Com. v. Thomas, J. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAIVON MANSFIELD THOMAS :
:
Appellant : No. 3050 EDA 2017
Appeal from the Judgment of Sentence September 5, 2017
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003484-2016
BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 07, 2018
Jaivon Mansfield Thomas appeals from the judgment of sentence
imposed September 5, 2017, in the Chester County Court of Common Pleas.
The trial court sentenced Thomas to a term of four to 10 years’ imprisonment,
followed by seven years’ probation, after he was convicted of two violations
of the Uniform Firearms Act, 18 Pa.C.S. § 6101 et seq. On appeal, Thomas
challenges the trial court’s denial of his pretrial motion to suppress evidence
obtained following a vehicle stop, and the sufficiency of the evidence
supporting his convictions. For the reasons below, we affirm.
We have gleaned the following pertinent facts from the testimony
presented during Thomas’s suppression hearing. On August 23, 2016, at
approximately 1:15 a.m., Police Officer John Bogan was patrolling the parking
lot of the Turkey Hill minimart located at Routes 340 and 82 in Coatesville,
Pennsylvania. He observed a black Kia Sportage, that appeared to be broken
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down, receiving a jump from another patron. Thomas was the front seat
passenger in the Kia. Officer Bogan described his observations as follows:
What drew my attention to [Thomas], like I said, I was canvassing
the parking lot. And when I came cross them, he looked at me
and then he appeared to be turning his body intentionally in the
opposite direction away from me. At times he would take part of
his clothing, pull it over his face and look back to me to see if I
am taking notice to it.
At some point, he said something to the rear seat
passenger. And at that time, the rear seat passenger exited the
vehicle and stood directly in my line of sight between [Thomas]
and where I was positioned.
N.T. 2/14/2017, at 29-30. Officer Bogan explained he thought Thomas’s
behavior was “very suspicious,” like Thomas was “intentionally trying to hide
his identity or something.” Id. at 31. Consequently, when the Kia left the
parking lot shortly thereafter and proceeded southbound on Route 82, the
officer followed in his patrol vehicle.
Officer Bogan observed the driver activate his right turn signal about 20
feet prior to Wagontown Road, but then fail to turn right. He testified that the
Kia then activated the left turn signal “proceeded to cut across the roadway”
from the right lane to the left lane, and then turn left into the parking lot of a
closed gas station. Id. at 33. Officer Bogan pulled in behind the vehicle and
activated his emergency lights. He explained he did so based on “[t]he
behavior at the Turkey Hill,” as well as the driver’s failure to signal his turn
for 100 feet. Id. at 35. At that point, the driver of the Kia “accelerated the
vehicle at a high rate of speed and fled” from the parking lot. Id.
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Detective Jonathan Shave also testified at the suppression hearing, and
the Commonwealth introduced video from his vehicle’s mobile recording
device. At the time of the incident, Detective Shave was a patrol corporal,
and was responding to a radio call from Officer Brogan regarding suspicious
activity at the Turkey Hill. See id. at 7. As he drove northbound on Route
82 towards the minimart, he observed Officer Bogan’s vehicle traveling
southbound. Therefore, Detective Shave made a U-turn and proceeded
southbound, approximately a quarter mile behind Officer Bogan. See id. at
8. The detective corroborated Officer Bogan’s testimony that the driver of the
Kia activated the right turn signal, failed to turn right, and then activated the
left turn signal from the right lane. See id. at 9-10. Detective Shave
described what he observed as follows:
The vehicle then turned its driver side … turn signal on. It cut into
the second lane. It then cut over into the northbound lane and
pulled into the Shell gas station.
****
It appeared from the distance I was, it appeared to be, the turn
signal was activated, the car entered into the left lane, and then
just continued on and entered into the oncoming lane and into the
parking lot. It appeared to be fluid. There was no time in the left
lane it appeared.
Id. at 10-11. Detective Shave testified the left turn signal was activated for
“less than a hundred feet” before it turned into the gas station lot.1 Id. at 11.
