J-A14018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARQUELL M. ATKINSON,                      :
                                               :
                       Appellant.              :   No. 1101 WDA 2018


         Appeal from the Judgment of Sentence Entered, July 24, 2018,
             in the Court of Common Pleas of Washington County,
             Criminal Division at No(s): CP-63-CR-0001890-2016.


BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                              FILED JULY 26, 2019

        Marquell M. Atkinson appeals from the judgment of sentence imposed

following his conviction of firearms not to be carried without a license 1 and

disorderly conduct.2 We affirm the trial court’s judgment of sentence for the

reasons stated herein.

        The relevant facts and procedural history are as follows. On June 24,

2018, Atkinson drove his wife’s vehicle to a gas station in California,

Washington County, Pennsylvania. Atkinson played music loudly through his

car stereo as he pulled into the station. When Atkinson exited the vehicle,


____________________________________________


1   18 Pa.C.S.A. § 6106(a)(1).

2   18 Pa.C.S.A. § 5503(a)(3).
J-A14018-19


Washington County Police Officer Thomas McCarthy approached him. Officer

McCarthy asked Atkinson to turn his music down. Atkinson refused. Officer

McCarthy then asked Atkinson for his identification. Atkinson testified that he

immediately complied with Officer McCarthy’s request.        However, Officer

McCarthy testified that Atkinson pulled the identification card away and, as a

result, Officer McCarthy placed Atkinson under arrest for disorderly conduct.

A second officer arrived at the scene and tased Atkinson because he believed

Atkinson was attempting to resist arrest.

      The officers then conducted a search incident to arrest and found a knife

and roughly $1,500 on Atkinson’s person. The officers also approached

Atkinson’s vehicle to turn the music down. They saw a firearm inside and

smelled marijuana.   Officer McCarthy deployed his K-9 to sniff around the

vehicle and it alerted Officer McCarthy to the presence of controlled

substances.   The officers obtained a warrant to search the vehicle. Upon

searching the vehicle, the officers obtained the firearm and discovered a small

bag of marijuana. A subsequent investigation revealed that Atkinson did not

have a valid license to carry a concealed firearm. See Trial Court Opinion,

1/29/18, at 1-3.




                                     -2-
J-A14018-19


        Atkinson was arrested and charged with firearms not to be carried

without a license, disorderly conduct, resisting arrest,3 and possession of

marijuana.4 Prior to trial, Atkinson filed a motion in limine seeking a ruling

that he satisfied an exception to the firearm violation under 18 Pa.C.S.

§ 6106(b)(13). Following a hearing, the trial court determined that Atkinson

did not satisfy the exception and denied the motion in limine.

        The case proceeded to a non-jury trial. At trial, the prosecutor asked

Officer McCarthy “do you recall, roughly, how much money [Atkinson] had on

his person?” N.T., 4/5/18, at 23. Atkinson objected on the basis of relevancy.

Id. The trial court overruled Atkinson’s objection on the grounds that the

Commonwealth was merely attempting to provide the facts of the case. The

trial court stated that it would “permit [the testimony] to the extent that it’s

[explaining] whatever may have been found” during the search incident to

arrest.    Id.   Ultimately, Officer McCarthy testified that he found roughly

$1,500 on Atkinson’s person. Id.

        The trial court convicted Atkinson of firearms not to be carried without

a license and disorderly conduct. The trial court found Atkinson not guilty of

resisting arrest, and the Commonwealth withdrew the charge for possession

of marijuana. On July 24, 2018, the trial court sentenced Atkinson to six to


____________________________________________


3   18 Pa.C.S.A. § 5104.

4   35 P.S. § 780-113(a)(31).


                                           -3-
J-A14018-19


twenty-three months of incarceration for the firearms offense, and imposed a

$150 fine for his disorderly conduct conviction.

      On August 2, 2018, Atkinson filed a motion to modify sentence and the

trial court denied the motion. On the same day, Atkinson filed a timely notice

of appeal. Both Atkinson and the trial court complied with Pa.R.A.P. 1925.

Atkinson raises two issues on appeal.

      1. Whether the trial court erred in overruling [Atkinson’s]
         objection to the admission of testimony regarding the amount
         of money found on [Atkinson] at the time of his arrest?

      2. Whether the evidence was insufficient as a matter of law as to
         the charge of firearms not to be carried without a license?

Atkinson’s Brief at 5 (excess capitalization omitted).

