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[U] Commonwealth v. Carney

Superior Court of Pennsylvania

February 5, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
LOUIS CARNEY Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence January 2, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003948-2012

BEFORE: GANTMAN, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM

GANTMAN, J.

Appellant, Louis Carney, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his bench trial conviction for persons not to possess firearms.[1] We affirm and grant counsel's petition to withdraw.

The relevant facts and procedural history of this appeal are as follows.

Dawn Saunter testified that she travelled to the 1300 block of South 5th Street on March 13, 2012 between 1:30 p.m. and 2:00 p.m. for a business appointment at a pediatric clinic located on the corner of 5th and Reed Streets. As Ms. Saunter walked from her vehicle toward the clinic, she heard a commotion. She saw a man on the corner of 5thand Reed engaged in a verbal argument with [Appellant], who was standing about a car's length from a minivan. Ms. Saunter continued to walk down the street to reach her destination. As she attempted to walk past [Appellant], he reached into his waistband and pulled out a gun; it was pointed at Ms. Saunter. Ms. Saunter testified that the gun, a semi-automatic pistol, was six inches from her torso. [Appellant] said, "Oh, ma'am, I wouldn't shoot you." [Another male at the scene, Jamal Miller, ] then invited Ms. Saunter into the residence at 1332 South 5thStreet, stating that she would be safe inside. [Appellant] lowered the firearm, and Ms. Saunter followed [Appellant] and Mr. Miller into the house. Ms. Saunter took a seat on the sofa located in the living room, just inside the front door. [Appellant] then pulled the firearm from his waistband and said, "…he should never have done that in this neighborhood…" and then walked out of the room. That was the last time Ms. Saunter saw [Appellant] in the house. After ten to fifteen minutes, Ms. Saunter prepared to leave the house and heard a commotion outside. As Ms. Saunter left, she observed a second entrance door to the house.

(Trial Court Opinion, filed June 24, 2013, at 4-5).

At approximately 1:53 p.m., Philadelphia Police Officer James O'Neill and his partner, Officer Guinter, received a radio call regarding a person with a firearm outside 1332 South 5th Street. The call described the suspect as an African-American male wearing a white t-shirt. The officers arrived at the scene a minute later and observed Appellant, who fit the description of the suspect. Appellant was walking away from the driver's side door of a blue Chevrolet minivan parked in front of 1332 South 5th Street. Officer O'Neill stopped Appellant and conducted a Terry[2] frisk, which did not reveal any weapons. The officers subsequently encountered Mr. Miller, who also fit the description of the suspect. The officers frisked Mr. Miller, but they did not find a firearm.

After conducting the frisks, Officer O'Neill observed Ms. Saunter standing in the doorway at 1332 South 5th Street. Ms. Saunter "was extremely nervous and scared and visibly shaken." (N.T. Suppression Hearing and Trial, 11/7/12, at 11). Ms. Saunter informed Officer O'Neill that Appellant had pointed a firearm at her. Consequently, Officer O'Neill arrested Appellant. During a search incident to arrest, Officer O'Neill recovered a set of vehicle keys from Appellant's right front pants pocket. Officer O'Neill gave the keys to Officer Guinter, who put one of the keys into the "key slot in the door of the [blue minivan] just to see if those keys belonged to that vehicle…." (Id. at 12-13). The keys corresponded to the minivan, but the officers did not immediately search the vehicle. Instead, the officers secured the vehicle and applied for a warrant. Following the issuance of the warrant, police recovered a firearm underneath the front passenger seat of the minivan.

On May 4, 2012, the Commonwealth filed a criminal information charging Appellant with multiple offenses, including persons not to possess firearms. On June 18, 2012, Appellant filed a suppression motion. In it, Appellant asserted that his arrest was illegal, and the police lacked probable cause to support the issuance of the search warrant. Appellant concluded the court should suppress all evidence obtained as a result of his illegal arrest and the defective warrant. The court conducted a suppression hearing on November 7, 2012. Following the hearing, the court denied Appellant's suppression motion.

Appellant immediately proceeded to a bench trial where the Commonwealth pursued a single count of persons not to possess firearms. At the conclusion of trial, the court found Appellant guilty. On January 2, 2013, the court sentenced Appellant to four (4) to eight (8) years' imprisonment, followed by two (2) years' probation. Appellant did not file post-sentence motions.

Appellant timely filed a notice of appeal on January 31, 2013. On March 18, 2013, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely filed a Rule 1925(b) statement on April 5, 2013.

