Com. v. Bagley, J. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMAR G. BAGLEY
Appellant No. 3221 EDA 2013
Appeal from the Judgment of Sentence October 25, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0008532-2012
BEFORE: ALLEN, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 12, 2014
Appellant, Jamar G. Bagley, appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas, following his bench
trial convictions for possession of a firearm prohibited, carrying a firearm
without a license, and driving with a suspended or revoked license. 1 We
affirm.
The trial court sets forth the relevant facts and procedural history of
this appeal as follows:
On the evening of November 29, 2012 at approximately
11:27 P.M., Officer Steven Corsi, of the Ridley Park Police
Department, was on duty and working patrol along Chester
Pike, which is located in Delaware County, Pennsylvania.
Officer Corsi was in full uniform and in an unmarked patrol
car, and was traveling with Officer Josh Powley. Officer
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1
18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1); 75 Pa.C.S. 1543(a), respectively.
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Powley was driving. During their patrol, Officer Corsi
observed a white Honda sedan traveling westbound on
Chester Pike that had a registration lamp out. Upon seeing
the vehicle’s lamp, Officer Powley activated the emergency
lights on his police vehicle in order to make a traffic stop.
The driver of the vehicle proceeded about a block, turned
left onto Stewart Avenue, and pulled over to the right
shoulder of the road. This took approximately 30 seconds.
Officer Corsi observed that there was one person in the
vehicle. Through the rear window, he observed this
individual lean across the center console and reach
towards the passenger side of the vehicle.
As Officers Corsi and Powley approached the vehicle, the
individual continued to reach towards the passenger side
of the vehicle. The individual, ([Appellant]) was ordered to
put his hands on the steering wheel. [Appellant] appeared
nervous and was ‘very jittery.’
Officer Powley approached the driver’s side of the vehicle
and made contact with [Appellant]. [Appellant] did not
provide a driver’s license, but provided a state ID from
North Carolina. The officers then ran the Appellant’s name
through their system and discovered that he had a
suspended driver’s license. The car was registered to
Nafeassia Powell and Deborah Gordon. It was later
discovered that one of the registered owners, Nafeassia
Powell, who is Appellant’s girlfriend, had given him
permission to the drive the vehicle that day. Following the
officers’ discovery of [Appellant’s] suspended license, they
advised Appellant that he was going to be mailed citations.
Based upon the fact that [Appellant] did not have a valid
driver’s license, Officer Corsi asked [Appellant] to step
away from the vehicle. [Appellant] was taken to the rear
of the vehicle and [patted] down for officer safety. He was
asked ‘if there was anything else in the vehicle, any type
of weapons or any narcotic, anything like that.’
[Appellant] answered no. The officers did not tell
[Appellant] that he was free to leave. The officers did tell
[Appellant] that, because no one else was in the car to
drive the vehicle, the vehicle was going to be towed and
impounded. Officer Corsi explained that the policy of the
Ridley Park Police Department is to tow a vehicle when the
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driver is determined to have a suspended license. The
policy of the police department also requires the vehicle to
be searched and inventoried for items of value. Before
performing the search, the officers asked [Appellant] if
they could search the vehicle. He replied yes. Following a
search of the vehicle, a silver revolver was recovered from
underneath the front passenger seat in the vehicle.
Officer Corsi secured the weapon and advised [Appellant]
that they located a weapon. [Appellant] stated that ‘he
had it for protection.’ [Appellant] was then detained while
the officers checked to see if he had a permit for the
firearm. The officers ran a search and discovered that
[Appellant] was not licensed to carry a firearm in the state
of Pennsylvania. Appellant was later placed in handcuffs.
* * *
Appellant was arrested and charged with possession of a
firearm prohibited, firearms not to be carried without a
license, prohibited offensive weapons, and related
offenses….
