J-S43020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DARRELL ANDRE WARD, JR.                    :
                                               :
                       Appellant               :   No. 1851 WDA 2017

             Appeal from the Judgment of Sentence August 1, 2017
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0013863-2014


BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY DUBOW, J.:                            FILED NOVEMBER 21, 2018

       Darrell Andre Ward, Jr. (Appellant) appeals from his August 1, 2017

Judgment of Sentence of one to two years’ imprisonment imposed following

his nonjury convictions for Firearms Not to be Carried Without a License and

Possession of Marijuana.1 Specifically, Appellant challenges the denial of his

suppression motion and the sufficiency of evidence. We affirm.

       We glean the following relevant facts and procedural history from the

certified record. At approximately 2:00 A.M. on August 25, 2014, a citizen

informed Patrol Officer Gary Cherep of the Borough of Munhall Police

Department that there appeared to be an intoxicated driver passed out in his

vehicle in the drive-through lane of the Wendy’s restaurant on William Marks

____________________________________________


1 18 Pa.C.S. § 6106(a)(1) and 35 P.S. § 780-113(a)(31), respectively. The
sentence did not asses any further penalty for the Possession of Marijuana
conviction.
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Drive. N.T., 6/28/17, at 3-4. At about the same time, Officer Cherep received

a radio dispatch with the same information. Upon arriving at the scene, Officer

Cherep saw a black Hyundai located next to the drive-through delivery window

with Appellant slouched in the driver’s seat with his head leaning up against

the door next to the vehicle’s open window. The vehicle was running and in

gear, and Appellant’s foot was on the brake. The officer attempted to rouse

Appellant but he was unresponsive. Id. at 4-5. A vehicle registration search

revealed that the car was registered to Appellant’s mother.

      In response to a call for back-up, Officer Depeligrini arrived at the scene

and parked his police vehicle nose-to-nose with Appellant’s vehicle just in case

Appellant startled awake and stepped on the gas pedal, potentially creating a

hazardous situation. Id. at 5. The officers then reached into the vehicle,

placed it in park, and turned it off.

      Officer Cherep succeeded in rousing Appellant after four or five further

attempts. Once awake, Officer Cherep observed that Appellant had bloodshot,

glassy eyes, appeared very dazed, and responded very slowly to Officer

Cherep’s questions. Officer Cherep had to ask Appellant several times for his

license and registration before Appellant eventually responded. Id. at 5-6;

12.




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       Based on the circumstances and his observations, Officer Cherep

believed that Appellant was under the influence of drugs or alcohol,2 and he

“planned” to arrest Appellant for suspicion of Driving Under the Influence

(“DUI”). Id. at 6-7. Because there was no one available to drive Appellant’s

vehicle and it was parked in an unsafe location, the officers decided to

impound Appellant’s vehicle. Id. at 6.

       While awaiting the arrival of the tow truck, Officer Cherep and Officer

Depeligrini began an inventory search of Appellant’s vehicle pursuant to

Borough of Munhall policy as Appellant remained in the driver’s seat. Id. at

7-8; 14-15. When the officers asked Appellant for the car key to open the

locked glove box, Appellant hesitated until the officers explained that the

purpose of the search was for Appellant’s and the officers’ safety. Appellant

then voluntarily handed the car keys to the officers. Id. at 7-8; 14-15.

       In the glove box, the officers discovered a loaded Glock handgun. Id.

at 7-8. The officers determined that Appellant did not have a license to carry

a firearm.3 Id. at 11. The officers then removed Appellant from his vehicle

and placed him in the back of Officer Cherep’s patrol car.     Officer Cherep

completed the inventory search and, upon returning to his police vehicle,

where Appellant had again fallen asleep, Officer Cherep detected a strong odor
____________________________________________


2 Officer Cherep did not conduct field sobriety tests of Appellant because he
did not believe Appellant was capable of performing them. N.T., 6/28/17, at
7.

3 Further investigation revealed that the gun had been stolen from the City of
Pittsburgh.

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of fresh marijuana coming from the back of the police car. Officer Cherep

removed Appellant from the police vehicle, looked in the back seat, and

discovered a small bundle of marijuana. After placing Appellant back in the

police vehicle, Officer Cherep drove Appellant to the police station.

       The Commonwealth charged Appellant with two counts of DUI as well

as firearms offenses, Receiving Stolen Property, and Possession of Marijuana.

