Com. v. Espenlaub, S.

J. S57011/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
STEPHEN M. ESPENLAUB, JR., : No. 1212 WDA 2015
:
Appellant :

Appeal from the Judgment of Sentence, June 1, 2015,
in the Court of Common Pleas of Blair County
Criminal Division at No. CP-07-CR-0002429-2014

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 23, 2016

Stephen M. Espenlaub appeals from the June 1, 2015 aggregate

judgment of sentence of 7½ to 20 years’ imprisonment imposed after a jury

found him guilty of ten counts of unlawful possession of a firearm.1 After

careful review, we affirm the judgment of sentence.

The relevant facts and procedural history of this case are as follows.

On December 18, 2012, appellant and a cohort broke into the home of

Damein Morris, an admitted drug dealer, and robbed him at gunpoint while

posing as police officers. (Notes of testimony, 3/23/15 at 73-75.) Morris

did not report the incident at the time, but decided to cooperate with police

* Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 6105.
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in January 2013 after he received a letter that was purportedly from the DEA

attempting to extort $20,000 from him. (Id. at 76-77.) Appellant was

subsequently arrested after he showed up at Morris’ residence in an

unmarked white police car to get the money. (Id. at 39, 78.) The

Commonwealth charged appellant with robbery, firearms violations, and

related offenses2 after an execution of a search warrant at his residence

yielded a surplus of firearms, ammunition, and “police” gear allegedly

utilized in the home invasion. (Id. at 50-58.) Appellant had a prior felony

conviction enumerated in 18 Pa.C.S.A. § 6105(b) that prohibited him from

possessing a firearm. (Id. at 2-3.)

The firearms charges were severed and appellant proceeded to a

bifurcated jury trial on March 23, 2015.3 Immediately prior to the start of

trial, appellant’s counsel made an oral motion to suppress the evidence

seized as a result of the search warrant. (Id. at 9-10.) The Commonwealth

subsequently objected on the basis that the motion was untimely pursuant

to Pa.R.Crim.P. 579. (Id. at 10.) The trial court agreed and denied

2
Specifically, appellant was charged with the following offenses:
18 Pa.C.S.A. §§ 3701 (robbery), 3502 (burglary), 2702 (aggravated
assault), 3503 (criminal trespass), 903 (criminal conspiracy), 3922 (theft by
deception), 3923 (theft by extortion), 4912 (impersonating a public
servant), 2701 (simple assault), 6106.1 (carrying a loaded weapon), 6105
(unlawful possession of a firearm), and 6106 (carrying a firearm without a
license).
3
The record reflects that appellant was convicted in a separate trial of
robbery, impersonating a public servant, and related offenses, and an appeal
is pending in this court at Docket No. 304 WDA 2016.

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appellant’s motion that same day. (Id. at 12-14.) Following a two-day trial,

appellant was found guilty of ten counts of unlawful possession of a firearm.

Prior to sentencing, appellant’s trial counsel filed a motion to withdraw from

representation. The trial court denied trial counsel’s motion and sentenced

appellant to an aggregate term of 7½ to 20 years’ imprisonment on June 1,

2015. Thereafter, appellant sent a pro se letter to both his trial counsel and

the trial court requesting reconsideration of his sentence. On June 12, 2015,

the trial court entered an order indicating that appellant’s motion would toll

the time period for filing an appeal and permitted trial counsel to withdraw.

On June 16, 2015, the trial court appointed new counsel to represent

appellant and provided him with 30 days to file a motion for reconsideration

of sentence nunc pro tunc. Counsel subsequently filed a timely motion for

reconsideration of sentence on July 14, 2015. The trial court denied said

motion on July 20, 2015. This timely appeal followed.4

On appeal, appellant raises the following issues for our review:

I. Whether the search warrant for [appellant’s]
residence was overly broad, in that no
probable cause was established to search for
evidence of drug dealing[] or firearms?

II. Whether the evidence was sufficient to
establish that [appellant] was in possession of
the firearms[] and whether the verdict was
against the weight of the evidence on this
point?

4
Appellant and the trial court have complied with Pa.R.A.P. 1925.

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III. Whether photographs of a child’s bedroom
which were unnecessary[] and inflammatory
were properly admitted?

Appellant’s brief at 11.

Appellant first argues that the trial court erred in denying his

admittedly untimely motion to suppress the evidence obtained from the

search of his residence. (Appellant’s brief at 15.) Appellant contends the

search warrant “was overly broad” and the police lacked probable cause “to

search for evidence of drug dealing[] or firearms.” (Id.)

