J-S53010-14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ANTHONY MOYER, : : Appellant : No. 1711 WDA 2013
Appeal from the Judgment of Sentence June 4, 2013, Court of Common Pleas, Cambria County, Criminal Division at No. CP-11-CR-0000262-2012
BEFORE: DONOHUE, OLSON and PLATT*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED AUGUST 26, 2014
June 4, 2013 judgment of
sentence entered by the Cambria County Court of Common Pleas following
his conviction of persons not to possess firearms and possessing an
instrument of crime.1 Specifically, Moyer challenges the sufficiency of the
evidence to convict him of persons not to possess firearms and the denial of
his motion to suppress evidence obtained during the search of his home.
We affirm.
The suppression court2 provided the following summary of the facts of
this case:
On January 23, 2012, Portage Police Chief Edward P.
1 18 Pa.C.S.A. §§ 6105(a)(1), 907(a). 2 The Honorable Patrick T. Kiniry presided over the suppression hearing. The Honorable Linda R. Fleming presided over the trial.
*Retired Senior Judge assigned to the Superior Court. J-S53010-14
white 930 Caldwell Avenue mobile home.[FN]1 To accomplish this task, Chief Miller submitted both a search warrant application and an affidavit of probable cause to District Judge Richard W. Varner. The affidavit of probable cause stated:
Your Affiant is Chief Edward P. Miller, with over 34 years law enforcement experience, currently employed by Portage Borough Police Department.
On 01-22-11,[FN]2 Off. Donald Wyar was on duty, in full uniform, utilizing a marked patrol car, for Portage Borough Police Department. Off. Jeffrey Russell was on duty for Summerhill Twp. Police Dept., in full uniform, also in a marked police unit. Off. Wyar was dispatched for an unwanted person refusing to leave
B residence. Off. Wyar called Off. Russell for assistance. Upon t sic] arrival, Harriett Kleman stated Anthony Moyer was pounding on her door, refusing to leave, stating he was going to kick her ass.
Both Off. Wyar and Off. Russell proceeded to
knocking on the door. Anthony Moyer refused to open the door, but had a conversation with Off. Wyar through the door, which had a window. Off. Wyar was looking through the window talking to Moyer, who attempted to entice and provoke Off. Wyar inside, stating
Moyer then produced a black handgun and pointed it up to the window, inches away from and directly at the face of Off. Wyar. Off. Wyar
Officers formed a perimeter securing the premises while additional assistance was summoned. Moyer eventually walked outside
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with a phone in his hand, and was subdued by officers after deployment of a Taser. Moyer did not have the gun on his person when taken into custody. Moyer stated he hid the gun behind the dryer, but police are going to have to get a search warrant to get it.
Due to the ease in which a handgun can be concealed or disposed of, a night time [sic] search is requested.
At 1:00 AM on January 23, 2012, District Judge
request. The subsequent search and seizure bore three firearms: (1) a HiPoint C9 9mm pistol, (2) a Colt 0.32 caliber automatic pistol, and (3) a Springfield 39A 410 bolt shotgun. Receipt of Seized Property at 1. The Portage Police Department
shotgun behind his bedroom door. Of the three firearms, only the shotgun was unloaded. Next, on March 30, 2012, the Commonwealth filed five criminal charges against Moyer: (1) 18 Pa. C.S.A. §2702(a)(6) aggravated assault, (2) 18 Pa. C.S.A. §2705 recklessly endangering another person, (3) 18 Pa. C.S.A. §2706(a)(1) terroristic threats, (4) 18 Pa. C.S.A. §2701(a)(1) simple assault, and (5) 18 Pa. C.S.A. §6105(a)(1) prohibition against possessing a firearm as a result of a prior felony. In response to
Motion to Suppress.
More specifically, Moyer alleged multiple suppression claims:[FN]3
1. Stale Information:
affidavit of probable [cause]
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contained stale information, the search warrant is invalid and the Court should suppress any evidence obtained pursuant to it.
2. Lack of Probable Cause for Search Warrant Officers Wyar and Russell lacked authorization from either the complaint they investigated or the facts in the affidavit of probable cause to (1) search Moyer's home and (2) arrest him. Therefore, because the Commonwealth lacked probable cause to search Moyer's home and arrest him, the search warrant is invalid and the Court should suppress any evidence obtained pursuant to it.
3. Criminal Trespass: Officers Wyar and Russell to enter his home converted the officers into trespassers when they remained on his porch. Consequently, because the Commonwealth criminally trespassed on Moyer's property, the search warrant is invalid and the Court should suppress any evidence obtained pursuant to it.
