Opinion
J-S77044-17 No. 2062 MDA 2016
01-22-2018
COMMONWEALTH OF PENNSYLVANIA v. REUBEN MCDOWELL Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 6, 2016
In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000017-2013, CP-41-CR-0000035-2013, CP-41-CR-0000063-2013, CP-41-CR-0001382-2013 BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court.
Reuben McDowell, Appellant, appeals from the judgment of sentence entered in the Court of Common Pleas of Lycoming County after a jury, sitting in Appellant's consolidated trial, found him guilty of multiple counts of burglary, robbery, criminal trespass, stalking, theft, and related crimes on evidence that he targeted elderly women returning home from grocery stores and forcibly took their purses and other belongings. Sentenced to an aggregate sentence of 26 to 64 years' incarceration, Appellant presents eleven issues for our review. We affirm.
The trial court sets forth an apt factual and procedural history of the case as follows:
On or about December 12, 2012, [Pennsylvania State] Trooper Matthew Sweet was assigned to investigate several recent robberies. He reviewed reports of some of the incidents and [had been the responding officer [in one]. He developed some leads regarding the suspect and his vehicle (black male driving a silver/goldish/beige mid-sized SUV). He further identified a modus operandi (MO) of the suspect (robbing elderly women coming from or participating in shopping).
On December 13, 2012, he along with several other troopers began a surveillance detail. The surveillance team conducted surveillance from December 13, 2012, to December 15, 2012, and from December 17, 2012, to December 20, 2012. As the investigation proceeded, more leads were developed. The description of the possible suspect became more defined (black male, stocky, broad chested, bald, middle aged or elderly, clean shaven). As well, it appeared that certain stores or shopping centers were targeted including the Giant Plaza, Wegmans, and Aldi's. Further, the crimes would "generally" occur when the victims were either returning to their vehicles after shopping or returning home. As well, the suspect had used force in at least some of the incidents. Some of the victims were "attacked" within a minute or two of returning home. Others were outside while some had actually been inside their homes. Most of the crimes occurred between the late morning and approximately 5:00 p.m. All of the alleged victims were women in their 80's. Videos and pictures from surveillance cameras were obtained and viewed. A Lycoming College surveillance camera depicted the suspect vehicle as a gold-colored SUV. A Weis Market surveillance camera depicted the suspect. A picture was obtained of a suspect using a victim's stolen credit card. The suspect as viewed matched the description as given by the victims.
On December 20, 2012, at approximately 2:00 p.m., Troopers Sweet and Holmes were conducting undercover surveillance at the Giant Plaza. They observed [Reuben] McDowell [hereinafter "Appellant'] pull his vehicle, a gold/beige-colored SUV, in front of their vehicle. Appellant was "acting very suspicious." He kept pulling in and out of various parking stalls. He was looking around and appeared very nervous. It "appeared to [the troopers] that he was looking for a potential victim."
Appellant eventually pulled his vehicle in front of an elderly woman, later identified as [M.B.], who was putting some of her
groceries or merchandise in her vehicle. As soon as [M.B.] got in her vehicle and pulled out of the parking lot, Appellant followed her. He followed [M.B.] "up to basically her residence." According to Trooper Sweet, "Every move she made, he made." As [M.B.] turned onto the roadway to her residence, . . . Appellant turned onto an adjacent roadway, . . . in very close proximity to [M.B.'s] residence and backed into a driveway. Trooper Sweet opined that Appellant was observing [M.B.] He was parked in "a very close vicinity." "It's basically across a tree line up to a residential area[," the trooper testified.] Appellant then left the area, drove a few miles away, and then returned within minutes, this time actually driving up [M.B.'s] street, which ends in a cul de sac.
Appellant drove past [M.B.'s] house. He turned around in the driveway of a residence one house away and traveled back down toward [M.B.'s] house. [M.B.] was still carrying groceries into her house with her trunk still open. The troopers blocked the roadway, surrounded Appellant's vehicle and, with guns drawn, ordered Appellant out of his vehicle. Appellant did as directed. He was removed from his vehicle and immediately taken into custody. He was handcuffed and placed in a patrol unit.
