J-S65009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JAMES EDWARDS COLE

                            Appellant                 No. 1526 WDA 2015


           Appeal from the Judgment of Sentence September 2, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0013244-2013


BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED NOVEMBER 16, 2016

        James Edwards Cole appeals from the judgment of sentence entered in

the Court of Common Pleas of Allegheny County after his conviction, in a

non-jury trial, for various firearms, drug, and traffic offenses.1 Upon careful

review, we affirm.

        The salient facts of this case have been gleaned from the trial court’s

opinion and are as follows.          On September 12, 2013, McKeesport Police

Officer Steve Kondrosky was on patrol when he observed a blue Hyundai
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   Cole was convicted of the following offenses: possession of firearm
prohibited, 18 Pa.C.S.A. § 6105(a)(1); firearms not to be carried without a
license, 18 Pa.C.S.A. § 6106(a)(1); resisting arrest, 18 Pa.C.S.A. § 5104;
possession of marijuana, 35 P.S. § 780-113(a)(31); carrying a loaded
weapon, 18 Pa.C.S.A. § 6106.1(a); and improper signal, 75 Pa.C.S.A. §
3334(b).
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travelling eastbound on East Fifth Avenue. The vehicle was travelling in a

prohibited driving lane and made an illegal left turn across three lanes of

traffic onto the Duquesne McKeesport Bridge without using a signal. Officer

Kondrosky pursued the vehicle, which finally pulled over after approximately

one half of a mile, on Route 837 and Cochran Street in Duquesne.

      Officer Kondrosky approached the car’s driver, subsequently identified

as Cole, and requested his license, insurance and registration information.

Cole provided the officer with his license, but indicated that he was not the

car’s owner and could not find the insurance or registration.         Officer

Kondrosky advised Cole that the documents could usually be found either in

the center console or glove compartment. However, Cole responded that he

did not want to go in the glove box. Officer Kondrosky testified that Cole

appeared nervous.      Officer Kondrosky told Cole not to make any sudden

movements while he waited for the dispatch center to respond with

information regarding Cole’s license.

      While Officer Kondrosky waited to hear from dispatch, he observed

Cole lean over to the passenger-side of the vehicle, nearly disappearing from

his line of sight.   Officer Kondrosky told Cole to sit up and stop reaching

around and Cole complied. Due to Cole’s movements and behavior, Officer

Kondrosky called for backup.       Lieutenant Connor Craig, a K-9 officer,

Sergeant Mark Steele and Detective Vandelli Summers responded to the

scene. As they arrived, Officer Kondrosky again approached Cole’s vehicle,

at which point Cole again began to reach toward the passenger-side floor.

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Officer Kondrosky yelled to Cole to sit up and stop reaching and proceeded

to unholster his weapon, as he was not sure whether Cole was reaching for a

gun.    At that point the three backup officers had arrived, and they all

approached the vehicle together.

       Officer Kondrosky asked Cole why he had disobeyed his order not to

reach around in the vehicle, at which time he detected the odor of marijuana

and informed Cole of what he smelled.      Officer Kondrosky then observed

that Cole was sweating profusely and was unable to complete a sentence

because he was so shaken up. As a result of Cole’s actions, movements and

demeanor, Officer Kondrosky asked Cole to exit the vehicle.    Cole replied,

“for what?” and placed his foot on the brake as he reached for the center

gearshift. Officer Kondrosky then pointed his weapon at Cole and informed

him that he was not free to leave.    After a few more demands by Officer

Kondrosky, Cole exited the vehicle.     Cole was placed at the rear of his

vehicle. Officer Kondrosky informed Lieutenant Craig of Cole’s nervousness

and movement while in the vehicle. As a result, Lieutenant Craig went to

the passenger side of the vehicle and, through the window, observed what

appeared to be the butt of a firearm protruding from the passenger seat

floorboard.   He stated “gun” to the other officers, at which time Cole fled

across Route 837 as Sergeant Steele grasped the back of his shirt.

Lieutenant Craig deployed his taser on Cole’s back, after which Cole was

taken into custody.    Lieutenant Craig recovered the firearm and another




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officer located a baggie containing a small amount of marijuana in the

vehicle.

      Prior to trial, Cole filed a motion to suppress the firearm and

marijuana, which the trial court denied. Cole also filed a motion to sever as

to the possession of firearm prohibited charge, which the court also denied.

A non-jury trial was held before the Honorable Philip A. Ignelzi on February

18, 2015, after which the court found Cole guilty of the above charges. On

September 2, 2015, the court sentenced Cole to a term of three to six years’

imprisonment on the possession of firearm prohibited charge and imposed

no further penalty on the remaining counts. Cole did not file post-sentence

motions. He filed a timely notice of appeal to this Court on October 2, 2015,

followed by a court-ordered statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).

