Com. v. Smith, L.

J-A05037-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEROY PRESTON SMITH :
:
Appellant : No. 621 EDA 2023

Appeal from the Judgment of Sentence Entered January 30, 2023
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002812-2021

BEFORE: DUBOW, J., KING, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED APRIL 10, 2024

Leroy Preston Smith (“Smith”) appeals from the judgment of sentence

imposed following his conviction for two counts of persons not to possess

firearms, and one count of firearms not to be carried without a license. 1 We

affirm.

The relevant factual and procedural history underlying this matter is as

follows. On the night of October 6, 2020, Captain Matthew Goldschmidt,

followed by Officers Robert Shaughnessy and Geoffrey Walls, proceeded to

the corner of 7th Street and Highland Street in Chester upon receiving a report

that a Black male, who was armed with a weapon and wearing a white hooded

sweatshirt with red sweatpants, was traveling east on 7th Street near

Highland Street. See N.T., 10/28/21, at 9-23. When the officers arrived at

the intersection, they noticed a pedestrian, later identified as Smith, matching
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1 See 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1).
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the description of the suspected armed individual. Id. at 13. Smith was

carrying a small black bag across his shoulder and his back-right pocket was

weighed down as if there was a heavy object in it. Id. at 13-15. Upon

observing the three marked police vehicles coming to a stop on the opposite

side of the street, Smith stopped walking and put his hands up in the air. Id.

at 13-18. As Captain Goldschmidt began to open the door to exit his police

vehicle, Smith turned and fled on foot. Id. At no point prior to Smith’s flight

did the captain or other officers physically or verbally address Smith or

activate their emergency lights or sirens. Id. Officers Shaughnessy and Walls

then pursued Smith through a nearby yard in the 2700 block of West 7th

Street. Id. at 20-21, 31-32. A few minutes later, Smith re-emerged from a

yard without the black bag he had been carrying when police initially observed

him. Id. at 24-25. The officers then searched for and found the black bag in

a yard that Smith had run through along with two firearms. Id. at 24-25.

Police arrested Smith and charged him with two counts of persons not

to possess firearms, and two counts of firearms not to be carried without a

license. Smith filed a motion to suppress, and the trial court conducted a

suppression hearing at which Captain Goldschmidt testified. Smith’s counsel

argued that an unlawful investigative detention or stop occurred when police

arrived in their patrol vehicles because they lacked reasonable suspicion to

detain Smith prior to his flight from the officers. Id. at 6-7, 35-36, 37, 39.

The court subsequently entered an order denying suppression.

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The matter proceeded to a non-jury trial at which Officer Walls testified.

The parties stipulated that DNA evidence showed that Smith could be included

in the mix of four contributors to the DNA profile obtained from each firearm,

and that it was extremely likely that the DNA originated from Smith. At the

conclusion of trial, the court found Smith guilty of two counts of persons not

to possess firearms, and one count of firearms not to be carried without a

license. On January 30, 2023, the trial court sentenced Smith to an aggregate

term of six to twelve years in prison. Smith filed a timely notice of appeal,

and both he and the trial court complied with Pa.R.A.P. 1925.

Smith raises the following issues for our review:

1. Whether the trial court erred by denying [Smith’s] motion to
suppress physical evidence where law enforcement lacked
reasonable suspicion to stop [Smith] and probable cause to
arrest him when he was seized prior to his flight, in violation of
the United States and Pennsylvania Constitutions?

2. Whether the evidence was insufficient to establish beyond a
reasonable doubt that [Smith] possessed the firearms
recovered in a yard in order to sustain his convictions for 18
Pa.C.S.[A.] § 6105 and 18 Pa.C.S.[A.] § 6106?

Smith’s Brief at 5.

In his first issue, Smith challenges the trial court’s denial of suppression.

Our standard of review of an order denying suppression is well-settled:

When we review the ruling of a suppression court[,] we
must determine whether the factual findings are supported by the
record. When it is a defendant who has appealed, we must
consider only the evidence of the prosecution and so much of the
evidence for the defense as, fairly read in the context of the record
as a whole, remains uncontradicted. Assuming that there is
support in the record, we are bound by the facts as are found and

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we may reverse the suppression court only if the legal conclusions
drawn from those facts are in error.

Commonwealth v. Hicks, 208 A.3d 916, 925 (Pa. 2019) (citation omitted).

Our scope of review of the suppression court’s factual findings is limited to the

suppression hearing record. See Commonwealth v. Barr, 266 A.3d 25, 39

(Pa. 2021) (citations omitted). However, as an appellate court, we are not

bound by the suppression court’s conclusions of law. Hicks, 208 A.3d at 925.