Our standard of review when addressing a challenge to a trial court’s

denial of a suppression motion is well settled.

[An appellate court’s] standard of review in
addressing a challenge to the denial of a suppression
motion 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, 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, [the appellate court is] bound by [those]
findings and may reverse only if the court’s legal
conclusions are erroneous.

Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation

omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).

In the instant matter, the trial court authored an extensive, 13-page

opinion wherein it concludes, inter alia, that it did not err in denying

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appellant’s oral suppression motion as untimely and, in any event, “probable

cause existed to support the issuance of the search warrant” in this case.

(Trial court opinion, 9/29/15 at 8.) Following our careful scrutiny of the

certified record, including the notes of testimony, the parties’ briefs, and the

applicable law, we conclude the trial court’s determinations in this regard

were entirely proper. Accordingly, we conclude that the trial court’s opinion

comprehensively discusses and disposes of appellant’s suppression claim,

and adopt that portion of its opinion as our own for purposes of this

appellate review. (See id. at 7-11.)

Appellant next argues that there was insufficient evidence to sustain

his conviction of ten counts of unlawful possession of firearms. (Appellant’s

brief at 18.) In support of this claim, appellant avers that the

Commonwealth failed to prove that he “was in possession of the firearms” in

question or “had both the power and intent to control [them].” (Id. at

18-20.) Appellant further argues, albeit parenthetically and without any

citation to the applicable standard of review, that the verdict was against the

weight of the evidence. (Id. at 20.)

In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted
at trial and all reasonable inferences drawn
therefrom, viewed in the light most favorable to the
Commonwealth as verdict winner, is sufficient to
prove every element of the offense beyond a
reasonable doubt. As an appellate court, we may
not re-weigh the evidence and substitute our
judgment for that of the fact-finder. Any question of
doubt is for the fact-finder unless the evidence is so

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weak and inconclusive that as a matter of law no
probability of fact can be drawn from the combined
circumstances.

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009), appeal

denied, 4 A.3d 1054 (Pa. 2010) (citations omitted).

We discern that appellant challenges the sufficiency of the evidence to

establish the element of possession of a firearm. In situations where it

cannot be proven that a suspect had the firearm on his person, as is the

case here, the Commonwealth is required to prove constructive possession.

See Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.Super. 2013),

appeal denied, 78 A.3d 1090 (Pa. 2013).

Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law
enforcement. Constructive possession is an
inference arising from a set of facts that possession
of the contraband was more likely than not. We
have defined constructive possession as conscious
dominion. We subsequently defined conscious
dominion as the power to control the contraband and
the intent to exercise that control.

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super. 2012), appeal

denied, 63 A.3d 1243 (Pa. 2013) (citations and internal quotation marks

omitted). As with any other element of a crime, the Commonwealth may

sustain its burden of proving constructive possession by means of wholly

circumstantial evidence, and the requisite intent may be inferred from

examination of the totality of the circumstances. Hopkins, 67 A.3d at 820.

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Upon review of the evidence in the light most favorable to the

Commonwealth as the verdict winner, we conclude that there was sufficient

evidence to establish that appellant constructively possessed ten firearms in

violation of § 6105. The record establishes that following the execution of a

search warrant, the police seized multiple firearms from various rooms in

appellant’s residence. (Notes of testimony, 3/23/15 at 51-56.) At trial,

Detective Sergeant Matthew DePaolis identified several photographs of

firearms discovered during the search. Specifically, Detective Sergeant

DePaolis’ testimony revealed that eight rifles were found in appellant’s son’s

second-floor bedroom, and three additional firearms were recovered from

appellant’s master bedroom. (Id. at 45-49.) Detective Sergeant DePaolis

further noted that the majority of the firearms were not locked in a safe or

cabinet and that some were found loaded and were not equipped with a

trigger lock. (Id. at 55-56.)

The record further reveals that appellant’s wife, Natalie Friley

(“Friley”), testified at length with regard to the firearms in question. Friley

claimed that she was the individual who had purchased the firearms found

by police, but indicated that she did not know how to load each firearm or

the type of ammunition each firearm used. (Id. at 87-88.) Friley also noted

that although appellant did not own the handgun found in their bedroom

dresser, appellant loaded it for her. (Id. at 90-91.) Friley further testified

that she observed appellant “handle” several handguns and acknowledged

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on re-cross-examination that appellant had placed several of the rifles in

question on their gun rack. (Id. at 99, 106.) As noted, the parties

stipulated that appellant had a prior felony conviction enumerated in

18 Pa.C.S.A. § 6105(b) that prohibited him from possessing a firearm. (Id.

at 2-3.)