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1 Under cross-examination, when presented with Google map printouts
indicating the distance between Wagontown Road and the gas station,
Detective Shave acknowledged he was “approximately a quarter mile behind
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After the driver of the Kia sped out of the gas station parking lot, he fled
on Route 82, made a left turn onto Wagontown Road, and continued through
a residential area until he struck a curb or embankment and the car became
disabled. See id. at 13, 35. When the vehicle came to a stop, all three
occupants fled on foot. Officer Bogan pursued both the driver and Thomas,
who fled in the same direction. While in pursuit, the officer observed Thomas
“reaching into his waistband struggling to move an object.” Id. at 37. Just
before Officer Bogan took Thomas into custody, he saw Thomas “throw an
object that he retrieved from his waistband.” Id. The officer shined his
flashlight in the area where the object was thrown, approximately 10 to 15
feet from where he apprehended Thomas, and discovered a loaded firearm.
Thomas was arrested and charged with persons not to possess firearms,
possession of a firearm without a license, receiving stolen property, flight to
avoid apprehension, resisting arrest, tampering with evidence, and recklessly
endangering another person.2 On January 31, 2017, he filed a pretrial motion
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the [Kia], and [did not] know the speed that the vehicle was traveling at.”
N.T., 2/14/2017, at 21. Although he noted it “appeared to be [travelling] very
quick,” he was unable to state with “exact certainty as to whether or not [the
signal was activated for one] hundred feet.” Id. (acknowledging “[i]t could
have been more than a hundred feet”).
218 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 3925(a), 5126(a), 5104, 4910(1),
and 2705, respectively.
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to suppress, inter alia, the evidence recovered during the car stop. Following
a hearing, the trial court denied the suppression motion on February 17, 2017.
The case proceeded to a bench trial, after which Thomas was found
guilty of persons not to possess firearms and possession of a firearm without
a license.3 On September 5, 2017, the trial court sentenced Thomas to a term
of four to 10 years’ imprisonment for persons not to possess firearms, and a
consecutive term of seven years’ probation for possession of a firearm without
a license. This timely appeal followed.4
In his first issue on appeal, Thomas contends the trial court erred in
denying his pretrial suppression motion. Our review of an order denying a
motion to suppress evidence is well-settled:
[W]e must determine whether the trial court’s factual findings are
supported by the evidence of record. If the evidence supports the
trial court’s findings, we are bound by them and may reverse only
if the legal conclusions drawn therefrom are erroneous.
Commmonwealth v. Slattery, 139 A.3d 221, 222 (Pa. Super. 2016).
Moreover, “our scope of review is limited to the evidence presented at the
suppression hearing.” Commonwealth v. Caple, 121 A.3d 511, 517 (Pa.
Super. 2015) (citation omitted), appeal denied, 179 A.3d 7 (Pa. 2018).
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3 The Commonwealth nolle prossed the remaining charges.
4 On September 20, 2017, the trial court ordered Thomas to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Thomas complied with the court’s directive, and filed a concise statement on
September 27, 2017. The trial court then issued an opinion on October 4,
2017.
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Thomas’s challenge to the court’s suppression ruling is two-fold. First,
he insists Officer Bogan did not have probable cause to initiate a traffic stop
based on a violation of the Motor Vehicle Code. See Thomas’s Brief at 12. He
maintains the court’s factual finding, that the driver of the Kia activated his
left turn signal less than 100 feet before turning into the gas station, was not
supported by the record. See id. at 14-19. Second, Thomas contends the
gun recovered during the officer’s subsequent pursuit must be suppressed as
either fruit of the poisonous tree (based on the illegal stop), or coerced
abandonment. See id. at 20-23.
The trial court found Officer Bogan had probable cause to stop the Kia
based upon the driver’s violation of Section 3334 of the Motor Vehicle Code.
See Trial Court Opinion, 2/17/2017, at 3-4, citing 75 Pa.C.S. § 3334(b).
Additionally, the court determined that after the driver of the Kia sped off,
“additional probable cause existed for the second in time stop.” Id. at 4.
Therefore, the trial court concluded Officer Bogan legally seized the gun after
Thomas abandoned it. See id. at 4-5.
