J-S79041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :         PENNSYLVANIA
                                               :
                       Appellee                :
                                               :
                v.                             :
                                               :
    STEPHEN WHITE                              :
                                               :
                       Appellant               :        No. 239 EDA 2017

            Appeal from the Judgment of Sentence August 11, 2016
             In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0002455-2015


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                          FILED JANUARY 19, 2018

        Appellant, Stephen White, appeals from the judgment of sentence

entered in the Montgomery County Court of Common Pleas, following his jury

trial convictions for one count each of loitering and prowling, conspiracy to

commit loitering and prowling, persons not to possess firearms, and two

counts of receiving stolen property (“RSP”).1 We affirm.

        The trial court opinion accurately set forth the relevant facts and

procedural history of this case. Therefore, we have no reason to restate them.

        Appellant raises four issues for our review:2

           WAS   [APPELLANT] PROPERLY PROSECUTED                     IN
           MONTGOMERY COUNTY FOR CRIMES WHICH,                       IF
____________________________________________


1
    18 Pa.C.S.A. §§ 5506; 903; 6105; 3925, respectively.

2
    For purposes of disposition, we have reordered some of Appellant’s issues.
J-S79041-17


         SUFFICIENTLY SUPPORTED BY RELIABLE EVIDENCE, TOOK
         PLACE IN PHILADELPHIA COUNTY? WAS THERE AN “OVERT
         ACT” AS DISCUSSED IN [COMMONWEALTH V. MCPHAIL,
         547 PA. 519, 692 A.2D 139 (1997) (PLURALITY)] THAT
         TOOK PLACE IN MONTGOMERY COUNTY THAT WOULD
         SUPPORT THE TRIAL COURT’S VENUE AND JURISDICTION?

         DID THE TRIAL COURT ERR WHEN IT FAILED TO SUPPRESS
         EVIDENCE OBTAINED AS THE RESULT OF WARRANTS FOR
         TWO SEPARATE RESIDENCES IN PHILADELPHIA AND THEN
         AGAIN WHEN SAID EVIDENCE WAS ADMITTED DURING THE
         TRIAL IN THIS CASE? DID THE POLICE OVERREACH BY
         SEEKING ANY POSSIBLE LOCATION WHERE [APPELLANT]
         MIGHT HAVE RESIDED IN THE PAST, LEAVING THE
         WARRANTS TO LACK A SUFFICIENT NEXUS BETWEEN THE
         ALLEGED CRIMES AND THE LOCATION TO BE SEARCHED AS
         WELL AS LACKING PROBABLE CAUSE?          WERE THE
         WARRANTS OVERBROAD AND FAILING TO STATE WITH
         PARTICULARITY THE ITEMS TO BE SEIZED? WERE THE
         WARRANTS     BASED   UPON   AN     UNLAWFUL    AND
         WARRANTLESS     DETENTION  OF    [APPELLANT]   AND
         SUBSEQUENT INVESTIGATION OF HIM?

         WAS THERE SUFFICIENT EVIDENCE TO SUPPORT A
         CONVICTION OF [APPELLANT] FOR EITHER POSSESSION
         OF A STOLEN WEAPON, A RING[,] OR OF BEING A PERSON
         NOT TO POSSESS THAT WEAPON?

         DID THE TRIAL COURT ERR IN SENTENCING [APPELLANT]
         TO CONSECUTIVE TERMS OF INCARCERATION FOR CRIMES
         FOR WHICH THE ELEMENTS ARE NEARLY IDENTICAL.
         SPECIFICALLY, [APPELLANT] WAS SENTENCED FOR BOTH
         POSSESSING A STOLEN FIREARM AND FOR BEING A
         PERSON NOT TO POSSESS THAT SAME FIREARM?

(Appellant’s Brief at 5-6).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Steven T.

O’Neill, we conclude Appellant’s issues merit no relief. The trial court opinion

comprehensively discusses and properly disposes of the questions presented.

                                     -2-
J-S79041-17


(See Trial Court Opinion, filed April 19, 2017, at 7-17) (finding: (1)

Pennsylvania Courts of Common Pleas have subject matter jurisdiction over

violations of Crimes Code; court in which Appellant was tried is Court of

Common Pleas, so it had jurisdiction over all charges against Appellant; under

Pa.R.Crim.P. 130(A)(3), when charges arising from same criminal episode

occur in more than one judicial district, criminal proceeding on all charges may

be brought before one issuing authority in magisterial district within any of

judicial districts in which charges arising from same criminal episode occurred;

by letter of March 31, 2015, Philadelphia County District Attorney’s office sent

McPhail letter3 to Montgomery County District Attorney’s office agreeing to

let Montgomery County prosecute charges of RSP and persons not to possess

firearm (which occurred in Philadelphia County); Appellant did not challenge

at any time before trial ability of Montgomery County to prosecute charges

related to property recovered from his Philadelphia apartment;4 further, fact

____________________________________________


3
  In McPhail, a plurality of our Supreme Court held that all charges stemming
from a single criminal episode must be heard in a single trial, even where
some of the charges arose in more than one judicial district. See McPhail,
supra at 530, 692 A.2d at 145. To implement the holding in McPhail, Rule
130 was added to the Pennsylvania Rules of Criminal Procedure. McPhail was
later superseded by statute. Nevertheless, district attorney’s offices still use
the term “McPhail letter” when discussing the transfer of cases involving a
continuing criminal episode spanning different counties.

