J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : OMAR A. RAHMAN : : Appellant : No. 3556 EDA 2017
Appeal from the Judgment of Sentence May 17, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012044-2013
*****
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : OMAR A. RAHMAN : : Appellant : No. 3588 EDA 2017
Appeal from the Judgment of Sentence May 17, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009988-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
: OMAR A. RAHMAN : : Appellant : No. 3589 EDA 2017
Appeal from the Judgment of Sentence May 17, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0013648-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : OMAR A. RAHMAN : : Appellant : No. 3748 EDA 2017
Appeal from the Judgment of Sentence May 17, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010006-2013
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED JULY 01, 2019
Omar A. Rahman appeals from the judgments of sentence, entered in
the Court of Common Pleas of Philadelphia County, after he was convicted by
____________________________________________
* Former Justice specially assigned to the Superior Court.
-2- J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
a jury of four counts each of robbery1 and possessing an instrument of crime2
(PIC).3 After careful review, we affirm.
The instant appeals concern a series gunpoint robberies Rahman
committed during the summer of 2013, beginning with the robbery of Krystal
Cruz. On June 26, 2013, Rahman approached Cruz on the 3100 block of
Emerald Street, pointed a revolver at her stomach, and demanded money.
Cruz gave Rahman $10. Rahman grabbed Cruz’s phone and fled. Cruz went
to her house and used her home phone to call 911. When the police arrived,
she described her assailant as a tall, light-skinned man with dreadlocks.
On June 27, 2013, Rahman approached Jarrett Natson on the 5800 block
of Washington Avenue, pointed a silver revolver in Natson’s face, ordered him
1 18 Pa.C.S.A. § 3701(a)(1)(ii).
2 18 Pa.C.S.A. § 907.
3 On December 14, 2016, following a trial consolidating charges filed under five docket numbers, the jury convicted Rahman of a total of six counts of robbery and five counts of PIC. Rahman filed separate notices of appeal under each docket number in compliance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Four of those appeals—namely those docketed under 3556 EDA 2017, 3748 EDA 2017, 3588 EDA 2017, and 3589 EDA 2017—are presently before this Court, and we consolidate these interrelated matters pursuant to Pa.R.A.P. 513. Rahman’s fifth appeal, docketed under 2550 EDA 2018, concerns two robbery convictions and one PIC conviction. It is not before the instant panel because of procedural delays and will be considered at a later date. See Per Curiam Order, 4/29/19, at 1–2.
-3- J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
to the ground, and took his belongings. Natson described his assailant as a
man in a hooded sweatshirt, with an exposed face and dreadlocks.
On July 19, 2013, Rahman approached Aaron Slaughter and Raheem
Baynes on the 1200 block of South 58th Street, pointed a silver revolver at
them, and ordered them to the ground.4 Rahman took their phones, wallets,
and a duffle bag. Soon afterwards, Slaughter used a second cell phone to call
the police. Contemporaneously, Slaughter’s friend “Michael”5 drove by and
attempted to locate the perpetrator. Michael saw someone drive away, and
relayed the car’s New Jersey license plate number to Slaughter. Slaughter, in
turn, passed this information along to the police, and described the
perpetrator as a light-skinned man with dreadlocks.
On July 20, 2013, Rahman approached Everal Laing on the 6000 block
of Jefferson Street, held a silver revolver to his head, ordered him to his knees,
and demanded money. Rahman took Laing’s phone, money, and a bag
containing some paperwork and clothing. When Rahman demanded money,
Liang asked for his bag back so he could locate his money for Rahman. Liang
instead took his wallet out of the bag and ran to a nearby police station, where ____________________________________________
4 The robbery of Slaughter and Baynes forms the factual basis for Rahman’s convictions under docket number 2550 EDA 2018, which is not currently before us. We have recounted the incident here insofar as it is relevant to Rahman’s suppression hearing and subsequent trial.
5 Slaughter stated he did not know Michael’s last name. N.T. Trial, 12/8/16, at 73.
-4- J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
he reported the robbery and described the perpetrator as a man with a light
complexion, wearing his hair in braids or dreadlocks.
On July 21, 2013, Rahman approached Kyle Stanley on the 1500 block
of West Allegheny Avenue, pointed a revolver at his temple, ordered him to
the ground, and took his watch, money, and phone. Contemporaneously,
Officers Donyul Williams and Ronald Gilbert drove by in a Ford Crown Victoria.
Recognizing the Crown Victoria as an unmarked police vehicle, Stanley began
physically struggling with Rahman and yelling for help, stating Rahman was
armed. When Officer Williams approached the fracas, Rahman disengaged
from Stanley and fled. Stanley told Officer Williams that Rahman attempted
to rob him at gunpoint. Rahman fled on foot, ignoring Officer Williams’
demands to stop, only pausing to duck down by a parked minivan. The police
caught up with Rahman and detained him. The officers proceeded to search
for the gun described by Stanley and located a silver revolver6 in the wheel
well of the minivan where Officer Williams observed Rahman stop and duck
down. The police, however, did not recover the items Rahman took from
Stanley.
After apprehending Rahman, the officers returned to their vehicle. The
officers then noticed a woman sitting in a parked car that was stuck behind
6Officer Gregory Welsch later determined the revolver to be an operable Smith & Wesson, Model 638 revolver. N.T. Trial, 12/12/16, at 67.
-5- J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
the officer’s hastily parked police cruiser. Officer Williams began questioning
her, thinking she might have been a witness. The woman identified Rahman
as her boyfriend. Officer Williams then noticed an iPad and several phones in
the front of the car. Rahman was arrested and officers secured the vehicle, a
Hundai Elantra (“the Elantra”) with New Jersey plates. The police applied for
and received a search warrant for the Elantra, pursuant to which they seized
eleven phones, an iPad Mini, and various documents, including Liang’s bank
statement and Rahman’s driver’s license.
