J-S92006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MARVIN LEO GRAVES,

                            Appellant                No. 2024 WDA 2015


          Appeal from the Judgment of Sentence November 24, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0013769-2014


BEFORE: SHOGAN, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED JANUARY 20, 2017

       Appellant, Marvin Leo Graves, appeals pro se from the judgment of

sentence entered on November 24, 2015, in the Allegheny County Court of

Common Pleas. We affirm.

       The trial court provided the following factual background:

       The Commonwealth presented testimony of two Pittsburgh Police
       Officers Louis Schweitzer and Matthew Poling, who were on
       patrol in the Homewood and Larrimer Sections of the City of
       Pittsburgh. They had been assigned that area since the Serenity
       Night Club was open during the weekend and that area was a
       high crime area, having numerous fights and shots fired in and
       around that club. The two Officers were conducting a park and
       walk around the area of the night club illuminating motor
       vehicles to see if they could identify any guns in plain view.


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*
    Retired Senior Judge assigned to the Superior Court.
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            The Officers came upon a four-door white Volkswagen
     parked on Enterprise Street and when they illuminated the
     interior of the car, they saw a gun. Officer Poling indicated that
     he observed this gun in the driver’s side rear seat pocket. The
     Officers then decided to set up surveillance of this automobile
     from a parking lot directly across the street from where the
     Volkswagen was parked. While observing that car, they saw a
     black male walk up to the car, open the driver’s door and get in
     the car and sit there briefly. This individual, who was later
     identified as Graves, then got out of the vehicle but reached
     through the left rear window of the vehicle and retrieved an item
     from the back of the vehicle, which was approximately four by
     six inches. The Officers could not identify what the item was but
     did note that the individual who got into the car walked to the
     trunk area of the car, opened the trunk, and put the object that
     he had taken from the interior of the vehicle into the trunk. This
     individual then got back into the driver’s seat and shortly
     thereafter was joined by another individual who got into the
     front passenger seat and two more individuals, who got into the
     back seat of this vehicle. The vehicle took off and proceeded
     along Hamilton Avenue until it reached the intersection of East
     Liberty Boulevard. Once the vehicle left the Serenity Club,
     Officers Schweitzer and Poling decided to follow the vehicle and
     when it approached the intersection of Hamilton Avenue and
     East Liberty Boulevard, it failed to indicate that it was making a
     turn, when it turned onto East Liberty Boulevard.

            When the Officers began to follow Graves’ automobile,
     they activated the camera mounted in the Officers’ patrol car.
     Officer Schweitzer made a traffic stop for the turn signal
     violation and since they had previously seen a gun in the vehicle,
     they ordered all of the occupants out of the vehicle for the
     Officers’ safety so that they could locate the gun. While these
     individuals were getting out of the car, Officer Livesey who was
     providing backup protection to Officers Schweitzer and Poling,
     told Officer Schweitzer that there was a bag of marijuana in the
     rear pocket of the driver’s seat. These Officers illuminated that
     area and the other Officers saw the bag of marijuana. This was
     the same pocket where the gun had been observed, but there
     was no gun in that pocket. Since Officers Schweitzer and Poling
     had seen Graves take an object from the car and put it in the
     trunk, the trunk area was searched and the Officers found a
     forty-four Magnum revolver.


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Trial Court Opinion, 7/28/16, at 3-5.

       On November 28, 2014, Appellant was charged with persons not to

possess a firearm and possession of a firearm without a license. Appellant

filed a motion to suppress physical evidence, alleging that the traffic stop

and search of Appellant’s car were illegal. Motion to Suppress, 3/5/15, at

¶5. The suppression motion was denied on July 20, 2015. On August 27,

2015, following the jury trial, Appellant was found guilty of both charges.

On November 24, 2015, the trial court sentenced Appellant to a term of five

to ten years of incarceration for persons not to possess a firearm and a

consecutive three-year term of probation for the conviction for possession of

a firearm without a license.

       Appellant filed a timely appeal.          On March 24, 2016, Appellant’s

counsel filed a motion to withdraw and a request for an order remanding the

matter to the trial court for a hearing pursuant to Commonwealth v.

