Opinion
J-S61037-19 No. 1489 EDA 2019
12-11-2019
COMMONWEALTH OF PENNSYLVANIA v. DONNELL S. WILLIAMS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence February 19, 2019
In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001072-2018 BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant, Donnell S. Williams, appeals from the judgment of sentence entered in the Court of Common Pleas of Delaware County following his conviction by a jury on the sole charge of persons not to possess a firearm, 18 Pa.C.S.A. § 6105. After a careful review, we affirm.
Following his arrest in connection with the possession of a firearm, Appellant proceeded to a jury trial on January 9, 2019, at which the Commonwealth presented the testimony of Police Officer Marc Barag, Sergeant David McDonald, and Detective Louis Grandizio. In its opinion, the trial court accurately set forth in detail the testimony offered by the witnesses, as well as the stipulations entered into by the parties. Trial Court Opinion, filed 6/20/19, at 2-8. We rely on the trial court's detailed factual recitation for purposes of this appeal.
A jury trial in this matter originally commenced on October 29, 2018; however, after deliberations, the jury was deadlocked, so the trial court declared a hung jury.
Appellant did not testify on his own behalf or offer the testimony of any witnesses.
At the conclusion of trial, the jury convicted Appellant of the offense indicated supra, and on February 19, 2019, the trial court sentenced Appellant to 60 months to 120 months in prison for the sole offense. On February 28, 2019, Appellant filed a timely, counseled post-sentence motion, which the trial court denied on May 3, 2019. This timely, counseled appeal followed on May 22, 2019, and all Pa.R.A.P. 1925 requirements have been met.
On appeal, Appellant sets forth the following issues in his "Statement of Questions Involved":
1. Was the verdict of the Jury was [sic] against both the weight and sufficiency of the evidence and is [Appellant] entitled to an arrest of judgment or new trial[?]Appellant's Brief at 4 (suggested answers omitted).
2. Did the trial court abuse its discretion in failing to pronounce a mistrial where a Juror (Juror #5) appeared to be sleeping during the trial court's charging of the jury[?]
In his first issue, Appellant challenges both the sufficiency and weight of the evidence. We begin with Appellant's challenge to the sufficiency of the evidence. A claim impugning the sufficiency of the evidence presents us with a question of law. Commonwealth v. Widmer , 560 Pa. 308, 744 A.2d 745, 751 (2000). Our standard of review is well settled:
We note that claims related to the sufficiency of the evidence are distinct from claims related to the weight of the evidence. Commonwealth v. Smith , 853 A.2d 1020 (Pa.Super. 2004). At various points, Appellant improperly conflates the two claims; however, to the extent he has properly developed separate arguments for each claim, we shall address them.
The standard we apply in reviewing the sufficiency of the evidence 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. Brooks , 7 A.3d 852, 856-57 (Pa.Super. 2010) (citations omitted). "This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt." Commonwealth v. Sanders , 627 A.2d 183, 185 (Pa.Super. 1993). "Although a conviction must be based on 'more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty.'" Commonwealth v. Gainer , 7 A.3d 291, 292 (Pa.Super. 2010) (quotation omitted).
Appellant was convicted of persons not to possess a firearm under 18 Pa.C.S.A. § 6105, which relevantly provides the following:
§ 6105. Persons not to possess, use, manufacture, control, sell or transfer firearms18 Pa.C.S.A. § 6105.
(a) Offense defined.—
(1) 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.
***
(c) Other persons.--In addition to any person who has been convicted of any offense listed under subsection (b), the following persons shall be subject to the prohibition of subsection (a):
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(2) A person who has been convicted of an offense under the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or any equivalent Federal statute or equivalent statute of any other state, that may be punishable by a term of imprisonment exceeding two years.
