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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

KAREEM FITCHETT

                             Appellant                No. 3307 EDA 2015


              Appeal from the Judgment of Sentence June 1, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0015723-2013

BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED April 25, 2017

        Appellant, Kareem Fitchett, appeals from his judgment of sentence of

five to ten years’ imprisonment for carrying a firearm as a convicted felon,1

carrying a firearm without a license2 and carrying a firearm in public in

Philadelphia.3    Appellant argues, inter alia, that the trial court erred by

denying his motion to suppress the gun that police officers found in his bag

during a search incident to arrest. We affirm.

        At 2:00 p.m. on November 5, 2013, Captain Drew Techner was

patrolling the area of 23rd and Jefferson Streets in Philadelphia when he saw

a Chrysler 300 stopped in the middle of the street. The vehicle was directly

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6105.
2
    18 Pa.C.S. § 6106.
3
    18 Pa.C.S. § 6108.
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in front of the officer’s car, blocking traffic and preventing the officer from

passing in his vehicle. Captain Techner saw Appellant in the rear passenger

seat handing an object to the driver. The officer approached the driver to

initiate a traffic stop and found that he was operating a cab.

      Moments later, Officer Neika Bell arrived as back-up and approached

Appellant, who was still sitting in the rear passenger seat with a black bag

next to him. Officer Bell asked Appellant for his identification, and Appellant

told her his name and date of birth. The officer ran this information in the

N.C.I.C./P.C.I.C. database and learned that Appellant was on bench warrant

status.

      Officer Bell asked Appellant to step out of the vehicle. Appellant

stepped out carrying the black bag, and he was patted down and arrested.

Minutes later, Officer Joseph Maltz arrived on the scene to transport

Appellant and found him standing with the black bag on the ground

immediately next to him. Officer Maltz asked Appellant whether he was the

owner of the black bag, and Appellant made a gesture indicating that the

bag was his. Captain Techner confirmed that it was the same black bag that

he saw Appellant carrying when stepping out of the vehicle at the time of

arrest.   Officer Maltz looked in the bag and recovered a .45 caliber semi-

automatic handgun.

      Appellant was charged with the aforementioned offenses.       On March

25, 2015, the trial court denied Appellant’s motion to suppress the gun



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seized during his arrest4 and then found Appellant guilty of all charges

during a non-jury trial.   On June 1, 2015, the court imposed sentence.

Appellant filed timely post-sentence motions challenging, inter alia, the

weight of the evidence. The trial court denied these motions, and Appellant

filed a timely notice of appeal. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises three issues in this appeal:

         A. Did the suppression court err by denying Appellant’s
         motion to suppress?

         B. Was the evidence insufficient to support the weapons
         charges?

         C. Were the verdicts against the weight of the evidence?

Appellant’s Brief at 3.

      Appellant first challenges the denial of his motion to suppress. When

this Court addresses a challenge to the denial of a suppression motion,

         [we are] 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] findings and may
         reverse only if the court’s legal conclusions are erroneous.
         Where ... the appeal of the determination of the

4
  The court entered findings of fact identical in substance to the evidence
discussed above.



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          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 the courts below are subject to [ ]
          plenary review.

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

(citation omitted).      When reviewing the suppression court’s rulings, we

consider only the suppression record. In re L.J., 79 A.3d 1073, 1085 (Pa.

2013) (“it is inappropriate to consider trial evidence as a matter of course,

because it is simply not part of the suppression record, absent a finding that

such evidence was unavailable during the suppression hearing”).

      “The Fourth Amendment of the Federal Constitution and Article I,

Section   8   of   the   Pennsylvania   Constitution   protect   individuals   from

unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d

889, 892 (Pa. Super. 2012). In Fourth Amendment jurisprudence, there are

three categories of interactions between citizens and the police:

          The first [category] is a “mere encounter” (or request for
          information) which need not be supported by any level of
          suspicions, but carries no official compulsion to stop or
          respond. The second, an “investigative detention,” must
          be supported by a reasonable suspicion; it subjects a
          suspect to a stop and a period of detention, but does not
          involve such coercive conditions as to constitute the
          functional equivalent of an arrest. Finally, an arrest or
          “custodial detention” must be supported by probable
          cause.

Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)

(citation omitted). Reasonable suspicion



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        is a less stringent standard than probable cause necessary
        to effectuate a warrantless arrest, and depends on the
        information possessed by police and its degree of reliability
        in the totality of the circumstances. In order to justify the
        seizure, a police officer must be able to point to specific
        and articulable facts leading him to suspect criminal
        activity is afoot.       In assessing the totality of the
        circumstances, courts must also afford due weight to the
        specific, reasonable inferences drawn from the facts in
        light of the officer’s experience and acknowledge that
        innocent facts, when considered collectively, may permit
        the investigative detention.

Commonwealth v. Clemens, 66 A.3d 373, 379 (Pa. Super. 2013) (citation

omitted).

     “[A] police officer may stop a vehicle based on the reasonable belief

that a provision of the Motor Vehicle Code has been or is being violated.”

Commonwealth v. Rosa, 734 A.2d 412, 414 (Pa. Super. 1999); 75 Pa.C.S.

§ 6308(b).     During a traffic stop for a suspected violation of the Motor

Vehicle Code, the officer may constitutionally request identification from a

vehicle passenger. See Commonwealth v. Reed, 19 A.3d 1163, 1167-68

(Pa. Super. 2011); Commonwealth v. Campbell, 862 A.2d 659, 664 (Pa.

Super. 2004) (“police can require both the driver and the passengers in the

vehicle to identify themselves during a routine traffic stop regardless of

whether there is reasonable suspicion that the passengers are engaged in

criminal activity”) (emphasis in original); see also Commonwealth v. Au,

42 A.3d 1002, 1007 (Pa. 2012) (“a request for identification is not to be

regarded as escalatory in terms of the coercive aspects of a police-citizen

encounter”).


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      The Motor Vehicle Code provides:

         Outside a business or residence district, no person shall
         stop, park or stand any vehicle, whether attended or
         unattended, upon the roadway when it is practicable to
         stop, park or stand the vehicle off the roadway. In the
         event it is necessary to stop, park or stand the vehicle on
         the roadway or any part of the roadway, an unobstructed
         width of the highway opposite the vehicle shall be left for
         the free passage of other vehicles and the vehicle shall be
         visible from a distance of 500 feet in each direction upon
         the highway.

75 Pa.C.S. § 3351(a). In this case, Captain Techner observed a car stopped

in the middle of the road for several minutes, obstructing traffic and

preventing his police vehicle from continuing along the road. Because this

constituted a violation of section 3351(a), Captain Techner had the authority

to initiate a traffic stop under 75 Pa.C.S. § 6308(b), and the back-up officer,

Officer Bell, had the authority to request Appellant’s identification during the

course of the stop. Reed, 19 A.3d at 1168; Campbell, 862 A.2d at 664.

      Using Appellant’s identification, Officer Bell ran an N.C.I.C. search and

learned that an open bench warrant existed for his arrest.       This furnished

her with probable cause to arrest Appellant.         See Commonwealth v.

Cotton, 740 A.2d 258, 264-65 (Pa. Super. 1999) (“the information

contained in a N.C.I.C. report is so inherently reliable that such information

is, in and of itself, sufficient to form the basis of a finding of probable cause

for a police officer who receives such information from an N.C.I.C. report to

make an on the spot arrest”).




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      Because probable cause existed to arrest Appellant, the police officers

had the authority to take him into custody and perform a search incident to

his arrest.   The scope of a search incident to arrest encompasses the

defendant’s person and the area within his immediate control, including

containers within this area. See Commonwealth v. Simonson, 148 A.3d

792, 799 (Pa. Super. 2016)); Commonwealth v. Guzman, 612 A.2d 524,

527 (Pa. Super. 1992), abrogated on other grounds, Commonwealth v.

Bell, 645 A.2d 211 (Pa. Super. 1994).        Accordingly, Officer Maltz had the

authority to search the bag immediately next to Appellant at the scene of

the arrest and confiscate the gun inside the bag. Id.

      For these reasons, the trial court properly denied Appellant’s motion to

suppress the gun seized during his arrest.

      In his second argument, Appellant contends that the evidence was

insufficient to support his convictions for firearms violations because the

Commonwealth failed to prove the element of possession. We disagree.

             The standard we apply in reviewing the sufficiency of
         the evidence is whether viewing all the evidence admitted
         at trial the 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


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          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 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)

(citation omitted), appeal denied, 138 A.3d 4 (Pa. 2016).

        The trial court found Appellant guilty under 18 Pa.C.S. §§ 6105, 6106

and 6108. Section 6105 provides that a person who has been convicted of

any of several enumerated felonies “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).    Section 6106 provides in relevant party that a defendant is

guilty of carrying a firearm without a license if he “carries a firearm in any

vehicle . . . concealed on or about his person . . . without a valid and lawfully

issued [firearms] license.” 18 Pa.C.S. § 6106(a)(1). Section 6108 prohibits

an unlicensed defendant from, inter alia, “carry[ing] a firearm . . . upon the

public streets or upon any public property” in Philadelphia.       18 Pa.C.S. §

6108.

