J-S53010-14

NON-PRECEDENTIAL DECISION             SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                  Appellee                :
                                          :
             v.                           :
                                          :
ANTHONY MOYER,                            :
                                          :
                  Appellant               : No. 1711 WDA 2013

             Appeal from the Judgment of Sentence June 4, 2013,
                  Court of Common Pleas, Cambria County,
              Criminal Division at No. CP-11-CR-0000262-2012

BEFORE: DONOHUE, OLSON and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED AUGUST 26, 2014

                                                  June 4, 2013 judgment of

sentence entered by the Cambria County Court of Common Pleas following

his conviction of persons not to possess firearms and possessing an

instrument of crime.1   Specifically, Moyer challenges the sufficiency of the

evidence to convict him of persons not to possess firearms and the denial of

his motion to suppress evidence obtained during the search of his home.

We affirm.

       The suppression court2 provided the following summary of the facts of

this case:

             On January 23, 2012, Portage Police Chief Edward P.


1
    18 Pa.C.S.A. §§ 6105(a)(1), 907(a).
2
  The Honorable Patrick T. Kiniry presided over the suppression hearing.
The Honorable Linda R. Fleming presided over the trial.


*Retired Senior Judge assigned to the Superior Court.
J-S53010-14




          white 930 Caldwell Avenue mobile home.[FN]1 To
          accomplish this task, Chief Miller submitted both a
          search warrant application and an affidavit of
          probable cause to District Judge Richard W. Varner.
          The affidavit of probable cause stated:

              Your Affiant is Chief Edward P. Miller, with over
              34   years     law    enforcement    experience,
              currently employed by Portage Borough Police
              Department.

              On 01-22-11,[FN]2 Off. Donald Wyar was on
              duty, in full uniform, utilizing a marked patrol
              car, for Portage Borough Police Department.
              Off. Jeffrey Russell was on duty for Summerhill
              Twp. Police Dept., in full uniform, also in a
              marked police unit. Off. Wyar was dispatched
              for an unwanted person refusing to leave

              B residence. Off. Wyar called Off. Russell for
              assistance. Upon t                 sic] arrival,
              Harriett Kleman stated Anthony Moyer was
              pounding on her door, refusing to leave,
              stating he was going to kick her ass.

              Both Off. Wyar and Off. Russell proceeded to

              knocking on the door. Anthony Moyer refused
              to open the door, but had a conversation with
              Off. Wyar through the door, which had a
              window. Off. Wyar was looking through the
              window talking to Moyer, who attempted to
              entice and provoke Off. Wyar inside, stating

              Moyer then produced a black handgun and
              pointed it up to the window, inches away from
              and directly at the face of Off. Wyar. Off. Wyar

              Officers formed a perimeter securing the
              premises while additional assistance was
              summoned. Moyer eventually walked outside



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              with a phone in his hand, and was subdued by
              officers after deployment of a Taser. Moyer did
              not have the gun on his person when taken
              into custody. Moyer stated he hid the gun
              behind the dryer, but police are going to have
              to get a search warrant to get it.

              Due to the ease in which a handgun can be
              concealed or disposed of, a night time [sic]
              search is requested.



          At 1:00 AM on January 23, 2012, District Judge

          request. The subsequent search and seizure bore
          three firearms: (1) a HiPoint C9 9mm pistol, (2) a
          Colt 0.32 caliber automatic pistol, and (3) a
          Springfield 39A 410 bolt shotgun. Receipt of Seized
          Property at 1. The Portage Police Department

          shotgun behind his bedroom door. Of the three
          firearms, only the shotgun was unloaded. Next, on
          March 30, 2012, the Commonwealth filed five
          criminal charges against Moyer: (1) 18 Pa. C.S.A.
          §2702(a)(6) aggravated assault, (2) 18 Pa. C.S.A.
          §2705 recklessly endangering another person, (3) 18
          Pa. C.S.A. §2706(a)(1) terroristic threats, (4) 18 Pa.
          C.S.A. §2701(a)(1) simple assault, and (5) 18 Pa.
          C.S.A. §6105(a)(1) prohibition against possessing a
          firearm as a result of a prior felony. In response to

          Motion to Suppress.

