Commonwealth v. Coleman

COMMONWEALTH OF PENNSYLVANIA Appellee v. NAKEEM COLEMAN Appellant

J-S76041-16

No. 8 EDA 2016

SUPERIOR COURT OF PENNSYLVANIA

OCTOBER 18, 2016

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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.:

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:

[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,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-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] goto 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

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