J-S73025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MARQUISE BARNETT

                            Appellant                No. 345 WDA 2016


           Appeal from the Judgment of Sentence January 25, 2016
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0001671-2015


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                       FILED NOVEMBER 4, 2016

        Marquise Barnett appeals from his judgment of sentence, entered in

the Court of Common Pleas of Erie County, after a jury convicted him of

possession of firearm prohibited1 and firearms not to be carried without a

license.2 After careful review, we affirm.

        On May 22, 2014, Barnett was arrested for fleeing or attempting to

elude an officer, accident involving damage to property, and various firearms

charges in connection with his flight from officers attempting to effectuate a

traffic stop. Erie police officers had received information from a confidential

informant (CI) that a Ford Econoline van, registration plate #JML4554, had

____________________________________________


1
    18 Pa.C.S. § 6105(a)(1).
2
    18 Pa.C.S. § 6106(a)(1).
J-S73025-16



been involved in a rash of shootings and may soon be involved in additional

shootings.     On September 19, 2014, Barnett filed an omnibus pre-trial

motion to suppress evidence uncovered from the traffic stop. On November

14, 2014, the court denied Barnett’s motion.             On April 6, 2015, the day

Barnett was called to trial, the Commonwealth obtained a forensic report

that potentially linked the guns recovered from Barnett to a shooting. The

Commonwealth requested that all the charges be nolle prossed in order to

join the additional charges3 resulting from the new information. The court

granted the Commonwealth’s request and Barnett was released from

custody.

       On April 15, 2015, the Commonwealth re-filed the firearm violation

charges against Barnett and added additional charges related to an incident

where shots were fired into a house located at 1861 Woodlawn Avenue. On

October 26, 2015, Barnett filed a motion to dismiss the case for violation of

his Rule 600 (speedy trial) rights.            After a hearing, the Honorable Shad

Connelly denied the motion on November 13, 2015.

       On August 26, 2015, Barnett filed another pre-trial motion to suppress

the investigatory traffic stop; the trial court denied the motion finding that

the issues raised were collaterally estopped based on its prior suppression


____________________________________________


3
   The Commonwealth added the charges of aggravated assault (2 counts),
recklessly endangering another person (2 counts), and discharge of a
firearm into an occupied structure.



                                           -2-
J-S73025-16



order.    A two-day jury trial was held before the Honorable William R.

Cunningham on November 18-19, 2015.               On November 19, 2015, Barnett

was found guilty of the above-mentioned firearm offenses.4 On January 25,

2016,    Judge    Cunningham        sentenced    Barnett   to   42   to   84   months’

incarceration for the firearms not to be carried without a license charge and

a concurrent term of 5 years of probation for the possession of firearm

prohibited charge.5        Post-sentence motions were filed and denied on

February 5, 2016. Barnett filed a timely notice of appeal on March 2, 2016,

raising the following issues for our consideration:

        (1)   Whether the suppression court err[ed] in finding the
              investigatory detention of [Barnett] was justified by
              reasonable suspicion where the police relied solely upon
              information from an informant who[se] reliability was not
              substantiated by any objective facts?[6]




____________________________________________


4
  The trial court granted Barnett’s motions for judgment of acquittal
regarding the additional charges involved in the Woodlawn Avenue house
shooting.
5
  He was deemed not eligible under the Recidivism Risk Reduction Incentive
(RRRI) Act, 61 Pa.C.S. § 4501-12.
6
  When reviewing an order denying a motion to suppress evidence, we must
determine whether the trial court’s factual findings are supported by the
evidence of record. If the evidence supports the trial court’s findings, we are
bound by them and may reverse only if the legal conclusions drawn
therefrom are erroneous. Commonwealth v. Blair, 860 A.2d 567, 571
(Pa. Super. 2004).



                                           -3-
J-S73025-16


       (2)    Whether the lower court err[ed] in failing to dismiss the
              charges where the Commonwealth violated [Barnett’s]
              right to a speedy trial?[7]

       (3)    Whether the trial court err[ed] in failing to instruct the jury
              that they should disregard any evidence regarding a
              shooting of the Woodlawn House where the court had
              dismissed   those    charges     at    the    close    of   the
              Commonwealth’s case?

