019).
Lambert briefly alleged in his motion to suppress that the traffic stop
was conducted without reasonable suspicion or probable cause, but he did not
further elaborate on the claim with any explanation or support from the
record. Nor, as noted previously, did Lambert orally raise a challenge to
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Roussos’ consent. Under these circumstances, he failed to state an argument
for suppressing evidence seized from Roussos’s vehicle. See Little, 903 A.2d
at 1272-1273. Under Leaner, Lambert abandoned the argument at the
suppression hearing by failing to raise it in any manner. See Leaner, 202
A.3d at 765 n.3.3
It merits mention that the court gave Lambert’s counsel the opportunity
to raise any additional issues at the suppression hearing, and counsel declined
to do so. See N.T., 10/29/2018, at 12-13. Accordingly, because Lambert did
not properly preserve an argument capable of supporting suppression of the
evidence, he has waived it.
Further, Lambert did not identify the suppression court’s ruling that he
lacked standing as a matter complained of on appeal in his Pa.R.A.P. 1925(b)
statement. As a result, any contention that the court erred in this regard is
waived. See Commonwealth v. Pacheco, 227 A.3d 358, 370 n.13 (Pa.
Super. 2020).
In Lambert’s second argument, he complains the court erred in denying
his petition for writ of habeas corpus by finding that the Commonwealth had
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3 We note the trial court addressed the merits of Lambert’s argument
concerning the stop in its February 28, 2019 order. See Order, 2/28/2019, at
3-5 n.1. Nevertheless, the court subsequently explained this part of the order
was “a nullity because … [it] had already dismissed [Lambert]’s Motion to
Suppress at the beginning of the suppression hearing, prior to the testimony
of the first witness, thereby precluding defense counsel from putting on any
evidence with respect thereto or cross-examining the Commonwealth’s
witnesses.” Trial Court Opinion, 2/27/2020, at 40.
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met its burden of establishing a prima facie case for the offenses held for trial.
See Appellant’s Brief, at 28. He states the Commonwealth’s proof at the
preliminary hearing merely amounted to phone calls Lambert and his
incarcerated brother shared with Roussos and that the police subsequently
decided to pull over a car, driven by Roussos and Lambert being a passenger.
See id., at 28. Lambert alleges:
Whoever was in the car had not committed any acts which would
permit any reasonable fact finder or any reasonable prima facie
appraiser to decide that there was enough evidence that any of
these people were attempting to commit a burglary, or that
criminal activity was afoot. It’s not enough to be present at a place
even a burglary has been committed.
Id., at 31-32.
Moreover, he contends the trial court did not apply the correct standard
of proof because it relied on the testimony presented at the preliminary
hearing which was before a magistrate district judge. Lambert states, “By
finding for the Commonwealth on no additional proof being submitted, and
the Commonwealth relying on the transcript from the preliminary hearing,
[the trial court] incorrect[ly] allowed the matter to be submitted to the jury.”
Id., at 32. He states:
The police cannot possibly have had enough proof to have been
the subject of a criminal attempt of burglary because the suspects
weren’t even at a place where any burglary might have occurred.
When these people were charged with criminal attempt of
burglary, they were in a car. The car was followed in a circular
route for a period of about 20 minutes. They went out and back.
They didn’t stop anywhere. They weren’t anywhere which might
have been burgled, and they certainly didn’t stop anywhere and
do any actual entry to any place.
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Id., at 33. He further argues there was no evidence of an agreement among
the individuals or that an overt step was taken to support a conspiracy theory,
and that the police acted prematurely. Id., at 33-35.
Our scope and standard of review regarding a habeas corpus petition is
as follows:
We review a trial court’s grant [or denial] of a pre-trial
habeas corpus motion de novo and our scope of review is plenary.
See Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa.
Super. 2016) (en banc).
As this Court explained in Dantzler:
A pre-trial habeas corpus motion is the proper means for
testing whether the Commonwealth has sufficient evidence
to establish a prima facie case. To demonstrate that a prima
facie case exists, the Commonwealth must produce
evidence of every material element of the charged
offense(s) as well as the defendant’s complicity therein. To
meet its burden, the Commonwealth may utilize the
evidence presented at the preliminary hearing and also may
submit additional proof.
Commonwealth v. Carper, 172 A.3d 613, 620 (Pa. Super. 2017) (citation
omitted).
In reviewing a trial court’s order granting [or denying] a
defendant’s petition for writ of habeas corpus, we “must generally
consider whether the record supports the trial court's findings, and
whether the inferences and legal conclusions drawn from those
findings are free from error.” . . . Notably, the Commonwealth
does not have to prove the defendant’s guilt beyond a reasonable
doubt. Further, the evidence must be considered in the light most
favorable to the Commonwealth so that inferences that would
support a guilty verdict are given effect.
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Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005) (citations
omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the trial court, we conclude
that there is no merit to this issue. The trial court opinion properly disposes
of the question presented. See Trial Court Opinion, 2/27/2020, at 7-39
(concluding (1) any alleged failure to establish a prima facie case at the
hearing based on Lambert’s habeas corpus petition was immaterial because,
at trial, the Commonwealth satisfied its burden by proving the offenses
beyond a reasonable doubt; (2) with respect to the motion, the parties
stipulated that the Commonwealth would not supplement the hearing with any
additional evidence but would rely on the preliminary hearing transcript; and
(3) the prima facie evidence at the preliminary hearing, including that Lambert
and his cohorts were traveling in the middle of the night via a circuitous route,
on the day appointed for a criminal enterprise as discovered by the police
during their investigation of the men’s numerous recorded prison phone calls,
all dressed in black, with tools such as a stun gun, night-vision googles, and
machetes, as well as Roussos’ confession were sufficient to support Lambert’s
complicity in the various crimes presented to the jury for consideration at his
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trial).4 We adopt the trial court’s analysis as our own and affirm on that basis.
Accordingly, Lambert’s second argument fails.
Judgment of sentence affirmed.
Judge Pellegrini joins the memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/20
____________________________________________
4 We note the trial court mentions Commonwealth v. Ricker, 120 A.3d 349
(Pa. Super. 2015) (Ricker I), appeal dismissed as improvidently granted, 170
A.3d 494 (Pa. 2017) (per curiam) (Ricker II), regarding the notion that
hearsay evidence has been held to be sufficient alone to establish a prima
facie case, but stated that “the evidence here was not comprised solely of
hearsay testimony[.]”. See Trial Court Opinion, 2/27/2020, at 27. It merits
mention the Pennsylvania Supreme Court recently determined Pennsylvania
Rule of Criminal Procedure 542(E) does not permit exclusive reliance on
hearsay evidence to establish all elements of all crimes for purposes of
establishing a prima facie case at a defendant’s preliminary hearing and
thereby, expressly disapproved Ricker I. See Commonwealth v.
McClelland, No. 2 WAP 2018, 2020 WL 4092109 (Pa. July 21, 2020).
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Circulated 08/25/2020 03:00 PM