Opinion
J-A03042-16 No. 92 EDA 2015
04-11-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. STEVEN SMALLS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 9, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009550-2014 BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Steven Smalls, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his convictions of selling unauthorized copies of recorded devices and trademark counterfeiting. We affirm the conviction of selling unauthorized copies of recorded devices, reverse the conviction of trademark counterfeiting, vacate Appellant's judgment of sentence, and remand for resentencing.
18 Pa.C.S.A. §§ 4116(d) and 4119(a)(3), respectively.
The relevant facts and procedural history of this case are as follows. While pulling his car into the parking lot of the 777 Market convenience store on August 11, 2014, Sergeant Michael Weber observed Appellant selling what appeared to be books from a folding table. After parking, Sgt. Weber exited his vehicle to get a closer look at Appellant's table. Meanwhile, Appellant walked away from his table and entered the 777 Market. Sgt. Weber's visual inspection of Appellant's table revealed that books held down two blankets covering the table. Sgt. Weber could also see, through a gap between the two blankets, cellophane cases which contained DVDs with homemade titles. Based on Sgt. Weber's training and experience, he determined the items were counterfeit. Sgt. Weber proceeded to move the blankets aside and collect the counterfeit items. While Sgt. Weber collected the items, Appellant returned to the table and said, "I'm just trying to make a buck. Can I just get my stuff and go?" At that point, Sgt. Weber recalled he had arrested Appellant previously at that location for selling counterfeit items. Sgt. Weber confiscated one hundred and seventy-nine (179) counterfeit movie titles, seventy-six (76) music titles, and one battery-operated DVD player. Sgt. Weber subsequently placed Appellant under arrest.
On August 28, 2014, the Commonwealth charged Appellant with selling unauthorized copies of recorded devices and trademark counterfeiting. Appellant filed an omnibus pre-trial motion on September 17, 2014, in which he argued the court should suppress the items seized because Sgt. Weber lacked probable cause to search Appellant's table outside the 777 Market. The court held a suppression hearing on December 9, 2014, where Sgt. Weber testified to his observations on the day of Appellant's arrest. Following the hearing, the court denied Appellant's motion. Appellant immediately proceeded to a stipulated bench trial.
At Appellant's trial, the court incorporated the testimony from the suppression hearing and heard the stipulated testimony of Motion Picture Association of America ("MPAA") expert, Bill Mock, who testified that: (1) he examined the confiscated DVDs and determined they were counterfeit/pirated; (2) he knew the DVDs were counterfeit/pirated because the movies were still in theaters, and the MPAA does not release movies on DVD until the movies are no longer in theaters; (3) he further determined the DVDs were counterfeit/pirated because they all had a purplish back indicative of recordable DVDs, and the MPAA does not release DVDs on recordable DVDs; (4) the ten DVDs he viewed had poor quality pictures and sound, which also indicated the counterfeit/pirated status of the DVDs; (5) the DVDs did not contain the true name or address of the manufacturer or display company logos or trademarks; (6) the amount of lost revenue for the sale of the DVDs was $11.00 per title or $1936.00 total; and (7) based on the number of DVDs confiscated from Appellant, the DVDs were most likely offered for sale and not for personal use. The court subsequently convicted Appellant of selling unauthorized copies of recorded devices and trademark counterfeiting and sentenced Appellant to consecutive terms of one (1) year probation for each offense. Appellant timely filed a notice of appeal on January 6, 2015. On February 20, 2015, the court ordered Appellant to file a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied on March 10, 2015.
Appellant raises the following issues for our review:
For purposes of disposition, we have reordered Appellant's issues.
DID NOT THE [TRIAL] COURT ERR AND ABUSE ITS DISCRETION BY DENYING A MOTION TO SUPPRESS PHYSICAL EVIDENCE WHERE THE POLICE SEARCHED [APPELLANT'S] VENDOR STAND WITHOUT PROBABLE CAUSE OR A WARRANT BY LIFTING UP BOOKS AND CLOTHS AND UNCOVERING DVDS THAT WERE OUT OF VIEW UNDERNEATH?(Appellant's Brief at 3-4).