       After a review of the parties’ briefs, the record on appeal, and relevant

case law, we conclude that the trial court opinions, authored by Judge

Connelly,    properly    dispose    of   Barnett’s   first   two   claims   on   appeal.

Therefore, we rely upon Judge Connelly’s November 14, 2014 opinion and

November 13, 2015 opinion to affirm these issues.8 See Trial Court Opinion

(suppression issue), 11/14/14, at 5-6 (traffic stop based upon officers’

reasonable suspicion where CI’s tip was corroborated and very specific; CI

____________________________________________


7
  In Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa. Super. 2004) (en
banc), our Court set forth the proper standard of review and scope of review
for Rule 600 cases as follows:

       In evaluating Pa.R.Crim.P. 600 issues, the appellate court’s
       standard of review of a trial court's decision is whether the trial
       court abused its discretion. An abuse of discretion is not merely
       an error of judgment, but if in reaching a conclusion the law is
       overridden or misapplied or the judgment exercised is manifestly
       unreasonable, or the result of partiality, prejudice, bias, or ill
       will, as shown by the evidence or the record, discretion is
       abused. The proper scope of review is limited to the evidence on
       the record of the Rule 600 evidentiary hearing, and the findings
       of the trial court. An appellate court must view the facts in the
       light most favorable to the prevailing party.
8
 We instruct the parties to attach a copy of Judge Connelly’s opinions in the
event of further proceedings in the matter.



                                           -4-
J-S73025-16



told officers that red/burgundy Ford van with registration plate number

JML4554 that had been involved in rash of shootings was parked in specific

area; that more shootings may happen in vicinity in future; officers located

exact van in area cited by CI; van fled from police as they followed it; shots

fired in second area reported by CI; and van seen by witnesses leaving

shooting area and being driven by same black male wearing white t-shirt

whom officers had seen enter van earlier);9 see Trial Court Opinion

(Pa.R.Crim.P. 600 issue), 11/13/15, at 2-3 (Rule 600 run date not violated

where    withdrawal      and    re-filing      of   charges   by   Commonwealth   was

necessitated by factors beyond its control, Commonwealth exercised due

diligence, and re-filing was not attempt to circumvent Rule 600 time

limitations).10

       Barrett’s final issue, regarding the trial court’s failure to give a

cautionary instruction to the jury that the evidence from the Woodlawn

Avenue house shooting should be disregarded in their deliberations, is

____________________________________________


9
  See also Commonwealth v. Griffin, 954 A.2d 684 (Pa. Super. 2008)
(corroboration of information provided gave informant’s statements
reliability).
10
   See generally Commonwealth v. Dixon, 140 A.3d 718 (Pa. Super.
2016) (sets forth burden of proof for Commonwealth under former Rule 600
when initial complaint withdrawn or dismissed and charges re-filed). In
2012, former Rule 600 was rescinded and new Rule 600 was adopted to
reorganize and clarify the provisions of the rule in view of the long line of
cases that have construed the rule. However, the due diligence standard
remains consistent in both versions of the rule.



                                            -5-
J-S73025-16



waived on appeal.    Barnett failed to preserve his challenge to the court’s

instruction by not objecting when it was given. See Pa.R.A.P. 302(b); N.T.

Jury Trial, 11/19/15, at 173. Moreover, raising the issue in a Rule 1925(b)

statement of errors complained of on appeal does not overcome the

requirement   that   a    defendant   contemporaneously   object   at   trial.

Commonwealth v. Ali, 10 A.3d 282 (Pa. 2010).

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/4/2016




                                      -6-
                                                                                Circulated 10/13/2016 02:19 PM




COMMONWEALTH            OF PENNSYLVANIA         CL~RYi~!rt4tlt~.J3T     OF COMMON PLEAS
                                               2a;5:nof!f,,Eij.\E COUNTY, PENNSYLVANIA
                        v.                          : CRlM1r<JAl: ll11~1SION
                                                    f i\ If If\_: r Y
MARQUISE BARNETT                                 CL~P~KN:b-~d~OH~t2015
                                                  Edt •IMn, -~-J.:,
                                                              .. .);_,j i




                                          OPINION

Connelly, P. J., November 13, 2015

         The matter before the Court is pursuant to a Motion to Dismiss for Violation of

Rule 600 filed by Marquise Barnett (hereinafter "Defendant"). The Commonwealth

opposes. A hearing was held before the Court on this matter on November 10, 2015.