On October 1, 2013, Appellant was tried before the
undersigned on charges of possession of a firearm
prohibited, firearms not to be carried without a license,
prohibited offensive weapons, driving while operating
privilege is suspended or revoked, and general lighting
requirement - no headlights. At trial, the Commonwealth
and defense counsel stipulated to the following:
The first being Exhibit Commonwealth C-1, the
incident report dated November 29, 2012;
Commonwealth Exhibit C-2, the Affidavit of Probable
Cause; Commonwealth Exhibit C-3, the certified
driving history of Mr. Bagley[;] Commonwealth
Exhibit C-4, State Police certification for licensing
status of Mr. Bagley; Commonwealth Exhibit C-5, the
certified conviction for Mr. Bagley from transcript
number 5981 of 2006 dated December 18 of 2006;
Commonwealth Exhibit C-6, the ballistics report from
Detective Grandizio dated December 5, 2012;
Commonwealth Exhibit C-7, the testimony from the
preliminary hearing dated December 17, 2012;
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Commonwealth Exhibit C-8, testimony on the
Defendant's Motion to Suppress held before the
Honorable Gregory M. Mallon dated August 29,
2013; Commonwealth Exhibit C-9, a Kimmel brand
model 5000, 32 caliber revolver, serial number
G44611. It is further stipulated from the time each
of the Government’s exhibits came into the
Government’s possession through the time of their
introduction into evidence a proper chain of custody
was maintained and the exhibits were not altered,
tampered with or modified in any way. The
Commonwealth Exhibit C-9 was analyzed by
Detective Louis Grandizio who, if called to testify,
would be qualified in the Field of Forensic Firearms
Examination as an expert and would testify in that
capacity to the result of his analysis that the
revolver, R-1, was test fired and found to be
operable. R-1 is the Kimmel brand model 5000
caliber 32 revolver, serial G44611, submitted by the
Ridley Park Police Department and recovered from
the vehicle Mr. Bagley was operating on November
29, 2012. And the results of Detective Grandzio’s
analysis are contained in his ballistics report dated
December 5, 2012 and incorporated herein as Exhibit
C-6.
[Appellant] took the stand at trial and denied making a
statement to the police. He further stated that the police
did not ask for consent to search the vehicle.
Following the trial, this court found Appellant [guilty] of
possession of a firearm prohibited, firearms not to be
carried without a license, and driving while operating
privilege is suspended or revoked. A presentence
investigation was conducted and on October 25, 2013 this
court sentenced Appellant as follows:
• Possession of a firearm prohibited: 40 months to
80 months of incarceration and 5 years of
consecutive probation;
• Firearms not to be carried without a license: 40
months to 80 months of incarceration1;
• Driving while operating privilege is suspended or
revoked: [a] $200 fine.
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1
To run concurrent to his sentence on
possession of a firearm prohibited.
Appellant was found not to be RRRI eligible, was given
credit for time served from the period of 11/29/12 through
10/25/13, and was ordered to forfeit the gun recovered.
Trial Court Opinion, filed April 30, 2014, at 1-6 (internal citations to the
record omitted).
On November 13, 2013, Appellant filed a pro se notice of appeal. On
January 15, 2014, the court ordered Appellant to file a Concise Statement of
Errors Complained of on Appeal, within twenty-one (21) days, pursuant to
Pa.R.A.P. 1925(b). The prothonotary gave Appellant written notice of the
court’s order, but did not give such notice to Appellant’s counsel. Appellant
filed a counseled Rule 1925(b) statement on March 11, 2014.
Appellant raises the following issues for our review:
WHETHER APPELLANT HAS NOT WAIVED HIS ISSUES ON
APPEAL BASED ON NON-COMPLIANCE WITH PA.R.A.P.
1925, FOR UNTIMELY FILING HIS 1925(B) STATEMENT,
WHERE THE DELAY IN FILING STEMMED FROM THE
PROTHONOTARY’S FAILURE TO GIVE WRITTEN NOTICE OF
THE TRIAL COURT’S 1925(B) ORDER TO APPELLANT’S
ATTORNEY?2
WHETHER APPELLANT’S CONVICTIONS FOR PERSONS
PROHIBITED FROM POSSESSING A FIREARM AND
CARRYING A FIREARM WITHOUT A LICENSE SHOULD BE
VACATED, BECAUSE THE LOWER COURT ABUSED ITS
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2
Although this issue was not raised in Appellant’s Rule 1925(b) statement
and is arguably waived, we must address it to determine whether Appellant’s
other issues are properly before this Court.