Prior to trial, Appellant filed a Motion to Suppress all evidence, claiming that

the placement of Officer Depeligrini’s police vehicle blocking him in resulted in

an initial detention that was not supported by reasonable suspicion, and that

Appellant’s subsequent arrest was not supported by probable cause. The court

held a hearing on June 28, 2017, at which only Officer Cherep testified. The

court denied the motion that same day.

       Appellant immediately proceeded to a stipulated bench trial, after which

the court found Appellant guilty of Firearms Not to be Carried Without a

License and Possession of Marijuana.4 On August 1, 2017, the court sentenced

Appellant to a term of one to two years’ incarceration for the firearm

conviction, followed by three years’ probation.5




____________________________________________


4 The court found Appellant not guilty of carrying a loaded weapon, and not
guilty of the two counts of DUI. The Commonwealth withdrew the receiving
stolen property charge.

5 The court imposed no further penalty for the Possession of Marijuana
conviction.

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      Following the denial of his post-sentence motions, Appellant timely

appealed to this Court.    Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

      Appellant presents the following issues for this Court’s consideration:

      1. Whether the Trial Court erred when it denied [Appellant’s]
      motion to suppress evidence when the Commonwealth failed to
      demonstrate that the police had reasonable suspicion or probable
      cause to detain [Appellant], remove him from the vehicle, or
      search the vehicle?

      2. Whether the Trial Court erred when it found [Appellant] guilty
      at Count 1 – Carrying a Firearm Without a License, when the
      evidence presented by the Commonwealth was insufficient to
      support such a conviction?

Appellant’s Brief at 3.

      In his first issue, Appellant argues that the court erred in not

suppressing the gun and the marijuana when the police blocked his car with

their patrol vehicle and subjected him to an investigative detention without

reasonable suspicion. Appellant further argues that the police arrested him

without probable cause.

      This Court’s well-settled standard of review is as follows:

      An appellate court’s standard of review in addressing a challenge
      to the denial of a suppression motion is limited to determining
      whether the suppression court’s factual findings are supported by
      the record and whether the legal conclusions drawn from those
      facts are correct. Because the Commonwealth prevailed before
      the suppression court, we may consider only the evidence of the
      Commonwealth and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record as
      a whole. Where the suppression court’s factual findings are
      supported by the record, the appellate court is bound by those


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        findings and may reverse only if the court's legal conclusions are
        erroneous. Where ... the appeal of the determination of the
        suppression court turns on allegations of legal error, the
        suppression court’s legal conclusions are not binding on an
        appellate court, whose duty it is to determine if the suppression
        court properly applied the law to the facts. Thus, the conclusions
        of law of the courts below are subject to plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015) (citation

omitted).

        The law recognizes three distinct levels of interaction between police

officers and citizens: (1) a mere encounter; (2) an investigative detention,

often    described    as   a        Terry6   stop;      and   (3)   a    custodial   detention.

Commonwealth v. Thran, 185 A.3d 1041, 1044 (Pa. Super. 2018).

        A mere encounter between police and a citizen need not be supported

by any level of suspicion, and does not require a citizen to stop or respond.

Commonwealth v. Newsome, 170 A.3d 1151, 1154 (Pa. Super. 2017). An

investigatory stop, which subjects a suspect to a stop and a period of

detention, requires a reasonable suspicion that criminal activity is afoot. Id.

“A custodial [stop] is an arrest and must be supported by probable cause.”

Id.

        The determination of whether an officer had reasonable suspicion that

criminality is afoot so as to justify an investigatory detention is objective and

must     be   considered       in    light   of   the    totality   of   the   circumstances.



____________________________________________


6   Terry v. Ohio, 392 U.S. 1 (1968).

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Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011).                 “In order to

establish reasonable suspicion, an officer must articulate specific facts[,] in

addition to inferences based on those facts, to support his belief that criminal

activity was afoot.” Id. at 97.

      Here, the Commonwealth concedes that the officers blocking Appellant’s

vehicle with their police cruiser constituted an investigative detention.

Appellee’s Brief at 14-15. Thus, our analysis turns on whether the officers

had reasonable suspicion that criminal activity was afoot to support that

detention.

      At the suppression hearing, Officer Cherep testified that he received

both a dispatch call and a citizen’s tip at approximately 2:00 A.M. that there

may be an intoxicated person at a Wendy’s drive-through lane. Upon arriving

at the scene, Officer Cherep observed Appellant passed out, utterly

unresponsive, and hunched over in his vehicle. Appellant was alone in the

vehicle, and the vehicle was running and in gear directly outside of the

restaurant’s food delivery window.

