Com. v. Murrell, D. (memorandum)

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J-A11012-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DEMETRIUS LAMON MURRELL Appellant No. 824 WDA 2013 Appeal from the Judgment of Sentence April 18, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0004695-2012 BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. and OLSON, J. MEMORANDUM BY OLSON, J.: FILED JULY 03, 2014 Appellant, Demetrius Lamon Murrell, appeals from the judgment of sentence entered on April 18, 2013, following his jury trial conviction for persons not to possess a firearm, 18 Pa.C.S.A. § 6105. Upon review, we affirm. The trial court summarized the facts of this case as follows: [A Pittsburgh] police officer, [Officer Jason Cyprowski], testified that he stopped [a black GMC Yukon SUV] on February 4, 2012, at approximately 2:00 [a.m.] when he was responding to a burglary-in-progress call on the Southside of Pittsburgh. While driving to the scene, the officer witnessed a black GMC Yukon traveling at a high rate of speed in a very tight alleyway. The officer shined his spotlight into the Yukon and observed [Appellant] driving. The officer also saw that [Appellant] was bleeding from his forehead. The officer pulled over the SUV, made contact with the driver, and saw an empty black holster that was located on top of the center console. [Appellant] consented to a search of the vehicle. A gun was found [with blood on J-A11012-14 it1] and [Appellant] was charged with the possession of a firearm offenses. Trial Court Opinion, 8/28/2013, at 1-2. The Commonwealth charged Appellant with persons not to possess a firearm, carrying a firearm without a license, and careless driving.2 On July 19, 2012, Appellant filed a motion to sever the charges, which the trial court granted. On January 28, 2013, a jury convicted Appellant of persons not to possess a firearm. On April 18, 2013, the trial court sentenced Appellant to five to 10 years of imprisonment. This timely appeal resulted.3 Appellant presents the following issues for our review: A. Whether the trial court erred in denying Appel motion to suppress where the arresting officer did not have reasonable suspicion nor probable cause to stop involvement in a burglary? B. Whether the trial court erred in permitting Officer Cyprowski to testify that in his experience with cases involving firearms, not once has [the] firearm produced a fingerprint? ____________________________________________ 1 was obtained from the blood stain from the Ruger handgun matched the DNA profile that was obtained from the buccal [swab] collect[ed] from 2 18 Pa.C.S.A. §§ 6105 and 6106 and 75 Pa.C.S.A. § 3714, respectively. 3 Appellant filed a notice of appeal on May 15, 2013. On May 24, 2013, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied on June 4, 2013. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on August 28, 2013. -2- J-A11012-14 C. Whether the trial court erred in permitting the Commonwealth to elicit testimony that Appellant was stopped, at least in part, for suspicion of being involved in a burglary? In his first issue presented, Appellant contends that the Commonwealth failed to prove the police officer had reasonable suspicion or probable cause to stop him for a violation of the Motor Vehicle Code and, as a result, the trial court erred in denying suppression of the evidence obtained after the vehicular stop. Id. at 13-19. More specifically, Appellant claims: The trial court found that Appellant was essentially guilty of careless driving. The problem is that if the act of careless driving involves speeding, not every act of speeding is careless driving, particularly where there was never testimony or evidence to support a charge of speeding[.] The issue is whether Officer Cyprowski had the right to stop Appellant for speeding and not whether [Officer] converted into careless driving because Carey Way might be narrow. Id. at 16. Our standard of review and the applicable law are as follows: In addressing a challenge to a trial court's denial of a suppression motion we are limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Since the Commonwealth prevailed in 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 record supports the factual findings of the trial court, we are bound by those -3- J-A11012-14 facts and may reverse only if the legal conclusions drawn therefrom are in error. * * * A police officer has the authority to stop a vehicle when he or she has reasonable suspicion that a violation of the vehicle code has taken place, for the purpose of obtaining necessary information to enforce the provisions of the code. 75 Pa.C.S. § 6308(b). However, if the violation is such that it requires no additional investigation, the officer must have probable cause to initiate the stop. Put another way, if the officer has a legitimate expectation of investigatory results, the existence of reasonable suspicion will allow the stop if the officer has no such expectations of learning additional relevant information concerning the suspected criminal activity, the stop cannot be constitutionally permitted on the basis of mere suspicion. * * * The police have probable cause where the facts and circumstances within the officer's knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed. We evaluate probable cause by considering all relevant facts under a totality of circumstances analysis. Commonwealth v. Brown, 64 A.3d 1101, 1104-1105 (Pa. Super. 