J-S75018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DARRIN HARDY                               :
                                               :
                       Appellant               :   No. 500 WDA 2017

            Appeal from the Judgment of Sentence January 18, 2017
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0003278-2016


BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                     FILED APRIL 4, 2018

        Darrin Hardy appeals from the judgment of sentence entered on January

18, 2017, in the Allegheny County Court of Common Pleas, made final by the

denial of post-sentence motions on March 1, 2017. On October 18, 2016, the

trial court convicted Hardy of persons not to possess a firearm, carrying a

firearm without a license, and false identification to law enforcement.1 The

court sentenced Hardy to a term of two to four years’ incarceration, followed

by five years’ probation. On appeal, Hardy contends the trial court erred in

denying his motion to suppress physical evidence, and that there was

insufficient evidence to convict him of gun possession and false identification.




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1   18 Pa.C.S. §§ 6105(a)(1) and (c)(1), 6106(a)(1), and 4914(a), respectively.
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After a thorough review of the submissions by the parties, the certified record,

and relevant law, we affirm in part and reverse in part.

        The facts, taken from the affidavit of probable cause and the October

18, 2016, suppression hearing and non-jury trial, are as follows: On February

12, 2016, while on detail and en route to Allegheny General Hospital,

Allegheny County Sheriff’s Deputy Troy Garrett observed a disabled vehicle,

blocking two lanes of the Fort Duquesne Bridge. See N.T., 10/18/2016, at

25. He stopped to assist because the vehicle was obstructing traffic and in a

dangerous location.2       Deputy Garrett asked the driver of the vehicle, co-

defendant Isaiah Peeples, for his driver’s license. Peeples replied he only had

a learner’s permit.      Id. at 26-27.         Deputy Garrett then asked Hardy, the

passenger, if he had a driver’s license. Hardy answered in the negative, but

when asked for his name and date of birth, he identified himself as “Charles

Parris, date of birth 11-11-1987.” Affidavit of Probable Cause, 2/12/2016, at

2.     Deputy Garrett returned to his car to verify their information.          He

discovered: (1) Peeples had a suspended driver’s license; (2) “the passenger

came back not found.” Id.; see also N.T., 10/18/2016, at 27-29. Deputy

Garrett then requested backup, and Detective Randy Grossman responded to

the scene.



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2    Deputy Garrett noticed both the tire and rim were bent. Id. at 26.



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       Detective Grossman testified that when he approached the vehicle at

issue, he immediately became overcome by the odor of burnt marijuana. N.T.,

10/18/2016, at 14.3 The detective stated he then went up to Hardy and,

       I asked for his name, date [of birth], and Social Security number.
       He gave me a name and date [of] birth, but he said he couldn’t
       remember anything but the last four of his Social Security
       number. I have an application on my phone, JNET, where I can
       pull up people based on their name and date of birth, and it pulled
       up a person but it wasn’t him.

Id. at 14-15. Detective Grossman asked Hardy to step out of the car, placed

him in handcuffs for officer safety, and advised him that he would be arrested

for false identification to law enforcement.       Id. at 33.   The deputy and

detective decided they were going to take Hardy to jail to be fingerprinted for

positive identification.     Id.   Hardy then provided his correct identification

information. Id.

       Detective Grossman testified that because of the condition of the car

made it inoperable, they had to call for a towing company.            Id. at 34.

Moreover, due to the fact that the car would be towed, the officers had to

complete an inventory search, during which they recovered a .45-caliber

handgun under the front passenger seat. Id. Detective Grossman stated the

“firearm was positioned with the butt of the firearm facing the passenger side

door, and the barrel was facing the rear side of the vehicle.” Id. Based on




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3   Hardy was not charged with any crimes related to the drugs.

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his experience, Detective Grossman testified that he believed the gun was

placed under the seat by a right-handed individual because:

             If you are holding a firearm with your right hand and you go
       to place it under a seat like that, (indicating) it would be placed in
       the position where the butt of the firearm would be facing the
       passenger side door, and the rest of it the rear of the vehicle.