DO NOT INSUFFICIENCY OF THE EVIDENCE AND DUE PROCESS REQUIRE A REVERSAL OF THE FELONY OF THE THIRD DEGREE CONVICTION FOR COPYING; RECORDING DEVICES, [18 PA.C.S.A. § 4116], AS THE PROPER GRADATION WAS A MISDEMEANOR OF THE FIRST DEGREE BECAUSE (I) THERE WAS NO PROOF THAT "AT LEAST 100" DVDS HAD MOVIES RECORDED ON THEM WHERE THE COMMONWEALTH WITNESS ONLY WATCHED 10 DVDS; AND (II) THERE WAS NO EVIDENCE THAT THE 10 VIEWED DVDS WERE REPRESENTATIVE OF AT LEAST 100 DVDS, AND ANY POST HOC EXTRAPOLATION WOULD ALSO VIOLATE THE BEST EVIDENCE RULE, [PA.R.E. 1002]?
DO NOT INSUFFICIENCY OF THE EVIDENCE AND DUE PROCESS REQUIRE A REVERSAL OF THE CONVICTION FOR TRADEMARK COUNTERFEITING, [18 PA.C.S.A. § 4119], AS AMENDED AND NARROWED BY ACT 74 OF 2010, BECAUSE THE CONFISCATED DVDS BORE ONLY HOMEMADE MOVIE TITLES AND NO COMPANY LOGOS OR TRADEMARKS AND THERE WAS NO EVIDENCE (I) THAT ANY MARK WAS "REGISTERED"; (II) THAT ANY "REGISTERED" MARK WAS "IN USE"; OR (III) THAT THE DVDS BORE A MARK "IDENTICAL WITH OR SUBSTANTIALLY INDISTINGUISHABLE FROM" A REGISTERED MARK?
Our standard of review of the denial of a motion to suppress evidence is as follows:
[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. 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 [the] 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 [trial court are] subject to plenary review.Commonwealth v. Hoppert , 39 A.3d 358, 361-62 (Pa.Super. 2012), appeal denied, 618 Pa. 684, 57 A.3d 68 (2012).
"The Fourth Amendment of the United States Constitution and Article I, Section [8] of the Pennsylvania Constitution guarantee individuals freedom from unreasonable searches and seizures." Commonwealth v. El , 933 A.2d 657, 660 (Pa.Super. 2007). "A warrantless search or seizure is presumptively unreasonable under the Fourth Amendment and Article I, § 8, subject to a few specifically established, well-delineated exceptions." Commonwealth v. McCree , 592 Pa. 238, 247, 924 A.2d 621, 627 (2007). "The 'plain view' doctrine is often considered an exception to the general rule that warrantless searches are presumptively unreasonable...." Id. (quoting Horton v. California , 496 U.S. 128, 133, 110 S.Ct. 2301, 2306, 110 L.Ed.2d 112, ___ (1990)). The plain view doctrine permits the "warrantless seizure of an object when: (1) an officer views the object from a lawful vantage point; (2) it is immediately apparent to him that the object is incriminating; and (3) the officer has a lawful right of access to the object." Commonwealth v. Miller , 56 A.3d 424, 429 (Pa.Super. 2012).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Sierra Thomas Street, we conclude Appellant's first issue on appeal merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed April 16, 2015, at 11-14) (finding: Appellant lacked reasonable expectation of privacy in table open to public for commercial use; moreover, Sgt. Weber testified credibly that he could see cellophane cases with DVDs on Appellant's table under blankets because of gap between blankets covering tabletop; based on his experience, Sgt. Weber recognized items under blanket were counterfeit; equipped with reasonable suspicion that crime was occurring, Sgt. Weber moved blankets and discovered numerous DVDs and CDs; DVDs discovered under blanket were in cases consistent with counterfeit titles, did not look professionally generated, and all titles were still in theaters; Sgt. Weber properly seized counterfeit items under plain view doctrine because Sgt. Weber was in public area when he viewed Appellant's table, Sgt. Weber immediately recognized items as counterfeit based on their packaging, and DVDs were seized from table in public parking lot where Sgt. Weber had lawful right of access; thus, Sgt. Weber validly seized counterfeit items from Appellant's table and court properly denied Appellant's motion to suppress). Therefore, with respect to Appellant's first issue on appeal, we affirm on the basis of the trial court's opinion.
