Opinion
J-S11006-14 No. 2515 EDA 2012
05-02-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. WILLIAM COOPER, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered August 16, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004768-2011
BEFORE: BENDER, P.J.E., WECHT, J., and STRASSBURGER, J. MEMORANDUM BY BENDER, P.J.E.:
Retired Senior Judge assigned to the Superior Court.
Appellant, William Cooper, appeals from the judgment of sentence of an aggregate term of 6 - 23 months' incarceration and 9 years' probation, imposed following his convictions for two firearm offenses and possession of drug paraphernalia. In this appeal, Appellant claims that police searched his property with an unlawful search warrant, that the trial court erred in admitting testimony suggesting that a witness had been threatened, and that the evidence presented at trial was not sufficient to sustain his convictions. After careful review, we affirm.
The trial court summarized the facts adduced at Appellant's trial and suppression hearing as follows:
Appellant purchased the property at 6039 Buist Avenue twelve to fifteen years ago. Prior to purchase, the home was partially converted into a downstairs storefront and two upstairs residences. The conversion added a second upstairs kitchen and two additional water meters. Appellant held two permits from Licensing and Inspection. One was a use permit for a first-floor hair salon. The other was a building permit for two-second floor apartments. Appellant was not operating a hair salon. He used the first floor for throwing parties of all kinds.Trial Court Opinion (TCO), 5/28/2013, at 1-2.
Appellant maintained that 6039 Buist Avenue was a rental property and that he resided in New Jersey. He drew a diagram of the property that delineated four apartments. The diagram indicated that the first floor housed apartments A and B and the upstairs housed C and D. Neither A nor B had a kitchen and one of these lacked a bathroom. Appellant provided a month-to-month lease for apartment A dated January 1, 2009. There were no other current leases.
Tamika Lovette knew Appellant as the proprietor of a speakeasy at 6039 Buist Avenue. In early February 2011, Lovette spent the entire weekend with Appellant. She gained entry to the property by pressing a small, white doorbell. Lovette spent most of the weekend in an upstairs bedroom, but she also fixed drinks from the downstairs bar. Appellant did not restrict her from any portion of the property. During her stay, the interior doors were not labeled as apartments and were unlocked.
On February 23, 2011, at 6:00 p.m., Lovette arrived at 6039 Buist Avenue. She brought her sister, Rasheeka Talley and Talley's boyfriend, Anthony Showell. This was Talley's fourth visit to the speakeasy. Showell remained inside his truck while Lovette knocked on the front door with Talley beside her. Appellant answered the door and Lovette asked if Talley could use the bathroom. Appellant let both women into the house. Talley walked up the stairs to the second floor.
Before Talley reached the bathroom there was a knock on the front door. Showell was standing outside. Appellant yelled "you bitches, you all try to rob me." Talley came down the stairs into the vestibule. As the argument escalated, Talley and Appellant moved closer together. Lovette positioned herself between Talley and Appellant, asking them both to calm down. Appellant raised a small silver handgun just over Lovette's head
and pointed it at Talley. Only the gun barrel was visible to Lovette. Appellant fired twice without striking anyone. Both sisters ran to Showell's truck.
Shortly after 6:00 p.m., Officers Ivy and Nock arrived at the property in response to a radio call. They went to the front door. Officer Murphy arrived and went to the back door. There were one or two additional marked cars and a few other officers present as well. Ivy knocked repeatedly before Appellant leaned out of a second floor window. Appellant took an additional ten minutes to open the front door. Officers conducted a protective sweep of the house while Appellant was taken into custody. In the vestibule, Ivy saw two spent shell casings from a gun. On the second floor, he saw a gun holster on a bed. All interior doors were unlocked.
At 11:30 p.m. that night, Officer Weldon arrived with a search warrant. In preparing the warrant, she searched the property records for 6039 Buist Avenue. The address was listed as a single dwelling. At 11:40 p.m., Weldon began the search. She entered through the front door and stopped in the vestibule. On her right was a living room with a small bar, followed by an office. In this living room she found a long rifle. To Weldon's left was a room with a pool table and speakers. On top of a speaker, she found a yellow-tinted bag containing marijuana.
