J-S43003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RYAN METZ

                            Appellant                 No. 1070 WDA 2016


       Appeal from the Judgment of Sentence imposed February 19, 2016
               In the Court of Common Pleas of Allegheny County
                Criminal Division at No: CP-02-CR-0012158-2015


BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY STABILE, J.:                     FILED: SEPTEMBER 29, 2017

        Appellant, Ryan Metz, appeals from the judgment of sentence imposed

on February 19, 2016 in the Court of Common Pleas of Allegheny County,

following his convictions of firearms not to be carried without a license and

criminal attempt—loans on, or lending, giving firearms.1 Appellant contends

the trial court erred by denying his motion to suppress and argues the

evidence was insufficient to sustain his convictions.     Following review, we

affirm.

        On September 25, 2015, Appellant was arrested and charged with the

crimes set forth above.        He filed a motion to suppress, claiming that the
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 6106(a)(1) and 901(a)—6115(a), respectively.
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search and seizure of his person and his possession was illegal and that the

handgun obtained in that search should be suppressed. Following a hearing

on February 11, 2016, the trial court denied the motion. A stipulated non-

jury trial followed on February 17, 2016.     The trial court found Appellant

guilty of both charges. Sentencing was deferred until February 19, 2016 so

that Appellant’s counsel could investigate the possibility of a county sentence

with alternative housing.    The court ultimately imposed a sentence of

incarceration of one year less one day to two years less two days on the

firearms conviction followed by two years’ probation on the attempt

conviction, anticipating Appellant would be placed in alternative housing.

      Appellant filed a post-trial motion and the trial court heard argument

on April 26, 2016. The trial court denied the motion on June 24, 2016. This

timely appeal followed.   Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

      Based on the testimony provided at the suppression hearing, which

was admitted as an exhibit at Appellant’s stipulated non-jury trial, the trial

court provided the factual background of the case as follows:

             On September 25, 2015, Detective Matt Tracy of the
      Pittsburgh Police Department, along with Officers Shipp and
      Messner, were assigned to work the plain clothes “90” car unit in
      the North Side area of the city. The officers were focusing their
      attention on certain parts of the North Side where they had
      received multiple complaints of drug-dealing and firearm
      activity, as well as shootings. On that particular day, they were
      in and around Federal Street, a location where Detective Tracy
      had personally made over fifty (50) arrests relating to narcotics
      and firearms.

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            At approximately 2:00 p.m. that afternoon, the officers
     were patrolling Hazlip Way, an alley near Federal Street, in their
     unmarked vehicle when they observed an unknown white male
     in the alley. The officers noticed that the male, later identified
     as [Appellant], was approximately 10 yards down the alley and
     was talking on his cell phone. Based on their training and
     experience, the officers believed that a narcotics transaction
     “was about to occur” involving [Appellant], given his particular
     location and behavior. They, therefore, decided to encounter
     [Appellant].

           The officers drove past Hazlip Way, out of [Appellant’s]
     view, and parked their vehicle. Detective Tracy and Officer
     Shipp then exited the vehicle, approached [Appellant] with their
     badges displayed around their necks, and identified themselves
     as police officers. Officer Shipp spoke with [Appellant] while
     Detective Tracy focused his attention on [Appellant’s] behavior
     and mannerisms. [Appellant] was asked what he was doing in
     the area, and although there are no storefronts in the alley, he
     stated that he was waiting for a friend who was “in the store.”
     The nearest store is a small market on Federal Street, two (2)
     corners away.

           As Officer Shipp and [Appellant] were talking, Detective
     Tracy observed that [Appellant] appeared nervous. He also
     noticed that [Appellant] was holding a “brownish, plastic grocery
     bag” in his right hand. The bag “was somewhat see-through,”
     and Detective Tracy observed that there was a heavy object
     inside of it.   After looking further at the bag, Detective Tracy
     was able to see “the outline of a firearm.” At that point, it was
     clear to Detective Tracy that the heavy object in the bag was a
     small firearm so he took possession of the bag and alerted
     Officer Shipp of the presence of the firearm. Once he took hold
     of the bag, Detective Tracy noted that the bag was heavy, and
     he could “feel there was a firearm inside of it.”

