J-A02003-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 RYAN SURRATT                            :
                                         :
                   Appellant             :   No. 331 WDA 2019

    Appeal from the Judgment of Sentence Entered December 18, 2018
  In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0003462-2018


BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                            FILED APRIL 14, 2020

     Appellant, Ryan Surratt, appeals from the judgment of sentence entered

on December 18, 2018, in the Court of Common Pleas of Allegheny County.

We affirm.

     The trial court summarized the procedural history of this case as follows:

           [Appellant] appeals from the judgment of sentence order
     imposed after a bifurcated jury trial, wherein the [c]ourt found
     Appellant guilty of one (1) count [each] of Person not to Possess
     a Firearm, 18 Pa.C.S.A. §6105(a)(1); Possession of Marijuana, 35
     [P.S.] §780-113(a)(31); and Carrying a Loaded Weapon, 18
     Pa.C.S.A. 6106(a).

           By way of background, this case was originally before the
     Honorable Edward J. Borkowski. On April 18, 2017[,] a hearing
     occurred before that [c]ourt to address a [sic] Appellant’s Motion
     to Suppress[,] and on September 13, 2017, Judge Borkowski
     entered his Findings of Facts and Conclusions of Law.1 Sometime
     thereafter, the case was assigned to this [c]ourt, and on March
     22, 2018, a bifurcated jury trial ended with a mistrial at Count
     Two (2) of the information, Firearm not to be Carried without a
     License …;18 Pa.C.S. §6106. The [c]ourt did not return a verdict
J-A02003-20


      on the remaining counts. A second bifurcated jury trial occurred
      on September 20, 2018.2 Again, the jury was unable to reach a
      verdict at the VUFA charge[,] and the Commonwealth
      subsequently nolle prossed that charge and case. The [c]ourt
      then returned guilty verdicts at the three (3) counts referenced
      above. On December 18, 2018, Appellant was sentenced to five
      (5) to ten (10) years of incarceration at the charge of Person not
      to Possess, and no further sentence at the remaining two (2)
      counts. This [c]ourt denied Appellant’s Post-Sentence Motion on
      January 2, 2019, and a timely Notice of Appeal was filed on
      February 1, 2019.

            1  The Findings of Fact were transcribed but not
            formally filed. On September 14, 2017[,] the [c]ourt
            summarized these findings on the record[,] and they
            are reflected in the Pretrial Motions transcript of the
            same date.

            2 Count 2 of the original information that was before
            the jury was docketed at CC 201803780 for
            housekeeping purposes. Counts 1, 3, and 4 which
            were simultaneously heard as a bench trial were
            docketed at CC 201803462.

Trial Court Opinion, 6/5/19, at 2-3.       Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      I. Where the only evidence tying [Appellant] to the recovered
      firearm was his mere proximity and a slight lean forward, did the
      Commonwealth prove beyond a reasonable doubt that he
      constructively possessed the firearm?

      II. Where the Commonwealth failed to establish that a standard
      inventory procedure was followed, did the improper inventory
      search violate [Appellant’s] constitutional rights, requiring
      suppression of the firearm?

Appellant’s Brief at 5.




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       In his first issue, Appellant presents a challenge to the sufficiency of the

evidence to support his convictions of person not to possess a firearm and

carrying a loaded weapon. Appellant’s Brief at 21-37. Specifically, Appellant

asserts that the Commonwealth failed to prove that he constructively

possessed the gun. Id. Appellant contends that he did not have knowledge

of the firearm or the intent to possess the firearm necessary to establish

constructive possession. Id. at 30-37.1

       Our standard of review is well established:


____________________________________________


1 We note Appellant also contends that the trial court erred in improperly
considering evidence set forth in his subsequent trial when it rendered its
nonjury decision. Appellant’s Brief at 25-30. Specifically, Appellant claims
that, with regard to his convictions of persons not to possess and carrying a
loaded firearm, the trial court was limited to considering only the evidence
presented at his nonjury trial held on March 22, 2018. Appellant contends
that, in reaching a verdict, the trial court improperly considered evidence from
a subsequent jury trial for carrying a firearm without a license, which was held
on September 20 and 21, 2018. Initially, we observe that Appellant did not
present this claim in his Pa.R.A.P. 1925(b) statement. Hence, it is waived.
See Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998) (holding that
where a trial court directs a defendant to file a concise statement pursuant to
Pa.R.A.P. 1925, any issues not raised in that statement shall be waived).

