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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TYRELL TAYLOR HINES, :
:
Appellant : No. 3196 EDA 2013
Appeal from the Judgment of Sentence October 17, 2013,
Court of Common Pleas, Lehigh County,
Criminal Division at No. CP-39-CR-0000022-2013
BEFORE: BOWES, DONOHUE and MUNDY, JJ.
MEMORANDUM BY DONOHUE, J.: FILED AUGUST 05, 2014
nt of sentence
entered following his conviction of three counts of persons not to possess
firearms, 18 Pa.C.S.A. § 6105(a)(1). We affirm.
On October 24, 2012, members of the Allentown Police Department
brother. The search warrant permitted a search for items related to the
distribution of controlled substances, including firearms and other weapons.
Application for Search Warrant, 10/24/12, at Attachment A. When the
officers entered the residence, they encountered Hines and his three
adolescent daughters in the living room. Detective Jack Gill removed Hines
to the kitchen where he explained the warrant to him. Hines immediately
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expressed his willingness to cooperate with the officers. As the search
proceeded, two handguns were recovered from two separate bedrooms,
along with various types of ammunition. The detectives then questioned
Hines about a specific firearm, a .9 caliber Baretta. Hines initially told the
detectives that the Baretta was in New Jersey. When the police told Hines
that they would transport him to New Jersey so that he could show them
where it was, Hines changed his story. After procuring a promise that he
would be allowed to remain in the house overnight with his daughters, Hines
told the police that the Baretta was in his vehicle, which was parked in the
driveway. After Hines executed a form consenting to the search of his car,
the police recovered the Baretta from a speaker box in the trunk of the car.
Other items were recovered from the search, including a digital scale,
glassine baggies, and a glass water pipe.
Hines was subsequently arrested. The initial criminal information filed
by the Commonwealth charged Hines with one count each of persons not to
possess firearms, firearms not to be carried without a license, receiving
stolen property, and possession of drug paraphernalia. Criminal
Information, 1/18/13, at 1-2. This information was later amended to
provide that Hines was being charged with three counts of persons not to
possess firearms. Amended Information, 5/8/13, at 1. On September 10,
2013, after a two day trial, Hines was convicted of all three counts of
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persons not to possess firearms.1 On October 17, 2013, he was sentenced
to an aggregate term of eight to 20 years of imprisonment. Hines filed a
post-sentence motion, which the trial court denied. This timely appeal
follows.
Hines presents the following issues for our review:
1. Was it a violation of the due process rights of
[Hines] where only one count of persons not to
possess was included on the original criminal
information and the Commonwealth without a
hearing or court approval[] filed an amended
information which included three counts of
persons not to possess a firearm?
2. Did the court abuse its discretion in denying
regarding drug dealing by [Hines] to be used at
trial where the statements were more prejudicial
than probative?
3. Is there a substantial question for which the
Superior Court should grant allowance of appeal
from the discretionary aspects of the sentence?
4. Did the court err in sentencing [Hines] on three
counts of persons not to possess a firearm when
only one count was approved by the magisterial
district court making it a harsh and excessive
sentence?
In his first issue, Hines argues that the trial court erred by allowing the
Commonwealth to file an amended information without providing due
1
The Commonwealth did not proceed with the remaining charges and
formally withdrew them at the time of sentencing. N.T., 10/17/13, at 2.
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process protections, such as the opportunity to challenge the proposed
-13. Hines first questioned the amended
information immediately before the start of trial and after the jury was
empaneled. At that time, he indicated that prior to that day he had only
seen the original information, which listed only one count of persons not to
N.T., 9/9/13, at 4. The Commonwealth responded there was testimony at
the preliminary hearing regarding all three firearms, and that all three were
listed in the original information. Id.
explanation, Hines raised no further objection and trial proceeded on the
amended i
appellate review, a party must make a specific objection to the alleged error
before the trial court in a timely fashion and at the appropriate stage of the
proceedings; failure to raise such objection results in waiver of the
Commonwealth v. Akbar, 91 A.3d 227, 235
Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super. 2008).
Accordingly, because Hines did not object to the content of the amended
information, which detailed the charges for which Hines was about to be
tried, he has waived this issue for purposes of appeal.
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Even if we were not to find this issue waived, Hines would not be
entitled to relief. See Pa.R.Crim.P. 564. Rather, the purpose of Rule of
Criminal Procedure 5642
the charges, and to avoid prejudice by prohibiting the last minute addition of
Commonwealth v. Page, 965 A.2d 1212, 1223-24 (Pa. Super. 2009).
When a challenge is raised to an amended information, the salient inquiry is:
[w]hethe
information involve the same basic elements and
evolved out of the same factual situation as the
so, then the defendant is deemed to have been
placed on notice regarding his alleged criminal
conduct. If, however, the amended provision alleges
a different set of events, or defenses to the amended
crime are materially different from the elements or
defenses to the crime originally charged, such that
the defendant would be prejudiced by the change,
then the amendment is not permitted.