As a preliminary matter, appellate counsel seeks to withdraw his representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded the issues to be raised are wholly frivolous; 2) file a brief referring to anything in the record that might arguably support the appeal; and 3) furnish a copy of the brief to the appellant and advise him of his right to obtain new counsel or file a pro se brief to raise any additional points the appellant deems worthy of review. Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance with these requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 2007). "After establishing that the antecedent requirements have been met, this Court must then make an independent evaluation of the record to determine whether the appeal is, in fact, wholly frivolous." Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982 (Pa.Super. 1997)).

In Santiago, supra, our Supreme Court addressed the briefing requirements where court-appointed appellate counsel seeks to withdraw representation:

Neither Anders nor McClendon[3] requires that counsel's brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal.
Under Anders, the right to counsel is vindicated by counsel's examination and assessment of the record and counsel's references to anything in the record that arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n the Anders brief that accompanies court-appointed counsel's petition to withdraw, counsel must: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel's conclusion that the appeal is frivolous; and (4) state counsel's reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Id. at 178-79, 978 A.2d at 361.

Instantly, appellate counsel filed a petition to withdraw representation. The petition states counsel engaged in an extensive review of the record and concluded there are no issues of merit to raise on appeal. Counsel indicates he notified Appellant of the withdrawal request. Counsel also supplied Appellant with a copy of the brief and a letter explaining Appellant's right to proceed pro se or with new privately retained counsel to raise any points Appellant deems worthy of consideration. In his Anders brief, counsel provides a summary of the facts and procedural history of the case. Counsel refers to evidence in the record that may arguably support the issues raised on appeal, and he provides citations to relevant law. The brief also provides counsel's reasons for his conclusion that the appeal is wholly frivolous. Therefore, counsel has substantially complied with the requirements of Anders and Santiago.

As Appellant has filed neither a pro se brief nor a counseled brief with new privately retained counsel, we review this appeal on the basis of the issues raised in the Anders brief:

WAS THERE SUFFICIENT REASONABLE SUSPICION AND PROBABLE CAUSE TO RECOVER KEYS FROM APPELLANT AND WAS THERE SUFFICIENT RELIABLE PROBABLE CAUSE TO SUPPORT THE SEARCH WARRANT EXECUTED ON A NEARBY VEHICLE THAT LED TO THE RECOVERY OF A FIREARM?
WAS THERE SUFFICIENT EVIDENCE TO SUPPORT APPELLANT'S CONVICTION AND WAS THE VERDICT AGAINST THE WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL?

(Anders Brief at 13, 16).

In his first issue, Appellant contends the police lacked probable cause to support his warrantless arrest; consequently, the police conducted an illegal, warrantless search of his person. Likewise, Appellant complains the police illegally seized the vehicle keys from his pants pocket. Regarding the subsequent search of the vehicle, Appellant argues the affidavit in support of the search warrant did not establish probable cause. For these reasons, Appellant concludes the court erred when it denied his suppression motion. We disagree.

We review the denial of a suppression motion as follows:

Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct.
[W]e may consider only the evidence of the prosecution 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 findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.

Commonwealth v. Williams, H., 941 A.2d 14, 26-27 (Pa.Super. 2008) (en banc) (internal citations and quotation marks omitted).

"Not every search must be conducted pursuant to a warrant, for the Fourth Amendment bars only unreasonable searches and seizures." Commonwealth v. Taylor, 565 Pa. 140, 149, 771 A.2d 1261, 1266 (2001), cert. denied, 534 U.S. 994, 122 S.Ct. 462, 151 L.Ed.2d 380 (2001). "While a search is generally not reasonable unless executed pursuant to a warrant, the Supreme Court of the United States and [the Pennsylvania Supreme Court] have recognized exceptions to the warrant requirement." Id. One exception to the warrant requirement is the search incident to arrest. Id.

"Probable cause justifying a warrantless arrest is determined by the 'totality of the circumstances.'" Commonwealth v. Banks, 540 Pa. 453, 455, 658 A.2d 752, 752 (1995).

Probable cause is made out when 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 [person] of reasonable caution in the belief that the suspect has committed or is committing a crime. The question we ask is not whether the officer's belief was correct or more likely true than false. Rather, we require only a probability, and not a prima facie showing, of criminal activity.

Commonwealth v. Williams, R., 2 A.3d 611, 616 (Pa.Super. 2010) (en banc), appeal denied, 610 Pa. 585, 19 A.3d 1051 (2011) (quoting Commonwealth v. Thompson, 604 Pa. 198, 203, 985 A.2d 928, 931 (2009)) (internal citations and quotation marks omitted) (emphasis in original). "[P]robable cause to arrest can be supported by the existence of evidence that is inadmissible at trial." Commonwealth v. Weaver, 76 A.3d 562, 567 (Pa.Super. 2013). See also Commonwealth v. Andrews, 426 A.2d 1160 (Pa.Super. 1981) (explaining probable cause for warrantless arrest can be based entirely on hearsay information; police had probable cause to make warrantless arrest after store personnel informed them that defendant had attempted to pass forged check).

