Com. v. Coleman, N.

J-S76041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NAKEEM COLEMAN

Appellant No. 8 EDA 2016

Appeal from the Judgment of Sentence December 14, 2015

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0005773-2014

CP-46-CR-0007537-2014

BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 18, 2016

Appellant Nakeem Coleman appeals the judgment of sentence entered

in the Court of Common Pleas of Montgomery County on December 14,

2015, after a jury convicted him of two counts of burglary and one count of

attempted burglary with a person present.1 On appeal, Appellant challenges

the trial court’s denial of his motion to suppress certain evidence along with

the sufficiency and the weight of the evidence to sustain his convictions. We

affirm.

The trial court detailed the facts and procedural history herein as

follows:

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1

18 Pa.C.S.A. §§ 3502(a)(2), 901(a), and 3502(a)(1), respectively.

J-S76041-16

[Appellant’s] convictions arose out of two residential

break-ins in the same Glenside, Montgomery County

neighborhood which occurred on July 22, 2014 and July 23,

2014, and Coleman's attempt to break into a third neighborhood

home on July 25, 2014.

[Appellant] was identified as the perpetrator of all three

break–ins based in part upon Detective Steven Fink's undercover

surveillance investigation of the Glenside neighborhood on July

25, 2014, in which he caught [Appellant] in the act. Upon seeing

the burglary in progress, Detective Fink radioed for assistance at

which time [Appellant] took off running. [Appellant] was

apprehended not long after, when he tried to board a SEPTA

bus. Incident to that arrest, a search of [Appellant’s] person

turned up his cell phone and his keys. [Appellant] later

consented to a search of his phone and gave Detective Fink a

statement. [Appellant’s] convictions for the completed burglaries

were based upon analysis of his cell phone records and evidence

linking him to the July 25, 2014, attempted burglary such as the

texts messages and the similarities between all three incidents.

Prior to trial, a suppression hearing was held on June 19,

2015, wherein [Appellant] contested his arrest, arguing that

Detective Fink had no probable cause for the arrest, and

challenged the search of his cellphone, arguing that his consent

to the phone search was for the limited purpose of his activities

on the day he was taken into custody. (Motion to Suppress

6/19/15 pp. 3-4). At the conclusion of the hearing and after

argument from the Commonwealth and defense counsel, this

Court issued its findings of fact and conclusions of law.

Suppression was denied.

On September 10, 2015, [Appellant] proceeded to a two-

day jury trial. At trial the Commonwealth relied on the testimony

of Detective Fink, Detective Shawn Williams, the testimony of

the victims and the expert testimony of Detective Mark Minzola,

an expert in the field of cellular telephone records analysis. The

defense presented two witnesses, Mary Coleman-Edmond,

[Appellant’s] mother and Isaiah Turner, [Appellant’s] friend.

Finally, the Commonwealth called a witness to provide rebuttal

testimony.

At trial the following facts were established. The

Commonwealth first called Detective Shawn Williams of the

Abington Police Department to testify. On July 25, 2014,

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Detective Williams was working a plainclothes burglary detail

because of two prior burglaries in Glenside. (Trial by Jury, V. 1,

9/10/15 p. 19). On that date, the detective was called by

Detective Steven Fink to respond to the location of 2333 Geneva

Avenue in Glenside. When he arrived he observed [Appellant] at

the front door, knocking. Id. at 19-20. [Appellant] came down

the front steps, only to go back up the steps to knock another

time. Id. at 21. Detective Williams then lost sight of [Appellant]

when he moved away from the front door. Id. The detective also

noted that [Appellant] was on his cell phone and looking around

the entire time Id. at 20, 21.

Previously on July 22, 2014, Detective Williams had

responded to a radioed call of a completed robbery at 2152,

Mount Carmel Avenue in Glenside. Id. at 16-17. He testified that

in that burglary the point of entry into the home was the front

window, noting that that the screen was cut in two places and

that the perpetrator gained entry by pushing through the screen

and pushing up the window. Id. at 18.

Next to testify was Sarah Drake, who resided at 2152

Mount Carmel Avenue, the victim of the July 22, 2014 burglary.

Id. at 24. Ms. Drake testified that she left her house that

morning at 7:00 a.m. and that everything in her house was

organized. Id. at 25. However, when she returned home at about

5:30 p.m. she described the window blinds as jostled and the

drawers to dressers in her study and her bedroom were open.

Id. at 26. Her jewelry box, along with several other boxes, were

dumped onto her bed. Id. Ms. Drake called the police, and it was

at that time she noticed that her two laptops, a jar of change

and her iPod were missing. Id. at 27.

