J-S06006-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

v.

JANVIER THOMAS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1755 EDA 2016

Appeal from the Judgment of Sentence May 13, 2016

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0006583-2015

BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.: FILED MAY 14, 2018

Janvier Thomas appeals from the judgment of sentence of four to eight 

years imprisonment followed by three years probation imposed following his 

conviction of three firearms violations. After careful review, we affirm. 

The pertinent facts underlying Appellant’s convictions are as follows. 

On May 25, 2015, Police Officer Jason Carr and his partner were patrolling 

the 1200 block of North Hollywood Street, Philadelphia, in a marked police 

vehicle. At approximately 8:30 p.m., they received a radio dispatch 

notifying them of gunshots in that area. Shortly thereafter, they received a 

second dispatch identifying the suspected shooter as a black male with short 

dreadlocks wearing a white T-shirt. As the officers approached the 1300 

block of North Myrtlewood Street, they saw a man matching that description 
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sitting on the steps of 1325 North Myrtlewood Street, who was later 

identified as Appellant. The police vehicle stopped less than five feet from 

Appellant; no lights or sirens were activated. 

Upon seeing the police vehicle, Appellant ran. According to Officer 

Carr, Appellant jumped up, grabbed a bulge in his left cargo pants pocket, 

and ran across the street. The officer, believing the bulge was a gun, 

pursued Appellant on foot. Appellant ran into a residence at 1322 North 

Myrtlewood Street and slammed the door. Officer Carr pursued him into the 

house with his gun drawn. 

As Officer Carr entered the home, he saw Appellant at the top of the 

stairs. The officer proceeded upstairs after Appellant with Officer Mitchell 

McKeever behind him. Officer Carr saw Appellant disappear briefly behind a 

curtain leading to a bedroom, he heard a heavy thud on the floor, and then 

Appellant walked out of the bedroom with his hands empty and no visible 

bulge in his pants pocket. The officers placed Appellant in custody and 

searched him. Officer Carr found a bag of marijuana in Appellant’s right 

pants pocket. Officer McKeever searched the nearby area and located a .40 

caliber Taurus handgun, loaded with nine rounds, behind the curtain in front 

of a stack of white storage containers. 

Appellant was charged with possession of a firearm by a person not to 

possess; possession of a firearm without a license; carrying a firearm on a 

public street in Philadelphia; and possession of a small amount of marijuana. 
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Appellant moved to suppress evidence obtained from 1322 North Myrtlewood 

Street. After a hearing, the suppression court found that there was 

reasonable suspicion for an investigatory stop, and that, based on the 

totality of the circumstances, the entry of the home was lawful because the 

officers were in hot pursuit of Appellant. Furthermore, the suppression court 

found that the search of Appellant was warranted, and that Appellant 

voluntarily abandoned the weapon inside the home. Therefore, the 

suppression court denied Appellant’s motion to suppress the gun and the 

marijuana found on him.1

A non-jury trial was held on February 23, 2016. The parties stipulated 

that the gun was operable, that Appellant was ineligible to possess a gun, 

and that he did not have a license for the weapon. The trial court found 

Appellant guilty of violating the Uniform Firearms Act, 18 Pa.C.S. §§ 6105, 

6106, and 6108; and acquitted Appellant of the marijuana charge.

Following sentencing, Appellant filed a timely notice of appeal. The 

trial court directed Appellant to file a Pa.R.A.P. 1925(b) concise statement of 

errors complained of on appeal, he complied, and the trial court authored its 

1925(a) opinion.2 Appellant presents two issues for our review:

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1 The suppression court granted Appellant’s motion to suppress a statement 

that was made without the benefit of Miranda warnings.

2 After the filing of the briefs in this appeal, counsel for Appellant filed an 

application to withdraw as counsel. By order, dated March 13, 2018, this 

(Footnote Continued Next Page)
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1. Did the lower court err where it denied Appellant’s [m]otion to 

[s]uppress where, as here, the lower court accepted that the 

arresting officers did not have probable cause, only reasonable 

suspicion, which is not the requisite standard for a warrantless 

entry of a home?