          More specifically, Moyer alleged multiple suppression
          claims:[FN]3

          1. Stale Information:




                                   affidavit of probable [cause]



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              contained stale information, the search warrant is
              invalid and the Court should suppress any
              evidence obtained pursuant to it.

          2. Lack of Probable Cause for Search Warrant
                                    Officers Wyar and Russell
             lacked authorization from either the complaint
             they investigated or the facts in the affidavit of
             probable cause to (1) search Moyer's home and
             (2)   arrest   him.   Therefore,   because     the
             Commonwealth lacked probable cause to search
             Moyer's home and arrest him, the search warrant
             is invalid and the Court should suppress any
             evidence obtained pursuant to it.

          3. Criminal Trespass:
             Officers Wyar and Russell to enter his home
             converted the officers into trespassers when they
             remained on his porch. Consequently, because
             the Commonwealth criminally trespassed on
             Moyer's property, the search warrant is invalid
             and the Court should suppress any evidence
             obtained pursuant to it.

          4. Omission of Particular Facts: The affidavit
             remained    silent   regarding    whether      any
             circumstance existed that prohibited Moyer from
             possessing a pistol firearm. Thus, because the
             Commonwealth failed to include these specific
             facts in their affidavit of probable cause, the
             search warrant is invalid and the Court should
             suppress any evidence obtained pursuant to it.

          5. Defense of Self-in-Dwelling:
             pistol (i.e., first enticing Officer Wyar into his


                             face, which was inches away) was


              defended himself in his dwelling, the search
              warrant is invalid and the Court should suppress
              any evidence obtained pursuant to it.



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            ____________________________
            [FN]1
                  The search warrant application described the
            premises to be searched as a:

               white mobile home with tan trim located
               assigned [sic] Rear 930 Caldwell Ave., with a
               rear entrance door at the north side, and front
               main entrance door on the south side with a
               wooden porch covered by a roof, the west side
               of the trailer bordering Blair St., said trailer
               located at the northernmost portion of property
               designated 930 Caldwell Ave.

                                                       1.
            [FN]2

            confirms the same date: DATE(S) of VIOLATION: 01-
            22-
            [FN]3



            interpretation of what is at the heart of those claims.

Suppression Court Opinion, 9/27/12, at 1-4 (record citations and footnote 4

omitted).



hearing on September 27, 2012.3 In the interim, on September 14, 2012,



possess firearms from the remaining charges.           Following trial, a jury

convicted him of persons not to possess firearms on April 9, 2013.

     On June 4, 2013, the Commonwealth and Moyer entered into a plea

agreement whereby the Commonwealth would reduce the aggravated

3
  In his motion to suppress, Moyer stated that he did not believe a hearing
was necessary. Omnibus Pretrial Motion for Relief, 9/7/12, at ¶3.


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assault charge to possessing an instrument of crime, to which Moyer would

plead nolo contendere.    The Commonwealth further agreed to nol pros all

remaining char

which he stood convicted became final.           Moyer also agreed to pay

restitution, but there was no other agreement as to his sentence. The trial

                                                               urrent terms of

six months of probation for each conviction.

     Moyer    filed   post-sentence   motions   challenging,   inter   alia,   the

sufficiency and weight of the evidence to support his conviction of persons

not to possess firearms. The trial court took the motion under advisement,

and ultimately denied relief on October 8, 2013.      Moyer filed a notice of



a concise statement of errors complained of on appeal.

     Moyer raises two issues for our review:

        1. Whether the trial court erred in failing to enter a
           judgment of acquittal for the offense of persons not
           to possess firearms inasmuch as the evidence did
           not suffice to prove the identity of [Moyer] as the
           same person convicted of a predicate enumerated
           offense?

