Commonwealth v. Reese, J-E01004-15

• Decision Date: 23 June 2015
• Docket Number: No. 52 EDA 2013,J-E01004-15,52 EDA 2013
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee v. BRUCE M. REESE, Appellant

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
BRUCE M. REESE, Appellant

J-E01004-15
No. 52 EDA 2013

SUPERIOR COURT OF PENNSYLVANIA

JUNE 23, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37

Appeal from the Judgment of Sentence November 20, 2012, Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-0013539-2011

BEFORE: BOWES, DONOHUE, SHOGAN, LAZARUS, MUNDY, OLSON, WECHT, STABILE and JENKINS, JJ.

MEMORANDUM BY DONOHUE, J.:

Bruce M. Reese ("Reese") appeals from the November 20, 2012 judgment of sentence entered by the Philadelphia County Court of Common Pleas following his convictions of possessing an instrument of crime, criminal conspiracy, and four counts of robbery.¹ Upon review, we conclude that the trial court properly denied Reese's motion to suppress and that Reese's sufficiency claim does not entitle him to relief. Because we conclude that Reese's sentence is illegal, however, we vacate the judgment of sentence and remand for resentencing.

In the early morning hours of November 12, 2011, Reese and an unidentified man robbed four men at gunpoint near the corner of 57^th Street and Belmar Terrace in Philadelphia outside of the home of Keith Nazario

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("Nazario"), one of the victims. Reese was holding the gun, which the victims described as black. One of the victims, Darren Harrison ("Harrison"), had "seen [Reese] around the area," but did not know him. N.T., 10/2/12, at 52. As Reese was leaving the scene, Nazario recognized him as the cousin of one of Nazario's friends, Kyle Bentley ("Bentley"), and called after Reese. Harrison indicated that he knew Bentley as well. Upon hearing this, Reese acknowledged that he was Bentley's cousin and attempted to get the victims' money back from his coconspirator. The coconspirator refused to return the money. Reese then provided his phone number to the victims and assured them he would return their money the following day. He then ran to catch up with his coconspirator. None of the victims wrote down the phone number.

Victim Bryan Shoecraft ("Shoecraft") called the police that night to report the robbery; Harrison telephoned the police the following day. Harrison brought the fourth victim, Ian White ("White"), to the police station with him, and both readily identified Reese in a photo array as one of the perpetrators of the robbery. Shoecraft likewise immediately identified Reese in the photo array when police presented it to him the following day.²

Police requested and obtained a warrant for firearms and ballistic evidence, Shoecraft's debit card, proof of residence, and any other items of

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evidentiary value at what police believed to be Reese's address - 413 North Edgewood Street in West Philadelphia. Police executed the warrant on November 14, 2011 at 7:05 a.m. and located Reese inside the residence, lying on a sofa. Police retrieved a black handgun³ from the cushion underneath where Reese was laying and proof of residence inside the house, not on Reese's person.

On February 1, 2012, Reese filed a pretrial motion seeking, inter alia, suppression of the evidence found during the execution of the search warrant. At a hearing on the motion on October 2, 2012, Reese presented two arguments in support of suppression: (1) the affidavit of probable cause failed to provide a sufficient basis to believe the items sought would be found at Reese's residence, and (2) the police misrepresented to the magistrate that the location to be searched was Reese's last known address. The trial court denied the motion. On October 5, 2012, a jury convicted Reese of the aforementioned crimes. The trial court sentenced him on November 20, 2012 to an aggregate term of fifteen to thirty years of incarceration.

Reese did not file any post-sentence motions, but filed a timely notice of appeal on December 10, 2012. He complied with the trial court's order for the filing of a concise statement of errors complained of on appeal

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pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) ("1925(b) statement"). Thereafter, the trial court issued a responsive opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).

On appeal before a three-judge panel of this Court, Reese raised the following issues for our review:

1. Did the trial court err by denying [Reese]'s pre-trial motion to supress [sic] evidence based on a lack of probable cause where the affidavit of probable cause for the issuance of the warrant did not provide sufficient information for the issuing court to make a determination of probable cause?

2. Was the evidence insuficient [sic] to establish a reliable identification of [Reese] as being involved in the commission of the crimes he was convicted of committing?

Reese's Brief at 2. On August 9, 2014, the panel vacated Reese's judgment of sentence and remanded the case for a new trial. The panel unanimously agreed that there was sufficient evidence to support Reese's convictions. The majority determined, however, that the trial court erred by denying Reese's motion to suppress:

[T]here are no factual averments in the affidavit [of probable cause] that establish any "nexus" between Reese's home and the instant crime. Within its four corners, the affidavit establishes only probable cause to believe that Reese committed the robbery and lived at the subject residence.[] ... "[T]he lack of a substantial nexus between the street crime and the premises to be searched renders the warrant facially invalid." [Commonwealth v.] Way, 492 A.2d [1151,] 1154 [(Pa. Super. 1985)]; see

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[Commonwealth v.] Kline, 335 A.2d [361,] 364 [(Pa. Super. 1975)].

Commonwealth v. Reese, 52 EDA 2013, 18-19 (Pa. Super. Aug. 6, 2014) (unpublished memorandum). The dissent disagreed with the decision to grant Reese a new trial. First, the dissent observed that Reese's sole argument in support of his suppression claim was that "there was insufficient evidence to show that [he] resided at the residence for which the [search] warrant was issued because the magistrate was not informed, and the affirming detective did not so inform him, that [Reese] had a more recent address of record." Id. at Diss. 1 (quoting Reese's Brief at 9-10). As Reese abandoned any other argument relating to the denial of suppression, the dissent concluded that it was not permissible to reverse the trial court's decision on that basis. Furthermore, even if Reese had presented this argument on appeal, the dissent disagreed that it entitled him to relief pursuant to this Court's holding in Commonwealth v. Hutchinson, 434 A.2d 720 (Pa. Super. 1981).

On August 8, 2014, the trial court filed a request for publication. On August 14, 2014, the Commonwealth filed an application for reconsideration or reargument en banc, based upon "the majority's sua sponte grant of relief on a theory that [Reese] abandoned on appeal and that contradicts this Court's binding precedents." Application for Reconsideration or Reargument En Banc, 8/14/14, at 7. On September 5, 2014, the panel denied the trial

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court's request for publication. On October 3, 2014, the full court granted the Commonwealth's request for reargument en banc. In granting the request we ordered that Reese file his original brief with a supplemental brief, or a substituted brief, addressing the following questions: "(1) whether the affidavit of probable cause properly established that evidence of the robbery would be found in [Reese]'s home; and (2) whether that claim was and is properly preserved for review by this Court." Order, 10/3/14. Reese complied by filing his original brief along with a supplemental brief addressing the requested issues. The Commonwealth timely filed its original responsive brief as well as a responsive supplemental brief.

We begin by addressing whether Reese preserved the issue concerning the absence of probable cause that the evidence sought would be found in Reese's home. Reese contends he properly preserved the issue for appellate review by including it in his suppression motion and his 1925(b) statement. Reese's Supplemental Brief at 4-5. What Reese ignores, however, and our review of his original brief confirms, is that he failed to include any argument in his appellate brief in support of this claim.

Generally speaking, there are several layers of preservation required for an issue in a criminal case to be appropriately subject to appellate review. The issue must be raised before the trial court. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). If the trial court issues an order

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requiring the filing of a 1925(b) statement, any issue to be raised on appeal must be specifically included therein. See Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived."); Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) ("A [1925(b)] statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no [1925(b)] statement at all."). The issue must also be included in the statement of questions involved section of the appellate brief. See Pa.R.A.P. 2116(a) ("No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.")...