      Cole raises the following issues for our review:

      1. Whether the trial court erred in failing to sever [Cole’s]
      charge of [p]ossession of [f]irearm [p]rohibited . . . from his
      other charges[?]

      2. Whether the evidence was insufficient as a matter of law to
      support [Cole’s] convictions for [possession of firearm prohibited
      and firearm not to be carried without a license]?

Brief of Appellant, at 4.

      Cole first alleges that the trial court erred in failing to grant severance

as to the charge of possession of firearm prohibited. A motion for severance

is addressed to the sound discretion of the trial court, and its decision will



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not be disturbed absent a manifest abuse of discretion. Commonwealth v.

Melendez-Rodriguez, 856 A.2d 1278, 1282 (Pa. Super. 2004) (citation

omitted).     In reviewing the decision of the trial court, the critical

consideration is whether the defendant was prejudiced by the trial court’s

decision not to sever.     Commonwealth v. Lopez, 739 A.2d 485, 501

(1999).     The Pennsylvania Supreme Court has reiterated the appropriate

three-part test under this rule:

       the court must determine: [1] whether the evidence of each of
       the offenses would be admissible in a separate trial for the
       other; [2] whether such evidence is capable of separation by the
       jury so as to avoid danger of confusion; and, if the answers to
       these inquiries are in the affirmative; [3] whether the defendant
       will be unduly prejudiced by the consolidation of offenses.

Melendez-Rodriguez, 856 A.2d at 1283 (citations and ellipses omitted). A

defendant bears the burden of establishing prejudice. Lopez, 739 A.2d at

501.

       Here, Cole was charged with persons not to possess firearms pursuant

to section 6105 of the Crimes Code, which provides, in relevant part, as

follows:

       (1) A person who has been convicted of an offense enumerated
       in subsection (b), within or without this Commonwealth, . . .
       shall not possess . . . a firearm in this Commonwealth.

18 Pa.C.S.A. § 6105(a)(1).     Cole was previously convicted of rape, along

with other disabling felonies enumerated in subsection (b) of section 6105.

As such, Cole’s criminal record constituted one of the elements of proof

necessary to the Commonwealth’s case. The trial court concluded that Cole

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would suffer no prejudice if severance were not granted and that “since the

[c]ourt [sat] as trier of fact . . . [it could] sort out any prior charges that Mr.

Cole had” and apply the law as required.

      Cole asserts that the introduction of his criminal record required that

the trial court sever the charge of persons not to possess from the remaining

charges because “[t]he prejudice that comes from the introduction of

conviction for crimes of violence is a special type of prejudicial evidence

[sic].” Brief of Appellant, at 17. Cole argues that

      [t]o distinguish between requiring severance in situations where
      a defendant requests a jury trial from those in which a defendant
      proceeds to a non-jury trial, is a slippery slope. Judges are
      human. What type of things bias us may be known but how
      they do so is not. It is simply impossible to say not only that a
      trial judge may not have been improperly motivated by certain
      things in reaching a decision but it is impossible for any human
      being to say something did not impact him or her. In other
      words, it is easy for a trial judge to say he or she was able to not
      improperly consider certain inflammatory evidence. It is quite
      another for a trial judge, being a human being, to actually know
      if that was true.

Id. at 16-17.

      In support of his claim, Cole cites to several cases in which this Court

held that a charge under section 6105 must be severed from other charges

where a defendant opts to proceed to trial and where evidence of the prior

crime is not otherwise admissible to prove motive, intent, absence of

mistake, common scheme or identity. See Commonwealth v. Jones, 858

A.2d 1198 (Pa. Super. 2004); Commonwealth v. Neely, 444 A.2d 1199

(Pa. Super. 1982); Commonwealth v. Galassi, 442 A.2d 328 (Pa. Super.

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1982); and Commonwealth v. Carroll, 418 A.2d 702 (Pa. Super. 1980).

However, these cases are all distinguishable from the case at bar because

they were tried before juries and not before a judge.

      Cole also attempts to distinguish the case relied upon by the trial

court, Commonwealth v. Gribble, 863 A.2d 455 (Pa. 2004). In that case,

our Supreme Court held that the trial court did not err in declining to sever

the defendant’s trial from that of his co-defendant. In doing so, the Court

concluded that the defendant was not prejudiced because he was tried in a

bench trial, in which

      [t]he learned trial judge is assumed to be able to separate the
      evidence that was admitted against the co-defendant alone and
      that which was admitted against appellant. Appellant’s present
      claim of prejudice is premised upon an assumption that the trial
      judge was unable to consider the evidence only for its intended
      evidentiary purpose. That assumption is contrary to settled law.

