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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                    1       IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                           Appellee

                      v.

KENDRITH J. JONES

                           Appellant                        No. 515 MDA 2016


             Appeal from the Judgment of Sentence March 9, 2016
               In the Court of Common Pleas of Dauphin County
                Criminal Division at No: CP-22-CR-006709-2014

BEFORE:     LAZARUS, STABILE, and DUBOW, JJ.

MEMORANDUM BY STABILE, J.:                                     FILED MAY 24, 2017

        Appellant,   Kendrith   J.   Jones, appeals      from the March 9, 2016

judgment of sentence entered          in the Court of Common Pleas of Dauphin

County ("trial court") sentencing Appellant to      a   period of incarceration of five

to ten years for persons not to possess, use, manufacture, control, sell or

transfer firearms.' Upon review, we affirm.

        The trial court summarized the factual history of the matter as follows.

              Corporal McGarrity of the Harrisburg Police Department
        was on patrol around 1:00 am. in the Allison Hill section of
        Harrisburg on October 31, 2014. Allison Hill is a high drug and
        crime area of Harrisburg City.

               While on patrol, McGarrity noticed a vehicle with a non-
        functioning driver's side taillight. He followed the vehicle for a


'   18 Pa.C.S.A. § 6105.
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        while and initiated a traffic stop once other units were nearby.
        Appellant took about a block and a half to pull over, despite
        there being plenty of opportunity to pull over prior to that.

              McGarrity did not approach the vehicle immediately as he
        was waiting for back up, but he did observe Appellant, seated in
        the driver's seat, moving around a lot. Appellant's shoulders
        were moving up and down as if he were manipulating something
        in his lap.   His left shoulder also dipped down as if he was
        reaching underneath the seat.          These movements raised
        McCarty's [(sic)] suspicions, and created safety concerns.

              McGarrity acknowledged that the movements could have
        been [Appellant] looking for proper documentation, but they
        were excessive and of such long duration that red flags were
        raised. [Appellant] had a freshly lit cigarette in his hand when
        McGarrity approached. He was visibly shaking and was unable
        to provide his license. The vehicle was registered to an Amber
        Uber. [Appellant] provided his name and date of birth.

               McGarrity did warn the other officers about the movements
        he had seen because it was enough movement to raise his
        suspicions and he wanted to warn them. McGarrity ran the
        information and confirmed that [Appellant] had a valid license.
        He then returned to the car and notified [Appellant] about the
        faulty taillight. He did not issue a ticket.
              McGarrity returned to his car but then called out to
        [Appellant] who had his ignition on and was ready to leave.
        [Appellant] responded and McGarrity re -approached. McGarrity
        explained that it was a high -crime area late at night and he had
        seen movements that raised his suspicions and he wanted to
        make sure nothing was amiss.

             He asked   [Appellant] if he had anything on his person or
        the vehicle and for consent to search. [Appellant] indicated
        consent to search his person and exited the vehicle. A pat down
        revealed nothing illegal on his person. At this point, McGarrity
        asked for permission to search the vehicle which was granted by
        [Appellant] ushering him towards the vehicle. He asked the
        occupants to step out and they did, but neither consented to a
        search. They stood behind the vehicle with the other officers.

              McGarrity leaned into the driver's seat with his flashlight
        on and saw an empty cloth holster on the floor. He informed the

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        other officers and they searched the passengers who had
        nothing on their persons. He then leaned in further and saw the
        grip of a weapon sticking out from underneath the driver's seat.

              He retrieved the weapon and detained        [Appellant] who
        indicated that his girlfriend, Amber Uber, the car owner, owned a
        gun, but he did not. When he initially observed the gun, the
        slide was forward indicating that it was loaded. The gun, a SIG
        Sauer P938, is a 9 millimeter semiautomatic gun. This particular
        firearm had a laser on it to help acquire the target. This is not
        standard with the type of firearm, but it can be purchased as an
        add-on. It was registered to Amanda Uber, Appellant's girlfriend
        and the mother of his son.

             Based on his criminal history, Appellant was not permitted
        to carry a firearm.     Appellant has a prior conviction for
        possession with intent to deliver crack cocaine.  Immediately
        following testimony regarding Appellant's prior conviction, the
        [trial court] cautioned the jury as follows:
             And as   a cautionary instruction to you, ladies and
             gentlemen, for purposes of proving its case
             regarding person not to possess a firearm, the
             Commonwealth introduced the certified record as
             well as the testimony of Detective Heffner.

