J-S24013-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN STARKS
Appellant No. 2380 EDA 2014
Appeal from the Judgment of Sentence September 17, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0004041-2012
BEFORE: GANTMAN, P.J., ALLEN, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 24, 2015
Appellant, John Starks, appeals nunc pro tunc from the judgment of
sentence entered in the Montgomery County Court of Common Pleas,
following his jury trial conviction for persons not to possess firearms.1 We
affirm and grant counsel’s petition to withdraw.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
As a preliminary matter, appellate counsel seeks to withdraw his
representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa.
____________________________________________
1
18 Pa.C.S.A. § 6105.
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159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)
petition the Court for leave to withdraw, certifying that after a thorough
review of the record, counsel has concluded the issues to be raised are
wholly frivolous; 2) file a brief referring to anything in the record that might
arguably support the appeal; and 3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points the appellant deems worthy of review.
Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance
with these requirements is sufficient. Commonwealth v. Wrecks, 934
A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent
requirements have been met, this Court must then make an independent
evaluation of the record to determine whether the appeal is, in fact, wholly
frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.
2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982
(Pa.Super. 1997)).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor McClendon[2] requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
____________________________________________
2
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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references to anything in the record that might arguably
support the appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (1) provide a
summary of the procedural history and facts, with citations
to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set
forth counsel’s conclusion that the appeal is frivolous; and
(4) state counsel’s reasons for concluding that the appeal
is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Id. at 178-79, 978 A.2d at 361.
Instantly, appellate counsel filed a petition for leave to withdraw. The
petition states counsel performed a conscientious review of the record and
concluded the appeal would be wholly frivolous. Counsel also supplied
Appellant with a copy of the withdrawal petition, the brief, and a letter
explaining Appellant’s right to proceed pro se or with new privately-retained
counsel to raise any additional points Appellant deems worthy of this Court’s
attention. In his Anders brief, counsel provides a summary of the facts and
procedural history of the case. Counsel refers to facts in the record that
might arguably support the issues raised on appeal and offers citations to
relevant law. The brief also provides counsel’s reasons for concluding that
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the appeal is frivolous. Thus, counsel has substantially complied with the
requirements of Anders and Santiago.
As Appellant has filed neither a pro se brief nor a counseled brief with
new privately-retained counsel,3 we review the issues raised in the Anders
brief:
DID THE SUPPRESSION COURT ABUSE ITS DISCRETION
WHEN IT DENIED APPELLANT’S MOTION TO SUPPRESS
EVIDENCE OBTAINED FROM SEARCH WARRANTS FOR HIS
DNA?
DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT
DENIED APPELLANT’S [OBJECTION] TO PRECLUDE THE
JURY [FROM] HEARING THAT THE POLICE OFFICER
RECOGNIZED APPELLANT FROM PRIOR ENCOUNTERS?
____________________________________________
3
On March 23, 2015, Appellant filed a pro se motion for remand and
removal of counsel. In it, Appellant relies on Commonwealth v. Grazier,
552 Pa. 9, 12, 713 A.2d 81, 82 (1998), for the proposition “that when an
appellant requests pro se status after his counsel has filed an appellate brief,
the request is untimely.” Appellant claims counsel knew about this aspect of
Grazier and “deliberately delayed providing Appellant [with] copies of the
brief and motion to withdraw” in an attempt to leave Appellant “unable to
file [a] brief raising the issues requested to be raised….” (Motion, filed
3/23/15, at 2). Appellant concludes this Court must strike the Anders brief
and remand the matter for the appointment of new counsel. Significantly,
Appellant ignores Anders and Santiago, which allow him to file a pro se
brief after counsel’s withdrawal request. Moreover, the record belies the
claim that counsel delayed providing a copy of the Anders brief to
Appellant. By letter dated January 30, 2015, counsel explained Appellant’s
right to proceed pro se or with new privately-retained counsel, and he
provided copies of the withdrawal petition and the Anders brief to Appellant.
(See Petition to Withdraw, filed 2/5/15, at 3.) Counsel subsequently filed
the Anders brief with this Court on February 5, 2015. Thus, Appellant had
the opportunity to file a pro se brief to raise any additional points he deemed
worthy of review. On this record, we deny Appellant’s pro se motion for
remand and removal of counsel.
