J-S63003-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
NATHAN BULLMAN,                            :
                                           :
                   Appellant               :   No. 3338 EDA 2014

           Appeal from the Judgment of Sentence October 1, 2014,
                 Court of Common Pleas, Delaware County,
              Criminal Division at No. CP-23-CR-0000136-2014

BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED NOVEMBER 04, 2015

       Nathan Bullman (“Bullman”) appeals from the judgment of sentence

entered following his convictions of robbery, possession of an instrument of

crime, persons not to possess firearms, and firearms not to be carried

without a license.1 Bullman challenges the trial court’s denial of his motion

to suppress and the sufficiency of the evidence supporting his convictions.

We affirm.

       The facts, as found by the trial court, are as follows:

                    The [v]ictim in this case, Eric Taylor, drives a
             cab for the Crown Cab Company. At about 1:55 a.m.
             on October 31, 2013 he received a dispatch
             concerning a possible fare. Information regarding the
             fare is transmitted to a computer located in the cab
             through an automated system. Mr. Taylor received
             the name and location of the customer and accepted
             the fare. N.T. 6/26/14 pp. 12-15, 34-37. Mr. Taylor


1
    18 Pa.C.S.A. §§ 3701, 907,6105, 6106.
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          testified that the name transmitted to him was
          possibly “Bowman” and that he was directed to the
          vicinity of a Seven-Eleven store near a bar on
          Baltimore Avenue for the pick -up. Id. at 34 -37. Mr.
          Taylor pulled into the Seven-Eleven store parking lot
          and saw [Bullman] waiting, wearing a black hoodie.
          [Bullman] indicated to Mr. Taylor that he was waiting
          for his girlfriend but then walked over to the cab
          alone. In the lighted parking lot he looked through
          the cab's passenger side window at Mr. Taylor and
          told him that he wanted to go to 162 Melrose
          Avenue. Id. at 16 -17, 39. [Bullman] entered the
          rear of the cab and Mr. Taylor drove to Melrose
          Avenue. The trip took about eight minutes. Id. at 41
          -42.

                Melrose Avenue is a dead-end street. On
          Melrose[,] [Bullman] directed Mr. Taylor past 162
          Melrose Avenue to the far end of the street and told
          him to pull over. Mr. Taylor complied. Id. at 19, 41-
          42. The driver's area of the cab is not protected from
          the rear passenger compartment by a divider of any
          kind. Id. at 22. [Bullman] attempted to pay his fare
          with a credit card by “swiping” the card through a
          card reader located in the rear passenger
          compartment. Mr. Taylor told [Bullman] that the
          card reader was broken and that he (Mr. Taylor)
          would have to use another card reader In the front
          seat. [Bullman] responded in a hostile manner and
          refused to give Mr. Taylor the card. Id. at 19 -20, 49
          -51. [Bullman] then pulled a black and chrome
          firearm from his right side and pointed the gun at
          Mr. Taylor's upper chest and face and said, “you
          know what man? You know what? Just give me your
          dough.” Id. at 21 -22.

                 Mr. Taylor reached into his pocket and took out
          all of the money he had: about seventy dollars. He
          threw the cash at [Bullman], got out of the cab and
          ran, leaving his cell phone and his hoodie in the
          vehicle. He ran about a half a mile to Baltimore
          Avenue looking for a telephone. Finally, he found an
          occupied shop and reported the robbery to police.



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          Id. at 24 -25, 53. A responding police officer took
          him back to Melrose Avenue where the cab was at
          rest and unoccupied about a block away from where
          Mr. Taylor left it. Id. at 26, 55. Mr. Taylor's cell
          phone and hoodie were still in the vehicle. Id. at 55.

