J-S56004-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

DEVIN PARKS

                        Appellant                  No. 3497 EDA 2015


         Appeal from the Judgment of Sentence October 15, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0012472-2013


COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

DEVIN PARKS

                        Appellant                  No. 3189 EDA 2016


         Appeal from the Judgment of Sentence October 15, 2015
           In the Court of Common Pleas of Philadelphia County
                        Criminal Division at No(s):
                         CP-51-CR-0012473-2013
                         CP-51-CR-0012474-2013
                         CP-51-CR-0012475-2013
                         CP-51-CR-0012476-2013



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

MEMORANDUM BY BOWES, J.:                     FILED SEPTEMBER 27, 2017




* Retired Senior Judge specially assigned to the Superior Court.
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      Devin Parks appeals from the judgment of sentence of eleven months

and fifteen days to twenty-three months imprisonment followed by five

years probation. The trial court imposed the sentence after a jury convicted

Appellant of three counts of receiving stolen property, and one count each of

possession of an instrument of crime and false identification to a police

officer. We affirm.

      Appellant was charged with the above offenses at five different

criminal actions, which proceeded to a consolidated jury trial. We rely upon

the trial court’s thorough recitation of the evidence presented by the

Commonwealth:

             Philadelphia Police Detective James Brady, testified that on
      June 28, 2013, at approximately 12:30 a.m., he along with other
      officers, executed a search warrant for the premises [at a
      location on] Pine Street in the City and County of Philadelphia.
      (N.T., 7/15/15, pgs. 36, 37, 39) He described the premises as a
      typical two story row home with three bedrooms, on the second
      floor. (N.T., 7/15/15, pg. 40) On entering the premises he
      encountered an adult female, later identified as Samira Taylor,
      and . . . young children but no adult males. (N.T., 7/15/15, pg.
      39) When he asked which room Ms. Taylor and Defendant
      occupied, he was directed to the second floor front bedroom.
      (N.T., 7/15/15, pg. 40) (N.T., 7/16/15, pg. 46)

             Detective Brady testified that on searching the front
      bedroom, he recovered a “black and tan Converse sneaker box,”
      from below the floor boards of the closet, containing the 3
      loaded hand guns, an empty box for a hand gun and numerous
      live rounds of ammunition of various calibers. In addition to the
      box, he also recovered various gun related items. (N.T.,
      7/15/15, pgs. 41-43, 49, 51, 58) He also recovered a Marshall's
      bag containing 100 to 150 clear, unused sandwich bags and a
      Whitman's sampler box containing two silver digital scales and
      various sized Apple brand heat sealable packets, “common for

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     packaging narcotics.” (N.T., 7/15/15, pgs. 43, 44, 56, 57) In
     addition to recovering the guns and drug paraphernalia, he also
     recovered a jacket containing “three packets of what we believed
     at the time to be narcotics,” which he believed to be an agent for
     cutting illegal drugs. The contents of the packets later proved
     not to be narcotic. (N.T., 7/15/15, pg. 44, 62)

            He also testified that he recovered $424.00 in cash and
     two pieces of mail from a dresser in the bedroom.           The
     recovered mail consisted of a letter from Bank of America and a
     letter from Target Card Services both of which were addressed
     to Defendant at that address. (N.T., 7/15/15, pgs. 46, 48)

            Before leaving the premises, [but] after concluding the
     search, Detective Brady advised Ms. Taylor that he needed to
     speak to Defendant. Since Defendant did not come in to be
     interviewed, although someone identifying himself as Defendant
     may have called, Detective Brady secured a warrant for
     Defendant's arrest and distributed a “wanted poster” which he
     distributed to the local police district. (N.T., 7/15/15, pgs. 65,
     66, 85)

            As part of his investigation, Detective Brady contacted the
     National Crime Institute Center and learned that all three of the
     recovered guns had been reported stolen, as well as the gun
     identified on the empty box. He then spoke with each of the
     owners who confirmed that the guns had been stolen and that
     they had no knowledge of Defendant, and hadn't given him
     permission to possess the guns in question. (N.T., 7/15/15, pgs.
     67, 68, 69-73, 86, 87)

