J-S06006-18



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                          :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                             :        PENNSYLVANIA
                                          :
                                          :
              v.                          :
                                          :
                                          :
 JANVIER THOMAS                           :
                                          :   No. 1755 EDA 2016
                    Appellant

            Appeal from the Judgment of Sentence May 13, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0006583-2015


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                                FILED MAY 14, 2018

      Janvier Thomas appeals from the judgment of sentence of four to eight

years imprisonment followed by three years probation imposed following his

conviction of three firearms violations. After careful review, we affirm.

      The pertinent facts underlying Appellant’s convictions are as follows.

On May 25, 2015, Police Officer Jason Carr and his partner were patrolling

the 1200 block of North Hollywood Street, Philadelphia, in a marked police

vehicle.   At approximately 8:30 p.m., they received a radio dispatch

notifying them of gunshots in that area. Shortly thereafter, they received a

second dispatch identifying the suspected shooter as a black male with short

dreadlocks wearing a white T-shirt.     As the officers approached the 1300

block of North Myrtlewood Street, they saw a man matching that description
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sitting on the steps of 1325 North Myrtlewood Street, who was later

identified as Appellant. The police vehicle stopped less than five feet from

Appellant; no lights or sirens were activated.

      Upon seeing the police vehicle, Appellant ran.     According to Officer

Carr, Appellant jumped up, grabbed a bulge in his left cargo pants pocket,

and ran across the street.      The officer, believing the bulge was a gun,

pursued Appellant on foot.     Appellant ran into a residence at 1322 North

Myrtlewood Street and slammed the door. Officer Carr pursued him into the

house with his gun drawn.

      As Officer Carr entered the home, he saw Appellant at the top of the

stairs.   The officer proceeded upstairs after Appellant with Officer Mitchell

McKeever behind him. Officer Carr saw Appellant disappear briefly behind a

curtain leading to a bedroom, he heard a heavy thud on the floor, and then

Appellant walked out of the bedroom with his hands empty and no visible

bulge in his pants pocket.     The officers placed Appellant in custody and

searched him.     Officer Carr found a bag of marijuana in Appellant’s right

pants pocket. Officer McKeever searched the nearby area and located a .40

caliber Taurus handgun, loaded with nine rounds, behind the curtain in front

of a stack of white storage containers.

      Appellant was charged with possession of a firearm by a person not to

possess; possession of a firearm without a license; carrying a firearm on a

public street in Philadelphia; and possession of a small amount of marijuana.


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Appellant moved to suppress evidence obtained from 1322 North Myrtlewood

Street.    After a hearing, the suppression court found that there was

reasonable suspicion for an investigatory stop, and that, based on the

totality of the circumstances, the entry of the home was lawful because the

officers were in hot pursuit of Appellant. Furthermore, the suppression court

found that the search of Appellant was warranted, and that Appellant

voluntarily abandoned the weapon inside the home.              Therefore, the

suppression court denied Appellant’s motion to suppress the gun and the

marijuana found on him.1

       A non-jury trial was held on February 23, 2016. The parties stipulated

that the gun was operable, that Appellant was ineligible to possess a gun,

and that he did not have a license for the weapon.       The trial court found

Appellant guilty of violating the Uniform Firearms Act, 18 Pa.C.S. §§ 6105,

6106, and 6108; and acquitted Appellant of the marijuana charge.

       Following sentencing, Appellant filed a timely notice of appeal.    The

trial court directed Appellant to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal, he complied, and the trial court authored its

1925(a) opinion.2 Appellant presents two issues for our review:

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1 The suppression court granted Appellant’s motion to suppress a statement
that was made without the benefit of Miranda warnings.

2 After the filing of the briefs in this appeal, counsel for Appellant filed an
application to withdraw as counsel. By order, dated March 13, 2018, this
(Footnote Continued Next Page)


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   1. Did the lower court err where it denied Appellant’s [m]otion to
      [s]uppress where, as here, the lower court accepted that the
      arresting officers did not have probable cause, only reasonable
      suspicion, which is not the requisite standard for a warrantless
      entry of a home?

   2. Did the trial court err in finding sufficient evidence of possession
      of a firearm under the Uniform Firearms Act [§] 6105, where a
      firearm was recovered inside a property; and the owner of the
      same property gave unrebutted testimony that she owned the
      firearm and produced evidence of lawful ownership of the
      firearm and a license to carry the firearm, and where no witness
      testified to seeing the defendant in possession of the firearm?

Appellant’s brief at 2-3.

