Com. v. Watson, L.

Opinion

J-A18002-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA

Appellee :

:

v. :

:

LaQUINCEY ANTRON WATSON, :

:

Appellant : No. 900 MDA 2013

Appeal from the Judgment of Sentence entered on April 23, 2013 in the Court of Common Pleas of Dauphin County, Criminal Division, No. CP-22-CR-0004167-2010

BEFORE: LAZARUS, WECHT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 11, 2014 from the judgment of

sentence imposed following his convictions of twelve counts of burglary and one count each of robbery, receiving stolen property, and possession of a firearm.1 We affirm.

The trial court has set forth an extensive recitation of the underlying facts in its Opinion, which we adopt for the purpose of this appeal. See Trial Court Opinion, 10/28/13, at 1-12. Relevantly, Detective James Glucksman

between 600 and 1,000 burglaries, including serial burglary cases. Glucksman became involved with this case on March 5, 2010, when he was ordered to investigate the third burglary in Lower Paxton Township that

1 See 18 Pa.C.S.A. §§ 3502, 3701(a)(1)(ii), 3925, 6105(a)(1).

J-A18002-14 weekend. Glucksman determined that a witness had encountered the burglar and, based on the information and description provided, assembled a photo array for review by the witness, which ultimately led to the identification of Watson as a suspect. The burglaries that occurred in rounding areas, fit a pattern of burglaries wherein the modus operandi driveway and kicking in a door in order to gain access during daylight hours. Watson was subsequently arrested and Glucksman obtained a search warr Glucksman searched for, inter alia, a pair of sneakers that had a tread pattern consistent with marks recovered from the door of a home that had been robbed. While conducting the search, Glucksman seized two pairs of sneakers matching the tread pattern and photographed a gun holster, cameras, jewelry, laptop, coins and radios. Glucksman subsequently

to sell

them on the internet. Glucksman contacted her, and, after observing the items in her apartment and confirming they were in fact reported as stolen, seized the items with her consent. Watson was charged with more than twenty crimes, predominantly burglaries, which took place over the course of approximately four months (November 2009-March 2010)

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J-A18002-14 in four counties.2 The stolen items included household electronics, jewelry, collectible coins, and other cash or coins. Watson moved to suppress this evidence at one of the pretrial hearings, but his Motion was denied.

Watson also filed a Motion to Sever Charges, a Motion for Severance of

and a Motion to Exclude Admission o

which were denied.3

Dauphin County in September 2012. Watson was found guilty of the above- mentioned crimes, and acquitted on three counts of burglary. On December 17, 2012, Watson was sentenced to an aggregate sentence of 33½-67 years in prison. Watson filed a timely Post-Sentence Motion. On April 23, 2012, the trial court granted -Sentence Motion and issued an Amended Sentencing Order, stating that Watson was to serve 22-44½ years in prison. Watson filed a timely Notice of Appeal and a Concise Statement of Matters Complained of on Appeal, pursuant to Pa.R.A.P. 1925(b).

On appeal, Watson raises the following questions for our review:

2 The Commonwealth dropped eleven of the charges, leaving Watson to face charges for 5 burglaries that occurred in Dauphin County, 5 burglaries that occurred in York County, 5 burglaries that occurred in Cumberland County, and 2 burglaries that occurred in Lancaster County. 3

Pretrial Motions are not relevant to this appeal.

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J-A18002-14

I.

[M]otion to [S]uppress physical evidence and identification of evidence where the search exceeded the scope of the warrant and the plain view exception was [] inapplicable in violation of Article 1, Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution?

II.

[P]retrial [M]otion for [S]everance where the crimes were not part of a single criminal episode?

III.

[A]ccompanying [E]xpert [T]estimony where such is not generally accepted in the field of cell phone technology?

IV.

repeatedly violated a pre[]trial order forbidding opinion testimony regarding the cellular phone records?

Brief for Appellant at 8.

In his first claim, Watson argues that the trial court erred in denying his Motion to Suppress and allowing the gun holster, cameras, coins, laptop, and radios that were manipulated, photographed, and eventually seized by Glucksman, to be introduced as evidence. Id. at 31, 33. Watson claims that these items were outside of the four corners of the search warrant; Glucksman had no reason to suspect that they were stolen; and they were not in plain view. Id. at 30, 32-34. Watson asserts that the evidence should be suppressed as the fruit of the poisonous tree. Id. at 34.

Our standard of review of a denial of suppression is whether the legal conclusions drawn therefrom are free from

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error. Our scope of review is limited; we may consider only the evidence of the prosecution 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 record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.

Commonwealth v. Galendez, 27 A.3d 1042, 1045 (Pa. Super. 2011) (en banc) (citation omitted).

object of the search and the places in which there is probable cause to Commonwealth v. Taylor, 771 A.2d 1261, 1265- seize things other than those described in the search warrant if they have a reasonable relation to the purpose of the search and are the fruits of crime, such as stolen property. Commonwealth v. Gannon, 454 A.2d 561, 565 (Pa. Super. 1982) (citations and quotations omitted). Further, a warrant is

Commonwealth v. Bowers, 274 A.2d 546, 547 (Pa.

Super. 1970) (citations omitted); see also Commonwealth v. Anderson, 40 A.3d 1245, 1248 (Pa. Super. 2012).

The plain view doctrine applies if 1) police did not violate the Fourth Amendment during the course of their arrival at the location where they viewed the item in question; 2) the item was not obscured and could be seen plainly from that location; 3) the incriminating nature of the item was readily apparent; and 4)

police had the lawful right to access the item. Thus, police executing a valid search warrant may seize items not listed in the warrant if their incriminating nature is immediately apparent.