In his second issue, Appellant argues the Commonwealth failed to prove Appellant possessed at least one hundred counterfeit DVDs, which is necessary to grade selling unauthorized copies of recorded devices as a third-degree felony. Appellant claims MPAA expert, Bill Mock, watched only ten of the DVDs confiscated from Appellant's table, and the Commonwealth offered no proof that those ten DVDs were representative of at least one hundred of the confiscated DVDs. Appellant also submits the court improperly inferred from Bill Mock's testimony that the remaining one hundred and sixty-nine DVDs contained movies or portions of movies, in violation of the best evidence rule. Appellant concludes there was insufficient evidence to sustain his conviction of selling unauthorized copies of recorded devices as a third-degree felony, and we should reverse his conviction. We disagree.
As presented, Appellant's second issue challenges the sufficiency of the evidence for the grading of his conviction of selling unauthorized copies of recorded devices as a third-degree felony, which also implicates the legality of the sentence. Our standard of review for a challenge to the sufficiency of the evidence is as follows:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [finder] of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.Commonwealth v. Jones , 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting Commonwealth v. Bullick , 830 A.2d 998, 1000 (Pa.Super. 2003)).
"Issues relating to the legality of a sentence are questions of law...." Commonwealth v. Diamond , 945 A.2d 252, 256 (Pa.Super. 2008), appeal denied, 598 Pa. 755, 955 A.2d 356 (2008). "The defendant or the Commonwealth may appeal as of right the legality of the sentence." 42 Pa.C.S.A. § 9781(a). See also Commonwealth v. Edrington , 780 A.2d 721 (Pa.Super. 2001) (maintaining legality of sentence claims cannot be waived, where reviewing court has proper jurisdiction). When the legality of a sentence is at issue on appeal, our "standard of review over such questions is de novo and our scope of review is plenary." Diamond , supra at 256. "If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated...." Commonwealth v. Pombo , 26 A.3d 1155, 1157 (Pa.Super. 2011) (quoting Commonwealth v. Bowers , 25 A.3d 349, 352 (Pa.Super. 2011); appeal denied, 616 Pa. 666, 51 A.3d 837 (2012)).
The Crimes Code defines the offense of selling unauthorized copies of recorded devices in relevant part as follows:
§ 4116. Copying; recording devices
(a) Definitions.—As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
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"Recorded device." Any phonograph record, disc, tape, film, videotape, video cassette or other tangible article, now known or later developed, upon which sounds or images or any combinations of sounds and images are recorded.
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(d) Manufacture, sale or rental of illegal recording or recorded devices.—It shall be unlawful for any person to knowingly manufacture, transport, sell, resell, rent, advertise or offer for sale, resale or rental or cause the manufacture, sale, resale or rental or possess for such
purpose or purposes any recorded device in violation of this section.
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(g) Grading of offenses.—
18 Pa.C.S.A. §§ 4116(a), (d), and (g).(1) Any violation of the provisions of this section involving, within any 180-day period, at least 100 devices upon which motion pictures or portions thereof have been recorded...is a felony of the third degree. A second or subsequent conviction is a felony of the second degree if at the time of sentencing the defendant has been convicted of another violation of this section.