                                               FACTS

         On May 22, 2014, Officer Deluca of the Erie Police Department arrested the

defendant on Firearm, Fleeing and Eluding, and Accidents Involving Damage to

Property charges pursuant to an attempted traffic stop of a van the defendant was

operating.1 Relative thereto a Forensic Examination Request was generated on

May 22, 2014 by Officer Deluca as to two firearms that were recovered. (See Com.

ex.,.
r- ~)


          In an incident that occurred on May 21, 2014 on Woodlawn Avenue that may

have been related to the above, the police, via requesting Ptlm. Brown, also sent

several bullets and shell casings for testing. Comparison Testing was additionally

requested by Officer Deluca as to all materials in both crimes. (Com.Ex.1).              The

firearms and bullets were received by the Pennsylvania State Police later on June 18,

2014 and June 19, 2014 (see Com.Exs.3 & 4).


1
    For full details of this incident see this Court's detailed Opinion dated November 14, 2014.
                                                   1
                                             APPENDIX D
      The case at 1th and Poplar involving Officer Deluca was first scheduled for trial

in the January 2015 term. It was not called. It was scheduled again in the March Term

and was continued by the defense.     It was then called for trial in the April term and prior

to jury selection on April 6, 2015 the Firearm and Tool Examiner for the Pennsylvania

State Police, Bureau of Forensic Services, issued his report (see Com.Exs.5        & 6),

revealing for the first time that the incidents were in fact related as one of the firearms

(Kahn Arms) could have discharged one of the bullets and that the other (Taurus) did

discharge one of the bullets. Based on the above information the Commonwealth

moved to nolle pros the charges and Officer Deluca refiled them (on April 15, 2015)

with additional charges of Aggravated Assault (two counts), Discharge of a Firearm into

an Occupied Structure and Reckless Endangering (two counts) based on the new

information contained in the forensics report.




       The Pennsylvania Supreme Court has held that the Rule 600 run date is

calculated from the second filing only in circumstances where the withdrawal and refiling

are necessitated by factors beyond the Commonwealth's control, the Commonwealth

has exercised due diligence and the refiling was not an attempt to circumvent the

limitations of Rule 600. Com. v. Meadius, 870 A.2d 802 (Pa. 2005),

       In the case at bar the withdrawal (nolle pros) and refiling of the charges was

necessitated by forensic information the Commonwealth received on the day it was

prepared in all aspects to commence trial against the defendant in a timely fashion

(after a defense continuance from the prior term). The completion, issuance and timing



                                              2
of the forensic report were factors beyond the Commonwealth's     control and in all

likelihood solely dependent on the particular examiner's work load.

       Second, the Commonwealth exercised due diligence in scheduling the trial on

the first day of the April 2014 Court term after the defendant's continuance from the

March term. In all aspects of the case the Commonwealth was ready, willing and able

to try the case at that time.

       And finally, while the Commonwealth was aware that dismissal and refiling

would, as a collateral consequence, result in a technical violation of Rule 600, such was

done so not to circumvent Rule 600, but obviously to comply with the requirements of

18 Pa.C.S.A.§110(1)(ii)   as to compulsory joinder and to avoid running afoul of this

statute barring later separate prosecution.   The Court finds the Commonwealth's

decision to be eminently reasonable under the circumstances, and the Commonwealth

should not be punished under Rule 600 for its decision. A dismissal affects the

prosecution but also diminishes the public's confidence as to its reasonable expectation

that those who have been charged with crimes will face a jury of their peers. Com.       v.
Schaffer, 712 A.2d 749 (Pa. 1998). And the extreme sanction of dismissal should only

be imposed in blatant cases of prosecutorial misconduct. Com. v. Burke, 781 A.2d

1136 (Pa. 2000). Here the actions of the Commonwealth are not so egregious (they

were in fact reasonable) that the extreme remedy of dismissal be imposed. Com.          v.
Goldman, 70 A.3d 874 (Pa.S. 2013).