            Philadelphia Police Detective, Matthew Carey, testified that
     on June 28, 2013, he assisted Detective Brady in executing of
     the search warrant for the premises 5942 Pine Street. (N.T.,
     7/15/15, pg. 90) Corroborating Detective Brady's testimony, he
     testified that on entering the closet in the second floor front
     bedroom, he immediately noticed “a floor plank was missing
     from the bottom of the closet.” He was able to easily remove
     additional pieces of the wood flooring to reveal the “Converse
     box,” containing the guns, as well as the scales and additional
     drug paraphernalia. (N.T., 7/15/15, pgs. 91-93)




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             Philadelphia Police Officer, Eugene Roher, testified that on
      July 6, 2013, while in uniform on routine patrol with his partner,
      in a marked patrol car, he stopped a vehicle and immediately
      identified Defendant as the passenger. (N.T., 7/15/15, pgs. 106-
      107, 115)       When he asked Defendant for identification,
      Defendant produced a “Pennsylvania ID card with the name of
      James Roderick Sherlock Jacobs, III . . .” which clearly did not fit
      his description. When asked: “Are you sure this is you?”,
      Defendant responded “yes.” (N.T., 7/15/15, pgs. 107, 110, 116)
      ....

            After placing Defendant in the patrol car, Defendant
      remained silent when Officer Roher, checking the warrant
      database, brought Defendant's picture and arrest warrant up on
      the computer screen. (N.T., 7/15/15, pgs. 109, 111) It wasn't
      until Officer Roher had taken Defendant back to headquarters
      that he revealed his true identity. (N.T., 7/15/15, pgs. 111, 113,
      118, 119)

Trial Court Opinion, 9/21/16, at 4-6.

      After he was sentenced, Appellant filed a pro se appeal at 3497 EDA

2015. That notice of appeal did not include four of the docket numbers that

were encompassed by the jury trial. Appellant, pursuant to a timely PCRA

petition and with the Commonwealth’s assent, was granted permission to file

an appeal nunc pro tunc at the four other docket numbers. The appeal at

3189 EDA 2016 followed. The two appeals were consolidated for our review.

Appellant raises these averments:

      A. Did the Commonwealth fail to present sufficient evidence that
      Appellant possessed the firearms at issue or had the necessary
      ‘guilty knowledge' needed to be convicted of Receiving Stolen
      Property?

      B. Did the trial judge commit prejudicial error by participating in
      the cross-examination of a crucial defense witness without giving



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      trial counsel an opportunity to object outside the presence of the
      jury?

Appellant’s brief at 4.

      Appellant’s first position is that there was insufficient evidence to

support his three convictions for receiving stolen property with respect to the

guns. Since a challenge to the sufficiency of the evidence raises a question

of law, our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Giron, 155 A.3d 635, 638 (Pa.Super. 2017).

             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
      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. Fitzpatrick, 159 A.3d 562, 567 (Pa.Super. 2017)

(emphasis added; citation omitted).

      The crime of receiving stolen property is defined as follows:

       (a) Offense defined.—A person is guilty of theft if he
      intentionally receives, retains, or disposes of movable property

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      of another knowing that it has been stolen, or believing that it
      has probably been stolen, unless the property is received,
      retained, or disposed with intent to restore it to the owner.

18 Pa.C.S. § 3925(a). Accordingly, the elements of the crime of receiving

stolen property include “(1) intentionally acquiring possession of the

movable property of another; (2) with knowledge or belief that it was

probably      stolen;   and    (3)     the     intent   to   deprive     permanently.”

Commonwealth v. Robinson, 128 A.3d 261, 265 (Pa.Super. 2015).