2013) (citations and brackets omitted) (emphasis in original). justified because [Appellant] was operating his vehicle in a careless manner by travelling at a 3714 provides, in pertinent part: -4- J-A11012-14 Any person who drives a vehicle in careless disregard for the safety of persons or property is guilty of careless driving, a summary offense. 75 Pa.C.S.A. § 3714(a). At the suppression hearing, the Commonwealth called the investigating officer, Officer Cyprowski, to testify. Officer Cyprowski stated MC Yukon traveling at a high rate of Cyprowski further testified: Normally there are vehicles parked in that alleyway. I believe there is no posted speed limit, but being that it is a residential area, which I believe it would be about 25 miles an hour. I believe that vehicle would have been traveling over 25 miles an hour on Carey Way. Id. at 7. Later, Officer Cyprowski testified that the vehicle in question was Id. at 12. He based his conclusion regarding the speed of the automobile on his previous experience clocking vehicular speeds for the Pittsburgh Police. Id. at 7. Officer Cyprowski identified Appellant as the driver, after illuminating the interior of Id. at 6-8. Officer Cyprowski also identified two passengers who were in the car at the time of the stop. Id. at 4. Based upon the totality of circumstances, the trial court appropriately careless driving. Appellant was driving down a narrow, one-way alley. -5- In J-A11012-14 light of his prior police experience, Officer Cyprowski estimated that Appellant was driving faster than the speed limit permitted in a residential area. Moreover, Appellant had two passengers in his vehicle and he was driving with an injury to his forehead that was bleeding heavily. Combined, these facts were sufficient to cause a reasonable person to believe that Appellant engaged in driving with careless disregard for the safety of persons (such as the other passengers in the car or pedestrians on the street) or property (such as other vehicles on the street). In sum, while the driving, Appellant was also driving down a narrow roadway with a noticeably bleeding head injury. The record supports the factual findings of the trial court and, accordingly, the trial court properly denied suppression. Hence, In his second issue presented, Appellant claims that the trial court erred by permitting Officer Cyprowski to testify at trial that he had never experienced an instance wherein latent fingerprints were recovered from a [Officer] Cyprowski testified that in 20 to 30 cases, he had apparently not found a gun with a latent print of value. Appellant objected stating that [Officer] Cyprowski was not an expert. Appellant further stated that he would need to know something more about those 20 to 30 cases. t was that if [Officer] Cyprowski was not going to be deemed an expert, anything he could testify to about the guns he found in 20 to 30 prior cases, was irrelevant. -6- J-A11012-14 Id. at 19-20. Appellant further claims that although he objected at trial because Officer Cyprowski was not an expert, it was obvious that the testimony was also irrelevant. Id. at 20-21. Thus, Appellant essentially argues that the trial court erred by determining, in its Rule 1925(a) opinion, that Appellant waived his claim by failing to specifically object on the basis of relevancy. Id. in part, around the absence of fingerprints on a blood soaked gun, admission Id. at 21. Initially, we observe that our standard of review regarding the trial court's evidentiary rulings is deferential. Commonwealth v. Nypaver, 69 A.3d 708, 716 (Pa. Super. 2013) (citation omitted). Accordingly, [t]he admissibility of evidence is solely within the discretion of the trial court and will be reversed only if the trial court has abused its discretion. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record. Id. On this issue, the trial court determined: 30 times that you have been on cases involving firearms, how many times on average were you able to get a print off Defense counsel objected to this line of questioning on the basis that the officer was not an expert. The Commonwealth responded that the officer was not being offered as an expert. As a result of the basis stated for the -7- J-A11012-14 c]ourt permitted the question. No other grounds for an objection were made by defense counsel to serve as a basis Trial Court Opinion, 8/28/2013, at 3-4. We agree. This Court has previously concluded: A party complaining, on appeal, of the admission of evidence in the court below will be confined to the specific objection there made. Commonwealth v. Cousar, 928 A.2d 1025, 1041 (Pa. 2007). If counsel states the grounds for an objection, then all other unspecified grounds are waived and cannot be raised for the first time on appeal. Commonwealth v. Arroyo, 723 A.2d 162, 170 (Pa. 1999); Commonwealth v. Stoltzfus, 337 A.2d 873, 881 (Pa. that if the ground upon which an objection is based is specifically stated, all other reasons for its exclusion are waived, and may not be raised postCommonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003) (stating party must make timely and specific objection to preserve issue for appellate review). Commonwealth v. Lopez, 57 A.3d 74, 81-82 (Pa. Super. 2012), citing Commonwealth v. Bedford, 50 A.3d 707, 713-714 (Pa. Super. 