Grazier, 713 A.2d 81 (Pa. 1998).1 In an order filed on April 1, 2016, this

Court remanded this case to the trial court to hold a Grazier hearing.

Following the Grazier hearing, counsel’s motion to withdraw was granted,

and the trial court entered an order permitting Appellant to represent




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1
   Grazier hearings are utilized to determine if a criminal defendant’s waiver
of counsel is knowing, intelligent, and voluntary. Grazier, 713 A.2d at 82.



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himself on appeal.2 Both Appellant and the trial court have complied with

Pa.R.A.P. 1925.

       On appeal, Appellant raises the following issues:

       I.     DID OFFICERS ARTICULATE THE REQUISITE PROBABLE
              CAUSE TO STOP THE APPELLANT’S VEHICLE FOR MVC
              VIOLATION 75 PA. C.S.A.3334(b)?

       II.    WAS THE TRIAL EVIDENCE SUFFICIENT IN LAW, TO
              PROVE POSSESSION BEYOND A REASONABLE DOUBT?

Appellant’s Brief at 6 (verbatim).

       When an appellant raises both a sufficiency-of-the-evidence issue and

a suppression issue, we address the sufficiency of the evidence supporting

the conviction first, and we do so without a diminished record:

       [W]e are called upon to consider all of the testimony that was
       presented to the jury during the trial, without consideration
       as to the admissibility of that evidence. The question of
       sufficiency is not assessed upon a diminished record. Where
       improperly admitted evidence has been allowed to be considered
       by the jury, its subsequent deletion does not justify a finding of
       insufficient evidence. The remedy in such a case is the grant of
       a new trial.

Commonwealth v. Sanford, 863 A.2d 428, 432 (Pa. 2004) (citation

omitted) (emphasis in original).



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2
   While Appellant elected to represent himself, his status as a pro se litigant
does not entitle him to any advantage due to his lack of legal training.
Commonwealth v. Ray, 134 A.3d 1109, 1114 (Pa. Super. 2016). Rather,
a pro se litigant, to a reasonable extent, assumes the risk that his lack of
legal training will place him at a disadvantage. Id.



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      Our standard of review for a sufficiency-of-the-evidence claim is well

settled:

      The standard we apply in reviewing the sufficiency of evidence is
      whether, viewing all the evidence admitted at trial in the light
      most favorable to the verdict-winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime
      beyond a reasonable doubt. In applying the above test, we may
      not weigh the evidence and substitute our own judgment for that
      of the fact-finder. In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances.

Commonwealth v. Colon-Plaza, 136 A.3d 521, 525–526 (Pa. Super.

2016) (quoting Commonwealth v. Robertson-Dewar, 829 A.2d 1207,

1211 (Pa. Super. 2003)). Furthermore:

      The Commonwealth may sustain its burden of proving every
      element of the crime beyond a reasonable doubt by means of
      wholly circumstantial evidence. Moreover, in applying the above
      test, the entire record must be evaluated and all evidence
      actually received must be considered. Finally, the finder of fact
      while passing upon the credibility of witnesses and the weight of
      the evidence produced, is free to believe all, part or none of the
      evidence.

Commonwealth v. Mucci, 143 A.3d 399, 409 (Pa. Super. 2016).

      As stated above, Appellant was convicted of persons not to possess a

firearm and possession of a firearm without a license.         The focus of

Appellant’s challenge to the sufficiency of the evidence is that the

Commonwealth failed to prove that he possessed a firearm.          While the

record supports Appellant’s claim that the firearm was not discovered on his

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person, the Commonwealth may satisfy its burden by demonstrating

constructive possession.

     Constructive possession is a legal fiction, a pragmatic construct
     to deal with the realities of criminal law enforcement.
     Constructive possession is an inference arising from a set of
     facts that possession of the contraband was more likely than not.
     We have defined constructive possession as conscious dominion.
     We subsequently defined conscious dominion as the power to
     control the contraband and the intent to exercise that control.
     To aid application, we have held that constructive possession
     may be established by the totality of the circumstances.

Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013) (citation

omitted).

