Case Information
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA [1] IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
v.
KENDRITH J. JONES
Appellant No. MDA 2016 Appeal from the Judgment of Sentence March 9, 2016 In the Court of Common Pleas Dauphin County Criminal Division at No: CP-22-CR-006709-2014 BEFORE: LAZARUS, STABILE, and DUBOW, JJ. FILED MAY 2017
MEMORANDUM BY STABILE, J.: Appellant, Kendrith J. Jones, appeals from March 9, 2016 judgment of sentence entered the Court of Common Pleas Dauphin County ("trial court") sentencing Appellant period of incarceration of five ten years for persons not to possess, use, manufacture, control, sell or transfer firearms.' Upon review, we affirm. trial court summarized the factual history of the matter follows.
Corporal McGarrity of the Harrisburg Police Department on patrol around 1:00 am. Allison Hill section of Harrisburg on October 31, 2014. Allison Hill high drug crime area of Harrisburg City.
While patrol, McGarrity noticed vehicle with non- functioning driver's side taillight. He followed the vehicle ' Pa.C.S.A. § 6105.
while and initiated a traffic stop once other units were nearby. took about a block and a half to pull over, despite there being plenty of opportunity to pull over prior to that.
McGarrity did not approach the vehicle immediately as he was waiting for back up, but he did observe Appellant, seated in driver's seat, moving around a lot. Appellant's shoulders were moving up and down as if he were manipulating something his lap. His left shoulder also dipped down if he reaching underneath seat. These movements raised McCarty's [(sic)] suspicions, and created safety concerns.
McGarrity acknowledged that the movements could have been [Appellant] looking for proper documentation, but they were excessive and such long duration red flags were [Appellant] had freshly lit cigarette his hand when raised. McGarrity approached. He was visibly shaking and was unable to provide his license. The vehicle was registered to an Amber Uber. [Appellant] provided his name and date of birth.
McGarrity did warn the other officers about the movements it was enough movement to raise his he had seen because suspicions and he wanted to warn them. McGarrity ran the information and confirmed [Appellant] had valid license. He then returned to car and notified [Appellant] about the faulty taillight. He issue ticket.
McGarrity returned his car but then called out to [Appellant] who had his ignition on and was ready to leave. [Appellant] responded and McGarrity re -approached. McGarrity explained it high -crime area late at night and he had seen movements raised his suspicions and he wanted make sure nothing amiss.
He asked [Appellant] if had anything on his person or the vehicle for consent search. [Appellant] indicated consent to search person exited the vehicle. A pat down revealed nothing illegal on his person. At this point, McGarrity asked permission to search the vehicle which granted by [Appellant] ushering him towards the vehicle. He asked occupants to step out they did, but neither consented search. They stood behind the vehicle with the other officers.
McGarrity leaned into driver's seat with flashlight and saw empty cloth holster on the floor. He informed the other officers and they searched passengers who had nothing on their persons. He then leaned further and saw the grip of a weapon sticking out from underneath driver's seat.
He retrieved the weapon and detained [Appellant] who indicated girlfriend, Amber Uber, car owner, owned a gun, but not. When he initially observed the gun, the slide was forward indicating it was loaded. The gun, a SIG Sauer P938, a millimeter semiautomatic gun. This particular had a laser on it to help acquire the target. This not standard with the type of firearm, but it can be purchased as an add-on. It registered to Amanda Uber, Appellant's girlfriend and mother of son.
Based on his criminal history, Appellant not permitted firearm. has a prior conviction for to carry a possession with intent to deliver crack cocaine. Immediately following testimony regarding Appellant's prior conviction, the [trial court] cautioned the jury as follows:
And as cautionary instruction to you, ladies gentlemen, purposes of proving its case regarding person to possess firearm, Commonwealth introduced the certified record as well as the testimony Detective Heffner.
