J-S35009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DETRICK DARNELL POOLE

                            Appellant                 No. 1159 WDA 2016


              Appeal from the Judgment of Sentence June 9, 2016
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001223-2015


BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                          FILED AUGUST 10, 2017

        Detrick Darnell Poole appeals from the judgment of sentence,1 entered

in the Court of Common Pleas of Erie County, following the denial of his

post-sentence motion. In 2016, Poole was convicted by a jury of receiving

stolen property (RSP),2 possession of drug paraphernalia,3 possession with

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  Although Poole filed his notice of appeal from the July 5, 2016 order
denying his post-sentence motions, we have amended the caption to reflect
that the appeal is technically taken from the judgment of sentence. See
Commonwealth v. Chamberlain, 658 A.2d 395 (Pa. Super. 1995) (order
denying post-sentence motion acts to finalize judgment of sentence; thus,
appeal is taken from judgment of sentence, not order denying post-sentence
motion).
2
    18 Pa.C.S.§ 3925(A).
3
    35 P.S. § 780-113(a)(32).
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intent to deliver4 and simple possession.5       After careful review, we vacate

Poole’s judgment of sentence on the RSP conviction 6 and remand for

resentencing.

        The trial court set forth the facts of the case as follows:

        The convictions arose from eyewitness testimony that on March
        21, 2015, near 10th and Raspberry Streets in Erie, Pennsylvania,
        [Poole] was in an altercation outside his upstairs apartment at
        1110 Raspberry Street; [Poole] hurriedly entered the residence,
        and returned outside brandishing an AK[-]47 rifle; [Poole] fired
        numerous shots in the air with the weapon and ran back into the
        residence; [Poole] exited the residence once again, this time
        without the weapon, got into a vehicle and drove away, heading
        north on Raspberry Street.

        City of Erie Police were dispatched to the area based upon a call
        about a domestic incident, and shots fired in the air. When
        Officer James Cousins arrived, he observed approximately one
        dozen people standing in the road, very excited and yelling.
        They indicated to the officer the shooter had just left the
        residence and was headed in a silver vehicle across 11th Street.
        The officer quickly looked down 11th [S]treet and spotted a silver
        vehicle traveling down the street. The officer proceeded after
        the vehicle, activating the lights and sirens on the patrol vehicle.
        Initially, [Poole] did not slow his vehicle, and the officer
        increased his speed to keep up with [Poole]. When [Poole]
        finally pulled over, Officer Cousins conducted a felony stop. He
        approached the vehicle with his weapon drawn and ordered
        [Poole] to show his hands out the window. Instead of heeding
        the officer’s commands, [Poole] opened the door and began to
        exit the vehicle.     The officer repeatedly ordered [Poole] to
        remain in the vehicle and show his hands. Eventually, [Poole]
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4
    35 P.S. § 780-113(a)(30).
5
    35 P.S. § 780-113(a)(16).
6
   All other judgments of sentence on Poole’s remaining convictions are
affirmed.



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       complied. Officer Cousins next directed [Poole] to exit the
       vehicle and go to the ground. [Poole] refused, and instead re-
       entered the vehicle. When [Poole] finally exited the vehicle,
       despite further repeated orders, he refused to go to the ground.
       Once Officer Cousins enlisted the assistance of a passerby,
       [Poole] became more compliant, and he was arrested.

       That evening, pursuant to a search warrant, five police officers
       entered [Poole’s] residence and conducted a search. The police
       found a 9 mm handgun, reported as stolen, [in the drawer of]7
       an entertainment center in the residence. An AK[-]47 rifle was
       found under the mattress of a child’s bedroom. The police found
       powder cocaine and crack cocaine in the residence. Police also
       recovered clear sandwich-style plastic bags and a spoon with
       white powdery residue on it, and ties for knotting off the bags.
       Based upon the quantity of the cocaine recovered from the
       residence, and the absence of evidence of means to ingest
       cocaine, other than a spoon that was found, the police concluded
       the cocaine was possessed with the intent to deliver or sell.
       Detective Michael Chodubski, sergeant of the vice and narcotics
       division of the City of Erie Police Department and an expert in
       determining whether illicit drugs are used for consumption or
       delivery, testified to the violent nature of the drug-dealing
       business; the practice of drug dealers in using firearms to
       protect their proceeds and inventory; and his experience that
       firearms and drug-dealing go hand-in-hand.

