Com. v. Talley, R. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
REUBEN TALLEY :
:
Appellant : No. 294 WDA 2020
Appeal from the Judgment of Sentence Entered January 10, 2020
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001423-2019
BEFORE: DUBOW, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED: DECEMBER 8, 2021
Appellant, Reuben Talley, appeals from the Judgment of Sentence
entered after a jury found him guilty of multiple firearms offenses. He
challenges the sufficiency of the evidence. After careful review, we affirm.
We glean the following factual and procedural history from the trial
court’s Pa.R.A.P. 1925(a) Opinion and the certified record. On March 24,
2019, police responded to reports of a robbery and gunshots fired in the area
of East 22nd and Wallace Streets in Erie. When officers arrived, they saw shell
casings and a window screen lying on the sidewalk in front of 2111 Wallace
Street. An upstairs window screen was missing. Police recovered a Glock .40
pistol from the basement.
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* Former Justice specially assigned to the Superior Court.
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A video camera installed outside a business across the street from 2111
Wallace Street recorded two men fleeing south and showed multiple gunshot
flashes coming out of the upstairs window of the building at 2111 Wallace
Street. Many bullets hit the outside of the home across the street where
Clemence Krakowski lived. One of the bullets pierced through a window in Mr.
Krakowski’s living room window where he was sitting at his computer. The
bullet went through a clipboard Mr. Krakowski was holding, hit his computer
screen, and deflected off, grazing him on the side of his torso.
Jabril Hooks and Brent Rea, the residents of the upstairs apartment at
2111 Wallace Street, told investigating police officers that two men with guns
had robbed and pistol-whipped Mr. Hooks just outside the back door of the
building.1 Mr. Rea reported that he saw Appellant, who was staying with them,
holding a Glock handgun before and after hearing gunshots. Mr. Hooks told
the officers that Appellant fired the gun that evening but that he (Mr. Hooks)
did not actually see the gun.
The Commonwealth charged Appellant with Aggravated Assault,
Discharge of a Firearm Into an Occupied Structure, Recklessly Endangering
Another Person, Criminal Mischief, Possessing an Instrument of Crime, and
Persons Not to Possess Firearms.2 Appellant elected to represent himself after
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1 Appellant and Jabril Hooks refer to one another as “Cuz.”
2 18 Pa.C.S. §§ 2702(a)(1), 2707.1(a), 2705, 3304(a)(5), 907(a), and
6105(a)(1), respectively.
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the trial court conducted a thorough waiver colloquy with him. He proceeded
to a jury trial with stand-by counsel.
At trial, the Commonwealth presented testimony from Messrs.
Krakowski, Hooks, and Rea who testified regarding the events leading up to
and including the shooting incident. Hooks denied ever telling detectives that
Appellant shot the gun.
The investigating detective, Michael Hertel, testified regarding recorded
conversations he had with Hooks, Rea, and Appellant. The Commonwealth
played relevant portions of their recorded interviews for the jury, and the court
admitted the recordings into evidence. In addition, Detective Hertel testified
about a recorded jailhouse phone conversation Appellant had with Hooks’
father where Appellant tells him he doesn’t regret anything. In recounting the
event, Appellant told Hooks’ father, “I would not let him up the fucking steps.
I’m like, Cuz, move to the side, I’m ready to let this Jones go.” See N.T.,
11/15/19, at 24, 51.3
Detective Hertel further testified that the gun found in the basement
was not registered to Appellant, and that it belonged to someone other than
the home’s residents. On cross-examination, Detective Hertel could not
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3 Detective Hertel and Appellant engaged in extensive discussion at trial on
the meaning of the word “Jones,” the fact that the detective had heard a
firearm referred to on the street as a “Jones” over his many years as a police
officer, and his considering the meaning of “Jones” as used in the context of
Appellant recounting the events that occurred. On redirect, Detective Hertel
reiterated that Appellant himself had said during his discussion with Detective
Hertel, “I know there wasn’t a Jones the other day. I know there wasn’t a
pistol there.” See N.T., 11/15/19, at 33-36, 50.
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explain why the police officers did not contact the owner of the firearm found
in the basement.
A forensic expert from the Pennsylvania State Police testified that he
found gunshot residue on samples of clothing from Hooks, Rea, and Appellant.
A firearms expert testified that he tested the Glock found in the basement,
compared .40 caliber ammunition casings found on the street, and concluded
the casings found on the street had been shot from the Glock pistol found in
the basement at 2111 Wallace Street. Police Officer Jason Russell, who
collected evidence at the scene, testified, inter alia, that in addition to twelve
.40 caliber bullet casings found on the street, he also found an unspent bullet
in the kitchen within three to four feet of the back stairs leading to the back
door, and explained that it would have been ejected when the gun was cocked.
N.T., 11/14/19, at 29.
Appellant testified that he did not shoot a firearm that night, and that
he had no reason to fire a firearm. He also stated that he was not a snitch.
