J-S61007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DARREN DALE                                :
                                               :
                       Appellant               :   No. 1063 EDA 2019

          Appeal from the Judgment of Sentence Entered April 4, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0012513-2015


BEFORE:      BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                            FILED FEBRUARY 13, 2020

        Darren Dale appeals from his judgment of sentence of seven to fourteen

years of imprisonment imposed after a jury convicted him of robbery,

burglary, conspiracy, and related offenses. After thorough review, we affirm.

        The facts giving rise to the Appellant’s conviction are as follows. On

October 8, 2015, upon returning to the Philadelphia home she shared with her

daughter, Maribelen Carrasquillo (the “victim”) noticed damage to her front

door. N.T. Trial, 9/28/16, at 82. When she could not open it, she started

kicking the door to force it open. Id. at 83. As the door gave way, she was

accosted by two males, one of whom grabbed her by the hair, placed a gun

to her head, and ordered her to lay face down on the floor. Id. She saw the


____________________________________________


*   Former Justice specially assigned to the Superior Court.
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face of the individual who assaulted her, and she was aware that he had a

weapon. Id. at 83-84. Her assailant, later identified as Appellant, began

interrogating her about “pins” and marijuana. Id. at 87-88. She said she did

not know what “pins” were, and Appellant told her that they were guns. Id.

at 88. When she replied she did not have guns or marijuana, the other man

made a phone call and inquired whether he and Appellant were in the right

house. Id. at 89.

      Following the phone call, Appellant accompanied the victim to her

basement at gunpoint. Id. at 90. The basement lights were illuminated and,

once there, the victim turned around and looked at the Appellant. Id. at 92.

As she stood face-to-face with Appellant, he placed the gun against her

forehead. Id. The victim assured him that she would not call the police, but

Appellant expressed concern that she had seen his face.         Id.   Appellant

ordered the victim to turn around and get on her knees. Id. She testified at

trial that she feared for her life. Id.

      The next thing the victim heard was her cousin screaming outside, and

when she turned around, Appellant was gone.        Id. at 94. Her house was

ransacked, her car was gone, and she called the police. Id. at 95-96. The

victim provided police with a description of her assailants and her missing car,

including the make and model. Id. at 96. Shortly thereafter, police took the

victim to identify a potential suspect, but she told police that this individual

was not her assailant. Id. at 97.


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      Later that evening, the victim went to the Philadelphia East Detective

Division to give a formal statement. Id. at 98. She described Appellant as a

dark-skinned male, about 5’9” tall, in his middle to late twenties, “dirty

looking,” with a scar on his face, and wearing a blue hoody, dark pants, and

boots. Id. at 98-99. During a subsequent interview with a detective, she

mentioned that Appellant’s gun had a silver ring on the front of the barrel.

Id. at 113.

      Police recovered the victim’s stolen vehicle within hours, impounded it,

and processed it for fingerprints. N.T. Trial, 9/29/16, at 86-87. The police

lifted eight latent fingerprints from the interior of the car. Id. at 88. Two

prints were entered into a fingerprint identification system, and one print was

a match to Appellant. Id. at 106-107.

      Thereafter, the victim identified Appellant from a photographic array.

N.T. Trial, 9/28/16, at 101-103.    Upon seeing Appellant’s photograph, the

victim said that she was “a hundred percent positive that this was the man

that was in my house, that held a gun to my head.” Id. at 103.

      Based on the fingerprint identification and the victim’s positive

identification of Appellant, police secured a search warrant for Appellant’s

residence. The search yielded three .45 caliber guns. N.T. Trial, 9/30/16, at

72-73. The victim later identified one of the guns seized as the gun with the

silver ring on the barrel wielded by Appellant in the home invasion. Id. at 78.




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      Prior to trial, Appellant filed motions to suppress the identification and

evidence obtained from the search of his house based on a lack of probable

cause in the four corners of the warrant. Following a hearing on September

28, 2016, the court denied both motions. N.T. Motion, 9/28/16, at 57.

      At the conclusion of the jury trial, Appellant was convicted of robbery,

burglary, conspiracy, unlawful restraint, theft by unlawful taking, violations of

the Uniform Firearms Act, and simple assault, and sentenced as aforesaid on

April 4, 2017. Appellant filed a motion for reconsideration of sentence, which

was denied on April 18, 2017.

