J-S29035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES WILLIAMS                             :
                                               :
                        Appellant              :   No. 1769 EDA 2016

             Appeal from the Judgment of Sentence April 29, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0013564-2014


BEFORE:      PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                            FILED MAY 29, 2018

        Appellant James Williams appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County on April 29,

2016, following his convictions of Possession of a firearm by prohibited person,

Firearms not to be carried without a license, Carrying firearms on public

streets or public property in Philadelphia, and Resisting arrest or other law

enforcement.1        We affirm.

        The trial court aptly set forth the relevant facts and procedural history

herein as follows:

        FACTUAL HISTORY

              The underlying charges stem from the arrest of [Appellant]
        on October 14, 2014 about 8:15 p.m. after two Philadelphia Police
        Officers from the 14th District Tactical Response Unit viewed the
        Defendant flagrantly exposing his penis and urinating onto the
____________________________________________


1   18 Pa.C.S.A. §§ 6105(a)(1); 6106(a)(1); 6108; 5104, respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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     sidewalk as he stood on the street at the corner of the 500 East
     Duval Street in the city and county of Philadelphia, while facing a
     dumpster in front of an occupied apartment complex. This
     residential area was particularly noted to be a hot spot for illegal
     narcotic transactions. As both uniformed officers alighted from
     their marked Chevy Tahoe vehicle and approached him,
     [Appellant] immediately refused to heed the officers' directives
     and attempted to flee. He first physically pushed Police Officer
     Colin Goshert off of him and then actively fought both officers as
     he tried to discard the book bag that he had on his shoulders in
     the process.
            During the course of the fray, [Appellant] grabbed Police
     Officer James McGrory's handgun-shaped taser and wrestled with
     him while repeating "you are not going to tase me." [Appellant]
     finally ceased fighting after he was successfully tased after two
     taser tries failed. The book bag was confiscated well after the
     officers placed him under lawful arrest. Inside this bag, officers
     recovered an operable Ruger .9 mm. semi-automatic handgun
     that was fully loaded with one round readied to fire in the
     chamber. An immediate record check revealed that this Defendant
     was a person deemed prohibited from carrying or possessing a
     firearm due to his previous convictions for an enumerated criminal
     statutory offenses and that the recovered gun had been reported
     stolen from a previous owner.
            As a result, [Appellant] was initially charged with 18 § 3925
     §§ A- Receiving Stolen Property, F2; 18 § 6105 §§ A1 -Violation
     of the Uniform Firearms Act- Possession of a Firearm By Prohibited
     Person, F2; 18 § 6106 §§ A1 -Violation of the Uniform Firearms
     Act- Firearms Not to be Carried Without a License, F2; 18 § 6108
     §§ A1 -Violation of the Uniform Firearms Act - Carry Firearms in
     Public in Philadelphia, Ml; 18 § 5104.1 §§ A1 -Disarming Law
     Enforcement Officer -Without Lawful Authorization, F3; and 18 §
     5104 -Resisting Lawful Arrest Or Law enforcement, M2; CO§
     10609 -Public Urination, S.

     PROCEDURAL HISTORY

           Following a preliminary hearing, arraignment, and
     numerous defense initiated continuances, on July 10, 2015,
     Appellant litigated a Motion to Suppress Physical Evidence that
     had been filed on his behalf. The Motion To Suppress was Granted
     In Part and Denied In Part by the Honorable Daniel J. Anders,
     Judge of the Court of Common Pleas for the First Judicial District
     Criminal Division after an evidentiary hearing. The Court denied