4
  Appellant insists his issue is a non-waivable jurisdictional challenge.
Appellant’s claim, however, actually attacks the venue of the court. See
McPhail, supra at 529, 692 A.2d at 144 (stating: “[T]he place of trial,
whether within or without the county where the alleged crime occurred, is a



                                           -3-
J-S79041-17


that jury was deadlocked on burglary charge arising out of Montgomery

County does not somehow invalidate proper transfer which took place in this

case; because Philadelphia and Montgomery counties agreed to prosecute all

charges against Appellant in Montgomery County, venue and jurisdiction in

Montgomery County was proper, and Appellant’s claim lacks merit; (2) police

established burglary detail due to multiple burglaries which occurred in

Montgomery County; Detective Sergeant Fink testified that during burglary

detail on March 21, 2015, Officer Bullock observed Appellant and his cohort

drive slowly around high-end neighborhoods at night; when Officer Bullock

ran tag on car, there was no record of registration; Detective Sergeant Fink

joined in surveillance and twice observed Appellant exit vehicle and approach

houses; Detective Sergeant Fink saw Appellant “creeping” around one home

and crouching to look into window; based on his training and experience,

Detective Sergeant Fink believed Appellant and his cohort were casing homes

to burglarize, which gave police reasonable suspicion to stop vehicle; once

police stopped vehicle, Detective Sergeant Fink observed, in plain view, ladder


____________________________________________


matter of venue, not jurisdiction”; unlike subject matter jurisdiction, venue is
waivable if not properly preserved). Appellant raised this issue for the first
time at the hearing on his post-sentence motion. Appellant’s failure to object
to venue at the appropriate stage of the proceedings constitutes waiver of his
claim on appeal. See generally Pa.R.Crim.P. 578 (stating motion for change
of venue should be raised in omnibus pre-trial motion at “earliest feasible”
time); Commonwealth v. Strunk, 953 A.2d 577 (Pa.Super. 2008) (stating
party’s failure to raise error and request remedy at appropriate stage of
proceedings constitutes waiver on appeal; party may not remain silent and
later complain of matters which, if erroneous, court could have corrected).

                                           -4-
J-S79041-17


matching description of ladder contained in intelligence bulletin regarding

February 7, 2015 burglary, as well as multiple cell phones, gloves, and

screwdrivers, which are commonly used in burglaries; officers had probable

cause to arrest Appellant for loitering and prowling; affidavits of probable

cause issued for search warrants of Appellant’s homes outlined Detective

Sergeant Fink’s training and experience, Appellant’s criminal history, and

contained extensive detail regarding recent Montgomery County burglaries,

as well as facts which led to instant charges; affidavits also indicated that at

time of Appellant’s arrest, he had Pennsylvania driver’s license and parole card

with address on 10th Street in Philadelphia; further investigation revealed

Appellant was registered with Department of Human Services with address on

Haverford Avenue in Philadelphia; PennDot records indicated Appellant had

car registered to Haverford Avenue address; there was sufficient probable

cause to believe items stolen in Montgomery County burglaries would be found

in any one of these residences; warrants for Appellant’s Philadelphia addresses

were not overly broad and stated specifically that police sought: proof of

residence, Beretta 9-mm handgun, and assorted jewelry; police ultimately

recovered from Appellant’s residence ring and gun stolen in February 7, 2015

burglary; court properly denied motion to suppress;5 (3) totality of

____________________________________________


5
 We depart only from the trial court’s statement on page nine that Appellant
waived his challenge to the admissibility at trial of the search warrants and
property recovered during execution of those warrants. Appellant preserved



                                           -5-
J-S79041-17


circumstances showed Appellant had constructive possession of firearm; mail,

phone records, expired driver’s license, and testimony from Appellant’s

girlfriend tied Appellant to location where police recovered stolen gun; in

bifurcated portion of trial following jury’s verdict on other charges, parties

stipulated Appellant was person not to possess firearms due to prior burglary

conviction; evidence was sufficient to sustain Appellant’s convictions for RSP

(firearm) and persons not to possess firearms;6 (4) as presented, Appellant’s

challenge to imposition of consecutive sentences does not raise substantial

question; moreover, sentence was not “clearly unreasonable”; in light of

Appellant’s extensive criminal history, aggregate sentence of 9 to 20 years’

imprisonment is wholly appropriate; court considered Appellant’s extensive

____________________________________________


his evidentiary challenge by filing a pre-trial motion to suppress, so he did not
need to object to admission of the evidence again at trial. See Pa.R.Crim.P.
581(J) (stating: “If the court determines that the evidence shall not be
suppressed, such determination shall be final, conclusive, and binding at trial,
except upon a showing of evidence which was theretofore unavailable, but
nothing herein shall prevent a defendant from opposing such evidence at trial
upon any ground except its admissibility”); Commonwealth v. Walker, 477
Pa. 370, 383 A.2d 1253 (1978) (explaining objection at trial to evidence which
court already ruled was admissible in pre-trial suppression proceeding would
constitute “useless act”; appellant did not waive challenge to admissibility of
evidence at trial where he challenged admissibility of that evidence in pre-trial
suppression motion). In any event, because the court properly denied
Appellant’s suppression motion, admission of the evidence at trial was proper.

