J-A29017-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

RAYMONT LEE BURGESS,

                        Appellant                    No. 1409 WDA 2014


          Appeal from the Judgment of Sentence February 11, 2014
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0007950-2013


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                        FILED JANUARY 22, 2016

      Raymont Lee Burgess appeals from the judgment of sentence of five to

ten years incarceration followed by five years probation entered after he was

found guilty at a nonjury trial of person not to possess a firearm and

possession of an offensive weapon.    For the reasons set forth herein, we

affirm.

      Appellant was arrested at the residence of Chuckia Herring, a former

paramour and mother of his two children, both of whom were home at the

time. Appellant, a fugitive, had been living at a halfway house and running

from police following a parole violation at least three months prior.     He

testified that he asked Herring to stay the night at her apartment so that he

may spend time with his children, and she obliged.
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      The facts that gave rise to Appellant’s arrest were recounted as follows

by the trial court:

            On May 31, 2013, the United States Marshall's Fugitive
      Task Force, attempted to effectuate an arrest warrant for
      Burgess, who was a parole violator and fugitive. Based upon
      information that the Marshall's Office had received about
      Burgess it was believed that he was staying with Chuckia
      Herring, (hereinafter referred to as "Herring"), and their
      children, ages two and one, at her apartment located on
      Sandusky Court. Pennsylvania State Trooper Matthew Roth was
      assigned to the Fugitive Task Force and he, along with six other
      members of his team, went to Herring's apartment in the hopes
      of apprehending Burgess.       At approximately 7:30 in the
      morning, Trooper Roth knocked on the door, announced that
      they were the police and that they had an arrest warrant for
      Burgess.    There was no response to the initial knocking,
      however, they could hear movement in the apartment. They
      repeatedly knocked on the door and finally when there was no
      response to their knocking on the door, despite the fact that
      people were inside the apartment, they advised those individuals
      that they were going to breach the door.

             The door was breached and Trooper Roth immediately ran
      into a couch that had been pushed in front of the door, as was a
      television set.    Trooper Roth encountered Herring who was
      standing in front of him wrapped in a towel and holding a small
      child. He attempted to get around her and she attempted to get
      in his way. He finally got around her and proceeded to one of
      the two bedrooms in this apartment. When he entered the
      room, he noticed that a second child was asleep on a mattress
      on the floor. He proceeded to look through the rest of the
      bedroom and noticed a closet where a pile of clothes was on the
      floor. In going through the clothes, Trooper Roth found a silver
      semi-automatic Fie thirty-two-caliber pistol that was fully loaded.
      Trooper Roth announced to his team members that he had found
      a loaded [handgun] and then cleared the [firearm] to insure the
      safety of the minor child who was in that room. Other members
      of the Marshall’s Task Force went into the second bedroom and
      found Burgess who was hiding in a plastic tub underneath a pile
      of clothes and with the lid on it. When Burgess had been
      arrested and taken into custody, he said that the gun did not
      work, that the slide was locked.

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     Appellant, Herring, and Trooper Roth each testified at the joint trial of

Appellant and Herring. Especially relevant to the trial court’s determination

of Appellant’s guilt and to our instant disposition is the following exchange

between Appellant and his counsel on direct examination:

     Counsel:    Were you aware of a gun in one of the bedrooms,
                 sir?

     Appellant: No, sir.

     Counsel:    Had you discussed the gun with Miss Herring at all?

     Appellant: I think she told me when I was in jail in 2011 that
                she purchased a gun, but we never really talked
                about it.

     Counsel:    Okay. When you got there that day, did you ever go
                 into the room specifically where the gun was found
                 at?

     Appellant: Sir, I laid the child in the bed and went to sleep on
                the couch.

N.T., 2/11/14, at 43.

     When Herring was asked whether she told Appellant she owned a gun,

she explained: “I don’t remember telling him about the gun.       I believe I

might have said I wanted one when he was in jail in 2011, but I don’t

remember if I told him that I actually got a gun.” Id. at 61. The firearm,

which was unlawfully obtained, was given to her by a friend after nearby

break-ins left her fearful for her safety and that of her children. She later

testified that she “didn’t tell him about the gun” and that she didn’t know

how he would know about it. Id. at 60. Herring testified consistently and


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unequivocally that the firearm was kept in a box on the top shelf of a cabinet

in her room and that she never moved it. Id. at 61 (“It was always in a

box.    I had no reason to take it out.     It was in a box on the shelf for

years.”); id. at 63 (“[The gun] hadn’t been moved since it had been put in

there.”); id. at 64 (stating that “[t]he gun was always up there in a box,”

that she “never had a reason to take it out,” and agreeing that, if somebody

else took the gun out of the box before the arrest, it was not her). Herring

was not asked for and did not offer testimony about whether any individual

other than herself, Appellant, and her two children, then one and two years

old, had access to her apartment and, accordingly, to her firearm.