Based on the foregoing, we agree with the trial court that the

Commonwealth presented sufficient evidence for the jury to conclude, based

upon the totality of the circumstances, that appellant possessed “the power

to control the [ten firearms in question] and the intent to exercise that

control.” See Brown, 48 A.3d at 430. “If the factfinder reasonably could

have determined from the evidence adduced that all of the necessary

elements of the crime[s] were established, then that evidence will be

deemed sufficient to support the verdict.” Commonwealth v. Judd, 897

A.2d 1224, 1234 (Pa.Super. 2006), appeal denied, 912 A.2d 1291 (Pa.

2006) (citation omitted). Accordingly, appellant’s sufficiency claim must fail.

Lastly, appellant argues that the trial court erred in admitting

testimony that referenced the fact that several of the firearms in question

were found in his minor son’s bedroom. (Appellant’s brief at 20.) Appellant

maintains that this evidence was “inflammatory” and that “[t]he references

to the room as being a child’s room w[ere] not necessary[.]” (Id. at 20-21.)

We disagree.

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In reviewing a trial court’s ruling on the admissibility of evidence, our

standard of review is one of deference. “[T]he admission of evidence is

within the sound discretion of the trial court and will be reversed only upon a

showing that the trial court clearly abused its discretion.” Commonwealth

v. Fransen, 42 A.3d 1100, 1106 (Pa.Super. 2012), appeal denied, 76 A.3d

538 (Pa. 2013) (citation omitted). “An abuse of discretion is not merely an

error of judgment; rather discretion is abused when the law is overridden or

misapplied, or the judgment exercised is manifestly unreasonable, or the

result of partiality, prejudice, bias, or ill will, as shown by the evidence or

the record.” Commonwealth v. Antidormi, 84 A.3d 736, 745 (Pa.Super.

2014), appeal denied, 95 A.3d 275 (Pa. 2014) (citation omitted).

This court has long recognized that,

[t]he 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.

Antidormi, 84 A.3d at 750 (citations and internal quotation marks omitted).

In the instant matter, the trial court addressed this issue in the

context of appellant’s oral motion to exclude photographs of the firearms

that were found by police in his son’s bedroom. (See notes of testimony,

3/23/15 at 7.) Following argument, the trial court permitted the

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Commonwealth to introduce said photographs. (Id. at 8-9.) In so ruling,

the trial court instructed that the Commonwealth’s witnesses were not

permitted to “emphasize the children’s bedrooms or . . . inflame the jury

that these are kid[s’] bedrooms.” (Id. at 9.)

Thereafter, on direct examination, Detective Sergeant DePaolis

referenced appellant’s son’s bedroom when describing the location where

pictured firearms were found.

Q. And slide #17 depicts what?

A. Those were rifles that were in [appellant’s]
son’s room in the back of the residence above
the son’s bed there.

....

Q. When you say bedroom, for the record, do you
mean the attic bedroom or what you said was
the second floor bedroom?

A. Second floor bedroom, his son’s bedroom.

Id. at 45, 52.

Additionally, appellant’s wife also testified on direct examination that

the bedroom where some of the firearms were found by police belonged to

her minor son.

Q. And which room is this, this for the record is
slide #17?

A. This is my son’s room, my son’s room.

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Q. And at the time of the execution of the search
warrant, January of 2103, how old was your
son?

A. Ten.

Id. at 89.

Upon careful review, we conclude that this evidence was not

inflammatory and did not seek to inflame the jury’s sensibilities. Rather, the

aforementioned testimony of both Detective Sergeant DePaolis and

appellant’s wife fell within the common description of the location of the

weapons and spoke directly to the subject matter of the instant case;

namely, to establish the close proximity and accessibility of the firearms to

appellant in the home, and the fact that appellant clearly possessed them,

and not his ten-year-old son. Furthermore, we agree with the trial court’s

rationale that the sparse reference to the age of appellant’s son was relevant

to the jury’s consideration of the issue of whether it was plausible that “the

son may have possessed the firearms[,]” rather than appellant. (Trial court

opinion, 9/29/15 at 12.) Courts in this Commonwealth are “not required to

sanitize the trial to eliminate all unpleasant facts from the jury’s

consideration where those facts are relevant to the issues at hand. . . .”

Antidormi, 84 A.3d at 752 (citation and internal quotation marks omitted).