                                              3
    f                                                                           Circulated 10/13/2016 02:19 PM




COMMONWEALTH OF PENNSYLfM1A~                            c: flNrT,H~COURT OF COMMON PLEAS
                                     2JJt .•           : OF ERie COUNTY, PENNSYLVANIA,
                                          • I
                                                10,, I 4 Pt: 3: 0 7
                                                I   ,


                vs.                        f:P/.: l;        ~~IMINAL DIVISION
                                      CLEid CJ.-r---;,,;, ; ...
MARQUISE BARNETT                       E~J :. ~/ • · No    . .1633-2014
                                                      )  .. 1


                                         OPINION

Connelly, J., November 14, 2014

        The matter before the Court is pursuant to an Omnibus Pre-Trial Motion filed by

Marquise Barnett (hereinafter "Defendant"). The Commonwealth opposes. A hearing

was held after which both Defendant and the Commonwealth submitted briefs.

                                    Statement of Facts

        At the October 8, 2014, Omnibus Pre-Trial Hearing Officer Deluca testified that

on or around May 21, 2014, Det. Bizzarro informed him that a Burgundy Ford Van with

license plate number JML4554 ("the van") "had allegedly been involved in a rash of

shootings and may soon be involved in additional shootings." Def. 's Br. in Supp. 1-2.

Det. Bizzarro testified that a known confidential informant (Cl) informed him that the

"van was kept in the area of 17'h and Poplar Streets" and that more shootings may

happen in the future "in the areas of 61h and Wallace Streets and/or 29th and German

Streets and that the shootings were over some type of vendetta." Def. 's Br. in Supp. 2-

3

        On May 21, 2014, between 10:00 and 11 :00 pm, Officers Deluca and Stadler

were patrolling the vicinity of West 1 ?'h and Poplar Streets looking for the van pursuant

to the information received from the confidential informant (Cl). Comm. 's Br. in Opp.

2., Def. 's Br. in Supp. 2. After locating the van in the 700 block of West 1 ?'h street, the

Officers observed an individual enter it and proceed to drive down West 1 ?'h Street.


                                                        1
                                                APPENDIX C
    l.




Def. 's Br. in Supp. 2., Comm. 's Resp. 3. After the van drove away the officers "tried

to follow the van but lost it after a couple of blocks." Def. 's Br. in Supp. 2.

Approximately twenty to thirty minutes later "a report came over the police radio of shots

fired in the area of 5th and Wallace Streets" and later "in the area of 29th and German

Streets" and Woodlawn Avenue. Id. at 3. On May 22, 2014, at 12:04am, the Officers

observed the same van "driving north on Poplar Street between West 1 ath and West

19th Streets." Id. at 4. The Officers attempted to effectuate a traffic stop by turning

behind the van and activating their lights and siren. Id.

         After activating the lights and siren the van sped off and a silver object was

thrown from the driver's side window. Preliminary Hearing Transcript (P. T.) 5:21-23,

17:20-24. The van went through a stop sign and came to rest against the front stairs of

a house. P. T. 6:10-17. As a black male wearing a white T-shirt exited the side door of

the van and proceeded to run, the Officers observed a dark object fall from his person.

P. T. 6:24-25, 7:1-19. Officer Stadler pursued the Defendant and ultimately took him into

custody. P. T. 21 :4-25, 22:1-23. As Officer Stadler handcuffed the Defendant's left hand

the Defendant pulled his right arm from behind his back and Officer Stadler struck him

once in the face and right arm "to safely get him into custody." P. T. 22:8-120.

         Defendant avers all items seized as the result of the initiation of the traffic stop

should be suppressed as the stop was illegal "as each of those items would be fruits

from a poisonous tree." Def. 's Mot ,i 24. Defendant also requests the "charges of

Possession of Firearm with altered Serial Number; Persons Not to Possess Firearm

(2cts); Firearm w/o license (2cts); RSP, Resisting Arrest; Flee/Eluding; and Accidents




                                                2
     ..
                        1
involving Damage"           be dismissed/ "for lack of prima facie evidence." Def. 's Mot.1J 40.