Id. at 35. The detective also indicated the gun was under the front seat rather

than the side. Id.4

       Hardy was charged with the crimes of persons not to possess a firearm,

carrying a firearm without a license, and false identification to law

enforcement. On June 24, 2016, he filed a motion to suppress, alleging: (1)

his arrest was made without probable cause, (2) at the time he was arrested

and searched, the police did not have a search warrant and no exceptions

apply; 3) he made incriminating statements; and (4) the officers did not have

probable cause or reasonable suspicion to believe that he was armed and

dangerous. See Omnibus Pretrial Motion, 6/24/2016, at ¶¶ 2-6. Hardy also

argued his detention by police and the subsequent search were illegal and

violated his constitutional rights. Id. at ¶ 6. However, at the October 18,

2016, suppression hearing, counsel for Hardy limited the scope of argument


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4  It was stipulated at trial that the “firearm was found to be in good operating
condition, and was within the statutory barrel length requirements and was a
firearm as under the definition of the statute.” Id. at 36. It was also admitted
at trial that Hardy did not have a valid license to carry a concealed firearm.
Id. at 38.



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to suppression of “the statement for the false identification charge.” N.T.,

10/18/2016, at 3. At the end of the hearing, the trial court “conditionally”

denied the motion5 and the matter proceeded directly to a non-jury trial where

Hardy was tried with Peeples. The court convicted Hardy of all charges.

       Subsequently, on January 18, 2017, the court sentenced Hardy to a

term of two to four years’ state incarceration, followed by five years’ probation

for the Section 6105(a)(1) crime.6 Hardy then filed a post-sentence motion

on January 19, 2017, alleging: (1) there was insufficient evidence to sustain

the verdict; (2) the verdict was against the weight of the evidence; (3) the

officers never witnessed Hardy with the firearm or him moving towards the

location of the gun; (4) he did not own or operate the car in question; and (5)

there was no evidence that he knew about the presence of the gun. See Post

Sentencing Motion, 1/19/2017, at ¶¶ 1-6. This appeal followed.7

       In his first argument, Hardy contends the court erred in failing to

suppress the evidence because the inventory search was invalid. Hardy’s Brief




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5  The trial court stated its decision could change based on further review of
legal precedence. Id. at 23.

6  The court did not impose any further penalty with respect to the remaining
crimes.

7  On April 5, 2017, the trial court ordered Hardy to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Hardy filed
a concise statement on May 22, 2017. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on July 25, 2017.

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at 11. Before we may address this claim, we must determine whether Hardy

has properly preserved the issue.

           “[A]ppellate review of an order denying suppression is
     limited to examination of the precise basis under which
     suppression initially was sought; no new theories of relief may be
     considered on appeal.” Commonwealth v. Little, 2006 PA Super
     186, 903      A.2d     1269, 1272-73 (Pa.        Super.     2006);
     Commonwealth v. Thur, 2006 PA Super 208, 906 A.2d 552, 566
     (Pa. Super. 2006) (“When a defendant raises a suppression claim
     to the trial court and supports that claim with a particular
     argument or arguments, the defendant cannot then raise for the
     first  time   on     appeal   different  arguments      supporting
     suppression.”).

               It is well-settled law that motions to suppress
        evidence are decided prior to the beginning of trial.
        Moreover, pre-trial rulings on the suppression of evidence
        are final. In sum, suppression motions must ordinarily be
        made before the trial to the suppression court, they must
        be made with specificity and particularity as to the evidence
        sought to be suppressed and the reasons for the
        suppression, and the suppression court’s determination is to
        be final, except in the case of evidence not earlier available.

     Commonwealth v. Metzer, 430 Pa. Super. 217, 634 A.2d 228,
     233 (Pa. Super. 1993) (citations omitted).

Commonwealth v. Freeman, 128 A.3d 1231, 1241 (Pa. Super. 2015).