Accordingly, appellant’s third claim of trial court error must fail.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/23/2016

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.•
Circulated 07/28/2016 09:34 AM

IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA

v. CR 2429-2014

STEPHEN M. ESPENLAUB, JR.
Defendant I Appellant

HON. DANIELJ. MILLIRON PRESIDING JUDGE

RICHARD CONSIGLIO, ESQ. DISTRICT ATTORNEY

DAVID AXINN, ESQ. COUNSEL FOR DEFENDANT

OPINION PURSUANT TO Pa.R.A.P. 1925(b)

PROCEDURAL HISTORY

Defendant, Stephen M. Espenlaub, Jr., was charged in the above-captioned

matter with multiple offenses including Robbery, Burglary, and several firearm charges.

The firearm charges were subsequently severed and scheduled for a bifurcated

criminal jury trial before the undersigned that commenced on March 23, 2015. Count

10, Carrying a Loaded Weapon and Count 22, Firearms Not to be Carried Without

License, as a Misdemeanor of the First Degree, were withdrawn and dismissed with

prejudice immediately prior to the start of first day of trial; Counts 20 and 21,

Possession of Firearm Prohibited, were dismissed with prejudice after the conclusion of

the Commonwealth's evidence. On March 24, 2015, a jury found Defendant guilty of

ten counts of Felon Not to Possess a Firearm, 18 P.S. § 6105(a)(l) as a Felony of the

Second Degree.

Defendant's fourth trial counsel, Tyler Rowles, filed a Motion to Withdraw as

Counsel on May 22, 2015; the Court denied that Motion and required Attorney Rowles

to continue his representation of Defendant at the scheduled sentencing hearing. On

1
i\L-~L. \: LL! ......... -: ••

22
June 1, 2015, the Court sentenced Defendant to a period of incarceration of 7112 to 20

years in a state correctional institution with credit for time served.

On June 12, 2015, the Court received a prose letter from Defendant requesting

reconsideration of his sentence; Attorney Rowles indicated that he had also received a

letter. The Court directed that Defendant's letter for reconsideration would act as a

tolling of the time period for Defendant's appeal and relieved Attorney Rowles of his

responsibilities as Defendant's counsel. The Court instructed substitute counsel to be

assigned and provided new counsel with thirty days to file a Motion for

Reconsideration. Attorney David Axinn was subsequently appointed as appellate

counsel on June 16, 2015.

Defendant filed a Motion for Reconsideration on July 14, 2015 which this Court

denied without a hearing on July 17, 2015. Defendant filed a notice of appeal on

August 6, 2015 to which this Court directed Defendant to file a Concise Statement

pursuant to Pa.R.A.P. 1925(b) on August 17, 2015. Defendant complied and timely

filed the 1925(b) statement on September 8, 2015 raising four issues:

1. The evidence was not sufficient to meet the Commonwealth's burden
of proof on the issue of whether the Defendant was in possession of
the firearms. Def.'s 1925(b) ,i 1.

2. The verdict was against the weight of the evidence. Def.'s 192S(b) ,i 2.

3. The Court erred in denying the Motion to Suppress, as being overly
broad in its application, and performance. Def.'s 1925(b) ,i 3.

4. Evidence that was prejudicial and inflammatory was admitted at trial.
Repeated references were made to the fact that guns were found in a
child's bedroom, by prosecution witnesses, and in the prosecution's
closing , and Natalie Friley, a prosecution witness, referred to the fact
that the Defendant was incarcerated. Def.'s 1925(b) ,i 4.

The Court now proceeds to disposition.

2

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 DISCUSSION

I. SUFFICIENCY OF THE EVIDENCE - POSSESSIONOF A FIREARM

Defendant and the Commonwealth entered a stipulation that Defendant had a

prior felony criminal conviction enumerated in 18 P.S. § 6105 that prohibited

Defendant from possessing a firearm by state and federal law. Com.'s Ex. 13. In the

instant appeal, Defendant claims that the Commonwealth's evidence at trial was

insufficient to establish the element of possession of a firearm in violation of§ 6105.

Def.'s 1925(b) 11 1. Possession of a firearm is an essential element of§ 6105:

(a) Offense defined.-

(1) 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. § 6105(a)(l).

A claim challenging the sufficiency of the evidence is a question of law. Com. v.
Sullivan, 820 A.2d 795, 805 (Pa. Super. 2003). When reviewing such a claim, the

evidence must be viewed in the light most favorable to the Commonwealth, as verdict

winner, to determine if there was sufficient evidence to enable the fact-finder to find

every element of the crime charged beyond a reasonable doubt. Com. v. McNair, 529

Pa. 368, 603 A.2d 1014, 1016 (1992). The "entire trial record should be evaluated and

all evidence received considered, whether or not the trial court's rulings thereon were

correct." Com. v. Micking, 2011 Pa. Super. 45, 17 A.3d 924, 925-26 (2011) (citations

omitted). The fact-finder is free to believe none, some or all of the evidence presented.