6
  To the extent Appellant challenges the sufficiency of the evidence to sustain
any other convictions in this case, he waived those complaints for failure to
raise them in his Rule 1925(b) statement. See Commonwealth v. Castillo,
585 Pa. 395, 888 A.2d 775 (2005) (holding as general rule that issues not
raised in Rule 1925(b) statement are waived on appeal).



                                           -6-
J-S79041-17


criminal history, which included numerous crimes against persons, when court

fashioned sentence that protected community from Appellant’s recidivist

behavior; Appellant’s firearm offenses are serious and pose danger to

community; harms sought to be remedied by Appellant’s RSP (firearm) and

persons not to possess offenses are different, so court imposed consecutive

terms of imprisonment for those crimes; additionally, court imposed

concurrent sentences for Appellant’s remaining convictions; court did not

abuse its discretion in sentencing Appellant7). Accordingly, we affirm on the

basis of the trial court’s opinion.

       Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/19/2018




____________________________________________


7
 Appellant’s remaining sentencing claims on appeal are waived for failure to
preserve them in his Rule 1925(b) statement. See id.

                                           -7-
                                                                                      Circulated 01/05/2018 01:02 PM




                 IN THE COURT OF COMMON PLEAS OF MONTGOMERY                             <586fiT.i:,;-.
                                    PENNSYLVANIA
                                   CRIMINAL DMSION          20!7 AF'f{ i 9 PM                               2: 57
         COMMONWEALTH OF PENNSYLVANIA                            NO. 2455-15

                       v.
....,\

�:       STEPHEN RODNEY WHITE
If"\'
.....�
                                            OPINION
         O'NEILL, J.                                            April      If, 2017
                 The Defendant, Stephen Rodney White appeals from the judgement of

         sentence entered on August 11, 2016. For the reasons set forth below, the

         judgement of sentence should be affirmed.

            I.     Facts and Procedural History
                 On February 7, 2015, the home at 1277 Burnett Road, Huntingdon

         Valley, Lower Mo�elan�1_Montgomery County was burglarized. The

         homeowners returned to their home that evening to find that the upstairs had

         been ransacked and jewelry, watches, $2,800 cash, and a 9-millimeter Beretta,

         serial number J24532Z, were taken. (N.T. May 24, 2016 at 50; 55). The home

         was entered through the upstairs master bathroom window. Id. at 58; 78. On

         the ground outside the window, police found a spider web like ladder footprint

         in the snow. Id. at 80. Sneaker prints and Timberland boot prints were also

         found at the scene, indicating there were two perpetrators. There were

         footprints that matched the sneaker print in the master bathroom. Id. at 96.

         The window was pried open with a pry bar or screw driver. Id. at 97 .


                                                                        ... ,   ...                  _
           As a result of this burglary and other burglaries that occurred in Lower

      Moreland and Abington Townships, Montgomery County, during the months of

      February and March 2015, Detective Sergeant Stephen Fink of the Abington

      Police Department was assigned to head a burglary task force. Prior to

      commencing surveillance, Det. Sgt. Fink reviewed an intelligence bulletin put

"'�   out by the Lower Moreland Police Department. (Commonwealth's Exhibit 122

      ("C-122"); N.T. May 24, 2016 at 147). The bulletin outlined the February 7,

      2015 burglary and contained pictures· of the two sets of shoe prints and ladder

      print found at 1277 Burnett Road on February 7, 2015. Id. at 147-150.

            On March 21, 2015, the taskforce was conducting surveillance in the

      residential areas adjacent to Huntingdon Pike for the 11th night in a row. Det,

      Sgt. Fink positioned plainclothes officers throughout the residential areas

      adjacent to Huntingdon Pike, which runs through both Lower Moreland and

      Abington and is in close proximity to Burnett Road. Id. at 151-152.

      At approximately 8:30 p.m., Officer Dan Bullock observed a white Buick SUV

      turn off of Moredon Road into a small cul-de-sac containing high end homes,

      drive around the cul-de-sac, and return to Moredon Road and continue in the

      same direction of travel. Id. at 152.   Officer Bullock ran the license plate on

      the vehicle and found that there was no registered owner. Id. The vehicle

      began to travel toward Det. Sgt. Fink's location. Id. at 153. Officer Bullock

      advised Det. Sgt. Fink that he believed there was one person in the vehicle. Id.

      Officer Bullock followed the vehicle down Moredon Road and made a left on

      Pine Road, at which time Det. Sgt. Fink pulled in behind Officer Bullock Id.

