J-S40025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                     Appellee              :
                                           :
              v.                           :
                                           :
 AUSTIN SCOTT                              :
                                           :
                     Appellant             :       No. 1377 EDA 2017


           Appeal from the Judgment of Sentence March 17, 2017
            in the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0002374-2015


BEFORE:     LAZARUS, J., DUBOW, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 06, 2018

      Appellant, Austin Scott, appeals from the judgment of sentence imposed

following his bench trial conviction of two violations of the Uniform Firearms

Act, 18 Pa.C.S.A. § 6106 (firearms not to be carried without a license), and

18 Pa.C.S.A. § 6108 (carrying of firearms on public streets or public property

in Philadelphia prohibited). Specifically, Appellant challenges the denial of his

motion to suppress, and the sufficiency of the evidence. We affirm on the

basis of the trial court’s opinion.

      The trial court aptly describes the factual and procedural history of this

case. Therefore, we have no need to repeat them at length here. For the

convenience of the reader, we note briefly that Appellant was arrested

following an initially routine vehicle stop after the police officer observed him

throw something into the back seat of the vehicle. Appellant was the only
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40025-18


person in the car at the time. When the officer slid open the door of the van,

he observed a handgun on the floor between the driver’s seat and the second

row seats. Appellant claimed he had thrown a jack into the back seat. But

the jack was still on the floor of the front passenger seat.

        Appellant was convicted of the VUFA violations after a bench trial

following the denial of his motion to suppress. The court acquitted Appellant

of receiving stolen property.         On March 17, 2017, the court imposed a

sentence of not less than six months nor more than twenty-three months of

incarceration followed by three years of reporting probation for violating

section 6106, and three years of concurrent reporting probation for violating

section 6108. This timely appeal followed.1

        Appellant presents two questions on appeal:

              A. Was the evidence insufficient to support the guilty
        verdicts for VUFA-6106 and VUFA-6108, where [A]ppellant had no
        knowledge that a firearm was present in the vehicle he operated?

              B. Did the trial court err in denying [A]ppellant’s pretrial
        motion to suppress a firearm, as there was no reasonable
        suspicion nor probable cause to stop and then search the vehicle
        [A]ppellant operated, where the officer was not in a position to
        see the right tail-light at all, and where no marijuana was ever
        recovered despite the officer claiming a strong odor of burnt
        marijuana?

(Appellant’s Brief, at 7).




____________________________________________


1   Both Appellant and the trial court complied with Pa.R.A.P. 1925.

                                           -2-
J-S40025-18


      Appellant’s first claim challenges the sufficiency of the evidence. Our

standard of review is well-settled:

            We must 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 reasonable doubt. Where there
      is sufficient evidence to enable the trier of fact to find every
      element of the crime has been established beyond a reasonable
      doubt, the sufficiency of the evidence claim must fail.

            The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute our
      judgment for that of the fact-finder. The Commonwealth’s burden
      may be met by wholly circumstantial evidence and any doubt
      about the defendant’s guilt is to be resolved by the fact finder
      unless the evidence is so weak and inconclusive that, as a matter
      of law, no probability of fact can be drawn from the combined
      circumstances.

Commonwealth v. Mobley, 14 A.3d 887, 889–90 (Pa. Super. 2011) (citation

omitted).

      Our standard of review for a challenge to the denial of suppression is

also well-settled:

            Our 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, we are bound by these findings and may
      reverse only if the court’s legal conclusions are erroneous.




                                      -3-
J-S40025-18


Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010), cert. denied, 562

U.S. 832 (2010) (citation omitted).

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

applicable law and the well-reasoned opinion of the Honorable Michael E.

Erdos, we conclude that Appellant’s issues do not merit relief. The trial court

opinion comprehensively discusses and properly disposes of the questions

presented.    (See Trial Court Opinion, 12/08/17, at 3-6) (concluding: 1.)

evidence was sufficient to support VUFA convictions, where handgun landed

where police officer had just seen Appellant throw it; handgun was possessed

by Appellant without license on public streets of Philadelphia; and 2). motion

to suppress was properly denied where observing police had reasonable and

articulable suspicion that Appellant, who exhibited nervous and furtive

behavior, and the very strong odor of burnt marijuana, after tossing object

over shoulder to rear seat, warranted belief that the suspect was dangerous

and could gain immediate control of weapons.).

      Accordingly, we affirm on the basis of the trial court opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/6/18



                                      -4-
.                                                                                              Circulated 08/22/2018 09:50 AM




                                                                                                                        FILED
                IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                        FIRST JUDICIAL DISTRICT OF PENNSYLVANIA      DEC O 8 2017
                                 CRIMINAL TRIAL DIVISION        Office of Judic1Al (�A(�0rds
                                                                                                             Appeals/Pusi. fr ,a1


    COMMONWEAL TH OF PENNSYLVANIA                                I
                                                                     CP�S-lCR-0002374-2015 ':
                                                                 (
                                                                 I   CP-51-CR-0002374-2015 Comm.   v.   Scoll, Austin
                                                                 J                    Opinion
                             v.