2. Did the trial court err in finding sufficient evidence of possession 

of a firearm under the Uniform Firearms Act [§] 6105, where a 

firearm was recovered inside a property; and the owner of the 

same property gave unrebutted testimony that she owned the 

firearm and produced evidence of lawful ownership of the 

firearm and a license to carry the firearm, and where no witness 

testified to seeing the defendant in possession of the firearm?

Appellant’s brief at 2-3.

Since a sufficiency claim warrants automatic discharge rather than 

retrial, we address Appellant’s second issue at the outset. In reviewing a 

challenge to the sufficiency of the evidence, our standard of review is wellsettled:

[W]e must determine whether the evidence admitted at trial, as 

well as all reasonable inferences drawn therefrom, when viewed 

in the light most favorable to the verdict winner, are sufficient to 

support all the elements of the offense. Additionally, to sustain 

a conviction, the facts and circumstances which the 

Commonwealth must prove, must be such that every essential 

element of the crime is established beyond a reasonable doubt.

Admittedly, guilt must be based on facts and conditions proved, 

and not on suspicion or surmise. Entirely circumstantial 

evidence is sufficient so long as the combination of the evidence 

links the accused to the crime beyond a reasonable doubt. 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 

(Footnote Continued) _______________________

Court granted counsel for Appellant’s application, directed appointment of 

new counsel, and retained appellate jurisdiction. 
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combined circumstances. The fact finder is free to believe all, 

part, or none of the evidence presented at trial. 

Commonwealth v. Cline, 177 A.3d 922, 925 (Pa.Super. 2017) (citations 

omitted). 

The three firearms offenses of which Appellant was convicted each 

contain an element of possession of a firearm. See 18 Pa.C.S. § 6105(a)(1) 

(person not to possess a firearm); 18 Pa.C.S. § 6106(a)(1) (carrying a 

firearm without a license); 18 Pa.C.S. § 6108 (unlicensed person carrying a 

firearm on public streets in Philadelphia). Appellant challenges all three 

convictions on the basis that the evidence that he possessed a firearm was 

only circumstantial and that there was no evidence that he constructively 

possessed the gun. Appellant’s brief at 10. Appellant’s argument is based 

in part on a version of the facts that he presented at trial, and that was not 

credited by the trial court.3 We will disregard those facts since our standard 

of review dictates that we view the evidence in the light most favorable to 

the verdict winner, herein the Commonwealth. 

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3 Appellant’s cousin, Willie Abram, and his aunt, Vickie Thomas, testified that 

Ms. Thomas owned the gun and that she had placed it on top of containers 

behind the curtain. When Officer Carr shoved Appellant into the boxes, the 

gun fell from the boxes. The trial court ultimately credited the testimony of 

Officer McKeever in finding Appellant guilty. N.T. Trial, 2/3/16, at 13-52. 

We would also note that Appellant’s undeveloped forced abandonment 

argument was inconsistent with, and wholly undermines, his claim that he 

did not possess the gun. 
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Appellant contends that, since the officers did not see him carrying a 

gun, the Commonwealth had to prove constructive possession. Constructive 

possession required proof that he had the ability to consciously exercise 

control over the firearm and an intent to exercise such control.

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

Appellant maintains that the evidence demonstrated only that he was 

present in the house where the gun was found, and thus, constructive 

possession was not proven. 

This Court defines constructive possession as “a legal fiction, a 

pragmatic construct to deal with the realities of criminal law enforcement.”

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

omitted). It is “an inference arising from a set of facts that possession of 

the contraband was more likely than not.” Id. We examine the totality of 

the circumstances when determining whether a defendant had constructive 

possession of contraband, Commonwealth v. Coleman, 130 A.3d 38, 41 

(Pa.Super. 2015), and, in accordance with our standard of review, we view 

the evidence in the light most favorable to the Commonwealth as the verdict 

winner. 