Ms. Drake provided further detail of the state of her front

window. She testified that that screen had been pushed up and

that it had been cut on the bottom left hand side near the latch

for where the screen could come off. Id. at 28-29. Ms. Drake

approximated the holes to be about 2 inches. Id. at 28.

Third to testify was Steven Czyzewicz, a resident of 2135

Wharton Road, the victim of the July 23, 2014, burglary. On July

23, 2014, Mr. Czyzewisc [sic] left his home at about 9:00 a.m.

and when he returned home at about 2:30 p.m. he noticed two

laptops from his living room were missing. Also in the upstairs

bedroom a jewelry box was dumped onto the bed and a glass

container with cash was also missing. Id. at 35-36. Mr.

Czyzewicz, also testified that a few day[s] after the break-in, he

noticed that there were two holes at the bottom of his screen

windows, about one to one-and-a-half inches wide and a half-

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inch in length. Id. at 36-37. The holes were right where the clips

were for opening and closing the screen, which slides up and

down. Id. at 37, 40.

Fourth, the Commonwealth called Elizabeth Czyzewicz, Mr.

Czyewicz's [sic] daughter. At about 12:30 on July 23, 2014, she

had stopped by her parents' home to pick up her cell phone. Id.

at 44. She noticed that the back door was wide open, which was

unusual and out of the ordinary. Id.

Mrs. Joy Czyzewicz, wife of Mr. Czyzewisz [sic], also

testified that on July 23, 2014, she left the home at about 11:30

a.m. When she left her home the back door was closed, jewelry

was not dumped out onto the bed and the glass vase with $ 700

was still in its place. Id. at 49-51. All these things were not in

their original position, at the time she returned at 3:30 p.m. Id.

at 51-52.

The final victim to testify was Mervin Gratz of 2333 Geneva

Avenue, the victim of the July 25, 2014 attempted break-in. Id.

at 55. On that day at about 11:30 a.m., Mr. Gratz was at home.

Id. at 55. When he looked out of his first-floor bedroom window,

he saw [Appellant] on his window ledge. Id. at 56, 57, 63.

[Appellant] was doing something with his hands around the lock

area of the window screen. Id. at 56-57. It appeared to Mr.

Gratz that [Appellant] was trying to get into his home. Id. at 56.

Next, [the] Commonwealth presented the testimony of

Detective Steven Fink, 24-year veteran of the Abington Police

Department. Id. at 65. Detective Fink is a supervisor in the

Special Investigations Unit, a primarily plainclothes unit that

does a lot of surveillance. Id. The detective explained that if

there is a crime pattern in an area, members of that unit go to

that area and conduct surveillance. Id. Most of the detective's

work in this unit has been to investigate residential burglaries.

Id. Detective Fink estimated that in the past five years he has

investigated over 400 residential burglaries, and during the

course of his investigations he has watched burglaries in

progress. Id. at 66-67.

On July 25, 201[]4, Detective Fink was on surveillance in

the Glenside neighborhood with Detective Williams and several

other officers, because the prior burglaries occurred in that

neighborhood, within blocks of each other. Id. at 70-71.

Detective Fink testified that at approximately 11:30 a.m., he

saw [Appellant], who was wearing camouflage pants, boots and

a hat, walking down Keswick Avenue, talking on his cell phone,

spinning his keys and looking around at houses. Id. 71-72.

Detective Fink's interest was piqued when he saw [Appellant] go

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to Geneva Avenue from where he had first seen [Appellant] on

Keswick Avenue, since it wasn't the most direct route. Id. at 72.

The detective decided to watch [Appellant], as [Appellant]

continued to walk up Geneva Avenue looking at all the houses,

spinning his keys and talking on his cell phone. Id. at 72.

Detective Fink observed [Appellant] walk up to the front door at

2333 Geneva Avenue and knock. Id. at 72-73. Coleman

remained on his phone, looking all around. Id. at 73. At that

point, Detective Fink Called Detective Williams over to assist in

surveillance. Id. [Appellant] walked off of the front porch, looked

around again and went back up on the porch. Id. This struck

Detective Fink as highly suspicious. Id. [Appellant] again walked

off the porch and over to the set of hedges in front of a window.

Id. [Appellant] duck[ed] down in the bushes, reached down

inside his boots and pulled out a pair of gloves. Id. [Appellant]

put on the gloves, all while looking around. Id. Behind the

bushes [Appellant] was on his tippy toes doing something at the

window with his hands. Id. at 77. Based upon the detective's

observations of [Appellant] that day and his knowledge of the

two prior burglaries in the same neighborhood days earlier, he

suspected that [Appellant] was trying to break into the home at

2333 Geneva Avenue. He radioed for more officers to respond

to the area. Id. All of a sudden [Appellant] got down from the

window, took off the gloves and pretended to wave to someone

across the street, despite the fact that there was no one there.