Weldon proceeded to the second floor, where the doors were unlabeled and unlocked. At the top of the stairs was a bathroom. Next to the bathroom was a bedroom. In this bedroom, tucked underneath the bed pillow was a sawed off rifle. Inside the closet was a small, silver handgun taped inside a bed sheet. The serial number of the handgun was partially obliterated. There were five rounds of ammunition inside the gun — one in the chamber and four additional rounds. Near the bedroom was a small living area with file cabinets. Inside a file drawer, there was a large plastic bag of marijuana and numerous empty packets.
Weldon continued the search and next entered into a larger living room. Inside of that living room was a couch and loveseat. Between the couch cushions were two small packets of cocaine. There was also a bottle of Promethazine on the loveseat. In the nearest kitchen, there were 32 rounds of ammunition inside a cabinet. Weldon noticed Appellant's mail throughout the home. The search ended at 2:00 a.m.
The Commonwealth charged Appellant with numerous offenses related to the incident involving Lovette, Showell, and Talley, as well as drug and firearm offenses arising out of the subsequent search of 6039 Buist Avenue. Appellant filed a motion to suppress the contraband discovered during that search, which was denied by the trial court. On July 5, 2012, the jury convicted Appellant for possessing a firearm with an altered manufacturer's number, in violation of 18 Pa.C.S. § 6110.2, and for possessing drug paraphernalia, in violation of 35 P.S. § 780-113(a)(32). The court convicted Appellant for possessing a firearm while being prohibited from doing so pursuant to 18 Pa.C.S. § 6105. Appellant was sentenced to concurrent terms of 6 - 23 months' house arrest to be followed by 8 years' probation for his firearms offenses, and a consecutive year of probation for his paraphernalia conviction. Appellant filed a timely notice of appeal. He now presents the following claims for our review:
Appellant elected to have some of the charges levied against him decided by a jury and others decided by the trial court.
1. The trial court erred in denying [Appellant's] Motion to Suppress Physical Evidence where the police violated [Appellant]'s right to privacy pursuant to the United States and Pennsylvania Constitutions when they searched [his] property with an unlawful search warrant.Appellant's Brief at 4.
2. The trial court erred in admitting Rasheeka Talley's testimony that she failed to appear at the preliminary hearing because she had been threatened and was scared, in violation of Pa. Rule of
Evidence 404(b)(2) and (b)(4), where said testimony did not meet any exceptions, notice of such testimony was not provided to the defense, the testimony was irrelevant, and the prejudice far outweighed any probative value.
3. The evidence was insufficient to sustain the conviction for Possession of a Firearm with Manufactured Numbers Altered where the evidence did not prove, beyond a reasonable doubt, that [A]ppellant constructively possessed any of the firearms.
4. The evidence was insufficient to sustain the conviction for Drug Paraphernalia where the evidence did not prove, beyond a reasonable doubt, that [A]ppellant constructively possessed any drug paraphernalia.
Appellant first posits that the warrant issued to search his property was unlawful and, therefore, the fruits of that search should have been suppressed by the trial court. Specifically, Appellant asserts that the "search and resulting seizure was unlawful because the warrant was insufficient on its face for failing to specifically describe the individual apartments which were searched within the property." Appellant's Brief at 17. We begin by addressing the Commonwealth's argument that Appellant has waived this claim due to his failure to raise it in his Pa.R.A.P. 1925(b) statement of errors complained of on appeal (concise statement).