            After being informed of the presence of the firearm, Officer
     Shipp immediately asked [Appellant] whether he had a license to
     carry the firearm. After admitting that he did not have a license
     for the firearm, [Appellant] was detained in handcuffs while the
     officers “ran the firearm” and confirmed that [Appellant] did not
     have a valid license. Detective Tracy recovered the firearm from
     the bag after [Appellant] admitted his non-licensure status.

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            Officer Messner Mirandized [Appellant] in Detective Tracy’s
      presence, and [Appellant] thereafter admitted that he had
      obtained the firearm “at one of his construction jobs and he was
      just trying to make a little extra money to sell the firearm to
      another male.” [Appellant] also stated that he “brought [the
      firearm] down to Hazlip St[reet] to trade to an unknown male for
      $150.00 because he needed the money” and “he knew he
      shouldn’t have been carrying the gun.

Trial Court Rule 1925(a) Opinion, 1/6/17, at 3-6 (citations to Suppression

Hearing Notes of Testimony omitted).

      Appellant asks us to consider three issues on appeal:

      I.     Did the trial court err in not suppressing the evidence
             when the police officers had no reasonable suspicion to
             detain [Appellant] and testified only to generalized
             suspicions that he was engaged in criminal activity and
             [Appellant] was not free to leave or otherwise terminate
             the encounter?

      II.    Was the evidence insufficient to establish beyond a
             reasonable doubt that [Appellant] was guilty of carrying a
             firearm without a license since the police testified that the
             firearm was visible in the bag, thus the weapon was not
             concealed?

      III.   Was the evidence insufficient to establish beyond a
             reasonable doubt that [Appellant] was guilty of criminal
             attempt of loans on, lending or giving a firearm under 18
             Pa.C.S. § 6115(a), when selling a firearm is not listed as a
             prohibited act under 18 Pa.C.S. § 6115 and there are
             exceptions to the act that make loaning, lending or giving
             a firearm to individuals identified under § 6115(b) lawful
             and there was no evidence presented by the
             Commonwealth showing that the alleged transferee would
             have been prohibited from purchasing the gun?

Appellant’s Brief at 5.




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      In his first issue, Appellant argues trial court error for denying his

motion to suppress, arguing the police did not have reasonable suspicion to

detain him.    In Commonwealth v. Nguyen, 116 A.3d 657 (Pa. Super.

2015), this Court explained the applicable standard of review as follows:

      The standard of review an appellate court applies when
      considering an order denying a suppression motion is well
      established.     An appellate court may consider only the
      Commonwealth’s evidence 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 record supports the factual
      findings of the trial court, the appellate court is bound by those
      facts and may reverse only if the legal conclusions drawn
      therefrom are in error. However, it is also well settled that the
      appellate court is not bound by the suppression court’s
      conclusions of law.

Id. at 663-64 (internal citations omitted).

       Against the backdrop of the suppression hearing testimony, the trial

court considered the nature of the interaction between Appellant and the

officers.   The trial court concluded that the initial interaction was a mere

encounter based on the lack of any intimidating or coercive behavior on the

part of the officers as well as the brief duration of the encounter, which

lasted approximately 30 seconds.        Id. at 10.     The mere encounter

transformed into a lawful investigative detention when Detective Tracy

observed the firearm in the bag Appellant was carrying. Id. at 11. “At that

point, Detective Tracy’s seizure of the bag was justified for officer safety

purposes because he possessed a reasonable, ‘particularized, objective

basis’ to believe that [Appellant] was armed and potentially dangerous.” Id.