        The Commonwealth may meet its burden of proving possession not

only by showing that the weapon was on the defendant’s person, but also by

establishing that the firearm was in the defendant’s “immediate physical

control” or “within arm’s reach.”    Commonwealth v. Hatcher, 746 A.2d


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1142, 1145 (Pa. Super. 2000) (citation omitted); see also Commonwealth

v. Smith, 392 A.2d 727, 729 (Pa. Super. 1978) (evidence that appellant

was standing with his left foot on bag that contained loaded pistol and

heroin, and that he bent down near his foot and then resumed standing

position, demonstrated requisite power and intent to control contraband and

was sufficient to prove possession of controlled substance).

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

establishes that defendant was in possession of the gun.          Officer Bell

testified that she saw Appellant with the black bag next to him in the rear

passenger seat of the taxi cab. N.T., 3/25/15, at 33, 37-38. Both Captain

Techner and Officer Bell testified that Appellant was carrying the bag when

he stepped out of the vehicle upon learning that he was on warrant status.

Id. at 7-8, 17, 33, 37-38. Moments later, Officer Maltz arrived on the scene

to transport Appellant and saw him standing outside with the bag on the

ground directly beside him.    Id. at 21, 24, 61.    When the officer asked

Appellant if the bag belonged to him, he indicated that it was. Id. at 21, 25-

26, 59, 63-64. Captain Techner confirmed that it was the same black bag

that he saw Appellant carrying at the time of his arrest. Id. at 7-8. Officer

Maltz looked in the bag and recovered a .45 caliber semiautomatic handgun.

Id. at 21.   In addition, at trial, the Commonwealth presented Appellant’s

criminal extract, which included two prior convictions for violation of the

Uniform Firearms Act. This evidence was sufficient to demonstrate that the



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gun in the bag was within Appellant’s immediate physical control, thus

establishing the element of possession.

      Appellant insists that that the evidence failed to demonstrate that

“[he] knew that a gun was present in the bag attributed to him or that he

acknowledged possession of that particular bag.” Brief for Appellant at 29.

Notably, Appellant does not claim that the bag belonged to the driver of the

cab, yet he insists that the bag—which he was carrying when he exited the

cab—did not belong to him and that he did not know what was in the bag.

This is nothing more than Appellant’s attempt to construe the evidence in

the light most favorable to himself rather than the Commonwealth.

Construed in the proper light, as we have done above, the evidence

establishes the element of possession beyond a reasonable doubt. We reject

Appellant’s challenge to the sufficiency of the evidence.

      In his final argument, Appellant challenges the weight of the evidence,

claiming that the    evidence shocked the conscience         because it was

contradictory and unreliable. We disagree.

      Our Supreme Court has held that

         [a] motion for a new trial alleging that the verdict was
         against the weight of the evidence is addressed to the
         discretion of the trial court. An appellate court, therefore,
         reviews the exercise of discretion, not the underlying
         question whether the verdict is against the weight of the
         evidence. The factfinder is free to believe all, part, or
         none of the evidence and to determine the credibility of
         the witnesses. The trial court will award a new trial only
         when the jury’s verdict is so contrary to the evidence as to
         shock one’s sense of justice. In determining whether this


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        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. Thus, the trial court’s denial of a motion for a
        new trial based on a weight of the evidence claim is the
        least assailable of its rulings.

Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citations

omitted).

     Based on the evidence summarized above, the trial court rejected

Appellant’s post-sentence motion challenging the weight of the evidence.

The court acted within its discretion by concluding that this evidence was

“not so contrary to the evidence as to shock one’s sense of justice.” Id.

     In effect, Appellant asks this Court to re-weigh the evidence relating to

his possession of the bag containing the gun. This we cannot do. See id.

(“Appellant’s argument is nothing more than a veiled attempt to have this

Court re-weigh the evidence and substitute our judgment for that of the

jury, which is wholly improper”).   In any event, Appellant overlooks that

both Captain Techner and Officer Bell testified that Appellant was carrying

the bag upon exiting the vehicle, and that Officer Maltz (1) recovered the

gun from the bag that was immediately next to Appellant (2) after Appellant

indicated that he owned the bag. No relief is due.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/25/2017




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