N.T., 11/15/19, at 59. On cross-examination, Appellant stated that he saw
the two robbers at the bottom of the steps pointing guns at him. He also
admitted that he said on one of the calls from prison, “I did what I did.” Id.
at 60.4
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4 The parties stipulated that Appellant was a person not to possess a firearm.
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Following the three-day trial, the jury convicted Appellant of the above
crimes.5
On January 10, 2020, the court imposed mitigated sentences
aggregating to a term of 6½ to 13 years’ incarceration. Appellant filed a post-
sentence motion, which the trial court denied.
On February 24, 2020, Appellant pro se filed a timely Notice of Appeal
and requested the appointment of counsel. The trial court appointed James
Pitnoyak, Esq., as appellate counsel and directed him to file a Pa.R.A.P.
1925(b) statement. After granting counsel four extensions, the court granted
a final extension and ordered Appellant to file the Rule 1925(b) Statement by
October 9, 2020. Appellant filed the Rule 1925(b) Statement on October 15,
2020, raising challenges to both the sufficiency and weight of the evidence
supporting his convictions. The court filed a responsive Rule 1925(a)
Opinion.6
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5 The court had bifurcated the charge of Persons Not to Possess Firearms.
After the jury announced the guilty verdicts on the other offenses, the court
sent the jury back to deliberate on the persons not to possess charge. They
returned a guilty verdict shortly thereafter.
6 The trial court first concluded that, because Appellant had filed an untimely
Pa.R.A.P. 1925(b) Statement, Appellant had waived the issues presented.
See Tr. Ct. Op., filed 11/9/20, at 3-4, citing Commonwealth v. Lord, 719
A.2d 306, 309 (Pa. 1998) and Commonwealth v. Castillo, 888 A.2d 775(Pa. 2005). The court, nonetheless, addressed the merits of the issues that
Appellant had presented in his Rule 1925(b) Statement.
In 2009, this Court recognized that the 2007 amendment to Rule 1925
somewhat altered the bright line rule established in Lord and Castillo, so that
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Appellant filed two requests for extensions of time to file his appellate
brief. Subsequently, Appellant hired private counsel, Tina Freyling, Esq., and
the court granted appointed counsel’s motion to withdraw. After receiving an
extension from this Court, Attorney Freyling filed Appellant’s brief, raising the
following issue for our review:
Did the Commonwealth present insufficient evidence to sustain
Appellant’s conviction for all charges when the evidence did not
establish any sufficient connection between the appellant and the
firearm in question[?]
Appellant’s Br. at 2.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “[O]ur standard
of review is de novo and our scope of review is plenary.” Commonwealth v.
Hutchinson, 164 A.3d 494, 497 (Pa. Super. 2017) (citation omitted). In
reviewing a sufficiency challenge, we determine “whether the evidence at trial,
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counsel’s complete failure to file a Rule 1925(b) Statement as ordered
constituted per se ineffective assistance for which the proper remedy is
remand for the filing of the Rule 1925(b) statement nunc pro tunc.
Commonwealth v. Burton, 973 A.2d 428, 430-432 (Pa. Super. 2009).
Relevant to this appeal, the Burton Court recognized that the untimely filing
of a Rule 1925(b) should “be treated no differently” than a statement not filed
at all, but also recognized that efficiency of the proceedings is paramount. The
Court, thus, held that “if there has been an untimely filing, this Court may
decide the appeal on the merits if the trial court had adequate opportunity to
prepare an opinion addressing the issues being raised on appeal.” Burton,
973 A.2d 433. The Burton holding is precedential. Here, because the trial
court prepared an opinion addressing the merits of Appellant’s issues, we will
decide this appeal on the merits.
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and all reasonable inferences derived therefrom, when viewed in the light
most favorable to the Commonwealth as verdict winner, are sufficient to
establish all elements of the offense beyond a reasonable doubt.”
Commonwealth v. May, 887 A.2d 750, 753 (Pa. 2005). “Further, a
conviction may be sustained wholly on circumstantial evidence, and 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.”
Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017). “In
conducting this review, the appellate court may not weigh the evidence and
substitute its judgment for the fact-finder.” Id.In his brief, Appellant does not challenge the specific statutory elements
of any of his crimes. Rather, he contends that “the Commonwealth’s evidence
did not sufficiently place [Appellant] in the position of having the firearm in
his possession at any time” and did not “connect [Appellant] to the discharge
of the firerarm[.]” Appellant’s Br. at 11-12. “[T]hus the evidence presented
on the charges other than possession was also not sufficient to prove that
[Appellant] was the individual who committed the crimes in question.” Id. at
12.
This Court has held that “[p]ossession 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 in actual possession of the recovered firearm, the
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Commonwealth must establish that the defendant had constructive possession
to support the conviction. Commonwealth v. Hopkins, 67 A.3d 817, 820
(Pa. Super. 2013).
