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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

RICHARD CAVALLERO, II

                            Appellant                No. 58 WDA 2016


           Appeal from the Judgment of Sentence October 14, 2013
              In the Court of Common Pleas of McKean County
             Criminal Division at No(s): CP-42-CR-0000486-2012


BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                        FILED AUGUST 10, 2016

        Richard Cavallero, II, appeals from the judgment of sentence entered

in the Court of Common Pleas of McKean County following his jury-trial

convictions for criminal conspiracy1/robbery,2 criminal solicitation3/robbery,




____________________________________________


1
    18 Pa.C.S.A. § 903.
2
    18 Pa.C.S.A. § 3701.
3
    18 Pa.C.S.A. § 902(a).
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criminal conspiracy/burglary,4 criminal conspiracy/criminal trespass-enter

structure,5 and criminal conspiracy/simple assault.6 Upon review, we affirm.

        The charges in this matter relate to the robbery of a fifty-year-old

woman that occurred in her apartment. The testimony at trial revealed the

following.     The victim, Sheila Goodnow, had a prescription for Fentanyl

patches to help manage her pain.               On July 26, 2012, at about 10:00 PM,

after Goodnow had recently filled her prescription, Tyler Sherman knocked

on Goodnow’s door, claiming to be a police officer. When Goodnow opened

the door, Sherman pushed her onto a seat, put a knife to her throat,

covered her eyes, and demanded her Fentanyl patches.                  Goodnow told

Sherman to take one off her arm, which he did, and ran out of the

apartment.

        Jessica Smith was walking down the street when she heard a woman

scream. Smith saw a man dressed in all black run down the street and jump

into the passenger seat of a red pick-up truck that drove away with the

lights off.    She noted the license plate and phoned the police with the

information.



____________________________________________


4
    18 Pa.C.S.A. § 3502.
5
    18 Pa.C.S.A. § 3503.
6
    18 Pa.C.S.A. § 2701.




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        Michelle Distrola, a practical nurse working for the Smethport Family

Practice, testified that on the date in question, Cavallero and Goodnow were

both at Smethport Family Practice.      Goodnow was discussing her Fentanyl

patch medication at the reception window while Cavallero was in the waiting

room.

        Jessica Abplanalp, Sherman’s girlfriend, testified that on July 26, 2012,

Cavallero came to the house she shared with Sherman to cut her hair. She

overheard a conversation between Cavallero and Sherman, in which

Cavallero told Sherman he knew of a woman that had just received a

Fentanyl prescription and it would be easy to take them from her. Cavallero

told Sherman he needed his help because the woman knew who he was;

thus, around 9:00 PM, Sherman left the house dressed in dark clothing and

got into Cavallero’s red pick-up truck. Abplanalp testified Sherman returned

about 40 minutes later, and told her he had gone into a woman’s house and

taken a Fentanyl patch from her arm.

        Sherman testified, corroborating that Cavallero had informed him

about the woman with the Fentanyl prescription and that it would be easy to

take them. Sherman further stated that he and Cavallero discussed robbing

her. After entering Cavallero’s truck to go to Goodnow’s building, Sherman

told Cavallero he was worried someone else would be in the apartment.

Cavallero indicated he had a knife, which Sherman took and used in the

robbery. Sherman also used a bandana that had been in Cavallero’s truck to




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cover his face. After arriving at the apartment building, Cavallero directed

Sherman to Goodnow’s apartment.

        Assistant Chief Mike Ward of the Bradford City Police Department

received information regarding the incident and suspected Abplanalp might

have relevant information.        Chief Ward contacted her, and based on their

conversation, began preparing an application for a search warrant. On July

27, 2012, at about 3:00 PM, Cavallero was apprehended while standing with

his red pick-up truck outside the police station, where he was given

Miranda warnings.7         A search warrant was executed on his truck, from

which a black bandana and knife were recovered. Sherman was also taken

into custody and interviewed, and he admitted that he had robbed Goodnow.

He further stated he had used the black bandana and the knife from

Cavallero’s truck in the robbery.

        On July 27, 2012, Cavallero was arrested and charged with the

aforementioned conspiracy and solicitation offenses. On August 6, 2013, a

jury found Cavallero guilty on all counts.       On October 14, 2013, Cavallero

was sentenced to an aggregate sentence of 7½ to 17 years’ incarceration.

