Commonwealth v. Robertson

1

COMMONWEALTH OF PENNSYLVANIA v. KASHIF M. ROBERTSON Appellant

No. 9 MDA 2023

No. J-A27007-23

Superior Court of Pennsylvania

August 29, 2024

NON-PRECEDENTIAL DECISION-SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered December 20, 2022 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0004147-2020

Benjamin D. Kohler, Esq.

BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E ^[*]

MEMORANDUM BY LAZARUS, J.

Kashif M. Robertson appeals from the judgment of sentence,^[1] entered in the Court of Common Pleas of Dauphin County, following his convictions of two counts of person not to possess a firearm^[2] and one count each of possession of firearm with altered manufacturer's number,^[3] possession with intent to deliver (PWID)-cocaine,^[4] and PWID-marijuana.^[5] After careful review, we affirm.

Relevant hereto, at the time of these offenses, Robertson was serving a probationary term of 23 months at Docket Number CP-22-CR-0002276-2017 (No. 2276-2017).^[6] We adopt the following factual summary provided by the trial court in its order and opinion denying Robertson's omnibus pre-trial motion:

[Probation Officer] Richard Anglemeyer [(PO Anglemeyer)] . of Dauphin County Probation Services [(DCPS)] testified that he was supervising [Robertson]. [Robertson] signed a document titled Rules of Probation and Parole on October 1, 2019, at a revocation hearing. The major conditions included are refrain from violation of protection from abuse orders, local, state, or federal penal laws[,] and refrain from overt behavior. There are three additional pages of conditions.

On August 13, 2020, PO Anglemeyer made a visit to [Robertson's registered address]. PO Anglemeyer testified that he made a prior visit to [Robertson] approximately three weeks to a month prior to [the August 13, 2020] visit. During th[e prior] visit, PO Anglemeyer found [Robertson] smoking marijuana in the back of a vehicle. He counseled [Robertson] on the proper use of medical marijuana and did not violate [Robertson]'s probation. During the visit on August 13, 2020, PO Anglemeyer pulled into [Robertson]'s driveway and parked[.] PO Anglemeyer testified that he did not park behind [Robertson]'s vehicle. PO Anglemeyer exited his vehicle and started walking up the steps. At that time, [Robertson] exited the driver's side of [his] vehicle. PO Anglemeyer asked [Robertson] what he was doing, and [Robertson] stated that he was smoking marijuana in his vehicle. PO Anglemeyer detected the odor of burnt marijuana coming from [Robertson]. PO Anglemeyer requested permission to search [Robertson, and Robertson consented]. Nothing was found on [Robertson's] person. PO Anglemeyer then asked [Robertson] for permission to search the vehicle, and [Robertson consented]. [PO Anglemeyer recovered t]hree cellular phones, approximately $700.00 in U.S. currency, and multiple baggies of a green leafy substance inside clear plastic baggies [from] the vehicle. [Robertson] was detained at this point[, and Robertson] denied consent to search his cellular phones.

[Robertson was feeling lightheaded and] requested an ambulance, and one was provided. PO Anglemeyer asked for consent to go into [Robertson's] home. [Robertson] responded that [PO Anglemeyer] could go into the home and search everything but his mother's room. [Robertson] left the scene in an ambulance.

Upon entering [Robertson's] room, PO Anglemeyer saw a clear glass jar with green leafy substance consistent with marijuana. The jar did not have any markings on it. PO Anglemeyer determined that this was a violation of probation and informed the police. The police then contact[ed] the Dauphin County Drug Task Force and a search warrant was [obtained].

Magisterial District Judge Kenneth Lenker (hereinafter "MDJ Lenker") testified that he signed the search warrant on August 13, 2020 . . . at 11:25 a.m. MDJ Lenker believed that there was enough probable cause to approve the search warrant after reviewing the information provided. [Robertson]'s name [and address] appeared on the search warrant. . . [but it] did not specifically mention the curtilage of the home.

[Detective] Joshua Dupler [(Detective Dupler)], with the Dauphin County Drug Task Force, testified that he received a request from probation to obtain a search warrant for [Robertson's] home. Detective Dupler had the warrant reviewed and signed by MDJ Lenker and proceeded to the scene. . . . The items found during the search include[d]: a small mason jar containing marijuana in a nightstand in the basement bedroom, a cellular phone in the basement bedroom nightstand, a bag of suspected crack cocaine in the ceiling in [Robertson]'s bedroom, a Dutch Master bag containing suspected marijuana in the ceiling of [Robertson]'s room, several plastic bags found in the ceiling in [Robertson]'s room, a vacuum-sealed bag of marijuana in a green bookbag found in the garage, pistol magazine plates in a green bag in the basement, a purple Crown Royal bag containing $5,000.00 cash in the ceiling, a Gucci bag containing over $30,000.00 cash in the ceiling, a Charter Arms .38 special firearm that was found [outside of a window on the southside of the house], a Smith [&] Wesson Bodyguard .380 found with the previous firearm, and a plastic bag containing paraphernalia found [with the firearms].