        2. Whether the suppression court erred in failing to
           suppress the evidence seized pursuant to a search
           warrant where the affidavit for the search warrant
           failed to state probable cause due to the lack of the
           requisite specificity and other omissions therein?




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Whether sufficient evidence exists to support the verdict is a question of

law; our standard of review is de novo and our scope of review is

Commonwealth v. Murray

determine whether the evidence admitted at trial, and all reasonable

inferences drawn therefrom, when viewed in a light most favorable to the

Commonwealth      as   verdict   winner,    support   the   conviction   beyond   a

                       Commonwealth v. Mobley, 14 A.3d 887, 889 (Pa.

Super. 2011).

witnesses and the weight of the evidence produced is free to believe all, part

or none of the evidence. Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa.

Super. 2014).

      The Pennsylvania Crimes Code defines persons not to possess

firearms, the crime at issue, as follows:

            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.A. § 6105(a)(1).         It is uncontested that the offense the

Commonwealth alleged Moyer to have been convicted of is enumerated in

section 6105(b). See 18 Pa.C.S.A. § 6105(b) (including, inter alia, unlawful




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J-S53010-14


restraint pursuant to 18 Pa.C.S.A. § 2902 in the list of enumerated

                                 -12. It is also uncontested that Moyer was in

possession of a firearm. See

finding that the Commonwealth proved beyond a reasonable doubt that he

was the person previously convicted of an enumerated offense, rendering his



at 11.

         The trial court found that the evidence presented   that a person who

shares the same first, middle, and last name as Moyer and lives at the same

address as does Moyer        was sufficient to prove that Moyer was the person

convicted of one of the enumerated offenses prohibiting him from possessing

a firearm.     Trial Court Opinion, 1/6/14, at 3 (citing Commonwealth v.

Chandler, 346 A.2d 579, 581-82 (Pa. Super. 1975)).           Moyer asserts that




because they failed to present such evidence, his conviction is improper.

                               Commonwealth v. Boyd, 344 A.2d 864, 869

(Pa. 1975); Commonwealth v. King, 316 A.2d 878, 880 n.4 (Pa. 1974);

Commonwealth v. Payne, 463 A.2d 451, 453-54 (Pa. Super. 1983)).

         We find the cases relied upon by Moyer do not stand for the

proposition that the prosecuting officer from the prior conviction must testify



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to permit a conviction under section 6105 as Moyer contends.       In Payne,

the appellant was arrested, ch

Payne

                                                         Id. at 453-54. The

                                                           mony to establish

that Rickey Payne and John Vargas were the same person.

      On appeal, the defendant argued that the evidence of his prior arrest



taken to ameliorate its possible influence on the jury towards the appellant

                                                                  Id. at 453.



necessary to establish an element of the offense charged, i.e. appell



inflammatory. Payne, 63 A.2d at 454-55 (emphasis omitted).

      Boyd and King

to impeach his credibility.   Our Supreme Court s

for the use of a record of prior convictions to impeach the credibility of a

criminal defendant include, [i]nter alia, clear proof, (1) that such record is

authentic and accurate, and (2) that the present defendant is the same

pe                                                       Boyd, 344 A.2d at

868; see also King, 316 A.2d at 879. In both cases, the Court found that

solely presenting evidence that the appellants, Charles Boyd and Daniel



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King, shared the same name as a person who had previously been convicted

of several crimes was insufficient to establish that the appellant was the

person who had been convicted of the crimes.        King, 316 A.2d at 880;

Boyd, 344 A.2d at 869. In so holding, the Court in both cases relied upon

its prior decision in Commonwealth v. Young, 211 A.2d 440 (Pa. 1965), in

which the Supreme Court stated:

           The importance of evidence establishing prior
           convictions of serious crimes for impeachment
           purposes cannot be overemphasized. It can, and
           often does, dest
           significantly influences the outcome of the trial. In
           view thereof, it appears to us that the identity of the
           person should be established by something more
           than mere similarity in name. The name Young is not
           uncommon; in fact, a perusal of the current
           Philadelphia city telephone directory manifests

           circumstances, we conclude that it was prejudicial
           and reversible error to permit the jury to make such
           an important finding on the basis of inconclusive
           evidence.