Additionally, "In this jurisdiction, in determining whether probable cause for issuance of a warrant is present, the 'totality of the circumstances' test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), was adopted in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985)." Commonwealth v. Murphy, 916 A.2d 679, 681-82 (Pa.Super. 2007), appeal denied, 593 Pa. 739, 929 A.2d 1161 (2007). "Under such a standard, the task of the issuing authority is to make a practical, common sense assessment [of] whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 682. Further, a magistrate's finding of probable cause must be based on facts described within the four corners of the affidavit. Commonwealth v. Smith, 784 A.2d 182, 185 (Pa.Super. 2001).

"Under our law, the focus is on the information provided to the issuing authority and its response to that information." Commonwealth v. Huntington, 924 A.2d 1252, 1256 (Pa.Super. 2007), appeal denied, 593 Pa. 746, 931 A.2d 656 (2007) (emphasis in original).

The role of the reviewing court and the appellate court is to ascertain whether the issuing magistrate appropriately determined that probable cause existed for the issuance of the warrant. Probable cause is based on a finding of probability and does not require a prima facie showing of criminal activity. Both the reviewing court and this Court must accord deference to a magistrate's finding of probable cause.

Id. (internal citations and quotation marks omitted).

Instantly, Officers O'Neill and Guinter received a radio call regarding an African-American male in a white t-shirt with a firearm outside 1332 South 5th Street. The officers arrived at the scene a minute later and observed Appellant, who fit the description of the suspect. Officer O'Neill stopped Appellant and conducted a pat-down frisk, but the officer did not discover a weapon. Thereafter, Officer O'Neill observed Ms. Saunter standing in the doorway at 1332 South 5th Street. Ms. Saunter informed Officer O'Neill that Appellant had pointed a firearm at her, and the officer arrested him. Here, the facts and circumstances within the knowledge of Officer O'Neill at the time of the arrest, including the statements from Ms. Saunter, were sufficient to warrant a person of reasonable caution in the belief that Appellant had just committed a firearms offense. See Williams, R., supra. Therefore, probable cause supported the arrest, and the officer subsequently recovered the keys during a legal search incident to arrest. See Taylor, supra; Banks, supra.

Regarding the issuance of the search warrant for the minivan, the affidavit of probable cause included the following averments:

On 03/13/2012 a complainant was interviewed inside of South Detectives and relayed that today at approximately 1:50 PM she had just parked her car in the 1300 block of S. 5th Street and was walking southbound on the west side of the street on 5th approaching Reed. As the complainant approached 1332 S. 5th Street she observed two black males (later identified as [Appellant] and [Mr. Miller]) outside of 1332 S. 5th Street who were arguing with a third black male who was on the east side of the street at Reed Street. As the complainant went to walk [past] 1332 S. 5thSt., [Appellant] pulled a black semiautomatic handgun from his waistband and pointed it at the 3rd black male who was at 5th and Reed St. The complainant stated in her interview that when [Appellant] pointed the gun it was less than six inches from her pointing directly at her upper torso. When [Appellant] noticed the complainant he lowered the gun and put the gun back in his waistband. Both [Appellant] and MILLER then encouraged the complainant to come inside of 1332 S. 5th Street. The complainant in fear of her life went inside the property and sat [on] the couch. After a few minutes the complainant heard arguing outside the residence…. She panicked and ran outside where she saw the police on location. The complainant positively identified [Appellant] as the person who pointed the gun at her. She also identified MILLER as the person who invited her inside…1332 S. 5th Street…. P/O's Guinter…and O'Neill…while working plainclothes in an unmarked vehicle responded to a radio call for "A person with gun/shots fired outside of 1332 S. 5th St." The flash information given stated a black male fired a shot outside of 1332 S. 5th Street and then went back inside of 1332 S. 5th St. When the officers arrived on location they observed [Appellant] standing outside of 1332 S. 5th Street next to a 2006 Chevrolet Uplander…. [Appellant] had the keys to this specific vehicle in his right pants pocket. A survey of the area for a gun was negative. A BMV check revealed that the vehicle is registered to [Mr. Miller].

(See Affidavit of Probable Cause, dated 3/13/12, at 2) (emphasis in original). In light of these averments, the magistrate issued the search warrant.

