Com. v. Waller, D. ( 2022 )

J-A16044-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DENNIS BERNARD WALLER, JR. :
:
Appellant : No. 2168 EDA 2021
Appeal from the Judgment of Sentence Entered July 13, 2021
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0005033-2019
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 23, 2022
Dennis Bernard Waller, Jr. (Waller) appeals from the judgment of
sentence entered in the Court of Common Pleas of Delaware County (trial
court) after his bench conviction of firearms not to be carried without a license
and persons not to possess a firearm.1 On appeal, he challenges the
sufficiency and the weight of the evidence. We affirm.
The trial court summarized the evidence at the non-jury trial as follows:
At trial, the Commonwealth first presented the testimony of
Officer German Sabillon. (N.T., 3/10/21. p. 21). Officer Sabillon
is a sixteen year veteran of the City of Chester Police Department.
(N.T., 3/10/21, p. 21). On February 1, 2019, Officer Sabillon was
on duty in the City of Chester, Delaware County, Pennsylvania and
assigned to the Highway Unit. (N.T., 3/10/21, p. 22). The
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 6106(a)(1), 6105(a)(1).
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weather conditions for February 1, 2019 included a light falling
snow that made driving difficult. (N.T., 3/10/21, p. 56). At 11:56
a.m. on February 1, 2019, Officer Sabillon received a radio
dispatch of an attempted robbery involving a firearm. (N.T.,
3/10/21, p. 22). The alleged perpetrators were identified as three
black males operating a dark red pickup truck with tinted
windows. (N.T., 3/10/21. p. 22).
Officer Sabillon was canvassing the City of Chester in his
marked police unit when he observed a vehicle matching the
description of the subject vehicle parked and facing eastbound
near 3rd Street and Central Avenue. (N.T., 3/10/21, p. 23).
Three black males were approaching the vehicle and appeared to
be preparing to enter the stationary motor vehicle. (N.T.,
3/10/21, p. 23). As Officer Sabillon was traveling westbound on
3rd Street and snow was falling, he was required to travel farther
down 3rd Street prior to making a U-turn to initiate a vehicle stop.
(N.T., 3/10/21, p. 23).
By the time Officer Sabillon executed the U-turn maneuver,
the red pickup truck had traveled to the corner of 3rd Street &
Central Avenue and was making a left turn onto Central Avenue.
(N.T., 3/10/21, p. 23). Officer Sabillon also turned onto Central
Avenue in pursuit, but a vehicle was now between his marked
police unit and the dark red pickup. (N.T., 3/10/21, pp. 23 & 26).
Although the vehicles were traveling slowly given the snow and
the uphill grade of that portion of Central Avenue, Officer Sabillon
was eventually able to pull directly behind the dark red pickup.
(N.T., 3/10/21, p. 27). At or near the intersection of Central
Avenue and 9th Street, Officer Sabillon activated the lights and
sirens of his marked unit to conduct a traffic stop; however, the
dark red pickup failed to yield. (N.T., 3/10/21, p. 29). The dark
red pickup turned right onto 9th Street with Officer Sabillon still
in pursuit. (N.T., 3/10/21, p. 29).
At 7th Street and Tillman Street, the dark red pickup
stopped, two black male passengers exited and attempted to flee
the scene on foot. (N.T., 3/10/21, pp. 29-30). The operator of
the red pickup did not flee the vehicle and was detained by Officer
Sabillon. (N.T., 3/10/21, pp. 30-31). At trial, Officer Sabillon
identified Appellant Waller as one [of] the two men who exited the
dark red pickup truck and attempted to flee from police. (N.T.,
3/10/21, p. 35). When Appellant Waller attempted to flee the
scene, he was observed by Officer Sabillon holding the waistband
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of his pants when he began to run. (N.T., 3/10/21, p. 48). Based
on his training and experience, Officer Sabillon believed Defendant
Waller to be concealing some object in his waistband. (N.T.,
3/10/21, p. 48). Appellant Waller was ultimately taken into
custody that day when he was located at or near 7th Street and
Central Avenue in the Senior Village retirement community. (N.T.,
3/10/21, p. 50).
After Officer Sabillon restrained the driver of the red pickup
truck, Officer Sabillon joined by Officer Shiller, canvassed the area
where Appellant Waller had fled and was ultimately apprehended.
(N.T., 3/10/21, p. 31). Officer Sabillon tracked a single set of
footprints left in the snow to a barbeque grill located outside one
of the residential units. (N.T., 3/10/21, pp. 31, 64, & 73). Officer
Shiller opened the grill and the officers observed and secured a
firearm that was stored inside. (N.T., 3/10/21, p. 31, Exh. C-3).
The footprints in the snow created by the fleeing offender
appeared to be made by a Timberland boot. (N.T., 3/10/21, pp.