             You may consider the [Appellant's] prior offense only
             as evidence to establish the prior conviction element
             - and you will hear the elements as I go through
             them when I give you my final instructions - that
             one of the elements is that they had to be convicted
             of an enumerated offense, the offense of possession
             with intent to deliver a controlled substance, which
             you learned through the stipulation. You may not
             consider it as evidence of the [Appellant's] bad
             character or general propensity to commit any
             crimes.

               The gun was legally sold to Uber by Stephen Silcox, a
        friend of Appellant's on October 3, 2014. Appellant had spoken
        to Silcox about Uber purchasing a gun and was present for the
        transaction.

              Uber testified and confirmed that the gun and holster were
        hers. She did not know how many bullets the gun held, nor was

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        she certain if the gun had a safety. Uber was not sure if it was a
        semiautomatic or automatic firearm; she did not know if the first
        shot was a single shot action or double action - in fact she
        testified she did not even know what that meant. Uber did not
        know how to load the gun. She did not believe that the gun has
        a flashlight or laser or any other special features.

              Uber kept the gun on top of a large hutch in her house to
        keep it away from the kids. She had previously taken it to her
        aunt's house, but on trick or treat night she moved it to her car
        so that no one would take it.

              Uber threw the gun under the driver's seat of her car that
        evening. Later that night, Appellant was given permission to
        take her car to pick up a friend. She was half asleep when she
        gave him permission and she forgot to tell him about the gun
        under the driver's seat. She testified that Appellant could not
        have known that the gun was in the car as she had not told him
        about it being there.

Trial Court Opinion, 5/11/16, at 2-5 (citations omitted).

        Following these events, Appellant was charged with persons not to

possess, use, manufacture, control, sell or transfer firearms. Appellant filed

an omnibus motion on May 6, 2015, which contained a motion to suppress.

Following   a    hearing on July 17, 2015, the trial court denied Appellant's

omnibus motion. On November 2, 2015, Appellant raised            a   motion in limine

seeking to bifurcate the charge of persons not to possess firearms based

upon the elements of the offense.            The trial court denied the motion the

same date. A jury trial was held from November 3-4, 2015, after which the

jury was unable to reach     a   verdict and the trial court declared   a   mistrial. A

second   jury trial was held     on January 13, 2016, after which Appellant was

found guilty of persons not to possess firearms.         The trial court sentenced

Appellant on March 9, 2016, to           a    period of 5-10 years' incarceration.

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Appellant filed   a   timely post -sentence motion challenging the weight of the

evidence on March 15, 2016. The trial court summarily denied the motion

on March 17, 2016.

        Appellant filed   a   timely notice of appeal on March 31, 2016. On April
21, 2016, the trial court directed Appellant to file         a   concise statement

pursuant to Pa.R.A.P. 1925(b). Appellant complied with this order and filed

his concise statement on May 5, 2016.          The trial court issued two opinions

pursuant to Pa.R.A.P. 1925(a), one by the Honorable Deborah          E.   Curcillo2 on

May 11, 2016, and one by the Honorable William T. Tully on May 24, 2016.3

        Appellant raises four questions for review, which we quote verbatim.

        I.    Whether the [t]rial [c]ourt erred in denying Appellant's
              [m]otion to [s]uppress [e]vidence where police lacked
              reasonable suspicion or probable cause to conduct an
              investigative detention after Appellant was told he was free
              to go, in violation of Article I, Section 8 of the
              Pennsylvania Constitution and the Fourth Amendment to
              the United States Constitution.

        II.   Whether the trial court erred in denying Appellant's [p]ost-
              [s]entence [m]otion where the verdict was against the
              weight of the evidence so as to shock one's sense of
              justice where the Commonwealth never showed, inter alia,
              that [Appellant] actually possessed or knew of the
              presence of the firearm for which he was convicted?




2  The Honorable Deborah E. Curcillo presided over Appellant's second jury
trial and addressed all related issues in her 1925(a) opinion.
3The Honorable William T. Tully presided over Appellant's omnibus pre-trial
motion and address all related issues in his 1925(a) opinion.



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        III.   Whether the Commonwealth failed to present sufficient
               evidence to sustain Appellant's convictions where the
               Commonwealth did not prove that Appellant possessed the
               firearm or knew of its presence in the vehicle?
        IV.    Whether the trial court erred in denying Appellant's
               request to bifurcate the charge of persons not to possess a
               firearm where the admission of Appellant's prior criminal
               charge was unduly prejudicial?

Appellant's Brief at 8.

        Appellant's first argument   is   that the trial court erred when it denied
his motion to suppress the vehicle stop. When reviewing an order denying a

motion to suppress evidence,

        An appellate court may consider only the Commonwealth's
        evidence 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 record supports the factual findings of
        the trial court, the appellate court is bound by those facts and
        may reverse only if the legal conclusions drawn therefrom are in
        error. However, it is also well settled that the appellate court is
        not bound by the suppression court's conclusions of law.