Rather, when reviewing questions of law, our standard of review is de novo

and our scope of review is plenary. Id.

The Fourth Amendment to the United States Constitution and Article I,

Section 8 of the Pennsylvania Constitution protect private citizens from

unreasonable searches and seizures by government officials. See

Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000) (citing United

States v. Mendenhall, 446 U.S. 544, 551 (1980)). However, not every

encounter between a law enforcement officer and a citizen constitutes a

seizure warranting constitutional protections. See Commonwealth v.

Adams, 205 A.3d 1195, 1199 (Pa. 2019). As our Supreme Court has

explained:

We have long recognized three types of interactions that
occur between law enforcement and private citizens. The first is
a mere encounter, sometimes referred to as a consensual
encounter, which does not require the officer to have any
suspicion that the citizen is or has been engaged in criminal
activity. This interaction also does not compel the citizen to stop
or respond to the officer. A mere encounter does not constitute a
seizure, as the citizen is free to choose whether to engage with
the officer and comply with any requests made or, conversely, to

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ignore the officer and continue on his or her way. The second
type of interaction, an investigative detention, is a temporary
detention of a citizen. This interaction constitutes a seizure of a
person, and to be constitutionally valid police must have a
reasonable suspicion that criminal activity is afoot. The third, a
custodial detention, is the functional equivalent of an arrest and
must be supported by probable cause. A custodial detention also
constitutes a seizure.

No bright lines separate these types of encounters, but the
United States Supreme Court has established an objective test by
which courts may ascertain whether a seizure has occurred to
elevate the interaction beyond a mere encounter. The test, often
referred to as the “free to leave test,” requires the court to
determine whether, taking into account all of the circumstances
surrounding the encounter, the police conduct would have
communicated to a reasonable person that he was not at liberty
to ignore the police presence and go about his business.
Whenever a police officer accosts an individual and restrains his
freedom to walk away, he has seized that person.

Id. 1199-2000 (internal citations, some quotations, and brackets omitted).

As explained above, in the absence of a clear directive by police to stop,

a person is considered seized only if, in view of all of the circumstances

surrounding the incident, a reasonable person would have believed that he

was not free to leave. See Commonwealth v. Livingstone, 174 A.3d 609,

619 (Pa. 2017). In evaluating those circumstances, the crucial inquiry is

whether the officer restrained a citizens’ freedom of movement by means of

physical force or a show of authority. Id. Factors which suggest that a seizure

may have occurred include: the threatening presence of several police

officers; the demeanor of the officer; the manner of expression of the officer;

the location and timing of the interaction; the display of a weapon by an

officer; some physical touching of the citizen by an officer; the use of language

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or tone of voice indicating that compliance with the officer’s request might be

compelled; and the indication by officers that the citizen is suspected of

criminal activity. Id. at 621; see also Commonwealth v. Parker, 161 A.3d

357, 363 (Pa. Super. 2017).

Absent evidence of these factors, otherwise inoffensive contact between

a member of the public and the police cannot, as a matter of law, amount to

a seizure of that person. See Parker, 161 A.3d at 363. To be sure, a seizure

does not occur when police merely approach a person in public and question

the individual or request to see identification. See Commonwealth v. Lyles,

97 A.3d 298, 303 (Pa. 2014).

Smith argues that a reasonable person would not have believed he was

free to leave upon seeing a three-car caravan of police vehicles stopping

alongside him. Although Smith concedes that the officers did not activate

their emergency lights or sirens, and that none of the officers made any effort

to communicate with him, he nevertheless claims that the caravan of police

vehicles was such a clear show of police authority that no reasonable person

would feel at liberty to ignore the officers and go about their business. On

this basis, Smith contends that an investigative detention occurred as Captain

Goldschmidt began to exit his vehicle, and before Smith decided to flee. Smith

maintains that the investigative detention was unlawful because, at the time

of the detention, the only information available to the officers was that a

person matching Smith’s description was in possession of a firearm. Smith

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asserts that the mere possession of a firearm is an insufficient basis to

establish reasonable suspicion of criminal activity so as to support an

investigative detention.

The trial court considered Smith’s first issue and determined that it

lacked merit. The court reasoned:

The police-citizen initial interface between Captain . . .
Goldschmidt and [Smith] . . . was a mere encounter, and not an
investigatory detention . . . [Smith] . . . advances an evidence
exclusionary theory by presupposing an immediate seizure of . . .
Smith by . . . police. The court does not adopt such a presumption
and instead finds that when Captain Goldschmidt parked his car,
[Smith] voluntarily stopped walking, raised his hands, then fled
on foot, all absent interaction with the police, and such facts
demonstrate a mere encounter.