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     [Appellant’s] request to suppress the introduction of the evidence
     related to the recovered firearm and granted [Appellant’s] request
     to suppress all inculpatory statements that he had reportedly
     made at the time of his arrest. The case was eventually
     transferred and scheduled for a jury trial held before the
     Honorable Anne Marie B. Coyle Judge of the Court of Common
     Pleas for the First Judicial District Criminal Division on February
     23, 2016.
             Preceding the selection from a group of forty potential jurors
     on February 23, 2016, this Court duly provided sufficient
     preliminary oral instructions concerning the fair even handed
     manner in which jurors are required to evaluate the credibility of
     trial witnesses. This Court also generally inquired of all prospective
     jurors within a series of general and then individualized questions
     as to their ability to fairly serve as a juror.
             During individual voir dire of potential jurors conducted by
     this Court on February 23, 2016, [Appellant], by and though his
     trial counsel, requested that the trial court strike a prospective
     juror identified as Juror #4 for cause because that juror had
     initially checked off the “Yes” box in response to Question #8 of
     16 questions contained on the preprinted Questionnaire form that
     is handed to prospective jurors to complete before any relevant
     instructions or explanations are given.
             [Appellant’s] request to dismiss prospective Juror #4 for
     cause was denied following properly exercised discretionary
     evaluation of the prospective juror's convincing sworn testimony
     in light of all circumstances presented and known to the trial court.
     During voir dire this juror demonstrated unequivocally that she
     would fairly evaluate an officer's testimony with the same degree
     of scrutiny to other persons not in law enforcement. [Appellant],
     by and through his trial attorney, used only five of the allotted
     seven preemptory strikes within the jury selection process. The
     jury trial began on February 24, 2016 and ended on February 25,
     2016. After due deliberations, the jury returned verdicts on
     February 26, 2016.
             The case in chief was presented by the Commonwealth of
     Pennsylvania, by and through its Assistant District Attorney John
     Iannocone, Esquire. Robert Patrick Link, Esquire represented
     [Appellant] during pre-trial hearings and as trial counsel. Pursuant
     to agreement of the parties to protect [Appellant], the offense of
     Violation of the Uniform Firearms Act -Possession of a Firearm By
     Prohibited Person, 18 § 6105 §§ A1- F2 was bifurcated. Thus, the
     verdict as it related to this charge was to be decided by the trial
     court conditionally after verdicts were entered by the jury for the

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     other possessory firearm offenses. The Commonwealth Nolle
     Prossed the offenses of Receiving Stolen Property, 18 § 3925 §§
     A- F2 and Public Urination- CO§ 10609-S.
            The empaneled jury found [Appellant] guilty of the following
     offenses: 18 § 6106 §§ A1 -Violation of the Uniform Firearms Act-
     Firearms Not to be Carried Without a License, graded as a Felony
     of the Third Degree; 18 § 6108 §§ Al -Violation of the Uniform
     Firearms Act- Carry Firearms in Public in Philadelphia, graded as
     a Misdemeanor of the First Degree; and 18 § 5104- Resisting
     Lawful Arrest Or Law enforcement, 18 § 5104, graded as a
     Misdemeanor of the Second Degree. The jury returned a verdict
     of not guilty to the charge of 18 § 5104.1 §§ A1 –Disarming Law
     Enforcement Officer -Without Lawful Authorization, graded as a
     Felony of the Third Degree.
            Consistent with the previous agreement, the arraignment of
     the initially bifurcated charge of Violation of the Uniform Firearms
     Act- Possession of a Firearm By Prohibited Person, 18 § 6105 §§
     A1 -graded as a Felony of the Second Degree was waived by
     [Appellant], data regarding [Appellant’s] previous conviction for
     the statutory enumerated offense was entered via stipulation of
     all parties, and this trial [c]ourt formally entered the verdict of
     guilty for that single bifurcated offense.
            As the presiding trial jurist, the Honorable Anne Marie B.
     Coyle, Judge of the Court of Common Pleas for the First Judicial
     District, directed the completion of Presentence Evaluations by the
     First Judicial District Probation and Parole Department and Mental
     Health Assessments and scheduled the sentencing hearing for
     April 29, 2016. On April 29, 2016, after review of all completed
     presentence reports and consideration of all relevant data
     submitted concerning [Appellant], and a full and fair sentencing
     hearing, the Honorable Anne Marie B. Coyle imposed the following
     sentences:
                   Count 2: 18 § 6105 §§ A1 -Violation of the
            Uniform Firearms Act - Possession of a Firearm By
            Prohibited Person, F2: State supervised period of
            confinement for a minimum of 4 years to 10 years;
                   Count 4; 18 § 6106 §§ A1 -Violation of the
            Uniform Firearms Act- Firearms Not to be Carried
            Without a License, F2: State supervised period of
            confinement for a minimum of 2 years to 7 years;
                   Count 5: 6108 §§ 1l -Violation of the Uniform
           Firearms Act- Carry Firearms in Public in Philadelphia,
           M1: State supervised period of confinement for a
           minimum of 1 years to 5 years;

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                 Count 6: 18 § 5104 -Resisting Lawful Arrest Or
           Law Enforcement, M2: State supervised period of
           confinement for a minimum of 1/2 year to 2 years.

