Com. v. Smith, J. ( 2019 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAMES EDWARD SMITH, : No. 1172 MDA 2018
:
Appellant :
Appeal from the Judgment of Sentence Entered April 26, 2018,
in the Court of Common Pleas of Dauphin County
Criminal Division at No. CP-22-CR-0002908-2016
BEFORE: LAZARUS, J., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 23, 2019
James Smith appeals from the April 26, 2018 aggregate judgment of
sentence of 7 to 14 years’ imprisonment imposed after a jury found him guilty
of possession of firearm with altered manufacturer’s number, unlawful
possession of a firearm, and firearms not to be carried without a license.1
After careful review, we affirm the judgment of sentence.
The trial court summarized the relevant facts of this case as follows:
On the evening of December 22, 2015, Officers
[Alan] Shipley and [Michael] Rudy were conducting
routine patrol with the street crimes unit of the
Harrisburg Police Department at the 600 block of
Geary Street. Officers Rudy and Shipley were
standing on the front porch of [a]ppellant’s home,
612 Geary Street, when he arrive[d] home driving a
Buick Enclave. Officers later learn[ed] that
[a]ppellant was the driver of the vehicle, and was
1 18 Pa.C.S.A. §§ 6110.2(a), 6105(a)(1), and 6106(a)(1), respectively.
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accompanied by Mr. Jukennith Smith, his nephew, in
the passenger’s side.
Officer Shipley initiated a conversation with
[appellant]. During the duration of that conversation
Officer Shipley believed that criminal activity was
afoot. Officer Rudy asked [a]ppellant if he would
consent to a search of the vehicle he was driving.
[Appellant] refused to consent to a search of the
vehicle stating that it was not his vehicle and
Officer Rudy would have to ask his wife, Ms. Clark, for
permission. Officer Rudy then asked Ms. Clark if she
would consent to having the vehicle searched, and she
also declined. Without entering the vehicle,
Officer Rudy walked around its perimeter looking
through the windows. From walking around the
vehicle, Officer Rudy could clearly see a firearm
sticking out by approximately two thirds from
underneath the driver’s seat floorboard. This gun was
later identified and stipulated to at trial as being a[]
Kel-Tec 9mm semiautomatic handgun. After
Officer Rudy saw the gun, he entered the car to
retrieve it and placed [appellant] under arrest.
Recorded conversations were played for the jury at
trial and authenticated by Officer Rudy. It was
stipulated by both parties that in each recording
[a]ppellant was a participant. The Commonwealth’s
purpose in playing these recordings[] was to prove
that [a]ppellant was attempting to find someone else
to admit to possession of the firearm. [] Appellant
also testified at his trial. Throughout the duration of
his testimony he attempted to prove that other
individuals had access to the vehicle he was driving
on the day of the incident. [] Appellant outlined his
day, with his testimony indicating that his employees
along with his nephew had access to his vehicle.
Trial court opinion, 10/22/18 at 2-3 (citations to notes of testimony omitted).
Appellant was subsequently arrested and charged with possession of
firearm with altered manufacturer’s number, unlawful possession of a firearm,
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and firearms not to be carried without a license. On April 21, 2017, appellant
filed an omnibus pretrial motion to suppress the evidence seized as a result
of the warrantless search of his vehicle.2 Following a hearing, the trial court
denied the motion on January 8, 2018. Appellant proceeded to a jury trial
and was subsequently found guilty of the aforementioned offenses on
March 15, 2018. As noted, appellant was sentenced to an aggregate term of
7 to 14 years’ imprisonment on April 26, 2018. Thereafter, appellant filed
timely post-sentence motions “to set aside conviction” arguing that there was
insufficient evidence that he possessed the firearm and the verdict was against
the weight of the evidence. (See post-sentence motions, 5/3/18 at ¶¶ 3-5,
7-9.) The trial court denied appellant’s post-sentence motions on June 6,
2018.3 This timely appeal followed.4
2 As noted, this vehicle was owned by appellant’s wife, Angela Clark (See
notes of testimony, 3/14-15/18 at 27, 68.) However, for the ease of our
discussion, we will refer to this vehicle as “appellant’s vehicle” or “his vehicle.”
3 We note that the trial court opinion incorrectly indicates that it issued an
order on May 10, 2018 denying appellant’s post-sentence motions. (See trial
court opinion, 10/22/18 at 1.) However, our review of the docket reveals that
the trial court’s May 10, 2018 order merely directs the Commonwealth to
respond to appellant’s post-sentence motion within 20 days and states that
the failure to do so “shall result in a hearing being scheduled in this matter.”
