Com v. Brown, J.

Opinion

J-S67027-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOSHUA BROWN

Appellant No. 3299 EDA 2015

Appeal from the Judgment of Sentence October 22, 2015 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009707-2012

BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.: FILED OCTOBER 27, 2016

Appellant, Joshua Brown, appeals from the judgment of sentence of

eleven and one-half to twenty-three months’ incarceration, three years of

consecutive probation, and five years’ probation concurrent to his

incarceration, imposed after his conviction for possession with intent to

deliver a controlled substance, possession of a controlled substance, and

possessing an instrument of crime.1 We affirm.

We adopt the following statement of facts, derived from the trial

court’s opinion, which in turn is supported by the trial record. See Trial

Court Opinion (TCO), 1/21/16, at 2-3.

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1 35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), and 18 Pa.C.S. § 907, respectively.

* Former Justice specially assigned to the Superior Court. J-S67027-16

On May 23, 2012, Philadelphia Police Detective Patrick Smith was

assigned to assist a Federal Bureau of Investigation (“FBI”) task force. The

task force had received information that Appellant may have been involved

in a New York double homicide and that he may have been located at 2005

West Mayfield Street in Philadelphia. Accompanied by FBI agents and police

officers, Detective Smith responded to that location and approached the

front door. He detected a strong odor of fresh marijuana emanating from

the residence.

Another officer knocked on the front door of the residence, at which

time Appellant engaged in a brief conversation with officers through a

partially open front window. Officers requested Appellant open the front

door, but Appellant fled further into the residence and up the stairs. Officers

could hear him breaking glass and throwing items around. Officers

attempted to gain entry through the front door but were unable to open it.

After that initial interaction, though the front window, Detective Smith

observed a handgun lying on a couch, in plain view. Another officer moved

the curtain to maintain the line of sight.

After five to ten minutes, Appellant allowed officers inside. Thereafter,

Philadelphia Police Officer Joseph Hanson apprehended Appellant as he

opened the door. Officers conducted a protective sweep, secured the

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residence, and apprehended a woman on the second floor.2 Appellant told

Officer Hanson his name was Jamie Ellis and gave 2005 West Mayfield Street

as his home address.

With Appellant in custody, officers obtained a search warrant for the

property and executed it later that same day. Police seized a loaded black

.45 caliber handgun from the couch; two bags of marijuana; fifty-four

marijuana plants, twelve from the living room and the rest from the second

floor; a scale; a PH tester; an electric bill in the name of Nakea Williams and

bearing the 2005 West Mayfield Street address; and $230.96.

In addition to the facts discussed above, Appellant testified that he

had gone to the residence May 23, 2012 around 3:00 or 4:00 a.m. to visit

Williams, with whom he was having a relationship, and slept at the

residence. Appellant testified that he did not live at the residence and that

he had not observed the gun or any drugs due to the early hour of his

arrival.

Prior to trial, on December 14, 2013, Appellant filed an Omnibus Pre-

Trial Motion seeking to suppress all evidence recovered from the residence,

as they were the fruits of an illegal search and arrest. On March 27, 2014,

Appellant argued this motion before the suppression court. Appellant

2 It is not clear from the record whether this woman was in fact Nakea Williams, whose residence this was, or whether she was detained or released in connection with this case.

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averred that police illegally attempted to gain entry to the property and

should not have moved a curtain blocking their view into the residence, and

that the smell of marijuana from the home alone did not constitute exigent

circumstances. At the conclusion of testimony and argument, the

suppression court continued the hearing to review case law submitted by

Appellant. See Notes of Testimony (N. T.), 3/27/14, at 32-36.

On May 15, 2014, the suppression court denied Appellant’s Motion

concluding that, based upon the circumstances, officers were permitted to

conduct a protective sweep of the residence. See N. T., 5/15/14, at 6-7.

On August 18, 2015, the case proceeded to waiver trial, which

concluded the same day. The trial court found Appellant guilty of the above

charges. The court sentenced Appellant to the above-enumerated sentence

on October 22, 2015.

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The trial court issued a responsive opinion.

On appeal, Appellant challenges the legality of the search as well as

the sufficiency and weight of the evidence. See Appellant’s Brief, at 4. For

the following reasons, Appellant has waived consideration of his claims.

Appellant first claims that the court erred in denying his motion to

suppress. We discern no error in the court’s decision.

The Pennsylvania Supreme Court has held that “[a]ny issues not

raised in a [Rule] 1925(b) statement will be deemed waived.”

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (quoting

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Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). Issues that are

only generally raised are also waived. See Pa.R.A.P.1925(b)(4)(ii) (“The

[1925(b)] Statement shall concisely identify each ruling or error that the

appellant intends to challenge with sufficient detail to identify all pertinent

issues for the judge.”). A Rule 1925(b) statement “which is too vague to

allow the court to identify the issues raised on appeal is the functional

equivalent of no . . . Statement at all.” Lineberger v. Wyeth, 894 A.2d

141, 148 (Pa. Super. 2006).

