Com. v. Scott, A. ( 2018 )

J-S40025-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
AUSTIN SCOTT :
:
Appellant : No. 1377 EDA 2017
Appeal from the Judgment of Sentence March 17, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0002374-2015
BEFORE: LAZARUS, J., DUBOW, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 06, 2018
Appellant, Austin Scott, appeals from the judgment of sentence imposed
following his bench trial conviction of two violations of the Uniform Firearms
Act, 18 Pa.C.S.A. § 6106 (firearms not to be carried without a license), and
18 Pa.C.S.A. § 6108 (carrying of firearms on public streets or public property
in Philadelphia prohibited). Specifically, Appellant challenges the denial of his
motion to suppress, and the sufficiency of the evidence. We affirm on the
basis of the trial court’s opinion.
The trial court aptly describes the factual and procedural history of this
case. Therefore, we have no need to repeat them at length here. For the
convenience of the reader, we note briefly that Appellant was arrested
following an initially routine vehicle stop after the police officer observed him
throw something into the back seat of the vehicle. Appellant was the only
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40025-18
person in the car at the time. When the officer slid open the door of the van,
he observed a handgun on the floor between the driver’s seat and the second
row seats. Appellant claimed he had thrown a jack into the back seat. But
the jack was still on the floor of the front passenger seat.
Appellant was convicted of the VUFA violations after a bench trial
following the denial of his motion to suppress. The court acquitted Appellant
of receiving stolen property. On March 17, 2017, the court imposed a
sentence of not less than six months nor more than twenty-three months of
incarceration followed by three years of reporting probation for violating
section 6106, and three years of concurrent reporting probation for violating
section 6108. This timely appeal followed.1
Appellant presents two questions on appeal:
A. Was the evidence insufficient to support the guilty
verdicts for VUFA-6106 and VUFA-6108, where [A]ppellant had no
knowledge that a firearm was present in the vehicle he operated?
B. Did the trial court err in denying [A]ppellant’s pretrial
motion to suppress a firearm, as there was no reasonable
suspicion nor probable cause to stop and then search the vehicle
[A]ppellant operated, where the officer was not in a position to
see the right tail-light at all, and where no marijuana was ever
recovered despite the officer claiming a strong odor of burnt
marijuana?
(Appellant’s Brief, at 7).
____________________________________________
1 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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J-S40025-18
Appellant’s first claim challenges the sufficiency of the evidence. Our
standard of review is well-settled:
We must determine whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when viewed in a
light most favorable to the Commonwealth as verdict winner,
support the conviction beyond a reasonable doubt. Where there
is sufficient evidence to enable the trier of fact to find every
element of the crime has been established beyond a reasonable
doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute our
judgment for that of the fact-finder. The Commonwealth’s burden
may be met by wholly circumstantial evidence and any doubt
about the defendant’s guilt is to be resolved by the fact finder
unless the evidence is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Mobley, 14 A.3d 887, 889–90 (Pa. Super. 2011) (citation
omitted).
Our standard of review for a challenge to the denial of suppression is
also well-settled:
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.
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J-S40025-18
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010), cert. denied, 562
U.S. 832 (2010) (citation omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law and the well-reasoned opinion of the Honorable Michael E.
Erdos, we conclude that Appellant’s issues do not merit relief. The trial court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, 12/08/17, at 3-6) (concluding: 1.)
evidence was sufficient to support VUFA convictions, where handgun landed
where police officer had just seen Appellant throw it; handgun was possessed
by Appellant without license on public streets of Philadelphia; and 2). motion
to suppress was properly denied where observing police had reasonable and
articulable suspicion that Appellant, who exhibited nervous and furtive
behavior, and the very strong odor of burnt marijuana, after tossing object
over shoulder to rear seat, warranted belief that the suspect was dangerous
and could gain immediate control of weapons.).
Accordingly, we affirm on the basis of the trial court opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/18
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. Circulated 08/22/2018 09:50 AM
FILED
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA DEC O 8 2017
CRIMINAL TRIAL DIVISION Office of Judic1Al (�A(�0rds
Appeals/Pusi. fr ,a1
COMMONWEAL TH OF PENNSYLVANIA I
CP�S-lCR-0002374-2015 ':
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AUSTIN SCOTT 1377 EDA 2017
OPINION
.
ERDOS, J . December 8, 2017
OVERVIEW AND PROCEDURAL HISTORY
Austin Scott (hereinafter "Appellant") was arrested on December 13, 2014 and charged
with Receiving Stolen Property and Violating the Uni form Firearms Act (hereinafter "VUF A")
under 18 Pa.C.S.A. §6106 and §6108. On August 18, 2016, the Court found Appellant Not
Guilty of Receiving Stolen Property and Guilty of VUFA §6106 and §6108. On March I 7, 2017,
the Court imposed a sentence of six to twenty three months incarceration, credit for time served,
followed by three years reporting probation for violating §6106, and three years reporting
probation to run concurrent for violating §6108.