Id. at 441; see King, 316 A.2d at 880; Boyd, 344 A.2d at 868-69.

     In the case at bar, Moyer was not previously arrested using a different

name like the appellant in Payne, and thus the need for additional evidence

to prove his identity was unnecessary.      See Payne, 463 A.2d at 454



                                                                     § 6105

                                    King and Boyd, the Commonwealth




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was the person who had previously been convicted of a crime.             The

Commonwealth additionally showed that they shared the same middle initial

and the same address.4

Exhibit 1. We agree with the trial court that the Chandler case supports a

finding of evidentiary sufficiency.

      In Chandler, the Commonwealth sought to impe

credibility with the use of a prior conviction of forgery. Chandler, 346 A.2d

at 581. The Commonwealth presented the testimony of the clerk of courts

regarding the criminal record of Lawrence A. Chandler, a/k/a Bubba

Chandler. The clerk testified that he could not state that the appellant was

in fact the prior convict in question. Id. Following his conviction, Chandler

                                                               ]t is beyond

question that in this Commonwealth the mere similarity of names, even in

the absence of contradiction, is insufficient to prove that the record in

                                               Id.   Differentiating the case

from that of Young, we stated:



4
   The Commonwealth seeks for us also to include as evidence supporting
the conviction that Moyer and the prior convict shared the same social

trial, this information was included in the presentence investigation report,
which the Commonwealth asserts we can consider in our review of a

claims. Id. at 5. We disagree that this is permissible, because, as stated
above, our review is                                         at trial
determine whether there is sufficient evidence to support the conviction
beyond a reasonable doubt. Mobley, 14 A.3d at 889 (emphasis added).


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            In the present case, somewhat more than identity
            with a common name in an area the size of
            Philadelphia was shown. The name Lawrence
            Chandler is less likely to be repeated in the area of
            Washington, Pennsylvania, than the name of Thomas
            Young is in Philadelphia. Also, the Lawrence A.

            Washington address and the appellant had testified
            that he lived in the Washington area all his life. Most
            convincing, however, is the fact that the Lawrence
            Chandler with the criminal record was also known as


            name Lawrence Chandler, the Washington address at
            the time of the prior crime, and the unusual
            nickname is not so inconclusive of identity as to


Id. at 581-82 (footnote omitted).

      In the case at bar, Moyer shared the same first name, middle initial,

and last name as the prior convict. Both reside in Cambria County, which,

like Washington County, is unquestionably smaller than is Philadelphia.

Furthermore, Moyer and the prior convict shared the exact address, as

opposed to merely residing in the same county, as was the case in

Chandler.     Viewing the evidence in the light most favorable to the

Commonwealth as our standard of review requires, we find the evidence was

sufficient to convict Moyer of persons not to possess firearms in violation of

section 6105(a)(1).

      As his second and final issue raised on appeal, Moyer asserts that the

suppression court erred by failing to grant his motion to suppress the

evidence seized pursuant to the search warrant.     Our standard of review in



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addressing a challenge to the denial of a suppression motion is limited to

determining whet

by the record and whether the legal conclusions drawn from those facts are

             Commonwealth v. Thompson, 93 A.3d 478, 484 (Pa. Super.

2014) (citation omitted).      We are not bound by the trial

conclusions, but must apply the law to the supported facts found by the trial

court.    Id.

review. Id.

