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Commonwealth v. Kubis

July 21, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
GEORGE VINCENT KUBIS, APPELLANT



Appeal from the Judgment of Sentence May 12, 2008 In the Court of Common Pleas of Bucks County Criminal Division at No. CP-09-CR-0008943-2007.

The opinion of the court was delivered by: Bender, J.

BEFORE: LALLY-GREEN, BENDER and FITZGERALD*fn1, JJ.

OPINION

¶ 1 George Kubis (Appellant) was found guilty of robbery and related charges by a jury on March 13, 2008 and was sentenced to twenty-five to fifty years' imprisonment. On appeal, Appellant contends that there was insufficient evidence to convict him of robbery, that denial of his motions to suppress physical evidence and identification evidence was improper, and that irrelevant evidence was improperly admitted at trial. After review, we affirm.

¶ 2 At approximately 8:10 a.m. on August 23, 2007, Appellant entered Mr. Stencler's hair salon wearing a black bandana, sunglasses, and black clothing. Appellant demanded that Stencler give him all his money and then hit him in the head with his palm. After Stencler emptied the cash register, Appellant threatened to stab Stencler if he did not give Appellant the rest of the money in the store. Stencler then led Appellant to the salon's safe. As Stencler struggled with the safe's combination, Appellant stated, "If you don't open that safe in the next two seconds, I am going to run a knife through you." N.T., 3/12/08, at 8. After Stencler handed over the money, Appellant instructed Stencler to stay down and threatened to beat him.

¶ 3 Appellant then turned to leave the salon, ripping a ringing phone off the wall as he exited. Stencler did not have a clear view of the vehicle Appellant fled in, but believed it was dark in color. After Appellant left, Stencler called 911 from another phone in the salon.

¶ 4 Detective John Schlotter of the Warminster Township Police Department spoke with Glen Ockenhouse, an employee of the bank located in the same shopping center as Stencler's salon. Ockenhouse arrived at work during the robbery and witnessed a dark colored Jeep Cherokee parked next to the hair salon. He stated that the driver, a man in a black bandana and sunglasses, exited the Jeep and entered the salon. Ockenhouse was also able to provide Detective Schlotter with video footage from the bank surveillance camera which showed a dark vehicle resembling a Jeep driving through the bank parking lot.

¶ 5 Detective Schlotter then received a tip from the Horsham Township Police Department indicating that Appellant had recently been released from prison after serving time for two armed robberies involving a knife, and had been spotted in a Jeep that matched the description given by Ockenhouse and seen on the bank video.

¶ 6 Detective Schlotter proceeded to Appellant's apartment, where he found a Jeep Cherokee similar to the one viewed on the bank surveillance video. Inside, police saw a black bandana, two folding knives, and a box cutter. After questioning Appellant, officers seized the Jeep. During the seizure, Appellant attempted to remove the car from the premises, but was not permitted to do so. A later search of the Jeep pursuant to a warrant revealed sunglasses and a pair of gloves in its passenger compartment.

¶ 7 Detective Schlotter then used computer software to compile a photo lineup. The detective selected seven photos of balding men with light complexions, mustaches, and blue eyes to match Appellant's general appearance. From the assembled array, Stencler selected photos of Appellant and one other man.

¶ 8 Based on the foregoing, the Commonwealth arrested Appellant and charged him with robbery and related offenses. Appellant filed a motion to suppress the evidence found in his Jeep, claiming that the police violated the Fourth Amendment when they seized it. The trial court denied the motion and following a jury trial, Appellant was convicted of robbery under 18 Pa.C.S. §§ 3701(a)(ii), 3701(a)(iii), respectively.*fn2 Appellant then filed this appeal raising four questions for our review:

A. Did the trial court err in denying Appellant's motion to suppress evidence obtained from the seizure and search of Appellant's vehicle?

B. Did the trial court err by admitting irrelevant evidence of knives and black gloves that were ...


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