Commonwealth v. Harvard

64 A.3d 690, 2013 Pa. Super. 64, 2013 WL 1189214, 2013 Pa. Super. LEXIS 152
CourtSuperior Court of Pennsylvania
DecidedMarch 25, 2013
StatusPublished
Cited by108 cases

This text of 64 A.3d 690 (Commonwealth v. Harvard) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Harvard, 64 A.3d 690, 2013 Pa. Super. 64, 2013 WL 1189214, 2013 Pa. Super. LEXIS 152 (Pa. Ct. App. 2013).

Opinion

[694]*694OPINION BY

DONOHUE, J.:

Appellant, John Harvard (“Harvard”), appeals from the trial court’s December 8, 2010 judgment of sentence imposing an aggregate 65 to 280 years of incarceration for convictions resulting from a series of armed robberies. We affirm.

The Commonwealth charged Harvard ■with multiple counts of robbery (18 Pa. C.S.A. § 3701(a)(i) and(ii)), burglary (18 Pa.C.S.A. § 3502), conspiracy 18 Pa.C.S.A. § 903, receiving stolen property (18 Pa. C.S.A. § 3925), persons not to possess a firearm (18 Pa.C.S.A. § 6105(a)), and related offenses based on a series of armed robberies that took place from June 16, 2008 through July 29, 2008. On September 13, 2010, a jury found Harvard guilty of the robberies and related offenses. The trial court found Harvard guilty of multiple counts of persons not to possess a firearm. Subsequent to the conviction, the Commonwealth filed notice of its intent to seek a 25-year mandatory minimum sentence for several counts of robbery based on Harvard’s status as a third strike offender.1 The trial court imposed the aforementioned sentence on December 8, 2010. Harvard filed a timely post sentence motion on December 17, 2010 challenging, among other things, the discretionary aspects of his sentence and the weight of the evidence in support of his convictions. The trial court conducted a hearing on Harvard’s post-sentence motion on March 22, 2011 and denied the motion on April 21, 2011.

Harvard filed this timely appeal on May 18, 2011. He raises seven issues for our review:

I.Was an unlawful search conducted when police used a key fob to manipulate the locking mechanism of a motor vehicle and does that impermissible search taint the affidavit of probable cause as an illegal search was performed to justify the facts in support of the warrant?
II. Does the affidavit [of probable cause] fail on its face as it lacks any indication of what ‘investigative techniques’ were used to link [Harvard] to the home?
III. Was evidence unlawfully seized where items were seized that were not listed in the warrant and where consent was not voluntarily given?
IV. Was the evidence insufficient to sustain a conviction for possession of the firearm found in the shed of a residence [Harvard] shared with others, and can the conviction stand where no finding of guilt was made on the record?
V. Was the verdict rendered contrary to the weight of the evidence?
VI. Is the sentence imposed an abuse of discretion where it fails to consider [Harvard’s] rehabilitative needs, imposes a de facto life sentence, does not consider the nature and characteristics of [Harvard], and where the sentence imposed does not comport with the plain language of 42 Pa.C.S.A. § 9714(a)(1)?
VII. Did the court err in allowing a witness to testify to an out of court identification that was made under unduly suggestive circumstances?

Harvard’s Brief at 8-9.

In his first three arguments, Harvard challenges the trial court’s denial of his pre-trial motion to suppress evidence. We conduct our review as follows:

[695]*695Generally, our standard of review when addressing a challenge to a trial court’s denial of suppression is whether the factual findings are supported by the record and whether the legal conclusions drawn from these facts are correct. When reviewing the rulings of a suppression court, we must 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 legal conclusions drawn therefrom are in error.

Commonwealth v. Hawkins, 45 A.3d 1123, 1126 (Pa.Super.2012), appeal denied, — Pa. -, 53 A.3d 756 (2012).

Harvard’s first argument concerns an investigating officer’s use of a key fob to activate the lights and locking mechanism of a parked vehicle. The transcript from the suppression hearing reveals that Pittsburgh Police Officer Paul Kirby (“Officer Kirby”) learned from the victims of one of the robberies that their stolen debit card was used at a local Wal-Mart and convenience store. N.T., 8/23/10, at 23. James Hodder (“Hodder”), a loss prevention employee at the Wal-Mart, provided Officer Kirby with a printed record and video surveillance of the attempted debit card transaction. Id. at 23-24. When the man from the surveillance video — later identified as Harvard — returned to the Wal-Mart several days later, Hodder followed him and noted the license plate number of the green Toyota sedan in which Harvard drove away. Id. at 25-26. Hodder provided the license plate number to Officer Kirby, and Officer Kirby learned that the vehicle was registered to a Monica Jackson (“Jackson”), living at 125 Bonvue Street in Pittsburgh’s North Side. Id. at 26-27. Officer Kirby contacted an inspector from the United States Post Office and learned that Harvard also received mail at that address. Id. at 27. Officer Kirby compared the surveillance footage to Harvard’s driver’s license photo and concluded that Harvard was the person in the surveillance photo. Id. at 28-29.

Shortly thereafter, the victims of a home invasion robbery discovered a Toyota key fob at their home and provided it to Officer Kirby. Id. at 27. Officer Kirby drove to the home at 125 Bonvue Street, observed a green Toyota sedan parked outside, and pressed the lock button on the key fob. Id. Upon Officer Kirby’s use of the key fob, the Toyota’s lights flashed. Id. Based on all of the foregoing information, Officer Kirby obtained a warrant to search the residence at 125 Bonvue Street and a warrant for Harvard’s arrest.

Harvard argues that Officer Kirby’s use of the key fob constituted an illegal warrantless search, in violation of the Fourth Amendment of the United States Constitution and Article 1, § 8 of the Pennsylvania Constitution. Harvard argues, therefore, that the search warrant was invalid because it was based upon information gleaned from an illegal act. The parties dispute whether Harvard has standing to challenge this alleged search of the Toyota. The target of a search has standing to challenge the propriety of a search if, among other things, he has a “proprietary or possessory interest in the searched premises.” Commonwealth v. Hawkins, 553 Pa. 76, 80, 718 A.2d 265, 267 (1998).

The parties devote much of their argument to whether Harvard can establish a possessory interest in Jackson’s vehicle. We believe that Harvard’s possessory interest, or lack thereof, is immaterial in this case as the record fails to reflect that Officer Kirby’s use of the key fob consti[696]*696tuted a search. Harvard relies on Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), in which police officers, while searching an apartment for weapons and victims after a shooting, noticed an expensive stereo system.

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Cite This Page — Counsel Stack

Bluebook (online)
64 A.3d 690, 2013 Pa. Super. 64, 2013 WL 1189214, 2013 Pa. Super. LEXIS 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-harvard-pasuperct-2013.