These items helped lead police to the above-named victims. One cell
phone led detectives to Cruz, who identified Rahman in an eight-person photo
array as the individual who robbed her at gunpoint. Detectives questioned
Laing after discovering his bank statement during the search of the Elantra.
Liang identified the bank statement as his. He was then shown an eight-
person photo array and identified Rahman as the man who robbed him.
Another cell phone led police to Natson, who was unable to make a positive
identification of the perpetrator from an eight-person photo array. He was,
however, able to identify his phone as the one taken from him during the June
27, 2013 robbery. Natson subsequently attended an in-person lineup and
identified Rahman as the man who robbed him. The police located Slaughter
after searching for reports of gunpoint robberies committed by an individual
with dreadlocks using a silver revolver during late June and July of 2013.
-6- J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
Slaughter subsequently identified Rahman as his assailant from a photo array
provided by detectives.
On October 31, 2016, Rahman, proceeding pro se with Jason Javi,
Esquire, as backup counsel, litigated a motion in limine to preclude the
mention of any physical evidence recovered from the Elantra that was not
explicitly connected to a charged crime. The Commonwealth argued all items
recovered pursuant to the search warrant were admissible to explain the
course of the investigation, and that to exclude certain cherry-picked items
would confuse jurors. The court denied Rahman’s motion.
On October 31, 2016, and December 6, 2016, Rahman litigated two
motions to suppress. First, he argued for the suppression of all physical
evidence from the Elantra, offering the testimony of Wayne Dumas to prove
he had permission to use the Elantra, and alleging the affidavit of probable
cause was facially insufficient. Second, Rahman moved to suppress the
identification evidence provided by Cruz, Slaughter, Laing, and Natson,
arguing he was denied the right to counsel during the identification
procedures, and that both the photo and in-person line-ups were unduly
suggestive.7
7 Rahman only challenges the validity of the photo-array identifications on appeal. See Brief of Appellant, at 29–41.
-7- J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
On December 6, 2016, the court denied both motions. With respect to
the search of the Elantra, the court made the following findings: 1) Wayne
Dumas lacked credibility; 2) Rahman lacked a reasonable expectation of
privacy in the Elantra; 3) Rahman lacked a reasonable expectation of privacy
in the phones recovered from the Elantra; 4) there was probable cause to
search the Elantra; and 5) there was no evidence indicating the warrant was
defective. N.T. Motions Hearing, 12/6/16, at 94–99. With respect to the
photo-array identifications, the court made the following findings: 1)
detectives involved in the identifications testified credibly; 2) there was no
evidence of any suggestive procedures used in the identifications; and 3) the
defendant did not have a right to counsel with respect to the challenged
identifications. N.T. Motions Hearing, 12/6/16, at 202–203.
On December 14, 2016, following a seven-day trial, a jury found
Rahman guilty of six counts of robbery and five counts of PIC. On May 17,
2017,8 the Honorable Giovanni J. Campbell sentenced Rahman to four to eight
years’ incarceration for each robbery conviction and one to five years’
incarceration for each PIC conviction. The court imposed the robbery
sentences consecutive to one another, and the PIC sentences consecutive to
8 The five-month delay between conviction and sentencing was the result of the court requesting a pre-sentence investigation and a mental health evaluation, and Rahman requesting continuances.
-8- J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
the robbery sentences but concurrent to one another, for an aggregate
sentence of twenty five to fifty three years’ incarceration.
On May 26, 2017, appointed counsel filed post-sentence motions on
behalf of Rahman. On June 16, 2017, Rahman filed pro se notices of appeal,
which were quashed by this Court as interlocutory because post-sentence
motions had yet to be ruled upon. On September 11, 2017, Rahman, acting
pro se, filed motions to withdraw the post-sentence motions filed under four
of the five docket numbers. On September 26, 2017, the trial court denied
the post-sentence motion on CP-51-CR-0010006-2013 and dismissed the
remaining post-sentence motions as erroneously docketed. On October 24,
2017, Rahman filed notices of appeal pro se. On December 6, 2017, Rahman
complied with the court’s order to file a Statement of Errors Complained of on
Appeal pursuant to Pa.R.A.P. 1925(b). This Court remanded the matter on
December 13, 2017 for a Grazier hearing, which the trial court held on
February 5, 2018. Rahman was granted leave to proceed pro se on appeal
with appointed counsel as backup. Rahman’s appeal is now ripe for
disposition.9
9 The Commonwealth, without explanation, failed to file a brief by the March 29, 2019 deadline. In response, Rahman filed a motion for relief requesting this court “accept as fact all assertions made by Appellant in favor of reversal.” Application for Relief, 4/15/19, at 2–3. His motion rests on inapposite
-9- J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
Rahman raises the following issues for our review:
1) Whether the trial court erred in denying the motion to suppress physical evidence as [] Rahman established his privacy interest in the vehicle and the items recovered, the search warrant was issued in violation of the Pennsylvania and United States Constitution[s], law enforcement used the warrant as a general investigatory tool[,] and none of the proceeds recovered pertained to the robbery of Kyle Stanley?
2) Whether the trial court erred in denying the motion to suppress the identification evidence of Everal Laing and Krystal Cruz as the procedure utilized by law enforcement was unduly suggestive and law enforcement violated [] Rahman’s right to counsel afforded by the Pennsylvania and United States Constitutions?
