J-S69003-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

ELIJAH MACON

                        Appellant                  No. 1474 WDA 2016


        Appeal from the Judgment of Sentence September 1, 2016
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0005145-2016


BEFORE: BOWES, RANSOM, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                      FILED NOVEMBER 16, 2017

     Elijah Macon appeals from the judgment of sentence of three years

probation that was imposed after he was convicted of receiving stolen

property (“RSP”) and carrying an unlicensed firearm. We reject Appellant’s

challenges to the denial of his suppression motion and sufficiency of the

evidence supporting his conviction of RSP. Accordingly, we affirm.

     The pertinent facts follow.    On April 14, 2016, Mount Oliver Police

Sergeant Kevin Lockhart and Mount Oliver Police Officer William Griser were

on duty in different locations. At 4:30 a.m., they received a dispatch that

two African-American males with backpacks were breaking into cars along

Quincy Avenue.    While traveling to that location and ten minutes after

receiving the broadcast, Officer Griser observed two African-American males


* Former Justice specially assigned to the Superior Court.
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with backpacks on Transverse Street, about two blocks from Quincy Avenue,

and Officer Griser broadcast that information. Sergeant Lockhart arrived at

Transverse Street moments later.           Sergeant Lockhart detained and

questioned Appellant for investigatory purposes while Officer Griser spoke

with Appellant’s companion. Appellant and the other man gave conflicting

stories to the two police officers about where they had been and where they

were headed. Neither Appellant nor the other male were able to supply an

address for their destination.

      Officer Griser searched the backpack of Appellant’s companion, finding

a prescription pill container with the name of a third party and social security

cards belonging to different people.        Sergeant Lockhart patted down

Appellant and his backpack. He felt an object that appeared to be a firearm.

Inside of Appellant’s backpack, Officer Lockhart discovered a gun that was

not registered to Appellant. Later, police ascertained that the weapon was

stolen.   The presence of that firearm was the basis for Appellant’s

convictions of RSP and possession of an unlicensed firearm.        This appeal

followed the denial of Appellant’s suppression motion and imposition of the

above-delineated judgment of sentence.

      On appeal, Appellant raises these averments.

      I. Did the trial court err in denying Mr. Macon's motion to
      suppress the evidence obtained from the search of Mr. Macon's
      backpack?




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       II. Did the Commonwealth fail to present sufficient evidence to
       support Mr. Macon's conviction for Receiving Stolen Property?

Appellant’s brief at 6.

       Appellant first claims that the court improperly denied his suppression

motion.1    The standard of review for the denial of a motion to suppress

evidence is settled:

            An appellate court's standard of review in addressing a
       challenge to 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. Because the Commonwealth
       prevailed before the suppression court, we may consider only
       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. 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 an 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 courts below are subject to plenary
       review.




____________________________________________


1
  Normally, we would address a sufficiency issue first in that a successful
claim results in discharge. Commonwealth v. Ford, 141 A.3d 547, 552
(Pa.Super. 2016). However, in the present case, Appellant does not contest
that the evidence was sufficient to sustain his conviction of possession of an
unlicensed firearm, challenging only the RSP conviction. Hence, discharge
would not be a remedy herein, and we will address the issues in the order
presented.



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Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017),

(quoting Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa.Super.

2015).

      Herein, Appellant contests the suppression court’s conclusion that the

pat   down    of   his   backpack   was   a     legitimate    safety   search.       In

Commonwealth v. Guess, 53 A.3d 895 (Pa.Super. 2012), we articulated

that a police officer may conduct a safety pat down once the officer

possesses reasonable suspicion, based upon articulable facts, that the

person in question has committed a crime.

      Therein,     two   men   unsuccessfully    attempted      to   break   into   the

apartment of a man, and, after they stopped, the victim observed the two

men attempting to break into an adjacent apartment.                  He reported the

incident to police along with a general description of the two suspects.

Within ten minutes, police arrived at the scene of the reported burglary.

They soon saw two suspects, Guess and another man, who were in the

vicinity of the crime and who were wearing the clothing described by victim

of the attempted burglary. Guess and his cohort started to leave once they

saw police, but were immediately approached and questioned by the

responding officers.

      The suspects said that they were at the apartment complex to visit a

friend, whose name they were unable to provide.              Guess dropped a credit

card embossed with a women’s name. After ascertaining that the credit card

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did not belong to Guess, a police officer patted him down for the officer’s

safety, finding jewelry and arresting him.

      Guess claimed that his search and seizure was unconstitutional. We

noted that, for purposes of the constitution, interactions with police are

placed in one of three categories. The first is a mere encounter, where no

level of suspicion is required.    The second is an investigatory detention,

where a seizure has occurred and which must be supported by reasonable

suspicion. The third is an arrest, which police must have probable cause to

conduct.