        The trial court found Appellant guilty, sentenced him as stated above,

and denied his timely post-trial motion seeking relief.      Appellant timely

appealed, and the trial court ordered him to file and serve a 1925(b) concise

statement of errors complained of on appeal. Following several requests for

extensions, Appellant complied with the trial court’s order. The trial court

then authored its 1925(a) opinion.        This appeal is now ready for our

consideration.

        Appellant levels two questions:

  I.      Was the evidence sufficient to establish that Mr. Burgess had actual
          or constructive possession of the gun found in Herring’s bedroom
          closet?

  II.     Were the verdicts of guilty against the weight of the evidence
          because the trial court relied on a fact not in evidence,
          misinterpreted another fact, and ignored overwhelming evidence
          that Mr. Burgess did not possess the gun?

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Appellant’s brief at 5.

      At his first issue, Appellant alleges that the evidence was insufficient to

convict him of person not to possess a firearm and possession of an

offensive weapon because the Commonwealth failed to show that Appellant

had constructive possession of Herring’s firearm.        Specifically, Appellant

relies on the dearth of testimony regarding his knowledge of Herring’s

possession of the firearm and, perhaps more importantly, the location of

that firearm in her apartment. He argues that the fact that he inaccurately

told the officers that the firearm was nonfunctional proved that he was

unaware of its condition and suggested that he made that comment out of

fear and without actual knowledge of the gun’s functionality.        As Herring

testified that she never told Appellant where the firearm was located and

that she did not tell Appellant that she ever possessed one, Appellant

maintains the evidence is insufficient to show that he possessed the firearm

for the purposes of the statute.      Accordingly, Appellant argues that the

evidence presented at trial was insufficient to convict him of the firearm-

related offenses.

      The Commonwealth, on the other hand, relies on the inferences drawn

from the following testimony: Appellant had access to and actually entered

Herring’s bedroom; Herring never moved the gun from the box in the

closet; the firearm was found in a location other than that location; and



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Appellant had time to hide the gun in the pile of clothes in between the

officers’ initial knock and their entrance.     Nothing, the Commonwealth

notes, impeded Appellant from finding and possessing Herring’s firearm.

While it acknowledges that Appellant gave an inaccurate representation of

the firearm’s operability, it also posits that an individual inexperienced in

handling firearms could easily make such a mistake.

     We are guided by a well-settled standard of review when called to

examine sufficiency claims.   We will “evaluate the record in a light most

favorable to the verdict winner giving the prosecution the benefit of all

reasonable inferences to be drawn from the evidence.” Commonwealth v.

Pettyjohn,    64   A.3d   1072,   1074    (Pa.Super.   2013).    Though   the

Commonwealth may establish guilt by circumstantial evidence alone,

“[e]vidence 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.”        Id.   Circumstantial

evidence, when coupled with the reasonable inferences to which the

Commonwealth is entitled, “overcomes the presumption of innocence.” Id.

at 1075.

     Appellant herein does not challenge that he is, in fact, a person not

permitted to possess a firearm. See 18 Pa.C.S. § 6105(b). As Appellant

was not in actual possession of the firearm at the time of his arrest, the




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Commonwealth was required to prove that he was in constructive

possession of it in order to support his convictions. We have recognized:

     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).     At issue in Appellant’s sufficiency claim is whether he

constructively possessed the firearm. We find that the evidence presented

at trial was sufficient to support the trial court’s determination that he

constructively possessed the firearm.

     Appellant, a fugitive at the time of the arrest, arrived at Herring’s

apartment at 2:30 a.m. He entered Herring’s bedroom, where Officer Roth

eventually found the firearm, that night to put one of the children to sleep.

Herring testified consistently and ardently that the gun was located in a box

at the top of her bedroom closet and she had not moved the gun since it

was given to her years ago. She did not once testify that any person other

than Appellant had access to her apartment, room, or firearm. The firearm

was eventually recovered in Herring’s bedroom, although in a different

location from the only place Herring had kept it and knew it to be.

Appellant, spontaneously and unprompted, then acknowledged to officers


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that he had knowledge, though eventually shown to be false, of the

firearm’s condition.

     By placing himself in the room where the firearm was recovered, N.T.

2/11/14, at 43, Appellant concedes that he had access to the firearm.

