Com. v. Reyes, A.

J-S40008-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANGEL REYES :
:
Appellant : No. 3358 EDA 2015

Appeal from the Judgment of Sentence October 21, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013835-2012,
CP-51-CR-0013836-2012

BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 18, 2017

Appellant Angel Reyes appeals from the judgment of sentence entered

by the Court of Common Pleas of Philadelphia County after a jury convicted

Appellant of Aggravated Assault, Possession of a Controlled Substance with

Intent to Deliver, Knowing and Intentional Possession of a Controlled

Substance, Possession of Drug Paraphernalia, and Resisting Arrest. After

careful review, we affirm.

On October 31, 2012, at approximately 10:30 p.m., Philadelphia Police

Officers Michael Berkery and Ryan Pownall were on a routine patrol in a high

crime area of the 4400 block of Frankford Avenue in Philadelphia. Officer

Pownall observed Appellant walking the same direction on Frankford Avenue
____________________________________________

*
Former Justice specially assigned to the Superior Court.
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and became concerned when he noticed a heavy bulge swinging back and

forth in the left pocket of Appellant’s cargo pants. The officers believed

Appellant was concealing a gun because the bulge in Appellant’s pocket

appeared to be of the same size as a firearm and swung as the officers

expected a firearm would move. The officers asserted that the guns are

frequently concealed by persons in their front pocket when engaging in

criminal activity. Both officers were aware that multiple armed robberies

had been committed in this area.

The officers pulled over their patrol car and Officer Pownall walked

towards Appellant on foot. As Officer Pownall approached, Appellant took off

his headphones, wrapped them up, and placed them in his pocket. When

Officer Pownell reached Appellant, Officer Pownell asked him if he was armed

with a gun. Appellant ignored the officer’s question and continued walking.

At that point, Officer Pownell feared for his safety and reached to

touch the portion of Appellant’s pocket where he believed a firearm was

concealed. When Officer Pownell touched this pocket, Appellant slapped his

hand away. Officer Pownell again inquired whether Appellant had a weapon

and again reached towards Appellant’s pocket. Appellant pushed Officer

Pownell backwards and caused him to stumble. Officer Pownall grabbed

Appellant’s jacket and Appellant attempted to wrestle out of his grip.

As the interaction between Officer Pownell and Appellant became

increasingly physical, Officer Berkery exited his vehicle and threatened to

tase Appellant if he continued to fight. When Appellant continued to fight,

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Officer Berkery tried unsuccessfully to tase Appellant. When the taser leads

did not connect, Appellant attempted to take the taser from Officer Berkery.

Officer Berkery then started to punch Appellant, who bit Officer Berkery.

Appellant continued to punch, shove, kick, and bite the officers.

When the officers were finally able to subdue Appellant after backup

arrived and placed him under arrest, they discovered Appellant was in

possession of twenty-three blue tinted bags of cocaine, a bottle of lidocaine,

a digital scale, and numerous new and unused blue-tinted packets. The

officers determined that the scale was approximately the same size and

shape as a firearm. As a result of this incident, both officers were treated

for bite wounds and Officer Pownell suffered tears to his rotator cuff and

labrum. After undergoing surgery, Officer Pownell was out of work for nine

months and still had pain at the time of trial.

Appellant filed a motion to suppress the cocaine and drug

paraphernalia, asserting that the officers did not have the requisite suspicion

to stop and arrest him. After the trial court denied this motion, Appellant

proceeded to a jury trial in which he testified on his own behalf. On May 6,

2015, a jury convicted Appellant of aggravated assault as a first-degree

felony (as to Officer Pownall), two counts of aggravated assault as second-

degree felonies (as to Officers Pownall and Berkery), resisting arrest,

possession with intent to deliver a controlled substance, knowing or

intentional possession, and possession of drug paraphernalia. On October

21, 2015, the trial court imposed the following sentences:

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Count 1: Aggravated Assault – Minimum four (4) years state
term incarceration to Maximum ten years (10), followed by ten
(10 years probation);

Count 2: PWID – Minimum two (2) years [and] six (6) months
state term incarceration to Maximum five (5) years, followed by
(5) years reporting probation to run consecutive to Count 1;

Count 4: Use of Drug Paraphernalia – Minimum of one (1) year
state term incarceration to Maximum two (2) years, to run
consecutively to Count 2;

Count 7: Resisting Arrest – Minimum one (1) year state term
incarceration to Maximum two (2) years, to run consecutively to
Count 4.