The Commonwealth argues Defendant's Motion to Suppress should be denied because

the Officers "possessed reasonable suspicion to initiate a traffic stop of the van" and

"the Commonwealth met its burden of proving a prima facie case ... " Comm. 's Resp. 8.

                                            Analysisof Law

I. Defendant avers the Officersinitiatedan unlawfultraffic stop and thus the items
seized as a resultshouldbe suppressed as fruits from the poisonoustree.

          Defendant seeks to suppress all evidence seized as a result of the attempted

investigatory stop" asserting that the Officers did not have reasonable suspicion, based

on the information from the Cl, and the shots fired reports from the evening of May 21,

2014, to pull over the van. Def. 's Br. in Supp. 5. The Commonwealth argues the

Officers "possessed reasonable suspicion to initiate a traffic stop of the van ... "

Comm. 's Resp. 5.

          To legally institute an investigative detention/traffic stop an officer must have at

least a reasonable suspicion criminal activity is afoot. Commonwealth v. Jones, 874

A.2d 108, 116 (Pa. Super. 2005). The Court may find reasonable suspicion exists only

where an officer is able to "articulate specific observations which, in conjunction with

reasonable inferences derived from these observations, led him reasonably to conclude,

in light of his experience, that criminal activity was afoot and the person he stopped was

involved in that activity." Commonwealth v. Fulton, 921 A.2d 1239, 1243 (Pa. Super.

2007). "The totality of the circumstances standard remains the governing standard for

the reasonable suspicion analysis and demands an objective consideration of all factors


1
2
  Defendant does not address the Disorderly Conduct Charge in his Motion or Brief in Support.
3
  The charge of driving under suspension was dismissed at the Preliminary Hearing. P. T. 32:5-11.
  The parties do not dispute that the Officers' attempt to pull over the van was an investigative detention.

                                                      3
attending a tip provided by a police informant - anonymous or not." Commonwealth v.

Brown, 996 A.2d 473, 479 (Pa. 2010).

      Although taken alone, facts such as fleeing the scene or mere presence in a high

crime area do not establish reasonable suspicion, a combination of these factors may

establish reasonable suspicion. Commonwealth v. Cook, 735 A.2d 673, 677 (Pa.

1999) (citations omitted). The Pennsylvania Superior Court has found:

             When an identified third party provides information to the
             police, we must examine the specificity and reliability of the
             information provided. The information supplied by the
             informant must be specific enough to support reasonable
             suspicion that criminal activity is occurring. To determine
             whether.the information provided is sufficient, we assess the
             information under the totality of the circumstances. The
             informer's reliability, veracity, and basis of knowledge are all
             relevant factors in this analysis.

Commonwealth v. Barber, 889 A.2d 587, 593-94 (Pa. Super. 2005) (quotations,

quotation marks, and citations omitted).

      While reasonable suspicion is a less rigorous standard than probable cause,

             information received from confidential informants may
             properly form the basis of a probable cause determination ...
             An informant's tip may constitute probable cause where
             police independently corroborate the tip, or where the
             informant has provided accurate information of criminal
             activity in the past, or where the informant himself
             participated in the criminal activity.

       Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999). In the instant case, Oet.

Bizzarro testified "he had used this particular Cl for approximately 10 years, and that

he/she had provided reliable information on numerous prior cases which led to arrests"

as well as "conviction for crimes, including homicide." Def.'s Br. in Supp. 2, Comm.'s

Resp. 2. See Commonwealth v. Williams, 2 A.3d 611, 613 (Pa. Super. 2010) (finding

                                             4
Cl to be reliable where Cl had provided information for ten (10) years which led to

convictions of over twenty individuals for felony drug violations.) Thus, the record

establishes the Cl was known to Det. Bizzarro and had provided accurate information of

criminal activity in the past.