     Here, the trial court addressed this issue as follows:

     In examining the record in the light most favorable to the
     Commonwealth and all the reasonable inferences drawn
     therefrom, it is clear that the Commonwealth established beyond
     a reasonable doubt that [Appellant] was guilty of [persons not to
     possess a firearm and possession of a firearm without a license].
     Officers Schweitzer and Poling were patrolling an area near the
     Serenity Night Club in light of the fact that there had been
     numerous incidents involving fights and shootings around that
     facility. While walking the streets, they illuminated cars that
     were parked there to see if there were any weapons in sight.
     When they came to a four-door Volkswagen automobile, they
     noticed a 44 magnum in the pocket of the back of the driver’s
     seat. These Officers took up surveillance of that motor vehicle
     to see who would come to that vehicle and saw [Appellant] go to
     the vehicle, get in and sit in the driver’s seat for a brief period of
     time, and then exit the vehicle and then lean through the rear
     passenger window and take a small object out of the back of the
     vehicle and then place that object in the trunk of that vehicle.
     [Appellant] then got back into the driver’s seat and was joined
     by three other individuals. As a result of a traffic violation, a stop
     was made and a search of the car then ensued. The Officers
     were concerned with locating the weapon, however, it was no
     longer in the pocket of the driver’s seat but rather the Officers
     found a bag of marijuana, which was in plain view. When the

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      Officers looked into the trunk, they found the 44 magnum
      revolver which they had originally seen in the pocket of the
      driver’s seat.

             The Commonwealth can prove its case by both direct and
      circumstantial evidence and it is clear that the evidence
      demonstrated that there was a gun in this vehicle, that after
      [Appellant] had reached into the back seat area and placed an
      object in the trunk of the car, the gun was no longer in the
      interior of the car but, rather, was in the trunk. The gun was in
      the interior prior to [Appellant] getting into the car and was in
      the trunk after he had placed an object there. The clear and
      unmistakable inference to arise therefrom is that [Appellant]
      took the gun from the interior of the car and placed it in the
      trunk.

Trial Court Opinion, 7/28/16, at 9-10.       We agree with the trial court.

Pursuant to our standard of review, the evidence was sufficient to establish

that Appellant had the power to control the firearm and, in fact, exercised

that control.    Therefore, the Commonwealth established that Appellant

constructively possessed the firearm. Hopkins, 67 A.3d at 820. Appellant

is due no relief on this issue.

      Having concluded that the evidence was sufficient to convict Appellant

of the crimes with which he was charged, we now address Appellant’s

suppression issue.     Specifically, Appellant claims that the police did not

“articulate the requisite probable cause to stop the appellant’s vehicle for a




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[Motor Vehicle Code] violation [pursuant to] 75 Pa. C.S.A. 3334(b).”

Appellant’s Brief at 6.3

       Our standard of review is as follows:

       In evaluating a suppression ruling, we consider the evidence of
       the Commonwealth, as the prevailing party below, and any
       evidence of the defendant that is uncontradicted when examined
       in the context of the record. Commonwealth v. Sanders, 42
       A.3d 325, 330 (Pa. Super. 2012). This Court is bound by the
       factual findings of the suppression court where the record
       supports those findings and may only reverse when the legal
       conclusions drawn from those facts are in error. Id.

