J-S42027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JEROME J. HERNANDEZ,                       :
                                               :
                       Appellant               :   No. 1285 EDA 2018


           Appeal from the Judgment of Sentence, February 15, 2018,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0010673-2016.


BEFORE:      OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                          FILED OCTOBER 15, 2019

        Jerome J. Hernandez appeals from the judgment of sentence imposed

following a jury trial on the charge of possession of firearm prohibited.1 After

careful review, we affirm.

        The trial court aptly summarized the pertinent facts of this case as

follows:

        On November 2, 2016, around 1:20 AM, Police Officer Todd
        Walker received information through police radio that there was a
        person with a gun at 208 West Olney Avenue, a row home
        residence. Upon arriving on site Sergeant Thomas Brown met up
        with Officer Walker and they spoke with Octavia Brown, the
        Complainant. The Complainant explained that she had been
        involved in a verbal dispute with [Hernandez] over a bullet
        dropping out of his pocket in front of her granddaughter.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 6105(a).
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     Prior to the date of the verbal dispute with [Hernandez], the
     Complainant had found a silver gun in the ceiling. The
     Complainant asked her daughter why there was a gun in the
     house, since the Complainant does not believe in guns and does
     not allow guns in her home. The Complainant's daughter told the
     Complainant that the gun belonged to [Hernandez]. The
     Complainant became upset and hid the gun so her 5 year old
     granddaughter, Brianna, would not be able to grab it.

     On November 2, 2016, the Complainant realized that [Hernandez]
     had another gun, in addition to the silver gun she had hidden,
     when a bullet dropped from [Hernandez’s] pocket and Brianna
     picked it up to return it to [Hernandez]. The Complainant noticed
     a black object, which she believed to be a gun, in [Hernandez’s]
     hooded sweatshirt ("hoodie") when he returned the fallen bullet
     to his hoodie pocket. Later that evening, after [Hernandez] had
     been drinking beer, the Complainant told [Hernandez] he needed
     to get the gun out of the house. [Hernandez] responded that he
     wasn't going anywhere. The Complainant waited until
     [Hernandez] passed out from alcohol intoxication before she
     called the police.

     Upon their arrival at her home, the Complainant informed Officer
     Walker and Sergeant Brown that [Hernandez] was drunk and in
     the basement of the residence. Officer Walker proceeded to the
     basement and saw a well-lit room towards the front of the
     basement. He entered the room and saw [Hernandez] laying on
     the bed asleep. He also noticed a black handgun, a 357 Magnum
     revolver, around 2 inches away from [Hernandez’s] waist, on
     [Hernandez’s] left side. After noticing the gun, Officer Walker
     proceeded to take the gun and remove the bullets from it with his
     bare hands. He secured the gun without gloves because he wanted
     to make it safe immediately since he did not know whether
     [Hernandez] was dangerous. The use of his bare hands
     contaminated the gun, making it unable to be tested for prints or
     DNA evidence.

     While Officer Walker secured the handgun, Sergeant Brown woke
     [Hernandez] and proceeded to question him. Upon waking,
     [Hernandez] appeared to be in an intoxicated stupor. Once
     [Hernandez] was detained by Officer Walker, Sergeant Brown did
     a record check of [Hernandez] and discovered that [Hernandez]
     was ineligible to possess a firearm at the time of the incident.




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Trial Court Opinion at 1-3 (citations omitted).

      Following Hernandez’s conviction, the trial court sentenced Hernandez

to five to ten years of imprisonment. Hernandez filed a post-sentence motion

which the trial court denied. Hernandez timely appealed. Both Hernandez

and the trial court complied with Pennsylvania Rule of Appellate Procedure

1925(a).

      On appeal, Hernandez raises the following issues:

      1) Was not the evidence insufficient as a matter of law to sustain
      appellant's firearm conviction because the Commonwealth did not
      prove beyond a reasonable doubt appellant's actual or
      constructive possession of the gun found, as it was equally likely
      that it belonged to anyone else who inhabited the residence the
      firearm was found in?

      2) Was not the verdict so contrary to the weight of the evidence
      as to shock one's sense of justice where a new trial should be
      awarded?

Hernandez’ Brief at 4.