****

The record reflects that the police vehicles’ emergency lights
and sirens were not utilized, and no directing conversation
between any of the officers and . . . Smith was had before he took
his unprovoked flight, absent any law enforcement intimidation or
coercion. Indeed, Captain Goldschmidt’s actions of parking his
police car along a public street and preparing to alight constitutes
no interaction at all, even against the backdrop of three (3) police
officers and their vehicles passively parking across 7th Street from
. . . Smith.

. . . [T]he standard is that of a reasonable person who can
point to indicia that[,] in its sum[,] told that individual that his or
her liberty was restrained[,] adopts the protection of the court. It
strains credulity to identify a quantum of record facts that
translates into an air of coercion, authoritative conduct, and/or an
implication that a refusal to respond to the police officials[’] simple
presence about a public thoroughfare would have brought
undesirable consequences.

This court concludes that the initial experience that Captain
Goldschmidt and [Smith] had with one another was a mere
encounter.

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Trial Court Opinion, 6/16/23, at 6-7, 9-10, 18-19 (citations omitted, emphasis

in original).

Based on our review of the uncontradicted testimony provided by

Captain Goldschmidt at the suppression hearing, we conclude that the trial

court’s factual findings are amply supported by the suppression record. We

further conclude that the trial court’s legal conclusions drawn from those facts

are free from error. The totality of circumstances presented reflect that, while

the officers did arrive in a procession of three marked police vehicles, they did

so quietly and without any added show of police authority. Indeed, it was

undisputed that none of the officers operated their emergency lights or sirens,

nor did they attempt to communicate with Smith in any manner. Although

Smith claims that the officers pulled up alongside him, Captain Goldschmidt’s

testimony reflects that the officers brought their vehicles to a stop on the

opposite side of the street from Smith. These actions simply do not support

a determination that the officers used physical force or a show of authority

great enough to restrain Smith’s freedom of movement. See Livingstone,

174 A.3d at 619. Accordingly, considering the totality of the circumstances,

we conclude that Smith was not subjected to an investigatory detention prior

to his decision to flee the scene. Instead, the interaction was a mere

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encounter for which no level of suspicion was required. Consequently, Smith’s

first issue merits no relief.2

In his second issue, Smith challenges the sufficiency of the evidence

supporting his convictions. Our standard of review of a sufficiency challenge

is well-settled:

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 factfinder. 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). The Commonwealth may sustain its burden of proving every

element of the crime beyond a reasonable doubt by means of circumstantial

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2 Smith additionally attempted to argue that police lacked probable cause to

arrest him. Although Smith’s suppression motion included a bald assertion
that police lacked probable cause to arrest him, he failed to preserve this issue
for our review by raising and developing this claim during the suppression
hearing. See Commonwealth v. Leaner, 202 A.3d 749, 765 n.3 (Pa. Super.
2019) (holding that although appellant suggested an issue in his pretrial
motion, the issue was waived since he abandoned the claim during the
hearing/argument before the court). Smith’s counsel did not question Captain
Goldschmidt regarding the point in time at which Smith was eventually placed
under arrest or the factors which formed the probable cause basis for the
arrest. Moreover, counsel made no argument to the suppression court
regarding either Smith’s eventual arrest or whether police had probable cause
to arrest him at that later point in time. See N.T., 10/28/21, at 6-7, 35-36,
37, 39. Accordingly, this issue is waived.

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evidence. See Commonwealth v. Estepp, 17 A.3d 939, 943-44 (Pa. Super.

2011).

Section 6105 of the Pennsylvania Crimes Code defines a person not to

possess firearms, in relevant part, as follows: “A person who has been

convicted of [certain enumerated offenses] 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).3

To convict a defendant of carrying a firearm without a license under

section 6106, the Commonwealth must show that the defendant “carrie[d] a

firearm concealed on or about his person, except in his place of abode or fixed

place of business, without a valid and lawfully issued license.” 18 Pa.C.S.A.

§ 6106(a).

When a firearm is not discovered on a defendant’s person, or in their

actual possession, the Commonwealth may prove the defendant had

constructive possession of the firearm. As this Court has explained:

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 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.
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3 At trial, Smith stipulated that because he was previously convicted of robbery

in 2012, he was ineligible to possess a firearm pursuant to 6105(a)(1). See
N.T., 11/15/22, at 22.

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Commonwealth v. Hopkins, 67 A.3d 817, 820-21 (Pa. Super. 2013)

(citation omitted). “An intent to maintain a conscious dominion may be

inferred from the totality of the circumstances, and circumstantial evidence

may be used to establish a defendant’s possession of drugs or contraband.”

