J-S20017-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA,
Appellee
v.
JAMES BRAGES,
Appellant
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IN THE SUPERIOR COURT OF
PENNSYLVANIA
No. 1091 WDA 2013
Appeal from the Judgment of Sentence March 12, 2013,
Court of Common Pleas, Cambria County,
Criminal Division at No. CP-11-CR-0001574-2012
BEFORE: GANTMAN, P.J., DONOHUE and FITZGERALD*, JJ.
MEMORANDUM BY DONOHUE, J.:
FILED: April 30, 2014
Appellant, James Brages (“Brages”), appeals from the judgment of
sentence following his convictions for theft by unlawful taking, 18 Pa.C.S.A.
§ 3921(a), receiving stolen property, 18 Pa.C.S.A. § 3925(a), and
possessing instruments of crime, 18 Pa.C.S.A. § 907(a).
For the reasons
that follow, we affirm the judgment of sentence.
The trial court summarized the relevant factual background of this
case as follows:
Sometime around 2:00 PM on June 5, 2012, David R.
Petersen (‘Petersen’) heard the front doorbell ring.
He put down his tools, exited the basement
workshop, and began to climb the basement stairs.
Suddenly, the doorbell rang frantically. By the time
he ascended from the basement and entered the
kitchen, however, the frantic doorbell ringing ceased
and a new sound reverberated through his home.
Someone was working the door handle on his heavy
front door — the same front door which not only acts
*Former Justice specially assigned to the Superior Court.
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as a buffer between the outer screen door and the
inside of his home but also the same front door that
abuts the front doorbell.
As Petersen proceeded from the kitchen to the living
room, he spotted a six-foot man outfitted in a dark
baseball cap, dark clothes, and a dark backpack
standing by his home's entrance.
The stranger
likewise spied Petersen and calmly stepped away
from the door. Petersen asked the stranger how he
could assist him. The stranger inquired whether he
knew of a bicycle path that snaked down the hillside
that runs alongside Johnstown's Inclined Plane.
Petersen knew of no such path.
Nevertheless,
Petersen instructed the stranger that if someone
would know of such a path, it would be a Westmont
Recreational worker.
Consequently, Petersen
directed the stranger to the maintenance building
the Westmont Recreational Department ("WRD")
owns where he would be able to find a worker to
ask. The WRD maintenance building is a snowball
throw from Petersen's driveway.
The stranger withdrew from Petersen's porch,
hopped onto his bicycle, and began to travel toward
the maintenance building. Petersen watched the
stranger's movement from inside his home and then
noticed something very curious. The stranger never
went to the WRD building as Petersen directed him.
On the contrary, he entered WRD's driveway, made
an immediate U-turn, and proceeded down Edgehill
Drive toward Norman Boring's (‘Boring’) home.
Petersen's suspicions tingled throughout his body.
He called 911 immediately and reported a
description of the man he encountered and the
events that accompanied their meeting.
Shortly thereafter, Samuel Mardis (‘Mardis’) spotted
a man who matched Petersen's description: baseball
cap, dark clothes, backpack, and a bicycle. More
specifically, Mardis saw the stranger ride down
Boring's driveway and dismount from his bicycle.
Next, the stranger removed his backpack and hat,
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surveyed his surroundings, and walked around the
side of Boring's house — outside of Mardis's view.
Later, Mardis spied the stranger again. This time the
stranger was on Boring's deck and was peering into
the home's windows. Mardis was sitting in a recliner
on his rear porch, which faces Boring's home — a
football field away. Eventually, the stranger walked
around the house and disappeared again from
Mardis's view. Mardis did not think of the stranger
again that day.
While the stranger's movements around Boring's
home captured the attention of Mardis, a bulletin
circulated alerting the local authorities to be on the
lookout for the suspicious person Petersen reported.
Patrolman Christopher Kesslak (‘Officer Kesslak’) was
one of the officers in the area who received that
report.
Approximately forty-five minutes after
Petersen and the stranger met, Officer Kesslak
noticed a man who fit Petersen's description exiting
the ‘Sweet Things’ confectionary store with an icedtea in hand. The man wore a baseball cap, dark
clothing, dark backpack, and had a bicycle. The man
departed the public space near the store and
proceeded to ride his bike down the hill toward the
city of Johnstown before Officer Kesslak could stop
him.
After Officer Kesslak stopped him some
distance from the store, he instructed the stranger
that he received a report pertaining to a suspicious
person and asked the stranger to provide
identification. The stranger complied and handed
Officer Kesslak a Pennsylvania driver's license. That
license identified the stranger as James Douglas
Brages.
