J-S96012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

LACY COLBERT,

                         Appellant                   No. 249 WDA 2016


     Appeal from the Judgment of Sentence Entered February 16, 2016
             In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0009509-2014


BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED JANUARY 26, 2017

      Appellant, Lacy Colbert, appeals from the judgment of sentence of an

aggregate term of 10 to 20 years’ incarceration, imposed after he was

convicted of robbery, 18 Pa.C.S. § 3701, possession of a firearm by a person

prohibited, 18 Pa.C.S. § 6105, and theft by unlawful taking, 18 Pa.C.S. §

3921. On appeal, Appellant challenges the trial court’s denial of his pretrial

motion to suppress evidence, as well as the sufficiency of the evidence to

sustain his firearm and robbery convictions. After careful review, we affirm.

      The trial court summarized the facts of Appellant’s case, as follows:

            This matter arises out of the arrest of [Appellant] on July
      7, 2014[,] after an armed robbery of a store in McKeesport,
      Pennsylvania.    [Appellant] filed an Omnibus Pretrial Motion
      seeking to disclose the identity of the person who supplied [his]
      name as a possible suspect and to suppress his statement given
      to police immediately after his arrest.      At the suppression
      hearing held on February 5, 2015, the Commonwealth presented
      the testimony of Officer [Christopher] Halaszynski of the
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        McKeesport police department[,] who testified that immediately
        after [Appellant’s] arrest on July 7[, 2014,] he was taken to
        police headquarters where he was [provided Miranda1
        warnings] and [he] signed a McKeesport Police Rights Warning
        Form acknowledging his rights.       [Appellant] then gave a
        handwritten statement describing his involvement in the
        robbery. The statement stated:

           "Ms. Joe, I would like to humble (sic) apologize for my
           actions today. I have a drug & alcohol problem. You
           always treated me fair. My attentions (sic) was never
           ment (sic) to hurt you or anyone else. I hope that one day
           you can forgive me for my actions. I feel very rueful, but I
           got down on myself. I lossed (sic) my mom to cancer and I
           just need help. Please understand that I feel very
           remorseful for what I did."

           On cross-examination Officer Halaszynski acknowledged that
        at the time that [Appellant] was apprehended he was at his
        wife’s residence and that a gun seized at that time was
        registered to [Appellant’s] wife. He also acknowledged that he
        indicated to [Appellant] that it would be helpful to his wife if he
        cooperated and made a statement in order to exclude her from
        any involvement in the crime.         Officer Halaszynski denied
        physically threatening or harming [Appellant] to obtain his
        statement.

           [Appellant] testified that the reason that he gave the
        statement was because Officer Halaszynski threatened to charge
        his wife with obstruction of justice if he did not make a
        statement and admit to the robbery. [Appellant] acknowledged,
        however, that he was read his Miranda rights and
        acknowledged that it was his handwriting, in part, that appeared
        on the written statement. On February 10, 2015[,] an order was
        entered denying the motion to suppress and denying the request
        for the identity of [the] informant.[2]

____________________________________________


1
    Miranda v. Arizona, 86 S.Ct. 1602 (1966).
2
 It is pertinent to note that, after Appellant’s initial motion to suppress was
denied, he obtained new counsel, who filed a second motion to suppress on
September 29, 2015. Therein, counsel argued that Appellant’s arrest was
(Footnote Continued Next Page)


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          At trial it was agreed that the case would proceed as a
      stipulated non-jury trial and the Commonwealth admitted into
      evidence [Appellant’s] record showing his prior conviction for
      felony robbery on June 9, 1999; the Consent to Search and
      Miranda Rights Warning form executed by [Appellant’s] wife,
      Aneissa Colbert[’s] authorizing the search of [Appellant’s]
      residence; photographs of the firearm and clothing found in
      [Appellant’s] residence; a Miranda Rights Warning Form signed
      by [Appellant] and [Appellant’s] written statement; the video
      surveillance film and two still pictures taken from the video; and,
      the police incident reports prepared by Officers Angert and
      Halaszynski. The video surveillance showing the robbery was
      also played.