     Here, the trial court notes that while Hardy raised an improper search

and seizure argument in his suppression motion, he abandoned the issue at

the time of the October 18, 2016, hearing and “limited the scope of the

suppression hearing to a single issue – the suppression of the statement for

the false identification charge.”      Trial Court Opinion, 7/25/2017, at

unnumbered 2. The court, therefore, found “[t]his disconnect amounts to a

waiver of any suppression related arguments.” Id. (footnote omitted).

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      We agree with the court’s finding. The record was not developed with

respect to any evidence concerning the inventory search and whether it was

proper. As the trial court pointed out, neither Deputy Garrett nor Detective

Grossman testified about the inventory search at the suppression hearing.

See id. at n.1. Accordingly, Hardy’s first issue is waived and we need not

address it further. See also Pa.R.A.P. 302(a) (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”).

      Next, Hardy claims there was insufficient evidence to convict him of

person not to possess firearms and carrying a firearm without a license. See

Hardy’s Brief at 17.

      Our well-settled standard of review regarding sufficiency of the evidence

claims is as follows:

      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 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 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.


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Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted), appeal denied, 112 A.3d 651 (Pa. 2015).

      The crime of persons not to possess firearms is defined 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. § 6105(a)(1).

      A defendant is guilty of carrying a firearm without a license, in pertinent

part, as follows:

      (c) Other persons. — In addition to any person who has been
      convicted of any offense listed under subsection (b), the following
      persons shall be subject to the prohibition of subsection (a):

         (1) A person who is a fugitive from justice. This paragraph
         does not apply to an individual whose fugitive status is
         based upon a nonmoving or moving summary offense under
         Title 75 (relating to vehicles).

18 Pa.C.S. § 6105(c)(1).

      With respect to both crimes, Hardy contends:

      [A] review of the facts show that the Commonwealth failed to
      establish, beyond a reasonable doubt, that Mr. Hardy
      constructively possessed the handgun that police found under the
      passenger seat of the car in which Mr. Hardy was riding. Isaiah
      Peeples drove the car, and there was no evidence that the car was
      registered to Mr. Hardy. Mr. Peeples remained in the car while
      Mr. Hardy was removed from it. Neither Deputy Sheriff saw the
      gun when Mr. Hardy was in the car, and there was no testimony
      that his DNA or fingerprints were on it. The gun was not found in
      an area where Mr. Hardy had exclusive control, and there was no
      testimony that any items of Mr. Hardy’s was found in the car. The
      gun was not registered to Mr. Hardy.

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Hardy’s Brief at 18 (record citations omitted). Furthermore, Hardy argues:

         [T]he Commonwealth did not establish, beyond a reasonable
         doubt, that [he] had both the power and intent to control the gun
         that [Detective] Grossman found under the front passenger seat.
         The[re] was no evidence from the Commonwealth that Mr. Hardy
         was seen reaching under his seat. There was no fingerprint or
         DNA evidence establishing Mr. Hardy’s control of the gun. Lastly,
         Mr. Hardy did not own the car.

Id. at 20. Hardy also emphasizes there was no evidence he made “furtive

movements towards his waistband, pocket or any article of his clothing.” Id.

at 22.

         When a prohibited item is not discovered on a defendant’s person, or in

his actual possession, as is the case here, the Commonwealth may prove the

defendant had constructive possession of the item.

            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.

         Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012),
         appeal denied, [] 63 A.3d 1243 (2013) (internal quotation marks
         and citation omitted). Additionally, it is possible for two people to
         have joint constructive possession of an item of contraband.
         Commonwealth v. Sanes, 955 A.2d 369, 373 (Pa. Super. 2008),
         appeal denied, 601 Pa. 696, 972 A.2d 521 (2009).

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

appeal denied, 78 A.3d 1090 (Pa. 2013). “An intent to maintain a conscious


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dominion may be inferred from the totality of the circumstances, and

circumstantial evidence may be used to establish a defendant’s possession of

drugs or contraband.” Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa.

Super. 2013) (citation omitted), appeal denied, 77 A.3d 636 (Pa. 2013).