In light of Brages's mixed demeanor and the fact
that Brages's kept inching closer to Officer Kesslak
despite the latter's repeated admonitions to ‘stand
back, stand back, wait right there until Officer Fisher
arrive[s] on [the] scene,’ Officer Kesslak did not
secure Brages immediately. Only after Officer Fisher
arrived did Officer Kesslak secure Brages and patted
him down for contraband. That pat down revealed
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large amounts of cash in Brages's front pockets — so
much so that the cash created bulges in the pocket
areas. After the pat down, Officer Kesslak asked
Brages may [sic] they search his backpack. Brages
consented and Officer Kesslak discovered a pry bar,
screwdriver, nippers, utility knife, hammer, hacksaw,
safety glasses, work gloves, rubber coated gloves,
duct tape, and rolls of coins in tan-and-orange and
tan-and-green wrappings. Officer Kesslak returned
the items to Brages, detained him, and transported
him to his precinct.
Later, a more thorough inventory ensued which
exposed two glaring facts. First, Brages did not
know how much money he possessed on his person.
Rather, his suppositions escalated each time the
officers counting revealed a higher dollar amount.
Ultimately, the sum was $8,927.48. Second, the roll
of coins in the tan-and-orange and tan-and-green
wrappings totaled $55.00. Both of these facts are
important because of the 10:23 AM burglary report
the 911 center received the following day — June 6,
2012.
On that June day, Boring called the 911 center to
report he was burglarized and was missing
approximately
$9,000.00.
Officer
Kesslak
investigated that call and asked Boring whether he
kept any coins in colored wrappings. Boring replied
he did and stated he knew for a fact that he had
$170.00 in wrapped coins. Boring proceeded to
count the remaining coins in Officer Kesslak's
presence and discovered he was $55.00 short — or
the exact amount that was found on Brages's
person.
Trial Court Opinion, 5/17/2013, at 1-4.
On February 12, 2013, a jury convicted Brages of the abovereferenced crimes and acquitted him on charges for burglary and criminal
trespass. On March 12, 2013, the trial court sentenced Brages to a term of
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incarceration of 36 to 72 months for receiving stolen property and a
consecutive sentence of 12 to 24 months of incarceration for possessing
instruments of crime. The trial court denied Brages’ post-trial motions and
granted the Commonwealth’s post-trial motion to return the stolen money
found on Brages’ person to Boring.
This timely appeal followed, in which Brages raises the following four
issues for our consideration and determination:
1.
Whether the trial court was in error in denying
[Brages’] Post Sentence Motion for Sentence
Modification when it found that it was not unduly
harsh to sentence [Brages] to consecutive sentences.
2.
Whether the trial court was in error in denying
[Brages’] Post Sentence Motion for Judgment of
Acquittal when it found that the Commonwealth had
presented sufficient evidence as to the crimes of
receiving stolen property and possession of the
instruments of crime.
3.
Whether the trial court was in error in denying
[Brages’] Post Sentence Motion that a new trial should
be granted when it found that the verdict was not
against the weight of the evidence pertaining to the
jury’s inconsistent verdicts.
4.
Whether the trial court was in error in denying
[Brages’] Motion for Suppression when it found that
the search and seizure of [Brages] was a legal and
constitutional search and seizure.
Brages’ Brief at 5.
For his first issue on appeal, Brages contends that his sentence was
unduly harsh because the trial court imposed consecutive rather than
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concurrent sentences. It is well settled that “[c]riminal defendants do not
have the automatic right to challenge the discretionary aspects of their
sentence.
Rather, they must seek permission [pursuant to] Pa.R.A.P.
2119(f).” Commonwealth v. Karns, 50 A.3d 158, 166 (Pa. Super. 2012),
appeal denied, 65 A.3d 413 (Pa. 2013) (citation omitted).
Furthermore,
“such a claim … is waived if an appellant does not include a Pa.R.A.P.
2119(f) statement in his brief and the opposing party objects to the
statement's absence.” Commonwealth v. Foster, 960 A.2d 160, 163 (Pa.
Super. 2008).
Brages has failed to include a statement pursuant to Pa.R.A.P. 2119(f)
in his appellate brief and the Commonwealth has objected to this omission.
Commonwealth’s Brief at 5. Accordingly, Brages has waived his sentencing
claim on appeal and we may not review it. Foster, 960 A.2d at 163.
For his second issue on appeal, Brages challenges the sufficiency of
the evidence to support his convictions for receiving stolen property and
possession of instruments of crime.
The standard of review we apply in
reviewing the sufficiency of evidence is whether, viewing all the evidence
admitted at trial in the light most favorable to the verdict winner, there is
sufficient evidence to enable the fact finder to find every element of the
crime beyond a reasonable doubt.
Commonwealth v. Hernandez, 39
A.3d 406, 413 (Pa. Super. 2012), appeal denied, __ Pa. __, 63 A.3d 1244
(2013).