Appellant filed a timely notice of appeal on April 18, 2017. A Statement of Matters
Complained of on Appeal was filed on August 29, 2017. Appellant raises the following two·
issues:
I. Whether sufficient evidence was presented to support guilty verdicts of the VUF A
charges.
11. Whether the Court erred in denying Appellant's pretrial motion to suppress a firearm.
I, •
FACTS
On the morning of December 13, 2014 at approximately 11 :30 a.m., Philadelphia Police
Officers Sean Hart and Michael Copestick were on duty. Notes of Testimony C'N.T."), 08/18/16
at 7, 35. Officer Hart was traveling eastbound on Church Lane when he observed a green 200 l
Pontiac Montana van driven by Appellant fail to use a turn signal while turning eastbound onto
Church Lane in violation of 75 Pa.C.S.A. § 3334(b). & at 8. Officer Hart activated his lights and
pulled Appellant over. & at 9. Officer Copestick arrived at the scene as Officer Hart exited his
own vehicle. Id. at 8-9. As Officer Hart approached the driver-side window of the van, through
the rear windshield he observed Appellant throw an unknown object behind his right shoulder
and heard the object hit the floor. & at 9.
Officer Hart walked to the open driver-side window to talk to Appellant. IsL. He first
asked what the Appellant had thrown, to which Appellant responded he had thrown a car jack.
Id. at I 0. However, Officer Hart saw the car jack sitting right next to Appellant on the floor and
it appeared to be "very heavy." Id. The Officer then asked Appellant if he had a valid driver's
license, to which Appellant responded that he did. lct__, As Appellant provided Officer Hart with
his license and registration, he was "very nervous" and his hands were "very shaky." lct__, at 11.
Officer Hart also noticed a very strong odor of burnt marijuana coming from inside the van. &
Officer Hart then asked Appellant to step out of the vehicle. & at 12. Officer Han
proceeded to search the vehicle while Officer Copestick stood with Appellant. & Officer Hart
opened the side door of the van and immediately saw a firearm sitting on the floor of the vehicle
between the driver's scat and the middle seat. lct.,, at 12-13. Appellant was placed into custody
after Officer Hart recovered the weapon, a 0.38 caliber handgun, from the vehicle. & at 37. A
clear bag with an apple logo stamped on it containing eight live rounds was also recovered from
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the van. & Inside the clear bag were six 0.38 caliber rounds of ammunition and two 0.25 caliber
rounds of ammunition. & Additionally, the handgun was loaded with six live rounds. &
Appellant did not have a license to carry a firearm. & at 50.
Neither Appellant nor any defense witnesses testified at the motion hearing or trial.
However, eight family members and lifelong friends of Appellant did appear in court and
vouched for his reputation as being peaceful, honest, and law abiding. uL at 52.
DISCUSSION
I. MOTION TO SUPPRESS
Appellant contends that the Court erred in denying his motion to suppress all physical
evidence and any observations made by the police officers. The motion was without merit and
properly denied by the Court.
Where a motion to suppress has been filed, the burden is on the Commonwealth to
establish by a preponderance of the evidence that the challenged evidence is admissible.
Commonwealth v. De Mark, 800 A.2d 947, 952 (Pa. Super. 2002). It is the responsibility of the
suppression court, as a trier of fact, to determine the credibility of witnesses and the facts
pertaining to a motion to suppress evidence. Commonwealth v. Angel, 946 A.2d 115, 117 (Pa.
Super. 2008).
In order for a police officer to effectuate a traffic stop in Pennsylvania the officer must
possess a reasonable and articulable suspicion of a vehicle code violation on the part of the
vehicle operator. 75 Pa.C.S.A. §6308(b); Commonwealth v. Long, 753 A.2d 272, 280 (Pa. Super.
2000). Here, Officer Hart had a reasonable and articulable suspicion of a vehicle code violation
when he saw Appellant fail to use his turn signal while turning eastbound onto Church Lane,
giving him the right to pull Appellant over. N.T. at 8. As he approached the vehicle, he observed
..,
.J
Appellant throw an unknown object behind his right shoulder and heard the object hit the floor.
Id. at 9. Concerned for his own safety, the officer asked Appellant what he had thrown. Id. at 10.