         The police incident report prepared by Officer Halaszynski
      described his investigation and indicated that he was dispatched
      to Jo’s Coffee Shop at 3100 Versailles Avenue at 9:30 a.m. on
      July 7, 2013 for an armed robbery. The information given was
      that the suspect was described as a black male, 5’ 8” to 5’ 10”,
      approximately 270 lbs. with close cut hair. The suspect had a
      dark colored scarf covering his head and was wearing a black t-
      shirt, blue jeans and … tan boots.           Officer Halaszynski
      interviewed the victim who indicated that she was standing
      behind the counter of the store when the suspect walked in with
      a scarf over his head. Although she told him to remove the
      scarf, the suspect ignored her and then pointed a small revolver
      at her and then walked behind the counter and removed the
      currency from the counter drawer. The suspect then fled the
      store. The victim indicated that it appeared that the actor was
      wearing a latex glove on one hand. Further, Officer Halaszynski
      noted that: [the] “victim also stated that she could see the
      actor’s face and stated that she knows the actor from coming
      into the store. The victim states that she does not know this
      man’s name, but he comes in often and is approx. 40 years old.”

                       _______________________
(Footnote Continued)

illegal because it was based only on an anonymous tip that he was involved
in the robbery of the coffee shop. A second suppression hearing was
conducted on January 7, 2016, which we will discuss in more detail infra.
Ultimately, the court denied Appellant’s motion to suppress, concluding that
his arrest was supported by probable cause. See N.T. Hearing, 1/7/16, at
11.



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         Officer Halaszynski further indicated that he viewed the
      security video of the robbery which confirmed the information
      given by the victim, including the fact that the actor was
      brandishing a small revolver. Based on information received
      from an unidentified source, Officer Halaszynski [stated]:

         “I looked up the name Lacy in our ALERT system and
         located a Lacy Colbert Lamar of 2715 Atchison Street. Lacy
         is a 43 year old and approximately 5’11” in height.
         Atchison Street is just a short few blocks away from Jo’s
         Coffee Shop. I then looked up a photo of Lacy Colbert in
         JNET and discovered there was a very close resemblance
         to the actor in this armed robbery.”

      Officer Halaszynski then described that he and other officers
      proceeded to [Appellant’s] address and[,] after being admitted
      to the house by [Appellant’s] wife, [Appellant] was discovered in
      a second floor bedroom where he was taken into custody.
      [Appellant] then gave the written statement as described above.
      In addition, after obtaining consent to search the residence from
      [Appellant’s] wife, the officers found a Titan Tiger .38 revolver
      tucked in a couch in the living room. Although the gun was not
      loaded, they also found a gun holster, two live .38 rounds,
      black/brown boots and one latex glove. In addition, located in
      the upstairs bedroom was $63.00 and a dark green and white
      scarf that resembled the one used in the robbery to cover the
      actor’s head. In addition, [Appellant’s] wife informed the officers
      that [Appellant] had come into the house around 10:00 o'clock
      wearing the blue jeans, the black shirt and the boots. Finally,
      [Appellant’s] wife informed the officers that she was the owner
      of the gun and that it was registered to her. After considering all
      of the evidence, [Appellant] was found guilty as set forth above.

Trial Court Opinion (TCO), 7/14/16, at 2-5 (citations to the record omitted).

      Appellant was sentenced to the aggregate term stated supra, and he

filed a timely notice of appeal. Appellant also timely complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The trial court filed a responsive opinion on July

14, 2016. Herein, Appellant presents three issues for our review:



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      [I.] Did the trial court err when it denied Appellant’s Motion to
      Suppress where evidence was obtained subsequent to an
      anonymous tip, where [Appellant’s] custodial detention was
      illegal and where [Appellant’s] statement was not knowing,
      intelligent and voluntary?

      [II.] Did the trial court err when it denied Appellant’s Motion for
      Judgment of Acquittal where the Commonwealth failed to prove
      beyond a reasonable doubt that [Appellant] was the individual
      who robbed the coffee shop?

      [III.] Did the trial court err when it denied Appellant’s Motion for
      Judgment of Acquittal where the Commonwealth failed to prove
      beyond a reasonable doubt that [Appellant] possessed a firearm?

Appellant’s Brief at 4.

      Appellant first challenges the trial court’s denial of his motion to

suppress.

      In reviewing an order from a suppression court, we consider the
      Commonwealth’s evidence, and only so much of the defendant’s
      evidence as remains uncontradicted. We accept the suppression
      court’s factual findings which are supported by the evidence and
      reverse only when the court draws erroneous conclusions from
      those facts.

