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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
                v.                                  :
                                                    :
                                                    :
    JOSHUA C. HUMMEL                                :
                                                    :
                       Appellant                    :   No. 1119 WDA 2019

        Appeal from the Judgment of Sentence Entered February 7, 2019
    In the Court of Common Pleas of Westmoreland County Criminal Division
                      at No(s): CP-65-CR-0001228-2017


BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                            FILED DECEMBER 19, 2019

        Joshua C. Hummel (Hummel) appeals from the judgment of sentence

imposed by the Court of Common Pleas of Westmoreland County (trial court)

after his jury conviction of persons not to possess firearms.          Arguing that

exigent circumstances did not exist to justify police officers’ warrantless entry

into his home, Hummel challenges the denial of his suppression motion. He

also raises sufficiency and weight claims. After review, we affirm.

                                               I.

        On February 13, 2017, around 2:00 p.m., Officer Kenneth Sebastian of

the Washington Township Police Department was on routine patrol in Apollo,

Pennsylvania, when he saw Kayla Plummer standing outside of a trailer home.


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*   Retired Senior Judge assigned to the Superior Court.
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Because he knew she had a bench warrant, Officer Sebastian stopped his

cruiser. When she saw the officer, Plummer ran inside the trailer while Officer

Sebastian yelled for her to stop.              Waiting in front of the trailer, Officer

Sebastian called for backup. Hummel then emerged from the trailer and told

the officer to get off his property. Because of his aggressive manner, Officer

Sebastian handcuffed Hummel and put him in the backseat of the cruiser.

Once backup arrived, Officer Sebastian entered the trailer with another officer

to look for Plummer. They did not find her but did find a .22 caliber rifle in a

kitchen cabinet.      Because he was disqualified from possessing a firearm,

Hummel was arrested and charged with, among other offenses, persons not

to possess firearms, 18 Pa.C.S. § 6105(a)(1).

       Contending that the warrantless entry of his home was illegal, Hummel

filed a pretrial motion to suppress the rifle. After holding a hearing in which

Officer Sebastian was the only witness, the trial court denied the suppression

motion by finding that there was exigent circumstances for the officers to

enter the trailer without a warrant.

       Hummel proceeded to a jury trial and was found guilty of the firearms

offense.1   After being sentenced to three years’ probation, Hummel filed a

post-sentence motion averring that he was entitled to a new trial because the



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1The jury acquitted Hummel of Obstructing Administration of Law, 18 Pa.C.S.
§ 5101, and Hindering Apprehension, 18 Pa.C.S. § 5105(a)(1).


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jury’s verdict was against the weight of the evidence. The trial court denied

that motion. Hummel now appeals to challenge the denial of his suppression

motion as well as raise sufficiency and weight of evidence claims to his

firearms conviction.

                                               II.

                                               A.

       We first address Hummel’s suppression claim.2 In doing so, our review

is “limited to the evidentiary record created at the suppression hearing.”

Commonwealth v. Neal, 151 A.3d 1068, 1071 (Pa. Super. 2016) (citation

omitted). At the hearing, the Commonwealth asked Officer Sebastian how he

knew Plummer had a bench warrant.                    In response, he testified that a few

weeks before February 13, 2017, Cambria County Probation informed his

department that Plummer had an active bench warrant out of Cambria County

and was possibly staying at the trailer home’s address. Officer Sebastian had

never seen Plummer before but knew what she looked like by viewing her

Pennsylvania Justice Network (JNET) photo. He also testified that the bench

warrant was for a probation violation on a misdemeanor theft case but did not

know the reason for the warrant being issued.



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2 We review the denial of a suppression motion to determine whether the
record supports the court’s factual findings and whether the legal conclusions
drawn from those facts are correct. See Commonwealth v. Duke, 208 A.3d
465, 469 (Pa. Super. 2019) (citation omitted).


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       As for the search, Officer Sebastian related that he chose to wait for the

other officers to arrive before entering the trailer. He believed, though, that

about five minutes elapsed from when he first saw Plummer to when he

entered the trailer with the other officer. The Commonwealth, however, did

not ask him about his entry into the home, namely, whether the door was

open or locked. Further, the officers found the rifle inside a kitchen cupboard

that Officer Sebastian estimated was about four-and-a-half feet tall and two

feet wide. Hummel did not testify at the hearing but his counsel offered to

the court that Hummel’s mother owned the trailer and had been letting him

stay there for a couple weeks. The Commonwealth did not object to counsel’s

factual offer.3    Last, neither party presented evidence that Plummer was

staying or residing in the trailer.