3) Whether the trial court erred in denying the motion for a new trial as the verdict was against the manifest weight of the evidence with respect to victim Kyle Stanley[,] as none of the victim’s ____________________________________________
application of Commonwealth v. Atanasio, 997 A.2d 1181, 1183 n.6 (Pa. Super. 2010). The text from Atanasio cited by Rahman states, in the event the Commonwealth fails to file a brief, “we must accept as undisputed the statement of questions involved and the statement of the case presented by the appellant.” Atanasio, supra at 1183 n.6 (emphasis added). That language does not stand for the proposition that we must accept the assertions in Rahman’s brief as fact. As such, we deny his motion for relief.
We do, however, grant Rahman’s motion to strike filed after the Commonwealth untimely submitted its brief on April 29, 2019, without this Court’s authorization. See Motion to Strike, 5/13/19, at 1–2; see also Commonwealth v. Brown, 161 A.3d 960, 964 n.2 (Pa. Super. 2017) (declining consideration of arguments advanced in untimely Commonwealth brief). In doing so, we note our mounting frustration at the regularity with which the Philadelphia District Attorney’s Office files untimely briefs, even after being given multiple extensions or failing to request extensions. See, e.g., Commonwealth v. Kinard, 1645 EDA 2018, at 1 n.1 (Pa. Super. May 8, 2019) (filing brief 46 days after third deadline extension).
- 10 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
property was ever recovered[,] notwithstanding the fact that [] Rahman was arrested on the scene of the offense?
4) Whether the trial court erred in denying the motion in limine to exclude irrelevant and prejudicial items on property receipt [numbers] 3116317 and 3116318[10] as the items were not evidence of any wrongdoing, and were admitted in[to] evidence in order to allow the jury to draw the improper inference that they were evidence of additional wrongdoing and thus prejudiced [] Rahman?
5) Whether the trial court erred in admitting in[to] evidence the [out- of-court] statement of Raheem Baynes while the [C]ommonwealth never called [] Baynes as a witness?
6) Whether the trial court erred in denying [] Rahman the right to present a defense afforded by the Pennsylvania and United States Constitutions by excluding the testimony of Joseph Kmetz, Maurine Treston, Kevin Boston, Aerni Dunlap, Officer Ruggia,[11] Detective Joseph Marano, Detective Daniel Murawski, and Detective John Druding?
Brief of Appellant at 4–6.
Rahman’s first two claims concern the denial of his motions to suppress
physical and identification evidence. Our well-settled standard of review
regarding these arguments is as follows:
[An appellate court’s] standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court’s factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the ____________________________________________
10 Property receipts 3116317 and 3116318 detail the items seized from the Elantra.
11 We were unable to determine Officer Ruggia’s first name.
- 11 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
Commonwealth 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 suppression court’s factual findings are supported by the record, [the appellate court is] bound by [those] findings and may reverse only if the court's legal conclusions are erroneous. Where . . . the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court’s legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to [ ] plenary review.
Commonwealth v. Jones, 998 A.2d 649, 654 (Pa. 2010) (Internal citations
and quotation marks omitted).
Rahman’s first claim is more properly characterized as three separate
challenges to the search of the Elantra. See Brief of Appellant, at 20–28.
First, he avers the police included material misstatements in their affidavit of
probable cause. Id. Second, he claims these material misstatements resulted
in a search warrant that was unsupported by probable cause. Id. Lastly,
Rahman claims the warrant was overbroad and lacking in particularity. Id.
We address each aspect of his argument in turn.12
12 Rahman also contends the United States Supreme Court’s holding in Byrd v. United States, 138 S.Ct. 1518 (2018) rendered untenable the suppression court’s finding that Rahman lacked a reasonable expectation of privacy in the Elantra. Byrd held the fact “that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.” Byrd, supra at 1531 (emphasis added).
- 12 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
Rahman first argues the affidavit of probable cause contained the
“deliberate material misstatement . . . that numerous cell phones were
observed by the arresting officers in plain view and the assertion that the
passenger side window of the vehicle was down.” Id. at 22 (quoting N.T.
Motions Hearing 10/31/16, at 44). Rahman asserts his position is proven by
photos of the Elantra, submitted with the affidavit probable cause, in which
the cell phones are not visible. Id. at 23.
“[M]isstatements of fact will invalidate a search warrant and require
suppression . . . only if the misstatements of fact are deliberate and material.”
Commonwealth v. Baker, 24 A.3d 1006, 1017 (Pa. Super. 2011), affirmed
78 A.3d 1044 (Pa. 2013) (emphasis in original). A material fact is one “without
which probable cause would not exist.” Id. at 1018. It is for the suppression
court to determine whether such a misstatement was deliberate. Id. at 1017.
During the suppression hearing, Officer Williams, one of Rahman’s
arresting officers, testified to the following: (1) the passenger side window of
Nothing in the record supports the assertion that Rahman lawfully possessed the Elantra. See N.T. Motions Hearing, 10/31/16, at 54–58 (stating Dumas exchanged white Hundai Sonata rented from Hertz—not an Elantra—for a blue Chevrolet on June 30, 2013, well before Rahman’s July 21, 2013 arrest); see also Commonwealth v. Enimpah, 106 A.3d 695, 699 (Pa. 2014) (requiring defendant to demonstrate reasonable expectation of privacy). Moreover, we feel compelled to consider the merits of the warrant as the police made the effort to protect the constitutionality of their actions. See Commonwealth v. Leed, 186 A.3d 405, 413 (Pa. 2018) (reiterating constitutional preference for searches conducted pursuant to warrants).
- 13 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
the Elantra was open when officers approached it; (2) multiple cell phones
and a tablet were visible in plain view; (3) Officer Williams relayed this
information to the detectives who prepared the affidavit of probable cause;
and (4) the Elantra was secured, but not searched, before obtaining a warrant.
