Opinion
J-S79041-17 No. 239 EDA 2017
01-19-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. STEPHEN WHITE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence August 11, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0002455-2015 BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Stephen White, appeals from the judgment of sentence entered in the Montgomery County Court of Common Pleas, following his jury trial convictions for one count each of loitering and prowling, conspiracy to commit loitering and prowling, persons not to possess firearms, and two counts of receiving stolen property ("RSP"). We affirm.
18 Pa.C.S.A. §§ 5506; 903; 6105; 3925, respectively.
The trial court opinion accurately set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
Appellant raises four issues for our review:
For purposes of disposition, we have reordered some of Appellant's issues.
WAS [APPELLANT] PROPERLY PROSECUTED IN MONTGOMERY COUNTY FOR CRIMES WHICH, IF
SUFFICIENTLY SUPPORTED BY RELIABLE EVIDENCE, TOOK PLACE IN PHILADELPHIA COUNTY? WAS THERE AN "OVERT ACT" AS DISCUSSED IN [ COMMONWEALTH V. MCPHAIL , 547 PA. 519, 692 A.2D 139 (1997) (PLURALITY)] THAT TOOK PLACE IN MONTGOMERY COUNTY THAT WOULD SUPPORT THE TRIAL COURT'S VENUE AND JURISDICTION?(Appellant's Brief at 5-6).
DID THE TRIAL COURT ERR WHEN IT FAILED TO SUPPRESS EVIDENCE OBTAINED AS THE RESULT OF WARRANTS FOR TWO SEPARATE RESIDENCES IN PHILADELPHIA AND THEN AGAIN WHEN SAID EVIDENCE WAS ADMITTED DURING THE TRIAL IN THIS CASE? DID THE POLICE OVERREACH BY SEEKING ANY POSSIBLE LOCATION WHERE [APPELLANT] MIGHT HAVE RESIDED IN THE PAST, LEAVING THE WARRANTS TO LACK A SUFFICIENT NEXUS BETWEEN THE ALLEGED CRIMES AND THE LOCATION TO BE SEARCHED AS WELL AS LACKING PROBABLE CAUSE? WERE THE WARRANTS OVERBROAD AND FAILING TO STATE WITH PARTICULARITY THE ITEMS TO BE SEIZED? WERE THE WARRANTS BASED UPON AN UNLAWFUL AND WARRANTLESS DETENTION OF [APPELLANT] AND SUBSEQUENT INVESTIGATION OF HIM?
WAS THERE SUFFICIENT EVIDENCE TO SUPPORT A CONVICTION OF [APPELLANT] FOR EITHER POSSESSION OF A STOLEN WEAPON, A RING[,] OR OF BEING A PERSON NOT TO POSSESS THAT WEAPON?
DID THE TRIAL COURT ERR IN SENTENCING [APPELLANT] TO CONSECUTIVE TERMS OF INCARCERATION FOR CRIMES FOR WHICH THE ELEMENTS ARE NEARLY IDENTICAL. SPECIFICALLY, [APPELLANT] WAS SENTENCED FOR BOTH POSSESSING A STOLEN FIREARM AND FOR BEING A PERSON NOT TO POSSESS THAT SAME FIREARM?
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Steven T. O'Neill, we conclude Appellant's issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed April 19, 2017, at 7-17) (finding: (1) Pennsylvania Courts of Common Pleas have subject matter jurisdiction over violations of Crimes Code; court in which Appellant was tried is Court of Common Pleas, so it had jurisdiction over all charges against Appellant; under Pa.R.Crim.P. 130(A)(3), when charges arising from same criminal episode occur in more than one judicial district, criminal proceeding on all charges may be brought before one issuing authority in magisterial district within any of judicial districts in which charges arising from same criminal episode occurred; by letter of March 31, 2015, Philadelphia County District Attorney's office sent McPhail letter to Montgomery County District Attorney's office agreeing to let Montgomery County prosecute charges of RSP and persons not to possess firearm (which occurred in Philadelphia County); Appellant did not challenge at any time before trial ability of Montgomery County to prosecute charges related to property recovered from his Philadelphia apartment; further, fact that jury was deadlocked on burglary charge arising out of Montgomery County does not somehow invalidate proper transfer which took place in this case; because Philadelphia and Montgomery counties agreed to prosecute all charges against Appellant in Montgomery County, venue and jurisdiction in Montgomery County was proper, and Appellant's claim lacks merit; (2) police established burglary detail due to multiple burglaries which occurred in Montgomery County; Detective Sergeant Fink testified that during burglary detail on March 21, 2015, Officer Bullock observed Appellant and his cohort drive slowly around high-end neighborhoods at night; when Officer Bullock ran tag on car, there was no record of registration; Detective Sergeant Fink joined in surveillance and twice observed Appellant exit vehicle and approach houses; Detective Sergeant Fink saw Appellant "creeping" around one home and crouching to look into window; based on his training and experience, Detective Sergeant Fink believed Appellant and his cohort were casing homes to burglarize, which gave police reasonable suspicion to stop vehicle; once police stopped vehicle, Detective Sergeant Fink observed, in plain view, ladder matching description of ladder contained in intelligence bulletin regarding February 7, 2015 burglary, as well as multiple cell phones, gloves, and screwdrivers, which are commonly used in burglaries; officers had probable cause to arrest Appellant for loitering and prowling; affidavits of probable cause issued for search warrants of Appellant's homes outlined Detective Sergeant Fink's training and experience, Appellant's criminal history, and contained extensive detail regarding recent Montgomery County burglaries, as well as facts which led to instant charges; affidavits also indicated that at time of Appellant's arrest, he had Pennsylvania driver's license and parole card with address on 10th Street in Philadelphia; further investigation revealed Appellant was registered with Department of Human Services