      Appellant first contests that the evidence established the first element,

i.e., that he was in possession of the guns. Appellant herein was not found

in   actual    possession     of     the     three   weapons;    consequently,       the

Commonwealth had to prove that he constructively possessed them.                      In

Pennsylvania,

      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. Muniz, 5 A.3d 345, 348–49 (Pa.Super. 2010) (citation

omitted);     accord    Commonwealth           v.    Harvard,   64     A.3d   690,   699

(Pa.Super. 2013) (“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.”). The intent to exercise control over



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a piece of contraband can be proven by circumstantial evidence and all the

circumstances in question. Muniz, supra.

     In this case, when police arrived at the Pine Street location to execute

the warrant, Ms. Taylor greeted them and said she had lived there with

Appellant for five years.   When asked where Appellant’s bedroom was

located, she directed them to the room where the guns were found and

where mail addressed to Appellant was discovered.     After Detective Brady

uncovered the three guns, he confronted Ms. Taylor, who denied any

knowledge of those items. Thereafter, Appellant refused to meet with police

and concealed his identity when eventually apprehended. Given these facts

and circumstances, we conclude that there was sufficient evidence to sustain

the jury’s determination that Appellant possessed the three guns. Harvard,

supra; Muniz, supra.

     Appellant also maintains that the evidence was insufficient to establish

that he knew or believed that the guns were probably stolen.      As to this

element of the crime in question, we observed in Robinson, supra at 265:

     Circumstantial evidence of guilty knowledge may include, inter
     alia, the place or manner of possession, alterations to the
     property indicative of theft, the defendant's conduct or
     statements at the time of arrest (including attempts to flee
     apprehension), a false explanation for the possession, the
     location of the theft in comparison to where the defendant
     gained possession, the value of the property compared to the
     price paid for it, or any other evidence connecting the defendant
     to the crime.




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      In this case, it was stipulated that all three weapons were stolen and

that Appellant did not have the owners’ permission to be in possession of

them. The fact that Appellant possessed multiple items of stolen property

supported the jury’s finding that he knew or believed that the guns were

probably stolen. The stolen items in question were guns, and Appellant did

not have a license to carry any of them, which also is probative of his

knowledge that they were probably stolen.       Additionally, the guns were

hidden in a box underneath a board in the floor of the closet in the bedroom,

which constituted additional evidence of guilty knowledge. Finally, Appellant

was aware that he was wanted for questioning but failed to appear at the

police station. Then Appellant deliberately hid his identity from police when

apprehended.    Given all of these circumstances, we conclude that the

evidence adduced by the Commonwealth was sufficient to support the jury’s

determination that Appellant knew or believed that the guns were probably

stolen.

      Appellant’s next averment is that the trial court erred when it

“participated in the cross-examination of Appellant’s mother and did not give

defense counsel an opportunity to object to the questioning outside the

presence of the jury.”    Appellant’s brief at 15.   As pointed out by the

Commonwealth and acknowledged by Appellant, Appellant failed to object to

the court's questioning. Thus, Appellant has waived this claim of error. See

Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa.Super. 2016) (“[T]he

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failure to make a timely and specific objection before the trial court at the

appropriate stage of the proceedings will result in waiver of the issue.”);

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”).

      Appellant suggests that the trial court had to sua sponte afford him the

opportunity to object to its line of questioning outside of the presence of the

jurors. However, Pa.R.E. 614(c) provides otherwise:

      (c) Objections. A party may object to the court's calling or
      examining a witness when given notice that the witness will be
      called or when the witness is examined. When requested to do
      so, the court must give the objecting party an opportunity to
      make objections out of the presence of the jury.

Pa.R.E. 614(c) (emphasis added).

      Herein, Appellant merely had to ask to speak with the judge at

sidebar, outside of the hearing of the jury. At sidebar, Appellant could have

requested that the jurors be temporarily excused so that he could properly

object to the questioning and a ruling on the objection could have been

made for the record. Under the clear wording of the rule in question, a trial

court was not obligated to provide a party the chance to object to its

examination of a witness outside of the jury’s presence unless the party

requests that opportunity. Hence, Appellant’s second averment is waived.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2017




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