                                                2
                    All three vehicles approached a red light at the intersection of Pine and Welsh

                    Road. Id. at 154. Officer Bullock entered the right turn lane and pulled up

                    next to the passenger side of the vehicle at which time he radioed to Det. Sgt.

                    Fink that there was only o:he person in the car, the driver, who was later

                    identified· as Brian Bosket. Id. Det. Sgt. Fink continued to follow the vehicle

                    into another residential neighborhood. Id. at 155.

                                The vehicle ultimately turned onto Bonnie Lane at which time Det. Sgt.

                    Fink positioned himself at the top of the street. Id. at 155-156, 158. Det. Sgt.

                    Fink observed the vehicle driving very slowly, approximately five miles per

                    hour, down Bonnie Lane. Id. The car stopped at the curve in Bonnie Lane and

                    Det. Sgt. Fink observed a person, later identified as the Defendant, exit the

                    passenger side of the vehicle. Id. at 159. Det. Sgt. Fink observed the

                    Defendant go across the front of the house at 2611 Bonnie Lane and up the

                    driveway on the right side of the house. Id. at 160. Det. Sgt. Fink radioed the

                    other officers on the detail and exited his vehicle. Id. at 161.         Det. Sgt. Fink

                    approached on foot in attempt to observe the Defendant. Id. Det. Sgt. Fink

                    briefly lost sight of him and then observed him coming back down the driveway

                    and returning to the Buick. Id. The house was dark and there were no cars in

                    the driveway. Id. at 162.

                                The Buick then continued to inch down Bonnie Lane and stopped in-

                    front of 2635 Bonnie Lane, which was also dark. Id. Again, the Defendant

                    exited the passenger side of the vehicle and went up the driveway. Id. at 163.

                    Det. Sgt. Fink was still on foot and was able to get within about two houses of
 ----------··-·---···--·                                                                       ·········----------
                                                                                         3
-·--- ···-·-----------�... - -----�------------··· ----· .. ·-·--·-   -----·······-···
       2635 Bonnie Lane. Id. He observed the Defendant crouching in a row of

       hedges at the front of the home looking in the windows. Id. at 164, 173. The

       Defendant did not ring the doorbell or knock on the door. Id. Again the

       Defendant returned to the Buick. Id. at 17 4.

             At this point Det. Sgt. Fink returned to his car and radioed other officers.

       Id. at 175. The Buick left Bonnie Lane and continued slowly through the

       residential area, eventually turning onto Sunflower Way, which was the only

       point of egress from the neighborhood. Id. at 175-1 76. The Buick again drove

       very slowly and stopped at Morning Glory Way and Sunflower Way. Id. at 176.

       All four plainclothes officers had joined Det. Sgt. Fink at this time. The car

       remained stopped for a minute or two and then began driving at a normal rate

       of speed. Id. at 1 77. At this point Det. Sgt. Fink radioed uniformed Lower

       Moreland officers and asked them to initiate a traffic stop. Id.

       Det. Sgt. Fink arrived at the scene of the traffic stop, at which time he

       observed, in plain view, a ladder matching the description of the ladder in the

       intelligence bulletin in the third row seating of the Buick. Id. at 179. Det. Sgt.

       Fink also saw multiple cell phones and gloves in plain view in the center

       console of the vehicle. Id. at 180. At this point, the Defendant and the driver

       of the Buick, Brian Bosket, were taken into custody. Id.

             On March 22, 2015, Det. Sgt. Fink prepared search warrants for the

       Defendant's known addresses, as well as the home address of Brian Bosket.

       Id. at 182. Investigation revealed that the Defendant had a vehicle registered

       in his name with an address of 7212 Haverford Avenue, Apt. B-4, Philadelphia,
··----------·--··-·-····-·--
                                                4
        PA. Id. at 183. During the execution of the search warrant at the Haverford

        Avenue apartment, law enforcement recovered mail addressed to the

        Defendant, an expired driver's license bearing the Defendant's name and

        Haverford Avenue address, Nike Air Force One sneakers, Timberland boots, a

        gold diamond ring, and a Beretta 9-millimeter handgun, serial number

·�,11   J24532Z. Id. 188-197. The Beretta and the diamond ring were taken from the

        home at 1277 Burnett Road on February 7, 2015.

                Search warrants were also executed on the Buick and the cell phones

        found in the center console. In addition to the ladder and cell phones, a ski

        mask, two pairs of gloves, two screw drivers, a knife, Nike Air Max sneakers, a

        license plate, dog mace, and a flashlight were recovered from the vehicle. Id. at

        211; C-130.

                Following a four dayjury trial, the Defendant was convicted of Loitering

        and Prowling at Nighttime1, Conspiracy to Loitering and Prowling at Nighttimes,

        Receiving Stolen Property3, and, following a bifurcated trial, Person Not to

        Possess a Firearm. 4 The jury deadlocked on the charges of Burglary>, Theft By

        Unlawful Takings and Criminal Trespass.?

                 On August 11, 2016, the Defendant was sentenced to an aggregate term

        of nine (9) to twenty (20) years' incarceration in a state correctional institution.


