J-S26019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 KHALIL REED                            :
                                        :
                   Appellant            :   No. 3350 EDA 2016

        Appeal from the Judgment of Sentence September 22, 2016
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0008102-2014


BEFORE:   BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.

MEMORANDUM BY BOWES, J.:                        FILED OCTOBER 16, 2018

     Khalil Reed appeals from the judgment of sentence of three to seven

years imprisonment that was imposed after a jury convicted him of persons

not to possess firearms. We affirm.

     We adopt the trial court’s summary of the testimony that the

Commonwealth presented during the jury trial.

           Philadelphia Police Officer, John Krewer, testified that on
     June 27, 2014, he was on patrol in plain clothes, in an unmarked
     police vehicle, with his partner, Officer Patrick DiDomenico. At
     approximately 7:30 p.m., he was traveling east on Greenway
     Avenue, in the City and County of Philadelphia, when a gold Grand
     Marquis passed him going at a high rate of speed. After pursuing
     this vehicle for eight or nine blocks, along with other marked
     police units, he observed [Appellant] close the driver’s door and
     start running.      Officer Krewer exited his vehicle, pursued
     [Appellant] and, as he approached him, he identified himself as a
     police officer. [Appellant], dropping to the ground, immediately
     surrendered, stating; “I’m dirty, I’m dirty. There’s a gun in my
     vehicle.”    [Appellant] later told Officer Krewer that he had
     purchased the gun that day. After securing [Appellant], he

____________________________________
* Former Justice specially assigned to the Superior Court.
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      examined the vehicle and noticed “on the passenger floor mat, in
      clear view, you could see it from the outside, is a small black
      caliber semi-automatic handgun.”

             Officer Krewer’s partner, Patrick DiDomenico, testified
      similarly that while on patrol with Officer Krewer, a gold Mercury
      Grand Marquis passed them at a high rate of speed. He identified
      [Appellant] as the driver of the car and also that he saw no one
      else in the vehicle. Once the vehicle was stopped, he observed
      [Appellant] exit and start running towards him. Immediately, on
      identifying themselves as police officers, [Appellant] dropped to
      the ground and was taken into custody. Although he heard
      [Appellant] shouting something he could not make out what it
      was.

            Philadelphia Police Detective, Vincent Parker, testified that
      he was the assigned detective investigating this incident. Based
      on information he received from Officer Krewer, he went to the
      scene and recovered a handgun from the front passenger floor of
      the gold 2003 Grand Marquis.

Trial Court Opinion, 10/3/17, at 2-3 (citations to the record omitted).

      The jury convicted Appellant of the firearm offense and the trial court

imposed three to seven years imprisonment.             This appeal followed.

Appellant’s timely Rule 1925(b) statement raised two issues, which he

reiterates on appeal as follows:

      1.    Was the evidence insufficient to convict [Appellant] of 18
      P[a].C.S. § 6105, [p]ersons not to possess firearms?

      2.    Did the [t]rial [c]ourt err in permitting the introduction of
      photographs marked as Commonwealth Exhibit c12 through 17,
      mid-trial, which was not provided to the defense in violation of
      Pa.R.Crim.P. 573?

Appellant’s brief at 3.

      First, we acknowledge our standard of review.          In addressing a

sufficiency of the evidence claim, we examine all of the evidence admitted,


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even improperly admitted evidence. Commonwealth v. Watley, 81 A.3d

108, 113 (Pa.Super. 2013) (en banc). We consider the evidence in the light

most favorable to the verdict winner, herein the Commonwealth, drawing all

possible inferences from the evidence in its favor. Id. The sufficiency claim

will fail when evidence exists to allow the fact finder to determine beyond a

reasonable doubt each element of the crime. Id.

      Importantly, the evidence need not preclude the possibility of innocence

entirely.   The fact finder is free to believe, in whole or in part, whatever

evidence it chooses. Id. Additionally, the Commonwealth may prove its case

by circumstantial evidence alone. It is only when “the evidence is so weak

and inconclusive that, as a matter of law, no probability of fact can be drawn

from the combined circumstances,” that the defendant is entitled to relief. Id.

This Court is not permitted “to re-weigh the evidence and substitute our

judgment for that of the fact finder.” Id.

      Appellant argues that the Commonwealth failed to adduce sufficient

evidence to support the conviction for possession of a firearm by a prohibited

person. That offense provides “A person who has been convicted of an offense

enumerated in subsection (b), within or without this Commonwealth,

regardless of the length of sentence or whose conduct meets the criteria in

subsection (c) shall not possess . . . a firearm in this Commonwealth.” 18

Pa.C.S. § 6105.

