Com. v. Peters, D. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DESHAWN LEAL PETERS, :
:
Appellant : No. 1688 WDA 2015
Appeal from the Judgment of Sentence September 17, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No.: CP-25-CR-0000366-2015
BEFORE: OLSON, J., DUBOW, J., AND PLATT, J.*
MEMORANDUM BY DUBOW, J.: FILED AUGUST 09, 2016
Appellant, Deshawn Leal Peters, appeals from the Judgment of
Sentence entered in the Erie County Court of Common Pleas following his
convictions by a jury of Persons Not to Possess Firearms and Receiving
Stolen Property.1 Appellant challenges the sufficiency of the evidence and
the discretionary aspects of his sentence. We affirm.
The underlying facts, as summarized in the trial court’s 1925(a)
Opinion filed on January 7, 2016, are as follows:
In mid-October 2014, a functional .45 caliber firearm was
stolen from Casey Houghton’s home. On October 18, 2014,
police recovered the stolen firearm and arrested Appellant. The
facts surrounding Appellant’s arrest are as follows.
*
Retired Senior Judge Assigned to the Superior Court.
1
18 Pa.C.S. § 6105 and 18 Pa.C.S. § 3925, respectively.
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On October 18, 2014, Hillary Encrasion and Antonia
Sundberg observed Appellant, who was wearing a red hoodie
and carrying a firearm, along with another individual exit their
neighbor’s back door, creep around in their backyard, and
proceed down the alleyway to another house. They described
Appellant as a black male with short braided hair. Moments
later, Ms. Sundberg observed Appellant and the other individual
enter the front door of the home they previously exited.
Appellant was wearing a black t-shirt and no longer wore the red
hoodie.
Erie Police Department Lieutenant Anthony Talarico was
dispatched to the area and when he approached, he observed
Appellant in a black t-shirt exiting between two houses and
entering the witnesses’ neighbor’s residence. After police
approached the neighbor’s house, Appellant, now wearing a plaid
shirt, and at least five other individuals exited the residence.
While Appellant stood on the porch, both Encracion and
Sundberg unequivocally identified Appellant as the person they
observed carrying a firearm.
At the scene, Erie Police Department Officer Jamie Russo
received information from another officer that a firearm was
discarded in the alleyway. Russo located the firearm wrapped in
a red/blue sweatshirt with a pile of leaves freshly placed on top
of it. Police later determined this was Houghton’s stolen firearm.
DNA testing performed on both the firearm and sweatshirt failed
to link either item to a specific individual.
After his arrest, Appellant told police that he had picked up
the recovered firearm in the alleyway and immediately placed it
back down.
On June 17, 2015, following a two-day jury trial, Appellant
was found guilty of the aforementioned offenses. [The trial court
obtained and reviewed a Pre-Sentence Report.]
Trial Court Opinion, filed 1/7/16, at 1-2 (citations omitted).
At sentencing, the trial court took Appellant’s personal characteristics
and rehabilitative needs into consideration and reviewed the presentence
report. The trial court stated, “I’ve considered the Pennsylvania Sentencing
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Code and its various factors. I’ve got the benefit of a Pre[sentence Report].
. . . I’m going to impose a sentence right in the standard range of the
guidelines.” N.T. Sentencing, 9/17/15, at 10-11. The court then sentenced
Appellant to a term of 60 to 120 months’ imprisonment for possession of
firearm, and a concurrent term of 52 to 120 months’ imprisonment for
receiving stolen property. On September 28, 2015, Appellant filed a Motion
for Post Sentence Relief, which the trial court denied on September 29,
2015. On October 23, 2015, Appellant filed a Notice of Appeal. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents two issues for our review:
[1.] The evidence in this case was insufficient to prove that the
[Appellant] committed the crimes of Person Not to Possess
Firearms and Receiving Stolen Property[.]
[2.] The lower court commit[t]ed reversible error in that its
sentence was manifestly extreme and clearly unreasonable, and
not individualized as required by law, considering the
[Appellant’s] age, background and rehabilitative needs[.]
Appellant’s Brief at 2 (capitalization omitted).
Appellant first challenges the sufficiency of the evidence supporting his
convictions for Persons Not to Possess Firearms and Receiving Stolen
Property. We review claims challenging 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. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014).
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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. at 40. Moreover, a jury may base a conviction solely on
circumstantial evidence. Id. In conducting this review, the appellate court
may not weigh the evidence and substitute its judgment for that of the fact-
finder. Id.
The offense of Persons Not to Possess Firearms provides, in relevant
part, that “[a] person who has been convicted of an offense enumerated in
subsection (b) … 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.” 18 Pa.C.S. § 6105(a)(1),
(b).
The crime of Receiving Stolen Property is defined, in relevant part, as
follows:
A person is guilty of theft if he intentionally receives, retains, or
disposes of movable property of another knowing that it has
been stolen, or believing that it has probably been stolen, unless
the property is received, retained, or disposed with intent to
restore it to the owner.
18 Pa.C.S. § 3925(a).
“Possession can be found by proving actual possession, constructive
possession, or joint constructive possession.” Commonwealth v. Heidler,
741 A.2d 213, 215 (Pa. Super. 1999). Where a defendant is not found in
actual possession of the firearm, the Commonwealth must establish that the
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defendant had constructive possession of it to support the conviction.
Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013).
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. (citations omitted).
Constructive possession cases are fact-specific. See Commonwealth
v. Stembridge, 579 A.2d 901, 904 (Pa. Super. 1990) (noting the “difficulty
of drawing bright lines in this area of the law.”). “As with any other element
of a crime, constructive possession may be proven by circumstantial
evidence.” Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super.
