J-S61039-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
            v.                            :
                                          :
STEPHEN MICHAEL ESPENLAUB, JR.,           :
                                          :
                  Appellant               :              No. 304 WDA 2016

          Appeal from the Judgment of Sentence January 14, 2016
               in the Court of Common Pleas of Blair County,
             Criminal Division, No(s): CP-07-CR-0002429-2014

BEFORE: PANELLA, LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED OCTOBER 07, 2016

      Stephen Michael Espenlaub, Jr., (“Espenlaub”) appeals from the

judgment of sentence imposed following his convictions for robbery,

burglary, criminal trespass, theft by deception, impersonating a police

officer, and criminal conspiracy.1 We affirm.

      The trial court summarized the facts as follows:

      [I]n December of 2012, [Espenlaub] and another individual
      wearing police SWAT gear and masks, and possessing walkie-
      talkies, handcuffs, and guns, pretended to be drug agents and
      executed a “search warrant” on the home of Damien Morris
      [“Morris”] and Valerie Eggerstorfer[,] in the City of Altoona.
      They seized five pounds of marijuana and several thousand
      dollars in cash. They detained [Morris,] but told him that they
      were not arresting him. They referred to a “pay to play”
      program, and told [Morris] it was “his lucky day.” [Morris]
      believed this to be true until on or about January 11, 2013, when
      [] Justin Hardin knocked on his door and gave him a letter to the
      effect that he had to pay $20,000 and twenty pounds of drugs
      for his family to be safe and in order for him not to go to jail.

1
 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3502(a)(1), 3503(a)(1)(ii), 3922(a)(1),
4912, 903.
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      [Morris] then contacted his attorney and the real police. He
      agreed to have his conversation with the letter-writer
      recorded[,] and made an arrangement for the unknown
      individual to come over to his house in a white unmarked car.
      After that arrangement was made, [Espenlaub] appeared at the
      house in a white unmarked [car] and was arrested. A search
      warrant was executed at [Espenlaub’s] house and on two
      vehicles. One was the vehicle [Espenlaub] drove to the house,
      and one was operated by [] Angel Vasquez, who was coming to
      the house to meet [Espenlaub.] In that vehicle … police found a
      high point 9 mm handgun and a black knit hat with the word
      SWAT written on it, as well as a 9 mm magazine containing eight
      9 mm rounds. Money, drugs, guns, and police gear were found
      at the house.

Trial Court Opinion, 4/4/16, at 2-3 (internal citation omitted).

      Following a jury trial, Espenlaub was convicted of the above-mentioned

crimes.2 The trial court sentenced Espenlaub to an aggregate sentence of 9

to 18 years in prison. The trial court required that the sentence would be

served consecutive to the sentence imposed for the firearms offenses,

resulting in a total prison term of 16½ to 38 years.

      Espenlaub filed a Motion for Modification of Sentence, which the trial

court denied. Espenlaub subsequently filed a timely Notice of Appeal and a

court-ordered Pennsylvania Rule of Appellate Procedure 1925(b) Concise

Statement of Matters Complained of on Appeal.

      On appeal, Espenlaub raises the following questions for our review:

2
  Espenlaub was also charged with multiple counts of person not to possess
a firearm. 18 Pa.C.S.A. § 6105. The case was severed, and the firearms
charges were tried separately. Espenlaub was convicted of 10 counts of
person not to possess firearms, and the trial court sentenced him to 7½ to
20 years in prison for those convictions. This Court affirmed this judgment
of sentence. See Commonwealth v. Espenlaub, 1212 WDA 2015 (Pa.
Super. filed Aug. 23, 2016) (unpublished memorandum).

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      I. Whether photographs depicting numerous firearms[,] which
      were neither used in the robbery, nor similar in appearance to
      the weapons used[,] [should] have been admitted [as evidence
      at trial]?

      II. Whether the imposition of consecutive sentences totaling a
      minimum of 16½ years was excessive?

Brief for Appellant at 10.

      In his first claim, Espenlaub argues that the trial court erred in

admitting as evidence at trial a slide show containing photographs of various

firearms that were found during a search of his residence.              Id. at 14.

Espenlaub   claims   that    the    photographs   are    irrelevant   because   the

Commonwealth did not establish that the firearms in the photographs were

those actually used, or similar in appearance to those used, in the

commission of the robbery.         Id. at 14-16, 17.    Further, Espenlaub argues

that, even if the photographs are relevant, they are unfairly prejudicial

because they portray him as a dangerous criminal. Id. at 16-17.3

      Our standard of review concerning the admissibility of evidence is well

settled:

      With regard to the admission of evidence, we give the trial court
      broad discretion, and we will only reverse a trial court’s decision
      to admit or deny evidence on a showing that the trial court
      clearly abused its discretion. An abuse of discretion is not
      merely an error in judgment, but an overriding misapplication of
      the law, or the exercise of judgment that is manifestly


3
  In his appeal of his firearms convictions, this Court concluded that there
was sufficient evidence to sustain Espenlaub’s conviction of person not to
possess a firearm, based on a theory of constructive possession. See
Espenlaub, 1212 WDA 2015, at 5-8 (unpublished memorandum).

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      unreasonable, or the result of bias, prejudice, ill-will or partiality,
      as shown by the evidence of the record.

Commonwealth v. Talbert, 129 A.3d 536, 539 (Pa. Super. 2015) (citation

omitted).

      “Relevance    is   the   threshold    for   admissibility    of   evidence.”

Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015); see also

Pa.R.E. 402.   “Evidence is relevant if it has any tendency to make a fact

more or less probable than it would be without the evidence[,] and the fact

is of consequence in determining the action.” Pa.R.E. 401; see also Tyson,

119 A.3d at 358 (stating that “[e]vidence is relevant if it logically tends to

establish a material fact in the case, tends to make a fact at issue more or

less probable or supports a reasonable inference or presumption regarding a

material fact.”).

