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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                           Appellee

                      v.

ANTWONE D. THURSTON

                           Appellant                     No. 878 WDA 2015


          Appeal from the Judgment of Sentence January 30, 2014
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0013236-2012


BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.:                         FILED SEPTEMBER 08, 2016

      Appellant, Antwone Thurston, appeals nunc pro tunc from the

judgment of sentence entered after the trial court convicted him of two

counts of burglary and other associated crimes. Thurston argues that the

trial court erred in denying his suppression motion and, furthermore, that

the evidence at trial was insufficient to support his convictions. After careful

review, we affirm.

      Pittsburgh     police   were    conducting   surveillance   of   a   high-crime

intersection when Officer Howard McQuillan observed a vehicle driven by

Thurston enter a public parking lot near the intersection. Thurston

proceeded to the back corner of the parking lot, and stopped next to two

men sitting on a wall. One of the males on the wall approached Thurston’s

vehicle, and the two conversed briefly. Officer McQuillan suspected a
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narcotics transaction was about to take place, but did not observe anything

pass between the two men.

      Thurston drove away and parked his vehicle in a different section of

the parking lot. While parked, Thurston pulled out a backpack and began

rummaging through it. Officer McQuillan believed that Thurston was

packaging narcotics to sell to the men on the wall, and requested that

plainclothes officers respond to the scene to investigate. Officer Douglas

Butler and his partner entered the parking lot in their unmarked vehicle

shortly thereafter.

      After parking, Officer Butler approached Thurston’s vehicle on foot and

observed Thurston using a pry bar to open a wooden jewelry box. He also

observed a laptop computer, a tablet computer, and several bags inside the

vehicle. During this time, police dispatch reported several burglaries in a

nearby section of the city. Officer Butler ultimately placed Thurston under

arrest on charges of burglary, receiving stolen property, and possession of

instruments of crime.

      Thurston moved for the suppression of physical evidence obtained

from his vehicle, but the trial court denied his motion. The Commonwealth

withdrew several charges, and the case proceeded to a bench trial on the

remaining charges. After finding Thurston guilty on all remaining charges,

the trial court sentenced him to a term of incarceration of 11½ months to 23

months to be followed by ten years’ probation. No direct appeal was filed.


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      Thurston’s direct appeal rights were subsequently restored via a Post

Conviction Relief Act proceeding. Thurston then filed this notice of appeal

nunc pro tunc.

      On appeal, Thurston raises four separate challenges to his convictions.

In his first two issues, he contests the trial court’s denial of his suppression

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

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

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

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

(citations omitted).

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

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

omitted).

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

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

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

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


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

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

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

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

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

Section 8 of our state Constitution protect citizens from unreasonable

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

(Pa. 2001). “To secure the right of citizens to be free from ... [unreasonable

searches and seizures], courts in Pennsylvania require law enforcement

officers to demonstrate ascending levels of suspicion to justify their

interactions with citizens as those interactions become more intrusive.”

Commonwealth v. Beasley, 761 A.2d 621, 624 (Pa. Super. 2000).             Our

Supreme Court has defined three levels of interaction between citizens and

police officers: (1) mere encounter, (2) investigative detention, and (3)

custodial detention. See Commonwealth v. Fuller, 940 A.2d 476, 478 (Pa.

Super. 2007).

      A mere encounter between a police officer and a citizen does not need

to be supported by any level of suspicion and “carr[ies] no official

compulsion on the part of the citizen to stop or respond.” Id., at 479

(citation omitted). There is no constitutional provision that prohibits police

officers from approaching a citizen in public to make inquiries of them. See

Beasley, 761 A.2d at 624. However, a mere encounter may escalate into


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an investigatory detention or seizure if police action becomes too intrusive.

See id.

     To determine whether a mere encounter rises to the level of an

investigatory detention, we must determine whether, as a matter of law, the

police have conducted a seizure of the person involved. See id. To decide

whether a seizure has occurred, we must “examine all the circumstances

and determine whether police action would have made a reasonable person

believe he was not free to go and was subject to the officer’s orders.”

Fuller, 940 A.2d at 479.

     Thurston first focuses on Officer McQuillan’s mistaken belief that a

narcotics transaction was in progress. He argues that Officer Butler had no

other reason to approach Thurston’s vehicle, and thus this erroneous belief

was foundational to Officer Butler’s decision to arrest Thurston. Thurston’s

argument misconstrues the record.