We find the circumstantial evidence of Appellant’s physical possession 

of a firearm to be sufficient to support the convictions without resort to a 

constructive possession theory. The officers were responding to a report of 

gunshots in the area. Appellant met the description of the shooter. Officer 
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Carr observed a bulge in Appellant’s left cargo pants pocket and testified 

that when Appellant ran, he was crouched over and holding his left pocket as 

if there was something heavy inside that he wanted to keep from swinging 

as he was running. N.T. Trial, 2/3/16, at 15-17. The officer believed the 

bulge was a gun. We find the officer’s testimony to be circumstantial 

evidence that Appellant possessed a firearm on the street in Philadelphia, 

and it was corroborated by the following. 

The officer described how Appellant entered the house, ran upstairs, 

and disappeared behind a white curtain on the second floor. The officer 

heard a heavy thud, Appellant reappeared, but no longer had a bulge in his 

left pants pocket. Id. at 21-23. A loaded firearm was found on the floor 

behind the curtain. Id. at 23-24; 38.

Based on the foregoing, the trial court found the evidence sufficient to 

prove beyond a reasonable doubt that Appellant “had possessed a concealed 

firearm on a public street.” Trial Court Opinion, 4/13/17, at 9. The record 

supports the trial court’s finding. The observed bulge in Appellant’s cargo 

pants pocket, coupled with his flight from police, the loud thud when 

Appellant went behind the curtain, and the lack of the bulge when he 

reappeared from behind the curtain, support the trial court’s finding that 

Appellant possessed the firearm on the street, but voluntarily abandoned it 

when he was in the residence. Thus, although Appellant did not have the 

firearm on his person when he was arrested, the evidence supports the trial 
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court’s finding that he had previously physically possessed the firearm.

Appellant’s sufficiency claim is, therefore, without merit. 

We now turn to Appellant’s suppression claim. Appellant argues that 

the lower court made no finding of probable cause and exigent 

circumstances that would justify the warrantless entry of the residence. 

Commonwealth v. Bowmaster, 101 A.3d 789, 792 (Pa.Super. 2014). 

Rather, he contends that the trial court erroneously found that reasonable 

suspicion was sufficient for the warrantless entry of the home and search of 

Appellant. He also contends that the lower court erred in finding that the 

anonymous tip, coupled with Appellant’s flight, were sufficient to provide the 

requisite reasonable suspicion for an investigatory stop.4

In addressing a challenge to the denial of a suppression motion, 

Our standard of review . . . is limited to determining whether the 

factual findings are supported by the record and whether the 

legal conclusions drawn from those facts are correct. We are 

bound by the suppression court’s factual findings so long as they 

are supported by the record; our standard of review on 

questions of law is de novo. Where, as here, the defendant is 

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4 The Commonwealth contends that Appellant waived his suppression claim 

based on the warrantless entry of the residence as it was not properly 

preserved in his 1925(b) statement. Although we find some merit in the 

Commonwealth’s position, we decline to find the issue waived as the 

unlawfulness of the warrantless entry was alleged below and alluded to in 

Appellant’s concise statement. Herein, the trial court found the warrantless 

entry to be lawful. We suspect that Appellant’s failure to specifically 

challenge that finding based on a lack of probable cause and exigent 

circumstances explains why the trial court did not specifically address those 

issues in its Rule 1925(a) opinion. Nonetheless, we find the record sufficient 

to enable us to conduct the proper review. 
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appealing the ruling of the suppression court, we may consider 

only the evidence of the Commonwealth and so much of the 

evidence for the defense as remains uncontradicted. Our scope 

of review of suppression rulings includes only the suppression 

hearing record and excludes evidence elicited at trial. 

Commonwealth v. Singleton, 169 A.3d 79, 82 (Pa.Super. 2017) 

(citations omitted). We note that Appellant did not introduce any evidence 

at the suppression hearing. 