Pursuant to Section 6308(b) of the Motor Vehicle Code, a police officer
may stop a vehicle
[w]henever [he] ... has reasonable suspicion that a violation of
[the Motor Vehicle Code] is occurring or has occurred, he may stop
a vehicle, upon request or signal, for the purpose of checking the
vehicles registration, proof of financial responsibility, vehicle
identification number or engine number or the driver’s license, or
to secure such other information as the officer may reasonably
believe to be necessary to enforce the provisions of this title.
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75 Pa.C.S. § 6308(b). This Court has explained a stop based on mere
reasonable suspicion must “serve an investigatory purpose relevant to the
suspected violation.” Commonwealth v. Salter, 121 A.3d 987 (Pa. Super.
2017) (quotation omitted).
However, if the violation is such that it requires no additional
investigation, the officer must have probable cause to initiate the
stop. Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa.
Super. 2010).
Put another way, if the officer has a legitimate expectation
of investigatory results, the existence of reasonable
suspicion will allow the stop—if the officer has no such
expectations of learning additional relevant information
concerning the suspected criminal activity, the stop cannot
be constitutionally permitted on the basis of mere suspicion.
Commonwealth v. Chase, 599 Pa. 80, 960 A.2d 108, 115
(2008).
Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa. Super. 2013), appeal
denied, 79 A.3d 1096 (Pa. 2013).
Here, it is undisputed that Officer Bogan needed probable cause to stop
the Kia based on a violation of Section 3334(b) of the Motor Vehicle Code.
That section, which requires drivers to signal before turning, provides, in
relevant part:
(b) Signals on turning and starting.--At speeds of less than 35
miles per hour, an appropriate signal of intention to turn right or
left shall be given continuously during not less than the last 100
feet traveled by the vehicle before turning. The signal shall be
given during not less than the last 300 feet at speeds in excess of
35 miles per hour. The signal shall also be given prior to entry of
the vehicle into the traffic stream from a parked position.
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75 Pa.C.S. § 3334(b). In the present case, the trial court implicitly found the
Kia was travelling at a speed of less than 35 miles per hour prior to turning
left into the gas station, and was, therefore, required to activate a turn signal
for not less than 100 feet before turning.5 See Trial Court Opinion, 2/17/2017,
at 3. Relying on Officer Bogan’s testimony that the left turn signal was
activated for less than the required 100 feet, the trial court concluded the
officer had probable cause to stop the Kia for the violation.6 See id. at 3-4.
Thomas argues, however, the officer’s testimony was contradicted by
the evidence of record. See Thomas’s Brief at 14-19. During the suppression
hearing, the Commonwealth introduced the mobile video recording of the
incident taken from Detective Shave’s vehicle, and Thomas presented Google
Maps printouts, which denoted the distances from the right turn at Wagontown
Road, that the Kia neglected to make, to the gas station. However, the trial
court discounted the relevancy of these pieces of evidence, concluding:
[The video recording] clearly shows the left turn signal blinking.
What it does not show is the distance travelled from the time it
was turned on until the left turn was made. [The maps] show the
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5 The Commonwealth does not dispute this finding. See Commonwealth’s
Brief at 15-19.
6Based on our review of the testimony from the suppression hearing, Officer
Bogan did not specifically testify that the driver of the Kia turned left into the
gas station less than one hundred feet after activating his signal. See N.T.,
2/14/2017, at 32-34. Rather, he simply indicated he initiated the traffic stop
based, in part, upon a turn signal violation. See id. at 35. Nevertheless,
Detective Shave testified on direct examination that the left turn signal was
activated for less than 100 feet. See id. at 11.
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area in question which covers more than the required minimum
100 feet to signal a turn. However, neither [] are helpful to the
court in deciding the exact point (distance) at which the signal
was activated.
