J-A03042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

STEVEN SMALLS

                            Appellant                 No. 92 EDA 2015


           Appeal from the Judgment of Sentence December 9, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009550-2014


BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

MEMORANDUM BY GANTMAN, P.J.:                          FILED APRIL 11, 2016

        Appellant, Steven Smalls, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

convictions of selling unauthorized copies of recorded devices and trademark

counterfeiting.1    We affirm the conviction of selling unauthorized copies of

recorded devices, reverse the conviction of trademark counterfeiting, vacate

Appellant’s judgment of sentence, and remand for resentencing.

        The relevant facts and procedural history of this case are as follows.

While pulling his car into the parking lot of the 777 Market convenience store

on August 11, 2014, Sergeant Michael Weber observed Appellant selling

what appeared to be books from a folding table. After parking, Sgt. Weber
____________________________________________


1
    18 Pa.C.S.A. §§ 4116(d) and 4119(a)(3), respectively.
J-A03042-16


exited his vehicle to get a closer look at Appellant’s table.      Meanwhile,

Appellant walked away from his table and entered the 777 Market.         Sgt.

Weber’s visual inspection of Appellant’s table revealed that books held down

two blankets covering the table. Sgt. Weber could also see, through a gap

between the two blankets, cellophane cases which contained DVDs with

homemade titles.      Based on Sgt. Weber’s training and experience, he

determined the items were counterfeit. Sgt. Weber proceeded to move the

blankets aside and collect the counterfeit items. While Sgt. Weber collected

the items, Appellant returned to the table and said, “I’m just trying to make

a buck. Can I just get my stuff and go?” At that point, Sgt. Weber recalled

he had arrested Appellant previously at that location for selling counterfeit

items.    Sgt. Weber confiscated one hundred and seventy-nine (179)

counterfeit movie titles, seventy-six (76) music titles, and one battery-

operated DVD player.      Sgt. Weber subsequently placed Appellant under

arrest.

      On August 28, 2014, the Commonwealth charged Appellant with

selling   unauthorized   copies   of    recorded   devices   and   trademark

counterfeiting.   Appellant filed an omnibus pre-trial motion on September

17, 2014, in which he argued the court should suppress the items seized

because Sgt. Weber lacked probable cause to search Appellant’s table

outside the 777 Market. The court held a suppression hearing on December

9, 2014, where Sgt. Weber testified to his observations on the day of


                                       -2-
J-A03042-16


Appellant’s arrest.     Following the hearing, the court denied Appellant’s

motion. Appellant immediately proceeded to a stipulated bench trial.

     At Appellant’s trial, the court incorporated the testimony from the

suppression hearing and heard the stipulated testimony of Motion Picture

Association of America (“MPAA”) expert, Bill Mock, who testified that: (1) he

examined      the     confiscated      DVDs    and    determined    they   were

counterfeit/pirated; (2) he knew the DVDs were counterfeit/pirated because

the movies were still in theaters, and the MPAA does not release movies on

DVD until the movies are no longer in theaters; (3) he further determined

the DVDs were counterfeit/pirated because they all had a purplish back

indicative of recordable DVDs, and the MPAA does not release DVDs on

recordable DVDs; (4) the ten DVDs he viewed had poor quality pictures and

sound, which also indicated the counterfeit/pirated status of the DVDs; (5)

the DVDs did not contain the true name or address of the manufacturer or

display company logos or trademarks; (6) the amount of lost revenue for the

sale of the DVDs was $11.00 per title or $1936.00 total; and (7) based on

the number of DVDs confiscated from Appellant, the DVDs were most likely

offered for sale and not for personal use. The court subsequently convicted

Appellant of selling unauthorized copies of recorded devices and trademark

counterfeiting and sentenced Appellant to consecutive terms of one (1) year

probation for each offense.         Appellant timely filed a notice of appeal on

January 6, 2015. On February 20, 2015, the court ordered Appellant to file


                                         -3-
J-A03042-16


a statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), and Appellant timely complied on March 10, 2015.

        Appellant raises the following issues for our review:2

           DID NOT THE [TRIAL] COURT ERR AND ABUSE ITS
           DISCRETION BY DENYING A MOTION TO SUPPRESS
           PHYSICAL EVIDENCE WHERE THE POLICE SEARCHED
           [APPELLANT’S] VENDOR STAND WITHOUT PROBABLE
           CAUSE OR A WARRANT BY LIFTING UP BOOKS AND
           CLOTHS AND UNCOVERING DVDS THAT WERE OUT OF
           VIEW UNDERNEATH?

           DO NOT INSUFFICIENCY OF THE EVIDENCE AND DUE
           PROCESS REQUIRE A REVERSAL OF THE FELONY OF THE
           THIRD DEGREE CONVICTION FOR COPYING; RECORDING
           DEVICES, [18 PA.C.S.A. § 4116], AS THE PROPER
           GRADATION WAS A MISDEMEANOR OF THE FIRST DEGREE
           BECAUSE (I) THERE WAS NO PROOF THAT “AT LEAST 100”
           DVDS HAD MOVIES RECORDED ON THEM WHERE THE
           COMMONWEALTH WITNESS ONLY WATCHED 10 DVDS;
           AND (II) THERE WAS NO EVIDENCE THAT THE 10 VIEWED
           DVDS WERE REPRESENTATIVE OF AT LEAST 100 DVDS,
           AND ANY POST HOC EXTRAPOLATION WOULD ALSO
           VIOLATE THE BEST EVIDENCE RULE, [PA.R.E. 1002]?

           DO NOT INSUFFICIENCY OF THE EVIDENCE AND DUE
           PROCESS REQUIRE A REVERSAL OF THE CONVICTION FOR
           TRADEMARK COUNTERFEITING, [18 PA.C.S.A. § 4119], AS
           AMENDED AND NARROWED BY ACT 74 OF 2010, BECAUSE
           THE CONFISCATED DVDS BORE ONLY HOMEMADE MOVIE
           TITLES AND NO COMPANY LOGOS OR TRADEMARKS AND
           THERE WAS NO EVIDENCE (I) THAT ANY MARK WAS
           “REGISTERED”; (II) THAT ANY “REGISTERED” MARK WAS
           “IN USE”; OR (III) THAT THE DVDS BORE A MARK
           “IDENTICAL       WITH       OR       SUBSTANTIALLY
           INDISTINGUISHABLE FROM” A REGISTERED MARK?