      Even if not waived, our review reflects that at the conclusion of the
March 22, 2018 trial, defense counsel asked that the trial court “await the
resolution” until completion of the trial for carrying a firearm without a license.
N.T., 3/22/18, at 195-196. The record further reflects that prior to ultimately
rendering the verdict, the trial court indicated that it had already received and
considered the evidence from the March 22, 2018, nonjury trial. N.T., 9/20-
21/18, at 270-271. Accordingly, we are satisfied that the trial court did not
commit any error in rendering its verdict. Furthermore, in conducting our
review of Appellant’s challenge to the sufficiency of the evidence, we will
consider only the evidence presented at Appellant’s trial held on March 22,
2018.


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            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[’s].   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 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. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).

     Appellant was convicted of violating the following two provisions of

Pennsylvania’s Uniform Firearms Act:

     § 6105. Persons not to possess, use, manufacture, control,
     sell or transfer firearms

     (a) Offense defined.—

           (1) A person who has been convicted of an offense
     enumerated in subsection (b), within or without this
     Commonwealth, regardless of the length of sentence or whose
     conduct meets the criteria in subsection (c) shall not possess, use,
     control, sell, transfer or manufacture or obtain a license to
     possess, use, control, sell, transfer or manufacture a firearm in
     this Commonwealth.

18 Pa.C.S. § 6105(a)(1).

     § 6106.1. Carrying loaded weapons other than firearms


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     (a) General rule.- Except as provided in Title 34 (relating to
     game), no person shall carry a loaded pistol, revolver, shotgun or
     rifle, other than a firearm as defined in section 6102 (relating to
     definitions), in any vehicle. The provisions of this section shall not
     apply to persons excepted from the requirement of a license to
     carry firearms under section 6106(b)(1), (2), (5) or (6) (relating
     to firearms not to be carried without a license) nor shall the
     provisions of this section be construed to permit persons to carry
     firearms in a vehicle where such conduct is prohibited by section
     6106.

18 Pa.C.S. § 6106.1(a).

     Possession of a firearm is an essential element of Sections 6105 and

6106.1.   However, to establish the element of possession, this Court has

explained that “[p]ossession can be found by proving actual possession,

constructive possession, or joint constructive possession.” Commonwealth

v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018) (citation omitted), appeal

denied, 202 A.3d 42 (2019). We previously have determined:

     Where a defendant is not in actual possession of the prohibited
     items, the Commonwealth must establish that the defendant had
     constructive possession to support the conviction. Constructive
     possession is a legal fiction, a pragmatic construct to deal with the
     realities of criminal law enforcement.           We have defined
     constructive possession as conscious dominion, meaning that the
     defendant has 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.

            It is well established that, as with any other element of a
     crime, constructive possession may be proven by circumstantial
     evidence. In other words, the Commonwealth must establish
     facts from which the trier of fact can reasonably infer that the
     defendant exercised dominion and control over the contraband at
     issue.

Parrish, 191 A.3d at 36–37 (internal citations and quotations omitted).

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      Thus, illegal possession of a firearm may be established by one’s

constructive possession thereof. Commonwealth v. McClellan, 178 A.3d

874, 879 (Pa. Super. 2018).     In addition, the power and intent to control

contraband does not need to be exclusive to an appellant in order to find

constructive   possession.    Our   Supreme    Court     has   recognized   that

“constructive possession may be found in one or more actors where the item

in issue is in an area of joint control and equal access.” Commonwealth v.

Johnson, 26 A.3d 1078, 1094 (Pa. 2011) (citation omitted).             Further,

contrary to Appellant’s suggestion, the Commonwealth was permitted to

establish Appellant’s constructive possession via circumstantial evidence and

the reasonable inferences that arise therefrom. Parrish, 191 A.3d at 36–37.

Moreover, we acknowledge that our Supreme Court has indicated that “[t]he

conduct of an accused following a crime, including ‘manifestations of mental

distress,’ is admissible as tending to show guilt.”       Commonwealth v.

Hughes, 865 A.2d 761, 792 (Pa. 2004).         See also Commonwealth v.

Micking, 17 A.3d 924, 926 (Pa. Super. 2011) (en banc) (an appellant’s

behavior of extreme nervousness, shaking and trembling exhibited a

“consciousness of guilt” regarding firearms offenses).