(Trial court order, 5/10/18.)
4 On July 12, 2018, the trial court ordered appellant to file a concise statement
of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b),
within 21 days. Following an extension, appellant filed his Rule 1925(b)
statement on August 27, 2018, and the trial court filed its Rule 1925(a)
opinion on October 22, 2018.
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Appellant raises the following issues for our review:
1. Did the [suppression] court err by failing to
suppress the evidence recovered during a
warrantless vehicle search?
2. Did the Commonwealth fail to present sufficient
evidence to prove the element of possession in
the following offenses: possession of a firearm
with altered or obliterated serial number,
person prohibited from possessing a firearm,
and possession of firearm without a license?
Appellant’s brief at 9 (extraneous capitalization omitted).
Appellant first argues that the suppression court erred in denying his
motion to suppress the firearm recovered by Officer Rudy during the
warrantless search of his vehicle. (Id. at 16.)
[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, [the appellate court is] bound by [those]
findings and may reverse only if the court’s legal
conclusions are erroneous.
Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation
omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).
“Both the Fourth Amendment of the United States Constitution and
Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals
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freedom from unreasonable searches and seizures.” Commonwealth v.
Bostick, 958 A.2d 543, 550 (Pa.Super. 2008) (citation and internal quotation
marks omitted), appeal denied, 987 A.2d 158 (Pa. 2009). “A warrantless
search or seizure is presumptively unreasonable under the Fourth Amendment
and Article I, § 8, subject to a few specifically established, well-delineated
exceptions.” Commonwealth v. McCree, 924 A.2d 621, 627 (Pa. 2007).
One such exception is the plain view doctrine. See id. (holding, “[t]he ‘plain
view’ doctrine is often considered an exception to the general rule that
warrantless searches are presumptively unreasonable”), quoting Horton v.
California, 496 U.S. 128, 133 (1990).
Our Supreme Court has expressly recognized that
incriminating objects plainly viewable [in the] interior
of a vehicle are in plain view and, therefore, subject
to seizure without a warrant. This doctrine rests on
the principle that an individual cannot have a
reasonable expectation of privacy in an object that is
in plain view.
Commonwealth v. Turner, 982 A.2d. 90, 92 (Pa.Super. 2009) (internal
citations omitted), appeal denied, 992 A.2d 889 (Pa. 2010).
In Commonwealth v. Luczki, 212 A.3d 530 (Pa.Super. 2019), this
court recently reiterated that the plain view doctrine permits the warrantless
seizure of objects in plain view when the following three prongs are satisfied:
“(1) an officer views the object from a lawful vantage point; (2) it is
immediately apparent to him that the object is incriminating; and (3) the
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officer has a lawful right of access to the object.” Id. at 547 (citation and
parentheses omitted); see also McCree, 924 A.2d at 625.5
Upon review, we agree with the suppression court’s conclusions that the
recovery of the firearm falls within the plain view exception to the search
warrant requirement. First, the record supports the conclusion that
Officer Rudy observed the firearm in appellant’s vehicle from a lawful
vantage point. Officer Rudy, a ten-year veteran of the Harrisburg City Police
Department, testified that on the day in question he was partnered with
Officer Shipley of the Pennsylvania Board of Probation and Parole and was on
routine patrol as part of his duties with the Street Crimes Unit. (Notes of
testimony, suppression hearing, 1/8/18 at 5-6.) Officer Rudy testified that he
observed a vehicle being driven by appellant pull up in front of his house and
park on the public street. (Id. at 6-7.) Officer Rudy indicated that as he
5We recognize that “the Fourth Amendment to the United States Constitution
and Article 1, Section 8 of the Pennsylvania Constitution provide limited
protection to those on parole.” Commonwealth v. Gould, 187 A.3d 927,
935 (Pa.Super. 2018) (citation omitted), appeal denied, 194 A.3d 1040 (Pa.
2018).
[P]ursuant to 61 Pa.C.S.A. § 6153, a state parole
agent may conduct a personal or property search of a
parolee if there is reasonable suspicion to believe that
the parolee “possesses contraband or other evidence
of violations of the conditions of supervision.”
61 Pa.C.S.A. § 6153(d)(1)(i) and (d)(2).
Gould, 187 A.3d at 935. However, because appellant’s claims are limited to
the warrantless vehicle search conducted by Officer Rudy, we find that
Section 6153 is not implicated.
