J-S02044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL JOSEPH PREZIOSI
Appellant No. 443 EDA 2015
Appeal from the Judgment of Sentence entered September 5, 2014
In the Court of Common Pleas of Northampton County
Criminal Division at Nos: CP-48-CR-0004211-2013 and
CP-48-CR-0000435-2014
BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 24, 2016
Appellant, Daniel Joseph Preziosi, pro se appeals from the September
5, 2014 judgment of sentence entered by the Court of Common Pleas of
Northampton County (“trial court”), following a jury trial that resulted in him
being convicted of robbery, two counts of simple assault, theft by unlawful
taking (movable property), receiving stolen property, and escape.1 After
careful review, we affirm.
The facts and procedural history of this case are uncontested. On
October 19, 2013, Appellant was charged with multiple offenses, including
robbery, simple assault, theft by unlawful taking, and receiving stolen
____________________________________________
1
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 2701(a)(3), 3921(a), 3925(a), and
5121(a), respectively.
J-S02044-16
property, at docket number 4211 (hereinafter “First Case”). The affidavit of
probable cause accompanying the complaint provided:
On 10/18/2013 at about 1414 hrs [Detective Seargent
Michael Melinsky, Colonial Regional Police Department,]
received a call from Wunderler’s Market located at 429 East Main
St[reet,] Bath[, PA] for an armed robbery that had just occurred
at that location. Upon [Detecive Melinsky’s] arrival, the
victim[s] of the robbery Donald and Joyce Wunderler detailed
that they were both at the store when an unknown white male
entered the store and brandished a dark[-]colored semi-
automatic style handgun. The unknown male demanded the
money in the cash register. Joyce Wunderler stated that the
male was given the money out of the cash register, mostly 1, 5
and 10 dollar bills. After the actor received the money he fled
on foot, north from the store.
[Detective Melinsky] viewed and copied the store
surveillance video which was working at Wunderler’s Market at
the time of the robbery. The video shows the male that was
described by the Wunderler’s brandishing the firearm, robbing
the store.
[Detective Melinsky] interviewed a Michael Flyte[.] Flyte
reported seeing a suspicious vehicle in the area of Wunderler’s
Market at the time of the robbery. Flyte described the vehicle as
a 1990’s 4-door beige Toyota Camry with front end damage,
missing a front headlight assembly. The vehicle’s rearview
mirror was dangling from the windshield and the rear of the
vehicle had a sticker, a heart-shaped zebra pattern, outlined in
pink. Flyte described the driver of the car as a white male in his
mid-20s about 6 feet tall and a 175 lbs., wearing black coat with
a white hood. [Detective Melinsky] showed a picture of the
suspect from Wunderler’s Market to Flyte and [Flyte] identified
the male in the picture as the person driving the suspicious
vehicle.
The vehicle that was identified by Flyte was located later
that night parked on the block of East Main St. in Bath.
Surveillance was conducted on the vehicle and [Appellant] was
observed opening the vehicle and retrieving something from the
rear seat. [Detective Melinsky] and Sgt. Enstrom identified
themselves to [Appellant]. [Appellant] was then observed
throwing [a] pill bottle under a parked car. [Appellant] was then
taken into custody and transported to police headquarters.
Search of [Appellant] when taken into custody revealed that
[Appellant] had in his pants pocket a stack of money, which was
mostly in one and five dollar denominations.
At police headquarters, with [Appellant] in custody
[Detective Melinsky] and assisting officers viewed the
-2-
J-S02044-16
surveillance video from Wunderler’s Market. [Detective
Melinsky] and assisting officers confirmed that it was [Appellant]
on the video committing the robbery.
[Detective Melinsky] had photo lineups created with
[Appellant’s] picture in the lineup. [Detective Melinsky] showed
the photo lineup to both Mr. and Mrs. Wunderler separately.
They both identified [Appellant] as the person who robbed their
store earlier in the day.
Affidavit of Probable Cause, 10/19/13. On December 18, 2013, constables
transported Appellant to a district court for a preliminary hearing, but
Appellant managed to flee from the constables’ custody. Appellant
subsequently was arrested and charged with one count of escape at docket
number 435-2014 (hereinafter “Second Case”).
