J-S02044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DANIEL JOSEPH PREZIOSI

                            Appellant                No. 443 EDA 2015


     Appeal from the Judgment of Sentence entered September 5, 2014
           In the Court of Common Pleas of Northampton County
          Criminal Division at Nos: CP-48-CR-0004211-2013 and
                          CP-48-CR-0000435-2014


BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                             FILED MAY 24, 2016

       Appellant, Daniel Joseph Preziosi, pro se appeals from the September

5, 2014 judgment of sentence entered by the Court of Common Pleas of

Northampton County (“trial court”), following a jury trial that resulted in him

being convicted of robbery, two counts of simple assault, theft by unlawful

taking (movable property), receiving stolen property, and escape.1        After

careful review, we affirm.

       The facts and procedural history of this case are uncontested.       On

October 19, 2013, Appellant was charged with multiple offenses, including

robbery, simple assault, theft by unlawful taking, and receiving stolen

____________________________________________


1
  18 Pa.C.S.A. §§ 3701(a)(1)(ii), 2701(a)(3), 3921(a), 3925(a), and
5121(a), respectively.
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property, at docket number 4211 (hereinafter “First Case”). The affidavit of

probable cause accompanying the complaint provided:

           On 10/18/2013 at about 1414 hrs [Detective Seargent
     Michael Melinsky, Colonial Regional Police Department,]
     received a call from Wunderler’s Market located at 429 East Main
     St[reet,] Bath[, PA] for an armed robbery that had just occurred
     at that location.      Upon [Detecive Melinsky’s] arrival, the
     victim[s] of the robbery Donald and Joyce Wunderler detailed
     that they were both at the store when an unknown white male
     entered the store and brandished a dark[-]colored semi-
     automatic style handgun. The unknown male demanded the
     money in the cash register. Joyce Wunderler stated that the
     male was given the money out of the cash register, mostly 1, 5
     and 10 dollar bills. After the actor received the money he fled
     on foot, north from the store.

           [Detective Melinsky] viewed and copied the store
     surveillance video which was working at Wunderler’s Market at
     the time of the robbery. The video shows the male that was
     described by the Wunderler’s brandishing the firearm, robbing
     the store.

           [Detective Melinsky] interviewed a Michael Flyte[.] Flyte
     reported seeing a suspicious vehicle in the area of Wunderler’s
     Market at the time of the robbery. Flyte described the vehicle as
     a 1990’s 4-door beige Toyota Camry with front end damage,
     missing a front headlight assembly.       The vehicle’s rearview
     mirror was dangling from the windshield and the rear of the
     vehicle had a sticker, a heart-shaped zebra pattern, outlined in
     pink. Flyte described the driver of the car as a white male in his
     mid-20s about 6 feet tall and a 175 lbs., wearing black coat with
     a white hood. [Detective Melinsky] showed a picture of the
     suspect from Wunderler’s Market to Flyte and [Flyte] identified
     the male in the picture as the person driving the suspicious
     vehicle.

          The vehicle that was identified by Flyte was located later
     that night parked on the block of East Main St. in Bath.
     Surveillance was conducted on the vehicle and [Appellant] was
     observed opening the vehicle and retrieving something from the
     rear seat. [Detective Melinsky] and Sgt. Enstrom identified
     themselves to [Appellant].       [Appellant] was then observed
     throwing [a] pill bottle under a parked car. [Appellant] was then
     taken into custody and transported to police headquarters.
     Search of [Appellant] when taken into custody revealed that
     [Appellant] had in his pants pocket a stack of money, which was
     mostly in one and five dollar denominations.
          At police headquarters, with [Appellant] in custody
     [Detective Melinsky] and assisting officers viewed the

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      surveillance video from Wunderler’s Market.             [Detective
      Melinsky] and assisting officers confirmed that it was [Appellant]
      on the video committing the robbery.

            [Detective Melinsky] had photo lineups created with
      [Appellant’s] picture in the lineup. [Detective Melinsky] showed
      the photo lineup to both Mr. and Mrs. Wunderler separately.
      They both identified [Appellant] as the person who robbed their
      store earlier in the day.

Affidavit of Probable Cause, 10/19/13. On December 18, 2013, constables

transported Appellant to a district court for a preliminary hearing, but

Appellant managed to flee from the constables’ custody.             Appellant

subsequently was arrested and charged with one count of escape at docket

number 435-2014 (hereinafter “Second Case”).

