Commonwealth v. Arias

286 A.3d 341

COMMONWEALTH of Pennsylvania

v.Ender Radames ARIAS, Appellant

No. 543 MDA 2022

Superior Court of Pennsylvania.

Submitted October 3, 2022

Filed November 30, 2022

Donna M. DeVita, Public Defender, Scranton, for appellant.

Mark J, Powell, Assistant District Attorney, Scranton, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant Ender Radames Arias appeals from the judgment of sentence entered by the Court of Common Pleas of Lackawanna County after Appellant was convicted of several violations of the Uniform Firearms Act (VUFA), receiving stolen property, and related charges. Appellant raises challenges to the trial court's denial of his suppression motion as well as the sufficiency and weight of the evidence supporting his convictions. We affirm.

On June 19, 2020, officers found Appellant in possession of marijuana and a firearm reported as stolen. Thereafter, Appellant was charged with persons not to possess a firearm, possession of a firearm without a license, receiving stolen property, disarming a law enforcement officer, resisting arrest, obstruction of justice, possession of marijuana, and possession of drug paraphernalia.

On September 16, 2020, Appellant filed an omnibus pretrial motion, which included a request to suppress evidence based on allegations that the police conducted a warrantless vehicle search not supported by probable cause. On October 27, 2020, the Honorable Michael Barrasse held a hearing on the pretrial motion at which the following factual history was developed.

On June 19, 2020, Scranton Police Officer Kyle Gilmartin was on patrol at the Valley View Housing Complex, an area that the police had been monitoring due to increased crime, including drug and firearm violations. Notes of Testimony (N.T.), Omnibus Motion Hearing, 10/27/20, at 3-4.

Officer Gilmartin observed an individual parked in a gold Mercedes sedan in an area where vehicles typically do not park, away from the houses and parking lots of the housing complex. Id . at 4-5. When Officer Gilmartin initially observed the vehicle, he ran the vehicle's license plate which he discovered belonged to a Honda sedan owned by a female from Jessup. Id . at 4-5.

After the vehicle did not move for forty-five minutes and the vehicle's occupant did not exit, Officer Gilmartin pulled his patrol car behind the vehicle without activating his emergency lights. Id . at 5. Officer Gilmartin approached the vehicle on foot and noticed an odor of marijuana emanating through the driver's side window that was partially open. Id . at 5-6.

Officer Gilmartin knocked on the driver's window, encountered Appellant sitting in the driver's seat, and asked a few questions. Id . at 5-6. Officer Gilmartin testified that Appellant did not appear to be paying attention to what was "going on around him." Id . When Officer Gilmartin asked Appellant how long he had been sitting there, Appellant stated that he had been there for ten minutes. Id . After Officer Gilmartin told Appellant he had been watching him for forty-five minutes, Appellant disagreed. Id .

After Officer Gilmartin commented on the smell of marijuana coming from the car, Appellant admitted that the car smelled like marijuana, but denied smoking marijuana, stated that there was no marijuana in the car, and indicated that the vehicle was not his car. Id . at 6-7.

At that point, Officer Gilmartin asked Appellant to step out of the car, indicating that he did so due to the high crime area, the long time frame in which Appellant was sitting in the car without doing anything, the vehicle's position in an area where cars typically do not park, the fact that the car had a tag on it that it was not assigned by PennDOT, the odor of marijuana, and Appellant's behavior when Officer Gilmartin approached. Id . at 7.

Appellant did not comply with Officer Gilmartin's requests to exit the vehicle. Officer Gilmartin summoned the assistance of other officers, asked Appellant repeatedly to exit the vehicle, and informed him that he would be removed from the vehicle if he did not comply. Id . at 8. When Appellant still would not comply, Officer Gilmartin informed Appellant that the vehicle's window would be broken if Appellant continued to refuse to comply. Id .

After Appellant was ultimately removed from the vehicle, the officers discovered a loaded firearm with a round in the chamber under the driver's seat of vehicle as well as a small amount of marijuana. Id .

On April 6, 2021, Judge Barrasse denied Appellant's suppression motion. Due to court congestion, this case was transferred to the Honorable Margaret Bisignani Moyle, who scheduled Appellant's jury trial for November 15, 2021.