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(quoting Commonwealth v. Grahame, 7 A.3d 810, 817 (Pa. 2010)

(additional citations omitted)).   Finally, the officers did not recover the

weapon from the bag until Appellant admitted his non-licensure status. At

that time, the officers had probable cause to arrest Appellant for unlicensed

possession. The weapon inevitably would have been seized incident to his

lawful arrest. Id. at 12-13.

      In analyzing the interaction in its various stages, the trial court

examined case law supporting its characterization of the stages of

interaction and determined the totality of the circumstances established that

the police conduct was lawful and that Appellant’s motion to suppress was

properly denied. We agree. We hereby incorporate by reference and adopt

as our own the trial court’s analysis and conclusions as if fully set forth. Id.

at 6-13. Appellant’s suppression issue fails.

      In his second and third issues, Appellant argues that the evidence was

insufficient to support his convictions. As our Supreme Court has explained:

      A claim challenging the sufficiency of the evidence is a question
      of law. 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. Where the evidence offered to support the
      verdict is in contradiction to the physical facts, in contravention
      to human experience and the laws of nature, then the evidence
      is insufficient as a matter of law. When reviewing a sufficiency
      claim the court is required to view the evidence in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.




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Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citations

omitted).

        As noted above, after the suppression motion was denied, the case

proceeded to a stipulated jury trial.          At the trial, the suppression hearing

testimony was incorporated into the record as Exhibit 1.            The affidavit of

probable cause and the certified form reflecting Appellant’s lack of a license

to carry a concealed weapon were admitted as Exhibits 2 and 3.                  The

prosecution did not offer any additional exhibits or evidence. The defense

did not offer any evidence.

         The trial court found Appellant guilty of the two crimes charged, the

first of which was carrying a firearm without a license. Subject to exceptions

not applicable here, 18 Pa.C.S.A. § 6106(a)(1) provides, in relevant part,

that “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.” Appellant contends that the evidence, even when read in the light

most favorable to the Commonwealth, “establishes in the very least a

reasonable doubt as to whether [Appellant] possessed a ‘concealed’ gun as

required under § 6106.” Appellant’s Brief at 19.2



____________________________________________


2   Appellant does not suggest he was licensed to carry a concealed firearm.



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       Appellant’s assertion is based upon a statement by Detective Tracy at

Appellant’s suppression hearing that the detective “could see through the

bag, and it was clear it was a small firearm.”          Notes of Testimony (N.T.)

Suppression Hearing, 2/11/16, at 6.            The detective had already described

the bag as a “brownish, plastic grocery bag” that was “somewhat see-

through.”    Id. at 5-6.      He explained that he “noticed there was a heavy

object in the bag, which [he] looked further into, while Officer Shipp was

talking to [Appellant,] and [he] observed the outline of a firearm.” Id. at 6.

       Appellant argues that the detective testified “that ‘it was clear’ there

was a gun that was plainly visible in the bag held by [Appellant].”

Appellant’s Brief at 18.        As the quoted testimony from Detective Tracy

reveals, Appellant’s characterization of the detective’s statement is not a

true reflection of what he said. The detective observed Appellant carrying a

brownish grocery bag. After “look[ing] further,” he noticed the outline of a

firearm in the bag. It then became clear to the detective that the item in

the bag was a firearm.

       The trial court acknowledged the Merriam-Webster definition of

“conceal” as “(1) to prevent disclosure or recognition of, or (2) to place out

of sight,”3 and explained:


____________________________________________


3   Trial Court Rule 1925(a) Opinion, 1/6/17,                   at   17,   quoting
http://www.merriam-webster.com/dictionary/conceal.