(2) Any other violation of the provisions of this section not described in paragraph (1) upon a first conviction is a misdemeanor of the first degree and upon a second or subsequent conviction is a felony of the third degree if at the time of sentencing the defendant has been convicted of another violation of this section.
Any fact that changes the grade of an offense must be submitted to the factfinder and proven beyond a reasonable doubt. Commonwealth v. Panko , 975 A.2d 1189, 1191 (Pa.Super. 2009), appeal denied, 618 Pa. 686, 57 A.3d 69 (2012). Importantly, for purposes of grading, the Commonwealth's burden is not to establish the precise quantity, but only to present sufficient evidence from which a reasonable fact-finder could conclude the quantity was above the threshold amount required by statute. See Commonwealth v. Reiss , 655 A.2d 163, 168 (Pa.Super. 1995) (holding Commonwealth presented sufficient evidence from which jury could reasonably determine value of stolen items to grade defendant's theft conviction as felony instead of misdemeanor).
Instantly, the Commonwealth presented the testimony of Sgt. Weber at Appellant's stipulated bench trial. Sgt. Weber testified that he confiscated one hundred and seventy-nine DVDs, seventy-six CDs, and one DVD player from Appellant's table outside the 777 Market. Sgt. Weber also stated that the confiscated DVDs consisted of multiple copies of movie titles which were still in theaters at the time. Sgt. Weber further indicated that during his collection of the items from Appellant's table, Appellant demonstrated his ownership of the items when he stated, "I'm just trying to make a buck. Can I just get my stuff and go?" The Commonwealth also presented the stipulated testimony of Mr. Mock, who examined all of the DVDs Sgt. Weber confiscated from Appellant's table. Mr. Mock concluded that Appellant was offering counterfeit/pirated DVDs for sale, based on the following: (1) the DVD titles were movies still in theaters and the MPAA does not release movies on DVD until the movies are no longer in theaters; (2) the DVDs all had a purplish back indicative of recordable DVDs and the MPAA does not release DVDs on recordable DVDs; (3) the ten DVDs he viewed had poor quality pictures and sound, unlike DVDs released by the MPAA; (4) the DVDs did not contain the true name or address of the manufacturer or display company logos or trademarks, unlike DVDs released by the MPAA; and (5) the number of DVDs indicated that Appellant was offering the DVDs for sale.
The testimony at trial established Appellant's ownership of the DVDs and his intent to sell multiple copies of movie titles which were still in theaters. The Commonwealth's evidence also demonstrated the counterfeit/pirated status of all of Appellant's DVDs, due to their failure to comport with the MPAA standards. Based on this evidence, the court could reasonably infer that at least one hundred of Appellant's counterfeit DVDs contained movies or portions of movies. See Reiss , supra. Therefore, the evidence was sufficient to support Appellant's conviction of selling unauthorized copies of recorded devices as a third-degree felony, and Appellant's second issue on appeal merits no relief. See Jones , supra ; 18 Pa.C.S.A. § 4116(g).
In his third issue, Appellant argues the Commonwealth failed to prove that Appellant's DVDs bore any marks which meet the new definition of "counterfeit mark" necessary to sustain a conviction of trademark counterfeiting. Appellant specifically asserts the Commonwealth did not present evidence that any mark on Appellant's DVDs was registered, any registered mark was in use on Appellant's DVDs, or that Appellant's DVDs bore a mark identical with or substantially indistinguishable from a registered mark. Appellant claims the Commonwealth's evidence established only that the DVDs bore homemade labels instead of actual inserts. Appellant also avers that MPAA expert, Bill Mock, testified he did not observe any company logos or trademarks on Appellant's DVDs. Appellant concludes the evidence was insufficient to support his conviction of trademark counterfeiting, and we must reverse his conviction. We agree.
