Com. v. Rauch, W.

• Court: Superior Court of Pennsylvania
• Decided: December 8, 2014
• Docket: 217 WDA 2014
• Status: Unpublished

Opinion

J-S72012-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

WILLIAM RAUCH,

Appellant No. 217 WDA 2014

Appeal from the Judgment of Sentence Entered December 9, 2013 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000251-2013

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 08, 2014

Appellant, William Rauch, appeals from the judgment of sentence of an

aggregate term of 8-16 years’ incarceration, following his conviction for

robbery and related offenses. Appellant alleges numerous instances of

evidentiary, constitutional, and procedural error. He also challenges the

sufficiency of the evidence supporting his conviction, as well as the

discretionary aspects of his sentence. After careful review, we affirm.

The underlying facts of this case are not complicated, and were

summarized by the trial court as follows:

This case was initiated by the filing of a Criminal Complaint on April 5, 2013 by Patrolman Ralph Nedza of the Clearfield Borough Police Department. Said Complaint alleged that [Appellant] robbed, at knifepoint, the Domino's Pizza, located in ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S72012-14

the Borough of Clearfield, Pennsylvania, on April 4, 2013. It was purported, and ultimately established at [Appellant’s] trial, that [he] had entered the pizza shop bedecked in a gray “hoodie” sweatshirt, a knitted hat made into a mask, and blue jeans with a gold embroidery embellished on the back pocket. After entering into Domino’s, [Appellant] wielded a green-handled knife, approximately four … inches in length, and demanded money from the store manager. While brandishing the knife approximately one … foot away from the manager, [Appellant] arrogated that the manager turn over all of the currency contained in the store's cash register. The manager, fearing for her life, complied with [Appellant’s] nefarious demand by handing over the monies, which was comprised of numerous one … and five … dollar bills.

Multiple Domino’s employees witnessed the hold-up, and the business surveillance system recorded, both visually and audibly, the robbery. The employees immediately reported the incident to law enforcement. After receiving news of the crime, officers were dispatched to canvass the area surrounding the pizza joint. Officers quickly found [Appellant] walking in the vicinity and stopped [him] to inquire about the robbery. When the policemen observed [Appellant], he was wearing the same embroidered pants observed at the crime scene and a black tee- shirt. After arresting [Appellant] for an unrelated crime,[1] it was later revealed that [he] was the same individual who earlier robbed the Domino's Pizza.

The police also discovered the articles of clothing, worn in the robbery, and the knife, displayed to the store manager, abandoned behind a building close to where [Appellant] was apprehended. Some of the articles were later determined to have [Appellant’s] DNA present on them. Police also found a large amount of low-denominational currency on [Appellant’s] person after he was arrested.

Trial Court’s Pa.R.A.P. 1925(a) Opinion (TCO), 4/28/14, 1-2 (footnote

omitted).

____________________________________________

1 Appellant was initially arrested for public drunkenness.

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On April 17, 2013, the Commonwealth filed a criminal information

charging Appellant with nine offenses, including three counts of robbery, and

one count each of terroristic threats, simple assault, theft by unlawful

taking, receiving stolen property, harassment, and disorderly conduct.

Appellant filed several pre-trial motions, discussed in greater detail infra,

which were ultimately denied by the trial court. On September 11, 2013,

while some of those motions were still being considered, the Commonwealth

filed an amended criminal information. The amended information contained

a new total of twenty-three offenses, all of which pertained to the events

surrounding the robbery of the Clearfield Domino’s Pizza store. Ostensibly,

this was done to comply with the dictates of Alleyne v. United States, 133

S.Ct. 2151 (2013) (holding that any fact that serves to increase a

mandatory minimum sentence must be proven to the factfinder beyond a

reasonable doubt).

Following Appellant’s trial, which was held on October 16-18, 2013,

the jury found him guilty of all twenty-three counts. Appellant was

sentenced on December 6, 2013, to term of 8-16 years’ incarceration for

robbery, concurrent terms of 1-2 years’ incarceration each for terroristic

threats and simple assault, and no further penalty for all remaining counts.

Appellant filed timely post-sentence motions, which were denied after a

hearing. Appellant then filed a timely notice of appeal on February 4, 2014.

On February 5, 2014, the trial court ordered Appellant to file a Pa.R.A.P.

1925(b) statement (concise statement), and he complied in a timely fashion

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on February 25, 2014. The trial court issued its Rule 1925(a) opinion on

April 28, 2014.

Appellant now presents the following questions for our review:

I. Whether the [trial court] erred when, on July 9, 2013, it determined it was unable to rule on the portion of … Appellant’s Omnibus Pre[-]trial Motion relating to the suppression of DNA reports[?]

II. Whether the [trial court] erred when, on July 9, 2013, it dismissed the portion of … Appellant’s Omnibus Pre[-]trial Motion relating to the suppression of DNA evidence due to a faulty DNA swab of … Appellant[?]

III. Whether the [trial court] erred when, on July 9, 2013, it dismissed the portion of … Appellant’s Omnibus Pre[-]trial Motion relating to the suppression of video surveillance[?]

IV. Whether the [trial court] erred when, on July 9, 2013, it dismissed the portion of … Appellant’s Omnibus Pre[-]trial Motion relating to a change in venue[?]

V. Whether the [trial court] erred when, on or about September 11, 2013, it permitted the Commonwealth to amend the [c]riminal [i]nformation, at which time the Commonwealth added additional counts against … Appellant, exceeding the Lower Court’s order and violating … Appellant's due process rights under the Constitutions of the United States and Pennsylvania[?]

VI. Whether the [trial court] erred when, on September 24, 2013, … it denied a portion of … Appellant's Motion to Suppress Evidence relating to the suppression of audio recordings[?]

