J-S69003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ELIJAH MACON
Appellant No. 1474 WDA 2016
Appeal from the Judgment of Sentence September 1, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0005145-2016
BEFORE: BOWES, RANSOM, JJ. and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 16, 2017
Elijah Macon appeals from the judgment of sentence of three years
probation that was imposed after he was convicted of receiving stolen
property (“RSP”) and carrying an unlicensed firearm. We reject Appellant’s
challenges to the denial of his suppression motion and sufficiency of the
evidence supporting his conviction of RSP. Accordingly, we affirm.
The pertinent facts follow. On April 14, 2016, Mount Oliver Police
Sergeant Kevin Lockhart and Mount Oliver Police Officer William Griser were
on duty in different locations. At 4:30 a.m., they received a dispatch that
two African-American males with backpacks were breaking into cars along
Quincy Avenue. While traveling to that location and ten minutes after
receiving the broadcast, Officer Griser observed two African-American males
* Former Justice specially assigned to the Superior Court.
J-S69003-17
with backpacks on Transverse Street, about two blocks from Quincy Avenue,
and Officer Griser broadcast that information. Sergeant Lockhart arrived at
Transverse Street moments later. Sergeant Lockhart detained and
questioned Appellant for investigatory purposes while Officer Griser spoke
with Appellant’s companion. Appellant and the other man gave conflicting
stories to the two police officers about where they had been and where they
were headed. Neither Appellant nor the other male were able to supply an
address for their destination.
Officer Griser searched the backpack of Appellant’s companion, finding
a prescription pill container with the name of a third party and social security
cards belonging to different people. Sergeant Lockhart patted down
Appellant and his backpack. He felt an object that appeared to be a firearm.
Inside of Appellant’s backpack, Officer Lockhart discovered a gun that was
not registered to Appellant. Later, police ascertained that the weapon was
stolen. The presence of that firearm was the basis for Appellant’s
convictions of RSP and possession of an unlicensed firearm. This appeal
followed the denial of Appellant’s suppression motion and imposition of the
above-delineated judgment of sentence.
On appeal, Appellant raises these averments.
I. Did the trial court err in denying Mr. Macon's motion to
suppress the evidence obtained from the search of Mr. Macon's
backpack?
-2-
J-S69003-17
II. Did the Commonwealth fail to present sufficient evidence to
support Mr. Macon's conviction for Receiving Stolen Property?
Appellant’s brief at 6.
Appellant first claims that the court improperly denied his suppression
motion.1 The standard of review for the denial of a motion to suppress
evidence is settled:
An appellate court's 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. Where the appeal of the
determination of the 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 law of the courts below are subject to plenary
review.
____________________________________________
1
Normally, we would address a sufficiency issue first in that a successful
claim results in discharge. Commonwealth v. Ford, 141 A.3d 547, 552
(Pa.Super. 2016). However, in the present case, Appellant does not contest
that the evidence was sufficient to sustain his conviction of possession of an
unlicensed firearm, challenging only the RSP conviction. Hence, discharge
would not be a remedy herein, and we will address the issues in the order
presented.
-3-
J-S69003-17
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017),
(quoting Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa.Super.
2015).
Herein, Appellant contests the suppression court’s conclusion that the
pat down of his backpack was a legitimate safety search. In
Commonwealth v. Guess, 53 A.3d 895 (Pa.Super. 2012), we articulated
that a police officer may conduct a safety pat down once the officer
possesses reasonable suspicion, based upon articulable facts, that the
person in question has committed a crime.
Therein, two men unsuccessfully attempted to break into the
apartment of a man, and, after they stopped, the victim observed the two
men attempting to break into an adjacent apartment. He reported the
incident to police along with a general description of the two suspects.
Within ten minutes, police arrived at the scene of the reported burglary.
They soon saw two suspects, Guess and another man, who were in the
vicinity of the crime and who were wearing the clothing described by victim
of the attempted burglary. Guess and his cohort started to leave once they
saw police, but were immediately approached and questioned by the
responding officers.
The suspects said that they were at the apartment complex to visit a
friend, whose name they were unable to provide. Guess dropped a credit
card embossed with a women’s name. After ascertaining that the credit card
-4-
J-S69003-17
did not belong to Guess, a police officer patted him down for the officer’s
safety, finding jewelry and arresting him.
Guess claimed that his search and seizure was unconstitutional. We
noted that, for purposes of the constitution, interactions with police are
placed in one of three categories. The first is a mere encounter, where no
level of suspicion is required. The second is an investigatory detention,
where a seizure has occurred and which must be supported by reasonable
suspicion. The third is an arrest, which police must have probable cause to
conduct.