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After being transported to the state police barracks, Appellant was held for processing and then brought to an interview room. While at the barracks and after being Mirandized, the troopers questioned Appellant regarding his conduct that day.
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[In addition to interviewing Appellant, Trooper Sweet and others continued their investigation in other respects. They] typed up search warrants for the vehicle [Appellant] was driving, his residence and his phone; spoke with some of the victims from the prior incidents; spoke briefly with [M.B.]; prepared photo arrays; met with at least two prior victims who viewed the photo arrays and identified Appellant . . . as the perpetrator of the crimes against them; reviewed the investigative reports from the other incidents; conducted an inventory search of the car; obtained and executed a search warrant at Appellant's residence; conversed with the assistant district attorney on call; and typed up charges.
The search warrant was executed on Appellant's residence at approximately 10:00 p.m. Numerous incriminating items were seized. The vehicle Appellant had been driving was towed to the PSP impound for processing. A custodial inventory search was initially conducted. A search warrant for the vehicle was obtained that day but not executed until the following day. The two searches of the vehicle uncovered several items of significance incriminating Appellant.
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In CR-17-2013, Trooper Matthew Sweet filed a criminal complaint against Appellant on December 20, 2012, charging [him] with assault, burglary, robbery, criminal trespass, stalking, theft, receiving stolen property, simple assault, recklessly endangering another person and harassment.
The charges relate to an incident involving [J.H.], an 86 year-old female. On December 12, 2012, she went to the Giant Shopping Center in Loyalsock to buy groceries. She returned to her house at approximately 1:00 p.m. While in the process of bringing her groceries into the house from her car, she noticed the handle on the front door being moved. Thinking it was the mailman, she went to open the door, but was pushed back and fell on the floor. The intruder kicked the victim several times, located her purse, took her wallet and an envelope containing cash, and then left the home. Through the use of a photo lineup or array on December 20, 2012, the victim identified Appellant as the individual who robbed her.
In CR-35-2013, Trooper Sweet filed a criminal complaint against Appellant on December 21, 2012, charging Appellant with forgery, identity theft, theft from a motor vehicle, access device fraud, and theft by unlawful taking. Under this Information, [P.E.], an 86 year-old female, was grocery shopping at Aldi's in Loyalsock Township on December 12, 2012. While she was returning the shopping cart, Appellant stole her purse from her vehicle. Among the items taken from the purse was a credit card, which was subsequently used at Weis Markets. The surveillance video from Weis Markets showed an African American individual with sunglasses, a black hat and black coat. Similar clothing was eventually seized from a vehicle Appellant was operating. Furthermore, a subsequent search of Appellant's residence, pursuant to a search warrant, yielded items that were purchased
on December 13 with the victim's credit card. Moreover, when Appellant was taken into custody, he admitted to the crimes. Specifically, he told police officers that while the victim was returning her cart, he saw an opportunity to take the purse. He removed it from the car and ultimately used the credit card at various locations.
In CR-62-2013, Agent Raymond Kontz, III, of the Williamsport Bureau of Police, filed a criminal complaint against Appellant on December 31, 2012, charging him with robbery, theft by unlawful taking, receiving stolen property, recklessly endangering another person, simple assault and theft from a motor vehicle. The crimes arose out of an incident on December 7, 2012. On December 7, 2012, while returning from grocery shopping, eighty-two year old [M.M.] stopped to check the movie times at the Williamsport Cinema Center. She came in contact with an individual as she was getting into her car. A struggle ensued when he assailant was attempting to take the purse. The assailant eventually obtained the purse after pressing a pressure point on the victim's hand. On December 22, 2012, the victim identified Appellant as the perpetrator from a photo array.
While subsequently in custody, Appellant admitted that he saw the victim in the parking lot area and acknowledged that she was older. He thought that he could take her purse without having to confront her but was surprised when she fought.
