J-S43022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

TYSON EUGENE HARTZOG

                        Appellant                   No. 1678 MDA 2015


          Appeal from the Judgment of Sentence August 31, 2015
              In the Court of Common Pleas of York County
           Criminal Division at No(s): CP-67-CR-0007847-2014


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                             FILED JULY 15, 2016

     Appellant, Tyson Eugene Hartzog, appeals from the judgment of

sentence entered after a jury convicted him of, among others, possession of

a firearm by a prohibited person. Additionally, Appellant’s court-appointed

counsel, John M. Hamme, Esquire, has filed an application to withdraw as

counsel pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the

judgment of sentence and grant counsel’s petition to withdraw.

     The following facts are essentially undisputed for purposes of this

appeal. Police officers began to follow a maroon Chevrolet Impala after their

license plate reader indicated that the vehicle’s registration was expired. It

was later determined that this indication was incorrect, but while watching

the Impala, Officer Timothy Clymer recognized Hartzog as the driver, and
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knew that there was an outstanding warrant for Hartzog’s arrest. The

officers proceeded to stop the Impala.

      The officers verified that it was indeed Hartzog and placed him under

arrest. At that time, Officer Clymer observed drug paraphernalia in plain

view in the driver’s side cup holder. After seizing the paraphernalia, Officer

Clymer searched the rest of the vehicle, discovering various items of

contraband, including a stolen firearm that was located under the front

passenger seat.

      Prior to trial, the trial court held a hearing on Hartzog’s motion to

suppress the items seized from the car based upon a lack of probable cause

for the stop. At the end of the hearing, the trial court denied the motion, and

the case proceeded immediately to trial. After the jury found Hartzog guilty,

trial counsel moved to withdraw, citing a breakdown in the lawyer-client

relationship.

      The trial court subsequently permitted trial counsel to withdraw.

However, upon Hartzog’s request, trial counsel was re-appointed to

represent Hartzog at the sentencing hearing. The trial court imposed an

aggregate sentence of four to eight years of imprisonment. Attorney Hamme

was subsequently appointed to represent Hartzog on appeal, and filed this

timely appeal.

      On appeal, Attorney Hamme has moved for permission to withdraw as

counsel and has submitted an Anders brief in support thereof contending


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that Appellant’s appeal is frivolous. The Pennsylvania Supreme Court has

articulated the procedure to be followed when court-appointed counsel seeks

to withdraw from representing an appellant on direct appeal:

       [I]n the Anders brief that accompanies court-appointed
      counsel’s petition to withdraw, counsel must: (1) provide a
      summary of the procedural history and facts, with citations to
      the record; (2) refer to anything in the record that counsel
      believes arguably supports the appeal; (3) set forth counsel’s
      conclusion that the appeal is frivolous; and (4) state counsel’s
      reasons for concluding that the appeal is frivolous. Counsel
      should articulate the relevant facts of record, controlling case
      law, and/or statutes on point that have led to the conclusion that
      the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Once counsel

has met his obligations, “it then becomes the responsibility of the reviewing

court to make a full examination of the proceedings and make an

independent judgment to decide whether the appeal is in fact wholly

frivolous.” Id. at 355 n.5 (citation omitted).

      Counsel has substantially complied with the technical requirements of

Anders as articulated in Santiago. Additionally, counsel confirms that he

sent a copy of the Anders brief to Appellant, as well as a letter explaining

that Appellant has the right to proceed pro se or the right to retain new

counsel. Counsel has appropriately appended a copy of the letter to the

motion to withdraw, as required by this Court’s decision in Commonwealth

v. Millisock, 873 A.2d 748 (Pa. Super. 2005). See also Commonwealth v.

Daniels, 999 A.2d 590, 594 (Pa. Super. 2010).




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      Attorney Hamme sets forth one issue for our review in his Anders

brief, and Hartzog, in his response to the application to withdraw, has set

forth another. We first address the issue raised by Attorney Hamme.

      The Anders brief identifies a challenge to the trial court’s refusal to

suppress the evidence seized from the vehicle Hartzog was driving. In

particular, the brief states that Hartzog believes that the police officers did

not have reasonable suspicion or probable cause to pull him over. Thus, he

contends that the stop was unlawful, and the trial court erred in failing to

suppress the evidence seized after the stop.

