J-A23045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JENNIFER STEPHENSON,                       :
                                               :
                       Appellant               :      No. 1519 WDA 2018

       Appeal from the Judgment of Sentence Entered September 7, 2018
                in the Court of Common Pleas of Venango County
              Criminal Division at No(s): CP-61-CR-0000163-2018

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                         FILED NOVEMBER 21, 2019

        Jennifer Stephenson (“Stephenson”) appeals from the judgment of

sentence imposed following her conviction of persons not to possess firearms.1

We affirm.

        On December 27, 2017, police officers from the Oil City Police

Department and the Venango County Sheriff’s Department arrived at

Stephenson’s residence at 707 Orange Street, Oil City, Pennsylvania, in an

attempt to serve a warrant on Benjamin Kachik (“Kachik”).          The officers

believed Kachik was staying with Stephenson. Stephenson gave the officers

permission to search her residence for Kachik. Oil City Police Chief Robert

Wenner (“Chief Wenner”) and Officer Regina Deloe (“Officer Deloe”) entered

one of the bedrooms, at which time Stephenson indicated that the bedroom

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1   See 18 Pa.C.S.A. § 6105(a)(1).
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was not hers, and that someone else, i.e., Justin Steetle (“Steetle”), was

staying there. The officers nevertheless checked the room and the closet,

where Chief Wenner observed a Mossburg .270 caliber rifle. Because Chief

Wenner had interacted with Stephenson previously, he knew that Stephenson

had prior felony convictions and was not permitted to possess a firearm.

Stephenson was subsequently arrested and charged with persons not to

possess firearms and receiving stolen property.

     A jury found Stephenson guilty of persons not to possess firearms, and

not guilty of receiving stolen property.   On September 7, 2018, following

preparation of a pre-sentence investigation report, the trial court sentenced

Stephenson to a term of 5 to 10 years in prison, with credit for time served.

Stephenson filed a timely Post-Sentence Motion, challenging the verdict as

against the weight of the evidence. The trial court denied the Post-Sentence

Motion.

     On October 22, 2018, Stephenson, through counsel, filed a Motion to

Reinstate Defendant’s Appellate Rights Nunc Pro Tunc, which the PCRA court

granted. Stephenson thereafter filed a Notice of Appeal and a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.

     Stephenson now raises the following issues for our review:

     I. The trial court erred as a matter of law when it denied
     [Stephenson’s] Motion for Mistrial[,] after the Commonwealth’s
     witness testified to a statement made by [Stephenson] that was




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       not given to the defense during discovery, which constitutes a
       violation of the Supreme Court’s holding in Brady v. Maryland.[2]

       II. The verdict in this case was against the weight of the evidence
       in that the evidence demonstrated that the firearm which forms
       the basis of the charge in this case was linked to someone else.

Brief for Appellant at 2 (footnote added).

       In her first claim, Stephenson argues that the trial court erred by

denying her Motion for Mistrial after Chief Wenner testified regarding a

statement allegedly made by Stephenson during the search of her residence.

Id. at 7. Specifically, Stephenson refers to her exchange with Chief Wenner

during the search, which Chief Wenner described at trial:

       [Chief Wenner]: [Stephenson] said, [“]I’m working with Trooper
       King.[”] I said, [“]you need to have him call me. It will take us
       some time to sort this weapon out. You know you’re a convicted
       felon. You know you can’t possess.[”] She goes [“]yes,[”] and
       she said, [“]I thought he got rid of it.[”]

       [ADA]: Why was that statement significant to you?

       [Chief Wenner]: She had knowledge it was there. She said it was
       [] Steetle’s.

       [ADA]: Is that the person she claimed was staying there at some
       point in time?

       [Chief Wenner]: Yes, and his girlfriend, absolutely.

N.T., 8/17/19, at 27-28; see also Brief for Appellant at 8.        Additionally,

Stephenson claims, Officer Deloe testified at trial that she did not hear the


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2  See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that the
prosecution must disclose evidence favorable to the accused that is material
either to guilt or punishment).

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conversation, and that Chief Wenner did not tell her to include Stephenson’s

statement in her report. Brief for Appellant at 8. Stephenson asserts that the

above-stated     testimony      constitutes     Brady     evidence,      which     the

Commonwealth failed to disclose prior to trial, and which resulted in prejudice.

Id. at 9-10.

             Our review of a trial court’s denial of a motion for a mistrial
      is limited to determining whether the trial court abused its
      discretion. An abuse of discretion is not merely an error of
      judgment, but if in reaching a conclusion the is overridden or
      misapplied, or the judgment exercised is manifestly unreasonable,
      or is the result of partiality, prejudice, bias or ill-will, discretion is
      abused.

Commonwealth v. Fletcher, 41 A.3d 892, 894 (Pa. Super. 2012) (citations

omitted). “The remedy of a mistrial is an extreme remedy required only when

an incident is of such a nature that its unavoidable effect is to deprive the

appellant of a fair and impartial tribunal.” Commonwealth v. Cornelius,

180 A.3d 1256, 1261 (Pa. Super. 2018) (citation omitted).

      Our Supreme Court has explained that,

      in order to establish a Brady violation, a defendant must show
      that: (1) evidence was suppressed by the state, either willfully or
      inadvertently; (2) the evidence was favorable to the defendant,
      either because it was exculpatory or because it could have been
      used for impeachment; and (3) the evidence was material, in that
      its omission resulted in prejudice to the defendant. However, the
      mere possibility that an item of undisclosed information might
      have helped the defense, or might have affected the outcome of
      the trial, does not establish materiality in the constitutional sense.
      Rather, evidence is material only if there is a reasonable
      probability that, had the evidence been disclosed to the defense,
      the result of the proceeding would have been different. A
      reasonable probability is a probability sufficient to undermine
      confidence in the outcome.

