J-S28006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
    DASHAWN MCLENDON                       :
                                           :
                     Appellant             :   No. 275 MDA 2018

           Appeal from the Judgment of Sentence November 8, 2017
     In the Court of Common Pleas of Luzerne County Criminal Division at
                       No(s): CP-40-CR-0001475-2016

BEFORE:     BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                            FILED AUGUST 28, 2019

       Dashawn McLendon appeals from the aggregate judgment of sentence

of seventy-two to 192 months of incarceration imposed following his

convictions for violations of the Uniform Firearms Act. We affirm.

       Appellant’s convictions stem from events occurring on the night of

December 4, 2015, in Wilkes-Barre, Pennsylvania. The victim, Ian Nieves,

testified that he saw Appellant and Appellant’s brother, Ibn McClain (“Co-

defendant”), whom he knew from the area.         They approached his car and

requested a ride. Appellant entered the vehicle and sat in the front passenger

seat, while Co-defendant sat in the rear passenger seat. When Mr. Nieves

stopped the car at their request, Co-defendant exited the vehicle and shot Mr.

Nieves in the left shoulder. When Mr. Nieves attempted to drive away with

Appellant still in the car, Appellant shot Mr. Nieves in the leg. A struggle over

a firearm ensued, and the weapon fired and hit the car’s windshield. The car


*    Retired Senior Judge assigned to the Superior Court.
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eventually crashed outside the home of someone Mr. Nieves knew, and Co-

defendant came running and shooting toward the car.         Appellant and Co-

defendant fled. The police arrived at the scene, and ultimately determined

that the firearm that was used to shoot Mr. Nieves in the leg was a Glock 37

.45 GAP (hereafter “Glock”).

       Appellant testified to a different story.   According to Appellant, Mr.

Nieves picked up Appellant after Appellant called to purchase cannabis. After

Appellant paid for the drugs, Mr. Nieves indicated that he had to go retrieve

them. Appellant demanded his money back, and Mr. Nieves refused. During

the confrontation, Mr. Nieves brandished the Glock, the two struggled over it,

and it fired twice. The vehicle crashed, Appellant left the vehicle, but went

back to check on Mr. Nieves. Appellant took the Glock but left his money

behind. Appellant then fled to a residence of a friend to whom he gave the

Glock.1

       After the encounter, Appellant and Co-defendant fled to Allentown,

where they were found in a hotel room a few days after the incident as a result

of cell phone pinging technology.2 After requesting that Appellant and the

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1 On cross-examination, Appellant added Co-defendant into the story and
acknowledged that Co-defendant had a revolver, although he claimed that he
had not known earlier that Co-defendant was armed.

2In this case, cell phone pinging technology refers to the technology used by
T-Mobile to provide Detective Shane Yellend with location information for the
cell phone attributed to Appellant and Co-defendant. The company was able



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other hotel occupants leave the room, the police obtained consent to a search

of the hotel room from the third party in whose name it was registered. The

Glock was retrieved from the room, along with ammunition for the weapon.

Appellant and Co-defendant were arrested.

       Co-defendant was a juvenile at the time of the events in question. He

and Appellant were charged with attempted first-degree murder, conspiracy

to commit first-degree murder, aggravated assault, conspiracy to commit

aggravated assault, and violations of the Uniform Firearms Act.3 Appellant

filed a motion to suppress the physical evidence obtained in Allentown,

arguing that there was no probable cause to validate the police’s use of cell

phone pinging technology, rendering the evidence collected at the hotel room

illegally obtained. The trial court denied the motion after a hearing.

       Appellant also filed a successful motion to sever his charge of possession

of a firearm by a person prohibited. As a result, two separate jury trials were

held. Specifically, Appellant was tried on that count by a different jury after

Appellant and Co-defendant were jointly tried before a jury on the other


____________________________________________


to send emails to the detective with a longitude and latitude, with an
uncertainty factor of five to 5,000 meters. See N.T. Trial, 8/24-27/17, at 235-
36.

3 Both Appellant and Co-defendant were charged with carrying a firearm
without a license. Appellant was also charged with possession of a firearm by
a person prohibited, while Co-defendant’s remaining charge was possession
of a firearm by a minor.