       During their surveillance during the night and early morning on May 21 and May

22, 2014, Officers Stadler and Deluca corroborated the existence of a Red/Burgandy

Ford Van with registration plate number ML4554, which was parked near West 17'h and

Poplar Streets. Comm. 's Resp. 7. Shortly after losing sight of the van, the Cl's

information was further corroborated when shots were reported fired in the areas of

East 61h and Wallace and East 29th and State Streets, as well as Woodlawn Avenue

where a witness reported seeing a "maroon full sized van leaving the area." Comm. 's

Resp. 7.

              This ability to predict future events is relevant because only
              a small number of people are generally privy to an
              individual's itinerary, [and] it is reasonable for police to
              believe that a person with access to such information is likely
              to also have access to reliable information about that
              individual's illegal activities."

Commonwealth v. Griffin, 954 A.2d at 651 (internal citation and quotation omitted).

       After the reported shootings the Officers saw the same van returning to the area

of West 1 ?'h and Poplar Street, being driven by the same black male wearing a white t-

shirt whom they had seen entering the van earlier. Comm. 's Resp. 7. See

Commonwealth v. Griffin, 954 A.2d 648, 653 (Pa. Super. 2008) (Finding reasonable

suspicion existed where officers independently verified the defendant's name, address,

license number, and type of truck, conditions of defendant's house arrest, and that

defendant would shortly be leaving his house to manufacture drugs.) Thus, at the time


                                             5
the Officers activated the lights and siren and attempted to effectuate the investigatory

stop of the van they had reasonable suspicion, based on the previously reliable Cl's

corroborated present information, that criminal activity was afoot and any persons in the

van may be involved in that activity. Therefore, the investigatory stop was proper and

evidence discovered as a result of the stop is not fruit from the poisonous tree and shall

not be suppressed.

II. Defendant avers the Commonwealth   has failed to present a prima facie case
pursuant to the charges of Resisting Arrest, Receiving Stolen Property,
Possession of a Firearm with an Altered Serial Number, Flee/Eluding, Accidents
Involving Damage and two counts each of Persons not to Possess Firearms and
Possession of Firearm without a license.

       Defendant avers the record has not established he was the driver of the van, that

he possessed either handgun, that he intentionally moved his arm or that the Officer

Stadler required 'substantial force' to overcome any resistance. Def. 's Br. in Supp.8-9.

The Commonwealth argues it has met its prima facie burden as to the remaining

charges. Comm.1s Resp. 9-11.

              A trial court may grant a defendant's petition for writ habeas
              corpus where the Commonwealth has failed to present a
              prima facie case against the defendant. A prima facie case
              exists when the Commonwealth produces evidence of each
              of the material elements of the crime charged and
              establishes sufficient probable cause to warrant the belief
              that the accused committed the offense. Notably, the
              Commonwealth does not have to prove the defendant's guilt
              beyond a reasonable doubt. Further, the evidence must be
              considered in the light most favorable to the Commonwealth
              so that inferences that would support a guilty verdict are
              given effect.

Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005) (citations and internal

quotations omitted). Pennsylvania law has established, "[a]ny driver of a motor vehicle

who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or


                                              6
attempts to elude a pursuing police officer, when given a visual and audible signal to

bring the vehicle to a stop, commits an offense as graded in subsection (a.2.)." 75 Pa.

c.s. § 3733.
        Here, the Commonwealth asserts:

                The Patrolmen saw a black male in a white t-shirt enter the
                van and then saw the van leave the West 17 and Poplar
                area. After losing surveillance and responding to the
                shooting call(s), the Patrolmen again observed the suspect
                van being operated by a black male with a white t-shirt. After
                the chase where the van ran over the curb, hit a sign and
                struck the steps and halted, the side van doors opened and
                the only occupant to alight from the van was a black male
                with a white t-shirt4 ••• Patrolman Stadler saw the suspect go
                over a fence and went around to cut him off, all along
                hearing him run between the houses. Patrolman Stadler
                found the suspect and took him into custody, the suspect
                was identified as the Defendant.

Comm.'s Resp. 8-9.

        Although Defendant asserts "there was no evidence presented that the

Defendant was the driver of the van ... ,, the Court finds the record establishes the

Defendant was the only person in the van and therefore must have been the operator.

Def.'s Br. in Supp. 8. Thus, the Defendant willfully failed or refused to bring the van to

a stop and then fled from Officer Stadler. See Commonwealth v. Villanueva, 2010 Pa.