In CR-1382-2013, the police filed a criminal complaint against Appellant on February 13, 2013, charging him with robbery, stalking, theft by unlawful taking, receiving stolen property, harassment, burglary, criminal trespass, access device fraud and theft from a motor vehicle. The crimes were alleged to have occurred between December 9, 2012 and December 16, 2012. During that span of time, four more women in their eighties had their purses stolen from their person or their residence after shopping at either the Wegmans, Aldi's, or Giant grocery stores.
The first was [A.F.]. In December of 2012 after returning to her home from the library and while trying to get into her apartment an individual grabbed her purse, stole it, ran to his car and drove away. [A.F.] was 85 year old and resided in Williamsport. She had previously been shopping at the Wegmans grocery store in Williamsport.
On December 11, 2012, at approximately noon, [M.C.], then 83 years old was unloading groceries. She had been previously shopping at the Giant in Loyalsock. While putting away her groceries, she placed her purse on a chair inside her front door. After she had put all of the groceries on the table, she started looking for her purse, but it was gone. It was eventually returned to her a few hours later by a third party who indicated that it was found on the road "not too far." The cash in the purse had been taken.
A few hours later, at approximately 4:30 in the afternoon, an assailant entered the residence of [M.E.], an 84 year-old female who also resided in the Loyalsock area, shortly after she returned home from the Giant grocery store. The assailant stole money from [M.E.'s] purse which was on the kitchen counter.
On December 16, 2012, at approximately 4:00 in the afternoon, [D.M.], an 82 year-old female, had her purse stolen from out of her vehicle at the Aldi's parking lot. She was returning her cart to the designated cart collection area. She observed the actor removing her purse and fleeing in a vehicle. Her purse was found nearby her residence and returned to her. Her credit cards had been used.
A jury trial was held March 14-18, 2016.
Under information 17-2013, the jury found Appellant guilty of burglary, robbery, criminal trespass, stalking, theft by unlawful taking, receiving stolen property, simple assault and recklessly endangering another person.
Under information 35-2013, the jury found Appellant guilty of forgery, identity theft, theft from a motor vehicle, access device fraud, and theft by unlawful taking.
Under information 63-2013, the jury found Appellant guilty of two counts of robbery, three counts of theft by unlawful taking, three counts of receiving stolen property, one count of burglary, one count of criminal trespass, one count of access device fraud, and one count of theft from a motor vehicle.
Under information 1382-2013, the jury found Appellant guilty of one count of robbery, three counts of theft by unlawful taking, three counts of receiving stolen property, one count of burglary,
one count of criminal trespass, one count of access device fraud, and one count of theft from a motor vehicle.Trial Court Opinion, filed May 8, 2017, at 8-10, 10-11, 1-6.
On July 6, 2016, the court sentenced Appellant to an aggregate period of incarceration in a state correctional institution, the minimum of which was 26 years and the maximum of which was 64 years.
Appellant filed post sentence motions in which he challenged the discretionary aspects of sentencing and sought reconsideration of his sentence. He also filed supplemental post sentence motions in which he averred the court erred in granting the Commonwealth's motion to consolidate and in denying his omnibus pretrial motion and motions to dismiss pursuant to Rule 600. . . .
The court denied Appellant's post sentence motions in an opinion and order dated December 12, 2016.
Appellant filed a notice of appeal. [He filed a court-ordered concise statement of matters complained of on appeal in which he raised ten issues.]
Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602 (1966).
Appellant presents the following questions for our review:
I. DID THE LOWER COURT ERR WHEN IT DENIED APPELLANT'S MOTION FOR A NEW TRIAL AFTER THE COMMONWEALTH VIOLATED PA.R.CRIM.P. 602 WHEN IT FAILED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT THE APPELLANT'S ABSENCE AT TRIAL WAS WITHOUT GOOD CAUSE?
II. DID THE LOWER COURT ERR WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS AS LAW ENFORCEMENT OFFICERS LACKED SUFFICIENT PROBABLE CAUSE TO EXECUTE AN ARREST OF APPELLANT ON DECEMBER 20, 2012, AS APPELLANT NEVER LEFT HIS VEHICLE, THE OFFICERS LACKED SUFFICIENT FACTS TO LEAD THEM TO BELIEVE THAT A CRIME WAS IN THE PROCESS OF BEING COMMITTED, [AND,] AS SUCH, ALL EVIDENCE AND
ADMISSIONS MADE POST-ARREST SHOULD HAVE BEEN SUPPRESSED?