You may consider the [Appellant's] prior offense only as to establish the prior conviction element - and you will hear the elements as I go through them when I give you my final instructions that one elements they had to convicted enumerated offense, the offense of possession with intent deliver controlled substance, which you learned through stipulation. You may not consider it evidence of the [Appellant's] bad character or general propensity commit any crimes.
The gun was legally sold to Uber by Stephen Silcox, friend of Appellant's October 2014. had spoken Silcox about Uber purchasing gun present for the transaction.
Uber testified confirmed gun holster were hers. She did not know how many bullets the gun held, nor
- 3 - she certain if the gun had a safety. Uber was not sure if it was semiautomatic or automatic firearm; she did not know if first shot was a single shot action or double action in fact she testified she did not even know what that meant. Uber not know how to load gun. She did believe that gun has a flashlight or laser or any other special features.
Uber kept the gun on top of a large hutch in her house to keep it away from kids. She had previously taken it to her aunt's house, but on trick or treat night she moved it to her car so no one would take it.
Uber threw gun under the driver's seat of her car that evening. Later night, Appellant was given permission to take her car pick up a friend. She was half asleep when she gave him permission she forgot tell him about the gun under the driver's seat. She testified Appellant could not have known gun was car she had not told him about it being there.
Trial Court Opinion, 5/11/16, at 2-5 (citations omitted).
Following these events, Appellant was charged with persons not possess, use, manufacture, control, sell or transfer firearms. Appellant filed omnibus motion on May 6, 2015, which contained a motion to suppress. Following a hearing on July 17, 2015, the trial court denied Appellant's omnibus motion. On November 2, 2015, Appellant raised motion limine seeking to bifurcate the charge of persons not to possess firearms based upon the elements of the offense. The trial court denied the motion the same date. A jury trial held from November 3-4, 2015, after which the jury unable to reach verdict trial court declared mistrial. A second jury held on January 13, 2016, after which found guilty of persons not to possess firearms. trial court sentenced March 9, period of 5-10 years' incarceration.
-4 Appellant filed timely post -sentence motion challenging the weight of the on March 15, 2016. The trial court summarily denied the motion on March 17, 2016.
Appellant filed timely notice of appeal on March 31, 2016. On April 21, 2016, the trial court directed to file concise statement pursuant to Pa.R.A.P. 1925(b). Appellant complied with this order and filed concise statement on May 5, 2016. The trial court issued two opinions pursuant to Pa.R.A.P. 1925(a), one by the Honorable Deborah E. Curcillo2 on May 2016, and one by the Honorable William T. Tully May 24, 2016.3 raises four questions review, which we quote verbatim.
I. Whether the [t]rial [c]ourt erred in denying Appellant's
[m]otion [s]uppress [e]vidence where police lacked reasonable suspicion or probable cause conduct an investigative detention after Appellant told he was free in violation of Article I, Section 8 of to go, the Pennsylvania Constitution Fourth Amendment United States Constitution. II. Whether the trial court erred in denying Appellant's [p]ost-
[s]entence [m]otion where the verdict against the weight of the evidence so shock one's sense of justice where the Commonwealth never showed, inter alia, that [Appellant] actually possessed or knew of presence of firearm for which convicted? The Honorable Deborah E. Curcillo presided over Appellant's second jury addressed all related issues her 1925(a) opinion. Honorable William T. Tully presided over Appellant's omnibus pre-trial motion address all related issues 1925(a) opinion.
-5 III. Whether the Commonwealth failed to present sufficient
evidence to sustain Appellant's convictions where the Commonwealth not prove that possessed the firearm or knew its presence in the vehicle?
IV. Whether the trial court erred in denying Appellant's
request bifurcate the charge persons not to possess a where the admission of Appellant's prior criminal charge unduly prejudicial?
Appellant's Brief at 8.