On March 24, 2014, Appellant, through counsel, filed an omnibus
pretrial motion in the First Case, seeking, inter alia, to suppress all
incriminating evidence. In support of suppression, Appellant alleged that the
police lacked probable cause to arrest him without a warrant. He also
alleged that the police lacked probable for the issuance of a search warrant
for the vehicle. The trial court disagreed, denying, among other things,
Appellant’s suppression motion following a hearing. The court concluded
that probable cause existed to arrest Appellant and to issue the search
warrant for the vehicle. In so doing, the trial court rendered detailed
findings:
1. On the date of the robbery, at approximately 2:14 p.m.,
Colonial Regional Police received notification that an armed
robbery took place at Wunderler’s Market in Bath, Pennsylvania;
2. Detective Sergeant Melinsky responded to the scene along
with other patrol vehicles and interviewed the victims and the
owners of the market, Joyce and Donald Wunderler;
-3-
J-S02044-16
3. The victims provided information to Detective Melinsky that
included a description of the perpetrator who brandished a black
semiautomatic handgun, was wearing a black jacket with a grey
hoodie, was approximately 6 foot tall and approximately 175
pounds. The perpetrator was a white male. The Wunderlers
handed the robber approximately $100 in cash in small bills;
4. Detective Sergeant Melinsky obtained video footage from the
surveillance cameras within the market and reviewed the
footage. He was able to view images of the perpetrator of the
robbery which matched the description provided by the victims;
5. Detective Sergeant Melinsky was also able to view on the
surveillance videotape the perpetrator walk into the store, point
the gun at the victims, and commit the robbery. He was also
able to view the perpetrator flee out the door of the market;
6. Later at the station, Detective Sergeant Melinsky again
reviewed the videotape and, in fact, viewed the videotape at
least five or six times. Each viewing included images of the
perpetrator;
7. Detective Sergeant Melinsky and other members of the
Colonial Regional Police Department obtained a still shot of the
perpetrator from the surveillance videotape and disseminated it
to police and to the media. The still shot photograph was
admitted as Commonwealth’s Exhibit 1 and depicted a white
male in a gray hooded sweatshirt, which matched the description
provided by the victims;
8. Later in the day on the afternoon of the robbery, Officer
Kovalosky received a call from a witness named Michael Flyte
who had been in the area of the market at the time of the
robbery. Michael Flyte had prepared a written statement of his
own accord and provided written information to the police
detailing what he observed with respect to the robbery;
9. Michael Flyte provided information to police that he saw a
beige four-door Toyota Camry with front end vehicle damage
near the headlight pull in quickly to a parking place near the
market. The vehicle ran a stop sign in so doing;
10. Michael Flyte witnessed a male get out of the car and walk
down an alley towards the market;
11. Approximately several minutes later, Michael Flyte witnessed
the male return from the market. It was a white male, wearing
a gray hoodie and black jacket. Michael Flyte’s description
matched that of the perpetrator as provided by the victims, and
as depicted on the video;
12. Detective Sergeant Melinsky showed the still shot
photograph obtained from the surveillance video to Michael
-4-
J-S02044-16
Flyte. Michael Flyte confirmed that was the male that he had
observed;
13. Michael Flyte also provided police with information that the
[male’s] vehicle contained a distinctive sticker in the rear
window. It was a heart shaped sticker decal outlined in pink
with zebra stripes;
14. Detective Sergeant Melinsky conducted research on the
sticker and was able to obtain a computer image of the sticker
which Michael Flyte confirmed was similar to the image he saw
on the car;
15. At approximately 1 a.m. the next morning, Detective
Sergeant Melinsky received a telephone call from Sergeant
Enstrom of the Colonial Regional Police indicating that Mr.
Enstrom observed a four-door beige Toyota Camry with a sticker
matching the description provided by Michael Flyte parked in
Bath near the Daily Grind Coffee Shop, and near the Fox
Hotel/Gentlemen’s Club;
16. Detective Sergeant Melinsky, Sergeant Enstrom, and other
members of the police department conducted surveillance on the
vehicle;
17. Prior to surveillance taking place, upon information believed,
Sergeant Enstrom had observed a male approaching the vehicle.