Id.; Com. v. Henry, 569 A.2d 929, 939 (1990).

The focus of the criminal jury trial was whether Defendant constructively

possessed the ten firearms seized from his residence. As such, the Commonwealth was

3

24
required to establish that Defendant "had both the ability to consciously exercise

control over [the firearms] as well as the Intent to exercise such control." Com. v.
Harvard, 64 A.3d 690, 699, reargument denied (May 2, 2013), appeal denjed. 621 Pa.

687, 77 A.3d 636 (2013) (citation omitted). The "intent to maintain a conscious

dominion may be Inferred from the totality of the circumstances, and circumstantial

evidence may be used to establish a defendant's possession of drugs or contraband."

Id.

Based on the totality of the circumstances and circumstantial evidence, there

was sufficient evidence to enable the jury to determine that Defendant had the ability

and Intent to consciously exercise control over those ten firearms. Detective Sergeant

Matthew DePaolis Identified several photographs of firearms discovered during the

search of Defendant's residence, specifically slides 17, 18, 19, 24, 31, and 42 of the

Commonwealth's PowerPolnt presentation. Sllde 17 depicted eight rifles in a child's

bedroom whereas slides 18 and 19 were close-ups photographs of those same rifles.

Tr. Jury Trial 45-46, March 23, 2015; Com. 's Ex. 12. Slide 24 depicted a Smith &

Wesson box for a handgun in a "closed locked door" in the attic bedroom. Id. at 46:17,

24-25; 47:1-2; Com.'s Ex. 12. Slide 31 depicted a "breakdown rifle." Id. at 47:19-20;

Com.'s Ex. 12. Slide 42 depicted three additional rifles located in Defendant's

bedroom. Id. at 48:7-8; 49:16-17; Com.'s Ex. 12.

Detective Sergeant DePaolis identified the seized firearms as follows:

Com.'s Ex. 2: .22 caliber rifle, serial number GSG 522
Com. 's Ex. 3: Savage/Stevensmodel .322 rifle (Slide 19 of Com.ts Ex. 12)
Com.'s Ex. 4: Remmlngton 760, 30-06 caliber
Com.'s Ex. 5: Rifle Savage, model 64, .22 caliber
Com.'s Ex. 6: Remington, model 770, .243 caliber
Com.'s Ex. 7: Rifle, Norinco, SKS, 7.62 x 39 caliber (Slide 42 of Com.'s Ex. 12)
Com.'s Ex. 8: Shotgun, SavageArms, model 520, 12 gauge (Slide 42 of Com.'s
Ex. 12)
Com.'s Ex. 9: Rifle/Shotgun, Rossi, model 8411220, .22 caliber and 410 gauge
shotgun

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25
 Com.'s Ex. 10: Smit & Wesson, .40 caliber, semi-automatic handgun
Com.'s Ex. 11: Springfield Arms, XP-40, .40 caliber, semi-automatic handgun

Id. at 51-56. A majority of the above long guns were openly accessible as they were

not locked in a safe or cabinet and lacked a trigger gunlock. Id. at 55:19-23. Moreover,

some of the firearms were found in close proximity to police gear allegedly used in the

home invasion on December 18, 2012. See Slides 23-30 of Com.'s Ex. 12.

Natalie Friley, Defendant's wife, testified she purchased the numerous firearms,

but did not know the type of firearms that were purchased, the ammunition required

for each firearm, and how to load each firearm. Tr. Jury Trial 87:21-22, 25; 88:1-5,

March 23, 2015. The Commonwealth questioned Friley as to the location of some of

the firearms:

Q. So if any of the firearms, the pistols, were found in a location other
than over here on the floor, would you have put them there?

A. No.

Q. And would you store your handguns in the dresser?

A. No.

Q. If they were placed in the dresser, did you place them there?

A. No.

Id. at 90:16-25; 91:1. She additionally testified that Defendant "stored" and "handled"

the rifles. Id. at 106:20.

Viewing all of the evidence in the light most favorable to the Commonwealth,

there was sufficient evidence to enable the jury to determine that Defendant possessed

ten firearms in violation of 18 Pa.C.S. § 6105.

