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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                         :
ERIC WHITERS,                            :         No. 1619 EDA 2015
                                         :
                         Appellant       :


           Appeal from the Judgment of Sentence, December 1, 2014,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0007204-2008


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JULY 11, 2016

        Eric Whiters appeals the judgment of sentence in which the Court of

Common Pleas of Philadelphia County sentenced him to serve a term of five

to ten years’ imprisonment in a state correctional institution for carrying a

firearm when he was a person not permitted to carry a firearm, 18 Pa.C.S.A.

§ 6105.1

        The record reflects that on May 4, 2008, Officer Edgar Ruth

(“Officer Ruth”) of the City of Philadelphia Police Department was traveling

with his partner Officer Paul Tinneny (“Officer Tinneny”) in a police car on

their way back from transporting evidence when a call came from officers

requesting more units because there was a large crowd and a disturbance in



1
    Appellant was previously convicted of third-degree murder.
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a bar/night club in the 5300 block of Market Street. As the vehicle driven by

Officer Ruth pulled up to 53rd Street, there were approximately one hundred

people on the street. (Notes of testimony, 8/14/13 at 8-10.) A woman to

Officer Ruth’s left pointed down the street and yelled, “They got guns, [t]hey

got guns.” (Id. at 10.) The woman pointed to a tan Cadillac. According to

Officer Ruth, the Cadillac “spun its wheels and took off through the crowd

westbound.” (Id. at 11.) Officer Ruth followed the Cadillac and caught up

to it on Yewdall Street when the Cadillac was boxed in by parked cars and

forced to stop.

      Officer Ruth got out of his car and approached the Cadillac. He noticed

that the windows were tinted and “yelled to put the windows down.” (Id. at

13-14.)   Initially, Officer Ruth believed that there were two people in the

car, both in the front seat.   Officer Ruth saw the driver reaching for the

glove box. Officer Ruth instructed the driver to put the car in park and show

his hands. (Id. at 15.) When Officer Ruth went around the rear of the car,

he could see through the tint and noticed a passenger in the backseat. The

passenger was later revealed to be appellant.     (Id. at 16.)   When Officer

Ruth opened the door, he saw a firearm, a black Kel-Tec .40 caliber, on the

floor of the Cadillac under appellant’s feet.   He also noticed an odor of

marijuana.   Officer Ruth took appellant out of the Cadillac and put him in

Officer Ruth’s vehicle. (Id. at 18-20.)




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        Appellant was charged with the crime for which he was convicted. 2 On

March 26, 2010, appellant moved to suppress evidence on the basis that he

was arrested without an arrest warrant and without probable cause and that

at the time of the arrest, he may have made statements to the police which

were the fruits of the illegal arrest and were given prior to the police issuing

Miranda3 warnings. Appellant further alleged that evidence was obtained as

the result of illegal searches and seizures and that the police procedure used

to obtain appellant’s identification was unconstitutional such that his

identification should be suppressed.

        On August 14, 2013, the trial court heard the motion to suppress.

Officer Ruth recounted the circumstances that led him to arrest appellant.

The trial court denied the motion to suppress.

        The trial court conducted a jury trial on October 1-2, 2014.

Officer Ruth reiterated his testimony from the motion to suppress hearing

and identified the firearm that was found in the Cadillac under appellant’s

feet. (Notes of testimony, 10/2/14 at 32.) Officer Ruth demonstrated how

the firearm was positioned under appellant’s feet when he first saw it. (Id.

at 77-78.)


2
   He was also charged with receiving stolen property, 18 Pa.C.S.A.
§ 3925(a), firearms not to be carried without a license, 18 Pa.C.S.A.
§ 6106(a)(1), carrying firearms in public in Philadelphia, 18 Pa.C.S.A.
§ 6108, and presenting false identification to a law enforcement officer,
18 Pa.C.S.A. § 4914(a). These charges were later withdrawn.
3
    Miranda v. Arizona, 384 U.S. 436 (1966).


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      Officer Tinneny corroborated Officer Ruth’s testimony. Kenneth James

Lay, a civilian supervisor in the laboratory of the Philadelphia Police

Department’s Firearms Identification Unit, identified a report previously

prepared by his office concerning the firearm found in the Cadillac and

testified concerning his more recent examination of the firearm.       The jury

found appellant guilty of possession of a firearm by a prohibited person. The

trial court sentenced appellant to a term of five to ten years’ imprisonment.

      On December 9, 2014, appellant filed a post-sentence motion and

asserted that the trial court erred when it denied the motion to suppress,

that the introduction of appellant’s previous conviction caused irreparable

harm with the jury, and that the conviction was against the weight of the

evidence.   By order dated December 12, 2014, the trial court denied the

motion.