Detective Dupler testified that it is standard procedure to search around the [outside of the] house when searching a house. Once the search was completed, Detective Dupler returned to the station with the evidence and prepared charges against [Robertson]. It was determined that the Smith [&] Wesson Bodyguard .380 firearm was stolen out of Lower Paxton Township. [Detective Dupler also testified that the items listed on the search warrant did not include the items that were found by probation prior to police arriving.]

Probation [O]fficer Brandon Rigel [(PO Rigel), was with PO Anglemeyer on August 13, 2020, and] testified that he searched [Robertson]'s vehicle on August 13, 2020. PO Rigel testified that, upon arriving at [Robertson]'s home, [Robertson] exited his vehicle and stated that he was smoking marijuana. PO Anglemeyer asked [Robertson] for consent to search the vehicle, [Robertson] gave consent, and PO Rigel began searching the vehicle. PO Rigel located a clear sandwich baggy containing suspected marijuana in the center console, another black bag behind the driver's seat containing another clear baggy containing suspected marijuana, over $700.00 in cash, and three cellular phones in the same black bag. [Robertson] was detained without incident at that point, stated that he felt lightheaded, and requested an ambulance. PO Rigel stated that the search of the vehicle stopped once violations of supervision were found. PO Rigel testified that the marijuana found was not packed as medical marijuana.

Order and Opinion, 10/5/22, at 2-5.

On August 13, 2020, the Commonwealth charged Robertson with, inter alia,^[7] the above-mentioned offenses. After a defense continuance, Robertson proceeded to a preliminary hearing on October 29, 2020, after which all charges were held for trial. The case was assigned to the Honorable Deborah E. Curcillo (hereinafter "trial court" or "trial judge"), and trial was scheduled for February 17, 2021.

On November 27, 2020, Robertson filed a motion to proceed pro se. The trial court conducted a Grazier^[8] hearing on December 8, 2020, after which the trial court permitted Robertson to proceed pro se, but appointed Shawn M. Dorward, Esquire, as standby counsel. See N.T. Hearing, 12/8/20, at 1-9; see also Order, 12/10/20, at 1.

On January 4, 2021, Robertson filed a motion to compel discovery. On January 20, 2021, the Commonwealth filed the Criminal Information against Robertson, formally charging him with the above-mentioned offenses. On January 21, 2021, the trial court granted Robertson's motion to compel discovery.

On February 17, 2021, the trial court conducted a hearing, at which Robertson argued the Commonwealth had not complied with the trial court's order to provide discovery. Ultimately, the trial court agreed with Robertson, credited the continuance to the court, rescheduled trial for April 12, 2021, and directed the Commonwealth to comply with the discovery order.

On April 5, 2021, seven days prior to trial, Robertson filed a motion for extension of time to file an omnibus pre-trial motion. Thereafter, the trial court granted the extension request. Ultimately, due to court calendar conflicts, Robertson's trial was rescheduled again.^[9]

On September 13, 2021, Robertson filed a motion to impose sanctions against the Commonwealth for failure to produce discovery. The trial court ordered the Commonwealth to file a response. The Commonwealth filed a response, in which it indicated that the outstanding discovery had not been requested by Robertson until July 9, 2021, and that the Commonwealth was waiting for the Pennsylvania State Police Laboratories to provide the requested discovery. On October 13, 2021, the trial court denied Robertson's motion to impose sanctions, and ordered that Robertson file "any pre-trial motions . . . within fourteen (14) days of the date the Commonwealth provides the Laboratory materials." Order, 10/13/21, at 1 (emphasis omitted).

On October 19, 2021, Robertson filed objections to the trial court's acceptance of the Commonwealth's response. On the same day, Robertson filed a second motion to compel discovery. On October 26, 2021, the trial court denied Robertson's second motion to compel discovery.

On November 10, 2021, Robertson filed a writ of habeas corpus. On the same day, Robertson filed an omnibus pre-trial motion in which he contended, inter alia,^[10] that the probation...