      “Once a motion to suppress evidence has been filed, it is the

Commonwealth’s burden to prove, by a preponderance of the evidence, that

the challenged evidence was not obtained in violation of the defendant’s

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa. 2012)

(citations omitted).

      Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is whether the factual
      findings are supported by the record and whether the legal
      conclusions drawn from those facts are correct. When reviewing
      the ruling of a suppression court, we must consider only the
      evidence of the prosecution and so much of the evidence of the
      defense as remains uncontradicted when read in the context of
      the record as a whole. Where the record supports the findings of
      the suppression court, we are bound by those facts and may
      reverse only if the legal conclusions drawn therefrom are in
      error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citation

omitted).


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      “It is within the suppression court’s sole province as factfinder to pass

on the credibility of witnesses and the weight to be given to their testimony.

The suppression court is free to believe all, some or none of the evidence

presented at the suppression hearing.” Commonwealth v. Elmobdy, 823

A.2d 180, 183 (Pa. Super. 2003) (citation omitted). However, the

suppression court’s conclusions of law, which are not binding on an appellate

court, are subject to plenary review. See Commonwealth v. Johnson, 969

A.2d 565, 567 (Pa. Super. 2009).

      The Fourth Amendment of the United States Constitution and Article 1,

Section 8 of our Constitution protects citizens from unreasonable searches

and seizures. See In the Interest of D.M., 781 A.2d 1161, 1163 (Pa.

2001). Generally, the police must obtain a warrant to arrest a suspect in a

public place. See In re. R.P., 918 A.2d 115, 120 (Pa. Super. 2007).

However, an officer may arrest a suspect without a warrant if the officer has

probable cause to believe the suspect arrested has committed or is

committing a criminal offense. See Commonwealth v. Williams, 568 A.2d

1281, 1286 (Pa. Super. 1990). “To determine whether probable cause exists

to justify a warrantless arrest, we must consider the totality of the

circumstances.” Commonwealth v. Clark, 735 A.2d 1248, 1252 (Pa. 1999)

(citation omitted). “Probable cause to arrest exists where the facts and

circumstances within the police officer’s knowledge … are sufficient in

themselves to warrant a person of reasonable caution in the belief that an


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offense has been committed by the person to be arrested.” In re. R.P., 918

A.2d at 121 (citation and quotation marks omitted). “Probable cause must

be viewed from the vantage point of a prudent, reasonable, cautious police

officer on the scene at the time of the arrest guided by his experience and

training.” Id. (citation and quotation marks omitted).

      “It is well established that a warrantless search incident to a lawful

arrest is reasonable, and no justification other than that required for the

arrest itself is necessary to conduct such a search.” Id., at 1283 (citations

omitted). “Consequently, any evidence seized as a result of a search incident

to a lawful arrest is admissible in later proceedings.” Id. (citation omitted).

      Here, the decision to stop Hartzog was based upon Officer Clymer’s

identification of Hartzog as the driver and his knowledge of an outstanding

arrest warrant for Hartzog. See N.T., Suppression Hearing, 5/19/15, at 13-

14. Hartzog argues that Officer Clymer could not have identified him as the

observation occurred at night and the Impala had tinted windows.

      First, we note that there is no evidence of record that the Impala’s

windows were tinted. In any event, this challenge is to the suppression

court’s credibility determinations. On appeal, we review such determinations

with a deferential standard, as the hearing court can base its determination

on more than the cold record before us on appeal. Hartzog is unable to

articulate any basis for us to find an abuse of discretion in the suppresion




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court’s decision, and therefore we agree with Attorney Hamme that this

issue is entirely without merit.

       In his response to Attorney Hamme’s application to withdraw, Hartzog

argues that the Commonwealth failed to establish that he had constructive

possession of the firearm found under the passenger seat of the Impala.1

Preliminarily, we note that this is a challenge to the sufficiency of the

evidence at trial.