Trial Court Opinion, 2/17/2017, at 3. Accordingly, the court accepted the
testimony of the officers that the driver of the Kia did not activate his left
signal for the mandated time period.7
This Court has held a mobile video recording made part of the certified
record, may, in rare cases, contradict a trial court’s factual findings that are
based on credibility determinations. See Comonwealth. v. Griffin, 116 A.3d
1139, 1143 (Pa. Super. 2015) (reversing trial court order denying motion to
suppress drugs; concluding trial court’s factual finding that drugs recovered
from defendant’s pocket were “immediately apparent” during frisk was
contradicted by dash cam video that “clearly depicts the officer repeatedly
manipulating [defendant’s] pocket”). In the present case, however, our
review of the mobile video recording does not lead to the same result. Indeed,
the video does not so clearly contradict the officers’ testimony as to compel
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7 We recognize Detective Shave acknowledged on cross-examination that he
could not calculate the distance the vehicle traveled with the left turn signal
activated. See supra at n.1. Nevertheless, both Detective Shave and Officer
Bogan testified the Kia activated its left signal while in the right lane, cut
across the left lane, and very quickly turned into the gas station lot. See N.T.,
2/14/2017, at 10-11, 33. Further, the trial court was able to view the mobile
video recording of the incident from Detective Shave’s vehicle. Based upon
the testimony and evidence presented by the Commonwealth, the court found
Officer Bogan had probable cause to believe the driver of the Kia violated
Section 3334(b). While the evidence may not have been sufficient to convict
Thomas of the Vehicle Code violation, probable cause to stop a vehicle is a
lesser standard than beyond a reasonable doubt. Indeed, an officer is not
required to measure distance before initiating a traffic stop.
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us to reject the trial court’s credibility determination. Further, as the trial
court noted in its opinion, the maps introduced into evidence do not depict
where the left signal was first activated, or where the Kia made the left turn
into the gas station. Consequently, we are precluded from considering the
mathematical calculations of speed and distance that Thomas presents in his
brief. Restricting our review to the suppression hearing, as we are required
to do, we find no basis to overturn the trial court’s determination that Officer
Bogan had probable cause to stop the Kia for a violation of Section 3334(b).
The trial court also found, however, that “[o]nce the driver of [the Kia]
sped off, additional probable cause existed for the second in time stop.” Trial
Court Opinion, 2/17/2017, at 4. We agree.8 Even assuming, arguendo,
Officer Bogan did not have probable cause to stop the Kia for the turn signal
violation, after he pulled in behind the vehicle and activated his emergency
lights, the driver of the Kia accelerated at a high rate of speed out of the
parking lot, and through a nearby neighborhood. See N.T., 2/14/2017, at 36
(Officer Bogan estimated he had to drive about “50 miles per hour” to catch
up to the Kia, in a 25-mile-per-hour speed zone). At that point, the officer
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8 The trial court’s opinion is unclear as to the basis for this ruling. In its
conclusions of law, the court merely stated: “Vehicle stop number two was
lawful as a continuation of the initial stop.” Trial Court Opinion, 2/17/2017,
at 5. Nonetheless, while our basis for upholding the legality of the second
stop may be different than that of the trial court, we emphasize “an appellate
court is not bound by the rationale of the trial court and
may affirm on any basis if the record supports it.” Commonwealth v. Diaz,
183 A.3d 417, 421 (Pa. Super. 2018).
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had both probable cause to stop the Kia for a speeding violation, and
reasonable suspicion to conduct a stop based on repeated suspicious behavior.
Indeed, by the time Officer Bogan pursued Thomas and the driver on foot, he
had observed: (1) suspicious behavior at the Turkey Hill, where it appeared
Thomas was attempting to shield his identity from police; (2) the driver of the
Kia preparing to turn right, only to cut across two lanes to make a left turn
into a closed gas station parking lot; (3) the driver accelerating out of the lot
at a high rate of speed after the officer pulled in behind him; (4) the driver
leading police on a short high speed chase; and (5) all three occupants of the
vehicle fleeing when the car became disabled. Based on the above, Officer
Bogan had reasonable suspicion that the occupants of the vehicle were
engaging in criminal activity in order to justify a vehicle stop. Accordingly, he
was lawfully in pursuit of both Thomas and the driver of the Kia when he
observed Thomas discard an object from his waistband, and we agree
Thomas’s abandonment of the gun was not coerced by unlawful police
conduct. See Commonwealth v. Byrd, 987 A.2d 786, 791 (Pa. Super. 2009)
(“Although abandoned property may normally be obtained and used for
evidentiary purposes by the police, such property may not be utilized where
the abandonment is coerced by unlawful police action.”) (quotation omitted).
