J-S57042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KARL CHESTER

                            Appellant                 No. 2445 EDA 2014


          Appeal from the Judgment of Sentence entered July 14, 2011
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0005330-2010


BEFORE: MUNDY, OTT, and STABILE, J.J.

MEMORANDUM BY STABILE, J.:                           FILED MARCH 23, 2016

         Appellant, Karl Chester,1 appeals nunc pro tunc from the July 14, 2011

sentence imposing an aggregate five to ten years of incarceration for

possession with intent to deliver a controlled substance, unlawful possession

of a controlled substance, possession of drug paraphernalia, unlawful

possession of a firearm, and possession of an instrument of crime. 2       We

affirm.

         The trial court’s Pa.R.A.P. 1925(a) opinion sets forth the pertinent

facts:
____________________________________________


1
   The parties name Appellant “Karl Chester” in their briefs. The transcripts
in the record refer to Appellant as “Carl Chester.”
2
  75 Pa.C.S.A. §§ 780-113(a)(30), (32), and (16); 18 Pa.C.S.A. §§ 6105
and 907, respectively.
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            On February 23, 2010, Appellant was shot at the
      intersection of Wayne and Berkley Streets in the Germantown
      section of Philadelphia; he sustained the gunshot wound in the
      groin area.     Appellant was subsequently transferred by his
      father’s private vehicle to Jefferson Hospital. Officer Alexander
      Branch testified at trial that he met the Appellant at the hospital
      when he arrived and recorded the Appellant’s address as 5020
      Portico Street, Philadelphia, PA 19144, but could not recall
      whether he was told this address by the Appellant or whether he
      observed it on the Appellant’s driver’s license.

             On February 24, 2010, a search warrant was executed at
      approximately 4:10 a.m. for the search of 5020 Portico Street,
      Search Warrant Number 147636. The search yielded, inter alia,
      shotgun cartridge, an Iver Johnson 38 caliber revolver (serial
      number 16129), a nine millimeter semiautomatic handgun with a
      single live round, 38-special cartridges, and 24 green tinted
      packages containing crack cocaine. The search of the back
      bedroom produced a shotgun that was underneath the bed, a
      bulletproof vest that was between the mattress and box spring,
      and shotgun shells. The clothing in the back bedroom was also
      searched and in the pockets of a pair of shorts, a white, clear
      plastic bag and plastic viles [sic] with white caps containing
      alleged cocaine. Appellant later admitted this crack belonged to
      him.

Trial Court Opinion, 12/18/14, at 1-2 (record citations omitted).

      The trial court, sitting as fact finder, found Appellant guilty of the

aforementioned offenses on June 2, 2011.       Appellant did not file a direct

appeal from his July 14, 2011 judgment of sentence.        On April 27, 2012,

Appellant filed a timely first petition under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46.         The PCRA court entered an order

permitting Appellant to file this nunc pro tunc direct appeal. Appellant raises

two issues for our review:

      1. Did the lower court err in failing to grant the motion to
         suppress the evidence recovered pursuant to a search


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         warrant as the affidavit of probable cause lacked sufficient
         facts to sustain the issuance of the search warrant?

      2. Did the lower court err        in denying the objection to the
         prosecutor’s questioning        of the Appellant regarding a
         statement allegedly made       by another not in evidence and by
         failing to grant the related   motion for a mistrial?

Appellant’s Brief at 7.

      Appellant’s first argument challenges the trial court’s denial of his

suppression motion. We conduct our review as follows:

            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.
      Where, as here, the appeal of the determination of the
      suppression court turns on allegations of legal error, the
      suppression court’s legal conclusions are not binding on an
      appellate court, whose duty it is to determine if the suppression
      court properly applied the law to the facts.           Thus, the
      conclusions of law of the courts below are subject to our plenary
      review.

Commonwealth v. Potts, 73 A.3d 1275, 1280 (Pa. Super. 2013).

