Com. v. Withrow, M. ( 2018 )

J-S85022-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL WITHROW :
:
Appellant : No. 847 WDA 2017
Appeal from the Judgment of Sentence May 11, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011311-2016
BEFORE: BOWES, J., PANELLA, J., and STABILE, J.
MEMORANDUM BY PANELLA, J. FILED JUNE 05, 2018
Michael Withrow appeals from the judgment of sentence entered in the
Allegheny County Court of Common Pleas, following his convictions for
possession of a firearm without a license, and receiving stolen property.1 We
affirm.2
The relevant facts and procedural history of this case are as follows.
Undercover police were driving an unmarked car while patrolling a high-crime
neighborhood in Pittsburgh. They observed a green SUV with oversized wheels
and a missing exhaust pipe driving down the road. The officers could see
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1 18 Pa.C.S.A. §§ 6106(a)(1) and 3925(a), respectively.
2Appellant’s counsel, Jessica L. Herndon, Esquire, filed a motion to withdraw
as counsel, informing us that she resigned from the Allegheny County Public
Defender’s Officer effective May 1, 2018. We grant the motion to withdraw.
Appellant remains represented by other attorneys from that office.
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passengers in the SUV repeatedly looking back at the officers’ unmarked car.
Before officers were able to pull over the SUV for suspected Motor Vehicle
Code violations, it stopped. Two men got out, and walked to opposite sides of
the street from one another. A female moved to the driver’s seat and drove
the SUV down the street.
The men appeared nervous, and attempted to shield the front of their
bodies from the officers’ view by turning away from the unmarked car. The
officers believed these actions were intended to conceal objects on the front
of their persons. One of the officers observed Appellant was wearing tight
pants, through which he could see the L-shaped outline of what the officer
immediately recognized to be a firearm. The officer believed Appellant did not
look old enough to have a concealed carry permit. The officers immediately
stopped Appellant and his companion, patted them down, and found a firearm
in Appellant’s front left pocket.
Appellant filed a motion to suppress the firearm, which the court denied
after a hearing. Appellant then immediately proceeded to a bench trial on
stipulated facts. The Commonwealth presented evidence the gun had been
reported stolen. The parties stipulated Appellant did not have a license to carry
a firearm, and the gun’s owner did not give Appellant permission to use it.
The court found Appellant guilty of both possession of a firearm and receiving
stolen property, and sentenced him on the § 6106(a)(1) conviction to three
years’ probation. The court imposed no further penalty on the § 3925(a)
conviction. Appellant did not file any post-sentence motions. On appeal,
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Appellant challenges the court’s denial of his suppression motion, and the
sufficiency of the evidence to support his conviction for receiving stolen
property.
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before 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 suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. Where,
as here, the appeal of the determination of the suppression court
turns on allegations of legal error, the suppression court’s legal
conclusions are not binding on an appellate court, whose duty it
is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below are
subject to our plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal citations
and quotation marks omitted).
There are three levels of interaction between citizens and police officers:
(1) a mere encounter, (2) an investigative detention, and (3) a custodial
detention. See Commonwealth v. Fuller, 940 A.2d 476, 478 (Pa. Super.
2007). An investigatory detention, otherwise known as a Terry3 stop, permits
an officer to briefly detain “an individual in order to conduct an investigation
if that officer reasonably suspects that the individual is engaging in criminal
conduct.” Commonwealth v. Raglin, 178 A.3d 868, 872 (Pa. Super. 2018)
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3 Terry v. Ohio, 392 U.S. 1 (1968).
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(citations omitted). Mere presence in a high crime area is insufficient to
support a finding of reasonable suspicion; however, a court may consider that
fact in assessing the totality of the circumstances. See In re D.M., 781 A.2d
1161, 1163-1164 (Pa. 2001).
If at any point during this investigatory detention, an “officer believes,
based on specific and articulable facts, that the individual is armed and
dangerous” the officer may perform a Terry frisk. Commonwealth v.
Stevenson, 894 A.2d 759, 772 (Pa. Super. 2006) (citation omitted). “The
purpose of this limited search is not to discover evidence of crime, but to allow
the officer to pursue his investigation without fear of violence.”
Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa. Super. 2011) (citations
omitted). “The fundamental inquiry” in reviewing the officer’s decision “is an
objective one,” utilizing “a totality of the circumstances test.”
Commonwealth v. Griffin, 954 A.2d 648, 651 (Pa. Super. 2008) (citations
omitted).
One of the arresting officers testified at the suppression hearing. He
stated he was patrolling a high-crime area with other undercover officers,
when an SUV that appeared to be in violation of several Vehicle Code
regulations caught his attention. See N.T., Suppression Hearing, 5/10/17, at
4. Before the officers were able to conduct a traffic stop, the SUV pulled over,
and Appellant and another man got out. See id., at 5. The men made evasive
motions, turning away from the officers in an apparent effort to hide an object
or objects in their front pockets. See id. The officer testified he could see the
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outline of what he immediately recognized as a firearm through Appellant’s
tight clothing, and he did not believe Appellant looked old enough to have a
license to carry a concealed weapon. See id., at 12. The officers then stopped
Appellant and his companion, and patted them down for weapons. See id., at
11. After discovering Appellant was carrying a firearm and did not have a
license to carry a concealed weapon, the officers arrested him.
