J-S48004-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                   v.

NATHAN EDWARD BROWN

                        Appellant                 No. 277 WDA 2015


        Appeal from the Judgment of Sentence September 3, 2014
           In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0013601-2013


BEFORE: BOWES, DUBOW AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J:                             FILED JUNE 24, 2016

     Nathan Edward Brown appeals from the judgment of sentence of four

to eight years imprisonment that the trial court imposed after a jury

convicted Appellant of a violation of the Uniform Firearms Act (“VUFA”),

persons not to possess firearms, 18 Pa.C.S. § 6105. We affirm.

     We first examine the evidence supporting the jury’s verdict. In 2012,

Appellant was under the supervision of the Pennsylvania Board of Probation

and Parole (the “Board”), but had absconded from oversight. On December

23, 2012, Ashley Munda called police at about 3:00 a.m. and told them that

Appellant entered her apartment on 209 Station Street, Penn Hills Township,

and, utilizing a silver gun, robbed her and Sandra Leski.        Ms. Munda

reported that she knew that the perpetrator was Appellant since she had
J-S48004-16



“multiple encounters with [Appellant] and he has been at her apartment in

the past.” Affidavit of Probable Cause, 1/4/13, at 2.

      An arrest warrant was issued in connection with that incident.         On

January 8, 2013, Appellant’s parole officer and three Penn Hills Township

police executed the warrant by proceeding to 118 Clinton Drive, Penn Hills

Township,   the   residence   Appellant   had   registered   with   the   Board.

Appellant’s sister allowed the officers into the house, stating that Appellant

was in his bedroom. Police discovered Appellant in the designated location,

placed him under arrest, and searched the room, discovering packets of

heroin and a .22 caliber silver gun in a backpack underneath the bed.

      At the Penn Hills Township police station, Detective Anthony Diulus

gave Appellant a copy of the criminal complaint underlying the arrest

warrant and disseminated Miranda warnings.              Appellant signed the

warnings and waived his rights. Appellant thereafter admitted to Detective

Diulus that he possessed the gun and drugs discovered in the backpack. As

to the weapon, Appellant told Detective Diulus that, about eighteen months

before January 8, 2013, Appellant found the gun in debris in a dumpster

outside the house next door to 118 Clinton Drive. Appellant told Detective

Diulus that “he decided to keep [the firearm] because of some incidents that

have come up in his past of his life that he didn’t feel comfortable being out

without a firearm in his possession.”        N.T. Trial, 4/14-16/14, at 87.

Appellant then admitted that he always carried the gun on his person, either

                                     -2-
J-S48004-16



in the backpack or his pants, and acknowledged that he “knew he wasn’t

allowed to possess” the weapon. Id.          The Commonwealth also presented

evidence that Appellant had a prior robbery conviction.

         At criminal action number 658 of 2013, Appellant was charged with

the VUFA violation at issue in this appeal as well as two counts of robbery

and one count each of burglary, possession of a controlled substance, and

possession of a controlled substance with intent to deliver (“PWID”). That

action encompassed the crimes Appellant allegedly committed on December

23, 2012, as well as the offenses arising from the January 8, 2013 execution

of the arrest warrant.     Thereafter, the trial court severed the VUFA count

from the other charges, and Appellant was tried by a jury on that offense at

the present criminal action number, 13601 of 2013.          Appellant proceeded

pro se with the assistance of standby counsel, and was found guilty of the

VUFA charge. On September 3, 2014, Appellant was sentenced to four to

eight     years   imprisonment.    This   timely,   counseled   appeal   followed.

Appellant raises these issues:

   I.      Whether the evidence presented in this matter was legally
           insufficient to sustain Appellant’s conviction of possession of a
           firearm prohibited.

   II.     Whether the jury’s verdict was against the weight of the
           evidence.

   III.    Whether the trial court erred in denying Appellant’s post-
           sentence motions.




                                       -3-
J-S48004-16



   IV.      Whether the trial court erred in denying Appellant’s motion to
            suppress the evidence without a hearing.

   V.       Whether the trial court erred in denying Appellant’s oral
            motion for a continuance prior to the start of trial.

   VI.      Whether the trial court erred in denying Appellant’s motion
            for judgment of acquittal as the evidence presented at trial
            was legally insufficient (sic) to show that Appellant had actual
            or constructive possession of the firearm.

   VII.     Whether the trial court erred in denying Appellant’s request
            for a failure to call a potential witness jury instruction.