        1
            18 Pa. C.S.A. § 5506.
        2   18 Pa. C,S.A. § 903(a)(l).
        3   18 Pa. C.S.A. § 3925(a).
        4   18 Pa. C.S.A. § 6105 (a}.
        5
          18 Pa. C.S.A. § 3502(a)(2).
        6 18 Pa. C.S.A. § 392l(a).
        7 18 Pa. C.S.A. § 3503(a)(l)(ii).
                                     ·----··-

                                                  5
                        On August 22, 2016, the Defendant filed a timely post-sentence motion.

                        Following a hearing on November 29, 2016, this Court denied the motion by

                        Order of December 16, 2016. This appeal followed. By Order of January 9,

                        2017, the Court directed the Defendant to produce a statement of matters

                        complained of on appeal, pursuant to Pa.R.A.P. 1925(b). The Defendant has

     ""'1               since complied with that directive.

                               II.             Issues
                                       The Defendant raises the following issues in his concise statement,

                        renumbered in the order in which they will be addressed:

                                1. Defendant was prosecuted for crimes in Montgomery County
                                   which, if supported by reliable evidence, took place in Philadelphia
                                   County.     Although a request was sent in accordance with
                                   Commonwealth v. McPhail, 69;2 A.2d 139 (Pa. 1997), the letter
                                   specifically stated that said prosecution was to be used in a
                                   Montgomery County investigation into Montgomery County
                                   burglaries. The jury in this matter was unable to reach a verdict
                                   on the burglary charges and only found Defendant guilty of
                                   misdemeanor charges of Loitering and Conspiracy to loiter for
                                   actions within Montgomery County and therefore no "overt act" as
                                   discussed in McPhail took place in Montgomery County that would
                                   support the trial court's venue and jurisdiction.

                     2. The Trial court erred when it failed to first suppress evidence
                        obtained as the result of warrants for two separate residences in
                        Philadelphia and then again when the Trial Court admitted said
                        evidence during the trial in this case. The warrants were based
                        upon allegations of loitering in Montgomery County and the
                        Defendant, upon detention for those allegations, provided two
                        forms of proper identification for his actual residence. The police
                        overreached by seeking any possible locations where the Defendant
                        might have resided in the past and the warrants thus lacked a
                        sufficient nexus between the alleged crimes and the location to be
                        searched and also lack· probable cause.         The warrants were
                        overbroad and failed to state with particularity the items to be
                        seized.    The warrants were based upon an unlawful and
                        warrantless detention of the · Defendant and subsequent
                        investigation of him;
                   -------··-------
                                                                                                6
·----..... --.···� -···. - - ··- - ····- ..., .. --�------ ·-·.   - .... -.- ----·····-·----·
     3. Absent the evidence gained in reliance of [sic] the improper
        warrants, there was no evidence sufficient to support a conviction
        of the Defendant for either possession of a stolen weapon or being
        a person not to possess that weapon.

     4. The Trial Court erred in sentencing Defendant to cons.ecutive terms
        of incarceration for crimes for which the elements are nearly
        identical.  Specifically, the Defendant was sentenced for both
        possessing a stolen firearm and for being a person not to possess
        that same firearm. While the imposed sentence is a legal sentence,
        the punitive nature of the consecutive sentences as a whole is an
        abuse of discretion, particularly when the firearm was never found
        in the Defendant's actual possession.

     III.       Discussion

     1. All of the charges against the Defendant were properly tried in
            Montgomery County.
            Defendant's first claim is that the jury's inability to reach a verdict on

  Burglary and Theft By Unlawful taking while finding him guilty of Receiving

  Stolen Property based on the recovery of property from a Philadelphia address,

  somehow divested this Court of jurisdiction over these charges and rendered

  Montgomery County the inappropriate venue. This claim is wholly illogical and

  without merit and, therefore, must fail.

            All courts of common pleas have subject matter jurisdiction over

  violations of the Crimes Code. See, Commonwealth v. Bethea, 828 A.2d 1066,

  1074-75 (Pa. 2003). "Subject matter jurisdiction and venue. are distinct.

  However, since jurisdiction references the power of a court to entertain and

  adjudicate a matter while venue pertains to the locality most convenient to the

  proper disposition of a matter, venue can only be proper where jurisdiction

  already exists." Id. (citation omitted). The terms are often loosely used

------------ -·-         - ·--------·-··.                                         ---·-----··
                                               7
interchangeably because they must both exist for a court to exercise its power.

Id.   Clearly, as a Court of Common Pleas, this Court had jurisdiction over all of

the charges against the Defendant.

       Pursuant to the Rules of Criminal Procedure regarding venue, "[w]hen

charges arising from the same criminal episode occur in more than one judicial

district, the criminal proceeding on all the charges may be brought before one

issuing authority in a magisterial district within any of the judicial districts in

which the charges arising from the same criminal episode occurred." Pa. R.