      This Court in Guess ruled that the interaction between police and

Guess was a mere encounter until he was patted down for safety purposes,

when we ruled that the interaction escalated into an investigatory detention.

We noted that, in order to justify a pat-down search under Terry v. Ohio,

392 U.S. 1 (1968), “the officer must have reasonable suspicion, under the

totality of the circumstances, that criminal activity is afoot and that ‘the

individual whose suspicious behavior he is investigating at close range is

armed and presently dangerous to the officer or to others.’” Id. at 901

(partially quoting Terry, 392 U.S. at 24).      We held that the investigatory

detention at issue was valid and “was supported by reasonable suspicion of

criminal activity and a justifiable belief in the need to protect officer safety.”

Id.




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      Specifically, we relied upon the following facts. Guess and his cohort

matched the physical description given by the victim and were found within

the apartment complex where the crime occurred.          Further, when police

approached Guess, Guess appeared nervous and eager to flee. In addition,

Guess and his companion were unable to provide the name of the friend who

they purportedly were visiting in the complex.       Finally, Guess dropped a

credit card that did not bear his name. We stated that police were “justified

in believing that criminal activity was afoot and that a pat-down search was

necessary for officer safety.”   Id. at 902.    We arrived at this conclusion

despite the fact that no police officer specifically articulated that they had a

reason to conclude that Guess was armed.

      The facts herein are indistinguishable. Police received a report of two

African-American males breaking into vehicles and carrying backpacks.

Appellant and his companion were African-American men with backpacks

and were discovered by police two blocks from the reported crime scene. A

prescription pill bottle and social security cards that did not belong to

Appellant’s cohort were found in his backpack. Appellant and his companion

were traveling in a direction that was not consistent with their stated

destination and were unable to give the address where they were headed.

They appeared anxious, nervous, and eager to flee the police. Thus, under

Guess, reasonable suspicion was present and a safety pat down warranted.




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We therefore conclude that the suppression court did not abuse its discretion

in denying Appellant’s suppression motion.

     Appellant’s second averment is that there was insufficient evidence to

support his RSP conviction.    Since a challenge to the sufficiency of the

evidence raises a question of law, our standard of review is de novo and our

scope of review is plenary. Commonwealth v. Giron, 155 A.3d 635, 638

(Pa.Super. 2017).


            The standard we apply in reviewing the sufficiency of the
     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 judgment for
     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. 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 trier 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. Fitzpatrick, 159 A.3d 562, 567 (Pa.Super. 2017)

(emphasis added; citation omitted).

     The crime of receiving stolen property is defined as follows:




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       (a) Offense defined.—A person is guilty of theft if he
      intentionally receives, retains, or disposes of movable property
      of another knowing that it has been stolen, or believing that it
      has probably been stolen, unless the property is received,
      retained, or disposed with intent to restore it to the owner.

18 Pa.C.S. § 3925(a). Accordingly, the elements of the crime of receiving

stolen property include “(1) intentionally acquiring possession of the

movable property of another; (2) with knowledge or belief that it was

probably       stolen;   and   (3)   the   intent   to   deprive   permanently.”

Commonwealth v. Robinson, 128 A.3d 261, 265 (Pa.Super. 2015).

      Appellant solely maintains that the evidence was insufficient to

establish that he knew or believed that the gun was probably stolen, and

admits that the other elements of the crime was established. Appellant’s

brief at 17.    As to this element of the crime in question, we observed

      Circumstantial evidence of guilty knowledge may include, inter
      alia, the place or manner of possession, alterations to the
      property indicative of theft, the defendant's conduct or
      statements at the time of arrest (including attempts to flee
      apprehension), a false explanation for the possession, the
      location of the theft in comparison to where the defendant
      gained possession, the value of the property compared to the
      price paid for it, or any other evidence connecting the defendant
      to the crime.

Id. at 265.

      Herein, Appellant was in possession of a firearm, was evasive with

police, and appeared anxious to flee.        His cohort had items belonging to

others that had been stolen in his backpack.             Additionally, the gun in

question belonged to someone other than Appellant and, in order to be


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legally carried on the street, had to be licensed. Appellant did not have that

license. He and his companion were in the process of breaking into cars

when the firearm was found. We conclude that the facts and circumstances

at issue herein support a finding that Appellant knew beyond a reasonable

doubt that the gun in his backpack was stolen. Accordingly, we reject his

challenge to the sufficiency of the evidence supporting his RSP conviction.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2017




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