4. Omission of Particular Facts: The affidavit remained silent regarding whether any circumstance existed that prohibited Moyer from possessing a pistol firearm. Thus, because the Commonwealth failed to include these specific facts in their affidavit of probable cause, the search warrant is invalid and the Court should suppress any evidence obtained pursuant to it.
5. Defense of Self-in-Dwelling: pistol (i.e., first enticing Officer Wyar into his
face, which was inches away) was
defended himself in his dwelling, the search warrant is invalid and the Court should suppress any evidence obtained pursuant to it.
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____________________________ [FN]1 The search warrant application described the premises to be searched as a:
white mobile home with tan trim located assigned [sic] Rear 930 Caldwell Ave., with a rear entrance door at the north side, and front main entrance door on the south side with a wooden porch covered by a roof, the west side of the trailer bordering Blair St., said trailer located at the northernmost portion of property designated 930 Caldwell Ave.
1. [FN]2
confirms the same date: DATE(S) of VIOLATION: 01- 22- [FN]3
interpretation of what is at the heart of those claims.
Suppression Court Opinion, 9/27/12, at 1-4 (record citations and footnote 4
omitted).
hearing on September 27, 2012.3 In the interim, on September 14, 2012,
possess firearms from the remaining charges. Following trial, a jury
convicted him of persons not to possess firearms on April 9, 2013.
On June 4, 2013, the Commonwealth and Moyer entered into a plea
agreement whereby the Commonwealth would reduce the aggravated
3 In his motion to suppress, Moyer stated that he did not believe a hearing was necessary. Omnibus Pretrial Motion for Relief, 9/7/12, at ¶3.
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assault charge to possessing an instrument of crime, to which Moyer would
plead nolo contendere. The Commonwealth further agreed to nol pros all
remaining char
which he stood convicted became final. Moyer also agreed to pay
restitution, but there was no other agreement as to his sentence. The trial
urrent terms of
six months of probation for each conviction.
Moyer filed post-sentence motions challenging, inter alia, the
sufficiency and weight of the evidence to support his conviction of persons
not to possess firearms. The trial court took the motion under advisement,
and ultimately denied relief on October 8, 2013. Moyer filed a notice of
a concise statement of errors complained of on appeal.
Moyer raises two issues for our review:
1. Whether the trial court erred in failing to enter a judgment of acquittal for the offense of persons not to possess firearms inasmuch as the evidence did not suffice to prove the identity of [Moyer] as the same person convicted of a predicate enumerated offense?
2. Whether the suppression court erred in failing to suppress the evidence seized pursuant to a search warrant where the affidavit for the search warrant failed to state probable cause due to the lack of the requisite specificity and other omissions therein?
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Whether sufficient evidence exists to support the verdict is a question of
law; our standard of review is de novo and our scope of review is
Commonwealth v. Murray
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
Commonwealth v. Mobley, 14 A.3d 887, 889 (Pa.
Super. 2011).
witnesses and the weight of the evidence produced is free to believe all, part
or none of the evidence. Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa.
Super. 2014).
The Pennsylvania Crimes Code defines persons not to possess
firearms, the crime at issue, as follows:
A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) 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). It is uncontested that the offense the
Commonwealth alleged Moyer to have been convicted of is enumerated in
section 6105(b). See 18 Pa.C.S.A. § 6105(b) (including, inter alia, unlawful
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restraint pursuant to 18 Pa.C.S.A. § 2902 in the list of enumerated
-12. It is also uncontested that Moyer was in
possession of a firearm. See
finding that the Commonwealth proved beyond a reasonable doubt that he
was the person previously convicted of an enumerated offense, rendering his
at 11.
The trial court found that the evidence presented that a person who
shares the same first, middle, and last name as Moyer and lives at the same
address as does Moyer was sufficient to prove that Moyer was the person
convicted of one of the enumerated offenses prohibiting him from possessing
a firearm. Trial Court Opinion, 1/6/14, at 3 (citing Commonwealth v.
Chandler, 346 A.2d 579, 581-82 (Pa. Super. 1975)). Moyer asserts that
because they failed to present such evidence, his conviction is improper.
Commonwealth v. Boyd, 344 A.2d 864, 869
(Pa. 1975); Commonwealth v. King, 316 A.2d 878, 880 n.4 (Pa. 1974);
Commonwealth v. Payne, 463 A.2d 451, 453-54 (Pa. Super. 1983)).