      Appellant argues the affidavit of probable cause was insufficient to

support a search of his home at 5020 Portico Street.               The Fourth

Amendment to the United States Constitution and Article 1, § 8 of the

Pennsylvania Constitution protect citizens against unreasonable searches of

their homes. Instantly, police requested and a magistrate issued a search


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warrant for Appellant’s home.          Appellant argues the affidavit of probable

cause in support of the warrant was insufficient.

             The task of the issuing magistrate is simply to make a
       practical, common-sense decision whether, given all 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 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 concluding that probable cause
       existed.

Commonwealth v. Smith, 784 A.2d 182, 185 (Pa. Super. 2001); See

Pa.R.Crim.P. 203. Probable cause must exist at the time of the warrant, and

the magistrate must base its finding of probable cause on facts contained

within the four corners of the supporting affidavit.         Commonwealth v.

Way, 492 A.2d 1151, 1153-54 (Pa. Super. 1985).              Appellant argues the

magistrate could not conclude, based on the affidavit in support of the

warrant, that police established a fair probability of finding evidence of a

crime at Appellant’s home at 5020 Portico Street.

       The absence in the record of the affidavit of probable cause hinders

our review.3      An appellant is responsible for ensuring that the certified

record contains all items necessary for this Court’s review. Commonwealth

v. Garvin, 50 A.3d 694, 700 n.8 (Pa. Super. 2012); Commonwealth v.

____________________________________________


3
  Our efforts to obtain a copy of the affidavit were unsuccessful, despite the
fact both parties and the trial court clearly had a copy of the affidavit and
quoted from it.



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Wint, 730 A.2d 965, 967 (Pa. Super. 1999).        “The fundamental tool for

appellate review is the official record of what happened at trial, and

appellate Courts are limited to considering only those facts that have been

duly certified in the record on appeal.” Commonwealth v. Williams, 715

A.2d 1101, 1103 (Pa. 1998).

      Rule 1931 of the Pennsylvania Rules of Appellate Procedure requires

the clerk of courts to transmit the complete certified record.      Pa.R.A.P.

1931(c).   The clerk must also create a list of documents included in the

record and provide a list to the parties so that the parties can correct any

omissions. Id. If the certified record does not contain a listed item, that

item’s absence will be attributed to a “breakdown in the process of the

court” rather than to the appellant’s oversight. Pa.R.A.P. 1931(f). Instantly,

it appears the clerk numbered the docket items from one through

seventeen, but the record contains no list identifying each of those items.

Thus, the record does not confirm the clerk provided Appellant with a list in

accordance with Rule 1931(c).     Under these circumstances, we decline to

charge Appellant with waiver due to the missing affidavit.

      Fortunately, we discern no meaningful dispute among the parties as to

the operative facts in the affidavit of probable cause.       The trial court

summarized the affidavit as follows:

            The application for the search warrant, comprised of the
      warrant and affidavit, explains that on February 23, 2010,
      Appellant’s father received a phone call from Appellant’s mother,
      stating that their son had been shot.         He then went to

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       Appellant’s home at 5020 Portico Street and helped dress
       Appellant, placed him in his vehicle, and drove him to Jefferson
       Hospital. Detectives James Sloan and John Geliebter sought a
       search warrant to search the residence at 5020 Portico Street for
       ‘bloody clothing, ballistic evidence and any other items of
       evidentiary value.’

Trial Court Opinion, 12/18/14, at 5-6.

       Thus, the affidavit stated Appellant had been shot and that his father

met him at 5020 Portico Street, helped him dress, and transported him to

the hospital.    The parties recite these same operative facts in their briefs.

Appellant’s Brief at 8; Commonwealth’s Brief at 3, 8. As such, we are able

to address the legal question before us—whether the facts alleged in the

affidavit support a finding of probable cause to believe police would recover

evidence of a crime from a search of 5020 Portico Street.4

       Based on the information set forth in the trial court’s opinion, police

sought a warrant to search Appellant’s home for evidence related to the

shooting, including bloody clothing and ballistic evidence. Appellant argues

that police lacked probable cause to obtain a warrant to search 5020 Portico

Street because the warrant did not establish a connection between the

shooting and that address. He relies on a single case, Way, in which police

followed the defendant from the site of a drug transaction to his private
____________________________________________


4
   The Commonwealth notes the absence in the record of Appellant’s motion
to suppress and the absence of the suppression hearing transcript. Since
Appellant’s argument presents a question of law based entirely upon the
contents of the affidavit of probable cause, the absence of the motion and
transcript does not hinder our review.



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residence. Way, 492 A.2d at 1152. After arresting the parties to the drug

transaction, police obtained a warrant for to search the residence.     Id. at

1153.     The appellant argued the affidavit contained insufficient facts to

establish probable cause that police would find evidence of a crime at his

residence. Id. at 1153. The Way Court found probable cause lacking: “The

affidavit did not contain sufficient facts to believe that drugs would be found

on the premises to be searched. Probable cause to believe that a man has

committed a crime does not necessarily give rise to probable cause to search

his home.”    Id. at 1154.   Appellant argues Way is controlling because in

that case, as here, the affidavit established no nexus between the crime

under investigation and the defendant’s home.

        We conclude Way is inapposite.       The Way Court concluded the

affidavit established no link between the defendant’s home and the crime

under investigation. Instantly, the facts in the affidavit established a direct

link between the location of the search and the crime under investigation.

Specifically, Appellant’s father met Appellant at his home at 5020 Portico

Street and helped him dress before driving him to the hospital. Thus, the

facts in the affidavit support the magistrate’s finding that police had

probable cause to believe a search of 5020 Portico Street would uncover

evidence—in particular bloody clothing—related to the shooting under

investigation.   Contrary to Appellant’s argument, therefore, the affidavit

establishes a direct nexus between Appellant’s home and the crime under


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investigation. We observe that Rule 201 of the Rules of Criminal Procedure

permits issuance of a warrant “to search for and to seize [. . .] property that

constitutes evidence of the commission of a criminal offense.” Pa.R.Crim.P.

201(3).       Appellant’s bloody clothing clearly constitutes evidence of the

shooting under investigation. Appellant’s first argument fails.

      Next, Appellant argues the trial court erred in permitting the

prosecutor      to   reference   inadmissible   hearsay     evidence    during   the

prosecutor’s cross-examination of Appellant.         Admission of evidence rests

within the sound discretion of the trial court and we will reverse a trial

court’s decision only where it abuses its discretion.          Commonwealth v.

Harty, 918 A.2d 766, 776 (Pa. Super. 2007), appeal denied, 940 A.2d 362

(Pa. 2008). Furthermore, an evidentiary error does not warrant a new trial

if the error was harmless. “[T]he Commonwealth has the burden of proving

beyond a reasonable doubt that the error could not have contributed to the

verdict[.]”    Commonwealth v. Moore, 937 A.2d 1062, 1073 (Pa. 2007),

cert. denied, Moore v. Pennsylvania, 555 U.S. 969 (2008). “An error may

be   deemed      harmless,   inter   alia,   where   the   properly   admitted   and

uncontradicted evidence of guilt was so overwhelming and the prejudicial

effect of the error was so insignificant by comparison that the error could not

have contributed to the verdict.” Id.

      Appellant in his brief cites only Rules 801 and 802 of the Pennsylvania

Rules of Evidence as authority for his argument. Appellant’s Brief at 12-13.


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Rule 801 defines hearsay an out of court statement offered in court as proof

of the matter asserted.     Pa.R.E. 801.    Rule 802 provides that hearsay

evidence is inadmissible except as prescribed by the Rules of Evidence.

Pa.R.E. 802.

      During the exchange in question, the prosecutor sought to confirm

that Appellant lived at 5020 Portico Street.     The transcript reflects the

following:

             Q.   You said you moved out in 2009?

             A.   Yes.

           Q.    Between 2009 and 2010, did somebody come in and
      move into the bedroom?

             A.   I don’t know.

             Q.   What bedroom did you live in when you lived there?

             A.   I had the back bedroom.

            Q.    Now, you had a driver’s license at the time you were
      arrested – I’m sorry, taken to the hospital, correct?

           A.     No. I didn’t have it on me. I have a driver’s license,
      though.

            Q.    But your license read the address of 5020 Portico
      Street, correct?

             A.   I believe so.

           Q.    And when you were in the hospital, you said that
      was your address, correct?

             A.   I didn’t say nothing.

            Q.    So you didn’t tell anyone your address when you
      were in the hospital?



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            A.    I did not. The officer asked me what happened. I
      told him I got shot. He said, ‘Where at?’ I told him, and then I
      had—they put me under, and I went to sleep.

          Q.    Would it surprise you to find out that other family
      members said that you lived there?

             [Defense Counsel:] Objection. Your Honor, that’s the
      worst variety of back door hearsay that one could possibly use.
      If this were a jury, I would be asking for a mistrial.

            [Prosecutor:] Your Honor –

          [Defense Counsel:]     Would it surprise you that other
      members of your family said—come on, Judge.

            [Prosecutor:] He’s claiming he does not live there. It’s
      completely fair to impeach him with what other people said at
      this point.

            [Defense Counsel:] She is 110 percent wrong.

            [Prosecutor:] Your Honor, it’s completely appropriate.

             [Defense Counsel:] Shall we brief it? You don’t want to
      brief it.

           [Prosecutor:] Your Honor, there is no need to. Once
      someone testifies and chooses to testify, it’s completely
      permissible to cross-examine them with other information as to
      whether or not they live there.

            [Defense Counsel:]       Not other people’s hearsay.   Other
      information, yes, but –

           [Prosecutor:] It’s not being offered for the truth of the
      matter. It’s being offered to impeach and cross-examine this
      defendant. It is not hearsay. ]

            The Court: I’ll let it in.

N.T. Trial, 6/2/11, at 45-47.

      We need not examine the merits of the hearsay argument. The record

reflects the Commonwealth introduced a substantial body of evidence


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confirming that Appellant continued to live at 5020 Portico Street. Appellant

admitted the address on his driver’s license was 5020 Portico Street. The

Commonwealth introduced bills addressed to Appellant that were found

during the execution of the search warrant.        Appellant stipulated to the

admissibility of the affidavit of probable cause, and Appellant’s brief confirms

that the affidavit of probable cause alleged that Appellant’s mother

confirmed that she and Appellant lived at 5020 Portico Street. Appellant’s

Brief at 8. Appellant’s father picked Appellant up at 5020 Portico Street on

the day of the shooting. Police found male clothing in a bedroom at 5020

Portico Street.

      In Commonwealth v. Johnson, 838 A.2d 663 (Pa. 2003) (cert.

denied. Johnson v. Pennsylvania, 543 U.S. 1008 (2004)), our Supreme

Court held that admission of hearsay evidence is harmless if it is cumulative

of evidence already in the record.    Id. at 674 (citing Commonwealth v.

Young, 748 A.2d 166, 193 (Pa. 2000)).             Instantly, the prosecutor’s

reference to Appellant’s mother’s statement was cumulative of much other

evidence confirming Appellant’s place of residence.         Assuming without

deciding the trial court erred in overruling Appellant’s objection, the error

was harmless beyond a reasonable doubt.

      In summary, we have concluded that both of Appellant’s assertions of

error lack merit. We therefore affirm the judgment of sentence.

      Judgment of sentence affirmed.


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     Judge Ott joins the memorandum.

     Judge Mundy concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2016




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