When addressing the right of individuals to be free from unreasonable 

searches and seizures, the following principles inform our review. There are 

three categories of interaction between police officers and citizens: 

These categories include (1) a mere encounter, (2) an 

investigative detention, and (3) custodial detentions. The first of 

these, [is] a “mere encounter” (or request for information), 

which need not be supported by any level of suspicion, but 

carries no official compulsion to stop or to respond. The second, 

an “investigative detention” must be supported by reasonable 

suspicion; it subjects a suspect to a stop and a period of 

detention, but does not involve such coercive conditions as to 

constitute the functional equivalent of an arrest. Finally, an 

arrest or “custodial detention” must be supported by probable 

cause.

Commonwealth v. Thomas, -- A.3d --, 2018 Pa.Super. LEXIS 74, *5-6 

(Pa.Super. 2018) (citations omitted). It is well established that a police 

officer may conduct a frisk or pat-down of the person stopped if the officer 

has reasonable suspicion that criminal activity is afoot and that the person 

may be armed and dangerous. Id. at *9-10.

The instant case involves a warrantless entry of a residence. The law 

is well settled that, “probable cause alone will not support a warrantless 

search or arrest in a residence unless some exception to the warrant 
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requirement is also present.” Commonwealth v. Johnson, 68 A.3d 930, 

931 (Pa.Super. 2013). Consent or exigent circumstances must also be 

present to justify entry into a private home for such a purpose. Id. 

Furthermore, it is well established:

The existence or non-existence of probable cause is determined 

by the totality of the circumstances. The totality of the 

circumstances test requires a Court to determine whether the 

facts and circumstances which are within the knowledge of the 

officer at the time of the arrest, and of which he has reasonably 

trustworthy information, are sufficient to warrant a man of 

reasonable caution in the belief that the suspect has committed 

or is committing a crime. . . . Questions of probable cause do 

not entail certainties. Indeed, probable cause exists when 

criminality is one reasonable inference; it need not be the only, 

or even the most likely, inference. . . . Under the Fourth 

Amendment, we have long held that flight alone does not 

constitute probable cause for an arrest. Of course, . . . flight 

coupled with additional facts that point to guilt may establish 

probable cause to arrest.

Commonwealth v. Smith, 979 A.2d 913, 916-17 (Pa.Super. 2009) 

(citations omitted). 

A number of factors are considered in determining whether exigent 

circumstances exist, among them:

(1) the gravity of the offense, (2) whether the suspect is 

reasonably believed to be armed, (3) whether there is above and 

beyond a clear showing of probable cause, (4) whether there is 

strong reason to believe that the suspect is within the premises 

being entered, (5) whether there is a likelihood that the suspect 

will escape if not swiftly apprehended, (6) whether the entry was 

peaceable, and (7) the time of the entry, i.e., whether it was at 

made at night. These factors are to be balanced against one 

another in determining whether the warrantless intrusion was 

justified. Other factors may also be taken into account, such as 

whether there is hot pursuit of a fleeing felon, a likelihood that 

evidence will be destroyed if police take the time to obtain a 
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warrant, or a danger to police or other persons inside or outside 

the dwelling. 

Commonwealth v. Roland, 637 A.2d 269, 270-71 (Pa.Super. 1994) 

(citations omitted); see also Commonwealth v. Johnson, 68 A.3d 930

(Pa.Super. 2013). 

This Court has previously determined that “[w]arrantless entry into a 

dwelling, and a subsequent seizure of items found therein, is permissible 

where the police are in ‘hot pursuit’ of a fleeing felon. Of course, the police 

must have probable cause to believe that the individual they are pursuing 

has committed a crime.” Commonwealth v. Dennis, 612 A.2d 1014, 1015 

(Pa.Super. 1992) (finding probable cause and exigent circumstances for 

police to follow two men into residence without a warrant where officers 

witnessed the men exchange of cash and small objects at door of location 

that was subject of drug-related complaints; the men fled into the nearby 

house when approached by police, and police witnessed them throwing 

substances later determined to be drugs out the window). 