VII. Whether the [trial court] erred when, on September 24, 2013, … it denied a portion of … Appellant's Motion to Suppress Evidence relating to the suppression of evidence seized as a result of an invalid search and seizure[?]

VIII. Whether the [trial court] erred when, on October 11, 2013, it denied … Appellant’s Motion to Suppress DNA Evidence/Report[?]

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IX. Whether the [trial court] erred when, during … Appellant’s criminal jury trial on October 16, 2013, it allowed the testimony of Clifford Warner by overruling an objection made by the Defense, the objection being based in a lack of personal knowledge and/or relevancy[?]

X. Whether the [trial court] erred when, on October 18, 2013, it accepted a guilty verdict of the jury despite a lack of sufficien[t] … evidence presented by the Commonwealth[?]

XI. Whether the [trial court] erred when, on December 6, 2013, it sentenced … Appellant to a minimum term of incarceration of eight (8) years on the count of Robbery …, which exceeded … Appellant’s standard guideline range [sentence] of seventy-eight (78) to ninety (90) months[?]

XII. Whether … Appellant was improperly arraigned in accordance with the Pennsylvania Rules of Criminal Procedure[?]

XIII. Whether … Appellant was illegally detained as a result of an improper arrest[?]

XIV. Whether … Appellant’s trial was not commenced within one-hundred and eighty (180) days in accordance with Pa.R.C[rim].P. 600[?]

Appellant’s Brief at 8-9.

Appellant’s first two claims concern the trial court’s denial of his June

11, 2013 pre-trial motion to exclude DNA evidence. We adhere to the

following standard in reviewing Appellant’s evidentiary claims:

The standard of review for a trial court's evidentiary rulings is narrow. 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, prejudice, ill-will or partiality, as shown by the evidence of record.

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Commonwealth v. Hanford, 937 A.2d 1094, 1098 (Pa. Super. 2007)

(internal citations and quotation marks excluded). Moreover, “[t]o

constitute reversible error, an evidentiary ruling must not only be erroneous,

but also harmful or prejudicial to the complaining party.” Commonwealth

v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012), appeal denied, 62 A.3d 379

(Pa. 2013).

At the time Appellant filed his pre-trial motion, the DNA testing of the

items found abandoned near the crime scene (the sweatshirt, knit cap, and

knife) had yet to be completed. Nevertheless, Appellant proffered two

reasons to exclude the results of those tests. First, he alleged that the items

were photographed by police in close proximity to Appellant’s wallet, cell

phone, and other personal effects, which were each recovered directly from

Appellant’s person. Appellant continues to maintain that this provided an

opportunity for his DNA to transfer to the items found near the crime scene.

Second, Appellant contends that when a DNA swab was taken from him in

the Clearfield County Jail, it was contaminated when the person taking the

sample dropped the swab onto the floor of the jail. Appellant also alleges

that that person was not wearing gloves when he performed the DNA swab.

Based on these allegations, Appellant sought to exclude any DNA tests

resulting from the DNA swab and the DNA tests performed on the items

found near the crime scene pursuant to Pa.R.E. 403. Rule 403 provides that

“[t]he court may exclude relevant evidence if its probative value is

outweighed by a danger of one or more of the following: unfair prejudice,

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confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” Pa.R.E. 403. Appellant argues

that the trial court erred when it denied his pre-trial motion to exclude this

evidence because the alleged contamination would render any resulting DNA

testing results “unreliable, [and] … would serve to mislead the jury, which

would naturally give a great deal of weight to an expert report, and would

serve to confuse the issues since the report would be presented to the jury

as a fact.” Appellant’s Brief at 19.

On July 9, 2013, the trial court held a hearing to address Appellant’s

June 11, 2013 pre-trial motion. At that hearing, Deputy Gregory Collins

testified that he had taken the DNA swab in question from Appellant at the

Clearfield County Jail in April of 2013. He stated that he wore gloves when

he took the DNA swab from Appellant’s mouth. He admitted that he or

Appellant dropped the first swab; however, he stated that he “picked it up

and threw it in the garbage.” N.T., 7/9/13, at 5. Deputy Collins then

obtained a new swab and took another sample from Appellant. He could not

recall whether he changed his gloves at that time. However, he stated that

he would not have touched the portion of the swab (the pad) that holds the

saliva sample. He said, “I would have picked up the end that didn’t have the

saliva.” Id. at 5-6. Deputy Collins also stated, “And once I retrieved the

new swab, once you take that sample, that plastic slide covers that pad.

There’s no way that would have been contaminated at all.” Id. at 6. The

court did not hear any testimony concerning Appellant’s allegation that the

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evidence found near the scene had been contaminated by coming into

contact with Appellant’s personal effects when those items were

photographed.

After the hearing, the trial court issued an order ruling that, inter alia,

Appellant’s motion regarding the exclusion of DNA tests of the sweatshirt,

knit cap, and knife was premature because those results had yet to be

produced. It was not known at that time whether the items found near the

crime scene even contained Appellant’s DNA. Instead, the trial court

indicated that “[i]n the event a laboratory report indicating [Appellant’s DNA

was found on those items] is provided to the Defense, [Appellant] can re-

raise this issue[.]” Order, 7/9/13, ¶ 1. This is the ruling targeted by

Appellant’s first claim of error.

We ascertain no abuse of discretion in the trial court’s determination in

this regard, and Appellant’s argument to the contrary is undeveloped and

unconvincing. He contends that any report, regardless of its results, was

necessarily unreliable. However, Appellant fails to cite to any portion of the

record that supports his factual contention that some form of cross-

contamination occurred when the evidence found near the scene of the

crime was purportedly photographed near the personal effects seized from

his person. He also fails to state how he was prejudiced by the court’s

ruling, since he was afforded the opportunity to re-raise the same issue at a

later time. Accordingly, we conclude that Appellant’s first claim is without

merit.