Appellant’s brief at 8 (capitalization omitted).

         We address the averments seriatim. The applicable standard of review

of Appellant’s first claim is well settled:

                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.




                                        -4-
J-S48004-16



Commonwealth v. Irvin, 134 A.3d 67, 75-76 (Pa.Super. 2016) (citation

omitted).

     The pertinent section of VUFA provides, “A person who has been

convicted of an offense enumerated in subsection (b) [which includes the

crime of robbery], within or without this Commonwealth . . . shall not

possess, use, control, sell, transfer or manufacture . . . a firearm in this

Commonwealth.”    18 Pa.C.S. § 6105(a).    Appellant’s specific contention is

that the Commonwealth failed to prove that he possessed the firearm in

question.   Since the gun was not found on Appellant’s person, the

Commonwealth had to establish that he constructively possessed it.

Commonwealth v. Roberts, 133 A.3d 759, 767 (Pa.Super. 2016) (where

an item that a person is prohibited from possessing is not found on the

defendant’s body, the Commonwealth must demonstrate that the defendant

constructively possessed it). As we observed in Roberts,

            Constructive possession is a legal fiction, a pragmatic
     construct to deal with the realities of criminal law enforcement.
     Constructive possession is an inference arising from a set of
     facts that possession of the contraband was more likely than not.
     We have defined constructive possession as “conscious
     dominion.” We subsequently defined “conscious dominion” as
     “the power to control the contraband and the intent to exercise
     that control.” To aid application, we have held that constructive
     possession may be established by the totality of the
     circumstances.

Id. at 767-68.




                                   -5-
J-S48004-16



        In the instant case, the totality of the circumstances were as follows.

The gun was found in a backpack underneath a bed in a room identified as

Appellant’s bedroom. It was given to Detective Diulus, to whom Appellant

openly confessed that, when in public, he consistently carried the weapon on

his person, either in his pants or a backpack, for his own protection.

Appellant    admitted    that    he    possessed   the    firearm    in   question   for

approximately eighteen months and was aware that he was not permitted to

do so.     We thus conclude that the evidence was sufficient to support the

jury’s finding that Appellant had the power to control the firearm and the

intent to exercise that control, and reject this challenge to the sufficiency of

the evidence.

        Appellant next levels a weight-of-the-evidence claim, which was

preserved in his post-sentence motion. When we review such a contention,

we do not actually examine the underlying question of whether the

conviction was against the weight of the evidence; instead, we review the

trial    court’s   exercise     of    discretion   in    resolving    the   averment.

Commonwealth v. Leatherby, 116 A.3d 73 (Pa.Super. 2015). This type

of review is necessitated by the fact that the trial judge heard and saw the

evidence presented.      Id.    Indeed, “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.” Id. at 82. A new trial is

                                          -6-
J-S48004-16



warranted in this context only when the verdict is “so contrary to the

evidence that it shocks one’s sense of justice and the award of a new trial is

imperative so that right may be given another opportunity to prevail.”

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014).

      Appellant contends that the jury’s verdict was contrary to the weight

of the evidence presented at trial because the officer who discovered the

weapon did not testify at trial.    Instead, another officer involved in the

search described where it was located.        Appellant also claims that his

confession should be discounted since it was not recorded or transcribed.

However, the jury was free to accept Detective Diulus’ testimony that

Appellant admitted to carrying the gun on his person for over a year and the

report of Penn Hills Township Police Officer Joseph Blaze, who participated in

the search, that the gun was discovered in Appellant’s bedroom. The verdict

herein was not so contrary to the evidence that it shocks one’s sense of

justice. We perceive of no abuse of discretion on the part of the trial judge

in rejecting Appellant’s weight claim.

      Appellant’s third allegation is that the trial court erred in denying his

post-sentence motion.     This position relates to Appellant’s parole officer,

Andrew Barnes, who participated in the January 8, 2013 search and found

the gun in the backpack.      At the hearing on his post-sentence motion,

Appellant argued that the jury should have been informed that Mr. Barnes

had been fired by the Board after falsifying documents and that he also had

                                     -7-
J-S48004-16



been charged with a crime.        Appellant contended that the fact that Mr.

Barnes falsified documents and committed crimes may have rendered

incredible his report to fellow police officers that the gun in question was

found in the backpack in Appellant’s room. This evidence as to Barnes had

been ruled inadmissible prior to trial.