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walked around the perimeter of appellant’s vehicle, he observed through the
window two-thirds of a firearm laying in plain view on the driver’s seat
floorboard. (Id. at 9-10.)
Second, the incriminating character of the firearm would have been
immediately apparent to Officer Rudy. Officer Rudy testified that he has been
involved in firearms investigations “between 50 and 75” times and that in his
experience, he “could clearly see [the object he observed] was a firearm[.]”
(Id. at 5, 11.) Although it is undisputed that individuals can legally own
firearms under certain circumstances, the fact that Officer Rudy was aware
that appellant had a prior felony conviction enumerated in 18 Pa.C.S.A.
§ 6105(b) that prohibited him from possessing a firearm provided him with
probable cause to believe that it may have been involved in criminal activity.6
6 At the suppression hearing, Officer Rudy testified as follows:
Q. Okay. Is it per se illegal to have a weapon in a
vehicle in Pennsylvania?
A. I knew prior that [appellant] had a previous PWI
conviction. The one thing I do when I’m with an
agent and we go to houses, if -- some houses
they want us to go in with, sometimes they
don’t. If I’m not familiar with the person, I’ll
say, you know, what is this guy on parole for,
something like that. And Agent Shipley alerted
me that he has a previous history of PWI.
Q. Okay. So you knew that before you started
looking for the gun.
A. That he had a previous history of PWI?
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“A police officer has probable cause to believe that an object is incriminating
where the facts available to the officer would warrant a man of reasonable
caution in the belief[] that certain items may be contraband or stolen property
or useful as evidence of a crime[.]” Commonwealth v. Wright, 99 A.3d
565, 569 (Pa.Super. 2014) (citation, emphasis, and internal quotation marks
omitted; brackets in original), appeal denied, 116 A.3d 605 (Pa. 2015).
Third, Officer Rudy had lawful right of access to the firearm in the
vehicle. As noted, Officer Rudy testified he could plainly observe two-thirds
of the firearm through the vehicle’s window, without having to enter the
vehicle or stand on its wheel well. (Notes of testimony, suppression hearing,
1/8/18 at 9-11, 16-17.) At that point, Officer Rudy believed the weapon was
contraband. (Id. at 18.) Appellant makes much of the fact that
“[Officer Rudy] could not have seen inside the car clearly because it was
7:45 p.m. on December 22nd. It was dark, and the officer could not say for
certain that he used a flashlight to see into the vehicle that had tinted
windows.” (Appellant’s brief at 19.) However, Officer Rudy testified that the
area was well lit from a large spotlight in an adjacent parking lot and that he
“assum[ed]” he utilized a flashlight that evening, it “being nighttime.” (Notes
Q. Right.
A. Before we went to the house I knew that.
Notes of testimony, 1/8/18 at 18-19.
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of testimony, suppression hearing, 1/8/18 at 10.) On cross-examination,
Officer Rudy further noted as follows:
Q. Officer Rudy, do you recall on the night in
question if that vehicle you were looking at had
reflective tint on it?
A. It’s a Buick Enclave. I know, standard factory,
they do have tint, especially on the back
windows. I’m confident it had a little bit of tint
--
(The court reporter interrupted.)
[Officer Rudy]: I know Buick Enclaves -- the
specific tint or sunscreen this vehicle had it on,
I don’t know how dark it was. I know that the
front windows were -- you were able to see
inside of them.
Q. Okay. So when you shined your flashlight in
that window, it doesn’t reflect back at you. You
actually illuminated the inside of the vehicle?
A. You could see clear as day inside of that --
the front seat of that vehicle.
Id. at 17 (emphasis added).
This court has long recognized that “[t]he fact that [the officer] required
illumination from a flashlight to see into the darkened interior of the vehicle
did not prevent the gun from being in plain view or render the policeman’s
conduct unreasonable.” Commonwealth v. Merkt, 600 A.2d 1297, 1299-
1300 (Pa.Super. 1992). Likewise, questions of witness credibility and the
weight to be afforded the evidence are within the sole province of the
fact-finder, who “is free to believe all, part, or none of the evidence.”
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Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)
(citations omitted), appeal dismissed as improvidently granted, 54 A.3d
22 (Pa. 2012). Here, there is nothing in the record to conclude that
Officer Rudy’s testimony was anything but credible. Based on all of the
foregoing, we discern no error on the part of the suppression court in denying
appellant’s suppression motion.
