Com. v. Hines, T.

Opinion

J-S41027-14

NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TYRELL TAYLOR HINES, : : Appellant : No. 3196 EDA 2013

Appeal from the Judgment of Sentence October 17, 2013, Court of Common Pleas, Lehigh County, Criminal Division at No. CP-39-CR-0000022-2013

BEFORE: BOWES, DONOHUE and MUNDY, JJ.

MEMORANDUM BY DONOHUE, J.: FILED AUGUST 05, 2014

nt of sentence

entered following his conviction of three counts of persons not to possess

firearms, 18 Pa.C.S.A. § 6105(a)(1). We affirm.

On October 24, 2012, members of the Allentown Police Department

brother. The search warrant permitted a search for items related to the

distribution of controlled substances, including firearms and other weapons.

Application for Search Warrant, 10/24/12, at Attachment A. When the

officers entered the residence, they encountered Hines and his three

adolescent daughters in the living room. Detective Jack Gill removed Hines

to the kitchen where he explained the warrant to him. Hines immediately J-S41027-14

expressed his willingness to cooperate with the officers. As the search

proceeded, two handguns were recovered from two separate bedrooms,

along with various types of ammunition. The detectives then questioned

Hines about a specific firearm, a .9 caliber Baretta. Hines initially told the

detectives that the Baretta was in New Jersey. When the police told Hines

that they would transport him to New Jersey so that he could show them

where it was, Hines changed his story. After procuring a promise that he

would be allowed to remain in the house overnight with his daughters, Hines

told the police that the Baretta was in his vehicle, which was parked in the

driveway. After Hines executed a form consenting to the search of his car,

the police recovered the Baretta from a speaker box in the trunk of the car.

Other items were recovered from the search, including a digital scale,

glassine baggies, and a glass water pipe.

Hines was subsequently arrested. The initial criminal information filed

by the Commonwealth charged Hines with one count each of persons not to

possess firearms, firearms not to be carried without a license, receiving

stolen property, and possession of drug paraphernalia. Criminal

Information, 1/18/13, at 1-2. This information was later amended to

provide that Hines was being charged with three counts of persons not to

possess firearms. Amended Information, 5/8/13, at 1. On September 10,

2013, after a two day trial, Hines was convicted of all three counts of

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persons not to possess firearms.1 On October 17, 2013, he was sentenced

to an aggregate term of eight to 20 years of imprisonment. Hines filed a

post-sentence motion, which the trial court denied. This timely appeal

follows.

Hines presents the following issues for our review:

1. Was it a violation of the due process rights of [Hines] where only one count of persons not to possess was included on the original criminal information and the Commonwealth without a hearing or court approval[] filed an amended information which included three counts of persons not to possess a firearm?

2. Did the court abuse its discretion in denying

regarding drug dealing by [Hines] to be used at trial where the statements were more prejudicial than probative?

3. Is there a substantial question for which the Superior Court should grant allowance of appeal from the discretionary aspects of the sentence?

4. Did the court err in sentencing [Hines] on three counts of persons not to possess a firearm when only one count was approved by the magisterial district court making it a harsh and excessive sentence?

In his first issue, Hines argues that the trial court erred by allowing the

Commonwealth to file an amended information without providing due

1 The Commonwealth did not proceed with the remaining charges and formally withdrew them at the time of sentencing. N.T., 10/17/13, at 2.

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process protections, such as the opportunity to challenge the proposed

-13. Hines first questioned the amended

information immediately before the start of trial and after the jury was

empaneled. At that time, he indicated that prior to that day he had only

seen the original information, which listed only one count of persons not to

N.T., 9/9/13, at 4. The Commonwealth responded there was testimony at

the preliminary hearing regarding all three firearms, and that all three were

listed in the original information. Id.

explanation, Hines raised no further objection and trial proceeded on the

amended i

appellate review, a party must make a specific objection to the alleged error

before the trial court in a timely fashion and at the appropriate stage of the

proceedings; failure to raise such objection results in waiver of the

Commonwealth v. Akbar, 91 A.3d 227, 235

Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super. 2008).

Accordingly, because Hines did not object to the content of the amended

information, which detailed the charges for which Hines was about to be

tried, he has waived this issue for purposes of appeal.