Herring’s unequivocal assertion that she had never moved and had no

reason to ever move the gun from her closet, id. at 60, testimony that was

credited by the trial court, permitted the reasonable inference that

Appellant had intent to and did exercise that control by moving it from its

location.   Under our standard of review, the Commonwealth is entitled to

the reasonable inference that it was Appellant who moved the gun,

especially in light of the fact that the only others present in the apartment

were one- and two-year-old children.

     It matters not that Appellant’s voluntary statement that the firearm

was inoperable was incorrect.        Although Appellant asserts that the

statement’s falsity implies that he did not actually handle the weapon, the

competing inference was credited by the trial court.     We will not reweigh

the evidence.   Thus, we reject his sufficiency challenge and find that the

trial court had sufficient evidence to find beyond a reasonable doubt that

Appellant constructively possessed the firearm.

     Appellant next asserts that his convictions were against the weight of

the evidence presented at trial. Specifically, he asserts that the trial court

“got one fact wrong, misapplied another, and used these errors as the


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basis” for sustaining Appellant’s convictions. Appellant’s brief at 29. In its

opinion, the trial court twice wrote that Herring told Appellant that the gun

was in the shoebox in her apartment and characterized Appellant’s

misstatement about the firearm’s operability as evidence that he handled it.

Relying on these facts and misinterpretations of testimony, Appellant’s

argues that the trial court’s findings were against the weight of the

evidence.

     The Commonwealth rebuts that the trial court did not, and did not

need to, rely on any misstated fact in reaching its conclusion. Instead, the

Commonwealth points to the trial court’s opinion, wherein it states:

     [I]t is clear that the verdicts are not against the weight of the
     evidence so as to shock one’s conscious [sic] as Burgess knew of
     the gun, he knew of the condition of the gun and it had been
     removed from the location that Herring maintained that she had
     placed the gun and never moved it.

Commonwealth brief at 24 (citing Trial Court Opinion, 6/3/15, at 7). Thus,

while the trial court misstated the fact that Appellant was told of the

location of the gun, the Commonwealth argues that it did not need that fact

to find that Appellant constructively possessed the firearm.       It likewise

refutes Appellant’s arguments regarding the erroneous statement of the

firearm’s operability and that the Commonwealth failed to provide certain

inculpatory evidence by noting this Court’s standard of review, which

prohibits us from reweighing the evidence presented at trial. We agree with




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the Commonwealth and find that the trial court did not abuse its discretion

with respect to Appellant’s weight claim.

     We have long recognized that our review a weight of the evidence

challenge is one of the trial court’s exercise of discretion, “not of the

underlying question of whether the verdict is against the weight of the

evidence.” Commonwealth v. Giordano, 121 A.3d 998, 1007 (Pa.Super.

2015). As the trial court has intimate knowledge of a given matter, we “will

give the gravest consideration to the findings and reasons advanced by the

trial judge when reviewing a trial court’s determination that the verdict is

against the weight of the evidence.” Id.

     We first credit Appellant’s assertion that the trial court misstated

Herring’s acknowledgement that she told Appellant the location of the

firearm. The trial court wrote in its Pa.R.A.P. 1925(a) opinion that Herring

testified that she “advised Burgess that she had the gun and that it was in a

shoebox in her apartment.” Trial Court Opinion, 6/3/15, at 4. Herring, in

fact, testified that she “might have said that [she] wanted one when

[Appellant] was in jail in 2011,” but she doesn’t remember if she told him

she actually had one.   Id. at 61.    She also testified that she recalled no

specific conversation about the firearm. Id. at 62. She did not testify that

she told Appellant the location of the gun.

     That said, we cannot find that the trial court relied materially on its

mistaken assertion that Herring presented testimony or that the assertion


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was essential in order to find that Appellant’s convictions were not against

the weight of the evidence.        Instead, the following facts provide a

reasonable basis for the trial court to reject Appellant’s weight claim: 1)

Herring never removed the firearm from the shoebox in her closet; 2)

Appellant had been in the room where the firearm was located (and, by

implication, had access to it); 3) the firearm was recovered hidden in a pile

of clothing; 4) the only other individuals in the apartment were one and two

years old; and 5) Appellant volunteered information about its condition to

police.    These facts were reasonably credited by the trial court based on

testimony presented at trial.    Thus, we find that the trial court did not

abuse its discretion in finding that the convictions did not shock its sense of

justice.     See Commonwealth v. Hankerson, 118 A.3d 415, 420

(Pa.Super. 2015).

     We need not quarrel with Appellant’s assertion that either the trial

court’s interpretation of his erroneous statement regarding the firearm’s

operability or the Commonwealth’s failure to provide evidence of Appellant’s

residence or DNA on the firearm entitles him to a new trial.      We will not

reweigh the evidence, nor will we afford Appellant an inference to which he

is not entitled.

     Judgment of sentence affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/2016




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