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charges.      On August 24, 2017, the first jury found Appellant not guilty of

attempted murder and aggravated assault, but guilty of carrying a firearm

without a license.4 The second jury convicted him of possession of a firearm

by a prohibited person on October 25, 2017.5

          On November 8, 2017, Appellant was sentenced to eighteen to seventy-

two months of incarceration for carrying a firearm without a license, and a

consecutive term of fifty-four to 120 months of incarceration for possession of

a firearm by a prohibited person.              Appellant filed a timely post-sentence

motion, which was denied. Appellant then filed a timely notice of appeal, and

Appellant and the trial court complied with Pa.R.A.P. 1925(b).

          Appellant presents four issues for our consideration:

    I.       Whether the evidence was insufficient to support a guilty
             verdict on Count V, prohibited possession of firearms by
             convicted felon.

    II.      Whether the evidence was insufficient of record to support a
             guilty verdict on Count VII, carrying a firearm without a license.

    III.     Whether the Appellant was tried within the timeframe set forth
             in PA. Rule of Criminal Procedure Rule 600.

    IV.      Whether    the  trial court    improperly   permitted     the
             Commonwealth to use “Illegally Pinged” evidence at trial thus
             violating the Fourth Amendment to the United States
____________________________________________


4  The jury found Co-defendant guilty of aggravated assault and carrying a
firearm without a license.

5 The victim did not testify at the second trial, but the parties stipulated that
Appellant possessed the Glock on the day in question, and Appellant testified
to having taken it from Mr. Nieves to save himself from being shot.



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          Constitutions, the Pennsylvania        Constitution   and   the
          Pennsylvania wiretapping laws.

Appellant’s brief at 1.6

       Appellant presents challenges to the sufficiency of the evidence for his

convictions of carrying a firearm without a license and possession of a firearm

by a prohibited person. A challenge to the sufficiency of evidence is a question

of law, making our standard of review de novo and scope of review plenary.

Commonwealth v. Neysmith, 192 A.3d 184, 189 (Pa. 2018).                  “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.” Id. In so doing,

we bear in mind that “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. Smith, 97 A.3d 782, 790

(Pa.Super. 2014) (cleaned up).

       The statute defining the crime of carrying a firearm without a license

provides, in relevant part: “any person who carries a firearm in any vehicle or

any person who carries a firearm concealed on or about his person . . . without

a valid and lawfully issued license under this chapter commits a felony of the

third degree.” 18 Pa.C.S. § 6106(a)(1). Appellant does not dispute that the


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6 We note with displeasure that the argument section of Appellant’s brief is
not divided into as many parts as there are questions to be argued, with
distinctive headings separating each part, as is required by Pa.R.A.P. 2119(a).

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Commonwealth established that he lacked a license.            Rather, Appellant

contends that the evidence did not establish that he carried a firearm

concealed on his person or in a vehicle.

      Both Appellant and Mr. Nieves testified as to a struggle over a firearm

in Mr. Nieves’s car, and shell casings discharged from a Glock .45 were found

in the car. N.T. Trial, 8/24-27/17, at 33-34, 294-95. Mr. Nieves said that he

never had a gun, implying that Appellant had a firearm when he got into Mr.

Nieves’s car. See id.at 48. This testimony alone was sufficient to sustain the

conviction.

      Further, even if the factfinder believed that Appellant first came into

possession of the Glock when he took it from Mr. Nieves, it could have

concluded that Appellant later unlawfully possessed the weapon based upon

the fact that the Glock and boxes of ammunition for it were recovered from

the hotel room in which Appellant was arrested. Id. at 248. Hence, viewed

in the light most favorable to the Commonwealth, the evidence and reasonable

inferences drawn therefrom established that Appellant carried a firearm

without a license.

      We next consider Appellant’s argument that the evidence at his second

trial was insufficient to sustain a conviction of persons not to possess. That

statute provides, in relevant part: “A person who has been convicted of an

offense enumerated in subsection (b) . . . shall not possess, use, control, sell,

transfer or manufacture or obtain a license to possess, use, control, sell,


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transfer or manufacture a firearm in this Commonwealth.”           18 Pa.C.S.

§ 6105(a)(1).

      Appellant does not dispute that he was previously convicted of an

offense that would prohibit him from owning a firearm. At the trial on this

charge, the Commonwealth called police officer James Comey to testify, who

stated that Appellant was arrested and convicted of possession with intent to

deliver in 2014. N.T. Jury Trial, 10/25/17, at 65-66.