1996).
Appellant argues that the Commonwealth failed to present any
evidence that connected Appellant to the previous burglary of the firearm.
Additionally, Appellant avers that no evidence demonstrated that he “knew
the gun was stolen or even intentionally exercised any control over the gun”
because he “picked up a gun and then put it down when he realized what it
was.” Appellant’s Brief at 9.
The trial court concluded that the evidence was sufficient to support
Appellant’s convictions for Persons Not to Possess Firearms and Receiving
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Stolen Property because the Commonwealth proved constructive possession
of the firearm. The court noted that Appellant “discarded the firearm in an
alleyway and attempted to conceal it by wrapping it in a sweatshirt and
placing it underneath a pile of leaves.” Trial Court Opinion, filed 1/7/16, at
3-5.
We agree with the trial court’s assessment. Two witnesses observed
Appellant in possession of the firearm and Appellant admitted to picking up
the stolen firearm. Moreover, the two witnesses and Officer Talarico
provided sufficient circumstantial evidence that Appellant constructively
possessed the stolen firearm because he attempted to discard the firearm in
an alleyway by wrapping it in his sweatshirt and covering it with a pile of
leaves. Accordingly, we reject Appellant’s sufficiency claims and affirm his
convictions.
Appellant next challenges the discretionary aspect of his sentence.
“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction
when challenging the discretionary aspects of a sentence.”
Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa. Super. 2015). The test
includes: (1) preserving the issue in the court below; (2) filing a timely
Notice of Appeal; (3) including a Pa.R.A.P. 2119(f) statement; and (4)
raising a substantial question for our review. Id. at 797-98 (citation
omitted); Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013).
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Our Supreme Court in Commonwealth v. Mouzon, 812 A.2d 617
(Pa. 2002), held that “allegations of an excessive sentence raise a
substantial question where the defendant alleges that the sentence violates
the requirements and goals of the Code and of the application of the
guidelines.” Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa. Super.
2005) (internal quotation marks omitted); see also Mouzon, at 435, 812
A.2d at 627. Moreover, a bald allegation of excessiveness will not suffice.
Fiascki, supra at 263; see also Mouzon, supra at 627.
This Court held that “where the sentencing judge had the benefit of a
presentence investigation report, it will be presumed that he or she was
aware of the relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004) (citation
omitted). An allegation that the sentencing court “failed to consider” or “did
not adequately consider” various factors is, in effect, a request that this
Court substitute its judgment for that of the lower court in fashioning
Appellant's sentence. Commonwealth v. Griffin, 804 A.2d 1, 9 (Pa.
Super. 2004) (citation omitted). Additionally, such an allegation does not
raise a substantial question that the sentence imposed was, in fact,
inappropriate. Id.
In the instant case, Appellant preserved his sentencing challenge in his
September 28, 2015 Post-Sentence Motion, and timely appealed. Appellant
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filed a 2119(f) Statement, stating that “the sentence was manifestly
excessive in that it was not individualized” and “the lower court abused its
discretion when it could have handed down a lesser sentence with a shorter
period of incarceration had it taken into consideration [Appellant’s] age,
background, and rehabilitative needs.” Appellant’s Brief at 6.
As an initial matter, we note that the Appellant bases his argument
that the sentence was manifestly excessive upon the assumption that the
trial court imposed consecutive, and not concurrent, sentences. Appellant’s
Brief at 10. This is incorrect. The trial court imposed concurrent sentences.
N.T. Sentencing, 9/17/15, at 11. Thus, this argument fails.
Appellant also erroneously assumes that the trial court failed to
consider that: (1) he was only 21 years old at the time of the incident; (2)
he had received a high school diploma while incarcerated at SCI Pine Grove;
(3) he has a three-month-old son; and (4) “he had found the weapon in
question and picked it up and otherwise had no connection to it.”
Appellant’s Brief at 10. Once again, the Appellant is misstating facts in the
record. Appellant provided the court with testimony about these four
mitigating circumstances, inter alia, during his sentencing hearing. N.T.
Sentencing, 9/17/15, at 6-7. The trial court just chose to place little weight
on these factors and the court’s discretion in doing so does not raise a
substantial question. Griffin, supra at 9.
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Appellant also failed to state in his Rule 2119(f) Statement “where the
sentence falls in relation to the sentencing guidelines[.]” Commonwealth
v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc). Appellant
notably omits this Rule 2119(f) requirement despite citing Goggins in his
Brief. Appellant’s Brief at 5. Since the trial court sentenced the Appellant
within the standard range set forth in the sentencing guidelines, the
Appellant’s failure to follow the requirements of Rule 2119(f) and mention
this fact, demonstrates Appellant’s lack of candor with the court. Appellant,
instead, just characterizes the sentence as “excessive” or “extreme” without
providing any legitimate basis to support his characterization. Thus, the
Appellant again has failed to articulate effectively a substantial question.
Because Appellant has failed to raise a substantial question, this Court
has no jurisdiction to review Appellant’s challenge to the discretionary
aspects of his sentence. Griffin, supra at 9.
In light of the mischaracterizations of the record recounted above, we
find it necessary to remind counsel of the obligations imposed by our Rules
of Appellate Procedure and the Pennsylvania Rules of Professional Conduct.
Pa.R.A.P. 2101 et seq.; Pa.R.P.C. 3.3(a)(1) (“Candor Toward the Tribunal”);
see also First Union Mortg. Corp. v. Frempong, 744 A.2d 327, 329 (Pa.
Super. 1999) (criticizing “cursory and factually incomplete” brief as
inadequate).
Judgment of sentence affirmed.
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Judge Olson and Judge Platt concur in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2016
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