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The trial court did reach the merits of Appellant’s second claim, which

is based upon the specific allegation that the swab taken from Appellant had

been contaminated when it was dropped. Based on Deputy Collins’

testimony, the trial court dismissed Appellant’s attempt to prospectively

exclude the DNA testing results based on the alleged contamination of the

DNA swab that was taken from him. Appellant contends that this ruling was

incorrect; however, he again provides an undeveloped argument to support

this claim. The testimony provided by Deputy Collins appears to have

resolved the matter, as it refutes Appellant’s factual allegation regarding

how the swab was purportedly contaminated. Appellant does not cite to any

portion of the record contradicting that testimony, nor does he offer any

legal citations that suggest the trial court’s ruling constituted an abuse of

discretion. Accordingly, we conclude that Appellant’s second claim lacks

Appellant’s third claim concerns another issue raised in his June 11,

2013 pre-trial motion. Appellant sought to exclude video evidence taken

from the Domino’s Pizza’s video surveillance system at the time of the

robbery (“the video”). Appellant contends that the video should have been

excluded because the Commonwealth failed to adequately establish a chain

of custody. Specifically, Appellant asserts that “no testimony of how the disc

[containing the video] was produced was offered [and], [thus,] a chain of

custody was not established.” Appellant’s Brief at 21.

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“To satisfy the requirement of authenticating or identifying an item of

evidence, the proponent must produce evidence sufficient to support a

finding that the item is what the proponent claims it is.” Pa.R.E. 901(a).

Moreover, “demonstrative evidence may be authenticated by evidence

sufficient to show that it is a fair and accurate representation of what it is

purported to depict which includes testimony from a witness who has

knowledge that a matter is what it is claimed to be.” Commonwealth v.

McKellick, 24 A.3d 982, 988 (Pa. Super. 2011) (citing Commonwealth v.

Serge, 896 A.2d 1170, 1177 (Pa. 2006), Pa.R.E. 901(a), and Pa.R.E.

901(b)(1)) (internal quotation marks omitted).

During the July 9, 2013 hearing, it was established that the video was

sent to police in compact disc form from Domino’s Pizza’s regional office in

Lock Haven, Pennsylvania. Appellant argues that “the person who actually

produced the compact disc containing the video would be required [to

testify] in order to establish the sanctity of the chain of custody.”

Appellant’s Brief at 21. Appellant contends that “there is no evidence that

the video recording sufficiently depicted the events that were the basis of

this case.” Id.

We disagree. The Commonwealth offered the testimony of a Domino’s

Pizza employee, Diane Thomas, who was at the scene of the robbery when it

occurred. She testified that the video accurately depicted the events that

occurred during the robbery. N.T., 7/9/13, at 15-16. This is sufficient

evidence to establish that the video “is what it is claimed to be.” McKellick,

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24 A.3d at 988. Appellant fails to provide any argument or citation to any

legal authority that suggests that Diane Thomas’ testimony was insufficient

to demonstrate the authenticity of the video. Accordingly, Appellant’s third

claim of error is without merit.

Next, in Appellant’s final claim pertaining to his June 11, 2013 pre-trial

motion, he asserts that the trial court erred when it denied his request for a

change of venue. Appellant argues that biased local media coverage of his

case prevented him from selecting a fair and impartial jury. The trial court

denied Appellant’s motion for a change of venue; however, it did so without

prejudice to Appellant’s ability to re-raise the claim if, during jury selection,

he continued to believe that he could not obtain a fair and impartial jury.

See Order, 7/9/13, ¶ 4.

Our standard of review in this matter is as follows:

Our cases make it clear that an application for a change of venue is addressed to the sound discretion of the trial court, and its exercise of discretion will not be disturbed by an appellate court in the absence of an abuse of discretion. In reviewing the trial court's decision, the only legitimate inquiry is whether any juror formed a fixed opinion of (the defendant's) guilt or innocence as a result of the pre-trial publicity. Normally, one who claims that he has been denied a fair trial because of prejudicial pre-trial publicity must show actual prejudice in the empaneling of the jury. But this rule is subject to an important exception. In certain cases there can be pre[-]trial publicity so sustained, so pervasive, so inflammatory, and so inculpatory as to demand a change of venue without putting the defendant to any burden of establishing a nexus between the publicity and actual jury prejudice, … because the circumstances make it apparent that there is a substantial likelihood that a fair trial cannot be had.

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Commonwealth v. Casper, 392 A.2d 287, 291 (Pa. 1978) (internal

citations, quotation marks, and footnotes omitted).

Appellant provides no argument in his brief, or any reference to

supporting documentation in the record, demonstrating actual prejudice

resulting from pre-trial publicity. However, Appellant does argue that he is

not obligated to demonstrate actual prejudice, invoking the exception

detailed in the above-stated standard. Nevertheless, we cannot deem the

pre-trial publicity in this case “so sustained, so pervasive, so inflammatory,

and so inculpatory” to relieve him of the burden of “establishing a nexus

between the publicity and actual jury prejudice” when Appellant merely

avers that “local media outlets present[ed] the contents of affidavits of

probable cause as fact, resulting in the public opinion that … Appellant was

already guilty.” Id.; Appellant’s Brief at 23. Appellant fails to cite to any

portion of the record supporting his averment. Appellant does not even

name a single media outlet that publicized his case. Accordingly, we

conclude that Appellant’s change of venue claim lacks merit.2

2 Moreover, the trial court expressly permitted Appellant to re-raise his change-of-venue claim, without prejudice, if Appellant found that the jury pool had been tainted by the media coverage during voir dire. Appellant does not direct our attention to any portion of the record that establishes that he re-raised this claim. Appellant’s failure to re-raise this claim, and his failure to offer any taint evidence, demonstrate that he was not prejudiced by the trial court’s decision.