     Prior to arriving on the scene, Officer Butler was aware of police

dispatch calls regarding burglaries in the area. See N.T., Suppression

Hearing, 11/4/13, at 18. These reports continued to be broadcast while

Officer Butler approached and then interacted with Thurston. See id. Officer

Butler had not interacted with Thurston, and in fact was merely approaching

Thurston’s vehicle, when he observed Thurston using a pry-bar to open a

wooden jewelry box. See id., at 17, 19. He also observed “multiple bags, a




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laptop in the passenger seat, an iPad, and there was jewelry in his hand,

and there was a watch in his one hand.” Id., at 17.

        Thurston does not argue that Officer Butler was not privileged to be in

the position from which he observed the contents of Thurston’s vehicle.

Officer Butler’s observations, coupled with his knowledge of recent burglaries

in the area, were enough to cause a reasonably prudent officer to suspect

that Thurston was involved in criminal activity and wish to investigate

further. We therefore agree with the suppression court that Officer

McQuillan’s mistaken impression was irrelevant to the actions subsequently

taken by by Officer Butler.

        Next, Thurston argues that the suppression court erred in concluding

that he was not under arrest when Officer Butler began questioning him.

Thurston focuses on the fact that he was asked to leave his vehicle and then

handcuffed while he was questioned before being given his Miranda1

warnings. However, Thurston did not pursue this issue at the suppression

hearing. See N.T.,Suppression Hearing, 11/4/13, at 23. It is therefore

waived. 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.”).

        In his third issue on appeal, Thurston contends that the evidence at

trial was insufficient to sustain his conviction for burglary. Thurston does not

____________________________________________


1
    Miranda v. Arizona, 384 U.S. 436 (1966).



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contest that the items found in his possession were the fruits of burglaries,

but contends that the Commonwealth failed to establish that he was

involved in the burglaries. See Appellant’s Brief, at 19.

      We review a challenge to the sufficiency of the evidence by

determining whether, when viewed in a light most favorable to the verdict

winner, the evidence at trial and all reasonable inferences therefrom is

sufficient for the trier of fact to find that each element of the crimes charged

is established beyond a reasonable doubt. See Commonwealth v. Dale,

836 A.2d 150, 152 (Pa. Super. 2003). The Commonwealth may sustain its

burden of proving every element beyond a reasonable doubt by means of

wholly circumstantial evidence. See Commonwealth v. Bruce, 916 A.2d

657, 661 (Pa. Super. 2007).

      The facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence. See id. Any doubt raised as to

the accused’s guilt is to be resolved by the fact-finder. See id. As an

appellate court, we do not assess credibility nor do we assign weight to any

of the testimony of record. See Commonwealth v. Kinney, 863 A.2d 581,

584 (Pa. Super. 2004). Therefore, we will not disturb the verdict “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.” Bruce, 916 A.2d

at 662 (citation omitted).




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      Here, we have no difficulty in concluding that the Commonwealth

presented    substantial,   albeit   circumstantial,   evidence   that   Thurston

committed the burglaries. As noted previously, Officer Butler found Thurston

attempting to open a jewelry box with a crowbar while seated in his vehicle

parked in a public parking lot. Also found in Thurston’s car were other pry

bars, screw drivers, gloves, a black hat and jacket, a large yellow lock

cutter, a flashlight, a police scanner, and multiple items that were admittedly

stolen from the burglarized residences. See N.T., Suppression Hearing,

11/4/13, at 43-45. The burglarized residences had been entered through

damaging an entry door. One victim stated that his door appeared to have

been forced open with a crowbar. See id., at 34-35.

      These facts are sufficient to allow a finder of fact to draw a reasonable

inference that Thurston was the burglar. Thurston’s third issue on appeal

merits no relief.

      In his final issue, Thurston argues that the evidence at trial was

insufficient to support his conviction for possession of instruments of crime.

Thurston argues that the crowbar and lock cutters are items that he legally

possessed, and that the Commonwealth failed to establish that he intended

to use them criminally. However, as we have already concluded that the

evidence was sufficient to establish that Thurston was the burglar, and that

there was evidence that these items were used to perpetrate the burglaries,




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the fact-finder was entitled to infer that Thurston had intended to use them

in a criminal manner. Thurston’s final issue on appeal merits no relief.

      Judgment of sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2016




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