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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                          :
JAMES EDWARD SMITH,                       :          No. 1172 MDA 2018
                                          :
                          Appellant       :


         Appeal from the Judgment of Sentence Entered April 26, 2018,
               in the Court of Common Pleas of Dauphin County
               Criminal Division at No. CP-22-CR-0002908-2016


BEFORE: LAZARUS, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED SEPTEMBER 23, 2019

        James Smith appeals from the April 26, 2018 aggregate judgment of

sentence of 7 to 14 years’ imprisonment imposed after a jury found him guilty

of possession of firearm with altered manufacturer’s number, unlawful

possession of a firearm, and firearms not to be carried without a license.1

After careful review, we affirm the judgment of sentence.

        The trial court summarized the relevant facts of this case as follows:

              On the evening of December 22, 2015, Officers
              [Alan] Shipley and [Michael] Rudy were conducting
              routine patrol with the street crimes unit of the
              Harrisburg Police Department at the 600 block of
              Geary Street.    Officers Rudy and Shipley were
              standing on the front porch of [a]ppellant’s home,
              612 Geary Street, when he arrive[d] home driving a
              Buick Enclave.      Officers later learn[ed] that
              [a]ppellant was the driver of the vehicle, and was

1   18 Pa.C.S.A. §§ 6110.2(a), 6105(a)(1), and 6106(a)(1), respectively.
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            accompanied by Mr. Jukennith Smith, his nephew, in
            the passenger’s side.

            Officer Shipley    initiated    a  conversation     with
            [appellant]. During the duration of that conversation
            Officer Shipley believed that criminal activity was
            afoot. Officer Rudy asked [a]ppellant if he would
            consent to a search of the vehicle he was driving.
            [Appellant] refused to consent to a search of the
            vehicle stating that it was not his vehicle and
            Officer Rudy would have to ask his wife, Ms. Clark, for
            permission. Officer Rudy then asked Ms. Clark if she
            would consent to having the vehicle searched, and she
            also declined.       Without entering the vehicle,
            Officer Rudy walked around its perimeter looking
            through the windows.         From walking around the
            vehicle, Officer Rudy could clearly see a firearm
            sticking out by approximately two thirds from
            underneath the driver’s seat floorboard. This gun was
            later identified and stipulated to at trial as being a[]
            Kel-Tec 9mm semiautomatic handgun.                 After
            Officer Rudy saw the gun, he entered the car to
            retrieve it and placed [appellant] under arrest.

            Recorded conversations were played for the jury at
            trial and authenticated by Officer Rudy.        It was
            stipulated by both parties that in each recording
            [a]ppellant was a participant. The Commonwealth’s
            purpose in playing these recordings[] was to prove
            that [a]ppellant was attempting to find someone else
            to admit to possession of the firearm. [] Appellant
            also testified at his trial. Throughout the duration of
            his testimony he attempted to prove that other
            individuals had access to the vehicle he was driving
            on the day of the incident. [] Appellant outlined his
            day, with his testimony indicating that his employees
            along with his nephew had access to his vehicle.

Trial court opinion, 10/22/18 at 2-3 (citations to notes of testimony omitted).

      Appellant was subsequently arrested and charged with possession of

firearm with altered manufacturer’s number, unlawful possession of a firearm,



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and firearms not to be carried without a license. On April 21, 2017, appellant

filed an omnibus pretrial motion to suppress the evidence seized as a result

of the warrantless search of his vehicle.2 Following a hearing, the trial court

denied the motion on January 8, 2018. Appellant proceeded to a jury trial

and was subsequently found guilty of the aforementioned offenses on

March 15, 2018. As noted, appellant was sentenced to an aggregate term of

7 to 14 years’ imprisonment on April 26, 2018. Thereafter, appellant filed

timely post-sentence motions “to set aside conviction” arguing that there was

insufficient evidence that he possessed the firearm and the verdict was against

the weight of the evidence. (See post-sentence motions, 5/3/18 at ¶¶ 3-5,

7-9.)   The trial court denied appellant’s post-sentence motions on June 6,

2018.3 This timely appeal followed.4




2 As noted, this vehicle was owned by appellant’s wife, Angela Clark (See
notes of testimony, 3/14-15/18 at 27, 68.) However, for the ease of our
discussion, we will refer to this vehicle as “appellant’s vehicle” or “his vehicle.”

3 We note that the trial court opinion incorrectly indicates that it issued an
order on May 10, 2018 denying appellant’s post-sentence motions. (See trial
court opinion, 10/22/18 at 1.) However, our review of the docket reveals that
the trial court’s May 10, 2018 order merely directs the Commonwealth to
respond to appellant’s post-sentence motion within 20 days and states that
the failure to do so “shall result in a hearing being scheduled in this matter.”
(Trial court order, 5/10/18.)