Furthermore, we disagree with Thomas’s contention that “[t]he facts of
this case are nearly identical” to those in the Pennsylvania Supreme Court’s
recent decision in Commonwealth v. Shabezz, 166 A.3d 278 (Pa. 2017).
Thomas’s Brief at 22. In Shabezz, the defendant was a passenger in a
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vehicle that was under surveillance for drug sales. See Shabezz, supra, 166
A.3d at 281-282. The officers conducted a vehicle stop, at which time the
defendant fled on foot. See id. at 282. The officers pursued and apprehended
him, recovered drugs and cash from his person, and eventually found more
drugs and a handgun in the vehicle. See id. The trial court granted the
defendant’s motion to suppress all physical evidence, finding, inter alia, the
officers’ testimony regarding the alleged drug transaction they witnessed prior
to the stop was not credible, and, therefore, the officers “lacked any
constitutionally justifiable basis to stop the vehicle[.]” Id. at 283.
On appeal to this Court, the Commonwealth argued (1) the defendant
did not have an expectation of privacy in the areas of the vehicle that were
searched, and (2) the court’s factual findings were not supported by the
evidence. See id. A panel of this Court affirmed the trial court’s suppression
ruling, finding both the stop was illegal and “all of the occupants had standing
to challenge the constitutionality of the vehicle stop.” Id. at 284.
Thereafter, the Supreme Court granted an appeal on a narrow issue:
“Does the Fourth Amendment entitle a defendant to suppress the fruits of a
search where it is undisputed that he had no privacy interest in the car
searched?” Id. at 284. The Court explained:
It is critical first to underscore what is not at issue in this
case. We are not weighing the correctness of the trial court’s
factual findings. Nor are we assessing that court’s determination
that the vehicle stop was unconstitutional. Moreover, we are not
reviewing the validity of the Superior Court’s affirmance of those
particular holdings. For purposes of this appeal, we accept
that the stop was unconstitutional, and we limit our focus to
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the question upon which we granted allocatur. We inquire
whether, following an unconstitutional vehicle stop, the Fourth
Amendment requires a passenger to demonstrate a reasonable
expectation of privacy in those areas of the vehicle that
are searched and that yield incriminating evidence, or whether
that evidence automatically is suppressible as fruit of the
poisonous tree, regardless of the presence or absence of an
expectation of privacy?
Commonwealth v. Shabezz, 166 A.3d 278, 284-285 (Pa. 2017) (footnote
omitted). The Supreme Court ultimately held the subject of an illegal seizure
need not demonstrate a reasonable expectation of privacy in the areas
searched to prove a violation of the Fourth Amendment. See id. at 290.
Further, applying the fruit of the poisonous tree doctrine, the Court concluded
the search of the vehicle was an “‘exploitation’ of the constitutional
violation[,]” i.e., the vehicle stop, and, the defendant’s brief flight from the
scene was “insufficient to purge the taint of the initial illegality.” Id.
Accordingly, the Supreme Court affirmed the suppression of the evidence.
We emphasize that the Supreme Court in Shabezz did not consider the
legality of the initial stop. Indeed, the Court accepted the determination of
the trial court that the stop was unconstitutional. See id. at 284.
Furthermore, in that case, the defendant did not abandon evidence while
fleeing from police. Rather, the focus of the Court’s inquiry was whether the
search of the vehicle, in which the defendant was a passenger, was derivative
of the illegal stop, and if so, whether the defendant had to demonstrate a
reasonable expectation of privacy in the vehicle to justify suppression of the
evidence.
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Conversely, in the present case, we have concluded both the initial stop
at the gas station lot, and the later stop following the high speed chase, were
lawful. Those facts alone distinguish this case from Shabezz. Furthermore,
here, Officer Bogan observed Thomas pull an object from his waistband and
discard it as he fled from police. Thereafter, a firearm was recovered in the
area where the item was discarded. Thomas’s convictions were based on his
possession of that firearm, not on any evidence recovered from the Kia.