       Generally, both the Fourth Amendment of the United States Constitution

and Article I, Section 8 of the Pennsylvania Constitution require that before

conducting a search of an individual or their property, the police must obtain

a warrant that is supported by probable cause and issued by a neutral



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3 “A defendant moving to suppress evidence has the preliminary burden of
establishing standing and a legitimate expectation of privacy.”
Commonwealth v. Maldonado, 14 A.3d 907, 910 (Pa. Super. 2011). The
trial court accepted that Hummel had standing to pursue a suppression motion
under Pa.R.Crim.P. 581 based on his counsel’s representation. We agree:
Hummel was charged with a possessory offense, which established automatic
standing, and had a reasonable expectation of privacy in the trailer since he
had been living there for several weeks leading up to February 13, 2017.


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magistrate. See Commonwealth v. Arter, 151 A.3d 149, 153 (Pa. 2016)

(citation omitted).   “Warrantless searches and seizures are therefore

unreasonable per se, unless conducted pursuant to a specifically established

and well-delineated exception to the warrant requirement.” Commonwealth

v. Glass, 200 A.3d 477, 483 (Pa. Super. 2018) (quotation omitted).

     One recognized exception to the warrant requirement is when probable

cause and exigent circumstances are present. “Absent probable cause and

exigent circumstances, warrantless searches and seizures in a private home

violate both the Fourth Amendment and Article 1[,] § 8 of the Pennsylvania

Constitution.” See Commonwealth v. Bowmaster, 101 A.3d 789, 792 (Pa.

Super. 2014) (citation omitted).

     In Commonwealth v. Roland, 637 A.2d 269 (Pa. 1994), our Supreme

Court outlined the various factors to be considered when determining whether

exigent circumstances exist, including:

     the gravity of the offense, (2) whether the suspect is reasonably
     believed to be armed, (3) whether there is above and beyond a
     clear showing of probable cause, (4) whether there is strong
     reason to believe that the suspect is within the premises being
     entered, (5) whether there is a likelihood that the suspect will
     escape if not swiftly apprehended, (6) whether the entry was
     peaceable, and (7) the time of the entry, i.e., whether it was made
     at night. These factors are to be balanced against one another in
     determining whether the warrantless intrusion was justified.

     Other factors may also be taken into account, such as whether
     there is hot pursuit of a fleeing felon, a likelihood that evidence
     will be destroyed if police take the time to obtain a warrant, or a
     danger to police or other persons inside or outside the dwelling.




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Id. at 270-71. The Commonwealth bears a “heavy burden when attempting

to demonstrate an urgent need that might justify warrantless searches or

arrests,” and must present clear and convincing evidence to satisfy this

burden. Id. at 271 (quoting Welsh v. Wisconsin, 466 U.S. 740, 749-50

(1984)).

      In its January 18, 2019 opinion and order denying suppression, the trial

court recognized that several factors weighed in favor of Hummel, including

that Plummer’s arrest warrant was for a misdemeanor probation violation and

there was no indication that she was armed. See Opinion and Order of Court,

1/18/19, at 5. We agree with the trial court’s assessment of these factors.

First, the gravity of the offense was relatively low, as the warrant for

Plummer’s arrest was merely for a probation violation of a misdemeanor

offense. Nor was the hot pursuit of a fleeing felon involved. There is also no

indication that Plummer was armed, as Officer Sebastian testified only to

seeing her standing in front of the trailer then run inside the trailer. Further,

because the purpose of the warrantless entry was to arrest Plummer on the

misdemeanor bench warrant, it would be speculative to conclude that there

was a likelihood that Plummer would destroy evidence inside the trailer if the

police did not take the time to obtain a warrant.

      Additionally, the Commonwealth asserts that the police did not break

down the door to gain access to the trailer.        However, Officer Sebastian

testified only that he “entered” the trailer; the Commonwealth did not follow


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up to clarify that the door was unlocked. See N.T., 12/13/18, at 8. While

there is no evidence that the police forced the door in after detaining Hummel,

this factor cannot be deemed to weigh in favor of the Commonwealth in the

absence of positive evidence establishing that the entry was peaceful.