N.T. Motions Hearing, 12/6/16, at 24–27. Based on the evidence presented,
Judge Campbell did not find any material misstatements contained in the
affidavit of probable cause, specifically noting he found “the testimony of
Wayne Dumas not credible, the testimony of [Rahman] not credible, and the
testimony of all other officers credible.” Id. at 99.
We are not free to revisit the suppression court’s credibility
determinations. See Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.
Super. 2006) (“It 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.”). As the suppression court credited Officer Williams’ testimony—
testimony which directly contradicts Rahman’s assertions—we cannot find
Officer Williams made any misstatements of fact to the affiant, let alone
deliberate misstatements which would undermine the existence of probable
cause. See Baker, supra at 1017. It certainly seems plausible that the
phones simply were not visible at the angle from which the photos were taken.
Consequently, we find the court’s findings are supported by the record and
free of legal error. Jones, supra at 654.
- 14 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
We, therefore, proceed to consider whether the search warrant of the
Elantra was supported by probable cause. “In determining whether [a]
warrant is supported by probable cause, the magistrate may not consider any
evidence outside the four corners of the affidavit.” Commonwealth v.
Ryerson, 817 A.2d 510, 513 (Pa. Super. 2003) (citation omitted). The
following, well-settled principles apply when reviewing a “four corners”
challenge:
It is the duty of a court reviewing an issuing authority’s probable cause determination to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In so doing, the reviewing court must accord deference to the issuing authority’s probable cause determination, and must view the information offered to establish probable cause in a common- sense, non-technical manner.
....
Further, a reviewing court is not to conduct a de novo review of the issuing authority’s probable cause determination, but is simply to determine whether or not there is substantial evidence in the record supporting the decision to issue the warrant.
Commonwealth v. Green, 204 A.3d 469, 480 (Pa. Super. 2019) (citing
Commonwealth v. Mistler, 912 A.2d 1265, 1269 (Pa. 2006)).
In reviewing the magistrate’s decision, the suppression court made the
following findings:
[A]mple probable cause justified [] searching the vehicle and the items therein, including, but not limited to, [the] circumstances of the arrest, the police officers’ observation of the defendant’s conduct, information from complainants, statements of the
- 15 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
defendant’s girlfriend, the observation of the items in plain view, et cetera.
N.T. Motions Hearing, 12/6/16, at 96–97. Upon review, we find the assertions
contained in the affidavit, accurately summarized by Judge Campbell above,
clearly establish “a fair probability that contraband or evidence of a crime”
would be found in the Elantra. Ryerson, supra at 514. Thus, we conclude
the decision to issue the warrant was supported by probable cause. Green,
supra at 480.
Having found the affidavit untainted by deliberate misstatements of
material fact and supported by probable cause, we now assess the final aspect
of Rahman’s first argument—whether the warrant violated the particularity
requirement of Article I, Section 8 of the Pennsylvania Constitution.
Article I, Section 8 of the Pennsylvania Constitution, in relevant part,
provides, “no warrant to search any place or to seize any person or things
shall issue without describing them as nearly as may be[.]” Pa. Const. Art. 1
§ 8. Contained within this clause are two distinct requirements, which we
have previously delineated as follows:
The particularity requirement prohibits a warrant that is not particular enough and a warrant that is overbroad. These are two separate, though related, issues. A warrant unconstitutional for its lack of particularity authorizes a search in terms so ambiguous as to allow the executing officers to pick and choose among an individual’s possessions to find which items to seize[.] A warrant unconstitutional for its overbreadth authorizes in clear or specific terms the seizure of an entire set of items, or documents, many
- 16 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
of which will prove unrelated to the crime under investigation[.] An overbroad warrant is unconstitutional because it authorizes a general search and seizure.
Commonwealth v. Bagley, 596 A.2d 811, 814 (Pa. Super. 1991).
Rahman raises challenges under both aspects of the particularity
requirement. Brief of Appellant, 25–28. First, he alleges the warrant lacked
sufficient particularity by omitting the specific description of Stanley’s cell
phone and seeking to seize “cell phones[;]” secondly, he asserts the warrant’s
use of the phrase “any other evidence pertinent to this investigation” rendered
it overbroad. Id. (citing Commonwealth v. McEnany, 667 A.2d 1143, 1148
(Pa. Super. 1995) and Bagley, supra).
In assessing the validity of a description contained in a warrant, “a court
must initially determine for what items probable cause existed.”
Commonwealth v. Rega, 933 A.2d 997, 1012 (Pa. 2007). To do so, we
employ the “totality of the circumstances” analysis, summarized as a
“practical, common sense decision whether, given all the circumstances set
forth in the affidavit . . . including the veracity and basis of knowledge of
persons supplying hearsay information, that there is a fair probability that
contraband or evidence of a crime will be found in a particular place.”
McEnany, supra at 1147 (quotations omitted).
The court must then measure the sufficiency of the description against
those items for which there was probable cause. Commonwealth v. Rivera,
- 17 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
816 A.2d 282, 291 (Pa. Super. 2003). “Any unreasonable discrepancy
between the items for which there was probable cause and the description in
the warrant requires suppression.” Id. The descriptions, however, are not
to be interpreted in a hyper-technical fashion—“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.” Rega, supra at 1012 (Pa. 2007) (quoting Commonwealth v.
Matthews, 285 A.2d 510 (Pa. 1971) (finding valid warrant which specified
“pocket knife” but officers seized “kitchen knife”)).
