Com. v. Sutton, R. ( 2023 )

J-S34044-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT LEE SUTTON, JR. :
:
Appellant : No. 1463 WDA 2022
Appeal from the Judgment of Sentence Entered July 7, 2022
In the Court of Common Pleas of Lawrence County Criminal Division at
No(s): CP-37-CR-0000599-2019
BEFORE: LAZARUS, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED: October 10, 2023
Robert Lee Sutton, Jr. (Appellant), appeals the judgment of sentence
imposed following his jury conviction of possession of a firearm prohibited.1
We affirm.
Relevant to this appeal, the suppression court described the events
leading to Appellant’s arrest:
On June 26, 2019, Officer Justin Warren of the New Castle
Police Department was on patrol in a marked cruiser when he was
dispatched to Double D’s Café [(Double D’s or the bar)] located at
426 East Washington Street, New Castle, … Pennsylvania, based
upon reports [of] a male discharging an assault rifle. Upon his
arrival at the scene, Officer Warren observed people standing
outside and he was informed the shooter went toward the rear of
the building. He then spoke with Daniel Bruno, the owner of
Double D’s [], who brought the officer behind a nearby garage
where four .223 [caliber] shell casings were discovered. Mr.
____________________________________________
1 18 Pa.C.S.A. § 6105(a)(1).
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Bruno described the shooter as a black male wearing a black shirt
with blue jeans. Officer Warren subsequently spoke with an
employee of Double D’s [], Tonya Gravatt, who informed him
there was a surveillance video. She also indicated [that shortly
before the shooting,] an individual she knew as “D” was engaged
in an argument with another male who exited a white van. The
surveillance video depicted a white van arriving at the scene at
1:00 a.m., [sic] a male removed his shirt and started a physical
altercation. That male then entered the van and another male
wearing a black shirt with blue jeans exited the van with a rifle
and proceeded to the rear of the building beyond the view of the
surveillance camera.
Officer Warren obtained a photograph of the white van
showing a dent between the passenger door and the passenger
side front fender from the surveillance video and disseminated [it]
to local police officers through a “Be On the Look Out” (hereinafter
“BOLO”) warning.
Suppression Court Opinion, 12/2/19, at 2.
New Castle Police Detective Brandon Hallowich learned of the shooting
when he arrived at work at 8:00 a.m. Id. at 2-3. He later learned from Officer
Austin Pagley that the van related to the BOLO warning had been located
parked on Dushane Street in New Castle. Id. at 3. Detective Hallowich set
up surveillance of the van, which was parked in front the residence at 1008
Dushane Street. Id.
The police officers observed several individuals enter the
white van and a felony vehicle stop was performed in order to
detain all of the occupants therein. The individuals were ordered
to exit the vehicle and were placed in handcuffs. [Appellant] and
Bryant Binns were placed in separate police vehicles[,] while
Gerald Greenham was seated next to a nearby wall due to health
concerns. Detective Hallowich then spoke with Mr. Binns. Mr.
Binns revealed [Appellant] was the shooter at Double D’s [] and
[Mr. Binns] was informed by Eileen Bower that [Appellant]
returned to the residence with the firearm. [Mr. Binns] also
indicated the firearm was still located in the residence.
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The police officers secured the residence for officer safety
based upon information there was possibly a firearm present[,] as
it was used to fire the shots at Double D’s [] and Officer Lewis
believed he heard someone moving inside. The police officers
knocked on the door to gain access to the residence and there was
no response, so they obtained access by removing a screen from
a window to avoid knocking down the door. It was later
discovered there were no individuals present within the residence.
The police officers then obtained a warrant to search the residence
and they seized a DPMS AR15 style rifle with a 30[-]round
magazine containing 20 live rounds in the living room. The serial
number on the DPMS rifle was searched … and no record for
ownership was found.
At approximately 5:00 p.m., [Police Corporal Fred Buswell]
provided [Appellant] with Miranda2 warnings [and] conducted an
interview, which was recorded. [Appellant] stated he was sitting
in the van during the altercation. He then grabbed the rifle and
exited the van. [Appellant] explained he walked to the rear of the
building and fired the rifle to stop the altercation.
Suppression Court Opinion, 12/2/19, at 3-4 (footnote added).