11. VERDICT AND WEIGHT OF THE EVIDENCE

A weight of the evidence claim "concedes that the evidence is sufficient to

sustain the verdict, but seeks a new trial on the ground that the evidence was so one-

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26
sided or so weighted in favor of acquittal that a guilty verdict shocks one's sense of

justice." Com. v. Lyons, 622 Pa. 91, 116, 79 A.3d 1053, 1067 (2013) citing Com. v.
Widmer, 560 Pa. 308, 318-320, 744 A.2d 745, 751-752 (2000). A weight of the

evidence review Includes an assessment of the credibility of the testimony offered by

the Commonwealth. Com. v. Wilson, 825 A.2d 710, 714 (Pa. Super. 2003). The weight

of the evidence "is exclusively for the finder of fact, who is free to believe all, part, or

none of the evidence and to determine the credibility of the witnesses." Com. v.

Mccloskey, 835 A.2d 801, 809 (Pa. Super. 2003) (citation omitted).

Here, the Commonwealth provided numerous witnesses and circumstantial

evidence that Defendant possessed the ten firearms in violation of§ 6105. Detective

Sergeant Matthew DePaolis identified ten firearms seized from Defendant's residence

were not locked in a safe or cabinet nor had a trigger gun lock. Tr. Jury Trial 51-56,

March 23, 2015. Damein Morris testified that on December 18, 2012, two Individuals

dressed as Police or DEA and armed with semi-automatic pistols entered his residence,

handcuffed him, and took his marijuana and money. Id. at 73-75. Morris identified

Defendant as the party who came to pick up the money demanded from the extortion

letter in the home invasion. Id. at 78:15-23. Natalie Friley testified that although she
purchased the numerous firearms, she did not know the type of firearms that were

purchased, the ammunition required for each firearm, how to load each firearm, and

that she did not store the handguns In the dresser In the bedroom shared with

Defendant. Id. at 90:16-25; 91:1.

The jury, as fact finder, determined the Commonwealth's witnesses were

credible and Defendant's convictions do not shock the Court's sense of justice.

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111. MOTION TO SUPPRESS- SEARCH WARRANT

Immediately prior to the start of the criminal jury trial on March 23, 2015, the

Court heard arguments regarding Defendant's oral Motion to Suppress the search

warrant. Attorney Rowles first argued that the search warrant of Defendant's residence

lacked probable cause in that it was based on the description and placement of two

handguns allegedly used in a home invasion "ln the air cleaner compartment of the

Mazda Mlllenia." Id. at 9:20-25; 10:1-4. The Mazda Millenia was registered to Natlie

Friley, Defendant's wife. Com.'s Ex. 1. Attorney Rowles asserted that the search

warrant was overly broad and lacked specificity as to the items to be searched where

the search warrant sought "any firearms or implements used both to safeguard illegal

activity." Tr. Jury Trial 10:4-11, March 23, 2015.

The Commonwealth objected to Defendant's oral Motion pursuant to

Pennsylvania Rule of Criminal Procedure 579. Rule 579 provides:

(A) Except as otherwise provided in these rules, the omnibus pretrial
motion for relief shall be filed and served within 30 days after
arraignment, unless opportunity therefor did not exist, or the defendant
or defense attorney, or the attorney for the Commonwealth, was not
aware of the grounds for the motion, or unless the time for filing has
been extended by the court for cause shown.

(B) Copies of all pretrial motions shall be served In accordance with Rule
576.

Pa.R.Crim. P. 579. The Commonwealth submitted that the oral Motion to Suppress was

untimely as Defendant's counsel had failed to litigate the issue at the Preliminary

Hearing before the Honorable Elizabeth A. Doyle on January 23, 2015 or file a formal

motion prior to the criminal jury trial. Tr. Jury Trial 11:3-12, March 23, 2015.

This Court agreed and dismissed Defendant's oral Motion on March 23, ?015 as

Defendant's prior trial counsels, specifically Attorney Catherine Miller and Attorney

Rowles, had sufficient opportunity to seek suppression of the search warrant dated

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January 11, 2013 and failed to do so. Defendant's third trial counsel, Attorney Miller,

filed a Motion to Dismiss the twelve counts of 18 Pa.C.S. § 6105(a)(l) in CR 1141-2013

on September 5, 2014; these firearm charges were consolidated and refiled as the

current charges in the instant criminal action (CR 2429-2014). Attorney Rowles was

appointed as Defendant's counsel in December 2014 and litigated the Motion to

Dismiss at the Preliminary Hearing before Judge Doyle. Judge Doyle found by Order

dated January 23, 2015 that the Commonwealth had met their burden regarding the§

6105 firearm charges.

