Com. v. Anderson, G. ( 2023 )

J-A17040-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GEORGE ANDERSON :
:
Appellant : No. 1062 EDA 2022
Appeal from the Judgment of Sentence Entered February 28, 2022
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001662-2020
BEFORE: KING, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED DECEMBER 5, 2023
Appellant, George Anderson, appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas, following his jury
trial conviction for firearms not to be carried without a license.1 We affirm.
The trial court opinion set forth the relevant facts of this case as follows:
[The testimony adduced at the suppression hearing in this
matter is as follows.] On May 7, 2020, at approximately
10:54 p.m., Officer Jeffrey Walls of the Chester City Police
Department was on routine patrol, in uniform and in a
marked vehicle, in the area of the 200 Block of East 14th
Street. Officer Walls was at a red light when he observed a
silver Jeep traveling south in the 1400 block of Edgemont
Avenue, with a green light, when the vehicle abruptly came
to a stop upon observing the officer, and then made a left
hand turn without a turn signal. Officer [Walls] observed
the vehicle had a cracked windshield, and he could see that
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 6106(a).
J-A17040-23
the inspection sticker was expired. Officer [Walls] then got
behind the vehicle, and was unable to read the license plate
due to a hazy plastic cover over top of it, and dim license
plate lights, which is a violation of the Motor Vehicle Code.
Officer [Walls] performed a traffic stop, which was located
in a high crime area, based on numerous shootings,
robberies, drug sales, gang activity and homicides in the
area. Upon pulling the vehicle over, [O]fficer [Walls] read
the registration and determined it was expired. While
Officer [Walls] was still seated in his patrol vehicle, he
observed furtive movements towards the center console
within the vehicle, and dropped his head down toward the
center console.
Officer [Walls] approached the vehicle, and [Appellant]
(driver) provided his information, which revealed his license
was suspended (DUI related) and he was not the owner of
the vehicle. Officer [Walls] smelled the odor of marijuana
inside the vehicle and asked [Appellant] if he had anything
illegal inside the vehicle, to which he responded, while
opening the center console, I don’t have anything in here
except hand sanitizer. Officer [Walls] found this strange and
asked again if he had anything illegal, at which point
[Appellant] became extremely nervous and reaching around
his person and his sides[.] Officer Walls asked [Appellant]
to exit the vehicle and he performed a pat down search for
weapons and was placed toward the rear of the vehicle.
Officer Litivenko arrived on location, and at that time,
Officer Walls was performing a protective sweep of the areas
of the vehicle within reach of [Appellant]. The rear of the
center console was dislodged, and [O]fficer [Walls] could
see the handle of a firearm. [Appellant] was placed into
custody.
The vehicle was to be towed, in accordance with Department
policy and procedures, which were followed, and an
inventory search was performed. Officer Litivenko observed
marijuana on the passenger side of the vehicle in plain sight
upon opening the door.
[Appellant] was taken back to police headquarters where
-2-
J-A17040-23
Officer Walls read him Miranda[2] and asked if he would be
willing to give a written statement that it was his firearm.
[Appellant] replied that he was the only person in the car,
so it has to be his, but he would not give a written
statement. There is nothing in the record that indicates the
statement was the result of coercion or other unlawful
means. [Appellant] knowingly and voluntarily made the
statement to police.
(Trial Court Opinion, filed 11/8/22, at 2-3) (internal citations omitted).
Procedurally, the Commonwealth charged Appellant with possession of
a firearm prohibited, possession of a firearm with an altered manufacturer
number, firearms not to be carried without a license, possession of a controlled
substance, possession of marijuana, possession of drug paraphernalia, and
several violations of the motor vehicle code.
On November 12, 2021, Appellant filed a motion to suppress. The trial
court conducted a hearing on the motion on February 24, 2022. On April 1,
2022, the court denied the motion to suppress,3 and the case proceeded to
trial. At the close of the evidence, but prior to charging the jury, the trial
court held a charging conference with counsel. Neither Appellant nor the
Commonwealth raised any objections to the proposed charges.
