J-S10012-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : COLBY QUINN MUMMAW : : Appellant : No. 335 MDA 2024
Appeal from the Judgment of Sentence Entered September 28, 2023 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0003396-2022
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : COLBY QUINN MUMMAW : : Appellant : No. 365 MDA 2024
Appeal from the Judgment of Sentence Entered September 28, 2023 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0003397-2022
BEFORE: BOWES, J., OLSON, J., and SULLIVAN, J.
MEMORANDUM BY BOWES, J.: FILED: APRIL 11, 2025
Colby Quinn Mummaw appeals from the aggregate sentence of ten to
twenty years in prison stemming from his two convictions for robbery. We
affirm.
The above-captioned cases were filed after Appellant robbed two
separate Turkey Hill convenience stores in Lancaster County. The trial court
summarized the factual background of this matter thusly: J-S10012-25
On June 20, 2022, at approximately 11:01 p.m., the Ephrata Police Department responded to a robbery at a Turkey Hill store located at 903 South State Street, Ephrata, Pennsylvania . . . . From . . . Turkey Hill employee Leah Horst’s (“Horst”) statement, police were able to ascertain that the perpetrator was a man approximately five feet seven inches to five feet ten inches tall, pointing a black and silver pistol and wearing a neon green knit hat, a grey camo neck gaiter covering his face, sunglasses, black gloves, a maroon sweatshirt, dark pants, black shoes, a black backpack with reflective material on the shoulder straps and a red emblem on his back, and a smaller grey backpack on his front. The perpetrator ordered Horst to lock the front doors, and had her walk to the office where she was commanded to lay down wherein her hands were zip-tied behind her back. Thereafter, the perpetrator walked Horst to the cashier’s station where the safe was located and Horst verbally provided the information necessary to open the safe and once opened, the perpetrator removed $391.00, and left through the side door located in the office. [Horst was able to contact her boyfriend, who came to the store through the back and removed the zip ties. She then called the police and gave a statement upon their arrival.]
....
On July 21, 2022, the Ephrata Police Department was dispatched to the Turkey Hill store located at 3585 Rothsville Road, Ephrata, for an armed robbery that had just occurred. At approximately 4:20 a.m. the perpetrator pointed a black and silver pistol at . . . employee Douglas Faulk (“Faulk”) and said, “Give me your money.” Faulk believed the gun to be fake[, asked if the robbery was a joke,] and began walking toward the man when the perpetrator shot him three times in the torso [with either BB’s or pellets] and then ran out of the Turkey Hill towards James Avenue. The perpetrator was described as a white man, [five] feet eight inches tall, wearing a grey and white tweed long sleeve shirt, dark pants, a dark green knitted hat, black shoes, black gloves, sunglasses, a neon green gaiter, and he was carrying a red drawstring bag with white lettering on it. Police were able to recover a BB and a pellet on the floor which they determined were shot out of an air gun or a CO2 gun. Shortly thereafter, at 4:36 a.m.[, an officer] observed . . . Appellant . . . [one-third of a mile] away, parked in his 2005 white Ford Expedition in a Wawa store parking lot located at 602 South Reading Road . . . [The officer spoke with Appellant and was aware that he was a person of
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suspicion as to the June robbery. However, the officer did not observe in plain view any items related to the robbery that had just occurred in Appellant’s vehicle. Appellant therefore was not apprehended at that time]. During their investigation, police viewed surveillance footage from the Wawa store that showed Appellant’s white Ford Expedition traveling on Niss Avenue away from the Turkey Hill before turning into the Wawa parking lot. Police were able to locate video from a business across the street from the Turkey Hill that showed Appellant’s vehicle traveling east at 4:28 a.m. and turning left onto James Avenue, and police were also able to obtain video footage from 1010 James Avenue, a private residence, which captured Appellant’s vehicle traveling past the home, away from the Turkey Hill, towards the Wawa.
Trial Court Opinion, 5/10/24, at 1-4 (internal citations omitted).
On July 20, the day before the second robbery, Agent Jay Williams of
the Pennsylvania Board of Probation and Parole (“PBPP”) was assigned a new
list of persons to supervise, which included Appellant. Agent Williams
contacted Appellant to schedule a home visit so that the agent could introduce
himself. Appellant responded via text message that he would be free on July
22. Later in the morning of the 20th, Agent Williams received a call from
Detective Quinn1 of the Ephrata Police Department. The detective informed
Agent Williams that Appellant was suspected in several local burglaries,
including the June incident at Turkey Hill, though he did not give substantial
detail into the events at that time. Agent Williams told Detective Quinn that
he was going to be visiting Appellant’s house on the 22nd, and there was no
discussion of police participation at that time.
