J-S69013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOSE RIGOBERTO GARCIA-QUINTERO

                            Appellant                 No. 326 MDA 2016


       Appeal from the Judgment of Sentence Entered October 28, 2013
                 In the Court of Common Pleas of York County
               Criminal Division at No: CP-67-CR-0001712-2012


BEFORE: STABILE, DUBOW, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                      FILED NOVEMBER 22, 2016

        Appellant Jose Rigoberto Garcia-Quintero appeals from the October 28,

2013 judgment of sentence entered in the Court of Common Pleas of York

County (“trial court”), following a jury trial that resulted in him being

convicted of persons not to possess firearms and firearms not to be carried

without a license.1 Upon review, we affirm.

        The facts and procedural history underlying this case are undisputed.

As summarized by the trial court:

               On the evening of December 24, 2011, Officer Kelly
        Brubaker of the Hanover Borough Police Department initiated a
        traffic stop of a Dodge Durango traveling without its headlights
        on. Officer Brubaker approached the vehicle and observed two
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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 6105(a)(1), and 6106(a)(1), respectively.
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     passengers inside. Jesus Beltran-Leon was driving. [Appellant]
     appeared to be passed out in the passenger seat.

            Soon after the stop began, Sergeant Jason Byers of the
     Hanover Borough Police Department arrived on the scene.
     Despite smelling an odor of an alcoholic beverage coming from
     Mr. Beltran-Leon, Sergeant Byers and Officer Brubaker decided
     that they did not have enough evidence to arrest him for driving
     under the influence, due, in part, to a language barrier between
     them. Instead, the officers agreed to permit the men to go
     home. Appellant’s behavior indicated to Sergeant Byers that he
     was most likely intoxicated and incapable of safely driving. The
     officers then gave the men the opportunity to call a friend for a
     sober ride, but they were unable to reach anyone. As a result,
     the officers decided to give the two men a ride in a police cruiser
     to a safe location.
            []Appellant was extremely disoriented, to the point that
     Sergeant Byers had to physically assist him out of the vehicle.
     After Sergeant Byers placed []Appellant in the back of the police
     car with Mr. Beltran-Leon, he returned to the passenger side of
     Mr. Beltran-Leon’s car to close the door. As [Sergeant Byers]
     closed it, he looked in and observed, in plain view, a handgun
     sitting against the transmission hump below the center console
     in the passenger compartment. After a records search revealed
     that neither man possessed a license to carry a firearm, both
     were placed under arrest.

            [On May 21, 2012, Appellant filed an omnibus pretrial
     motion to suppress evidence, arguing that the officers lacked
     reasonable suspicion to detain him. Following a hearing, on
     January 15, 2013, the trial court denied Appellant’s motion to
     suppress.] A jury trial was held on September 11-13, 2013[,]
     and the jury found []Appellant guilty of [c]ount I, [p]ersons not
     to [p]ossess [f]irearm . . . and [c]ount II, [f]irearm [n]ot to [b]e
     [c]arried [w]ithout a [l]icense. [On October 28, 2013, the trial
     court] sentenced Appellant to four to eight years of incarceration
     on [c]ount I, and three to six years of incarceration on [c]ount
     II, to run concurrently.

           []Appellant filed a post-sentence motion on December 13,
     2013 and raised three issues: insufficient evidence, weight of the
     evidence, and a pretrial suppression issue. . . . The trial court
     denied [Appellant’s] post-sentence motion on May 22, 2014.

Trial Court Opinion, 8/22/14, at 1-3 (record citations omitted). On June 23,

2014, Appellant appealed to this Court. On June 24, 2015, a panel of this

Court quashed the appeal. Commonwealth v. Garcia-Quintero, 22 A.3d

1143 (Pa. Super. 2015) (unpublished memorandum). This Court concluded

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that Appellant did not file timely post-sentence motions and that his notice

of appeal to this Court from the denial of the untimely post-sentence motion

was also untimely. See Garcia-Quintero, No. 1080 MDA 2014, at 5.