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DISCRETION IN DENYING APPELLANT'S [SUPPRESSION]
MOTION, WHERE FIREARM ATTRIBUTABLE TO
APPELLANT’S POSSESSION WAS RECOVERED AS THE
RESULT OF A COERCED CONSENSUAL SEARCH,
CONDUCTED DURING THE COURSE OF AN
INVESTIGATORY TRAFFIC STOP, WITHOUT REASONABLE
SUSPICION OR PROBABLE CAUSE THAT APPELLANT HAD
ENGAGED IN CRIMINAL ACTIVITY, WHICH VIOLATED
APPELLANT’S CONSTITUTIONAL RIGHT TO A FAIR SEARCH
AND SEIZURE UNDER THE FOURTH AMENDMENT OF THE
UNITED STATES CONSTITUTION, BY AND THROUGH THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
OF THE UNITED STATES CONSTITUTION, AND ARTICLE 1,
SECTION 8 OF THE PENNSYLVANIA STATE
CONSTITUTION?
WHETHER APPELLANT’S CONVICTIONS FOR PERSONS
PROHIBITED FROM POSSESSING A FIREARM AND
CARRYING A FIREARM WITHOUT A LICENSE SHOULD BE
VACATED, BECAUSE THE LOWER COURT ABUSED ITS
DISCRETION IN DENYING APPELLANT’S SUPPRESSION
MOTION, WHERE FIREARM ATTRIBUTABLE TO
APPELLANT’S POSSESSION WAS RECOVERED AS THE
RESULT OF THE POLICE OBTAINING APPELLANT’S
CONSENT TO SEARCH VEHICLE, DURING THE COURSE OF
AN INVESTIGATORY TRAFFIC STOP, WITHOUT FIRST
ADVISING APPELLANT OF HIS MIRANDA RIGHTS, WHICH
VIOLATED APPELLANT’S CONSTITUTIONAL RIGHT
AGAINST SELF-INCRIMINATION UNDER THE FIFTH
AMENDMENT OF THE UNITED STATES CONSTITUTION, BY
AND THROUGH THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT , AND ARTICLE 1, SECTION 9
OF THE PENNSYLVANIA STATE CONSTITUTION?
WHETHER APPELLANT’S CONVICTION FOR PERSONS
PROHIBITED FROM POSSESSING A FIREARM AND
CARRYING A FIREARM WITHOUT A LICENSE SHOULD BE
VACATED, BECAUSE THERE WAS INSUFFICIENT EVIDENCE
TO ESTABLISH THAT APPELLANT WAS IN CONSTRUCTIVE
POSSESSION OF [THE] FIREARM RECOVERED FROM
UNDERNEATH OF [THE] PASSENGER [SEAT] OF [THE]
AUTOMOBILE, THAT WAS OPERATED BY APPELLANT BUT
OWNED BY ANOTHER PERSON?
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Appellant’s Brief at 5-6.
Before we address the merits of this appeal, we must determine
whether Appellant timely filed his Rule 1925(b) statement in the trial court.
If his statement was untimely, Pa.R.A.P. 1925(c)(3) obligates us to deem
appellate counsel ineffective and to remand the case for the filing of a Rule
1925(b) statement nunc pro tunc. Commonwealth v. Myers, 86 A.3d 286,
289 (Pa.Super.2014). In this case, because the prothonotary failed to send
the court’s Rule 1925(b) order to Appellant’s counsel, we will not find that
Appellant’s Rule 1925(b) statement is untimely.
The Pennsylvania Rules of Appellate Procedure provide, in relevant
part:
Rule 1925. Opinion in Support of Order
* * *
(b) Direction to file statement of errors
complained of on appeal; instructions to the
appellant and the trial court.--If the judge entering the
order giving rise to the notice of appeal (“judge”) desires
clarification of the errors complained of on appeal, the
judge may enter an order directing the appellant to file of
record in the trial court and serve on the judge a concise
statement of the errors complained of on appeal
(“Statement”).
(1) Filing and service.--Appellant shall file of record
the Statement and concurrently shall serve the judge.
Filing of record and service on the judge shall be in person
or by mail as provided in Pa.R.A.P. 121(a) and shall be
complete on mailing if appellant obtains a United States
Postal Service Form 3817, Certificate of Mailing, or other
similar United States Postal Service form from which the
date of deposit can be verified in compliance with the
requirements set forth in Pa.R.A.P. 1112(c). Service on
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parties shall be concurrent with filing and shall be by any
means of service specified under Pa.R.A.P. 121(c).
(2) Time for filing and service.--The judge shall allow
the appellant at least 21 days from the date of the order’s
entry on the docket for the filing and service of the
Statement. Upon application of the appellant and for good
cause shown, the judge may enlarge the time period
initially specified or permit an amended or supplemental
Statement to be filed. In extraordinary circumstances, the
judge may allow for the filing of a Statement or amended
or supplemental Statement nunc pro tunc.