The trial court deemed the search warrant constitutionally valid:

Here, the totality of the circumstances indicate that there is a fair probability that evidence of a crime, specifically, the handgun, would be found in the minivan. This incident took place in the vicinity of 1332 South 5th Street and the minivan was parked directly outside. Ms. Saunter identified [Appellant] as possessing a firearm when only a few minutes later police officers arrived to find [Appellant] standing next to the minivan with its keys in his pocket and no handgun on his person. It is logical to conclude that there was a fair probability that the firearm was located inside the minivan, thereby presenting the magistrate with sufficient probable cause to issue the search warrant.

(See Trial Court Opinion at 16.) We agree. We emphasize that the circumstances described in the affidavit, including Ms. Saunter's statements to the police and the officers' observations upon arriving at the scene, created a fair probability that the police would find the firearm inside the minivan. See Murphy, supra. Based upon the foregoing, the record supports the court's denial of the suppression motion. See Williams, H., supra. Thus, Appellant is not entitled to relief on his first claim.

In his second issue, Appellant asserts the trial evidence did not prove he committed the offense of persons not to possess firearms. Appellant concludes the Commonwealth presented insufficient evidence to support his conviction, and his conviction is against the weight of the evidence.[4] We disagree.

When examining a challenge to the sufficiency of evidence, our standard of review is as follows:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted…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 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 [trier] 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. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).

The following principles apply to our review of a weight of the evidence claim:

The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the…verdict if it is so contrary to the evidence as to shock one's sense of justice.
Commonwealth v. Small, 559 Pa. 423, [435, ] 741 A.2d 666, 672-73 (1999). Moreover, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408 (2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004) (most internal citations omitted).

Section 6105 of the Crimes Code provides:

§ 6105. Persons not to possess, use, manufacture, control, sell or transfer firearms

(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).

Additionally, "[w]hen contraband is not found on the defendant's person, the Commonwealth must establish constructive possession…." Jones, supra at 121 (quoting Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa.Super. 1996), appeal denied, 547 Pa. 751, 692 A.2d 563 (1997)). "Constructive possession is the ability to exercise conscious control or dominion over the illegal substance and the intent to exercise that control." Jones, supra at 121 (quoting Commonwealth v. Kirkland, 831 A.2d 607, 610 (Pa.Super. 2003)). "The intent to exercise conscious dominion can be inferred from the totality of the circumstances." Jones, supra at 121 (quoting Kirkland, supra at 610). "Constructive possession may be found in one or more actors where the item [at] issue is in an area of joint control and equal access." Commonwealth v. Valette, 531 Pa. 384, 388, 613 A.2d 548, 550 (1992).

Instantly, Ms. Saunter testified that she parked her car, walked away from the vehicle, and witnessed Appellant arguing with another man nearby. As Ms. Saunter walked past Appellant, he reached into his waistband, pulled out a firearm, and pointed it at her. Ms. Saunter looked at Appellant, who said he would not shoot her. Instead, Appellant and his cohort invited Ms. Saunter into 1332 South 5th Street. Ms. Saunter went into the house, and she remained there for several minutes.

Officer O'Neill testified that he received a radio call regarding a person with a firearm outside 1332 South 5th Street. The call described the suspect as an African-American male wearing a white t-shirt. Officer O'Neill and his partner arrived at the scene a minute later and observed Appellant, who fit the description of the suspect. Appellant was walking away from a blue minivan parked in front of 1332 South 5th Street. Officer O'Neill stopped Appellant and conducted a pat-down frisk but did not recover any weapons.

After conducting the frisk, Officer O'Neill observed Ms. Saunter standing in the doorway at 1332 South 5th Street. Ms. Saunter informed Officer O'Neill that Appellant had pointed a firearm at her.[5] Officer O'Neill arrested Appellant, searched him, and recovered the keys to the blue minivan. Police obtained a warrant to search the minivan and recovered a firearm underneath the front passenger seat. At trial, the parties stipulated that the firearm was operable and Appellant was ineligible to possess a firearm. (See N.T. Suppression Hearing and Trial at 83-84.)

Under the totality of these circumstances, sufficient evidence demonstrated Appellant's ability to exercise conscious dominion over the firearm. See Jones, supra. Consequently, the Commonwealth established each element of the offense at issue. See 18 Pa.C.S.A. § 6105. Moreover, the trial court was free to believe all, part, or none of the witnesses' testimony, and to determine the witnesses' credibility. See Champney, supra. The court concluded the verdict was not contrary to the weight of the evidence. (See Trial Court Opinion at 10.) Based upon the foregoing, we see no abuse of discretion in the court's decision to deny relief on Appellant's weight claim. See Champney, supra. On this record, Appellant is not entitled to relief on his second issue. Accordingly, we affirm the judgment of sentence and grant counsel's petition to withdraw.

Judgment of sentence affirmed; counsel's petition to withdraw is granted.

Judgment Entered.

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