In his brief, Appellant argues that: "The search warrant executed at 6039 Buist Avenue was insufficient because it did not specify with particularity the area to be searched and is thus unlawful. As a result, the search and seizure was unlawful and the evidence should have been suppressed. This Court must reverse." Appellant's Brief at 19. However, in Appellant's concise statement, he set forth his claim as follows: "The court erred in denying Appellant's pre-trial Motion to Suppress physical evidence where the police violated Appellant's right to privacy articulated in the United States and Pennsylvania Constitutions where they searched Appellant's residence prior to obtaining a lawful search warrant." Concise Statement, 1/16/13, at 2 (emphasis added). The Commonwealth claims that Appellant's concise statement presupposes the legality of the warrant, whereas in his brief, Appellant contends that the warrant itself was unlawful. Thus, the Commonwealth contends Appellant is raising a different issue in his brief than what he had raised in his concise statement. We disagree.
The core issue raised by Appellant in both instances concerns the sufficiency of the description of the property to be searched. This was, in fact, the issue litigated during the suppression hearing, as well as the subject of the trial court's Rule 1925(a) opinion. Accordingly, we conclude that the discrepancy between the manner in which Appellant raised this claim in his concise statement and brief is superficial and does not, therefore, warrant waiver.
We now turn to the merits of Appellant's suppression claim, and apply the following standard of review:
Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings areCommonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012) (quoting Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa. Super. 2012)).
supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.
The Warrant Clause of the Fourth Amendment categorically prohibits the issuance of any warrant except one "particularly describing the place to be searched and the persons or things to be seized." The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. Thus, the scope of a lawful search is "defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase." United States v. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982).Maryland v. Garrison, 480 U.S. 79, 84-85 (1987) (footnote omitted).
Here, Appellant complains that the police were on notice that the property searched was not a single family residence. He contends that the City of Philadelphia License and Inspection Department records indicated that "the property was permitted to contain a grocery store and two (2) apartments." Appellant's Brief at 18 (citing N.T., 7/3/12, at 98). He also argues that "the unique layout of the entire building clearly indicated that it was not a single family residence." Id.
The trial court conducted a detailed analysis of Appellant's claim as follows:
Where pertinent information is not reasonably available to police, it does not create notice. [ Commonwealth v. ] Simpkins, 36 A.3d [623,] 627 [(Pa. Super. 2012)]. Exterior or interior modifications must be readily apparent in establishing that one residen[ce] is separate from another. Id. In Simpkins, a search warrant was upheld where a property lacked telling structural modifications for privacy. Id. at 626. In Simpkins, a vestibule led directly into a large residential space, without the use of any interior doors. Id. at 625. Also, there were no additional mailboxes, apartment demarcations, or resident names to alert police of the existence of separate living units. Id. at 626. The Simpkins Court found that the police had a reasonably objective belief that the property was being used as a single dwelling. Id. at 627.TCO at 5-7.
Here, as in Simpkins, the police lacked notice that multiple units existed. A search of property records showed the address as a two-story masonry structure and did not indicate separate apartments. There were no interior doors to create privacy between the first and second floors. There were no additional street addresses or labeled entrances. Nor were there deadbolt locks, resident names, or apartment demarcations in the property. Although a month-to-month lease appears to have existed, it was not reasonably available to police. No modifications were made to separate one residen[ce] from another. Thus, Officer Weldon's belief that the property was a single residence, as specified in property records, was objectively reasonable based on the available information.
Further, the facts should be analyzed in a commonsense, as opposed to a hypertechnical, manner. [ Commonwealth v. ] Andujar, 399 A.2d [1074,] 1076 [(Pa. Super. 1979)]. The property at issue in Andujar was partially converted but no longer being used in a segregated manner at the time it was searched. Id. at 1075. The dwelling was an ordinary house
with a single front door, street address, and mailbox. Id. Down an alleyway, there was an unlabeled back door to the home, but not a separate entrance. Id. Inside the home there were two kitchens — one on each floor. Id. The floors were connected through an open doorway. Id. The Andujar Court found that the police had a reasonable belief that the property was being used as a single dwelling, and that prior structural modifications did not invalidate the warrant given that the defendant appeared to have free rein within. Moreover, the mere presence of separate gas and electric meters did not change the Superior Court's analysis or ultimate conclusion. Id. at 1075-76.
