Com. v. Nowlin, A.

• Court: Superior Court of Pennsylvania
• Decided: May 26, 2017
• Docket: Com. v. Nowlin, A. No. 406 WDA 2016
• Status: Unpublished

Opinion

J-S08011-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ALLEN LEVAR NOWLIN

Appellant No. 406 WDA 2016

Appeal from the Judgment of Sentence dated January 30, 2015 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0002119-2012

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.

MEMORANDUM BY SOLANO, J.: FILED MAY 26, 2017

Pro se Appellant Allen Levar Nowlin appeals nunc pro tunc from the

judgment of sentence entered following his convictions of illegal possession

of a firearm and carrying a firearm without a license.1 We affirm.

This case arises out of an undercover police operation involving a

confidential informant, Troy Jukes.2 Prior to trial, Appellant sought to

suppress evidence, including the gun he was accused of possessing, on the

ground that the evidence was the fruit of illegally intercepted phone calls he

____________________________________________ 1 18 Pa.C.S. §§ 6105, 6106. 2 Appellant was also charged with drug offenses in connection with this investigation. Prior to his trial, he moved to sever the drug charges from the gun charges, and the trial court granted that motion. Appellant also successfully moved to exclude any evidence of the drugs at his trial for the weapons offenses. J-S08011-17

had with Jukes. Appellant alleged that Jukes had not consented to the

intercepts. Appellant filed a pro se motion to suppress, and each of the two

attorneys who represented him also filed motions to suppress. All of the

motions were based on the same theory. The trial court, after several

hearings on the issue, concluded that Jukes had provided valid consent and

denied the motions to suppress.

Appellant was tried by a jury from September 18-19, 2014. At trial,

the parties stipulated that Appellant had prior felony convictions that

precluded him from possessing a firearm; Appellant did not have a

concealed weapons permit and his convictions precluded him from obtaining

such a permit; and the firearm at issue was operable. N.T., 9/18/14, at 23-

24. The only contested issue was whether Appellant possessed the firearm.

The Commonwealth’s witnesses testified as follows. In the early

morning hours of September 7, 2012, members of the Altoona Police

Department narcotics and vice unit, along with other law enforcement

officers, conducted a surveillance operation in the parking lot of Walmart

Plaza. Undercover Detective Sergeant Troy Johannides drove confidential

informant Troy Jukes3 to the parking lot that night. Jukes exited the car and

waited for Appellant to come out of the Walmart. Once Appellant came out,

he and Jukes walked to Appellant’s car. Inside the car, Jukes saw a gun in ____________________________________________ 3 Jukes was facing felony drug charges and hoped that by cooperating with the police he could avoid jail time. N.T., 9/18/14, at 73-74.

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Appellant’s waistband. He left the car and told police about the gun. He

then returned to Appellant’s car a second time. After Jukes again returned

to Detective Johannides car, the detective instructed the arrest team to

apprehend Appellant. N.T., 9/18/14, at 45-53, 75-80, 160-65.

As Appellant drove out of the Walmart parking lot, several police cars,

using their lights and sirens, pursued him. Appellant’s car accelerated, and

Corporal Nathan Snyder, who was immediately behind Appellant’s car in a

marked police car, saw an object fly out of the passenger side window of

Appellant’s car. Corporal Snyder saw sparks when the object hit the ground,

and when he got closer, he saw that the object was a semiautomatic pistol.

Corporal Snyder radioed other officers to inform them of the gun and

continued to pursue Appellant. Appellant’s vehicle accelerated, reaching a

speed of 120 miles per hour. Appellant stopped as he approached spike

strips deployed by the police. Appellant, who was the only person in the car,

was arrested. N.T., 9/18/14, at 53-57, 98-107.

Officer Thomas Venios was in the area and responded to the radio call

regarding the discarded firearm. Within a minute and a half of receiving the

call, he arrived in the area where Corporal Snyder had seen the object come

out of Appellant’s car. Officer Venios found the gun, as well as a magazine

and two loose bullets, in that area. The gun was significantly damaged.

Police recovered a partial palm print from the gun. They were not able to

definitively include or exclude Appellant as the source of the print, because

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the palm print they had for Appellant was incomplete and of poor quality.

