Com. v. Nowlin, A.
Com. v. Nowlin, A. No. 406 WDA 2016
| Pa. Super. Ct. | May 26, 2017Background
- Police used confidential informant Troy Jukes in an undercover operation; Jukes testified he saw a gun in Nowlin’s waistband after meeting him in a Walmart parking lot.
- Officers surveilled Nowlin; when he left the lot in his car a short time later, a marked officer observed an object fly from the passenger-side window that appeared to be a gun.
- The car was pursued, stopped with spike strips, and Nowlin (the sole occupant) was arrested after a high-speed chase.
- An officer recovered a damaged semiautomatic pistol, a magazine, and two bullets in the area where the object was seen to land; a partial palm print from the gun was inconclusive.
- Nowlin moved pretrial to suppress evidence, arguing intercepted phone calls were illegal; he did not argue at trial that the Commonwealth failed to prove possession. He was convicted of illegal possession of a firearm and carrying a firearm without a license and sentenced to 8.5–17 years.
- On appeal nunc pro tunc, Nowlin argued the gun was improperly admitted because it was not sufficiently linked to him; the Superior Court held the claim was waived and, alternatively, meritless because the Commonwealth laid an adequate foundation for admission.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of recovered firearm | Commonwealth: gun was relevant and properly admitted with foundation linking it to Nowlin | Nowlin: gun should be suppressed/excluded because evidence did not sufficiently tie it to him | Court: claim waived for lack of preservation; alternatively, gun was admissible — sufficient circumstantial link (informant’s sighting, officer observation, recovery nearby, damaged condition) |
| Sufficiency of link between gun and defendant | N/A at trial (Commonwealth relied on relevance and foundation) | Nowlin: gun not proved to be in his possession when recovered | Court: even without definitive forensic match, testimony and recovery facts provided adequate foundation for jury to weigh the evidence |
| Whether real evidence unconnected to accused is admissible | Commonwealth: real evidence admissible if relevant and proper foundation laid | Nowlin: challenged relevancy/connection on appeal | Court: low threshold for relevance; real evidence admissible and weight for jury to decide |
| Preservation of issues on appeal | Commonwealth: appellate issues must be preserved below | Nowlin: raised possession theory for first time on appeal | Court: refused review under Pa.R.A.P. 302(a); waived and therefore not considered on merits |
Key Cases Cited
- Commonwealth v. Phillips, 141 A.3d 512 (Pa. Super. 2016) (issues not raised below are waived on appeal)
- Commonwealth v. Thur, 906 A.2d 552 (Pa. Super. 2006) (cannot raise different suppression arguments on appeal than raised below)
- Commonwealth v. Woodard, 129 A.3d 480 (Pa. 2015) (standard of review for evidentiary rulings)
- Brady v. Urbas, 111 A.3d 1155 (Pa. 2015) (low threshold for relevance under Rule 401)
- Commonwealth v. Novak, 150 A.2d 102 (Pa. 1959) (longstanding rule that real evidence related to the crime is admissible)
- Commonwealth v. Martinez, 380 A.2d 747 (Pa. 1977) (foundation for admitting physical evidence found near crime scene even without definitive identification)
- Commonwealth v. Williams, 464 A.2d 411 (Pa. Super. 1983) (admissibility of weapons and clothing found along fleeing route)
- Commonwealth v. Aikens, 990 A.2d 1181 (Pa. Super. 2010) (older caselaw may be relied upon if consistent with current rules)
- Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (noted for statutory sentencing context cited in the opinion)
- Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (standard for accepting waiver of counsel/pro se requests)