As in Andujar, Appellant purchased a partially converted home that contained two kitchens. Both properties, despite prior attempts at conversion, were no longer segregated either physically or by their use. And in both Andujar and the case sub judice there was free passage between the once-separated units. Indeed, when Appellant leaned out of the second floor window before appearing at the front door, he demonstrated access to at least one apartment upstairs. Further, during her weekend stay, Lovette roamed freely through the property. Talley also testified to a single, open dwelling. Neither the sisters nor the police saw signs of separate residences such as deadbolt locks, tenant names, or apartment demarcations. No hair salon existed downstairs, and liquor bottles and Appellant's mail were strewn throughout the home. Thus, Officer Weldon's belief that the property was a single residence, as indicated in property records, was reasonable.
The presence of two doors and multiple water meters do not alter this assessment. Indeed, it is not uncommon for single dwellings to have a second door. Furthermore, while multiple water meters suggest the possibility of separate bills, they do not substantiate current rentals. In any case, the police indicated that they did not notice multiple water meters in the back of the property prior to seeking a search warrant, and this Court is not aware of any authority suggesting that they are required to do so.
In addition, under Appellant's own legal theory, he lacks a reasonable expectation of privacy in many of the areas searched within the property. In [ Commonwealth v. ] Yucknevage, [390 A.2d 225 (Pa. Super. 1978),] the Superior Court held that a defendant who lived in the basement of a residence lacked standing8 to contest the search of rooms being rented by other
tenants within the home. 390 A.2d at 229. Therefore, even if the warrant was required to specify separate units and failed to do so, the defendant could not claim a legally cognizable reasonable expectation of privacy in a number of the areas searched under his own reasoning. Id. In fact, Appellant claimed not to be the resident of any individual unit. Thus, Appellant cannot possess a reasonable expectation of privacy in another's apartment.
8 Whether ... Appellant lacks a reasonable expectation of privacy as opposed to standing is a distinction which does not amount to a legal difference under the facts of this case.
We agree with the trial court's cogent analysis. The trial court's factual findings are supported by the record and its legal conclusions are free of error. McAdoo, 46 A.3d at 783-84. Accordingly, we discern no error in the trial court's denying of Appellant's motion to suppress the fruits of the contested search.
We recognize that Appellant's argument regarding the City of Philadelphia License and Inspection Department's record is not specifically addressed by the trial court. That record was offered into evidence through Appellant's testimony during the suppression hearing. N.T., 7/3/12, at 97-99. Nevertheless, there is no evidence that the record was "reasonably available to police" at the time the warrant was issued. Simpkins, 36 A.3d at 627. Furthermore, although the record itself was not contested, the inference that the record created - that the property was not a single residence - was contradicted by the bulk of the Commonwealth's evidence. See McAdoo, 46 A.3d at 783 ("Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole.") (emphasis added).
Next, Appellant contends that the trial court erred in admitting Talley's testimony that she had been threatened or scared in response to a question as to why she had not appeared at Appellant's preliminary hearing. Both the trial court and the Commonwealth assert that this claim, too, has been waived.
This matter arose during Appellant's cross-examination of Talley, when the following interchange occurred between Talley and defense counsel:
Q [Mr. Meade, defense counsel]. And as you said before, you gave the police your contact information; isn't that correct?N.T., 7/2/12, at 93-95 (emphasis added).
A [Talley]. Yes.
Q. And you had received subpoenas on this matter for previous listings, previous hearings during the year of 2011 about this case; isn't that correct?
A. Yes.
Q. And -- but you didn't come to court on April 26th when the preliminary hearing was called; isn't that correct?
A. Yes.
Q. And that's despite, you know, this, you know, this anger you feel about this circumstance that you're expressing to the jury today; isn't that correct?
A. Could you repeat that?
Q. Let me simplify it.
A. You go, please.
Q. I mean despite, you know, you're telling me that Mr. Cooper tried to shoot at you.
A. No, he shot at me, I didn't say try to.
Q. Well, that is what you told the jury, that he was shooting at you.
A. Right.
Q. Yet, you didn't think that it was important or necessary to come to a preliminary hearing on April 26th, 2011; isn't that correct?