                                                                           I
                                                                         II 1111111111111111111111
                                                                                 ?_05167�__101 . ··- --
                         AUSTIN SCOTT                                1377 EDA 2017

                                                  OPINION

    .
    ERDOS, J .                                                                          December 8, 2017

                              OVERVIEW AND PROCEDURAL HISTORY

              Austin Scott (hereinafter "Appellant") was arrested on December 13, 2014 and charged

    with Receiving Stolen Property and Violating the Uni form Firearms Act (hereinafter "VUF A")

    under 18 Pa.C.S.A. §6106 and §6108. On August 18, 2016, the Court found Appellant Not

    Guilty of Receiving Stolen Property and Guilty of VUFA §6106 and §6108. On March I 7, 2017,

    the Court imposed a sentence of six to twenty three months incarceration, credit for time served,

    followed by three years reporting probation for violating §6106, and three years reporting

    probation to run concurrent for violating §6108.

              Appellant filed a timely notice of appeal on April 18, 2017. A Statement of Matters

    Complained of on Appeal was filed on August 29, 2017. Appellant raises the following two·

    issues:

         I.   Whether sufficient evidence was presented to support guilty verdicts of the VUF A

              charges.

        11.   Whether the Court erred in denying Appellant's pretrial motion to suppress a firearm.
I,   •




                                                        FACTS

                 On the morning of December 13, 2014 at approximately 11 :30 a.m., Philadelphia Police

         Officers Sean Hart and Michael Copestick were on duty. Notes of Testimony C'N.T."), 08/18/16

         at 7, 35. Officer Hart was traveling eastbound on Church Lane when he observed a green 200 l

         Pontiac Montana van driven by Appellant fail to use a turn signal while turning eastbound onto

         Church Lane in violation of 75 Pa.C.S.A. § 3334(b).    & at 8. Officer Hart activated his lights and
         pulled Appellant over. & at 9. Officer Copestick arrived at the scene as Officer Hart exited his

         own vehicle. Id. at 8-9. As Officer Hart approached the driver-side window of the van, through

         the rear windshield he observed Appellant throw an unknown object behind his right shoulder

         and heard the object hit the floor. & at 9.

                 Officer Hart walked to the open driver-side window to talk to Appellant.    IsL. He first
         asked what the Appellant had thrown, to which Appellant responded he had thrown a car jack.

         Id. at I 0. However, Officer Hart saw the car jack sitting right next to Appellant on the floor and

         it appeared to be "very heavy." Id. The Officer then asked Appellant if he had a valid driver's

         license, to which Appellant responded that he did. lct__, As Appellant provided Officer Hart with

         his license and registration, he was "very nervous" and his hands were "very shaky." lct__, at 11.

         Officer Hart also noticed a very strong odor of burnt marijuana coming from inside the van. &

                Officer Hart then asked Appellant to step out of the vehicle.   & at 12. Officer Han
         proceeded to search the vehicle while Officer Copestick stood with Appellant. & Officer Hart

         opened the side door of the van and immediately saw a firearm sitting on the floor of the vehicle

         between the driver's scat and the middle seat. lct.,, at 12-13. Appellant was placed into custody

         after Officer Hart recovered the weapon, a 0.38 caliber handgun, from the vehicle. & at 37. A

         clear bag with an apple logo stamped on it containing eight live rounds was also recovered from




                                                                                                               2
the van. & Inside the clear bag were six 0.38 caliber rounds of ammunition and two 0.25 caliber

rounds of ammunition. & Additionally, the handgun was loaded with six live rounds. &

Appellant did not have a license to carry a firearm. & at 50.

         Neither Appellant nor any defense witnesses testified at the motion hearing or trial.

However, eight family members and lifelong friends of Appellant did appear in court and

vouched for his reputation as being peaceful, honest, and law abiding. uL at 52.

                                            DISCUSSION

    I.       MOTION TO SUPPRESS

         Appellant contends that the Court erred in denying his motion to suppress all physical

evidence and any observations made by the police officers. The motion was without merit and

properly denied by the Court.

         Where a motion to suppress has been filed, the burden is on the Commonwealth to

establish by a preponderance of the evidence that the challenged evidence is admissible.

Commonwealth v. De Mark, 800 A.2d 947, 952 (Pa. Super. 2002). It is the responsibility of the

suppression court, as a trier of fact, to determine the credibility of witnesses and the facts

pertaining to a motion to suppress evidence. Commonwealth v. Angel, 946 A.2d 115, 117 (Pa.

Super. 2008).

         In order for a police officer to effectuate a traffic stop in Pennsylvania the officer must

possess a reasonable and articulable suspicion of a vehicle code violation on the part of the

vehicle operator. 75 Pa.C.S.A. §6308(b); Commonwealth v. Long, 753 A.2d 272, 280 (Pa. Super.

2000). Here, Officer Hart had a reasonable and articulable suspicion of a vehicle code violation

when he saw Appellant fail to use his turn signal while turning eastbound onto Church Lane,

giving him the right to pull Appellant over. N.T. at 8. As he approached the vehicle, he observed



                                                                                                       ..,
                                                                                                       .J
Appellant throw an unknown object behind his right shoulder and heard the object hit the floor.