      Since a sufficiency claim warrants automatic discharge rather than

retrial, we address Appellant’s second issue at the outset.     In reviewing a

challenge to the sufficiency of the evidence, our standard of review is well-

settled:

      [W]e must determine whether the evidence admitted at trial, as
      well as all reasonable inferences drawn therefrom, when viewed
      in the light most favorable to the verdict winner, are sufficient to
      support all the elements of the offense. Additionally, to sustain
      a conviction, the facts and circumstances which the
      Commonwealth must prove, must be such that every essential
      element of the crime is established beyond a reasonable doubt.
      Admittedly, guilt must be based on facts and conditions proved,
      and not on suspicion or surmise.           Entirely circumstantial
      evidence is sufficient so long as the combination of the evidence
      links the accused to the crime beyond a reasonable doubt. 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

(Footnote Continued) _______________________

Court granted counsel for Appellant’s application, directed appointment of
new counsel, and retained appellate jurisdiction.



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       combined circumstances. The fact finder is free to believe all,
       part, or none of the evidence presented at trial.

Commonwealth v. Cline, 177 A.3d 922, 925 (Pa.Super. 2017) (citations

omitted).

       The three firearms offenses of which Appellant was convicted each

contain an element of possession of a firearm. See 18 Pa.C.S. § 6105(a)(1)

(person not to possess a firearm); 18 Pa.C.S. § 6106(a)(1) (carrying a

firearm without a license); 18 Pa.C.S. § 6108 (unlicensed person carrying a

firearm on public streets in Philadelphia).      Appellant challenges all three

convictions on the basis that the evidence that he possessed a firearm was

only circumstantial and that there was no evidence that he constructively

possessed the gun. Appellant’s brief at 10. Appellant’s argument is based

in part on a version of the facts that he presented at trial, and that was not

credited by the trial court.3 We will disregard those facts since our standard

of review dictates that we view the evidence in the light most favorable to

the verdict winner, herein the Commonwealth.




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3 Appellant’s cousin, Willie Abram, and his aunt, Vickie Thomas, testified that
Ms. Thomas owned the gun and that she had placed it on top of containers
behind the curtain. When Officer Carr shoved Appellant into the boxes, the
gun fell from the boxes. The trial court ultimately credited the testimony of
Officer McKeever in finding Appellant guilty. N.T. Trial, 2/3/16, at 13-52.
We would also note that Appellant’s undeveloped forced abandonment
argument was inconsistent with, and wholly undermines, his claim that he
did not possess the gun.



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      Appellant contends that, since the officers did not see him carrying a

gun, the Commonwealth had to prove constructive possession. Constructive

possession required proof that he had the ability to consciously exercise

control   over   the   firearm   and   an   intent   to   exercise   such   control.

Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa.Super. 2013).

Appellant maintains that the evidence demonstrated only that he was

present in the house where the gun was found, and thus, constructive

possession was not proven.

      This Court defines constructive possession as “a legal fiction, a

pragmatic construct to deal with the realities of criminal law enforcement.”

Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.Super. 2013) (citations

omitted). It is “an inference arising from a set of facts that possession of

the contraband was more likely than not.” Id. We examine the totality of

the circumstances when determining whether a defendant had constructive

possession of contraband, Commonwealth v. Coleman, 130 A.3d 38, 41

(Pa.Super. 2015), and, in accordance with our standard of review, we view

the evidence in the light most favorable to the Commonwealth as the verdict

winner.

      We find the circumstantial evidence of Appellant’s physical possession

of a firearm to be sufficient to support the convictions without resort to a

constructive possession theory. The officers were responding to a report of

gunshots in the area. Appellant met the description of the shooter. Officer


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Carr observed a bulge in Appellant’s left cargo pants pocket and testified

that when Appellant ran, he was crouched over and holding his left pocket as

if there was something heavy inside that he wanted to keep from swinging

as he was running. N.T. Trial, 2/3/16, at 15-17. The officer believed the

bulge was a gun.      We find the officer’s testimony to be circumstantial

evidence that Appellant possessed a firearm on the street in Philadelphia,

and it was corroborated by the following.

      The officer described how Appellant entered the house, ran upstairs,

and disappeared behind a white curtain on the second floor.         The officer

heard a heavy thud, Appellant reappeared, but no longer had a bulge in his

left pants pocket. Id. at 21-23. A loaded firearm was found on the floor

behind the curtain. Id. at 23-24; 38.

      Based on the foregoing, the trial court found the evidence sufficient to

prove beyond a reasonable doubt that Appellant “had possessed a concealed

firearm on a public street.” Trial Court Opinion, 4/13/17, at 9. The record

supports the trial court’s finding.    The observed bulge in Appellant’s cargo

pants pocket, coupled with his flight from police, the loud thud when

Appellant went behind the curtain, and the lack of the bulge when he

reappeared from behind the curtain, support the trial court’s finding that

Appellant possessed the firearm on the street, but voluntarily abandoned it

when he was in the residence.         Thus, although Appellant did not have the

firearm on his person when he was arrested, the evidence supports the trial


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court’s finding that he had previously physically possessed the firearm.