Although Appellant responded that he had thrown a car jack, it was clear to the Officer that this "
was not possible because it was immediately next to Appellant and not behind him. & Officer
Hart then observed Appellant shakily hand over his license and paperwork in a nervous manner,
and also noticed a strong smell of marijuana emanating from the vehicle. & at 11.
It has long been held that "the search of the passenger compartment of an automobile,
limited to those areas in which a weapon may be placed or hidden, is permissible if the police
officer possesses a reasonable belief based on 'specific and articulable facts which, taken
together with the rational inferences from those facts, reasonably warrant' the officers in
believing that the suspect is dangerous and the suspect may gain immediate control of weapons."
Michigan v. Long, 463 U.S. 1032, 1049-50 (1983) (quoting Terry v. Ohio, 392 U.S. 1 (1968)).
A Terry protective frisk is justified when an officer observes furtive movements within the scope
of a lawful traffic stop that reasonably cause him to be concerned for his safety. See e.g.,
Commonwealth v. Simmons, 17 A.3d 399, 404 (Pa. Super. 2011); Commonwealth v. Morris,
537 Pa. 417, 644 A.2d 721, 723 (1994); In re O.J., 958 A.2d 561, 566 (Pa. Super. 2008);
Commonwealth v. Mack, 953 A.2d 587, 591 (Pa. Super. 2008); Commonwealth v. Parker, 957
A.2d 311, 316 (Pa. Super. 2008); Commonwealth v. Wilson, 927 A.2d 279, 284-85 (Pa. Super.
2007). Accordingly, given Appellant's furtive behavior, the Officers reasonably feared for their
safety and were permitted to search the passenger compartment of the van for weapons.
Moreover, a search of the car was also justified for a separate reason. Given the odor of
burnt marijuana and Appellant's nervous disposition, probable cause existed to believe that
marijuana was inside the vehicle. As such, a warrantless search was warranted. See
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Commonwealth v. Gary, 91 A.3d 102, 104 (2014) (adopting federal automobile standard which
requires probable cause alone to justify a warrantless car search).
II. SUFFICIENCY OF THE EVIDENCE
The evidence was sufficient as a matter of law to support the convictions under 18
Pa.C.S.A. §6106 and §6108. When reviewing a sufficiency of the evidence challenge, the well-
settled standard is "whether the evidence, viewed in the light most favorable to the
Commonwealth as the verdict winner, is sufficient to enable the fact-finder to establish every
element of the crime beyond a reasonable doubt." Commonwealth v. Williams, 896 A.2d 523,
535 (Pa. 2006). "Evidence will be deemed sufficient to support the verdict when it establishes
each material element of the crime charged and the commission thereof by the accused, beyond
a reasonable doubt." Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005). The
Commonwealth is not required to show guilt by a "mathematical certainty" and may sustain its
burden by presenting solely circumstantial evidence. Commonwealth v. Norley, 55 A.3d 526,
53 I (Pa. Super. 2012). "The finder of fact while passing upon the credibility of the witnesses
and the weight of the evidence produced, is free to believe all part or none of the evidence."
Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa. Super. 2010).
A person commits a felony of the third degree and is guilty of VUFA § 6106 when he
"carries a firearm in any vehicle ... without a valid and lawfully issued license ... " I 8
Pa.C.S.A. §6106(a)(I). A person commits a misdemeanor of the first degree and is guilty of
VUFA § 6108 when he "[carries] a firearm ... at any time upori the public streets or upon any
public property in a city of the first class unless such person is licensed to carry a firearm." 18
Pa.C.S.A. §6108(1 ). Mere presence in an automobile in which a weapon is found is not sufficient
to prove that a passenger is in possession of the weapon. Commonwealth v. Townsend, 237 A.2d
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'.,·.
192, 194 (1968). To show possession the Commonwealth is required to establish that appellant
had the power of control over the weapon and the intention to exercise that control.
Commonwealth v. Armstead, 305 A.2d 1, 2 (1973).
The evidence presented at trial was sufficient to prove that Appellant possessed the
handgun in question. Upon opening the side door of Appellant's van, Officers immediately saw a
0.38 caliber handgun sitting on the floor between the driver's seat and the middle seat. N.T. at
12-13, 39. This is exactly where the object landed which Officer Hart saw Appellant throw over
his shoulder upon being pulled over. Appellant was clearly in possession of a firearm in his
vehicle without a license in violation of UFA 6106 and on the public streets without a license in
violation of UFA 6108.
CONCLUSION
Given the applicable statutes, testimony, and case law, the motion to suppress was
properly denied, and the evidence was sufficient to support Appellant's convictions.
Accordingly, the Court's decision should be affirmed.
BY THE COURT:
MICHAELE. ERDOS, J.
DA TE: December 8, 2017
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