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IS APPELLANT’S CONVICTION FOR PERSONS NOT TO
POSSESS, SELL, TRANSFER, ETC., FIREARMS, IN
VIOLATION OF 18 PA.C.S. § 6105(a), SUPPORTED BY
LEGALLY SUFFICIENT EVIDENCE?
DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT
IMPOSED THE MAXIMUM POSSIBLE SENTENCE UPON
APPELLANT WITH RESPECT TO HIS FIREARMS
POSSESSION CONVICTION?
(Anders Brief at 5).
Regarding Appellant’s fourth issue, challenges to the discretionary
aspects of sentencing do not entitle an appellant to an appeal as of right.
Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. 2000). Prior to
reaching the merits of a discretionary sentencing issue:
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating a substantial question as to the
appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.
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2119(f). “The requirement that an appellant separately set forth the
reasons relied upon for allowance of appeal ‘furthers the purpose evident in
the Sentencing Code as a whole of limiting any challenges to the trial court’s
evaluation of the multitude of factors impinging on the sentencing decision
to exceptional cases.’” Commonwealth v. Phillips, 946 A.2d 103, 112
(Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d
240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387
(Pa.Super. 1989) (en banc) (emphasis in original)).
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Anderson, 830
A.2d 1013 (Pa.Super. 2003). A substantial question exists “only when the
appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the
sentencing process.” Sierra, supra at 912-13 (quoting Commonwealth v.
Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567
Pa. 755, 790 A.2d 1013 (2001)). A claim that a sentence is manifestly
excessive might raise a substantial question if the appellant’s Rule 2119(f)
statement sufficiently articulates the manner in which the sentence imposed
violates a specific provision of the Sentencing Code or the norms underlying
the sentencing process. Mouzon, supra at 435, 812 A.2d at 627.
After a thorough review of the record, the briefs of the parties, the
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applicable law, and the well-reasoned opinion of the Honorable Gary S.
Silow, we conclude Appellant’s issues merit no relief. The trial court opinion
comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed October 17, 2014, at 5-12)
(finding: 1) at suppression hearing, Appellant argued Sergeant Tims did not
actually see Appellant driving vehicle involved in January 29, 2012 incident;
suppression court, however, credited Sergeant Tims’ testimony that he
observed Appellant driving vehicle on night in question; 2) Appellant
objected to Commonwealth’s questioning of Corporal Bishop about his
encounter with Appellant on March 19, 2012; Commonwealth sought to
establish that Corporal Bishop saw Appellant driving same vehicle involved in
January 29, 2012 incident; court properly permitted questioning, because it
was probative of Appellant’s identity as driver of vehicle on January 29,
2012, which Appellant had contested; Appellant did not suffer unfair
prejudice from admission of Corporal Bishop’s testimony; 3) sufficient
evidence supported Appellant’s conviction for persons not to possess
firearms; Appellant stipulated he is prohibited from possessing firearms,
pursuant to Section 6105(b); officer witnessed Appellant driving vehicle from
which police retrieved firearm; expert testimony indicated over ninety-nine
(99) percent probability that Appellant’s DNA was on firearm; 4) Appellant
incorrectly asserted that sentence for firearms conviction fell within
aggravated range of sentencing guidelines; court actually imposed standard
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range sentence with benefit of pre-sentence investigation report; court
provided detailed, on-the-record statement of reasons for sentence
imposed). Following our own independent evaluation of the record, we
affirm and grant counsel’s petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2015
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IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF NO. 4041-12
PENNSYLVANIA
v.
JOHN STARKS
OPINION
SILOW, J.
Defendant, John Starks, appeals from the judgment of sentence entered
followinghis conviction at a jury trial on the charge of person not to possess a firearm.
For the reasons set forth below, the judgment of sentence should be affirmed.