Commonwealth v. Hoopes, 722 A.2d 172, 174-75 (Pa. Super. 1998).

      Preliminarily, it is clear from the record before us that Appellant was

subjected to a warrantless arrest, rather than an investigative detention,

when he was discovered inside Mrs. Colbert’s home.                See TCO at 3

(discussing   Officer     Halaszynski’s   acknowledgment   that   Appellant   was

apprehended when he was discovered inside his wife’s home); Affidavit of

Probable Cause, 7/7/14, at 2 (stating that after Appellant was discovered

inside Mrs. Colbert’s home he “was taken into custody and brought to the

station”). Thus, Officer Halaszynski was required to possess probable cause


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to justify that arrest.   See In Interest of O.A., 717 A.2d 490, 495 (Pa.

1998) (“In order to be constitutionally valid under the Fourth Amendment to

the United States Constitution, a warrantless arrest must be supported by

probable cause.”). This Court has summarized that:

             Probable cause to arrest exists when the facts and
      circumstances within the police officer's knowledge and of which
      the officer has reasonably trustworthy information are sufficient
      in themselves to warrant a person of reasonable caution in the
      belief that an offense has been committed by the person to be
      arrested.

           Probable cause justifying a warrantless             arrest   is
      determined by the totality of the circumstances.

            Probable cause does not involve certainties, but rather the
      factual and practical considerations of everyday life on which
      reasonable and prudent men act. It is only the probability and
      not a prima facie showing of criminal activity that is a standard
      of probable cause. To this point on the quanta of evidence
      necessary to establish probable cause, the United States
      Supreme Court recently noted that finely tuned standards such
      as proof beyond a reasonable doubt or by a preponderance of
      the evidence, useful in formal trials, have no place in the
      probable-cause decision.

Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005)

(internal citations, quotation marks, and brackets omitted).

      Here, in Appellant’s second motion to suppress, and at the second

suppression hearing held on January 7, 2016, he averred that his arrest was

illegal because Officer Halasyznski’s statements in the affidavit of probable

cause demonstrated that the officer arrested Appellant based only on an




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anonymous tip that Appellant was involved in the robbery of the coffee

shop.3 See Motion to Suppress, 9/29/15, at ¶ 5 (pages unnumbered); N.T.

Hearing, 1/7/16, at 4, 5, 6-7.            He reiterates this argument on appeal,

claiming that, before arresting him, “[p]olice had nothing more than an

uncorroborated anonymous tip that someone named ‘Lacy’ may have been

involved in the robbery at the coffee shop.”                  Appellant’s Brief at 16.

Appellant contends that the anonymous tip was insufficient to provide Officer

Halaszynski with probable cause to arrest him and, thus, the court was

required to suppress the evidence found inside Mrs. Colbert’s home, and the

statement he made to police after his illegal arrest. See id. at 15.

       In   rejecting   Appellant’s     claim    that   his   arrest   was   illegal,   the

suppression court concluded that Officer Halaszynski had other information,

in addition to the anonymous tip, that provided him with probable cause to

arrest Appellant. See N.T. Hearing, 1/7/16, at 10-11. The record supports

the court’s conclusion.       Namely, in the affidavit of probable cause, which
____________________________________________


3
   For the first time on appeal, Appellant presents a novel challenge to the
legality of the alleged detention of his wife, Mrs. Colbert. See Appellant’s
Brief at 14. Appellant contends that his wife was illegally detained and,
thus, her subsequent consent to allow the police to enter and search her
home was invalid. Id. Even if Appellant had standing to challenge the
legality of the ostensible detention of his wife, he did not raise this issue, nor
challenge the validity of Mrs. Colbert’s consent to enter and search, before
the suppression court. Accordingly, these claims, made by Appellant for the
first time on appeal, are waived. 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.”).