In Rivera, supra, this Court examined challenges to the lack of
particularity and overbreadth of a warrant authorizing police to search a
suspected drug dealer’s house and seize “[c]ocaine [and] any assets,
paraphernalia or other materials related to [the] sale or use of the same.”
Rivera, supra at 289. That warrant was based on an affidavit stating that
two confidential informants informed police that cocaine was being
transported to a suspect’s house in a particular vehicle, information later
confirmed through a controlled buy. Id. at 291–92. This Court determined
the warrant was neither overbroad nor lacking in specificity as “there was
probable cause to believe cocaine was being possessed and sold by the
occupants of the premises” and that searching for “any assets, paraphernalia
- 18 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
or other materials” related to the crime did not render the warrant “a general
investigatory tool” proscribed by Article 1, Section 8. Id. at 292.
In the instant case, Detective Cremen’s affidavit contains the following
facts: (1) officers were on the scene as Rahman held Stanley up at gunpoint
and took his cell phone, $2600 in cash, and a $1300 watch; (2) before
apprehending Rahman, those officers found a gun where they saw Rahman
duck down behind a minivan; (3) after apprehending Rahman, officers asked
the driver of the Elantra if she had seen anything; (4) the driver identified
herself as Rahman’s girlfriend; (5) the officers realized Rahman had passed
the Elantra, which had its curbside window down; and (6) the officers
observed an iPad Mini and at least six cell phones in the Elantra. Affidavit of
Probable Cause, at 1.
Because the police witnessed Rahman accost Stanley and head to the
Elantra’s open window, the totality of the circumstances provide a substantial
basis for concluding probable cause existed for suspecting a robbery occurred,
that at least one of the items taken was a cell phone, and that the proceeds
from the robbery were located in the Elantra. See Rivera, supra at 289
(finding substantial basis for searching home after police witnessed
commission of crime during controlled buy of cocaine). Measuring the
sufficiency of the description in the warrant, provided as “proof of ownership,
rental agreement, [United States currency], cellphones, apple iPad Mini,
- 19 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
watch, and any other evidence pertinent to this investigation[,]” against those
for which probable cause existed, we find the warrant neither overbroad nor
lacking in specificity. Affidavit of Probable Cause, at 1 (capitalization
adjusted); see also Rivera, supra at 289 (finding sufficient connection
between probable cause and items described as “[c]ocaine [and] any assets,
paraphernalia or other materials related to the sale or use of same.”).
Rahman’s reliance on McEnany, supra and Bagley, supra is
misplaced. McEnany concerned a warrant to search a van and seize “[a]ny
trace evidence including, but not limited to: blood, hairs, fibers, glass, paint,
and any other contraband or evidence related to this crime [homicide].”
McEnany, 667 A.2d at 1148. Bagley involved a warrant which “stated no
crime but suggested only that it had been issued in the investigation of a
suspicious death. It authorized police to seize anything that may have been
related to Mrs. Bagley’s death.” Bagley, 596 A.2d at 815 (emphasis original).
In the instant case, police were searching for specific evidence related
to a particular robbery. The language “any other evidence” follows language
which is directly related to the circumstances surrounding Rahman robbing
Stanley and the officer’s subsequent observations. Affidavit, at 1; see also
Rivera, supra at 292 (distinguishing Rivera from McEnany and Bagley on
grounds that “the language ‘or other materials,’ . . . follows the specific items
‘assets’ and ‘paraphernalia,’ all of which must be related to . . . the sale or use
- 20 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
of cocaine [] crimes for which the police clearly had probable cause to believe
had occurred at the residence within 24 to 36 hours preceding execution of
the warrant.”). Consequently, all three aspects of Rahman’s first argument
are without merit.
In his second argument, Rahman advances two claims related to the
court’s denial of his motion to suppress the photo-array identifications made
by Laing and Cruz: first, he claims the photo-array procedure used by the
police was unduly suggestive; second, he claims the procedure violated his
right to counsel under the Pennsylvania and United States Constitutions. Brief
of Appellant, at 29. Neither aspect of his claim is meritorious.
“Whether an [out-of-court] identification is to be suppressed as
unreliable, and therefore violative of due process, is determined by the totality
of the circumstances.” Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa.
Super. 2011) (citation omitted). Suggestiveness is a factor in determining the
admissibility of such evidence, but suggestiveness alone does not warrant
exclusion; identification evidence will not be suppressed “unless the facts
demonstrate that the identification procedure was so impermissibly
suggestive as to give rise a very substantial likelihood of irreparable
misidentification.” Id. (citation omitted). Photograph identifications are valid
if “the suspect’s picture does not stand out more than the others, and the
people depicted all exhibit similar facial characteristics.” Id.
- 21 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
The suppression court reviewed the police procedures used in Liang’s
and Cruz’s identifications of Rahman, and found “no evidence that there was
any suggestivity used in the identifications by any of the complaintants.” N.T.
Motions Hearing, 12/6/16, at 202–203. Upon review of the record, including
the photo arrays at issue, we find no abuse of discretion in the trial court’s
assessment of the arrays or in its subsequent decision to admit the evidence.
See id. at 133–35, 169-71 (detailing identifications made by Liang and Cruz,
respectively); see also Exhibits C-7 and C-8 (showing, respectively, arrays
used in identifications by Liang and Cruz).
The second aspect of Rahman’s argument concerns the right to counsel
during a photo-array identification. Brief of Appellant, at 29–30. Initially, we
note no such right exists under the Sixth Amendment to the United States
Constitution. See United States v. Ash, 413 U.S. 300, 317 (1973) (finding
Sixth Amendment does not grant right to counsel during post-indictment
photo array for purposes of identifying perpetrator). Moreover, this Court has
ruled the right to counsel under Article I, Section 9 of the Pennsylvania
Constitution does not attach “when the suspect is in custody for a different
offense than that for which the array has been compiled.” Commonwealth
v. Blassingale, 518 A.2d 183, 190 (Pa. Super. 1990).