      Atkinson’s first issue implicates the trial court’s authority to admit

evidence at trial. Our standard for review for the admission or exclusion of

evidence is well-established:

         [T]he admissibility of evidence is within the discretion of the
         trial court, and such rulings will not form the basis for
         appellate relief absent an abuse of discretion. Thus, the
         Superior Court may reverse an evidentiary ruling only upon
         a showing that the trial court abused that discretion. A
         determination that a trial court abused its discretion in
         making an evidentiary ruling may not be made merely
         because an appellate court might have reached a different
         conclusion,    but    requires    a    result   of    manifest
         unreasonableness, or partiality, prejudice, bias, or ill-will, or
         such lack of support so as to be clearly erroneous.

Commonwealth v. Hoover, 107 A.3d 723, 729 (Pa. 2014) (citation and

quotation marks omitted). “Admissibility depends on relevance and probative

value. Evidence is relevant if it logically tends to establish a material fact in

                                       -4-
J-A14018-19



the case, tends to make a fact at issue more or less probable or supports a

reasonable    inference    or   presumption      regarding      a     material   fact.”

Commonwealth v. Bullock, 948 A.2d 818, 827 (Pa. Super. 2008); see also

Pa.R.E. 401, 402.

      Atkinson argues that the trial court should have excluded Officer

McCarthy’s testimony regarding the amount of money he was carrying at the

time of his arrest since it was not relevant to the crimes charged. Atkinson

also argues that it was prejudicial “in so much as it alluded to the fact that

[Atkinson] was committing or had committed other crimes by carrying a large

quantity of cash on his person.” Atkinson’s Brief at 14. Atkinson claims that

the admission of this testimony influenced the verdict because “the trial court

could have [inferred] that [Atkinson] was committing other crimes . . . and

that [Atkinson] would have known about the gun in the car.”            Id.

      In its Pa.R.A.P. 1925(a) opinion, the trial court admitted that “no

criminal charges were derived from what Officer McCarthy found during the

search   incident   to    arrest.”   Trial   Court   Opinion,       10/25/18,    at   3.

Notwithstanding, the trial court explained that the officer’s testimony was

admissible because “the Commonwealth did not seek to introduce testimonial

evidence to prove a general criminal disposition.”              Trial Court Opinion,

10/25/18, at 3. The trial court determined that the evidence was relevant and

admissible as res gestae evidence, since it helped provide the context of “the

events surrounding the crime.” Id.




                                        -5-
J-A14018-19



       In Pennsylvania, res gestae is an exception to Pa.R.E. 404’s prohibition

against the admission of evidence of crimes, wrongs, or other acts.5 See

Commonwealth v. Hairston, 84 A.3d 657, 665 (Pa. 2014). The res gestae

exception permits evidence of other crimes, wrongs, or acts so long as they

help tell “the complete story.” Id; see also Commonwealth v. Lark, 543

A.2d 491 (Pa. 1988) (stating that under the res gestae exception, evidence of

other acts may be admissible to show “part of the chain or sequence of events

which became part of the history of the case and formed part of the natural

development of the facts”). However, any application of the exceptions to

Rule 404(b)(1), including the res gestae exception, presumes that the

evidence in question has some probative value in the first instance.       See

Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (stating

that “[r]elevance is a threshold issue for admissibility of evidence.”).

       Even assuming that the trial court erred in admitting irrelevant

testimony, a new trial is not warranted unless Atkinson can also prove that he

was prejudiced by such error. Commonwealth v. Beltz, 829 A.2d 680, 682–

83 (Pa. 2003); see also Commonwealth v. Drummond, 775 A.2d 849, 853

(Pa. Super. 2001) (stating that “the accused is entitled to a fair trial, not a
____________________________________________


5 Pursuant to Pa.R.E. 404(b)(1), “Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.”
However, evidence of other crimes, wrongs, or acts may be admissible for
other purposes such as proving “motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.” Pa.R.E.
404(b)(2).


                                           -6-
J-A14018-19



perfect trial”). The purpose of the Rules of Evidence regarding relevancy, prior

acts, and unfair prejudice is to prevent a jury from reaching a conviction on

an improper basis. See Commonwealth v. Safka, 95 A.3d 304, 310 (Pa.

Super. 2014). However, the concern with juries “does not predominate in

non-jury trials, because trial judges sitting as fact[-]finders in criminal cases

are presumed to ignore prejudicial [or irrelevant] evidence in reaching a

verdict.” Commonwealth v. Dent, 837 A.2d 571, 582 (Pa. Super. 2003)

(citations and quotations omitted); see also Commonwealth v. Irwin, 579

A.2d 955, 958 (Pa. Super. 1990) (recognizing that “a trial judge [as opposed

to a jury] is capable of recognizing in himself the symptoms of bias and

impartiality.”).

      As we presume that the trial court did not rely on irrelevant evidence in

reaching its verdict,   Atkinson’s claim regarding the admissibility of Officer

McCarthy’s testimony fails.     Thus, even if the evidence was irrelevant,

Atkinson did not prove he was prejudiced by this testimony.