Id. at 78.

Detective Fink also testified that after [Appellant] left from

2333 Geneva Avenue, he walked up the street for a couple of

blocks, remaining on his cell phone and spinning his keys. Id. at

79. [Appellant] actually went up onto the porch of another house

and knocked on that door. Id. [Appellant] walked off and tried

to board a SEPTA bus. Id. At that point [Appellant] was stopped

by police. Id. When Detective Fink arrested [Appellant], a search

of his person turned up his cell phone and his key ring. Id. at 80.

[Appellant] also voluntarily agreed to give a statement to police,

in which he tried to explain away his presence at the Geneva

Avenue home. Also in the statement, [Appellant] admitted that

he thought of breaking into the home, but later abandoned his

plan when he thought about his son and the risk he was taking.

Id. at 92-94.

Detective Fink testified at trial that the four keys on the

key ring looked to have been freshly cut. They were substantially

sharper than a normal key. Id. at 81. The detective asked

[Appellant] for consent to search his cell phone, which

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[Appellant] did provide. Id. at 81-82. A search of the phone

revealed that there were several text messages, and in

particular there was a text message conversation between

[Appellant] and a person on the phone entered into the contacts

as "My Boy Zeek". Id. at 84. At trial, the detective interpreted

the text conversation from July 24, 2014, between Coleman and

My Boy Zeek which used jargon the detective was familiar with.

Id. at 85.

Detective Fink also served a search warrant on AT &T for

[Appellant’s] cell phone records for phone number 267-319-

4722. Id. at 87-88. AT&T responded with the call details records,

which set forth the calls made by [Appellant], the calls

[Appellant] received, how long the calls lasted and what cell

towers the calls were transmitted through from the time period

of July 22nd to July 25th. In reviewing the phone records,

Detective Fink noticed that during the time he surveilled

[Appellant] at the 2333 Geneva Avenue address the phone

number that he was talking to was 267-258-1802. Id. at 90. The

phone records also show that on the days of the other

burglaries, during the times the homeowners were away from

the house, [Appellant] was talking to the same phone number.

Id. at 91. On July 22nd, there were six calls between 12:07 p.m.

and 12:34 p.m. between the two phone numbers. Id. On the

23rd, between 10:56 a.m. and 11:48 a.m., there were eight

calls back and forth between the two phone numbers. Id. On

July 25th, from the time the detective began to watch [Appellant]

at 11:30 a.m. until 11:48 a.m., [Appellant] was on the phone

almost the entire 18 minutes, although it was broken up into five

or six different calls. Id. at 92.

The next witness to testify at trial on behalf of the

Commonwealth was Detective Mark Minzola who was qualified as

an expert in the field of cellular telephone records analysis. Id. at

148. In sum, Detective Minzola testified that the records indicate

that Coleman was in the respective area on the days of the

burglaries.

Finally, the Commonwealth called one additional witness

before it rested. The defense offered two witnesses of its own. At

the conclusion of the trial, the jury found Coleman guilty of the

aforementioned convictions.

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On December 14, 2015, Coleman was sentenced to an

aggregate term of seven-and-a-half to 20 years'

[2]

imprisonment.

Trial Court Opinion, filed 2/9/16, at 1-9.

On December 23, 2014, Appellant filed a counseled, timely Motion for

Reconsideration and Motion to Modify Sentence wherein he challenged the

weight of the evidence to sustain his convictions and the discretionary

aspects of his sentence; however, before the trial court decided the motion,

Appellant filed a pro se notice of appeal with this Court on December 28,

2015. On December 30, 2015, the trial court denied the post-sentence

motion and also directed Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed his

Preliminary Concise Statement on January 20, 2016. The trial court filed its

Opinion pursuant to Pa.R.A.P. 1925(a) on February 9, 2016.

On January 5, 2016, trial counsel filed in this Court a Petition to

Remand or in the Alternative, Quash Appeal as Prematurely Filed. In a per

curiam Order of February 8, 2016, we denied counsel’s petition in light of

the fact Appellant’s pro se appeal from the December 14, 2015, judgment of

____________________________________________

2

In the matter docketed at CP-46-CR-0005773-2014 charging Appellant

with criminal attempt burglary with a person present, he received a prison

term of four years to ten years. For his convictions at CP-46-CR-0007537-

2014, Appellant was sentenced to three and one-half years to ten years in

prison to run consecutively to the sentence imposed for the aforementioned

conviction and a concurrent term of three and one-half years to ten years’

imprisonment.