      This set of specific, uncontradicted facts, objectively viewed in light of

the totality of the circumstances, strongly supports Officer Cherep’s belief that

criminal activity was afoot, namely, that Appellant was operating his vehicle

while he may have been intoxicated.         Thus, we find that the trial court

correctly found that Officer Cherep had reasonable suspicion to conduct an




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investigative detention of Appellant by having his fellow officer park a police

cruiser in front of Appellant’s vehicle.

      Next, we must determine whether the officers had probable cause to

arrest Appellant. Probable cause exists where the facts and circumstances

within the officer’s knowledge are sufficient to warrant a person of reasonable

caution to believe that a defendant has or is committing an offense.

Commonwealth v. Runyan, 160 A.3d 831, 837 (Pa. Super. 2017) (citation

omitted).   The well-established standard for evaluating whether probable

cause exists is consideration of the “totality of the circumstances.” Id. That

is, probable cause for a DUI arrest is present when a police officer has

sufficient facts at his disposal to warrant a prudent person to believe that the

driver of a vehicle is under the influence of alcohol or drugs. Commonwealth

v. Hlubin, 165 A.3d 1, 10 (Pa. Super. 2017), appeal granted, 174 A.3d 576

(Pa. Nov. 21, 2017).

      After establishing a reasonable suspicion that Appellant was operating

his vehicle while intoxicated based on the undisputed fact that Appellant was

passed out, Officer Cherep finally roused Appellant after four or five attempts.

Once awake, Officer Cherep observed that Appellant’s eyes were glassy and

bloodshot, and he appeared very dazed. Moreover, Appellant was very slow

to respond to Officer Cherep’s request for his license and registration and only

turned over these items after several requests.




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      We agree with the trial court that these factors “ripened [reasonable

suspicion] into probable cause permitting the arrest of [Appellant] for

operating his vehicle while under the influence of alcohol or a controlled

substance.” Trial Court Opinion, 2/23/18, at 8; see also Commonwealth v.

Angel, 946 A.2d 115, 118 (Pa. Super. 2008) (finding probable cause to arrest

for DUI when appellant had slurred speech and glassy eyes); Hlubin, 165

A.3d at 10 (finding probable cause to arrest for DUI when appellant had

glassy, bloodshot eyes and was slow to react to officer’s request for her license

and registration), appeal granted, 174 A.3d 576 (Pa. Nov. 21, 2017). Thus,

we agree with the trial court that Officer Cherep had probable cause to arrest

Appellant for suspicion of DUI.

      Last, Appellant argues that the officers did not have probable cause to

search his vehicle after his arrest. We disagree. Because the officers had

probable cause to arrest Appellant and impound his car, the inventory search

of the vehicle’s contents was proper.

      The search here, conducted in accordance with the standard procedures

of the police department, is considered an inventory search.          Inventory

searches are a well-defined exception to the warrant requirement of the

Fourth Amendment. Commonwealth v. Nace, 571 A.2d 1389, 1391 (Pa.

1990).   “An inventory search of an automobile is permitted where (1) the

police have lawfully impounded the [vehicle]; and (2) the police have acted in

accordance with a reasonable, standard policy of routinely securing and


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inventorying the contents of the impounded vehicle.”          Commonwealth v.

Hennigan, 753 A.2d 245, 255 (Pa. Super. 2000); see also 75 Pa.C.S. §

3352(a), (c)(3) (outlining lawful impound procedures by law enforcement

outside business districts and removal of the vehicle after person in control of

the vehicle is arrested for a qualifying offense); Commonwealth v. Henley,

909 A.2d 352, 359 (Pa. Super. 2006) (en banc) (explaining common purposes

for inventory searches, including officer safety and protecting the owner’s

property); Commonwealth v. Martinson, 533 A.2d 750, 755 (Pa. Super

1987) (opining that reasonable inventory search procedures of vehicles are

restricted to locations where items of value would normally be carried,

including the passenger areas, the glove compartment, and the trunk).

      In determining whether a proper inventory search has occurred, the first

inquiry is whether the police have lawfully impounded the automobile. The

second inquiry is whether the police have conducted a reasonable inventory

search. Hennigan, 753 A.2d at 255.

      Here, Appellant’s vehicle was parked in an active Wendy’s drive-through

lane and there is no evidence that anyone was available to drive the vehicle

from the scene after Appellant’s arrest. Given these facts, we see no reason

to disturb the trial court’s finding that the vehicle was lawfully impounded.

Trial Court Opinion, 2/23/18, at 9.