Sergeant Enstrom did not have backup with him at the time, and
therefore, sought backup and surveillance was conducted of the
vehicle;
18. Approximately 1:46 a.m. Detective Sergeant Melinsky
observed a male walk out of the Fox Hotel, approach the car,
open the back door of the car, and get in. The male matched
the description of the perpetrator as provided by the victims and
by Michael Flyte. The male was the same male depicted on the
surveillance videotape and the still shot obtained therefrom. At
which point, [Appellant] was arrested;
19. Detective Sergeant Melinsky indicated that he knew from the
video that he had reviewed multiple times, from the still
photograph, and from the description provided by the victims
and Michael Flyte that the person getting into the car was the
person who perpetrated the robbery;
20. [Appellant] was taken into custody and searched incident to
arrest. Money was found in [Appellant’s] pocket, including
approximately eight $5 bills, and ten $1 bills;
21. The money found in [Appellant’s] pocket is the subject of the
motion to suppress. The motion to suppress the money is
denied;
-5-
J-S02044-16
22. Subsequently, the vehicle was impounded, and a search
warrant was obtained for its contents. During the search of the
vehicle, a gun was found in the truck, which matched the
description and depiction of the gun used in the robbery as
described by the victims and as seen on the videotape. The gun
found in the truck is the subject of the suppression motion. The
suppression motion with respect to the gun and any other items
found in the car pursuant to the search warrant is denied;
23. By way of further findings of fact that the arrest was
supported by probable cause, the Commonwealth admitted
Exhibits C-1 through C-5 depicting photos of [Appellant], which
were consistent with the description provided by the victims of
the perpetrator of the robbery; photographs of the vehicle,
which were consistent with the description of the vehicle
provided by the witness, Michael Flyte; photographs of the
sticker on the rear of [Appellant’s] vehicle, which were
consistent with the description of the sticker provided by the
witness Michael Flyte; and a photo of a hooded sweatshirt and
black jacket found inside [Appellant’s] vehicle;
24. In addition, Sergeant Enstrom testified consistently with the
testimony of Detective Sergeant Melinsky regarding the incidents
surrounding [Appellant’s] arrest;
25. Detective Gary Hammer also testified consistently with
Detective Sergeant Melinsky concerning the incidents
surrounding [Appellant’s] arrest;
26. The [trial] court finds, not only that the arrest was supported
by sufficient probable cause, but that the probable cause to
arrest [Appellant] was overwhelming.
Trial Court Opinion, 6/17/14. Prior to trial, the Commonwealth moved to
consolidate the cases at docket numbers 4211-2013 and 435-2014.2 The
trial court granted the consolidation motion. Following a jury trial, Appellant
was convicted of robbery, two counts of simple assault, theft by unlawful
taking, and receiving stolen property in the First Case. The trial court
____________________________________________
2
Alternatively, the Commonwealth provided Appellant notice under Pa.R.E.
404(b) (bad acts) of its intention to introduce evidence of the First Case in
the Second Case and vice versa. The Commonwealth, however, withdrew
the Rule 404(b) notice at trial. See N.T. Trial, 6/3/14, at 39.
-6-
J-S02044-16
sentenced Appellant to 90 to 240 months’ imprisonment for the armed
robbery conviction. The trial court imposed no further penalty on the
remaining convictions in the First Case. In the Second Case, the jury found
Appellant guilty of escape, and the trial court imposed a sentence of 27 to
84 months’ imprisonment consecutive to the sentence imposed in the First
Case. Thus, Appellant received an aggregate sentence of 117 to 324
months in prison.
On September 12, 2014, Appellant filed a post-sentence motion,
challenging, inter alia, the denial of suppression, the consolidation of the
cases, and the in-court identification of Appellant. The trial court denied the
motion on January 5, 2015. Appellant timely appealed to this Court.3
On appeal,4 Appellant essentially raises three issues for our review:
1) Did the trial court err by denying the [m]otion to [s]uppress
[e]vidence in the instant matter?
2) Did the trial court err by improperly consolidating the criminal
informations?
____________________________________________
3
Following the filing of the appeal notice, Appellant petitioned the trial court
to proceed pro se. The trial court held a hearing at which it colloquied
Appellant on his decision to represent himself. On March 6, 2015, the trial
court granted Appellant’s petition to proceed pro se.
