Opinion
J-S48004-18 No. 240 EDA 2017
11-02-2018
COMMONWEALTH OF PENNSYLVANIA v. TYREESE SCOTT, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 12, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0004603-2014 BEFORE: DUBOW, J., MURRAY, J., and PLATT, J. MEMORANDUM BY DUBOW, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Tyreese Scott, appeals from the Judgment of Sentence entered by the Philadelphia County Court of Common Pleas after his convictions following a bench trial of Criminal Conspiracy (Carrying a Firearm Without a License), Persons Not to Possess Firearms, Carrying a Firearm Without a License, Carrying a Firearm in Public in Philadelphia, and Possession of a Small Amount of Marijuana. We affirm on the basis of the trial court's December 18, 2017 Opinion.
18 Pa.C.S. § 903; 18 Pa.C.S. § 6105; 18 Pa.C.S. § 6106; 18 Pa.C.S. § 6108; and 35 P.S. § 780-113(a)(31), respectively.
In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth the underlying facts. See Trial Court Opinion, filed 12/18/17, at 2-3. Briefly, at 11:15 P.M. on February 17, 2014, several Philadelphia police officers heard gunshots coming from the area of Thirteenth and Cambria Streets. Shortly thereafter, Police Officers Anthony Santulli and Brian Nolan watched a silver Pontiac with three occupants run through a stoplight and cross the intersection of Twelfth and Somerset Streets. The officers followed the Pontiac and turned on a spotlight directed at the vehicle. Officer Nolan observed Appellant in the rear passenger seat attempt to conceal a silver firearm in the light housing inside the roof of the car. The officers activated their lights upon seeing the firearm, but the Pontiac did not stop and a car chase ensued.
The officers followed the Pontiac for several blocks until the vehicle stopped suddenly and the three occupants fled on foot. After a brief foot chase, the officers apprehended and arrested the three men, including Appellant.
Officer Nolan observed three firearms in the light housing inside the roof of the car, the same location where he saw Appellant reaching earlier. After obtaining a search warrant for the Pontiac, the officers recovered the three operable firearms and thirteen small plastic baggies containing marijuana.
The green, leafy substance tested positive for marijuana.
The Commonwealth charged Appellant with one count each of Criminal Conspiracy (Carrying a Firearm Without a License), Persons Not to Possess Firearms, Carrying a Firearm Without a License, Carrying a Firearm in Public in Philadelphia, and Possession of a Small Amount of Marijuana.
Appellant requested a bench trial. At trial, Police Officers Santulli and Nolan testified, as well as Lieutenant Jose Medina, Detective Richard Bova, who had recovered the firearms from the vehicle with a search warrant, and Officer Lawrence Flagler, who had examined each firearm and determined that all three firearms were operable. The Commonwealth presented a certification that Appellant did not have a valid license to possess a firearm on the date of the incident. The parties stipulated that Appellant had a prior enumerated felony conviction that rendered him ineligible to possess a firearm for purposes of 18 Pa.C.S. § 6105.
Appellant also testified, admitting that he owned the Pontiac, he knew that the other occupants of the vehicle were armed, and he had initiated the high speed chase to avoid gun charges since he was on parole. Appellant also claimed that he was driving the vehicle that night, that he did not carry a firearm that night, and that the marijuana did not belong to him. N.T. Trial, 10/5/16, at 115-19, 135.
On October 5, 2016, the trial court convicted Appellant of all charges. On December 12, 2016, the court held a sentencing hearing at which Philadelphia Police Officer Gregory Wallace testified that, as part of his assignment with the Criminal Intelligence Unit and the Gun Violence Task Force, he believed that Appellant was associated with the Tenth and Thomson Street gang, and that a gang-related, retaliatory shooting had occurred between Appellant's gang and another rival gang the night of Appellant's arrest. The trial court sentenced Appellant to an aggregate term of six to twelve years' incarceration, followed by five years' probation.
The trial court had excluded some of this same evidence at trial. At sentencing, Appellant objected once during Officer Wallace's testimony to the prosecutor's factual mischaracterization of Appellant's incident as a "shooting" rather than as a gun possession case. N.T. Sentencing, 12/12/17, at 11. The sentencing court overruled this objection.
Appellant filed a timely Post-Sentence Motion, which the trial court denied on March 31, 2017.
On January 9, 2017, Appellant filed a Notice of Appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant filed his Notice of Appeal before the trial court had denied his Post-Sentence Motion, but we will not quash or remand this matter because the trial court eventually denied Appellant's Post-Sentence Motion. Commonwealth v. Samuel , 102 A.3d 1001, 1003 n.2 (Pa. Super. 2014).
Appellant presents three issues for our review:
[1.] Whether the trial court erred in finding Appellant guilty of Conspiracy to violate 18 Pa.C.S. § 6106 and Possession of a Small Amount of Marijuana because the evidence was insufficient to support the verdict for those charges[?]Appellant's Brief at viii (reordered).