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With respect to his conviction for receiving stolen property, Brages
argues that the Commonwealth failed to prove that any items in his
possession were stolen. Brages’ Brief at 10. Brages contends that the items
found on his person, cash and coins, are “generic” and were never proven to
belong to Boring, the alleged victim. Id. According to Brages, because the
jury did not convict him of burglary or criminal trespass, the Commonwealth
did not produce satisfactory evidence that ever placed Brages in Boring’s
home, and therefore there is no proof that the cash and coins on his person
belonged to Boring. Id.
18 Pa.C.S.A. § 3925(a) provides as follows:
(a) Offense defined.--A person is guilty of theft if he
intentionally receives, retains, or disposes of
movable property of another knowing that it has
been stolen, or believing that it has probably been
stolen, unless the property is received, retained, or
disposed with intent to restore it to the owner.
18 Pa.C.S.A. § 3925(a). A conviction for receiving stolen property may be
sustained only if the evidence is sufficient to prove beyond a reasonable
doubt that (1) the property was stolen, (2) the accused received the
property, and (3) the accused knew or had reasonable cause to know that it
was stolen.
Commonwealth v. Phillips, 392 A.2d 708, 709 (Pa. Super.
1978).
“It is the receipt, disposition, or possession of the stolen property
which
constitutes
the
offense
of
receiving
stolen
Commonwealth v. Brady, 560 A.2d 802, 806 (Pa. Super. 1989).
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property.”
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We disagree with Brages’ contention that cash or coins, because they
are “generic,” cannot constitute stolen property for purposes of section
3925(a). In at least one reported case, Commonwealth v. Breslin, 165
A.2d 415, 418 (Pa. Super. 1960), this Court affirmed a conviction for
receiving stolen cash and coins.
Moreover, the Commonwealth produced
sufficient evidence to demonstrate that the items found on Brages’ person
belonged to Boring.
Specifically, Brages possessed the precise dollar
amount in rolled coins that Boring reported as missing from his home ($55),
and the description of those rolled coins (tan/orange and tan/green
wrappers) matched the rolled coins found on Brages’ person. Likewise, the
amount of cash Boring reported as missing from his home ($9,000) was
nearly identical to the amount of cash in Brages’ possession at the time of
his arrest ($8,927). This evidence was sufficient to prove that the coins and
cash on Brages’ person were stolen from Boring’s home.
With respect to his conviction for possessing instruments of crime,
Brages argues that he introduced evidence at trial that he used the tools
found in his possession (including a pry bar, screwdriver, nippers, utility
knife, hammer, and a hacksaw) in his profession as a roofer, and that the
Commonwealth did not introduce any evidence of his intent to use them for
criminal purposes. Brages’ Brief at 10.
18 Pa.C.S.A. § 907(a) provides that a “person commits a misdemeanor
of the first degree if he possesses any instrument of crime with intent to
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employ it criminally.
18 Pa.C.S.A. § 907(a).
18 Pa.C.S.A. § 907(d)(2)
defines an “Instrument of crime” as “[a]nything used for criminal purposes
and possessed by the actor under circumstances not manifestly appropriate
for lawful uses it may have.” 18 Pa.C.S.A. § 907(d)(2).
Viewing all the evidence admitted at trial in the light most favorable to
the Commonwealth as the verdict winner, we agree with the trial court that
the Commonwealth introduced sufficient evidence to show that Brages had
the intent to use the tools found in his possession for criminal purposes.
Witnesses observed Brages suspiciously walking around Boring’s house,
including on the deck and peering into the windows. Amounts of coins and
cash matching the amounts Boring later reported missing from his home
thus provide sufficient evidence to prove that Brages intended to use the
tools in his backpack to enter into Boring’s home with the purpose of
committing crimes while inside.
For these reasons, Brages’ second issue on appeal lacks any merit.
For his third issue on appeal, Brages argues that his convictions were
against the weight of the evidence because of the jury’s inconsistent
verdicts, namely its decision to find him guilty of some crimes but not guilty
of burglary and criminal trespass. In his appellate brief, Brages asks: “How
is it possible to have ‘received’ any stolen property in the form of money
from the alleged victim’s house when he was found by the jury to have
never actually entered it?” Brages’ Brief at 11.
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We find no merit to this argument.
This Court has repeatedly held
that inconsistent verdicts “are neither contrary to law nor a basis for
reversal.” Commonwealth v. Thoeun Tha, 64 A.3d 704, 712 (Pa. Super.
2013) (citing Commonwealth v. Stokes, 38 A.3d 846, 855 (Pa. Super.
2011)); see also Commonwealth v. Bricker, 580 A.2d 388, 389 (Pa.
