J-S67023-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM MASON IBBETSON
Appellant No. 2148 EDA 2015
Appeal from the Judgment of Sentence June 17, 2015
in the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0007814-2014
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J. FILED OCTOBER 07, 2016
Appellant, William Mason Ibbetson, appeals from the judgment of
sentence of four and one-half to ten years’ incarceration, followed by three
years’ probation, imposed after he was convicted of persons not to possess
firearms and flight to avoid apprehension.1 We affirm.
We adopt the following statement of facts, derived from the trial
court’s opinion, which in turn is supported by the trial record. See Trial
Court Opinion (TCO), 10/15/15, at 1-4. In 2008, Appellant was convicted of
a felony offense under the Controlled Substance, Drug, Device, and
Cosmetic Act.2 Following his release from custody he was, thus, under the
supervision of the Board of Probation and Parole. On November 7, 2011, he
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1
18 Pa.C.S. § 6105(a)(1); 18 Pa.C.S. § 5126(a).
2
35 P. S. §§ 780-101, et seq.
*
Former Justice specially assigned to the Superior Court.
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was declared delinquent from parole supervision. Agent Justin Kennett, 3 of
the Board of Probation and Parole, was assigned to Appellant’s case and led
the investigation into Appellant’s whereabouts.
On August 4, 2014, Sergeant George Volpe of the Northampton
County Sheriff’s Department received information that Appellant was staying
at 717 Bushkill Street in Easton, and that Appellant might have been in
possession of a firearm. Accompanied by Parole Agent Timothy Budgeon,
Volpe responded to that address. Appellant’s mother, Ms. Debbie Ibbetson,
allowed officers in and directed them to a third-floor bedroom, where they
observed in plain view men’s clothing, including a denim motorcycle vest,
mail bearing Appellant’s name, and a Glock handgun, serial number
HWN466, in a partially opened drawer. Officers did not seize evidence at
that time.
On September 3, 2014, Agent Kennett organized a multi-agency
search for Appellant that led to 2410 Emerald Lane in Trumbauersville,
Bucks County. Trooper John Cargan of the Pennsylvania State Police
knocked and announced his presence but received no response. He kicked
the door, at which time Appellant’s daughter opened it, and officers entered
the residence.
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3
Incorrectly referred to as “Agent Kennert” in the record.
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Trooper Cargan met with the homeowner, Ms. Judith Soldo, who
signed a consent form authorizing a search of the residence. In the second
floor master bedroom, Trooper Cargan observed in plain view a black .9mm
handgun, serial number HWN466, and loaded magazine in an open cigar
box. Trooper Cargan also observed in plain view a black North Face
backpack, partially open and containing men’s clothing, documents and ID
bearing Appellant’s name, and a denim motorcycle vest. Ms. Soldo
confirmed Appellant had stayed in the second floor master bedroom with her
the night of September 2, 2014, and no other men stayed in that room on a
regular basis. She did not recognize the gun or backpack.
Trooper Andrew Watkins, preparing to leave the residence following
the search, heard a motorcycle. Trooper Watkins approached the road and
observed Appellant, sans helmet, on the motorcycle. Trooper Watkins
identified himself as a police officer and ordered Appellant to pull over.
Instead, Appellant drove away, off road across a grassy field and around a
retention basin. On October 28, 2014, he was arrested at another location
by Pennsylvania State Police Officers.
Trial commenced June 9, 2015, and concluded June 10, 2015. Based
on the evidence introduced at trial, a jury convicted Appellant of the above-
enumerated offenses. On June 17, 2015, the court sentenced Appellant to
four and one-half to ten years’ incarceration, followed by three years’
probation.
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Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement. The trial court issued a responsive opinion on October 16, 2015.
Herein, Appellant presents three issues for our review:
A. Did the sentencing court abuse its discretion in denying
Appellant’s motion for a mistrial because evidence presented by
the Commonwealth ignored the court order forbidding such
evidence?
B. Did the sentencing court abuse its discretion by denying
Appellant’s motion to suppress because legal consent for said
search was not obtained?
C. Did the court abuse its discretion by denying Appellant’s
demurrer based upon numerous items of physical evidence that
were lost by the state police?
Appellant first contends that the trial court abused its discretion in
denying his motion for a mistrial, as the Commonwealth allegedly ignored
the trial court’s evidentiary rulings. Further background is necessary to
explain Appellant’s issue. Prior to trial, the court precluded the introduction
of evidence of Appellant’s gang affiliations, and of drug paraphernalia and
activity. See Notes of Testimony (N. T.), 6/9/15, at 31-32. Appellant
moved for a mistrial after the conclusion of the testimony of Sgt. Volpe, who
had testified on June 10, 2015, that the vest found at the Bushkill Street
residence was “a sleeveless vest with colors on it,” and after a follow-up
question described it as “a denim-type colored vest.” Appellant did not
request a curative instruction at that time, and the court denied his motion.