[2.] Whether the trial court erred in denying Appellant's post-sentence motion for a new trial because the verdict was against the weight of the evidence[?]
[3.] Whether the trial court erred in permitting the Commonwealth to introduce speculative evidence relating to a shooting and [Appellant's] alleged gang affiliation at sentencing because the evidence was irrelevant, unsubstantiated, and unduly prejudicial[?]
Sufficiency of the Evidence
Appellant first challenges the sufficiency of the evidence supporting his convictions for Criminal Conspiracy (Carrying a Firearm Without a License) and Possession of a Small Amount of Marijuana. Appellant's Brief at 3-6. Appellant specifically avers that (1) the Commonwealth "did not introduce a certificate of non-licensure for any of Appellant's co-defendants" to support his Criminal Conspiracy conviction; and (2) "there was no evidence introduced that the substance in question was marijuana or any other controlled substance" because the Commonwealth did not introduce a seizure analysis or present any testimony or other evidence pertaining to the "substance." Appellant's Brief at 4-6.
"A claim challenging the sufficiency of the evidence is a question of law." Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000). "We review claims regarding the sufficiency of the evidence by considering 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." Commonwealth v. Miller , 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation marks and citations omitted). "Further, a conviction may be sustained wholly on circumstantial evidence, and the trier of fact—while passing on the credibility of the witnesses and the weight of the evidence—is free to believe all, part, or none of the evidence." Id. "In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for the fact-finder." Id.
Appellant was convicted of, inter alia, Criminal Conspiracy (Carrying a Firearm Without a License) and Possession of a Small Amount of Marijuana.
To sustain the conviction for Criminal Conspiracy, there must be proof beyond a reasonable doubt that the defendant "(1) entered into an agreement to commit or aid in an unlawful act with another person or persons, (2) with a shared criminal intent[,] and (3) an overt act was done in furtherance of the conspiracy. This overt act need not be committed by the defendant; it need only be committed by a co-conspirator." Commonwealth v. McCall , 911 A.2d 992, 996 (Pa. Super. 2006) (citation and quotation omitted). See also 18 Pa.C.S. § 903 (defining Criminal Conspiracy).
Section 6106 of the Crimes Code provides, in pertinent part, that "any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree." 18 Pa.C.S. § 6106(a)(1).
To sustain a conviction for Possession of a Small Amount of Marijuana, the Commonwealth was required to prove that Appellant knowingly or intentionally possessed an amount of marijuana less than 30 grams in weight. 35 P.S. § 780-113(a)(31). It is "well-established in this Commonwealth that the identity of illegal narcotic substances may be established by circumstantial evidence alone, without any chemical analysis of the seized contraband." Commonwealth v. Minott , 577 A.2d 928, 932 (Pa. Super. 1990).
Our review of the record, in the light most favorable to the Commonwealth as the verdict winner, indicates that the evidence was sufficient to support every element of the offenses beyond a reasonable doubt. The Honorable Donna M. Woelpper, sitting as the trial court, has authored a comprehensive, thorough, and well-reasoned Opinion, citing the record and relevant case law in addressing Appellant's sufficiency claims. See Trial Court Opinion, filed 12/18/17, at 5-6 (concluding that there is no merit to Appellant's sufficiency claims because (1) Officer Nolan testified that, shortly after hearing shots fired, he saw Appellant holding a silver firearm and stashing it in a light fixture in the vehicle where police later found marijuana, two other firearms, ski masks, and gloves; (2) Appellant did not have a license to carry a firearm and he was ineligible to possess a firearm due to a prior felony conviction; and (3) Appellant and his two co-conspirators fled from police in a high speed car chase to avoid gun charges, and simultaneously fled on foot). We, thus, affirm on the basis of the trial court's December 18, 2017 Opinion.
In addition, other circumstantial evidence established the substance was marijuana, including Detective Bova's observations and the property receipt indicating the substance tested positive for marijuana. N.T. Trial, 10/5/16, at 101-02; Commonwealth's Exhibit C-12 (property receipt No. 3144808).
We note that the elements of Criminal Conspiracy and Section 6106 only required the Commonwealth to prove that Appellant lacked a license. Appellant's unsupported proposition that the Commonwealth needed to introduce certificates of non-licensure for his co-defendants when they were not on trial in order to prove his part in the conspiracy to possess an unlicensed firearm is unavailing.
Weight of the Evidence
In his second issue on appeal, Appellant challenges the weight of the evidence because (1) "Appellant testified credibly at trial[,]" (2) "Appellant was never seen in possession of a firearm or controlled substance[,]" and (3) because of "the inconsistencies in the testimony of the officers[.]" Appellant's Brief at 6-7.
When considering challenges to the weight of the evidence, we apply the following precepts. "The weight of the evidence is exclusively for the finder of fact, who is free to believe all, none, or some of the evidence and to determine the credibility of the witnesses." Commonwealth v. Talbert , 129 A.3d 536, 545 (Pa. Super. 2015) (quotation marks and citation omitted). Resolving contradictory testimony and questions of credibility are matters for the finder of fact. Commonwealth v. Hopkins , 747 A.2d 910, 917 (Pa. Super. 2000). It is well-settled that we cannot substitute our judgment for that of the trier of fact. Talbert , supra at 546.