36 & 75, Exhs. C-4, C-5). When Appellant Waller was taken into
custody, he was wearing Timberland boots and those boots were
photographed by police. (N.T., 3/10/21, pp. 36 & 75; Exh. C-6).
The tread on the sole of Defendant Waller’s boots matched the
footprints left in the fresh snow near the grill where the handgun
was located. (N.T., 3/10/21, p. 75, Exhs. C-5 & C-6). This Court
found the testimony of Officer Sabillon to be competent, candid,
and credible.
The Commonwealth next presented the testimony of Police
Officer Robert Ticknor. (N.T., 3/10/21, p. 96). Officer Ticknor is
an eight-year veteran of the City. of Chester Police Department.
(N.T., 3/10/21, p. 97). On February 1, 2019, Officer Ticknor was
on patrol in the City of Chester dressed in full police uniform and
operating a marked patrol vehicle. (N.T., 3/10/21, p. 97). At or
near 7th Street and Tilghman Street, Officer Ticknor observed a
suspect matching the description of a reported suspect who fled a
traffic stop. (N.T., 3/10/21, p. 97). Officer Ticknor pursued this
individual and later observed him moving from home-to-home
attempting to force entry through the rear doors of those units.
(N.T., 3/10/21, pp. 99-100 & 106). Officer Ticknor identified
himself as a police officer and instructed the individual to halt but
the suspect failed to comply. (N.T., 3/10/21, p. 103). At trial,
Officer Ticknor identified Appellant Waller as the suspect he
pursued on February 1, 2019. (N.T., 3/10/21, pp. 99-100).
Officer Ticknor radioed in Appellant Waller’s position to his fellow
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officers, as Officer Ticknor was unsuccessful in apprehending
Appellant Waller. (N.T., 3/10/21, pp. 101-102). This Court found
the testimony of Officer Ticknor to be competent, candid, and
credible.
The Commonwealth also presented the testimony of Officer
Mark Crawford. (N.T., 3/10/21, p. 108). Officer Crawford is a
twenty-year veteran of the City of Chester Police Department.
(N.T., 3/10/21, p. 109). On February 1, 2019, Officer Crawford
was on patrol in the City of Chester dressed in full police uniform
and operating a marked patrol vehicle. (N.T., 3/10/21, p. 109).
Officer Crawford responded to a radio call issued at 11:54 a.m.
regarding a robbery at 6th Street and Penn Street, Chester,
Delaware County, Pennsylvania. (N.T., 3/10/21, p. 110). Officer
Crawford entered the scene on the 700 block of Tillman Street and
was informed two suspects had fled on foot from a stopped dark
red pickup. (N.T., 3/10/21, p. 110).
Officer Crawford canvassed that locale and observed an
individual matching the description of a robbery suspect exit the
area of a residential unit near a parking lot off Tillman Street.
(N.T., 9/23/20, p. 71). Officer Crawford directed that individual
to stop but the suspect continued to run south on Central Avenue.
(N.T., 3/10/21; p. 110). Officer Crawford pursued and observed
the fleeing suspect turn into the rear of the 600 block of Tilghman
Street. (N.T., 3/10/21, p. 11). Officer Crawford then observed
this individual at the backdoor of a residence and it appeared to
Officer Crawford the suspect was attempting to force entry into
the home. (N.T., 3/10/21, p. 112).
The suspect then fled towards Central Avenue approaching
Logans Way where he entered a waiting vehicle. (N.T., 3/10/21,
p. 113). This vehicle then traveled one block down Logans Way
towards Edwards Street when the suspect exited the vehicle and
fled in the direction of Chatham Estates also referred to as the
Senior Village. (N.T., 3/10/21, p. 113). Still in pursuit, Officer
Crawford approached the suspect, drew his firearm and directed
the suspect to stop. The suspect ultimately complied and was
taken into police custody. (N.T., 3/10/21, p. 113). At trial, Officer
Crawford identified Appellant Waller as the fleeing suspect he
apprehended on February 1, 2019. (N.T., 3/10/21, p. 114). This
Court found the testimony of Officer Crawford to be competent,
candid, and credible.
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The parties agreed to certain relevant stipulations. The
report of Detective Louis Grandizio of the Forensic Science Unit
Ballistics Section of the Delaware County District Attorney’s Office
Criminal Investigation Division was marked and admitted as
exhibit G-10. (N.T., 3/10/21, pp. 127-128). Detective Grandizio
determined the firearm secured by law enforcement on February
1, 2019 (Exh. C-9) was operational. (N.T., 3/1.0/21, pp. 128 &
Exh. C-10). Exhibit C-12 is Pennsylvania State Police Certificate
confirming Appellant Waller did not possess a valid license to carry
a firearm pursuant to 18 Pa.C.S. § 6109 nor did Appellant Waller
possess a Sportsman Firearm Permit issued under the provisions
of the 18 Pa.C.S. § 61069(c). (N.T., 3/10/21, p. 129, Exh. C-12).