     At trial, the court found the following to support Hardy’s firearms

convictions:

           My rationale is that the driver -- I agree it’s his car, and he
     has constructive possession, and it’s at arms length one could
     agree. However, there is no furtive movements, and no one sees
     him doing anything inappropriate. He’s a guy whose car is stuck
     in rush hour in a high travel area, and his wheel is messed up,
     and the most I get from that is that two young guys are maybe
     smoking weed, because D[ectective] Grossman smells marijuana,
     but there is no evidence that I got that would link the driver to the
     gun other than it being in his car, and it was directly under where
     the passenger was.

           There is a rebuttable presumption that it was the
     passenger[’]s. Further, the incriminating evidence against the
     passenger is he doesn’t respond when asked what his name is.
     To me, that’s an intention to deflect or extricate himself from
     being there and the real[i]ty that he is in this car. I know it’s
     circumstantial evidence, but it leads me to believe that he’s the
     party that’s responsible for the gun. It’s right under the seat.
     He’s in a situation where all he had to do was tell the truth. “I
     don’t have a license and my name is Darrin Hardy.” If he said his
     name was Darrin Hardy, then this wouldn’t have escalated I
     believe[.]

                                      …

     [A]nd your car is broke down and you start lying to the police
     about who you are, and there is a .45-caliber gun under your seat,
     and you are lying and making up names and saying you are those
     people, then you aren’t at ground zero. You have gone backwards
     in terms of credibility.

N.T., 10/18/2016, at 40-41, 42.

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      In its Rule 1925(a) opinion, the trial court further elaborated on its

determination as follows:

      Through the power of circumstantial evidence the government
      showed Mr. Hardy was more than just present in the car where a
      gun was found. The manner in which the gun was found
      suggested his possession as the butt of the gun was “facing the
      passenger side door” and “the barrel was facing the rear side of
      the vehicle.” The location of the gun also contributes as it was
      right under the front seat passenger seat. His giving a phony
      name also contributed to the collection of circumstances that was
      sufficient to convict.

Trial Court Opinion, 7/25/2017, at unnumbered 2 (record citation omitted).

      We agree with the court’s finding. Furthermore, “the evidence at trial

need not preclude every possibility of innocence, and the fact-finder is free to

resolve any doubts regarding a defendant’s guilt 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.” Commonwealth v. Hughes, 908

A.2d 924, 928 (Pa. Super. 2006).

      Here, viewed in the light most favorable to the Commonwealth as the

verdict winner, the evidence in toto was sufficient to sustain the trial court’s

finding that Hardy constructively possessed the weapon, where: (a) during an

inventory search, the gun was found directly underneath Hardy’s seat with the

butt of the gun facing the passenger side door and the barrel facing the rear




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side of the vehicle; and (b) he initially lied to police about his identity.8 As

such, the trial court, sitting as the fact-finder, could reasonably infer the

firearm was well within Hardy’s reach and he had the power and intent to

control the gun.9 See Hopkins, supra. Furthermore, “it is possible for two

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

Commonwealth v. Kinard, 95 A.3d 279, 292 (Pa. Super. 2014).

Accordingly, we conclude there was sufficient evidence to enable the trial court



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8 See Commonwealth v. Flythe, 417 A.2d 633, 634 (Pa. Super. 1979) (“It
strains the imagination to believe that defendant innocently entered this
vehicle having no knowledge of the items found therein when, the pistol at
least, was within a few inches of him and a portion of it was in plain view.”).

9  Hardy cites Commonwealth v. Boatright, 453 A.2d 1058 (Pa. 1982), for
the argument that the case against him was substantially weaker than in
Boatright, where the firearm conviction was overturned because the
evidence did not establish the defendant possessed the gun. See Hardy’s
Brief at 21. In Boatright, the police responded to a radio call concerning
three “suspicious” men in an automobile parked outside a residence.
Boatright, 453 A.2d at 1058. Upon arriving at the scene, one officer
observed the defendant, seated in the front passenger seat, make movements
towards his left rear but could not see his hand or arm, only the movement of
his body. Id. The officer opened the door, asked the defendant to exit, and
then saw a gun on the left rear floor of the vehicle. Id. The vehicle was
occupied by a driver and another passenger, sitting in the left rear seat. Id.
at 1058-1059. In reversing a panel of this Court’s decision, the Pennsylvania
Supreme Court held: “The only evidence other than mere presence was [the
officer]’s testimony that [the defendant] made a movement toward the left
rear of the vehicle. This evidence cannot provide proof beyond a reasonable
doubt that [the defendant] possessed the firearm in question.” Id. We find
Boatright distinguishable from the present matter, in which, here, the gun
was observed directly underneath the seat where Hardy was sitting as
opposed to behind him, and Hardy did, in fact, fabricate his identification
information to both responding officers. Therefore, one cannot conclude the
evidence against him was weaker than in Boatright.