      Our review of the record reflects that Officer Charles Thomas, who had

been employed by the Homestead Police Department at the time of this

incident, testified that shortly after midnight on November 3, 2016; he

stopped the vehicle in which Appellant was traveling as a passenger. N.T.,


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3/22/18, at 41-42.     Officer Thomas stated that the traffic stop was for

speeding and a non-functioning taillight. Id. at 42. Officer Thomas provided

the following account of the traffic stop:

      Q. The traffic stop is not at issue here, but for context, can you
      describe to the jury the events of the traffic stop?         What
      happened?

      A. For the sake of the traffic stop, I ran the license plate. It came
      back as Ms. Harris. The stop was conducted just before the
      Homestead High Level Bridge in the right-hand turning lane.
      Upon the activation of my lights and sirens, I did observe
      [Appellant] lean forward toward the rear passenger side
      seat which is indicative of having contraband.

      Q. For clarity, [Appellant] was sitting in the back seat of
      the vehicle?

      A. Yes.

      Q. Could you see him?

      A. I could. I had spotlights on my vehicle and white take-
      down lights. The vehicle windows were tinted and that is
      automatic when you have tinted windows on the vehicle.

                                     ***

      Q. As you activated those lights, can you tell the jury what you
      observed?

      A. That is when I observed [Appellant] leaning forward.
      Just like this. I couldn’t see a hand, but I [had[ seen him
      lean forward, which most people don’t do on a traffic stop.
      I have never seen people that aren’t hiding contraband
      lean forward for no reason. That becomes an officer safety
      issue, as well, during a traffic stop to see somebody do
      that.

                                     ***




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      Q. Can you describe for the jury your observation as you
      approached and started to conduct –

      A. When I approached the vehicle, I observed three people in the
      vehicle. There were some open containers of alcohol in the
      vehicle. I observed [Appellant] was very nervous. He
      appeared to be shaking and shivering. He had to be told
      several times to keep his hands in plain view for reasons of
      officer safety.

N.T., 3/22/18, at 42-44 (emphases added). Officer Thomas went on to explain

that, because no one in the vehicle had a valid driver’s license, the vehicle

was to be towed and an inventory search was performed. Id. at 44. Officer

Thomas offered the following additional testimony:

      Q. Was anything notable found when the vehicle was searched?

      A. There was some open containers of alcohol that were found.
      [Lieutenant Lewis] Ferguson found a firearm right where I
      [had] seen [Appellant] leaning forward during the
      initiation of the traffic stop.

      Q. What you referred to earlier?

      A. Yes. Under the front seat or under the back of the front
      passenger side seat.

           THE COURT: I’m sorry, sir. What was that again[?]

           THE WITNESS: Under the back of the front passenger
           side seat.

N.T., 3/22/18, at 45 (emphasis added).

      The Commonwealth also presented testimony from Lieutenant Lewis

Ferguson of the Allegheny County Police Department. N.T., 3/22/18, at 69-

80.   Lieutenant Ferguson offered the following detailed account of what




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transpired as he and his partner immediately arrived at the scene of the traffic

stop as backup support:

      Q. So you arrived on scene very shortly after Officer Thomas or at
      the same time[.]       Can you describe for the jury, your
      observations, what you saw? In your own words, tell them what
      happened.

      A. So we observed the officer pull over the vehicle. We pulled in
      directly behind him, called out to radio to let them know we were
      on the scene with him.        Officer Thomas exits his vehicle,
      approached the driver side of the vehicle. I exited my vehicle and
      approached the passenger front window. Essentially I can look
      inside the vehicle to keep the other officers safe and make sure
      no one is moving around. My partner would have walked behind
      me and been on the passenger side of the vehicle, but at the back
      door essentially of the car. And then we would have stood there
      essentially and backed up Officer Thomas as he was conducting
      business with the operator of the motor vehicle.

             I would call Officer Thomas asking for identification, driver’s
      license from the driver. I couldn’t hear what anybody inside the
      vehicle was saying because I’m outside on the other side. It was
      my understanding that the driver did not have a driver’s license.
      I believe Officer Thomas asked the other occupants of the vehicle
      if they had driver’s licenses and I believe it was determined that
      nobody in the vehicle had a valid driver’s license.

             To my recollection, Officer Thomas decided at that point
      since there wasn’t a valid driver’s license that the vehicle was
      going to be towed per their own departmental policy. I recall
      Officer Thomas having the driver of the other vehicle, a female,
      exit the vehicle. I believe a Terry pat-down and cursory search
      for weapons was conducted by my partner who was a female to
      make sure there weren’t any unsafe weapons or something that
      would endanger officers on the scene.

