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HomeMy WebLinkAbout98-0959 criminal appeal3. S68010/99 COMMONWEALTH OF PENNSYLVANIA, · Appellee ' : V. : : ROBERT ALAN KIEHL, · : Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA No. 56 MDA 1999 Appeal from the 3udgment of Sentence December 1, 1998 Docketed December 3, 1998 In the Court of Common Pleas of Cumberland County Criminal Division, No. 98-0959 031 CON~DEPuflION ~F, it is now here ordered and adjudged by this Court that the judgment of the Court of Common Pleas of CUMBERLAND County be, and the same iS hereby AFFIRMED. Dated: NOVEMBER 30, 1999 BY TIlE COURT: J. S68010/99 COMMONWEALTH OF PENNSYLVANIA, Appellee V. ROBERT ALAN KIEHL, Appellant Before' MEMORANDUM' This is a IN THE SUPERIOR COURT OF PEN NSYLVANIA No. 56 MDA 1999 Appeal from the Judgment of Sentence December 1, 1998 Docketed December 3, 1998 In the Court of Common Pleas of Cumberland County Criminal Division, No. 98-0959 HUDOCK, ]., FORD ELLIOTT, ]., and CERCONE, P.].E. F I L E O NOV 8 0 direct appeal from a judgment of 1999 sentence following Appellant's conviction for criminal mischief and discharging an air rifle,z We affirm. The facts of record, viewed in a light most favorable to the Commonwealth as verdict winner as we must, are as follows: Patrolman Tracy King (hereinafter "King") was monitoring activity near Lynn Richard Creason's (hereinafter "Creason") residence on March 8, 1998 at about 8:30 p.m. due to reports of several incidents of vandalism to Creason's vehicles. by on the street, Creason's van and utility vehicle one block from Soon after inspecting Creason's van and parking close- King observed a sport utility vehicle slow as it neared heard a pellet gun being fired. King stopped the sport Creason's van. Appellant was operating the z 18 Pa. C.S.A. § 3304 (a)(1) and § 6304 (b)(2), respectively. .]. S68010/99 sport utility vehicle, and King obtained a search warrant for Appellant's vehicle. King found an unloaded single shot pellet gun in the vehicle. Upon subsequent inspection of the Creason van, King .and Creason independently identified a mark that had not previously been there. 2. Trial Court Opinion at Appellant proceeded to a nonjury trial on December 1, 1998 before the Honorable Edgar B. Bayley in the Court of Common Pleas of Cumberland County and was convicted of the two aforementioned charges and sentenced as 'follows. On the summary charge of criminal mischief, Appellant was ordered to pay the costs of prosecution and a $300.00 fine, make restitution of $364.96, and undergo a period of unsupervised probation for ninety (90) days on the condition of remaining on good behavior and having no contact, direct or indirect, with Lynn Creason. On the summary charge of discharging an air rifle, Appellant was also ordered to pay the costs of prosecution and undergo a period of unsupervised probation for ninety (90) days consecutive to the period of unsupervised probation imposed on the count of criminal mischief on the condition of remaining on good behavior and having no contact, direct or indirect, with Lynn Creason. Appellant filed his timely appeal to this Court on December 22, 1998. Appellant raises three (3) issues for our review: I. WHETHER THE EV]:DENCE WAS SUFF]:C1~ENT TO SUSTA:[N CONV]:CTI:ONS FOR CR]:M]:NAL M]:SCW[EF AND SALE AND USE OF A]:R RI:FLES? -2- J. S68010/99 II. WHETHER A SEARCH WARRANT APPLICATION WHICH DOES NOT INDICATE THE SOURCE OF ALLEGATIONS AND WHICH FAILS TO INCLUDE ANY ALLEGATION OF ANY INCIDENT OCCURRING WITHIN TEN DAYS OF THE DATE IN QUESTION INVOLVING TWO OF THE THREE ITEMS TO BE SEARCHED FOR LACKS PROBABLE CAUSE AND/OR IS OVERBROAD REQUIRES THAT EVIDENCE OBTAINED AS A RESULT BE SUPPRESSED? III. WHETHER THE COURT ERRED IN PERMII-i'ING EVIDENCE OF INCIDENTS WHICH OCCURRED ON DATES OTHER THAN MARCH 8, 1998 SINCE EVIDENCE OF SUCH INCIDENTS HAD NO PROBATIVE VALUE BUT HAD A PREJUDICIAL EFFECT? Appellant's Brief at 4. which he raises them. We shall consider Appellant's issues in the order in I. SUFFICIENCY OF THE EVIDENCE Appellant asserts that the evidence failed to prove beyond a reasonable doubt the elements of each offense for three reasons: (1) no pellet was recovered; (2) the pellet gun was unloaded; (3) King may have mistaken another sound for the firing of the pellet gun. Appellant's Brief at 8. Appellant also maintains that it is unreasonable to infer that he fired the pellet gun because either he would have had to unload the pellet gun before King stopped the vehicle, or he would have had to carry a loaded single shot pellet gun and no other pellets. Our Supreme Court has stated that: It]he standard for reviewing the sufficiency of the evidence is whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, is -3- 3. S68010/99 sufficient to support all the elements of the offenses beyond a reasonable doubt. Commonwealth v. Baez, 554 Pa. 66, 82, 720 A.2d 711, 718 (1998). See also Commonwealth v. Williams, 554 Pa. 1, 9, 720 A.2d 679, 682-683 (1998); Commonwealth v. Montini, 712 A.2d 761, 767 (Pa.Super. 