4
We note Appellant’s pre-sentence investigation report is part of the original
record. It should be noted that pursuant to Pa.R.Crim.P. 703 a pre-sentence
investigation report is “confidential, and not of public record,” which is
available only to the authorities or the individuals listed therein. See
Pa.R.Crim.P. 703. Accordingly, the Northampton County Clerk of Courts
should take all necessary steps to preserve the confidential nature of the
pre-sentence investigation report by sealing it.
-7-
J-S02044-16
3) Did the trial court err by allowing irrelevant evidence relating
to the consciousness of guilt in violation of Pa.R.E. 404(b)(2)?
Appellant’s Brief at 5. To the extent Appellant argues that the trial court (a)
erred in deciding his pretrial omnibus motion prior to the commencement of
trial in violation of Pa.R.Crim.P. 580; (b) erred by allowing improper in-court
identification evidence to be introduced and admitted at trial; and (c) abused
its discretion by imposing a manifestly excessive sentence, such arguments
are waived. Appellant failed to challenge the trial court’s timing for
disposing of the omnibus motion in the trial court. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”). Our review of the record reveals that Appellant
failed to object to his in-court identification by Joyce Wunderler. See N.T.
Trial, 6/3/14, 101-02. Finally, as the Commonwealth points out, Appellant
cannot challenge the discretionary aspects of his sentence on appeal
because he failed to do so in a post-sentence motion before the trial court.
It is settled that “[i]ssues challenging the discretionary aspects of a sentence
must be raised in a post-sentence motion or by presenting the claim to the
trial court during the sentencing proceedings. Absent such efforts, an
objection to a discretionary aspect of a sentence is waived.”
Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (citation
omitted), appeal denied, 75 A.3d 1281 (Pa. 2013). Even if these issues
were not waived, we still would conclude that Appellant is not entitled to
-8-
J-S02044-16
relief based on the reasons outlined in the trial court Rule 1925(a) opinion,
which we fully adopt.
In reviewing appeals from an order denying suppression, our standard
of review is limited to determining
whether [the trial court’s] factual findings are supported by the
record and whether [its] legal conclusions drawn from those
facts are correct. When reviewing the rulings of a [trial] court,
the appellate court considers only the evidence of the
prosecution and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
as a whole. When the record supports the findings of the [trial]
court, we are bound by those facts and may reverse only if the
legal conclusions drawn therefrom are in error.
Commonwealth v. Griffin, 116 A.3d 1139, 1142 (Pa. Super. 2015)
(citation omitted). Our scope of review is limited to the evidence presented
at the suppression hearing. In the interest of L.J., 79 A.3d 1073, 1088-89
(Pa. 2013).
After careful review of the parties’ briefs, the record on appeal, and
the relevant case law, we conclude that the trial court’s 1925(a) opinion
authored by the Honorable Jennifer R. Sletvold, cogently disposes of
Appellant’s issues on appeal. See Trial Court Rule 1925(a) Opinion,
3/26/15, at 3-19. With respect to the first issue, the trial court concluded,
based upon its findings detailed supra, that it did not err in denying
Appellant’s suppression motion because probable cause to arrest was
overwhelming to support his arrest and the resulting search of his person
and vehicle. On the second issue, the trial court determined that it did not
abuse its discretion in consolidating the cases for trial because they were
-9-
J-S02044-16
interrelated. As for the third issue, the trial court determined that the
Commonwealth withdrew at trial its notice to introduce evidence under Rule
404(b).5 The trial court noted that the Commonwealth was permitted to
argue to the jury that Appellant’s flight from the preliminary hearing was
indicative of a consciousness of guilt.
In sum, we affirm Appellant’s convictions in both cases. We direct that
a copy of the trial court’s March 26, 2015 Rule 1925(a) opinion be attached
to any future filings in this case.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2016
____________________________________________
5
Rule 404(b)(3) provides that “[i]n a criminal case the prosecutor must
provide reasonable notice in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown, of the general nature of any
such evidence the prosecutor intends to introduce at trial.” Pa.R.E.
404(b)(3).
- 10 -
Com. v. Preziosi, D.
Combined Opinion