       On October 15, 2015, Appellant pro se filed a petition under the Post

Conviction Relief Act (the “Act”), 42 Pa.C.S.A. §§ 9541-46. The PCRA court

appointed counsel, who then filed an amended PCRA petition, alleging that

Appellant’s trial counsel was ineffective for failing “to file timely notice of

appeal.”2     Amended PCRA Petition, 1/7/16, at ¶ 10.     Appellant sought the

reinstatement of his direct appeal rights nunc pro tunc.       On February 3,

2016, the PCRA court held a hearing, following which the court granted

Appellant PCRA relief and reinstated his direct appeal rights nunc pro tunc.

       On February 23, 2016, Appellant timely appealed to this Court. At the

behest of the trial court, Appellant filed a Pa.R.A.P. 1925(b) statement of

errors complained of on appeal, raising three assertions of error:

       I.     Whether the [trial] court erred in denying Appellant’s
              pretrial motion to suppress evidence where police
              subjected Appellant to an investigative detention without
              reasonable suspicion that a crime had been commited
              [sic]?

       II.    Whether insufficient evidence was presented at trial to
              convict Appellant of prohibited possession of a firearm and
              carrying a firearm without a license?

       III.   Whether the verdicts of guilty of prohibited posession [sic]
              of a firearm and carrying a firearm without a license were
              against the weight of the eveidence [sic] presented at
              trial?
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2
  Appellant’s PCRA counsel did not request nunc pro tunc reinstatement of
his right to file post-sentence motions.



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Rule 1925(b) Statement, 3/10/16 (unnecessary capitalization omitted). The

trial court issued a Pa.R.A.P. 1925(a) opinion, addressing Appellant’s

assertions of error and concluding that he was not entitled to relief.

       On appeal, Appellant repeats the same three issues for our review,

which we shall address seriatim.

       In reviewing appeals from an order denying suppression,3 our standard

of review is limited to determining

       whether [the trial court’s] factual findings are supported by the
       record and whether [its] legal conclusions drawn from those
       facts are correct. When reviewing the rulings of a [trial] court,
       the appellate court considers only the evidence of the
       prosecution and so much of the evidence for the defense as
       remains uncontradicted when read in the context of the record
       as a whole. When the record supports the findings of the [trial]
       court, we are bound by those facts and may reverse only if the
       legal conclusions drawn therefrom are in error.

Commonwealth v. Griffin, 116 A.3d 1139, 1142 (Pa. Super. 2015).

       Article I, Section 8 of the Pennsylvania Constitution and the Fourth

Amendment to the United States Constitution protect the people from

unreasonable searches and seizures.            Commonwealth v. Lyles, 97 A.3d

298, 302 (Pa. 2014) (citation omitted). The Lyles Court explained:


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3
  We note that the holding in In the interest of L.J., 79 A.3d 1073 (Pa.
2013), that after October 30, 2013, the scope of review for a suppression
issue is limited to the record available to the suppression court. See id. at
1088-89 (explaining that holding applies to “all litigation commenced
Commonwealth-wide after the filing of this decision”). Because the instant
criminal complaint was filed prior to October 30, 2013, In re L.J. does not
apply.




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      Jurisprudence arising under both charters has led to the
      development of three categories of interactions between citizens
      and police. The first, a “mere encounter,” does not require any
      level of suspicion or carry any official compulsion to stop and
      respond. The second, an “investigatory detention,” permits the
      temporary detention of an individual if supported by reasonable
      suspicion. The third is an arrest or custodial detention, which
      must be supported by probable cause.

            In evaluating the level of interaction, courts conduct an
      objective examination of the totality of the surrounding
      circumstances. . . . The totality-of-the-circumstances test is
      ultimately centered on whether the suspect has in some way
      been restrained by physical force or show of coercive authority.
      Under this test, no single factor controls the ultimate conclusion
      as to whether a seizure occurred—to guide the inquiry, the
      United States Supreme Court and [our Supreme] Court have
      employed an objective test entailing a determination of whether
      a reasonable person would have felt free to leave or otherwise
      terminate the encounter. What constitutes a restraint on liberty
      prompting a person to conclude that he is not free to leave will
      vary, not only with the particular police conduct at issue, but
      also with the setting in which the conduct occurs.

