Opinion
1913 EDA 2020 J-A15045-21
09-27-2021
COMMONWEALTH OF PENNSYLVANIA v. JERMAINE JOHNSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered September 6, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51- CR-0002405-2015
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM
MUSMANNO, J.
Jermaine Johnson ("Johnson") appeals from the judgment of sentence entered following his conviction of persons not to possess, use, manufacture, control, sell or transfer firearms ("persons not to possess"). We affirm.
The trial court summarized the relevant history underlying the instant appeal as follows:
On January 28, 2015, at 6:55 in the morning, [o]fficers responded to 9-1-1 calls for reported gunshots around 6058 Regent Street in the city and county of Philadelphia. Outside [of] the property, [o]fficers found shell casings and a live rifle round. Upon knocking on the door, an older occupant also named Mr. Johnson [("Mr. Johnson")], of no relation to [Johnson], opened the door and [o]fficers saw an additional live rifle round[, ] identical to the one outside[, ] behind Mr. Johnson, inside [of] the residence.
Officers then entered the residence, which they learned to be a boarding house, and discovered [Johnson] upstairs in the bathroom with his girlfriend, Antionette Roberts [("Ms. Roberts")], in the shower. [Johnson] and Ms. Roberts then indicated an intention to enter the bedroom on the first floor, in the front of the building[, ] to change their clothing so that they could leave the building. [An officer] asked them if the police could conduct a sweep of the bedroom to secure the room before they entered to change their clothing. [Johnson] and Ms. Roberts consented to the search of the room. The door had previously been unlocked and opened.
Upon [a] search of the room, a nine-millimeter black handgun was recovered. The gun was recovered from a bag inside a small mini-fridge inside the bedroom. At this time, the handgun was secured in the bedroom and a search warrant [was applied for, received and] executed. [Johnson subsequently was charged with the above-described offense.]
[Johnson] appeared before [the trial court] on January 3, 2018, and April 27, 2018[, ] for a waiver trial, at the conclusion of which he was found guilty of [violating] Uniform Firearm Act § 6105, persons not to possess....Trial Court Opinion, 12/28/20, at 1-2 (unnumbered) (citations omitted).
The trial court subsequently sentenced Johnson to three and one-half to seven years in prison, followed by two years of probation. Johnson timely filed a Notice of Appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
Johnson presents the following claims for our review:
A. Did the [trial] court err in admitting the hearsay statements of [Ms.] Roberts and [Mr. Johnson] regarding the rooms where each person stayed in the house in question?
B. Was the evidence insufficient to sustain [Johnson's] conviction for [persons not to possess] in that the evidence failed to establish beyond a reasonable doubt that [Johnson] constructively possessed the firearm in question[, ] or was even aware of the presence of the firearm?Brief for Appellant at 4.
Johnson first claims that the trial court improperly admitted the hearsay statements of Ms. Roberts and Mr. Johnson regarding the location of each resident's rooms in the boarding house. Id. at 9. Johnson asserts that, "[i]n allowing in the hearsay statements of the non-testifying witnesses, the trial court disregarded the rules against hearsay testimony and the accused['s] right to confront adverse witnesses." Id. Johnson argues that
[t]he statements of the older Mr. Johnson were clearly hearsay. Although the words of the older Mr. Johnson were never used, the indirect implication of his statements [was] used as substantive evidence in this matter. Specifically, the inference that the older Mr. Johnson only had access to the upper room[, ] and lacked access to the room on the first floor, was made available by the trial court allowing the officer to state that he searched a specific room based upon a statement made by the gentle[man] who opened the door.Id. at 11. Johnson argues that this evidence went "directly to access and control" of the firearm at issue. Id. According to Johnson, because Mr. Johnson did not testify at trial, Mr. Johnson could not be impeached as to his access to the room on the first floor. Id. Johnson asserts that the reference to Mr. Johnson's statement was substantive in nature and should have been excluded as hearsay. Id. Further, Johnson argues that the admission of this evidence caused him prejudice. Id. at 11-12.
In the Argument section of his brief, Johnson provides no further argument regarding the alleged hearsay statements of Ms. Roberts.