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sentence had become final for purposes of appeal following the denial of

Appellant’s post-sentence motion. (citing Pa.R.Crim.P. 720(A)(2)(a),

Pa.R.A.P. 905 (a)(5)).

In his brief, Appellant presents the following questions for our review:

A) Whether the trial court erred in denying Appellant’s

suppression motion[?] There was no reasonable suspicion or

probable cause to seize [A]ppellant’s person or his property.

B) Whether the evidence presented by the Commonwealth at

trial even if taken in a light most favorable to the verdict winner

was insufficient as a matter of law to find [A]ppellant guilty of

any of the charges of burglary[?]

C) Whether the trial court erred in failing to grant Appellant’s

challenge to the weight of the evidence[?]

Brief for Appellant at 8.

In considering Appellant’s first issue, our relevant inquiry is whether

Detective Fink had probable cause to arrest Appellant for attempted

burglary. Appellant maintains that as no probable cause existed to arrest

him for attempted burglary on July 25, 2014, the evidence of cell phone

messages introduced to tie him to the two prior burglaries should have been

inadmissible at trial as it was obtained in violation of his right to be free from

unreasonable searches and seizures. Brief for Appellant at 12.

This Court’s standard for reviewing for challenges to the denial of a

suppression motion is well-settled:

[An appellate court's] 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

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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, [the appellate court

is] bound by [those] findings and may reverse only if the court's

legal conclusions are erroneous. Where ... 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 [ ]

plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa.Super. 2015),

reargument denied (Sept. 30, 2015), appeal denied, 135 A.3d 584 (Pa.

2016) (citation omitted) (brackets in original). In addition, our scope of

review from a suppression ruling is limited to the evidentiary record that was

created at the suppression hearing. In re L.J., 622 Pa. 126, 149, 79 A.3d

1073, 1087 (2013). Moreover, our standard of review is highly deferential

with respect to the suppression court's factual findings and credibility

determinations which are within its sole province. Id. at 1080 n. 6.

Under constitutional jurisprudence, there are three categories of

interactions between police and a citizen.

The first of these is a “mere encounter” (or request for

information) which need not be supported by any level of

suspicion, but carries no official compulsion to stop or to

respond. The second, an “investigative detention” must be

supported by a reasonable suspicion; it subjects a suspect to a

stop and a period of detention, but does not involve such

coercive conditions as to constitute the functional equivalent of

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an arrest. Finally, an arrest or “custodial detention” must be

supported by probable cause.

Commonwealth v. Fleet, 114 A.3d 840, 845 (Pa.Super. 2015) (citation

omitted).

“Both the United States and Pennsylvania Constitutions protect citizens

against unreasonable searches and seizures. U.S. Const. Amend. IV; Pa.

Const. Art. I, § 8. To be constitutionally valid, an arrest must be based on

probable cause.” Commonwealth v. Smith, 979 A.2d 913, 916 (Pa.Super.

2009) (citation omitted), appeal denied, 993 A.2d 901 (Pa. 2010). Probable

cause exists where the facts and circumstances within a police officer’s

knowledge are based upon reasonably trustworthy information and are

sufficient to warrant one of reasonable caution in the belief that the suspect

has committed or is committing a crime. In determining whether probable

cause exists, this Court applies a totality of the circumstances test.

Commonwealth v. Delvalle, 74 A.3d 1081, 1085 (Pa.Super. 2013). “The

question we ask is not whether the officer's belief was correct or more likely

true than false. Rather, we require only a probability, and not a prima facie

showing, of criminal activity.” Commonwealth v. Thompson, 604 Pa. 198,

203, 985 A.2d 928, 931 (2009) (internal quotation marks and citations

omitted, emphasis in original).

At the suppression hearing, the Commonwealth presented the

testimony of Detective Steven Fink. Detective Fink testified he was a

twenty-five year veteran of the Abington Police Department who had

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investigated approximately four hundred burglaries in his career, several of

which were multi-jurisdictional. N.T. Suppression, 6/19/15, at 4-5. In light

of his experience, Detective Fink explained he was familiar with the standard

mode of operation of burglaries and how perpetrators tent to commit those

crimes. He gleaned this knowledge through both his personal observations

and his interviews of individuals involved in burglaries. Id. at 5-6.