      Nor does Appellant contest that the evidence at the second trial

established that he had possession of the Glock at some point in time. Indeed,

he stipulated to possessing it on the night in question. See id. at 26. Rather,

he raises several arguments that the circumstances surrounding his control of

the weapon did not amount to the type of possession prohibited by the statute.

      For one, Appellant argues that any possession of the firearm would have

been justified self-defense.   Our legislature has codified the justification

defense as follows:

      Conduct which the actor believes to be necessary to avoid a harm
      or evil to himself or to another is justifiable if:

            (1)   the harm or evil sought to be avoided by such conduct
                  is greater than that sought to be prevented by the law
                  defining the offense charged;

            (2)   neither this title nor other law defining the offense
                  provides exceptions or defenses dealing with the
                  specific situation involved; and

            (3)   a legislative purpose to exclude the justification
                  claimed does not otherwise plainly appear.


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18 Pa.C.S. § 503(a).        This Court has held that “unlawful possession of a

firearm is a continuing offense,” meaning that one may be justified in

possessing a firearm for some of the time of possession without being justified

during the entire possession. Commonwealth v. Miklos, 159 A.3d 962, 968

(Pa.Super. 2017).

       We reject Appellant’s justification arguments for the following reasons.

The jury was free to disbelieve Appellant’s story and instead conclude, based

upon the Commonwealth’s evidence, that the Glock was Appellant’s gun.

Specifically, the Commonwealth offered proof that Appellant’s DNA was the

major component of the DNA evidence found on the Glock, with a second

contributor’s DNA so insubstantial that it could not be matched.     See N.T.

Jury Trial, 10/25/17, at 58-59, 87-89. Further, Appellant fled the scene of

the shooting in Wilkes-Barre, and the Glock was recovered in a hotel room

that Appellant was occupying in Allentown, along with ammunition for the

Glock.7 Id. at 90. As such, the jury was free to conclude that Appellant’s

self-defense testimony was false, and that the Glock was his weapon all along.

       However, even if the jury believed Appellant’s testimony that he did not

possess the Glock until the conflict with Mr. Nieves, it could have reasonably

concluded that the evidence nonetheless established Appellant’s unlawful



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7 Appellant’s version of the events of the night in question did not include a
claim that he wrested a box of ammunition from Mr. Nieves along with the
Glock during the struggle.

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possession of it. As noted above, possession is a continuing offense, and the

Commonwealth’s evidence showed that Appellant continued to possess the

Glock in a different city nearly a week after Mr. Nieves was shot. The jury

thus may have reasonably found that Appellant possessed the Glock longer

than needed to protect himself from Mr. Nieves.

      Appellant also challenges the sufficiency of the evidence in that there

was no competent evidence to prove that he purchased the Glock or

“intentionally possessed” it for an extended period of time. Appellant’s brief

at 13.   Nothing in the language of the statute requires possession for an

extended timeframe or proof that the offender acquired the firearm through a

purchase.     See 18 Pa.C.S. § 6105(a)(1).      Further, § 6105(a)(1) does not

specify a mens rea of intentional possession. As it contains no express mens

rea at all, Appellant is culpable if he acted intentionally, knowingly, or

recklessly.   See 18 Pa.C.S. § 302(c).       The evidence previously discussed

establishes    Appellant’s   knowing   possession   of   the   Glock.   Accord

Commonwealth v. McClellan, 178 A.3d 874, 879-80 (Pa.Super. 2018)

(holding that evidence was sufficient to support possession conviction where

DNA evidence indicated that the appellant had handled a firearm that was

found in an area of his residence to which he had access). Thus, we find no

merit in Appellant’s sufficiency arguments attacking his conviction under

§ 6105(a)(1).




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      Having concluded that Appellant’s sufficiency challenges fail, we turn to

his remaining claims of error. Appellant next alleges that his trials were not

commenced within the timeframe provided by Pa.R.Crim.P. 600.            The only

appearance of a Rule 600 challenge in the record is a motion Appellant filed

pro se on December 20, 2016. However, at that time, he was represented by

counsel.     As such, the pro se filing was a legal nullity.          See, e.g.,

Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.Super. 2007). Hence,

no Rule 600 issue was raised in the trial court or preserved for our review.