The Commonwealth charged Appellant with three counts of recklessly
endangering another person,3 and one count each of possession of firearm
prohibited, and firearms discharge prohibited.4 On August 30, 2019, Appellant
filed a suppression motion claiming officers lacked reasonable suspicion to
stop the white van. Suppression Court Opinion, 12/2/19, at 4. The trial court
denied Appellant’s suppression motion on December 2, 2019.
____________________________________________
2 See Miranda v. Arizona, 384 U.S. 436 (1966).
3 18 Pa.C.S.A. § 2705.
4 New Castle Ord. § 725(2)(a).
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Following the March 21-23, 2022, trial, a jury convicted Appellant of
possession of a firearm prohibited, a first-degree felony. On July 7, 2022, the
trial court sentenced Appellant to 6-12 years in prison. Appellant filed a post-
sentence motion on July 18, 2022.5 On October 6, 2022, the trial court held
a hearing on Appellant’s post-sentence motion. On December 2, 2022, the
trial court denied Appellant’s post-sentence motion. Appellant filed a notice
of appeal on December 16, 2022. Appellant and the trial court complied with
Pa.R.A.P. 1925.
Before addressing Appellant’s substantive issues, we must first ascertain
whether Appellant timely filed his notice of appeal.6 Appellant filed his post-
sentence motion on July 18, 2022. Pennsylvania Rule of Criminal Procedure
720 provides in relevant part, “If the judge fails to decide the motion within
120 days, or to grant an extension as provided in paragraph (B)(3)(b), the
motion shall be deemed denied by operation of law.” Pa.R.Crim.P.
720(B)(3)(a). There is no indication on the trial court’s docket that Appellant
requested or was granted an extension. Consequently, Appellant’s post-
____________________________________________
5 In an order dated July 19, 2022, but filed on August 10, 2022, the trial court
scheduled a post-sentence motion hearing for October 6, 2022. Trial Court
Order, 8/10/22. Our review discloses Appellant’s post-sentence motion was
docketed a second time on August 10, 2022.
6 “Jurisdiction is vested in the Superior Court upon the filing of a timely notice
of appeal.” Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super. 2004)
(en banc) (citation omitted).
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sentence motion was denied by operation of law 120 days later: on November
15, 2022.
When a post-sentence motion is denied by operation of law,
Pa.R.Crim.P. 720 requires the clerk of court to enter an order, on behalf of the
trial court, stating the motion is denied by operation of law and serve a copy
of the order on the parties. Pa.R.Crim.P. 720(B)(3)(c). Here, the docket
reflects the clerk of courts entered no such order.
Appellate courts cannot extend the time for filing an appeal.
Nevertheless, Pa.R.A.P. 105 provides that
[a]n appellate court for good cause shown may upon application
enlarge the time prescribed by these rules or by its order for doing
any act, or may permit an act to be done after the expiration of
such time, but the court may not enlarge the time for filing a
notice of appeal, a petition for allowance of appeal, a petition for
permission to appeal, or a petition for review.
Pa.R.A.P. 105(b). The official note to Rule 105 recognizes an exception to this
rule: “Subdivision (b) of this rule is not intended to affect the power of a court
to grant relief in the case of fraud or breakdown in the processes of a
court.” Id. note (emphasis added).
This Court has held,
where the clerk of courts does not enter an order indicating that
the post-sentence motion is denied by operation of law and notify
the defendant of same, a breakdown in the court system has
occurred and we will not find an appeal untimely under these
circumstances.
Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super. 2003) (emphasis
added); see also Commonwealth v. Braykovich, 664 A.2d 133, 137-38
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(Pa. Super. 1995) (in a case applying the predecessor to Rule 720, deeming
an appellant’s notice of appeal timely filed, as it was filed within 30 days of
the trial court’s untimely order denying appellant’s post-sentence motion).
Instantly, Appellant filed his notice of appeal within 30 days of the trial
court’s untimely order denying his post-sentence motions. Applying the
reasoning of Perry and Braykovich, we conclude a breakdown in the trial
court’s processes excuses Appellant’s untimely filing. See Perry, 820 A.2d at
735; Braykovich, 664 A.2d at 138. Accordingly, we address Appellant’s
issues.