____________________________________________
1 Detective Quinn’s first name is not contained within the record.
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On the morning of July 22, while Agent Williams was performing home
visits of other individuals whom he supervised, he received text messages
from Detective Brandon Bartholomew of the Ephrata Police Department. The
detective stated that Appellant’s brother had informed law enforcement that
Appellant was keeping a firearm in his living room and that he had recently
gone to Philadelphia to procure fentanyl. Based on this information, and
fearing officer safety, Agent Williams contacted his supervisor, Christopher
McGrath, and sought the support of additional PBPP agents for the home visit
that day. Supervising Agent McGrath also authorized a limited search of
Appellant’s residence for the purported weapons and fentanyl.
Shortly before the home visit at Appellant’s residence, Agents Williams
and McGrath met with officers from the Ephrata Police Department at a nearby
Wawa store. The officers decided that they would not be involved in the
search, but that they would remain in the vicinity to provide assistance if
required. The agents then made contact with Appellant at his house and
detained him. Upon being asked if he would pass a drug test, Appellant
admitted that he had smoked marijuana the day before, which constitutes a
violation of the conditions of his supervision. After the agents placed Appellant
in handcuffs for their safety, they began a search of the residence, discovering
in the living room a CO2-operated firearm and a shoebox containing a powdery
substance. The agents immediately ceased the search upon observing these
items and contacted law enforcement. They then placed Appellant under
arrest and transported him to the local jail for his parole violations.
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After being notified of the PBPP agents finding the shoebox and firearm,
Detective Bartholomew of the Ephrata Police Department obtained a search
warrant for Appellant’s residence relating to drugs and drug paraphernalia.
Officers conducted a search pursuant to the warrant, wherein they discovered
a scale with residue on it, various needles, glass bongs, and 106 baggies of
fentanyl. They further discovered a backpack, which appeared to contain
evidence of the Turkey Hill robberies. Accordingly, another detective with the
department obtained a second search warrant for evidence relating to the
robberies. In the backpack, they discovered a number of items of evidentiary
value, including another CO2-operated handgun, a drawstring bag, and
various items worn by the perpetrator of the two robberies. Additionally, in
Appellant’s vehicle parked in the garage, they found a package of heavy-duty
zip ties matching the brand that was used to restrain Horst.
Based on the above, and pertinent here, Appellant was charged with
multiple offenses at two separate dockets, limited to his involvement in the
two Turkey Hill incidents. Appellant filed an omnibus pretrial motion to
suppress the evidence seized from his residence, alleging that the search
warrants were invalid because they relied on the improper initial warrantless
search conducted by the PBPP agents. The trial court denied the motion
following a hearing. The Commonwealth later amended the criminal
information in each case so that Appellant faced solely one robbery count in
each matter.
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Appellant proceeded to a consolidated jury trial, wherein both Horst and
Faulk testified. They could not identify Appellant as the perpetrator because
on each occasion the gunman was fully masked. They nonetheless both stated
that they believed the perpetrator was a white male based on his voice, build,
and small portions of his skin that were visible. At its conclusion, the jury
convicted Appellant of both robbery counts. The court thereafter sentenced
him to a consecutive five to ten years of incarceration on each conviction.
Appellant timely appealed each case following the filing of post-sentence
motions.2 Both Appellant and the trial court complied with the strictures of
Pa.R.A.P. 1925. We consolidated the matters sua sponte.
Appellant presents two issues for our review, which we have reordered
for ease of disposition:
1. Did the court err in finding sufficient evidence to [sic] for convictions on robberies where no identifications were made and one offense did not meet the elements of the offense?
2. Did the suppression court err in denying suppression of illegally seized evidence after warrantless parole search, illegal warrants, rendering all evidence fruit of the poisonous tree?
Appellant’s brief at 6 (some capitalization altered).
2 The appeals were filed prior to entry of any order denying the post-sentence
motions. Accordingly, this Court issued a rule for Appellant to show cause why the matters should not be dismissed as premature, and which directed him to praecipe the trial court for entry of an order since more than 120 days had elapsed with no decision on the motions. Counsel timely submitted a praecipe, and the clerk’s office entered an order denying the motions by operation of law pursuant to Pa.R.Crim.P. 720. Accordingly, this appeal is properly before us.
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In his first claim, Appellant challenges the sufficiency of the evidence
supporting his robbery convictions. We consider Appellant’s position mindful
of the following well-settled standard of review:
When reviewing a [sufficiency] claim, we face a question of law. Accordingly, our standard of review is de novo. We view the evidence in the light most favorable to the Commonwealth, as the verdict winner, and we draw all reasonable inferences therefrom in the Commonwealth’s favor. Through this lens, we must ascertain whether the Commonwealth proved all of the elements of the crime at issue beyond a reasonable doubt.