See Pa.R.A.P. 302(a). We agree with the trial court that the issue is waived.

      Finally, we consider Appellant’s claim that the trial court erred in denying

his suppression motion.    Appellant insists that by using cell phone pinging

technology to gain information on Appellant’s location, the police violated his

Fourth Amendment rights and rights under the Pennsylvania Constitution.

Appellant’s brief at 9. He contends that as a result, the evidence found in the

hotel room where he was arrested should have been suppressed or excluded.

Id. at 10.

      “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.” McClellan, supra

at 880 (internal quotation marks omitted).       “Because the Commonwealth

prevailed before the suppression court, we may consider only the evidence of


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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.”            Id.

(internal quotation marks omitted).

       Pursuant to the Fourth Amendment, “[w]hen an individual seeks to

preserve something as private, and his expectation of privacy is one that

society is prepared to recognize as reasonable, . . . official intrusion into that

private sphere generally qualifies as a search and requires a warrant

supported by probable cause.”          Carpenter v. U.S., 138 S.Ct. 2206, 2213

(2018) (cleaned up). There are, of course, exceptions to the general warrant

requirement, including when exigent circumstances such as pursuit of a

fleeing suspect or protecting someone from imminent harm “make the needs

of law enforcement so compelling that a warrantless search is objectively

reasonable under the Fourth Amendment.”8 Id. at 1222 (cleaned up). The



____________________________________________

8
 In considering whether exigent circumstances are present, a court considers
the following factors:

       (1) the gravity of the offense, (2) whether the suspect is
       reasonably believed to be armed, (3) whether there is above and
       beyond a clear showing of probable cause, (4) whether there is a
       strong reason to believe that the suspect is within the premises to
       be searched, (5) whether there is a likelihood that the suspect will
       escape if not swiftly apprehended, (6) whether the entry was
       peaceable, and (7) the time of the entry, i.e., whether it was made
       at night. These factors are to be balanced against one another in
       determining whether the warrantless intrusion was justified.

Commonwealth v. Richter, 791 A.2d 1181, 1185 (Pa.Super. 2002).


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United States Supreme Court has recently held that the collection of cell phone

location data is a search for purposes of the Fourth Amendment. See id. at

2217.

        A person charged with a possessory offense has standing to seek

suppression of evidence seized during a contested search. Commonwealth

v. Cruz, 166 A.3d 1249, 1254 (Pa.Super. 2017). However, to prevail, he has

the “burden to prove that he has both a subjective expectation of privacy and

that the subjective expectation is one which society is willing to respect as

legitimate.” Id. at 1255.

        Appellant contends that the pretrial motions court erred in permitting

the Commonwealth to introduce so-called “illegally pinged” evidence at trial.

Appellant’s brief at 9. Appellant maintains that no probable cause or exigent

circumstances existed in this case, and as such, all evidence obtained as a

result of using cell phone pinging technology should be suppressed.

Appellant’s brief at 11.

        At the pretrial motions hearing, the Commonwealth offered proof that

Co-defendant had used his cell phone9 to threaten his girlfriend, sending her

a photograph of himself aiming a firearm at the camera, and that Co-

defendant had absconded from juvenile probation.        N.T. Pretrial Motions,



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9 The name of the subscriber for the cell phone in question was ultimately
determined to be “Jack Roberts,” who had no known association with Appellant
or Co-defendant. See N.T. Pretrial Motions, 10/3/16, at 76.

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10/3/16, at 23-24, 34.     Additionally, Co-defendant’s cell phone had been

utilized in at least one of a series of armed robberies of taxi cabs, as well as

to make false emergency calls to 911 to distract police. Id. at 47, 50-53.

      Detective Shane Yelland testified that Mr. Nieves identified Appellant

and his brother as the attackers on December 6, 2015. Id. at 66. Detective

Yelland stated that he contacted the United States Marshal Service for

assistance because of the defendants’ criminal histories and the fact that they

were armed. Id. at 55.      On the cell phone in question, Detective Yelland

testified that he filled out a T-Mobile exigent circumstance request form,

indicating:

      Target phone number was calling false reports of shots fired
      possibly to ambush the responding officers. Target phone number
      called a taxi company and robbed the driver by gun point. Target
      phone number was involved in a shooting that led to victim shot
      twice. Investigators received credible information that robbers
      who utilized target phone numbers are planning to finish off the
      victim.