Police did not find a match for the palm print in the Automated Fingerprint

Identification System (“AFIS”) database. The gun, magazine, and bullets

were introduced into evidence at trial. N.T., 9/18/14, 32-33, 128-43.

Appellant testified in his own defense, conceding that he led the police

on a high-speed chase on the morning of September 7, 2012, but denying

that he possessed a gun or threw a gun out of his car window that morning.

He also put on the pants he had been wearing that night, which were very

loose in the waist. N.T., 9/18/14, at 195-97.

At the conclusion of the trial, the jury found Appellant guilty of both

weapons charges. On January 30, 2015, the trial court imposed an

aggregate sentence of eight and one-half to seventeen years’ incarceration.4

On February 9, 2015, Appellant filed a timely post-sentence motion. On

April 15, 2015, the trial court issued an opinion and order denying

Appellant’s post-sentence motion. Appellant did not file a timely notice of

appeal.

____________________________________________ 4 Appellant cites 42 Pa.C.S. § 9712.1(a) in his brief. That statute provided for a mandatory minimum sentence of five years’ incarceration for any person convicted of certain violations of the Controlled Substance, Drug, Device and Cosmetic Act if, at the time of the offense, the person was in physical possession or control of a firearm. The statute has been declared unconstitutional. Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015). Appellant was not sentenced under Section 9712.1(a), and he does not argue that his sentence was illegal. Section 9712.1(a) is not relevant to the convictions at issue in this appeal.

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On September 14, 2015, Appellant filed a Motion for Appeal Nunc Pro

Tunc. The trial court granted that motion on January 25, 2016, and ordered

Appellant to file a notice of appeal within twenty days. Appellant complied

with that order by filing a notice of appeal on February 11, 2016.

On March 31, 2016, Appellant filed a “Notice of Request to Proceed Pro

Se” and a “Notice of Request for a Grazier hearing.” On April 6, 2016, this

Court ordered the trial court to “conduct a colloquy of Appellant pursuant to

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), in order to determine

if Appellant desires to proceed pro se and, if so, if such request to proceed

pro se is knowing, voluntary, and intelligent.” The trial court complied with

this order, held a Grazier hearing, and determined that Appellant’s waiver

of counsel was valid.

Appellant raises the following issues in his pro se brief:

1) Whether the Common Pleas Court of Blair County, erred by failing to suppress or exclude the firearm that [Appellant] was charged with?

2) Whether the Common Pleas Court of Blair County, erred by failing to exclude a firearm that was not found in the possession of [A]ppellant?

3) Whether the Common Pleas Court of Blair County, erred by allowing into evidence a firearm that was found in a roadway against [A]ppellant?

4) Whether the District Attorney’s Office of Blair County, committed prosecutorial misconduct, when it introduced evidence against [A]ppellant that could not be attributed to him or found in his possession?

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Appellant’s Brief at 4 (pagination added). In short, Appellant claims that the

firearm should not have been admitted into evidence because the

Commonwealth did not prove he possessed it.

Our rules of appellate procedure provide that “[i]ssues not raised in

the lower court are waived and cannot be raised for the first time on

appeal.” Pa.R.A.P. 302(a). “This requirement bars an appellant from raising

‘a new and different theory of relief’ for the first time on appeal.”

Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super. 2016) (citation

omitted), appeal denied, 425 MAL 2016 (Pa. Nov. 22, 2016).

Appellant did file several pretrial motions to suppress the gun, but he

never argued in those motions that the gun was inadmissible because there

was insufficient evidence linking him to it. Instead, Appellant contended

that the gun was the fruit of illegally intercepted phone conversations.

Because Appellant did not argue in the trial court that the gun was

inadmissible because there was insufficient proof he possessed it, his

argument of that issue on appeal is waived. See Phillips, 141 A.3d at 522;

Commonwealth v. Thur, 906 A.2d 552, 566 (Pa. Super. 2006) (“When a

defendant raises a suppression claim to the trial court and supports that

claim with a particular argument or arguments, the defendant cannot then

raise for the first time on appeal different arguments supporting

suppression”), appeal denied, 946 A.2d 687 (Pa. 2008).

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Even if it were properly preserved, Appellant’s argument is meritless.

Our standard of review is deferential: “The admission of evidence is solely

within the discretion of the trial court, and a trial court’s evidentiary rulings

will be reversed on appeal only upon an abuse of that discretion.”