The Crimes Code defined the prior version of the trademark counterfeiting statute in relevant part as follows:
§ 4119. Trademark counterfeiting
(a) Offense defined.—Any person who knowingly manufactures, uses, displays, advertises, distributes, offers for sale, sells or possesses with intent to sell or distribute any items or services bearing or identified by a counterfeit mark shall be guilty of the crime of trademark counterfeiting.
* * *
(i) Definitions.—As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
"Counterfeit mark." Any of the following:
(1) Any unauthorized reproduction or copy of intellectual property.
(2) Intellectual property affixed to any item knowingly sold, offered for sale, manufactured or distributed or identifying services offered or rendered, without the authority of the owner of the intellectual property.
18 Pa.C.S.A. §§ 4119(a) and (i) (prior version). Significantly, on October 5, 2009, the Pennsylvania Supreme Court declared that version of Section 4119 unconstitutionally overbroad. See Commonwealth v. Omar , 602 Pa. 595, 981 A.2d 179 (2009).
"Intellectual property." Any trademark, service mark, trade name, label, term, device, design or word adopted or used by a person to identify that person's goods or services.
The legislature subsequently amended Section 4119 and the new version of the trademark counterfeiting statute went into effect on December 20, 2010. The Crimes Code now defines the offense of trademark counterfeiting in relevant part as follows:
§ 4119. Trademark counterfeiting
(a) Offense defined.—Any person who knowingly and with intent to sell or to otherwise transfer for purposes of commercial advantage or private financial gain:
* * *
(3) offers for sale;
* * *
any items or services bearing or identified by a counterfeit mark shall be guilty of the crime of trademark counterfeiting.
* * *
(i) Definitions.—As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
"Counterfeit mark." A spurious mark that meets all of the following:
(1) Is applied to, used or intended to be used in connection with an item or service.
(2) Is identical with or substantially indistinguishable from a mark registered and in use in this Commonwealth, any other state or on the principal register in the United States Patent and Trademark Office, whether or not the person knew the mark was registered.
(3) The application of which is either:
18 Pa.C.S.A. § 4119(a)(3) and (i) (new version).(i) likely to cause confusion, to cause mistake or to deceive; or
(ii) otherwise intended to be used on or in connection with the item or service for which the mark is registered.
Instantly, the trial court relied on the old version of Section 4119 when it convicted Appellant of trademark counterfeiting. ( See Trial Court Opinion, filed April 16, 2015, at 8-9). Our Supreme Court declared the prior version of the statute unconstitutional in 2009, and the Pennsylvania legislature enacted a new version of the statute in 2010. See Omar , supra. Importantly, the new version of the statute contains a much more stringent definition of "counterfeit mark." See 18 Pa.C.S.A. § 4119(i). Applying the new version of Section 4119 to Appellant's case, the Commonwealth had to prove Appellant's DVDs bore counterfeit marks which met the requirements contained in Section 4119(i). See id. The Commonwealth concedes it failed to meet this burden. Additionally, the record is devoid of evidence to prove the items seized from Appellant bore spurious marks identical to or substantially indistinguishable from a registered mark in use in this Commonwealth, any other state or on the principal register in the United States Patent and Trademark Office. See id. Thus, the evidence was insufficient to support Appellant's conviction of trademark counterfeiting, and we must reverse that conviction. See Jones , supra.
Based on the foregoing, we affirm Appellant's conviction of selling unauthorized copies of recorded devices, reverse Appellant's conviction of trademark counterfeiting, vacate the judgment of sentence, and remand the for resentencing on the remaining conviction because we have disturbed the court's overall sentencing scheme. See Commonwealth v. Thur , 906 A.2d 552, 569 (Pa.Super. 2006), appeal denied, 596 Pa. 745, 946 A.2d 687 (2008) (holding that if disposition upsets overall sentencing scheme of trial court, this Court must remand so trial court can restructure sentencing scheme).
Judgment of sentence vacated; case remanded for resentencing. Jurisdiction is relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/11/2016
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