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      After considering the particular circumstances of the present
      case, and after viewing the evidence in the light most favorable
      to the Commonwealth as the verdict winner, the evidence was
      sufficient to conclude that [Appellant] was unlawfully carrying a
      concealed weapon on or about his person. [Appellant] was not
      openly holding the weapon, nor was the weapon contained in a
      clear, transparent container which would have allowed the
      weapon to be readily seen. Unlike a Ziploc bag, the brownish
      tint to [Appellant’s] colored grocery bag prevented the items
      contained therein from being immediately recognizable. That
      conclusion is supported by the fact that Detective Tracy only
      noticed a heavy object inside of the bag at first. It was only
      after he focused more of his attention on the object that he was
      able to make out the outline of a weapon. The fact that an
      experienced detective was ultimately able to recognize the
      outline of the object as a firearm does not support a finding that
      the weapon was being openly carried.

Trial Court Rule 1925(a) Opinion, 1/6/17, at 16-17 (emphasis in original).

      Viewing   the   testimony   in    the   light   most   favorable   to   the

Commonwealth, we agree with the trial court that the evidence was

sufficient to find that Appellant was carrying a concealed firearm and that he

was not licensed to do so. Therefore, the evidence was sufficient to support

Appellant’s conviction of carrying a concealed firearm without a license in

violation of 18 Pa.C.S.A. § 6106(a).     We hereby incorporate by reference

and adopt as our own the trial court’s analysis and conclusions as if fully set

forth. Id. at 13-19. Appellant’s second issue fails.

      Appellant also challenges the sufficiency of evidence leading to his

criminal attempt conviction for loans on, lending or giving a firearm under

18 Pa.C.S.A. § 6115(a).     With regard to criminal attempt, 18 Pa.C.S.A.

§ 901(a) provides that “[a] person commits an attempt when, with intent to


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commit a specific crime, he does any act which constitutes a substantial step

toward the commission of that crime.” Therefore, the issue here is whether

the evidence was sufficient to establish that Appellant took a substantial step

toward committing a crime under § 6115(a).

       Section 6115(a) provides that “[n]o person shall make any loan

secured by mortgage, deposit or pledge of a firearm, nor, except as provided

in subsection (b), shall any person lend or give a firearm to another or

otherwise deliver a firearm contrary to the provisions of this subchapter.” 4


____________________________________________


4  Pursuant to § 6115(b), with regard to lending, giving or delivering a
firearm, provides:

    (1) Subsection (a) shall not apply if any of the following apply:

       (i) The person who receives the firearm is licensed to carry a
       firearm under section 6109 (relating to licenses).

       (ii) The person who receives the firearm is exempt from
       licensing.

       (iii) The person who receives the firearm is engaged in a
       hunter safety program certified by the Pennsylvania Game
       Commission or a firearm training program or competition
       sanctioned or approved by the National Rifle Association.

       (iv) The person who receives the firearm meets all of the
       following:

          (A) Is under 18 years of age.

          (B) Pursuant to section 6110.1 (relating to possession
          of firearm by minor) is under the supervision, guidance
          and instruction of a responsible individual who:

              (I) is 21 years of age or older; and
(Footnote Continued Next Page)


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      Appellant contends that § 6115(a) does not prohibit the sale of a

firearm but rather prohibits only the mortgaging, depositing, pledging,

lending or giving of a firearm.        In doing so, Appellant ignores the stated

prohibition against delivering a firearm.         He argues that the evidence was

insufficient to support a finding that Appellant violated § 6115(a).

Appellant’s Brief at 24. He further contends that the Commonwealth did not

(Footnote Continued) _______________________

             (II) is not prohibited from owning or possessing a
             firearm under section 6105 (relating to persons not
             to possess, use, manufacture, control, sell or
             transfer firearms).

      (v) The person who receives the firearm is lawfully hunting or
      trapping and is in compliance with the provisions of Title 34
      (relating to game).

      (vi) A bank or other chartered lending institution is able to
      adequately secure firearms in its possession.

   (2) Nothing in this section shall be construed to prohibit the
   transfer of a firearm under 20 Pa.C.S. Ch. 21 (relating to intestate
   succession) or by bequest if the individual receiving the firearm is
   not precluded from owning or possessing a firearm under section
   6105.