Detective Fink explained that on July 25, 2014, he was in the area of

2333 Geneva Avenue, Glenside, Montgomery County, where two burglaries

had occurred in the preceding days. Detective Fink was aware that in each

of those prior burglaries, the homeowners were at work when their homes

were burglarized during the afternoon. In the burglary that occurred on July

22, 2014, entry to the home was gained through a slit in the window screen,

a bedroom was ransacked, and laptops were stolen. In the second on July

23, 2004, a laptop, cash, and other items had been taken while the

occupants were at work. Id. at 7-8.

Detective Fink observed Appellant walking through the neighborhood

in the afternoon around lunchtime. Appellant was talking on a cell phone

and spinning keys he had on a lanyard around his finger as he surveyed the

homes around him. Detective Fink noticed Appellant had taken a circuitous

route to arrive the house at 2333 Geneva Avenue, and when Appellant

arrived there he knocked at the front door several times. Upon receiving no

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response, Appellant ducked behind a bush to the right of the front door of

the home. Id. at 10.

Detective Fink next saw Appellant take a white pair of gloves from his

boots, place them on his hands, and proceed to manipulate the window. Id.

at 12. Believing Appellant was attempting to break into the home, Detective

Fink called for assistance. Suddenly, Appellant went to the front yard and

appeared to wave to someone, although Detective Fink noticed no one was

there. Id. at 13. Thereafter, Appellant proceeded to knock on the front

door of another home. When he received no response, Appellant did nothing

further on the property and continued his walk. Id. at 14. At that juncture,

Detective Fink believed Appellant had become suspicious that he was being

watched. When Appellant tried to board a SEPTA bus, Detective Fink placed

him under arrest for trying to break into the home on Geneva Avenue. Id. at

15. Detective Fink remarked that this activity happened at the same time of

day and in the same location of the previous burglaries and that the window

in the front of the house next to the door was cut in an identical fashion. Id.

at 13-14.

After placing Appellant under arrest, Detective Fink reviewed a

Consent to Search Form with Appellant at which time he explained to

Appellant his right not to consent to the search of his cell phone.

Notwithstanding, Appellant gave Detective Fink permission to search the

phone, and signed the consent form while Officer Fink looked on. Id. at 15-

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16. Appellant did not limit the scope of his consent verbally or on the

consent form. Id. at 17. In fact, the written Consent to Search form

indicates in the description of what is to be searched portion “all data.” See

Commonwealth’s Exhibit 2.

At the conclusion of the suppression hearing, the suppression court

inquired as to whether the keys Appellant had in his possession had been

seized. Id. at 31. Detective Fink indicated they had and explained that

“[t]hey were the sharpest keys [he] had ever seen in [his] life.” Id. at 31.

Officer Fink further explained that the keys were “irregular” in that although

they looked like house keys, they were “razor sharp.” Id. When the

suppression court questioned the purpose of such keys, Detective Fink

surmised they may be utilized in splitting a screen. Id. at 31-32.

In support of its finding that Officer Fink testified credibly and had

probable cause to arrest Appellant for attempted burglary on July 25, 2015,

the suppression court reasoned as follows:

Applying the law to the facts of this case, at the time of the

arrest Detective Fink knew that [Appellant] knocked on the door

at 2333 Geneva Avenue while looking all around and when he

did not get an answer at the door, [Appellant] concealed himself

behind a bush, put on gloves, which is very significant because it

is consistent with someone who wants to commit a burglary and

does not want to leave DNA or fingerprint evidence behind, and

made motions with his hands while at the front window. In

addition, these factors coupled with the detective’s knowledge of

the two previous burglaries that occurred in the same

neighborhood just a few days prior and that the window screen

of the window next to the front door was cut in one of those

burglaries, which seemed identical as to what [Appellant] was

doing at 2333 Geneva Avenue. The totality of these

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circumstances dictates that there was abundant probable cause

to arrest [Appellant].

Trial Court Opinion, filed 2/9/16, at 15. See also N.T., 6/19/15, at 36-38.

The bulk of Appellant’s argument on this issue challenges the

credibility of what he terms detective Fink‘s “subjective” observations, which

he proceeds to view in a light most favorable to him. Brief for Appellant at

15-18, 21. However, upon our review of the suppression hearing testimony

and corresponding exhibits, we conclude Detective Fink’s assessment of the

criminality of Appellant’s behavior was not based upon mere subjective belief

or conjecture. To the contrary, the suppression court's finding that

Detective Fink had probable cause to arrest Appellant for attempted burglary

is supported by the record and the totality of the circumstances, including

Detective Fink’s observations viewed in the light of his experience, support

its legal conclusions.