Super. 1990) (“[A]n acquittal cannot be interpreted as a specific finding in
relation to some of the evidence.”). Our Supreme Court recently reaffirmed
this position in Commonwealth v. Miller, 613 Pa. 584, 589, 35 A.3d 1206,
1209 (2012), stating that “[g]iven this uncertainty, and the fact that the
Government
is
precluded
[by
double
jeopardy
considerations]
from
challenging the acquittal, it is hardly satisfactory to allow the defendant to
receive a new trial on the conviction as a matter of course.” Id. at 589, 35
A.3d at 1209 (quoting United States v. Powell, 469 U.S. 57, 65 (1984)).
For his final issue on appeal, Brages contends that the trial court erred
in denying his motion to suppress the evidence against him because the
initial stop by police lacked reasonable suspicion.
When reviewing a
challenge to a trial court's denial of a suppression motion, our standard of
review is as follows:
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
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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
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),
appeal denied, __ Pa. __, 65 A.3d 413 (2013).
The Fourth Amendment to the United States Constitution and Article I,
Section
8
of
the
Pennsylvania
Constitution
unreasonable searches and seizures.
A.3d 373, 378 (Pa. Super. 2012).
protect
citizens
from
Commonwealth v. Clemens, 66
To safeguard this right, courts require
police to articulate the basis for their interaction with citizens in three
increasingly intrusive situations.” McAdoo, 46 A.3d at 784. Our Supreme
Court has categorized these three situations as follows:
The first category, a mere encounter or request for
information, does not need to be supported by any
level of suspicion, and does not carry any official
compulsion to stop or respond.
The second
category, an investigative detention, derives from
Terry v. Ohio [392 U.S. 1 (1968)] and its progeny:
such a detention is lawful if supported by reasonable
suspicion because, although it subjects a suspect to
a stop and a period of detention, it does not involve
such coercive conditions as to constitute the
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functional equivalent of an arrest.
The final
category, the arrest or custodial detention, must be
supported by probable cause.
Commonwealth v. Smith, 575 Pa. 203, 211-12, 836 A.2d 5, 10 (2003).
On appeal, Brages contends that Officer Kesslak lacked either
reasonable suspicion or probable cause to stop him1 because it was “based
solely upon a witness’s [Peterson] report that a man on a bicycle had simply
stopped at his house and knocked on his door asking for directions.” Brages’
Brief at 12.
We disagree.
At the suppression hearing, Officer Kesslak
testified that on the afternoon of June 5, 2012 of a suspicious person who,
after ringing the doorbell of the Peterson residence, had repeatedly rattled
the front doorknob even though it was locked.
N.T., 1/22/2013, at 4.
A
precise description was provided, specifically a white male, approximately six
feet tall with dark hair, wearing a dark ball cap, blue jeans, a dark colored
shirt or jacket and carrying a large backpack. Id. Officer Kesskak had also
received information from Chief Havas, who was also in the area and
reported observing a man matching this description in the area. Id. at 5.
Officer Kesslak testified that based upon these reports, he began to canvass
the area, and when he spotted a man precisely matching this description
(Brages), he stopped him and asked him for identification. Id.
1
Brages challenges only the initial stop, not the subsequent searches of his
person or backpack or his eventual arrest.
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An investigative detention occurs when a police officer temporarily
detains an individual for investigative purposes.
Commonwealth v.
Barber, 889 A.2d 587, 592 (Pa. Super. 2005).
Whether reasonable
suspicion existed at the time of the stop must be answered by examining the
totality of the circumstances to determine whether the officer had a
particularized and objective basis for suspecting the individual stopped.
Commonwealth v. Muhammed, 992 A.2d 897, 900 (Pa. Super. 2010).
The fundamental inquiry of a reviewing court is an objective one, namely,
whether the facts available to the officer warrant a person of reasonable
caution in the belief that the action taken was appropriate. Id. “To have
reasonable suspicion, police officers need not personally observe the illegal
or suspicious conduct, but may rely upon the information of third parties,
including ‘tips' from citizens.” Commonwealth v. Barber, 889 A.2d 587,
593 (Pa. Super. 2005) (quoting Commonwealth v. Lohr, 715 A.2d 459,
461 (Pa. Super. 1998)).
Based upon the totality of the circumstances here, we conclude that
the trial court’s conclusion that Officer Kesslek had reasonable suspicion to
stop Brages was not error.
Officer Kesslek responded to a report of
suspicion behavior received from a citizen that Brages had attempted to gain
unlicensed entry into his home.
The citizen had provided a precise
description of the individual, and Brages matched this description in every
respect. Officer Kesslek thus had the necessary particularized and objective
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basis for suspecting Brages of possible criminal activity, and his stop of
Brages was thus supported by reasonable suspicion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/2014
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