Appellant’s sufficiency claim is, therefore, without merit.

       We now turn to Appellant’s suppression claim. Appellant argues that

the   lower    court    made     no   finding    of   probable   cause   and   exigent

circumstances that would justify the warrantless entry of the residence.

Commonwealth v. Bowmaster, 101 A.3d 789, 792 (Pa.Super. 2014).

Rather, he contends that the trial court erroneously found that reasonable

suspicion was sufficient for the warrantless entry of the home and search of

Appellant. He also contends that the lower court erred in finding that the

anonymous tip, coupled with Appellant’s flight, were sufficient to provide the

requisite reasonable suspicion for an investigatory stop.4

       In addressing a challenge to the denial of a suppression motion,

       Our standard of review . . . is limited to determining whether the
       factual findings are supported by the record and whether the
       legal conclusions drawn from those facts are correct. We are
       bound by the suppression court’s factual findings so long as they
       are supported by the record; our standard of review on
       questions of law is de novo. Where, as here, the defendant is
____________________________________________


4 The Commonwealth contends that Appellant waived his suppression claim
based on the warrantless entry of the residence as it was not properly
preserved in his 1925(b) statement. Although we find some merit in the
Commonwealth’s position, we decline to find the issue waived as the
unlawfulness of the warrantless entry was alleged below and alluded to in
Appellant’s concise statement. Herein, the trial court found the warrantless
entry to be lawful.     We suspect that Appellant’s failure to specifically
challenge that finding based on a lack of probable cause and exigent
circumstances explains why the trial court did not specifically address those
issues in its Rule 1925(a) opinion. Nonetheless, we find the record sufficient
to enable us to conduct the proper review.



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     appealing the ruling of the suppression court, we may consider
     only the evidence of the Commonwealth and so much of the
     evidence for the defense as remains uncontradicted. Our scope
     of review of suppression rulings includes only the suppression
     hearing record and excludes evidence elicited at trial.

Commonwealth v. Singleton, 169 A.3d 79, 82 (Pa.Super. 2017)

(citations omitted). We note that Appellant did not introduce any evidence

at the suppression hearing.

     When addressing the right of individuals to be free from unreasonable

searches and seizures, the following principles inform our review. There are

three categories of interaction between police officers and citizens:

     These categories include (1) a mere encounter, (2) an
     investigative detention, and (3) custodial detentions. The first of
     these, [is] a “mere encounter” (or request for information),
     which need not be supported by any level of suspicion, but
     carries no official compulsion to stop or to respond. The second,
     an “investigative detention” must be supported by 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. Thomas, -- A.3d --, 2018 Pa.Super. LEXIS 74, *5-6

(Pa.Super. 2018) (citations omitted).     It is well established that a police

officer may conduct a frisk or pat-down of the person stopped if the officer

has reasonable suspicion that criminal activity is afoot and that the person

may be armed and dangerous. Id. at *9-10.

     The instant case involves a warrantless entry of a residence. The law

is well settled that, “probable cause alone will not support a warrantless

search or arrest in a residence unless some exception to the warrant

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requirement is also present.” Commonwealth v. Johnson, 68 A.3d 930,

931 (Pa.Super. 2013).      Consent or exigent circumstances must also be

present to justify entry into a private home for such a purpose. Id.

      Furthermore, it is well established:

      The existence or non-existence of probable cause is determined
      by the totality of the circumstances.         The totality of the
      circumstances test requires a Court to determine whether the
      facts and circumstances which are within the knowledge of the
      officer at the time of the arrest, and of which he has reasonably
      trustworthy information, are sufficient to warrant a man of
      reasonable caution in the belief that the suspect has committed
      or is committing a crime. . . . Questions of probable cause do
      not entail certainties.    Indeed, probable cause exists when
      criminality is one reasonable inference; it need not be the only,
      or even the most likely, inference. . . . Under the Fourth
      Amendment, we have long held that flight alone does not
      constitute probable cause for an arrest. Of course, . . . flight
      coupled with additional facts that point to guilt may establish
      probable cause to arrest.

Commonwealth v. Smith, 979 A.2d 913, 916-17 (Pa.Super. 2009)

(citations omitted).

      A number of factors are considered in determining whether exigent

circumstances exist, among them:

      (1) 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 at
      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


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      warrant, or a danger to police or other persons inside or outside
      the dwelling.

Commonwealth v. Roland, 637 A.2d 269, 270-71 (Pa.Super. 1994)

(citations omitted); see also Commonwealth v. Johnson, 68 A.3d 930

(Pa.Super. 2013).