We now turn to appellant’s claim that there was insufficient evidence to
sustain his firearms convictions7 because the Commonwealth failed to prove
7 Appellant was found guilty of possession of firearm with altered
manufacturer’s number, unlawful possession of a firearm, and firearms not to
be carried without a license. The crime of possession of firearm with altered
manufacturer’s number provides that, “[n]o person shall possess a firearm
which has had the manufacturer’s number integral to the frame or receiver
altered, changed, removed or obliterated.” 18 Pa.C.S.A. § 6110.2(a).
The crime of unlawful possession of a firearm is defined as follows:
(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.A. § 6105(a)(1).
Lastly, a person will be found guilty of firearms not to be carried without
a license if they “carr[y] a firearm in any vehicle or . . . concealed on or about
his person, except in his place of abode or fixed place of business, without a
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that “he possessed the firearm” or “exercised control over the [firearm]” found
in his vehicle. (Appellant’s brief at 20, 22.) In support of this contention,
appellant avers that numerous other individuals had access to the vehicle on
the day of the incident, including his nephew, Jukennith Smith. (Id. at 22.)
In reviewing the sufficiency of the evidence, we must
determine whether the evidence admitted at trial and
all reasonable inferences drawn therefrom, viewed in
the light most favorable to the Commonwealth as
verdict winner, is sufficient to prove every element of
the offense beyond a reasonable doubt. As an
appellate court, we may not re-weigh the evidence
and substitute our judgment for that of the
fact-finder. Any question of doubt is for 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. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009) (citations
omitted), appeal denied, 4 A.3d 1054 (Pa. 2010).
In situations where it cannot be proven that a suspect had the firearm
on his person, as is the case here, the Commonwealth is required to prove
constructive possession. See Commonwealth v. Hopkins, 67 A.3d 817,
820 (Pa.Super. 2013), appeal denied, 78 A.3d 1090 (Pa. 2013).
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
valid and lawfully issued license[.]” 18 Pa.C.S.A. § 6106(a)(1). The record
reflects that the parties stipulated during trial that appellant had a prior felony
conviction enumerated in Section 6105(b) that prohibited him from
possessing a firearm, and that the firearm that was found the day of the
incident had a “partially obliterated” serial number. (See notes of testimony,
3/14-15/18 at 34-35, 104-105.) These elements are not at issue on appeal.
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contraband was more likely than not. We have
defined constructive possession as conscious
dominion. We subsequently defined conscious
dominion as the power to control the contraband and
the intent to exercise that control.
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super. 2012) (citations
and internal quotation marks omitted), appeal denied, 63 A.3d 1243 (Pa.
2013). As with any other element of a crime, the Commonwealth may sustain
its burden of proving constructive possession by means of wholly
circumstantial evidence, and the requisite intent may be inferred from
examination of the totality of the circumstances. Hopkins, 67 A.3d at 820.
Upon review of the evidence in the light most favorable to the
Commonwealth as the verdict winner, we conclude that there was sufficient
evidence to establish that appellant constructively possessed the firearm
found in his vehicle. The record establishes that while on routine patrol on
the 600 block of Geary Street, Officer Rudy observed appellant park outside
his home and exit his vehicle. (Notes of testimony, 3/14-15/18 at 24-25.)
Officer Rudy testified that while walking around the perimeter of the vehicle,
he observed two-thirds of a firearm in plain view sticking out from under the
driver’s side seat where appellant had just exited. (Id. at 28-31.)
Appellant’s contention that he was not in constructive possession of the
firearm found in plain view on the driver’s side of a vehicle that he was
observed driving moments before, because other individuals also had access
to said vehicle earlier in the day, disregards the fact that “[he] also had an
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equal opportunity if not more opportunity to access the vehicle and the gun.”
(Trial court opinion, 10/22/18 at 6-7.) See, e.g., Hopkins, 67 A.3d at
820-821 (holding that, inter alia, the evidence was sufficient to show that
the defendant constructively possessed a firearm found in a vehicle he was
driving, where the firearm was found within arm’s length of both where
defendant was seated and another passenger). Based on the foregoing, we
find that the Commonwealth presented sufficient evidence for the jury to
conclude, based upon the totality of the circumstances, that appellant
possessed “the power to control the [firearm] and the intent to exercise that
control.” See Brown, 48 A.3d at 430. Accordingly, appellant’s sufficiency
claim must fail.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/23/2019
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