      Appellant raises the following issues for this court’s review:

            I.     Whether the Suppression Court improperly
                   denied [a]ppellant’s motion to suppress
                   evidence recovered from the search of a motor
                   vehicle?

            II.    Whether the weight of the evidence was
                   against [a]ppellant’s conviction?

            III.   Whether evidence was sufficient to sustain
                   [a]ppellant’s conviction?

Appellant’s brief at 4.

      Initially, appellant contends that the motion to suppress the firearm

recovered from the car was improperly denied because probable cause for


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the search of the vehicle never existed.          Appellant asserts that the

anonymous tip provided by the woman that the occupants of the Cadillac

had guns was insufficient to provide probable cause for a search. Appellant

next asserts that there was no testimony at the suppression hearing

concerning the odor of marijuana coming from the vehicle and the police

gave no indication that they had reasonable suspicion that criminal activity

was occurring within the Cadillac.

            Initially, we note that our standard of review when
            an appellant appeals the denial of a suppression
            motion is well established.      We are limited to
            determining whether the lower court’s factual
            findings are supported by the record and whether
            the legal conclusions drawn therefrom are correct.
            We may consider the evidence of the witnesses
            offered by the Commonwealth, as verdict winner,
            and only so much of the evidence presented by [the]
            defense that is not contradicted when examined in
            the context of the record as a whole. We are bound
            by facts supported by the record and may reverse
            only if the legal conclusions reached by the court
            were erroneous. Commonwealth v. O’Black, 897
            A.2d     1234,   1240    (Pa.Super.   2006),   citing
            Commonwealth v. Scott, 878 A.2d 874, 877
            (Pa.Super. 2005), appeal denied, 586 Pa. 749, 892
            A.2d 823 (2005).

Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa.Super. 2006). “It is

within the sole province of the suppression court judge to weigh the

credibility of the witnesses, and he or she is entitled to believe all, part, or

none of the evidence presented.” Commonwealth v. Snell, 811 A.2d 581,

584 (Pa.Super. 2002), appeal denied, 820 A.2d 162 (Pa. 2003) (citation

omitted).


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      With respect to the motion to suppress, the trial court determined:

            The stop of the vehicle was based on reasonable
            suspicion. Officer Ruth testified at the suppression
            hearing that a woman pointed to a tan Cadillac and
            told him that the occupants inside had guns. He
            then observed the vehicle speed off at a high rate of
            speed in a high-crime area, and he observed that the
            rear windows of the vehicle were tinted, such that
            upon approaching the vehicle and shining lights on
            the vehicle, he could see only a silhouette of a head
            moving forward in the rear of the vehicle. Under the
            totality of the circumstances, Officer Ruth reasonably
            suspected that [appellant] was violating the Motor
            Vehicle Code.

            Furthermore, Officer Ruth’s search of the vehicle was
            reasonable, because under the totality of the
            circumstances it was reasonable for him to believe
            that the occupants were dangerous and might gain
            immediate control of weapons. The vehicle’s rear
            windows were darkly tinted and the investigatory
            stop took place in a high-crime area. Moreover,
            Officer Ruth had been told that the occupants of the
            vehicle were armed.         Officer Ruth articulated
            sufficient facts to lead him properly to conclude that
            Murray[4] could have been armed and dangerous.

            The search of the vehicle was based on probable
            cause. However, the information provided by the
            woman who approached the officers was insufficient
            to establish probable cause for a search of the
            vehicle. She excitedly told the officers that the
            occupants of the car had guns inside the vehicle, an
            anonymous tip that was not corroborated by the
            police officers’ observations of the vehicle. Although
            the tip provided by the woman was insufficient to
            provide probable cause for a search, Officer Ruth had
            probable cause for a search when, after lawfully
            approaching the vehicle, he smelled an odor of
            marijuana emanating from the vehicle.             Upon

4
 It is unclear to whom the trial court is referring. The driver of the vehicle
was Antoine Cheeks, and the other passenger was Corey Butler.


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            smelling the marijuana, the facts and circumstances
            were such for Officer Ruth to believe that contraband
            would be found inside the vehicle.

Trial court opinion, 6/5/15 at 6-7(footnotes omitted).

      Appellant argues that there was no probable cause to search the

vehicle because, as the trial court noted, the tip provided by the unidentified

woman was insufficient to establish probable cause for a search.

      In order to suppress seized evidence, a defendant must establish that

the challenged police conduct implicated a reasonable expectation of privacy

that he possessed. A defendant must prove both a subjective expectation of

privacy in the area that was searched and an expectation that society would

accept as reasonable. Commonwealth v. Millner, 888 A.2d 680, 691 (Pa.