         Moyer asserts two grounds for finding error. First, he states that the

warrant failed to provide an address where the crime allegedly occurred or

the town/municipality of the location to be searched, rendering the warrant



                                      ion.5

suppress reveals that this issue was not included therein.       As such, it is

waived. See Commonwealth v. Richter, 791 A.2d 1181, 1186 (Pa. Super.

2002) (en banc                                                            n to

suppress results in waiver of that issue on appeal); Pa.R.Crim.P. 581(D)




5
   In its written opinion pursuant to Pa.R.A.P. 1925(a), the trial court relies
upon the written opinion authored by the suppression court in support of
                                                                          See
Trial Court Opinion, 1/6/14, at 7.


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J-S53010-14


sought to be suppressed, the grounds for suppression, and the facts and



      In his second argument in support of his claim, Moyer asserts the

following:

             Furthermore, since the incident that Officer Wyar
             was investigating, i.e.
             pounding on her door, refusing to leave, stating he
                                              sic] amounted to no
             more than a summary offense and certainly did not
             authorize an arrest without a warrant pursuant to
             Pa.R.Crim.P. 502(2), Officer Wyar was a
             trespasser, a peeping tom, after Anthony Moyer
                                               sic] and, from that
             point, the plain view doctrine did not avail. Thus,
             the events that were described thereafter in the
             affidavit cannot be characterized as evidence of a
             crime, but rather described an individual acting
             lawfully within his residence with a trespasser at the
             door.

                    -19. The suppression court found that the police were not



involvement in a reported crime. Suppression Court Opinion, 9/27/12, at 9.

The police knocked on the door, and Moyer refused to open it. Id. They did

not attempt to search the home or seize of any property without a warrant.

Id. Furthermore, the court found that Moyer did not tell the police to leave

the premises at any time, and instead engaged them in conversation

through his door. Id.




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property[,] which would allegedly render any evidence obtained through the

subsequent search warrant                    Id.

      At the outset, we fail to see how this argument relates in any way to

the issue raised on appeal, i.e., the warrant failed to state probable cause to



               See

argument does relate to the issue he preserved for appeal, he cites no

authority in support of his bald assertion that his failure to open his door to

the police renders the police officers trespassers, which in turn permits him

to brandish a gun and threaten them. Indeed, as stated by the suppression

court, there is nothing in the record that supports a finding that the officers

trespassed on his property or in any way behaved unlawfully.           See 42



the power and authority to enforce the laws of this Commonwealth or

otherwise perform the functions of that office anywhere within his primary

jurisdiction as to: (1) Any offense which the officer views or otherwise has

probable cause to believe was committed within his jurisdiction[; or] (2) Any

other event that occurs within his primary jurisdiction and which reasonably

requires action on the part of the police in order to preserve, protect or

defend persons or property or to otherwise maintain the peace and dignity of




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       The issuance of a constitutionally valid search warrant requires that

police provide the issuing authority with sufficient information to persuade a

reasonable person that there is probable cause to conduct a search, based

upon    information   that   is   viewed      in   a    common    sense   manner.

Commonwealth v. Housman, 986 A.2d 822, 843 (Pa. 2009). The issuing

authority must determine whether, given the totality of the circumstances

presented, there is a fair probability that evidence of a crime or contraband

will be found in a particular location. Id. The task of the reviewing court is

to ensure that the issuing authority had a substantial basis to conclude that

probable cause existed. Id.

       Our review of the request for a search warrant and its accompanying

affidavit of probable cause supports the facts as found by the suppression



role as the perpetrator in a reported crime.           Affidavit of Probable Cause,



                                                                               Id.

When Moyer exited his home and was arrested, he told the police that he hid

the gun behind his clothes dryer. Id.



police were investigating the crimes Moyer committed against Officer Moyer,

to wit, aggravated assault and recklessly endangering another person. See




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                                                                      18



he recklessly engages in conduct which places or may place another person




Moyer had committed these crimes and that evidence of the crimes   a gun

                                  See Housman, 986 A.2d at 843.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/26/2014




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