Crim. P. 130 (A)(3). As conceded by the Defendant, by letter of March 31,

2015, an Assistant District Attorney in the Philadelphia District Attorney's

Office sent a letter to Montgomery County agreeing, pursuant to McPhail, 54 7

Pa. 519 and Pa. R. Crim. P. 130, to let Montgomery County assume jurisdiction

over the charges of Theft by Receiving Stolen Property and Possession of a

Firearm. The fact that the jury in the instant case hung on the charge of

Burglary cannot somehow render the proper transfer of a case invalid. This

court is aware of no authority, and the Defendant has cited none, that would

support this proposition. Furthermore, at no time prior to his trial did the

Defendant challenge the ability of Montgomery County to prosecute the charges

related to the property recovered from his Philadelphia apartment. Therefore,

because Philadelphia and Montgomery County entered into an agreement to

prosecute all charges in Montgomery County, the venue and jurisdiction of this

Court was proper and this claim is devoid of merit.




                                          8
           2. This Court did not err in denying the Defendant's Motion to
              Suppress.
           The Defendant's next contention contains several challenges to this Court's

        denial of his motion to suppress evidence obtained as a result of the search

        warrants executed on his residences.s 'Specifically, the Defendant asserts that

        he was unlawfully detained; therefore, the search warrants that were

        subsequently obtained for his.residences were improper and not supported by

        probable cause. Additionally, he asserts that the warrants were overbroad and

        that there was not an established nexus between the crimes and the properties

        to be searched. The Defendant also claims that the admission at trial of the

        evidence obtained through the challenged warrants was error.. Counsel did not

        object when either the search warrants or the ring and firearm were admitted

        into evidence, therefore, he cannot raise this claim for the first time on appeal.

        (N.T. May 24, 2016 at 63, 65, and 186). The motion to suppress was properly

        denied, therefore, this claim must fail.

           The standard of review for the denial of a suppression motion is well settled.

        The Pennsylvania Supreme Court has stated:

               In reviewing a trial court's suppression ruling, our initial task is to
              determine whether the factual findings are supported by the
              record. In making this determination, we must consider only the
              evidence of the prosecution's witnesses, and so much evidence of
              the defense that remains uncontradicted when fairly read in the
              context of the record. as a whole.. When the evidence supports the
              factual findings, we are bound by such findings; we may reverse
              only if the legal conclusions drawn therefrom are erroneous.



   s The Court notes that nothing of evidentiary value was found as a result   of the search
   of 5121 N. 1 Qth Street.
-------------·--·-··· ·-· ··--··----··--- --···········-- --
                             -····                                                ---····-------·
                                                   9
Commonwealth v. Wituszynski, 784 A.2d 1284, 1285 (Pa. 2001)(citing
Commonwealth v. Bridges, 757 A.2d 859, 868 (Pa. 2000) (quoting
Commonwealth v. Williams, 650 A.2d 420, 425-26 (Pa. 1994)).

      First, the Defendant was lawfully detained. It is well settled that there

are three categories of police-citizen interactions.

      The first of these is .a 'mere encounter' (or request for information)
      which need not be. supported by any level of suspicion, but carries
      no official compulsion- to stop or to respond. The second, an
      'investigative detention' must be supported by a reasonable
      suspicion; it subjects a suspect to a stop and a period of detention,
      but does not involve such coercive conditions as to constitute the
      functional equivalent of an arrest. Finally, an arrest or 'custodial
      detention' must be supported by probable cause.
Commonwealth v. Ranson, 103 A.3d 73, 76-77 (Pa. Super. 2014), reargument

denied (Dec. 16, 2014), appeal denied, 117 A.3d 296 (Pa. 2015) (citations

omitted). Furthermore,


      [ a] police officer may detain an individual in order to conduct an
      investigation if that officer reasonably suspects that the individual
      is engaging in criminal conduct. This standard, less stringent than
      probable cause, is commonly known as reasonable suspicion. In
      order to determine whether "the police officer had reasonable
      suspicion, the totality of the circumstances must be considered. In
      making this determination, we must give due weight to the specific
      reasonable inferences the police officer is entitled to draw from the
      facts in light of· his . experience. Also, the totality of the
      circumstances test does not limit our inquiry to an examination of
      only those facts that clearly indicate criminal conduct. Rather,
      even a combination of "innocent facts, when taken together, may
      warrant further investigation by the police officer.

Id. at 77. (citations omitted).




                                         10
      Det. Sgt. Fink testified that while out on a burglary detail? Officer

Bullock observed the Defendant, in a vehicle driven by Brian Bosket, drive

slowly around high end- neighborhoods at night.        N.T. Feb. 29; 2016 at 32.

When Officer Bullockran the tag on the car, there was no record found. Id.

Detective Sergeant Fink joined in surveillance and, twice, Fink observed the

Defendant get out of the car and approach houses on Bonnie Lane; the

Defendant returned to the vehicle both times. Id. at 39-46. At 2635 Bonnie

Lane, Det. Sgt. Fink observed the Defendant "creeping" around the house and

crouching to look in the window of the home. Id. at 45. Det. Sgt. Fink then

followed the Buick to another residential street with high end homes, where,

again, the Buick drove very slowly. Id. at 48.

      Based on his training and experience, and his observations, Det. Sgt.