2005).

      In Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2009), this

court held that when a defendant did not own a vehicle, the vehicle was not

registered in the defendant’s name, and the defendant did not establish that

the owner of the vehicle authorized the defendant to use the car, the

defendant failed to establish that he had a reasonable expectation of

privacy.

      Here, the Cadillac where the firearm was found was neither owned by

appellant nor by the two other individuals in the car. Further, there was no

evidence presented that the owner of the Cadillac permitted appellant to ride

in the vehicle or the driver to operate it.   In the event that a search was



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conducted, appellant failed to establish that he had a reasonable expectation

of privacy which was violated.

      Further, the firearm was not the result of a search of the Cadillac.

Rather, it was in “plain view” when Officer Ruth opened the rear door of the

Cadillac. Officer Ruth was entitled to open the door when appellant did not

lower his window as Officer Ruth ordered, especially when the woman had

alerted Officer Ruth to the possibility that there were guns in the Cadillac.

See Commonwealth v. Brown, 654 A.2d 1096, 1102 (Pa.Super. 1995) (as

part of a lawful traffic stop, a police officer may order occupants out of a

vehicle, given the inherent risk associated with vehicle stops).5 Officer Ruth

did not conduct a search but saw the firearm beneath the feet of appellant.

The trial court did not err6 when it denied the motion to suppress.7


5
  Appellant concedes that Officer Ruth had a reasonable suspicion to stop the
car due to Vehicle Code violations. The trial court determined that there was
probable cause to stop the driver of the Cadillac for careless driving, if not
reckless driving. (Notes of testimony, 8/14/13 at 39.)
6
  Although the trial court did not deny the motion based on the lack of a
reasonable expectation of privacy and the lack of a search, this court may
affirm a denial of a motion to suppress even if the suppression court did err
in its legal conclusions, where there are other legitimate grounds for
admissibility of the challenged evidence. Commonwealth v. Roman, 714
A.2d 440, 442 (Pa.Super. 1998).
7
  Appellant also argues that Officer Ruth did not testify to noticing the odor
of marijuana when he opened the door to the Cadillac. In fact, he did testify
at the suppression hearing that he noticed the odor of marijuana in the
interior of the Cadillac. (Notes of testimony, 8/14/13 at 20.) Appellant
further argues that the police had no reasonable suspicion to search the
interior of the car. Once again, appellant had no reasonable expectation of
privacy and a search was not conducted.


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      Appellant next contends that the verdict was against the weight of the

evidence where the police statements were inconsistent regarding the

position of the firearm related to appellant.

                  [T]he weight of the evidence is
                  exclusively for the finder of fact who is
                  free to believe all, part, or none of the
                  evidence and to determine the credibility
                  of the witnesses.       An appellate court
                  cannot substitute its judgment for that of
                  the finder of fact . . . thus, we may only
                  reverse the lower court’s verdict if it is so
                  contrary to the evidence as to shock
                  one’s sense of justice. Moreover, where
                  the trial court has ruled on the weight
                  claim below, an appellate court’s role is
                  not to consider the underlying question
                  of whether the verdict is against the
                  weight of the evidence, . . . rather,
                  appellate review is limited to whether the
                  trial court palpably abused its discretion
                  in ruling on the weight claim.

            Commonwealth v. Kim, 888 A.2d 847, 851
            (Pa.Super. 2005) (citations and quotations omitted).
            A motion for a new trial based on a challenge to the
            weight of the evidence concedes the evidence was
            sufficient to support the verdict. Commonwealth v.
            Davis, 799 A.2d 860, 865 (Pa.Super. 2002).

Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).

      Appellant   argues    that   the   testimony     of   Officer   Ruth   and

Officer Tinneny was inconsistent with respect to the location of the firearm.

Police reports and testimony stated that the gun was under the right rear

floor, between appellant’s feet, or appellant’s feet were on top of the

firearm.



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      With respect to this issue of whether the verdict was against the

weight of the evidence, the trial court reasoned:

            The court finds that the conviction was not against
            the greater weight of the evidence. Contrary to
            [appellant’s] assertions, it was shown that he
            possessed the firearm. Even if it were shown that
            [appellant] could not have actually possessed the
            firearm, there was a showing that [appellant] had at
            least constructive possession of the firearm.       In
            order to prove constructive possession, the
            Commonwealth must present evidence to show that
            [appellant] had both the power to control the
            firearm and the intent to exercise such control. . . .
            Constructive possession may be established by the
            totality of the circumstances. . . . The firearm was
            found between [appellant’s] feet, with his feet on top
            of the firearm. . . . Based on the circumstances, the
            jury could have reasonably inferred that [appellant]
            had the intent and power to control the firearm. A
            verdict based on such a reasonable inference cannot
            possibly shock one’s sense of justice.