Appellant presents the following issues:
a) Did the suppression court err by denying [] Appellant’s motion
to suppress[,] where [] Appellant’s arrest was preceded by an
illegal detention?
b) Was the evidence insufficient as a matter of law to sustain the
conviction for possession of a firearm prohibited?
Appellant’s Brief at 5.
Appellant first challenges the trial court’s denial of his suppression
motion. Appellant’s Brief at 20. Our review of 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. Wright, 224 A.3d 1104,
1108 (Pa. Super. 2019). Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the Commonwealth
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and so much of the evidence for the defense as remains uncontradicted when
read in the context of the record as a whole. See id.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. 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 the 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 trial court are subject
to plenary review.
Id. (brackets and ellipsis omitted).
In challenging the denial of his suppression motion, Appellant claims,
[t]he forced traffic stop of the van in this case, which occurred
several hours after the shooting incident and was described as a
high-risk felony stop by officers, lacked the requisite reasonable
suspicion necessary for the investigative detention, rendering
illegal the subsequent arrest of [] Appellant as the fruit of the
poisonous tree.
Appellant’s Brief at 20.
Appellant argues the forcible stop of a vehicle “constitutes a second-
level seizure, or investigative detention,” triggering the protections of the
Fourth Amendment to the United States Constitution. Id. at 21. Appellant
points out that during a traffic stop, an officer may check
vehicle registration, proof of financial responsibility, vehicle
identification number or engine number or the driver’s license[]
or secure such other information as the officer may reasonably
believe necessary to enforce the provisions of the [Motor Vehicle
Code].
Id. at 22 (quoting 75 Pa.C.S.A. § 6308(b)).
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Appellant claims the police improperly relied on an anonymous tip in
detaining Appellant:
[W]hen officers were informed of an anonymous call that
suggested [] Appellant was involved in a shooting from the night
before, and they, moments later, observe [] Appellant with no
suspicious activity – certainly not observing an assault rifle in his
passion – they fail to possess the requisite reasonable grounds to
justify their detention of [] Appellant at that time….
Id. at 26.
Appellant asserts that the surveillance video, viewed by Officer Warren,
did not show the suspect reentering the van after the shooting. Id. at 26-27.
Appellant emphasizes the officers set up surveillance of the van 10 hours after
the shooting. Id. at 27. Appellant argues officers conducted a “felony stop”
of the vehicle five minutes after they received an anonymous tip of Appellant’s
involvement, and after Bryant Binns and Appellant had entered the van. Id.
According to Appellant, “it is clear … that officers only engaged the occupants
of the van after the anonymous tip was received by [New Castle Police] Chief
[Robert] Salem that implicated Appellant[.]” Id. at 28. Appellant asserts the
anonymous tip is the “lone piece of evidence” gathered at the scene, and there
was no way to ascertain its credibility before Appellant was detained. Id. at
28-29. Further, Appellant claims the van on Dushane Street was not identified
as “identical” to the van at the shooting scene, and there was no evidence
that a firearm was still located within the vehicle. Id. at 29.
The Fourth Amendment of the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect individuals from being
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subjected to unreasonable searches and seizures. Commonwealth v.
Thomas, 273 A.3d 1190, 1195 (Pa. Super. 2022). “Not every encounter
between a law enforcement officer and a citizen constitutes a seizure
warranting constitutional protections.” Commonwealth v. Adams, 205 A.3d
1195, 1199 (Pa. 2019). “Only when the officer, by means of physical force or
show of authority, has in some way restrained the liberty of a citizen may we
conclude that a ‘seizure’ has occurred.” Id. (quoting Florida v. Bostick, 501
U.S. 429, 434 (1991), in turn quoting Terry v. Ohio, 392 U.S. 1, 19 n.16
(1968)).
Interactions between police and members of the public are classified
into three categories: mere encounters, investigative detentions, and
custodial detentions. Adams, 205 A.3d at 1199-1200; Commonwealth v.
