Com. v. Paxton, O. ( 2016 )

J-S15036-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
OTTO PAXTON,
Appellant No. 230 EDA 2015
Appeal from the Judgment of Sentence August 22, 2012
in the Court of Common Pleas of Bucks County
Criminal Division at No.: CP-09-CR-0000231-2012
BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 02, 2016
Appellant, Otto Paxton, appeals nunc pro tunc from the judgment of
sentence imposed pursuant to his conviction of possession of a firearm by
person prohibited, possession of a firearm with altered manufacturer’s
number, prohibited offensive weapons, and possession of drug
paraphernalia.1 We affirm.
We take the following background from the trial court’s June 6, 2013,
and April 21, 2015, opinions, and our independent review of the certified
record.
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 6105(a)(1), 6110.2, and 908(a); and 35 P.S. § 780-
113(a)(32).
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Police began investigating [Appellant] and his brother
William Paxton in June of 2011. . . .
On July 12, 2011, police executed a search warrant at the
[Paxton home located at 2407 Bloomsdale Road, in Bristol
Township, Bucks County]. When police arrived at the residence,
William Paxton was on scene and was found to be in physical
possession of a plastic bag filled with a mix of rice and [2.0
grams of crack] cocaine.
A black Cadillac registered to [Appellant] was parked in
[front] of the Paxton residence. The registration to that vehicle
was found on the dining room table. The registration was valid
from June of 2011 to April of 2012. Police also found a
document addressed to [Appellant] at the Bloomsdale Road
address regarding medical services he received in September of
2010.
The residence had three bedrooms. In a bedroom
identified at trial as bedroom number one, police recovered two
firearms[, ammunition, cash, cocaine, and marijuana]. . . .
The evidence established that William Paxton utilized
bedroom number one. . . .
[Appellant utilized bedroom number two, which] was
locked when police arrived. After gaining entry by force police
found two handguns. A Jennings 9-millimeter semiautomatic
handgun, loaded with nine rounds, was located on a chair. A
Bryco Arms .380 semiautomatic handgun was found in a holster
in a box near the bed. Neither handgun was registered. In a
bag next to the bed, police found a box with loose ammunition.
In the bottom drawer of a dresser, police discovered a sawed-off
shotgun with the serial number obliterated. The shotgun was
previously owned by [Appellant’s] deceased father. A vest
containing twenty-four (24) rounds of shotgun ammunition was
found hanging in the closet. Inside another plastic bag, police
found a box containing rifle and pistol ammunition.
. . . The door to the second bedroom was separately
secured from the rest of the residence and was padlocked when
police arrived. None of William Paxton’s keys fit that lock.
Photographs of [Appellant] and mail addressed to [Appellant] at
the Bloomsdale Road address was found in the room. The mail
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was postmarked May and June of 2011 and January and
February of 2010. A wallet on top of the dresser in the room
contained [Appellant’s] Pennsylvania driver’s license indicating
an address of 2407 Bloomsdale Road. The wallet also contained
[Appellant’s] social security card and an identification card that
displayed [Appellant’s] photograph and signature. Inside a
second wallet found in the room, police found another
Pennsylvania driver’s license of [Appellant’s] and an
identification card from St. Mary’s Medical Center with
[Appellant’s] name and photograph. Police also found
[Appellant’s] birth certificate in the room. In the bottom drawer
of the dresser, next to the sawed-off shotgun, police found mail,
all of which was addressed to [Appellant].
The third bedroom served as a storage room. Inside that
room police found a pistol cleaning kit and mail addressed to
[Appellant] at 2407 Bloomsdale Road which included a box of
checks. Inside the closet of that room, police found two cigar
boxes filled with ammunition, a digital scale with white residue,
latex gloves, and three razor blades wrapped inside of a napkin,
all with white residue on them. The white material on the scale
and razor blades was tested and was identified as being cocaine-
based residue.
On July 13, 2011, the day after the execution of the search
warrant, police arrived at 2407 Bloomsdale Road and observed
[Appellant] removing items from the home.
