J-S33016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TEQUILA HELEN JONES,

                            Appellant                 No. 1054 WDA 2015


             Appeal from the Judgment of Sentence May 14, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0013357-2014


BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                             FILED AUGUST 19, 2016

        Appellant, Tequila Helen Jones, appeals from the judgment of sentence

entered on May 14, 2015, as made final by the denial of a post-sentence

motion on June 10, 2015, following her bench trial conviction for receiving

stolen property,1 possessing a firearm without a license,2 and three motor

vehicle summary offenses.3 Upon reconsideration, we remand this case for

the preparation of a trial court opinion.

        The trial court summarized the facts of this case as follows:

          At trial, Homestead Police Officer James Wintruba testified
          that on September 20, 2014, at approximately 2:00 a.m.,
____________________________________________


1
    18 Pa.C.S.A. § 3925.
2
    18 Pa.C.S.A. § 6106(a).
3
    Appellant does not challenge her summary offense convictions on appeal.



*Former Justice specially assigned to the Superior Court.
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       he observed a vehicle traveling which he described as
       suspicious in nature. Officer Wintruba recognized the car as
       belonging to Appellant, and believed that Appellant did not
       possess a valid license and that the vehicle she drove was
       not registered or insured.     He passed the vehicle and
       observed the driver, Appellant, whom he recognized as the
       owner of the vehicle. The [o]fficer ran the registration plate
       as he passed the vehicle and it came back cancelled for
       insurance reasons. Before he was able to initiate a traffic
       stop, he was called away to another matter.            Officer
       Wintruba testified that he observed the same vehicle later
       that evening, and attempted to initiate a traffic stop.
       Appellant’s vehicle continued for three blocks before
       stopping. The [o]fficer observed Appellant, now in the
       passenger seat, and an unknown male in the driver’s seat
       (later identified as Frank Key[e]s). The [o]fficer observed
       Appellant turning left and right, disappearing behind the
       seat and then reappearing. Officer Wintruba suspected
       Appellant had placed something on the rear floor.

       Upon the [o]fficer’s approach to the vehicle, Appellant
       continued to move frantically. The driver, Keyes, appeared
       to be intoxicated.       Keyes’ eyes were squinted, his
       movements were lethargic and he reeked of alcohol.
       Corporal Jeff Luptak arrived as backup shortly after the
       traffic stop and took an observation point while Appellant
       searched her glove box for the registration. While Officer
       Wintruba was speaking with Keyes, Corporal Luptak
       shouted, “Gun, gun. There is a gun in the car.” Appellant
       and Keyes were quickly removed from the vehicle. Officer
       Wintruba observed a small black semiautomatic weapon on
       the passenger seat toward the center of the vehicle, the
       area from which Appellant was removed. Officer Wintruba
       later clarified that the gun was recovered from the area
       under Appellant’s left thigh. Neither Appellant nor Keyes
       had a valid license to carry a firearm.     Officer Wintruba
       testified that the gun was owned by Patrick Schmidt who
       had reported it as stolen. One fingerprint was recovered on
       the gun but it did not match Appellant or Keyes. Appellant
       made several statements at the scene that she was
       unaware of and quite surprised by the presence of a gun in
       the car. Keyes stated he switched places with Appellant
       because he felt she was too drunk to drive him home.


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         Corporal Luptak testified that when he arrived at the scene,
         he did not initially observe the firearm. He testified that he
         was at the passenger side window when he saw the
         handgun under Appellant’s leg as Appellant moved around
         inside the vehicle. Corporal Luptak testified that he saw the
         gun on the passenger seat with the barrel facing the driver’s
         side. He alerted the other [o]fficer and removed Appellant
         from the vehicle.

         Schmidt testified that he bought a 9mm caliber Kel-Tee
         pistol with a serial number S2526 at a gun show in January
         2014. Schmidt identified the gun that was recovered from
         Appellant’s car as the same weapon he purchased at the
         gun show. He testified that the gun had been stolen from
         him and that he had not given Appellant or Keyes
         permission to possess the firearm.