Trial Court Opinion, 11/10/16, at 3. All other charges merged for sentencing

purposes. As a result, Appellant received an aggregate sentence of 8½ to

19 years’ imprisonment to be followed by 15 years probation.

On October 28, 2015, Appellant filed a timely motion for

reconsideration of his sentence, which the trial court subsequently denied on

October 30, 2015. On November 5, 2015, Appellant filed a notice of appeal.

On November 9, 2015, the trial court directed Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On November 9, 2015, Appellant filed a pro se PCRA petition, which the trial

court dismissed without prejudice given the pendency of the current appeal.

On December 23, 2015, the trial court again directed Appellant to file a Rule

1925(b) statement. On January 6, 2016, Appellant’s counsel filed a motion

to withdraw, which this Court granted. On January 22, 2016, the trial court

appointed Erin Boyle, Esq. to represent Appellant. On March 18, 2016, the

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trial court reiterated its request for Appellant to file a Rule 1925(b)

statement. On April 7, 2016, Atty. Boyle filed a Rule 1925(b) statement on

Appellant’s behalf.

Appellant raised the following issues for our review on appeal:

i. Did the trial court err in failing to grant Appellant’s motion
to suppress physical evidence where the arresting officers
stopped and searched Appellant without reasonable
suspicion, probable cause, or a search warrant to do so[?]

ii. Did the jury err in finding Appellant guilty of Aggravated
Assault (F1), two counts of Aggravated Assault (F2),
Possession with the Intent to Deliver, and Resisting Arrest
where there was insufficient evidence that Appellant was
guilty of each element of all of the crimes?

iii. Did the jury err in finding Appellant guilty of A/A (F1), A/A
(F2), PWID, and R/A as the verdict was against the weight
of the evidence[?]

iv. Did the trial court err when it only emphasized Appellant’s
self-interest in testifying in the jury instructions[?]

v. Did the trial court abuse its discretion when it sentenced
Appellant to an excessive and severe sentence[?]

Appellant’s Rule 1925(b) statement, at 1.

First, Appellant claims the trial court erred in denying his motion to

suppress physical evidence. When reviewing a trial court’s denial of a

motion to suppress, our standard of review is as follows:

our standard of review in addressing a challenge to a trial court's
denial of a suppression motion is limited to determining whether
the factual findings are supported by the record and whether the
legal conclusions drawn from those facts are correct.
[Commonwealth v.] Woodard, [634 Pa. 162,] 129 A.3d [480,]
498 [(2015)]. We are bound by the suppression court's factual
findings so long as they are supported by the record; our

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standard of review on questions of law is de novo.
Commonwealth v. Galvin, 603 Pa. 625, 985 A.2d 783, 795
(2009). Where, as here, the defendant is appealing the ruling of
the suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted. [Commonwealth v.] Poplawski,
[634 Pa. 517,] 130 A.3d [697,] 711 [(2015)]. Our scope of
review of suppression rulings includes only the suppression
hearing record and excludes evidence elicited at trial. In the
Interest of L.J., 622 Pa. 126,79 A.3d 1073, 1085 (2013).

Commonwealth v. Yandamuri, ___Pa.___, 159 A.3d 503, 516 (2017).

The Fourth Amendment to the United States Constitution and Article I,

Section 8 of the Pennsylvania Constitution protect individuals from

unreasonable searches and seizures. Commonwealth v. Lyles, 626 Pa.

343, 350, 97 A.3d 298, 302 (2014). Search and seizure jurisprudence

defines three levels of interaction between citizens and police officers and

requires different levels of justification based upon the nature of the

interaction. Commonwealth v. Tam Thanh Nguyen, 116 A.3d 657, 664

(Pa.Super. 2015).

These categories include (1) a mere encounter, (2) an
investigative detention, and (3) custodial detentions. The first of
these, a “mere encounter” (or request for information), which
need not be supported by any level of suspicion, but carries no
official compulsion to stop or to respond. The second, an
“investigative detention” must be supported by reasonable
suspicion; it subjects a suspect to a stop and a period of
detention, but does not involve such coercive conditions as to
constitute the functional equivalent of an arrest. Finally, an
arrest or ‘custodial detention” must be supported by probable
cause.