During deliberations, the jury raised two questions. After responding to
the first question, which concerned whether all jurors had to agree for a
____________________________________________
2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
3 The trial court “found the testimony of Officer Jeffrey Walls to be [a] credible
account of the events that took place on May 7, 2020.” (Id. at 2).
-3-
J-A17040-23
unanimous verdict, the court explained the following concerning the jury’s
second question:
THE COURT: For the second question, which is a little bit—
we had to re-write it. It seems to be the question is for the
first element of carrying a firearm without a license, the
question is (a) if the firearm is anywhere in the car, does it
qualify as carrying a firearm about one’s person; (b) are all
the elements of possession relevant for determining
whether someone was carrying a firearm; and (c) define
carrying.
(N.T. Trial, 12/7/22, at 171-72).
The court stated that after discussing the issue with counsel, it appeared
that there was an error in the court’s initial instruction for the elements of
firearms not to be carried without a license. Specifically, the instruction
originally given to the jury stated “first, that the defendant carried a firearm
concealed or about his person.” (Id. at 172). Upon realizing its error, the
trial court instructed the jury with the correct language, “first that the
defendant carried a firearm concealed inside a vehicle.” (Id.) Appellant did
not object to the trial court’s correction.
The jury then asked an additional question concerning the definitions of
possession and carrying with respect to the charges of carrying a firearm
without a license and possession of a firearm with an altered serial number.
(See id. at 176-78). The trial court stated: “Possession of a Firearm with an
Altered Serial Number. That’s what Possession refers to that charge
specifically. Carrying a Firearm Without a License is—in here, it’s not the same
definition of the first charge. Do you understand?” (Id. at 178). The jurors
-4-
J-A17040-23
stated that they understood, and defense counsel made no objection. Later,
at side bar, defense counsel told the court that everybody was confused and
asked the court to re-read the charge for possession of a firearm with an
altered manufacturer number. (Id. at 179, 181-82). After re-reading the
charge, and confirming the jury understood, the court excused the jury to
continue its deliberation. Defense counsel made no objection to the court’s
subsequent instruction.
Ultimately, the jury found Appellant guilty of firearms not to be carried
without a license, and not guilty of possession of a firearm with an altered
manufacturer number. After the second portion of the bifurcated trial, where
the Commonwealth introduced evidence of Appellant’s prior conviction, the
jury found Appellant not guilty of persons not to possess a firearm.4 On
February 28, 2022, the court sentenced Appellant to 42 to 84 months of
incarceration. Appellant did not file a post-sentence motion. On March 30,
2022, Appellant filed a timely notice of appeal. The trial court subsequently
ordered Appellant to file a concise statement of errors complained of on appeal
per Pa.R.A.P. 1925(b), and Appellant timely complied.
Appellant raises the following issues on appeal:
1. Did the trial court err by denying [A]ppellant’s motion to
suppress physical evidence and statements where Appellant
had a reasonable expectation of privacy in the areas of the
vehicle searched?
____________________________________________
4 The Commonwealth withdrew all remaining charges prior to trial.
-5-
J-A17040-23
2. Did the trial court err by denying [A]ppellant’s motion to
suppress physical evidence and statements where the
officer prolonged the traffic stop beyond its original mission
absent reasonable suspicion of criminal activity such that
the searches of the vehicle were unlawful and there was no
other lawful basis for a warrantless search, in violation of
the United States and Pennsylvania Constitutions?
3. Did the trial court impose an illegal sentence for carrying
a firearm without a license where the court had no authority
to sentence on this charge when the finding of guilt was
made in the absence of any instruction on the requisite
element of possession of a firearm?
(Appellant’s Brief at 4) (reordered for purposes of disposition; unnecessary
capitalization omitted).
Our standard of review of a trial court’s denial of a motion to suppress
evidence is well settled. “Our standard of review in addressing a challenge to
a trial court’s denial of a suppression motion is limited to determining whether
the factual findings are supported by the record and whether the legal
conclusions drawn from those facts are correct.” Commonwealth v.