Accordingly, we conclude the Supreme Court’s decision in Shabezz is clearly
distinguishable, and Thomas’s first issue fails.9
Next, Thomas argues the evidence presented by the Commonwealth
was insufficient to support his convictions. Our standard of review of
sufficiency claims is well-settled:
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
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9Because we conclude (1) the initial stop was supported by probable cause,
and, (2) the driver’s attempt to evade police by fleeing at a high rate of speed
provided additional support for the subsequent chase, we need not address
Thomas’s argument suppression of the firearm was warranted as fruit of the
poisonous tree or coerced abandonment.
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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. Estepp, 17 A.3d 939, 943–44 (Pa. Super.
2011) (citing Commonwealth v. Brooks, 7 A.3d 852, 856–57
(Pa. Super. 2010)). “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, 426
Pa.Super. 362, 627 A.2d 183, 185 (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) (quoting Commonwealth v.
Badman, 398 Pa.Super. 315, 580 A.2d 1367, 1372 (1990)).
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal
denied, 95 A.3d 275 (Pa. 2014).
Here, Thomas was convicted of persons not to possess firearms, and
possession of a firearm without a license. See 18 Pa.C.S. §§ 6105(a)(1) and
6106. He only challenges the “possession” element of those convictions.
Indeed, Thomas insists the evidence was insufficient “to support a finding that
[Thomas] possessed the firearm retrieved by Officer Bogan[.]” Thomas’s Brief
at 23. His entire argument on this issue consists of the following paragraph:
While Officer Bogan testified that he saw [Thomas] reach
into his waistband, and throw an object while running, he was
unable to identify the object that was thrown, and was unable to
describe the shape or size of the object. Although Officer Bogan
was able to locate a Glock 23 semi-automatic handgun in the
vicinity of where [Thomas] was taken into custody, the handgun
was processed and tested, and no DNA, fingerprints, or identifying
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information for [Thomas was] found on the gun at all. No further
evidence linking the firearm to [Thomas] was presented at trial.
Consequently, the element of possession as never established by
the Commonwealth, and the Trial Court should have entered a
verdict of not guilty.
Thomas’s Brief at 24 (record citations omitted).
In rejecting Thomas’s claim, the trial court opined:
The objective evidence is that [the firearm] was recovered
in close proximity to [Thomas]. Officer Bogan testified that he
saw [Thomas] remove something from his waist area, throw it and
that when he went to the area where the object had been thrown
he recovered [the firearm]. Detective Shave testified that no
other contraband was recovered in proximity to [Thomas].
How to explain the presence of the gun? The idea that a
fully loaded handgun [] was left on the ground in plain view to be
found by anyone in the area is not a viable explanation. A viable
explanation is that the unseen object thrown by [Thomas] was the
handgun recovered by Officer Bogan from the very area where he
observed something to be thrown. I was and am satisfied beyond
a reasonable doubt that the Commonwealth proved [Thomas] was
in possession of [the firearm].
Trial Court Opinion, 10/4/2017, at unnumbered 2.
We find no error or abuse of discretion in the trial court’s ruling. Officer
Bogan’s testimony – that he observed Thomas throw something during the
pursuit and, immediately thereafter, recovered a loaded firearm in the area
where the object was thrown – was, if found credible by the trial court, itself
sufficient to support the verdict. Indeed, Thomas provides no authority for
his assertion that possession cannot be established absent fingerprint or DNA
evidence.10 Thomas’s argument more appropriately focuses on the credibility,
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10 Indeed, we note there was also no evidence presented that the fingerprints
or DNA of either of the two other fleeing suspects was recovered from the
firearm.
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or lack thereof, of Officer Bogan’s testimony, which constitutes a challenge to
the weight of the evidence. However, because Thomas did not raise a weight
of the evidence claim either before, during or after sentencing, it is waived on
appeal. See Pa.R.Crim.P. 607(A). Accordingly, Thomas is entitled to no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/18
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