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Even if we were not to find this issue waived, Hines would not be

entitled to relief. See Pa.R.Crim.P. 564. Rather, the purpose of Rule of

Criminal Procedure 5642

the charges, and to avoid prejudice by prohibiting the last minute addition of

Commonwealth v. Page, 965 A.2d 1212, 1223-24 (Pa. Super. 2009).

When a challenge is raised to an amended information, the salient inquiry is:

[w]hethe information involve the same basic elements and evolved out of the same factual situation as the

so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted.

Id. at 1224. In this case, the charges added in the amended information

were simply two more counts of a crime charged in the original information

and rise out of the same factual situation. Moreover, the record establishes

that at the preliminary hearing, Detective Gill testified as to all three

firearms recovered, not just the recovery of the Baretta, which was the

2 to be amended when there is a defect in form, the description of the offense(s), the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment, the court may grant such postponement of trial or other relief as is necessary in

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firearm identified as the basis of the persons not to possess charge in the

original complaint. See N.T., 12/26/12, at 2-4, 8-10. Hines was made

aware of the facts underlying the charges added in the amendment

information through this testimony, and so the purpose of Rule 564 was not

violated. Thus, even if Hines had timely objected, the amended information

was appropriate. At best, Hines might have been granted a short

continuance, but the evidence would have been the same. Accordingly,

In his second issue, Hines argues that the trial court erred in denying

his motion in limine to prohibit statements indicating that Hines was involved

motion in limine, [the appellate] court applies an evidentiary abuse of

discretion standard of review. It is well-established that the admissibility of

evidence is within the discretion of the trial court, and such rulings will not

Commonwealth v. Rivera, 983 A.2d 1211, 1228 (Pa. 2009).

At issue is a statement by Detective Gill that as the police executed

the search warrant, Hines stated that he obtained the two firearms found in

the house by trading drugs for them. N.T., 9/9/13, at 103. Hines argues

that alt

drugs for the firearms, this information was not relevant to the charges of

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no relevance in the determination as to whether Mr. Hines was in possession

-15. While

tion, we

disagree.

The threshold inquiry with admission of evidence is whether the evidence is relevant. Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference or presumption regarding the existence of a material fact. In addition, evidence is only admissible where the probative value of the evidence outweighs its prejudicial impact. Commonwealth v. Antidormi, 84 A.3d 736, 750 (Pa. Super. 2014). The

crime of which Hines was convicted is defined as follows:

A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.

18 Pa.C.S.A. § 6105(a)(1). The Commonwealth was required to establish,

inter alia, that Hines possessed the firearms found in his house. It would 3

3 The Commonwealth established that Hines had been convicted of an ance, Drug,

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would not be relevant to establishing that he, in fact, possessed the

firearms. However, Hines was living in the residence with his brother and

two of the firearms were found in different locations in the residence.

Therefore, to tie these guns to Hines, the Commonwealth had to establish

that Hines had constructive possession of these firearms. See

Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (holding

that illegal possession of a firearm may be shown by constructive

possession, defined as an inference arising from a set of facts that the

accused had the power to control the contraband and the intent to exercise

that control). Thus, the statement at issue is relevant because it helps

establish that Hines, rather than his brother, possessed the firearms. We

t this relevance outweighs

any potential prejudice to Hines, and so we will not disturb its ruling.

In his third and fourth issues, Hines challenges the sentence imposed.4

court sentenced him on three counts of persons not to possess firearms

when the original information charged him with only one count of this crime.

requirements of subsection (c)(2). See 18 Pa.C.S.A. § 6105(c)(2). Hines does not dispute that the Commonwealth established this element of the crime. 4 -conforming statement of reasons relied upon for appeal as required by Pa.R.A.P. 2119(f), offered in support of his fourth issue, which purports to challenge the discretionary aspects of his sentence.

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this as an issue addressed to the discretionary aspects of his sentence is

sentence because of the challenged amended information, and so he is

therefore challenging the legality of his sentence. See Commonwealth v.

Robinson, 931 A.2d 15, 21 (Pa. Super. 2007) (providing that challenges to

the legality of a sentence involve the authority of the court to impose a

simply the claim that the information was improperly amended, and that he

should only have been sentenced on one count of persons not to possess

firearms because only one count was included in the original information. 5 As discussed above, his challenge to the

amendment of the information is meritless. As the jury found Hines guilty of

all three counts, the trial court was permitted to impose sentences on all

three counts.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/5/2014

5 We note that Hines fails to include any citation to supportive authority, in violation of Pa.R.A.P. 2119(b).

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