      During the trial, Appellant stipulated that he had a prior conviction that

disqualified him from owning or possessing a firearm under the statute. N.T.,

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6/7/16, at 65. The only element that Appellant challenges relates to whether

he possessed the gun that Officer Krewer discovered in the vehicle Appellant

was operating.     Stated plainly, Appellant asserts that the evidence was

insufficient because the Commonwealth demonstrated only that the police

recovered the handgun from the passenger floor of the vehicle. He continues

that those facts do not support the finding that he possessed the weapon

constructively. For the following reasons, we disagree.

      When reviewing a challenge to constructive possession, we utilize the

following principles:

      In order to prove that a defendant had constructive possession of
      a prohibited item, the Commonwealth must establish that the
      defendant had both the ability to consciously exercise control over
      it as well as the intent to exercise such control. [Commonwealth
      v. Sanes, 955 A.2d 369 (Pa.Super. 2008)] “An intent to maintain
      a conscious dominion may be inferred from the totality of the
      circumstances, and circumstantial evidence may be used to
      establish a defendant’s possession of drugs or contraband.”
      Commonwealth v. Valette, 531 Pa. 384, 613 A.2d 548, 550
      (1992) (quoting Macolino, supra at 134).

Commonwealth v. Gutierrez, 969 A.2d 584, 590 (Pa.Super. 2009).

      Contrary to Appellant’s protestations, the Commonwealth presented

sufficient evidence during the jury trial to establish beyond a reasonable doubt

that Appellant exercised exclusive control over the firearm. As outlined in the

trial court’s summary of the police officers’ testimony, Officer DiDomenico

identified Appellant as the only person in the vehicle that Appellant was driving

at a high rate of speed. After the police chase, Officer DiDomenico and Officer

Krewer both observed Appellant exit the vehicle and flee.          While Officer

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DiDomenico could not decipher what Appellant shouted immediately prior to

his apprehension, Officer Krewer testified that Appellant volunteered, “I’m

dirty, I’m dirty.   There’s a gun in my vehicle.”     N.T., 7/7/16, at 11, 16.

Appellant subsequently explained to Officer Krewer that he purchased the

firearm earlier that day. Upon examining the car, Officer Krewer observed the

firearm in plain view on the floor of the vehicle.

      Viewing the foregoing evidence in the light most favorable to the

Commonwealth, as we must, and drawing all possible inferences in the

Commonwealth’s favor, the evidence sustains the jury’s determination that

Appellant had constructive possession of the firearms. Not only was Appellant

the only occupant of the car in which police discovered the firearm, he

volunteered to Officer Krewer that he knew the gun was there because he

purchased it that day. Appellant’s sufficiency claim fails.

      Appellant’s second issue relates to the trial court’s admission of five

photographs that depicted the exterior and interior of the automobile that

Officer DiDomenico observed Appellant operating.        The following facts are

relevant to our review of this issue. On the first day of trial, Detective Parker

testified about his recovery of the firearm from the vehicle that Appellant was

driving. N.T., 6/7/16, at 40-41. Detective Parker indicated that he observed

the firearm on the floor of the car’s front passenger area. Id. at 46. During

cross-examination, Appellant inquired whether Detective Parker had taken

any photographs of the vehicle, and Detective Parker responded that he had,


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including one depicting the firearm resting on the car floor. Id. at 50. On re-

direct, Detective Parker outlined the typical procedure for producing

documents and photographs for trial, but he could not explain why the instant

photos had not been made available for either party’s review in this case. Id.

at 52.

         The following day, the Commonwealth requested permission to

introduce the five photographs that Detective Parker referenced in his

testimony. Appellant leveled a Brady1 objection because the photos were not

disclosed during pretrial discovery. N.T., 6/8/18, at 3. Following a side bar

discussion, the trial court permitted the Commonwealth to recall Detective

Parker to describe how he procured the photographs the prior evening. He

explained, “After testimony yesterday and becoming aware that neither

counsel had the photographs, I reviewed my [digital] camera and the pictures

were still there. And I [sent] them to [the prosecution].” Id. at 9. Thereafter,

the five photos were presented to Detective Parker, who described the scenes

depicted therein, and then displayed them to the jury. Id. at 11.


____________________________________________


1 In Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme
Court held, “the suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.” In order “[t]o prove a Brady violation, the defendant must
show that (1) the prosecutor has suppressed evidence; (2) the evidence
whether exculpatory or impeaching, is helpful to the defendant; and (3) the
suppression prejudiced the defendant.” Commonwealth v. Busanet, 54
A.3d 35, 48 (Pa. 2012). Significantly, Appellant did not assert that the
photographs were exculpatory or that the Commonwealth suppressed them.

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      Instantly, Appellant contends that the photographs were inadmissible

because the Commonwealth failed to timely disclose them pursuant to the

discovery rules outlined in Pa.R.Crim.P. 573. For the reasons described infra,

no relief is due.

      In pertinent part, Rule 573 provides a follows:

      (B) Disclosure by the Commonwealth.