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to find Hardy constructively possessed a firearm.        Therefore, Hardy is not

entitled to relief with respect to his sufficiency challenge regarding the

firearms convictions.

      Lastly, Hardy contends there was insufficient evidence to convict him of

false identification to law enforcement officers pursuant to 18 Pa.C.S. §

4914(a). See Hardy’s Brief at 23. Hardy states: “It is not illegal to provide

false information to a law enforcement authority as to one’s identity unless

and until one is first apprised that one is the subject of an official investigation

of a violation of law.” Id.

      Keeping our sufficiency standard of review in mind, we note the crime

of false identification is defined as follows:

      (a) Offense defined. — A person commits an offense if he
      furnishes law enforcement authorities with false information about
      his identity after being informed by a law enforcement officer
      who is in uniform or who has identified himself as a law
      enforcement officer that the person is the subject of an official
      investigation of a violation of law.

18 Pa.C.S. § 4914(a) (emphasis added).

      Under the plain language of the statute, three conditions must be
      satisfied before an individual will be found to have violated the
      statute by providing false information about his identity. First, if
      the law enforcement officer is not in uniform, the officer must
      identify himself as a law enforcement officer.          Second, the
      individual must be informed by the law enforcement officer that
      he is the subject of an official investigation of a violation of law.
      Third, the individual must have furnished law enforcement
      authorities with false information after being informed by the law
      enforcement officer that he was the subject of an official
      investigation of a violation of law.

In the Interest of D.S., 39 A.3d 968, 974 (Pa. 2012).

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       Here, the trial court concedes that it erred in finding Hardy guilty of this

offense:

              The element which Mr. Hardy believes is lacking in proof is
       the second – being informed by an officer that he is the subject of
       an official investigation. [Deputy] Garrett testified that he “did
       not tell [Mr. Hardy] he was under official investigation.” On cross-
       examination, [Detective] Grossman testified that Mr. Hardy “was
       detained and going to be taken to the jail for fingerprinting.” Not
       happy with that answer, counsel [for Hardy] choose [sic] a
       different route to get the answer she was seeking.              After
       refreshing his recollection with the preliminary hearing transcript,
       [Detective] Grossman confirmed that Mr. Hardy was informed
       about the official aspect of this investigation AFTER Mr. Hardy
       gave him a phony name. Our law – In re: D.S. – requires just
       the opposite. To sustain a conviction for giving law enforcement
       false information about their identity, the citizen must be informed
       they are subject to an investigation. It is only after that purpose
       is communicated to the person and then followed by false
       identification information can a conviction be sustained. The
       sequence required by our precedent is not part of this record. The
       conviction for false identification to a law enforcement official
       should be reversed.

Trial Court Opinion, 7/25/2017, at unnumbered 3-4 (footnote omitted).10

       We agree with both parties and the trial court that the conviction for

false identification was in error.        Accordingly, we vacate the judgment of

sentence for false identification. Nevertheless, Hardy’s sentencing scheme is

not upset because the trial court did not impose a penalty for the false

identification conviction.      Therefore, there is no need to remand for re-

sentencing.


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10 The Commonwealth agrees with the trial court’s determination that Hardy’s
conviction for false identification should be vacated. See Commonwealth’s
Brief at 19-22.

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      Judgment of sentence at 18 Pa.C.S. § 4914 (a) vacated. Judgment of

sentence affirmed in all other respects. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/4/2018




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