4 On July 12, 2018, the trial court ordered appellant to file a concise statement
of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b),
within 21 days. Following an extension, appellant filed his Rule 1925(b)
statement on August 27, 2018, and the trial court filed its Rule 1925(a)
opinion on October 22, 2018.


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      Appellant raises the following issues for our review:

            1.    Did the [suppression] court err by failing to
                  suppress the evidence recovered during a
                  warrantless vehicle search?

            2.    Did the Commonwealth fail to present sufficient
                  evidence to prove the element of possession in
                  the following offenses: possession of a firearm
                  with altered or obliterated serial number,
                  person prohibited from possessing a firearm,
                  and possession of firearm without a license?

Appellant’s brief at 9 (extraneous capitalization omitted).

      Appellant first argues that the suppression court erred in denying his

motion to suppress the firearm recovered by Officer Rudy during the

warrantless search of his vehicle. (Id. at 16.)

            [Our] 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]
            findings and may reverse only if the court’s legal
            conclusions are erroneous.

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

omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).

      “Both the Fourth Amendment of the United States Constitution and

Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals



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freedom from unreasonable searches and seizures.”          Commonwealth v.

Bostick, 958 A.2d 543, 550 (Pa.Super. 2008) (citation and internal quotation

marks omitted), appeal denied, 987 A.2d 158 (Pa. 2009). “A warrantless

search or seizure is presumptively unreasonable under the Fourth Amendment

and Article I, § 8, subject to a few specifically established, well-delineated

exceptions.” Commonwealth v. McCree, 924 A.2d 621, 627 (Pa. 2007).

One such exception is the plain view doctrine. See id. (holding, “[t]he ‘plain

view’ doctrine is often considered an exception to the general rule that

warrantless searches are presumptively unreasonable”), quoting Horton v.

California, 496 U.S. 128, 133 (1990).

            Our Supreme Court has expressly recognized that
            incriminating objects plainly viewable [in the] interior
            of a vehicle are in plain view and, therefore, subject
            to seizure without a warrant. This doctrine rests on
            the principle that an individual cannot have a
            reasonable expectation of privacy in an object that is
            in plain view.

Commonwealth v. Turner, 982 A.2d. 90, 92 (Pa.Super. 2009) (internal

citations omitted), appeal denied, 992 A.2d 889 (Pa. 2010).

      In Commonwealth v. Luczki, 212 A.3d 530 (Pa.Super. 2019), this

court recently reiterated that the plain view doctrine permits the warrantless

seizure of objects in plain view when the following three prongs are satisfied:

“(1) an officer views the object from a lawful vantage point; (2) it is

immediately apparent to him that the object is incriminating; and (3) the




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officer has a lawful right of access to the object.” Id. at 547 (citation and

parentheses omitted); see also McCree, 924 A.2d at 625.5

     Upon review, we agree with the suppression court’s conclusions that the

recovery of the firearm falls within the plain view exception to the search

warrant requirement.      First, the record supports the conclusion that

Officer Rudy observed the firearm in appellant’s vehicle from a lawful

vantage point. Officer Rudy, a ten-year veteran of the Harrisburg City Police

Department, testified that on the day in question he was partnered with

Officer Shipley of the Pennsylvania Board of Probation and Parole and was on

routine patrol as part of his duties with the Street Crimes Unit.     (Notes of

testimony, suppression hearing, 1/8/18 at 5-6.) Officer Rudy testified that he

observed a vehicle being driven by appellant pull up in front of his house and

park on the public street. (Id. at 6-7.) Officer Rudy indicated that as he




5We recognize that “the Fourth Amendment to the United States Constitution
and Article 1, Section 8 of the Pennsylvania Constitution provide limited
protection to those on parole.” Commonwealth v. Gould, 187 A.3d 927,
935 (Pa.Super. 2018) (citation omitted), appeal denied, 194 A.3d 1040 (Pa.
2018).

           [P]ursuant to 61 Pa.C.S.A. § 6153, a state parole
           agent may conduct a personal or property search of a
           parolee if there is reasonable suspicion to believe that
           the parolee “possesses contraband or other evidence
           of violations of the conditions of supervision.”
           61 Pa.C.S.A. § 6153(d)(1)(i) and (d)(2).

Gould, 187 A.3d at 935. However, because appellant’s claims are limited to
the warrantless vehicle search conducted by Officer Rudy, we find that
Section 6153 is not implicated.