Appellant’s additional basis for suppression concerns the seizure of his

cell phone. The suppression court remarked that while on appeal he

generally challenges Detective Fink’s seizure of his phone at the time of his

arrest, in his suppression motion Appellant raised a much narrower

argument that the consent he had provided to search his phone was limited

to the day of his arrest only. Trial Court Opinion, filed 2/9/16, at 16. As this

Court has observed,

“[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

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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, 430 Pa.Super. 217, 634

A2d. 228, 233 (1993) (citations omitted).

Although the burden in suppression matters is on the

Commonwealth to establish “that the challenged evidence was

not 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)(brackets in original).

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At the outset of the suppression hearing, the suppression court asked

the defense “to lay out with specificity and particularity on the record what

issues they [sic] are moving to suppress.” N.T. Suppression, 6/19/15, at 3.

In response, defense counsel indicated that Appellant would be pursuing two

issues, the first of which was the probable cause to arrest him. Counsel

proceeded to admit that Appellant “gave consent to have his cell phone data

looked at[,]” but explained that the “argument we are making is that that

consent was only given for the limited purpose of his activities on the day

that he was taken into custody, no other day.” Id. at 3-4. However, in his

Preliminary Concise Statement, Appellant asserted: “The [suppression]

court erred in denying Appellant’s suppression motion. There was no

reasonable suspicion or probable cause to seize [A]ppellant’s person or his

property.” See Preliminary Concise Statement, filed 1/20/16, at ¶ 6.(A).

Clearly, while at the suppression hearing Appellant challenged the

breadth of the search of the cell phone data, he neither maintained his

consent to search the same had been invalid nor did he posit that Detective

Fink lacked probable cause to seize the phone at the time of arrest, as he

asserts on appeal. Accordingly, we find his failure to advance this particular

legal theory in the first instance before the suppression court renders this

claim waived. See Freeman, supra. In light of the foregoing, Appellant's

first issue affords him no relief.

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Appellant next challenges the sufficiency and the weight of the

evidence to sustain any of his burglary convictions. Initially we note that

while in his Pa.R.A.P. 1925(b) statement Appellant conflates these issues,

Preliminary Concise Statement, filed 1/20/16, at ¶¶ B, C, and at various

points in his appellate brief continues to do so, we begin our discussion with

Appellant’s challenge to the sufficiency of the evidence and our well-

established standard of review:

The standard we apply in reviewing the sufficiency of the

evidence is whether viewing all the evidence admitted at trial in

the light most favorable to the verdict winner, there is sufficient

evidence to enable the fact-finder to find every element of the

crime beyond a reasonable doubt. In applying the above test, we

may not weigh the evidence and substitute our judgment for the

fact-finder. In addition, we note that the facts and circumstances

established by the Commonwealth need not preclude every

possibility of innocence. Any doubts regarding a defendant's guilt

may be resolved by the fact-finder unless the evidence is so

weak and inconclusive that as a matter of law no probability of

fact may be drawn from the combined circumstances. The

Commonwealth may sustain its burden of proving every element

of the crime beyond a reasonable doubt by means of wholly

circumstantial evidence. Moreover, in applying the above test,

the entire record must be evaluated and all evidence actually

received must be considered. Finally, the finder of fact while

passing upon the credibility of witnesses and the weight of the

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

evidence. Commonwealth v. Estepp, 17 A.3d 939, 943–44

(Pa.Super. 2011) (citing Commonwealth v. Brooks, 7 A.3d

852, 856–57 (Pa.Super. 2010)). This standard is equally

applicable to cases where the evidence is circumstantial rather

than direct so long as the combination of the evidence links the

accused to the crime beyond a reasonable doubt.”

(Commonwealth v. Sanders, 426 Pa.Super. 362, 627 A.2d

183, 185 (1993)). “Although a conviction must be based on

‘more than mere suspicion or conjecture, the Commonwealth

need not establish guilt to a mathematical certainty.’ ”

Commonwealth v. Gainer, 7 A.3d 291, 292 (Pa.Super.2010)

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(quoting Commonwealth v. Badman, 398 Pa.Super. 315, 580

A.2d 1367, 1372 (1990)).

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.Super. 2014), appeal

denied, 626 Pa. 681, 95 A.3d 275 (2014).

An individual commits the offense of burglary if, “with the intent to

commit a crime therein, the person 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 no person is

present.” 18 Pa.C.S.A. § 3502(a)(2).