Dist. & Cnty. Dec. LEXIS 188, *10-13 (Lehigh 2010) (Finding the Commonwealth

presented a prima facie case for fleeing/eluding where the defendant "turned sharply

and pulled behind the garage in order to avoid b~ing stopped.")5



4
  On Page 4 (four) of its Response the Commonwealth stated the Defendant exited the van "just before
the van hit a street sign and the front stairs of a residence. n Comm. 's Resp. 4. The Court finds the direct
testimony from the Preliminary Hearing to be the more accurate account.
5
  In that case the Court also found: "[t]he Defendant further conceded that he had switched places with
his female passenger to create the illusion that she had been driving the car." VIiianueva, at *10.
                                                      7
       Defendant asserts as "there was no evidence presented that the Defendant ever

possessed either of the firearms" the charges relating to the recovered handguns

cannot be sustained. Def. 's Br. in Supp. 8. The Commonwealth argues "the evidence

clearly shows circumstantially he was in actual possession or in the alternative was in

constructive possession of the firearms." Comm. 's Resp. 9.

       As to the charge Persons not to Possess Firearms, Pennsylvania law

establishes:

               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) ..

       The charges of Firearms Not to Be Carried without a License and Persons not to

Possess Firearms may be established where defendant is found to be in constructive

possession of a firearm. Commonwealth v. De Vaughn Hawkins, 22 Pa. D. & C.5th

406, 410 (Lawrence 2011} citing Commonwealth         v, Gutie"ez, 969 A.2d 584, 590 (Pa.
Super. 2009). "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." De Vaughn Hawkins, 22 Pa. D. & C.5th at 411. See Gutie"ez, 969 A.2d at

590.

       In the instant case, the Commonwealth alleges "the defendant to be sole

occupant and driver of the vehicle." Comm. 's Resp. 9. While pursuing the vehicle,



                                              8
Officer Deluca "observed a silver object being tossed· out of the driver's side window."

Comm. 's Resp. 9. Officer Deluca returned to where "silver object was tossed and

located a silver .40 caliber Kahr semiautomatic handgun with an obliterated serial

number.. .it had scrape marks consistent with being tossed across the hard road

surface." Comm. 's Resp. 9-10. "At the time the Defendant jumped from the vehicle,

Patrolman Deluca observed a dark colored object fall from the defendant's body. It fell

to the ground with a metal thud. Patrolman Deluca immediately yelled 'gun, gun, gun.'

Patrolman Deluca recovered the object, a revolver from the ground." Comm. 's Resp.

10. At the Preliminary Hearing Officer Deluca testified the Defendant's prior record

prohibited him from possessing a firearm. P. T. 11 :6-22. Thus, as the Commonwealth

has presented sufficient information to establish that the Defendant had physical control

over the guns, utilized that control, and that he was prohibited from owning a firearm,

the Commonwealth has pied the necessary elements as to the charge of Persons not to

Possess Firearms pursuant to 18 Pa. C.S. § 6105.

      As to the charges of Possession of Firearm without a license, Pennsylvania law

established:

               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. § 6106(a)(1). Here, the Commonwealth has pied Defendant possessed the

firearms recovered and was prohibited from doing so. Thus, the Commonwealth has

pied the necessary elements as to the charge of Possession of Firearm without a

License.

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   ..

        As to the charges of Possession of a Firearm with an Altered Serial Number and

Receiving Stolen Property, Pennsylvania law establishes: "No person shall possess a

firearm which has had the manufacturer's number integral to the frame or receiver

altered, changed, removed or obliterated." 18 Pa.C.S. § 6110.2(a). "A person is guilty of

theft if he intentionally receives, retains, or disposes of movable property of another

knowing that it has been stolen, or believing that it has probably been stolen, unless the

property is received, retained, or disposed with intent to restore it to the owner." 18

Pa.C.S. § 3925(a).