      Regarding whether the officers conducted a reasonable inventory

search,   Officer   Cherep   testified    at   the   suppression   hearing   without


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contradiction that he and his fellow officer followed the Borough of Munhall’s

standard policy regarding inventory searches of impounded vehicles, namely,

that they are done on-site for the purpose of officer safety and include areas

such as locked glove boxes.      N.T., 6/28/17, at 14-15.      Moreover, they

explained this policy to Appellant after requesting the key to the glove box,

which he gave to the officers without objecting or saying a word.          See

Commonwealth v. Woody, 679 A.2d 817, 819 (Pa. Super. 1996) (upholding

the validity of an inventory search when passenger had been arrested, police

were required to take custody of vehicle, and the challenged evidence was

likely to be found, though not in plain view); Martinson, 533 A.2d at 755-56

(Pa. Super. 1987) (holding that inventory search of a vehicle was reasonable

after it was taken into custody due to officer’s belief that neither driver nor

passenger was fit to operate the vehicle and discovery of contraband occurred

in the ordinary course of inventory search).

      The trial court properly concluded that there was probable cause for the

officers to arrest Appellant for suspicion of DUI. Given the underlying facts of

the arrest, Appellant’s vehicle was properly impounded because of its location

and lack of an available driver to move it from the scene. Appellant presented

no evidence or argument to dispute the trial court’s finding that Officer Cherep

and Officer Depeligrini conducted the inventory search in accordance with the

Borough on Munhall’s standard policy of securing and inventorying the




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contents of an impounded vehicle.              Appellant does not contest that the

procedures employed by the officers during the search were unreasonable.7

       We agree that, under the totality of the circumstances, the suppression

court’s factual findings are supported by the record, and we are bound by

those findings. Thus, the trial court properly refused to suppress the evidence

discovered during the inventory search.

       In the second issue before us, Appellant’s counsel asserts that the

Commonwealth failed to prove that Appellant carried a firearm without a

license. Appellant’s Brief at 13-14.

       This Court’s standard of review of the challenge to the sufficiency of the

evidence is well-settled:


       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

____________________________________________


7Appellant also presents no argument that his giving the officers the key to
open the glove box was coerced or otherwise involuntary.

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      credibility of witnesses and the weight of the evidence produced[,]
      is free to believe all, part[,] or none of the evidence.

Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015).

      The Crimes Code has defined the offense of Firearms Not to be Carried

Without a License, in relevant part, as follows:

   (a) Offense defined.--

   (1) … [A]ny 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).

      In order to convict a defendant for Firearms Not to be Carried Without

a License, the Commonwealth must prove that the weapon was a firearm;

that the firearm was unlicensed; and that where the firearm was concealed

on or about the person, it was outside his home or place of business.

Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004).                 The

Commonwealth may sustain its burden of proving every element of a crime

beyond a reasonable doubt by means of wholly circumstantial evidence.

Commonwealth v. Wise, 171 A.3d 784, 790 (Pa. Super. 2017).

      Where a firearm is not found on a defendant’s person, Appellee may

satisfy its burden by establishing constructive possession:

      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

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      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. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013).

      This Court has affirmed a finding of constructive possession where the

appellant was the sole occupant of a vehicle in which a gun was found, even

though the appellant did not own the vehicle. Commonwealth v. Parker,

847 A.2d 745, 751-52 (Pa. Super. 2004).         See also Commonwealth v.

Carter, 450 A.2d 142, 147-48 (Pa. Super. 1982) (holding that the trial court

properly found that the appellant had constructive possession because, inter

alia, the gun had been within the area of his immediate control).

      Here, there is no dispute that the officers found a firearm in the glovebox

of the vehicle that Appellant was driving, and that Appellant did not have a

license to carry a firearm. Thus, we must resolve whether the court properly

determined that Appellant constructively possessed the firearm.

      As the trial court noted, Appellant was the only person in the vehicle.

The glove box where the officers found the weapon was well within Appellant’s

reach and was, thus, within the area of Appellant’s immediate control. In

viewing these facts in the light most favorable to the verdict winner, we agree

with the trial court that there is sufficient evidence to conclude Appellant

possessed the weapon. Accordingly, the trial court properly concluded that

the Commonwealth proved every element of the crime of Firearms Not to be

Carried Without a License beyond a reasonable doubt.


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     Having concluded that the trial court properly denied the suppression

motion and Appellant’s claim of insufficient evidence supporting the firearm

offense is without merit, we affirm the Judgment of Sentence.

     Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2018




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