(Appellant’s Brief at 3-4).
____________________________________________


2
    For purposes of disposition, we have reordered Appellant’s issues.



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       Our standard of review of the denial of a motion to suppress evidence

is as follows:

         [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 [the] 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 [trial court
         are] subject to plenary review.

Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa.Super. 2012),

appeal denied, 618 Pa. 684, 57 A.3d 68 (2012).

       “The Fourth Amendment of the United States Constitution and Article

I, Section [8] of the Pennsylvania Constitution guarantee individuals freedom

from unreasonable searches and seizures.” Commonwealth v. El, 933 A.2d

657,   660   (Pa.Super.   2007).     “A   warrantless   search   or   seizure   is

presumptively unreasonable under the Fourth Amendment and Article I, § 8,

subject to a few specifically established, well-delineated exceptions.”

Commonwealth v. McCree, 592 Pa. 238, 247, 924 A.2d 621, 627 (2007).

“The ‘plain view’ doctrine is often considered an exception to the general rule


                                     -5-
J-A03042-16


that warrantless searches are presumptively unreasonable….” Id. (quoting

Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 2306, 110

L.Ed.2d 112, ___ (1990)). The plain view doctrine permits the “warrantless

seizure of an object when: (1) an officer views the object from a lawful

vantage point; (2) it is immediately apparent to him that the object is

incriminating; and (3) the officer has a lawful right of access to the object.”

Commonwealth v. Miller, 56 A.3d 424, 429 (Pa.Super. 2012).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Sierra

Thomas Street, we conclude Appellant’s first issue on appeal merits no relief.

The trial court opinion comprehensively discusses and properly disposes of

the question presented.   (See Trial Court Opinion, filed April 16, 2015, at

11-14) (finding: Appellant lacked reasonable expectation of privacy in table

open to public for commercial use; moreover, Sgt. Weber testified credibly

that he could see cellophane cases with DVDs on Appellant’s table under

blankets because of gap between blankets covering tabletop; based on his

experience, Sgt. Weber recognized items under blanket were counterfeit;

equipped with reasonable suspicion that crime was occurring, Sgt. Weber

moved blankets and discovered numerous DVDs and CDs; DVDs discovered

under blanket were in cases consistent with counterfeit titles, did not look

professionally generated, and all titles were still in theaters; Sgt. Weber

properly seized counterfeit items under plain view doctrine because Sgt.


                                     -6-
J-A03042-16


Weber was in public area when he viewed Appellant’s table, Sgt. Weber

immediately recognized items as counterfeit based on their packaging, and

DVDs were seized from table in public parking lot where Sgt. Weber had

lawful right of access; thus, Sgt. Weber validly seized counterfeit items from

Appellant’s table and court properly denied Appellant’s motion to suppress).

Therefore, with respect to Appellant’s first issue on appeal, we affirm on the

basis of the trial court’s opinion.

      In his second issue, Appellant argues the Commonwealth failed to

prove Appellant possessed at least one hundred counterfeit DVDs, which is

necessary to grade selling unauthorized copies of recorded devices as a

third-degree felony. Appellant claims MPAA expert, Bill Mock, watched only

ten of the DVDs confiscated from Appellant’s table, and the Commonwealth

offered no proof that those ten DVDs were representative of at least one

hundred of the confiscated DVDs.            Appellant also submits the court

improperly inferred from Bill Mock’s testimony that the remaining one

hundred and sixty-nine DVDs contained movies or portions of movies, in

violation of the best evidence rule.          Appellant concludes there was

insufficient evidence to sustain his conviction of selling unauthorized copies

of recorded devices as a third-degree felony, and we should reverse his

conviction. We disagree.

      As presented, Appellant’s second issue challenges the sufficiency of

the evidence for the grading of his conviction of selling unauthorized copies


                                      -7-
J-A03042-16


of recorded devices as a third-degree felony, which also implicates the

legality of the sentence.    Our standard of review for a challenge to the

sufficiency of the evidence is as follows:

          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 [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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

      “Issues relating to the legality of a sentence are questions of law….”

Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super. 2008), appeal

denied, 598 Pa. 755, 955 A.2d 356 (2008).              “The defendant or the

Commonwealth may appeal as of right the legality of the sentence.”         42

Pa.C.S.A. § 9781(a).     See also Commonwealth v. Edrington, 780 A.2d

                                      -8-
J-A03042-16


721 (Pa.Super. 2001) (maintaining legality of sentence claims cannot be

waived, where reviewing court has proper jurisdiction). When the legality of

a sentence is at issue on appeal, our “standard of review over such

questions is de novo and our scope of review is plenary.” Diamond, supra

at 256. “If no statutory authorization exists for a particular sentence, that

sentence is illegal and subject to correction.   An illegal sentence must be

vacated….”    Commonwealth v. Pombo, 26 A.3d 1155, 1157 (Pa.Super.

2011) (quoting Commonwealth v. Bowers, 25 A.3d 349, 352 (Pa.Super.

2011); appeal denied, 616 Pa. 666, 51 A.3d 837 (2012)).

      The Crimes Code defines the offense of selling unauthorized copies of

recorded devices in relevant part as follows:

         § 4116. Copying; recording devices

         (a) Definitions.—As used in this section, the following
         words and phrases shall have the meanings given to them
         in this subsection:

                                 *    *    *

         “Recorded device.” Any phonograph record, disc, tape,
         film, videotape, video cassette or other tangible article,
         now known or later developed, upon which sounds or
         images or any combinations of sounds and images are
         recorded.