“We have defined constructive possession as conscious dominion.”
Id. (citation omitted). “We subsequently defined conscious dominion as the
power to control the contraband and the intent to exercise that
control.” Id. (citation omitted). “To aid application, we have held that
constructive possession may be established by the totality of the
circumstances.” Id. (citation omitted).
It is well established that, “[a]s 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). 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 weapon. See, e.g., Commonwealth v. Davis, 743 A.2d 946, 953-54
(Pa. Super. 1999) (holding evidence was sufficient to prove constructive
possession over drugs found in common areas of apartment where defendant
entered apartment using his own key, possessed $800 in cash on his person,
and police recovered defendant’s identification badge, size-appropriate
clothing, and firearms from a bedroom).
It is insufficient to infer “dominion and control” when the Commonwealth
only provides evidence of the defendant’s presence. See Commonwealth v.
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Valette, 613 A.2d 548, 551 (Pa. 1992) (holding mere presence at a place
where contraband is found or secreted is insufficient standing alone to prove
constructive possession). Moreover, if the only inference that the fact-finder
can make from the facts is a suspicion of possession, the Commonwealth has
failed to prove constructive possession. Id. “It is well settled that facts giving
rise to mere ‘association,’ ‘suspicion’ or ‘conjecture,’ will not make out a case
of constructive possession.” Id.Here, the evidence established more than a “suspicion of possession” or
a “mere association.” As the learned trial court clearly and concisely
concluded in its Rule 1925(a) Opinion after detailing the testimony and other
evidence presented at trial:
A review of the totality of the of the evidence, conducted in the
light most favorable to the Commonwealth, leads to the
reasonable inference and conclusion that Appellant had the intent
and ability to control the firearm. Specifically, the testimony
established that gunshots were fired from the upstairs living room
window of 2111 Wallace Street. N.T. Day 2 at 206-207. The
recovered bullet casings were determined to have been fired from
a .40 caliber firearm. N.T. Day 2 at 5-6, 142. A Glock .40 caliber
pistol was found in the basement of 2111 Wallace Street. N.T.
Day 2 at 21. The basement was shared by the upstairs and
downstairs apartments of 2111 Wallace Street and accessible by
a shared hallway on the main floor. N.T. Day 2 at 20.
Immediately prior to the shots being fired, Appellant was observed
in the upstairs apartment of 2111 Wallace Street holding a Glock
.40 caliber pistol. N.T. Day 2 at 84-85. Appellant was placed in
the living room by witnesses at the time of the shooting. N.T. Day
2 at 158; N.T. Day 3 at 8-11, 16. Immediately after the shots
were fired, Appellant was again observed in the upstairs
apartment holding the Glock .40 caliber pistol. N.T. Day 2, at 90.
Appellant exited the apartment via the stairs and shared hallway
prior to the police arriving on the scene. N.T. Day 3, at 18.
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Gunshot residue tests were performed on an article of Appellant’s
clothing. Characteristic particles were found on the sleeves of
Appellant’s t-shirt and indicative particles were found on the chest
of the t-shirt. N.T. Day 3, at 122. [ . . . ] During his police
interview, Appellant referred to the firearm as a “Jones,” and did
so again during recorded prison phone calls in which he appeared
to accept responsibility for the incident. N.T. Day 3 at 19-25.
Also compelling is that no other resident of the apartment was
implicated in the shooting. Although Appellant posits that the
other individuals in the residence “may have used and fired the
gun,” there is an utter lack of evidence to support this claim.
Instead, the inference that can be derived from the totality of the
circumstances is that it was more likely than not that Appellant
possessed and used the firearm.
The evidence, although circumstantial, is sufficient to establish
Appellant was the individual who possessed and used the firearm.
Therefore, Appellant’s claim [that] the Commonwealth failed to
present sufficient evidence to prove constructive possession of the
firearm lacks merit and must be dismissed.
Tr. Ct. Op., Nov. 9, 2020, at 16-17.7
Considering the totality of the circumstances and viewing the evidence
in the light most favorable to the Commonwealth as verdict winner, we agree
with the trial court’s conclusion that the Commonwealth proffered sufficient
evidence from which the jury could draw a reasonable inference that Appellant
constructively possessed the firearm. Appellant is not, therefore, entitled to
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7 After concluding the evidence was sufficient to establish that Appellant
constructively possessed the firearm, the trial court reviewed the specific
statutory elements of each of the crimes underlying Appellant’s convictions
and the evidence presented to prove them and concluded that sufficient
evidence supported each conviction. Tr. Ct. Op., Nov. 9, 2020, at 19-22.
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relief on the sufficiency challenge presented in this appeal. We, thus, affirm
Appellant’s Judgment of Sentence.
Judgment of Sentence affirmed.
Judge King joins the memorandum.
President Judge Emeritus Stevens concurs in result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2021
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