Williams, 941 A.2d 14, 26 (Pa.Super. 2008) (en banc) (internal citations
omitted).
[W]e may consider only the evidence of the prosecution and
so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the record supports the findings of the
suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal
conclusions based upon the facts.
Id. at 27.
Our scope of review is limited to the evidentiary record of the pre-trial
-6-
J-A17040-23
hearing on the suppression motion. In re L.J., 622 Pa. 126, 79 A.3d 1073(2013). “It is within the suppression court’s sole province as factfinder to pass
on the credibility of witnesses and the weight to be given their testimony.”
Commonwealth v. Luczki, 212 A.3d 530, 542 (Pa.Super. 2019) (quoting
Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa.Super. 2013)). If
appellate review of the suppression court’s decision “turns on allegations of
legal error,” then the trial court’s legal conclusions are nonbinding on appeal
and subject to plenary review. Commonwealth v. Smith, 164 A.3d 1255,
1257 (Pa.Super. 2017).
In his first issue, Appellant claims that the trial court erred in finding
that he had no reasonable expectation of privacy in the vehicle searched.5
Appellant argues that the Commonwealth’s sole reliance on the fact that he
did not own the vehicle was insufficient to establish the lack of a privacy
interest. Appellant suggests that the “the mere fact that a person is operating
a motor vehicle is sufficient to sustain a finding of reasonable expectation of
privacy in the vehicle where there is no other evidence suggesting that a
defendant had no reasonable expectation of privacy in a vehicle.” (Appellant’s
Brief at 40). Further, Appellant insists that evidence showed he was
previously issued a traffic citation while driving the vehicle, and that he was
____________________________________________
5 As previously mentioned, we have reordered Appellant’s issues to consider
this question first, because a reasonable expectation of privacy is a predicate
required to challenge a search. See Commonwealth v. Maldonado, 14 A.3d
907, 910 (Pa.Super. 2011).
-7-
J-A17040-23
previously involved in an accident in the vehicle, which demonstrates he had
a reasonable expectation of privacy in the vehicle. Appellant concludes the
court’s finding that he lacked a reasonable expectation of privacy in the vehicle
was erroneous, and this Court must grant relief. We disagree.6
“The Fourth Amendment to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect individuals against
unreasonable searches and seizures.” Commonwealth v. Hudson, 92 A.3d
1235, 1241 (Pa.Super. 2014), appeal denied, 630 Pa. 734, 106 A.3d 724(2014). Article I, Section 8 can provide no less protection than what the
Fourth Amendment requires. Commonwealth v. McCree, 592 Pa. 238, 246,
924 A.2d 621, 626 (2007). “A defendant moving to suppress evidence has
the preliminary burden of establishing standing and a legitimate expectation
of privacy.” Maldonado, supra at 910.
[G]enerally under Pennsylvania law, a defendant
charged with a possessory offense has automatic
standing to challenge a search. “However, in order to
prevail, the defendant, as a preliminary matter, must
show that he had a privacy interest in the area
searched.”
An expectation of privacy is present when the
individual, by his conduct, exhibits an actual
(subjective) expectation of privacy and that the
subjective expectation is one that society is prepared
to recognize as reasonable. The constitutional
____________________________________________
6 Although Appellant also emphasizes his standing to challenge the search in
question, the law in Pennsylvania remains clear that “[a] defendant with
standing must still establish a reasonable expectation of privacy in the area
searched.” Maldonado, supra at 911 n.3.
-8-
J-A17040-23
legitimacy of an expectation of privacy is not
dependent on the subjective intent of the individual
asserting the right but on whether the expectation is
reasonable in light of all the surrounding
circumstances.
Commonwealth v. Jones, 874 A.2d 108, 118 (Pa.Super.
2005) (internal citations omitted).
Commonwealth v. Burton, 973 A.2d 428, 435 (Pa.Super. 2009) (en banc).