Appellant's first argument the trial court erred when it denied motion suppress the vehicle stop. When reviewing an order denying motion to suppress evidence,
An appellate court may consider only the Commonwealth's so much of the evidence defense as remains uncontradicted when read context record whole. Where the record supports the factual findings of court, the appellate court bound by those facts may reverse only if the legal conclusions drawn therefrom are in error. However, it also well settled the appellate court is bound by the suppression court's conclusions of law. Nguyen, 116 A.3d 663-64 Super. 2015)
(citations omitted). At the conclusion of the suppression hearing, the trial court made the following findings.
After reviewing the cases, and Nguyen case isn't necessarily point. first distinguishing factor would Nguyen the individual searched the passenger of the vehicle after the driver of the vehicle gave permission to search car. . . .
After saying you're free to leave officer reengaged in those cases, confronting the individual with each of inconsistencies, almost like interrogation. And the courts in those cases using totality of the circumstances, balancing statement you're free leave with other attendant circumstances which would leave reasonable person believe
-6 statement you're free to leave would [not] necessarily controlling . . . . Strickler[4] case lays out the basis it's mere encounter absent something escalates it into [quasi custodial] circumstance. In this case the officer's testimony very clear. That after he said free to leave, began to walk away, [Appellant] started vehicle, prepared officer conversation. That leave reengaged conversation didn't confront him with inconsistencies, didn't confront him about observed furtive movements or the nervousness but simply talked about the neighborhood then [asked his] permission to search.
I think under totality of the circumstances as they're laid before me I have to take the holding of [Strickler], Supreme Court case controlling because it's distinguished . . . . So under these circumstances I'm going to have to deny the motion to suppress.
Trial Court Opinion, 5/24/16, at (quoting N.T. Suppression Hearing, 7/17/15, at 28-29).
In Strickler, our Supreme Court noted list of non-exclusive factors relevant whether individual has been seized. Strickler, 757 A.2d at 898-99. These include: (1) the presence or absence police excesses; (2) physical contact or police direction of citizen -subject's movements; (3) demeanor of the police officer; (4) location of confrontation; (5) manner of expression of the police officer; (6) content interrogatories or statements; (7) existence character of the initial investigative detention; (8) the degree of coercion; (9) the degree to which transition between Strickler, 757 A.2d 884 2000).
-7 the traffic stop/investigative detention and the subsequent encounter can be viewed seamless; and (10) whether there was express admonition the effect that the citizen -subject free depart. Id.
In Nguyen, the trooper completed the first lawful detention/traffic stop and informed the driver he was free to go; however, "[a]fter walking toward his cruiser, the trooper turned around and returned driver's vehicle, approached the driver, and began to ask driver additional questions." Nguyen, 116 A.3d at 668-69. The trooper asked questions about his nervousness, what he was doing, and his relationship with the passenger. Id. at 669. During this line of questioning, the driver remained outside of his vehicle. Id. at 668. Moreover, "when person standing outside rather than inside vehicle, he less likely to believe that he can actually leave area by entering the car driving away." Id. (citations omitted). Nguyen Court found that under the totality of the investigative detention without circumstances, the second stop was an reasonable suspicion therefore, stop should have been suppressed.
In the matter sub judice, trial court found Appellant informed he free to leave, entered vehicle, started the engine, before Corporal McGarrity reengaged. Moreover, the corporal not question Appellant, he polite, and he simply informed area was dangerous before asked to search the vehicle. Accordingly, we find based upon totality circumstances, the trial court properly found free to leave second encounter as it was not an investigative detention. Accordingly, the trial court properly denied Appellant's motion to suppress. Appellant's claim fails.
Appellant's next argument is a challenge to the weight of the evidence. 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. Because the trial judge has had opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration the findings reasons advanced by trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict or against the weight of that new should be granted the interest of justice. Commonwealth Widmer, 744 A.2d 745, 753 (Pa. 2000) (citations omitted). "The weight of the evidence is exclusively for finder fact, which is free believe all, part or none of the evidence, to assess the credibility of the witnesses. An appellate court cannot substitute its judgment of the jury issues credibility." v. Palo, A.3d Super. 2011). challenging whether weight of the evidence insofar as constructively possessed question.