      (1) Mandatory. In        all court cases, on request by the
      defendant, . . . the     Commonwealth shall disclose to the
      defendant's attorney     all of the following requested items or
      information, provided   they are material to the instant case.

         ....

         (f) any tangible objects, including documents, photographs,
         fingerprints, or other tangible evidence.

Pa.R.Crim.P. 573(B)(1)(f). If a discovery violation occurs, the trial court may

grant a continuance, prohibit the introduction of the evidence, or enter any

order it deems just under the circumstances. Pa.R.Crim.P. 573(E).

      The trial court has broad discretion in choosing the appropriate remedy

for a discovery violation. Commonwealth v. Johnson, 727 A.2d 1089, 1097

(Pa. 1999) (addressing Pa.R.Crim.P. 305, renumbered Rule 573 effective April

1, 2001). Our scope of review is whether the court abused its discretion in

not excluding evidence pursuant to Rule 573(E). Id. A defendant seeking

relief from a discovery violation must demonstrate prejudice.       Id.   More

specifically, an appellant must demonstrate how a more timely disclosure

would have affected his trial strategy or how he was otherwise prejudiced by


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the alleged late disclosure. Commonwealth v. Jones, 668 A.2d 491, 510

(Pa. 1995); see also Commonwealth v. Chambers, 599 A.2d 630, 636-38

(Pa. 1991) (no error in denial of mistrial motion for untimely disclosure where

appellant cannot demonstrate prejudice).

      Appellant contends that the Commonwealth’s failure to reveal the

existence of the five photographs until the second day of trial was prejudicial

because the photos refuted his opening statements, which he claims

highlighted the dearth of evidence that would corroborate the police officers’

proposed testimony. The implication of Appellant’s argument is that, if he had

been aware that the photographs existed, he would not have commented on

the Commonwealth’s lack of evidence in his introductory statements to the

jury. Trial counsel presented this argument to the trial court as follows:

            These [photographs] are discoverable. The case is two
      years old. We haven’t been given these. And, trial has begun.
      So not only has trial begun, the witness has been called and left
      the stand and then we[’]re being passed this evidence. I don’t
      think I would have opened the way that I did if I was given this a
      year and a half ago when I was given discovery.

N.T., 6/8/16, at 4-5.

      Appellant’s assertion of prejudice fails.   First, we observe that, since

counsel’s opening statements are not included in the certified record, we

cannot examine what counsel did or did not argue therein. Commonwealth

v. Johnson, 33 A.3d 122, 126 n.6 (Pa.Super. 2011) (“[F]or purposes of

appellate review, what is not of record does not exist.”). Second, Appellant’s

broad allegation of prejudice neglects to identify the specific aspect of Officer

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Krewer’s testimony that was implicated by counsel’s opening. While counsel

argued to the trial court that “Officer Krewer [indicated] that the car was

there[,]” and the photographs presumably corroborated that statement, that

detail is minor because the vehicle’s presence at the scene of Appellant’s

arrest is undisputed.        N.T., 6/8/16, at 5.   Hence, whether the photos

corroborated that aspect of Officer Krewer’s testimony is inconsequential.

       Moreover, assuming arguendo that counsel’s knowledge of the

photographs would have altered his decision to highlight a purported absence

of evidence to corroborate the officers’ testimony regarding their discovery of

the gun in Appellant’s vehicle, the unassailable truth remains that, since the

outset of these proceedings, counsel was aware of Appellant’s spontaneous

declaration to Officer Krewer that he owned the firearm that was recovered

from the car.2 N.T., 6/7/16, at 16. Thus, notwithstanding counsel’s current

allegation of prejudice, the certified record reveals that counsel persisted with

his chosen opening despite knowing that inculpatory evidence already existed

to corroborate the testimony that police found the gun in the car that Appellant



____________________________________________


2  For similar reasons, we find that the properly-admitted evidence of
Appellant’s statements to Officer Krewer regarding his ownership of the
firearm and knowledge of its location was tantamount to overwhelming
evidence of guilt that would render harmless any trial court error concerning
the Rule 573(B) violation. See Commonwealth v. Robinson, 721 A.2d 344,
350 (Pa. 1998) (“Harmless error exists where: . . . (3) the properly admitted
and uncontradicted evidence of guilt was so overwhelming and the prejudicial
effect of the error was so insignificant by comparison that the error could not
have contributed to the verdict.”).

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operated.   Hence, Appellant failed to demonstrate how a more timely

discovery would have affected his trial strategy.

      Accordingly, we conclude that the trial court did not abuse its discretion

in admitting the five photographs notwithstanding the Commonwealth’s

technical violation of Rule 573(B)(1)(f).       See Jones, supra at 510;

Chambers, supra at 636-38 (no error in denial of mistrial motion for untimely

disclosure where appellant cannot demonstrate prejudice).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/18




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