In determining whether a person’s expectation of privacy is
legitimate or reasonable, we must consider the totality of
the circumstances and the determination ultimately rests
upon a balancing of the societal interests involved. The
constitutional legitimacy of an expectation of privacy is not
dependent on the subjective intent of the individual
asserting the right but on whether the expectation is
reasonable in light of all the surrounding circumstances.
Commonwealth v. Kane, 210 A.3d 324, 330 (Pa.Super. 2019), appeal
denied, 655 Pa. 496, 218 A.3d 856 (2019), cert. denied, ___ U.S. ___, 140
S.Ct. 2650, 206 L.Ed.2d 718 (2020) (internal citations and quotation marks
omitted).
In Maldonado, supra, police pulled over the appellee’s vehicle while
the appellee was driving his paramour’s car. At the suppression hearing, the
Commonwealth presented evidence that the appellee’s paramour owned the
vehicle in question and that the appellee lived with her at the address where
the vehicle was registered. The appellee offered no evidence that he had
permission to drive the car on the day in question. The trial court ultimately
granted the appellee’s suppression motion. On appeal, this Court reversed
and remanded. In addressing the question of the appellee’s reasonable
-9-
J-A17040-23
expectation of privacy, this Court stated that the fact that the appellee and
his paramour “might have lived together…does not foreclose the possibility
that [the appellee] was driving [the paramour’s] vehicle without her
knowledge or permission.” Maldonado, supra at 911. Therefore, because
the appellee did not demonstrate that he had the authority to operate the
vehicle, this Court concluded that the suppression court erred in granting the
suppression motion. See id.
In Commonwealth v. Brown, 64 A.3d 1101 (Pa.Super. 2013), appeal
denied, 622 Pa. 747, 79 A.3d 1096 (2013), this Court again considered
whether a defendant established that he had a reasonable expectation of
privacy in an automobile that he did not own. There, the defendant offered
no evidence of any relationship to the owner, nor did he offer any testimony
that he had the authority to operate the automobile on the night in question.
Thus, this Court agreed with the suppression court that the defendant “failed
to establish a legally cognizable expectation of privacy in the vehicle necessary
for him to prevail” on his challenge to the search of the automobile. Id. at
1107.
Instantly, police pulled Appellant over while he was driving a car that
was not registered to him. Although the record demonstrated that the car
was registered to Appellant’s aunt, and that Appellant had driven the car in
the past, Appellant presented no evidence that he had permission to drive the
car on the day of his arrest. Under these circumstances, Appellant did not
- 10 -
J-A17040-23
demonstrate that he had the authority to operate the vehicle. Thus, we
conclude that Appellant failed to establish a reasonable expectation of privacy
in the vehicle he was driving.7 See Brown, supra; Maldonado, supra.Appellant’s third question on appeal raises two distinct issues, which we
will address separately. First, Appellant claims that his sentence for firearms
not to be carried without a license is illegal based on the trial court’s alleged
error in instructing the jury on this charge. Appellant argues that the trial
court erred in responding to the jury’s question during deliberations by stating
that the definition of “possession” associated with possession of a firearm with
an altered serial number did not apply to the definition of firearms not to be
carried without a license, and that firearms not to be carried without a license
was not a possessory offense. (Appellant’s Brief at 49-50). Appellant
maintains that because the court’s jury instruction was flawed, the statutory
preconditions to the court’s sentencing authority were not fulfilled and the
sentence imposed was illegal. We disagree.
Our Supreme Court has identified four broad categories of challenges
____________________________________________
7 Based on our determination that Appellant did not have a reasonable
expectation of privacy in the vehicle, we need not address his contention in
his second issue concerning whether officers had the requisite reasonable
suspicion to conduct the vehicle search. Although the trial court denied the
motion to suppress based on its conclusion that the officers had the requisite
reasonable suspicion to search, “if the record supports the result reached by
the suppression court, we may affirm on any ground.” Commonwealth v.
Cartagena, 63 A.3d 294, 301 (Pa.Super. 2013) (en banc).