Commonwealth v. Baldwin, 147 A.3d 1200, 1202–1203 (Pa.Super. 2016)

(citation omitted).

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Appellant argues that he was illegally seized when Officer Pownell

touched his pocket in an attempt to perform a frisk. The parties agree that

Officer Pownell’s protective frisk was part of an investigative detention, but

dispute whether it was justified by reasonable suspicion.

The Fourth Amendment permits brief investigative stops ...
when a law enforcement officer has a particularized and
objective basis for suspecting the particular person stopped of
criminal activity.” Navarette v. California, ––– U.S. ––––, 134
S.Ct. 1683, 1687, 188 L.Ed.2d 680 (2014). It is axiomatic that
to establish reasonable suspicion, an officer “must be able to
articulate something more than an inchoate and unparticularized
suspicion or hunch.” United States v. Sokolow, 490 U.S. 1, 7,
109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (internal quotation marks
and citation omitted). Unlike the other amendments pertaining
to criminal proceedings, the Fourth Amendment is unique as it
has standards built into its text, i.e., reasonableness and
probable cause. See generally U.S. Const. amend. IV.
However, as the Supreme Court has long recognized, Terry v.
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) is an
exception to the textual standard of probable cause. Florida v.
Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 75 L.Ed.2d 229
(1983). A suppression court is required to “take[ ] into account
the totality of the circumstances—the whole picture.”
Navarette, supra (internal quotation marks and citation
omitted). When conducting a Terry analysis, it is incumbent on
the suppression court to inquire, based on all of the
circumstances known to the officer ex ante, whether an objective
basis for the seizure was present. Adams v. Williams, 407
U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). In
addition, an officer may conduct a limited search, i.e., a pat-
down of the person stopped, if the officer possesses reasonable
suspicion that the person stopped may be armed and dangerous.
United States v. Place, 462 U.S. 696, 702, 103 S.Ct. 2637, 77
L.Ed.2d 110 (1983) (citation omitted).

Commonwealth v. Carter, 105 A.3d 765, 768–69 (Pa.Super. 2014) (en

banc) (footnote omitted).

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In Carter, this Court reversed the trial court’s grant of Carter’s motion

to suppress, finding his Fourth Amendment rights were not violated when

the arresting officer seized Carter and conducted a limited pat-down after

observing him in a high crime area at night with a weighed and angled bulge

in his coat pocket. This Court reasoned that the officer had reasonable

suspicion to stop and frisk Carter where the entire basis for the stop was the

officer’s suspicion that he was armed and dangerous. Similarly, in

Commonwealth v. E.M., 558 Pa. 16, 735 A.2d 654, 662 (1996), the

Supreme Court found that it was permissible for the arresting officer to

subject E.M. to a pat-down for weapons as he had a particularized fear that

E.M. was armed and dangerous after observing a bulge in E.M.’s pocket that

was characteristic of a semi-automatic weapon.

In the same manner, in this case, when the officers encountered

Appellant at midnight in a high crime area, they noticed a large rectangular

bulge in his pocket. Officer Berkery testified that, based on his twelve years

of experience as a police officer and in his own daily experience with

firearms, the bulge in Appellant’s pocket was consistent with the shape and

movement of a firearm. Officer Berkery testified that while off-duty, he

carries a personal gun in his pocket, which swings in the same manner.

Moreover, the officers had reason to be on the lookout for firearms, as they

had been assigned to this specific area as it had been the location of several

armed robberies. Viewing the totality of the circumstances, we agree with

the trial court’s finding that the officers had reasonable suspicion to believe

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that Appellant was armed and dangerous. Accordingly, we conclude the trial

court did not err in denying Appellant’s suppression motion.

In Appellant’s second issue on appeal, he argues that there was

insufficient evidence to support all of his convictions. However, we find

Appellant waived his sufficiency challenges due to his vague 1925(b)

statement.

The Pennsylvania Supreme Court has explained that Rule 1925 is
a crucial component of the appellate process, which “is intended
to aid trial judges in identifying and focusing upon those issues
which the parties plan to raise on appeal.” Commonwealth v.
Lord, 553 Pa. 415, 719 A.2d 306, 308 (1998). “When an
appellant fails adequately to identify in a concise manner the
issues sought to be pursued on appeal, the trial court is impeded
in its preparation of a legal analysis which is pertinent to those
issues.” In re Estate of Daubert, 757 A.2d 962, 963
(Pa.Super. 2000). “In other words, a Concise Statement which is
too vague to allow the court to identify the issues raised on
appeal is the functional equivalent of no Concise Statement at
all.” Commonwealth v. Dowling, 778 A.2d 683, 686
(Pa.Super. 2001).