                 Officer John Meehan of the East Lansdowne
          Police Department was patrolling the vicinity of
          Melrose Avenue when he came upon the cab. It was
          unoccupied, west of Melrose Avenue on Glenwood
          Avenue at the side of the road. It was over the on
          [sic] the grassy berm. Id. at 63-64. The car was
          running, the lights were on and the rear door was
          open. Id. at 64. Officer Meehan reported the cab to
          DELCOM and was informed that there was a robbery
          reported in the area and that the victim was a half
          mile away. Officer Meehan called the Crown Cab
          Company and interviewed Mr. Taylor after he arrived
          back at the scene. Id. at 64- 65. Mr. Taylor told the
          officer about the robbery and described his
          passenger as a white male, six feet tall, in his 30's,
          with a medium build and wearing a black hoodie and
          blue jeans. Id. at 66. From his investigation Officer
          Meehan learned that the man who called for the cab
          was named “Nate.” Id. at 102.

                At about 7:00 a.m. Officer Meehan went to 162
          Melrose Avenue. This is a three unit apartment
          building that was formerly a single family dwelling.
          Officer Meehan was familiar with the building and
          with its residents through prior police contacts. He
          knew that the front units were occupied by a family
          and a couple in their fifties and that William
          Slaughter lives in the rear unit. Id. at 70-72. Officer
          Meehan knocked on the door and Mr. Slaughter
          answered. He asked if Mr. Slaughter had visitors
          and he replied that he did. Id. Officer Meehan asked
          Mr. Slaughter if he and his partner could come in and
          Mr. Slaughter consented. Id. at 72.

               This rear apartment does not have “designated
          rooms.” The room that is entered from the outer
          door had a bed in it and Officer Meehan could see a



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            white male, [Bullman], and a white female under
            covers in a bed before he entered the apartment. Id.
            at 72-73. The bed consisted of either two mattresses
            or a mattress and a box spring stacked on the floor.
            Id. at 74. The occupants of the bed woke. [Bullman]
            matched the description that Mr. Taylor had provided
            and when Officer Meehan asked him for his name,
            [Bullman] replied, “Nate.” Officer Meehan asked the
            couple to show their hands and themselves and they
            both stood up. Id. at 74. Before allowing the couple
            to sit back down on the bed he conducted a sweep of
            the bed and found a black semi-automatic handgun
            and two crack pipes between the mattresses, about
            ten inches in from the edge. Id. at 75. All three
            occupants were immediately detained and the
            firearm was secured. Officer Meehan found that
            there was a live round in the chamber of the firearm
            and the magazine contained five additional rounds.
            Id. at 76-79.

                  At the police station after his arrest [Bullman]
            was orally advised of his Miranda rights. Id. at 80-
            83, 110-13. He waived his rights and told Officer
            Meehan that he was a passenger in Mr. Taylor's cab,
            that he was picked up at the Seven-Eleven, and that
            he wanted to use his credit card to pay the fare but
            that the driver wanted cash. Id. at 84. When he
            explained that he had no cash, the driver said that
            he could leave without paying and he did. He did not
            have a gun with him in the cab. Id. at 84 -85, 114.

Trial Court Opinion, 3/24/15, at 4-6.

      Bullman filed three motions to suppress.2 Following a hearing, the trial

court granted only Bullman’s motion to suppress identifications and denied

the other motions. The parties immediately proceeded to a bench trial. The

trial court then convicted Bullman of the above-stated offenses and later


2
  See Motion to Suppress Physical Evidence, 4/28/14; Motion to Suppress
Statements, 4/28/14; Motion to Suppress Identifications, 5/12/14.


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sentenced him to an aggregate term of six to twelve years of incarceration,

following by six years of probation. The trial court denied Bullman’s post-

sentence motions, and this timely appeal followed.

     Bullman presents six issues for our review:

           1. Whether the [t]rial [c]ourt erred in denying
           [Bullman’s] [m]otion to [s]uppress [p]hysical
           [e]vidence because the evidence was insufficient to
           establish that Mr. Slaughter had the requisite
           authority, actual or apparent, to give consent to
           Officer Meehan's otherwise illegal and warrantless
           entry into the apartment?