       These factors aside, the balance of factors ultimately weighed in favor

of the search being permissible. First, there was probable cause for Officer

Sebastian to arrest Plummer as he had been informed of her bench warrant

within the preceding weeks; he viewed her JNET picture to become familiar

with what she looked like; and was only “15 to 20 yards” away from her when

he saw her run into the trailer. Id. at 16. While this was not a case where

police directly observed a crime being committed, there was still sufficient

probable cause to apprehend Plummer on the bench warrant. Second, there

was a strong reason to believe that Plummer was inside the trailer. Officer

Sebastian saw her run inside and then remained posted in front of the trailer

for five minutes before entering. Third, there was certainly a strong likelihood

that Plummer would escape if not quickly apprehended, as she had already

demonstrated an intention to avoid arrest by fleeing into the trailer. Finally,

the entry was made during the daytime, which is less intrusive and favors

finding the warrantless entry reasonable.4

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4Hummel fails in his brief to address these factors or explain why they were
outweighed by other factors. In fact, most of Hummel’s two-and-a-half page
argument is simply stating the blackletter law and standards for exigent



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       In Commonwealth v. Johnsonna, 616 A.2d 1376 (Pa. Super. 1992),

we found in a case involving almost identical facts that exigent circumstances

allowed the warrantless entry into a home. In that case, a police officer was

on patrol when he saw a female whom he knew had an active bench warrant.

When the officer got out of his cruiser and called out to the female, she

immediately ran inside a nearby house. When the officer forced in the door

and entered the house, he saw the defendant in the kitchen/dining room area

with a clear plastic bag of narcotics. Under these circumstances, this Court

found that exigent circumstances existed to allow the police officer’s

warrantless entry into the house and, therefore, view the defendant with the

narcotics. Similar to Johnsonna, we conclude that the factors favored finding

exigent circumstances and the trial court did not err in so concluding.

                                               B.

       We next address Hummel’s claim that the Commonwealth presented

insufficient evidence that he constructively possessed the rifle found in the

home’s kitchen.5 Section 6105 of the Uniform Firearms Act (UFA) provides:

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circumstances rather than providing an actual argument with any case law as
to why the trial court erred in its suppression determination. The most
Hummel offers in argument is baldly stating that “the Commonwealth did not
demonstrate that the facts and circumstances surrounding Officer Sebastian’s
actions that day removed the need for a warrant to enter [Hummel’s]
residence in search of a non-resident fugitive.” Brief for Hummel, at 15.

5 Our standard of review when considering a challenge to the sufficiency of
the evidence is:



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       (a) Offense defined.--

             (1) A person who had 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).




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       [O]ur standard of review of sufficiency claims requires that we
       evaluate the record in the light most favorable to the verdict
       winner giving the prosecution the benefit of all reasonable
       inferences to be drawn from the evidence. Evidence will be
       deemed sufficient to support the verdict when it establishes each
       material element of the crime charged and the commission thereof
       by the accused, beyond a reasonable doubt. Nevertheless, the
       Commonwealth need not establish guilt to a mathematical
       certainty. Any doubt about the defendant’s guilt is to be resolved
       by the fact finder unless the evidence is so weak and inconclusive
       that, as a matter of law, no probability of fact can be drawn from
       the combined circumstances.

       The Commonwealth may sustain its burden by means of wholly
       circumstantial evidence. Accordingly, the fact that the evidence
       establishing a defendant’s participation in a crime is circumstantial
       does not preclude a conviction where the evidence coupled with
       the reasonable inferences drawn therefrom overcomes the
       presumption of innocence. Significantly, we may not substitute
       our judgment for that of the factfinder; thus, so long as the
       evidence adduced, accepted in the light most favorable to the
       Commonwealth, demonstrates the respective elements of a
       defendant’s crimes beyond a reasonable doubt, the appellant’s
       convictions will be upheld.

Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa. Super. 2019)
(citation omitted).


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      When a defendant is not in actual possession of the recovered firearm,

the Commonwealth must establish that the defendant had constructive

possession to support the conviction. See Commonwealth v. Hopkins, 67

A.3d 817, 820 (Pa. Super. 2013). This Court has stated:

      When contraband is not found on the defendant’s person, the
      Commonwealth must establish “constructive possession,” that is,
      the power to control the contraband and the intent to exercise
      that control. The fact that another person may also have control
      and access does not eliminate the defendant’s constructive
      possession.... As with any other element of a crime, constructive
      possession may be proven by circumstantial evidence. The
      requisite knowledge and intent may be inferred from the totality
      of the circumstances.

Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super. 2018)

(internal citations and quotation omitted).       Constructive possession is,

therefore, an inference that arises from a set of facts that possession of the

contraband was more likely than not. Id. (citation omitted).

      At trial, Officer Sebastian testified that as he was carrying the rifle out

of the trailer, Hummel asked him where he was taking his rifle. Hummel also

told the officer that he was allowed to possess the rifle but not handguns.

N.T., 2/6/19, at 36. Another Washington Township police officer also testified

to hearing Hummel make these statements about the rifle. Id. at 59. These

admissions, when coupled with the recovery of the rifle from a common area

accessible to anyone living in the trailer, would be sufficient for the jury to

conclude that Hummel constructively possessed the rifle.




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      Hummel argues that these statements merely establish ownership of

the rifle but not possession. He relies on his mother’s testimony at trial that

she bought the rifle for Hummel when he was young and took possession of it

when she became aware he could not possess it.           However, Hummel’s

statements, when viewed in the light most favorable to the Commonwealth as

the verdict winner, establish that he was aware that the rifle was in the home

in which he was residing and was readily accessible to him. The jury, as the

determiner of credibility, was free to disbelieve the mother’s testimony.

      Citing McClellan for the proposition that forensic evidence must be

introduced to establish possession, Hummel also points out that there was no

such evidence introduced at trial that he physically possessed the rifle.

McClellan supports no such proposition.          There, the Commonwealth

introduced DNA evidence linking the defendant to a gun found in the basement

of a house in which he was living. In finding sufficient evidence, this Court

found that the DNA “strongly implicated” the defendant as constructively

possessing the gun; there was no suggestion that DNA or some other form of

forensic evidence is ever required to establish constructive possession. See

McClellan, 178 A.3d at 879-80. Accordingly, there was sufficient evidence to

convict Hummel of the firearms offense.

                                      C.

      Finally, Hummel alleges that the jury’s verdict was against the weight

of the evidence. In its opinion denying his post-sentence motion, the trial


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court stated that the uncontroverted trial evidence showed that Hummel lived

alone at the trailer with his two children. Highlighting the testimony of his

mother that she also lived at the trailer at the time, Hummel disputes the trial

court’s statement that his mother did not live at the trailer. He also disputes

that he made admissions to the officers, asserting that it is unbelievable that

he would have been removed from the backseat of the cruiser, which is when

he was alleged to have made the admissions. We find neither argument to be

convincing.6

        Contrary to Hummel’s first contention, it is not clear that his mother

lived at the trailer on February 13, 2017. While she did testify that she lived

there in February 2017, Hummel contradicted her by testifying that she had



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6   The following principles apply to challenges to the weight of the evidence:

        A claim alleging the verdict was against the weight of the evidence
        is addressed to the discretion of the trial court. Accordingly, an
        appellate court reviews the exercise of the trial court’s discretion;
        it does not answer for itself whether the verdict was against the
        weight of the evidence. It is well settled that the [fact-finder] is
        free to believe all, part, or none of the evidence and to determine
        the credibility of the witnesses, and a new trial based on a weight
        of the evidence claim is only warranted where the [fact-finder’s]
        verdict is so contrary to the evidence that it shocks one’s sense of
        justice. In determining whether this standard has been met,
        appellate review is limited to whether the trial judge’s discretion
        was properly exercised, and relief will only be granted where the
        facts and inferences of record disclose a palpable abuse of
        discretion.

Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation
omitted).

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moved out that previous December. He also told one of the officers on the

scene the same thing on the day of his arrest. Hummel, however, neither

acknowledges nor attempts to reconcile this evidence. Moreover, even if his

mother did reside in the trailer in February 2017, we fail to see the significance

of this fact, since constructive possession merely requires that he had control

and access to the rifle, not that the defendant have sole access.

      Hummel’s claim that it is unbelievable that he would have been removed

from the cruiser also fails. At trial, Officer Sebastian testified that Hummel

was outside of the police cruiser when he was coming out of the trailer. Id.

at 35.   Hummel alleges that this is unbelievable based on his previous

antagonism toward Officer Sebastian. However, at the time, Hummel was not

under arrest and, despite his antagonism, had not threatened violence of any

sort. Thus, the trial court did not abuse its discretion in denying his post-

sentence motion.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2019



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