      On March 24, 2014, Appellant, through counsel, filed an omnibus

pretrial motion in the First Case, seeking, inter alia, to suppress all

incriminating evidence. In support of suppression, Appellant alleged that the

police lacked probable cause to arrest him without a warrant.        He also

alleged that the police lacked probable for the issuance of a search warrant

for the vehicle.   The trial court disagreed, denying, among other things,

Appellant’s suppression motion following a hearing.     The court concluded

that probable cause existed to arrest Appellant and to issue the search

warrant for the vehicle.    In so doing, the trial court rendered detailed

findings:

      1. On the date of the robbery, at approximately 2:14 p.m.,
      Colonial Regional Police received notification that an armed
      robbery took place at Wunderler’s Market in Bath, Pennsylvania;

      2. Detective Sergeant Melinsky responded to the scene along
      with other patrol vehicles and interviewed the victims and the
      owners of the market, Joyce and Donald Wunderler;


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     3. The victims provided information to Detective Melinsky that
     included a description of the perpetrator who brandished a black
     semiautomatic handgun, was wearing a black jacket with a grey
     hoodie, was approximately 6 foot tall and approximately 175
     pounds. The perpetrator was a white male. The Wunderlers
     handed the robber approximately $100 in cash in small bills;

     4. Detective Sergeant Melinsky obtained video footage from the
     surveillance cameras within the market and reviewed the
     footage. He was able to view images of the perpetrator of the
     robbery which matched the description provided by the victims;

     5. Detective Sergeant Melinsky was also able to view on the
     surveillance videotape the perpetrator walk into the store, point
     the gun at the victims, and commit the robbery. He was also
     able to view the perpetrator flee out the door of the market;
     6. Later at the station, Detective Sergeant Melinsky again
     reviewed the videotape and, in fact, viewed the videotape at
     least five or six times. Each viewing included images of the
     perpetrator;

     7. Detective Sergeant Melinsky and other members of the
     Colonial Regional Police Department obtained a still shot of the
     perpetrator from the surveillance videotape and disseminated it
     to police and to the media. The still shot photograph was
     admitted as Commonwealth’s Exhibit 1 and depicted a white
     male in a gray hooded sweatshirt, which matched the description
     provided by the victims;

     8. Later in the day on the afternoon of the robbery, Officer
     Kovalosky received a call from a witness named Michael Flyte
     who had been in the area of the market at the time of the
     robbery. Michael Flyte had prepared a written statement of his
     own accord and provided written information to the police
     detailing what he observed with respect to the robbery;

     9. Michael Flyte provided information to police that he saw a
     beige four-door Toyota Camry with front end vehicle damage
     near the headlight pull in quickly to a parking place near the
     market. The vehicle ran a stop sign in so doing;

     10. Michael Flyte witnessed a male get out of the car and walk
     down an alley towards the market;

     11. Approximately several minutes later, Michael Flyte witnessed
     the male return from the market. It was a white male, wearing
     a gray hoodie and black jacket. Michael Flyte’s description
     matched that of the perpetrator as provided by the victims, and
     as depicted on the video;
     12. Detective Sergeant Melinsky showed the still shot
     photograph obtained from the surveillance video to Michael


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     Flyte. Michael Flyte confirmed that was the male that he had
     observed;

     13. Michael Flyte also provided police with information that the
     [male’s] vehicle contained a distinctive sticker in the rear
     window. It was a heart shaped sticker decal outlined in pink
     with zebra stripes;

     14. Detective Sergeant Melinsky conducted research on the
     sticker and was able to obtain a computer image of the sticker
     which Michael Flyte confirmed was similar to the image he saw
     on the car;

     15. At approximately 1 a.m. the next morning, Detective
     Sergeant Melinsky received a telephone call from Sergeant
     Enstrom of the Colonial Regional Police indicating that Mr.
     Enstrom observed a four-door beige Toyota Camry with a sticker
     matching the description provided by Michael Flyte parked in
     Bath near the Daily Grind Coffee Shop, and near the Fox
     Hotel/Gentlemen’s Club;

     16. Detective Sergeant Melinsky, Sergeant Enstrom, and other
     members of the police department conducted surveillance on the
     vehicle;