Dix, 207 A.3d 383, 388 (Pa. Super. 2019). A mere encounter, sometimes
referred to as a consensual encounter, can be any formal or informal
interaction between an officer and citizen and does not need to be justified by
any level of police suspicion. Adams, 205 A.3d at 1199; Dix, 207 A.3d at
388. An investigative detention “carries an official compulsion to stop and
respond” and must be supported by reasonable suspicion of unlawful
activity. Dix, 207 A.3d at 388 (citation omitted). Finally, a custodial
detention, which must be based upon probable cause that the individual has
committed or is committing a crime, occurs “when the nature, duration and
conditions of an investigative detention become so coercive as to be,
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practically speaking, the functional equivalent of an arrest.” Id. at 388(citation omitted).
An investigative detention, by definition, encompasses only a “brief
detention.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (“In Terry[],
we held that the police can stop and briefly detain a person for investigative
purposes if the officer has a reasonable suspicion supported by articulable
facts that criminal activity ‘may be afoot,’ even if the officer lacks probable
cause.”). Unlike a mere encounter, an investigative detention constitutes a
seizure of a person. Adams, 205 A.3d at 1199-1200; Thomas, 273 A.3d at
1196.
[T]o conduct an investigatory stop, the police must have
reasonable suspicion that criminal activity is afoot. Terry, 392
U.S. at 30. … [T]o determine whether the police had
reasonable suspicion, the totality of the circumstances—the whole
picture—must be considered. United States v. Cortez, 449 U.S.
411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 ... (1981). “Based
upon that whole picture[,] the detaining officers must have a
particularized and objective basis for suspecting the particular
person stopped of criminal activity.” Id. at 417-[18.] ... If
either the seizure (the initial stop) or the search (the frisk) is found
to be unreasonable, the remedy is to exclude all evidence derived
from the illegal government activity. The Terry totality of the
circumstances test applies to traffic stops or roadside encounters
in the same way that it applies to typical police encounters.
Commonwealth v. Simmons, 17 A.3d 399, 402-03 (Pa. Super. 2011) (some
citations, quotation marks and brackets omitted; paragraph break omitted).
[T]he fundamental inquiry is an objective one, namely, whether
the facts available to police at the moment of the intrusion warrant
a man of reasonable caution in the belief that the action taken was
appropriate. Reasonable suspicion is dependent on both the
quantity and quality of the information police possess prior to
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detaining an individual. … While reasonable suspicion is a less
stringent standard than probable cause, the detaining officer must
be able to articulate something more than an inchoate and
unparticularized suspicion or hunch.
Commonwealth v. Jefferson, 256 A.3d 1242, 1248 (Pa. Super. 2021)
(citations and quotation marks omitted). “A consideration the totality of the
circumstances includes such factors as tips, the reliability of any tips, location
and suspicious activity.” Commonwealth v. Muhammad, 289 A.3d 1078,
1087 (Pa. Super. 2023).
Appellant claims the officers effectuated a traffic stop on the van.
During a traffic stop, it is inherently reasonable for an officer to
order the driver of the vehicle to alight from the car. Further, the
officer may ask the detainee a moderate number of questions to
determine his identity and to try to obtain information confirming
or dispelling the officer’s suspicions. For their safety, police
officers may handcuff individuals during an investigative
detention.
Commonwealth v. Spence, 290 A.3d 301, 314 (Pa. Super. 2023) (citations
and quotation marks omitted).
With this in mind, we consider 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. See Wright, 224 A.3d at 1108.
At the suppression hearing, Officer Warren testified that, while working the
midnight shift on June 26, 2019, he was dispatched to Double D’s. N.T.
(Suppression), 9/11/19, at 3-4. According to Officer Warren, an anonymous
caller had reported “someone across from the courthouse with a semi-auto
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rifle threatening to shoot the bar[.]” Id. at 28. The caller reported hearing
six gunshots. Id.
Upon arriving at the scene, Officer Warren went to the parking lot behind
the bar, “where they said the male was alleged at and [to] see[] if I could
locate anything.” Id. at 4. In the parking lot, Officer Warren observed no
damage or bullet holes from gun fire on the parked vehicles. Id.
Officer Warren spoke with Daniel Bruno, the owner of Double D’s. Id.
at 5. Mr. Bruno reported “a black male was behind the bar shooting an
assault-style rifle in the air.” Id. According to Officer Warren, Mr. Bruno
brought me behind the bar where there … some type of garage
back there. Behind the garage where there’s rocks and like mulch
or like shrubbery. There [were] four shell casings, 223 shell
casings.