with address on Haverford Avenue in Philadelphia; PennDot records indicated Appellant had car registered to Haverford Avenue address; there was sufficient probable cause to believe items stolen in Montgomery County burglaries would be found in any one of these residences; warrants for Appellant's Philadelphia addresses were not overly broad and stated specifically that police sought: proof of residence, Beretta 9-mm handgun, and assorted jewelry; police ultimately recovered from Appellant's residence ring and gun stolen in February 7, 2015 burglary; court properly denied motion to suppress; (3) totality of circumstances showed Appellant had constructive possession of firearm; mail, phone records, expired driver's license, and testimony from Appellant's girlfriend tied Appellant to location where police recovered stolen gun; in bifurcated portion of trial following jury's verdict on other charges, parties stipulated Appellant was person not to possess firearms due to prior burglary conviction; evidence was sufficient to sustain Appellant's convictions for RSP (firearm) and persons not to possess firearms; (4) as presented, Appellant's challenge to imposition of consecutive sentences does not raise substantial question; moreover, sentence was not "clearly unreasonable"; in light of Appellant's extensive criminal history, aggregate sentence of 9 to 20 years' imprisonment is wholly appropriate; court considered Appellant's extensive criminal history, which included numerous crimes against persons, when court fashioned sentence that protected community from Appellant's recidivist behavior; Appellant's firearm offenses are serious and pose danger to community; harms sought to be remedied by Appellant's RSP (firearm) and persons not to possess offenses are different, so court imposed consecutive terms of imprisonment for those crimes; additionally, court imposed concurrent sentences for Appellant's remaining convictions; court did not abuse its discretion in sentencing Appellant). Accordingly, we affirm on the basis of the trial court's opinion.
In McPhail , a plurality of our Supreme Court held that all charges stemming from a single criminal episode must be heard in a single trial, even where some of the charges arose in more than one judicial district. See McPhail , supra at 530, 692 A.2d at 145. To implement the holding in McPhail , Rule 130 was added to the Pennsylvania Rules of Criminal Procedure. McPhail was later superseded by statute. Nevertheless, district attorney's offices still use the term " McPhail letter" when discussing the transfer of cases involving a continuing criminal episode spanning different counties.
Appellant insists his issue is a non-waivable jurisdictional challenge. Appellant's claim, however, actually attacks the venue of the court. See McPhail , supra at 529, 692 A.2d at 144 (stating: "[T]he place of trial, whether within or without the county where the alleged crime occurred, is a matter of venue, not jurisdiction"; unlike subject matter jurisdiction, venue is waivable if not properly preserved). Appellant raised this issue for the first time at the hearing on his post-sentence motion. Appellant's failure to object to venue at the appropriate stage of the proceedings constitutes waiver of his claim on appeal. See generally Pa.R.Crim.P. 578 (stating motion for change of venue should be raised in omnibus pre-trial motion at "earliest feasible" time); Commonwealth v. Strunk , 953 A.2d 577 (Pa.Super. 2008) (stating party's failure to raise error and request remedy at appropriate stage of proceedings constitutes waiver on appeal; party may not remain silent and later complain of matters which, if erroneous, court could have corrected).
We depart only from the trial court's statement on page nine that Appellant waived his challenge to the admissibility at trial of the search warrants and property recovered during execution of those warrants. Appellant preserved his evidentiary challenge by filing a pre-trial motion to suppress, so he did not need to object to admission of the evidence again at trial. See Pa.R.Crim.P. 581(J) (stating: "If the court determines that the evidence shall not be suppressed, such determination shall be final, conclusive, and binding at trial, except upon a showing of evidence which was theretofore unavailable, but nothing herein shall prevent a defendant from opposing such evidence at trial upon any ground except its admissibility"); Commonwealth v. Walker , 477 Pa. 370, 383 A.2d 1253 (1978) (explaining objection at trial to evidence which court already ruled was admissible in pre-trial suppression proceeding would constitute "useless act"; appellant did not waive challenge to admissibility of evidence at trial where he challenged admissibility of that evidence in pre-trial suppression motion). In any event, because the court properly denied Appellant's suppression motion, admission of the evidence at trial was proper.
To the extent Appellant challenges the sufficiency of the evidence to sustain any other convictions in this case, he waived those complaints for failure to raise them in his Rule 1925(b) statement. See Commonwealth v. Castillo , 585 Pa. 395, 888 A.2d 775 (2005) (holding as general rule that issues not raised in Rule 1925(b) statement are waived on appeal).
Appellant's remaining sentencing claims on appeal are waived for failure to preserve them in his Rule 1925(b) statement. See id. --------
Judgment of sentence affirmed. Judgment Entered. /s/ _________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/19/2018
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