Fink believed that the Defendant and his companion were casing homes in

order to find a home to burglarize. Id. Therefore, "knowing that [he] observed

loitering and prowling at nighttime and [he] believed they were attempting to

break into homes,'' he ordered a traffic stop when the car began to leave the

area. Id. at 51. The court found that, based on the totality of the

circumstances, there was reasonable suspicion to stop the vehicle. Id. at 175.

Once the vehicle was stopped, Det. Sgt. Fink observed, in plain view, a ladder

matching the description of the ladder contained in the intelligence bulletin

regarding the February 7, 2015 burglary at 1277 Burnett Road as well as what

9 There was testimony that there were four burglaries prior to March 21, 2015, that
law enforcement believed were· related and resulted in the creation of a burglary detail.
N.T. Feb. 29, 2016 at 18. However, the Defendant was only charged with one
completed burglary.
                                            11
he recognized as common tools used by burglars, specifically, multiple cell

phones, gloves and screw drivers. Id. at 53-56. At this point, officers had

probable cause to arrest the Defendant for loitering and prowling. Id. at 175-

177.

       Second, the warrants for the Defendant's residence were properly issued.

It is well settled that probable cause for the issuance of a search warrant exists

when the facts and circumstances set forth in the affidavit are sufficient to lead

to a reasonable belief that evidence of a crime will be found as a result of the

search to be authorized by the warrant. Furthermore, an "[a]ffidavit for a

search warrant is to be tested by [the Superior Court] with common sense and

a realistic manner, and not subjected to overly technical interpretations; the

magistrate's determination of probable cause is to be accorded great deference

on review." Commonwealth v. Vergotz, 616 A.2d 1379, 1382 (Pa. Super. 1992)

(citations omitted).

       The affidavits of probable cause clearly outline the training and

experience of the investigating officer, Det. Sgt. Fink, including his knowledge

regarding how burglaries are committed and what tools are used, what is

commonly taken, and where stolen property is commonly found. The affidavits

outline the criminal history of the Defendant. Additionally, the affidavits

contain extensive detail regarding the investigation involving burglaries that

occurred during this time period, as well as the facts outlined above that led to

the instant charges. Finally, the affidavits outline that at the time of his arrest,

the Defendant had a Pennsylvania Driver's License and a Parole Card with an

                                         12
          address of 5121 N. 10th Street, Philadelphia, PA. Further investigation revealed

          that Defendant was actively registered with the PA Department of Human

\         Services at 7212 Haverford Avenue, Apartment B-4, Philadelphia, PA.
f'I�
�,        Additionally, PENNDOT records indicated that the Defendant had a car
"\...
11'1�
�         registered in his name at that location. Therefore, there was sufficient
II<•!',
""J       probable cause to believe that the items searched for would be found in one of

          these residences.

                Furthermore, the warrants for both 5121 N. 10th Street, Philadelphia, Pa.

          and 7212 Haverford Avenue, Apartment B-4, Philadelphia, Pa. are not

          overbroad and state specifically that the following items were to be searched for

          and seized: proof of residence, Beretta 9-mm semi-automatic handgun, serial

          number J24532Z, assorted jewelry such as earrings, bracelets, mens'. watches,

          diamond, gold rings, etc. (CS-20; CS:.-30). As outlined above, inter alia, the

          handgun and a ring were recovered as a result of the search of Haverford

          Avenue. Based on the foregoing, the Defendant's motion to suppress was

          properly denied.

             3. Sufficiency of the Evidence

                Because the Defendant's motion to suppress was properly denied, the

          evidence was sufficient to support the Defendant's convictions for Receiving

          Stolen Property and Person not to Possess. The Defendant was also convicted

          of Receiving Stolen Property for the diamond ring that was stolen from 1277

          Burnett Rd., however, he does not appear to be challenging his conviction on

          that count.

                                                  13
             In reviewing the sufficiency of the evidence, we are required to view the

      evidence, and all permissible inferences to be drawn therefrom, in the light

      most favorable to the Commonwealth, as verdict winner. The test is whether,

      taking as true the evidence most favorable to the Commonwealth, together with

      all reasonable inferences therefrom, the evidence is sufficient to prove

 �    appellant's guilt beyond a reasonable doubt. Commonwealth v. Ruffin, 463

      A.2d 1117, 1118-19 (Pa. Super. 1983).(citations omitted).

            A person commits the crime of Theft by Receiving Stolen Property 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 ..

      . As used in this section the word "receiving" means acquiring possession,

      control or title .... " 18 Pa. C.S.A. § 3925.               The Commonwealth was not required

      to prove actual possession of the stolen property. '"In order to prove that a

      defendant had constructive possession of a prohibited item, the

      Commonwealth must establish that the defendant had both the ability to
                                         .                                   .
      consciously exercise control over it as well as the intent to exercise such

      control."' Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa. Super. 2013)

      (quoting Commonwealth v. Gutierrez, 969 A.2d 584, 590 (Pa.Super.2009)). '"An

      intent to maintain a conscious dominion may be inferred from the totality of

      the circumstances, and circumstantial evidence may be used to establish a

      defendant's possession of drugs or contraband." Id.