I. FACTUAL AND PROCEDURAL HISTORY
In the early morning hours of January 29, 2012, Norristown Police Sergeant
William Tims received a radio report of a fight in progress in the area of Barbadoes and
Ann Streets in Norristown, Montgomery County. (N.T.2/ 13/ 13, pp. 43-44) Upon
arriving at the area, he saw a black Oldsmobile stopped at the corner of Ann and
Barbadoes Streets. (Id. at 45) He proceeded down Barbadoes Street, passing the
vehicle slowly. He saw two individuals inside, including defendant in the driver's seat.
(Id.) A street light at the intersection illuminated the area and Sgt. Tims knew
defendant from seeing him around. (Id. at 46-48)
Sgt. Tims continued down Barbadoes Street and saw the vehicle head eastbound
on Ann Street. He attempted to circle back to the area where he had seen the vehicle.
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While doing so, he came upon the vehicle at a traffic light at the intersection of Cherry
and Airy Streets. As Sgt. Tims approached the intersection, the black Oldsmobile ran
through a red light and sped away down Cherry Street. (Id. at 49-50) The vehicle then
blew through stops signs at three intersections along Cherry Street. (Id. at 50)
Sgt. Tims followedthe vehicle and saw it turn right off of Cherry Street onto Elm
Street. He lost sight of the vehicle briefly before coming upon it stopped in an alley
behind an apartment. (Id. at 51-52) The vehicle was running, but both doors were
open and no one appeared to be inside. (Id. at 52)
Norristown Police Corporal Michael Bishop arrived in the alley almost at the
same time as Sgt. Tims. (Id. at 72) He approached the vehicle on foot to determine
whether anyone was inside. He observed a loaded .38 caliber handgun laying in plain
view in the vehicle's center console. (Id. at 74-75; N.T. 2/14/13, C-4) The firearm was
retrieved and placed into a paper bag. The vehicle was impounded and an inventory
search revealed the presence of a hairbrush in the same console as the gun. (Id. at 79)
The hairbrush was seized as evidence and placed in a separate bag.
Less than two months later, on March 19, 2012, Cpl. Bishop initiated a traffic
stop after a vehicle pulled out in front of his marked police vehicle at an intersection,
almost causing him to strike it. (Id. at 87-88) During the stop, Cpl. Bishop realized
defendant was the driver and the vehicle was the same black Oldsmobiledefendant
had been seen driving back on January 29, 2012. (Id. at 88-89) He took defendant
into custody on an arrest warrant that had been issued in the wake of the January 29,
2012, incident.
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Subsequent testing of the firearm indicated the presence of defendant's DNA on
the grip and trigger areas. (N.T. 02/ 14/ 13, pp. 30-31) His DNA also was found on the
hairbrush. (Id. at 27-28)
Defendant initially was charged with two counts of firearms not to be carried
without a license, receiving stolen property, unauthorized use of an automobile and
related summary offenses. He filed a motion to suppress, which this court denied
after a hearing.
A jury found defendant guilty of person not to possess a firearm 1 and he was
sentenced to five to ten years in prison. He filed post-sentence motions, which this
court denied in an order docketed on January 23, 2014. No direct appeal followed.
On March 12, 2014, defendant filed a prose petition under the Post Conviction
ReliefAct. He alleged, inter alia, that trial counsel failed to file a direct appeal on his
behalf followingthe denial of his post-sentence motion. This court appointed counsel
to represent defendant in connection with the petition.
Appointed counsel filed an amended PCRApetition that alleged, inter alia, that
trial counsel did not file a direct appeal. This court granted relief, in part, and
reinstated defendant's right to file a direct appeal nunc pro tune within 30 days.s
The Public Defender's Office,which subsequently was appointed to represent
defendant on direct appeal, filed the nunc pro tune appeal and complied with this
court's directive that it produce a concise statement of errors.
1The Commonwealth amended the Information to include this offense, and ultimately
did not proceed with any other charges at trial.
2 To the extent the pro se and amended petitions pursued additional claims of trial
counsel ineffectiveness, this court denied them without prejudice to defendant's right
to raise them upon the conclusion of his direct appeal.
