J-S34009-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                    v.

IKEEM KAIB TWYMAN

                         Appellant                  No. 924 EDA 2016


         Appeal from the Judgment of Sentence January 29, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0013358-2014


BEFORE: BOWES, SOLANO, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED JULY 31, 2017

     Ikeem Kaib Twyman appeals from his January 29, 2016 judgment of

sentence of four to eight years of incarceration followed by five years of

probation, which was imposed after he was convicted of three violations of

the Uniform Firearms Act. After thorough review, we affirm.

     The record reveals the following.     At approximately 8:00 p.m. on

October 27, 2014, Carlos Masip was robbed of his cell phone and cash by

two assailants.   Mr. Masip reported the crime and provided a statement.

Later that night, he telephoned 911 to report that he had succeeded in

tracking his stolen phone using an application on his mother’s cell phone.

Consequently, in the early morning hours of October 28, 2014, Philadelphia




* Retired Senior Judge specially assigned to the Superior Court.
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Police Officers Michael James and Edward Taylor were directed to proceed to

Mr. Masip’s residence on Venango Avenue.

      Mr. Masip entered the unmarked police vehicle, explained to the

officers what had occurred earlier, and utilized the tracking information on

his mother’s phone to direct the officers to the corner of Rorer and Hilton.

The officers parked their car at that location.   Within five to ten minutes,

Appellant walked up to the corner. Mr. Masip identified him as one of the

men who robbed him earlier.

      Officer Taylor stepped out of the unmarked police vehicle, identified

himself as a police officer, and directed Appellant to show his hands and get

on the ground. Appellant pulled a handgun from his waistband and started

running westbound on Hilton.      Officer Taylor pursued him on foot while

Officer James followed alongside in the police vehicle. As Officer Taylor was

chasing Appellant, he saw Appellant making a throwing motion towards

property with some trash cans in front of it.       Eventually Officer James

tackled Appellant and, with Officer Taylor’s assistance, handcuffed him.

Officer Taylor directed back up officers to go and secure the trash cans in

the area where he had seen Appellant discard something.         Officer James

retrieved a black firearm from a garbage can.

      Appellant moved to suppress the firearm.       Following a hearing, the

trial court credited the officers’ account of the events and denied the motion.

It determined that the victim’s statement to police, his identification of

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Appellant as one of his assailants earlier in the evening, together with the

officers’ observation of Appellant with a firearm on a public street in

Philadelphia, provided reasonable suspicion for police to stop Appellant.

      After the court conducted a thorough colloquy of his right to jury trial,

Appellant elected to proceed to a waiver trial.          The Commonwealth

incorporated the non-hearsay suppression hearing testimony into the trial

record without objection.      In addition, the defense stipulated to the

admission of the ballistics report identifying the weapon retrieved from the

garbage can as a black Glock semi-automatic .40 caliber firearm.            The

defense also stipulated that Appellant did not possess a license to carry a

firearm, and that he was prohibited from possession of a firearm due to a

prior conviction.

      The trial court, sitting as factfinder, found Appellant guilty of

possession of a firearm by a prohibited person, possession of a firearm

without a license, and carrying a firearm on the public streets of

Philadelphia.   On January 29, 2016, after consideration of a pre-sentence

report, the court sentenced Appellant to four to eight years of incarceration

followed by five years probation.    Appellant filed a post-sentence motion

seeking reconsideration of his sentence, which was denied without a hearing

on February 22, 2016. Appellant appealed to this Court and complied with

the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The trial court addressed those issues in its Rule

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1925(a) opinion, and the matter is ripe for our review. Appellant presents

four issues for our consideration:

      A. Was the verdict against the weight of the evidence where the
         inconsistent and materially contradicting testimony of the
         police officers tended to show that Appellant may have
         discarded a mere object and the firearm in the trashcan came
         from an unknown origin?

      B. Was the evidence insufficient to support the verdict where no
         fingerprints or D.N.A. was recovered from the firearm to
         establish that Appellant actually possessed the firearm, and
         the inconsistent and contradicting testimony of the police
         officers leaves reasonable doubt as to who actually possessed
         or even recovered the firearm?

      C. Did not the trial court err in denying Appellant’s motion to
         suppress the firearm whether there was no reasonable
         suspicion or probable cause to approach, chase and otherwise
         force Appellant to abandon any alleged contraband?

      D. Was not the sentence excessive where the trial court failed to
         properly weigh the Appellant’s remorse; Appellant’s extensive
         family support in the area; the sentence’s impact on the
         Appellant’s son, whom the Appellant emotionally and
         financially supported; and the Appellant’s steady work history
         and the availability of employment for the Appellant upon
         release?

Appellant’s brief at 7 (unnecessary capitalization deleted).

      Appellant’s first issue is a challenge to the weight of the evidence. Our

standard and scope of review is well settled.

