Com. v. Greenwood, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JUSTIN P. GREENWOOD :
:
Appellant : No. 11 WDA 2019
Appeal from the Judgment of Sentence Entered November 6, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002899-2017
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 2, 2020
Justin P. Greenwood (Greenwood) appeals from the judgment of sentence
imposed by the Court of Common Pleas of Erie County (trial court) after his jury
conviction of Firearms Not To Be Carried Without a License.1 We affirm.
I.
We take the background facts and procedural history from the trial court’s
May 14, 2019 opinion and our independent review of the certified record. At
approximately midnight on September 9, 2017, City of Erie Police Sergeant James
D. Bielak, Jr. and Patrolman Ira Bush were conducting routine traffic patrol in their
patrol car when the vehicle driven by Greenwood drew their attention. (See N.T.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 6106(a)(1).
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Trial, 9/10/18, at 20-21, 30). The vehicle was a tall or lifted pickup truck with dark
tinted windows that the officers could not see inside. (See id. at 30, 36). A run of
the license plate revealed that the registration was suspended due to insurance
cancellation. (See id. at 21). When they stopped the vehicle, Greenwood rolled
down his window and provided Officer Bush his vehicle information. (See id. at 30-
31). When Officer Bush ran the information, it revealed that he had dealt with
Greenwood before in a domestic dispute and remembered that that incident involved
a firearm. (See id. at 31). For safety purposes, Officer Bush asked Greenwood to
step out of the vehicle, patted him down, and discovered a knife. (See id. at 21,
31). When the officers asked Greenwood if he had any weapons in his vehicle, he
became nervous, asking the officers why they needed to check. (See id. at 21, 34).
Officer Bush performed a wingspan search of the vehicle to ensure there were no
other weapons inside based on his previous experience with him. (See id. at 22,
32).
Before he performed the search, Officer Bush asked the front seat passenger,
Terrah Zablotny, to exit the truck. Zablotny was calm and did not ask any questions.
(See id. at 22, 34). She had a purse with her in the front seat. (See id.). Officer
Bush asked Zablotny if she had left a firearm in the vehicle and she said she neither
had one nor left one there. (See id. at 34).
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He then performed the search and saw a firearm2 sticking out of the map
pocket on the rear of the passenger’s seat. (See id. at 32, 35). The purpose of the
pocket was for easy access by the driver of the vehicle and would have been difficult
for a passenger to access because it would have required the person “to reach all
the way around behind herself and get [her] hand down into the pocket to access
it.” (Id. at 36; see id. at 32, 35-36). Officer Bush did not see any items that were
indicative of a female in the truck other than her purse. (See id. at 34). After
discovering the gun, Officer Bush spoke to Greenwood, who indicated that he did
not have a permit to carry a weapon,3 but that the gun was not his. (See id. at
33). Although Greenwood appeared agitated, Officer Bush stated that he did not
seem surprised by the gun’s discovery. (See id. at 33-34).
On the same date, the Commonwealth charged Greenwood with Firearms Not
To Be Carried Without a License. Greenwood filed an omnibus pre-trial motion that
included a Motion for Writ of Habeas Corpus and a Motion for Suppression of
Evidence that the trial court denied after a hearing. At the conclusion of trial, the
jury convicted Greenwood of the previously mentioned charge. On November 6,
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2 A magazine was inserted in the gun and a later inspection revealed that there was
a round in the chamber. (See N.T. Trial, 9/10/18, at 37-38). The parties stipulated
that testing showed the gun was functional and no DNA or fingerprints were found
on it. (See id. at 40).
3 The Pennsylvania State Police Information and Certification obtained subsequent
to Greenwood’s arrest confirmed that he did not have a valid license to carry a
firearm. (See N.T. Trial, 9/10/18, at 37).
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2018, the trial court sentenced him to a term of not less than two nor more than
five years’ incarceration. The court denied Greenwood’s post-sentence motion and
motion for modification of sentence on November 30, 2018. Greenwood timely
appealed. He and the court complied with Rule 1925. See Pa.R.A.P. 1925.
On appeal, Greenwood challenges the sufficiency and weight of the evidence
supporting his conviction, the trial court’s denial of his pre-trial motions, and the
discretionary aspects of his sentence. (See Greenwood’s Brief, at i, 2, 5-9).