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Commonwealth v. Harvard, 64 A.3d 690, 698 (Pa. Super. 2013) (internal citation omitted).

and determined that it

is without merit. See Trial Court Opinion, 10/28/13, at 14-17. We adopt

affirm on its basis. See id.; see also Harvard, 64 A.3d at 698 (concluding that police officers, executing a valid search warrant, properly seized items that were not listed in the search warrant, but matched the description of items stolen in the robberies under investigation).

In his second claim, Watson contends that the trial court erred in denying his Motion for Severance, as venue was not proper in Dauphin County for crimes that occurred in other counties. Brief for Appellant at 34-

and only five of the burglaries he was charged with occurred in Dauphin County, venue was improper. Id. at 35-36.

The standard of review for a denial of a motion for change of venue is

Commonwealth v. Johnson, 612 A.2d 1382, 1384-85 (Pa. Super. 1992). Venue relates to the right of a party to have the controversy brought and heard in a particular judicial district. Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa. 2003). Venue is predominately a procedural matter, generally prescribed by the rules of [the Supreme] Court. Id.

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Criminal Rule 130(A)(3) governs venue and transfer of criminal proceedings and provides, in relevant part, the following:

(A) Venue. All criminal proceedings in summary and court cases shall be brought before the issuing authority for the magisterial district in which the offense is alleged to have

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(3) When charges arising from the same criminal episode occur in more than one judicial district, the criminal proceeding on all the charges may be brought before one issuing authority in a magisterial district within any of the judicial districts in which the charges arising from the same criminal episode occurred.

Pa.R.Crim.P. 130 (emphasis added); see also Commonwealth v. Kohler,

precedent to the exercise [of jurisdiction] by a single county [] in a case involving multiple offenses in various counties is ... a single criminal

Kohler,

811 A.2d at 1050.

In ascertaining whether a number of statutory offenses are logically related to one another, the court should initially inquire as to whether there is a substantial duplication of factual, and/or

additional statutory offenses involve additional issues of law or fact is not sufficient to create a separate criminal episode since the logical relationship test does not require an absolute identity of factual backgrounds.

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J-A18002-14 Id. at 1050-51 (internal quotations omitted).

Here, the fact that the criminal acts occurred over a course of four months in multiple counties does not preclude the acts from constituting a single criminal episode. Relevant evidence of each crime Watson was charged with would also be admissible as relevant evidence of the other charged crimes. Indeed, all of the burglaries took place during morning daylight hours, with the perpetrator gaining access by kicking in a door. The same types of items were stolen during each burglary. Further, eyewitnesses were able to identify Watson and link him to the vehicles used during the crimes. Stolen property identified by the victims was discovered

near the crime scenes around the time the burglaries occurred. The underlying facts of this case establish a logical relationship between the crimes, and as such, the multiple burglaries constitute a single criminal episode. See id. at 1051 (determining that the criminal acts, despite having occurred in various counties over the course of 14 months, amounted to a

County.4

4 To the extent Watson argues that the trial court misinterpreted Pa.R.Crim.P. 130, we conclude that such argument is without merit.

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J-A18002-14 Watson also contends that the out-of-county charges should have been severed, as they were improperly joined under Pa.R.Crim.P. 503 and 582. Brief for Appellant at 34, 38-39.

Our standard of review is as follows:

It is well settled that a motion for severance is addressed to the sound discretion of the trial court, and that the decision reached by the trial court will not be disturbed absent a showing of

a separate trial is not sufficient cause to warrant severance.

Commonwealth v. Presbury, 665 A.2d 825, 827-28 (Pa. Super. 1995) (citation omitted).

without merit. See Trial Court Opinion, 10/28/13, at 23-25. We adopt the sound reasoning of the trial court, and affirm on this basis, with regard to See id.

In his third claim, Watson argues that the trial court erred in denying mpanying

testimony because using that information to locate a cellphone is not generally accepted in the field of cellphone technology and because Glucksman (who provided testimony about the evidence) is not an expert. Brief for Appellant at 40, 44-45. Watson contends that any testimony surrounding the cellphone tower evidence was, by its very nature, expert, as the average layperson knows nothing about the technology. Id. at 44.

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J-A18002-14 Therefore, Watson claims, Pennsylvania Rule of Evidence 7025 was not satisfied, and his Motion to Exclude should have been granted. Id. at 41-42, 44-47.

The standard of review employed when faced with a

admit evidence is well[-]settled. Questions concerning the admissibility of evidence lie within the sound discretion of the

decision absent a clear abuse of discretion. Abuse of discretion is not merely error of judgment, but rather where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citations omitted).

The trial co merit. See Trial Court Opinion, 10/28/13, at 25-32. We adopt the sound

5 Rule 702, Testimony by Expert Witness, provides the following:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise, if:

ic, technical, or other specialized knowledge is beyond that possessed by the average layperson;

knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and

relevant field.

Pa.R.E. 702.

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affirm on this basis. See id.

In his final claim, Watson contends that the trial court erred in denying

evidence was impermissible expert testimony, was forbidden by a pre-trial Brief for Appellant at 48-

50.

Our standard of review in assessing the denial of a mistrial is as follows: the trial court is in the best position to assess the effect of an allegedly prejudicial statement on the jury, and as such, the grant or denial of a mistrial will not be overturned absent an abuse of discretion. A mistrial may be granted only where the incident upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true verdict. Likewise, a mistrial is not necessary where cautionary instructions are adequate to overcome any possible prejudice.

Commonwealth v. Rega, 933 A.2d 997, 1016 (Pa. 2007) (citation omitted).

The trial cour without merit. See Trial Court Opinion, 10/28/13, at 32-34. We adopt the sound and detailed reasoning of the trial court regarding the final issue, and affirm on this basis. See id.

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J-A18002-14 Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/11/2014 t