III. DID THE LOWER COURT ERR WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS AS LAW ENFORCEMENT OFFICERS LACKED A PROPER ARREST WARRANT TO JUSTIFY APPELLANT'S ARREST AND DETENTION?
IV. DID THE LOWER COURT ERR WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS PURSUANT TO A VIOLATION OF PA.R.CRIM.P. 519 , BY UNNECESSARILY DELAYING APPELLANT'S APPEARANCE BEFORE A MAGISTRATE DISTRICT JUDGE, HIS UNLAWFUL DETENTION LED TO THE IMPOUNDING OF HIS VEHICLE AND HIS ADMISSIONS, AND THUS ALL POST-ARREST EVIDENCE AND ADMISSIONS SHOULD HAVE BEEN SUPPRESSED?
V. DID THE LOWER COURT ERR WHEN IT DENIED APPELANT'S MOTION TO SUPPRESS AS LAW ENFORCEMENT OFFICERS LACKED SUFFICIENT PROBABLE CAUSE TO SEIZE AND SEARCH APPELLANT'S VEHICLE?
VI. DID THE LOWER COURT ERR WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS AS AGENT KONTZ VIOLATED THE MUNICIPAL POLICE JURISDICTION ACT WHEN HE ARRESTED APPELLANT WITHOUT THE PROPER FILING OF A POLICE COMPLAINT AND OBTAINING AN ARREST WARRANT?
VII. DID THE LOWER COURT ERR WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS SINCE POLICE FAILED TO PROPERLY FILE A CRIMINAL COMPLAINT AND SUBSEQUENT VALID ARREST WARRANT VIOLATED HIS RIGHTS AND HIS CONFESSION TO AGENT KONTZ SHOULD HAVE BEEN SUPPRESSED?
VIII. DID THE LOWER COURT ERR WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS AS THE PHOTOGRAPHIC IDENTIFICATION PROCESS USED BY LAW ENFORCEMENT WAS DONE IN AN UNDULY SUGGESTIVE MANNER?Appellant's brief, at 17-18.
IX. DID THE LOWER COURT ERR WHEN IT GRANTED THE COMMONWEALTH'S MOTION TO JOIN THE INFORMATIONS, AS THE CONSOLIDATION UNDULY PREJUDICED APPELLANT AS THE SHEER NUMBER OF CHARGES WOULD LEAD THE JURY TO CONCLUDE APPELLANT HAD A PROPENSITY TO COMMIT CRIME?
X. DID THE LOWER COURT ERR WHEN IT DENIED APPELLANT'S MOTION TO DISMISS PURSUANT TO PA.R.CRIM.P. 600 , AS MORE THAN THREE-HUNDRED AND SIXTY-FIVE DAYS HAD PASSED SINCE THE FILING OF THE CHARGES AGAINST HIM AND THE DATE OF HIS JANUARY 1, 2016 MOTION FOR DISMISSAL?
XI. DID THE LOWER COURT ERR AND ABUSE ITS DISCRETION WHEN IT SENTENCED APPELLANT TO MULTIPLE CONSECUTIVE SENTENCES FOR AN AGGREGATE SENTENCE OF TWENTY-SIX YEARS MINIMUM, WITH A MAXIMUM OF WHICH WAS SIXTY-FOUR YEARS, AS THIS CREATED AN UNDULY HARSH AND MANIFESTLY EXCESSIVE SENTENCE WITHOUT CONSIDERATION OF APPELLANT'S AGE AND REHABILITATIVE NEEDS?
A review of Appellant's argument section shows he provides no argument in support of Questions I, VI, and VII and has, accordingly, abandoned challenges raised therein.