     17. Prior to surveillance taking place, upon information believed,
     Sergeant Enstrom had observed a male approaching the vehicle.
     Sergeant Enstrom did not have backup with him at the time, and
     therefore, sought backup and surveillance was conducted of the
     vehicle;

     18. Approximately 1:46 a.m. Detective Sergeant Melinsky
     observed a male walk out of the Fox Hotel, approach the car,
     open the back door of the car, and get in. The male matched
     the description of the perpetrator as provided by the victims and
     by Michael Flyte. The male was the same male depicted on the
     surveillance videotape and the still shot obtained therefrom. At
     which point, [Appellant] was arrested;
     19. Detective Sergeant Melinsky indicated that he knew from the
     video that he had reviewed multiple times, from the still
     photograph, and from the description provided by the victims
     and Michael Flyte that the person getting into the car was the
     person who perpetrated the robbery;

     20. [Appellant] was taken into custody and searched incident to
     arrest.  Money was found in [Appellant’s] pocket, including
     approximately eight $5 bills, and ten $1 bills;

     21. The money found in [Appellant’s] pocket is the subject of the
     motion to suppress. The motion to suppress the money is
     denied;



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       22. Subsequently, the vehicle was impounded, and a search
       warrant was obtained for its contents. During the search of the
       vehicle, a gun was found in the truck, which matched the
       description and depiction of the gun used in the robbery as
       described by the victims and as seen on the videotape. The gun
       found in the truck is the subject of the suppression motion. The
       suppression motion with respect to the gun and any other items
       found in the car pursuant to the search warrant is denied;

       23. By way of further findings of fact that the arrest was
       supported by probable cause, the Commonwealth admitted
       Exhibits C-1 through C-5 depicting photos of [Appellant], which
       were consistent with the description provided by the victims of
       the perpetrator of the robbery; photographs of the vehicle,
       which were consistent with the description of the vehicle
       provided by the witness, Michael Flyte; photographs of the
       sticker on the rear of [Appellant’s] vehicle, which were
       consistent with the description of the sticker provided by the
       witness Michael Flyte; and a photo of a hooded sweatshirt and
       black jacket found inside [Appellant’s] vehicle;

       24. In addition, Sergeant Enstrom testified consistently with the
       testimony of Detective Sergeant Melinsky regarding the incidents
       surrounding [Appellant’s] arrest;

       25. Detective Gary Hammer also testified consistently with
       Detective   Sergeant    Melinsky  concerning the  incidents
       surrounding [Appellant’s] arrest;

       26. The [trial] court finds, not only that the arrest was supported
       by sufficient probable cause, but that the probable cause to
       arrest [Appellant] was overwhelming.

Trial Court Opinion, 6/17/14.         Prior to trial, the Commonwealth moved to

consolidate the cases at docket numbers 4211-2013 and 435-2014.2             The

trial court granted the consolidation motion. Following a jury trial, Appellant

was convicted of robbery, two counts of simple assault, theft by unlawful

taking, and receiving stolen property in the First Case.         The trial court

____________________________________________


2
  Alternatively, the Commonwealth provided Appellant notice under Pa.R.E.
404(b) (bad acts) of its intention to introduce evidence of the First Case in
the Second Case and vice versa. The Commonwealth, however, withdrew
the Rule 404(b) notice at trial. See N.T. Trial, 6/3/14, at 39.



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sentenced Appellant to 90 to 240 months’ imprisonment for the armed

robbery conviction.       The trial court imposed no further penalty on the

remaining convictions in the First Case. In the Second Case, the jury found

Appellant guilty of escape, and the trial court imposed a sentence of 27 to

84 months’ imprisonment consecutive to the sentence imposed in the First

Case.     Thus, Appellant received an aggregate sentence of 117 to 324

months in prison.

        On September 12, 2014, Appellant filed a post-sentence motion,

challenging, inter alia, the denial of suppression, the consolidation of the

cases, and the in-court identification of Appellant. The trial court denied the

motion on January 5, 2015. Appellant timely appealed to this Court.3

        On appeal,4 Appellant essentially raises three issues for our review:

        1) Did the trial court err by denying the [m]otion to [s]uppress
           [e]vidence in the instant matter?

        2) Did the trial court err by improperly consolidating the criminal
           informations?