At trial [Appellant] claimed to be living elsewhere but
admitted that he went to the Bloomsdale Road residence at least
two times per week. He admitted that the bedroom identified as
bedroom number two was, at one time, his bedroom.
[Appellant] also admitted that he knew that there were guns in
his room. [Appellant] denied knowing about the presence of the
sawed-off shotgun in the dresser claiming that he never used the
dresser in his bedroom. When asked to explain the presence of
his mail in the same drawer as the shotgun, [Appellant] claimed
that someone else put his mail there without his knowledge.
(Trial Court Opinion, 6/06/13, 1-5) (record citations and footnote omitted).
On April 27, 2012, at the conclusion of trial, the jury convicted
Appellant of possession of drug paraphernalia, possession of a firearm with
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altered manufacturer’s number, and prohibited offensive weapons. The trial
court found Appellant guilty of possession of a firearm by person prohibited.
On August 22, 2012, the court sentenced Appellant to an aggregate term of
not less than twelve-and-one-half nor more than twenty-five years’
incarceration, with one year of probation to run concurrently. On August 31,
2012, Appellant filed a motion for reconsideration that was denied by
operation of law on February 25, 2013. See Pa.R.Crim.P. 720(B)(3)(a).
On March 27, 2013, Appellant filed a pro se direct appeal. On April 1,
2013, the trial court ordered him to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). On April 15, 2013,
Appellant’s counsel filed a timely concise statement challenging the
sufficiency of the evidence.2 On May 15, 2013, Appellant filed an untimely
pro se concise statement of errors complained of on appeal raising additional
issues. On June 6, 2013, the trial court filed an opinion only addressing the
issue raised in the counseled statement, observing that Appellant was not
entitled to hybrid representation. (See Trial Ct. Op., 6/06/13, at 5 n.11).
On December 2, 2013, this Court dismissed Appellant’s appeal due to his
failure to file a brief.
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2
Appellant filed pro se applications for appointment of counsel on May 13
and 15, 2013. Because Appellant already was represented, the clerk of
courts time-stamped the motions and entered them on the docket, but no
further action was taken on them.
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On July 7, 2014, Appellant filed a pro se petition pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, wherein he sought
leave to file a post-sentence motion and appeal nunc pro tunc. The court
appointed PCRA counsel who filed an amended petition on November 3,
2014. On December 15, 2014, by agreement of the parties, the court
granted Appellant’s PCRA petition. Although the docket reflects that the
clerk of courts sent notice of the order to the parties, both the
Commonwealth and Appellant agree that they did not receive notice of the
order’s filing from the clerk of courts. (See Appellant’s Brief, at 16;
Commonwealth’s Brief, at 4). The trial judge’s clerk sent both parties an
email advising them of the order’s filing, but Appellant’s counsel represents
that she was not aware of it until after the time for filing post-sentence
motions nunc pro tunc had expired. (See Appellant’s Brief, at 16, n.12;
Commonwealth’s Brief, at 4). On January 12, 2015, Appellant filed a timely
notice of appeal. On April 6, 2015, Appellant filed a timely statement of
errors complained of on appeal, and the trial court filed an opinion on April
21, 2015. See Pa.R.A.P. 1925.
Appellant raises three issues for this Court’s review:
I. Was the evidence presented at trial insufficient to sustain
the verdicts of guilt with respect to Appellant’s convictions for
possession of a firearm with altered manufacturer’s number,
possession of offensive weapon and possession of firearm by
person prohibited?
II. Can Appellant raise a sentencing claim that counsel was
prevented from preserving in the [trial] court when [the] clerk of
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court[s] failed to serve the parties with a copy of the court’s
order reinstating Appellant’s post-sentence and direct appeal
rights nunc pro tunc?
III. Did the [trial] court commit reversible error and abuse its
discretion when it imposed three consecutive statutory
maximum sentences that exceeded the guidelines, were
manifestly excessive, and contrary to the fundamental norms
which underlie the sentencing process?
(Appellant’s Brief, at 6) (unnecessary capitalization omitted).