This Court relied on Judge Doyle's Orders dated September 26, 2014 in CR

1141-2013 and January 23, 2015 in CR 2429-2014 as well as the absence of a

subsequent suppression motion in denying Defendant's oral Motion to Suppress as

untimely. Id. at 12-14. The Court maintains that it did not err in denying Defendant's

Motion as untimely as Defendant's third and fourth trial counsel were aware of the

grounds of the suppression motion In 2013 and early 2014 and had ample opportunity

to raise and litigate suppression of the search warrant. See Pa.R.Crim.P. 581(8).

However, even if Defendant's oral Motion to Suppress was timely, the Court

concludes that probable cause existed to support the issuance of the search warrant. A

search warrant is constitutionally valid where the "issuing authority ... decide[s] that

probable cause exists at the time of its issuance,' and make[s] this determination 'on

facts described within the four corners of the supporting affidavit, and closely related

in time to the date of issuance of the warrant." Com. v. Griffin, 24 A.3d 1037, 1043

(Pa. Super. 2011) appeal denied. 613 Pa. 650, 34 A.3d 82 (2011). The court must

ensure that the magistrate had a substantial basis for concluding that probable cause

existed by utilizing the "totality of the circumstances" test established in Illinois v.

Gates, 462 U.S.213 (1983). Com. v. Torres, 564 Pa. 86, 96, 764 A.2d 532, 537-538

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(2001); Com. v. Murphy, 916 A.2d 679, 681-682 (Pa. Super. 2007). This includes

giving "deference to the issuing authority's probable cause determination" and viewing

the proffered information alleged to establish probable cause in a "common-sense,

non-technical manner." Torres, 564 Pa. at 96-97, 764 A.2d at 538 citing Com. v.

Jones, 542 Pa. 418, 668 A.2d 114, 117 (1995).

In the instant matter, the Commonwealth asserted that Defendant's Mirandized

statements contained in the Affidavit of Probable Cause demonstrated sufficient

probable cause to search Defendant's residence. Tr.Jury Trial 11:12-24, March 23,

2015. The Affidavit of Probable Cause provided:

On January 10, 2013, Damien Morris of 1305 gm Street Altoona reported
that he had been a victim of a home invasion on or about December 10,
2012. He advised that two males later identified as Stephen Espenlaub
and Angel Vasquez forced entry [sic] his residence and posed as police
officer's. He advised that both males displayed badges hanging around
their necks, were armed with handguns, wore masks to conceal their
faces and wore shirts that had "Police" printed on them.

The Affiant Mirandized Espenlaub on scene and Espenlaub admitted to
entering Morris' [home] along with Co-conspirator Vasquez on or about
December 1om and taking the marijuana and cash. He was subsequently
taken to the Altoona Police Department where he was again Mirandized
by Detective Day and provided a recorded statement. He advised that he
had purchased the police shirts on the internet utilizing his home
computer and had the items delivered to his house. He stated that he
also created the letter which was delivered to Morris utilizing his home
computer and printer.

Com.'s Ex. 1.

In applying the totality of the circumstances test to this warrant and Affidavit, it

is clear that the warrant to search Defendant's residence was properly issued.

Defendant made Mirandized statements that he purchased the Police gear used in that

home invasion, had these items delivered to his residence, and participated in the

home invasion where handguns were used to facilitate the crime. Id. These allegations

indicated that there was a fair probability that contraband, including the firearms used

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in the home invasion, would be found at Defendant's residence. Accordingly, the

magistrate had a substantial basis for concluding that probable cause existed, and the

search warrant is constitutionally valid.

As to Defendant's allegation that the search warrant was overly broad and

lacked specificity as to the items to be searched, the Court disagrees. lt is clear that a

search warrant cannot be used as a "general investigatory tool to uncover evidence of a

crime." Com. v. Rega, 593 Pa. 659, 684, 933 A.2d 997, 1011 (2007) (citation omitted).

A warrant is defective where it fails to "describe as clearly as possible those items for

which there is probable cause to search." Id. at 685, 933 A.2d at 1012 citing Com. v.

Grossman, 521 Pa. 290, 555 A.2d 896 (1989).

In assessing the validity of a description contained in a warrant, a court
must initially determine for what items there was probable cause to
search. The sufficiency of the description [in the warrant] must then be
measured against those items for which there was probable cause. Any
unreasonable discrepancy between the items for which there was
probable cause [to search] and the description in the warrant requires
suppression.

Id. (Internal citations and quotations omitted). However, "where the items to be seized

are as precisely identified as the nature of the activity permits and an exact description

is virtually impossible, the searching officer is only required to describe the general

class of the item he is seeking." Com. v. Matthews, 446 Pa. 65, 73, 285 A.2d 510, 514

(1971).