Id. Mr. Bruno described one of the men involved in the shooting as a black
male wearing a black shirt and blue jeans. Id.
Officer Warren also spoke with an employee of the bar, Ms. Gravatt. Id.
at 6. Ms. Gravatt
stated that there was a male that went by the nickname of “D”
that was arguing with a few other males outside of the … bar right
in front of the main door.
….
[Ms. Gravatt] did not give [Officer Warren] any names, but she
said there was a group of black males that were fighting[,] and
she viewed a white van pull up in front of the main door and there
was an altercation that ensued with people outside of the vehicle.
… [S]he stated that she went outside and tried to break up the
fight and when … it wasn’t helping the situation, she came back
inside and then she said a male exited the van.
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Id. at 6-7.
Officer Warren testified to viewing a surveillance video of the altercation.
Id. at 7. In that video, Officer Warren observed a White Dodge Caravan
pulling up to the bar. Id. According to Officer Warren,
[a]n argument ensued with a couple of black males wearing white
T-shirts right outside the passenger side door. It was merely a
shoving match at that point. At one point[,] a male took off his
shirt and engaged into a physical fight outside in … the middle of
… East Washington Street and then at one point the male with no
shirt came around to the passenger side sliding door, attempted
to open the sliding door, it did not open. There was more [] of an
altercation and then, again, [he] opened the door again. At that
time, a black male wearing a black shirt and blue jeans exited the
vehicle with an AR-15 style rifle.
….
After that, … the male exited the vehicle with … [the AR-15
rifle] in his hand, like taunting with it. He did walk around the
rear … of the van, into the middle of East Washington Street. At
that point, he did retreat towards the back of the building, which
was off camera from the front camera view.
Id. at 7-8.
Officer Warren used an application on his phone (Axon Capture) to save
a photo of the van directly to his “body camera cloud.”7 Id. at 8. Officer
Warren sent his screen capture in a department-wide email, along with a
description of the video. Id. at 10. Officer Warren described the screen
capture as depicting damage to the passenger side fender where it meets the
____________________________________________
7Officer Warren’s screen capture of the van was entered into evidence as
Commonwealth’s Exhibit 1. Id. at 8-9.
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passenger door. Id. at 13. Officer Warren’s email indicated the vehicle had
been involved in a shooting at Double D’s and noted the damage to the van’s
passenger-side door. Id.
Officer Warren also viewed surveillance video of the rear of the building,
where the male retreated to the back. I saw him walking between
the cars and the back of the building, pause[] for a moment and
then went off camera to where … the shell casings were located.
Id. at 9-10.
Corporal Hallowich testified that he reported to work at 8:00 a.m. the
same day as the shooting incident. Id. at 14-15. Corporal Hallowich heard
about the incident via Officer Warren’s email and from Officer Austin Pagley.
Id. at 15. According to Corporal Hallowich,
[w]hen I came in, based on the nickname D, we searched some
locations, some known people to the [police] department that go
by that and that was unsuccessful. I received a call from Officer
Pagley. And he advised that he though he located the vehicle on
Dushane Street just off of Lutton.
Id. As a result of that information, Corporal Hallowich responded to the area.
Id. at 16.
Corporal Hallowich explained,
Because we, at that point, didn’t have any suspicions on actors or
anything, I advised Officer Pagley to stay out of the area, but try
to maintain eye contact with the vehicle, and myself and Corporal
Buswell set up surveillance in the area.
Id. Police Officer James Paglia informed Corporal Hallowich that
recent to that day, [Officer Paglia] was at 1008 Dushane Street
for a domestic disturbance between Bryant Binns and Eileen
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Bower, and … the van was parked directly in front of [the
residence].
Id.
Corporal Hallowich testified that, around 10:30 or 11:00 that morning,
police surveilled the van for about 25 minutes before observing someone walk
out of the 1008 Dushane Street residence. Id. at 21, 23.
As we sat in the area watching the vehicle, Corporal Buswell
contacted me, advised that Chief Salem had received a phone call
that [Appellant] was possibly the shooter from Double D’s. There
was a white male who I recognized as Gerald Greenham. He was
in the back of the vehicle moving tools. A short time later, Bryant
Binns and [Appellant] exited the front door of the residence and
set the[m]selves in the vehicle.