      On September 6, 2017, Appellant filed an untimely notice of appeal,

which the Commonwealth moved to quash. This Court granted the motion,

quashed the appeal, and denied Appellant’s application for reconsideration of

the quashal. On February 1, 2019, Appellant filed a pro se Post Conviction

Relief Act Petition seeking reinstatement of his appellate rights nunc pro tunc,

which was granted on March 26, 2019. Appellant filed a notice of appeal and

complied with the court’s order to file a Pa.R.A.P. 1925(b) concise statement

of errors complained of on appeal.

      Appellant raises three issues for our review:

            1. Whether the lower court erred in denying Appellant’s
               motion to suppress evidence recovered from his home
               where the warrant authorizing the search failed to
               establish there was probable cause to believe there was
               contraband on the premises?

            2. Whether the lower court abused its discretion in granting
               the Commonwealth’s motion in limine to preclude the

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                defense from eliciting evidence that the [C]omplainant’s
                house was a drug house?

            3. Whether the lower court abused its discretion when it
               denied Appellant’s request to issue a Kloiber charge
               where the evidence established that the Complainant had
               only a very limited opportunity to observe her assailant?

Appellant’s brief at 5.

      Appellant’s first issue is a challenge to the denial of his motion to

suppress the items seized during the search of his home.      Our scope and

standard of review of a trial court’s denial of suppression requires that we

determine “whether the factual findings are supported by the record and

whether the legal conclusions drawn from these facts are correct.”

Commonwealth v. Tiffany, 926 A.2d 502, 506 (Pa.Super. 2007).

Additionally,

      When reviewing the rulings of a suppression court, we must
      consider only the evidence of the prosecution and as much of the
      evidence for the defense as remains uncontradicted when read in
      the context of the record as a whole. Where the record supports
      the findings of the suppression court, we are bound by those facts
      and may reverse only if the legal conclusions drawn therefrom are
      in error.

Id.

      Essentially, Appellant argues that because this case is about a home

invasion of the victim’s home, it was unreasonable that his own home was the

target of a search. Appellant contends that the lower court erred in finding

that the affidavit established probable cause that contraband would be

discovered in his residence, as there was no nexus between the criminal




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activity alleged in the affidavit and the place to be searched. Appellant’s brief

at 11.

         The following principles inform our review.   The validity of a search

warrant is based on the standard of probable cause. The Fourth Amendment

of the United States Constitution requires a showing of probable cause before

a warrant shall issue. See U.S. Const. Amend. IV. Similarly, the Pennsylvania

Constitution provides that no search warrant shall issue unless there is a

showing of probable cause supported by oath or affirmation. See Pa. Const.,

art. I, Section 8.

         The United States Supreme Court held in Illinois v. Gates, 462 U.S.

213 (1983), that probable cause is evaluated according to the totality of

circumstances test. Our Pennsylvania Supreme Court adopted that standard

in Commonwealth v. Gray, 503 A.2d 921, 926 (Pa. 1985), finding that the

probable cause test articulated by the Gates Court was a practical standard,

and that the Gates “totality of the circumstances” test was consonant with

Art. I, Sec. 8 of the Pennsylvania Constitution. Id. “Probable cause exists

where the facts and circumstances within the affiant’s knowledge and of which

he has reasonably trustworthy information are sufficient in themselves to

warrant a man of reasonable caution in the belief that a search should be

conducted.”      Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)

(quoting Commonwealth v. Thomas, 292 A.2d 353, 357 (Pa.1972)).




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      When considering whether to issue a search warrant, the district

magistrate must:

      make a practical, common-sense decision whether, given all of
      the circumstances set forth in the affidavit before him, including
      the veracity and basis of knowledge of persons supplying hearsay
      information, there is a fair probability that the contraband or
      evidence of a crime will be found in a particular place. And the
      duty of a reviewing court is simply to ensure that the magistrate
      had a ‘substantial basis for . . . conclud[ing] that probable cause
      existed.’

Gray, supra at 925 (quoting Gates, supra at 238).           This remains the

applicable standard in the Commonwealth. See Commonwealth v. Batista,

219 A.3d 1199, 1203 n.3 (Pa.Super. 2019) (applying totality of the

circumstances test to determine if probable cause existed for issuance of

warrant). “It is the duty of a court reviewing the issuing authority’s probable

cause determination to ensure that the magistrate had a substantial basis for

concluding that probable cause existed.” Commonwealth v. Jones, 988 A.2d

649, 655 (Pa. 2010).     The reviewing court must accord deference to the

magistrate’s probable cause determination and view the information offered

in a “common sense, non-technical manner.” Id.