In his first issue, Appellant challenges the sufficiency of the evidence
to support his conviction of the possessory weapons charges. (See id. at
20-24). Appellant’s claim does not merit relief.
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. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (citation
omitted).
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Here, Appellant was convicted of three weapons charges, and he
argues that “the evidence was insufficient to establish that he constructively
possessed any of the weapons.” (Appellant’s Brief, at 21).3 We disagree.
When contraband is not found on the defendant’s person,
the Commonwealth must establish constructive possession. . . .
Constructive possession is the ability to exercise conscious
control or dominion over the illegal substance and the intent to
exercise that control. [T]wo actors may have joint control and
equal access and thus both may constructively possess the
contraband. The intent to exercise conscious dominion can be
inferred from the totality of the circumstances.
Commonwealth v. Jones, 874 A.2d 108, 121 (Pa. Super. 2005) (citations
and quotation marks omitted).
In finding the evidence sufficient to establish that Appellant possessed
the firearms located in the second bedroom of the house on Bloomsdale
Road, the trial court reasoned:
[Appellant] was frequently at the residence. (See N.T. Trial,
4/25/12, at 91; N.T. Trial, 4/26/12, at 140-41; N.T. Trial,
4/27/12, at 50). His vehicle registration and driver’s licenses
identified the Bloomsdale Road residence as his current address.
(See N.T. Trial, 4/26/12, at 31, 34, 59). He received mail at
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3
“In order to establish a prima facie case of [p]erson not to [p]ossess
[f]irearms, the Commonwealth must prove that a person possessed a
firearm and had a prior conviction of an offense listed in 18 Pa.C.S.[A.]
section 6105(b).” Commonwealth v. Williams, 911 A.2d 548, 550-51
(Pa. Super. 2006) (citation omitted). Pursuant to the crimes code, “[n]o
person shall possess a firearm which has had the manufacturer’s number
integral to the frame or receiver altered, changed, removed or obliterated.”
18 Pa.C.S.A. § 6110.2(a). The Crimes Code additionally provides, in
pertinent part, “[a] person commits a misdemeanor of the first degree if,
except as authorized by law, he . . . possesses . . . [a] sawed-off shotgun[.]”
18 Pa.C.S.A. § 908(a), (c).
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that address and kept important documents and other personal
items in bedroom number two of that residence. (See id. at 29,
31-34, 47-49, 59-60). [Appellant] admitted that the bedroom
where the relevant firearms were found had been his bedroom.
(See N.T. Trial, 4/27/12, at 42). Finally, [Appellant] admitted
that he knew guns were in the room. (See id. at 42, 53). This
evidence is sufficient to establish that [Appellant] exercised
dominion and control over the separately secured bedroom and
the weapons located inside that bedroom in the Paxton
residence. See Commonwealth v. Santiesteban, 552 A.2d
1072, 1074-75 (Pa. Super. 1988)[, appeal denied, 571 A.2d 382(Pa. 1989)] (finding trier of fact could infer constructive
possession where the defendant lived in house, had access and
control of floor where the contraband was recovered, and large
amount of cash was found in his bedroom); Commonwealth v.
Keefer, 487 A.2d 915, 918 (Pa. Super. 1985) (finding evidence
sufficient to support inference that defendant maintained control
over bedroom where drugs were seized and, thus, over the
drugs, where men’s clothing and receipts, one with the
property’s address listed as defendant’s, were found in
bedroom). . . .
(Trial Ct. Op., 6/06/13, at 6-7) (record citations provided).
After our own independent review of the record, we agree with the
findings of the trial court. Viewing the evidence in the light most favorable
to the Commonwealth as verdict winner, we conclude that the trial court did
not abuse its discretion when it found that there was sufficient evidence that
Appellant constructively possessed the firearms to support his convictions.
See Harden, supra at 111; Jones, supra at 121. Appellant’s first issue
does not merit relief.
In Appellant’s second issue, he argues that his third claim, which
challenges the discretionary aspects of his sentence, should not be waived
for his failure to file a post-sentence motion addressing and preserving the
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allegation,4 because the clerk of courts failed to forward him a copy of the
trial court’s order reinstating his right to file post-sentence motions and an
appeal nunc pro tunc. (See Appellant’s Brief, at 24-28).