Id. at 16-17. Corporal Hallowich described the vehicle under surveillance as
a white Dodge Caravan. Id. at 17. According to Corporal Hallowich, it
appeared to be the same vehicle described in Officer Warren’s email. Id.
Corporal Hallowich admitted the email provided no year, license
number, or owner for the Dodge Caravan. Id. at 22-23. According to Corporal
Hallowich, the officers were unable to ascertain the license number during
their surveillance, because the van’s rear hatch door was open. Id. at 23.
Corporal Hallowich testified the rear hatch remained open “[r]ight up until Mr.
Greenham closed it and got in the vehicle and then Mr. Binns and [Appellant]
exited the residence.” Id. at 22.
Corporal Hallowich described what next transpired:
At that point, we wanted to detain everybody. And we were
actually on the phone as they exited the residence. And we
decided rather than let the vehicle pull away and possibly get into
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a vehicle pursuit, something to that effect, we just would approach
the vehicle then before it could even roll.
….
It was a felony vehicle stop based on the information that a
firearm was used[,] and this vehicle closely matched the
description that Officer Warren gave to us. We did a felony vehicle
stop on it. I approached from the front. Corporal Buswell
approached from the rear. We drew our firearms, ordered
everybody to just stay seated … until we got backup units, and
then everybody was removed from the vehicle and detained.
Id. at 17-18. In describing his reason for detaining Appellant, Corporal
Hallowich explained that Appellant and Bryant Binns, or both, had “as least,
been mentioned as suspects” in recent shootings. Id. at 18-19.
After Appellant and the other individuals exited the vehicle,
they were handcuffed and all separated away from each other and
placed into police vehicles. Aside from Mr. Greenham, [who] has
severe health issues, he was taken aside and seated on a wall.
Id. at 20. Corporal Hallowich testified,
as soon as the occupants of the vehicle were removed[,] Mr. Binns
said I know why you’re here. I’ll tell you whatever you want to
know or something to that effect. They walked away from the
vehicle. That’s when Mr. Binns was Mirandized and Corporal
Buswell questioned him, which I wasn’t present for, but the
information provided to me that I put in the warrant was that Mr.
Binns had said that Eileen Bower, the owner of the residence, told
him that [Appellant] returned with a rifle later.
Id. at 30.
Before obtaining a search warrant, Corporal Hallowich entered the
residence. Id. at 31. He explained:
[T]ypically what we would do on a search warrant for narcotics or
something that can be destroyed, you would clear the residence
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to make sure there’s no other occupants because that evidence
can be destroyed. A firearm can’t be destroyed, but based on the
fact that a firearm was used which led us to the residence to begin
with, we were worried for officer safety outside that that firearm
could be used against us by any other occupants inside.
….
… Officer Lewis advised that he thought he heard somebody inside
from what would be the south side of the residence.
Id. at 31-32. Corporal Hallowich confirmed officers applied for and received
a search warrant for the 1008 Dushane Street residence.8 Id. at 21.
Chief Salem testified that he arrived at 1008 Dushane Street as a
passenger in Officer Buswell’s vehicle. Id. at 34-35. Before arriving at the
scene, and while in Officer Buswell’s vehicle, Chief Salem received an
anonymous phone call naming Bryant Binns and Appellant as participants in
the shooting incident. Id. at 36. According to Chief Salem, “It’s not
uncommon for me to get calls after an incident saying this is the word on the
street, and that’s what happened in this case.” Id.
Corporal Buswell testified that he accompanied Chief Salem. Id. at 42.
He testified, “After the initial high-risk stop was performed, other officers did
arrive on scene and that’s when we removed the individuals from the vehicle.”
Id. at 43. Corporal Buswell testified regarding his encounter with Bryant
Binns:
____________________________________________
8 The search warrant for the residence was admitted into evidence as
Commonwealth’s Exhibit 2. Id.
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As [Mr. Binns] was being removed from the vehicle and secured,
he made several statements to me[:] I know why you’re here, I
know what this is about, I’ll tell you whatever you want to know.
That being said, once he was secured in the back of the police
vehicle, I called a patrol officer over with a body-worn camera and
I Mirandized Mr. Bins … and spoke to him about the incident.
….