Id. at 462.      Cole asserts that Gribble is distinguishable because it

addresses severance of trials rather than charges. Under the circumstances

of this case, we find that to be a distinction without a difference.     In both

scenarios, the trial court, sitting as finder of fact, is presented with evidence

that is admissible for one purpose and not for another, and is tasked with

considering the evidence only for its intended purposes.       As our Supreme

Court noted, it is settled law that judges are capable of doing just that. See

id. As this Court has previously stated,

      Judges, . . . by virtue of their legal training and professional
      experience[,] can be expected to sift through the evidence,
      critically analyze it, and discard that which is not properly

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      presented. As a result, an appellate court can more readily
      presume proper decision making when the trier of fact is a
      judge.

Commonwealth v. Walls, 415 A.2d 890, 893 (Pa. Super. 1979) (citation

omitted).    Accordingly, inasmuch as the Supreme Court concluded in

Gribble that a trial judge is capable of separating evidence admitted against

one co-defendant alone from that admitted against another co-defendant in

the same trial, we find that a trained, experienced jurist is capable of

considering evidence of a defendant’s prior convictions only for the purpose

for which it is admissible.

      In any event, Cole has failed to demonstrate how he was prejudiced by

the court’s alleged abuse of discretion.

      An abuse of discretion is not merely an error of judgment, but is
      rather the overriding or misapplication of the law, or the exercise
      of judgment that is manifestly unreasonable, or the result of
      bias, prejudice, ill-will or partiality, as shown by the evidence of
      record.

Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015). Here,

there is no evidence that the court exhibited any bias or ill-will toward Cole.

To the contrary, at sentencing, the court gave Cole a “break,” see N.T.

Sentencing, 9/2/15, at 33, and imposed the minimum sentence for his

violation of section 6105. Moreover, Cole received no further penalty on the

remaining convictions. Accordingly, as the Commonwealth points out in its

brief, Cole was not penalized for the charges on which he was allegedly

prejudiced by the admission of the prior conviction evidence.

      For all the foregoing reasons, Cole’s first claim is meritless.


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      Cole next asserts that the evidence was insufficient to sustain his

convictions for possession of firearm prohibited and firearm not to be carried

without a license. Specifically, Cole argues that the evidence was insufficient

to prove either actual or constructive possession of the firearm located under

the passenger-side seat. There is no merit to this claim.

      As a general matter, our standard of review of sufficiency claims
      requires that we evaluate the record in the light most favorable
      to the verdict winner giving the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence. Evidence
      will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. Any doubt about the defendant’s guilt is
      to be resolved by the fact finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.

      The Commonwealth may sustain its burden by means of wholly
      circumstantial evidence. Accordingly, the fact that the evidence
      establishing a defendant’s participation in a crime is
      circumstantial does not preclude a conviction where the evidence
      coupled with the reasonable inferences drawn therefrom
      overcomes the presumption of innocence. Significantly, we may
      not substitute our judgment for that of the fact finder; thus, so
      long as the evidence adduced, accepted in the light most
      favorable to the Commonwealth, demonstrates the respective
      elements of a defendant’s crimes beyond a reasonable doubt,
      the appellant’s convictions will be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722–23 (Pa. Super. 2013)

(internal citations and punctuation omitted).

      Possession of a firearm is an essential element of the two statutes at

issue in this claim, and is the only element challenged by Cole on appeal.

Where possession is an element of a crime, the Commonwealth may

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demonstrate actual or constructive possession.        Here, the firearm was not

located on Cole’s person.        Thus, the Commonwealth was required to

establish constructive possession.

        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.

Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013) (citation

omitted).       Possession   may   be   shown    by    circumstantial   evidence.

Commonwealth v. Bentley, 419 A.2d 85, 87 (Pa. Super. 1980)

        Here, the evidence showed that Cole was the driver and sole occupant

of a vehicle in which a firearm was found within arms-reach of the driver’s

seat.    Officer Kondrosky testified that Cole repeatedly leaned over and

appeared to reach for something on the passenger-side of the vehicle before

being instructed to stop.     Moreover, Cole demonstrated consciousness of

guilt by acting nervous and “shaken up” and sweating profusely. Cole also

attempted to flee across Route 837 before finally being tasered and taken

into custody.     The conduct of an accused following a crime, including

“manifestations of mental distress,” is admissible as tending to show guilt.

Commonwealth v. Hughes, 865 A.2d 761, 792 (Pa. 2004). Based upon

the totality of the circumstances, we conclude that the Commonwealth’s

evidence was sufficient to establish that Cole had constructive possession of

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the firearm and, therefore, was sufficient to support his convictions for

possession of firearm prohibited and firearm not to be carried without a

license.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2016




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