     [W]e may only reverse the lower court's verdict if it is so contrary
     to the evidence as to shock one's sense of justice. Moreover,
     where the trial court has ruled on the weight claim below, an
     appellate court's role is not to consider the underlying question of
     whether the verdict is against the weight of the evidence. Rather,
     appellate review is limited to whether the trial court palpably
     abused its discretion in ruling on the weight claim.

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Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations

omitted).     Hence, a trial court's denial of a weight claim “is the least

assailable of its rulings.”      Commonwealth v. Diggs, 949 A.2d 873, 880

(Pa. 2008). Conflicts in the evidence and contradictions in the testimony of

any witnesses are for the fact finder to resolve. Commonwealth v. Tharp,

830 A.2d 519, 528 (Pa .2003).

       In addition, a weight of the evidence claim must be preserved either in

a post-sentence motion, by a written motion before sentencing, or orally

prior to sentencing. Pa.R.Crim.P. 607; Commonwealth v. Priest, 18 A.3d

1235, 1239 (Pa.Super. 2011).           Failure to properly preserve the claim will

result in waiver, even if the trial court addresses the issue in its opinion.

Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009).

       Appellant failed to preserve his challenge to the weight of the evidence

in a motion prior to sentencing, orally at sentencing, or in a post-sentence

motion.1 Thus, the issue is waived. Pa.R.Crim.P. 607. Even if the weight

challenge was not waived, it would not afford relief.              Despite minor

inconsistences in the officers’ account of the recovery of the firearm from the

trash can, the fact finder expressly credited the officers’ testimony that they


____________________________________________


1
  Appellant’s post-sentence motion was styled “Petitioner’s Motion for
Reconsideration of Sentence Imposed.”



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saw Appellant remove a gun from his waistband, and that Officer Taylor saw

Appellant make a throwing motion in the location of that trash can.

        Next, Appellant challenges the sufficiency of the evidence.

        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. Vargas, 108 A.3d 858, 867-868 (Pa.Super. 2014) (en

banc)    (quoting   Commonwealth v. Brown,            23   A.3d   544,   559-560

(Pa.Super. 2011) (en banc) (citations omitted)).

        Appellant’s claim of insufficiency is based on the fact there were no

fingerprints or DNA recovered from the firearm. He suggests that there was

no reliable corroborative evidence to establish that Appellant possessed a

firearm.




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      Appellant’s claim is without merit.      There is no requirement that

possession be proven by DNA or fingerprint evidence. Officer Taylor’s and

Officer James’ testimony that they saw Appellant remove a firearm from his

waistband as he fled from police, which was credited by the trial court, was

sufficient to prove beyond a reasonable doubt that he possessed a firearm.

In addition, Officer Taylor testified that while he was in pursuit of Appellant,

Appellant discarded some object in the area of trash cans on Hilton Avenue.

Moments later, after Appellant was apprehended, police recovered a firearm

from a trash can in that location. Such evidence of possession was sufficient

to sustain the firearms convictions herein.

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

suppression of the gun.      He argues that the police lacked reasonable

suspicion or probable cause to approach and chase him.                He cites

Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996), in support of his

contention that the discarded gun was the fruit of the illegal seizure.

      In reviewing a challenge to the denial of a suppression motion, we are

      limited to determining whether the suppression court's factual
      findings are supported by the record and whether the legal
      conclusions drawn from those facts are correct. Because the
      Commonwealth prevailed before the suppression court, we may
      consider only the evidence of the Commonwealth and so much of
      the evidence for the defense as remains uncontradicted when
      read in the context of the record as a whole. Where the
      suppression court's factual findings are supported by the record,
      we are bound by these findings and may reverse only if the
      court's legal conclusions are erroneous. Where . . . the appeal of
      the determination of the suppression court turns on allegations

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      of legal error, the suppression court's legal conclusions are not
      binding on an appellate court, whose duty it is to determine if
      the suppression court properly applied the law to the facts. Thus,
      the conclusions of law of the courts below are subject to our
      plenary review.

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa.Super. 2014) quoting

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations

omitted).

      There are three levels of interactions between police and citizens for

purposes of the Fourth Amendment.

      The first of these is a “mere encounter” (or request for
      information) which need not be supported by any level of
      suspicion, but carries no official compulsion to stop or to
      respond. The second, an “investigative detention” must be
      supported by a reasonable suspicion; it subjects a suspect to a
      stop and a period of detention, but does not involve such
      coercive conditions as to constitute the functional equivalent of
      an arrest. Finally, an arrest or “custodial detention” must be
      supported by probable cause.

Commonwealth v. Ellis, 662 A.2d 1043, 1047 (Pa. 1995).

      The trial court concluded that Mr. Masip’s earlier report of a robbery to

police, the fact that he provided a statement, the tracking of his stolen cell

phone to a specific location, his subsequent identification of Appellant as one

of his assailants, and the officers’ observation of Appellant with a firearm,

provided reasonable suspicion for the investigatory detention.      We agree.