            Once the driver was checked, I believe she was -- as I
      remember the driver may have had a warrant and may have been
      taken into custody, to my recollection. I think the driver did have
      a warrant to some degree. The front seat passenger, another
      female, was also removed from the vehicle and searched for
      weapons. There were none found. I think she was moved off to

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     the side of the road and essentially waiting for the traffic stop to
     be finished. The back seat passenger was asked to step out of
     the vehicle since it was going to be towed. I asked him to step
     out of the vehicle at Officer Thomas’ request. I searched him and
     a cursory search for weapons, and I didn’t find any weapons on
     him. He was asked to step off to the side.

           At that point I turned back toward the vehicle and turned on
     my flashlight and from outside the vehicle I saw under the back,
     the front seat of the vehicle underneath the seat I could see the
     hand grip of a handgun. So I saw it sticking out from under the
     seat. I turned to one of the other officers and said to put him in
     handcuffs because I could see right then he had access to a
     handgun. He was put in handcuffs.

           I put on gloves, reached in and removed the handgun from
     underneath the front passenger seat. The very first thing you do
     is render the handgun unusable. It had a round inside the
     magazine. I opened the chamber and removed it from the
     chamber and gave those items to Officer Thomas.

N.T., 3/22/18, at 74-76.

     Lieutenant Ferguson provided the following testimony to expound upon

the location where the firearm was discovered:

     Q. Lieutenant, can you describe for the jury in more detail please,
     the location where the gun was recovered from and the details of
     the vehicle of the seat, things of that nature?

     A. Yes. So the vehicle in question was, to my recollection, a dark-
     colored Jeep Cherokee, one of those four-door SUV types. The
     handgun was sitting on the floor of the vehicle pushed under the
     seat to the degree that from outside of the vehicle, I could see the
     hand grip of the gun. When I removed it, I noted that there was
     wiring -- because when I removed it, I looked under there to see
     if there was anything else I needed to be worried about.

            It was one of those seats that instead of being a mechanical
     seat, it moves by electric. It has this big bundle of wires and stuff
     down there that kind of separates the front under seat portion
     from the rear. You can’t push things through the seat because
     there is a bundle of wires and things down there. So it was

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     essentially under the seat pushed as far forward as that wire
     bundle would allow it to go and that is where it was sitting. If that
     answers your question.

     Q. It almost gets us there. Would it have been possible for
     somebody in the front seat to have gotten that firearm to the
     location where you found it from their position sitting in front of
     the vehicle?

     A. In my opinion, there is no way to do that because this bundle
     of wires goes from the bottom of the seat all the way to the
     floorboard. You can’t reach all of the way through from the back
     seat to the floorboard because the electronic system that moves
     that seat takes up that space. So essentially under the seat you
     have this bundle of wires and then there is a little portion in the
     back. So there is no communication between the front and the
     back.

N.T., 3/22/18, at 78-79.

     In addition, the Commonwealth offered testimony from Detective

Shannon Hasek of the Allegheny County Police Department regarding

observations of Appellant’s behavior that she witnessed while serving as a

backup officer:

     Q. Can you tell the jury what happened in your observations as
     you approached the vehicle that was stopped by Officer Thomas?

     A. I went to the passenger -- the driver side passenger or the back
     seat passenger side of the vehicle and I was basically observing
     [Appellant] and he appeared very nervous. He was breathing
     heavily, sweating, shaking. I had to tell him several times to keep
     his hands where I could see them. That is really it.

     Q. Now at the time that you had made those observations, had
     anybody been pulled out of the car yet? Do you recall?

     A. No.




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      Q. Had anybody in the car, was there any inclination to suggest
      that this situation was going to escalate or was this just at that
      time a traffic stop?

      A. It was just a traffic stop.      I was a little concerned about
      [Appellant’s] nervousness.

      Q. Is that what piqued your interest or what drew your attention?

      A. Yes.

      Q. In your training and experience, why would that have piqued
      your interest?

      A. Usually when we have a traffic stop where somebody is
      behaving so nervously, they generally have something in the car
      they don’t want us to know about.

N.T., 3/22/18, at 91-92.

      Under the totality of the circumstances, the evidence presented at the

trial on March 22, 2018, viewed in the light most favorable to the

Commonwealth      as   the   verdict     winner,   establishes   that   Appellant

constructively possessed the firearm that was found on the floor where

Appellant was seated and was the area in which Appellant was seen moving.