II.
A.
As to Greenwood’s challenge to the sufficiency4 and weight of the evidence,5
Section 6106 of the Crimes Code, Firearms Not To Be Carried Without a License,
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4 “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 Commonwealth as
verdict winner, the evidence at trial and all reasonable inferences therefrom are
sufficient for the trier of fact to find that each element of the crimes charged is
established beyond a reasonable doubt.” Commonwealth v. Lineman, ___ A.3d
___, 2019 WL 4399877, *2 (Pa. Super. filed Sept. 16, 2019) (citation omitted).
“The Commonwealth may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial evidence.” Id.(citation omitted). “As an appellate court, we do not assess credibility nor do we
assign weight to any of the testimony of record.” Id. (citation omitted).
“Furthermore, a mere conflict in the testimony of the witnesses does not render the
evidence insufficient because the factfinder is free to believe all, part, or none of the
evidence.” Id. (citation omitted).
5 “Appellate review of a weight claim is a review of the exercise of discretion, not of
the underlying question of whether the verdict is against the weight of the evidence.”
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations omitted;
emphasis omitted). “Because the trial judge has had the opportunity to hear and
see the evidence presented, an appellate court will give the gravest consideration
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provides, in pertinent part, “any person who carries a firearm in any vehicle . . .
without a valid and lawfully issued license under this chapter commits a felony of
the third degree.” 18 Pa.C.S. § 6106(a)(1). “[T]o convict a defendant for carrying
a firearm without a license, the Commonwealth must prove: that the weapon was
a firearm; that the firearm was unlicensed; and that where the firearm was
concealed on or about the person, it was outside his home or place of business.”
Commonwealth v. Hewlett, 189 A.3d 1004, 1009 (Pa. Super. 2018), appeal
denied, 197 A.3d 1176 (Pa. 2018) (citation omitted).
Sergeant Bielak and Officer Bush testified that Greenwood acted nervous after
Officer Bush patted him down and asked if he had any weapons in the vehicle. (See
N.T. Trial, 9/10/18, at 21, 34). Greenwood did not seem surprised that the officers
found the weapon, which was inside a pocket behind the passenger’s seat and
accessible from the driver’s seat. (See id. at 33-34, 36). He admitted that he did
not have a license to carry the firearm. (See id. at 33). Greenwood, however,
testified that the weapon was Zablotny’s, not his, and defense counsel argued all
discrepancies and inconsistencies in the evidence. (See N.T. Trial, 9/11/18, at 52-
57).
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to the findings and reasons advanced by the trial judge when reviewing a trial court’s
determination that the verdict is against the weight of the evidence.” Id. (citations
omitted). “One of the least assailable reasons for granting or denying a new trial is
the lower court’s conviction that the verdict was or was not against the weight of
the evidence and that a new trial should be granted in the interest of justice.” Id.
(citation omitted).
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Based on the foregoing, Greenwood argues that the evidence was insufficient
because the gun was not found in his possession, his fingerprints and DNA were not
found on it and he testified that his passenger owned the weapon. These claims
fail. First, the section of the statute under which he was convicted expressly
provides for illegally carrying a firearm in a vehicle, and he was the owner and driver
of the vehicle in which the gun was found within arm’s reach from the driver’s seat.
See 18 Pa.C.S. § 6106(a)(1). Futhermore, the Commonwealth was not required to
establish that Greenwood’s fingerprints or DNA be on the firearm for a conviction.
See Hewlett, supra at 1009 (describing elements the Commonwealth must prove
for conviction).
Finally, although he testified that his passenger owned the weapon, the
Commonwealth was not required to call her as a witness to establish its case. See
Lineman, supra at *2 (observing that a mere conflict in testimony does not render
the evidence insufficient because it is for the jury to believe all, some, or none of
the evidence presented, and the Commonwealth may establish all elements of the
crime based on circumstantial evidence).
As correctly pointed out by the trial court, this case came down to one of
credibility, and it was for the jury to decide whether to believe the officers or
Greenwood. (See Trial Ct. Op., at 4-5); see also Lineman, supra at *2. When
viewed in the light most favorable to the Commonwealth as verdict winner, the trial
court properly found that it introduced sufficient evidence to sustain all elements for
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the conviction of carrying a firearm without a license. See Lineman, supra at *2;
Hewlett, supra at 1009. Greenwood’s sufficiency argument fails.