Since the stop and subsequent arrest were proper, the abandonment of the

firearm was not caused by illegal police activity. Commonwealth v Byrd,

987 A.2d 786 (Pa.Super. 2001); Matos, supra.

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       Appellant’s final issue is a challenge to the discretionary aspects of his

sentence. As we observed in Commonwealth v. McLaine, 150 A.3d 70, 76

(Pa.Super. 2016) (citation omitted), “[a]n appellant is not entitled to the

review of challenges to the discretionary aspects of a sentence as of right.”

Instead, to invoke our jurisdiction involving a challenge to the discretionary

aspects of a sentence, an appellant must satisfy the following four-part test:

       (1) whether appellant has filed a timely notice of appeal, see
       Pa.R.A.P. 902 and 903; (2) whether the issue was properly
       preserved at sentencing or in a motion to reconsider and modify
       sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief
       has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
       substantial question that the sentence appealed from is not
       appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id.

       Appellant has met the first three prerequisites, although he incorrectly

included a Pa.R.A.P. 2119(f) statement in the summary of argument portion

of his brief.2      He claims that the trial court’s failure to consider his

rehabilitative needs, his substance abuse issues, his family support, the

impact of the sentence on his son, and the availability of employment

presents a substantial question that his sentence was not appropriate under

the sentencing code. In essence, he faults the sentencing court for failing to

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2
    We remind Appellant that a Pa.R.A.P. 2119(f) statement should be
separately set forth within an appellate brief and that the failure to comply
may result in waiver. See Commonwealth v. Taylor, 137 A.3d 611
(Pa.Super. 2016).



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consider mitigating factors. The Commonwealth contends that Appellant has

failed to present a substantial question.

       “A substantial question exists ‘only when the appellant advances a

colorable argument that the sentencing judge’s actions were either: (1)

inconsistent with a specific provision of the Sentencing Code; or (2) contrary

to   the   fundamental norms which             underlie   the    sentencing    process.’”

Commonwealth v. Moury, 992 A.2d 162 (Pa.Super. 2010) (quoting

Commonwealth v. Sierra, 752 A.2d 910, 912-13 (Pa.Super. 2000)). We

have held that a court’s failure to consider mitigating factors presents a

substantial question.3       Thus, we will consider the merits of Appellant’s

discretionary sentencing claim.

       In evaluating Appellant’s claim, we are mindful that “[s]entencing is a

matter vested in the sound discretion of the sentencing judge, and will not

be   disturbed     on    appeal    absent      a   manifest     abuse   of    discretion.”

Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011). Since the present

sentence was within the guideline range, we can reverse only if application

of the guidelines was clearly unreasonable.


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3
  We acknowledge that the Superior Court has issued conflicting decisions as
to what constitutes a substantial question, including whether a substantial
question is raised when the defendant claims that the court did not consider
mitigating factors. See Commonwealth v. Dodge, 77 A.3d 1263, 1272
n.8 (Pa.Super. 2013) (en banc).



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       Based upon the state of the record, we must reject Appellant’s claim

that the court did not take into account his rehabilitative needs, substance

abuse, his family, and employment opportunities when it imposed sentence.

The trial court had the benefit of a pre-sentence investigation.               The court

stated     that   the    report     “outline[d]    social,   hereditary,     educational,

employment and medical information of Appellant[,]” and that the court took

into account these circumstances, together with all sentencing factors, when

it imposed its sentence. Trial Court Opinion, 12/16/16, at 11. Furthermore,

as Appellant acknowledges, defense counsel orally apprised the court at

sentencing of Appellant’s drug dependency issues, his family support, and

his work history. See N.T. Sentencing, 1/29/16, at 4-6.

       Under the circumstances, we are required to reject the premise that

the trial court did not properly consider the aforementioned facts in its

sentencing decision. Commonwealth v. Macias, 968 A.2d 773 (Pa.Super.

2009). Our Supreme Court has articulated that if “it can be demonstrated

that     the   judge    had   any    degree   of    awareness     of   the    sentencing

considerations,” the appellate courts must “presume . . . that the weighing

process took place in a meaningful fashion. It would be foolish, indeed, to

take the position that if a court is in possession of the facts, it will fail to

apply them to the case at hand.” Commonwealth v. Devers, 546 A.2d 12,

18 (Pa. 1988); accord Commonwealth v. Ventura, 975 A.2d 1128, 1135

(Pa.Super. 2009) (relying upon Devers and stating “where the trial court is

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informed by a pre-sentence report, it is presumed that the court is aware of

all appropriate sentencing factors and considerations, and that where the

court has been so informed, its discretion should not be disturbed”).

      The sentence imposed was in the mitigated range of the guidelines.

We cannot characterize the sentence as clearly irrational or unguided by

sound judgment. Herein, the sentencing court was cognizant of all the facts

that Appellant now relies upon in mitigation of his sentence, and thus, fully

aware of all aggravating and mitigating factors when it imposed Appellant’s

sentence. We find no abuse of discretion on the part of the trial court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/31/2017




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