             [Our Supreme] Court and the United States Supreme
      Court have repeatedly held a seizure does not occur where
      officers merely approach a person in public and question the
      individual or request to see identification. Officers may request
      identification or question an individual so long as the officers do
      not convey a message that compliance with their requests is
      required. Although police may request a person’s identification,
      such individual still maintains the right to ignore the police and
      go about his business.

Id. at 302-03 (internal citations and quotation marks omitted). “We adhere

to the view that a person is ‘seized’ only when, by means of physical force or

a show of authority, his freedom of movement is restrained.        Only when

such restraint is imposed is there any foundation whatever for invoking

constitutional safeguards.”   United States v. Mendenhall, 446 U.S. 544,

553 (1980).

      We first address Appellant’s claim that he was detained unlawfully,

i.e., without reasonable suspicion, when Sergeant Byers escorted him from

the passenger seat and placed him in the back of a police cruiser to give him

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a ride to a safe location. As a result, Appellant argues that the trial court

erred in denying his suppression motion.

       Instantly, it is beyond peradventure that Officer Brubaker seized

Appellant’s co-defendant and Appellant when she initiated the traffic stop.

As recounted earlier, Officer Brubaker observed a vehicle traveling without

headlights at 11:00 p.m. in violation of Section 4302 of the Motor Vehicle

Code, 75 Pa.C.S.A. § 4302.          Officer Brubaker thus had probable cause to

initiate a traffic stop. See Commonwealth v. Salter, 121 A.3d 987 (Pa.

Super. 2015) (concluding that the officer had probable cause to stop a

motorist at night because of an unlit license plate).       The parties do not

dispute that.      Thereafter, Officer Brubaker smelled an odor of alcohol

emanating from Appellant’s co-defendant, the driver of the vehicle.4

“Appellant appeared to be passed out in the passenger seat. There was also

an open alcoholic beverage in the vehicle.” Trial court Opinion, 4/15/16, at

5. Officer Brubaker then attempted to administer a field sobriety test on the

co-defendant, which she abandoned upon the realization that “there was a

language barrier as the [c]o-defendant could not understand what she was
____________________________________________


4
  Under our law, drivers and passengers of a vehicle are not treated much
differently from one another in the context of a traffic stop to the extent
police officers have the right to order both to alight from the vehicle.
Maryland v. Wilson, 519 U.S. 408, 410 (1997); see Commonwealth v.
Pratt, 930 A.2d 561, 564 (Pa. Super. 2007) (noting that “following a lawful
traffic stop, an officer may order both the driver and passengers of a vehicle
to exit the vehicle until the traffic stop is completed, even absent a
reasonable suspicion that criminal activity is afoot.”).



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instructing him to do.”5 Trial Court Opinion, 1/15/13, at 5. Officer Brubaker

then administered a preliminary breath test (PBT), which registered .158%

blood alcohol content.         Id.; N.T. Suppression, 6/25/12, at 12.   Officer

Brubaker and Sergeant Byers ultimately decided “that they did not have

enough evidence to arrest [the co-defendant] for driving under the

influence, due, in part, to a language barrier between them.”      Trial Court

Opinion, 8/22/14, at 2. “The officers agreed to permit the men to go home.”

Id.     Although a decision was made not to arrest, the officers determined

that, under the circumstances, the co-defendant’s level of intoxication

rendered him incapable of driving his vehicle safely.6 Id. The officers asked

the men to call a friend for a sober ride. Id. They were unsuccessful. Id.

The officers then decided to give the men a ride to a safe location in a police

cruiser.    Id.   Because Appellant was “heavily intoxicated” and extremely

disoriented, Sergeant Byers had to assist him out of the front passenger

seat.      Id., see Appellant’s Brief at 11 (“Here, Appellant was heavily

intoxicated and asleep or passed out, due to his intoxicated state[.]”).