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Appellant repeatedly cited at the second suppression hearing, Officer

Halaszynski   provided   the   following,   verbatim,   statement   about   the

information he knew prior to arresting Appellant:

     1. On July 7, 2013 approx. 09:33 hrs., McKeesport police was
     dispatched to Jo’s Coffee Shop 3100 Versailles Ave. for a armed
     robbery that just occurred. Information was given over the air
     that actor involved is a black male, 5’08” to 5’10”, approx. 270
     lbs with close cut hair. The actor had a dark color scarf covered
     over his head, black t-shirt, tan boots and blue jeans. Multiple
     units canvassed the area for the actor but with negative results.
     I then went to Jo’s Coffee Shop and spoke to the victim/owner
     JoMarie Piccini. Victim explains that while she was behind the
     counter this actor walked into the store with a dark scarf over
     his. Victim stated she told him to remove the scarf but the actor
     ignored her. The victim stated the actor was holding a small
     revolver in his hand. Actor did not say anything to the victim but
     continued to point the gun at her as he walked behind the
     counter. Actor then opened the counter drawer himself and
     removed approx. $140 in U.S. currency. Actor then calmly exited
     the store. Piccini stated it also looked as if the actor possibly
     wore a latex glove on one of his hands. Victim also stated that
     she could see the actors face and stated she knows the actor
     from coming into the store. The victim stated she does not know
     this males name but he comes in often and is approx. 40 years
     old.

     I then viewed the store security video of this robbery. The
     details given by the victim were parallel to what was viewed on
     the camera. Actor appeared to be wearing brown boots, blue
     jeans, black shirt, one latex glove on one hand and a blue and
     white scarf on his head. The actor was also viewed brandishing a
     small revolver.

     2. I called DA’s Crime Scene Unit out approx. 10:15 hrs. to
     process this scene and dust for latent prints. CSU arrived at
     3100 Versailles Ave. approx. 10:50 hrs. and processed this
     robbery scene. Any latent prints recovered will evaluated and
     process.

     3. I then received information that a possible suspect involved in
     this robbery is a black male by the name of ‘Lacy’. The


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      information received stated that Lacy is approx. 40 years old
      that has a heroin addiction. Information also stated that Lacy
      lives close to Jo’s Coffee Shop.

      I looked up the name Lacy in our ALERT system and located a
      Lacy Lamar Colbert of 2715 Atchison St. Lacy is 43 years old and
      approx. 5’11” in height. Acthison St. is also just a short few
      block away from Jo’s Coffee Shop. I then looked up a photo of
      Lacy Colbert in JNET and discovered there was a very close
      resemblance to the actor in this armed robbery.

Affidavit of Probable Cause, 7/7/14, at 2.

      The affidavit of probable cause confirms that Officer Halaszynski did

not premise Appellant’s arrest solely on an anonymous tip.      Instead, the

officer had ample other information corroborating that tip.    For instance,

Officer Halaszynski had a general description of the armed robber that

matched Appellant’s race, sex, general height, and approximate age.

Additionally, the victim told the officer that the robber frequented her shop

often, which aligned with Appellant’s living in close proximity to the shop.

Most importantly, the officer compared video footage of the armed robber to

a photograph of Appellant and found there to be a “very close resemblance.”

Id.   We agree with the trial court that the totality of these circumstances

provided Officer Halaszynski with probable cause to arrest Appellant.

Accordingly, the trial court did not err in denying Appellant’s motion to

suppress.

      In Appellant’s remaining two issues, he challenges the sufficiency of

the evidence to support his robbery and firearm convictions.         We will

address Appellant’s claims together, beginning with our standard of review:



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     In reviewing a sufficiency of the evidence claim, we must
     determine whether the evidence admitted at trial, as well as all
     reasonable inferences drawn therefrom, when viewed in the light
     most favorable to the verdict winner, are sufficient to support all
     elements of the offense. Commonwealth v. Moreno, 14 A.3d
     133 (Pa. Super. 2011). Additionally, we may not reweigh the
     evidence or substitute our own judgment for that of the fact
     finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
     2009). The evidence may be entirely circumstantial as long as it
     links the accused to the crime beyond a reasonable doubt.
     Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

     Here, aside from setting forth the applicable standard of review,

Appellant’s entire argument pertaining to the sufficiency of the evidence to

support his robbery and firearm convictions amounts to the following:

            In the instant matter[,] the trial court necessarily engaged
     in speculation and conjecture. The video surveillance evidence
     submitted did not reveal the assailant’s face. There was no
     forensic evidence linking Appellant to any of the items recovered
     from his residence. There was no forensic evidence linking any
     of the items recovered to the robbery itself. Finally, Appellant’s
     alleged “confession” was nothing more than an apology to “Ms.
     Jo” in an effort to shield his wife from suspicion.