      “The [trial] court may exclude relevant evidence if its probative value

is outweighed by a danger of ... unfair prejudice....” Pa.R.E. 403.

      However, [e]vidence will not be prohibited merely because it is
      harmful to the defendant. [E]xclusion is limited to evidence so
      prejudicial that it would inflame the jury to make a decision
      based on something other than the legal propositions relevant to
      the case.... This Court has stated that it is not required to
      sanitize the trial to eliminate all unpleasant facts from the jury’s
      consideration where those facts are relevant to the issues at
      hand[.]

Commonwealth v. Kouma, 53 A.3d 760, 770 (Pa. Super. 2012) (citation

omitted); see also Pa.R.E. 403, cmt. (defining “unfair prejudice” as “a

tendency to suggest a decision on an improper basis or to divert the jury’s



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attention away from its duty of weighing the evidence impartially.”).     In

considering the admissibility of a photograph, the trial court must determine

whether the photograph is “inflammatory by its nature.” Commonwealth

v. Baez, 720 A.2d 711, 726 (Pa. 1998).          The trial court must then

determine whether the “essential evidentiary value of the photograph

outweighs the likelihood that the photograph will improperly inflame the

minds and passions of the jury.” Id.

      “Although as a general rule, the Commonwealth may not admit

evidence of a weapon that cannot be linked to the crime charged, an

exception exists where the accused had a weapon or instrument suitable to

the commission of the crime charged.”     Commonwealth v. Williams, 58

A.3d 769, 801 (Pa. Super. 2012) (citation and quotation marks omitted).

             A weapon shown to have been in a defendant’s possession
      may properly be admitted into evidence, even though it cannot
      positively be identified as the weapon used in the commission of
      a particular crime, if it tends to prove that the defendant had a
      weapon similar to the one used in the perpetration of the crime.

Commonwealth v. Owens, 929 A.2d 1187, 1191 (Pa. Super. 2007)

(citation omitted).   Further, “[u]ncertainty whether the weapons evidence

was actually used in the crime goes to the weight of such evidence, not its

admissibility.” Id.

      Here, Morris testified that two men wearing masks and dressed like

police officers arrived at his house, knocked on the door, and identified

themselves as drug agents. N.T., 10/28/15, at 72. Morris testified that the



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men kicked in the door, threatened him with guns, threw him on the ground,

and placed him in handcuffs.         Id.   Further, Morris testified that the men

showed him a “warrant” and seized five pounds of marijuana and $2,000

from his home.      Id. at 73-74.     The photographs depicting firearms were

introduced through the testimony of Sergeant Troy Johannides, as he

described the evidence found in Espenlaub’s home. See id. at 66, 68-69.

      After considering the testimony provided at trial, the trial court

concluded that the photographs are relevant and probative of the crime as

described by Morris, as they depicted guns that are commonly used by

police officers.   Trial Court Opinion, 4/4/16, at 6.4     Additionally, the trial

court concluded that “the photographs were not used in an inflammatory

fashion in front of the jury.” Id.

      Upon review, we conclude that the trial court did not abuse its

discretion by admitting the photographs depicting several guns found in

Espenlaub’s house.     The photographs tend to prove that Espenlaub had

weapons that are commonly used by law enforcement. See Williams, 58

A.3d at 801 (upholding the admission of a photograph showing the appellant

in control of a firearm similar to the one used in the crimes charged).

Therefore, the photographs are relevant to prove that Espenlaub owned

weapons similar to those used in the perpetration of a robbery committed

4
 The trial court considered each photograph in the slide show outside of the
presence of the jury. Photographs of guns that would not be used by law
enforcement were excluded from the slide show before trial. See N.T.,
10/28/15, at 15, 20.

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while impersonating a police officer.     See id.   Additionally, there is no

evidence to suggest that “the potential prejudicial effect of the [] evidence

would inflame the jury to make a decision based upon something other than

the legal propositions relevant to the case.”    Owens, 929 A.2d at 1191

(citation and quotation marks omitted). Thus, we conclude that Espenlaub’s

first claim lacks merit.

      In his second claim, Espenlaub asserts that the imposition of

consecutive sentences is unduly harsh. Brief for Appellant at 17. Espenlaub

claims that the trial court placed too much weight on the seriousness of the

crime and his prior record score, and failed to consider mitigating factors.

Id. at 17, 19.

      Espenlaub failed to raise this claim in his court-ordered Rule 1925(b)

statement.       Therefore, Espenlaub’s sentencing claim is waived.      See

Pa.R.A.P. 1925(b)(4)(vii) (stating      that “[i]ssues not   included in the

Statement … are waived.”); see also Commonwealth v. Lord, 719 A.2d

306, 309 (Pa. 1998) (stating that “[a]ny issues not raised in a 1925(b)




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statement will be deemed waived.”).5

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/7/2016




5
  We note that the trial court indicated that it reviewed Espenlaub’s pre-
sentence investigation report (“PSI”) in imposing the sentence. See N.T.,
1/14/16, at 8, 13; see also Commonwealth v. Devers, 546 A.2d 12, 18
(Pa. 1988) (stating that where the trial court had the benefit of a PSI, this
Court will presume that the trial court was aware of, and considered all
relevant factors, and “[h]aving been fully informed by the pre-sentence
report, the sentencing court’s discretion should not be disturbed.”).
Moreover, the trial court noted that Espenlaub has “the worst possible prior
record score,” and has committed “some of the worst and most dangerous
crimes found in the Crimes Code.” N.T., 1/14/16, at 16-17.

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