J-A01034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

COREIK WALL

                            Appellant                    No. 974 EDA 2014


           Appeal from the Judgment of Sentence February 21, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011423-2013


BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                              FILED MARCH 18, 2016

        Coreik Wall appeals from the judgment of sentence entered in the

Court of Common Pleas of Philadelphia County following a non-jury trial in

which he was convicted of prohibited possession of a firearm,1 carrying a

firearm without a license,2 and carrying firearms in public in Philadelphia.3

On appeal, Wall challenges the court’s denial of his motion to suppress

evidence. Upon review, we affirm Wall’s judgment of sentence.

        The trial court set forth the relevant facts of this matter as follows:


____________________________________________


1
    18 Pa.C.S. § 6105(a)(1).
2
    18 Pa.C.S. § 6106(a)(1).
3
    18 Pa.C.S. § 6108.


*Former Justice specially assigned to the Superior Court.
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      On August 15, 2013, Police Officer [Colin] Goshert testified he
      was working in the 14th police district with five years[’]
      experience when his tour of duty took him to the 7200 block of
      Forest Avenue in Philadelphia, Pennsylvania. At approximately
      6:15 p.m. Officer Goshert responded to a radio call for narcotics
      sales “in the rear of 7200 Forrest Avenue, males on the steps.”
      Upon arrival to the location[,] Officer Goshert observed [Wall] on
      the steps with three or four other males, one of whom was at
      the bottom in a wheelchair. Upon approaching the group the
      officer smelled burnt marijuana and saw “blunt guts” on the
      ground and “ash.”

      Officer Goshert further testified that he observed [Wall] place a
      duffel bag behind him towards his left. Officer Goshert asked to
      whom the duffel bag belonged and none of the group responded
      or acknowledged ownership. The bag was behind [Wall] who
      was on the top step. Everyone else was seated below [Wall] on
      the steps. The bag was within arm’s reach of [Wall].

      After no one claimed ownership, Officer Goshert then secured
      the duffel bag and reviewed its contents. Inside the duffle bag
      was a pair of shoes, headphones, and a silver revolver. [Wall]
      was subsequently arrested and taken into custody.         Police
      [O]fficer Goshert also testified [that] none of the other males
      were seen handling the duffle bag.

Trial Court Opinion, 2/3/15, at 1-2 (citations omitted).

      Wall was charged with the aforementioned firearms offenses.          He

subsequently filed a motion to suppress the evidence obtained by Officer

Goshert in searching the duffle bag. The court held a hearing on January 2,

2014, and denied the suppression motion.          A non-jury trial was held

immediately thereafter before the Honorable Roxanne E. Covington, who

found Wall guilty of all charges. Wall was sentenced on February 21, 2014,

to 12 to 24 months’ incarceration followed by three years’ probation. This

timely appeal followed.

      On appeal, Wall raises the following issue for our review:


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      Should not the evidence seized from [Wall’s] bag have been
      suppressed, where [Wall] had a reasonable expectation of
      privacy in the bag and police had neither probable cause to
      search the bag nor a search warrant, and no exception to [the]
      warrant requirement applied?

Brief for Appellant, at 3.

      When reviewing a challenge to the denial of a suppression motion, our

standard of review is as follows:

      The standard and scope of review for a challenge to the 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 rulings
      of a suppression court, this 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
      suppression court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Downey, 39 A.3d 401, 405 (Pa. Super. 2012) (citations

omitted).

      Regarding a motion to suppress, “in order to prevail, the defendant, as

a preliminary matter, must show that he had a privacy interest in the area

searched.”    Commonwealth v. Burton, 973 A.2d 428, 434 (Pa. Super.

2009) (en banc).       An “individual must demonstrate that he sought to

preserve something as private.”     Commonwealth v. Moore, 928 A.2d

1092, 1098 (Pa. Super. 2007).        However, where property has been

abandoned, a defendant has no standing to contest its search and seizure.

Commonwealth v. Windell, 529 A.2d 1115, 1117 (Pa. Super. 1987). Our

Supreme Court has stated that



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      [a]bandonment is primarily a question of intent, and intent may
      be inferred from words spoken, acts done, and other objective
      facts. All relevant circumstances existing at the time of the
      alleged abandonment should be considered. Police pursuit or the
      existence of a police investigation does not of itself render
      abandonment involuntary. The issue is not abandonment in the
      strict property-right sense, but whether the person prejudiced by
      the search had voluntarily discarded, left behind, or otherwise
      relinquished his interest in the property in question so that he
      could no longer retain a reasonable expectation of privacy with
      regard to it at the time of the search.

Commonwealth v. Shoatz, 366 A.2d 1216, 1220 (Pa. 1976) (citations

omitted).

      Instantly, Wall asserts that when he placed the duffel bag containing

the gun behind him, he demonstrated an intent to exercise control over it.

Alternatively, however, Wall’s movement of the bag can be viewed as an

attempt to physically distance the bag from himself. Moreover, when Officer

Goshert questioned Wall regarding the bag, Wall remained silent rather than

asserting his ownership of it.    Wall argues that constitutionally he was

permitted to remain silent when confronted by police. While this is true, it

does not alter the fact that when Wall chose not to assert his ownership of

the bag when questioned directly, he thereby failed to demonstrate an

attempt to preserve the bag and its contents as private.      Moore, supra.

Thus, Wall voluntarily relinquished his interest in the bag at the time of the

search.     Shoatz, supra.   The trial court therefore did not err in denying

Wall’s suppression motion.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2016




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