       [Poole’s] mail was found at the residence, indicating [Poole]
       lived there. In a recorded telephone conversation between
       [Poole] and his mother on March 22, 2015, [Poole]
       acknowledged the residence was his.     [Poole] also told his
       mother, “I got caught with an AK[-]47 and a nine, the nine Hi-
       point.”

       William Miller identified the 9mm handgun as one of two guns
       that were stolen from his vehicle on July 14, 2014, while the

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7
  While the trial court’s opinion indicates the 9mm was found “on an
entertainment center,” Trial Court Opinion, 10/31/16, at 2 (emphasis
added), at trial Officer Cheryl Frey testified that she found the gun “in a
drawer that [she] pulled out” in the entertainment center. N.T. Jury Trial,
3/15/16, at 40.



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       vehicle was parked outside a convenience store at 10th and
       French Streets in the City of Erie.

       On July 23, 2015, [Poole] filed an Omnibus Pre-Trial Motion
       seeking suppression of evidence seized from the residence at
       1110 Raspberry Street, Apartment No. 2, Upstairs, including
       crack cocaine and the AK[-]47 Assault Rifle. [Poole] asserted
       the search warrant was unconstitutional and overbroad, and the
       identity and reliability of the eyewitnesses who provided
       information to the police officers was not established. The
       parties submitted briefs, and a hearing on the suppression
       motion was held before the Honorable Shad Connelly, then
       President Judge, in August, 2015. . . . On December 23, 2016,
       Judge Connelly denied [Poole’s] Omnibus Pre-Trial Motion to
       Suppress Evidence.

Trial Court Opinion, 10/31/16, at 1-4.

       A two-day jury trial was held on March 15-16, 2016. At the close of

the   Commonwealth’s         case,    the      Commonwealth   withdrew   Count   1

(possession of a firearm)8 and amended Count 4 (possession of a controlled

substance) to a misdemeanor offense.              Poole moved for a judgment of

acquittal on the RSP charge; the court denied the motion. Poole was found

guilty of the above-mentioned crimes and, on June 9, 2016, was sentenced

to an aggregate term of 11½ months to 23 months of incarceration.9 Poole

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8
 On January 8, 2016, the Court severed the charge at Count One – Persons
Not to Possess, Use, Manufacture, Control, Sell or Transfer Firearms (9 mm
handgun), from the remaining charges.
9
  Poole was sentenced on each count as follows: RSP - count 2 (11½ to 23
months’ incarceration, followed by 5 years of probation); possession with
intent to deliver – count 3 (6 months to 23 months’ incarceration concurrent
to count 2); possession of a controlled substance – count 4 (1 year of
probation consecutive to counts 2 and 3); and possession of drug
paraphernalia – count 5 (1 year of probation, concurrent to count 4).



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filed timely post-sentence motions that were denied on July 5, 2016. This

timely appeal follows, in which he raises the following issues for our

consideration:

       (1)    Did the Commonwealth present insufficient evidence to
              sustain [Poole’s] conviction for receiving stolen property
              where the evidence does not establish the element that
              [Poole] knew or should have known the 9[mm] was
              stolen?10

       (2)    Did the suppression court err by denying [Poole’s] motion
              to suppress the evidence seized at 1110 Raspberry Street,
              Apartment 2[,] where the search warrant did not identify
              the items to be seized with particularity and where the
              accompanying affidavit did not provide probable cause to
              conclude that the items would be discovered at that
              location?11