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In his fifth claim, Appellant argues that the trial court abused its

discretion when it permitted the Commonwealth to amend the criminal

information. The Commonwealth filed a motion to amend the criminal

information on August 9, 2013. That motion was granted on or about

September 10, 2013, and the Commonwealth filed an amended information

on or about September 11, 2013.

Pursuant to Pennsylvania Rule of Criminal Procedure 564, an information may 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.” Pa.R.Crim.P. 564. The purpose of this rule is to “ensure that a defendant is fully apprised of the charges, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed.” Commonwealth v. Sinclair, 897 A.2d 1218, 1221 (Pa. Super. 2006); Commonwealth v. Hoke, 928 A.2d 300, 303 (Pa. Super. 2007). The test to be applied when evaluating a challenge to an amended information was set forth in Commonwealth v. Bricker, 882 A.2d 1008, 1019 (Pa. Super. 2005) (citation omitted), as follows:

Whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If 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.

Relief is warranted only when the amendment to the information prejudices a defendant. Commonwealth v. Roser, 914 A.2d 447, 454 (Pa. Super. 2006), appeal denied 592 Pa. 788, 927 A.2d 624 (Pa. 2007); Sinclair, 897 A.2d at 1223.

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Factors to be considered when determining whether [an a]ppellant was prejudiced by the Commonwealth's amendment include whether the amendment changes the factual scenario; whether new facts, previously unknown to [the] appellant, were added; whether the description of the charges changed; whether the amendment necessitated a change in defense strategy; and whether the timing of the request for the amendment allowed for ample notice and preparation by [the] appellant. Roser, 914 A.2d at 454; Sinclair, 897 A.2d at 1223.

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

In reviewing the record, this Court finds no indication that Appellant

objected to the Commonwealth’s amendment of the criminal information

until he filed a post-sentence motion on December 16, 2013. This was not a

last minute amendment. The Commonwealth filed its motion to amend the

criminal information on August 9, 2013. The information was not amended

until September 11, 2013, and Appellant’s trial did not begin until October

16, 2013. Thus, Appellant had ample opportunity to file an objection to the

amendment, despite his claim that the trial court granted it without a

hearing. The heart of Appellant’s claim is that the “increase in the number

of counts is, in itself, prejudicial to … Appellant.” Appellant’s Brief at 25.

Even if Appellant’s assertion were true, it must also have been true 1) when

the Commonwealth sought to amend the criminal information, 2) when the

information was actually amended, and 3) when the trial commenced.

Appellant provides no argument, whatsoever, regarding why he did not

object to the amendment before his trial concluded. As noted above, part of

the review of whether Appellant is prejudiced by an amendment to the

criminal information is “whether the timing of the request for the

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amendment allowed for ample notice and preparation by [A]ppellant.” Id.

at 1224. By failing to object to the amendment of the criminal information

in a timely fashion, Appellant foreclosed on the trial court’s opportunity to

minimize or eliminate any resulting prejudice. In these circumstances, we

conclude that Appellant waived his challenge to the Commonwealth’s

amendment of the information.

Appellant’s sixth claim concerns the trial court’s denial of his motion to

suppress an audio recording of the robbery. Appellant argues that the

recording should have been suppressed because it violated Pennsylvania’s

Wiretapping and Electronic Surveillance Control Act (WESCA), 18 Pa.C.S. §

5701 et seq. WESCA provides a statutory exclusionary rule for oral

communications that fall within the purview of the act. 18 Pa.C.S. §

5721.1(b). Appellant contends the audio recording of the robbery

constitutes an oral communication under WESCA and, furthermore, that no

exception applies. The trial court ruled that the recording was not

excludable under WESCA.

Our 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 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, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where, as here, the appeal of the determination of the

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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 our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012)

(quoting Commonwealth v. Hoppert, 39 A.3d 358, 361–62 (Pa. Super.

2012)).

WESCA defines an “[o]ral communication” as “[a]ny oral

communication uttered by a person possessing an expectation that such

communication is not subject to interception under circumstances justifying

such expectation.” 18 Pa.C.S. § 5702 (Definitions).

[I]n determining what constitutes an “oral communication” under the Wiretap Act, the proper inquiries are whether the speaker had a specific expectation that the contents of the discussion would not be intercepted, and whether that expectation was justifiable under the existing circumstances. In determining whether the expectation of non-interception was justified under the circumstances of a particular case, it is necessary for a reviewing court to examine the expectation in accordance with the principles surrounding the right to privacy, for one cannot have an expectation of non-interception absent a finding of a reasonable expectation of privacy. To determine the existence of an expectation of privacy in one's activities, a reviewing court must first examine whether the person exhibited an expectation of privacy; and second, whether that expectation is one that society is prepared to recognize as reasonable.

Agnew v. Dupler, 717 A.2d 519, 523 (Pa. 1998).

Here, the trial court determined that Appellant

did not exhibit an expectation of privacy when he allegedly robbed the restaurant, nor would the expectation (if [Appellant] had an expectation of privacy) be one that society would be prepared to recognize as reasonable under the circumstances.

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Moreover, [Appellant] had to anticipate that his conversation might have been intercepted in the store.

Trial Court Suppression Opinion, 9/24/13, at 2. Thus, the trial court

concluded that Appellant’s recorded statements were not an oral

communication that fell within the purview of WESCA.

The lion’s share of Appellant’s argument, however, is dedicated to

demonstrating that no exception applies to his invocation of WESCA. We

need not reach those argument unless Appellant demonstrates that his

statements were oral communications under WESCA. To do so, he must

demonstrate a privacy interest in the recorded statement that is both

general (one that society recognizes as reasonable) and specific (that he did

not expect his statement to be intercepted).

