Com. v. Hall, Q. ( 2015 )


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  • J-S34044-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    QUINTEZ DEVAR HALL
    Appellant                  No. 1796 MDA 2014
    Appeal from the Judgment of Sentence imposed October 20, 2014
    In the Court of Common Pleas of York County
    Criminal Division at No: CP-67-CR-0007930-2013
    BEFORE: BOWES, OTT, and STABILE, JJ.
    MEMORANDUM BY STABILE, J.:                           FILED AUGUST 21, 2015
    Appellant, Quintez Devar Hall, appeals from the judgment of sentence
    imposed on October 20, 2014 in the Court of Common Pleas of York County
    following his conviction of two firearms violations.    Appellant contends the
    evidence was insufficient to support either conviction.     We disagree and,
    therefore, affirm.
    On September 5, 2014, a jury convicted Appellant of persons not to
    possess firearms and for possessing a firearm not to be carried without a
    license.1 On October 20, 2014, the trial court sentenced Appellant to five to
    ten years in prison as a person not to possess a firearm and imposed a
    concurrent sentence of three to six years for his second conviction.
    ____________________________________________
    1
    18 Pa.C.S.A. §§ 6105 and 6106, respectively.
    J-S34044-15
    Appellant filed a timely notice of appeal and complied with the trial court’s
    directive to file a statement of errors complained of on appeal, asserting
    “[t]he evidence presented by the Commonwealth was insufficient as a
    matter of law to support the jury verdict of guilty for Carrying a Firearm
    without a License and Person not to Possess a Firearm.”          Statement of
    [Errors] Complained of under Pa.R.A.P. 1925(b), 11/6/14, at 1. The issue
    Appellant asks this Court to consider is worded substantially identically to his
    1925(b) statement.
    Before addressing Appellant’s issue, we shall first address the
    Commonwealth’s contention that Appellant has waived his issue for failure to
    preserve it for appellate review.         In support of this position, the
    Commonwealth cites, inter alia, Commonwealth v. Williams, 
    959 A.2d 1252
     (Pa. Super. 2008), for the proposition that an appellant asserting
    insufficiency of evidence must specify the element or elements upon which
    the evidence was insufficient. As this Court explained in Williams:
    If [an a]ppellant wants to preserve a claim that the evidence
    was insufficient, then the 1925(b) statement needs to specify
    the element or elements upon which the evidence was
    insufficient.   This Court can then analyze the element or
    elements on appeal. The instant 1925(b) statement simply does
    not specify the allegedly unproven elements. Therefore, the
    sufficiency issue is waived.
    
    Id. at 1257
     (emphasis deleted).     However, waiver will not be found in all
    instances. As this Court recognized in Williams:
    We are cognizant of our Supreme Court’s recent decision in
    Commonwealth v. Laboy, 
    594 Pa. 411
    , 
    936 A.2d 1058
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    J-S34044-15
    (2007)[,] in which the Court vacated this Court’s Order and
    remanded the case for us to decide the merits of certain issues
    the appellant had raised on appeal.          The Supreme Court
    determined a panel of this Court had erred in deciding the
    appellant had failed to adequately develop his claim of
    insufficient evidence to support his conviction in his statement of
    matters complained of on appeal and noted that the case was a
    “relatively straightforward drug case” though “in more complex
    criminal matters the common pleas court may require a more
    detailed statement to address the basis for a sufficiency
    challenge.” 
    Id. at 1060
    .
    