“In order to preserve a challenge to the sufficiency of the
evidence on appeal, an appellant's Rule 1925(b) statement must
state with specificity the element or elements upon which the
appellant alleges that the evidence was insufficient.”
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.Super.
2013) (citing Commonwealth v. Gibbs, 981 A.2d 274, 281
(Pa.Super. 2009)). “Such specificity is of particular importance
in cases where, as here, the appellant was convicted of multiple
crimes each of which contains numerous elements that the
Commonwealth must prove beyond a reasonable doubt.” Gibbs,
981 A.2d at 281.

Commonwealth v. Freeman, 128 A.3d 1231, 1248 (Pa.Super. 2015).

In his Rule 1925(b) statement, Appellant argues that there was

insufficient evidence to support his convictions for aggravated assault (three

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counts under different subsections of the crime code), possession with intent

to deliver a controlled substance, and resisting arrest. Appellant does not

specify which elements he wished to challenge. As this statement is too

vague to warrant appellate review, we find this issue waived.

In the same manner, Appellant has also waived his third issue on

appeal in which he argues that “the jury err[ed] in finding Appellant guilty of

A/A (F1), A/A (F2), PWID, and R/A as the verdict was against the weight of

the evidence.” Appellant’s 1925(b) statement, at 1. For the same reasons,

Appellant’s vague concise statement does not identify the specific issues to

be raise on appeal and is “the functional equivalent of no Concise Statement

at all.” Dowling, 778 A.2d at 686. Thus, we need not review this issue

further.

Fourth, Appellant argues that the trial court erred in “emphasizing

Appellant’s self-interest in testifying in the jury instructions.” Appellant’s

1925(b) statement, at 1. However, this claim is also waived as defense

counsel never made a specific objection to this instruction and raises this

claim for the first time on appeal. Our rules of criminal procedure require

that “[n]o portions of the charge nor omissions from the charge may be

assigned as error, unless specific objections are made thereto before the

jury retires to deliberate.” Pa.R.Crim.P. 647(C). See also Commonwealth

v. Pressley, 584 Pa. 624, 628, 887 A.2d 220, 224 (2005) (holding that

“[t]he pertinent rules [of Criminal Procedure] ... require a specific objection

to the charge or an exception to the trial court's ruling on a proposed point

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to preserve an issue involving a jury instruction”). Accordingly, because this

claim was not preserved for our review, it is waived.

Fifth, Appellant asserts that the trial court abused its discretion in

imposing an excessive sentence as several of his individual sentences

exceeded the guideline ranges. It is well-established that “[a] challenge to

the discretionary aspects of sentencing does not entitle an appellant to

review as of right.” Commonwealth v. Bynum-Hamilton, 135 A.3d 179,

184 (Pa.Super. 2016).

We find Appellant’s specific sentencing claims are waived as Appellant

raised them for the first time in his appellate brief. Our rules of appellate

procedure provide that “issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.” Pa.R.A.P. 302. Thus,

challenges to the discretionary aspects of sentence must be raised at

sentencing or in a post-sentence motion. Commonwealth v. Mann, 820

A.2d 788, 794 (Pa.Super. 2003).

Appellant did file a motion for reconsideration, but simply indicated

that Appellant felt his sentence was “excessive” but did not state a specific

claim of error. Motion for Reconsideration, 10/28/15, at 1. In his 1925

statement, Appellant claimed the trial court “sentenced Appellant to an

excessive and severe sentence.” Appellant’s 1925(b) statement, at 1.

Based on these vague challenges, the trial court concluded in its 1925(a)

opinion that it could not review Appellant’s mere claim of excessiveness

without a more specific claim for a source of error. “When a court has to

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guess what issues an appellant is appealing, that is not enough for

meaningful review.” Mann, 820 A.2d at 794 (citation omitted). Appellant’s

failure to set forth a specific objection to his sentence deprived the

sentencing judge an opportunity to consider Appellant’s specific claims.

Thus, this claim is also waived.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Dubow, J. joins the memorandum.

Ott, J. files a concurring statement.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/18/2017

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