            The periods of confinement for each charge were directed to
      be served consecutively to all other offenses. Appropriate credit
      for time served was approved. Appropriate conditions were
      imposed to address the Defendant's lengthy criminal record, drug
      and alcohol abuse and mental health difficulties.
            On May 11, 2016 a Motion For Modification of Sentence was
      filed on behalf of [Appellant] on May 11, 2016. This was denied
      by operation of law on September 22, 2016. On May 23, 2016,
      [Appellant] filed a timely Notice of Appeal. The Order in
      accordance with Pennsylvania Rule of Appellate Procedure
      1925(b) was issued on June 21, 2016. A Statement of Matters
      Complained of on Appeal was filed by [Appellant], by and through
      his appellate counsel, J. Matthew Wolfe, Esquire on July 12, 2016,
      specifically asserting:

           (1) The Lower Court erred in failing to grant in full the
           Appellant's motion to suppress physical evidence;
           (2) The Lower Court erred in failing to grant the
           Appellant's motion to strike Juror #4 for cause, who
           testified that he would be more likely to believe the
           testimony of a police officer because of their [sic] job.

Trial Court Opinion, filed 9/8/17, at 1-6 ([sic] added).

      In his appellate brief, Appellant presents the following “Summary of

Questions Involved” which contains a single issue:

      1.     Did the lower court err in failing to suppress as evidence the
      firearm recovered from a book bag during a warrantless search
      after [ ] Appellant was taken into custody?

Brief for Appellant at 7.

      When reviewing a denial of a suppression motion, we must determine

whether the record supports the trial court's factual findings and whether the

legal conclusions drawn from those facts are correct. Commonwealth v.


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Brown, 64 A.3d 1101, 1104 (Pa.Super. 2013), appeal denied, 622 Pa. 747,

79 A.3d 1096 (2013). In In re L.J., 622 Pa. 126, 79 A.3d 1073, 1085–87

(2013), the Pennsylvania Supreme Court held that an appellate court

considers only the evidence presented at the suppression hearing and does

not also review trial evidence in determining the correctness of a suppression

court ruling. In addition, because the Commonwealth prevailed in the

suppression court on the issue Appellant raises herein, we consider only the

Commonwealth's evidence and so much of the defense evidence “as remains

uncontradicted when read in the context of the record as a whole.” Brown,

64 A.3d at 1104 (quoting Commonwealth v. Cauley, 10 A.3d 321, 325

(Pa.Super. 2010)). We may reverse only if the legal conclusions drawn from

the facts are in error. Id.

      Before we consider the merits of Appellant’s claim, we must first

determine whether he has preserved it for appellate review.         Appellant’s

principal argument before this Court is that the suppression court erred in

denying the motion to suppress “the evidence” that officers found in the book

bag Appellant had on his person at the time of his arrest. Brief for Appellant

at 11.   In support of his claim, Appellant cites to numerous Pennsylvania

Supreme Court cases in which officers’ searches incident to an arrest of a bag

or other container located in a vehicle were deemed illegal. Appellant claims

the trial court herein ignored the reasoning applied in those matters in finding

the search of his bag was constitutional because it was incident to a lawful


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arrest.2 Whatever the merits of this claim, Appellant waived it by failing to

present it to the trial court.