      In his first issue, Hernandez claims that the evidence was insufficient to

support his conviction for possession of firearm prohibited. When reviewing a

sufficiency claim, we must consider “whether the evidence admitted at trial,

and all the reasonable inferences derived therefrom viewed in favor of the

Commonwealth as verdict winner, supports the jury's finding of all the

elements of the offense beyond a reasonable doubt.” Commonwealth v.

Cash, 137 A.3d 1262, 1269 (Pa. 2016) (citation omitted). “The trier of fact

bears the responsibility of assessing the credibility of the witnesses and

weighing the evidence presented.     In doing so, the trier of fact is free to


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believe all, part, or none of the evidence.” Commonwealth v. Newton, 994

A.2d 1127, 1131 (Pa. Super. 2010), appeal denied, 8 A.3d 898 (Pa. 2010)

(citations omitted). “The Commonwealth may sustain its burden by means of

wholly circumstantial evidence, and we must evaluate the entire trial record

and     consider    all   evidence    received    against    the   [Hernandez].”

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

“where the evidence offered to support the verdict is in contradiction to the

physical facts, in contravention to human experience and the laws of nature,

then the evidence is insufficient as a matter of law.”       Commonwealth v.

Widmer, 744 A.2d 745, 751 (Pa. 2000). “Because evidentiary sufficiency is

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

is plenary.” Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013).

        To convict Hernandez on a charge of possession of firearm prohibited,

the Commonwealth was required to show that he: 1) was previously convicted

of an enumerated offense; and 2) possessed a firearm. See 18 Pa.C.S.A. §

6105.     To establish the element of possession, this Court has held that

“[p]ossession can be found by proving actual possession, constructive

possession, or joint constructive possession.” Commonwealth v. Parrish,

191 A.3d 31, 36 (Pa. Super. 2018) (citation omitted).

        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

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      application, we have held that constructive possession may be
      established by the totality of the circumstances.

Hopkins, 67 A.3d at 820 (citations omitted) (emphasis added).

      As noted by the trial court, Hernandez does not dispute the first factor;

the parties stipulated that Hernandez was previously convicted of a crime

prohibiting him from carrying a firearm. However, he only claims that the

evidence was insufficient to establish that he had actual or constructive

possession of the firearm in question. Specifically, Hernandez argues that the

gun was not found on him or that he was ever seen touching the gun. He

further argues that other individuals lived in the house where the gun was

found; thus, it was equally likely that the gun belonged to someone else who

lived there. This is particularly so given that the room where he was sleeping

when the gun was found was shared with another man. Hernandez also claims

that Complainant planted the gun near him so she could get him out of the

house. Hernandez’s Brief at 12. Thus, his conviction should be reversed. We

disagree.

      Contrary to Hernandez’s argument, the evidence demonstrated that

Hernandez had constructive possession of the gun. The trial court succinctly

summarized the evidence in support of this conclusion:

      In the instant matter, the Complainant testified that on the date
      of the offense, she saw a black object which she believed to be a
      gun, in the pocket of the hoodie [Hernandez] was wearing. She
      was able to see this object after a bullet dropped from his pocket
      and he was placing the bullet back in his pocket. The Complainant
      was so certain that the object she saw was a gun that she
      demanded that [Hernandez] get the gun out of her home. The gun


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      in [Hernandez’s] pocket is direct evidence of his dominion and
      control over it.

      Next, Officer Walker discovered a black loaded handgun, 2 inches
      away from the sleeping [Hernandez’s] waist. There was no
      evidence that another person was in the room or anywhere near
      the gun. Based on these pieces of evidence, the Commonwealth
      has proven beyond a reasonable doubt that [Hernandez] had
      knowledge of the firearm within his reach and he had previously
      exercised control over the firearm. These facts, direct and
      circumstantial, are more than sufficient evidence to support the
      VUFA conviction beyond a reasonable doubt, i.e., [Hernandez] had
      knowledge, dominion, and control of the firearm that was found 2
      inches away from his waist and he had previously exercised
      control over the firearm.

Trial Court Opinion, 10/22/18, at 5.    Thus, based upon our review of the

record, and viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, we conclude that there was sufficient

evidence to sustain Hernandez’s conviction for possession of firearm

prohibited. Therefore, no relief is warranted.