* * *
(c) Remand.
(1) An appellate court may remand in either a civil or
criminal case for a determination as to whether a
Statement had been filed and/or served or timely filed
and/or served.
* * *
(3) If an appellant in a criminal case was ordered to file
a Statement and failed to do so, such that the appellate
court is convinced that counsel has been per se ineffective,
the appellate court shall remand for the filing of a
Statement nunc pro tunc and for the preparation and filing
of an opinion by the judge.
Pa.R.A.P. 1925.
Additionally, we note that the Pennsylvania Rules of Criminal
Procedure provide in relevant part:
Rule 114. Orders and Court Notices: Filing; Service;
and Docket Entries
(A) Filing
(1) All orders and court notices promptly shall be
transmitted to the clerk of courts’ office for filing. Upon
receipt in the clerk of courts’ office, the order or court
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notice promptly shall be time stamped with the date of
receipt.
(2) All orders and court notices promptly shall be placed in
the criminal case file.
(B) Service
(1) A copy of any order or court notice promptly shall be
served on each party's attorney, or the party if
unrepresented.
(2) The clerk of courts shall serve the order or court
notice, unless the president judge has promulgated a local
rule designating service to be by the court or court
administrator.
(3) Methods of Service. Except as otherwise provided in
Chapter 5 concerning notice of the preliminary hearing,
service shall be:
(a) in writing by
(i) personal delivery to the party’s attorney or, if
unrepresented, the party; or
(ii) personal delivery to the party’s attorney’s employee
at the attorney’s office; or
(iii) mailing a copy to the party’s attorney or leaving a
copy for the attorney at the attorney’s office; or
(iv) in those judicial districts that maintain in the
courthouse assigned boxes for counsel to receive
service, when counsel has agreed to receive service by
this method, leaving a copy for the party’s attorney in
the box in the courthouse assigned to the attorney for
service; or
(v) sending a copy to an unrepresented party by
certified, registered, or first class mail addressed to the
party’s place of residence, business, or confinement; or
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(vi) sending a copy by facsimile transmission or other
electronic means if the party’s attorney, or the party if
unrepresented, has filed a written request for this
method of service as provided in paragraph (B)(3)(c);
or
(vii) delivery to the party’s attorney, or the party if
unrepresented, by carrier service; or
(b) orally in open court on the record.
Pa.R.Crim.P. 114.
In Commonwealth v. Lord, our Supreme Court held that
“[a]ppellants must comply whenever the trial court orders them to file a
Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any
issues not raised in a 1925(b) statement will be deemed waived.” 719 A.2d
306, 309 (1998). In Commonwealth v. Castillo, the Supreme Court re-
affirmed the bright line rule set forth in Lord that mandates strict
compliance with Rule 1925(b). 888 A.2d 775, 780 (Pa.2005). In Castillo,
the Court specifically voiced its disproval of “prior decisions of the
intermediate courts to the extent that they…created exceptions to Lord and
have addressed issues that should have been deemed waived.” Id.Regarding our compliance with Lord, this Court has noted:
We have been strict in holding appellants to the dictates of
[Lord] and its progeny. If we are going to do that, we
should also be strict in requiring the trial court and clerk of
courts to comply with the rules regarding notice of Rule
1925(b) orders.
* * *
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The requirement that defendants be given notice of the
need to file a Rule 1925(b) statement is not a mere
technicality. If we are to find that defendants waived their
constitutional rights, we must be sure that the clerk of the
court did his or her job to advise the defendants that it
was necessary to act.
Commonwealth v. Davis, 867 A.2d 585, 588 (Pa.Super.2005) (en banc).
See also Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc.,
88 A.3d 222, 224-26 (2014) (holding that failure by the prothonotary to
“give written notice of the entry of a court order and to note on the docket
that notice was given” will prevent waiver for timeliness pursuant to
Pa.R.A.P. 1925(b)).
Instantly, Appellant filed a pro se notice of appeal, although he was
represented by counsel. The prothonotary sent Appellant written notice of
the trial court’s order pursuant to Rule 1925(b), but sent no such notice to
Appellant’s counsel. Because the prothonotary failed to give written notice
to Appellant’s counsel, Appellant’s issues will not be waived for failure to
comply with timeliness requirements of Rule 1925(b). See Davis, supra;
Pa.R.Crim.P. 114(B)(1). Thus, we address Appellant’s remaining issues.