When the police arrested Rahman on July 21, 2013, Rahman was under
arrest for the robbery of Stanley. N.T. Motions Hearing, 12/6/16, at 125–37.
- 22 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
That same day, Liang and Cruz were connected to the case after the police
executed the search warrant for the Elantra and discovered mail with Liang’s
name on it and a cell phone belonging to Cruz. Id. at 129–30. However, as
the notes of testimony make clear, Rahman had yet to be charged with any
crimes beyond the robbery of Stanley at the time that police interviewed either
Liang or Cruz. Id. (“Q: Now, at this time, is the defendant in custody? A:
He’s in custody on the robbery from the highway officers, yes. Q: Is he in
custody on any other case at this time? A: No.”). Accordingly, Rahman
possessed no right to counsel, and the court properly denied his motion to
suppress. See Blassingale, supra at 190.
In his third argument, Rahman challenges both the sufficiency of the
evidence and the weight of the evidence underpinning his conviction for the
robbery of Stanley. Brief of Appellant, at 35. First, Rahman claims the
Commonwealth failed to prove beyond a reasonable doubt that Rahman
“placed another in fear in the course of a theft.” Id. at 37. Second, Rahman
asserts the police’s failure to recover any of Stanley’s stolen property rendered
Stanley’s testimony regarding the robbery incredible and Rahman’s conviction
against the weight of the evidence. Id.
Our standard of review with regard to sufficiency claims is well-settled:
In reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light
- 23 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
most favorable to the verdict winner, are sufficient to support all elements of the offense[.] When performing this review, we may not reweigh the evidence or substitute our own judgment for that of the fact finder.
Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super. 2013) (citation and
quotations omitted).
The Crimes Code defines robbery, in relevant part, as follows:
§ 3701. Robbery
(a) Offense defined.--
(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.A. § 3701(a)(1)(ii). The first element, whether the perpetrator was
acting “in the course of committing a theft[,]” can be proven by showing the
individual unlawfully took “moveable property of another with the intent to
deprive him thereof.” Commonwealth v. Ennis, 574 A.2d 1116, 1119 (Pa.
Super. 1990) (quoting 18 Pa.C.S.A. §3921(a)). We have previously explicated
proving “fear of serious bodily injury” under section 3701(a)(1)(ii) as follows:
[T]he Commonwealth need not prove a verbal utterance or threat to sustain a conviction under subsection 3701(a)(1)(ii). It is sufficient if the evidence demonstrates aggressive actions that threatened the victim’s safety. For the purposes of subsection 3701(a)(1)(ii), the proper focus is on the nature of the threat posed by an assailant and whether he reasonably placed a victim in fear of ‘immediate serious bodily injury.’ The threat posed by the appearance of a firearm is calculated to inflict fear of deadly
- 24 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
injury, not merely fear of ‘serious bodily injury.’ A factfinder is entitled to infer that a victim was in mortal fear when a defendant visibly brandished a firearm.
Commonwealth v. Hopkins, 747 A.2d 910, 914–15 (Pa. Super. 2000)
(citations omitted).
At trial, Stanley identified Rahman as the individual who approached
him on the street, pointed a revolver at his temple, forced him to the ground,
and demanded he turn over his property. N.T. Trial, 12/9/16, at 5–9; 19–20.
Stanley testified to hailing down two police officers after turning over his
watch, a cell phone, and cash. Id. at 10–12. One of those officers—Officer
Williams—testified to the circumstances surrounding Rahman’s arrest. Id. at
121–39. Officer Williams specifically highlighted the winding path Rahman
took as he fled, heading past both the Elantra and a nearby van, under which
officers located a loaded revolver shortly after Rahman’s arrest. Id.
Rahman’s argument, that the Commonwealth failed to prove “both
[that] Rahman committed the gunpoint robbery of Kyle Stanley, and that
Rahman did so by threatening Stanley or intentionally putting him in fear of
immediate bodily injury in the course of committing a theft” flies in the face
of the evidence. Brief of Appellant, at 40. Though Rahman correctly states
that the police never recovered Stanley’s stolen property, he incorrectly
believes this fact to be dispositive; recovery of stolen property is not an
element of robbery, and thus, is immaterial. See Commonwealth v.
- 25 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
Natividad, 733 A.2d 167, 176 (Pa. 2001) (“A robbery is completed when an
attempt is made to take the property of another by force or threat of force.
There is no requirement that the robbery be successful.”) (abrogated on other
grounds by Commonwealth v. Freeman, 927 A.2d 385 (Pa. 2003)). The
police apprehended Rahman immediately after he used a firearm to unlawfully
deprive Stanley of his property, thus proving both that Rahman acted in the
course of committing a theft, and that he placed Stanley in fear of serious
bodily injury. See Ennis, supra, at 1116; see also Hopkins, supra at 914–
15.
Rahman also challenges the weight of the evidence underpinning his
conviction for the robbery of Stanley. This Court reviews the trial court’s
exercise of discretion in ruling on the weight claim, not the underlying question
of whether the verdict was against the weight of the evidence.
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003). It is not our
role, as a reviewing court, to reweigh the evidence and substitute our
judgment for that of the fact-finder. Commonwealth v. Mitchell, 902 A.2d
430, 449 (Pa. 2006). Where the challenge to the weight of the evidence is
predicated on the credibility of trial testimony, our review is extremely limited;
unless the evidence is so unreliable “as to make any verdict based thereon
pure conjecture, [such claims] are not cognizable on appellate review.”
Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009). We may
- 26 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
only grant relief if the lower court’s verdict is “so contrary to the evidence as
to shock one’s sense of justice.” Champney, supra at 408.
Rahman claims the verdict was against the weight of the evidence, as
Officer Williams’ inability to locate Stanley’s stolen property undermined
Stanley’s allegation that a robbery took place. Brief of Appellant, at 40. We
find this assertion unavailing. Not only are we unable to re-evaluate Stanley’s
credibility, we are unsure whether Rahman’s argument even impugns
Stanley’s credibility. See Gibbs, supra at 282. As the trial court aptly stated,
“the fact of non[-]recovery of the proceeds, does not, as [Rahman] urges,
demonstrate that there was no robbery. It just demonstrates that [Rahman]
did a better job at secreting or disposing of . . . Stanley’s possessions as he
walked away than he did in hiding the gun.” Rule 1925(a) Opinion, 7/30/18,
at 36. Consequently, we cannot say that the trial court abused its discretion
by denying Rahman’s weight claim. Champney, supra at 408.
Rahman’s fourth, fifth, and sixth arguments all concern decisions to
admit or exclude evidence. Brief of Appellant, at 8–9. Consequently, we
evaluate these arguments by the following standard:
When reviewing questions regarding the admissibility of evidence, our standard of review maintains the admissibility of evidence is solely within the discretion of the trial court and will be reversed only if the trial court has abused its discretion. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias,
- 27 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
prejudice, ill-will or partiality, as shown by the evidence or the record. The comment to Rule 403 of the Pennsylvania Rules of Evidence defines “unfair prejudice” as “a tendency to suggest decision on an improper basis or to divert the jury’s attention away from its duty of weighing the evidence impartially.”
Commonwealth v. Seilhamer, 862 A.2d 1263, 1270 (Pa. Super. 2004)
(citations and quotations omitted).
In his fourth argument, Rahman suggests that by admitting evidence of
seven cell phones and an iPad Mini13 without establishing the ownership of
those items, the court allowed the jury to consider irrelevant facts that could
have led them to conclude the items were stolen. Brief of Appellant, at 42–
43.
Evidence is relevant if “(a) it has any tendency to make a fact more or
less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Pa.R.E. 401. Even if relevant,
“evidence may be excluded if its probative value is outweighed by the danger
13Rahman also argues the Commonwealth introduced the iPad Mini to suggest that Rahman had taken it from Baynes. Brief of Appellant, at 43. Rahman’s appeal challenging the convictions arising from the robbery of Slaughter and Baynes, docketed under 2550 EDA 2018, is not presently before the Court. We address the relevance and potential prejudice associated with iPad Mini’s admission only insofar as it affects the convictions presently on appeal. Moreover, even a cursory review of the trial testimony reveals Rahman’s assertion that the Commonwealth attempted to conflate Rahman’s iPad Mini seized from the Elantra with the iPod taken from Baynes to be factually inaccurate. See N.T. Trial 12/8/16, at 130 (Q: Now, just for the record, because I believe earlier you said iPad, is it [an] iPad or iPod? A: An iPod.”).
- 28 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Pa.R.E. 403. “[E]vidence will not be prohibited merely
because it is harmful to the defendant.” Commonwealth v. Dillon, 925 A.2d
131, 141 (Pa. 2007). “Exclusion is limited to evidence so prejudicial that it
would inflame the jury to make a decision based upon something other than
the legal propositions relevant to the case.” Commonwealth v. Owens, 929
A.2d 1187, 1191 (Pa. Super. 2007). In balancing probative value against
potential prejudice, “Pennsylvania courts are not required to sanitize the trial
to eliminate all unpleasant facts from the jury’s consideration where those
facts are relevant to the issues at hand and form part of the history and natural
development of the events and offenses for which the defendant is charged.”
Commonwealth v. Antidormi, 84 A.3d 736, 751–52 (Pa. Super. 2014).
Rahman preserved his challenge by litigating a pre-trial motion in limine.
N.T. Motions Hearing, 10/31/16, at 21, 25. The court denied Rahman’s motion
on the grounds that the evidence seized from the Elantra was part of the
“investigation of the items found in the search which led to the other
complainants.” Pa.R.A.P. 1925(a) Opinion, 7/30/18, at 18. Moreover, the
court found “all [items] formed part of the narrative of the police investigation
and [were] necessary to explain the circumstances of the later identifications
of [Rahman].” Id. Indeed, the record shows the Commonwealth elicited
- 29 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
testimony from Detective Cremen regarding the above-mentioned devices for
the purposes of explaining how the police identified additional victims beyond
Stanley.14 N.T. Trial, 12/12/16, at 103–108. The evidence shows the police
seized cell phones from the Elantra, and that some of those cell phones were
used to locate additional victims, thereby connecting the seemingly isolated
robbery of Stanley with prior incidents. See id. Consequently, we cannot say
the Commonwealth’s evidence invited the jury to convict on an improper
basis. See Antidormi, supra at 751–52; accord Pa.R.E. 403. Therefore,
Rahman’s fourth argument fails.
Rahman’s fifth claim challenges the admission of an out-of-court
statement by Baynes on Sixth Amendment grounds. See Brief of Appellant,
at 46–60. Rahman’s convictions for the robberies of Baynes and Slaughter
are the subject of a separate appeal, docketed at 2550 EDA 2018.
14 The following excerpt from Detective Cremen’s testimony illustrates the crux of how the Commonwealth used the ostensibly offending evidence:
Q: Okay. Were you able to, on the 21st of July, locate any individuals through the evidence that was recovered during the search warrant?