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II. ISSUES
In his counseled concise statement, defendant raises the followingissues, which
have been recast as follows:
1. The evidence supporting the conviction for person not to possess a firearm
was legally insufficient because:
a. While the Commonwealth's DNAexpert witness testified that there
were traces of defendant's "touch DNA" on the firearm, it could have
come from defendant's skin cells that were normally shed during the
day and he frequently had access to the vehicle in which the firearm
was found because it belonged to defendant's girlfriend;
b. The firearm was found in close proximity to defendant's hairbrush,
which could be a source of "touch DNA";
c. The firearm had traces of DNAfrom at least six different people;
d. The mere presence of defendant's "touch DNA" on the firearm does
not establish that he ever touched or possessed the firearm or even
knew of its presence in his girlfriend's vehicle; and
e. Corporal Michael Bishop and Sergeant WilliamsTims contradicted
each other with regard to the details of the incident in which the
firearm was observed in plain sight.
2. The trial court erred in denying defendant's motion to suppress physical
evidence because:
a. The testimony of Corporal Bishop and Sergeant Tims contradicted
each other with respect to the information radioed over police
dispatch, with Corporal Bishop testifying that Sergeant Tims was
only provided with a description of the vehicle in question whereas
Sergeant Tims testified he was provided with information identifying
defendant as the driver of the vehicle;
b. The testimony differed regarding whether the vehicle's doors were
open when Sergeant Tims approached the vehicle and allegedly
observed the firearm in plain sight, with Corporal Bishop testifying
that he opened the car door and shined in his light;
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c. The officers lacked the necessary probable cause to investigate the
vehicle owned by defendant's girlfriend based upon the information
relayed to them by police dispatch;
......
d. The firearm was not in plain view from outside the vehicle and could
only be observed if the doors were open; and
e. The vehicle search by Corporal Bishop and Sergeant Tims violated
defendant's rights under the Fourth and Fourteenth Amendments to
the U.S. Constitution and Article I,§ 8 of the Pennsylvania
Constitution.
3. The trial court erred in overruling defendant's motion in limine regarding
Commonwealth evidence to the effect that defendant was observed and pulled
over months after the incident, at which time he was operating the same vehicle
in which the firearm had been recovered.
4. The trial court abused its discretion when it imposed the maximum
possible sentence for the conviction under Section 6105(a) because sufficient
reasons were not placed on the record for the imposition of the maximum
possible sentence of five to ten years for a felony of the second degree.
III. DISCUSSION
A. THE EVIDENCE PRESENTED AT TRIAL WAS SUFFICIENT TO
SUPPORT DEFENDANT'S CONVICTIONFOR PERSON NOT TO
POSSESS A FIREARM.
Defendant first contends the evidence was insufficient to support his conviction.
This court disagrees.
The Superior Court uses the followingwell-established standard of review when
considering a challenge to the sufficiency of the evidence:
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
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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.
Moreover, in applying the above test, the entire record must
be evaluated and all evidence actually received must be
considered. Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none of the evidence.
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014) (citations omitted).
Defendant challenges his conviction under 18 Pa. C.S. § 6105(a)(l), which
prohibits a person who has been convicted of a specified offense from, inter alia,
possessing or controlling a firearm in this Commonwealth. Defendant stipulated at
trial that he is a person prohibited from possessing or controlling a firearm. (N.T.
2/ 14/ 13, p. 5) As for the remaining elements of the offense, as detailed previously,
the evidence, when viewed in the light most favorable to the Commonwealth, amply
supported the jury's verdict. In particular, defendant was seen driving the vehicle
from which a firearm was retrieved. Expert testimony indicated that there was over a
99 percent probability that defendant's DNAwas on the firearm. (N.T.2/ 14/ 13, pp.
30-31) The jury was free to credit this evidence and find defendant guilty of Section
6 lOS(a)(l).3
3 Despite this court having addressed the merits of the claim, it may, indeed, be
waived. A challenge to the sufficiency of the evidence must be raised in a concise
statement that asserts with specificity the element or elements upon which the
defendant alleges that the evidence was insufficient. Commonwealth v. Garland, 63
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Moreover, it appears defendant's claim is not actually an attack on the
sufficiency of the evidence, but rather a challenge to its weight. While defendant did
contest the weight of the evidence in a post-sentence motion, he did not do so in his
concise statement. The concise statement asserts that the evidence was "legally
insufficient" to support the conviction under Section 6105(a). See Concise Statement,
,r 1. As such, to the extent defendant's challenge is to the weight of the evidence, he
has waived it. See e.g., Commonwealth v. Priest, 18 A.3d 1235 (Pa. Super. 2011)
(stating that weight of the evidence claim is waived for failure to present argument in
court-ordered statement).