In addition, the testimony of Lieutenant Ferguson further established that, at

the time of the traffic stop, Appellant was the sole occupant of the vehicle

having access to the firearm. These two details are indicative of the fact that

Appellant exercised dominion and control over the contraband. Parrish, 191

A.3d at 36-37.     Further, Officer Thomas and Detective Hasek offered

testimony regarding Appellant’s excessively nervous demeanor during the

incident, which is indicative of consciousness of guilt. Hughes, 865 A.2d at


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792.   This circumstantial evidence proves that Appellant had the power to

control the contraband and the intent to exercise such control, thereby

establishing his constructive possession of the firearm.             Accordingly,

Appellant’s claim that the Commonwealth failed to present sufficient evidence

to support his convictions lacks merit.

       Appellant next argues that the trial court erred in failing to grant his

motion to suppress the firearm. Appellant’s Brief at 38-45. Appellant asserts

that the Commonwealth failed to meet its burden of proof because it did not

offer evidence regarding a policy explaining the scope of a search on an

impounded vehicle. Id. at 40-42.

       It is beyond question that an appellant waives an issue not properly

preserved in the lower court. Pa.R.A.P. 302(a). Moreover, an issue raised

before the trial court but abandoned at a subsequent hearing is waived for

purposes of appeal. Commonwealth v. Leaner, 202 A.3d 749, 765 n.3 (Pa.

Super. 2019).

       Our review of the record reflects that, at the April 18, 2017 suppression

hearing,   Appellant   questioned   Officer   Thomas   extensively    on   cross-

examination regarding the actual Homestead Police Department policy

pertaining to inventory searches. N.T., 4/18/17, at 17-20. At the conclusion

of the hearing, the following transpired:

       THE COURT: Any witnesses, [Defense Counsel?]

       [DEFENSE COUNSEL]: Yes, Your Honor. However, I would like
       an opportunity to review some case law because of the

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      inventory search. I was not sure. But, I know, Your Honor,
      there’s case law out there that says an inventory must be
      done by the department policy. When an officer testifies
      that he can’t even specifically say what the policy is, how
      an inventory search is to be performed, that is a major
      stumbling block here, Your Honor.

      THE COURT: Major stumbling block for who?

      [DEFENSE COUNSEL]: For the Commonwealth.

      THE COURT: Legally?

      [DEFENSE COUNSEL]: Yes, legally, Your Honor.

      THE COURT: All right. I’ll allow you to supplement your
      motion in this instance if you show that vital report
      supplement your motion with a written -- amended motion
      we’ll give you the opportunity to the Commonwealth to
      [respond] in writing or to supplement the record with the
      actual policy from the Homestead Police Department. All
      right. Is that your motion?

      [DEFENSE COUNSEL]: That is, Your Honor.

      THE COURT: Any objection?

      [ASSISTANT DISTRICT ATTORNEY]: No, Your Honor.

      THE COURT: All right. Thank you. We’ll reschedule the matter at
      the convenience of the parties for a specific time that’s necessary
      to prepare that.

Id. at 33-34 (emphases added).

      On September 14, 2017, the parties appeared before the trial court and

the following occurred at the outset of the hearing:

      [DEFENSE COUNSEL]: ... I believe we stopped the suppression
      last time we were in here, and I don’t believe there’s been any
      ruling. I think we were just going to have some argument on the
      suppression issue.


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      THE COURT: Okay. I thought I heard -- well, we agree except for
      the fact that my perception is that we didn’t stop the hearing, the
      hearing concluded, and I left it open that if you wanted to
      provide additional information, case law, we’ll reconvene
      on the matter and I’ll entertain that. But no one has done
      that.

      [DEFENSE COUNSEL]: No, Your Honor, since [the Assistant
      District Attorney] had been handling this matter and he
      provided me with some of -- the inventory policy from the
      Homestead police department, and that satisfied me on
      that.

            The only argument I would have with regard to suppression
      is regarding the items found on [Appellant]. There was a small
      amount of marijuana and black gloves found on [Appellant].

      THE COURT: Okay.

N.T., 9/14/17, at 2-3 (emphases added). The September 14, 2017 hearing

continued with no further discussion pertaining to the inventory search policy,

and at the conclusion of the hearing, the trial court offered findings of fact and

denied the motion to suppress.

      As indicated above, at the September 14, 2017 hearing, Appellant

abandoned the argument that the Commonwealth failed to establish that the

inventory search was conducted pursuant to police department policy. Hence,

we are constrained to conclude that the issue has been waived. Leaner, 202

A.3d at 765 n.3. Accordingly, no relief is due.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/2020




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