See N. T., 6/10/15, at 23-25. Additionally, Trooper Cargan testified that he
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had observed new and used glassine baggies upon entering the Emerald
Lane residence. The trial court offered to give a cautionary instruction to the
jury, which Appellant declined. See N. T., 6/9/15, at 122-128. Appellant
did not move for a mistrial at that time.
Appellant now argues that 1) evidence of glassine bags indicated to
the jury that drug paraphernalia had been found at the residence, and 2)
that evidence of a vest with colors is a code for gang membership. These
two references, he avers, deprived him of a fair trial.
It is well-settled that the review of a trial court’s denial of a
motion for mistrial is limited to determining whether the trial
court abused its discretion. An abuse of discretion is not merely
an error of judgment, but if in reaching a conclusion the law is
overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will … discretion is abused. A trial court may grant a
mistrial only where the incident upon which the motion is based
is of such a nature that its unavoidable effect is to deprive the
defendant of a fair trial by preventing the jury from weighing
and rendering a true verdict. A mistrial is not necessary where
cautionary instructions are adequate to overcome prejudice.
Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013) (quoting
Commonwealth v. Chamberlain, 30 A.3d 381 (Pa. 2011)).
A trial court may remove the taint caused by improper testimony
through curative instructions and must consider all surrounding
circumstances before finding the curative instructions sufficient.
Commonwealth v. Manley, 985 A.2d 256, 266–67 (Pa. Super. 2009).
“Circumstances the court must consider include whether the improper
remark was intentionally elicited by the Commonwealth, whether the answer
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was responsive to the question posed, whether the Commonwealth exploited
the reference, and whether the curative instruction was appropriate.
Manley, 985 A.2d at 266-267.
This Court concludes that Appellant’s argument regarding Trooper
Cargan’s testimony of glassine baggies is waived for purposes of appeal, as
the record reflects that Appellant did not object, request a curative
instruction, or pursue a mistrial motion after Trooper Cargan’s testimony.
See Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super. 2008)
(“Even where a defendant objects to specific conduct, the failure to request
a remedy such as a mistrial or a curative instruction is sufficient to
constitute waiver.”).
Appellant’s counsel did move for a mistrial after Sgt. Volpe testified
that he had found a denim vest with “colors” on it.4 The specific testimony
elicited read as follows:
Prosecutor: And what kind of clothing did you make note
of?
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4
The trial court opinion also discusses further testimony, N. T. 6/9/15 at
141, where Trooper Cargan stated that the motorcycle jacket had “indicia,”
but neither Appellant’s brief nor Statement addresses this testimony, and
the trial court opinion indicates Appellant did not lodge an objection or move
for a mistrial. Consequently, it is waived for purposes of appeal. See
Pa.R.A.P. 302 (“[i]ssues not raised in the lower court are waived and cannot
be raised for the first time on appeal”); see also Commonwealth v.
Ligons, 971 A.2d 1125, 1139 (Pa. 2009); see also Commonwealth v.
Jones, 460 A.2d 739, 741 (Pa. 1983) (noting claim waived where defense
counsel did not request mistrial or curative instructions).
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The There was a sleeveless vest with colors on it.
witness:
Prosecutor: And what color was it?
The It was sort of like a denim-type colored vest
witness: with no sleeves on it.
N. T., 6/10/15, at 17. The trial court determined this testimony was
relevant and probative, as it described an article of clothing that linked
Appellant to multiple locations along with the firearm. TCO, at 16. We
agree. The prosecutor did not intentionally elicit the testimony regarding the
vest’s “colors,” a follow up question shifted the jurors’ attention and
therefore potential prejudice away from the issue of club colors, and
Appellant did not request a curative instruction. This testimony did not
deprive Appellant of a fair trial. Accordingly, we discern no abuse of the
court’s discretion.
In his second issue, Appellant contends that the trial court erred in
denying his motion to suppress. Further background is necessary to explain
Appellant’s issue. Prior to trial, on June 8, 2015, Appellant argued a motion
where he sought to suppress all evidence recovered from the respective
homes of Ms. Ibbetson and Ms. Soldo. Following testimony and argument,
the suppression court found Ms. Ibbetson and Ms. Soldo were homeowners
of their respective properties with authority to give consent to search the
respective rooms. Although Ms. Ibbetson claimed officers did not obtain her
consent to search, the court found credible officers’ testimony that she gave
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verbal consent to search her residence.5 Likewise, although Ms. Soldo
stated she did not understand she was signing a consent form, the court
found she did not sign under duress, officers had explained the consent form
to her, and made a specific finding it had been signed prior to the search. 6
Additionally, the court determined the items found in both cases were in
plain view, and that officers were present with the consent of both
homeowners and viewed said items from a lawful vantage point. The court
then denied Appellant’s motion.
According to Appellant, the Commonwealth failed to obtain legal
consent to search the residences. See Appellant’s Brief, at 11-14. We
disagree.
Our standard of review for an appeal denying a motion to suppress is
well settled.
Our 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, we are bound by these findings and
may reverse only if the court's legal conclusions are erroneous.
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5
See N. T., 6/8/15, at 11-12, 24, N. T., 6/8/15, afternoon session, at 16-
17, 98-101; N. T., 6/9/15, at 9.