Finally, exhibit C-13 is a certified record form the office of Clerk of
Courts, Chester County, Pennsylvania and confirms on July 9,
1998 Appellant Waller was sentenced for the following crimes: (1)
Criminal Attempt to Commit Murder with a sentence of thirteen to
twenty-six years and (2) Robbery of a Motor Vehicle with a
sentence of ten to twenty years. (N.T., 3/10/21, p. 130, Exh. C-
13).
Trial Court Opinion, 12/17/21, at 2-9 (footnotes omitted).
At the end of trial, the trial court found Waller guilty of the two above-
mentioned firearm offenses and later sentenced him to serve an aggregate
five to ten years’ imprisonment. Waller filed a post-sentence motion for
judgment of acquittal or new trial, which the trial court denied. After new
counsel was appointed, Waller filed this appeal challenging both convictions.
Waller first challenges the sufficiency of the Commonwealth’s evidence
to establish the possession element for both of his firearm convictions because
it had failed to prove beyond a reasonable doubt that he had possessed or had
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knowledge of the handgun found inside the grill.2 He argues that the
Commonwealth’s case relied primarily on a set of footprints from the
Timberland boot leading to the grill where the police found the firearm. While
he also wore Timberland boots, Waller notes that the Commonwealth
presented no evidence that the police took any measurements of the
footprints to match them to his boots. He also observes no evidence was
presented that the other male who fled was not wearing Timberland boots.
Moreover, Waller highlights that the Commonwealth presented no witnesses
who saw him with the firearm or place it inside the grill. To that end, he notes
that there was no forensic evidence matching him to the firearm.
However, the Commonwealth did present sufficient evidence to
establish that Waller possessed the firearm and discarded it just moments
before he was apprehended. First, Officer Sabillon testified that he stopped
the red pickup truck and saw Waller flee while holding the waistband of his
pants. Based on his training and experience, Officer Sabillon testified this
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2 “We review claims regarding 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. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (citation
omitted). “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. In conducting this review, the appellate court may not weigh the
evidence and substitute its judgment for the fact-finder.” Id.-6-
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matched someone concealing some object in his waistband, which the trial
court credited.
Second, as the trial court summarized above, the Commonwealth
presented three police officers who all testified to seeing Waller flee into the
same area where the grill was located. This, coupled with Officer Sabillon’s
observation of Waller holding his waistband while fleeing, would be enough to
establish the possession element for Waller’s offenses. See Commonwealth
v. Hewlett, 189 A.3d 1004, 1010 (Pa. Super. 2018) (finding evidence
sufficient to establish possession where police saw defendant flee a vehicle
clutching his waistband and saw him crouch behind parked vehicles where
they later recovered a firearm).
Finally, when the officers canvassed the area where Waller was seen
fleeing, the officers found footprints in the fresh snow that led directly to the
grill. These footprints were made by a Timberland boot—the same brand of
boot as those worn by Waller when he was arrested. Viewing this evidence in
the light most favorable to the Commonwealth as verdict winner, the
Commonwealth presented more than enough evidence to establish that Waller
discarded the firearm that was found inside the grill just after the pursuit.
In Waller’s second issue, he contends that his convictions were against
the weight of the evidence as to whether he had possession—actual or
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constructive—of the handgun.3 In his argument, Waller merely rehashes the
same points that he raised in his sufficiency argument, highlighting the
perceived deficiencies in the Commonwealth’s evidence that he possessed the
firearm in the grill while being chased. Again, while the Commonwealth did
not apprehend Waller in possession of the firearm, there was ample
circumstantial proof that Waller possessed the firearm: (1) Officer Sabillon
saw Waller flee while holding his waistband; (2) the officers saw Waller flee
into the same area where the firearm was found in the grill; (3) the officers
found footprints in the fresh snow leading directly to the grill in which the
firearm was found; and (4) the footprints were made by a Timberland boot
that were similar to those worn by Waller when he was arrested. When
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3 The standard applied to a weight of the evidence claim is as follows:
The decision to grant or deny a motion for a new trial based upon
a claim that the verdict is against the weight of the evidence is
within the sound discretion of the trial court. Thus, “the function
of an appellate court on appeal is to review the trial court’s
exercise of discretion based upon a review of the record, rather
than to consider de novo the underlying question of the weight of
the evidence.” An appellate court may not overturn the trial
court’s decision unless the trial court “palpably abused its
discretion in ruling on the weight claim.” Further, in reviewing a
challenge to the weight of the evidence, a verdict will be
overturned only if it is “so contrary to the evidence as to shock
one’s sense of justice.”
Commonwealth v. Williams, 176 A.3d 298, 312 (Pa. Super. 2017) (quoting
Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal citations
omitted)).
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considered together, the trial court did not abuse its discretion in denying
Waller’s post-trial motion for new trial.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2022
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