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3
   We point out that Appellant’s statement of questions presented challenges
only the traffic stop; it does not mention the subsequent search of the
vehicle. Accordingly, any challenge to the search of Appellant’s vehicle is
waived. Commonwealth v. Hodge, 144 A.3d 170, 172 n.4 (Pa. Super.
2016); Pa.R.A.P. 2116(a). However, had Appellant properly presented a
challenge to the search of the vehicle in his appeal, we would conclude that
his suppression motion was properly denied. It is well-settled that “[t]he
police have probable cause where the facts and circumstances within the
officer’s knowledge are sufficient to warrant a person of reasonable caution
in the belief that an offense has been or is being committed.”
Commonwealth v. Hernandez, 935 A.2d 1275, 1284 (Pa. 2007)
(quotation and citations omitted).        “We evaluate probable cause by
considering all relevant facts under a totality of circumstances analysis.” Id.
Moreover, “[i]f a car is readily mobile and probable cause exists to believe it
contains contraband, the Fourth Amendment permits police to search the
vehicle without more.” Commonwealth v. Gary, 91 A.3d 102, 111-112
(Pa. 2014) (quoting Pennsylvania v. Labron, 518 U.S. 938, 940 (1996)).
Herein, when the police officers approached Appellant’s vehicle after the
traffic stop they saw the bag of suspected marijuana in plain sight. Under
the totality of the circumstances, the possession of the marijuana, coupled
with the earlier sighting of the firearm, provided probable cause for the
police to conclude that the car contained contraband and search the vehicle.
While this was not the precise rationale for the trial court’s denial of the
motion to suppress, were we to reach this issue, it is well settled that we
may affirm on any correct basis. Commonwealth v. Ahlborn, 683 A.2d
632, 641 n.14 (Pa. Super. 1996).



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Commonwealth v. Haynes, 116 A.3d 640, 644 (Pa. Super. 2015).

Moreover, on October 30, 2013, our Supreme Court in In re L.J., 79 A.3d

1073 (Pa. 2013), clarified that the scope of review of orders granting or

denying motions to suppress is limited to the evidence presented at the

suppression hearing.     Because Appellant’s suppression hearing post-dates

the filing date of L.J., which was held to be prospective, L.J. applies to this

case. Commonwealth v. Caple, 121 A.3d 511, 517 n.1 (Pa. Super. 2015).

      Under the Motor Vehicle Code, 75 Pa.C.S. § 101 et seq., the power of

a police officer to conduct a traffic stop is authorized as follows:

      (b) Authority of police officer.--Whenever a police officer is
      engaged in a systematic program of checking vehicles or drivers
      or has reasonable suspicion that a violation of this title is
      occurring or has occurred, he may stop a vehicle, upon request
      or signal, for the purpose of checking the vehicle’s registration,
      proof of financial responsibility, vehicle identification number or
      engine number or the driver’s license, or to secure such other
      information as the officer may reasonably believe to be
      necessary to enforce the provisions of this title.

75 Pa.C.S. § 6308(b). “However, if the violation is such that it requires no

additional investigation, the officer must have probable cause to initiate the

stop.” Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa. Super. 2013)

(citing Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010)).

“Put another way, if the officer has a legitimate expectation of investigatory

results, the existence of reasonable suspicion will allow the stop—if the

officer has no such expectations of learning additional relevant information

concerning    the   suspected    criminal    activity,   the   stop    cannot   be


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constitutionally permitted on the basis of mere suspicion.”      Id. (quoting

Commonwealth v. Chase, 960 A.2d 108, 115 (Pa. 2008)).

      The Motor Vehicle Code provides as follows:

      (b) Signals on turning and starting.--At speeds of less than
      35 miles per hour, an appropriate signal of intention to turn right
      or left shall be given continuously during not less than the last
      100 feet traveled by the vehicle before turning. The signal shall
      be given during not less than the last 300 feet at speeds in
      excess of 35 miles per hour. The signal shall also be given prior
      to entry of the vehicle into the traffic stream from a parked
      position.

75 Pa.C.S. § 3334(b).    Here, further investigation would not have helped

establish whether Appellant turned without using his signal; therefore, the

police officer was required to possess probable cause to initiate the traffic

stop. Brown, 64 A.3d at 1105.

      The record from the suppression hearing reveals that Officer Louis

Schweitzer testified that while following the vehicle, “[t]he driver failed to

activate his turn signal at least 100 feet prior to making a turn.”         N.T.,

6/24/15, at 11.   The Commonwealth also provided dash-mounted camera

footage that supported Officer Schweitzer’s testimony. Id. at 10.

      After review, we conclude that Officer Schweitzer articulated facts that

caused him to possess probable cause that the driver of the subject vehicle

was in violation of section 3334 of the Motor Vehicle Code. Thus, the traffic

stop was properly effectuated. Accordingly, we find no error in the denial of

Appellant’s suppression motion.




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     For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Therefore, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2017




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