Similarly, Greenwood’s claim that the conviction was against the weight of the
evidence does not merit relief. Greenwood does not offer a separate argument for
this contention, but instead argues it contemporaneously with his sufficiency
allegation. (See Greenwood’s Brief, at 8-9). However, as we stated above, this
case came down to one of credibility, which was for the jury to decide, and we will
not reweigh the evidence. The trial court found that the verdict did not shock one’s
sense of justice where it was sufficient to establish each element of the crime. (See
Trial Ct. Op., at 5). We discern no abuse of discretion. Greenwood’s weight claim
fails.
B.
In his second issue, Greenwood claims that the trial court erred in denying his
pretrial motions for writ of habeas corpus. However, due to deficiencies in his brief,
he has waived this issue.6
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6 A pretrial petition for a writ of habeas corpus is to examine the evidence and
reasonable inferences derived therefrom in a light most favorable to the
Commonwealth, and on appeal, as a question of law, our review is plenary.
Commonwealth v. Dantzler, 135 A.3d 1109, 1111-12 (Pa. Super. 2016). In the
pretrial setting, the focus of a habeas corpus hearing is to determine whether
sufficient evidence exists to hold a defendant in government custody until he may
be brought to trial. Commonwealth v. Fowlin, 676 A.2d 665 (Pa. Super. 1996).
The habeas corpus petition is similar in purpose to a preliminary hearing. Id. In
making a pretrial determination, a court is not limited to reviewing the evidence
presented at a preliminary hearing. Id. The Commonwealth may also present
additional evidence at the habeas corpus stage in an attempt to establish a prima
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It is well-settled that “[w]hen briefing the various issues that have been
preserved, it is an appellant’s duty to present arguments that are sufficiently
developed for our review. The brief must support the claims with pertinent
discussion, with references to the record and with citations to legal authorities.” In
re R.D., 44 A.3d 657, 674 (Pa. Super. 2012), appeal denied, 56 A.3d 398 (Pa. 2012)
(citations omitted); see also Pa.R.A.P. 2119(a), (c). “We will not act as counsel
and will not develop arguments on behalf of an appellant. Moreover, when defects
in a brief impede our ability to conduct meaningful appellate review, we may dismiss
the appeal entirely or find certain issues to be waived.” In re R.D., supra at 674
(citation and internal quotation marks omitted); see also Pa.R.A.P. 2101 (if the
defects in the brief are substantial, the appeal or other matter may be quashed or
dismissed).
Greenwood claims that the court should have granted the motion for writ of
habeas corpus because the Commonwealth failed to establish a prima facie case
against him. (See Greenwood’s Brief, at 10). He maintains that the Commonwealth
merely established that he was driving a vehicle with an expired registration, that
the gun was not found in his “direct possession,” “the passenger admitted at the
preliminary hearing to be the possessor of it,” and there was no DNA or fingerprint
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facie case that a crime has been committed and that the accused is the person who
committed the crime. Id. A pretrial petition for a writ of habeas corpus is the
procedure for testing whether the Commonwealth has furnished prima facie
evidence against the defendant at his preliminary hearing. Commonwealth v.
Carroll, 936 A.2d 1148 (Pa. Super. 2007).
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test results available at the time of the motion hearing. (Id. at 9). However, other
than those bald allegations, Greenwood fails to provide any argument, citations to
the hearing transcript, or legal citation about writs of habeas corpus to support his
claim. (See id. at 9-13). Therefore, this issue is waived for our review. See In re
R.D., supra at 674 (waiving issue for appellant’s failure to provide meaningful
discussion).
C.
We turn to Greenwood’s claim that the trial court erred in denying his motion
to suppress.7 Greenwood argues that the stop of his vehicle was unsupported by
either reasonable suspicion or probable cause where police did not obtain the
registration information until after the police pulled over his truck. (See
Greenwood’s Brief, at 10-11). He also maintains that the subsequent search of the
vehicle was unconstitutional because the officers did not have probable cause since
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7 “An appellate court’s 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.” Commonwealth v. Bernard, ___ A.3d ___, 2019
WL 4180655, at *3 (Pa. Super. filed Sept. 4, 2019) (citation omitted). “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.” Id.(citation omitted). “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.” Id. (citation omitted).