Appellant was seated in the back of a police cruiser. Id.
____________________________________________


5
    We note that Appellant and his co-defendant are Spanish speakers.
6
  Consistent with our decision in Salter, we conclude that Officer Brubaker
possessed at least reasonable suspicion, if not probable cause, that
Appellant’s co-defendant was driving under the influence given her
observations. See Salter, 121 A.3d at 995 (probable cause for DUI arrest
existed with an odor of alcohol, glassy eyes, appellee’s admission that she
had two glasses of wine, and poor performance on field sobriety tests). In
any event, the parties do not dispute that the stop for DUI was lawful.



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       With these facts in mind, Appellant now argues that he was unlawfully

detained when the police agreed to give him a ride to a safe location after

determining that the men were incapable of travelling safely on their own.

We disagree. As illustrated above, once the police decided not to arrest the

co-defendant for DUI and allowed the men to call a friend for a ride, the stop

was over.7     See Commonwealth v. Reppert, 814 A.2d 1196, 1203 (Pa.

Super. 2002) (a motorist is free to leave once the police have effectuated

the purpose of their stop). Our review of the record reveals that the police

did not arrest the co-defendant for DUI, even though the officers testified

that they deemed the co-defendant to be intoxicated and incapable of

operating his vehicle safely.       Similarly, based on the record before and as

acknowledged by Appellant in his brief, Appellant too was “heavily

intoxicated” and therefore, not in a position to operate the vehicle.

Appellant’s Brief at 11. Thus, the police officers merely were ensuring that

Appellant and co-defendant reached a safe destination without causing any

harm to themselves or others. In Commonwealth v. Rehmeyer, 502 A.2d

1332, 1338 (Pa. Super. 1985), we reversed the suppression court noting

       [t]he officer in this case acted swiftly, justly, and with
       compassion. [The officer’s] offer to transport appellee to his
       home was a truly laudable act. It served to shield appellee from
       criminal punishment and prevent harm to innocent parties. Such
       competent and effective police work should be praised and
____________________________________________


7
 Although not relevant to the case sub judice, it is unclear from the record
whether the police issued a citation to the co-defendant for operating the
vehicle without headlights at 11:00 p.m.



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       supported by the courts and not discouraged through dissection
       and reversal.

Rehmeyer, 502 A.2d at 1335 (citation and quotation marks omitted).

Given the circumstances of this case, we conclude that the officers’ conduct

was not unlawful insofar as they acted to ensure the safety of Appellant, his

co-defendant and others. Additionally, the officers’ objective here was not

the prosecution of a crime. Rehmeyer, supra, at 1338. As the trial court

observed, “Appellant and [co-defendant] were placed together in a police

cruiser, unsecured.”      Trial Court Opinion, 4/15/16, at 5.   Accordingly, the

trial court did not err in denying Appellant’s suppression motion.

       We now turn to Appellant’s argument that the evidence was

insufficient to sustain his convictions for persons not to possess firearms and

firearms not to be carried without a license.      Appellant’s Brief at 14.   In

support of his sufficiency argument, Appellant points out only that the

Commonwealth failed to meet the element of constructive possession.8

       “A claim challenging the sufficiency of the evidence is a question of

law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

       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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8
  Appellant stipulated at trial that he was a person not possess a firearm on
account of prior criminal convictions “for at least 60 days prior to the date of
this incident.” N.T. Trial, 9/11/13, at 96.



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       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.

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014).

       Section 6105 of the Crimes Code, relating to persons not to possess,

provides in part:

       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).9         Section 6106 of the Crimes Code, relating to

firearms not be carried without a license, provides in part:

       Except as provided in paragraph (2), any person who carries a
       firearm in any vehicle or any person who carries a firearm
       concealed on or about his person, except in his place of abode or
       fixed place of business, without a valid and lawfully issued
       license under this chapter commits a felony of the third degree.

18 Pa.C.S.A. § 6106(a)(1).



____________________________________________


9
  “Mere possession, along with the prior criminal conviction, establishes the
elements of this crime.” Commonwealth v. Moore, 49 A.3d 896, 903 (Pa.
Super. 2012).