B. THIS COURT PROPERLY DENIED DEFENDANT'S MOTION TO
SUPPRESS.
Defendant next alleges that this court erred in denying his motion to suppress.
The issue, as framed at the suppression hearing, focused on an alleged material
misrepresentation in an application for a search warrant to take a DNA swab from
defendant. (N.T. 2/8/ 13, pp. 10-11, 33, 68-70) In particular, defendant argued that
Sgt. Tims did not see defendant driving the vehicle on January 29, 2012, and any
statement to that effect in the application was inaccurate. To the extent defendant has
included in his concise statement challenges other than that, they have not been
preserved. See Pa. R.A.P. 302(a) (stating that claims not raised before the trial court
cannot be raised for the first time on appeal). To the extent defendant continues to
A.3d 339 (Pa. Super. 2013) (citing Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.
Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010). Although defendant has asserted
in his concise statement a number of challenges to the evidence, which may be read to
infer an attack on the possession/ control element of the offense, he does not specify
the element or elements that he believes were not proven with legally sufficient
evidence.
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assert a material misrepresentation appears in the search warrant application, this
();)
court properly denied the motion to suppression.
The Superior Court's standard of review when assessing a challenge to the
denial of a motion to suppress
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 suppression court,
[the Superior Court] 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, [the Superior Court is]
bound by these findings and may reverse only if the court's
legal conclusions are erroneous.
Commonwealth v. Simmen, 58 A.3d 811, 814 (Pa. Super. 2012) (quoting
Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012) (citations omitted).
"In order to secure a valid search warrant, an affiant must provide a magistrate
with information sufficient to persuade a reasonable person that there is probable
cause for a search." Commonwealth v. Baker, 24 A.3d 1006, 1017 (Pa. Super. 2011)
(citations omitted). The Superior Court has "recognized that the veracity of facts
establishing probable cause recited in an affidavit supporting a search warrant may be
challenged and examined," but it has "not suggested that every inaccuracy willjustify
an exclusion of evidence obtained as a result of the search." Id. at 1017 (quoting
Commonwealth v. Monte, 329 A.2d 836, 842-843 (Pa. 1974) (internal citations and
footnote omitted). "The suppression court has sole authority to assess the credibility
of the witnesses and is entitled to believe all, part or none of the evidence presented."
. Simmen, 58 A.3d at 817 (Pa. Super. 2012) (citations omitted). The suppression court's
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credibility determinations will not be disturbed on appeal. Id.
Here, the issue raised by defendant at the suppression hearing was his
contention that Sgt. Tims did not actually see him driving the vehicle on January 29,
2012. This court found Sgt. Tims testified credibly at the suppression hearing as to
his observation of defendant driving the vehicle on the night in question. The absence
th of the alleged material misstatement in the application for the search warrant,
therefore, compelled the denial of defendant's motion to suppress.
C. THIS COURT PROPERLY DENIED DEFENDANT'S MOTIONIN LIMINE.
Defendant claims this court erred in denying his motion in limine related to
evidence that he was pulled over some months after the January 2012 incident by Cpl.
Bishop while driving the same vehicle from which the firearm had been recovered.4
The claim does not warrant relief.
The Superior Court has set forth the standard of reviewused when considering
a trial court's evidentiary rulings as follows:
The admission of evidence is a matter vested within the sound
discretion of the trial court, and such a decision shall be
reversed only upon a showing that the trial court abused its
discretion. In determining whether evidence should be
admitted, the trial court must weigh the relevant and
probative value of the evidence against the prejudicial impact
of the evidence. Evidence is relevant if it logicallytends to
establish a material fact in the case or tends to support a
reasonable inference regarding a material fact. Although a
4 Defendant makes reference in his concise statement to pages 5-7 of the notes of
testimony from February 13, 2013, in connection with this claim. Defendant did make
a motion in limine prior to the start of trial, as evidenced in pages 5-7, regarding Sgt.