      Atkinson’s second issue challenges the sufficiency of the evidence in

support of the firearms conviction. When analyzing whether the evidence was

sufficient to support a conviction, this Court “must view all of the evidence in

the light most favorable to the verdict winner and give that party the benefit

of all reasonable inferences therefrom.” Commonwealth v. White, 492 A.2d

32, 34 (Pa. Super. 1985) (citation omitted). “The evidence established at trial

need not preclude every possibility of innocence and the fact-finder is free to

believe all, part, or none of the evidence presented.” Commonwealth v.

                                      -7-
J-A14018-19



Brown, 52 A.3d 320, 323 (Pa. Super. 2012). Additionally, this Court cannot

“re-weigh the evidence and substitute our judgment for that of the fact-

finder.” Id. A challenge to the sufficiency of the evidence presents a pure

question of law and, as such, our standard of review is de novo and our scope

of review is plenary. Commonwealth v. Jacoby, 170 A.3d 1065, 1076 (Pa.

2017).

      Under 18 Pa.C.S.A. § 6106(a)(1), “any person who carries a firearm in

any vehicle . . . without a valid and lawfully issued license under this chapter

commits a felony of the third degree.” Accordingly, to convict Atkinson under

§ 6106(a)(1) the Commonwealth had to prove (a) that Atkinson carried a

firearm in his vehicle and (b) that Atkinson did not have a valid and lawfully

issued license to carry the firearm.

      Atkinson argues that, although the Commonwealth met its burden in

proving all the elements of the firearms charge under section 6106(a)(1), his

conviction must be reversed because he satisfied an exception to the charge

under subsection 6106(b)(13). Subsection (b)(13) states, in relevant part,

that “[t]he provisions of subsection (a) shall not apply to . . . [a]ny person

who is otherwise eligible to possess a firearm under this chapter and who is

operating a motor vehicle which is registered in . . . the name of a spouse . .

. and which contains a firearm for which a valid license has been issued

pursuant to section 6109 to the spouse . . . owning the firearm.” 18 Pa.C.S.

§ 6106(b)(13). Atkinson contends that “he and his wife purchased the gun

together, that she does exercise control over the gun, and he considers the

                                       -8-
J-A14018-19



gun jointly owned with his wife.” Atkinson’s Brief at 18. Thus, Atkinson claims

that he satisfies the exception because (a) he is a person “otherwise eligible

to possess a firearm;” (b) he was driving his wife’s vehicle; (c) his wife has a

valid license to carry a concealed firearm; and (d) his wife owned the firearm.

Id. at 16.

      The trial court found that Atkinson was driving his wife’s vehicle, and

that Atkinson’s wife had a valid license to conceal carry a firearm. However,

the trial court determined that Atkinson did not present “evidence regarding

his wife’s possession, control, or use of the firearm at issue.” Trial Court

Opinion, 1/29/18, at 8.     Additionally, the trial court stated that, even if it

accepted Atkinson’s argument, that Atkinson and his wife (as marital

property) jointly owned the firearm, “that does not terminate [Atkinson’s]

ownership interest in the firearm . . . .” Id. at 7. On this basis, the trial court

determined that Atkinson owned the firearm.          Accordingly, the trial court

concluded that Atkinson did not satisfy the exception. Id.

      Here, we find that the evidence viewed in the light most favorable to the

verdict winner was sufficient to establish that Atkinson, not his wife, owned

the firearm. At trial, Atkinson testified multiple times that he purchased the

firearm. N.T., 4/5/18, at 150, 151, 154. Atkinson’s counsel asked him “Do

you remember purchasing the firearm in question?” Atkinson replied, “Yes.”

Id. at 151.    On cross-examination, the prosecutor asked Atkinson, “You

bought that firearm?       You purchased that; is that correct?”         Atkinson

answered, “I bought it.” Id. at 154. Additionally, although Atkinson’s wife

                                       -9-
J-A14018-19



testified at trial that she was married to Atkinson prior to the purchase of the

firearm, she never testified that she owned the firearm or carried it regularly.

See Id. at 129. Moreover, Officer McCarthy testified that “[u]pon gathering

information of the firearm after the search warrant was served, the serial

number determined that Marquell Atkinson is the owner of the firearm.” Id.

at 30.

         Mindful of our standard of review we conclude that the evidence viewed

in the light most favorable to the Commonwealth established each material

element of 18 Pa.C.S.A. § 6106(a)(1). We further conclude that, because the

record supports the trial court’s determination that Atkinson owned the

firearm, he did not satisfy the exception to the firearms charge under 18

Pa.C.S.A. § 6106(b)(13).

         Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2019




                                      - 10 -
J-A14018-19




              - 11 -