    Id.
     at 1258 n.9.
    We find that this case is a “relatively straightforward” firearms case,
    especially in light of the stipulation at trial that Appellant “is a person not to
    possess and has been since the year 2007. [Also, Appellant] did not have a
    valid license to carry a concealed firearm on his person or within a vehicle.”
    Notes of Testimony (N.T.) Trial, 9/4/14, at 82. As the trial judge instructed
    the jury after counsel presented the stipulation:
    Again you may accept that stipulation. The stipulation is that
    [Appellant] did not have a license at the time the gun was
    located and, secondly, that he is a person not to possess a
    firearm. So those two facts may be accepted by you. There is
    still obviously other issues that remain to determine whether or
    not [Appellant] had the firearm in his possession.
    Id. at 83. Under the circumstances of this case, we decline to find waiver
    for Appellant’s failure to specify in the 1925(b) statement the elements upon
    which he bases his insufficiency challenge.
    The statutory provisions for the crimes in question provide that “a
    person who has been convicted of an offense enumerated in subsection (b) .
    . . shall not possess . . . a firearm in this Commonwealth.” 18 Pa.C.S.A. §
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    J-S34044-15
    6015(a)(1).     Further, “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 . . . commits a felony of the third degree.” 18 Pa.C.S.A. §
    6106. Because it was stipulated that Appellant was a person not to possess
    under § 6105(a)(1) and was not licensed to carry a firearm under § 6106,
    the only issue for the jury to determine was whether Appellant was in
    possession of, or was carrying, a firearm.
    The only witnesses at Appellant’s trial were three Commonwealth
    witnesses from the York City Police Department: Officer Christopher Roosen,
    Sergeant Nicholas Figge and Officer Derek Hartman.             The trial court
    summarized the officers’ testimony as follows:
    In this case, the jury heard that on October 21, 2013, Officer
    Christopher Roosen was on patrol around 11:00 p.m. Officer
    Roosen saw a known male, Brandon Orr, for whom there were
    outstanding warrants walking towards him. Officer Roosen then
    testified that at this point Mr. Orr ran. Officer Roosen alerted
    Sergeant Nicholas Figge that Mr. Orr was known to utilize or ride
    in a silver [J]eep. Sergeant Figge testified that he saw and
    pursued the sliver [J]eep in question. While attempting to flee,
    the [J]eep crashed and Sergeant Figge testified that three
    suspects ran from the vehicle. Sergeant Figge was able to
    identify [Appellant], in blue jeans and a sweatshirt, as one of the
    fleeing subjects.[2]
    ____________________________________________
    2
    Sergeant Figge testified that two of the three individuals ran in a southerly
    direction while the third, Appellant, ran down an alleyway in a different
    direction. N.T. Trial, 9/4/14, at 91.
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    J-S34044-15
    The jury heard Officer Derek Harman testify that he pursued an
    individual dressed as Sergeant Figge described. Officers Roosen
    and Hartman testified that upon apprehension of this person, a
    firearm was located near the individual’s hands. Sergeant Figge
    identified the individual as [Appellant], who was one of the three
    individuals he had seen flee the crashed [J]eep. Officer Roosen
    related to the jury that 9 mm ammunition was found in the
    crashed [J]eep. The firearm [in] question is a 9 mm handgun. .
    . . All of the officers who testified stated that they never saw
    [Appellant] in physical possession of the firearm. And Officer
    Roosen stated that the gun was not fingerprinted because there
    was no question who the actor was in this case. The jury also
    heard a stipulation that [Appellant] is a person not to possess
    firearms and has been since 2007. . . . The jury was provided
    with the stipulation that [Appellant] was a person not to possess.
    Ergo, under 18 Pa.C.S.A. § 6105(a)(1), the Commonwealth
    would only have needed to show the element of possession.
    Trial Court Rule 1925(a) Opinion, 1/29/15, at 3-4 (references to Notes of
    Testimony omitted).
    Again, the sole issue before this Court involves the sufficiency of
    evidence. This Court has stated:
    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
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    J-S34044-15
    and the weight of the evidence produced, is free to believe all,
    part or none of the evidence.
    Commonwealth v. Cruz, 
    21 A.3d 1247
    , 1252 (Pa. Super. 2011) (citations
    omitted). In Cruz, this Court explained:
    Illegal possession of a firearm may be shown by constructive
    possession. Commonwealth v. Parker, 
    847 A.2d 745
    , 750
    (Pa. Super. 2004).
    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.”      We
    subsequently defined “conscious dominion” as “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.
    Id. at 1253 (quoting Parker, 
    847 A.2d at 750
    ) (additional citations
    omitted).
    Appellant argues that the Commonwealth must prove Appellant had
    both the power to control the firearm and the intent to exercise control,
    contending mere presence at the scene is insufficient. Appellant’s Brief at
    11 (citing Commonwealth v. Boatwright, 
    453 A.2d 1058
    , 1059 (Pa.
    Super. 1982), in turn citing Commonwealth v. Townsend, 
    237 A.2d 192
    (Pa. Super. 1968); and Commonwealth v. Luddy, 
    422 A.2d 601
     (Pa.
    Super. 1980)). While we do not disagree with the premise Appellant
    advances, we find the cases he has cited inapposite. Unlike the cases cited
    by Appellant, Appellant was alone when he was apprehended. When he and
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    J-S34044-15
    the other subjects fled the Jeep, Appellant headed in a different direction
    from his associates.        Neither of the other individuals was noted to be
    anywhere near Appellant when Appellant was taken into custody. Moreover,
    the officers each testified that the handgun was within a few feet of
    Appellant’s hand.3 As the trial court observed:
    [Appellant] was apprehended with the firearm near his hands.
    [Appellant] was identified as one of the individuals who fled the
    crashed [J]eep which contained more ammunition of the sort
    used in the firearm recovered. Taken together, these facts are
    the strongest basis upon which to find possession. There is no
    specific quantum of evidence that the Commonwealth must
    produce in order for a court to find that sufficient evidence has
    been presented; but, rather, we must evaluate whether the
    evidence was so weak and inconclusive that no probability of fact
    may be drawn from the combined circumstances. It strains
    credulity to believe that [Appellant] was unlucky enough to be
    apprehended within reach of a firearm for which there was
    matching ammunition in the vehicle from which [he] fled.
    Trial Court Opinion, 1/29/15, at 4-5. We agree. Viewing all the evidence—
    including circumstantial evidence—in the light most favorable to the
    Commonwealth as verdict winner, coupled with the stipulation that Appellant
    was a person not to possess a firearm, we conclude the evidence was
    sufficient to enable the jury to find every element of the crime beyond a
    reasonable doubt.
    ____________________________________________
    3
    Appellant contends that testimony indicating multiple subjects exited the
    Jeep and fled after it crashed suggests that “anyone from that Jeep could
    have been in possession of that firearm and have dropped it while fleeing.”
    Appellant’s Brief at 11. In light of the officers’ testimony, Appellant’s
    proposition is without foundation.
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    J-S34044-15
    With respect to Appellant’s conviction of firearms not to be carried
    without a license, we likewise conclude the evidence was sufficient to
    support the conviction.   As the trial court noted, Officer Hartman testified
    that he continually commanded Appellant to show his hands during his
    pursuit and that Appellant failed to do so. “This evidence tends to show that
    [Appellant] had concealed the weapon upon his person and would not show
    his hands in order to maintain his grasp upon the firearm.” Id. at 6. When
    the officers apprehended Appellant, the gun was observed on the ground
    next to Appellant, “within his reach.” N.T. Trial, 9/4/14, at 75.    Again, in
    conjunction with the stipulation that Appellant did not have a license to carry
    the firearm, we conclude the evidence viewed in the light most favorable to
    the Commonwealth was sufficient to prove the elements of the crime
    charged.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/21/2015
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