Tims' prior encounters with him. Defendant did not make a motion in limine seeking
the exclusion of Cpl. Bishop's subsequent observation of defendant driving the same
vehicle; he raised an objection during trial while Cpl. Bishop was testifying on direct
examination by the Commonwealth (N.T.02/ 13/ 13, pp. 84-87).
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court may find that evidence is relevant, the court may
nevertheless conclude that such evidence is inadmissible on
0.)
account of its prejudicial impact.
Commonwealth u. Aniidormi, 84 A.3d 736, 749 (Pa. Super. 2014).
Pennsylvania Rule of Evidence 403 authorizes the trial court to exclude relevant
evidence if its probative value is outweighed by, inter alia, unfair prejudice. The
comment to Rule 403 defines "unfair prejudice" as having "a tendency to suggest
decision on an improper basis or to divert the jury's attention away from its duty of
weighing the evidence impartially." Pa. R.E. 403 cmt. Evidence is not subject to
exclusion as unfairly prejudicial simply because it is harmful to the defendant.
Aniidormi, 84 A.3d at 750 (citation omitted).
An abuse of discretion does not involve a mere error of judgment. Id. at 749-750
(citations omitted). Rather, an abuse of discretion is "the overriding or misapplication
of the law, or the exercise of judgment that is manifestly unreasonable, or the result of
bias, prejudice, ill-will or partiality, as shown by the evidence of record." Id. (citations
omitted).
During trial, the Commonwealth sought to ask Cpl. Bishop about his encounter
with defendant on March 19, 2012. The proposed testimony was to the effect that Cpl.
Bishop saw defendant driving the same vehicle as the night the firearm was recovered.
Defendant objected, arguing the prejudicial effect of the evidence outweighed its
probative value. (N.T. 02/ 13/ 13, pp. 85-87) This court properly permitted the
questioning because it was probative of defendant's identity as the driver on January
29, 2012 - an issue defendant contested - and he suffered no unfair prejudice from its
admission. As such, defendant is not entitled to relief on this claim.
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D. THIS COURT IMPOSED A LAWFUL SENTENCE.
Defendant's final claim of error alleges that this court imposed the maximum
possible sentence for his conviction without placing sufficient reasons on the record.
The claim does not warrant relief.
"Sentencing is a matter vested in the sound discretion of the sentencing judge,
and a sentence will not be disturbed on appeal absent a manifest abuse of discretion."
Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) (quoting
Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002) (citations
omitted).
The standard range sentence for defendant's conviction, as he concedes, is 48 to
60 months. (N.T. 9 / 17 / 13, p. 22; concise statement, 1 4(b)) This court imposed a
standard range sentence of 5 to 10 years imprisonment. As such, defendant's claim
that he was sentenced in the aggravated range is without merit.
Even had the sentence fallen in the aggravated range, this court placed ample
reasons on the record to support a departure from the standard range. See Bowen, 55
A.3d at 1263-1264 {citations omitted) ("In every case where a sentencing court
imposes a sentence outside of the sentencing guidelines, the court must provide in
open court a contemporaneous statement of reasons in support of its sentence.").
The record from the sentencing hearing establishes that this court had the
benefit of a pre-sentence investigation report and was aware of, and took into
consideration, factors including defendant's age, background, remorse and
cooperation. (N.T. 9/17/13, pp. 30-33) The court detailed on the record the reasons
for the sentence it imposed. As such, even were defendant to be heard on the claim
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that his sentence falls within the aggravated range, he is not entitled to relief on his
challenge to this court's exercise of its discretion in fashioning his sentence.
IV. CONCLUSION
Based upon the foregoing, this court respectfully submits that the judgment of
sentence should be affirmed.
BY THE COURT:
J.
Copies sent on /1.J
to the following:
/r1 f ,f
Clerk of Courts
p District Attorney Robert M. Falin
ss s nt Public Defender Timothy P. Wile, Esq.
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