Commonwealth of Pa. v. Micking

• Decision Date: 10 March 2011
• Parties: COMMONWEALTH of Pennsylvania, Appelleev.Samuel MICKING, Appellant.
• Court: Pennsylvania Superior Court

17 A.3d 924

2011 PA Super 45

COMMONWEALTH of Pennsylvania, Appellee

v.Samuel MICKING, Appellant.

Superior Court of Pennsylvania.

Submitted Sept. 24, 2009.Filed March 10, 2011.

OPINION TEXT STARTS HERENo. 202 EDA 2008, Appeal from the Judgment of Sentence of November 26, 2007, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP–51–CR–1302728–2006.BEFORE: FORD ELLIOTT, P.J., MUSMANNO, ORIE MELVIN,^* BENDER, BOWES, PANELLA, DONOHUE, SHOGAN, and ALLEN, JJ.

Prior report: Pa.Super., 974 A.2d 1187.

ORDER

PER CURIAM.

The Court, being evenly divided, the Order of the Court of Common Pleas is affirmed.

OPINION IN SUPPORT OF AFFIRMANCE by BOWES, J. joined by FORD ELLIOTT, P.J., PANELLA, J. and ALLEN, J.OPINION IN SUPPORT OF REVERSAL by SHOGAN, J. joined by MUSMANNO, J., BENDER, J., and DONOHUE, JJ.ORIE MELVIN, J. did not participate in the consideration or decision of this case.OPINION IN SUPPORT OF AFFIRMANCE BY BOWES, J.:

Samuel Micking appeals the judgment of sentence that was imposed after he was convicted of two counts each of carrying an unlicensed firearm and persons not to possess firearms. He was sentenced to concurrent terms of twenty-four to forty-eight months imprisonment for persons not to possess firearms and eighteen to thirty-six months incarceration for carrying an unlicensed firearm. We would affirm.

The suppression hearing revealed the following facts. At approximately 8:30 p.m. on November 22, 2006, Philadelphia Police Officer Thomas Tamulis was patrolling in the area of Kingsessing and Alden Streets, Philadelphia, with his partner, Police Officer Patrick McDonald. He observed Appellant driving a car eastbound on Kingsessing Street. Without utilizing his turn signal, Appellant made a right turn onto Alden Street. The officers initiated a traffic stop to process the infraction of the Motor Vehicle Code.

Officer Tamulis approached Appellant, who was alone in the car, and asked for his license, registration, and insurance card. In response, Appellant informed him that his driver's license was suspended. Officer Tamulis decided to conduct a live-stop of the vehicle.¹ Appellant evidenced extremely nervous behavior given the relatively minor nature of the traffic offense being processed. Specifically, Appellant “appeared to be very nervous and trembling. His hands were shaking.” N.T. Suppression Hearing, 8/14/07, at 5.² In addition, Appellant's “voice was trembling.” Id. at 7. This behavior concerned Officer Tamulis, and as a result, he conducted a protective weapons search of the interior portions of the vehicle accessible to Appellant. The search was conducted for Officer Tamulis's safety and his partner's safety. Id. at 7. Officer Tamulis stated that “based on [Appellant's] actions,” the two officers “conducted a search of [Appellant's] immediate area,” and, using a key, “recovered from the glove compartment of that vehicle two firearms.” Id. at 6, 16.³ Both of the guns were loaded, id. at 9, and one had its serial number obliterated. Appellant, who was previously convicted of a robbery and not permitted to possess a firearm, was at that point arrested and handcuffed. Id. at 13.

After performing the protective weapons search, Officer Tamulis returned to his vehicle to process the live-stop by calling a tow truck. He thereafter performed an inventory search of the vehicle, which revealed no further contraband. The tow truck arrived approximately thirty minutes later.

After litigating an unsuccessful motion to suppress the two weapons, Appellant proceeded to a nonjury trial where he was convicted of two counts each of the following violations of the Uniform Firearms Act: 1) persons not to possess firearms, 18 Pa.C.S. § 6105; and 2) carrying an unlicensed firearm, 18 Pa.C.S. § 6106. This appeal followed imposition of the above-described judgment of sentence.

The appeal was submitted to a panel of this Court which concluded that Officer Tamulis's search of the vehicle was unjustified and reversed the judgment of sentence. En banc review was granted, and this appeal is now ready for disposition. Appellant raises the following issues: 1) “Whether the verdict was contrary to law”; 2) “Whether the court erred in denying Appellant's motion to suppress”; and 3) “Whether the verdict was against the weight of the evidence and counsel's motion for judgment of acquittal should have been granted.” Appellant's brief at 4.