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (quotation

marks and citations omitted), cert. denied, 137 S. Ct. 92 (2016). “[A]n

abuse of discretion is not merely an error of judgment; rather, discretion is

abused if in reaching a conclusion, the law is overridden or misapplied, or

the judgment exercised is manifestly unreasonable, or it is the result of

partiality, prejudice, bias or ill-will, as shown by the evidence or the record.”

Commonwealth v. Selenski, ___ A.3d ___, ___, 2017 WL 1024606, *4

(Pa. Super. 2017) (citation, quotation marks, and brackets omitted).

In general, “[a]ll relevant evidence is admissible, except as otherwise

provided by law.” Pa.R.Evid. 402. Evidence is relevant if “it has any

tendency to make a fact [of consequence] more or less probable than it

would be without the evidence.” Pa.R.Evid. 401. “[T]he threshold for

relevance is low due to the liberal ‘any tendency’ prerequisite.” Brady v.

Urbas, 111 A.3d 1155, 1162 (Pa. 2015) (emphasis in original; citing

Pa.R.Evid. 401); Selenski, ___ A.3d at ___, 2017 WL 1024606 at *5. Real

evidence, such as “[p]istols, fruits of the crime, clothing, . . . everything

pertaining to the crime which will aid the jury in its consideration of the

(alleged) crime and the guilt or innocence of the accused, is admissible.

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This has been the law for centuries.” Commonwealth v. Novak, 150 A.2d

102, 108 (Pa. 1959) (quotation marks and citation omitted), cert. denied,

361 U.S. 882 (1959).5

Real evidence is admissible even if it is not definitively linked to the

accused. “So long as a proper foundation is laid to show the relevance of

the evidence, it can be admitted; the question then becomes the weight that

should be assigned to it by the fact finder.” Commonwealth v. Martinez,

380 A.2d 747, 750 (Pa. 1977). In Martinez, the Court held that a knife

sheath found in the immediate area of the stabbing was admissible where a

police officer testified that he found the sheath within one hour of the

stabbing and that he had been at the crime scene continuously for that

period. Id. at 749-50. In addition, a witness to the stabbing testified he

saw Martinez holding something in his hand that looked like a knife sheath,

but the witness could not positively identify the sheath introduced into

evidence as the one he had seen Martinez holding. Id. at 749. The Court

concluded that the Commonwealth had laid an adequate foundation for

admission of the sheath, and that it was for the jury to determine what

weight the evidence should be given:

____________________________________________ 5 We may rely on caselaw that predates the enactment of the Pennsylvania Rules of Evidence as long as it is consistent with the current rules. Commonwealth v. Aikens, 990 A.2d 1181, 1185 n.2 (Pa. Super. 2010), appeal denied, 4 A.3d 157 (Pa. 2010).

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On that point counsel was free to argue, as he did, that the sheath found by the officer was not clearly shown to have been [Martinez’s] and that it could have been placed there by other witnesses to the stabbing. We think the trial court could properly conclude that the jury was capable of assessing the probative value of the sheath in light of all the surrounding facts.

Id. at 750; see also Commonwealth v. Williams, 464 A.2d 411, 419 (Pa.

Super. 1983) (holding facts that knife and shirt were similar to those used in

the crime and were found in the street along the route that Williams took as

he fled were sufficient to establish relevance and thus admissibility of the

knife and shirt).

Here, Troy Jukes testified that he saw a gun in Appellant’s waistband.

Corporal Snyder testified that a short time later, as Appellant was speeding

away, he saw an item fly out of the window of Appellant’s car. Appellant

was the only occupant of the car, and Corporal Snyder could see that the

item was a gun. Moreover, Officer Venios found a gun in the area Corporal

Snyder described shortly after Corporal Snyder reported seeing the gun.

The gun was damaged, which the jury could infer was consistent with being

thrown out of a car window at a high rate of speed. Accordingly, we agree

with the trial court that the Commonwealth laid an adequate foundation

linking the gun to Appellant, and that the trial court therefore did not abuse

its discretion in admitting the gun into evidence. See Martinez, 380 A.2d

at 750; Williams, 464 A.2d at 419.

Judgment of sentence affirmed.

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President Judge Gantman joins the memorandum.

President Judge Emeritus Ford Elliott concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/26/2017

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