Opinion
J-S51019-17 No. 2439 EDA 2016
11-17-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. DEXTER WILLIAMS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 19, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005312-2015 BEFORE: BOWES and SHOGAN, JJ., and STEVENS, P.J.E. MEMORANDUM BY SHOGAN, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Dexter Williams, appeals from the judgment of sentence entered on July 19, 2016, in the Court of Common Pleas of Philadelphia County following his conviction at a bench trial of possession of marijuana and violations of the Uniform Firearms Act, carrying a firearm though ineligible, carrying a firearm without a license, and carrying a firearm on a public street in Philadelphia. We affirm.
Although Appellant identifies his appeal as lying from the order finding him guilty, the appeal properly lies from the judgment of sentence. Therefore, we will treat this appeal as having been properly taken from the judgment of sentence. See Commonwealth v. O'Neill , 578 A.2d 1334, 1335 (Pa. Super. 1990) ("In criminal cases, appeals lie from judgment of sentence rather than from the verdict of guilt.").
35 P.S. § 780-113(a)(31).
18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively. --------
The trial court summarized the facts as follows:
On May 8, 2015, at approximately 11:40 a.m., Philadelphia Highway Patrol Officer Joseph Moore received information from his supervisor in regards to a shooting in the area of 3400 I Street in North Philadelphia. Notes of Testimony ("N.T."), 2/22/2016, at 7. The call did not provide any flash information as to the description of the suspect. Id. at 20. In an unmarked police vehicle, Officer Moore and Officer Williams drove northbound on 3400 H Street when Officer Moore observed the Appellant walking north on the east side of H Street. Id. at 7-8. The Appellant appeared to be walking swiftly, while grabbing and adjusting his waistband in a distinct manner. Id at 8. Behind Officer Moore's vehicle was a marked highway patrol vehicle, in which Officer Holmes was present in full uniform. As he walked, the Appellant began to look over his shoulder toward the marked police vehicle. Id. The Appellant then stopped walking, made a U-turn and started walking southbound toward the police vehicle. Id. The Appellant continued walking southbound for a few steps until he proceeded to walk onto the porch of 3429 H Street. While walking up the porch the Appellant continued to tug and adjust his waistband. Id. at 9.
Due to the Appellant's movements, Officer Moore, Officer Williams and Officer Holmes exited their respective vehicles to further investigate. Id. at 10. Officer Moore then told the Appellant to stop and show his hands. Id. at 16. [Appellant] said something to the effect of, "I didn't do anything." Id. Officer Moore observed a juice container in the Appellant's hand and a "small black object" in the other. Id. The Appellant opened the screen door of the porch and wedged himself between the screen door and the front entry door of the residence. Id. The Officers were unable to view the Appellant's hands while he was in between the doors of the porch. The Officers continued to instruct the Appellant to show his hands.
After the Appellant failed to comply with commands, the Officers drew their weapons and continued to instruct the Appellant to stop what he was doing. Id. at 11. The Appellant crouched down between the screen door and the front door of the building. Id. While the Appellant was crouched down his hands were out of view for a few moments.Trial Court Opinion, 1/27/17, at 2-4.
Upon further command, the Appellant discarded a black firearm from his right hand. Id. The Officers recovered the firearm and placed the Appellant under arrest. Id. After searching Appellant, the Officers recovered a clear bag containing 12 purple-tinted jars with purple lids, each containing a green weed and seed substance. Id. at 12. Inside the clear bag was another clear bag with a loose green weed substance. Id. The Officers also recovered $779 United States currency from the Appellant's left pants pocket. Id.