This Court in Guess ruled that the interaction between police and
Guess was a mere encounter until he was patted down for safety purposes,
when we ruled that the interaction escalated into an investigatory detention.
We noted that, in order to justify a pat-down search under Terry v. Ohio,
392 U.S. 1 (1968), “the officer must have reasonable suspicion, under the
totality of the circumstances, that criminal activity is afoot and that ‘the
individual whose suspicious behavior he is investigating at close range is
armed and presently dangerous to the officer or to others.’” Id. at 901
(partially quoting Terry, 392 U.S. at 24). We held that the investigatory
detention at issue was valid and “was supported by reasonable suspicion of
criminal activity and a justifiable belief in the need to protect officer safety.”
Id.
-5-
J-S69003-17
Specifically, we relied upon the following facts. Guess and his cohort
matched the physical description given by the victim and were found within
the apartment complex where the crime occurred. Further, when police
approached Guess, Guess appeared nervous and eager to flee. In addition,
Guess and his companion were unable to provide the name of the friend who
they purportedly were visiting in the complex. Finally, Guess dropped a
credit card that did not bear his name. We stated that police were “justified
in believing that criminal activity was afoot and that a pat-down search was
necessary for officer safety.” Id. at 902. We arrived at this conclusion
despite the fact that no police officer specifically articulated that they had a
reason to conclude that Guess was armed.
The facts herein are indistinguishable. Police received a report of two
African-American males breaking into vehicles and carrying backpacks.
Appellant and his companion were African-American men with backpacks
and were discovered by police two blocks from the reported crime scene. A
prescription pill bottle and social security cards that did not belong to
Appellant’s cohort were found in his backpack. Appellant and his companion
were traveling in a direction that was not consistent with their stated
destination and were unable to give the address where they were headed.
They appeared anxious, nervous, and eager to flee the police. Thus, under
Guess, reasonable suspicion was present and a safety pat down warranted.
-6-
J-S69003-17
We therefore conclude that the suppression court did not abuse its discretion
in denying Appellant’s suppression motion.
Appellant’s second averment is that there was insufficient evidence to
support his RSP conviction. Since a challenge to the sufficiency of the
evidence raises a question of law, our standard of review is de novo and our
scope of review is plenary. Commonwealth v. Giron, 155 A.3d 635, 638
(Pa.Super. 2017).
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial 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. Fitzpatrick, 159 A.3d 562, 567 (Pa.Super. 2017)
(emphasis added; citation omitted).
The crime of receiving stolen property is defined as follows:
-7-
J-S69003-17
(a) Offense defined.—A person is guilty of theft if he
intentionally receives, retains, or disposes of movable property
of another knowing that it has been stolen, or believing that it
has probably been stolen, unless the property is received,
retained, or disposed with intent to restore it to the owner.
18 Pa.C.S. § 3925(a). Accordingly, the elements of the crime of receiving
stolen property include “(1) intentionally acquiring possession of the
movable property of another; (2) with knowledge or belief that it was
probably stolen; and (3) the intent to deprive permanently.”
Commonwealth v. Robinson, 128 A.3d 261, 265 (Pa.Super. 2015).
Appellant solely maintains that the evidence was insufficient to
establish that he knew or believed that the gun was probably stolen, and
admits that the other elements of the crime was established. Appellant’s
brief at 17. As to this element of the crime in question, we observed
Circumstantial evidence of guilty knowledge may include, inter
alia, the place or manner of possession, alterations to the
property indicative of theft, the defendant's conduct or
statements at the time of arrest (including attempts to flee
apprehension), a false explanation for the possession, the
location of the theft in comparison to where the defendant
gained possession, the value of the property compared to the
price paid for it, or any other evidence connecting the defendant
to the crime.
Id. at 265.
Herein, Appellant was in possession of a firearm, was evasive with
police, and appeared anxious to flee. His cohort had items belonging to
others that had been stolen in his backpack. Additionally, the gun in
question belonged to someone other than Appellant and, in order to be
-8-
J-S69003-17
legally carried on the street, had to be licensed. Appellant did not have that
license. He and his companion were in the process of breaking into cars
when the firearm was found. We conclude that the facts and circumstances
at issue herein support a finding that Appellant knew beyond a reasonable
doubt that the gun in his backpack was stolen. Accordingly, we reject his
challenge to the sufficiency of the evidence supporting his RSP conviction.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2017
-9-