Trial Court Opinion, 1/15/2016, at 3-4 (record citations omitted).

       The trial court held a bench trial on May 14, 2015. At its conclusion,

the trial court convicted Appellant of the aforementioned crimes. Appellant

waived her right to the preparation of a pre-sentence investigation report

and proceeded directly to sentencing. The trial court sentenced Appellant to

three years of probation for possession of a firearm (with the first year

electronically monitored) and a concurrent term of three years’ probation for

receiving stolen property. The summary offenses resulted in a fine, but no

further penalties. This timely appeal resulted.4

____________________________________________


4
  Appellant filed a post-sentence motion nunc pro tunc on June 3, 2015,
arguing the convictions were against the weight of the evidence presented.
The trial court expressly accepted the late filing, but denied relief on the
merits by order entered on June 10, 2015. See Commonwealth v.
Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (If the trial court expressly
grants nunc pro tunc post-sentence relief, the time for filing an appeal is
tolled). On July 10, 2015, Appellant filed a notice of appeal. By order filed
(Footnote Continued Next Page)


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      On appeal, Appellant presents the following issue for our review:

         I.      Were the verdicts of guilty for receiving stolen
                 property and possession of a firearm without a license
                 [] rendered against the weight of the evidence
                 presented?

Appellant’s Brief at 4.

      Appellant claims that her convictions for receiving stolen property and

possessing a firearm without a license were against the weight of the

evidence presented by the Commonwealth. Appellant claims, “the testifying

officers stated [she] was highly intoxicated [and] seemed shocked when told

there was a gun present.”            Id. at 11.   Appellant further avers that the

fingerprint found on the firearm excluded her and that Mr. Keyes “admitted

that he sat in the passenger’s seat where the gun was found just prior to the

traffic stop.”   Id.    Appellant claims that the Commonwealth did not prove

she exercised conscious dominion over the firearm because “Officer

Wintruba specifically testified that the gun was not where he saw

[Appellant] leaning forward, and was within Mr. Keyes’ arm-length.” Id. at

                       _______________________
(Footnote Continued)

on July 16, 2015, the trial court directed Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
After the grant of an extension to obtain the necessary trial transcripts,
Appellant complied timely on September 22, 2015. The trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on January 15, 2016. On May 27,
2016, this panel filed a memorandum reversing Appellant’s conviction for
receiving stolen property, vacating the judgment of sentence for that
offense, and affirming her remaining convictions and sentence in all other
respects. On July 11, 2016, we granted the Commonwealth’s motion for
reconsideration. Accordingly, we will again review Appellant’s initial claim.



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14 (emphasis in original). Thus, based upon the totality of circumstances,

Appellant suggests, “Mr. Keyes placed the gun under her leg immediately

following the stop.”   Id. at 18.   Although Appellant concedes she had the

power to control the firearm, she maintains, under the circumstances

established at trial, the determination that she had the intent to exercise

control over the weapon was against the weight of the evidence. Id. at 16.

Finally, Appellant claims that because she did not know the firearm was

under her leg, she could not have known it was stolen. Id. at 18-19.

     Our Supreme Court has set forth our standard of review as follows:

        A motion for a new trial based on a claim that the verdict is
        against the weight of the evidence is addressed to the
        discretion of the trial court. A new trial should not be
        granted because of a mere conflict in the testimony or
        because the judge on the same facts would have arrived at
        a different conclusion. Rather, the role of the trial judge is
        to determine that notwithstanding all the facts, certain facts
        are so clearly of greater weight that to ignore them or to
        give them equal weight with all the facts is to deny justice.
        It has often been stated that a new trial should be awarded
        when the jury's verdict is so contrary to the evidence as to
        shock one's sense of justice and the award of a new trial is
        imperative so that right may be given another opportunity
        to prevail.