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walked around the perimeter of appellant’s vehicle, he observed through the

window two-thirds of a firearm laying in plain view on the driver’s seat

floorboard. (Id. at 9-10.)

        Second, the incriminating character of the firearm would have been

immediately apparent to Officer Rudy. Officer Rudy testified that he has been

involved in firearms investigations “between 50 and 75” times and that in his

experience, he “could clearly see [the object he observed] was a firearm[.]”

(Id. at 5, 11.)     Although it is undisputed that individuals can legally own

firearms under certain circumstances, the fact that Officer Rudy was aware

that appellant had a prior felony conviction enumerated in 18 Pa.C.S.A.

§ 6105(b) that prohibited him from possessing a firearm provided him with

probable cause to believe that it may have been involved in criminal activity.6


6   At the suppression hearing, Officer Rudy testified as follows:

              Q.    Okay. Is it per se illegal to have a weapon in a
                    vehicle in Pennsylvania?

              A.    I knew prior that [appellant] had a previous PWI
                    conviction. The one thing I do when I’m with an
                    agent and we go to houses, if -- some houses
                    they want us to go in with, sometimes they
                    don’t. If I’m not familiar with the person, I’ll
                    say, you know, what is this guy on parole for,
                    something like that. And Agent Shipley alerted
                    me that he has a previous history of PWI.

              Q.    Okay. So you knew that before you started
                    looking for the gun.

              A.    That he had a previous history of PWI?



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“A police officer has probable cause to believe that an object is incriminating

where the facts available to the officer would warrant a man of reasonable

caution in the belief[] that certain items may be contraband or stolen property

or useful as evidence of a crime[.]” Commonwealth v. Wright, 99 A.3d

565, 569 (Pa.Super. 2014) (citation, emphasis, and internal quotation marks

omitted; brackets in original), appeal denied, 116 A.3d 605 (Pa. 2015).

      Third, Officer Rudy had lawful right of access to the firearm in the

vehicle. As noted, Officer Rudy testified he could plainly observe two-thirds

of the firearm through the vehicle’s window, without having to enter the

vehicle or stand on its wheel well. (Notes of testimony, suppression hearing,

1/8/18 at 9-11, 16-17.) At that point, Officer Rudy believed the weapon was

contraband.      (Id. at 18.)    Appellant makes much of the fact that

“[Officer Rudy] could not have seen inside the car clearly because it was

7:45 p.m. on December 22nd. It was dark, and the officer could not say for

certain that he used a flashlight to see into the vehicle that had tinted

windows.” (Appellant’s brief at 19.) However, Officer Rudy testified that the

area was well lit from a large spotlight in an adjacent parking lot and that he

“assum[ed]” he utilized a flashlight that evening, it “being nighttime.” (Notes




            Q.     Right.

            A.     Before we went to the house I knew that.

Notes of testimony, 1/8/18 at 18-19.


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of testimony, suppression hearing, 1/8/18 at 10.)       On cross-examination,

Officer Rudy further noted as follows:

            Q.    Officer Rudy, do you recall on the night in
                  question if that vehicle you were looking at had
                  reflective tint on it?

            A.    It’s a Buick Enclave. I know, standard factory,
                  they do have tint, especially on the back
                  windows. I’m confident it had a little bit of tint
                  --

            (The court reporter interrupted.)

                  [Officer Rudy]: I know Buick Enclaves -- the
                  specific tint or sunscreen this vehicle had it on,
                  I don’t know how dark it was. I know that the
                  front windows were -- you were able to see
                  inside of them.

            Q.    Okay. So when you shined your flashlight in
                  that window, it doesn’t reflect back at you. You
                  actually illuminated the inside of the vehicle?

            A.    You could see clear as day inside of that --
                  the front seat of that vehicle.

Id. at 17 (emphasis added).

      This court has long recognized that “[t]he fact that [the officer] required

illumination from a flashlight to see into the darkened interior of the vehicle

did not prevent the gun from being in plain view or render the policeman’s

conduct unreasonable.” Commonwealth v. Merkt, 600 A.2d 1297, 1299-

1300 (Pa.Super. 1992).     Likewise, questions of witness credibility and the

weight to be afforded the evidence are within the sole province of the

fact-finder, who “is free to believe all, part, or none of the evidence.”



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Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)

(citations omitted), appeal dismissed as improvidently granted, 54 A.3d

22 (Pa. 2012).     Here, there is nothing in the record to conclude that

Officer Rudy’s testimony was anything but credible.         Based on all of the

foregoing, we discern no error on the part of the suppression court in denying

appellant’s suppression motion.