____________________________________________


10
  The standard of review for a challenge to the sufficiency of the evidence is
de novo, but the scope of review is limited to considering the evidence of
record, and all reasonable inferences arising therefrom, viewed in the light
most favorable to the Commonwealth as the verdict winner.
Commonwealth v. Robinson, 128 A.3d 261 (Pa. Super. 2015) (en banc).
Evidence is sufficient if it can support every element of the crime charged
beyond a reasonable doubt. Id. The trier of fact, while passing upon the
credibility of witnesses and the weight of the proof, is free to believe all,
part, or none of the evidence. Id.
11
  When reviewing an order denying a motion to suppress evidence, we must
determine whether the trial court’s factual findings are supported by the
evidence of record. If the evidence supports the trial court’s findings, we are
bound by them and may reverse only if the legal conclusions drawn
therefrom are erroneous. Commonwealth v. Blair, 860 A.2d 567, 571
(Pa. Super. 2004).



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      Poole first contends that the Commonwealth failed to prove that he

possessed the mens rea for RSP or, namely, that he knew the 9mm handgun

to be stolen or believe that it probably was stolen.

      The crime of receiving stolen property is defined as follows:

      § 3925. Receiving stolen property

         (a) Offense defined.--A person is guilty of theft if he
         intentionally receives, retains, or disposes of movable
         property of another knowing that it has been stolen, or
         believing that it has probably been stolen, unless the
         property is received, retained, or disposed with intent to
         restore it to the owner.

18 Pa.C.S. § 3925(a). See Commonwealth v. Young, 35 A.3d 54, 63 (Pa.

Super. 2011) (identifying elements of RSP as:      “(1) intentionally acquiring

possession . . . of movable property of another; (2) with knowledge or

belief   that   it   was   probably   stolen;   and    (3)   intent   to   deprive

permanently.”) (emphasis added).

      A person “knows” that goods are stolen if he is “aware” of the fact.

Commonwealth v. Newton, 994 A.2d 1127 (Pa. Super. 2010).                      The

Legislature expressly defined the required mental state, under section 3925,

as “knowing” or “believing.” Robinson, 128 A.3d at 265 (citations omitted).

When there is no direct proof that the defendant knew, for a fact, that the

item or good was stolen, the guilty knowledge may be inferred from

circumstantial evidence.    Commonwealth v. Pruitt, 951 A.2d 307 (Pa.

2008).




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      Circumstantial evidence of guilty knowledge may include:      the place

and manner or possession; alterations to the property indicative of theft; the

defendant’s conduct or statements at the time of the arrest (including

attempts to flee apprehension); a false explanation for the possession, the

location of the theft in comparison to where the defendant gained

possession; the value of the property compared to the price paid for it; or

any other evidence connecting the defendant to the crime. Robinson, 128

A.3d at 268. Mere possession of stolen property, without more, however, is

not sufficient circumstantial evidence to support an inference of guilty

knowledge.    Commonwealth v. Williams, 362 A.2d 244 (Pa. 1976);

Commonwealth v. Foreman, 797 A.2d 1005 (Pa. Super. 2002).

      Here, Poole contends that the Commonwealth did not present any

direct or circumstantial evidence sufficient to show that he knew or believed

the 9mm handgun was stolen.

      In the instant case, because the gun was stolen from its owner

approximately eight months before it was discovered in the Raspberry Street

apartment, the recency element for purposes of inferring guilty knowledge

for RSP is lacking. See Commonwealth v. Stover, 436 A.2d 232, 233-34

(Pa. Super. 1981) (possession thirty-seven days after theft of automobile

was not recent); Commonwealth v. Caesar, 369 A.2d 341, 344 (Pa.

Super. 1976) (guilty knowledge would be "conjectural at best" where theft of

automobile occurred four weeks prior).