A. I -- no, I thought it was very important. But when I havefriends of mine calling me telling me that his sons are looking for me and he knows what I look like and I don't know them --
MR. MEADE: Objection. Hearsay, Your Honor.
THE COURT: Overruled, the jury --
THE WITNESS: I can finish answering?
THE COURT: The jury cannot consider that answer with respect to whether the defendant had sons that may have been looking for her, but they can consider that with respect to her possible state of mind at that time.
MR. MEADE: Well, Your Honor, I'll be asking her yes or no questions, questions that should elicit a yes or no answer and I'm going to object and say that again, you know, all of that should be struck because, you know, if there is something to come out as any kind of explanation that can come out in redirect.
THE COURT: It can. Sometimes it just naturally comes out [i]n the course of answering questions. Ma'am, if questions seem to ask for a yes or no and you know the answer to that is yes or no, just try to just answer the question yes or no. The attorney for the Commonwealth can follow up if he is looking for additional information. Okay? You may proceed.
THE WITNESS: Okay.
MR. MEADE: Thank you, Your Honor.
Appellant now claims that Talley's response, emphasized above, should not have been admitted into evidence for any purpose, because:
This testimony did not meet any exceptions provided for under [Pa.R.E.] 404(b)(2), it was non-responsive to the question asked on cross-examination and therefore irrelevant to the issue before the jury, and the Commonwealth did not provide the defense with any notice of the alleged threats. Moreover, by portraying [Appellant] as having threatened injury in retaliation for [Talley's] testifying against him, the resulting prejudice far outweighed any probative value.Appellant's Brief at 20.
Thus, Appellant asserts the testimony was inadmissible based upon the following four arguments: 1) it did not fit an exception to Pa.R.E. 404(b)(2); 2) it was unresponsive to defense counsel's question; 3) it was irrelevant to the issue before the jury; and 4) the Commonwealth failed to provide notice that the witness had been threatened. With respect to arguments 1, 3, and 4, it is clear from the record that Appellant did not preserve these issues when contesting the admission of Talley's response at trial. At best, Appellant preserved objections based upon hearsay and the fact that the answer was unresponsive. At no point did counsel contend that Talley's testimony was more prejudicial than probative because it allowed bad acts evidence otherwise prohibited by Rule 404(b). Nor did counsel object on the basis that the testimony was irrelevant. Moreover, there was no objection premised upon the Commonwealth's failure to provide Appellant notice of the threats made against Talley. Accordingly, all three of these arguments have been waived. See Commonwealth v. Arroyo, 723 A.2d 162, 170 (Pa. 1999) ("It is beyond cavil that 'if the ground upon which an objection is based is specifically stated, all other reasons for its exclusion are waived....'") (quoting Commonwealth v. Stoltzfus, 337 A.2d 873, 881 (Pa. 1975)).
However, Appellant has abandoned his hearsay objection on appeal.
Rule 404(b) prohibits the admission of "[e]vidence of a crime, wrong, or other act" to "prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Pa.R.E. 404(b)(1).
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Although not explicit in setting forth the claim when stating his objection to the trial court, defense counsel did argue that Talley's response was unresponsive to his question. Out of an abundance of caution, therefore, we will address the merits of that argument.
"The admissibility of evidence is solely within the discretion of the trial court and will be reversed only if the trial court has abused its discretion." Commonwealth v. Cunningham, 805 A.2d 566, 572 (Pa. Super. 2002), appeal denied, 573 Pa. 663, 820 A.2d 703 (2003). "An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record." Commonwealth v. Cameron, 780 A.2d 688, 692 (Pa. Super. 2001).Commonwealth v. Dent, 837 A.2d 571, 577 (Pa. Super. 2003).