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      Possession of an object may be proven by circumstantial evidence.

See Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa. Super. 2013)

(noting that “circumstantial evidence may be used to establish a defendant’s

possession of . . . contraband”), appeal denied, 77 A.3d 636 (Pa. 2013).

Possession of a weapon can be found by proving actual possession,

constructive     possession,    or    joint   constructive     possession.        See

Commonwealth v. Heidler, 741 A.2d 213, 215 (Pa. Super. 1999), appeal

denied, 758 A.2d 660 (Pa. 2000). Constructive possession is found where

the defendant does not have actual possession over the weapon but has a

conscious dominion over it.         See id. at 216.    “In order to prove that a

defendant      had   constructive    possession   of   a     prohibited   item,   the

Commonwealth must establish that the defendant had both the ability to

consciously exercise control over it as well as the intent to exercise such

control.”   Commonwealth v. Gutierrez, 969 A.2d 584, 590 (Pa. Super.

2009), appeal denied, 983 A.2d 726 (Pa. 2009); accord Commonwealth

v. Magwood, 538 A.2d 908, 909-10 (Pa. Super. 1988), appeal denied,

546 A.2d 57 (Pa. 1988).        The requirements needed to satisfy constructive

possession may be inferred from the totality of the circumstances.

Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996), appeal

denied, 692 A.2d 563 (Pa. 1997). 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 id. Furthermore, the




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fact that another person might have equal access and control to an object

does not eliminate the defendant’s constructive possession. See id.

      Here, the evidence presented at trial, viewed in a light most favorable

to the Commonwealth, establishes the Commonwealth proved the necessary

element of constructive possession.    Thus, we agree with the trial court’s

conclusion that Appellant’s convictions for firearms violation were supported

by sufficient evidence. As the trial court found, “[t]he gun was lying on the

passenger-side floor against the center console, inches away from where

[]Appellant was seated.” Trial Court Opinion, 4/15/16, at 7. The trial court

further found:

      Appellant was riding in the passenger seat of [the] vehicle at
      arm’s length from an operational firearm. There was also a
      pouch of ammunition on the passenger side floor. Appellant
      rode in the vehicle twice on the night the vehicle was pulled
      over. Although Appellant denied knowledge of the firearm,
      Sergeant Byers testified that it was in plain view when he looked
      [inside the vehicle] while closing the passenger[-]side door after
      Appellant exited. Further, Officer Brubaker testified that . . .
      [the co-defendant] stated that the gun belonged to Appellant.

Id.   Accordingly, Appellant is not entitled to relief on his sufficiency

challenge with respect to the firearms convictions under Sections 6105 and

6106 of the Crimes Code.

      Appellant lastly argues that his firearms convictions were against the

weight of the evidence. We, however, need not address the merits of this

issue as Appellant failed to preserve it for our review.     Specifically, our

review of the record indicates that Appellant failed to raise the issue before

the trial court. “A weight of the evidence claim must be preserved either in


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a post-sentence motion, by a written motion before sentencing, or orally

prior to sentencing.       Failure to properly preserve the claim will result in

waiver, even if the trial court addresses the issue in its opinion.”

Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa. Super. 2013) (citing

Pa.R.Crim.P. 607) (other citations omitted). As Appellant did not raise this

claim at sentencing or preserve it through a timely filed post-sentence

motion,10 the issue is waived on appeal.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/22/2016




____________________________________________


10
   As noted, Appellant here did file a post-sentence motion, which we
rejected as untimely on his previous appeal. See Garcia-Quintero, No.
1080 MDA 2014, at 5; see also Commonwealth v. Wrecks, 931 A.2d 717,
719 (Pa. Super. 2007) (observing that “[a]n untimely post-sentence motion
does not preserve issues for appeal.”) (citation omitted); Commonwealth
v. Bilger, 803 A.2d 199, 202 (Pa.Super. 2002), appeal denied, 813 A.2d
835 (Pa. 2002) (recognizing that post-sentence motion filed more than ten
days after sentence imposed is legal nullity).



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