The Commonwealth maintains that the police officers had little choice 

but to follow Appellant into the home. Shots had been fired in the area. The 

police believed Appellant was armed, but they had no information whether 

Appellant had shot someone or been involved in a shooting. They had no 

means of knowing whether it was his home. The Commonwealth cites 

Commonwealth v. Davido, 106 A.3d 611, 622-24 (Pa. 2014) (approving 

warrantless entry of residence where reasonably necessary to respond to 
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danger posed to occupants), in support of their position that the police 

would have “inexcusably neglected their duties had they failed to follow 

[Appellant] through the [unlocked] front door and up the stairs.” 

Commonwealth’s brief at 10. 

The trial court found that the warrantless entry herein was lawful and 

denied Appellant’s motion to suppress on that ground. We are presented 

with a mixed question of law and fact. While we are bound by any factual

findings that are supported by the record, we owe no deference to the legal

conclusions drawn by the trial court, and we review the latter de novo.

Commonwealth v. Jacoby, 170 A.3d 1065, 1081 (Pa. 2017). 

Based upon the totality of the circumstances, we find that probable 

cause and exigent circumstances existed when the police followed Appellant 

into the residence in hot pursuit.5 The police officers were patrolling the 

1300 block of North Myrtlewood Street, a high crime area,6in response to a 

report of gunshots. Within less than a minute of receiving the dispatch and 

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5

 According to Appellant, the residence he entered belonged to his aunt. He 

was merely attending a barbecue there. The Commonwealth did not 

question whether he had standing to challenge the legality of the 

warrantless entry and search of that residence. 

6

 In support of the Commonwealth’s position that this was a high crime 

area, Officer Carr testified that “within a few weeks [they] had served a 

warrant with the field unit. Within a block or two there [they] recovered 

firearms and drugs from that location. . . . And in that area [they] had also 

had a recent rise of shootings. [They] had a homicide within a month or two 

of that.” N.T. Suppression Hearing, 12/07/15, at 26. 
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the description, Officer Carr observed Appellant, who matched the 

description of the suspect, sitting on steps in the area of the reported 

gunshots. When Officer Carr stopped the marked police car, Appellant 

jumped up, grabbed a bulge in his pants pocket, and fled. Based on the 

manner in which Appellant was holding the bulge, the officer believed it to 

be a firearm. In his experience, “when somebody runs with a bundle of 

drugs, whatever it is, there’s a completely different weight to it than a 

firearm of the same size.” N.T. Suppression Hearing, 12/07/15, at 16. In 

light of Officer Carr’s knowledge and experience, and the circumstances at 

the time, a man of reasonable caution would believe that Appellant was 

committing a crime. Thus, we find that Officer Carr had probable cause to 

enter the residence. 

However, our analysis does not end there. We must also determine 

whether there were exigent circumstances. The offense involved a firearm 

and the police had reason to believe Appellant was armed. The police 

entered in hot pursuit of Appellant. Officer Carr expressed concern for the 

safety of individuals inside the home, as he had no way of knowing whether 

Appellant lived at that address. The officers’ entry into the residence 

occurred during the evening hours, but prior to sundown, and it was 

peaceable. We find that the suppression court’s conclusion that the entry 

was lawful was supported by facts establishing that Officer Carr had 
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probable cause and exigent circumstances to enter the residence without a 

warrant.7 

Finally, Appellant cites Commonwealth v. Matos, 672 A.2d 769, 771 

(Pa. 1996), in support of his contention that the gun should have been 

suppressed because it was forcibly abandoned during his flight to escape 

unlawful police conduct. The suppression court determined, however, that 

Appellant’s flight was unprovoked, and that he voluntarily abandoned the 

weapon inside the home. N.T. Suppression Hearing, 12/7/15, at 61-62. We 

agree. Furthermore, as discussed supra, the seizure of Appellant was lawful. 

Thus, the forcible abandonment theory has no traction on the facts herein. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/14/18

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7 Appellant did not challenge the search of the area behind the curtain.