The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, we may not weigh the evidence and substitute our judgment for the factfinder. Any doubts regarding a defendant’s guilt may be resolved by the factfinder, unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact may be drawn from the combined circumstances.
Commonwealth v. Roberts, 293 A.3d 1221, 1223 (Pa.Super. 2023)
(cleaned up). Further, “when considering the sufficiency of the evidence, we
must consider both properly and improperly admitted evidence.”
Commonwealth v. Edwards, 177 A.3d 963, 970 n.13 (Pa.Super. 2018)
(citation omitted).
The two convictions in question were for robbery, defined as follows:
(1) A person is guilty of robbery if, in the course of committing a theft, he:
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury[.]
18 Pa.C.S. § 3701(a)(1)(ii).
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Appellant mounts a two-pronged attack against his convictions. First,
he avers that his identity was never proven because neither of the Turkey Hill
employees involved in the incidents could recognize him as the assailant, and
the suspect was not apprehended immediately after either robbery. See
Appellant’s brief at 18-19. Second, he contends that the conviction arising
from the July incident cannot stand because employee Faulk was not placed
in fear. Id. at 20. Appellant avers that this was evidenced by the fact that
Faulk asked the suspect if the robbery was a joke and continued to walk
toward him despite being shot in the torso with several BB’s and pellets. Id.
at 19-20.
In addressing the first aspect of this issue, the trial court noted that
there was substantial circumstantial evidence linking Appellant to the crimes.
Beyond the similar description of the assailant given by Horst and Faulk, the
court highlighted that a litany of incriminating items were retrieved from either
Appellant’s house or his vehicle, including the following: a backpack, two
drawstring bags, two lime green neck gaiters, Chopper brand sunglasses,
black gloves, an olive green beanie, a revolver-style BB/pellet gun, zip ties,
and CO2 air cartridges and pellets for the firearm. See Trial Court Opinion,
5/10/24, at 12. The court also recounted that Appellant was near the scene
of the second robbery based on the encounter with an officer at a Wawa store
only one-third of a mile away, as well as the surveillance footage from several
sources showing Appellant’s vehicle traveling from an area near the Turkey
Hill to the Wawa during that time. Id. at 13. It therefore concluded that
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“[w]hen viewed in the light most favorable to the Commonwealth, the
circumstantial evidence overwhelmingly points to Appellant as the perpetrator
of the two Turkey Hill robberies.” Id.
For its part, the Commonwealth adds that it met its burden of proving
that Appellant threatened each clerk with immediate serious bodily injury
during each robbery. See Commonwealth’s brief at 25. It notes that
“[r]obbery does not exclusively require that the victim be placed in fear of
immediate serious bodily injury – the threat to do so is sufficient.” Id. (citing
Commonwealth v. Thomas, 546 A.2d 116 (Pa.Super. 1998)). The
Commonwealth also maintains that a BB gun is a weapon “capable of
producing death or serious bodily injury[.]” Id. at 26.
Upon review, we agree with the trial court and the Commonwealth that
Appellant’s convictions were supported by sufficient evidence. Although
circumstantial, there was abundant evidence connecting Appellant to the
crimes, as shown by the multitude of items obtained from Appellant’s
residence and vehicle one day after the second robbery. This includes the
clothing worn by Appellant during each encounter and the weapon used.
Appellant’s connection to the crimes was further supported by the testimony
of the clerks at trial and the video surveillance evidence.
Additionally, we find that even if Appellant did not actually place Faulk
in fear of imminent serious bodily injury, that is not fatal to his conviction.
The testimony established that Appellant nevertheless threatened Faulk with
serious bodily injury by pointing a BB gun at him and shooting him with it.
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See, e.g., Commonwealth v. Shaw, 203 A.3d 281, 284 (Pa.Super. 2019)
(“This Court has held that both a handgun and a BB gun are capable of causing
serious bodily injury or death.”). Accordingly, the jury was within its rights to
conclude that Appellant satisfied all the elements of robbery. No relief is due.
Appellant next contends that the trial court erred in denying his motion
to suppress. In that vein, we have stated:
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. We are bound by the suppression court’s factual findings so long as they are supported by the record; our standard of review on questions of law is de novo. Where, as here, the defendant is appealing the ruling of the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted. Our scope of review of suppression rulings includes only the suppression hearing record and excludes evidence elicited at trial.
Commonwealth v. Davis, 241 A.3d 1160, 1171 (Pa.Super. 2020) (citation
omitted).