             Instantly, the totality of the circumstances indicated that the Defendant

      had constructive possession of the firearm. Mail, phone records, an expired
-------------·-··-· ..            ·--·····-------·-·-···-·                       ..   ·-·· ··------···   .....   -·--···-·•"""   _
                                                             14
driver's license, and his girlfriend's testimony'? all tied him to the location in

which the stolen gun was found. In the bifurcated portion of his trial, following

the jury's specific
            .       finding that the Defendant possessed .the gun, the parties

stipulated that the Defendant was a person not to possess, pursuant to 18 Pa.

C.S.A. § 6105 (a), because of a prior conviction for burglary. N.T. May 27, 2016

at 46. Therefore, the evidence was sufficient to sustain his convictions for

receiving stolen property and person not to possess.

      4. Discretionary Aspect of Sentencing
         The Defendant's final claim is a challenge to the discretionary aspects of

his sentence. It is well settled under Pennsylvania law that,

         [s]entencing is a matter vested       in
                                             the sound discretion of the
         sentencing judge, and a sentence will not be disturbed on appeal
        absent a manifest abuse of discretion. In this context) an abuse of
        discretion is not shown merely by an error in judgment. Rather,
        the appellant must establish, by reference to the record, that the
        sentencing court ignored. or misapplied the law, exercised its
        judgment for reasons of partiality, prejudice, bias or ill will, or
        arrived at a manifestly unreasonable decision.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006) (citation

omitted).

         Th�re is no absolute rightto appeal the discretionary aspects of a

sentence) rather a Defendant may petition for an allowance of appeal. 42 Pa.

C.S.A. § 9781 (b). An allowance of appeal will only be granted by the Superior

Court where a substantial question exists regarding the propriety of the

sentence. Id. The existence of a substantial question is determined on a case

by case basis. A substantial question exists "only when the appellant advances

10   N.T. May 25, 2016 at 39-44, 51.

                                          15
    a colorable argument that the sentencing judge's actions were either: (1)

    inconsistent with a specific provision of the Sentencing Code; or (2) contrary to

    the fundamental norms which underlie the sentencing process."

    Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013), appeal denied,

    76 A.3d 538 (Pa. 2013) (citations omitted).

          A court's imposition of consecutive sentences presents a substantial

    question in only "the most extreme circumstances, such as where the aggregate

    sentence is unduly harsh, considering the nature of the crimes and the length
    .of imprisonment." Commonwealth v. Swope, 2015 PA Super 196, 123 A.3d
    333, 338-39 (2015) (quoting Commonwealth v. Lamonda, 52 A.3d 365, 372

    (Pa.Super.2012), appeal denied, 621 Pa. 677, 75 A.3d 1281 (2013)). A bald

    claim of excessiveness based on consecutive nature of a sentence does not

    raise a substantial question. Commonwealth v. Dodge, 77 A.3d 1263, 1270

    (Pa.Super.2013), reargument denied (Nov. 21, 2013), appeal denied, 625 Pa.

    648, 91 A.3d 161 (2014) ("Dodge III"). In order to preserve a claim challenging

    the discretionary aspects of a sentence, the Defendant must raise the issue in a

    post sentence motion. Commonwealth v. Lamonda, 52 A.3d 365, 370 (Pa.

    Super. 2012). The Defendant has preserved his claim; however, this Court

    submits that he has not raised a substantial question regarding the propriety

    of his sentence. Even if his challenge to the consecutive imposition of sentence




-----------·        ··-------·· .....
                                            16
           does raise a substantial question, the sentence is not "clearly unreasonable."              11


           In light of the Defendant's extensive criminal history, the aggregate sentence of

           9-20 years is wholly appropriate.

                 The Court considered the Defendant's extensive criminal history,

           including numerous crimes against the person, in fashioning a sentence that

  ·....J   protected the community from the Defendant's recidivist behavior. N.T. Aug.

           11, 2016 at 67-73. At no time during sentencing did the Defendant object to

           the guidelines or to his designation as a repeat felon. The Defendant was

           convicted of both possessing a firearm and being a person legally unable to

           possess said firearm. Both are serious offenses that pose a danger to the

           community. And the harms sought to be remedied by these statutes are

           different. The Defendant's consecutive, standard range sentences for the

           firearm related charges are not "clearly unreasonable" in light of his

           designation as a repeat felon. Additionally, the sentences for the additional

           charges of which the Defendant was convicted were ordered to run concurrent

           to the firearm related charges. Therefore, this Court did not abuse its

           discretion in fashioning the Defendant's sentence.




           11 "Appellate court shall vacate the sentence and remand the case to the sentencing
          court with instructions if it finds: the sentencing court sentenced within the
           sentencing guidelines but the case involves circumstances where the application of the
                                                                       97��i�(�1_. ..... _ ----· --·
__________ fil!idelines wou�d be <?!�c:l!l:Y unre��C>?.�bl�:" 42 Pa. C.S.A. §                               _
                                                     17
IV.   CONCLUSION

      Based upon the foregoing, the Judgment of Sentence should be affirmed.




                                   BY THE COURT:




                                   STEVEN T. O'NEILL       J.




                    �
Copies mailed on
to the following:




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