Opinion
J-S14020-16 No. 246 MDA 2015
04-04-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. BENJAMIN VILLANUEVA, III Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 23, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001712-2012 BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E. MEMORANDUM BY PANELLA, J.
Former Justice specially assigned to the Superior Court.
Appellant, Benjamin Villanueva, III, appeals from the judgment of sentence entered December 23, 2014, in the Court of Common Pleas of Lycoming County. We affirm.
We take the underlying history of this matter from the trial court's opinion.
On October 11, 2009, two masked individuals entered the Sunoco A-Plus in South Williamsport, Pennsylvania.... They assaulted the clerk and stole numerous packs of cigarettes and approximately $150 in cash. When the suspects left the Sunoco, they headed west past Citizens and Northern Bank.
The clerk provided a description of the individuals to the police, who also viewed the suspects on video surveillance from the Sunoco and the ATM at the front of the bank. One of the individuals was an approximately 5'8" tall male, who was
wearing a gray hoodie, a flesh-toned scary Halloween mask, dark colored gloves and faded blue jeans. The other individual was a taller male, who was wearing a green coat, a dark colored shirt with white on the front of it, a dark colored ski mask, dark colored gloves, and faded blue jeans. The eyeholes of the ski mask appeared to be rather large with white or gray material visible underneath, not exposed skin. The taller individual was also carrying a bright blue tote bag with white lettering or symbols on the side of it.
The police also found two cigarette butts on the ground in front of the bank. The butts were orange/tan in color and had two gold bands near the burnt end of the butts.
Unfortunately, the police were not able to locate and apprehend the suspects on October 11, 2009.
Two days later, on October 13, 2009, the South Williamsport police were dispatched to the 700 block of Matthews Boulevard to investigate a "suspicious person" report. There were two suspicious individuals seen behind residences near the Woodlands Bank on West Southern Avenue and a third individual in a gold vehicle. It was also reported that one of the individuals was hiding behind a nearby dumpster.
The police stopped the gold vehicle and identified the driver as Stephen Moore. The police ran the license plate, which came back to a different driver registered to Philip Hall's mother. Philip Hall was a friend of Moore's and an acquaintance of Appellant's.
Appellant, who fit the description of one of the suspicious individuals, was walking on the other side of the street and keeping a very close eye on the police during the traffic stop of the gold vehicle. Prior the vehicle being stopped, Appellant had been walking by the vehicle. When the police made contact with Appellant, he gave them a false name. Appellant also asked the police if "Stephen" got "locked up."
Officers walked over to the dumpster to look for the other suspicious person. Near the dumpster, the police found a flesh-colored Halloween mask and a pair of dark colored gloves. The Halloween mask matched the mask worn by the shorter suspect from the Sunoco robbery. A short distance west of the mask, the police discovered a white Halloween mask with reddish synthetic hair. Wrapped inside the mask was a loaded .22 caliber
handgun. It was apparent that the masks and other items had been recently placed there, as it was approximately 7:20 a.m. and the ground was covered in dew but the masks and other items of interest were not.Trial Court Opinion, 6/24/15 at 1-3.
The police impounded the gold vehicle and obtained a search warrant. In the vehicle, the police found a black ski mask, a blue tote bag with white lettering, a green coat, and two pairs of faded blue jeans, which were consistent with the clothing worn and the bag used by the Sunoco robbers. Inside the ski mask was a long, red synthetic fiber similar to the reddish synthetic hair on the white Halloween mask. The police also found a packet of cigarettes in the vehicle, the color and markings of which matched the color and markings of cigarette butts recovered ... in front of the bank on the they day of the Sunoco robbery.
DNA was obtained from inside the Halloween masks. The police obtained a warrant to take hair and blood samples from Appellant so DNA testing and analysis could be conducted to determine if the DNA in either of the Halloween masks matched Appellant's DNA. Although the DNA sample from the white mask with the reddish synthetic hair was a mixture of DNA from more than one individual, Appellant's DNA matched the DNA of the main contributor to that mixture. DNA from the flesh-colored Halloween mask matched Philip Hall.
Appellant was subsequently arrested and charged with robbery, theft by unlawful taking, receiving stolen property, simple assault, conspiracy to commit those crimes, and recklessly endangering another person. Appellant filed an omnibus pretrial motion to suppress the evidence obtained pursuant to the search warrant. Following a hearing, the trial court denied Appellant's suppression motion. Appellant also filed a motion in limine to preclude evidence of his prior conviction for conspiracy to commit robbery with Stephen Moore, who was the driver of the gold vehicle impounded in this case. The trial court also denied that motion.
Appellant waived his right to a jury trial. Following a bench trial, the trial court convicted Appellant of all charges and sentenced him to an aggregate term of 5 to 12 years of imprisonment. Appellant thereafter filed timely post sentence motions, which the trial court denied. This timely appeal followed.
Appellant raises the following issues for our review.
I. Whether the trial court erred in denying [Appellant's] omnibus pre-trial motion?Appellant's Brief at 8 (unnecessary capitalization omitted).
II. Whether the trial court erred in denying [Appellant's] motion in limine filed on August 6, 2013 which sought to preclude the admission of a prior bad act?
III. Whether the evidence presented by the Commonwealth at trial was insufficient to establish the elements of each of the offenses charged?
IV. Whether the verdict of the jury was against the weight of the evidence to the extent it shocks one's sense of justice?