6
See N. T., 6/8/15, afternoon session, at 37-41, 54-56, 62, 80-85; N. T.,
6/9/15, at 16-17.
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Where ... the appeal of the determination of the suppression
court turns on allegations of legal error, the suppression court’s
legal conclusions are not binding on an appellate court, whose
duty it is to determine if the suppression court properly applied
the law to the facts. Thus, the conclusions of law of the courts
below are subject to our plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations
omitted).
“A warrantless search may be made with the voluntary consent of a
third party who possesses common authority over or other sufficient
relationship to the premises or effects sought to be inspected.”
Commonwealth v. Gibbons, 529 A.2d 1296, 1300 (Pa. Super. 1988)
(internal citations and quotations omitted); see also Commonwealth v.
Acosta, 815 A.2d 1078, 1083 (Pa. Super. 2003) (“It is the Commonwealth’s
burden to prove that a defendant consented to a warrantless search.”)
In the instant case, the court determined that Ms. Ibbetson and Ms.
Soldo, both of whom were homeowners of the premises searched, gave valid
consent to search. The court’s findings are supported by the record, and we
are bound by them. See Jones, 988 A.2d at 654. As we discern no legal
error, we affirm the court’s denial of Appellant’s motion.
Finally, in his third issue, Appellant argues that the trial court erred
when it denied his demurrer to the Commonwealth’s evidence where
numerous items of evidence were allegedly lost by the Pennsylvania State
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Police.7 Further background is necessary to explain Appellant’s issue. At the
close of the Commonwealth’s case, Appellant made a motion for a general
demurrer to both counts of information but offered no argument in support
of the motion. The trial court denied the demurrer. Although Appellant does
not specifically say as much in his brief, by the case law cited, he implies
that the allegedly lost evidence constitutes a due process violation.
Appellant argues that testimony related to any items lost should have been
inadmissible.8
For purposes of demurrer, a defendant admits all facts which the
Commonwealth’s evidence tended to prove and all inferences reasonably
deducible from those facts. Commonwealth v. Wimberly, 411 A.2d 1193,
1194 (Pa. 1979). In ruling on a demurrer, the trial court decides whether
the Commonwealth’s evidence and all reasonable inferences therefrom is
sufficient to support a finding by a trier of fact that the accused is guilty
beyond a reasonable doubt. Id.
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7
Although Appellant styles this motion as a demurrer, essentially, Appellant
has made a motion for judgment of acquittal, per a challenge to the
sufficiency of the evidence pursuant to Pa.R.Crim.P. 606. The comment to
this rule clarifies that though his language may be antiquated, “the
inadvertent use of the word ‘demurrer’ when ‘motion for judgment of
acquittal’ is now appropriate would not affect an otherwise valid sufficiency
challenge.” Pa.R.Crim.P. 606.
8
The evidence Appellant complains was lost was: a sleeveless vest; mail
with Appellant’s name on it; backpacks belonging to Appellant; and t-shirts.
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At trial, Appellant made a general demurrer, but did not make
argument on the motion. See N. T., 6/10/15 at 45. In his brief, his
argument is equally bare. See Appellant’s Brief, at 15-16. Appellant offers
no analysis of any particular elements that comprise the charges against
him, nor does he argue that the evidence presented by the Commonwealth
fails to establish them. See McEwing v. Lititz Mut. Ins. Co., 77 A.3d 639,
647 (Pa. Super. 2013) (quoting Umbelina v. Adams, 34 A.3d 151, 161 (Pa.
Super. 2011) (“[W]here an appellate brief fails to provide any discussion of a
claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived.”)
Accordingly, we conclude that Appellant has waived this claim for purposes
of appeal.9
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9
Even if we did not find waiver, the evidence was still sufficient to support
Appellant’s convictions. For example, Appellant was convicted of 18 Pa.C.S.
§ 6105, Persons Not to Possess Firearms. The statute prohibits the
possession or use of firearms by any person who has been convicted of an
offense under the Controlled Substance, Drug, Device and Cosmetic Act, that
may be punishable by a term of imprisonment exceeding two years. See 18
Pa.C.S. § 6105(a)(1); 18 Pa.C.S. § 6105(c)(2). In the instant case,
Appellant stipulated to his conviction under the Controlled Substance Act.
Evidence introduced at trial showed that Appellant possessed a firearm.
Viewed in the light most favorable to the Commonwealth, as verdict winter,
the evidence was sufficient to enable a reasonable jury to convict Appellant
for 18 Pa.C.S. § 6105. See Commonwealth v. Diggs, 949 A.2d 873, 877
(Pa. 2008) (citations omitted) (“In determining whether there was sufficient
evidentiary support for a jury’s finding [], the reviewing court inquires
whether the proofs, considered in the light most favorable to the
Commonwealth as verdict winner, are sufficient o enable a reasonable jury
to find every element of the crime beyond a reasonable doubt.”)
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Thus, we affirm the judgment of sentence.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2016
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