1998). "The question of any doubt is for the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of a fact can be drawn from the combined circumstances." Commonwealth v. Rosado, 684 A.2d 605 (Pa.Super. 1996). Further, "it is within the province of fact finder to determine the weight to be given to the testimony and to believe all, part, or none of the evidence." Commonwealth v. Baskerville, 681 A.2d 195, 199 (Pa. Super. 1996), appeal denied 547 Pa. 723, 689 A.2d 230 (1997) (citations omitted). A person is guilty of criminal mischief if he damages tangible property of another intentionally, recklessly, or by negligence in the employment of fire, explosives, or other dangerous means... (relating to causing or risking catastrophe). 18 Pa. C.S.A. § 3304(a)(1). To sustain a conviction for carrying or discharging an air rifle, the Commonwealth must show that an individual discharged any air rifle from or across any highway or public land or any public place other than on a properly constructed target range. 18 Pa. C.S.A. § 6304(b)(2). Upon our careful review of the evidence presented at trial, we agree with the Commonwealth's position that the evidence was sufficient to sustain -4- 3. S68010/99 Appellant's convictions for both offenses. The Commonwealth introduced multiple pieces of evidence to estabJish that Appellant intentionally damaged tangible property of another in the employment of a dangerous means. The fact that King observed Appellant's car slow as it neared Creason's van, heard a pellet gun being fired, and pulled over Appellant immediately thereafter supports the charge of criminal mischief. N.T., 12/1/98, at 8. Corroborating King's testimony are both his and Creason's independent identification of the new damage to the van. N.T., 12/1/98, at 11 & 25. FinAlly, Creason's testimony that he and Appellant "are not on very good terms with each other" to "pu[t] it mildly" point to a possible motive for Appellant to engage in criminal mischief. N.T., 12/1/98, at 28. As for the charge of carrying or discharging an air rifle, the pellet gun found' in Appellant's vehicle clearly qualifies as an "air rifle" which is defined under 18 Pa.C.S.A. § 6304(g) as "any air gun, air pistol, spring gun, spring pistol, B-B gun, or any implement that is not a firearm, which impels a pellet of any kind with a force that can reasonably be expected to cause bodily harm." King's testimony that Park Avenue, the location of the incident in question, is a public roadway and not a constructed target range further supports this second charge. N.T., 12/1/98, at 12. Given all of the evidence of the combined circumstances presented at trial, Appellant's convictions for criminal mischief and carrying and discharging an air rifle were supported beyond a reasonable doubt. -5- J. S68010/99 Therefore, as the record evidence sufficiently supports the Appellant's convictions, we will not disturb the fact-finder's decision. I'T. WHETHER EVlrDENCE SHOULD HAVE BEEN SUPPRESSED WHERE THE SEARCH WARRANT CONTATNED STALE I'NFORMATI'ON, WAS OVERBROAD, AND WAS BASED UPON AN UNRELTABLE SOURCE OF I'NFORMATTON? Appellant first argues that the search warrant was over-broad for including roofing nails. Appellant's Brief at 10. Appellant asserts that because no roofing nails were involved in the incident on March 8, 1998, no probable cause existed to support including them in the search warrant. Id. Appellant thus concludes that their inclusion renders the warrant invalid. Id. Our Supreme Court has set forth the following standard for review of probable cause supporting a search warrant previously: In determining the validity of a search warrant, this Court has adopted the totality of the circumstances test articulated by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983).[2] 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. 