____________________________________________


3
  Following the filing of the appeal notice, Appellant petitioned the trial court
to proceed pro se. The trial court held a hearing at which it colloquied
Appellant on his decision to represent himself. On March 6, 2015, the trial
court granted Appellant’s petition to proceed pro se.
4
  We note Appellant’s pre-sentence investigation report is part of the original
record. It should be noted that pursuant to Pa.R.Crim.P. 703 a pre-sentence
investigation report is “confidential, and not of public record,” which is
available only to the authorities or the individuals listed therein. See
Pa.R.Crim.P. 703. Accordingly, the Northampton County Clerk of Courts
should take all necessary steps to preserve the confidential nature of the
pre-sentence investigation report by sealing it.



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      3) Did the trial court err by allowing irrelevant evidence relating
         to the consciousness of guilt in violation of Pa.R.E. 404(b)(2)?


Appellant’s Brief at 5. To the extent Appellant argues that the trial court (a)

erred in deciding his pretrial omnibus motion prior to the commencement of

trial in violation of Pa.R.Crim.P. 580; (b) erred by allowing improper in-court

identification evidence to be introduced and admitted at trial; and (c) abused

its discretion by imposing a manifestly excessive sentence, such arguments

are waived.      Appellant failed to challenge the trial court’s timing for

disposing of the omnibus motion in the trial court.      See Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”). Our review of the record reveals that Appellant

failed to object to his in-court identification by Joyce Wunderler. See N.T.

Trial, 6/3/14, 101-02. Finally, as the Commonwealth points out, Appellant

cannot challenge the discretionary aspects of his sentence on appeal

because he failed to do so in a post-sentence motion before the trial court.

It is settled that “[i]ssues challenging the discretionary aspects of a sentence

must be raised in a post-sentence motion or by presenting the claim to the

trial court during the sentencing proceedings.         Absent such efforts, an

objection   to   a   discretionary   aspect   of   a   sentence   is   waived.”

Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (citation

omitted), appeal denied, 75 A.3d 1281 (Pa. 2013).          Even if these issues

were not waived, we still would conclude that Appellant is not entitled to




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relief based on the reasons outlined in the trial court Rule 1925(a) opinion,

which we fully adopt.

      In reviewing appeals from an order denying suppression, our standard

of review is limited to determining

      whether [the trial court’s] factual findings are supported by the
      record and whether [its] legal conclusions drawn from those
      facts are correct. When reviewing the rulings of a [trial] court,
      the appellate court considers 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. When the record supports the findings of the [trial]
      court, we are bound by those facts and may reverse only if the
      legal conclusions drawn therefrom are in error.


Commonwealth v. Griffin, 116 A.3d 1139, 1142 (Pa. Super. 2015)

(citation omitted). Our scope of review is limited to the evidence presented

at the suppression hearing. In the interest of L.J., 79 A.3d 1073, 1088-89

(Pa. 2013).

      After careful review of the parties’ briefs, the record on appeal, and

the relevant case law, we conclude that the trial court’s 1925(a) opinion

authored by the Honorable Jennifer R. Sletvold, cogently disposes of

Appellant’s issues on appeal.         See Trial Court Rule 1925(a) Opinion,

3/26/15, at 3-19. With respect to the first issue, the trial court concluded,

based upon its findings detailed supra, that it did not err in denying

Appellant’s suppression motion because probable cause to arrest was

overwhelming to support his arrest and the resulting search of his person

and vehicle. On the second issue, the trial court determined that it did not

abuse its discretion in consolidating the cases for trial because they were


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interrelated.    As for the third issue, the trial court determined that the

Commonwealth withdrew at trial its notice to introduce evidence under Rule

404(b).5    The trial court noted that the Commonwealth was permitted to

argue to the jury that Appellant’s flight from the preliminary hearing was

indicative of a consciousness of guilt.

       In sum, we affirm Appellant’s convictions in both cases. We direct that

a copy of the trial court’s March 26, 2015 Rule 1925(a) opinion be attached

to any future filings in this case.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2016




____________________________________________


5
  Rule 404(b)(3) provides that “[i]n a criminal case the prosecutor must
provide reasonable notice in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown, of the general nature of any
such evidence the prosecutor intends to introduce at trial.”        Pa.R.E.
404(b)(3).



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