In his second and third issues, Appellant argues the trial court erred in
denying his suppression motion. Specifically, Appellant claims the police
officers stopped him without reasonable suspicion or probable cause that he
had engaged in criminal activity. Appellant complains that the officers
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should have advised him of his Miranda3 rights before obtaining his consent
to search his vehicle, and that his consent to the search of his vehicle was
coerced. Appellant concludes his federal and state constitutional rights have
been violated and that his judgment of sentence should be vacated. We
disagree.
As a preliminary matter, we observe that the trial court failed to enter
findings of fact and conclusions of law following the suppression hearing,
pursuant to Pennsylvania Rule of Criminal Procedure 581(I).4 “Where a trial
court fails to abide by Rule 581(I), however, this Court may look at the trial
court's Rule 1925(a) opinion to garner findings of fact and conclusions of
law.” Commonwealth v. Stevenson, 832 A.2d 1123, 1126-27
(Pa.Super.2003) (citing Commonwealth v. Reppert, 814 A.2d 1196, 1200
(Pa.Super.2002)). See also Commonwealth v. Dutrieville, 932 A.2d 240(2007).
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3
Miranda v. Arizona, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966).
4
The Pennsylvania Rules of Criminal Procedure provide in relevant part:
At the conclusion of the hearing, the judge shall enter on the
record a statement of findings of fact and conclusions of law as
to whether the evidence was obtained in violation of the
defendant's rights, or in violation of these rules or any statute,
and shall make an order granting or denying the relief sought.
Pa.R.Crim.P. 581(I).
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In the instant case, the trial court issued a Rule 1925(a) opinion that
adequately relates the court’s findings of fact and conclusions of law. Thus,
we are able to review Appellant’s issues.
We review the denial of a suppression motion as follows:
Our standard of review in addressing a challenge to a trial
court's denial of a suppression motion is limited to
determining whether the factual findings are supported by
the record and whether the legal conclusions drawn from
those facts are correct.
We may consider only the evidence of the prosecution 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 record supports the findings of the
suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal
conclusions based upon the facts.
Commonwealth v. Gillespie, ___ A.3d. ___, 2014 PA Super 245 (Oct. 27,
2014) (quoting Commonwealth v. Williams, 941 A.2d 14, 26–27
(Pa.Super.2008) (en banc ).
Where…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
plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.2010) (internal
citations and quotation marks omitted).
Initially, we observe that there are three types of interactions between
police officers and citizens. Commonwealth v. Stevenson, 832 A.2d
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1123, 1126-27, (Pa.Super.2003). “Interaction between citizens and police
officers, under search and seizure law, is varied and requires different levels
of justification depending upon the nature of the interaction and whether or
not the citizen is detained.” Id.Such interaction may be classified as a “mere encounter,”
an “investigative detention,” or a “custodial detention.” A
“mere encounter” can be any formal or informal interaction
between an officer and a citizen, but will normally be an
inquiry by the officer of a citizen. The hallmark of this
interaction is that it carries no official compulsion to stop
or respond.
In contrast, an “investigative detention,” by implication,
carries an official compulsion to stop and respond, but the
detention is temporary, unless it results in the formation of
probable cause for arrest, and does not possess the
coercive conditions consistent with a formal arrest. Since
this interaction has elements of official compulsion it
requires “reasonable suspicion” of unlawful activity. In
further contrast, a custodial detention occurs when the
nature, duration and conditions of an investigative
detention become so coercive as to be, practically
speaking, the functional equivalent of an arrest.
‘The protection against unreasonable searches and
seizures afforded by the Pennsylvania Constitution is
broader than that under the Federal Constitution.’
Commonwealth v. Jackson, 698 A.2d 571, 573
(Pa.1997). However, ‘[i]n determining whether reasonable
suspicion exists for a Terry stop, the inquiry is the same
under either Article 1, Section 8 of the Pennsylvania
Constitution or the Fourth Amendment of the United States
Constitution.’ Commonwealth v. McClease, 750 A.2d
320, 324 (Pa.Super.2000).
To determine if an interaction rises to the level of an
investigative detention, i.e., a Terry stop, the court must
examine all the circumstances and determine whether
police action would have made a reasonable person believe
he was not free to go and was subject to the officer’s
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orders. Commonwealth v. Sierra, 723 A.2d 644, 646
([Pa.]1999). An investigative detention, unlike a mere
encounter, constitutes a seizure of a person and thus
activates the protections of Article 1, Section 8 of the
Pennsylvania Constitution. Commonwealth v.