                                 *    *    *

         (d) Manufacture, sale or rental of illegal recording
         or recorded devices.—It shall be unlawful for any person
         to knowingly manufacture, transport, sell, resell, rent,
         advertise or offer for sale, resale or rental or cause the
         manufacture, sale, resale or rental or possess for such


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J-A03042-16


        purpose or purposes any recorded device in violation of
        this section.

                                *     *      *

        (g)      Grading of offenses.—

            (1) Any violation of the provisions of this section
            involving, within any 180-day period, at least 100
            devices upon which motion pictures or portions
            thereof have been recorded…is a felony of the third
            degree. A second or subsequent conviction is a
            felony of the second degree if at the time of
            sentencing the defendant has been convicted of
            another violation of this section.

            (2) Any other violation of the provisions of this
            section not described in paragraph (1) upon a first
            conviction is a misdemeanor of the first degree and
            upon a second or subsequent conviction is a felony
            of the third degree if at the time of sentencing the
            defendant has been convicted of another violation of
            this section.

18 Pa.C.S.A. §§ 4116(a), (d), and (g).

      Any fact that changes the grade of an offense must be submitted to

the factfinder and proven beyond a reasonable doubt. Commonwealth v.

Panko, 975 A.2d 1189, 1191 (Pa.Super. 2009), appeal denied, 618 Pa. 686,

57   A.3d   69    (2012).   Importantly,     for   purposes   of   grading,   the

Commonwealth’s burden is not to establish the precise quantity, but only to

present sufficient evidence from which a reasonable fact-finder could

conclude the quantity was above the threshold amount required by statute.

See Commonwealth v. Reiss, 655 A.2d 163, 168 (Pa.Super. 1995)

(holding Commonwealth presented sufficient evidence from which jury could


                                    - 10 -
J-A03042-16


reasonably determine value of stolen items to grade defendant’s theft

conviction as felony instead of misdemeanor).

      Instantly, the Commonwealth presented the testimony of Sgt. Weber

at Appellant’s stipulated bench trial. Sgt. Weber testified that he confiscated

one hundred and seventy-nine DVDs, seventy-six CDs, and one DVD player

from Appellant’s table outside the 777 Market. Sgt. Weber also stated that

the confiscated DVDs consisted of multiple copies of movie titles which were

still in theaters at the time.   Sgt. Weber further indicated that during his

collection of the items from Appellant’s table, Appellant demonstrated his

ownership of the items when he stated, “I’m just trying to make a buck. Can

I just get my stuff and go?”        The Commonwealth also presented the

stipulated testimony of Mr. Mock, who examined all of the DVDs Sgt. Weber

confiscated from Appellant’s table. Mr. Mock concluded that Appellant was

offering counterfeit/pirated DVDs for sale, based on the following: (1) the

DVD titles were movies still in theaters and the MPAA does not release

movies on DVD until the movies are no longer in theaters; (2) the DVDs all

had a purplish back indicative of recordable DVDs and the MPAA does not

release DVDs on recordable DVDs; (3) the ten DVDs he viewed had poor

quality pictures and sound, unlike DVDs released by the MPAA; (4) the DVDs

did not contain the true name or address of the manufacturer or display

company logos or trademarks, unlike DVDs released by the MPAA; and (5)

the number of DVDs indicated that Appellant was offering the DVDs for sale.


                                     - 11 -
J-A03042-16


      The testimony at trial established Appellant’s ownership of the DVDs

and his intent to sell multiple copies of movie titles which were still in

theaters.       The     Commonwealth’s         evidence      also   demonstrated       the

counterfeit/pirated status of all of Appellant’s DVDs, due to their failure to

comport with the MPAA standards. Based on this evidence, the court could

reasonably infer that at least one hundred of Appellant’s counterfeit DVDs

contained movies or portions of movies. See Reiss, supra. Therefore, the

evidence     was   sufficient   to   support     Appellant’s     conviction    of   selling

unauthorized copies of recorded devices as a third-degree felony, and

Appellant’s second issue on appeal merits no relief. See Jones, supra; 18

Pa.C.S.A. § 4116(g).

      In his third issue, Appellant argues the Commonwealth failed to prove

that Appellant’s DVDs bore any marks which meet the new definition of

“counterfeit    mark”    necessary    to   sustain      a    conviction   of   trademark

counterfeiting.    Appellant specifically asserts the Commonwealth did not

present evidence that any mark on Appellant’s DVDs was registered, any

registered mark was in use on Appellant’s DVDs, or that Appellant’s DVDs

bore a mark identical with or substantially indistinguishable from a

registered     mark.      Appellant    claims     the       Commonwealth’s      evidence

established only that the DVDs bore homemade labels instead of actual

inserts.    Appellant also avers that MPAA expert, Bill Mock, testified he did

not observe any company logos or trademarks on Appellant’s DVDs.


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J-A03042-16


Appellant concludes the evidence was insufficient to support his conviction of

trademark counterfeiting, and we must reverse his conviction. We agree.

      The   Crimes Code defined the            prior   version of the      trademark

counterfeiting statute in relevant part as follows:

         § 4119. Trademark counterfeiting

         (a) Offense defined.—Any person who knowingly
         manufactures, uses, displays, advertises, distributes,
         offers for sale, sells or possesses with intent to sell or
         distribute any items or services bearing or identified by a
         counterfeit mark shall be guilty of the crime of trademark
         counterfeiting.

                                  *     *      *

         (i)    Definitions.—As used in this section, the following
         words and phrases shall have the meanings given to them
         in this subsection:

         “Counterfeit mark.” Any of the following:

            (1) Any unauthorized       reproduction       or   copy   of
            intellectual property.

            (2) Intellectual property affixed to any item
            knowingly sold, offered for sale, manufactured or
            distributed or identifying services offered or
            rendered, without the authority of the owner of the
            intellectual property.

         “Intellectual property.” Any trademark, service mark,
         trade name, label, term, device, design or word adopted or
         used by a person to identify that person’s goods or
         services.