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

omitted).

Smith argues that the Commonwealth did not prove that he actually or

constructively possessed the firearms that were found in the yard through

which he fled. Smith claims that because the officers never observed him with

a weapon, the evidence was insufficient to prove that he actually possessed

either firearm. Smith also contends that the evidence was insufficient to show

that he constructively possessed the firearms because the only evidence

connecting him to the firearms was an officer’s observation of Smith’s pocket

being weighed down, Smith’s flight, and DNA evidence showing that Smith

was a likely contributor to the mixture profile taken from each firearm. Smith

points out that the trial record is not clear as to the “exact location” where the

firearms were found by police because Officer Walls could not recall the

specific address for the yard in the 2700 block of West 7th Street where the

firearms were located. Smith’s Brief at 24. Smith asserts that Officer Walls

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merely testified that the green cooler4 and the firearms were “relatively close.”

Id. (citing N.T., 11/15/22, at 18).

The trial court considered Smith’s second issue and determined that it

lacked merit. Specifically, the court reasoned:

The record is replete with uncontradicted facts which taken
together give rise to reasonable inferences legally supporting
[Smith’s] convictions . . .

The Commonwealth proffered overwhelming DNA evidence
in its case after taking biological samples from . . . Smith and the
two (2) firearms. See Commonwealth Exhibit C-2 — DNA Analysis
dated November 16, 2021. N.T.[,] 11/15/22[, at] 13. Direct
evidence and circumstantially reasoned inferences established
[Smith] possessed each gun, a locational and compressed timing
nexus clearly existed between . . . Smith and the weapons.
Unprovoked flight, the circuitous running route, the immediate
proximity of the firearms guns [sic] recovery point to the area
from which [Smith] had just fled, and to his discarded green
cooler, along with [Smith’s] DNA “match” to the firearm,
combined to a totality of the circumstances of the trial record that
as a matter of law . . . Smith’s unlawful possession of the two (2)
handguns was proven beyond a reasonable doubt.

Although grounded on a combination of direct and
circumstantial evidence, the prosecution’s trial presentation when
viewed under the long-settled standard appliable [sic] to a
sufficiency challenge on appeal readily reveals [Smith’s] now
attacked convictions as a matter of law are sound.

Trial Court Opinion, 6/16/23, at 37-38.

Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, we conclude that there was sufficient evidence to

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4 At the suppression hearing, Captain Goldschmidt testified that Smith was
carrying a small black bag prior to his flight from police. See N.T., 10/28/21,
at 13-15. However, at trial, Officer Walls testified that upon closer inspection,
the bag was, in fact, a small green cooler. See N.T., 11/15/22, at 15-18.

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sustain Smith’s convictions under sections 6105 and 6106. Officer Walls’

testimony at trial established that Smith fled from police into a confined

geographic area within the 2700 block of West 7th Street, and in doing so,

ran through rear yards on the “even side of the street” of that block. N.T.,

11/15/22, at 15. Officer Walls further testified that the green cooler Smith

was carrying at the time he fled from police was found within minutes of his

apprehension, in a rear yard on the even side of the 2700 block of West 7th

Street. Id. at 17. According to Officer Walls, the cooler was found “relatively

close” to the two firearms. Id. at 18. While Officer Walls was unable to recall

with certainty the specific street number for the yard in which the cooler and

firearms were found, he indicated that he “believe[d]” the address was 2702

West 7th Street. Id. at 17. Moreover, Smith stipulated that he was ineligible

to possess a firearm and further stipulated to the DNA test results which

showed that it was extremely likely that he was one of the four contributors

to the DNA profile mix taken from each firearm. See N.T., 11/15/22, at 20-

22; see also Commonwealth Exhibit C-2 — DNA Analysis, 11/16/21

(concluding that it is 5.2 octillion times more likely that the DNA on one of the

firearms originated from Smith, and 10 nonillion times more likely that the

DNA on the other firearm originated from Smith).

Given the confined flight path through rear yards that Smith took when

attempting to flee from police, the discovery of the cooler and the firearms in

one of those yards, the close proximity of the firearms to the green cooler that

Smith had been carrying, and the overwhelming DNA evidence showing the

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extreme likelihood that it was Smith’s DNA on the recovered firearms, we

conclude that the evidence was sufficient to support an inference that it was

more likely than not that Smith constructively possessed the firearms.

Accordingly, his sufficiency challenge merits no relief.

Judgment of sentence affirmed.

Date: 4/10/2024

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