In its Opinion, the trial court set forth the relevant law, addressed Johnson's claim, and concluded that it lacks merit. See Trial Court Opinion, 12/28/20, at 4-6 (unnumbered). We agree with the sound reasoning of the trial court, as set forth in its Opinion, and affirm on this basis with regard to Johnson's first claim. See id.; see also Commonwealth v. Fitzpatrick, 2021 Pa. LEXIS 3164, at *2 (Pa. filed July 23, 2021) (recognizing that, "if the statement is intended to be used for some purpose other than establishing its truth-i.e., to show the effect that the statement had on the listener[, ] … then it would not be hearsay and, consequently, would be admissible for that non-truth purpose, subject to any other applicable evidentiary rules."); Commonwealth v. Dent, 837 A.2d 571, 582 (Pa. Super. 2003) (stating that trial judges, sitting as fact finders, are presumed to ignore prejudicial evidence in reaching a verdict, and to have disregarded inadmissible hearsay testimony).
Further, such evidence would be admissible to explain the officers' course of conduct. Commonwealth v. Estepp, 17 A.2d 939, 945 (Pa. Super. 2011) (recognizing that "an out-of-court statement offered not for its truth but to explain the witness's course of conduct is not hearsay and thus, is not excludable under the hearsay rule." (citation and internal quotation marks omitted)).
In his second claim, Johnson challenges the sufficiency of the evidence underlying his conviction of persons not to possess. Brief for Appellant at 12. Johnson argues that, because the firearm was not found on his person, the Commonwealth was required to prove that he constructively possessed the firearm. Id. at 13. Johnson asserts that the Commonwealth presented no evidence that he knew that a firearm was in the refrigerator, or even in the room. Id. at 14. According to Johnson, he provided unequivocal testimony that he did not live at the residence and would only stay there "from time to time." Id. Johnson points out that police found no clothing, shoes, identifications cards or any other evidence that he lived at the residence. Id. Further, Johnson directs our attention to the sworn Affidavit of Ms. Roberts that she, in fact, owned the weapon, and that Johnson did not live at the residence. Id. Johnson asserts that the Commonwealth solely relied on one piece of mail addressed to him at the residence, and his mere presence at the residence on the day in question. Id. at 14-15.
At trial, Philadelphia Police Detective Robert Conway ("Detective Conway") testified regarding his execution of the search warrant at 6058 Regent Street. N.T., 4/27/18, at 57. Detective Conway testified that he recovered a piece of mail addressed to Johnson at 6058 Regent Street address. Id. at 61. That piece of mail was from the District Attorney's Office. Id.
In reviewing a challenge to the sufficiency of the evidence,
[t]he standard we apply … is whether[, ] viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. 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 combined circumstances. 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 [finder] 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. Fabian, 60 A.3d 146, 150-51 (Pa. Super. 2013) (citation omitted). "This standard of deference is not altered in cases involving a bench trial, because the province of a trial judge sitting without a jury is to do what a jury is required to do." Commonwealth v. Lee, 956 A.2d 1024, 1027 (Pa. Super. 2008) (internal quotation marks and citation omitted).
To establish the crime of persons not to possess firearms, the Commonwealth must prove that the defendant was convicted of an offense enumerated under subsection (b) of the statute, and possessed, used, controlled, sold, transferred, or manufactured or obtained a license to use, control, sell, transfer, or manufacture a firearm. See 18 Pa.C.S.A. § 6105(a)(1).
Johnson does not dispute that he was convicted of an offense enumerated under subsection 18 Pa.C.S.A. § 6105(b). In reviewing whether the evidence established Johnson's possession of the firearm, we are cognizant that,
[w]hen contraband is not found on the defendant's person, the Commonwealth must establish "constructive possession," that is, the power to control the contraband and the intent to exercise that control. The fact that another person may also have control and access does not eliminate the defendant's constructive possession …. As with any other element of a crime, constructive possession may be proven by circumstantial evidence. The requisite knowledge and intent may be inferred from the totality of the circumstances.Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super. 2018) (citations omitted). "Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not." Id.
In its Opinion, the trial court addressed Johnson's claim and concluded that it lacks merit. See Trial Court Opinion, 12/28/20, at 6-8 (unnumbered). We agree with the sound reasoning of the trial court and affirm on this basis with regard to Johnson's challenge to the sufficiency of the evidence. See id.
Judgment of sentence affirmed.
Judge Bowes joins the memorandum.
Judge Stabile concurs in the result.
Judgment Entered.