In support of his motion, Appellant challenged, on several grounds, the

police officers’ protective sweep of the residence. However, Appellant

seemingly abandoned this claim on appeal. In Appellant’s Pa.R.A.P. 1925(b)

Statement, Appellant asserted that “[the] stop and search of Mr. Brown

was illegal.” (emphasis added). In its responsive opinion, the trial court

addressed solely the legality of a search of Appellant’s person, concluding

that Appellant’s claim was moot because “no evidence presented indicat[ed]

that police seized anything from his person when they detained him.” TCO,

at 6. Now, in his brief, Appellant reprises the argument raised at the

suppression hearing by enumerating two allegedly illegal searches: first,

officers “peering through a window” into the home and second, an officer

moving the window’s curtain. See Appellant’s Brief, at 8.

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In the instant case it is apparent that the statement was too vague to

allow the trial court to properly address the merits of Appellant’s argument,

and Appellant has waived it for purposes of appeal.3

In his second issue, Appellant argues that the verdict was against the

weight of the evidence; however, he has waived this argument for the

purposes of appeal. Pennsylvania law is well settled that a weight claim

must be “preserved either in a post-sentence motion, by a written motion

before sentencing, or orally prior to sentencing.” Commonwealth v.

Thompson, 93 A.3d 478, 490 (Pa. Super. 2014), (quoting Commonwealth

v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012)); see also Pa.R.Crim.P.

607(A). The trial court opinion accurately reflects that Appellant did not file

a pre- or post-sentence motion preserving a weight of the evidence claim,

3 Even if Appellant had not waived this argument, there was no error in the denial of Appellant’s motion. Here, police properly viewed evidence from the curtilage. See Commonwealth v. Eichler, 133 A.3d 775, 783-784 (2016) (noting officers may enter curtilage in the course of legitimate investigations, if they confine the search to areas visitors may reasonably be expected to go); see also Commonwealth v. Gibson, 638 A.2d 203, 207 (“Police have the power to knock on the doors of the citizens of this Commonwealth for investigatory purposes”). Additionally, officers were permitted to move the curtain for the limited purpose of determining whether the previously viewed weapon remained on the couch and ensuring their safety in the process of investigating a double homicide; smelling the strong smell of fresh marijuana coming from the home; and hearing Appellant smashing things upstairs. See Commonwealth v. Bostick, 958 A.2d 543, 558 (Pa. Super. 2008) (holding that defendant’s furtive movements in home where drug activity was suspected justified exigent circumstances in warrantless entry).

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nor did he argue such a claim orally prior to sentencing. Thus, he has

waived this argument on appeal.

In his sole remaining claim, Appellant argues that the evidence was

insufficient to support his convictions. He has waived this argument. In

Appellant’s Pa.R.A.P. 1925(b) Statement, he stated that the evidence was

insufficient to support his convictions because his testimony was credible, a

weight claim in the guise of a sufficiency argument. See Commonwealth

v. Small, 741 A.2d 666, 672 (Pa. 1999) (holding that challenges to the

sufficiency of the evidence which actually go to the weight of the evidence

fail); see also Castillo, 888 A.3d at 780 (noting arguments not raised in

1925(b) statement are waived for purposes of appeal). In his brief, he now

attempts to present a proper sufficiency argument, namely that the

Commonwealth failed to prove constructive possession of the marijuana

plants.4 Consequently, Appellant has waived his sufficiency argument for

purposes of appeal. ____________________________________________

4 Appellant has abandoned the argument found in his Pa.R.A.P. 1925(b) Statement that the evidence was insufficient to support his conviction for Possession of an Instrument of Crime. In his brief, he raises no argument regarding the gun, only argument regarding constructive possession of the marijuana. With regard to Appellant’s claim that the evidence was insufficient to support his conviction for possession of marijuana, even if it was not waived, it is meritless. Constructive possession may be established even absent a marital relationship if the contraband is found in an area of joint control and equal access. See Commonwealth v. Mudrick, 507 A.2d 1212, 1214 (Pa. 1986) (noting that shared access and control is the critical factor in determining constructive possession); see also Commonwealth v. Jackson, 659 A.2d 549, 550 (Pa. Super. 1995) (noting siblings had equal (Footnote Continued Next Page)

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Accordingly, Appellant has failed to preserve any claims on appeal.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/27/2016

_______________________ (Footnote Continued)

access to contraband in kitchen cabinets and hallway closets). In the instant case, Appellant had equal access to and control of the fifty-four marijuana plants contained within the living room and second floor middle bedroom, where Appellant had been present at the residence for hours, was involved in a relationship with the homeowner, listed the residence as his home address on police paperwork, and attempted to destroy evidence of the operation by “rummaging” and “breaking glass.”

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