Id. at 54.

      The pretrial motions court found the Commonwealth’s witnesses

credible. The court found that a male caller, using the cell phone that was

eventually pinged, was making false police reports contemporaneously with

the shooting, as well as during other crimes that were committed in the area.

The pretrial motions court also accepted that the police believed that the cell

phone from which the taxi call was made belonged to Co-defendant.

Additionally, the court acknowledged the fact that Co-defendant was facing a


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warrant for an unrelated crime. That court further found that law enforcement

completed an exigent circumstance report form for T-Mobile, and eventually

began receiving cell phone location data for the cell phone linked to the

brothers.

      The court further found that police and U.S. Marshals conducted

surveillance in Allentown, conducted a traffic stop on a vehicle, and learned

from the driver that Appellant and Co-defendant were in a hotel. Finally, the

court also determined that police obtained consent to search the room they

were in from the person to whom the room was rented, Abdul Khairi.

      On matters of law, the pretrial motions court concluded there was

probable cause to believe that Appellant and Co-defendant attempted to

murder Mr. Nieves.      That court also found that law enforcement had

reasonable suspicion to believe Appellant and his co-defendant were armed.

Also, that court concluded that law enforcement had probable cause and

exigent circumstances to warrant tracking the real time location data of

Appellant and his Co-defendant through the cell phone.

      From our review of the record, we are not at all convinced that Appellant

established an actual, subjective expectation of privacy in the location of Co-

defendant’s cell phone.      Indeed, at the outset of the hearing, the

Commonwealth questioned Appellant’s privacy interest in the cell phone,

representing that Appellant did not own it. N.T. Pretrial Motions, 10/3/16, at

18. Appellant responded by stating that he had a privacy interest in the hotel


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room, which was violated when “the police penetrated the walls of his

domicile[.]”    Id.    As the evidence showed that the cell phone company

obtained location data through the normal operation of the cell phone and

then emailed the information to Detective Yelland, we fail to see how

Appellant’s stated privacy interest in the hotel room was violated.10 Cf. Kyllo

v. United States, 533 U.S. 27, 34 (2001) (holding that the use of thermal-

imaging technology to gain information about the interior of a home

constituted a search implicating expectations of privacy).            See also

Carpenter, supra at 2216-17 (holding owner of phone maintains privacy

interest in his location revealed “to his wireless carrier”) (emphasis added).

       Even if Appellant did have a subjective expectation of privacy interest in

the location of Co-defendant’s cell phone, our review of the record reveals that

the court’s findings and legal conclusions are sound.       The Commonwealth

established that it had ample reason to believe that Appellant and Co-

defendant were armed and dangerous; Co-defendant and Appellant had been

identified by two known victims as armed robbers and attempted murderers;

the cell phone in question was involved in the criminal activity; Co-defendant

and Appellant had fled Wilkes-Barre and delay in apprehending them could


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10 Although Appellant questioned whether U.S. Marshals used a “stingray” or
“cell-site simulator,” he offered no evidence that any such device was used to
“penetrate the walls” of the hotel room to locate the phone. N.T. Pretrial
Motions, 10/3/16, at 76-77, 18. Rather, as discussed above, Co-defendant’s
phone carrier supplied to detective Yelland the location information
transmitted to it through the normal operation of the phone.

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result in their continued evasion of capture; and there was no physical force

involved in gaining the location data from Co-defendant’s cell phone carrier.

See Commonwealth v. Richter, 791 A.2d 1181, 1185 (Pa.Super. 2002)

(applying factors for determining whether exigent circumstances justified a

warrantless search).

      The evidence produced of record, when assessed against the standard

for probable cause and exigent circumstance factors discussed above, strongly

supports the denial of Appellant’s motion to suppress all evidence obtained as

a result of locating Appellant and Co-defendant through the use of Co-

defendant’s cell phone location data.

      Having determined that none of Appellant’s issues merits relief from this

Court, we affirm his judgment of sentence.

      Judgment of sentence affirmed.

      Judge Strassburger joins the memorandum.

      Judge McLaughlin concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/28/2019




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