18 Pa.C.S.A. §§ 4119(a) and (i) (prior version). Significantly, on October 5,

2009, the Pennsylvania Supreme Court declared that version of Section

4119 unconstitutionally overbroad. See Commonwealth v. Omar, 602 Pa.

                                      - 13 -
J-A03042-16


595, 981 A.2d 179 (2009).

      The legislature subsequently amended Section 4119 and the new

version of the trademark counterfeiting statute went into effect on December

20, 2010.     The Crimes Code now defines the offense of trademark

counterfeiting in relevant part as follows:

         § 4119. Trademark counterfeiting

         (a) Offense defined.—Any person who knowingly and
         with intent to sell or to otherwise transfer for purposes of
         commercial advantage or private financial gain:

                                   *     *      *

            (3) offers for sale;

                                   *     *      *

         any items or services bearing or identified by a counterfeit
         mark shall be guilty of the crime of trademark
         counterfeiting.

                                   *     *      *

         (i)    Definitions.—As used in this section, the following
         words and phrases shall have the meanings given to them
         in this subsection:

         “Counterfeit mark.”       A spurious mark that meets all of
         the following:

            (1) Is applied to, used or intended to be used in
            connection with an item or service.

            (2) Is      identical    with    or    substantially
            indistinguishable from a mark registered and in use
            in this Commonwealth, any other state or on the
            principal register in the United States Patent and
            Trademark Office, whether or not the person knew
            the mark was registered.

                                       - 14 -
J-A03042-16



           (3) The application of which is either:

              (i) likely to cause confusion, to cause mistake
              or to deceive; or

              (ii) otherwise intended to be used on or in
              connection with the item or service for which
              the mark is registered.

18 Pa.C.S.A. § 4119(a)(3) and (i) (new version).

     Instantly, the trial court relied on the old version of Section 4119 when

it convicted Appellant of trademark counterfeiting. (See Trial Court Opinion,

filed April 16, 2015, at 8-9). Our Supreme Court declared the prior version

of the statute unconstitutional in 2009, and the Pennsylvania legislature

enacted a new version of the statute in 2010.           See Omar, supra.

Importantly, the new version of the statute contains a much more stringent

definition of “counterfeit mark.” See 18 Pa.C.S.A. § 4119(i). Applying the

new version of Section 4119 to Appellant’s case, the Commonwealth had to

prove Appellant’s DVDs bore counterfeit marks which met the requirements

contained in Section 4119(i). See id. The Commonwealth concedes it failed

to meet this burden. Additionally, the record is devoid of evidence to prove

the items seized from Appellant bore spurious marks identical to or

substantially indistinguishable from a registered mark in use in this

Commonwealth, any other state or on the principal register in the United

States Patent and Trademark Office.      See id.     Thus, the evidence was

insufficient to support Appellant’s conviction of trademark counterfeiting,


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J-A03042-16


and we must reverse that conviction. See Jones, supra.

      Based on the foregoing, we affirm Appellant’s conviction of selling

unauthorized copies of recorded devices, reverse Appellant’s conviction of

trademark counterfeiting, vacate the judgment of sentence, and remand the

for resentencing on the remaining conviction because we have disturbed the

court’s overall sentencing scheme. See Commonwealth v. Thur, 906 A.2d

552, 569 (Pa.Super. 2006), appeal denied, 596 Pa. 745, 946 A.2d 687

(2008) (holding that if disposition upsets overall sentencing scheme of trial

court, this Court must remand so trial court can restructure sentencing

scheme).

      Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2016




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                                                                                             Circulated 03/22/2016 03:18 PM




              IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                      FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                               CRIMINAL TRIAL DIVISION


 COMMONWEALTH                  OF PENNSYLVANIA                     CP-51-CR-0009550-2014
                                                        .
                    v.                     FILED
                                            APR J'i·6 20)5         SUPERIOR COURT
 STEVEN SMALLS                        . Crim;n~~Appeals Unit No.          92 EDA 201s
                                     First , 1uwcia1 9ish'iet at PA
                                              OPINION

 THOMAS STREET, J.                                                                        April 16, 2015


I.          OVERVIEW AND PROCEDURAL HISTORY

            This is an appeal by the Defendant, Steven Smalls, of this Court's order denying the

 Defendant's motion to suppress physical evidence, namely DVDs, and judgment of sentence.

 The Defendant was arrested and charged with Trademark Counterfeiting- Offers for Sale1 and

 Retail Recorded Device2 for events that occurred on August 11, 2014. The Defendant filed a

 motion to suppress physical evidence on September 17, 2014. On December 9, 2014, a

 suppression hearing and stipulated non-jury trial were held before this Court. The Defendant's

 Motion to Suppress was denied. At the conclusion of trial, the Defendant was found guilty of the

 above charges. On the same day, the Defendant was sentenced to serve twenty four (24) months

 of reporting probation and ordered to pay five hundred dollars ($500) in restitution.

            On January 6, 2015, the Defendant filed a timely Notice of Appeal. On February 20,

 2015 pursuant to Pa.R.A.P. 1925(b), this Court ordered a Concise Statement of Errors
                                                             CP-51-CR-0009550-2014C
                                                                              Opinio~mm. v. Smalls, sreven



 1
 2
     18 Pa.C.S. § 4119 §§ A3
     18 Pa.C.S. § 4116 §§ D                                          I I
                                                                 III I //I/Ill/ IIII 1111111
                                                                         7283026881
                                                   1
      Complained of on Appeal within twenty-one (21) days. On March 10, 2015, the Defendant filed

      a Concise Statement of Errors Complained of on Appeal.

II.            FACTUAL HISTORY

               Sergeant Michael Weber testified credibly that on August 11, 2014 at approximately 5:00

      p.m. his tour of duty took him to 2800 Morris Street in Philadelphia, Pennsylvania.                            (N.T.