Based on the foregoing, the totality of the circumstances support the
officers’ stop and frisk of Appellant. Thus, we find the court did not abuse its
discretion by denying Appellant’s motion to suppress.
Appellant also argues the Commonwealth failed to present sufficient
evidence that Appellant knew the gun was stolen. We disagree.
Our standard of review for a challenge to the sufficiency of the evidence
is to determine whether, when viewed in a light most favorable to the verdict
winner, the evidence at trial and all reasonable inferences therefrom are
sufficient for the trier of fact to find each element of the crimes charged is
established beyond a reasonable doubt. See Commonwealth v. Dale, 836
A.2d 150, 152 (Pa. Super. 2003).
“[T]he facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence.” Commonwealth v. Bruce, 916
A.2d 657, 661 (Pa. Super. 2007) (citation omitted). Any doubt raised as to
the accused’s guilt is to be resolved by the fact-finder. See Commonwealth
v. Kinney, 863 A.2d 581, 584 (Pa. Super. 2004) (citation omitted). “As an
appellate court, we do not assess credibility nor do we assign weight to any
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of the testimony of record.” Id. (citation omitted). Therefore, we will not
disturb the verdict “unless the evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn from the combined
circumstances.” Bruce, 916 A.2d at 661 (citation omitted). Evidence is weak
and inconclusive “[w]hen two equally reasonable and mutually inconsistent
inferences can be drawn from the same set of circumstances….”
Commonwealth v. Woong Knee New, 47 A.2d 450, 468 (Pa. 1946).
However, “[t]he Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence.” Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.
Super. 2009) (citations omitted).
A conviction for receiving stolen property requires the Commonwealth
prove the defendant “intentionally receive[d], retain[ed], or dispose[d] of
movable property of another knowing that it [had] been stolen, or believing
that it [had] probably been stolen[.]” 18 Pa.C.S.A. § 3925(a). Mere possession
of a stolen object, without more, is insufficient to establish guilty knowledge.
See Commonwealth v. Foreman, 797 A.2d 1005, 1012 (Pa. Super. 2002).
Circumstantial evidence that may support an inference of such knowledge
includes the length of time between the theft and the discovery of the stolen
property, as well as
the place or manner of possession, alterations to the property
indicative of theft, the defendant’s conduct or statements at the
time of arrest (including attempts to flee apprehension), a false
explanation for the possession, the location of the theft in
comparison to where the defendant gained possession, the value
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of the property compared to the price paid for it, or any other
evidence connecting the defendant to the crime.
Commonwealth v. Robinson, 128 A.3d 261, 268 (Pa. Super. 2015) (en
banc) (citations omitted).
Here, the Commonwealth presented evidence at trial that the gun’s
owner reported it stolen. Both parties stipulated that if called to testify, the
owner would state Appellant did not have his permission to use the gun. See
N.T., Trial, 5/11/17, at 18. One of the arresting officers testified he could see
Appellant and his companion repeatedly looking back at them through the
windows of the SUV. See id., at 5. After alighting from the SUV, the officer
stated Appellant looked nervous—and he attempted to shield the front of his
body from view. See id., at 6.
In its opinion, the trial court states it rejected defense counsel’s
argument that the Commonwealth failed to demonstrate the knowledge
element of the receiving stolen property offense because it “ultimately
determined [Appellant] would necessarily have known the gun wasn’t his. The
attendant circumstances – including [Appellant’s] age of 18 (thus being unable
to legally possess a concealed weapon) and his evasiveness with the police
officers – all support this [c]ourt’s determination.” Trial Court Opinion, filed
10/17/17, at 6.
By itself, Appellant’s possession of the firearm does not establish he
knew it was stolen. However, the court permissibly inferred that knowledge
based on the circumstances and his accompanying behavior. Appellant
behaved evasively: he exited the car after he and his companion believed they
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were being followed and attempted to shield the front of his body from the
officers, in order to hide the firearm. Coupled with Appellant’s age—18 years
old—4the circumstances support the finding that Appellant knew the gun had
been stolen, or believed it probably had been stolen.
Thus, we find the evidence supporting Appellant’s receiving stolen
property conviction to be sufficient, and we affirm his judgment of sentence.
Judgment of sentence affirmed. Motion granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2018
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4Apart from exceptions not pertinent here, “a person under 18 years of age
shall not possess or transport a firearm anywhere in this Commonwealth.” 18
Pa.C.S.A. § 6110.1(a). “Firearm” is defined, in pertinent part, as “[a]ny pistol
… with a barrel length less than 15 inches….” 18 Pa.C.S.A. § 6102.
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