At trial, Officer Scott Bezeleski, one of the officers that arrived to assist Officer Gilmartin during the stop of Appellant's vehicle, testified for the prosecution. He recalled that before Appellant exited his vehicle, Officer Bezeleski observed Appellant repeatedly reaching underneath the driver's seat of the vehicle. N.T. Trial, 11/17/21, 35-36, 78-79. These movements made Officer Bezeleski concerned that Appellant was trying to retrieve a weapon or contraband from underneath the seat. Id . at 36. Once Appellant was removed from the vehicle, Officer Bezeleski observed the handle of a firearm directly under the driver's seat. Id . at 87-88.

Upon seizure of the firearm, the officers noted that the serial number on the firearm was PY124307. Further investigation by Officer Taylor Dunn revealed the firearm had been reported stolen from the Scranton residence of an individual named Charles Thorne. Id . at 7-12, 102. While Mr. Thorne was subpoenaed to testify at Appellant's trial, he did not appear. Id . at 12.

Britney Lenig, a member of the State Police Forensic Unit, offered expert testimony in the field of DNA profiling and compared Appellant's DNA with DNA found on the firearm, magazines, and cartridges. N.T. Trial, 11/16/21, at 204-208, 211-12. Ms. Lenig testified that DNA found on the firearm consisted of a mixture of three contributors and opined that it was 25 nonillion times more likely that the profile included Appellant and two unknown individuals than three unknown individuals. Id . at 217-221. Ms. Lenig stated that nonillion is a number followed by 30 zeros. Id . at 220-21. As a point of reference, Ms. Lenig noted there are approximately 7.9 billion people on Earth, which is a number followed by 9 zeros. Id . at 221.

At the conclusion of the trial, the jury found Appellant guilty of possessing a firearm without a license, receiving stolen property, resisting arrest, and obstruction of justice. The jury found Appellant not guilty of disarming a police officer. The prosecution withdrew the charges of possession of marijuana and possession of drug paraphernalia. In a bifurcated portion of trial on November 18, 2021, the trial court found Appellant guilty of persons not to possess a firearm.

On February 3, 2022, the trial court sentenced Appellant to an aggregate term of five to fourteen years’ imprisonment. On February 10, 2022, Appellant filed a post-sentence motion, which the trial court subsequently denied. This timely appeal followed.

Appellant raises the following issues for review:

A. Whether the trial court erred when it denied Appellant's motion to suppress evidence discover[ed] in his vehicle in violation [of] Commonwealth v. Barr , ––– Pa. ––––, 266 A.3d 25 (2021), which held that the smell of marijuana alone is insufficient to establish probable case in order to conduct a warrantless search of his vehicle?

B. Whether the Commonwealth proferred sufficient evidence to prove beyond a reasonable doubt that Appellant committed the offense of receiving stolen property, 18 Pa.C.S.A. § 3925 ?

C. Whether the Commonwealth proferred sufficient evidence to prove beyond a reasonable doubt that Appellant committed the offense of possession of a firearm, prohibited, 18 Pa.C.S.A. § 6105(a)(1) ?

D. Whether the Commonwealth proferred sufficient evidence to prove beyond a reasonable doubt that Appellant committed the offense of firearms not to be carried without a license, 18 Pa.C.S.A. § 6106(a)(1) ?

E. Whether the guilty verdict rendered on the offense of receiving stolen property, 18 Pa.C.S.A. § 3925, was against the weight of the evidence?

F. Whether the guilty verdict rendered on the offense of possession of a firearm, prohibited, 18 Pa.C.S.A. § 6105(a)(1), was against the weight of the evidence?

G. Whether the guilty verdict rendered on the offense of firearms not to be carried without a license, 18 Pa.C.S.A. § 6106(a)(1), was against the weight of the evidence?

Appellant's Brief, at 6.

Appellant first claims the trial court erred in denying his suppression motion, alleging that the trial court improperly found that the smell of marijuana alone provided the requisite suspicion to search his vehicle.

In reviewing an appeal from the denial of a motion to suppress evidence, we are guided by the following standard of review:

Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. When reviewing the ruling of a suppression court, we must consider only the evidence of the prosecution and so much of the evidence of the defense as remains uncontradicted when read in the context of the record. ... Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Eichinger , 591 Pa. 1, 915 A.2d 1122, 1134 (2007) (citations omitted). "It is within the suppression court's sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony." Commonwealth v. Gallagher , 896 A.2d 583, 585 (Pa. Super. 2006). Moreover, our scope of review from a suppression ruling is

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