        An appellate court's standard of review when presented with
        a weight of the evidence claim is distinct from the standard
        of review applied by the trial court:

           Appellate review of a weight claim is a review of the
           exercise of discretion, not of the underlying question
           of whether the verdict is against the weight of the
           evidence. Because the trial judge has had the
           opportunity to hear and see the evidence presented,
           an appellate court will give the gravest consideration
           to the findings and reasons advanced by the trial

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           judge when reviewing a trial court's determination
           that the verdict is against the weight of the
           evidence. One of the least assailable reasons for
           granting or denying a new trial is the lower court's
           conviction that the verdict was or was not against
           the weight of the evidence and that a new trial
           should be granted in the interest of justice.

       This does not mean that the exercise of discretion by the
       trial court in granting or denying a motion for a new trial
       based on a challenge to the weight of the evidence is
       unfettered. In describing the limits of a trial court's
       discretion, [the Pennsylvania Supreme Court has]
       explained:

           The term discretion imports the exercise of
           judgment, wisdom and skill so as to reach a
           dispassionate conclusion within the framework of the
           law, and is not exercised for the purpose of giving
           effect to the will of the judge. Discretion must be
           exercised on the foundation of reason, as opposed to
           prejudice, personal motivations, caprice or arbitrary
           actions. Discretion is abused where the course
           pursued represents not merely an error of judgment,
           but where the judgment is manifestly unreasonable
           or where the law is not applied or where the record
           shows that the action is a result of partiality,
           prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations,

quotations, and emphasis omitted).

     “The weight of the evidence is exclusively for the finder of fact, who is

free to believe all, none or some of the evidence and to determine the

credibility of the witnesses.” Commonwealth v. Talbert, 129 A.3d 536,

545 (Pa. Super. 2015).    “Appellate review, therefore, is a review of the

exercise of discretion, not the underlying question whether the verdict is




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against the weight of the evidence.” Commonwealth v. Gibson, 720 A.2d

473, 480 (Pa. 1998).

      Here, the trial court conflated Appellant’s weight of the evidence claim

with a challenge to the sufficiency of the evidence. In her Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal, Appellant averred:

        The verdicts of guilt for [r]eceiving [s]tolen [p]roperty and
        [p]ossession of a [f]irearm [n]ot to be [c]arried [w]ithout a
        [l]icense were against the weight of the evidence, and
        shock one’s sense of justice. […] Here, where the
        investigating officers acknowledge her surprise at the
        presence of the weapon, [] Appellant’s fingerprints were not
        found on the gun after testing, and no evidence was
        presented indicting she knew, or had reason to have known,
        the weapon was stolen, the resulting verdicts shock one’s
        sense of justice and fairness.

Rule 1925(b) Statement, 9/22/2015, at 2 (emphasis added).

      Thereafter, in its Rule 1925(a) opinion, the trial court stated,

“Appellant alleges that the evidence was insufficient to establish guilt beyond

a reasonable doubt on the [r]eceiving [s]tolen [p]roperty and [p]ossession

of a [f]irearm [n]ot to be [c]arried [w]ithout a [l]icense counts.” Trial Court

Opinion, 1/15/2016, at 5.     The trial court then set forth the standard of

review for a challenge to the sufficiency of the evidence and analyzed

Appellant’s claims as such.    Id.   However, it is clear that Appellant was

challenging the weight, not sufficiency of the evidence.     In assessing the

weight of the evidence, “[t]he role of the trial judge is to determine that

notwithstanding all the facts, certain facts are so clearly of greater weight

that to ignore them or to give them equal weight with all the facts is to deny


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justice.” Clay, 64 A.3d at 1055.   We cannot decide the underlying question

of whether the verdict is against the weight of the evidence. Gibson, 720

A.2d at 480.   The trial court must first assess the weight of the evidence as

presented and we may then review the trial court’s exercise of discretion in

ruling on that claim.     See Clay, supra.    Hence, we are constrained to

remand this case to the trial court for a period not to exceed 60 days for the

preparation of an opinion pursuant to Pa.R.A.P. 1925(a) addressing

Appellant’s weight of the evidence claim.

     Case remanded for the preparation of an opinion consistent with this

memorandum. Jurisdiction retained.

     Justice Fitzgerald joins this memorandum.

     President Judge Gantman concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2016




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