Melendez, 676 A.2d 226, 229 ([Pa.]1996). To institute
an investigative detention, an officer must have at least a
reasonable suspicion that criminal activity is afoot. Sierra,
supra at 176, 723 A.2d at 647. Reasonable suspicion
requires a finding that based on the available facts, a
person of reasonable caution would believe the intrusion
was appropriate. See Commonwealth v. Zhahir, 751
A.2d 1153 (Pa.2000).
Commonwealth v. Stevenson, 832 A.2d 1123, 1127-29 (Pa.Super.2003).
Regarding custodial interrogations:
The test for determining whether a suspect is being
subjected to custodial interrogation so as to necessitate
Miranda warnings is whether he is physically deprived of
his freedom in any significant way or is placed in a
situation in which he reasonably believes that his freedom
of action or movement is restricted by such interrogation.
Said another way, police detentions become custodial
when, under the totality of the circumstances, the
conditions and/or duration of the detention become so
coercive as to constitute the functional equivalent of
arrest.
Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa.Super.1999) (internal
citations omitted). Generally, a traffic stop is considered an investigative
rather than a custodial detention, “unless, under the totality of the
circumstances, the conditions and duration of the detention become the
functional equivalent of arrest.” Id. Because “an ordinary traffic stop is
typically brief in duration and occurs in public view, such a stop is not
custodial for Miranda purposes.” Id.- 15 -
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Police may stop a motor vehicle if an officer observes a traffic code
violation, even if it is a minor offense. Commonwealth v. Chase, 960 A.2d
108, 113 (Pa.2008); see also 75 Pa.C.S. § 6308(b).5 The Vehicle Code
provides that every vehicle “shall be equipped with a rear lighting system”
including a “license plate light.” 75 Pa.C.S. § 4303(b).
Instantly, the police officers stopped Appellant’s vehicle after they
observed that Appellant’s registration light was not lit, in violation of the
Vehicle Code. Thus, the initial stop was permissible. See Chase, supra.
Because the police lawfully stopped Appellant, we must now decide
whether Appellant voluntarily consented to the search of his vehicle. See
Commonwealth v. Reid, 811 A.2d 530, 545 (Pa.2002) (“If the court finds
that…a lawful interaction preceded an alleged consent, the court must then
determine whether the prosecution has adequately proven that the consent
was made voluntarily and was not the product of duress or coercion”).
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5
The Vehicle Code provides:
(b) Authority of police officer.--Whenever a police officer is
engaged in a systematic program of checking vehicles or drivers
or has reasonable suspicion that a violation of this title is
occurring or has occurred, he may stop a vehicle, upon request
or signal, for the purpose of checking the vehicle’s registration,
proof of financial responsibility, vehicle identification number or
engine number or the driver’s license, or to secure such other
information as the officer may reasonably believe to be
necessary to enforce the provisions of this title.
75 Pa.C.S. § 6308.
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A warrantless search is:
unreasonable and therefore constitutionally impermissible,
unless an established exception applies. One such
exception is consent, voluntarily given. The central Fourth
Amendment inquiries in consent cases entail assessment of
the constitutional validity of the citizen/police encounter
giving rise to the consent; and, ultimately, the
voluntariness of consent. Where the underlying encounter
is found to be lawful, voluntariness becomes the exclusive
focus.
Commonwealth v. Kemp, 961 A.2d 1247, 1260-61 (Pa.Super.2008)
(internal citations omitted). Regarding the voluntariness of consent given,
this Court has further explained:
In connection with [the inquiry into the voluntariness of a
consent given pursuant to a lawful encounter], the
Commonwealth bears the burden of establishing that a
consent is the product of an essentially free and
unconstrained choice—not the result of duress or coercion,
express or implied, or a will overborne—under the totality
of the circumstances…. [W]hile knowledge of the right to
refuse to consent to the search is a factor to be taken into
account, the Commonwealth is not required to
demonstrate such knowledge as a prerequisite to
establishing a voluntary consent. . . . Additionally,
although the inquiry is an objective one, the maturity,
sophistication and mental or emotional state of the
defendant (including age, intelligence and capacity to
exercise free will), are to be taken into account….