2 The Pennsylvania Supreme Court adopted the totality of the circumstances test in Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 (1985). -6- 3. S68010/99 Commonwealth v. Rompiila, 539 Pa. 499, 511-512, 653 A.2d 626, 632 (1995). Therefore An affidavit for a search warrant is to be tested by this Court with common sense and a realistic manner, and not subjected to overly technical interpretations; the magistrate's determination of probable cause is to be accorded great deference on review. The law is clear that before a search warrant may issue, facts supported by oath or affirmation must be presented to the issuing officer which will justify a finding of probable cause. For the warrant to be constitutionally valid, the issuing officer must conclude that probable cause exists at the time the warrant is issued. Such a conclusion may not be made arbitrarily and must be based on facts that are closely related in time to the date the warrant is issued. Commonwealth v. Days, 718 A.2d 797, 800 (Pa. Super. 1998). The totality of the circumstances in this case involve a pattern of conduct; namely, the vandalism of Creason's van over a six-month period beginning in October 1997 and continuing into 1998. N.T., 12/1/98, at 5-6; Affidavit of Probable Cause, Record of Evidence, at 3; Search Warrant and Affidavit, Omnibus Pretrial Hearing, Commonwealth's Exhibit #1. The affidavit of probable cause listed twelve (12) separate incidents of vandalism to Creason's vehicle over a five (5) month span. Of the twelve (12) incidents, eight (8) involved the placement of roofing nails around Creason's vehicle strongly suggesting that the use of roofing nails was an integral part of the campaign of vandalistic terrorism being waged against Creason. The last incident of placement of roofing nails occurred on February 26th 1998 five days prior to the application for the warrant. Because of these factors, -7- 3. S68010/99 we conclude that the magistrate had a substantial basis for finding that probable cause existed for issuing a search warrant that included roofing nails.3 Appellant next contends that "the affidavit fails to include information providing probable cause to believe the search for items would be found in the vehicle on March 8, 1998." .Appellant's Brief at 10. Appellant also contends that "many of the averments in the affidavit.., refer to incidents occurring at least ten days, if not weeks, before March 8 without providing a basis to believe the items would be found there that day." /'d. As stated above, the appropriate standard for review of probable cause supporting a search warrant requires viewing the information offered in a "common sense and a realistic manner, and not subjected to overly technical interpretations in a common sense, non-technical manner." Days~ supra, at 800. To the issue of "staleness," this Court has previously stated: Although probable cause cannot as a general rule be founded upon stale or temporarily remote information, corroborative information need not be current for it to be properly 3 Furthermore, the doctrine of severance permits invalid portions of a search warrant to be stricken and the remaining portions to stand as long as they describe with particularity the evidence to be seized. See Commonwealth v. Bagley~ 596 A.2d 811,824 (Pa. Super. 1991)("Where a search warrant authorizes seizure of some items for which there is probable cause and other items for which there is no probable cause, the warrant is not wholly invalid. In such cases, suppression will be required only of the evidence which was seized without probable cause.") Thus, even if we were to hold that probable cause was lacking for the inclusion of roofing nails in the search warrant, this would not invalidate the entire warrant and justify suppression of the pellet gun. -8- 3. S68010/99 considered by the magistrate so long as it relates to prior conduct sufficiently similar to the acts in question. Commonwealth v. Schickler, 679 A.2d 1291, 1292, (Pa.Super. 1996), quoting Commonwealth v. Weidenmoyer, 518 Pa. 2, 10, 539 A.2d 1291, 1295 (1988) (citations omitted). In Schickler, our Court held that use of information obtained seven months prior to the alleged incident of narcotics possession was permissible and supportive of the magistrate's issuance of the search warrant. We noted that the stale information in and of itself would have been insufficient to support a finding of probable cause. Nevertheless, we held that the seven month old information considered in conjunction with a canine sniff and a policewoman's personal on the scene observations were sufficient to support the search warrant, _rd. at 1293. In the case sub judice, the information in the warrant related to incidents of damage inflicted upon Creason's vehicle which were of a similar nature to the incident Officer King observed. The inclusion of the past incidents of vandalism in the affidavit of probable cause merely served to