Cavallero filed a timely notice of appeal and court-ordered concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

        On appeal, Cavallero raises two issues for our review:


____________________________________________


7
    Miranda v. Arizona, 384 U.S. 436 (1966).



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       I.   Did the [t]rial [c]ourt err when it denied [Cavallero’s]
       [m]otion to [s]uppress [e]vidence as it pertains to a black
       bandana, when the [a]pplication for [s]earch [w]arrant only
       describes a “blue bandana,” and a Case fixed-blade knife, when
       the same [a]pplication for [s]earch [w]arrant merely describes
       “a knife” with no particularity?

       II. Were the [j]ury’s verdicts supported by sufficient evidence to
       convict    [Cavallero]  of    [c]riminal   [c]onspiracy/[r]obbery,
       [c]riminal [c]onspiracy/[b]urglary, [c]riminal [c]onspiracy/
       [c]riminal   [t]respass-[e]nter    [s]tructure,  and     [c]riminal
       [c]onspiracy/[s]imple [a]ssault?[8]

Brief for Appellant, at 4.

       Cavallero first challenges the sufficiency of the evidence. We review

the sufficiency of evidence according to the following standard:

       [W]e evaluate the record in the light most favorable to the
       verdict winner giving the prosecution the benefit of all
       reasonable inferences to be drawn from the evidence. Evidence
       will be deemed sufficient to support the verdict when it
       establishes each material element of the crime charged and the
       commission thereof by the accused, beyond a reasonable doubt.
       Nevertheless, the Commonwealth need not establish guilt to a
       mathematical certainty. Any doubt about the defendant’s guilt is
       to be resolved by the fact finder unless the evidence is so weak
       and inconclusive that, as a matter of law, no probability of fact
       can be drawn from the combined circumstances.

Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013)

(internal citations and quotation marks omitted).



____________________________________________


8
  Cavallero does not include in his statement of questions a claim that the
conviction for criminal solicitation was not supported by sufficient evidence;
however, he does include that charge in the argument section of his brief.
Because we are able to engage in meaningful review of the claim, we will not
consider it waived.



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      “[T]he trier of fact, while passing upon the credibility of the witnesses

and weight of the evidence produced, is free to believe all, part or none of

the evidence.” Commonwealth v. Valette, 613 A.2d 548, 549 (Pa. 1992)

(internal citations omitted).    In applying this test, we may not weigh the

evidence   and   substitute     our   judgment   for   that   of   the   fact-finder.

Commonwealth v. Blystone, 617 A.2d 778, 780 (Pa. Super. 1992).

      Here, four of Cavallero’s five convictions were for conspiracy.

Sherman committed the acts constituting the underlying crimes of robbery,

burglary, criminal trespass, and simple assault, while Cavallero was involved

in planning and aiding Sherman in carrying out those acts.

      To establish robbery, the Commonwealth must show:

      [I]n the course of committing a theft, [a person]: (i) inflicts
      serious bodily injury upon another; (ii) threatens another with or
      intentionally puts him in fear of immediate serious bodily injury;
      (iii) commits or threatens immediately to commit any felony of
      the first or second degree; (iv) inflicts bodily injury upon another
      or threatens with or intentionally puts him in fear of immediate
      bodily injury; (v) physically takes or removes the property from
      the person of another by force however slight[.]

18 Pa.C.S.A. § 3701.

      To establish burglary, the Commonwealth must show: “[W]ith the

intent to commit a crime therein, the person: (1) enters a building or

occupied structure, or separately secured or occupied portion thereof that is

adapted for overnight accommodations in which at the time of the offense

any person is present[.]” 18 Pa.C.S.A. § 3502.




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        To establish criminal trespass, the Commonwealth must show:

“[K]nowing that he is not licensed or privileged to do so, [a person]: (i)

enters, gains entry by subterfuge or surreptitiously remains in any building

or occupied structure or separately secured or occupied portion thereof; or

(ii) breaks into any building or occupied structure or separately secured or

occupied portion thereof.” 18 Pa.C.S.A. § 3503(a).

        To establish simple assault, the Commonwealth must show an

individual “(1) attempts to cause or intentionally, knowingly or recklessly

causes bodily injury to another . . . [or] (3) attempts by physical menace to

put another in fear of imminent serious bodily injury[.]”        18 Pa.C.S.A. §

2701.