Appellant first argues that the evidence was insufficient to establish that he possessed the weapons found in the glove compartment of the vehicle. Contending that he was merely present in a car where weapons were found, Appellant asserts that this quantum of proof falls short of that necessary to sustain his convictions of the weapons offenses. When reviewing a challenge to the sufficiency of the evidence supporting a conviction, we analyze:

whether the evidence, viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to enable a reasonable [fact finder] to find every element of the crime beyond a reasonable doubt. See Commonwealth v. Cousar, 593 Pa. 204, 217, 928 A.2d 1025, 1032 (2007) (citing Commonwealth v. Crews, 436 Pa. 346, 348, 260 A.2d 771, 771–72 (1970)). In applying this standard, we bear in mind that the Commonwealth may sustain its burden by means of wholly circumstantial evidence; that the entire trial record should be evaluated and all evidence received considered, whether or not the trial court's rulings thereon were correct; and that the trier of fact, while passing upon the credibility of witnesses and the weight of the proof, is free to believe all, part, or none of the evidence. See id., 928 A.2d at 1032–33; Commonwealth v. Chmiel, 585 Pa. 547, 574, 889 A.2d 501, 517 (2005).

Commonwealth v. Reed, 605 Pa. 431, 990 A.2d 1158, 1161 (2010).

In this case, the two weapons were not located on Appellant's person; thus, the Commonwealth was required to establish that he constructively possessed those firearms. Commonwealth v. Gutierrez, 969 A.2d 584, 590 (Pa.Super.2009) (“Possession can be found by proving actual possession, constructive possession or joint constructive possession.”) (quoting Commonwealth v. Heidler, 741 A.2d 213, 215 (Pa.Super.1999)); see also Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983); Commonwealth v. Sanes, 955 A.2d 369 (Pa.Super.2008).

In order to prove that a defendant had constructive possession of a prohibited item, the Commonwealth must establish that the defendant had both the ability to consciously exercise control over it as well as the intent to exercise such control. Sanes, supra. “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. Valette, 531 Pa. 384, 613 A.2d 548, 550 (1992) (quoting Macolino, supra at 134).

Gutierrez, supra at 590.

Our application of the legal fiction of constructive possession often arises when contraband is found in a car. As noted, all the attendant facts and circumstances are weighed to determine whether the Commonwealth proved the defendant's ability and intent to exercise control over the article in question. In the present case, Appellant was the sole occupant of the vehicle and was in possession of a key to the locked glove compartment. Thus, he had the actual ability to control the contraband. In addition, Appellant displayed behavior indicating consciousness of guilt, specifically, extreme nervousness, trembling, and shaking. See Commonwealth v. Hughes, 581 Pa. 274, 865 A.2d 761, 792 (2004) (“The conduct of an accused following a crime, including ‘manifestations of mental distress,’ is admissible as tending to show guilt.”) (quoting in part Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743, 747 (1953) (“mental distress, fear at the time of or just before or just after discovery of the crime” are indicators of guilt)). Hence, the evidence was sufficient to show that Appellant had both the ability and intent to exercise control of the two firearms located in the car that he was driving.

Appellant's attempt to equate this case to that of Commonwealth v. Boatwright, 308 Pa.Super. 41, 453 A.2d 1058 (1982), is unavailing. Therein, the defendant was sitting in the front passenger seat of a parked car that police were investigating. Two other men were also present in that vehicle. A gun was found on the left rear floor, where one of the other men had been located. The defendant was convicted of possession of that weapon, for which he had no license. We concluded that the evidence was insufficient to support his conviction, which was premised on his presence in the car and the fact that police had seen his body move toward the left rear of the vehicle. Police had not viewed the defendant's hands. Furthermore, the gun was properly registered to a woman, and another woman, the driver's girlfriend, owned the car. We held that since the evidence established only that the defendant was present in a car where a registered firearm was found, it was insufficient to support his conviction. In this case, Appellant was the sole occupant of the car and possessed the key to the glove compartment where the guns were stored. His behavior also demonstrated consciousness of guilt. This case bears no resemblance to Boatwright.

Appellant next assails the suppression court's conclusion that Officer Tamulis was permitted to conduct a protective weapons search of the passenger compartment of the vehicle in which he was riding.

When reviewing the propriety of a suppression order, an appellate court is required to determine whether the record supports the suppression court's factual findings and whether the inferences and legal conclusions drawn by the suppression court from those findings are appropriate. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980). Where the record supports the factual findings of the...