      This Court has previously determined that “[w]arrantless entry into a

dwelling, and a subsequent seizure of items found therein, is permissible

where the police are in ‘hot pursuit’ of a fleeing felon. Of course, the police

must have probable cause to believe that the individual they are pursuing

has committed a crime.” Commonwealth v. Dennis, 612 A.2d 1014, 1015

(Pa.Super. 1992) (finding probable cause and exigent circumstances for

police to follow two men into residence without a warrant where officers

witnessed the men exchange of cash and small objects at door of location

that was subject of drug-related complaints; the men fled into the nearby

house when approached by police, and police witnessed them throwing

substances later determined to be drugs out the window).

      The Commonwealth maintains that the police officers had little choice

but to follow Appellant into the home. Shots had been fired in the area. The

police believed Appellant was armed, but they had no information whether

Appellant had shot someone or been involved in a shooting. They had no

means of knowing whether it was his home.           The Commonwealth cites

Commonwealth v. Davido, 106 A.3d 611, 622-24 (Pa. 2014) (approving

warrantless entry of residence where reasonably necessary to respond to


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danger posed to occupants), in support of their position that the police

would have “inexcusably neglected their duties had they failed to follow

[Appellant]    through     the   [unlocked]       front   door   and    up   the   stairs.”

Commonwealth’s brief at 10.

       The trial court found that the warrantless entry herein was lawful and

denied Appellant’s motion to suppress on that ground.                  We are presented

with a mixed question of law and fact. While we are bound by any factual

findings that are supported by the record, we owe no deference to the legal

conclusions drawn by the trial court, and we review the latter de novo.

Commonwealth v. Jacoby, 170 A.3d 1065, 1081 (Pa. 2017).

       Based upon the totality of the circumstances, we find that probable

cause and exigent circumstances existed when the police followed Appellant

into the residence in hot pursuit.5            The police officers were patrolling the

1300 block of North Myrtlewood Street, a high crime area,6 in response to a

report of gunshots. Within less than a minute of receiving the dispatch and
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5 According to Appellant, the residence he entered belonged to his aunt. He
was merely attending a barbecue there.          The Commonwealth did not
question whether he had standing to challenge the legality of the
warrantless entry and search of that residence.

6   In support of the Commonwealth’s position that this was a high crime
area, Officer Carr testified that “within a few weeks [they] had served a
warrant with the field unit. Within a block or two there [they] recovered
firearms and drugs from that location. . . . And in that area [they] had also
had a recent rise of shootings. [They] had a homicide within a month or two
of that.” N.T. Suppression Hearing, 12/07/15, at 26.



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the   description,   Officer   Carr   observed   Appellant,   who   matched   the

description of the suspect, sitting on steps in the area of the reported

gunshots.    When Officer Carr stopped the marked police car, Appellant

jumped up, grabbed a bulge in his pants pocket, and fled.           Based on the

manner in which Appellant was holding the bulge, the officer believed it to

be a firearm.    In his experience, “when somebody runs with a bundle of

drugs, whatever it is, there’s a completely different weight to it than a

firearm of the same size.” N.T. Suppression Hearing, 12/07/15, at 16. In

light of Officer Carr’s knowledge and experience, and the circumstances at

the time, a man of reasonable caution would believe that Appellant was

committing a crime. Thus, we find that Officer Carr had probable cause to

enter the residence.

      However, our analysis does not end there. We must also determine

whether there were exigent circumstances. The offense involved a firearm

and the police had reason to believe Appellant was armed.             The police

entered in hot pursuit of Appellant. Officer Carr expressed concern for the

safety of individuals inside the home, as he had no way of knowing whether

Appellant lived at that address.        The officers’ entry into the residence

occurred during the evening hours, but prior to sundown, and it was

peaceable.   We find that the suppression court’s conclusion that the entry

was lawful was supported by facts establishing that Officer Carr had




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probable cause and exigent circumstances to enter the residence without a

warrant.7

        Finally, Appellant cites Commonwealth v. Matos, 672 A.2d 769, 771

(Pa. 1996), in support of his contention that the gun should have been

suppressed because it was forcibly abandoned during his flight to escape

unlawful police conduct. The suppression court determined, however, that

Appellant’s flight was unprovoked, and that he voluntarily abandoned the

weapon inside the home. N.T. Suppression Hearing, 12/7/15, at 61-62. We

agree. Furthermore, as discussed supra, the seizure of Appellant was lawful.

Thus, the forcible abandonment theory has no traction on the facts herein.

        Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/18




____________________________________________


7   Appellant did not challenge the search of the area behind the curtain.



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