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Commonwealth v. Williams, 168 A.3d 97, 109 (Pa. 2017) (emphasis

added; citations, quotation marks, and brackets omitted).        Additionally,

Pa.R.Crim.P. 573 requires the Commonwealth to disclose certain materials

requested by the defendant’s attorney, including, inter alia, evidence

favorable to the accused or any written confession or inculpatory statement,

if they are material to the case. See Pa.R.Crim.P. 573(B)(1)(a), (b).

     Initially, we note that Stephenson did not object at the time Chief

Wenner provided the challenged testimony. Additionally, Stephenson did not

specifically argue that the challenged testimony constituted a Brady violation

in her Motion for Mistrial.    However, following Officer Deloe’s testimony,

Stephenson generally challenged the testimony as a violation of the

Pennsylvania discovery rules. See N.T., 8/17/18, at 69-74.

     The challenged portion of testimony, which Stephenson’s counsel

described as a “confession” made to Chief Wenner, N.T., 8/17/18, at 69, is

not exculpatory.   See Williams, supra.     Rather, the statement could be

described as inculpatory.     See N.T., 8/17/18, at 71-72 (wherein defense

counsel explained that Stephenson’s statements to Chief Wenner indicated

that she was aware that the firearm was in her home). Additionally, because

the challenged testimony related to Stephenson’s own statement to Chief

Wenner, the evidence was not exclusively within the control of the

Commonwealth.      See Commonwealth v. Spotz, 18 A.3d 244, 276 (Pa.

2011) (stating that “[t]here is no Brady violation when the appellant knew

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or, with reasonable diligence, could have uncovered the evidence in question,

or when the evidence was available to the defense from non-governmental

sources.”).   Further, concerning the Pennsylvania discovery rules, the trial

court determined that a mistrial was not warranted because Stephenson would

only suffer slight prejudice from the statement; the court directed the

Commonwealth not to refer to the statement; and the court offered to issue

a curative instruction, but Stephenson declined.      See Trial Court Opinion,

12/21/18, at 5-7.       We agree with the trial court’s assessment that any

prejudice resulting from the Commonwealth’s failure to disclose the statement

was minimal. Moreover, Stephenson had the opportunity to cross-examine

Officer Deloe regarding why the challenged statement was not included in the

police report. See N.T., 8/17/18, at 57-59, 67-68. Because we conclude that

that Commonwealth did not commit a Brady violation, and the trial court did

not abuse its discretion in denying a mistrial, Stephenson is not entitled to

relief on this claim.

      In her second claim, Stephenson argues that the verdict was against the

weight of the evidence. Brief for Appellant at 11. Specifically, Stephenson

claims that the evidence presented at trial links the firearm to Steetle, instead

of her. Id. Stephenson also claims that the Commonwealth failed to present

any evidence that would indicate that she knew that the firearm was in her

house. Id. at 12.

      We adhere to the following standard of review:


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      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 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.

Commonwealth v. McClelland, 204 A.3d 436, 447 (Pa. Super. 2019)

(citation omitted). “In order for an appellant to prevail on a challenge to the

weight of the evidence, the evidence must be so tenuous, vague and uncertain

that the verdict shocks the conscience of the court.”      Commonwealth v.

Mucci, 143 A.3d 399, 411 (Pa. Super. 2016) (citation and quotation marks

omitted). Additionally, a challenge to the weight of the evidence presented at

trial concedes that there was sufficient evidence to sustain the verdict.

Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super. 2006).

      Although Stephenson correctly cites the legal standards that apply to a

weight claim, her argument concerning this claim amounts to little more than

bald allegations, unsupported by citations to case law or evidence of record.

See Pa.R.A.P. 2119(a) (stating that an appellant’s argument must include

“such discussion and citation of authorities as are deemed pertinent.”).

Further, there is nothing in Stephenson’s argument, or in our own review of

the record, to suggest that the jury’s verdict should have “shock[ed] the

conscience of the court.” Mucci, 143 A.3d at 411. In particular, Stephenson’s

assertion that the evidence linked the firearm to Steetle does not necessitate


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a conclusion that the jury improperly weighed the evidence, because, as the

trial court aptly pointed out, possession of a firearm can be established by

constructive possession.      Trial Court Opinion, 12/21/18, at 8 (citing

Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super. 2018)). The

trial court also observed that “the Commonwealth provided evidence and

testimony establishing [that Stephenson] was aware the rifle was in her home,

[and] therefore[,] it was reasonable for the jury to find her guilty.” Id. at 9;

see also McClellan, 178 A.3d at 878 (explaining that constructive

possession, i.e., the power to control contraband and the intent to exercise

that control, may be established through circumstantial evidence, and the

requisite intent may be inferred from a totality of the circumstances).

Accordingly, Stephenson is not entitled to relief on this claim.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2019




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