In this regard, Appellant argues that there was no notice provided by

the store that any conversation held therein was being recorded, and that

there was no evidence that he even saw the surveillance camera. He

suggests that these facts demonstrate that he had a reasonable expectation

that his conversation would not be intercepted. However, we need not reach

the question of whether Appellant had a reasonable expectation that his

statements in the store would not be intercepted because we conclude that

he had no reasonable expectation of privacy in any conversation he had in

that location at all.

“We consider the totality of the circumstances and carefully weigh the

societal interests involved when determining the legitimacy of such an

expectation.” Commonwealth v. Duncan, 752 A.2d 404, 409 (Pa. Super.

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2000), aff'd in part and remanded, 817 A.2d 455 (Pa. 2003). One cannot

reasonably expect that conversations of non-employees with employees in

the lobby of a store open to the public are private communications. The

location itself bears none of the hallmarks of areas where the expectation of

privacy has been held to be reasonable, such as a home, hotel room, or

personal vehicle. The lobby of the Domino’s Pizza was accessible to the

public and not the type of location where one would reasonably expect to be

free of intrusion in their oral communications.

Moreover, there is nothing inherent in the nature or content of

Appellant’s recorded statements that suggests his reliance on a privacy

interest in the store. Appellant was not an employee of the store, nor does

the record suggest that he had any relationship with any of the store’s

employees. Furthermore, there is nothing analogous to a situation where

“bank customers have a legitimate expectation of privacy in records

pertaining to their affairs kept at the bank[,]” because Appellant was not in

the store for the purposes of engaging in any legitimate transaction with the

business. Commonwealth v. DeJohn, 403 A.2d 1283, 1291 (Pa. 1979).

Appellant contends that Commonwealth v. Wright, 25 Pa.D. & C.

4th 463 (Cumberland Co. 1994), supports his position. Whether it does or

does not support his position is immaterial. Wright has no precedential

value before this Court. Nevertheless, Wright is distinguishable as the

recording at issue in Wright occurred in a common area of a hotel. We do

not dispute that one may have a reasonable expectation of privacy in a hotel

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hallway under certain circumstances. One could reasonably expect a greater

degree of privacy in a hotel lobby than in a Domino’s Pizza store lobby,

being that the former acts as a temporary residence for its customers.

Appellant was not staying at the Domino’s Pizza overnight. He was not

conducting a conversation immediately outside or adjacent to a location

where there is a clear and legitimate privacy interest (a hotel room). Thus,

even if the Wright case carried precedential weight with this Court, it is not

sufficiently analogous to this case to demonstrate that the trial court erred in

denying Appellant’s WESCA-based motion to exclude. Accordingly, we

conclude that Appellant’s sixth claim lacks merit because he had no

reasonable expectation of privacy in the lobby of a Domino’s Pizza store that

society is prepared to recognize as reasonable.

Appellant’s seventh claim also concerns his August 1, 2013

suppression motion, wherein he asserted that the seizure of his wallet by

police should have been suppressed as the fruit of an illegal search and

seizure. The trial court held that a temporary seizure and search of

Appellant’s wallet that occurred prior to his arrest was justified under Terry

v. Ohio, 392 U.S. 1 (1968). The trial court also held that the permanent

seizure of the wallet was justified as the product of a search incident to

Appellant’s arrest for public drunkenness.

We note that:

Terry specifically held that when an officer is justified in believing that the individual whose suspicious behavior he is investigating is armed and presently dangerous to the officer or

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to others, the officer may conduct a frisk of the suspect's outer clothing to determine whether the person is in fact carrying a weapon. Terry, 392 U.S. at 24, 88 S.Ct. at 1881; [Commonwealth v. Hicks, 253 A.2d 276, 279 (Pa. 1969)]. Since the sole justification for a Terry search is the protection of the police and others nearby, such a protective search must be strictly “limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” Terry, 392 U.S. at 26, 88 S.Ct. at 1882. Thus, the purpose of this limited search is not to discover evidence, but to allow the officer to pursue his investigation without fear of violence. If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.

Commonwealth v. E.M., 735 A.2d 654, 661 (Pa. 1999) (some internal

citations omitted).

At the suppression hearing addressing this matter, the trial court

heard testimony from Officer James Glass of the Lawrence Township Police.

Immediately after the robbery of the Domino’s Pizza, Clearfield Police

contacted Officer Glass to assist in locating a male suspect observed fleeing

from the Domino’s Pizza. Soon thereafter, Officer Glass observed Appellant

coming from the location of the Domino’s Pizza, traversing a grassy area on

the same trajectory from which the witnesses at the crime scene had

indicated the robber had fled. Glass immediately recognized Appellant as

“Billy Rauch.” N.T., 8/13/13, at 19.

Because he was investigating an armed robbery, Officer Glass

handcuffed Appellant while he conducted a pat-down for weapons. No

weapons were discovered. However, Officer Glass indicated that when he

was patting Appellant down, “I went to what I felt was a large object in his

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left back pocket. I reached in, it was a billfold, a wallet, so I … pulled it out.”

Id. Officer Glass testified that the sole reason for retrieving Appellant’s

wallet and opening it was for identification purposes. When asked why he

needed Appellant’s driver’s license when he already knew Appellant’s

identity, Officer Glass indicated that by giving a driver’s license number to

dispatch, he could quickly discover if Appellant was on probation or had any

outstanding warrants. Officer Glass stated, “[j]ust me knowing that that’s

Mr. Rauch, doesn’t give me the information that he didn’t do something in

[another county]….” Id. at 28. After he ran Appellant’s driver’s license

number, Officer Glass returned the wallet to Appellant’s pocket. During this

encounter, Officer Glass noticed the odor of a “malt or brewed beverage

coming from [Appellant].” Id. at 21. He also noticed that Appellant’s

speech was slurred. Furthermore, when Appellant was asked where he was

going, he indicated that he was headed to a bar that Officer Glass knew had

been closed for some time.