           2. Whether the [t]rial [c]ourt erred in denying
           [Bullman’s] [m]otion to [s]uppress [p]hysical
           [e]vidence because the evidence was insufficient to
           establish that Mr. Slaughter had the requisite
           authority, actual or apparent, to give consent to
           Officer Meehan's otherwise illegal and warrantless
           entry into the bedroom occupied by Bullman?

           3. Whether the [t]rial [c]ourt erred in denying
           [Bullman’s] [m]otion to [s]uppress [p]hysical
           [e]vidence because the evidence was insufficient to
           establish that Mr. Slaughter had the requisite
           authority, actual or apparent, to give consent to
           Officer Meehan's otherwise illegal and warrantless
           search under the mattress?

           4. Whether the [t]rial [c]ourt erred in denying
           [Bullman’s] [m]otion to [s]uppress [p]hysical
           [e]vidence recovered from under the mattress
           because at this time, Officer Meehan detained
           [Bullman] when he ordered him out of the bed and
           the facts known and articulated by Officer Meehan
           were insufficient to support reasonable suspicion
           justifying the search?

           5. Whether the evidence presented at the non[-]ury
           trial was insufficient to support the verdict of guilty



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           on [p]ossession of [f]irearm [p]rohibited because the
           Commonwealth failed to prove identity beyond a
           reasonable doubt?

           6. Whether the evidence presented at the non-jury
           trial was insufficient to support the verdict of guilty
           on [r]obbery because the Commonwealth failed to
           prove identity and whether [Bullman] threatened the
           victim or put the victim in fear of immediate serious
           bodily injury beyond a reasonable doubt?

Bullman’s Brief at 9-10.   The first four of these issues challenge the trial

court’s denial of his motion to suppress the physical evidence recovered

from Mr. Slaughter’s apartment.    We need not consider the particulars of

these claims. Because Bullman failed to establish an expectation of privacy

in the apartment, his suppression motion could not succeed.3

     “Generally, to have standing to pursue a suppression motion under

Pa.R.Crim.P. 581, the defendant's own constitutional rights must have been


3

           Our standard of review in addressing a challenge to
           the denial of a suppression motion is limited to
           determining whether the suppression court’s factual
           findings are supported by the record and whether
           the legal conclusions drawn from those facts are
           correct.     Because the Commonwealth prevailed
           before the suppression court, we may consider only
           the evidence of the Commonwealth and so much of
           the evidence for the defense as remains
           uncontradicted when read in the context of the
           record as a whole. Where the suppression court’s
           factual findings are supported by the record, we are
           bound by these findings and may reverse only if the
           court’s legal conclusions are erroneous.

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



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infringed. However, it is well settled that a defendant charged with a

possessory offense in this Commonwealth has ‘automatic standing’ because

the charge itself alleges an interest sufficient to support a claim under Article

I, § 8 [of the Pennsylvania Constitution].”    Commonwealth v. Enimpah,

106 A.3d 695, 698 (Pa. 2014) (citation omitted). Bullman was charged with

a possessory offense, and so he has automatic standing to seek suppression

of the items seized from Slaughter’s apartment.       “In addition to standing,

though, a defendant must show that he had a privacy interest in the place

invaded or thing seized that society is prepared to recognize as reasonable.”

Id. See also Commonwealth v. Millner, 888 A.2d 680, 692 (Pa. 2005)

(“[A] defendant cannot prevail upon a suppression motion unless he

demonstrates that the challenged police conduct violated his own, personal

privacy interests.”).

            [F]actors to be considered in determining whether a
            defendant has a legitimate expectation of privacy in
            another person's home include: (1) possession of a
            key to the premises; (2) having unlimited access to
            the premises; (3) storing of clothing or other
            possessions on the premises; (4) involvement in
            illegal activities conducted on the premises; (5)
            ability to exclude other persons from the premises;
            and (6) expression of a subjective expectation of
            privacy in the premises.