      12/9/14 p. 6).3     Sergeant Weber explained that this location is called 777 Market and is a seven-

      eleven type of convenience store. (N.T. 12/9/14 p. 7). Sergeant Weber observed one of his units

      pulled over inside the parking lot. Id. He identified Officer Buccini and Officer Dennis inside

      the vehicle. Id. As Sergeant Weber entered the parking lot while in his vehicle, he observed the

      Defendant, Steven Smalls enter the business. Id Sergeant Weber stated that he saw a table set-

      up outside of the store and it initially appeared to him that the Defendant was selling books.

      (N.T. 12/9/14 p. 7). Sergeant Weber exited his vehicle, inspected the table more closely, and

      determined that the books were being used as a cover to conceal counterfeit DVDs and movie

      items. Id. When Sergeant Weber began to collect the items, the Defendant approached him and

      stated "I'm just trying to make a buck. Can I just get my stuff and go?" Id.

               Sergeant Weber previously arrested the Defendant at the exact same location for selling

      counterfeit DVDs and music.             (N.T. 12/9/14 pp. 7-8).         Based on this prior contact and the

      Sergeant's present observations, the Defendant was placed under arrest.                        Id.   One hundred

      seventy nine (179) movie titles, seventy six (76) music titles and a battery operated DVD player

      were recovered and placed on Philadelphia property receipt 3168321.                         (N.T. 12/9/14 p. 8).

      Sergeant Weber also stated that all of the movies were currently playing in theaters at the time of




      3
       All references to the record refer to the suppression hearing and stipulated non-jury trial recorded on December 9,
      2014.

                                                                2
arrest and were being sold by the Defendant in multiple quantities. Id Sergeant Weber cited

some examples: Guardians of the Galaxy, Hercules, Teenage Mutant Ninja Turtles and Lucy. Id

       Sergeant Weber described the table as a standard folding table by Home Depot or Lowes.

(N.T. 12/9/14 p. 9). He stated:

               The table top itself was covered with some kind of cloth towels or
               blankets. There were books on top of that. It was set up in such a
               way that you would be able to move a book and flip up the cloth to
               see all the DVDs and movies that were for display underneath.
               (N.T. 12/9/14 p. 9).

Sergeant Weber testified that he was able to see underneath the table because the center seam

was split (where the two pieces of cloth met) and through this opening he could see the

cellophane cases of the DVDs. (N.T. 12/9/14 pp. 9-10). Sergeant Weber then moved the cloth

out of the way to make a closer observation. (N.T. 12/9/14 pp. 9, 11). He described these cases

as sleeves, like envelopes. (N.T. 12/9/14 p. 10). Sergeant Weber explained that none of the

casing was genuine "it was just clear, plastic envelopes with like homemade type of titles inside

instead of the actual inserts for CDs. It was pixilated and grainy." At this time, the Defendant

had walked away from the table which was in public. (N.T. 12/9/14 p. 9).

       Sergeant Weber stated that the DVDs did not look professionally generated. (N.T.

12/9/14 p. 10). Based on his prior encounter with the Defendant and his prior experience, he

believed that the DVDs were counterfeit. (N.T. 12/9/14 p. 11). As Sergeant Weber began

collecting the DVDs and music into a milk crate, the Defendant approached. Id.

       On cross examination Sergeant Weber testified that the cases that he could see were

consistent with counterfeit titles that he had encountered before in his professional career and

from the previous encounter with the Defendant. (N.T. 12/9/14 pp. 11-12). When questioned

about his testimony at the preliminary hearing, Sergeant Weber affirmed that he testified that he



                                                3
could see cellophane packaging when he lifted back the blanket and had to move the books back

to see the DVDs.    (N.T. 12/9/14 pp. 13-15).    Sergeant Weber stated again that this was his

second encounter with the Defendant.    (N.T. 12/9/14 p. 18). He stated that the Defendant was

initially at the table when he approached, but then the Defendant walked away from the table and

went into the store. (N.T. 12/9/14 pp. 18-19).

       Sergeant Weber testified that when he started looking at the table, the Defendant came

back out and made a statement that implicated that these items were his property. (N.T. 12/9/14

p. 19). He affirmed that he had arrested the Defendant before at this very table. Id. Sergeant

Weber stated that "everything was on top of the table ... the player, the books, the blanket, the

DVDs, they were all along the surface of the table." (N.T. 12/9/14 p. 20). He clarified for the

Court that the DVDs and CDs were on the surface of the folding table covered by two blankets

with books positioned to hold the corners down. Id     He added that at the very top of the table

above the blanket were books and a DVD player, but that none of the DVDs were displayed

above the blanket. (N.T. 12/9/14 p. 20).

       On redirect examination, Sergeant Weber read his prior testimony from the preliminary

hearing, stating:

               Line 20, "QUESTION: The DVDs were not visible to passersby or
               to yourself."
               ANSWER: Not when I was in the car. When I approached the
               table you could see them." (N.T. 12/9/14 p. 22).

       Ms. Kimberly Biddick testified that on August 11, 2013 at approximately 5:00 p.m. she

was at the "777" comer store. (N.T. 12/9/14 p. 23). She identified the Defendant, Steven

Smalls, and stated that he was outside of"777" market that day. (N.T. 12/9/14 p. 24). She stated

that the Defendant had books on a table and had a shelf next to it. Id She stated she was present

when Sergeant Weber approached the table and explained:

                                                 4
               Steven wasn't outside. I was outside. He was in the store. The
               officer, two of the, I don't know their names, but they came up
               behind me and startled me a little bit. I was reading the back of
               several of the books there because Steven always lets me borrow
               them and bring them back, and they asked me what's going on
               here. And I was like, what are you talking about? And they said
               what is going on here? He asked me what's under the sheet? I said,
               what do you mean what's under the sheet? So he said that sheet.
               He started to lift up, move the books and lift it up, the white sheet
               and there wasn't anything there. So they started to lift up the black
               sheet. He's like, what's this? The next thing you know Steven
               comes out of the store, then they started with him, started talking to
               him, and gout loud with him, and the next thing I know-he had a
               thing on his hand. He hurt his hand and they put him in handcuffs.