Commonwealth v. Nguyen, 116 A.3d 657, 663-64                    (Pa. Super.     2015)

(citations omitted).      At the conclusion of the suppression hearing, the trial

court made the following findings.

        After reviewing the cases, and the Nguyen case isn't necessarily
        on point. The first distinguishing factor would be in Nguyen the
        individual searched was the passenger of the vehicle after the
        driver of the vehicle gave permission to search the car.    .   .   .




        After saying that you're free to leave the officer reengaged in
        each of those cases,          confronting the individual with
        inconsistencies, almost like an interrogation. And the courts in
        those cases using the totality of the circumstances, balancing the
        statement you're free to leave with the other attendant
        circumstances which would leave a reasonable person to believe

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        that the statement you're free to leave would [not] necessarily
        be controlling .   .   .   .




        The Strickler[4] case    lays out the basis that it's a mere
        encounter absent something that escalates it into a [quasi -
        custodial] circumstance. In this case the officer's testimony was
        very clear. That after he said he was free to leave, began to
        walk away, and [Appellant] started his vehicle, was prepared to
        leave and the officer reengaged in conversation.             That
        conversation didn't confront him with inconsistencies, didn't
        confront him about his observed furtive movements or the
        nervousness but simply talked about the neighborhood and then
        [asked for his] permission to search.

        I think under the totality of the circumstances as they're laid
        before me I have to take the holding of [Strickler], the
        Supreme Court case as controlling because it's distinguished      .   .   .


        . So under these circumstances I'm going to have to deny the
        motion to suppress.

Trial Court Opinion, 5/24/16, at 9 (quoting N.T. Suppression Hearing,

7/17/15, at 28-29).
        In   Strickler, our Supreme Court noted    a   list of non-exclusive factors

relevant to whether an individual has been seized.         Strickler, 757 A.2d at
898-99. These include: (1) the presence or absence of police excesses; (2)

physical contact or police direction of     a   citizen -subject's movements; (3)

demeanor of the police officer; (4) location of the confrontation; (5) manner

of expression of the police officer; (6) content of the interrogatories or

statements; (7) existence and character of the initial investigative detention;

(8) the degree of coercion; (9) the degree to which the transition between



4   Commonwealth v. Strickler, 757 A.2d 884         (Pa. 2000).




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the traffic stop/investigative detention and the subsequent encounter can be

viewed as seamless; and (10) whether there was an express admonition to

the effect that the citizen -subject is free to depart.     Id.
        In Nguyen, the trooper completed the first lawful detention/traffic

stop and informed the driver he was free to go; however, "[a]fter walking

toward his cruiser, the trooper turned around and returned to the driver's

vehicle, approached the driver, and began to ask the driver additional

questions."      Nguyen, 116 A.3d at 668-69.          The trooper asked questions

about his nervousness, what he was doing, and his relationship with the

passenger.    Id. at 669. During this   line of questioning, the driver remained

outside of his vehicle.   Id. at 668. Moreover, "when             a   person is standing

outside rather than inside his vehicle, he      is less   likely to believe that he can

actually leave the area by entering the car and driving away." Id. (citations

omitted).        The Nguyen    Court found that under the totality of the

circumstances, the second stop was an investigative detention without

reasonable suspicion and therefore, the stop should have been suppressed.

        In the matter sub judice, the trial court found that Appellant was

informed he was free to leave, entered his vehicle, and started the engine,

before Corporal McGarrity reengaged.             Moreover, the corporal did not

question Appellant, he was polite, and he simply informed Appellant that the

area was dangerous before he asked to search the vehicle. Accordingly, we

find that based upon the totality of the circumstances, the trial court

properly found that the Appellant was free to leave the second encounter as

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it was not an investigative detention.          Accordingly, the trial court properly

denied Appellant's motion to suppress. Appellant's claim fails.

        Appellant's next argument   is a   challenge to the weight of the evidence.

        Appellate review of a weight claim is a review of the exercise of
        discretion, not of the underlying question of whether the verdict
        is against the weight of the evidence.     Because the trial judge
        has had the opportunity to hear and see the evidence presented,
        an appellate court will give the gravest consideration to the
        findings and reasons advanced by the trial judge when reviewing
        a trial court's determination that the verdict is against the weight
        of the evidence. One of the least assailable reasons for granting
        or denying a new trial is the lower court's conviction that the
        verdict was or was not against the weight of the evidence and
        that a new trial should be granted in the interest of justice.