Commonwealth v. Bostick, 958 A.2d 543, 553 (Pa. Super. 2008) (quoting

Commonwealth v. Govens, 632 A.2d 1316, 1319 (Pa. Super. 1993)).




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      “Whether a defendant has a legitimate expectation of privacy is a

component of the merits analysis of the suppression motion ... made upon

evaluation of the evidence presented by the Commonwealth and the

defendant.” Enimpah, 106 A.3d at 699 (quoting Commonwealth v.

Burton, 973 A.2d 428, 435 (Pa. Super. 2009) (en banc)). The record

contains absolutely no evidence that would support a finding of any of these

factors in Bullman’s favor. Furthermore, Bullman presented no evidence at

all, much less any that would support a finding of any of these factors. “To

be sure, under our jurisprudence, the defendant bears the burden of

persuasion with respect to his privacy interest.” Id. at 701. Bullman has

failed in this regard, as he did not present any evidence that would support a

finding of any of the six Bostick factors or other indicia that he had a

privacy interest in Mr. Slaughter’s apartment. For that reason, we find no

error in the trial court’s determination that Bullman did not establish a

privacy interest in the apartment in which the search occurred, see Trial

Court Opinion, 3/24/15, at 13 n.6, and therefore we affirm the trial court’s

denial of his suppression motion.4

      Bullman’s remaining issues challenge the sufficiency of the evidence

underlying his convictions of robbery and persons not to possess firearms.

We review these issues mindful that


4
  We note Bullman’s contention that the Commonwealth did not raise his
failure to establish a privacy interest in the trial court, but he is mistaken.
See N.T., 6/26/14, at 127.


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           [w]hen evaluating a sufficiency claim, our standard is
           whether, viewing all the evidence and reasonable
           inferences in the light most favorable to the
           Commonwealth, the fact[-]finder reasonably could
           have determined that each element of the crime was
           established beyond a reasonable doubt. This Court
           considers all the evidence admitted, without regard to
           any claim that some of the evidence was wrongly
           allowed. We do not weigh the evidence or make
           credibility determinations. Moreover, any doubts
           concerning a defendant's guilt were to be resolved by
           the fact[-]finder unless the evidence was so weak
           and inconclusive that no probability of fact could be
           drawn from that evidence.

Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010).

      With regard to both convictions, Bullman argues only that the

Commonwealth failed to establish that he was the person that robbed the

cab driver, Mr. Taylor, with a firearm. Bullman’s Brief at 29-34. However,

in making this argument, Bullman challenges the trial court’s credibility

determinations by pointing to inconsistencies in Mr. Taylor’s testimony and

his past crimen falsi conviction, as well as fact that prior to any court

proceeding, he only identified Bullman as the assailant in a photo array (the

suppression of which the parties agreed upon) and not in person. Id. at 31-

32. The credibility of the witness is addressed to the weight of the evidence,

not the sufficiency of the evidence.   Commonwealth v. Gibbs, 981 A.2d

274, 281 (Pa. Super. 2009).     Bullman did not include a challenge to the

weight of the evidence in his statement of questions involved, and so it is

waived.   Commonwealth v. Bryant, 57 A.3d 191, 196 n.7 (Pa. Super.




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2012) (finding issues waived where appellant did not include them in

statement of questions involved); Pa.R.A.P. 2116(a) (“No question will be

considered unless it is stated in the statement of questions involved or is

fairly suggested thereby.”).    Furthermore, Bullman did not include a

challenge to the weight of the evidence in his Pa.R.A.P. 1925(b) statement

of matters complained of on appeal.    It is well established that failure to

include an issue in a Rule 1925(b) statement results in waiver of that issue

on appeal. Commonwealth v. Garland, 63 A.3d 339, 342 (Pa. Super.

2013); Pa.R.A.P. 1925(b)(4)(vii). Bullman’s weight challenge is waived for

this reason, as well.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/4/2015




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