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they did not believe criminal activity was afoot and did not have reasonable suspicion
for a protective weapons search. (See id. at 11-13).
Traffic stops based on a reasonable suspicion: either of criminal
activity or a violation of the Motor Vehicle Code under the authority of
Section 6308(b)[8] must serve a stated investigatory purpose. For a
stop based on the observed violation of the Vehicle Code or otherwise
non-investigable offense, an officer must have probable cause to make
a constitutional vehicle stop. Pennsylvania law makes clear that a police
officer has probable cause to stop a motor vehicle if the officer observes
a traffic code violation, even if it is a minor offense.
Commonwealth v. Harris, 176 A.3d 1009, 1019 (Pa. Super. 2017) (case citations
and internal quotation marks omitted).
Here, the trial court found that “[u]nder the totality of the circumstances the
officer had reasonable suspicion to stop [Greenwood] for a suspected violation of
the Motor Vehicle Code.” (Trial Court Opinion, 1/15/18, at 4). The court further
observed that “[t]he patdown of [Greenwood] was appropriate” where he
“reasonably believed officer safety was threatened” based on his limited visibility
into the vehicle due to the heavily tinted windows, the fact that the registration was
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8 Section 6308(b) of the Pennsylvania Motor 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(b).
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suspended, that it was a high-crime area, his previous experience with Greenwood
and Greenwood’s argumentative attitude. (Id. at 5). Finally, the trial court found
that the recovery of the weapon from the truck was proper where it was observed
in plain view, and any protective sweep of the interior of the vehicle was appropriate
due to Officer Bush’s safety concerns. (See id.). The court concluded that based
upon the specific facts articulated by the officer, together with the rational inferences
drawn from those facts, “Officer Bush was reasonably warranted in believing
[Greenwood] posed a danger.” (Id. at 5). We agree.
The testimony at the pre-trial suppression hearing established that Officer
Bush was patrolling in a high crime area when he observed heavily tinted windows
on a raised truck. He ran the license plate, which came back as having a suspended
registration status due to the cancellation of insurance. (See N.T. Hearing, 2/27/18,
at 8-10, 25, 27, 29-30). Based on this information, Officer Bush initiated a traffic
stop. (See id. at 11). Following the stop, the officer used information from
Greenwood’s driver’s license to run his name. As a result, the officer learned there
was an active Protection From Abuse order on Greenwood, and that he had been a
suspect in a February 2016 firearm incident that arose during a domestic dispute.
(See id. at 13-19). At this point, Officer Bush remembered that he had been
involved as a backup officer in that incident and that it left him with the distinct
impression that Greenwood was someone “to be careful with.” (Id. at 20; see id.
at 13-20).
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Based on this previous experience in general, and with Greenwood as
someone to be concerned about specifically, Officer Bush’s inability to see inside his
vehicle due to the heavily tinted windows, the time of day, the lighting conditions,
and the high-crime nature of the area, he requested that Greenwood exit the vehicle
for officer safety reasons. (See id. at 21-22, 36, 40-41). Greenwood complied,
argued with the officers, but eventually permitted Officer Bush and his partner to
conduct a pat-down search. At this point, the officers discovered a knife tucked in
the waistband of Greenwood’s sweatpants. (See id. at 22, 41). After removing the
passenger from the truck, Officer Bush looked inside it to ensure that Greenwood
would not have easy access to a weapon once he returned to the vehicle to await
the citation’s issuance. (See id. at 22, 38). Officer Bush observed a firearm sticking
out of the map pocket behind the passenger’s seat in plain view, within easy reach
of an individual sitting in the driver’s seat. (See id. at 22, 38-39). As a result,
Greenwood was charged with the firearm’s offense.
After our independent consideration of the foregoing testimony, we conclude
that it supports the court’s findings of fact and legal conclusions drawn therefrom.
See Bernard, supra at *3. Hence, the court properly denied Greenwood’s motion
to suppress and this issue lacks merit.
D.
Greenwood also argues that his sentence was manifestly excessive,
unreasonable and not individualized as required by law. (See Greenwood’s Brief,
at 13-14).