In the case sub judice, Appellant does not dispute that he is prohibited from possessing a firearm; however, he contends the Commonwealth failed to prove that he actually possessed a firearm. We agree with Appellant that possession is an element of the firearms offense, and the firearm was not discovered on Appellant's person so as to establish actual possession. See Commonwealth v. Macolino , 503 Pa. 201, 469 A.2d 132, 134 (1983) (holding that actual possession is shown by proving the contraband was found on the defendant's person).
However, to the extent Appellant suggests the Commonwealth was required to prove that Appellant actually possessed the firearm, we disagree. Rather, to establish the element of possession, this Court has held that "[p]ossession can be found by proving actual possession, constructive possession, or joint constructive possession." Commonwealth v. Parrish , 191 A.3d 31, 36 (Pa.Super. 2018) (citation omitted).
We have previously determined:
Where a defendant is not in actual possession of the prohibited items, the Commonwealth must establish that the defendant had constructive possession to support the conviction. Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement. We have defined constructive possession as conscious dominion, meaning that the defendant has the power to control the contraband and the intent to exercise that control. To aid application, we have held that constructive possession may be established by the totality of the circumstances.Parrish , 191 A.3d at 36-37 (internal citations and quotations omitted).
It is well established that, as with any other element of a crime, constructive possession may be proven by circumstantial evidence. In other words, the Commonwealth must establish facts from which the trier of fact can reasonably infer that the defendant exercised dominion and control over the contraband at issue.
To find constructive possession, the power and intent to control the contraband does not need to be exclusive to the appellant. Our Supreme Court has recognized that "constructive possession may be found in one or more actors where the item in issue is in an area of joint control and equal access." Commonwealth v. Johnson , 611 Pa. 381, 26 A.3d 1078, 1094 (2011) (citation omitted).
Here, viewing the evidence in the light most favorable to the Commonwealth, as the verdict winner, we agree with the trial court that the evidence sufficiently establishes Appellant's constructive possession of the firearm, which was seized by Officer Barag. As the trial court relevantly indicated:
Officer Barag, who has spent eleven years patrolling the streets of Chester, five of which focused on narcotics and drug-related violence, [testified he] is driving down the street when he notices a large group of people. As soon as the individuals see the car[, which] they know to be an [undercover] police vehicle, they immediately look down the street and scream "cops," not just in [a] general location, but directed towards a very specific location. Officer Barag's attention immediately turns to the area where the group is focusing their message, and...he see[s] [Appellant] emerging from an abandoned house[.] Officer Barag begins to investigate the situation. Appellant tells him he was just over [by the side of the house] taking a piss yet Officer Barag can find no signs of urination. But, he does find a firearm stashed in a pile of leaves right where Appellant, by his own admission, tells Officer Barag that he took a piss[.] [The] firearm...is still warm to the touch despite it being December. In addition, Appellant's demeanor begins to change from casual to nervous with each step Officer Barag...took that got him closer to the stashed firearm. Once it was located, Appellant immediately said to Officer Barag, "you know we be stashin' guns out here in case the opps roll
through" and finally, when Appellant is ultimately arrested, read his Miranda rights, and is being processed, he admits his own defeat, "you got me, Barag, you got me." The evidence unequivocally supports [the conclusion] that Appellant had both the power and intent to control the firearm. Appellant's own words and actions during the encounter show that he stashed the firearm in the pile of leaves as a result of the group yelling "cops." Therefore, Appellant's claim is without merit.Trial Court Opinion, filed 6/20/19, at 12-13.
We agree with the trial court that, when viewed in its totality, the circumstantial evidence reveals that Appellant had the power and intent to control the firearm. See Johnson , supra. Simply put, contrary to Appellant's assertion, the Commonwealth was not required to demonstrate that he actually possessed the firearm in order to establish Appellant's possession thereof.
Further, contrary to Appellant's suggestion, the Commonwealth was permitted to establish Appellant's constructive possession via circumstantial evidence and the reasonable inferences that arise therefrom. Parrish , supra. Accordingly, we conclude Appellant is not entitled to relief on his challenge to the sufficiency of the evidence.