2012). At trial, defense counsel objected to the abovementioned testimony b Id. at 72-73. Thereafter, the trial continued. Hence, it is clear that Appellant was challenging the evidence because Officer Cyprowski was not an expert. On appeal, however, Appellant is challenging the relevancy of the evidence admitted, but did not advance this specific ground in support of his objection at trial and, thus, has waived the -8- J-A11012-14 In his third issue presented, Appellant claims the trial court erred in permitting the Commonwealth to elicit testimony from Officer Cyprowski that he stopped Appellant, at least in part, for suspicion of a burglary in progress. -22. In sum, he argues: The trial court even agreed that the burglary testimony could lead to confusion. The fact is that Appellant committed no burglary, but the unfair danger of a jury suspecting that he, supposedly speeding and bleeding did, was high. The evidence of the burglary was unnecessary. It was a classic confusion of the issues related type of evidence. How can a trial court agree that evidence could lead to confusion of the issues and overrule that very objection? Other than the blood on the gun, the evidence may have pointed more to the guilt of the co-defendant sitting on top of the gun than Appellant. Appellant speeding, if suspected of being in a burglary he did not participate in, could clearly make it more likely in the minds of a juror, that it was he who was armed. The evidence was sufficient but not overwhelming. Introduction of this evidence was not clearly harmless. If a trial court agrees with an objection, but overrules it anyways, such has to be an abuse of discretion. Id. Regarding this issue, the trial court determined: The defense does not provide in its [c]oncise [s]tatement [pursuant to Pa.R.A.P. 1925(b)] where on the record the police officer te stopped for suspicion of [b]urglary. The [trial c]ourt has reviewed the record and is unable to find such testimony or an objection related to such testimony. Therefore, this issue too is without merit. Trial Court Opinion, 8/28/2013, at 4. The trial court seems to suggest that Appellant waived the issue by failing to point to the record to show the alleged error or an objection -9- J-A11012-14 thereto. We disagree. Appellant raised the issue pretrial and argued that he was prejudiced by evidence that police were responding to a burglary; Appellant also alleged that the resulting prejudice outweighed its probative value. N.T., 1/23/2013, at 24. The trial court denied relief. Id. at 25. At trial, Officer Cyprowski testified that he responded to a burglary in progress and, while en route, he encountered Appellant. N.T., 1/25/2013, at 55. Later, Officer Cyprowski testified that he waited for back-up before approaching the stopped vehicle because he arrived at the scene in response to a reported armed burglary. Id. at 57-58. Upon further review, however, at no time did Officer Cyprowski specifically state that he stopped Appellant because of the burglary. Moreover, defense counsel cross-examined Officer Cyprowski and elicit not make a positive identification as to any of the occupants in the mask, as reported in the Id. at 74-75. As previously stated, this Court examines evidentiary rulings for an abuse of discretion. Nypaver, 69 A.3d at 716. Evidence, even if relevant, may be excluded if its probative value is outweighed by the potential prejudice. Pa.R.E. 404(b)(3). This Court has held: The probative value of the evidence might be outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, pointlessness of presentation, or unnecessary presentation of cumulative evidence. Pa.R.E. 403. The comment to Pa.R.E. 403 - 10 - J-A11012-14 instructs that unfair prejudice means a tendency to suggest decision on an improper basis or to divert the jury's attention away from its duty of weighing the evidence impartially. * * * However, evidence will not be prohibited merely because it is harmful to the defendant. Exclusion is limited to evidence so prejudicial that it would inflame the jury to make a decision based upon something other than the legal propositions relevant to the case. Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa. Super. 2009) (internal citations, brackets, and quotations omitted). Here, Officer Cyprowski was relaying information regarding the course of events as they unfolded. At no time did he suggest that he stopped Appellant upon a suspicion of burglary. Instead, Officer Cyprowski was explaining why he was in the area and why he followed certain police protocol in securing the vehicle. In order to avoid confusion of issues, Appellant had the opportunity to cross-examine Officer Cyprowski and the evidence elicited showed that Appellant was not implicated in the burglary at any time. Thus, Appellant fails to show how the challenged evidence was so prejudicial as to inflame the jury or how, in light of all the circumstances, including the testimony from Officer Cyprowski on cross-examination, it tended to suggest a decision on an improper basis.4 As such, we discern no ____________________________________________ 4 We note that even if evidence involving the burglary was erroneously admitted, such error was harmless given the evidence that a firearm was See Commonwealth v. Hairston, 84 A.3d 657, 671-672 (Pa. 2014) (Harmless error exists if the (Footnote Continued Next Page) - 11 - J-A11012-14 abuse of discretion in allowing the limited testimony.5 Accordingly, Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/3/2014 (Footnote Continued) _______________________ record demonstrates either: (1) the error did not prejudice the defendant or the prejudice was de minimis; or (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.). 5 See Commonwealth v. Elia appellate court may affirm a valid judgment based upon any reason - 12 -

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