We find the cases relied upon by Moyer do not stand for the
proposition that the prosecuting officer from the prior conviction must testify
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to permit a conviction under section 6105 as Moyer contends. In Payne,
the appellant was arrested, ch
Payne
Id. at 453-54. The
mony to establish
that Rickey Payne and John Vargas were the same person.
On appeal, the defendant argued that the evidence of his prior arrest
taken to ameliorate its possible influence on the jury towards the appellant
Id. at 453.
necessary to establish an element of the offense charged, i.e. appell
inflammatory. Payne, 63 A.2d at 454-55 (emphasis omitted).
Boyd and King
to impeach his credibility. Our Supreme Court s
for the use of a record of prior convictions to impeach the credibility of a
criminal defendant include, [i]nter alia, clear proof, (1) that such record is
authentic and accurate, and (2) that the present defendant is the same
pe Boyd, 344 A.2d at
868; see also King, 316 A.2d at 879. In both cases, the Court found that
solely presenting evidence that the appellants, Charles Boyd and Daniel
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King, shared the same name as a person who had previously been convicted
of several crimes was insufficient to establish that the appellant was the
person who had been convicted of the crimes. King, 316 A.2d at 880;
Boyd, 344 A.2d at 869. In so holding, the Court in both cases relied upon
its prior decision in Commonwealth v. Young, 211 A.2d 440 (Pa. 1965), in
which the Supreme Court stated:
The importance of evidence establishing prior convictions of serious crimes for impeachment purposes cannot be overemphasized. It can, and often does, dest significantly influences the outcome of the trial. In view thereof, it appears to us that the identity of the person should be established by something more than mere similarity in name. The name Young is not uncommon; in fact, a perusal of the current Philadelphia city telephone directory manifests
circumstances, we conclude that it was prejudicial and reversible error to permit the jury to make such an important finding on the basis of inconclusive evidence.
Id. at 441; see King, 316 A.2d at 880; Boyd, 344 A.2d at 868-69.
In the case at bar, Moyer was not previously arrested using a different
name like the appellant in Payne, and thus the need for additional evidence
to prove his identity was unnecessary. See Payne, 463 A.2d at 454
§ 6105
King and Boyd, the Commonwealth
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was the person who had previously been convicted of a crime. The
Commonwealth additionally showed that they shared the same middle initial
and the same address.4
Exhibit 1. We agree with the trial court that the Chandler case supports a
finding of evidentiary sufficiency.
In Chandler, the Commonwealth sought to impe
credibility with the use of a prior conviction of forgery. Chandler, 346 A.2d
at 581. The Commonwealth presented the testimony of the clerk of courts
regarding the criminal record of Lawrence A. Chandler, a/k/a Bubba
Chandler. The clerk testified that he could not state that the appellant was
in fact the prior convict in question. Id. Following his conviction, Chandler
]t is beyond
question that in this Commonwealth the mere similarity of names, even in
the absence of contradiction, is insufficient to prove that the record in
Id. Differentiating the case
from that of Young, we stated:
4 The Commonwealth seeks for us also to include as evidence supporting the conviction that Moyer and the prior convict shared the same social
trial, this information was included in the presentence investigation report, which the Commonwealth asserts we can consider in our review of a
claims. Id. at 5. We disagree that this is permissible, because, as stated above, our review is at trial determine whether there is sufficient evidence to support the conviction beyond a reasonable doubt. Mobley, 14 A.3d at 889 (emphasis added).
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In the present case, somewhat more than identity with a common name in an area the size of Philadelphia was shown. The name Lawrence Chandler is less likely to be repeated in the area of Washington, Pennsylvania, than the name of Thomas Young is in Philadelphia. Also, the Lawrence A.
Washington address and the appellant had testified that he lived in the Washington area all his life. Most convincing, however, is the fact that the Lawrence Chandler with the criminal record was also known as
name Lawrence Chandler, the Washington address at the time of the prior crime, and the unusual nickname is not so inconclusive of identity as to
Id. at 581-82 (footnote omitted).
In the case at bar, Moyer shared the same first name, middle initial,
and last name as the prior convict. Both reside in Cambria County, which,
like Washington County, is unquestionably smaller than is Philadelphia.
Furthermore, Moyer and the prior convict shared the exact address, as
opposed to merely residing in the same county, as was the case in
Chandler. Viewing the evidence in the light most favorable to the
Commonwealth as our standard of review requires, we find the evidence was
sufficient to convict Moyer of persons not to possess firearms in violation of
section 6105(a)(1).