Commonwealth v. Widmer, 744 A.2d 745, 753                        (Pa. 2000) (citations

omitted).    "The weight of the evidence        is   exclusively for the finder of fact,

which is free to believe all, part or none of the evidence, and to assess the

credibility of the witnesses.       An appellate court cannot substitute             its

judgment for that of the jury on issues of credibility." Commonwealth v.
Palo, 24 A.3d 1050, 1055 (Pa. Super. 2011).
        Appellant is challenging whether the weight of the evidence insofar as

he constructively possessed the firearm in question.

        Constructive possession is a legal fiction, a pragmatic construct
        to deal with the realities of criminal law enforcement.
        Constructive possession is an inference arising from a set of
        facts that possession of the contraband was more likely than not.
        We have defined constructive possession as conscious dominion.
        We subsequently defined conscious dominion as the power to
        control the contraband and the intent to exercise that control.
        To aid application, we have held that constructive possession
        may be established by the totality of the circumstances.


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Commonwealth v. Hopkins, 67 A.3d 817, 820                  (Pa. Super. 2013) (quoting

Commonwealth v. Brown, 48 A.3d 426, 430                           (Pa.   Super.   2012)).

Furthermore, "[i]llegal     possession       of    a   firearm    may    be   shown      by

constructive possession."     Commonwealth v. Cruz,                21 A.3d 1247, 1253

(Pa. Super. 2011) (citing    Commonwealth v. Parker, 847 A.2d 745, 750
(Pa. Super. 2004)).

        The trial court found that Appellant was driving the vehicle, the firearm

was located      underneath the driver's seat, and while the firearm was

registered to Amanda Uber, she was unfamiliar with the specifications of the

firearm, and she was unaware of how to load the weapon. Additionally, the

trial court found that the gun holster was visible to the driver, and the grip

of the gun was visible under the driver's seat. Thus, Appellant, as the driver

of the vehicle, would have seen the firearm when he entered the vehicle.

Therefore, we find that the trial court did not abuse its discretion when it

denied Appellant's weight of the evidence claim.

        Appellant's third argument   is   that the Commonwealth failed to present

sufficient evidence that Appellant possessed the firearm or knew of its

presence in the vehicle. Our standard of review of           a   sufficiency challenge   is

well established.

        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

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        circumstances established by the Commonwealth need not
        preclude every possibility of innocence. Any doubts regarding a
        defendant's guilty 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 an
        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. Phillips, 93 A.3d 847, 856           (Pa. Super. 2014) (quoting

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

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

2003))).    In order to be convicted on   a   charge of persons not to possess

firearms, the Commonwealth must prove two elements: possession, and                a

previous conviction for an enumerated offense. Appellant is not challenging

his previous conviction, he is only challenging whether he constructively

possessed the firearm in question.        As discussed above,         "[c]onstructive
possession is an inference arising from   a   set of facts that possession of the

contraband was more likely than not." Hopkins, 67 A.3d at 820 (quoting

Brown, 48 A.3d at 430).
        In the matter sub judice, the gun was found in     a   holster underneath

the driver's seat of the car Appellant was driving.      Corporal McGarrity saw

Appellant reaching underneath his seat after he pulled over.            Viewing the

evidence in the light most favorable to the Commonwealth, Appellant was in
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constructive possession of the firearm located beneath his seat in the vehicle

he was driving. Appellant's sufficiency claim fails.

        Appellant's final argument     is   that the trial court erred when it failed to
bifurcate the trial based on the elements of person not to possess firearms.

Essentially, Appellant is arguing that there should be separate trials for each

element of the offense because the evidence of his prior conviction                         is

inherently prejudicial. Appellant cites no authority for this proposition other

than cases       where    a   motion    to     sever       was   granted   in   multi-count
indictments.     See Commonwealth v. Jones, 858 A.2d 1198 (Pa. Super.

2004); Commonwealth v. Carroll, 418 A.2d 702 (Pa. Super. 1980).                            In

Commonwealth v. Jemison, 98 A.3d 1254, 1262                        (Pa. 2014), our Supreme

Court held that    a   defendant does not suffer "unfair prejudice merely by the

admission into evidence of his or her certified conviction of                    a   specific,

identified, predicate offense, which has been offered by the Commonwealth

to prove the prior conviction element of               §   6105." Jemison, 98 A.3d at
1262. Therefore, Appellant's argument            is   meritless.




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        Judgment of sentence affirmed.

        Judge Dubow joins this memorandum.

        Judge Lazarus files   a   concurring statement in which Judge Dubow

        joins.

Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 5/24/2017




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