J-S11016-14

NON-PRECEDENTIAL DECISION              SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                        Appellee        :
                                        :
                   v.                   :
                                        :
BRUCE M. REESE,                         :
                                        :
                        Appellant       :    No. 52 EDA 2013

        Appeal from the Judgment of Sentence November 20, 2012,
           in the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0013539-2011

BEFORE: BENDER, P.J.E., WECHT, and STRASSBURGER,* JJ.

DISSENTING MEMORANDUM BY STRASSBURGER, J.:FILED AUGUST 06, 2014



the evidence is meritless. Howeve



respectfully dissent.

      Reese presents only one argument in support of his claim that the trial

court erred by denying his motion to

is insufficient evidence to show that [he] resided at the residence for which

the [search] warrant was issued because the magistrate was not informed,

and the affirming detective did not so inform him, that [Reese] had a more

                                              -10. According to Reese, the




* Retired Senior Judge assigned to the Superior Court.
J-S11016-14




rejects this argument. Trial Court Opinion, 7/31/2013, at 14-15.




es

Majority Memorandum at 15.       To the extent that Reese presented this

argument to the trial court, he abandoned it on appeal. I, therefore, do not

believe that such an argument should be the basis for granting Reese

appellate relief.   Moreover, assuming arguendo that Reese had presented



decision in Commonwealth v. Hutchinson, 434 A.2d 740 (Pa. Super.

1981), renders such an issue meritless.

      In Hutchinson, a man wearing a blue checked shirt robbed a medical

center at gunpoint.    The man stole credit cards, six car wash slips, and

approximately eight hundred dollars.       Two of the victims identified

Hutchinson as the perpetrator.



home.   The affidavit of probable cause noted that a gunpoint robbery had

occurred, that the perpetrator had stolen certain property, and that two of

the victims had identified the perpetrator as Hutchinson from photos. When

                                                 inter alia, a blue checked



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shirt and a .22 caliber pellet gun. Those items were admitted into evidence



     On    appeal,   Hutchinson    argued

inadmissible because the search warrant affidavit failed to aver that

evidence could be found in his home and therefore did not establish probable

                                  Hutchinson, 434 A.2d at 743.   This Court

employed

     The affidavit of probable cause must contain sufficient facts to
     permit a neutral and detached magistrate to conclude with
     reasonable certainty that a crime has been committed and that
     evidence or fruits thereof may be found on the premises to be
     searched. In United States v. Ventresca, 380 U.S. 102, 108,
     85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965), the United States
     Supreme Court held that such applications should be read in a


     court that the facts contained in the present affidavit formed a
     sufficient basis for the issuing authority to conclude that
     evidence from the robbery would
     home. The affidavit stated that [Hutchinson] had been positively
     identified by two of the victims. Moreover, the items seized, a
     shirt and a gun, were each of a type reasonably likely to be
     found in the perpetrator's home, especially given the short
     period of time between the commission of the crimes and the
     application for the search warrant. In similar circumstances,
     courts have held it reasonable for an issuing authority to
     conclude that evidence would be found in the homes of suspects.
     Consequently, the lower court properly concluded that the
     search warrant was supported by probable cause and that the
     shirt and gun were admissible.

Hutchinson, 434 A.2d at 742-43 (citations and footnote omitted).

     Here, the affidavit of probable cause indicates that, at 12:20 a.m. on

November 11, 2011, D.H., I.W., and B.S. were robbed at gunpoint by two



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men. The men stole from B.S., inter alia, three dollars and a Wells Fargo

debit card. They took from D.H. approximately eighty dollars and from I.W.

fifteen dollars and a SEPTA pass.   K.R. was with the victims, but the two

perpetrators did not take anything from him.

      During the course of the robbery, D.H. and K.R. recognized the

perpetrator who brandished the gun during the incident.     K.R. asked that



Search Warrant #161856, 11/14/2011, at 1.       D.H. stated that, during the

robbery, the gunman identified himself as Bruce.         The affidavit then

describes the two perpetrators. According to the affidavit, on November 13,

2011, D.H. and I.W. identified Reese as the gunman from a photo array, and

the following day, B.S. did the same.     K.R. was uncooperative during the

investigation.

      The Majority quotes most of the last paragraph of the affidavit.

Majority Memorandum at 15. However, the Majority omits the final sentence



search and seizure warrant be granted for 413 N Edgewood Street to look

for any fi

                                                                   Id. The

search warrant was issued and executed on November 14, 2011.

      After examining the totality of the circumstances, in my view, a

commonsense and reasonable reading of the affidavit of probable cause



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J-S11016-14

reveals that it contained sufficient facts to permit the issuing authority to

conclude with reasonable certainty that Reese committed a crime and that

evidence or fruits of that crime might be found in his residence.        The

affidavit stated that the three cooperative victims of the robbery positively

identified Reese as the gunman in the robbery. Moreover, the police sought

                                                             ed during the

commission of the robbery and the items stolen during that same robbery.



perpetrator's home, especially given the short period of time between the

commission of the

Hutchinson, 434 A.2d at 743.

     For these reasons, I conclude that the trial court properly determined

that the search warrant was supported by probable cause.        I, therefore,

would affirm the judgment of sentence.




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