Pursuant to Pennsylvania Rule of Criminal Procedure 114, upon
receiving an order for filing, the clerk of courts is required to serve a copy of
the notice on the parties’ counsel in writing by personal delivery or mail.
See Pa.R.Crim.P. 114(B).
In this case, the docket includes a notation by the clerk of courts
regarding when it provided notice of the trial court’s order to counsel. (See
Trial Court Docket, CP-09-CR-0000231-2012, at 16). However, the filed
order does not have a document appended to it that contains the addresses
to where the clerk sent notice, as is present with other trial court orders.
(Compare Order, 12/15/14 with, e.g., Order, Trial Court Opinion, 4/21/15,
at attachment and Order, 1/15/15, at attachment). Indeed, both the
Commonwealth and Appellant agree that they did not receive notice of the
entry of the court’s order from the clerk of courts. (See Appellant’s Brief, at
16; Commonwealth’s Brief, at 4). Although the court’s law clerk apparently
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4
It is well-settled that “[i]ssues challenging the discretionary aspects of
sentence must be raised in a post-sentence motion or by presenting the
claim to the trial court during the sentencing proceedings. Absent such
efforts, an objection to a discretionary aspect of a sentence is waived.”
Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004), appeal
denied, 860 A.2d 122 (Pa. 2004) (citations and internal quotation marks
omitted).
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did email a copy of the signed order to the parties, such a means of serving
notice is not authorized by Rule 114. (See Appellant’s Brief, at 16 n.12;
Commonwealth’s Brief, at 4); Pa.R.Crim.P. 114.5
Based on the foregoing breakdown in the court system, we will not
penalize Appellant for his failure to file post-trial motions raising the
discretionary aspects of sentence claim and, in the interest of justice, we
decline to deem Appellant’s sentencing claim waived. See Commonwealth
v. Hess, 810 A.2d 1249, 1255 (Pa. 2002) (holding that because defendant
did not receive order directing him to file concise statement of matters
complained of on appeal, he could not be penalized for failing to file timely
statement or found to have waived all claims for purposes of appellate
review); accord Commonwealth v. Parks, 768 A.2d 1168, 1172 (Pa.
Super. 2001). Accordingly, we will address the merits of Appellant’s third
claim.
In his third issue, Appellant claims that the trial “court imposed a
sentence that exceeded the aggravated range of the Sentencing Guidelines
without adequately setting forth its reasons on the record, and [] improperly
[relied] on the severity of the crime and the nature of the charges for which
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5
We are cognizant that the parties stipulated to the court’s order granting
Appellant’s PCRA petition and permission to filed post-sentence motions and
an appeal nunc pro tunc. However, there is nothing in Rule 114 that states
the clerk of courts is not required to provide notice of the order’s filing where
the parties stipulate to its terms. See Pa.R.Crim.P. 114.
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[he] had been previously convicted . . . .” (Appellant’s Brief, at 29-30).
Appellant’s challenge to the discretionary aspects of his sentence “must be
considered a petition for permission to appeal.” Commonwealth v. Best,
120 A.3d 329, 348 (Pa. Super. 2015) (citations omitted).
The Rules of Appellate Procedure mandate that, to obtain review
of the discretionary aspects of a sentence, the appellant must
include in his brief a Concise Statement of Reasons Relied Upon
for Allowance of Appeal. See Pa.R.A.P. 2119(f). This statement
must raise a substantial question as to whether the trial judge,
in imposing sentence, violated a specific provision of the
Sentencing Code or contravened a fundamental norm of the
sentencing process.
Id. (citations and quotation marks omitted).
Here, Appellant’s claim raises a substantial question. See
Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa. Super. 2002), appeal
denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148 (2005) (“A
claim that the sentencing court imposed an unreasonable sentence by
sentencing outside the guideline ranges presents a ‘substantial question’ for
our review.”). Therefore, we will consider the issue’s merits.