The arrest of the Appellant at 3429 H Street was approximately a block west from where an alleged shooting occurred an hour and a half earlier. Id. Officer Moore testified the 3400 block of H Street is in the 24th District in the East Division. Id. Officer Moore testified he has been a Philadelphia Police Officer for twenty-one years, twelve of those years on highway patrol. Id. Officer Moore stated the East Division is an area in which a high number of violent crimes occur. In particular, the area of H Street is an area that encounters crimes that are "usually very violent." Id. at 15. He stated the neighborhood is known for gun violence, armed robberies, and open-air narcotic sales. Id. at 14. Even when Officer Moore is not assigned to the East Division, he is advised to conduct a sweep of the area during his patrol. Id. He testified that he has made hundreds of arrests for guns during his career, several dozen of these in the East Division. Id. In addition, Officer Moore stated that in conducting gun arrests, he has recovered firearms from the vicinity of the person's waistband in the majority of cases. Id. at 15.
Appellant filed an omnibus pretrial motion, which included a motion to suppress physical evidence, on June 15, 2015. The trial court held a suppression hearing on February 22, 2016, and denied the motion to suppress physical evidence on March 22, 2016. Appellant proceeded to a waiver trial on April 4, 2016, following which the court convicted Appellant of all charges, as described above. The trial court sentenced Appellant on July 19, 2016, to an aggregate term of imprisonment of six and one-half to fifteen years. Appellant filed a notice of appeal on July 26, 2016.
On August 23, 2016, the trial court directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one days. Thus, Appellant's Pa.R.A.P. 1925(b) statement was due on or before Tuesday, September 13, 2016. Appellant did not file his Pa.R.A.P. 1925(b) statement until September 23, 2016. It appears the trial court overlooked the lateness of Appellant's filing, and it issued an opinion pursuant to Pa.R.A.P. 1925(a) on January 27, 2017, in which it addressed the issues raised by Appellant in his Rule 1925(b) statement. Therefore, we need not remand. See Commonwealth v. Brown , 145 A.3d 184, 186 (Pa. Super. 2016), appeal denied, 165 A.3d 892 (Pa. 2017) (While untimely filed Rule 1925(b) statement often requires remand, "where the trial court addresses the issues raised . . . , we need not remand but may address the issues on their merits. See Commonwealth v. Thompson , 39 A.3d 335, 340 (Pa. Super. 2012).").
Appellant raises one issue on appeal:
1. Did the suppression court/trial court err in denying suppression where the police did not possess the necessary factual information to stop [A]ppellant based on the totality of the circumstances[?]Appellant's Brief at 4.
We note our standard of review:
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. McCoy , 154 A.3d 813, 815-816 (Pa. Super. 2017). We may consider only evidence presented at the suppression hearing. In re L.J., 79 A.3d 1073, 1085-87 (Pa. 2013). Instantly, Appellant presented no witnesses, and the Commonwealth presented one. Therefore, the Commonwealth's evidence is uncontradicted. See Commonwealth v. Runyan , 160 A.3d 831, 834 (Pa. Super. 2017) (citing Commonwealth v. Petty , 157 A.3d 953, 955 (Pa. Super. 2017), and Commonwealth v. Smith , 979 A.2d 913, 917-18 (Pa. Super. 2009) (The "Commonwealth's evidence is essentially uncontradicted" because the defense did not present any witnesses at the suppression hearing.)).
We may consider only the evidence of the prosecution 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 record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.
In a three-paragraph argument, Appellant asserts that the seized evidence should have been suppressed because police lacked "reasonable suspicion that criminal activity was afoot and that [A]ppellant was armed and dangerous." Appellant's Brief at 8. Appellant wholly fails to refer to the record in support of his broad statements and allegations of fact. Moreover, he fails to develop any meaningful analysis in support of his claims. Thus, we could find the argument waived. Commonwealth v. Woodard , 129 A.3d 480, 502 (Pa. 2015), cert. denied, 137 S.Ct. 92 (2016).
Nevertheless, we have considered Appellant's claim, minimally-developed though it is. Following our review of the record, we conclude that the trial court adequately addressed Appellant's issue in its opinion filed pursuant to Pa.R.A.P. 1925(a) on January 27, 2017, and we affirm on its basis. We direct the parties to attach a copy of the opinion in the event of any future proceedings.
Judgment of sentence affirmed.
Judge Bowes joins the Memorandum.
P.J.E. Stevens concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/17/2017
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