Paragraph 11 of Attachment A of the search warrant provides for the following

Items to be searched for and seized: "Any firearms or other implements useable to

safeguard the illegal activities and substances inherent to those illegal activities, and

any records or receipts pertaining to the acquisition and storage of any firearms,

ammunition or other implements seizable under this warrant." Com.'s Ex. 1. The Court

determined above that probable cause existed that the firearms used In the home

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Invasion would be found at Defendant's residence. Therefore, paragraph 11 of the

search warrant contained sufficient specificity as to the firearms to be searched and

seized.

IV. PREJUDICIAL AND INFLAMMATORY EVIDENCE- LOCATION OF GUNS AND
DEFENDANT'S INCARCERATION

Defendant's final issue on appeal asserts that prejudicial and inflammatory

evidence was admitted at trial, specifically repeated references to some firearms being

located in the child's bedroom and Defendant's incarceration. Immediately prior to the

start of the criminal jury trial, the Court addressed the Issue of the child's bedroom in

the context of an oral Motion to Exclude photographs of four to eight firearms located

in that bedroom. Attorney Rowles sought to exclude those photographs under

Pennsylvania Rule of Evidence 403 as such photographs would allegedly create an

emotional bias and "inflame the jury." Tr. Jury Trial 7:5-9, March 23, 2015. The Court

denied that oral motion to the extent that the photographs would be consistent with

the testimony. Id. at 8:15-17. Moreover, the Court specifically instructed that the

Commonwealth's witnesses were not to emphasize the child's bedroom in an attempt

"to emotionally charge the jury." Id. at 9:2-9.

Detective Sergeant DePaolis's testimony on direct examination demonstrated

that the reference to the child's bedroom was not inflammatory, but within the

common description of the location of the weapons.

Q. And slide #17 depicts what?

A. Those were rifles that were in his son's room in the back of the
residence above the son's bed there.

Q. When you say bedroom, for the record, do you mean the attic
bedroom or what you said was the second floor bedroom?

A. Second floor bedroom, his son's bedroom.

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Id. at 45:13-15; 52:10-12. The same was true during the direct-examination of

Natalie Friley:

Q. And which room is this, this for the record is slide #17?

A. This is my son's room, my son's room.

Q. And at the time of the execution of the search warrant, January of
2013, how old was your son?

A. Ten.

Id. at 89:14-18. The age of Defendant's son could be considered by the jury as to

whether the son may have possessed the firearms. As such, these references were not

prejudicial and inflammatory as they demonstrated the location and accessibility of the

eight rifles to Defendant.

As to references to Defendant's incarceration, the Defendant and the

Commonwealth entered a stipulation that Defendant had a prior felony criminal

conviction enumerated in 18 P.S. § 6105 that prohibited Defendant from possessing a

firearm by state and federal law. Com.'s Ex. 13. During the criminal jury trial, the

following exchanged occurred between the Commonwealth and Friley on direct

examination:

Q. And just so the record is clear, was your husband still residing with
you at that time?

A. January?

Q. Of 2013, up until January 11, 2013?

A. No, he was in prison.

Q. January lllh-prlor to his arrest ma'am, were you and your
husband residing together?

A. Yes.

Id. at 87:9-16. Defendant did not object to this comment nor move for a mistrial.

Moreover, the Commonwealth did not attempt to exploit this reference throughout the

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remainder of the jury trial. In fact, this Court specifically instructed the Commonwealth

in a sidebar later during Friley's testimony that she could not say that Defendant was in

jail. Id. at 92:6-8. Therefore, the Court maintains that it did not abuse its discretion

nor was prejudicial and inflammatory evidence admitted at trial.

CONCLUSION

Viewing all of the evidence in the light most favorable to the Commonwealth,

there was sufficient evidence to enable the jury to determine that Defendant possessed

ten firearms in violation of 18 Pa.C.S. § 6105. Thejury, as fact finder, determined the

Commonwealth's witnesses were credible; moreover, Defendant's§ 6105 convictions

do not shock the Court's sense of justice. This Court did not err in denying the oral

Motion to Suppress as it was untimely and, In the alternative, probable cause existed to

support the issuance of the search warrant. Paragraph 11 of the search warrant

contained sufficient specificity as to the firearms to be searched and seized. Finally,

the Court did not abuse its discretion nor was prejudicial and inflammatory evidence

admitted at the criminal jury trial.

BY THE COURT,

,
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Dated: 9/29/15 --- -·----------·-
DANIELJ. MILLIRON,
JUDGE

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