      We observed that, “In reviewing a trial court's ruling on the

admissibility of evidence, our standard of review is one of deference.”

Commonwealth v. Belknap, 105 A.3d 7, 9 (Pa.Super. 2014).                  The trial

court has the discretion to determine the admissibility of evidence, and this

Court does not reverse such a ruling unless that discretion is abused. Id.

In the present matter, Mr. Barnes did not testify at Appellant’s trial. Officer

Blaze told the jury about the events that occurred on January 8, 2013.

Officer Blaze personally observed the firearm in question in Appellant’s

bedroom.    N.T. Trial, 4/14-16/14, at 62.      Additionally, another Penn Hills

Township police officer was present when the backpack and gun were

recovered. Id. at 66. Appellant also admitted to Detective Diulus that the

gun was his and that he often kept it in the backpack. We conclude that the

information about Mr. Barnes was inconsequential and irrelevant and that

the trial court did not abuse its discretion in its evidentiary ruling.

      Appellant’s fourth allegation is that the trial court erred in denying his

motion to suppress the evidence. There are three subsidiary positions raised

in connection with this averment. Appellant suggests that there was not a

                                       -8-
J-S48004-16



suppression hearing on his motion, maintains that the search leading to the

recovery of the gun was unconstitutional, and posits that his confession to

Detective Diulus about possession of the weapon should have been

suppressed. The disposition of the other charges filed at action 658-2013 is

pertinent to Appellant’s present suppression claims. First, there was in fact

a hearing.    Before it severed the present VUFA charge from the other

offenses, the trial court conducted a hearing on Appellant’s suppression

motion. Commonwealth v. Brown, 2016 WL 686482 (Docket number 885

WDA 2014) (Pa.Super. Feb. 19, 2016) (unpublished memorandum at 16).

Hence, we reject the position that a hearing was not held.

     Additionally, this Court has specifically ruled that the search in

question was constitutional and that Appellant’s statements to Detective

Diulus were not obtained in violation of his Fifth Amendment right against

incrimination. Id. As noted, Appellant was charged at criminal action 658-

2013 with the VUFA offense as well as robbery, burglary, PWID, and

possession of a controlled substance. The drug charges were premised upon

the heroin discovered in the backpack where the gun at issue herein was

recovered.

     At the police station, Appellant made admissions to Detective Diulus

about the heroin during the same interrogation that led to Appellant’s

inculpatory remarks about his possession of the gun. Specifically, Appellant

told Detective Diulus that the heroin belonged to him and that he sold it

                                    -9-
J-S48004-16



when he needed money.         Before the VUFA charge was severed, in his

suppression motion, Appellant maintained that the search of his backpack

was unconstitutional and that his statements admitting to possession of the

gun and drugs should have been suppressed. After his suppression motion

was denied and severance on the VUFA charge was granted, Appellant

proceeded to a jury trial on the charges pending at case number 658-2013.

The jury convicted him of PWID and possession of a controlled substance,

but acquitted him of the robbery and burglary offenses.

     Appellant filed an appeal from the judgment of sentence imposed on

the drug convictions.   Id.   Therein, Appellant raised the same challenges

that he now raises in the present appeal, i.e., that the search of his bedroom

was unconstitutional and that his admissions to Detective Diulus at the

police station should have been suppressed.         The prior Brown panel

specifically rejected those positions, upheld the constitutionality of the

search, and ruled that his statements were not obtained in violation of his

Fifth Amendment right against self-incrimination. Id.

      We thus conclude herein that the law of the case doctrine applies.

“This doctrine refers to a family of rules which embody the concept that a

court involved in the later phases of a litigated matter should not reopen

questions decided by another judge of that same court or by a higher court

in the earlier phases of the matter.” Commonwealth v. Starr, 664 A.2d

1236, 1331 (Pa. 1995) (citations omitted).        The doctrine provides, in

                                    - 10 -
J-S48004-16



pertinent part, that “upon a second appeal, an appellate court may not alter

the resolution of a legal question previously decided by the same appellate

court.” Id.      The applicable legal precept is that “judges of coordinate

jurisdiction sitting in the same case should not overrule each other’s

decisions.” Id.     In the prior appeal, a panel held that the same search at

issue herein was valid and that the suppression court properly refused to

suppress Appellant’s statements to Detective Diulus.          The facts and issues

are identical to those litigated in the Brown decision, filed on February 19,

2016, and the law of the case doctrine compels us to affirm the suppression

court’s rulings on the search’s validity and the admissibility of Appellant’s

statements.      See Commonwealth v. Jones, 858 A.2d 1198 (Pa.Super.