        Here, the Commonwealth alleges the Defendant tossed "a silver .40 caliber Kahr

semiautomatic handgun with an obliterated serial number'' from the driver's side window

the van. Comm. 's Resp. 9-10. Also, "[a]t the time the defendant jumped from the

vehicle, Patrolman Deluca observed a dark colored object fall from the defendant's

body." Comm. 's Resp. 10. Officer Stadler testified "the revolver was recovered outside

of the van ... The revolver came back stolen ... " P. T. 23:2-8. Thus, as the

Commonwealth has set forth that Defendant possessed these firearms, one with an

altered serial number and one which was reported as stolen, the Commonwealth has

sufficiently pied the elements of Possession of a Firearm with an Altered Serial Number

and Receiving Stolen Property.

        As to the charge of Resisting Arrest or Other Law Enforcement:

              A person commits a misdemeanor of the second degree if,
              with the intent of preventing a public servant from effecting a
              lawful arrest or discharging any other duty, the person
              creates a substantial risk of bodily injury to the public servant
              or anyone else, or employs means justifying or requiring
              substantial force to overcome the resistance.

18 Pa. C.S. § 5104.

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   ..

        The statute "does not require the aggressive use of force such as a striking or

kicking of the officer." Commonwealth v. Villanueva, 2010 Pa. Dist. & Cnty. Dec.

LEXIS 188, *10-13 (Lehigh 2010) (quoting Commonwealth v. Miller, 327 Pa. Super.

154, 475 A.2d 145, 146 (Pa. Super. 1984). In Villanueva the Commonwealth was found

to have made a prima facie case for resisting arrest where the arresting officer "needed

to apply 'wrist pressure' to gain compliance from the Defendant" and another police

officer was needed to place him in handcuffs while the defendant "rebuffed the Officers'

attempts to place him in Officer Williams' police cruiser." Id.

        Here, the Commonwealth sets forth Officer Stadler, gun drawn, ordered the

defendant to the ground. Comm. 's Resp. 11. After handcuffing the Defendant's left

arm, "the defendant moved his other arm away, towards his waist." Id. Officer Stadler,

"[f]earing the defendant may have a firearm and trying to gain access to it, . . .struck

twice before he was able to handcuff him." Id. Thus, the Commonwealth has sufficiently

established their prima facie case against Defendant for resisting arrest as his actions

prevented Officer Stadler from effectuating a lawful arrest and Officer Stadler, believing

Defendant may have been armed employed substantial force to overcome the

resistance.

         As to the charge of Accidents Involving Damage:

               The driver of any vehicle involved in an accident resulting
               only in damage to a vehicle or other property which is driven
               or attended by any person shall immediately stop the vehicle
               at the scene of the accident or as close thereto as possible
               but shall forthwith return to and in every event shall remain
               at the scene of the accident until he has fulfilled the
               requirements of section 3744 (relating to duty to give
               information and render aid). Every stop shall be made
               without obstructing traffic more than is necessary.



                                             11
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    75 Pa. C.S. § 3743(a). The Pennsylvania Superior Court held "that the duty to stop

    under section 3743 arises whenever a driver knows, or in the exercise of reasonable

    care should know, that his vehicle has been involved in an accident." Commonwealth

    v. Kauffman, 470 A.2d 634, 640 (Pa. Super. 1983). Here, Officer Deluca testified the

    Defendant, while fleeing, "ran over a posted sign and then the vehicle came to rest

    against the front stairs of a house." P. T. 6:15-17. Officer Deluca also testified the

    Defendant exited the van after came to a stop against the house.6 P. T. 6:22-5, 7:1.

    Thus, the Court finds the Commonwealth has sufficiently established the Defendant

    knew, or should have known, that the van was involved in an accident pursuant to 75

    Pa. C.S. §3743(a). Therefore, the Court finds the Commonwealth has established prima

    facie cases for the charges of charges of Possession of Firearm with altered Serial

    Number; Persons Not to Possess Firearm (2cts); Firearm w/o license (2cts); RSP,

    Resisting Arrest; Flee/Eluding and Accidents involving Damage.




    6
      In its Response the Commonwealth stated the Defendant exited the van "just before the van hit a street
    sign and the front stairs of a residence." Comm. 's Resp. 4. The Court finds the direct testimony from the
    Preliminary Hearing to be the more accurate account.
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