      In his second issue, Hernandez claims that the verdict was against the

weight of the evidence. Specifically, he argues that Complainant’s testimony

presented varying renditions of what transpired and was replete with

inconsistencies. Complainant testified that nobody in her house drinks, but

later said that her husband drank with Hernandez. Complainant also testified

that, in her house, they did not believe in guns, never did, yet she had a gun

conviction in 1989.    According to Hernandez, these inconsistencies and

Complainant’s personal animus toward him were sufficient to raise reasonable

doubt as to whether Hernandez had constructive possession of the gun.




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Hernandez’s Brief at 21. Thus, Hernandez claims his conviction was against

the weight of the evidence. We disagree.

      When reviewing a challenge to the weight of the evidence, our standard

of review is as follows:

      The essence of appellate review for a weight claim appears to lie
      in ensuring that the trial court's decision has record support.
      Where the record adequately supports the trial court, the
      trial court has acted within the limits of its discretion.

                                     ***

      A motion for a new trial based on a claim that the verdict is against
      the weight of the evidence is addressed to the discretion of the
      trial court. A new trial should not be granted because of a mere
      conflict in the testimony or because the judge on the same facts
      would have arrived at a different conclusion. Rather, the role of
      the trial judge is to determine that notwithstanding all the facts,
      certain facts are so clearly of greater weight that to ignore them
      or to give them equal weight with all the facts is to deny justice.

                                     ***

      An appellate court's standard of review when presented with a
      weight of the evidence claim is distinct from the standard of review
      applied by the trial court. Appellate review of a weight claim
      is a review of the exercise of discretion, not of the
      underlying question of whether the verdict is against the
      weight of the evidence.

Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations

omitted) (emphasis added). Absent an abuse of discretion, the trial court’s

decision will not be disturbed.   See Commonwealth v. Griffin, 515 A.2d

865, 869 (Pa. 1986).       An abuse of discretion “is not merely an error in

judgment.    Rather, it involves bias, partiality, prejudice, ill-will, manifest

unreasonableness or a misapplication of the law.” Commonwealth v. West,


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937 A.2d 516, 521 (Pa. Super. 2007) (citation omitted). By contrast, a proper

exercise of discretion “conforms to the law and is based on the facts of record.”

Id.

      In denying Hernandez’s motion, the trial court explained as follows:

      Here, the jury found the testimony to be credible. There were
      multiple witnesses called to testify in this case. The Complainant
      spoke to police and gave a statement on November 2, 2016. At
      this time, she informed the police that the [Hernandez]
      occasionally stayed at her home and that she had found a silver
      firearm that belonged to him prior to the current incident. The
      Complainant explained that she knew the black firearm, the one
      retrieved by Officer Walker from beside the sleeping [Hernandez],
      belonged to the [Hernandez] because she had seen a bullet fall
      out of the [Hernandez’s] hoodie and had noticed a black object
      inside of the [Hernandez’s] hoodie pocket when he went to return
      the fallen bullet to his pocket.

      Officer Walker testified that he found a black firearm 2 inches
      away from the sleeping [Hernandez’s] hip. The jury's credibility
      determinations based on the evidence presented and the
      demeanor of the witnesses at trial should stand, particularly when
      there is corroboration of the identification of the owner of the
      firearm based on both the Complainant's and Officer Walker's
      testimony. In light of the overwhelming evidence discussed
      above, the verdict is not so contrary to the evidence as to shock
      the conscience.

Trial Court Opinion, 10/22/18, at 6-7.

      It is axiomatic that the weight of the evidence is exclusively for the

finder of fact who is free to believe all, none or some of the evidence and to

determine the credibility of the witnesses. Commonwealth v. Johnson, 668

A.2d 97, 101 (Pa. 1995). Consequently, a trial court’s power to upset a jury

verdict on a weight claim is narrowly circumscribed. A new trial is warranted

on a weight claim only “in truly extraordinary circumstances.” Moreover, mere

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conflict is not enough to grant a motion for a new trial. Commonwealth v.

Landis, 89 A.3d 694 (Pa. Super. 2014).

      As is evident from the trial court’s explanation, it recognized these

important principles when it denied Hernandez’s weight claim. The trial based

its conclusion that the verdict was not so contrary to the evidence so as to

shock the conscience upon its observance of the witnesses at trial and a sound

review of the substantial evidence against Hernandez. In view of the trial

court’s rationale for denying Hernandez’s motion, we conclude that the trial

court did not abuse its discretion. No relief is warranted on this issue.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/19




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