      The suppression court examined the affidavit and the search warrant.

The affidavit and application for the search warrant of Appellant’s residence

was completed by Detective Marc Johnson. The affiant provided a thorough

description of the October 8, 2015 home invasion at the victim’s residence.

Two males looking for guns and marijuana had ransacked the home and stolen

jewelry. They restrained the victim at gunpoint when she entered her home.


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They left in her vehicle, a 2015 Nissan, which was recovered approximately

five hours later. The vehicle was towed to the impound lot and processed for

prints. Eight latent prints were lifted, one of which was a positive match for

Appellant.   The affiant described the photographic array and the victim’s

positive identification of Appellant as the person who had placed a gun to her

head. Based on the foregoing, the affiant averred that there was probable

cause to believe that “items taken in the robbery, jewelry, firearms, clothing,

and any and all ballistic evidence and any items of evidentiary value” would

be located in Appellant’s residence.     Application for Search Warrant and

Affidavit, 10/27/15 at 2. The search warrant issued.

      In evaluating whether there was probable cause for the issuance of the

warrant for purposes of suppression, the trial court found that, based on the

averments in the affidavit, there was a fair probability that evidence of the

crime would be located at his address. Trial Court Opinion, 6/6/19, at 4. The

affidavit related the facts of the home invasion and robbery, described what

the victim had reported to police, and detailed what items were missing. It

also described the investigatory steps that pointed police to Appellant as the

perpetrator, i.e., Appellant’s fingerprint found in the victim’s car and her

identification of Appellant from the photographic array. In short, the affidavit

specifically stated what was sought and why.           The trial court denied

Appellant’s suppression motion.




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      Viewing the evidence adduced at the suppression hearing in the light

most favorable to the Commonwealth, and there being no controverting

evidence offered by the defense, we find ample record support for the trial

court’s factual findings. Furthermore, its conclusion that there was probable

cause for the issuance of the search warrant was legally sound. The facts

alleged in the warrant “were sufficient in themselves to warrant a man of

reasonable caution in the belief that a search should be conducted pursuant

to Pa. Const. art. I, sec. 8 and the Fourth Amendment.” Commonwealth v.

Jones, supra at 645 (quoting Commonwealth v. Thomas, 292 A.2d 352,

357 (Pa. 1972)). No relief is due.

      Next, Appellant faults the trial court for granting the Commonwealth’s

motion in limine and precluding the defense from eliciting evidence that the

victim’s house was a “drug house.” Appellant’s brief at 22. When reviewing

an evidentiary ruling, we apply an abuse of discretion standard of review.

Commonwealth v. Kane, 188 A.3d 1217, 1229 (Pa.Super. 2018). We defer

to the “sound discretion” of the trial court. Id. “Discretion” is defined as:

      import[ing] the exercise of judgment, wisdom and skill so as to
      reach a dispassionate conclusion, within the framework of the law,
      and is not exercised for the purpose of giving effect to the will of
      the judge. Discretion must be exercised on the foundation of
      reason, as opposed to prejudice, personal motivations, caprice, or
      arbitrary actions. Discretion is abused when the course pursued
      represents not merely an error of judgment, but where the
      judgement is manifestly unreasonable or where the law is not
      applied or where the record shows that the action is a result of
      partiality, prejudice, bias, or ill will.




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Commonwealth v. Goldman, 70 A.3d 874, 878-79 (Pa.Super. 2013).

Additionally, “[t]o constitute reversible error, an evidentiary ruling must not

only be erroneous, but also harmful or prejudicial to the complaining party.”

Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.Super. 2012).

      Our rules of evidence provide that evidence is relevant if it has any

tendency to make a fact of consequence in issue more or less probable than

it would be without the evidence. See Pa.R.E. 401. Irrelevant evidence is not

admissible.   See Pa.R.E. 402.      However, a court may exclude relevant

evidence if its probative value is outweighed by a danger of “unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” See Pa.R.E. 403.

      Appellant argues that evidence that the victim’s home was a “drug

house” and that her husband was incarcerated on drug charges was relevant

and should have been admitted because it supplied a motivation for other

individuals to rob the home. Appellant’s brief at 24; N.T. Trial, 9/28/16, at

59. Furthermore, he contended that the proffered evidence was not unduly

prejudicial because it did not implicate him or the victim in criminal

wrongdoing. Id.