Id. at 1224. In this case, the charges added in the amended information
were simply two more counts of a crime charged in the original information
and rise out of the same factual situation. Moreover, the record establishes
that at the preliminary hearing, Detective Gill testified as to all three
firearms recovered, not just the recovery of the Baretta, which was the
2
to be amended when there is a defect
in form, the description of the offense(s), the description of any person or
any property, or the date charged, provided the information as amended
does not charge an additional or different offense. Upon amendment, the
court may grant such postponement of trial or other relief as is necessary in
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firearm identified as the basis of the persons not to possess charge in the
original complaint. See N.T., 12/26/12, at 2-4, 8-10. Hines was made
aware of the facts underlying the charges added in the amendment
information through this testimony, and so the purpose of Rule 564 was not
violated. Thus, even if Hines had timely objected, the amended information
was appropriate. At best, Hines might have been granted a short
continuance, but the evidence would have been the same. Accordingly,
In his second issue, Hines argues that the trial court erred in denying
his motion in limine to prohibit statements indicating that Hines was involved
motion in limine, [the appellate] court applies an evidentiary abuse of
discretion standard of review. It is well-established that the admissibility of
evidence is within the discretion of the trial court, and such rulings will not
Commonwealth v. Rivera, 983 A.2d 1211, 1228 (Pa. 2009).
At issue is a statement by Detective Gill that as the police executed
the search warrant, Hines stated that he obtained the two firearms found in
the house by trading drugs for them. N.T., 9/9/13, at 103. Hines argues
that alt
drugs for the firearms, this information was not relevant to the charges of
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no relevance in the determination as to whether Mr. Hines was in possession
-15. While
tion, we
disagree.
The threshold inquiry with admission of evidence is
whether the evidence is relevant. Evidence is
relevant if it logically tends to establish a material
fact in the case, tends to make a fact at issue more
or less probable, or supports a reasonable inference
or presumption regarding the existence of a material
fact. In addition, evidence is only admissible where
the probative value of the evidence outweighs its
prejudicial impact.
Commonwealth v. Antidormi, 84 A.3d 736, 750 (Pa. Super. 2014). The
crime of which Hines was convicted is defined as follows:
A person who has been convicted of an offense
enumerated in subsection (b), within or without this
Commonwealth, regardless of the length of sentence
or whose conduct meets the criteria in subsection (c)
shall not possess, use, control, sell, transfer or
manufacture or obtain a license to possess, use,
control, sell, transfer or manufacture a firearm in this
Commonwealth.
18 Pa.C.S.A. § 6105(a)(1). The Commonwealth was required to establish,
inter alia, that Hines possessed the firearms found in his house. It would
3
3
The Commonwealth established that Hines had been convicted of an
ance, Drug,
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would not be relevant to establishing that he, in fact, possessed the
firearms. However, Hines was living in the residence with his brother and
two of the firearms were found in different locations in the residence.
Therefore, to tie these guns to Hines, the Commonwealth had to establish
that Hines had constructive possession of these firearms. See
Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (holding
that illegal possession of a firearm may be shown by constructive
possession, defined as an inference arising from a set of facts that the
accused had the power to control the contraband and the intent to exercise
that control). Thus, the statement at issue is relevant because it helps
establish that Hines, rather than his brother, possessed the firearms. We
t this relevance outweighs
any potential prejudice to Hines, and so we will not disturb its ruling.
In his third and fourth issues, Hines challenges the sentence imposed.4
court sentenced him on three counts of persons not to possess firearms
when the original information charged him with only one count of this crime.
requirements of subsection (c)(2). See 18 Pa.C.S.A. § 6105(c)(2). Hines
does not dispute that the Commonwealth established this element of the
crime.
4
-conforming
statement of reasons relied upon for appeal as required by Pa.R.A.P.
2119(f), offered in support of his fourth issue, which purports to challenge
the discretionary aspects of his sentence.
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this as an issue addressed to the discretionary aspects of his sentence is
sentence because of the challenged amended information, and so he is
therefore challenging the legality of his sentence. See Commonwealth v.
Robinson, 931 A.2d 15, 21 (Pa. Super. 2007) (providing that challenges to
the legality of a sentence involve the authority of the court to impose a
simply the claim that the information was improperly amended, and that he
should only have been sentenced on one count of persons not to possess
firearms because only one count was included in the original information.
5
As discussed above, his challenge to the
amendment of the information is meritless. As the jury found Hines guilty of
all three counts, the trial court was permitted to impose sentences on all
three counts.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2014
5
We note that Hines fails to include any citation to supportive authority, in
violation of Pa.R.A.P. 2119(b).
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