The trial court initially held that the temporary seizure and search of

Appellant’s wallet was justified under Terry; however, the court’s reasoning

for this is deeply flawed. The scope of a Terry pat-down is limited to a

search for weapons. E.M., 735 A.2d at 661; Hicks, 253 A.2d at 279

(finding an officer may frisk a suspect's outer clothing for weapons if he

reasonably concludes that the person with whom he is dealing may be

armed and dangerous); Terry, 392 U.S. at 27 (holding a frisk for weapons is

justified if “a reasonably prudent man in the circumstances would be

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warranted in the belief that his safety or that of others was in danger”).

Additionally, under the plain feel doctrine, “an officer may also properly seize

non-threatening contraband detected through the sense of touch during a

protective frisk for weapons.” Commonwealth v. Zhahir, 751 A.2d 1153,

1158 (Pa. 2000). However, such contraband may only be seized when “its

incriminating nature is immediately apparent from its tactile impression; and

the officer has a lawful right of access to the object.” Id. at 1159.

Here, the temporary seizure of Appellant’s wallet was expressly done

for the purpose of obtaining Appellant’s I.D., and thus it was not justified as

a search for weapons under Terry. Nor is the seizure justified under the

plain feel doctrine, because Glass did not seize the wallet because it felt like

incriminating contraband. Glass seized the wallet because it was likely to

contained Appellant’s I.D.3

The court’s reliance on Hiibel v. Sixth Judicial Dist. Court of

Nevada, Humboldt Cnty., 542 U.S. 177 (2004), is unfounded. Hiibel did

not involve the search or seizure of a person’s personal effects for the ____________________________________________

3 We reject out of hand the trial court’s statement that the “wallet was not searched or seized by … Glass, but merely used to identify the suspect.” Trial Court Suppression Opinion, 9/24/13, 8. The undisputed testimony of Glass was that he removed the wallet from Appellant’s back pocket and that Glass searched it for Appellant’s driver’s license. Moreover, the record also demonstrates that Appellant’s identity was already known to Glass before his driver’s license number was obtained from Appellant’s wallet. Thus, at best, Appellant’s wallet was searched in order to assist Glass in determining Appellant’s probation status, or whether he had any outstanding warrants, but not in order to discover Appellant’s identity.

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purpose of identification during a Terry stop. Hiibel was convicted for not

identifying himself during an otherwise valid Terry stop pursuant to a ‘stop

and identify’ statute in effect in Nevada. The Hiibel Court held that a “state

law requiring a suspect to disclose his name in the course of a valid Terry

stop is consistent with Fourth Amendment prohibitions against unreasonable

searches and seizures.” Hiibel, 542 U.S. at 188. The Supreme Court did

not sanction the seizure or search of a Terry stop target’s wallet for the

purpose of identification in Hiibel. Simply put, asking a pertinent question

during a Terry stop, as was at issue in Hiibel, is not remotely analogous to

police rifling through someone’s personal effects in search of evidence to

support a fact (Appellant’s identity) already known to them at the time of

the stop. Accordingly, we conclude that the trial court’s determination, that

the temporary search/seizure of Appellant’s wallet for identification purposes

was permitted under Terry, was erroneous.

Nevertheless, we believe the trial court’s ultimate conclusion to deny

suppression was justified. When Appellant was arrested for public

drunkenness, Officer Glass had already returned his wallet to him. The

later, permanent seizure of Appellant’s wallet during his arrest for public

drunkenness was legal pursuant to the search-incident-to-arrest exception

to the warrant requirement. That “exception permits an arresting officer

without a warrant to search an arrestee's person and the area within his

immediate control only for personal property immediately associated with

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the arrestee.” Commonwealth v. Stem, 96 A.3d 407, 410 (Pa. Super.

2014).

Appellant argues that his arrest for public drunkenness “was

pretexual” because Appellant was never charged with public drunkenness.

Appellant’s Brief at 32. However, Appellant does not cite any legal authority

to support his contention, whereas the evidence at the suppression hearing

adequately demonstrates that the police had probable cause to arrest him

for that offense. Officer Glass testified that during his interaction with

Appellant, he was able to determine by his training and experience that

Appellant was under the influence of alcohol. Officer Glass said that he

“could smell [the odor of a] malt or brewed beverage coming from him.”

N.T. Suppression, 8/13/13, at 21. He noticed that Appellant’s speech was

slurred. Furthermore, Appellant told Officer Glass that he had been drinking

and indicated that he was headed to another bar, one which Officer Glass

knew had been closed for some time. Officer Ralph Dale Nedza also

participated in the arrest of Appellant. He indicated that “[w]hile speaking

to [Appellant], I could s[m]ell an odor of intoxicating beverage on his

person. He did have a slight slur in his speech and he appeared to be using

the car from time to time to … keep his balance.” Id. at 32.

The offense of public intoxication is defined by statute, in pertinent

part, as follows: “A person is guilty of a summary offense if he appears in

any public place manifestly under the influence of alcohol or a controlled

substance … to the degree that he may endanger himself or other persons or

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property, or annoy persons in his vicinity.” 18 Pa.C.S. § 5505. Here,

Appellant was in a public place and intoxicated, as evidenced by what was

observed directly by Officers Glass and Nedza, and by Appellant’s own

statements at the scene. Additionally, Appellant’s statement to Officer Glass

that he was headed to a bar that had been closed for some time, and

Officer’s Nedza’s testimony that Appellant was using a car to keep his

balance, both demonstrate that it was reasonable for the officers to believe

that Appellant was intoxicated “to the degree that he may endanger himself

or other persons or property….” 18 Pa.C.S. § 5505. Accordingly, we

conclude that there was probable cause to arrest Appellant for public

intoxication. As such, the seizure of Appellant wallet was legal as it was the

product of a search incident to that arrest.4

Appellant’s eighth issue concerns his October 10, 2013 motion to

suppress DNA evidence, which he contends was erroneously denied by the

trial court. In that motion, Appellant argued that he had insufficient time to

prepare a defense because the report had been provided to him by the

prosecution on October 2, 2013, and his trial was scheduled to commence

on October 18, 2013. The trial court denied the motion. Appellant

maintains that because of the delay in the production of the DNA results,

4 Notably, there was no evidence gleaned from the illegal but temporary seizure and search of Appellant’s wallet during the preceding Terry stop that was used to justify Appellant’s arrest for public intoxication.