       Under the rules of criminal procedure, a motion to suppress evidence

generally shall be contained in an omnibus pretrial motion and filed prior to

trial or else it is waived. Pa.R.Crim.P. 578, 579(A); 581(A), (B). A defendant’s

suppression motion “shall state specifically and with particularity the evidence

sought to be suppressed, the grounds for the suppression, and the facts and

events in support thereof.” Pa.R.Crim.P. 581(D). In addition,

       “[A]ppellate review of an order denying suppression is limited to
       examination of the precise basis under which suppression initially
       was sought; no new theories of relief may be considered on
       appeal.” Commonwealth v. Little, 903 A.2d 1269, 1272–73
       (Pa.Super.2006); Commonwealth v. Thur, 906 A.2d 552, 566
       (Pa.Super.2006) (“When a defendant raises a suppression claim
       to the trial court and supports that claim with a particular
       argument or arguments, the defendant cannot then raise for the
       first    time    on    appeal    different  arguments      supporting
       suppression.”).
             It is well-settled law that motions to suppress evidence
             are decided prior to the beginning of trial. Moreover, pre-
             trial rulings on the suppression of evidence are final. In
             sum, suppression motions must ordinarily be made
             before the trial to the suppression court, they must be
             made with specificity and particularity as to the evidence
             sought to be suppressed and the reasons for the
             suppression, and the suppression court's determination
             is to be final, except in the case of evidence not earlier
             available.
       Commonwealth v. Metzer, 634 A.2d 228, 233 (Pa.Super. 1993)
       (citations omitted).
               Although the burden in suppression matters is on the
       Commonwealth to establish “that the challenged evidence was not
____________________________________________


2 While Appellant cites briefly to notes of testimony from September 8, 2017,
the suppression hearing occurred on July 10, 2015.

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      obtained in violation of the defendant's rights,” Pa.R.Crim.P.
      581(D), that burden is triggered only when the defendant
      “state[s] specifically and with particularity the evidence sought to
      be suppressed, the grounds for suppression, and the facts and
      events in support thereof.” Commonwealth v. McDonald, 881
      A.2d 858, 860 (Pa.Super. 2005). Thus, when a defendant's motion
      to suppress does not assert specifically the grounds for
      suppression, he or she cannot later complain that the
      Commonwealth failed to address a particular theory never
      expressed in that motion. McDonald, 881 A.2d at 860;
      Commonwealth v. Quaid, 871 A.2d 246, 249 (Pa.Super.2005)
      (“[W]hen a motion to suppress is not specific in asserting the
      evidence believed to have been unlawfully obtained and/or the
      basis for the unlawfulness, the defendant cannot complain if the
      Commonwealth fails to address the legality of the evidence the
      defendant wishes to contest.”).

Commonwealth v. Freeman, 128 A.3d 1231, 1241-42 (Pa.Super. 2015).

      Herein, although the trial court references a motion to suppress physical

evidence filed on Appellant’s behalf, the certified record does not indicate

Appellant ever filed a pretrial motion.     Nevertheless, at the outset of the

suppression hearing, Appellant indicated that the motion was “to suppress

physical evidence” because “the Philadelphia police officers involved in

arresting [Appellant] did not have reasonable suspicion or probable cause to

either arrest him or investigate therefore a gun ultimately recovered should

be suppressed.”    N.T., 7/10/15, at 3.     As a result, the Commonwealth’s

questioning of the investigating Officer McGorry centered around the events

that led to Appellant’s arrest. Id. at 4-8, 18-19.

      On cross-examination, Officer McGorry stated he asked Appellant why

he resisted officers, to which Appellant replied, “look, man, I just got shot and

I don’t want to go to jail for a gun.” Id. at 12. At that juncture, defense

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counsel indicated he “would amend [his] motion to suppress to include the

statements.” Id. The Commonwealth’s questions on redirect examination

concentrated on the events that led to Appellant’s statement. Id. at 14-16.

        Following Officer McGorry’s testimony, defense counsel indicated his

“argument [would] focus on the statements at this point.” Id. at 19. At the

conclusion of counsel’s argument, the following exchange ensued:

        The Court: All right. Then as to the firearm itself.
        [Defense counsel]: Your Honor, at this point I’ll focus on the
        statements.

Id. at 21.     Appellant presented no further argument.       In fact, prior to

rendering its final decision on the suppression motion, the suppression court

indicated that “[c]ounsel is essentially conceding that the arrest was lawful…,”

and Appellant did not object to this finding. The Commonwealth proceeded

to present argument pertaining to the admissibility of Appellant’s statements

only.   Id. at 21-22.