(N.T. 12/9/14 pp. 24-25).      Ms. Biddick stated she then went to get her fiance and that the

Defendant asked her fiance to take care of things for him. Id. She stated that before the Officers

pulled up the sheet she was not able to see anything. Id.

        On cross-examination, Ms. Biddick testified that she could not decipher which officer did

what and stated that she had no idea how long the officers were there until they startled her.

(N.T. 12/9/14 pp. 26-27). She explained that she was on the ground looking at the books on the

bottom of the shelf. (N.T. 12/9/14 p. 26). She further described the table as a folding table with

a black sheet that goes all the way down and a white sheet that goes halfway with a tall shelf that

is about five (5) to six (6) feet high. Id.

        A stipulation by and between counsel was entered that if Bill Mock were called to testify

as a representative of the Motion Picture Association of America (MP AA), he would testify that

he examined one hundred seventy-six (176) DVDs placed on property receipt 3168321, and

determined they were counterfeit or pirated being that they did not contain the true name or

address of the manufacturer.     (N.T. 12/9/14 pp. 46-47). It was further stipulated that Mr. Mock

would testify that he did not observe any company logos or trademarks throughout the

examination and placed a value of eleven dollars ($11) per title for a total loss of $1,936. (N.T.


                                                  5
       12/9/14 p. 47). Moreover, Mr. Mock4 would testify that he knew that the DVDs were counterfeit

       because the movies were still in the theater. Id The MP AA does not put those movies out on

       DVD until they are out of the theater. Id. Additionally, the DVDs were on white discs with no

       studio information on the front. Id The backs of the DVDs had a purplish tint which indicates

       that they are DVDR, a recordable DVD, whereas the MPAA does not put their movies on

       recordable DVDs. Id Mr. Mock would also state that he viewed ten (10) of the DVDs which

       had poor quality picture and sound which indicates that they were counterfeit. Id. Lastly, Mr.

       Mock would testify that the large amount of movies, one hundred seventy-six (176) in total, and

       the fact that there were multiple copies, indicates that the DVDs were offered for sale as opposed

       to personal use. Id.

III.           ISSUES

               In the Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal, the

       Defendant identified the following issues:

               1. Insufficiency of the evidence and due process require a reversal of the
                  conviction for trademark counterfeiting, 18 Pa.C.S. § 4119, as
                  amended and narrowed by Act 74 of 2010, because the confiscated
                  DVDs bore only homemade movie titles and no company logos or
                  trademarks and, thus, there was no evidence that (i) they bore a
                  "counterfeit mark" "identical with or substantially indistinguishable
                  from" a protected mark; (ii) that any mark was "registered" or (iii) that
                  any "registered" mark was "in use." 18 Pa.C.S. § 4119(i).

               2. Insufficiency of the evidence and due process require a reversal of the
                  felony of the third degree conviction for copying; recording devices,
                  18 Pa.C.S. § 4116, as the proper gradation was a misdemeanor of the
                  first degree because (i) there was no proof that "at least 100" DVDs
                  had movies recorded on them where the Commonwealth witness only
                  watched IO.DVDs; and (ii) there was no evidence that the 10 viewed
                  DVDs were representative of at least 100 DVDs, and any post hoc


       4
        The notes of testimony refer to a Bill "Mop" as representative of the Motion Picture Association of America
       (MPAA). However, upon examination, this Court finds that the representative's name is Bill Mock and will refer to
       him as such for purposes of the opinion.

                                                               6
                extrapolation at this time would also violate the best evidence rule, Pa.
                R. Evid. 1002.

             3. The lower court erred and abused its discretion by denying a motion to
                suppress physical evidence where the police officer lacked reasonable
                suspicion or probable cause to search Mr. Smalls' table by lifting up
                the tablecloth and seizing DVDs were out of view underneath the
                cloth. U.S. Const. Amend. IV, XIV; Pa. Const. Art. I,§ 8.

IV.          STANDARD OF REVIEW

             A challenge to the sufficiency of evidence is a question of law. Commonwealth v.

      Heater, 2006 PA Super 86, 11, 899 A.2d 1126, 113.1 (2006) (citing Commonwealth v. Widmer,

      560 Pa. 308, 319, 744 A.2d 745, 751 (2000)). The role of an appellate court in reviewing the

      weight of the evidence is very limited. Commonwealth v. Holmes, 444 Pa. Super. 257, 264, 663

      A.2d 771, 774 (1995). When reviewing a sufficiency of the evidence claim, a court must review

      the evidence and all reasonable inferences in the light most favorable to the Commonwealth as

      the verdict winner, and must determine if the evidence, thus viewed, is sufficient to enable the

      fact-finder to find every element of the offense beyond a reasonable doubt. Commonwealth v.

      Valette, 531 Pa. 384, 388, 613 A.2d 548, 549 (1992); Commonwealth v. Marks, 704 A.2d 1095

      (Pa. Super. 1997).

             A reviewing court may not weigh the evidence or substitute its own judgment for that of

      the fact-finder, who is free to believe all, part, or none of the evidence. Commonwealth v.

      Adams, 2005 Pa. Super. 296, 882 A.2d. 496, 498-99 (Pa. Super. 2005). An appellate court may

      reverse a lower court's verdict only in the instance that it is so contrary to the evidence as to

      shock one's sense of justice.      See Commonwealth       v. Hunzer, 868 A.2d 498, 506-507

      (Pa.Super.2005), appeal denied, 584 Pa. 673, 880 A.2d 1237 (2005). Whether a new trial should

      be granted on the ground that a conviction was against the weight of the evidence is addressedto

      the sound discretion of the trial judge, and that decision will not be reversed on appeal absent a

                                                      7
 showing of abuse of discretion. Commonwealth v. Petteway, 847 A.2d 713, 716 (Pa. Super.

 2004) (citing Commonwealth v.               Davis, 799 A.2d 860, 865 (Pa. Super. 2002)).

