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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                      v.

ANTWAIN SMITH,

                           Appellant                   No. 479 EDA 2016


         Appeal from the Judgment of Sentence of December 17, 2015
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012108-2014

BEFORE:     OLSON, STABILE AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                               FILED APRIL 04, 2017

        Appellant, Antwain Smith, appeals from the judgment of sentence

entered on December 17, 2015, as made final by the denial of Appellant's

post -sentence motion on January 5, 2016. We affirm.

        The trial court has ably summarized the underlying facts of this case:

          On   October 8, 2014, at 8:30 p.m., Philadelphia Police
          Officer Bryan Outterbridge set up [] narcotics surveillance
          on the 4400 block of North 17th Street. Officer Outterbridge
          conducted his surveillance from an unmarked police vehicle.
          He considered the area well -lit given that there were several
          light posts and flood lights on the block.

          During his surveillance, Officer Outterbridge observed co-
          defendant Alpha Johnson standing in a doorway when he
          was approached by [Appellant].          [Appellant] and co-
          defendant Johnson engaged in a brief conversation. During
          their conversation, Officer Outterbridge observed co-
          defendant Johnson reach into his waistband to retrieve a
          silver firearm and hand the firearm to [Appellant], who
          secured the firearm in his right waistband. [Appellant] then
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          walked northbound on 17th Street until he entered a bar at
          the corner of 17th and Wingohocking Streets.          Officer
          Outterbridge radioed his backup team of his observations
          (black male, red shirt, blue jeans entered a bar with a
          firearm) and instructed them to stop [Appellant]. Officer
          Outterbridge testified that he recognized the item passed to
          [Appellant] as a firearm based upon his observation of the
          receiver and hand grips of the firearm as well [as] his
          personal experience carrying and using firearms.

          Philadelphia Police Officer Ernes Toland was one of the
          backup officers to Officer Outterbridge.     Officer Toland
          received information from Officer Outterbridge that a black
          male with a red shirt and blue pants entered a bar located
          at 17th and Wingohocking Streets with a firearm. Upon
          entering the bar, Officer Toland observed [Appellant], who
          was the only person in the bar wearing a red shirt and blue
          pants. Officer Toland asked [Appellant] to stand up so that
          he could be searched. Following a search of [Appellant],
          Officer Toland's partner recovered a silver firearm from
          [Appellant's] right waistband. The firearm was loaded with
          one round in the chamber and 15 rounds in the magazine.

          [Appellant] stipulated that he did not have a license to carry
          a firearm,   that the firearm was operable, and that
          [Appellant] had a prior conviction that prohibited him from
          carrying or possessing a firearm.
Trial Court Opinion, 6/8/16, at 1-2 (internal citations and some internal

capitalization omitted).

        Following     a   jury trial, Appellant was convicted of possession of         a

firearm by   a   prohibited person, firearms not to be carried without      a   license,

and carrying     a   firearm on   a   public street in Philadelphia.' On December 17,




'   18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.




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2015, the trial court sentenced Appellant to serve an aggregate term of five

to ten years in prison for his convictions.

        Appellant   filed   an    untimely post -sentence        motion   on   Tuesday,

December 29, 2015. Within this motion, Appellant requested that:

          [the trial] court reconsider its original sentence because
          [the sentence] was excessive given the nature and
          circumstances of [Appellant], the facts of the underlying
          case, and the disproportionate nature of [Appellant's]
          sentence as compared to the much lighter sentence
          imposed on the co-defendant, who was known to police and
          was also in possession of the firearm based upon the verdict
          of the jury.
Appellant's      Post -Sentence     Motion,    12/29/15,    at     2   (some    internal

capitalization omitted).