        Here, the Commonwealth presented evidence that Sherman knocked

on Goodnow’s residence pretending to be a police officer, pushed her onto a

seat, put a knife to her throat and demanded her Fentanyl patches. In the

course of a theft, he put Goodnow in fear of immediate serious bodily injury,

thus establishing robbery. With the intent to perform a robbery, Sherman

entered    Goodnow’s     apartment,   a     building   adapted   for   overnight

accommodations where she was present at the time of the offense,

establishing burglary.     He gained entry to an occupied structure by

subterfuge, claiming to be a police officer, establishing criminal trespass.

Finally, he attempted to put Goodnow in fear of imminent serious bodily

injury by putting the knife to her throat, establishing simple assault.




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      Cavallero alleges that the Commonwealth’s evidence was insufficient

to sustain his convictions for criminal conspiracy with respect to the above

crimes. Conspiracy is defined, in relevant part, as follows:

      A person is guilty of conspiracy with another person or persons
      to commit a crime if with the intent of promoting or facilitating
      its commission he:       (1) agrees with such other person or
      persons that they or one or more of them will engage in conduct
      which constitutes such crime or an attempt or solicitation to
      commit such crime; or (2) agrees to aid such other person or
      persons in the planning or commission of such crime or of an
      attempt or solicitation to commit such crime[.]

18 Pa.C.S.A. § 903.

      “[A] conspiracy conviction requires proof of (1) an intent to commit or

aid in an unlawful act, (2) an agreement with a co-conspirator and (3) an

overt act in furtherance of the conspiracy.” Commonwealth v. Spotz, 716

A.2d 580, 592 (Pa. 1998).        A conspiracy conviction requires proof of a

shared criminal intent; however, because it is difficult to prove an explicit or

formal agreement to commit an unlawful act, the agreement may be proven

by circumstantial evidence, such as the relations, conduct, or circumstances

of the parties of overt acts of the co-conspirators. Id.

      The agreement to engage in an unlawful act creates a theory of

vicarious liability called conspiracy liability. Commonwealth v. Hannibal,

753 A.2d 1265, 1273 (Pa. 2000).            This liability theory “assigns legal

culpability equally to all members of the conspiracy. All co-conspirators are

responsible   for   actions   undertaken   in furtherance   of the   conspiracy

regardless of their individual knowledge of such actions and regardless of


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which members of the conspiracy undertook the action.”              Id. (internal

citations omitted).

      Instantly,   the   Commonwealth      presented   sufficient   evidence   to

establish criminal conspiracy. The evidence, when viewed in the light most

favorable to the Commonwealth as verdict winner, shows that Cavallero was

present in the waiting room of the Smethport Family Practice when Goodnow

discussed her Fentanyl prescription.    Later that same day, he went to cut

Abplanalp’s hair and told Sherman that he knew of a woman with a Fentanyl

prescription and that it would be easy to take her patches. Cavallero elicited

Sherman’s help because he believed Goodnow would recognize him.                He

then returned to Sherman’s home later in the evening and drove Sherman to

Goodnow’s residence, providing him with a knife, a bandana to cover his

face, and the location of the apartment.       Finally, Cavallero provided the

escape vehicle, driving away after the robbery with his lights off, evincing his

knowledge that Sherman had committed a criminal act.                All of these

relations, circumstances, and actions provided sufficient evidence for the

jury to find a criminal conspiracy. Spotz, supra.

      Furthermore, because a criminal conspiracy to commit a robbery was

found, all the overt criminal acts Sherman committed in furtherance of that

conspiracy are imputable to Cavallero through co-conspirator liability.

Hannibal, supra. Therefore, we find that there was sufficient evidence to

support the jury’s verdicts on the conspiracy charges.




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      Cavallero also argues that the evidence was insufficient to prove

criminal solicitation. “A person is guilty of solicitation to commit a crime if

with the intent of promoting or facilitating its commission he commands,

encourages, or requests another person to engage in specific conduct which

would constitute such crime[.]” 18 Pa.C.S.A. § 902(a). Here, the evidence

demonstrated that Cavallero informed Sherman that he needed his help for

fear of being recognized, and provided transportation and items needed for

the robbery. Accordingly, the Commonwealth submitted sufficient evidence

to support the jury’s verdict on criminal solicitation.

      Cavallero’s final claim is that the trial court erred when it denied his

motion to suppress evidence, specifically, the black bandana and “Case

fixed-blade knife.”     Cavallero argues that the bandana described in the

search warrant is a “blue bandana” and a black bandana was seized; thus it

should have been suppressed because of the discrepancy between the

description in the warrant and the actual item seized.          He further alleges

that because a knife is a common item and the one used in the robbery had

distinct   features,   the   knife   should   have   been   described   with   more

particularity in the warrant. This claim is meritless.

