J-511012-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA

Appe||ee

V.

ENRICO THEODOSIUS RHODES,

 

Appellant No. 628 WDA 2016

Appeal from the Judgment of Sentence April 1, 2016
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0000564-2015

BEFORE: OLSON and RANSOM, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED APRIL 6, 2017

Appellant, Enrico Theodosius Rhodes, appeals from the judgment of
sentence entered on April 1, 2016. We affirm.

The factual background and procedural history of this case are as
follows. On the evening of August 14, 2014, Carl Hammonds (“Hammonds")
and Appellant visited Robbie Butch (“Butch”) to collect a drug debt Butch
owed Hammonds. Butch told Hammonds that he could pay the debt With
funds located in a safe at Butch's Auto Salvage, Which his parents owned.
Butch did not have permission to be on Butch's Auto Salvage's property or to
remove the safe from the premises. Hammonds, Butch, and Appellant
entered Butch's Auto Salvage, removed the safe, and took several new

wallets.

* Former Justice specially assigned to the Superior Court

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Police became suspicious when they witnessed Hammonds, Appellant,
and Butch load the safe into Butch's vehicle. When questioned by police,
Butch provided the safe's combination and police were satisfied that the safe
belonged to Butch. During this interaction, Appellant requested that police
hand him his jacket, which was located inside Butch's vehicle. Police
searched the contents of the jacket and then handed the jacket to Appellant.
As the jacket was being passed to Appellant, a wallet fell out of the pocket.
Appellant said that it was his wallet - despite the fact that it was brand new
and there was nothing inside of it.

On June 1, 2015, the Commonwealth charged Appellant via criminal
information with burglary,1 theft by unlawful taking,2 criminal trespassing,3
criminal mischief,4 conspiracy to commit burglary,5 and conspiracy to
commit theft by unlawful taking.6 On July 2, 2015, Appellant filed an
omnibus pre-trial motion which included a motion to suppress. A
suppression hearing was conducted on August 5, 2015. Thereafter, the

suppression court granted in part and denied in part Appellant's motion to

 

1 18 Pa.c.s.A. § 3502(a)(2).

2 18 Pa.c.s.A. § 3921(a).

3 18 Pa.c.s.A. § 3503(a)(1)(ii).

4 18 Pa.c.s.A. § 3304(a)(5).

5 18 Pa.c.s.A. §§ 903, 3502(a)(2).

6 18 Pa.c.s.A. §§ 903, 3921(a).

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suppress. The suppression court suppressed the items found during the
search of Appellant's jacket; however, it permitted the Commonwealth to
introduce Appellant's statement that the wallet was his.

On September 25, 2015, a jury found Appellant not guilty of burglary
and conspiracy to commit burglary; however, it found him guilty of the other
four charges. On December 10, 2015, the trial court sentenced Appellant to
an aggregate term of 38 to 100 months' imprisonment. On December 21,
2015, Appellant filed a post-sentence motion.

On February 11, 2016, the trial court granted in part and denied in
part Appellant's post-sentence motion. Specifically, the trial court granted
Appellant's motion to change the grading of his criminal mischief conviction
and vacated the judgments of sentence for criminal trespassing and criminal
mischief. On March 4, 2016, the trial court vacated the remainder of
Appellant's judgment of sentence. On April 1, 2016, the trial court re-
sentenced Appellant to an aggregate term of 36 to 100 months'
imprisonment. This timely appeal followed. On April 29, 2016, the trial
court ordered Appellant to file a concise statement of errors complained of
on appeal (“concise statement"). See Pa.R.A.P. 1925(b). On May 20, 2016,
Appellant filed his concise statement. On July 22, 2016, the trial court
issued its Rule 1925(a) opinion.

Appellant presents two issues for our review:

1.Whether the suppression court erred in ruling the
Commonwealth could elicit testimony that [A]ppellant identified

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the wallet that was the subject of an illegal search to be his after
it fell from his jacket . . . ?

2. Whether the Commonwealth elicited testimony regarding a
matter . . . that had been suppressed?

Appellant's Brief at 4.

In his first issue, Appellant argues that the suppression court erred in
not suppressing his statement that the wallet that fell from his jacket pocket
belonged to him. This issue is moot. “If events occur to eliminate the claim
or controversy at any stage in the process, the [issue] becomes moot.” In
re S.H., 71 A.3d 973, 976 (Pa. Super. 2013) (citation omitted). Appellant
concedes in his brief that “no statement of [A]ppellant regarding the wallet
was elicited [at trial]." Appellant's Brief at 9. Any controversy regarding the
partial denial of Appellant's suppression motion was eliminated when the
Commonwealth did not introduce the evidence Appellant sought to suppress.
Accordingly, Appellant's first issue is moot.

In his second issue, Appellant contends that the Commonwealth
improperly referenced inadmissible evidence. This argument is waived.
“Issues not included in [a concise statement] . . . are waived.” Pa.R.A.P.
1925(b)(4)(vii); see Commonwealth v. Richard, 150 A.3d 504, 512 n.4
(Pa. Super. 2016) (citation omitted). As Appellant did not include this
allegation of error in his concise statement, he has waived this issue for
purposes of appellate review.

Judgment of sentence affirmed.

J-511012-17

Stevens, P.J.E. joins this memorandum.

Ransom, J. concurs in the result.

Judgment Entered.

 

J seph D. Seletyn, Es .
Prothonotary

Date: 4[6[2017