As his second and final issue raised on appeal, Moyer asserts that the
suppression court erred by failing to grant his motion to suppress the
evidence seized pursuant to the search warrant. Our standard of review in
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addressing a challenge to the denial of a suppression motion is limited to
determining whet
by the record and whether the legal conclusions drawn from those facts are
Commonwealth v. Thompson, 93 A.3d 478, 484 (Pa. Super.
2014) (citation omitted). We are not bound by the trial
conclusions, but must apply the law to the supported facts found by the trial
court. Id.
review. Id.
Moyer asserts two grounds for finding error. First, he states that the
warrant failed to provide an address where the crime allegedly occurred or
the town/municipality of the location to be searched, rendering the warrant
ion.5
suppress reveals that this issue was not included therein. As such, it is
waived. See Commonwealth v. Richter, 791 A.2d 1181, 1186 (Pa. Super.
2002) (en banc n to
suppress results in waiver of that issue on appeal); Pa.R.Crim.P. 581(D)
5 In its written opinion pursuant to Pa.R.A.P. 1925(a), the trial court relies upon the written opinion authored by the suppression court in support of See Trial Court Opinion, 1/6/14, at 7.
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sought to be suppressed, the grounds for suppression, and the facts and
In his second argument in support of his claim, Moyer asserts the
following:
Furthermore, since the incident that Officer Wyar was investigating, i.e. pounding on her door, refusing to leave, stating he sic] amounted to no more than a summary offense and certainly did not authorize an arrest without a warrant pursuant to Pa.R.Crim.P. 502(2), Officer Wyar was a trespasser, a peeping tom, after Anthony Moyer sic] and, from that point, the plain view doctrine did not avail. Thus, the events that were described thereafter in the affidavit cannot be characterized as evidence of a crime, but rather described an individual acting lawfully within his residence with a trespasser at the door.
-19. The suppression court found that the police were not
involvement in a reported crime. Suppression Court Opinion, 9/27/12, at 9.
The police knocked on the door, and Moyer refused to open it. Id. They did
not attempt to search the home or seize of any property without a warrant.
Id. Furthermore, the court found that Moyer did not tell the police to leave
the premises at any time, and instead engaged them in conversation
through his door. Id.
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property[,] which would allegedly render any evidence obtained through the
subsequent search warrant Id.
At the outset, we fail to see how this argument relates in any way to
the issue raised on appeal, i.e., the warrant failed to state probable cause to
See
argument does relate to the issue he preserved for appeal, he cites no
authority in support of his bald assertion that his failure to open his door to
the police renders the police officers trespassers, which in turn permits him
to brandish a gun and threaten them. Indeed, as stated by the suppression
court, there is nothing in the record that supports a finding that the officers
trespassed on his property or in any way behaved unlawfully. See 42
the power and authority to enforce the laws of this Commonwealth or
otherwise perform the functions of that office anywhere within his primary
jurisdiction as to: (1) Any offense which the officer views or otherwise has
probable cause to believe was committed within his jurisdiction[; or] (2) Any
other event that occurs within his primary jurisdiction and which reasonably
requires action on the part of the police in order to preserve, protect or
defend persons or property or to otherwise maintain the peace and dignity of
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The issuance of a constitutionally valid search warrant requires that
police provide the issuing authority with sufficient information to persuade a
reasonable person that there is probable cause to conduct a search, based
upon information that is viewed in a common sense manner.
Commonwealth v. Housman, 986 A.2d 822, 843 (Pa. 2009). The issuing
authority must determine whether, given the totality of the circumstances
presented, there is a fair probability that evidence of a crime or contraband
will be found in a particular location. Id. The task of the reviewing court is
to ensure that the issuing authority had a substantial basis to conclude that
probable cause existed. Id.
Our review of the request for a search warrant and its accompanying
affidavit of probable cause supports the facts as found by the suppression
role as the perpetrator in a reported crime. Affidavit of Probable Cause,
Id.
When Moyer exited his home and was arrested, he told the police that he hid
the gun behind his clothes dryer. Id.
police were investigating the crimes Moyer committed against Officer Moyer,
to wit, aggravated assault and recklessly endangering another person. See
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he recklessly engages in conduct which places or may place another person
Moyer had committed these crimes and that evidence of the crimes a gun
See Housman, 986 A.2d at 843.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/26/2014
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