[Mr. Binns] stated that he was at Double D’s [] for the incident
the prior night or prior evening involved [sic] the shooting and he
explained to me [that Appellant] … was the one that had the
assault-style rifle and the one that fired the shots off at the bar.
….
… He explained to me that his girlfriend, Miss Bower, who was the
resident at 1008 Dushane [Street], … told him that [Appellant]
had returned to the … residence with the firearm the previous
night.
Id. at 44. Corporal Buswell testified he was provided information that the
firearm used at Double D’s was presently inside of the residence at 1008
Dushane Street. Id. at 45.
The Commonwealth additionally presented the videotaped admission of
Appellant, taken after he was Mirandized. Id. at 46. Corporal Buswell
indicated Appellant showed no signs of intoxication or being “under the
influence.” Id. at 52-53.
Viewing the totality of the circumstances, the officers’ investigative
detention of Appellant was supported by the requisite reasonable suspicion.
Although Appellant claims the officers improperly relied on the anonymous tip,
our review discloses they considered it as part of the totality of the
circumstances. Officers found a van matching the description of a vehicle
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used in the Double D’s shooting incident; they observed Appellant and Mr.
Binns enter the van; they received an anonymous tip that Appellant and Mr.
Binns were involved in the incident; and they viewed surveillance video of the
person involved the shooting exiting the van with a firearm. Under the totality
of the circumstances, the officers’ investigative detention of Appellant was
supported by reasonable suspicion of his involvement in criminal activity.
Finally, officers’ subsequent search of 1008 Dushane Street residence
was supported by probable cause. Mr. Binns confirmed Appellant’s
involvement in the shooting, and that the firearm used in the shooting was
inside the 1008 Dushane Street residence. Under these circumstances, we
discern no error or abuse of discretion in the denial of Appellant’s suppression
motion.
Appellant next challenges the sufficiency of the evidence underlying his
conviction. Appellant’s Brief at 30. Appellant claims that the only evidence of
his possession of the firearm is his own statement to police. Id. at 32.
Appellant argues the Commonwealth “cannot prove the corpus delicti that
[Appellant] physically possessed the [firearm]. Id. at 33. Appellant directs
our attention to the testimony of Gravatt and Bruno, who both denied seeing
Appellant with a firearm. Id. Further, Appellant argues, uncharged co-
conspirator Mr. Greenham could not testify beyond a reasonable doubt that
the rifle found at 1008 Dushane Street is the same firearm used in the
shooting. Id. According to Appellant,
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[i]n fact, Greenham could not state that he observed [] Appellant
return the rifle at any point to the van, nor to 1008 Dushane
Street[,] when he dropped Appellant off….
Id. Finally, Appellant points out the Commonwealth presented no scientific
evidence matching the spent shell casings found at the shooting scene to
those found in the firearm recovered from the Dushane Street residence. Id.
at 34.
Appellant additionally argues the Commonwealth failed to demonstrate
his “constructive possession” of the firearm. Id. at 34-35. According to
Appellant,
there was no scientific analysis to show that [] Appellant’s DNA or
fingerprints were on the rifle or ammunition. Additionally
[Appellant’s] mere presence [] exiting 1008 Dushane Street
before apprehension and the police discovery of the rifle therein
is similarly insufficient evidence….
Id. at 35.
When reviewing a sufficiency challenge,
we must determine whether the evidence admitted at trial, and all
reasonable inferences drawn from that evidence, when viewed in
the light most favorable to the Commonwealth as verdict winner,
was sufficient to enable the fact finder to conclude that the
Commonwealth established all of the elements of the offense
beyond a reasonable doubt. The Commonwealth may sustain this
burden by means of wholly circumstantial evidence.
Commonwealth v. Johnson, 107 A.3d 52, 66 (Pa. 2014) (quotation marks
and citations omitted). “In conducting this review, the appellate court may
not weigh the evidence and substitute its judgment for the fact-finder.”
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Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (citation
omitted).
The Crimes Code provides:
A person who has been convicted of an offense enumerated in
subsection (b) … 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). The term “firearm” is defined in Section 6105(i)
as any weapon that is “designed to or may readily be converted to expel any
projectile by the action of an explosive or the frame or receiver of any such
weapon.” Id. § 6105(i).