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which were submitted for testing in June of 2013, he “was forced to choose

either continuing the trial and remaining incarcerated for additional months

(since the delay would have been attributable to the defense), or

proceed[ing] to trial without being able to prepare an adequate defense to

the DNA expert[’s] report….” Appellant’s Brief at 38. The trial court denied

the motion to suppress, reasoning that:

A review of the record will show suppression of the DNA report was an inappropriate sanction under the circumstances. [Appellant] was on notice that the Commonwealth was awaiting the results of their DNA testing. On August 6, 2013, during argument on the Commonwealth’s Motion to Continue, the Commonwealth asked this Court to continue [Appellant’s] trial to allow it to receive the results of DNA testing sent to the state crime lab. The Commonwealth told the Court and [Appellant] that the information from the tests would be received in early October. The Court, on August 6, 2013, then predicted that [Appellant] would ask for a continuance to seek independent review of the results.

The Court was willing to grant a continuance to allow [Appellant] to acquire analysis of the DNA report by an expert of his choosing. However, [Appellant] was unwilling to continue the trial and was adamant on having his trial on the dates previously fixed by the Court. Since [Appellant] was on notice that an incriminating report was going to be produced by the Commonwealth during the first week of October, 2013, the Court believed that suppressing the results of such report was inappropriate and unjust to the Commonwealth. [Appellant] could have also filed a [M]otion, at any point prior to the trial, seeking an independent examination and DNA analysis of the articles tested by the Commonwealth. [Appellant] declined to do so. Suppression, in this instance, was an unsuitable remedy: [Appellant] had other options at his disposal and refused to take those options.

TCO, at 10-11.

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We ascertain no error in either the trial court’s analysis or its

conclusion. Appellant does not cite to any legal authority to support his

claim, but instead makes a bald assertion that the trial court’s denial of his

motion to suppress violated his due process rights. Moreover, Appellant fails

to describe how he was prejudiced beyond the incriminating nature of the

DNA test results. Accordingly, we conclude that Appellant’s eighth issue

lacks merit.

Appellant’s ninth claim concerns his objection to the testimony of the

Commonwealth’s witness, Clifford Warner (Warner). Warner testified that

he owned a knife that was similar to the one found near the crime scene in

this case. Warner said that he gave the knife to his cousin, Leah Coates, in

the summer of 2012, less than a year before the robbery. Ms. Coates was

Appellant’s girlfriend at that time. Appellant complains that Warner’s

testimony should have been excluded as irrelevant and/or because Warner

had no personal knowledge regarding whether Ms. Coates gave his knife to

Appellant. The trial court concluded that Warner’s testimony was relevant

circumstantial evidence. The court found that Warner’s testimony

“demonstrated that the knife utilized in the commission of the crime had a

connection to [Appellant]. Mr. Warner, on cross-examination, identified

certain characteristics of the knife that made it unique.” TCO, at 12.

Appellant complains that Warner had not yet testified regarding the

unique features of the knife when he issued his objection. However,

Appellant renewed his objection after Warner’s testimony was completed.

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Thus, at that time, it was clear that the unique features of the knife resolved

Appellant’s concerns regarding the relevancy of Warner’s testimony.

“Evidence is relevant if … it has any tendency to make a fact more or less

probable than it would be without the evidence….” Pa.R.E. 401. Here,

Warner’s testimony tended to make it more probable that Appellant was the

robber, because Appellant had access to the knife found abandoned with the

clothing of the perpetrator after the robbery.

Furthermore, Warner’s lack of personal knowledge regarding how and

when the knife could have been transferred from Ms. Coates to Appellant

was no impediment to Warner’s testimony because Warner did not attempt

to testify that such an exchange occurred. Warner had personal knowledge

of the knife, its unique characteristics, and that he gave it to Ms. Coates.

His lack of personal knowledge regarding the transmission of the knife to

Appellant would only have prevented his testimony regarding such an

exchange. Thus, Appellant’s ninth claim also lacks merit.

Appellant’s tenth claim is a challenge to the sufficiency of the

evidence. To substantiate his claim, Appellant directs our attention to

several inconsistencies in the Commonwealth’s evidence. For instance, one

witnesses testified that the robber’s eyes were brown, whereas Appellant’s

eyes are blue. Another witness testified that the robber wore greenish blue

jeans, whereas Officer Glass testified that Appellant was arrested in blue

jeans. Finally, one witness testified that she did not see any tattoos on the

robber’s hands. Appellant does have tattoos on his hands.

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Our standard of review of sufficiency claims is well-settled:

A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim[,] the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

The discrepancies that exist with regard to some of the identity

evidence does not render all the evidence of identity insufficient. Other

identity evidence tended to establish Appellant’s identity as the robber,

including the discovery of Appellant’s DNA on the clothing used by the

robber and abandoned near the scene of the crime, the witnesses’

descriptions of an embroidered design on the perpetrator’s jeans that

matched Appellant’s jeans, and Appellant’s connection to Warner’s unique

knife. Thus, Appellant’s argument fails because it implicates the weight of

the evidence establishing his identity as the robber, not the sufficiency of

that evidence. The jury was free to weigh all the evidence regarding

Appellant’s identity and conclude that, despite some evidence to the

contrary, the bulk of identity evidence established that Appellant was the

robber beyond a reasonable doubt. See Commonwealth v. Estepp, 17

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A.3d 939, 943-44 (Pa. Super. 2011) (“Any doubts regarding a defendant's

guilt may be resolved by the fact-finder 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.”); Id. at 944 (“[T]he finder of fact while

passing upon the credibility of witnesses and the weight of the evidence

produced, is free to believe all, part or none of the evidence.”).