        On January 5, 2016, the     trial court entered an order declaring: 1) that

Appellant's "petition to allow his [post -sentence motion] to be filed nunc pro

tunc [wa]s granted" and 2) that Appellant's post -sentence motion was

denied.     Trial Court Order, 1/5/16, at          1   (some internal capitalization

omitted). Appellant filed    a   timely notice of appeal on February 1, 2016.
        Appellant raises two claims to this Court:

          [1.] Is [Appellant] entitled to an arrest of judgment where
          the evidence is insufficient to sustain the verdict?

          [2.] Is [Appellant] entitled to a new trial where the greater
          [] weight of the evidence does not support the verdict?
Appellant's Brief at 3.

        Appellant first claims that the evidence was insufficient to support his

convictions. This claim fails.

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        We review Appellant's sufficiency of the evidence claim under the

following standard:

          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 [that of] 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 trier 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. Brown,           23 A.3d 544, 559-560 (Pa. Super. 2011) (en

banc) (internal quotations and citations omitted).          Further, as our Supreme

Court has held,    a   claim that "the testimony presented to the [fact -finder]

was so unreliable and contradictory that the[] verdict could only have been

arrived at through speculation and conjecture       .   .   .   [is]   a   challenge to the

sufficiency [of the evidence]."     Commonwealth v. Brown,                   52 A.3d 1139,

1156 n.18 (Pa. 2012).

        On appeal, Appellant seemingly acknowledges               that, if accepted as

true, the testimony of Officers Outterbridge and Toland                     is   sufficient to

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support his convictions. See Appellant's Brief at 7-10. However, Appellant

takes the rather remarkable position that "the police were simply lying" at

trial. Id. at 9. Specifically, Appellant claims, "the area in question was not

well lit   .   .   .   [,] there was          no     video surveillance            .   .    .   [, and]    the

Commonwealth could                    not produce other types of evidence, such                             as

fingerprints, DNA[,] or trace evidence[] that would have corroborated the

testimony of the police." Id. at 8-9.                      According to Appellant, "the lack of

corroboration, the lack of seeming veracity[,] and the lack of evidence

against [Appellant]       .   .   .   lead only to one conclusion, to wit, that this incident

did not happen the way the police said it did and, perhaps, that the police

were simply fabricating the entire story."                  Id. at 9-10.
        Appellant's      claim         on   appeal    is    frivolous.        To       be       sure,   Officer

Outterbridge specifically testified that the area in question was well -lit from

the "[s]everal streetlights on the block" and the floodlights from the

building. N.T. Trial, 9/9/15, at 53-54. Further, as the trial court explained:

           Officer Outterbridge watched as [Appellant] took possession
           of a silver handgun from co-defendant Johnson. While the
           object was being passed, Officer Outterbridge recognized
           the handgrip and receiver and immediately identified this
           object as a firearm. The officer had a clear, unobstructed,
           and well -lit view of [Appellant] concealing the firearm at his
           right waistband. Officer Outterbridge radioed to backup
           officers an accurate description of [Appellant], what he was
           wearing[,] and where he was located.           [M]inutes later,
                                                                  .   .   .


           when police officers entered the bar, [Appellant] was the
           only individual matching the description provided by Officer
           Outterbridge. Furthermore, the firearm was found precisely
           where Officer Outterbridge saw [Appellant] conceal it, i.e.,
           at his right waistband.

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Trial Court Opinion, 6/8/16, at 3.

        In no way can the testimony from Officer Outterbridge or Officer

Toland be considered "so unreliable and contradictory that the[] verdict

could only have been arrived at through speculation and conjecture."

Brown,    52 A.3d at 1156 n.18.   Appellant's sufficiency of the evidence claim

thus fails.

        For Appellant's final claim on appeal, Appellant contends that the

verdict was against the weight of the evidence.       This claim is waived, as

Appellant failed to raise the claim before the trial court.   See Pa.R.Crim.P.

607(A) (declaring that, to preserve   a   weight of the evidence challenge, the

appellant must raise the claim with the trial court before sentencing or in   a

post -sentence motion).

        Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 4/4/2017




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