Id. at 9. Concerned for his own safety, the officer asked Appellant what he had thrown. Id. at 10.

Although Appellant responded that he had thrown a car jack, it was clear to the Officer that this "

was not possible because it was immediately next to Appellant and not behind him. & Officer

Hart then observed Appellant shakily hand over his license and paperwork in a nervous manner,

and also noticed a strong smell of marijuana emanating from the vehicle. & at 11.

        It has long been held that "the search of the passenger compartment of an automobile,

limited to those areas in which a weapon may be placed or hidden, is permissible if the police

officer possesses a reasonable belief based on 'specific and articulable facts which, taken

together with the rational inferences from those facts, reasonably warrant' the officers in

believing that the suspect is dangerous and the suspect may gain immediate control of weapons."

Michigan v. Long, 463 U.S. 1032, 1049-50 (1983) (quoting Terry v. Ohio, 392 U.S. 1 (1968)).

A Terry protective frisk is justified when an officer observes furtive movements within the scope

of a lawful traffic stop that reasonably cause him to be concerned for his safety. See e.g.,

Commonwealth v. Simmons, 17 A.3d 399, 404 (Pa. Super. 2011); Commonwealth v. Morris,

537 Pa. 417, 644 A.2d 721, 723 (1994); In re O.J., 958 A.2d 561, 566 (Pa. Super. 2008);

Commonwealth v. Mack, 953 A.2d 587, 591 (Pa. Super. 2008); Commonwealth v. Parker, 957

A.2d 311, 316 (Pa. Super. 2008); Commonwealth v. Wilson, 927 A.2d 279, 284-85 (Pa. Super.

2007). Accordingly, given Appellant's furtive behavior, the Officers reasonably feared for their

safety and were permitted to search the passenger compartment of the van for weapons.

       Moreover, a search of the car was also justified for a separate reason. Given the odor of

burnt marijuana and Appellant's nervous disposition, probable cause existed to believe that

marijuana was inside the vehicle. As such, a warrantless search was warranted. See




                                                                                                   4
Commonwealth v. Gary, 91 A.3d 102, 104 (2014) (adopting federal automobile standard which

requires probable cause alone to justify a warrantless car search).

    II.       SUFFICIENCY OF THE EVIDENCE

          The evidence was sufficient as a matter of law to support the convictions under 18

 Pa.C.S.A. §6106 and §6108. When reviewing a sufficiency of the evidence challenge, the well-

 settled standard is "whether the evidence, viewed in the light most favorable to the

 Commonwealth as the verdict winner, is sufficient to enable the fact-finder to establish every

 element of the crime beyond a reasonable doubt." Commonwealth v. Williams, 896 A.2d 523,

 535 (Pa. 2006). "Evidence will be deemed sufficient to support the verdict when it establishes

 each material element of the crime charged and the commission thereof by the accused, beyond

 a reasonable doubt." Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005). The

 Commonwealth is not required to show guilt by a "mathematical certainty" and may sustain its

 burden by presenting solely circumstantial evidence. Commonwealth v. Norley, 55 A. 3d 526,

 53 I (Pa. Super. 2012). "The finder of fact while passing upon the credibility of the witnesses

 and the weight of the evidence produced, is free to believe all part or none of the evidence."

 Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa. Super. 2010).

          A person commits a felony of the third degree and is guilty of VUFA § 6106 when he

"carries a firearm in any vehicle ... without a valid and lawfully issued license ... " I 8

Pa.C.S.A. §6106(a)(I). A person commits a misdemeanor of the first degree and is guilty of

VUFA § 6108 when he "[carries] a firearm ... at any time upori the public streets or upon any

public property in a city of the first class unless such person is licensed to carry a firearm." 18

Pa.C.S.A. §6108(1 ). Mere presence in an automobile in which a weapon is found is not sufficient

to prove that a passenger is in possession of the weapon. Commonwealth v. Townsend, 237 A.2d




                                                                                                      5
'.,·.




        192, 194 (1968). To show possession the Commonwealth is required to establish that appellant

        had the power of control over the weapon and the intention to exercise that control.

        Commonwealth v. Armstead, 305 A.2d 1, 2 (1973).

               The evidence presented at trial was sufficient to prove that Appellant possessed the

        handgun in question. Upon opening the side door of Appellant's van, Officers immediately saw a

        0.38 caliber handgun sitting on the floor between the driver's seat and the middle seat. N.T. at

        12-13, 39. This is exactly where the object landed which Officer Hart saw Appellant throw over

        his shoulder upon being pulled over. Appellant was clearly in possession of a firearm in his

        vehicle without a license in violation of UFA 6106 and on the public streets without a license in

        violation of UFA 6108.

                                                 CONCLUSION

               Given the applicable statutes, testimony, and case law, the motion to suppress was

        properly denied, and the evidence was sufficient to support Appellant's convictions.

        Accordingly, the Court's decision should be affirmed.



                                                                                        BY THE COURT:




                                                                                 MICHAELE. ERDOS, J.



               DA TE: December 8, 2017




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