Appellant posits “that he should not have been found guilty of any of

the three burglaries because two equally reasonable and mutually

inconsistent inferences can be drawn from the same set of circumstances,

one concluding in innocence and the other in guilt.” Brief for Appellant at

24. Appellant’s very admission that one interpretation of the evidence

points to his guilt ignores the fact that this Court may not substitute our

judgment for that of the fact finder which is free to assess witness credibility

and believe all, part or none of the evidence. Antidormi, supra. Indeed,

Appellant states he “does not disagree that much of what was said by

Detective Williams, Detective Fink, Detective Minzola and the victims of the

burglaries was reliable and/or uncontradicted and consistent[,]” yet he

concludes that, notwithstanding, “the evidence was wholly insufficient as a

matter of law to find Appellant guilty of the burglaries of July 22, 2014, and

July 23, 2014. Brief for Appellant at 32-33. Upon our review of the record,

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we find the properly admitted evidence at trial when viewed in a light most

favorable to the Commonwealth as verdict winner was sufficient to support

the jury’s finding that Appellant was the perpetrator of those crimes.

Appellant’s cell phone records revealed he was in the vicinity of the

homes which were burglarized on July 22, 2014, and on July 23, 2014. In

each instance, the perpetrator had entered the abode by making a small

hole in the window screen of a front window to access the window latch.

Officer Finch observed Appellant put on gloves and manipulate the front

window of the home on Geneva Avenue on July 25, 2014, with what he later

determined to be a razor-sharp keys. Significantly, Mr. Gratz testified that

when he peered out of his bedroom window located on the first floor, he

observed a young, very dark-skinned, tall man handling the window screen

in the area of the window lock and believed he was attempting to gain entry

to the residence. N.T. Trial, 9/10/15, at 56-57, 63. In addition, Detective

Fink’s interpretation of some of the jargon utilized in the text messages

obtained from Appellant’s cell phone suggested Appellant was planning to

sell stolen laptops and had perfected the sale of one stolen in the July 22 nd

and July 23rd burglaries. Id. at 85-87.

Upon hearing this testimony, a jury properly may have inferred

Appellant used the sharp keys he wore on a lanyard on July 25, 2016, to

make the small holes in the window screens in the previous burglaries which

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had occurred recently in the same neighborhood at the same time of day

while the homes were unoccupied.

Appellant further contends the evidence was insufficient to sustain his

attempted burglary conviction, for while he admitted to Detective Fink he

had put on a pair of gloves and contemplated breaking into the home, he

also indicated he abandoned his plan when he thought about his son and the

risk he would be taking if he did so. N.T. Trial, 9/10/15, at 92-94, 98-99.

Appellant maintains the fact he left the premises and attempted to board a

bus indicates he had no intention to commit a burglary, and if he at one time

did, he renounced his intent to do so. Brief for Appellant at 34. In response

to this argument, the trial court stressed that the jury as the finder of fact

did not credit Appellant’s renunciation defense and properly could have

inferred that the reason he aborted his attempt to burglarize the 2333

Geneva Avenue home arose after he saw Mr. Gratz inside and sought to

avoid apprehension. Trial Court Opinion, filed 2/9/16, at 23-24.

Section 901(c) of the Crimes Code defines renunciation as a defense to

criminal attempt as follows:

(c) Renunciation.—

(1) In any prosecution for an attempt to commit a crime, it

is a defense that, under circumstances manifesting a voluntary

and complete renunciation of his criminal intent, the defendant

avoided the commission of the crime attempted by abandoning

his criminal effort and, if the mere abandonment was insufficient

to accomplish such avoidance, by taking further and affirmative

steps which prevented the commission thereof.

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(2) A renunciation is not “voluntary and complete”

within the meaning of this subsection if it is motivated in

whole or part by:

(i) a belief that circumstances exist which increase

the probability of detection or apprehension of the

defendant or another participant in the criminal

enterprise, or which render more difficult the

accomplishment of the criminal purpose; or

(ii) a decision to postpone the criminal conduct until

another time or to transfer the criminal effort to another victim

or another but similar objective.

18 Pa.C.S.A. § 901(c)(emphasis added). As stated previously, Detective

Fink testified that he observed Appellant manipulate the first floor window at

the Geneva Avenue home, abruptly stop his activity, turn, and wave to no

one. Mr. Gratz indicated that from within his first floor bedroom window he

observed Appellant attempting to gain entry to his home. In light of this

evidence, the jury reasonably could have inferred that Appellant’s

renunciation was not voluntary but rather was motivated by his awareness

that someone was inside the home and/or that he may have spotted by that

resident or police; therefore, Appellant’s sufficiency of the evidence claim

fails.

