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J-S40025-18 (Pa. Super. Ct. Sep. 6, 2018)

J-S40025-18 No. 1377 EDA 2017




Appeal from the Judgment of Sentence March 17, 2017 in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0002374-2015 BEFORE: LAZARUS, J., DUBOW, J., and PLATT, J. MEMORANDUM BY PLATT, J.:

Retired Senior Judge assigned to the Superior Court.

Appellant, Austin Scott, appeals from the judgment of sentence imposed following his bench trial conviction of two violations of the Uniform Firearms Act, 18 Pa.C.S.A. § 6106 (firearms not to be carried without a license), and 18 Pa.C.S.A. § 6108 (carrying of firearms on public streets or public property in Philadelphia prohibited). Specifically, Appellant challenges the denial of his motion to suppress, and the sufficiency of the evidence. We affirm on the basis of the trial court's opinion.

The trial court aptly describes the factual and procedural history of this case. Therefore, we have no need to repeat them at length here. For the convenience of the reader, we note briefly that Appellant was arrested following an initially routine vehicle stop after the police officer observed him throw something into the back seat of the vehicle. Appellant was the only person in the car at the time. When the officer slid open the door of the van, he observed a handgun on the floor between the driver's seat and the second row seats. Appellant claimed he had thrown a jack into the back seat. But the jack was still on the floor of the front passenger seat.

Appellant was convicted of the VUFA violations after a bench trial following the denial of his motion to suppress. The court acquitted Appellant of receiving stolen property. On March 17, 2017, the court imposed a sentence of not less than six months nor more than twenty-three months of incarceration followed by three years of reporting probation for violating section 6106, and three years of concurrent reporting probation for violating section 6108. This timely appeal followed.

Both Appellant and the trial court complied with Pa.R.A.P. 1925. --------

Appellant presents two questions on appeal:

A. Was the evidence insufficient to support the guilty verdicts for VUFA-6106 and VUFA-6108, where [A]ppellant had no knowledge that a firearm was present in the vehicle he operated?
B. Did the trial court err in denying [A]ppellant's pretrial motion to suppress a firearm, as there was no reasonable suspicion nor probable cause to stop and then search the vehicle [A]ppellant operated, where the officer was not in a position to see the right tail-light at all, and where no marijuana was ever recovered despite the officer claiming a strong odor of burnt marijuana?

(Appellant's Brief, at 7).

Appellant's first claim challenges the sufficiency of the evidence. Our standard of review is well-settled:

We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth's burden may be met by wholly circumstantial evidence and any doubt about the defendant's guilt is to be resolved by 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
. Mobley
, 14 A.3d 887, 889-90 (Pa. Super. 2011) (citation omitted).

Our standard of review for a challenge to the denial of suppression is also well-settled:

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, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous.

Commonwealth v
. Jones
, 988 A.2d 649, 654 (Pa. 2010), cert. denied, 562 U.S. 832 (2010) (citation omitted).

After a thorough review of the record, the briefs of the parties, the applicable law and the well-reasoned opinion of the Honorable Michael E. Erdos, we conclude that Appellant's issues do not merit relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, 12/08/17, at 3-6) (concluding: 1.) evidence was sufficient to support VUFA convictions, where handgun landed where police officer had just seen Appellant throw it; handgun was possessed by Appellant without license on public streets of Philadelphia; and 2). motion to suppress was properly denied where observing police had reasonable and articulable suspicion that Appellant, who exhibited nervous and furtive behavior, and the very strong odor of burnt marijuana, after tossing object over shoulder to rear seat, warranted belief that the suspect was dangerous and could gain immediate control of weapons.).

Accordingly, we affirm on the basis of the trial court opinion.

Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/6/18

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