With regard to his weight of the evidence claim, Appellant avers that, in finding Appellant possessed the firearm, the jury erred in giving any weight to the officer's testimony that the firearm was still warm on a cold December day. See Appellant's Brief at 21.
Appellant adequately preserved his weight claim in his post-sentence motion. See Pa.R.Crim.P. 607(a).
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 quotation 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.
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.
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 against the weight of the evidence. 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. at 546 (quotation omitted). Furthermore, "[i]n order for a defendant to prevail on a challenge to the weight of the evidence, the evidence must be so tenuous, vague and uncertain that the verdict shocks the conscience of the court." Id. (quotation marks and quotation omitted).
Here, in rejecting Appellant's weight of the evidence claim, the trial court relevantly indicated:
The jury was free to believe all, part, or none of the evidence and to assess the credibility of the witnesses. The jury determined that the witnesses were credible and that the evidence provided supported a verdict of guilty. The verdict in this case does not even come close to the standard of being so contrary to the evidence as to shock one's sense of justice.Trial Court Opinion, filed 6/20/19, at 14.
We conclude the trial court did not abuse its discretion in denying Appellant's challenge to the weight of the evidence. Talbert , supra. We note the jury was free to determine the weight and inferences to be drawn from Officer Barag's testimony that the firearm he seized from the leaves felt warm even though it was a cold December day. To the extent Appellant requests that we re-weigh the evidence and assess the credibility of the witnesses presented at trial, we decline to do so as it is a task that is beyond our scope of review. See Commonwealth v. Collins , 70 A.3d 1245, 1251 (Pa.Super. 2013)(stating that "[a]n appellate court cannot substitute its judgment for that of the finder of fact").
In his final claim, Appellant contends the trial court abused its discretion in failing to pronounce a mistrial where Juror #5 appeared to be sleeping during the trial court's charging of the jury.
Before addressing the merits of Appellant's claim, we must first consider whether it is properly before us. Pennsylvania Rule of Appellate Procedure 302 provides that issues that are not first raised in the trial court are waived on appeal. Pa.R.A.P. 302(a). It is well-settled that the trial court must be given an opportunity to correct errors at the time they are made. See Commonwealth v. Marlin , 452 Pa. 380, 305 A.2d 14 (1973). "[A] party may not remain silent and afterwards complain of matters which, if erroneous, the court would have corrected." Marlin , supra , 305 A.2d at 16 (citations omitted). "Even where a defendant objects to specific conduct, the failure to request a remedy such as a mistrial or curative instruction is sufficient to constitute waiver." Commonwealth v. Strunk , 953 A.2d 577, 579 (Pa.Super. 2008) (citations omitted).
In the case sub judice, at trial, immediately after the trial court gave its instructions to the jury, the following relevant exchange occurred:
[Sidebar Discussion:]
THE COURT: Anything additional from the Commonwealth?
[ADA]: Judge, I have a concern to raise. During the individual—during the instruction, it appeared Juror #5 fell asleep, and when you passed out the information it appeared Juror #4[,] when he passed [it] to [Juror #5,] actually woke her up to give her the sheet. And I'm not—couldn't tell you what point she may have fallen asleep, but I have a concern and I think his reaction to me indicated that he saw that.
THE COURT: Well, this is what I'll do. I noticed that myself. When I—I'm going to send them back, but I'm going to bring Juror #5 back into the room to ask if she's heard the instructions—N.T., 1/10/19, at 142-44.
[ADA]: Okay.
THE COURT: --if she's able to deliberate. I'm going to keep Jurors 13 and 14 in here while we do that.
[ADA]: Okay. Thank you, Judge.
DEFENSE COUNSEL]: Okay.
THE COURT: Okay. Anything else for the Commonwealth?
[DEFENSE COUNSEL]: Yeah. I have no further. That was something that I noticed.