Finally, Appellant posits the verdict was against the weight of the

evidence.

An allegation that the verdict is against the weight of the

evidence is addressed to the discretion of the trial court.

Commonwealth v. Ramtahal, 613 Pa. 316, 33 A.3d 602

(2011). “An appellate court, therefore, reviews the exercise of

discretion, not the underlying question whether the verdict is

against the weight of the evidence.” Id., 613 Pa. at 327–28, 33

A.3d at 609. Moreover, a court's denial of a motion for a new

trial based upon a weight of the evidence claim is the least

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assailable of its rulings. Commonwealth v. Rivera, 603 Pa.

340, 363, 983 A.2d 1211, 1225 (2009).

In Interest of J.G., 2016 WL 4521978, at *5 (Pa.Super. Aug. 26, 2016).

In addition,

(A) A claim that the verdict was against the weight of the

evidence shall be raised with the trial judge in a motion for a

new trial:

(1) orally, on the record, at any time before sentencing;

(2) by written motion at any time before sentencing; or

(3) in a post-sentence motion.

Pa.R.Crim.P. 607(A).

A post-sentence motion challenging the weight of the evidence

“will preserve no issue for appellate review unless the motion

goes on to specify in what respect the evidence was insufficient,

or why the verdict was against the weight of the evidence.”

Commonwealth v. Holmes, 461 A.2d 1268, 1270 (Pa. Super. 1983)

(emphasis in original).

Herein, Appellant filed a timely post-sentence motion challenging the

weight of the evidence to sustain his burglary convictions which he asserted

relied upon only “cell phone towers and emails and text messages.”

Appellant further maintained the weight of the evidence was such that the

trial court should have found he renounced his intention to commit the

attempted burglary. See Motion for Reconsideration and Motion to Modify

Sentence at ¶ 1. However, Appellant’s 1925(b) statement lacks specificity

regarding his weight claim pertaining to his burglary convictions. It is

relevant that upon noting the vagary in Appellant’s Pa.R.A.P. 1925(b)

statement, the trial court stated its belief that:

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[Appellant’s] argument set forth in his 1925(b) statement, i.e.,

the Commonwealth failed to prove that he committed either of

the completed burglaries, really is a sufficiency challenge despite

the language challenging the weight of the evidence. Therefore,

this claim will be addressed accordingly.

Trial Court Opinion, filed 2/9/16, at 18. As a result, he arguably has waived

this claim. See Commonwealth v. Seibert, 799 A.2d 54, 62 (Pa. Super.

2002) (vague weight claim in Rule 1925(b) statement waives claim).

To the extent Appellant may be deemed to have preserved this issue

for our review, the argument he sets forth in his appellate brief merely

summarizes the evidence which he contends was insufficient to sustain his

burglary convictions. Appellant baldly adds that the trial court’s suggestion

that Appellant committed the burglaries on July 22 and 23, 2014, based

upon cell phone “triangulation” is shocking as is its conclusion that he

committed the two burglaries in light of those text messages. Appellant

highlights that Detective Minzola admitted on cross-examination he could

not prove Appellant possessed the cell phone or was at the burglarized

residences on those days on July 22 and 23 of 2014. Brief for Appellant at

42.3 In addition, he again raises his renunciation defense upon which he

relied to support his sufficiency of the evidence challenge to support his

____________________________________________

3

Importantly, the trial court accepted Detective Minzola as an expert in the

field of cellular telephone records analysis, and Appellant did not object to

his testifying in this capacity. N.T., 9/10/15, at 148.

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argument his attempted burglary conviction was contrary to the weight of

the evidence.

A review of the trial court’s Rule 1925(a) Opinion reveals it did not

base its opinion on the limited factors Appellant states. Rather, it found that

because the record as a whole supported the jury’s verdict, it did not shock

the court’s sense of justice. Trial Court Opinion, filed 2/9/16, at 26.

Appellant merely asks this Court to reweigh the evidence and

find that which inculpated him was incredible. This we cannot do.

Commonwealth v. Landis, 89 A.3d 694, 699 (Pa.Super.

2014). "It was within the province of the jury to make credibility

determinations in this regard, and this Court will not reweigh

such credibility determinations on appeal. “A jury decision to

credit certain evidence and reject other testimony is appropriate;

therefore, the trial court did not abuse its discretion in

concluding that its sense of justice was not shocked by the

verdict.” Commonwealth v. Sanders, 42 A.3d 325, 331

(Pa.Super. 2012).

Commonwealth v. Stiles, 2016 WL 4035610, at *11 (Pa.Super. July 19,

2016).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/18/2016

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