2004).

         Next, Appellant claims that the trial court erred in denying a motion for

a continuance that he made at trial. “The grant or denial of a motion for a

continuance is within the sound discretion of the trial court and will be

reversed only upon a showing of an abuse of discretion.” Commonwealth

v.   Antidormi,       84    A.3d      736,   745    (Pa.Super.        2014)   (quoting

Commonwealth v. Boxley, 948 A.2d 742, 746 (Pa. 2008)).                          If the

defendant levels “a bald allegation of an insufficient amount of time to

prepare,” such allegation “will not provide a basis for reversal of the denial

of   a     continuance     motion.”    Antidormi,     supra      at    745    (quoting

Commonwealth v. Ross, 57 A.3d 85, 91 (Pa.Super. 2012)). To prevail on

                                        - 11 -
J-S48004-16



a claim that a continuance was improperly denied, the “appellant must be

able to show specifically in what manner he was unable to prepare for his

defense or how he would have prepared differently had he been given more

time.” Antidormi, supra at 745 (quoting Ross, supra at 91).

     The following facts are relevant.           After a jury had been selected,

Appellant decided to proceed pro se and then demanded a continuance to

“prepare     an   intelligent   defense.”       N.T.   4/14-16/14   at   10.   The

Commonwealth witnesses were present and ready to testify. The trial court

found Appellant’s request was dilatory and unnecessary in that counsel had

adequately prepared him for trial.          We perceive of no abuse of discretion

herein.    Appellant’s issue necessarily fails since, on appeal, he does not

demonstrate how he could have prepared for a trial differently if given more

time. The gun was found in his bedroom in a backpack, and he admitted

that he carried the gun on his person for eighteen months prior to its

discovery.

     Appellant’s sixth issue on appeal is that the trial court erred in denying

his motion for judgment of acquittal in that there was insufficient evidence

to establish that he constructively possessed the gun.              This claim is a

repetition of the first one presented on appeal. As previously analyzed, the

proof adduced by the Commonwealth’s evidence at trial was sufficient to

sustain the possession element of the VUFA conviction.




                                       - 12 -
J-S48004-16



      Lastly, Appellant alleges that the trial court erred in denying his

request for a missing witness jury instruction as to Mr. Barnes.

           In reviewing a challenge to the trial court's refusal to give a
      specific jury instruction, it is the function of this Court to
      determine whether the record supports the trial court's decision.
      In examining the propriety of the instructions a trial court
      presents to a jury, our scope of review is to determine whether
      the trial court committed a clear abuse of discretion or an error
      of law which controlled the outcome of the case. . . . The trial
      court is not required to give every charge that is requested by
      the parties and its refusal to give a requested charge does not
      require reversal unless the Appellant was prejudiced by that
      refusal.

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa.Super. 2013).                 The

following principles underlie a meritorious position that the proof warrants an

instruction that an adverse inference can be drawn from a party’s failure to

present a witness:

                 When a potential witness is available to only one
             of the parties to a trial, and it appears this witness
             has special information material to the issue, and
             this person's testimony would not merely be
             cumulative, then if such party does not produce the
             testimony of this witness, the jury may draw an
             inference that it would have been unfavorable.

      Commonwealth v. Manigault, 501 Pa. 506, 510-11, 462 A.2d
      239, 241 (1983).

      ....

      To invoke the missing witness instruction against the
      Commonwealth, the witness must only be available to the
      Commonwealth[.]

Commonwealth v. Boyle, 733 A.2d 633, 638-39 (Pa.Super. 1999).



                                     - 13 -
J-S48004-16



      In this case, Appellant failed to establish that Mr. Barnes was available

only to the Commonwealth.      Appellant could have subpoenaed Mr. Barnes

himself if he wanted to present him as a witness. Additionally, there is no

indication that Mr. Barnes, who participated in a search witnessed by other

police officers, had special information. Finally, Appellant’s confessions were

made to Detective Diulus at the police station, and, due to those

confessions, Mr. Barnes’ testimony was not material.      Therefore, the trial

court did not err in denying Appellant’s request for a missing witness jury

instruction.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/24/2016




                                    - 14 -