            Additionally, the Commonwealth may satisfy its burden of proof entirely by

 circumstantialevidence. See Commonwealth v. Adams, 2005 Pa. Super 296, 882 A.2d. 496, 499

 (Pa. Super 2005); see also Commonwealth v. Murphy, 2002 PA Super 84, 795 A.2d 1025, 1038-

 39 (Pa. Super. 2002) ("The fact that the evidence establishing a defendant's participation in a

 crime is circumstantial does not preclude a conviction where the evidence coupled with the

 reasonable inferences drawn therefrom overcomes the presumption of innocence."). "If the

 record contains support for the verdict, it may not be disturbed." Adams, 882 A.2d. at 499.

V.          DISCUSSION

            First, the Defendant argues that the evidence was insufficient to find him guilty of

 Trademark Counterfeiting.5 Specifically, the Defendant asserts that the confiscated DVDs bore

 only homemade movie titles and not company logos or trademarks and that there was no

 evidence that (i) they bore a "counterfeit mark" "identical with or substantially indistinguishable

     from" a protected mark; (ii) that any mark was "registered" or (iii) that any "registered" mark

     was "in use." 18 Pa.C.S. § 4119(i). This Court disagrees.

             The offense of trademark counterfeiting is defined in 18 Pa.C.S. § 41 l 9(a) as follows:

     "Any person who knowingly manufacture, uses, displays, advertises, distributes, offers for sale,

     sells or possess with intent to sell or distribute any items or services bearing or identified with a

     counterfeit mark shall be guilty of the crime of trademark counterfeiting. The term "counterfeit

     mark" is defined in 18 Pa.C.S. § 4119(i) as any of the following: (1) any unauthorized

     reproduction or copy of intellectual property; or (2) intellectual property affixed to any item

     knowingly sold, offered for sale, manufactured or distributed or identifying services offered or

     518Pa.C.S.
                  §4119

                                                       8
rendered, without the authority of the owner of the intellectual property. The term "intellectual

property" is defined by the statute as "any trademark, service mark, trade name, label, term,

device, design or word adopted or used by a person to identify that person's goods or services".

(emphasis added).

        Here, Bill Mock, an expert in the identification of counterfeit DVDs from the Motion

Picture Association of America (MP AA) determined that the DVDs possessed by the Defendant

were counterfeit because the DVDs did not bear the true name or address of the manufacturer;

the company's logo or trademark was absent on the DVDs; the discs lacked studio information;

the backs of the DVDs were a purplish tint indicating they were recordable, the discs had poor

picture quality and sound; and the DVD movies were currently playing in theaters.           (N.T.

12/9/14 pp. 46-47). Lastly, Mr. Mock determined that the large amount of movies, one hundred

seventy-six (176) in total, and the fact that there were multiple copies, indicates that the DVDs

were offered for sale as opposed to personal use. Id.

        Mr. Mock's testimony, which was stipulated to by the Defendant, established that the

DVDs were unauthorized          reproductions   or copies of intellectual property under Section

4119(i)(l).   This subsection does not require the presence of a counterfeit logo or mark on the

item.   The Court found this evidence, combined with Sergeant Weber's testimony, to be

sufficient proof beyond a reasonable doubt that the DVDs were not authentic copies. Since they

were not authentic, they bore "unauthorized reproductions" of the authentic trademark, which

satisfies the definition of a counterfeit mark. This testimony clearly establishes that Defendant

was in possession of "unauthorized reproductions or copies of intellectual property." 18 Pa. C.S.

§ 41 l 9(i)(l) ( defining counterfeit mark).




                                                   9
           Second, the Defendant argues that the evidence was insufficient to find him guilty of a

felony of the third degree for Retail Recorded Device. 6 Specifically, the Defendant asserts that

the proper gradation was a misdemeanor of the first degree because (i) there was no proof that

"at least" 100 DVDs had movies recorded on them where the Commonwealth witness only

watched IO DVDs; and (ii) there was no evidence that the 10 viewed DVDs, were representative

of at least 100 DVDs, and any post hoc extrapolation at this time would also violate the best

evidence rule, Pa. R. Evid. 1002. This Court disagrees.

          The offense of trademark counterfeiting is a felony of the third degree if "the violation

involves more than 100 but less than 1,000 items bearing a counterfeit mark or the total retail

value of all items or services bearing or identified by a counterfeit mark is more than $2,000, but

less than $10,000." 18 Pa.C.S. § 4119(c)(2)(ii).

          Here, Sergeant Weber testified that one hundred seventy nine (179) movie titles, seventy

six (76) music titles and a battery operated DVD player were discovered at the Defendant's table

and placed on property receipt. (N.T. 12/9/14 p. 8). Sergeant Weber stated that the cases that he

could see were consistent with counterfeit titles that he had encountered before in his

professional career and from the previous encounter with the Defendant. (N.T. 12/9/14 pp. 11~

12). Sergeant Weber stated that the DVDs did not look professionally generated. (N.T. 12/9/14

p. 10). He stated that the movies were currently playing in theaters at the time of arrest and were

being sold by the Defendant in multiple quantities, citing examples: Hercules, Teenage Mutant

Ninja Turtles and Lucy. Guardians of the Galaxy. (N.T. 12/9/14p. 8).

           Additionally, the MPAA expert, Bill Mock, determined that the DVDs possessed by the

Defendant were counterfeit based on other factors beyond poor picture quality and sound from

watching the videos in question. The DVDs did not bear the true name or address of the
6
    18 Pa.C.S. § 4116

                                                  10
manufacturer; the company's logo or trademark was absent on the DVDs; the discs lacked studio

information, the backs of the DVDs were a purplish tint indicating they were recordable, and the

DVD movies were currently playing in theaters.           (N.T. 12/9/14 pp. 46-47).    Mr. Mock's

testimony established that the DVDs were unauthorized reproductions or copies of intellectual

property under Section 4119(i)(l).   Accordingly, Sergeant Weber's testimony coupled with Mr.