Constructive possession legal fiction, pragmatic construct to deal with realities of criminal law enforcement. Constructive possession inference arising from set of facts possession of the contraband more likely than not. We have defined constructive possession as conscious dominion. We subsequently defined conscious dominion the power control the contraband intent exercise control. To aid application, we have held constructive possession may established by totality of the circumstances.
-9 Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013) (quoting Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012)). Furthermore, "[i]llegal possession firearm may shown by constructive possession." Commonwealth v. Cruz, A.3d 1253 (Pa. Super. 2011) (citing Parker, 847 A.2d 745, 750 Super. 2004)).
The trial court found that driving the vehicle, the firearm was located underneath the driver's seat, and while the firearm registered to Amanda Uber, she unfamiliar with the specifications of the firearm, she was unaware of how to load the weapon. Additionally, trial court found that the gun holster visible to the driver, the grip of the gun was visible under driver's seat. Thus, Appellant, the driver vehicle, would have seen firearm when entered the vehicle. Therefore, we find trial court abuse its discretion when it denied Appellant's weight of the evidence claim.
Appellant's third argument the Commonwealth failed present sufficient evidence possessed or knew its presence the vehicle. Our standard of review of sufficiency challenge is well established. standard we apply reviewing the sufficiency of the whether viewing all the evidence admitted at in light most favorable verdict winner, there sufficient
evidence to enable the fact -finder find every element of the crime beyond reasonable doubt. In applying [the above] test, we may not weigh the evidence substitute our judgment for fact -finder. In addition, we note facts circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilty may be resolved by the fact -finder unless evidence is so weak inconclusive a matter law no probability of fact may be drawn from combined circumstances. Commonwealth may sustain its burden of proving every element the crime beyond reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, entire record must be evaluated an all evidence actually received must be considered. Finally, the [finder] of fact while passing upon credibility of witnesses weight evidence produced is free believe all, part or none of the evidence.
Commonwealth v. Phillips, 93 A.3d 856 (Pa. Super. 2014) (quoting Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa. Super. 2005) (quoting Bullick, 830 A.2d 998, 1000 Super. 2003))). In order convicted charge of persons not to possess firearms, the Commonwealth must prove two elements: possession, previous conviction an enumerated offense. Appellant not challenging previous conviction, he only challenging whether he constructively possessed in question. As discussed above, "[c]onstructive possession inference arising from set of facts possession of the contraband more likely than not." Hopkins, A.3d at (quoting Brown, 48 A.3d at 430).
In the matter sub judice, gun was found holster underneath the driver's seat of car Appellant driving. Corporal McGarrity saw reaching underneath seat after pulled over. Viewing the light most favorable the Commonwealth, in constructive possession of the located beneath his seat the vehicle driving. Appellant's sufficiency claim fails.
Appellant's final argument trial court erred when it failed to bifurcate the based the elements of person not to possess firearms. Essentially, arguing there should separate trials for each element of the offense because the evidence of prior conviction is inherently prejudicial. Appellant cites no authority this proposition other multi -count than cases where motion sever granted indictments. See Commonwealth v. Jones, 858 A.2d 1198 (Pa. Super. 2004); Commonwealth v. Carroll, 418 A.2d 702 (Pa. Super. 1980). In Jemison, 98 A.3d 1262 2014), our Supreme Court held defendant does suffer "unfair prejudice merely by admission into evidence or her certified conviction of specific, identified, predicate offense, which has been offered by the Commonwealth prove the prior conviction element of § 6105." Jemison, A.3d at 1262. Therefore, Appellant's argument meritless.
Judgment of sentence affirmed.
Judge Dubow joins this memorandum.
Judge Lazarus files concurring statement which Judge Dubow joins.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 5/24/2017