Trial court opinion, 6/5/15 at 8-9 (citations omitted; emphasis in original).

      Here, Officer Ruth testified at trial that when he first saw the firearm,

it “was flat on the floor on the passenger’s side under [appellant’s] feet. His

feet were sitting on top of it.”   (Notes of testimony, 10/2/14 at 32.) The

property receipt for the firearm stated that it was found on the right rear

floor of the Cadillac and not under the floor as argued by appellant.




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(Property receipt, 5/4/08.)8     On cross-examination, Officer Ruth explained

that while the detective’s report indicated that the firearm was found on the

floor between appellant’s feet, “I could see the gun between his feet. His

feet are on top of it. When I saw it, I could see part of the gun between his

feet.” (Id. at 68.) Officer Ruth consistently testified as to the location of

the gun. The jury apparently credited his testimony.9 Based on the record

before this court, we do not find that the trial court abused its discretion

when it declined to grant appellant’s post-trial motion concerning the weight

of the evidence as the verdict does not shock one’s sense of justice.

      Finally, appellant contends that the evidence was insufficient to sustain

his conviction where there was no showing that he knew the firearm was in

the vehicle.

               A claim challenging the sufficiency of the evidence is
               a question of law. Commonwealth v. Widmer,
               560 Pa. 308, 319, 744 A.2d 745, 751 (2000). In
               that case, our Supreme Court set forth the
               sufficiency of the evidence standard:

                    Evidence will be deemed sufficient to
                    support the verdict when it establishes

8
  Officer Ruth read from the property receipt into the record. Either
Officer Ruth misread the property receipt or it was mis-transcribed so that
the transcript from trial reads that the gun was “under the right rear floor.”
(Notes of testimony, 10/2/14 at 64-65.) The property receipt was admitted
at trial as Exhibit C-3. It was not included in the record submitted to this
court. The Commonwealth moved to amend the record to include the
property receipt. This court granted the motion.
9
  Officer Tinneny testified that he did not see the firearm before Officer Ruth
had it in his hand. (Id. at 93.) Therefore, his testimony was not relevant as
to the location of the firearm.


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                 each material element of the crime
                 charged and the commission thereof by
                 the accused, beyond a reasonable doubt.
                 Commonwealth v. Karkaria, 533 Pa.
                 412, 625 A.2d 1167 (1993). Where the
                 evidence offered to support the verdict is
                 in contradiction to the physical facts, in
                 contravention to human experience and
                 the laws of nature, then the evidence is
                 insufficient as a matter of law.
                 Commonwealth v. Santana, 460 Pa.
                 482, 333 A.2d 876 (1975).           When
                 reviewing a sufficiency claim the court is
                 required to view the evidence in the light
                 most favorable to the verdict winner
                 giving the prosecution the benefit of all
                 reasonable inferences to be drawn from
                 the evidence.       Commonwealth v.
                 Chambers, 528 Pa. 558, 599 A.2d 630
                 (1991).

           Id. at 319, 744 A.2d at 751.

Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).

     Appellant argues that the Commonwealth failed to establish that

appellant knew that the firearm was in the backseat of the car.10

     With respect to the sufficiency of the evidence, the trial court

determined:

           [Appellant] is incorrect to suggest that the evidence
           was insufficient to establish that he knew the firearm
           was in the vehicle. Officer Ruth opened the car’s
           right rear passenger door and observed [appellant]
           sitting with a semi-automatic handgun beneath his
           feet. Based on the circumstances, the jury could


10
   Appellant also argues that if the gun were under the floor, he would not
know it was there.       However, the credible evidence of Officer Ruth
established that the gun was underneath and between appellant’s feet.


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            have reasonably inferred that he knew that the
            firearm was present.

Trial court opinion, 6/5/15 at 9.

      A person is guilty of carrying a firearm when not permitted to carry a

firearm, 18 Pa.C.S.A. § 6105, if he has been convicted of an offense listed in

18 Pa.C.S.A. § 6105(b) and possesses a firearm. Here, it was established

that appellant had previously been convicted of murder, an enumerated

offense. Officer Ruth testified that he found the firearm between and under

appellant’s feet. Officer Ruth also testified that appellant closed his knees

together when he put his hands up when Officer Ruth opened the car door.

(Notes of testimony, 10/2/14 at 31.)      The stipulation that appellant had a

previous murder conviction coupled with Officer Ruth’s testimony provided

sufficient evidence for the conviction.   In taking that evidence in the light

most favorable to the Commonwealth, the jury could infer that appellant was

in possession of the firearm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/11/2016




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