Moreover, appellate review of a weight claim is a review of the trial court's exercise of discretion in denying the weight challenge raised in the post-sentence motion; this court does not review the underlying question of whether the verdict is against the weight of the evidence. See id. at 545-46. "Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is [or is not] against the weight of the evidence." Id. at 546. "One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice." Id.
In order to challenge successfully the weight of the evidence, "the evidence must be so tenuous, vague and uncertain that the verdict shocks the conscience of the court." Id. (internal quotation marks and citation omitted). As our Supreme Court has made clear, reversal is only appropriate "where the facts and inferences disclose a palpable abuse of discretion[.]" Commonwealth v. Morales , 91 A.3d 80, 91 (Pa. 2014) (citations omitted, emphasis in original).
In a true challenge to the weight of the evidence, a defendant concedes that sufficient evidence supports the verdict. Commonwealth v. Thompson , 106 A.3d 742, 758 (Pa. Super. 2014). For that reason, the trial court need not view the evidence in the light most favorable to the verdict winner, and may instead use its discretion in determining whether the verdict was against the weight of the evidence. Commonwealth v. Widmer , 744 A.2d 745, 751 n.3 (Pa. 2000).
Appellant essentially asks us to reassess his credibility and that of the police officers and reweigh the testimony and evidence presented at trial. We cannot and will not do so. Our review of the record shows that the evidence is not tenuous, vague, or uncertain, and the verdict was not so contrary to the evidence as to shock the court's conscience.
Thus, after a thorough review of the certified record, the briefs of the parties, the applicable law, and the comprehensive and well-reasoned trial court Opinion, we conclude that there is no merit to Appellant's challenge to the weight of the evidence. The trial court carefully evaluated the record and the evidence before denying Appellant's weight claim. See Trial Court Opinion at 7. We discern no abuse of discretion in the trial court's denial of Appellant's weight claim. Accordingly, Appellant is not entitled to relief.
Evidence at Sentencing
Appellant next argues that the trial court erred in permitting "the Commonwealth to introduce speculative evidence relating to a shooting and his alleged gang affiliation at sentencing because the evidence was irrelevant and unduly prejudicial." Appellant's Brief at 1-3.
The admissibility of evidence is a matter for the trial court's discretion, and a ruling will only be reversed for an abuse of discretion. Commonwealth v. Antidormi , 84 A.3d 736, 749 (Pa. Super. 2014). It is well established that a sentencing hearing "is not a trial, and the court is not bound by the restrictive rules of evidence properly applicable to trials." Commonwealth v. Medley , 725 A.2d 1225, 1229 (Pa. Super. 1999); see also Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of Evidence § 101.13 (2018 ed. LexisNexis Matthew Bender). As such, a court may hear "any relevant information for the purposes of determining the proper penalty." Medley , 725 A.2d at 1229.
Pursuant to Pa.R.E. 103, "[a] party may claim error in a ruling to admit . . . evidence only: (1) if . . . a party, on the record: (A) makes a timely objection, motion to strike, or motion in limine; and (B) states the specific ground, unless it was apparent from the context[.]" Pa.R.E. 103(a)(1) (emphasis added). A defendant must timely and specifically object to evidence, even at sentencing, in order to preserve appellate issues. See Commonwealth v. Cruz , 402 A.2d 536, 538 (Pa. Super. 1979) (holding appellant failed to preserve issue regarding unsubstantiated statements about his drug dealing by unnamed informants and undercover agents because he failed to object with specificity during sentencing). See also Pa.R.A.P. 302 ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.").
After carefully reviewing the certified record, we conclude that Appellant did not preserve this issue by specifically objecting to this evidence at sentencing or presenting this issue in a Post-Sentence Motion. Accordingly, his evidentiary challenge is waived. Pa.R.E. 103(a); Pa.R.A.P. 302; Cruz , 402 A.2d at 538.
As stated above, Appellant's counsel objected once—at the end of Officer Wallace's testimony—to the District Attorney's factual mischaracterization of Appellant's case as a "shooting" rather than as a gun possession case or incident. N.T. Sentencing, 12/12/17, at 11. The trial court overruled this objection after clarification. Appellant did not otherwise object to or during Officer Wallace's testimony. Counsel's narrow objection to a statement by the prosecutor did not preserve the unrelated evidentiary challenges he now presents on appeal. See Pa.R.E. 103(a). Moreover, the trial court properly concluded that Appellant's evidentiary claim lacks merit. See Trial Court Opinion at 7-8 (concluding that the shooting and gang-affiliation evidence was admissible and relevant to show Appellant's "motive for driving a vehicle in that area of Philadelphia armed with a pistol.").
The parties are instructed to attach a copy of the trial court's December 18, 2017 Opinion to all future filings.
Judgment of Sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/2/18
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