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     Instantly, the trial court concluded the guilty knowledge element of

RSP was proven through the following circumstantial evidence:      Poole fled

from the apartment when the police were initially called, requiring them to

conduct a felony traffic stop; Poole’s uncooperative and evasive behavior

when officers attempted to pull his vehicle over on the roadway; Poole’s

failure to follow the officers’ repeated commands when attempting to arrest

him; the 9mm handgun found in the same residence as illegal narcotics and

drug paraphernalia which is indicative of the fact that drug dealers use

weapons to protect drug and drug proceeds; Poole’s conversation with his

mother that “[he had been] caught with an AK[-]47 and a nine, the nine Hi-

point;” and Poole’s lack of explanation for presence of stolen handgun.

     First, we note that because the handgun had not been recently stolen

when it was recovered from Poole’s apartment, it was not necessary that

Poole provide an explanation for his possession of the stolen item.

Robinson, supra. Second, merely because Poole told his mother that the

police had caught him with two weapons does not necessarily infer his guilty

knowledge of the stolen nature of the 9mm; his remarks could have been

made in response to the criminal charges (possession of a firearm

(prohibited)) that had been filed against him.     See Commonwealth v.

Stevenson, 363 A.2d 1144 (Pa. Super. 1976) (reasonable inference of guilt

must be based on facts and conditions proved; it cannot rest solely on

suspicion or surmise).




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        While an “attempt to avoid pursuit, or flight, is some evidence of guilty

knowledge,” Commonwealth v. Brabham, 407 A.2d 424, 427 (Pa. Super.

1979) (citations omitted), here Poole fled from his apartment, after

discharging the AK-47 in the air on the street, before the officers responded

to the scene.      Although Poole intentionally evaded the officers as they

attempted to stop his vehicle and repeatedly ignored their commands to

surrender, we cannot say that this behavior infers his guilty knowledge of

the stolen nature of the handgun found back in his apartment. Moreover,

while the stolen item was clearly found in Poole’s residence, it is well

established that possession alone cannot support the mens rea necessary to

prove     RSP.     Williams,    supra;    Foreman,     supra.      Under   these

circumstances, we cannot conclude that the Commonwealth provided

sufficient circumstantial evidence to infer Poole’s guilty knowledge that the

9mm handgun was stolen.         Robinson, supra.       Thus, we vacate Poole’s

judgment of sentence for his RSP conviction.

        Poole also asserts that the trial court erred in suppressing the evidence

obtained during a search of the Raspberry Street apartment where the

affidavit “did not identify the items to be seized with particularity and where

the search warrant did not provide probable cause to conclude that the items

would be discovered at that location.” Appellant’s Brief, at 29.

        Pennsylvania Rule of Criminal Procedure 205 provides, in part, that a

search warrant “shall be signed by the issuing authority and shall:          (1)

specify the date and time of issuance; (2) identify specifically the property to

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be seized; (3) name or describe with particularity the person or place to be

searched; (4) direct that the search be executed either . . . (a) within a

specified period of time, not to exceed 2 days from the time of issuance[;] .

. . [and] (5) direct that the warrant be served in the daytime unless

otherwise authorized on the warrant[.]”     Pa.R.Crim.P. 205. Paragraphs (2)

and (3) of Rule 205 are intended to proscribe general or exploratory

searches by requiring that searches be directed only towards the specific

items, persons, or places set forth in the warrant.   See Pa.R.Crim.P. 205,

Comment.      Such warrants should be read in a common sense fashion and

should not be invalidated by hyper-technical interpretations. Id. Moreover,

a practical, common-sense approach should be taken in determining

whether the place to be searched is specified with sufficient particularity.

Commonwealth v. Korn, 139 A.3d 249, 253 (Pa. Super. 2016), citing

Commonwealth v. Carlisle, 534 A.2d 469 (Pa. 1987).

     Here, the search warrant identifies the following items to be searched

for and seized: “Any and all firearms and all other items associated to [sic]

their operation.” Search Warrant and Authorization, 3/21/15. The warrant

describes the premises to be searched as follows:

     Address of 1110 Raspberry Street[,] Apartment #2, upstairs.
     The door to this multi[-]dwelling building for 1110 Raspberry #2
     is on the left side of the house facing Raspberry Street. It has a
     glass [window] in the middle of a wooden door, the home is grey
     vinyl siding with white trim. It has a front and back staircase.

Id. The accompanying affidavit of probable cause indicates that:



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      Poole was seen by several witnesses beating a female at the
      corner of 10th and Raspberry at approximately 1930 hours.
      Poole was then confronted by a w[hite] m[ale], then ran to the
      residence of 1110 Raspberry Street and went inside, Poole came
      back outside immediately with a large, semi-automatic weapon,
      resembling an AK[-]47 and shot it randomly about 8-12 times[,]
      startling all of the neighbors in the area and putting several
      neighbors and witnesses in imminent fear of serious bodily
      injury. Approximately 20 people were shouting when police
      arrived in the area telling us which way the suspect went and the
      vehicle description. Defendant was positively identified by 3
      witnesses.

Affidavit of Probable Cause, 3/21/15.

      Poole contends that nowhere in the affidavit of probable cause does it

mention Apartment #2 of 1110 Raspberry Street or the upstairs apartment,

nothing in the four corners of the affidavit indicates that Pool ran back into

the apartment before he fired the random shots on the street, and that only

unidentified witnesses provided the probable cause to support issuance of

the warrant.

      Here, the sources of the information forming the basis of the warrant

were eyewitnesses who first-hand watched Poole beat a female, be

confronted by a male, make threatening statements to that male, run into a

specific apartment, emerge with an assault weapon, and fire the weapon

randomly into the air.     Because there is no question that the witnesses

watched Poole carry out these acts, they provided sufficient probable cause

to support the warrant.     Commonwealth v. Torres, 764 A.2d 532, 537

(Pa. 2001) (internal citation and quotations omitted) (in considering affidavit

of   probable   cause,   issuing   magistrate   must   apply   “totality   of   the


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circumstances test” which requires her to “make a practical, common-sense

decision whether, given all of the circumstances set forth in the affidavit . . .

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.”).

      Moreover, the fact that the search warrant generally refers to “any and

all firearms” does not make it so overbroad or non-specific to render it

invalid.   Here, where Poole emerged from his apartment with an AK-47,

firing it into the air in the presence of several eyewitnesses, it is reasonable

to believe that Poole was more likely than not in possession of additional

firearms in his home. Additionally, the items to be seized are related to the

crime he was witnessed committing. See Commonwealth v. Gannon, 454

A.2d 561, 565 (Pa. Super. 1982) (“The critical element in a reasonable

search is not that the owner of the property is suspected of [a] crime but

that the specific ‘things’ to be searched for and seized are located on the

property to which entry is sought.”) (citation omitted).

      Finally, we conclude that the seizure of drugs from Poole’s apartment

was valid under the plain view doctrine. The drugs were discovered during

the police’s lawful search for firearms and ammunition in accordance with

the search warrant, the incriminating nature of the drugs was readily

apparent and in plain view within the apartment and the officers reasonably

concluded that ammunition or firearms could be hidden under a mattress,

underneath the cushions of a sectional couch, and in the drawer of an

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entertainment center.       See Commonwealth v. Anderson, 40 A.3d 1245

(Pa. Super. 2012); Commonwealth v. Santiago, 736 A.2d 624, 633 (Pa.

Super. 1999).      Thus, we find the trial court did not err in failing to grant

Poole’s motion to suppress. Blair, supra.

       Judgment of sentence for RSP conviction vacated. Case remanded for

resentencing.12 Jurisdiction relinquished.

       Judge Ransom joins the Memorandum.

       President Judge Emeritus Stevens files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/10/2017




____________________________________________


12
   Commonwealth v. Deshong, 850 A.2d 712 (Pa. Super. 2004) (if
appellate court's disposition alters sentencing scheme of trial court, it must
vacate sentence and remand for resentencing).



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