      We review the denial of a motion to suppress physical evidence as

follows:

      Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is limited to determining
      whether the factual findings are supported by the record and
      whether the legal conclusions drawn from those facts are
      correct.

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      [W]e may consider only the evidence of the prosecution 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
      record supports the findings of the suppression court, we are
      bound by those facts and may reverse only if the court erred in
      reaching its legal conclusions based upon the facts.

Commonwealth v. Houck, 102 A.3d 443, 455 (Pa. Super. 2014) (internal

citations and quotations omitted). Here, the record supports the trial court’s

factual findings, so we proceed to examine the court’s legal conclusions.

      A search warrant may not be used as a general investigatory tool to

uncover evidence of a crime.     In re Casale, 517 A.2d 1260, 1263 (Pa.

1986).    The necessary components of a search warrant are set forth in

Pa.R.Crim.P. 205, which provides as follows:

      Each 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 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, or; (b)
      when the warrant is issued for a prospective event, only after
      the specified event has occurred; (5) direct that the warrant be
      served in the daytime unless otherwise authorized on the
      warrant . . .; (6) designate by title the judicial officer to whom
      the warrant shall be returned; (7) certify that the issuing
      authority has found probable cause based upon the facts sworn
      to or affirmed before the issuing authority by written affidavit(s)
      attached to the warrant; and (8) when applicable, certify on the
      face of the warrant that for good cause shown the affidavit(s) is
      sealed pursuant to Rule 211 and state the length of time the
      affidavit(s) will be sealed.

Pa.R.Crim.P. 205.

         However, even though Rule 205 forbids general or exploratory

searches, search warrants should “be read in common sense fashion and



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should not be invalidated by hypertechnical interpretations. This may mean,

for instance, that when an exact description of a particular item is not

possible, a generic description will suffice.”   Pa.R.Crim.P. 205 (cmt.); see

also, Commonwealth v. Matthews, 285 A.2d 510, 513-14 (Pa. 1971)

(affirming denial of motion to suppress because, “[t]o rule otherwise, merely

because the warrant specified a ‘pocket knife’ whereas ‘a kitchen knife’ was

seized would be hypertechnical and contrary to the common-sense approach

mandated by [the United States Supreme Court]”).

      Under the Pennsylvania Constitution, the items sought to be seized

must be described as nearly as possible before the issuance of a warrant.

Pa. Const. Art. I, § 8.     When assessing “the validity of the description

contained in a warrant, a court must determine for what items probable

cause existed.”   Commonwealth v. Grossman, 555 A.2d, 896, 900 (Pa.

1989). The sufficiency of the description is measured against those items

for which probable cause existed, and any unreasonable discrepancies

between the items and the description require suppression. Id.

      Instantly, the application for the search warrant lists, inter alia, a “blue

bandana” and “a knife.”     Although a discrepancy does exist between the

black bandana seized and the description contained in the search warrant

application, it is not an unreasonable discrepancy warranting suppression.

The description of the items for which probable cause existed were based on

the testimony of the victim, Goodnow, and an eyewitness, Smith.               The

women testified that the attacker was wearing either “all black” or, as stated

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in the probable cause affidavit, “dark” clothing. Both women also testified

that it was approximately 10:00 PM and pitch-black outside. Therefore, it

would be contrary to common sense and “hypertechnical” to invalidate the

search warrant describing a bandana as blue when it is in fact black, when

the victim managed only to briefly glimpse her attacker before being

blindfolded. Pa.R.Crim.P. 205; Matthews, supra.

      Cavallero also claims the knife should have been described with more

particularity because it is a “Case fixed-blade knife.” Goodnow testified that

she only briefly saw the knife before Sherman put his hands over her eyes,

but that it felt “like a blade” against her throat. N.T. Trial, 8/15/13, at 52.

Because an exact description of the particular item was not possible, and

because we are convinced that the search in this case was not exploratory, a

“generic description” is sufficient. Pa.R.Crim.P. 205. Accordingly, the trial

court did not err in declining to suppress the knife.

      In sum, we find that the Commonwealth presented sufficient evidence

to support the jury’s verdicts for all five counts and that the trial court did

not err in denying Cavallero’s motion to suppress.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/10/2016




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