        As stated previously, Appellant baldly alleged at the outset of the

suppression hearing that the gun recovered from the book bag he was wearing

at the time if his arrest should be suppressed because officers lacked either

reasonable suspicion of probable cause to arrest him. N.T., 7/10/15, at 3.

However, Appellant abandoned this claim when he specifically indicated he

would not develop any argument in this regard and, rather, would focus on

statements Appellant made to police at the time of the arrest. As a result, the

Commonwealth did not focus on officers’ reasonable suspicion/probable cause


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to arrest or on the admissibility of the firearm in its presentation of evidence

and in its argument presented to the suppression court at the conclusion of

the hearing. Thus, the Commonwealth was deprived of the opportunity to

address these issues before the trial court. See Pa.R.Crim.P. 581(D);

Commonwealth v. Dixon, 997 A.2d 368, 376 (Pa.Super. 2010) (en banc),

appeal denied, 611 Pa. 654, 26 A.3d 482 (2011) (Commonwealth need not

present evidence to refute suppression theories not advanced in motion to

suppress).   Thus, Appellant’s concession below results in his waiver of the

issue he raises for our consideration.

      Moreover, in his appellate brief Appellant posits the officers’ recovery of

the gun did not fall under the parameters of the search incident to arrest

doctrine. Brief for Appellant at 11-14. This particular legal theory is distinct

from that which he articulated at the outset of the suppression hearing, and

later abandoned, when he challenged officers’ reasonable suspicion to

investigate him and their probable cause to place him under arrest. N.T.,

7/10/15, at 3. As a result, both the suppression court and this one lack an

appropriately developed record on which to rule. Accordingly, we find the issue




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waived for this reason as well.         Freeman, supra, 128 A.3d at 1241-42.3

       Judgment of sentence affirmed.4

____________________________________________


3 We also could have found waiver for Appellant’s failure to present specifically
this issue he develops in his brief in his statement of matters complained of
on appeal. Therein, he generally avers the suppression court failed to grant
his motion to suppress physical evidence “in full.” See Statement of Matters
Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b) at ¶ 1. However, he
did not identify for the trial court the precise issue he presents on appeal,
namely that the court failed “to suppress as evidence the firearm recovered
from a book bag during a warrantless search after [ ] Appellant was taken into
custody.” It is well-settled:

       Rule 1925 is intended to aid trial judges in identifying and focusing
       upon those issues which the parties plan to raise on appeal. Rule
       1925 is thus a crucial component of the appellate process. When
       a court has to guess what issues an appellant is appealing, that is
       not enough for meaningful review. When an appellant fails
       adequately to identify in a concise manner the issues sought to be
       pursued on appeal, the trial court is impeded in its preparation of
       a legal analysis which is pertinent to those issues. In other words,
       a Concise Statement which is too vague to allow the court to
       identify the issues raised on appeal is the functional equivalent of
       no Concise Statement at all. While [Commonwealth v.] Lord[,]
       [719 A.2d 306 (Pa. 1998) ] and its progeny have generally
       involved situations where an appellant completely fails to mention
       an issue in his Concise Statement, ... Lord ... also appl[ies] to
       Concise Statements which are so vague as to prevent the court
       from identifying the issue to be raised on appeal.

Commonwealth v. Ray, 134 A.3d 1109, 1114 (Pa.Super. 2016) (one citation

omitted).

4 The trial court found no merit to the issues Appellant raised in his concise
statement. In ruling on the suppression issue, the court reasoned that officers
had probable cause to arrest Appellant and searched his bag, which he had
been carrying on both of his shoulders as they approached, pursuant to that
lawful arrest. The court stressed that the bag was within Appellant’s arm’s
reach when he was arrested and “[r]easonably its contents posed an



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/18




____________________________________________


immediate danger to the officers particularly given [Appellant’s]
confrontational overreaction to being stopped for public urination and indecent
exposure.” Trial Court Opinion, filed 9/8/17, at 9. While we do not reach the
merits of Appellant’s claim, “this [C]ourt may affirm the decision of the trial
court if there is any basis on the record to support the trial court's action; this
is so even if we rely on a different basis in our decision to affirm.”
Commonwealth v. O'Drain, 829 A.2d 316, 322, n. 7 (Pa.Super.
2003)(ctations omitted).



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