- 11 -
J-A17040-23
that fall within the definition of illegal sentencing challenges.8 Appellant
alleges that his challenge falls within the second category.
The second category encompasses allegations that a
sentence was imposed without the fulfillment of statutory
preconditions to the court’s sentencing authority. … [A]
successful challenge means that the court issued a sentence
that it lacked the statutory authority to impose. In other
words, if the sentencing statute at issue conditions the
court’s authority to impose a sanction upon the existence of
attendant circumstances, and if those circumstances were
not present, then the court lacked statutory authority to
impose the sentence, even though the unfulfilled conditions
may not raise an issue of constitutional dimension. …
Id. at ___, 277 A.3d at 562 (internal citations omitted).
Here, the jury convicted Appellant of firearms not to be carried without
a license, and the court sentenced him on that count. Appellant’s concern
with the specific instructions given is not a challenge to the court’s statutory
authority to impose a sentence. Rather, it is a challenge to the trial court’s
jury instructions. Appellant cites no law to support his proposition that a
court’s allegedly incorrect jury instruction can give way to an illegal sentencing
challenge on these grounds. (See Appellant’s Brief at 47-49).
____________________________________________
8 See Commonwealth v. Prinkey, ___ Pa. ___, ___, 277 A.3d 554, 562-63
(2022) (explaining that illegal sentencing challenges must fall within four
categories: “a claim that a sentence was imposed pursuant to a facially
unconstitutional sentencing statute”; “allegations that a sentence was
imposed without the fulfillment of statutory preconditions to the court’s
sentencing authority”; “claims that allege a violation of a substantive
restriction that the Constitution places upon a court’s power to apply the
statutory sentence to the defendant”; and claims that “a sentence is illegal
[because] the statutory support for the underlying conviction is void ab
initio”).
- 12 -
J-A17040-23
We turn next to Appellant’s alternative claim, that he is entitled to a new
trial because the trial court erred in answering the jury’s question regarding
the definition of possession as applied to firearms not to be carried without a
license. Preliminarily, we must discern whether Appellant properly preserved
this issue for appeal.
Our Supreme Court has held that “the plain language of [Pa.R.Crim.P.]
647(B) requires a specific objection to assign error to a controverted aspect
of or omission from a jury charge.” Commonwealth v. Pressley, 584 Pa.
624, 629–30, 887 A.2d 220, 223 (2005).
The pertinent rules, therefore, require a specific
objection to the charge or an exception to the trial court’s
ruling on a proposed point to preserve an issue involving a
jury instruction. Although obligating counsel to take this
additional step where a specific point for charge has been
rejected may appear counterintuitive, as the requested
instruction can be viewed as alerting the trial court to a
defendant’s substantive legal position, it serves the salutary
purpose of affording the court an opportunity to avoid or
remediate potential error, thereby eliminating the need for
appellate review of an otherwise correctable issue.
Id. at 630-31, 887 A.2d at 223 (footnotes omitted; emphasis added). See
also Pa.R.Crim.P. 647(c) (explaining that no portions of jury charge nor
omissions from charge may be assigned error, unless specific objections are
made thereto before jury retires to deliberate); Commonwealth v. Melton,
No. 849 EDA 2018 (Pa.Super. filed Apr. 27, 2020) (unpublished
memorandum), appeal denied, 662 Pa. 489, 240 A.3d 109 (2020) (holding
appellant waived challenge to court’s failure to give requested corpus delicti
- 13 -
J-A17040-23
instruction; although appellant submitted proposed point for charge regarding
corpus delicti instruction and initially objected to jury instructions, appellant
failed to object to court’s supplemental instructions which had inadvertently
omitted requested instruction; appellant’s failure to object to supplemental
instruction deprived court of opportunity to correct its error at appropriate
stage of proceedings and to alleviate appellate issues).9
Here, the relevant exchange is as follows:
JUROR: Sorry, Your Honor. So I just want to reiterate if I
understood correctly. All three elements of possession have
to be met in order for the carrying a concealed weapon on
a person to be met?