       The standard we apply in reviewing the sufficiency of 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 that of
       the fact-finder.     In addition, we note that the facts and
       circumstances established by the Commonwealth need not
       preclude every possibility of innocence. Any doubts regarding a
       defendant’s guilt may be resolved by the fact-finder unless the
       evidence is so weak and inconclusive that as a matter of law no
       probability of fact may be drawn from the combined
       circumstances. The Commonwealth may sustain its burden of
       proving every element of the crime beyond a reasonable doubt
       by means of wholly circumstantial evidence.          Moreover, in
       applying the above test, the entire record must be evaluated and
       all evidence actually received must be considered. Finally, the
       trier of fact while passing upon the credibility of witnesses and
____________________________________________


1
  Hartzog phrases his argument in terms of ineffectiveness of trial counsel in
pursuing his omnibus pretrial motion. We observe that, generally, claims of
ineffectiveness of counsel are presumptively reserved for collateral review.
See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013). Hartzog has
not complied with any of the requirements to qualify for unitary review. We
therefore decline to address any argument based upon counsel’s
ineffectiveness. To the extent that Hartzog is arguing the sufficiency of the
evidence to support the jury’s verdicts, we will review the issue as part of
our duty to address Attorney Hamme’s application to withdraw.



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

Commonwealth v. Helsel, 53 A.3d 906, 917, 917-918 (Pa. Super. 2012)

(citation omitted).

       “Constructive possession is a legal fiction, which is invoked when

actual possession at the time of arrest cannot be shown, but there is a

strong inference of possession from the facts surrounding the case.”

Commonwealth v. Battle, 883 A.2d 641, 644 (Pa. Super. 2005) (citations

omitted), abrogated on other grounds by, Commonwealth v. Jette, 23

A.3d 1032 (Pa. 2011). Constructive possession has been defined as

“conscious dominion,” which has subsequently been defined as “the power to

control    the   contraband    and   the   intent   to   exercise   that   control.”

Commonwealth v. Walker, 874 A.2d 667, 678 (Pa. Super. 2005) (citation

omitted). “[C]onstructive possession may be established by the totality of

the circumstances.” Id. (citation omitted). “Additionally, it is possible for

two people to have joint constructive possession of an item of contraband.”

Commonwealth v. Hopkins, 67 A.3d 817, 820-821 (Pa. Super. 2013)

(citation omitted).

       Dominion and control are not established, however, by mere proximity

to the contraband, mere presence on the property where it is located, or

mere      association   with   others   who    control   the   contraband.     See

Commonwealth v. Naguski, 299 A.2d 39, 40-41 (Pa. Super. 1972). “It is

well settled that facts giving rise to mere ‘association,’ ‘suspicion’ or

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‘conjecture,’   will   not make   out a   case   of constructive   possession.”

Commonwealth v. Valette, 613 A.2d 548, 551 (Pa. 1992) (citations

omitted). “Pennsylvania courts have held that where another person has

equal access to the area where illegal contraband or weapon is found, the

defendant cannot be said to have either the power to control or the intent to

control such contraband or weapon per se.” Commonwealth v. Heidler,

741 A.2d 213, 216 (Pa. Super. 1999) (en banc) (citing Commonwealth v.

Chenet, 373 A.2d 1107 (Pa. 1977) (finding no constructive possession

because the contraband was found in an area equally accessible to a third

party); Commonwealth v. Juliano, 490 A.2d 891 (Pa. Super. 1985)

(finding the evidence insufficient to conclude that appellant constructively

possessed contraband when three other people had equal access to the area

in which the contraband was found)). See also Commonwealth v.

Armstead, 305 A.2d 1 (Pa. 1973) (finding that mere presence in an

automobile in which a weapon is found is not sufficient to prove possession

of that weapon where there were other passengers).

      However, the fact that the contraband is located in an area usually

accessible only to the defendant may lead to an inference that he placed it

there or knew of its presence. See Commonwealth v. Haskins, 677 A.2d

328, 330 (Pa. Super. 1996). Furthermore, the fact that another person

might have equal access and control to an object does not eliminate the

defendant’s constructive possession. See id.


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     Here, Hartzog was the only person in the Impala when it was pulled

over and searched. He was therefore the only person who had access to

firearm. Furthermore, while Hartzog argues that the firearm may have been

in the car for years, it was found on top of a digital scale, of a type that

Officer Clymer opined was frequently used in trafficking illegal narcotics.

Under these circumstances, the jury was entitled to infer that Hartzog had

dominion and control over the weapon. This issue is meritless.

     After examining the issues contained in the Anders brief and after

undertaking our independent review of the record, we concur with counsel’s

assessment that the appeal is wholly frivolous.

     Judgment of sentence affirmed. Application to withdraw as counsel

granted.

     Judge Jenkins joins the memorandum.

     President Judge Gantman concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2016




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