We have reviewed the certified record, party briefs, controlling law, and the cogent and comprehensive opinion of the Honorable Marc F. Lovecchio, dated May 8, 2017, which we attach to the present memorandum decision. We conclude that Judge Lovecchio's opinion properly disposes of all issues, Appellant has preserved for review such that we discern no abuse of discretion or error of law below. Accordingly, we adopt Judge Lovecchio's opinion as our own and affirm judgment of sentence on that basis.
Appellant centers his Rule 600 issue on a theory not presented in his Pa.R.A.P. 1925(b) statement. Specifically, Appellant contends, for the first time in his brief, that were it not for defense counsel's unauthorized decisions to consent to Commonwealth continuances and the corresponding new trial dates set by the court, his final Rule 600 run date would have occurred prior to the start of his trial, in violation of Rule 600. In contrast, his Pa.R.A.P. 1925(b) statement asserts only a generic Rule 600 claim that more than 365 days transpired from the date the Commonwealth filed charges against him. From this general claim, there is no indication that Appellant intended to ask this Court to revisit established precedent attributing defense counsel's Rule 600-related pre-trial decisions to a defendant. We, therefore, find this issue waived. See Commonwealth v. Lord , 719 A.2d 306 (Pa. 1998) ("Any issues not raised in a 1925(b) statement will be deemed waived.") Even if Appellant had preserved this discrete issue, he asks us to do what we are not empowered to do, namely, "carve out" an exception to a binding decision issued by the Pennsylvania Supreme Court that would in effect swallow the very rule announced therein. In Commonwealth v. Wells , 521 A.2d 1388 (Pa. 1987), our Supreme Court observed that counsel may exercise his or her sound discretion and make informed choices for the defendant with respect to Rule 1100 (now Rule 600). "The actions of counsel in this regard are imputed to the defendant who is bound thereby[,]" the Court held. Id. at 1391. Cf Commonwealth v. Baird , 975 A.2d 1113, 1119 (Pa.Super. 2009) (holding "Superior Court did not err in applying general rule, consistent with federal speedy-trial jurisprudence, attributing notice to counsel to the defendant for Rule 600 purposes). Appellant asks us to impose a new requirement into the Supreme Court's Rule 600 design that would oblige counsel to obtain the specific permission of clients for continuance requests before they are granted. See Appellant's brief, at 36. Our jurisprudence is well-settled, however, that we are without authority to ignore binding precedent of the Supreme Court. See Commonwealth v. Seskey , 170 A.3d 1105, 1109 (Pa.Super. 2017) (observing "[T]his Court is duty-bound to effectuate our Supreme Court's decisional law."). Finally, to the extent Appellant's claim may be understood as asserting the ineffectiveness of counsel in failing to secure his speedy trial rights provided under Rule 600, we would deny such a claim without prejudice to Appellant's right to raise it on collateral review. See Commonwealth v. Grant , 813 A.2d 726, 738 (Pa. 2002) ("We now hold that, as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review.").
In his final issue, Appellant raises a challenge to the discretionary aspects of his sentence. It was his obligation, therefore, to provide a separate statement, pursuant to Pa.R.A.P. 2119(f), "specifying where the sentence falls in relation to the Sentencing Guidelines and what particular provision of the Sentencing Code has been violated. The 2119(f) statement must specify what fundamental norm the sentence violates and the manner in which it violates that norm." Commonwealth v. Johnson , 873 A.2d 704, 708 (Pa.Super. 2005) (internal citations omitted). Appellant's Rule 2119(f) statement simply declares that a "substantial question exists as the lower court sentenced to consecutive sentences without proper consideration of Appellant's rehabilitative [sic] and his age." Had the Commonwealth objected to Appellant's boilerplate Rule 2119(f) statement, we would have found the statement does not satisfy the minimum requirements of the rule, as it would force this Court to review the argument section of Appellant's brief to determine whether a substantial question as to the propriety of his sentence exists. However, because the Commonwealth failed to object, and Appellant states his claim with sufficient specificity in the argument section of his brief, we decline to find waiver on this basis. See Id. --------
Judgment of sentence is AFFIRMED. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/22/2018
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