Our standard of review of a sentencing challenge is well-settled:
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this context, an
abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
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Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012), appeal
denied, 63 A.3d 774 (Pa. 2013) (citations omitted).
The Sentencing Code requires a trial judge who intends to
sentence outside the guidelines to demonstrate, on the record,
his awareness of the guideline ranges. Having done so, the
sentencing court may, in an appropriate case, deviate from the
guidelines by fashioning a sentence which takes into account the
protection of the public, the rehabilitative needs of the
defendant, and the gravity of the particular offense as it relates
to the impact on the life of the victim and the community. In
doing so, the sentencing judge must state of record the factual
basis and specific reasons which compelled him or her to deviate
from the guideline ranges. When evaluating a claim of this type,
it is necessary to remember that the sentencing guidelines are
advisory only.
Griffin, supra at 7 (citations omitted); see also Glass, supra at 727-28(“the guidelines have no binding effect, create no presumption in sentencing,
and do not predominate over other sentencing factors—they are advisory
guideposts that are valuable, may provide an essential starting point, and
that must be respected and considered; they recommend, however, rather
than require a particular sentence.”) (citation omitted).
In this case, when explaining its reasons for Appellant’s sentence, the
court stated, in pertinent part:
[Appellant] has been convicted of possessing [a 9-millimeter
Jennings handgun] when he is precluded from doing so as a
result of a felony conviction. . . .
. . . He is also charged with possessing a firearm with an altered
serial number, which is the .38 caliber semiautomatic
handgun[.]
He has also been convicted by a jury of possessing a
prohibitive offensive weapon, which is a sawed-off shotgun . . . .
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. . . [T]here is . . . absolutely no explanation or reason to have a
sawed-off shotgun, other than to utilize that in order to commit
a crime.
There is no reason to have a firearm with an altered . . .
manufacturer’s number, except in order to use that to commit a
crime and go and have that weapon not be identified or
connected to [Appellant.] . . .
The purpose for possessing these weapons I am not going
to attribute to any particular purpose. . . . But, in any case,
these three weapons indicate without any doubt whatsoever that
these weapons were intended for criminal use, and only for
criminal use. Whatever that criminal use may be, it certainly
involves use of violence. And I take that into account.
I take into account that [Appellant] has engaged in
criminal conduct since at least as far back as 1982, [which
included convictions for assault, robbery, and third degree
murder.]
. . . [T]herefore, I find that the nature of the crime is such that it
requires incarceration for a long period of time. Since
[Appellant] has clearly not learned anything as a result of
incarceration in the state penitentiary, his history of criminal
conduct and his history during the course of his incarceration has
demonstrated that he is a violent individual who will use violence
when and if he deems it necessary;[6] and he will continue to do
so. The only way to protect the public from [Appellant] is to
remove him from the community for as long as possible.
There is no excuse or justification for [Appellant’s]
possession of these weapons. And to impose a lesser sentence
than I’m about to impose would depreciate the seriousness of
the crimes charged and would ignore his history of criminal
conduct and violence.
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6
While in prison, Appellant stabbed a fellow inmate and attempted to throw
a person off the tier of the sixth floor. (See N.T. Sentencing, 8/22/12, at
17).
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(N.T. Sentencing, 8/22/12, at 24-26). We agree.
We conclude that the trial court aptly stated its reasons for imposing
Appellant’s sentence, where it took into account the protection of the public,
and the gravity of the particular offenses as they related to the impact on
the community. See Griffin, supra at 7. The court also considered the
arguments of counsel, Appellant’s testimony, and the sentencing guidelines.
(See N.T. Sentencing, 8/22/12, at 11-15, 17-18, 26-27). Moreover, the
court had Appellant’s pre-sentence investigation report and therefore we
presume that it was aware of relevant information regarding his character
and weighed those considerations along with mitigating statutory factors.
See Best, supra at 348-49; (see also N.T. Sentencing, 8/22/12, at 5-6).
Based on the foregoing, we conclude that the trial court did not abuse
its discretion or commit an error of law by imposing Appellant’s sentence.
See Glass, supra at 727-28. Therefore, Appellant’s third issue does not
merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/2/2016
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