A: On the 21st, I was able to identify a Ms. Cruz and a Mr. Liang.
N.T. Trial, 12/12/16, at 107–108.
- 30 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
Consequently, we decline to address the instant claim as it concerns
convictions that will be reviewed by a subsequent panel of this Court.15
In his sixth and final argument, Rahman asserts the court’s exclusion of
certain witnesses violated his right to present a defense. Brief of Appellant,
at 51. Rahman states the court should have permitted the testimony of the
following witnesses: (1) Kmetz and Treston for the purpose of impeaching
Stanley regarding Stanley’s probation; (2) Boston, Dunlap, and Officer
Ruggia, for the purpose of impeaching Cruz by showing that Boston and
Dunlap gave Officer Ruggia a description of an assailant in an unrelated
robbery that was similar to Cruz’s description; (3) Detective Murawski for the
purpose of learning the method used to select photos that were shown to Cruz
in the photo array; (4) Detective Marano to impeach Nelson regarding the
hairstyle of the person who robbed him; and (5) Detective Druding for reasons
this court is unable to discern. Id. at 51–62.
Initially, we note Rahman waived any argument regarding Kmetz,
Treston, and Detective Druding.16 His remaining claims revolve around either
15 See supra at n.3 for more information.
16 Rahman’s claims regarding Kmetz and Treston relate to Stanley’s supervised release following a conviction for burglary—a crimin falsi offense, knowledge of which was presented to the jury by the Commonwealth. N.T.
- 31 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
the relevance of evidence, or a defendant’s right to impeach the credibility of
Commonwealth witnesses, which this Court has summarized as follows:
A defendant’s right of confrontation includes the right to cross- examine witnesses about possible motives to testify. However, a witness may not be contradicted on ‘collateral’ matters[. A] collateral matter is one which has no relationship to the case at trial. The scope and limits of cross-examination are within the discretion of the trial judge whose judgment will not be reversed in the absence of a clear abuse of that discretion, or an error or law.
Commonwealth v. Guilford, 861 A.2d 365, 369 (Pa. Super. 2004); see also
Commonwealth v. Johnson, 638 A.2d 940, 942–43 (Pa. 1994) (precluding
Trial, 12/9/16, at 25. Rahman claims Kmetz and Treston would have testified to Stanley owing restitution totaling $2,600.00. Brief of Appellant, at 55.
Our review of the record reveals two appearances of Kmetz’s name in the entire record, both occuring while the court listed potential witnesses during voir dire. N.T. Trial, 12/5/16, at 21, 112. Further, it does not appear that Rahman ever attempted to call Treston at trial. As such, Rahman waived any claim related to either individual. See Commonwealth v. Olsen, 82 A.3d 1041, 1050 (Pa. Super. 2013) (“In order for a claim of error to be preserved for appellate review, a party must make a timely and specific objection before the trial court at the appropriate stage of the proceedings; the failure to do so will result in waiver of the issue.”). Any further claims regarding Stanley’s probation file were likewise waived when Rahman failed to object the court’s decision to exclude it. N.T. Trial, 12/12/16, at 216; see also Olsen, supra at 1050.
Rahman waived claims regarding Detective Druding by failing to include any relevant argument in his brief. See Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014) (“Where an appellate brief fails to provide any discussion of a claim with citation relevant authorities . . . that claim is waived.”).
- 32 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
testimony proffered for purpose of impugning complaining witness’ credibility
regarding matter collateral to case at issue).
Rahman asserts he would have been able to impeach Cruz with the
testimony of Boston, Dunlap, and Officer Ruggia regarding the description of
an assailant in an unrelated robbery. Brief of Appellant, at 57–58. We find
no abuse of discretion in the court’s decision to exclude as collateral testimony
with the proposed purpose of recounting a robbery unrelated to Rahman. See
Guilford, supra at 369.
Rahman alleges Detective Murawski would have testified to the process
used to create the photo array Cruz used to identify Rahman, and that Cruz
initially stated the firearm her assailant used was black. Brief of Appellant, at
58. The court denied Rahman’s request as cumulative, given the fact that
Detective Cremen had previously testified to the process used to create the
photo array, and because Rahman cross-examined Cruz using the initial
statement she gave to the police. See N.T. Trial, 12/12/16, at 227–32. We
find no abuse of discretion in denying such testimony for being needlessly
cumulative. See Commonwealth v. G.D.M., Sr., 926 A.3d 984, at 989 (Pa.
Super. 2007) (defining cumulative evidence as “additional evidence of the
same character as existing evidence and that supports a fact established by
the existing evidence”) (citing Black’s Law Dictionary, Seventh Edition, at
577).
- 33 - J-S24003-19 J-S24004-19 J-S24005-19 J-S24006-19
Lastly, Rahman alleges Detective Marano would have impeached Natson
regarding the description he gave to the police of his assailant as “clean cut.”
Brief of Appellant, at 59; see also N.T. Trial, 12/12/16, at 222–26. The court
ruled that such testimony had been covered in Rahman’s cross examination
of Natson and that the testimony of Detective Marano would be needlessly
cumulative. Id. at 226; see also N.T. Trial, 12/7/16, at 157–58 (clarifying
the following on redirect examination: (1) when Natson described Rahman to
Detective Murano as “clean cut,” Natson was referring to facial hair; and (2)
Natson saw his assailant had dreadlocks). We agree with the trial court’s
assessment that Detective Marano’s testimony would have been needlessly
cumulative. See G.D.M., Sr., supra at 989. Consequently, his last argument
also lacks merit.
Judgment of sentence affirmed. Motion for relief denied. Motion to
strike granted.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/1/19
- 34 -