Talley's answer was responsive to the line of questioning pursued by defense counsel. During the course of Appellant's cross-examination of Talley, defense counsel was attempting to call into question her credibility due to her failure to appear during previous court dates including Appellant's preliminary hearing. Talley's answer indicated that her failure to appear previously was due to the fact that she felt threatened, and not because the allegations she made against Appellant were fictitious. This was fair response to the questions asked by defense counsel. Appellant's complaint that his question sought only to elicit a yes or no answer from Talley is of no moment. "When ... defense counsel puts a question to a witness that cannot be answered fairly without a statement of fact as explanation, then the explanation is deemed to be invited by counsel, and complaint that it was added to the answer cannot be made." Commonwealth v. Frank, 398 A.2d 663, 672 (Pa. Super. 1979). Thus, to the extent that Appellant's claim has not been waived, it is meritless. Consequently, we discern no abuse of discretion in the manner in which the trial court addressed the matter.
Appellant's final two claims concern the sufficiency of the evidence. Appellant asserts that the Commonwealth failed to prove, beyond a reasonable doubt, that he constructively possessed the firearms and drug paraphernalia. Our standard of review of sufficiency claims is well-settled:
A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim[,] the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal citations omitted).
Here, Appellant was not accused of literally possessing the firearms or paraphernalia in question. Instead, Appellant was prosecuted for these possessory offenses under the doctrine of constructive possession. Our Supreme Court has defined this legal principle as follows:
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." Commonwealth v. Davis, 444 Pa. 11, 15, 280 A.2d 119, 121 (1971). We subsequently defined "conscious dominion" as "the power to control the contraband and the intent to exercise that control." Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134 (1983).Commonwealth v. Mudrick, 507 A.2d 1212, 1213 (Pa. 1986).
...
To aid application, we have held that constructive possession may be established by the totality of the circumstances. Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974).
Addressing Appellant's two sufficiency claims together, the trial court stated:
In the instant case, the jury clearly rejected Appellant's argument that he was only the landlord and that he did not have access to the rooms in which weapons and contraband were recovered. While Appellant's actual possession of much of the contraband could not be established, circumstantial evidence created a strong inference of constructive possession. Paraphernalia and weapons were strewn throughout the home, including one gun found downstairs and two more upstairs. The guns upstairs were found in one bedroom and bullets were found in the kitchen across the hall. Paraphernalia was found downstairs and on both sides of the once partially converted home.TCO, at 8-9. We agree.
Moreover, Appellant had unfettered access to all of the areas in which weapons and contraband were recovered. The jury could have reasonably found Appellant was the sole resident of the property in late February of 2011 based upon the fact that: (1) the interior doors were unlocked; (2) Appellant appeared in a second floor window before answering the door; and, (3) Appellant slept in an upstairs bedroom. Such access demonstrated Appellant's power and intent to control the contraband. Moreover, despite the fact that Appellant was acquitted of possession of an instrument of a crime, the jury's verdicts on the firearm possession charges were consistent with a finding that he carried a gun on his person on February 23, 2011. See Commonwealth v. Bricker, 580 A.2d 388 (Pa. Super 1990) (an acquittal cannot be interpreted as a specific finding in relation to some of the evidence"). Thus, the totality of the circumstances provided sufficient evidence that Appellant constructively possessed the paraphernalia and weapons.
The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced is free to believe all, part or none of the evidence.Commonwealth v. Bostick, 958 A.2d 543, 560 (Pa. Super. 2008) (quoting Commonwealth v. Smith, 956 A.2d 1035-36 (Pa. Super. 2008) (en banc)).
The primary thrust of Appellant's sufficiency arguments is that the paraphernalia and firearm in question were discovered in portions of his property that he contends were not under his control. While Appellant produced some evidence that his property contained separate residences, the Commonwealth produced evidence that Appellant had dominion over the entire property. Therefore, Appellant's arguments go to the weight of the evidence and not its sufficiency. The jury was free to believe the Commonwealth's evidence and reject Appellant's. See id. Appellant's sufficiency claims are meritless.
Judgment of sentence affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary