J-S34021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

PAUL BENEDICT WOLF

                            Appellant                      No. 533 MDA 2014


           Appeal from the Judgment of Sentence February 21, 2014
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0007563-2011


BEFORE: BOWES, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 23, 2015

       Paul Benedict Wolf appeals from the judgment of sentence imposed on

February 21, 2014, in the Court of Common Pleas of York County, made final

by the denial of post-sentence motions on March 19, 2014.            On June 14,

2013, a jury convicted Wolf of persons not to possess, use, or control a

firearm,    prohibited      offensive     weapons,   and    possession   of   drug

paraphernalia.1 Subsequently, the trial court sentenced him to an aggregate

term of five to ten years’ incarceration.            In this appeal, Wolf raises

suppression and weight issues. Based upon the submissions by the parties,

the certified record, and the relevant law, we affirm.

____________________________________________


1
  18 Pa.C.S. §§ 6105(a)(1) and 908, and 35 Pa.C.S. § 780-113(a)(32),
respectively.
J-S34021-15


       The facts and procedural history are as follows: On October 31, 2011,

the Hanover Borough Police Department was dispatched to 312 East Middle

Street in Hanover Borough for a report of shots fired and an individual

holding a gun to his head.          Anthony Hippensteel testified he lived in the

same apartment building as Wolf. On the night of the incident, Hippensteel

went over to Wolf’s apartment and saw Wolf, holding a sawed-off shot gun

underneath his chin, and counting, “1, 2, 3.” N.T., 6/12/2013-6/14/2013, at

156.   Hippensteel stated Wolf then took the gun from under his chin and

fired it at the ceiling. Id. at 157.

       Upon the officers’ arrival at the scene, they came into contact with

Amanda Bowen, Hippensteel’s live-in girlfriend, who indicated that Wolf was

in his apartment holding a sawed-off shotgun to his head and which he had

previously fired into the ceiling. Bowen provided Wolf’s cell phone number

to Sergeant Joseph J. Bunty, Jr. Sergeant Bunty testified he called Wolf and

asked him to step outside, and Wolf complied with his request.

       Upon leaving the building, Wolf, unarmed at the time, was handcuffed

and patted down for officer safety.2 After Wolf was taken into custody for

detainment purposes while the police attempted to find the missing shotgun,

Wolf suggested he and the police enter his apartment, because he did not

want to be seen talking to them.           Officer Aumen and others removed the
____________________________________________


2
   Officer Jared Aumen noted Wolf smelled of alcohol, but was coherent and
did not appear to be intoxicated.



                                           -2-
J-S34021-15


keys to the residence from Wolf’s pocket and opened the door. The officer

also indicated there was concern that Hippensteel may have still been in the

apartment somewhere based on a statement by Bowen.

       After entering the apartment, Officer Auman testified he observed

fresh damage to the ceiling and a hole.          Officer Auman read Wolf his

Miranda3 rights, which he waived. Officer Auman also observed 12-gauge

shot gun shells and two pipes in plain view, which the officer believed to be

drug paraphernalia. The officer stated he asked Wolf to fill out and sign a

consent-to-search form, which Wolf declined to do.

       The police then obtained a search warrant.        Police Officer Marci

Fureman testified that she spoke with Bowen regarding any weapons that

Wolf may have had and Bowen described several hiding places.          One of

those places was a trashcan in the rear of the residence, where Officer

Fureman found a spent cartridge from a shotgun. A sawed-off shotgun was

also retrieved under a loose board in Wolf’s kitchen.        See Trial Court

Opinion, 8/8/2014, at 3-4.

       Wolf told Officer Auman he owed a lot of people money and that a

friend had dropped the gun off for him. Wolf admitted he was not permitted

to possess a firearm. Hippensteel testified that two or three days earlier, he



____________________________________________


3
    See Miranda v. Arizona, 384 U.S. 436 (1966).



                                           -3-
J-S34021-15


was present when a person named Alan came over to Wolf’s apartment,

pointed a gun at Wolf, and threatened to kill him.

       Wolf was charged with multiple offenses relating to the October 31,

2011, incident, and counsel was appointed to represent him. Nevertheless,

Wolf filed a pro se motion to suppress on January 31, 2012, and a pro se

motion, requesting stand-by counsel on March 20, 2012. A hearing was held

on April 2, 2012, to assess the request for stand-by counsel. The following

day, the court denied the application for stand-by counsel, but approved the

request for a substitution of counsel. New trial counsel was appointed, and

filed omnibus pretrial motions nunc pro tunc on May 11, 2012.

       A hearing on the suppression motion was held on May 21, 2012. The

trial court dismissed the motion on January 9, 2013. The matter proceeded

to a jury trial, which began on June 12, 2013.       Two days later, the jury

convicted Wolf of persons not to possess, use, or control a firearm,

prohibited offensive weapons, and possession of drug paraphernalia.

Sentencing was continued until February 21, 2014.4 At that time, the court

imposed a term of five to ten years’ incarceration for the persons not to

possess a firearm offense, a concurrent term of one to two years’

imprisonment for the prohibited offensive weapons crime, and a concurrent

____________________________________________


4
  Prior to sentencing, trial counsel requested to withdraw from representing
Wolf. The court granted the request and appointed new counsel. See
Order, 8/14/2013, at 1.



                                           -4-
J-S34021-15


term of six to 12 months’ incarceration for the drug paraphernalia charge.

Wolf filed post-sentence motions on March 5, 2014. A hearing was held on

March 19, 2014. At that time, the court denied the post-sentence motions.

This appeal followed.5

       In his first issue, Wolf argues the trial court erred in denying his

motion to suppress based on a lack of voluntary consent and exigent

circumstances. Wolf’s Brief at 9. Specifically, he states:

       In this case it is not in dispute that [Wolf] was in custody prior to
       consent being given for him to be taken into his apartment by
       the police. While there was no direct testimony of any duress or
       coercive tactics by law enforcement, [Wolf] was not given any
       other option than to go back into his apartment to avoid being
       seen in custody. While [Wolf] did later refuse to give consent to
       search the apartment after the initial entry, it was done after the
       police attempted to get written permission to search. It was at
       that time it was explained to him that if he refused they would
       attempt to get a search warrant. There is no evidence that
       [Wolf] had any knowledge of his ability to refuse the first entry
       into his apartment. While there was no testimony to [Wolf]’s
       education and intelligence there was testimony that he was
       using controlled substances at the time of the encounter with the
       police. When reviewing these factors together, it is clear that
       [Wolf]’s consent was not voluntary in letting the police into his
       apartment.

____________________________________________


5
  On March 28, 2014, the trial court ordered Wolf to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Wolf filed
a concise statement on April 10, 2014. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on August 8, 2014.

     During this time, on April 1, 2014, Wolf filed a motion stating he
wanted to represent himself pro se. The court held a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), and determined
present counsel would continue to represent Wolf on appeal.



                                           -5-
J-S34021-15


Wolf’s Brief at 9-10. Moreover, Wolf asserts:

            [N]o exigent circumstances would have existed to justify
      the entry into the residence. No attempt was first made to
      locate Mr. Anthony Hippensteel at his residence prior to this
      entry. At the same time the entry was made Mr. Hippensteel
      was located by other officers at his residence.        Once Mr.
      Hippensteel was located, the only concern was the location of
      the firearm.    After [Wolf] refused a further search of his
      apartment, the police secured the residence to wait for the
      search warrant. The search for the firearm was not enough of
      an exigent circumstance for the police to take any further action
      until the search warrant arrived. Once Mr. Hippensteel was
      found in his residence, the same procedure could have been
      used prior to any entry into [Wolf]’s apartment.

Id. at 10.

      When reviewing an order denying a pre-trial motion to suppress

evidence, we are guided by the following:

      We are limited to determining whether the factual findings are
      supported by the record and whether the legal conclusions
      drawn from those facts are correct. We may consider the
      evidence of the witnesses offered by the prosecution, as verdict
      winner, and only so much of the defense evidence that remains
      uncontradicted as a whole. We are bound by facts supported by
      the record and may reverse only if the legal conclusions reached
      by the court below were erroneous.

Commonwealth v. Borovichka, 18 A.3d 1242, 1248-1249 (Pa. Super.

2011). Additionally,

      [a]ssuming that there is support in the record for the
      suppression court’s factual findings -- and there is no dispute
      here on the governing facts -- we are bound by those facts and
      we may reverse only if the legal conclusions drawn from those
      facts are in error. If there is sufficient evidence of record to
      support the suppression court’s ruling and the court has not
      misapplied the law, we will not substitute our credibility
      determinations for those of the suppression court judge.


                                    -6-
J-S34021-15


     However, if the court has misapplied the law, we must reverse
     that court’s determination.

Commonwealth v. Johnson, 86 A.3d 182, 187 (Pa. 2014) (citations

omitted).

     As a general rule, a defendant charged with a possessory crime has

automatic standing to challenge the legality of the search which resulted in

the charges against him. See Commonwealth v. Bostick, 958 A.2d 543,

551-552 (Pa. Super. 2008), appeal denied, 987 A.2d 158 (Pa. 2009).

     “The Fourth Amendment to the United States Constitution and
     Article 1, § 8 of the Pennsylvania Constitution require that
     searches be conducted pursuant to a warrant issued by a neutral
     and detached magistrate.” “A warrantless search or seizure is
     per se unreasonable unless it falls within a specifically
     enumerated exception.”

Commonwealth v. Lee, 972 A.2d 1, 3 (Pa. Super. 2009) (citations

omitted).

     Consent to search is an exception to the warrant requirement. With

respect to consent, we note the following:

     In connection with the inquiry into the voluntariness of a consent
     given pursuant to a lawful encounter, the Commonwealth bears
     the burden of establishing that a consent is the product of an
     essentially free and unconstrained choice--not the result of
     duress or coercion, express or implied, or a will overborne--
     under the totality of the circumstances. While knowledge of the
     right to refuse to consent to the search is a factor to be taken
     into account, the Commonwealth is not required to demonstrate
     such knowledge as a prerequisite to establishing a voluntary
     consent. Additionally, although the inquiry is an objective one,
     the maturity, sophistication and mental or emotional state of the
     defendant (including age, intelligence and capacity to exercise
     free will), are to be taken into account.


                                    -7-
J-S34021-15


      Since both the tests for voluntariness and for a seizure centrally
      entail an examination of the objective circumstances surrounding
      the police/citizen encounter to determine whether there was a
      show of authority that would impact upon a reasonable citizen-
      subject's perspective, there is a substantial, necessary overlap in
      the analyses.

                                    ***

      [Thus, we] conclude that the following factors . . . are pertinent
      to a determination of whether consent to search is voluntary
      given: 1) the presence or absence of police excesses; 2) whether
      there was physical contact; 3) whether police directed the
      citizen’s movements; 4) police demeanor and manner of
      expression; 5) the location of the interdiction; 6) the content of
      the questions and statements; 7) the existence and character of
      the initial investigative detention, including the degree of
      coerciveness; 8) whether the person has been told that he is
      free to leave; and 9) whether the citizen has been informed that
      he is not required to consent to the search.

Commonwealth v. Powell, 994 A.2d 1096, 1101-1102 (Pa. Super. 2010),

quoting Commonwealth v. Kemp, 961 A.2d 1247, 1261 (Pa. Super. 2008)

(en banc) (citation omitted).

      Moreover,

      [e]xigent circumstances provide [another] exception to the
      warrant requirement. In Commonwealth v. Roland, 535 Pa.
      595, 637 A.2d 269 (1994), our Supreme Court provided the
      following description of the applicable constitutional principles
      relating to exigent circumstances:

            In a private home, searches and seizures without a
            warrant are presumptively unreasonable.     Absent
            probable cause and exigent circumstances, the entry
            of a home without a warrant is prohibited under the
            Fourth Amendment. In determining whether exigent
            circumstances exist, a number of factors are to be
            considered[:]




                                     -8-
J-S34021-15


                  (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
                  strong reason to believe that the suspect
                  is within the premises being entered, (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.

            Other factors may also be taken into account, such
            as whether there is hot pursuit of a fleeing felon, a
            likelihood that evidence will be destroyed if police
            take the time to obtain a warrant, or danger to police
            or other persons inside or outside the dwelling.
            Nevertheless, police bear a heavy burden when
            attempting to demonstrate an urgent need that
            might justify warrantless searches or arrests.

      [Id. at 270-71]. Moreover, this Court has observed that, “the
      Commonwealth must present clear and convincing evidence that
      the circumstances surrounding the opportunity to search were
      truly exigent, [] and that the exigency was in no way
      attributable to the decision by police to forego seeking a
      warrant.”

Lee, 972 A.2d at 3-4 (some citations omitted).          In weighing the above

factors, “we are mindful that our determination involves a balancing of the

individual’s right to be free from unreasonable intrusions against the interest

of society in investigating crime quickly and adequately and preventing the

disappearance     of    evidence     necessary     to     convict    criminals.”

Commonwealth v. Fickes, 969 A.2d 1251, 1259 (Pa. Super. 2009).


                                     -9-
J-S34021-15


      In denying Wolf’s motion to suppress, the trial court found the

following:

             The Court initially finds that [Wolf]’s invitation for the
      police to enter his residence and his further consent to the police
      being within the residence was knowingly, voluntarily and
      intelligently made, as evidenced by the fact that after the police
      sought [Wolf]’s permission to conduct a further search and to
      sign a document consenting to the search, he exercised
      judgment by refusing to sign.

                                       …

             The defense presented an appropriate argument that
      [Wolf] was in custody at the time that he made his initial
      invitation to the police to enter his premises, but the Court does
      not find this to be dispositive of the instant case, or to be unduly
      coercive in nature, since [Wolf] freely exercised his right to
      refuse a further search while still in police custody.

            In regard to the police search which resulted in the finding
      of a sawed-off shotgun beneath a board in the floor, the police,
      at this time, were confronted with two (2) exigent
      circumstances. First, they had a missing weapon, for which they
      had fresh evidence of discharge into the ceiling moments before
      their arrival, with the blast penetrating into another dwelling
      unit. Second, they had a missing person who lived in the
      building, specifically the neighbor, Anthony Hippensteel. At the
      time, the police were advised by Ms. Amanda Bowen, who lived
      with Anthony Hippensteel in the neighboring apartment, that Mr.
      Hippensteel was last seen in the presence of [Wolf] prior to the
      shot being fired. As such, when the police entered [Wolf]’s
      apartment, they had a legitimate concern regarding 1) whether
      Mr. Hippensteel was injured and out of sight concealed within
      [Wolf]’s [place] and 2) that there was a missing and perhaps
      loaded and unaccounted for weapon in a situation where there
      were also missing person(s).

            The police testified that they did not know Mr. Hippensteel,
      nor did they know whether he was a good guy, bad guy, hostage
      or victim. They only knew that they had a person missing who
      had been in [Wolf]’s apartment immediately preceding the
      discharge of the weapon, and they knew that they had a missing

                                     - 10 -
J-S34021-15


     and potentially loaded shotgun. This clearly creates an exigent
     circumstance of concern both for the safety of Mr. Hippensteel as
     well as the police and the general public.

           Under these facts, the police were presented with a chaotic
     atmosphere regarding the discharge of a weapon, missing
     person and missing weapon.         This presented a scenario of
     exigent circumstances under which there was not time to obtain
     a search warrant for the location of the weapon, without placing
     the safety of the police, Mr. Hippensteel and the general
     community surround[ing] the premises at risk. Ms. Bowen told
     the police that [Wolf] often hid a weapon in trash cans in the
     rear of the residence, or beneath the floor and under the chaotic
     circumstances facing the officers on the scene, locating Mr.
     Hippensteel and the missing shotgun immediately was called for
     in order to protect both Mr. Hippensteel, the police and the
     public. As such, under the circumstances, the police were not
     required to obtain a warrant in order to search for and secure
     the weapon.

Order, 1/9/2013, at 6-8 (footnote omitted).

     Our review of the record supports the trial court’s conclusion.     First,

the evidence demonstrates that even though Wolf was handcuffed, his

consent was voluntary where he asked the police to come into his apartment

in order to avoid being seen with the officers. Wolf even acknowledged the

police did not use duress or coercive tactics to enter his apartment.

Furthermore, contrary to Wolf’s argument that he should have been

informed of his ability to refuse the first entry into his apartment, we

reiterate that “the Commonwealth is not required to demonstrate such

knowledge as a prerequisite to establishing a voluntary consent.” Powell,

994 A.2d at 1102.   Likewise, while the officers may have smelled alcohol,

they determined Wolf to be coherent, which the court found credible. Lastly,


                                   - 11 -
J-S34021-15


and significantly, when Wolf refused to sign the consent-to-search form, the

officers stopped and waited until they obtained a search warrant

before continuing to search for the missing gun.

       Second, even if Wolf did not give consent, the evidence also

established there were several exigent circumstances present:                  (1) the

missing gun that Wolf had recently fired in the direction of the apartment

ceiling, and (2) the possibility of a shooting victim, Hippensteel, who was

present when Wolf fired the gun.               As the trial court indicated, the police

arrived at a chaotic scene and had a legitimate concern regarding

Hippensteel’s whereabouts, in which they received a report that he may still

have been in Wolf’s apartment, and, where there was a missing and possibly

still loaded sawed-off shotgun in the same location as Hippensteel. Based

on the totality of the circumstances, we agree with the court’s findings

Wolf’s consent was voluntary, there were exigent circumstances, and the

police were not required to obtain a warrant in order to search for and

secure the shotgun.

       In Wolf’s second argument, he contends the verdict was against the

weight of the evidence.6 Wolf’s Brief at 11. Specifically, he states:

       In this case [Wolf] raised the defense of duress. The evidence in
       this case supported that [Wolf] acted under duress in possessing
       the firearm. [Wolf] in his statement to the police indicated that
____________________________________________


6
   Wolf properly preserved his challenge to the weight of the evidence by
raising it in a post-sentence motion. See Pa.R.Crim.P. 607(A).



                                          - 12 -
J-S34021-15


      he had previously been threatened by Alan, and that he was
      holding the firearm for him.    In addition, other witnesses
      testified that had been present when Alan had violently
      threatened [Wolf]. The defense of duress was not disproved by
      the Commonwealth.

Id.

      Appellate review of a weight of the evidence claim is well-established:

      A weight of the evidence claim concedes that the evidence is
      sufficient to sustain the verdict, but seeks a new trial on the
      ground that the evidence was so one-sided or so weighted in
      favor of acquittal that a guilty verdict shocks one’s sense of
      justice. Commonwealth v. Widmer, 560 Pa. 308, 318–20,
      744 A.2d 745, 751–52 (2000); Commonwealth v. Champney,
      574 Pa. 435, 443–44, 832 A.2d 403, 408–09 (2003). On review,
      an appellate court does not substitute its judgment for the finder
      of fact and consider the underlying question of whether the
      verdict is against the weight of the evidence, but, rather,
      determines only whether the trial court abused its discretion in
      making its determination. Widmer, 560 Pa. at 321–22, 744
      A.2d at 753; Champney, 574 Pa. at 444, 832 A.2d at 408.

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,

134 S.Ct. 1792 (U.S. 2014).

      In denying Wolf’s post-trial motions, the court did not specifically

address the weight claim, but focused on the sufficiency issue, finding “there

was ample evidence to support the verdict of the fact-finder on all counts.”

N.T., 3/19/2014, at 2. Although the trial court did not address the weight

claim in its Rule 1925(a) opinion or state its specific reasons for denying

Wolf’s weight claim in its order addressing his post-sentence motions, the

fact that the motions were denied substantiates that the trial court did not

believe that the jury’s verdict “shocked one’s sense of justice.” Lyons, 79


                                    - 13 -
J-S34021-15


A.3d at 1067.       See Commonwealth v. Upshur, 764 A.2d 69, 73 (Pa.

Super. 2000) (en banc), appeal dismissed as improvidently granted, 782

A.2d 538 (Pa. 2001) (holding weight claim was still reviewable even where

the trial court did not specifically address the claim but denied the post-

sentence motion).

       Moreover, we agree with the court’s ultimate determination.       While

Wolf may have presented the defense that he was under duress at the time

of the incident, the jury was free to reject to that notion. Indeed, while Alan

may have previously threatened Wolf, Wolf did not present evidence that

Alan was present on October 31, 2011, when he fired the weapon in front of

Hippensteel.     Moreover, Wolf admitted he was not allowed to possess a

firearm, and yet, even with this story of holding it for a friend, he still

possessed the gun. Wolf asks this Court to reweigh the evidence; however,

we decline to do so.       As our Supreme Court has made clear, we may not

reweigh the evidence and substitute our judgment for the trial court’s

decision. See Lyons, supra. Therefore, Wolf’s weight claim fails.7

       Judgment of sentence affirmed.




____________________________________________


7
    Wolf also had raised the issue of sufficiency of the evidence in his
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
However, in his brief he withdraws this claim.



                                          - 14 -
J-S34021-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2015




                          - 15 -