Appellant first argues that the trial court erred when it denied his motion to suppress physical evidence. We review the denial of a motion to suppress physical evidence 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.
[W]e 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.Commonwealth v. Houck , 102 A.3d 443, 455 (Pa. Super. 2014) (internal citations and quotations omitted).
Further, [i]t is within the suppression court's sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony.
A search warrant cannot be used as a general investigatory tool to uncover evidence of a crime. In re Casale , 512 Pa. 548, 517 A.2d 1260, 1263 (1986); Commonwealth ex rel. Ensor v. Cummings , 416 Pa. 510, 207 A.2d 230, 231 (1965). Nor may a warrant be so ambiguous as to allow the executing officers to pick and choose among an individual's possessions to find which items to seize, which would result in the general "rummaging" banned by the Fourth Amendment. See Commonwealth v. Santner , 308 Pa.Super. 67, 454 A.2d 24 (1982) (quoting Marron v. United States , 275 U.S. 192, 195, 48 S.Ct. 74, 72 L.Ed. 231 (1927)). Thus, Pa.R.Crim.P. 205 specifies the necessary components of a valid search warrant. The comment to Rule 205 provides, however, that even though general or exploratory searches are not permitted, search warrants should "be read in a common sense fashion and should not be invalidated by hypertechnical interpretations. This may mean, for instance, that when an exact description of a particular item is not possible, a generic description will suffice." Pa.R.Crim.P. 205 (cmt.). Embracing this approach, we have held that "where the items to be seized are as precisely identified as the nature of the activity permits ... the searching officer is only required to describe the general class of the item he is seeking." Commonwealth v. Matthews , 446 Pa. 65, 85 A.2d 510 (1971).
A warrant is defective when its explanatory narrative does not describe as clearly as possible those items for which there is probable cause to search. Grossman , 521 Pa. 290, 555 A.2d 896. In assessing the validity of a description contained in a warrant, a court must initially determine for what items there was probable cause to search. Id. at 900. "The sufficiency of the
description [in the warrant] must then be measured against those items for which there was probable cause. Any unreasonable discrepancy between the items for which there was probable cause [to search] and the description in the warrant requires suppression." Id.Commonwealth v. Rega , 933 A.2d 997, 1011-1012 (Pa. 2007).
Appellant's second issue challenges the admissibility of evidence. We note that "the admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion." Commonwealth v. Fransen , 42 A.3d 1100, 1106 (Pa. Super. 2012), appeal denied , 76 A.3d 538 (Pa. 2013) (citation omitted). In reviewing a court's decision to permit evidence of alleged prior bad acts, we note that it is impermissible to present evidence at trial of a defendant's prior bad acts or crimes to establish the defendant's criminal character or proclivities. See Pa.R.E. 404(b); Commonwealth v. Hudson , 955 A.2d 1031, 1034 (Pa. Super. 2008). Such evidence, however, may be admissible "where it is relevant for some other legitimate purpose and not utilized solely to blacken the defendant's character." Commonwealth v. Russell , 938 A.2d 1082, 1092 (Pa. Super. 2007) (citation omitted). It is well settled that "[e]ven if prejudicial information was considered by the trial court, a judge, as fact finder, is presumed to disregard inadmissible evidence and consider only competent evidence." Commonwealth v. Fears , 836 A.2d 52, 71 n.19 (Pa. 2003) (citation omitted).
Appellant next claims that he was incorrectly identified as the perpetrator of the crimes for which was convicted. The following standard governs our review of a challenge to the sufficiency of the evidence.
As a general matter, our standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. [T]he facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence. Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.Commonwealth v. Mauz , 122 A.3d 1039, 1040-41 (Pa. Super. 2015) (citation omitted).
The factfinder, 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. See Commonwealth v. Valentine , 101 A.3d 801, 805 (Pa. Super. 2014), appeal denied , 124 A.3d 309 (Pa. 2015). Furthermore, the Commonwealth may sustain its burden by means of wholly circumstantial evidence. See Commonwealth v. Diggs , 949 A.2d 873, 877 (Pa. 2008).
Lastly, Appellant argues that his convictions were against the weight of the evidence. A challenge to the weight of the evidence "concedes that the evidence is sufficient to sustain the verdict, but seeks a new trial on the ground that the evidence was so one-sided or so weighted in favor of acquittal that a guilty verdict shocks one's sense of justice." Commonwealth v. Orie , 88 A.3d 983, 1015 (Pa. Super. 2014), appeal denied , 99 A.3d 925 (Pa. 2014) (citation omitted).
When the challenge to the weight of the evidence is predicated on the credibility of trial testimony, our review of the trial court's decision is extremely limited. Generally, unless the evidence is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, these types of claims are not cognizable on appellate review. Moreover, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.Commonwealth v. Gibbs , 981 A.2d 274, 282 (Pa. Super. 2009) (internal quotes and citations omitted).
We have reviewed Appellant's issues raised on appeal, along with the briefs of the parties, the certified record and the applicable law. Having determined that the Honorable Marc F. Lovecchio's June 24, 2015 opinion ably and comprehensively disposes of Appellant's issues raised on appeal, with appropriate reference to the record and without legal error, we will affirm based on that opinion. See Trial Court Opinion, 6/24/15 at 5-19.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/4/2016
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