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Greenwood’s issue challenges the discretionary aspects of his sentence. It is
well-settled that “[a] challenge to the discretionary aspects of sentencing does not
entitle an appellant to review as of right.” Commonwealth v. Bynum-Hamilton,
135 A.3d 179, 184 (Pa. Super. 2016) (citation omitted). An appellant must invoke
this Court’s jurisdiction by filing a timely notice of appeal, see Pa.R.A.P. 902 and
903; raising the issue in a post-sentence motion or at sentencing, see Pa.R.Crim.P.
720; and including a Rule 2119(f) statement in his brief that raises a substantial
question. See Bynum-Hamilton, supra at 184.
When explaining the substantial question requirement, this Court has said:
[T]he appellant must show that there is a substantial question that the
sentence imposed is not appropriate under the Sentencing Code. That
is, [that] the sentence violates either a specific provision of the
sentencing scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process. We examine an
appellant’s Pa.R.A.P. 2119(f) statement to determine whether a
substantial question exists. Our inquiry must focus on the reasons for
which the appeal is sought, in contrast to the facts underlying the
appeal, which are necessary only to decide the appeal on the merits.
Commonwealth v. Hill, 66 A.3d 365, 368 (Pa. Super. 2013) (citations omitted)
(emphases in original).
In this case, Greenwood filed a post-sentence motion challenging his sentence
and a timely notice of appeal. He also has included a Rule 2119(f) statement in his
brief. (See Greenwood’s Brief, at 3-4). He maintains that his sentence was
manifestly excessive and unreasonable because it was not individualized to meet his
needs. (See id. at 4). This raises a substantial question and we will consider its
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merits. See Commonwealth v. Serrano, 150 A.3d 470, 473 (Pa. Super. 2016)
(claim that court failed to consider individualized needs raises substantial question).9
When imposing a sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In particular, the court should refer to the defendant’s prior
criminal record, his age, personal characteristics and his potential for
rehabilitation.
Commonwealth v. Hill, 210 A.3d 1104, 1116-17 (Pa. Super. 2019) (quotation
marks and citations omitted).
“When [] the trial court has the benefit of a pre-sentence report, we presume
that the court was aware of relevant information regarding the defendant’s character
and weighed those considerations along with any mitigating factors.”
Commonwealth v. Sexton, ___ A.3d ___, 2019 WL 5540999, at *11 (Pa. Super.
filed Oct. 28, 2019) (citation omitted).
Here, prior to sentencing Greenwood, the court heard the argument of defense
counsel as to mitigating circumstances such as the fact that Greenwood was not
involved in any other criminal activity at the time of the gun’s discovery, that his
criminal record reflects that all of his prior convictions were years old, that he was
gainfully employed, and that he was incarcerated for approximately fourteen months
relative to his arrest in this case and for a detainer that was on him for another
conviction. (See N.T. Sentencing, 11/08/19, at 9-10). Greenwood also took the
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9 “Sentencing is a matter vested in the sound discretion of the sentencing judge,
and a sentence will not be disturbed on appeal absent a manifest abuse of
discretion.” Commonwealth v. Edwards, 194 A.3d 625, 637 (Pa. Super. 2018),
appeal denied, 202 A.3d 41 (Pa. 2019) (citation omitted).
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opportunity to address the court and advised that he could be a productive citizen
if given the opportunity. (See id. at 11). The court also heard the argument from
the Commonwealth’s counsel that this was the fifth time probation would be revoked
for his prior offense due to an arrest. (See id.).
After considering all of the foregoing, the court imposed a mitigated range
sentence of not less than twenty-four nor more than sixty months’ incarceration and
made Greenwood boot camp eligible “which gives [him] a chance to shave some
time off that mitigated range sentence” [depending on] how well [he] perform[s].”
(Id. at 12). Additionally, the court had the benefit of a pre-sentence investigation,
so we presume that it was aware of all relevant information about Greenwood’s
character and weighed it accordingly. See Sexton, supra at *11.
Based on the foregoing and our independent review of the sentencing hearing
transcript, we discern no manifest abuse of discretion in the court’s imposition of a
mitigated range sentence. See Edwards, supra at 637.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/2/2020
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