When contraband is not found on the defendant’s person, “the
Commonwealth must establish constructive possession….” Commonwealth
v. Jones, 874 A.2d 1008, 121 (Pa. Super. 2005) (citation omitted).
“Constructive possession is the ability to exercise conscious control or
dominion over the illegal substance and the intent to exercise that control.”
Id. “The intent to exercise conscious dominion can be inferred from the
totality of the circumstances.” Id.It is well established that, as with any other element of a crime,
constructive possession may be proven by circumstantial
evidence. In other words, the Commonwealth must
establish facts from which the trier of fact can reasonably infer
that the defendant exercised dominion and control over the
contraband at issue.
Commonwealth v. Parrish, 191 A.3d 31, 36-37 (Pa. Super. 2018).
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In its opinion, the trial court concluded Appellant’s sufficiency challenge
lacks merit:
The evidence adduced at trial established that [Appellant]
admitted in police interviews after being Mirandized that the AR-
15 rifle was in a black duffel bag at his feet in the backseat of a
vehicle, of which he was the only occupant other than the driver;
that he picked up the rifle and threw it in the bushes after the
incident; and that he returned later on in the night with a
headlamp in order to retrieve it from the scene of the incident.
N.T., 3/23/22, at []1-12….
Trial Court Opinion, 12/2/22, at 6 (punctuation modified, footnote omitted).
As the trial court explained,
[t]estimony from … Gerald Greenham[] was heard indicating that
[Appellant] possessed a black duffel bag in the backseat of
Greenham’s white van[,] which was suspected to contain the AR-
15 rifle on the night of the incident in question. N.T., 3/22/22, at
145-46. Greenham further testified that at the moment of the
altercation, he witnessed [Appellant] reach into the backseat of
the van and retrieve what he believed to be a rifle based on his
prior experience with hunting and heard what he believed was
three gunshots. [Id.] at 147-48. Greenham also indicated that
after the gunshots, he drove away from the scene without
[Appellant], but later picked [Appellant] up, brought him to back
to the scene of the incident in order to “look[] for that gun” and
then dropped [Appellant] off at the Dushane Street residence
where [Appellant] was arrested. [Id.] at 149-51….
Trial Court Opinion 12/2/22, at 6 (punctuation modified).
In addition,
Witness Tonya Gravatt testified to seeing a black male exiting the
passenger side of a white van with a gun, then hearing “five or
six” gunshots. N.T., 3/22/22, at 41-42. Upon reviewing the
surveillance footage upon responding to the scene, Officer Warren
testified to finding “four spent .223 shell casings” outside the bar,
which were admitted into evidence as Commonwealth’s Exhibit 5.
[Id.] at 66-68.
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… Detective Buswell received information from witnesses
throughout the course of his investigation that [Appellant]
returned the rifle to Dushane Street on the night in question, prior
to his arrest there the next day. N.T., 3/23/22 at 18, 28.
Conversely, [Appellant’s] testimony at trial was that every
admission he made in his interview with police was made up in
order to cover up for the actual perpetrator at the scene of the
incident, and that [Appellant] was under the mistaken belief that
one of the persons he was arrested with was actually a criminal
informant who could have any charges related to his “admissions”
dropped due to his status as such. [Id.] at 57.
Trial Court Opinion, 12/2/22, at 8 (punctuation modified).
Detective Hallowich testified that, while executing a search warrant at
1008 Dushane Street, he found an AR-15 firearm under a couch cushion. N.T.,
5/22/22, at 96-97. Detective Hallowich testified, “There was no indication on
the rifle that it would not be operable.” Id. at 103. In fact, Detective
Hallowich testified that he test-fired the weapon. Id. at 105. He indicated
the rounds recovered from the AR-15 are the same as those recovered from
the shooting scene. Id. at 104.
The trial court concluded,
viewing the evidence presented at trial in the light most favorable
to Commonwealth as the as the verdict winner, there was
sufficient evidence to enable jury to find every element of the
crime beyond a reasonable doubt. [Appellant] is not entitled to a
new trial, nor a judgment of acquittal.
Trial Court Opinion, 12/2/22, at 8. Based on the foregoing, we agree with the
trial court’s assessment. Appellant’s second issue merits no relief.
Judgment of sentence affirmed.
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10/10/2023
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