Our law has recognized that “probationers and parolees have limited
Fourth Amendment rights because of a diminished expectation of privacy.”
Commonwealth v. Rosendary, 313 A.3d 236, 241 (Pa.Super. 2024)
(citation omitted). We have further summarized:
[S]tate parole agents’ authority and duties with respect to parolees are prescribed by two sections of the Prisons and Parole Code. Section 61[81] declares agents to be peace officers and provides them with police power to arrest without warrant any parolee under supervision for violating parole conditions. Section 61[82] deems parole agents to be in a “supervisory relationship with their offenders,” aimed at assisting parolees in rehabilitation
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and reassimilation and protecting the public. This section further outlines the procedures and requirements for agents to search the person and property of offenders and provides that such searches must comport with the protections of the United States and Pennsylvania Constitutions. Another provision prevents the exclusion of evidence from parole or criminal proceedings based solely on a violation of the statute.
Id. at 242 (cleaned up). Pursuant to the relevant statute, “[a] property search
may be conducted by an agent if there is reasonable suspicion to believe that
the real or other property in the possession of or under the control of the
department-supervised offender contains contraband or other evidence of
violations of the conditions of supervision.” 61 Pa.C.S. § 6182(d)(2). Despite
this authority, agents “may not act as ‘stalking horses’ for the police,” who
are subject to higher suspicion standards before performing searches. See
Commonwealth v. Mathis, 173 A.3d 699, 706 (Pa. 2017).
Appellant argues that the search warrants were invalid since they
stemmed from an illegal parole search by the PBPP agents. See Appellant’s
brief at 15. He highlights that before the agents came for the home visit, they
were contacted by Ephrata police and specifically advised that law
enforcement was investigating Appellant for several robberies. Id. Appellant
contends that based on this information, “[s]tate parole switched hats with
law enforcement,” and that “[b]ecause neither clerk from the Turkey Hill
robberies [was able to] positively identify Appellant, the Commonwealth’s
case was built on this series of illegal searches.” Id. at 16.
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In its Rule 1925(a) opinion, the trial court thoroughly and cogently
analyzed this issue, first detailing the facts recounted above surrounding the
PBPP’s detention of Appellant. Afterward, the court opined:
In [Appellant]’s case, Agent Williams knew before arriving that he would be conducting a search for a firearm for officer safety when he got to Appellant’s home, based on his reasonable suspicion that Appellant had a weapon in his home. Agent Williams obtained permission to search Appellant’s home for weapons from his supervisor, Agent McGrath. In obtaining that permission, Agent McGrath determined there was reasonable suspicion to believe Appellant possessed a weapon based on the information from police relayed to him by Agent Williams, and obtained from a reliable source, Appellant’s brother.
Moreover, the second drugs were located, the search was stopped and a search warrant was obtained, and a second search warrant was obtained by police for items relating to the robberies. At no time did Agents Williams and McGrath participate in the searches for drugs and robbery items as they had left the scene with the Appellant to charge him with the violation of . . . his [parole]. The [parole] officers did not “switch hats” and act as police officers, they had reasonable suspicion that Appellant may be armed, and as such, the initial search was properly conducted. The court did not err in denying Appellant’s suppression motion; the issue is without merit and denied.
Trial Court Opinion, 5/10/24, at 23 (internal citations omitted).
The court’s factual findings are supported by the record and its legal
conclusions drawn from those facts are correct. See Davis, 241 A.3d at 1171.
The PBPP agents plainly had reasonable suspicion that there would be
“contraband or other evidence of violations of the conditions of supervision”
in Appellant’s residence, based on the information provided by Appellant’s
brother and law enforcement. See 61 Pa.C.S. § 6182(d)(2). The initial search
for those items was thus proper.
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Furthermore, Appellant has not convinced us that the agents were
acting as stalking horses on behalf of the local police, despite the fact that
agents and officers were in communication prior to the search. The record
confirms that Agent Williams scheduled a home visit at Appellant’s residence
for July 22, 2022, prior to any contact from police. Although his original intent
was to meet Appellant at his home, he gained approval from his supervisor to
first perform a limited search for weapons and fentanyl for the safety of
himself and other agents on scene. Once those were discovered, the search
was discontinued and Appellant was transported to the jail. The Ephrata Police
Department took complete control over the investigation and then obtained
two additional warrants, conducting the searches that revealed evidence
linking Appellant to the robberies. There was no evidence that the PBPP
agents had any involvement in the subsequent searches or that their intent
was to discover evidence relating to the robberies. In short, the court did not
err in denying Appellant’s request to suppress.
For the reasons above, we have no cause to disturb Appellant’s
judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 4/11/2025
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