Next, Appellant challenges the discretionary aspects of his sentence.

He contends that the trial court gave insufficient reasons for its departure

from the standard guideline sentencing range. He argues that the reasons

given – his criminal history and his use of a deadly weapon during the

robbery – were already addressed by the guidelines.

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007)

(citation omitted).

Moreover, “[c]hallenges to the discretionary aspects of sentencing do

not entitle an appellant to appellate review as of right.” Commonwealth v.

Evans, 901 A.2d 528, 533 (Pa. Super. 2006). Thus, before we reach the

merits of a discretionary sentencing issue:

[W]e conduct a four part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902

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and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 1410 [now Rule 720]; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id.

Here, Appellant raised a sentencing claim in a post-sentence motion,

however, he did not raise the same claim that he now presents on appeal.

In his post-sentence motion, Appellant sought a reduction of his sentence

because 1) he has two young sons; 2) his mother is in poor health and relies

on him for support; and 3) he had no violent criminal history. Appellant’s

Post-Sentence Motion, 12/16/13, 4-5 ¶ 21. In his brief, however, Appellant

claims that the trial court failed to place adequate reasons on the record for

its departure from the standard guideline sentencing range. In these

circumstances, we conclude that Appellant has not met the second criterion

of the above-mentioned test. Consequently, he has waived his discretionary

aspects of sentencing claim.

In Appellant’s twelfth claim, he posits that he was not properly

arraigned in accordance with the 10-day window prescribed by Pa.R.Crim.P.

571(A).5 Appellant contends that this violated his due process rights under

the United States and Pennsylvania Constitutions.

5 Rule 571(A) states that:

(Footnote Continued Next Page)

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In Appellant’s concise statement, he stated that he “was not properly

arraigned in accordance with the Pennsylvania Rules of Criminal

Procedure[.]” Appellant’s Concise Statement, 2/25/14, at 2 ¶ 12a. The trial

court found this claim lacked any merit because Appellant did “not articulate

specifically how he was not properly arraigned, or how he was prejudiced by

any purported defect in the arraignment process.” TCO, at 16.

We agree with the trial court. Appellant’s concise statement failed to

specify the manner in which he was improperly arraigned or how he was

prejudiced by that error. Accordingly, we conclude that the claim has been

waived. See Pa.R.A.P. 1925(b)(4)(ii) (“The [concise statement] shall

concisely identify each ruling or error that the appellant intends to challenge

with sufficient detail to identify all pertinent issues for the judge.”)

(emphasis added); and see Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included

in the Statement and/or not raised in accordance with the provisions of this

paragraph (b)(4) are waived.”).

_______________________ (Footnote Continued)

Except as otherwise provided in paragraph (D), arraignment shall be in such form and manner as provided by local court rule. Notice of arraignment shall be given to the defendant as provided in Rule 114 or by first class mail. Unless otherwise provided by local court rule, or postponed by the court for cause shown, arraignment shall take place no later than 10 days after the information has been filed.

Pa.R.Crim.P. 571(A).

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Next, Appellant contends that he should not have been detained

following his arrest for public drunkenness. He believes that his continued

detention following that arrest was illegal under Pa.R.Crim.P. 519(B)(1).

As we previously concluded, Appellant’s arrest for public drunkenness

was supported by probable cause. Nevertheless, Rule 519(B)(1) provides

that:

(1) The arresting officer shall promptly release from custody a defendant who has been arrested without a warrant, rather than taking the defendant before the issuing authority, when the following conditions have been met:

(a) the most serious offense charged is a misdemeanor of the second degree or a misdemeanor of the first degree in cases arising under 75 Pa.C.S. § 3802;

(b) the defendant poses no threat of immediate physical harm to any other person or to himself or herself; and

(c) the arresting officer has reasonable grounds to believe that the defendant will appear as required.

Pa.R.Crim.P. 519(B)(1).

Appellant argues that because he was arrested for a summary offense,

and because he met each of the three criteria set forth in Rule 519(B)(1)(a)-

(c), he should have been immediately released from custody following his

arrest. However, Appellant’s argument in support of this claim amounts to

less than one page, most of which is dedicated to quoting Rule 519(B)(1),

and he fails to cite to any other controlling legal authority. Moreover,

Appellant fails to state to what form of relief he is entitled. Indeed, even if

Appellant had properly developed an argument that Rule 519(B)(1) was

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violated in this case, and that his continued detention after his arrest was

illegal, he would not be entitled to the suppression of any evidence seized

incident to that arrest because the arrest itself was legal. Accordingly, we

conclude that Appellant’s thirteenth claim lacks merit.

Finally, Appellant claims that a Pa.R.Crim.P. 600 violation occurred in

this case because his trial did not commence within 180 days. However,

Appellant admits that the trial court’s Rule 1925(a) “opinion is correct

insofar as the remedy for the Rule 600 violation is presently moot….”

Appellant’s Brief at 46. Nevertheless, Appellant “wanted to present this

violation to this Honorable Court as further evidence of how the [trial]

[c]ourt and the Commonwealth violated his due process rights prescribed by

the Constitutions of the United States and the Commonwealth of

Pennsylvania.” Appellant’s concerns are duly noted, and we accept his

concession that he is not entitled to relief on this claim.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/8/2014

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