Since both the tests for voluntariness and for a seizure
centrally entail an examination of the objective
circumstances surrounding the police/citizen encounter to
determine whether there was a show of authority that
would impact upon a reasonable citizen-subject's
perspective, there is a substantial, necessary overlap in
the analyses.
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Kemp, 961 A.2d at 1261. Further, the Court outlined a non-exclusive list of
factors pertinent to determining whether a defendant voluntarily consented
to a search. Id. These factors include:
1) the presence or absence of police excesses; 2) whether there
was physical contact; 3) whether police directed the citizen's
movements; 4) police demeanor and manner of expression; 5)
the location of the interdiction; 6) the content of the questions
and statements; 7) the existence and character of the initial
investigative detention, including its degree of coerciveness; 8)
whether the person has been told that he is free to leave; and 9)
whether the citizen has been informed that he is not required to
consent to the search.
Id.
Here, the encounter between police officers and Appellant never rose
to the level of a custodial interrogation. After the officers stopped Appellant,
one of the officers asked him for his license. Appellant, who was very
nervous and jittery, was unable to produce a valid license, but handed the
officer a state ID from North Carolina. A subsequent search of the system
revealed that Appellant had a suspended driver’s license. The officer then
asked Appellant to step outside of the vehicle and patted him down for
officer safety. The officers advised Appellant that they intended to tow his
car because he did not have a valid license to operate the vehicle. One of
the officers asked Appellant if he had any weapons in the car, and Appellant
stated that he did not have any weapons. The officer then asked Appellant if
he could search the vehicle and Appellant stated that the officer had his
permission to search the vehicle.
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Although the officers did not tell Appellant that he was free to leave,
the detention did not rise to the functional equivalent of arrest. The officers
did not handcuff Appellant or threaten him in any way. They merely asked
Appellant if he would consent to a search of his vehicle. Thus, the encounter
did not rise to the level of a custodial interrogation requiring Miranda
warnings. Further, the officer’s behavior was not coercive in any way.
Therefore, Appellant’s claims that state and federal constitutional rights were
violated by a coerced consensual search of his vehicle are meritless.
In his final issue, Appellant argues there was insufficient evidence to
establish that he was in constructive possession of the firearm recovered
from underneath the passenger seat of his vehicle. Appellant concludes the
court erred in determining that he possessed the gun and that his judgment
of sentence should be vacated. We disagree.
When examining a challenge to the sufficiency of evidence, our
standard of review is as follows:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain
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its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [trier] of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal
denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874
A.2d 108, 120-21 (Pa.Super.2005)).
The offense of possession of a firearm prohibited is defined by statute
as follows:
§ 6105. Persons not to possess, use, manufacture,
control, sell or transfer firearms
(a) Offense defined.--
(1) A person who has been convicted of an offense
enumerated in subsection (b), within or without this
Commonwealth, regardless of the length of sentence or
whose conduct meets the criteria in subsection (c) shall
not possess, use, control, sell, transfer or manufacture
or obtain a license to possess, use, control, sell,
transfer or manufacture a firearm in this
Commonwealth.
18 Pa.C.S. § 6105. The Commonwealth may prove possession through
proof of constructive possession:
Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law
enforcement. Constructive possession is an inference
arising from a set of facts that possession of the
contraband was more likely than not. We have defined
constructive possession as ‘conscious dominion.’ We
subsequently defined ‘conscious dominion’ as ‘the power to
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control the contraband and the intent to exercise that
control.’ To aid application, we have held that constructive
possession may be established by the totality of the
circumstances.
Commonwealth v. Parker, 847 A.2d 745, 750 (Pa.Super.2004). “As with
any other element of a crime, constructive possession may be proven by
circumstantial evidence.” Commonwealth v. Haskins, 677 A.2d 328, 330
(Pa.Super.1996). “The intent to exercise conscious dominion can be inferred
from the totality of the circumstances.” Commonwealth v. Kirkland, 831
A.2d 607, 610 (Pa.Super.2003).
Here, the Commonwealth presented testimonial evidence to show that
Appellant was the sole occupant of the vehicle at the time of the traffic stop,
that officers observed Appellant reaching over to the passenger side of the
vehicle, where the weapon was found, and that Appellant seemed nervous
and jittery. Police officers testified that when they told Appellant that they
found a firearm in the vehicle, Appellant told them that he had the firearm
“for protection.” Thus, the evidence presented at Appellant’s trial was
sufficient for the court to find all elements of the crime beyond a reasonable
doubt. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2014
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