Mock's expert opinion and observations, overwhelmingly supports a finding that more than one

hundred (100) items bore a counterfeit mark. As such, the grading of Trademark Counterfeiting

as a felony of the third degree was proper in the instant matter.

       Third, the Defendant argues that this Court erred and abused its discretion by denying his

motion to suppress. Specifically, the Defendant asserts that the police officer lacked reasonable

suspicion or probable cause to search the Defendant's table by lifting up the tablecloth and

seizing DVDs that were out of view underneath the cloth. This Court disagrees.

       A warrantless arrest is valid when probable cause exists, which is determined by the

totality of the circumstances test. Illinois v. Gates, 462 U.S. 213, 233, 103 S. Ct. 2317, 2329, 76

L.Ed.2d 527 (1983); Commonwealth v. Evans, 546 Pa. 417, 422, 685 A.2d 535, 537 (1996). In

determining whether there is probable cause, a court must ascertain whether, "the facts and

circumstances which are within the knowledge of the officer at the time of arrest, and of which

he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution

in the belief that the suspect has committed or is committing a crime." Commonwealth v.

Rodriguez, 526 Pa. 268, 272-273, 585 A.2d 988, 990 (1991).

       A determination of probable cause at the moment of search or arrest is based on whether

the officer had reasonable information to satisfy a prudent person in believing the person

committed an offense. See Henry v. U.S., 361 U.S. 98 (1959); Brinegar v. U.S., 338 U.S. 160



                                                 11
(1949), Commonwealth v. Richards, 327 A.2d 63 (Pa. 1974). A police officer's training and

experience may be used as a relevant factor to determine whether probable cause exists, but

probable cause should not "be based on a police officer's subjective opinion standing alone."

Commonwealth v. Thompson, 604 Pa. 198, 210, 985 A.2d 928, 935 n. 9 (2009). Where, as here,

an officer has extended his stop to investigate possible offenses, the Commonwealth bears the

burden of establishing that the officer had sufficient reasonable suspicion of unlawful activity to

justify any further investigatory measures or steps taken. See Commonwealth v. Jones, 874 A.2d

108 (Pa. Super. 2005).

       In the instant matter, it is not evident that the Defendant had a reasonable expectation of

privacy for a table open to the public for commercial use. Moreover, the evidence at the

suppression hearing established that Sergeant Weber had reasonable suspicion and probable

cause to search the Defendant's table. (N.T. 12/9/14 pp. 9-10). Sergeant Weber testified

credibly that he was able to see underneath the blanket because the center seam was split (where

'the two pieces of cloth met) and through this opening he could see the cellophane cases of the
DVDs. (N.T. 12/9/14 pp. 9-10). The Defendant's witness, Ms. Biddick, corroborated this

testimony when she described the table as a folding table with a black sheet that goes all the way

down and a white sheet that goes halfway down. (N.T. 12/9/14 p. 26).               Equipped with

reasonable suspicion to investigate further and make a closer observation, Sergeant Weber

moved the cloth out of the way after approaching the table.            (N.T. 12/9/14 pp. 9, 11).

Additionally, Ms. Biddick was initially unaware of the officers' presence and could not rebut

Sergeant Weber's testimony as she stated she was on the ground looking at books on the bottom

shelf of the Defendant''S display. Id




                                                 12
       Sergeant Weber testified credibly that the DVDs did not look professionally generated,

the cases were consistent with counterfeit titles that he had encountered before in his professional

career and from the previous encounter with the Defendant, all of the movies were currently

playing in theaters at the time of arrest, and were being sold by the Defendant in multiple

quantities. (N.T. 12/9/14 pp. 8. 10, 11). Based on his prior encounter with the Defendant in this

very location and his prior experience, Sergeant Weber believed that the DVDs were counterfeit.

(N.T. 12/9/14 p. 11). These facts and circumstances, known to the officer at the time of the

arrest, would lead a reasonable person to believe that a crime was being committed. The officer

had reasonable suspicion and probable cause to search the Defendant.

       The requirements for a lawful, warrantless seizure of evidence are that the officer must be

in a lawful place of observation; the incriminating character of the object must be immediately

apparent and the officer must have lawful access to the object itself. Commonwealth v.

McCullum, 602 A.2d 313, 320 (Pa. 1992), citing Horton v. California, 496 U.S. 128, 110 S.Ct.

2301, 110 L.Ed.2d 112 (1990). In the present case, all of these requirements have been met.

       First, Sergeant Weber was patrolling 777 Market, a public area, when he encountered the

Defendant and the table. (N.T. 12/9/14 p. 7). When Sergeant Weber seized the DVDs and

placed them in a milk crate there was no warrantless intrusion into an area protected by privacy

concerns. Sergeant Weber was making a lawful arrest while in a public area and saw

merchandise under a blanket on a table where the contraband was located. Hence, the officers

were in a lawful place of observation.

        Second, the incriminating character of the evidence was apparent. Sergeant Weber

testified that the DVDs did not look professionally generated, the cases were consistent with

counterfeit titles that he had encountered before in his professional career and from the previous



                                                  13
  encounter "With the Defendant, all of the movies were currently playing in theaters at the time of

  arrest, and were being sold by the Defendant in multiple quantities to justify the seizure. (N.T.

  12/9/14 pp. 8. 10, 11, 12). Sergeant Weber observed the DVDs under the blanket and concluded

  that the Defendant was selling the counterfeit DVDs and using books to conceal this operation.

  (N.T. 12/9/14 p. 7).         Consequently, all of the DVDs were subject to seizure as contraband.

               Finally, the DVDs were located where the officer had a lawful right of access.      The

  DVDs were on a table at a store front under a blanket.            (N.T. 12/9/14 pp. 7-8). The seizure

  involved no entry into a separate area such as a vehicle or a building. Accordingly, the three-

  pronged requirement for a lawful, warrantless seizure of evidence was satisfied.

VI.            CONCLUSION

               For all of these reasons, this Court's decision should be affirmed.



                                                             BY THE COURT:




      Dated:   4pn/    I{., -1t.. , 2015




                                                        14