            Even viewing the evidence in a light most favorable [to]
     the Commonwealth as the verdict winner[,] the Commonwealth
     failed to prove beyond a reasonable doubt that Appellant was the
     individual who robbed the coffee shop.


     …

            In the instant matter[,] the Commonwealth failed to prove
     beyond a reasonable doubt that Appellant was in possession of a
     firearm.    The video surveillance footage submitted by the
     Commonwealth fails to show with any degree of reliability that
     the item in the assailant’s hand was a “firearm” as defined by 18
     Pa.C.S.A. § 6102. While the item recovered from the residence
     that belonged to Mrs. Colbert was a “firearm[,]” there was
     absolutely no credible evidence beyond a blurry surveillance


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      video to allow the fact finder to conclude beyond a reasonable
      doubt that the item was, in fact, a firearm. There was no
      forensic evidence linking Appellant to his wife’s firearm and it
      was recovered in an entirely different section of the house.

Appellant’s Brief at 18-19.

      Appellant’s argument is wholly unconvincing, as he completely

disregards the abundance of evidence presented to the trial court, as the

fact-finder.    As   the   court’s   above-quoted   summary     of   this   case

demonstrates, the evidence before the court showed that Appellant matched

the general description of the robber provided by the victim, and he lived in

close proximity to the coffee shop.     Inside Appellant’s wife’s home, police

recovered clothing matching that worn by the robber, and Appellant’s wife

told Officer Halaszynski that Appellant had arrived at her home, shortly after

the time of the robbery, wearing that clothing. Police also found a scarf in

Mrs. Colbert’s home that was similar to the scarf worn by the robber in an

attempt to conceal his face. Additionally, the search of Mrs. Colbert’s home

uncovered a small revolver and one latex glove, which corresponded with

the victim’s description of the gun used by the robber and her claim that the

robber wore a glove on one of his hands.        The court also viewed video

surveillance footage of the robbery, and still pictures taken from that video.

      Further, the most compelling evidence of Appellant’s guilt was his own

statements to police following his arrest. Appellant provided officers with a

written apology to the victim for his “actions” that day, and stated that he

was “very remorseful for what [he] did.”      See TCO at 3 (citation to the

record omitted).     In addition, Officer Halaszynski’s affidavit of probable

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cause, which was stipulated to by defense counsel and admitted into

evidence at trial,4 provided the following, verbatim, summary of statements

Appellant made to the officer during his post-arrest interrogation:

              On July 7, 2014 approx. 14:40 hrs., I brought Lacy Colbert
       into the interview room and gave him a seat. With Det./Sgt.
       Alfer present I read Colbert his rights re. Miranda v. Arizona @
       approx. 14:50 hrs. Lacy Colbert then signed a McKeesport
       police Rights Warning Form and agreed to speak to us. We
       spoke in depth to Lacy about this robbery. Lacy began to admit
       to this crime and gave specific details of this robbery that only
       the victim and actor would know. These details include the
       exact clothing he wore during this robbery. Lacy stated that he
       wore a black t-shirt, blue jeans and had on a dark green scarf to
       cover his head. Lacy stated that he also wore one plastic glove.
       Lacy also stated that the gun used in this robbery was not
       loaded. Lacy stated he walked into the store pointing the gun
       and never spoke to the victim. Lacy stated he went straight to
       the back counter and opened a drawer and took the money in it.
       Lacy stated he the exited the store. Lacys stated he thought it
       was approx. $50 to $100 in U.S. currency. Lacy stated the gun
       used in this robbery belongs to his wife. Lacy stated that he has
       a terrible drug problem and was only doing this to get money for
       it. Lacy stated he knows “Ms. Jo’s” and feels very bad he did
       this.

Affidavit of Probable Cause, 7/7/14, at 3.

       This evidence, viewed as a whole, was clearly sufficient to prove,

beyond a reasonable doubt, that Appellant committed the robbery, and that

he possessed a firearm while doing so. Thus, Appellant’s challenges to the



____________________________________________


4
  See N.T. Trial, 2/16/16, at 12-13. We note that Appellant made no
objection at trial, and presents no argument herein, that the contents of
Officer Halaszynski’s police report were hearsay.



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sufficiency of the evidence to sustain his robbery and firearm convictions are

meritless.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/26/2017




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