      We now turn to appellant’s claim that there was insufficient evidence to

sustain his firearms convictions7 because the Commonwealth failed to prove


7  Appellant was found guilty of possession of firearm with altered
manufacturer’s number, unlawful possession of a firearm, and firearms not to
be carried without a license. The crime of possession of firearm with altered
manufacturer’s number provides that, “[n]o person shall possess a firearm
which has had the manufacturer’s number integral to the frame or receiver
altered, changed, removed or obliterated.” 18 Pa.C.S.A. § 6110.2(a).

      The crime of unlawful possession of a firearm is defined as follows:

            (a)   Offense defined.--

                  (1)    A person who has 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.A. § 6105(a)(1).

       Lastly, a person will be found guilty of firearms not to be carried without
a license if they “carr[y] a firearm in any vehicle or . . . concealed on or about
his person, except in his place of abode or fixed place of business, without a


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that “he possessed the firearm” or “exercised control over the [firearm]” found

in his vehicle. (Appellant’s brief at 20, 22.) In support of this contention,

appellant avers that numerous other individuals had access to the vehicle on

the day of the incident, including his nephew, Jukennith Smith. (Id. at 22.)

            In reviewing the sufficiency of the evidence, we must
            determine whether the evidence admitted at trial and
            all reasonable inferences drawn therefrom, viewed in
            the light most favorable to the Commonwealth as
            verdict winner, is sufficient to prove every element of
            the offense beyond a reasonable doubt.           As an
            appellate court, we may not re-weigh the evidence
            and substitute our judgment for that of the
            fact-finder.   Any question of doubt is for 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.

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009) (citations

omitted), appeal denied, 4 A.3d 1054 (Pa. 2010).

      In situations where it cannot be proven that a suspect had the firearm

on his person, as is the case here, the Commonwealth is required to prove

constructive possession.    See Commonwealth v. Hopkins, 67 A.3d 817,

820 (Pa.Super. 2013), appeal denied, 78 A.3d 1090 (Pa. 2013).

            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

valid and lawfully issued license[.]” 18 Pa.C.S.A. § 6106(a)(1). The record
reflects that the parties stipulated during trial that appellant had a prior felony
conviction enumerated in Section 6105(b) that prohibited him from
possessing a firearm, and that the firearm that was found the day of the
incident had a “partially obliterated” serial number. (See notes of testimony,
3/14-15/18 at 34-35, 104-105.) These elements are not at issue on appeal.


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               contraband was more likely than not. We have
               defined constructive possession as conscious
               dominion.      We subsequently defined conscious
               dominion as the power to control the contraband and
               the intent to exercise that control.

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super. 2012) (citations

and internal quotation marks omitted), appeal denied, 63 A.3d 1243 (Pa.

2013). As with any other element of a crime, the Commonwealth may sustain

its   burden    of   proving   constructive   possession   by   means   of   wholly

circumstantial evidence, and the requisite intent may be inferred from

examination of the totality of the circumstances. Hopkins, 67 A.3d at 820.

       Upon review of the evidence in the light most favorable to the

Commonwealth as the verdict winner, we conclude that there was sufficient

evidence to establish that appellant constructively possessed the firearm

found in his vehicle. The record establishes that while on routine patrol on

the 600 block of Geary Street, Officer Rudy observed appellant park outside

his home and exit his vehicle. (Notes of testimony, 3/14-15/18 at 24-25.)

Officer Rudy testified that while walking around the perimeter of the vehicle,

he observed two-thirds of a firearm in plain view sticking out from under the

driver’s side seat where appellant had just exited.              (Id. at 28-31.)

       Appellant’s contention that he was not in constructive possession of the

firearm found in plain view on the driver’s side of a vehicle that he was

observed driving moments before, because other individuals also had access

to said vehicle earlier in the day, disregards the fact that “[he] also had an



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equal opportunity if not more opportunity to access the vehicle and the gun.”

(Trial court opinion, 10/22/18 at 6-7.)     See, e.g., Hopkins, 67 A.3d at

820-821 (holding that, inter alia, the evidence was sufficient to show that

the defendant constructively possessed a firearm found in a vehicle he was

driving, where the firearm was found within arm’s length of both where

defendant was seated and another passenger). Based on the foregoing, we

find that the Commonwealth presented sufficient evidence for the jury to

conclude, based upon the totality of the circumstances, that appellant

possessed “the power to control the [firearm] and the intent to exercise that

control.” See Brown, 48 A.3d at 430. Accordingly, appellant’s sufficiency

claim must fail.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 09/23/2019




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