THE COURT: Right.
JUROR: Did I hear that correctly?
THE COURT: This is not carrying a firearm on a person.
This case involves a firearm in a car.
JUROR: Or on a—on or about—
THE COURT: Right.
JUROR: —in a vehicle?
THE COURT: First, that the defendant carried a firearm
concealed in a vehicle. Has to be met. And then the other
two elements also have to be met in order to convict the
defendant of carrying a firearm without a license.
THE JUROR: I guess my question was we were wondering
if possession, the definition of possession, applied to—had
to be met for the carrying—yeah.
____________________________________________
9 See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this
Court filed after May 1, 2019 for their persuasive value).
- 14 -
J-A17040-23
[DISTRICT ATTORNEY]: That’s the third question, Your
Honor.
THE COURT: The—you mean carrying? Yeah, the third—
[DISTRICT ATTORNEY]: The one that says—it was the last
question. Wasn’t there one—
THE COURT: Well, there [were] two questions.
[DISTRICT ATTORNEY]: I thought there was one more
about the possession elements.
UNKNOWN FEMALE: Define carrying. I think they’re getting
confused about the definition of carrying versus possession.
Are they the same thing.
THE COURT: Okay. Possession only refers to the first
charge, which is—what was the first charge?
[DISTRICT ATTORNEY]: Possession of a firearm with an
altered serial number.
THE COURT: Possession of a firearm with an altered serial
number. That’s what possession refers to that charge
specifically. Carrying a firearm without a license is—in here,
it’s not the same definition of the first charge. Do you
understand?
JUROR: Yep.
JUROR: Yes.
THE COURT: Okay? I’m going to send you back. Does that
answer your questions?
JUROR: Yes.
JUROR: Yes, Your Honor.
THE COURT: Okay. Does counsel have any other additions
or thoughts? Okay?
- 15 -
J-A17040-23
[DISTRICT ATTORNEY]: I don’t.
THE COURT: All right.
[DEFENSE COUNSEL]: Judge –
THE COURT: I’m going to—this is the re-worded carrying a
firearm without a license. I believe it answers all your
questions.
JUROR: Yes.
THE COURT: Okay? So we’re going to send you back and
then—with copies of [these] elements. The other one—the
other ones you have are the same. Okay? All right.
[DEFENSE COUNSEL]: Judge, can we approach?
* * *
[DEFENSE COUNSEL]: —everybody’s here and they’re very
confused, I am — I’m going to ask you to read the whole
charge again, 6110.2, possession of a firearm with an
altered manufacturer’s number, just for the good of the
jury.
* * *
THE COURT: Okay? I’m going to re-read it, so.
(N.T. Trial at 176-181) (unnecessary capitalization omitted). The trial court
then re-read the jury instruction for possession of a firearm with an altered
manufacturer’s number, and Appellant did not object to this instruction, or
ask the court to supply any other supplemental instructions.
Upon review, we conclude that Appellant did not preserve his objection
to the court’s jury instructions. We disagree with Appellant’s claim that
because defense counsel asserted that “everybody was very confused” he
- 16 -
J-A17040-23
sufficiently preserved the issue.10 Significantly, after defense counsel made
that statement, and requested re-reading of the instruction for possession of
a firearm with an altered number, the trial court re-read the full instruction as
counsel requested, and counsel lodged no further objections.11 Notably,
Appellant also did not ask the court to re-read the instruction for firearms not
to be carried without a license. On this record, Appellant waived any challenge
to the jury instructions. See Pa.R.Crim.P. 647(B); Pressley, supra; Melton,
supra. Accordingly, we affirm.
Judgment of sentence affirmed.
Date: 12/5/2023
____________________________________________
10 We note that defense counsel’s statement that everybody was confused
related to the charge for possession of a firearm with an altered
manufacturer’s number, and not for the charge of firearms not to be carried
without a license, which is at issue here.
11 Although Appellant suggests that defense counsel also made an “off-the-
record” objection, Appellant offers no proof that such objection was made.
- 17 -