   (3) Nothing in this section shall be construed to prohibit the loaning
   or giving of a firearm to another in one’s dwelling or place of
   business if the firearm is retained within the dwelling or place of
   business.

   (4) Nothing in this section shall prohibit the relinquishment of
   firearms to a third party in accordance with 23 Pa.C.S. § 6108.3
   (relating to relinquishment to third party for safekeeping).

18 Pa.C.S.A. § 6115(b).




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present evidence to negate the exceptions to § 6115(a).             Appellant’s Brief

at 26.

         Again, we view the evidence in the light most favorable to the

Commonwealth to determine whether it establishes each material element of

the crime charged, and the commission thereof by Appellant, beyond a

reasonable doubt. Widmer, 744 A.2d at 751. The trial court reviewed the

evidence presented and determined—correctly, we believe—that Appellant’s

admission to the officers that he “was just trying to make a little extra

money” by selling the firearm to another individual, coupled with his

statement reflected in the affidavit of probable cause that he brought the

gun to the Hazlip Street area to trade for $150 because he needed the

money, supported a finding that he was present in the alley for the purpose

of giving or delivering a firearm to an unnamed male. As such, viewing that

evidence in the light most favorable to the Commonwealth, the evidence was

sufficient to support a finding that Appellant took a substantial step toward

violating § 6115(a). Trial Court Opinion, 1/6/17, at 21 (quoting and citing

N.T. Suppression Hearing, 2/11/16, at 7, and Commonwealth Exhibit 2,

Affidavit of Probable Cause).

         The   trial   court   then   examined    Appellant’s   assertion   that   the

Commonwealth was required to negate, beyond a reasonable doubt, the

exceptions listed in § 6115(b). After reviewing relevant case law, the court

concluded the exceptions clause “is not an integral part of the offense, but


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rather a distinct clause.” Id. at 24 (citing Commonwealth v. Banellis, 682

A.2d 383 (Pa. Super. 1996)).

      As now-Chief Justice Saylor explained in Commonwealth v. Bavusa,

832 A.2d 1042 (Pa. 2003) (Saylor, J., concurring):

      In considering an exception’s character, courts generally make
      some primary assessment concerning its substantive relationship
      to the definition of the crime. For example, exceptions reflecting
      facts or circumstances materially interrelated with the primary
      criminal conduct constituting the offense are distinguished from
      those which merely furnish an excuse for what would otherwise
      be criminal conduct or layer some more tangential factor or
      circumstance into the calculus.       Exceptions of the former
      character obviously favor the elements construction; those in
      latter nature militate toward a construction imposing a duty
      upon the defendant to bring himself within the exculpatory
      provision.

Id. at 1059 (citing Commonwealth v. Stoffan, 323 A.2d 323, 325 (Pa.

Super. 1074) (emphasis added)).       We agree with the trial court that the

exceptions in § 6115(b) are not integral elements of the offense.       In line

with Bavusa, we find they are more accurately characterized as affirmative

defenses available to the defendant to decriminalize the act of lending,

giving or delivering a firearm.

      We find that the evidence, viewed in the light most favorable to the

Commonwealth as verdict winner, was sufficient to support Appellant’s

conviction of criminal attempt delivering a firearm in violation of 18

Pa.C.S.A. §§ 901 and 6115(a).       We hereby incorporate by reference and

adopt as our own the trial court’s analysis and conclusions as if fully set

forth. Id. at 19-25. Appellant’s third issue fails for lack of merit.

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      Appellant is not entitled to relief on any of his three issues. Therefore,

we affirm his judgment of sentence. In the event of further proceedings, the

parties shall attach to their filings a copy of the trial court’s January 6, 2017

Rule 1925(a) opinion.

      Judgment of sentence affirmed.

      Judge Solano joins this memorandum.

      Justice Fitzgerald concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/29/2017




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