      The trial court determined that this evidence was of little probative

value, and if admitted, could confuse the jury by diverting its attention to the

criminality of the victim’s husband rather than the conduct of the Appellant.

Trial Court Opinion, 6/6/19, at 5.     Furthermore, the court believed that


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evidence that the victim’s home was a “drug house” would unfairly connect

her husband’s criminal acts with those of Appellant, and there was no

evidentiary link between the two. Id. The court aptly noted that there was

no evidence that the home invasion was connected to the husband’s drug’s

charges, citing the realization of Appellant and his cohort that they had broken

into the wrong house.

      We find no abuse of discretion on the part of the trial court in excluding

the proffered evidence. Evidence of the conduct of the victim’s husband was

not probative, and if admitted likely would have confused the jury.

Accordingly, Appellant is not entitled to relief on this ground.

      The final issue raised by the Appellant is that the trial court erred in

denying his request for a jury charge pursuant to Commonwealth v.

Kloiber, 106 A.2d 820 (Pa. 1954), generally referred to as a “Kloiber

instruction.” We review a challenge to jury instructions under the abuse of

discretion standard.

      The law is well settled that jury instructions will only be given when they

are warranted by the evidence in the case. Commonwealth v. Boyle, 733

A.2d 633, 639 (Pa.Super. 1999). A trial court “should not instruct the jury on

legal principles which have no application to the facts presented at trial.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1257 (Pa.Super. 2014)

(citing Commonwealth v. McCloskey, 656 A.2d 1369, 1374 (Pa.Super

1995)).


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      A Kloiber instruction is given when a defendant raises demonstrable

concerns about the reliability of his identification by a witness.      Kloiber,

supra at 826-27. When “a witness did not have the opportunity to clearly

view the defendant, equivocated in his identification of a defendant, or had

difficulty making an identification in the past,” the Kloiber instruction informs

the jury that it should view an eyewitness identification with caution.

Commonwealth v. Rollins, 738 A.2d 435, 448 (Pa. 1999).               Conversely,

where identification testimony “is positive, unshaken, and not weakened by a

prior failure to identify[,]” it “need not be received with caution” and a Kloiber

instruction is not warranted. Commonwealth v. Upshur, 764 A.2d 69, 77

(Pa.Super. 2000) (citing Kloiber, supra at 826).

      Appellant contends that the evidence established that the victim “had

only a very limited opportunity to observe her assailant.” Appellant’s brief at

26. Based solely on that fact, he argues that a Kloiber charge should have

been given because her identification of him as her assailant may have been

in error.   Id. The trial court found, however, that the victim had several

opportunities to observe her assailant and that she was consistent throughout

in identifying Appellant.    Trial Court Opinion, 6/6/19, at 6.       The record

supports the trial court’s finding.

      The victim testified that she first saw Appellant when she opened her

door. N.T. Trial, 9/28/16, at 84. She saw his face again and for a longer time

while standing face-to-face in her well-lit basement. Id. at 90-91. During the


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interaction in the basement, Appellant expressed concern to her that she had

seen his face. Id. at 92.

      Following the home invasion, the victim gave a statement to police. She

described Appellant’s clothing, his approximate age and height, and stated

that he had a scar on his face. Id. at 99. On the night of the home invasion,

police presented her with a suspect whom they believed could have been her

assailant, but she unequivocally rejected that notion.        Id. at 12.     She

consistently maintained that Appellant had a scar on his face. Id. at 99-100.

She later identified him in a photographic array, and at that time, she stated

she was “a hundred percent positive” that the person depicted in the photo

was her assailant. Id. at 103.

      At the preliminary hearing, the victim identified Appellant as her

assailant. N.T. Preliminary Hearing, 12/09/15, at 21-22. She identified him

again at trial. N.T. Trial, 9/28/16, at 85. She testified on cross-examination

that, during the home invasion, she focused on the scar on her assailant’s face

so that she could identify him accurately later. Id. at 149. Detectives testified

at trial that Appellant does indeed have a scar on his cheek.         N.T. Trial,

9/29/16, at 28.

      Throughout the proceedings, the victim never once recanted or

equivocated in her identification of Appellant. The court found, and the record

supports its finding, that the victim had ample opportunity to see Appellant’s

face. Additionally, her identification was corroborated by fingerprint evidence


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linking Appellant to her vehicle stolen during the home invasion. Accordingly,

we find that the trial court did not abuse its discretion in refusing to give a

Kloiber charge, and no relief is warranted.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/20




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