corroborate Officer King's personal observations. Thus, as in Schickler, the information gleaned from a prior time period examined in combination with the contemporaneous police observation of illegal activity supported the magistrate's issuance of the search warrant. In addition, Appellant asserts that "the search warrant application also fails to provide sufficient information regarding the source or reliability of -9- 3. S68010/99 information contained therein." Appellant's Brief at 10. Appellant maintains that a lack of corroborating evidence for the reference to the six-month span of vandalism compromises the reliability of that information, and thus, renders the search warrant defective. Zd. Our Court has previously stated that the trustworthiness of an informant may be presumed when the individual is an "identified eyewitness who voluntarily reports [their] observations to the police." Commonwealth v. Waltson, 703 A.2d 518, 522 (Pa.Super. 1997). Aisc a sea~ch warrant may be issued whenever the affiant's own personal observations give rise to a reasonable belief that objects related to a specific criminal activity would be found in a particular place. Commonwealth v. Bleigh, 586 A.2d 450, 454 (Pa.Super. 1991), appeal denied 528 Pa. 607, 596 A.2d 154, (1991). In view of the meticulously detailed and dated observations of the repeated incidents of vandalism to his vehicle which Creason provided to the police and Officer King's testimony regarding his personal observation of the March 8th incident, we conclude that the magistrate had reliable information from two separate credible sources upon which he could base his decision to issue the search warrant. III. WHETHER THE COURT ERRED BY PERMITTING EVIDENCE OF OTHER INCIDENTS OF VANDALISM? Appellant contends that "evidence of prior incidents of vandalism on the Creason vehicles lacked probative value" in its failure to link Appellant to those incidents. Appellant thus concludes that the evidence should not have - 10- ]. S68010/99 been admitted. Appellant's Brief at 12. Appellant further contends that such evidence served rather to prejudice him, and as a result, entitles him to a new trial. /'d. Appellant contends that "evidence of prior incidents of vandalism on the Creason vehicles lacked probative value" in its failure to link Appellant to those incidents. Appellant thus concludes that the evidence should not have been admitted. /'d. Appellant further contends that such evidence served rather to prejudice him, and as a result, entitles him to a new trial. /'d. Yet, in'i~'is allegations, Appellant neglects to point this Court to those specific articles of evidence in the Record that should not have been admitted. The Superior Court must decide cases on the basis of facts of record and not on allegations in a party's appeal brief. Commonwealth'v. Nel$on~ 567 A.2d 673, 676 (Pa.Super. 1989), appeal denied, 527 Pa. 623, 592 A.2d 44 (1990). See Commonwealth v. Russell~ 665 A.2d 1239, :1246 (Pa.Super. 1995) (Superior Court cannot consider issue when argument lacks full discussion and citation to relevant authority); Commonwealth v. Zewe~ 663 A.2d :195, :199 (Pa.Super. 1995) (argument section of appellant's brief must include relevant discussion of points raised along with citations to pertinent authorities). After our careful reading of issue number three in Appellant's Brief, we conclude that the absence of citations to the Record evidence leave the argument undeveloped, and thus, we deem it abandoned. -:11- 3. S68010/99 However our independent review of the record compels us to agree with the learned Trial 3udge who noted: The Commonwealth did not introduce any evidence that [the Appellant] committed the prior vandalism. Rather, it introduced evidence that Creason's vehicle had been vandalized on prior occasions (1) to show why Officer King was on stakeout on the evening of March 8, 1998, and (2) to prove that the damage the Commonwealth maintained was caused by the pellet fired by [Appellant] into the vehicle on March 8th did not occur prior to that date. Trial Court Opinion at 5. Moreover since Appellant was tried by a judge sitting without a jury, we may therefore presume that the judge in his capacity as factfinder disregarded improper evidence including any evidence of prior criminal acts. Commonwealth v. Zrwin, 639 A.2d 52, 54 (Pa. Super. 1994), appeal denied 540 Pa. 629, 658 A.2d 793 (1994). in conclusion, the record evidence sufficiently supports the Appellant's convictions. Accordingly, we are compelled to affirm Appellant's convictions in this matter. 3udgment of sentence affirmed. - 12-