[ADA]: That was my only—yeah, other—
THE COURT: I noticed that.
[ADA]: --than that, I believe the instruction was—
[DEFENSE COUNSEL]: Yeah, I—
THE COURT: Okay.
[DEFENSE COUNSEL]: I have no problem with the instruction.
THE COURT: Okay.
[End of sidebar discussion]
At this point, the trial court instructed the jury that it would be choosing a foreperson, provided the procedure for the jury to ask a question, and requested the jurors respect each other during deliberations. Id. at 144-46. The following relevant exchange then occurred:
[ADA]: Judge, can we see you at sidebar just briefly?
THE COURT: Sure.
[Sidebar Discussion:]
[ADA]: I just have a concern. If we're going to inquire that when you ask them not to begin deliberations until we—because I don't want them to start with 11 people.
[DEFENSE COUNSEL]: Right.
THE COURT: I'll tell them that, yeah.
[ADA]: Okay, thank you.
THE COURT: And we'll do it in the robing room on—
[ADA]: So that we can—we can replace if we have to.
THE COURT: No, in fact—yeah, let's do it in the robing room.
[ADA]: Okay.
THE COURT: Okay.
[ADA]: Thanks.
[End of sidebar discussion]
THE COURT: Okay, ladies and gentlemen, we're going to send you back to the jury room. You're not going to be ready to start your deliberations yet because I have to get the written charge ready to give you those points that I told you. So, we're going to take you back, get yourselves set up. It'll take just a few seconds.
COURT STAFF: Could 13 and 14 please stay here.
THE COURT: Jurors 13 and 14, I'll be with you in just a minute. I would like to see Counsel in the robing room and Theresa, I want to move the record to the robing room, please.
[Robing Room Discussion:]
COURT STAFF: Just have a seat.
THE COURT: Just have a seat here.
JUROR 5: I [INAUDIBLE] over there [INAUDIBLE].
THE COURT: No, that's okay. I have one question. It appeared when we were passing out the verdict sheet that you were sleeping and not paying attention. Did you hear all [of] the Court's instructions?
JUROR 5: Yes.
THE COURT: Any follow up, Counsel?
[ADA]: So you at no point missed anything? You understood everything? You're good?
JUROR 5: Um-hum.
THE COURT: Okay. We're going to take you back to the jury room.
JUROR 5: My apologies.Id. at 146-49.
THE COURT: That's okay. John. Okay. I want to bring 13 and 14 back in a minute.
[ADA]: Okay.
THE COURT: And let me get this stuff out to them to deliberate.
[ADA]: Okay. So, we'll just have John tell them they can begin deliberations when he—
THE COURT: Yeah.
[ADA]: --hands them the paperwork?
THE COURT: Yeah, when he hands the paperwork.
[ADA]: Okay.
[DEFENSE COUNSEL]: Okay.
[ADA]: And you don't need us back here for 13 and 14?
THE COURT: No, no.
[ADA]: Okay. So I'll tell Theresa we can go off.
[End of Robing Room discussion]
Our review of the record confirms that, after the Commonwealth brought to the trial court's attention that Juror #5 may have been sleeping during the trial court's jury instructions, defense counsel concurred that she had noticed the same conduct. The trial court indicated it would question Juror #5, and defense counsel indicated she had nothing further to add.
After the trial court questioned Juror #5 in the robing room, defense counsel did not pursue the matter further. More specifically, defense counsel did not request a mistrial or seek any other remedy; but rather, defense counsel opted to allow Juror #5 to participate in the determination of the verdict. Appellant cannot now complain that the trial court should have declared a mistrial on this basis. See Strunk , supra (holding the appellant waived for appellate review the claim of whether he was denied his right to a fair trial where a juror fell asleep during the court's charge but defense counsel opted to allow the juror to participate in the determination of the verdict).
For all of the foregoing reasons, we affirm.
Affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/11/19
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