J-A04035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EUGENE WARE                                :
                                               :
                       Appellant               :   No. 3763 EDA 2016

           Appeal from the Judgment of Sentence September 28, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0008035-2015

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

MEMORANDUM BY COLINS, J.:                               FILED MARCH 07, 2019

        Appellant, Eugene Ware, appeals from aggregate judgment of sentence

of five to ten years of confinement followed by five years of probation, which

was imposed after his convictions at a stipulated bench trial for possession of

a firearm as a prohibited person, carrying a firearm without a license, and

carrying a firearm on a public street in Philadelphia.1        Herein, Appellant

challenges the weight of the evidence supporting his convictions. We affirm.

        The facts underlying this appeal are as follows. Appellant was stopped

by Philadelphia Police Officers Armendariz and Harper on April 16, 2015, for

failure to properly use his turn signal. Appellant was driving a rented Chevy

Impala in the 5900 block of Frankford Avenue in Northeast Philadelphia. The



____________________________________________


1   18 Pa.C.S. §§ 6105, 6106, and 6018, respectively.


*    Retired Senior Judge assigned to the Superior Court.
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stop and investigation occurred at approximately 12:25 a.m. and resulted in

the confiscation of a loaded, chambered and operable 40 caliber Smith &

Wesson semi-automatic weapon. Trial Court Opinion, filed June 18, 2018, at

2.

        The facts from the testimony at a suppression hearing at which

Appellant sought to exclude the weapon were that as Officer Armendariz

approached the driver’s side of the vehicle, he observed Appellant making

sudden movements toward the center console area of the vehicle, raising his

suspicion that there might be a weapon there, and he instructed Appellant to

keep his hands where the officer could see them and to provide his driver’s

license, registration, and insurance information. N.T., 7/13/2016, at 12, 14.

After   multiple   requests,   Appellant   proffered   documents   and   Officer

Armendariz turned them over to Officer Harper, who returned to the police car

to process them. Id. at 15. Observing that Appellant appeared to be nervous

and was watching the rear and side view mirrors, Officer Harper exited the

police car and approached the passenger side of the vehicle. Id. at 37-38.

Officer Armendariz asked Appellant to step out of the vehicle and go to the

rear of the vehicle with him. Id. at 19. Officer Harper walked back to the

driver’s side of the vehicle, where the door was open, and observed the butt

of a gun tucked between the driver’s seat and the center console; he

recovered the gun and directed Officer Armendariz to handcuff Appellant. Id.




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at 40-41. Appellant told the officers that he did not have a license to carry

the gun. Id. at 41.

       The trial court denied the motion to suppress, finding the testimony of

both officers to be credible and consistent with one another, and finding

explicitly that Officer Harper observed the gun in plain view. Id. at 60.

       Appellant waived his right to a trial by jury and agreed to the

incorporation of all relevant non-hearsay evidence introduced at the

suppression hearing.         Stipulated evidence included examination results

regarding operability from a firearms expert concerning the confiscated

weapon as well as documentation of Appellant’s previous conviction, which

triggered the prohibition of his ability to possess, transfer or carry a firearm

within the Commonwealth of Pennsylvania. Appellant was found guilty of the

aforementioned three offenses and sentenced, following hearing and oral

argument. A Motion for Reconsideration of Sentence, filed on September 30,

2016, did not include a challenge to the weight of the evidence or a motion

for a new trial and was denied without hearing on November 16, 2016. On

November 21, 2016, this timely direct appeal was filed.2

       The following issues have been presented for review:

       i.     Were the verdicts returned against the weight of the
              evidence because the Commonwealth presented internally
              inconsistent evidence as to whether or not the butt of the

____________________________________________


2 Appellant filed his statement of errors complained of on appeal on
December 6, 2016. The trial court entered its opinion on June 18, 2018.


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            firearm was in plain view and in the absence of a beyond a
            reasonable doubt finding that it was in plain view both the
            suppression decision and the finding of guilt were predicated
            on nothing more than a guess which shocks one’s sense of
            justice?

            A. Does the contradictory testimony by the officers trigger
               a weight of the evidence claim that shocks one’s sense
               of justice as to both the denial of the motion to suppress
               and the verdicts returned at trial?

Appellant’s Brief at 8 (unnecessary capitalization omitted).

      When considering challenges to the weight of the evidence, our standard

of review is as follows.

      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 witnesses. Resolving contradictory
      testimony and questions of credibility are matters for the
      factfinder.  It is well-settled that we cannot substitute our
      judgment for that of the trier of fact.

      Moreover, when a trial court finds that the [verdict] is not against
      the weight of the evidence, we must give the gravest
      consideration to the trial court’s conclusion because it is the trial
      court, and not the appellate court, that had the opportunity to see
      and hear the evidence presented. Furthermore, a defendant will
      only prevail on a challenge to the weight of the evidence when the
      evidence is so tenuous, vague and uncertain that the verdict
      shocks the conscience of the court.

Commonwealth v. Cramer, 195 A.3d 594, 600-01 (Pa. Super. 2018)

(internal citations and quotation marks omitted).

      Appellant argues that the officers’ testimony is so contradictory that it

cannot be established that the weapon was in plain view, hence the

suppression motion should properly have been granted; without a weapon,




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Appellant asserts he cannot have been convicted beyond a reasonable doubt

of crimes involving its possession. Appellant’s Br. at 10.

      The Commonwealth asserts that Appellant failed to preserve his

challenge to the weight of the evidence, since he filed neither a post-verdict

objection nor a post sentence motion raising this challenge. Commonwealth

Brief at 5. A challenge to the weight of the evidence must be preserved by a

motion for a new trial. Pa. R. Crim. P. 607. The Rule provides that a claim

that the verdict was against the weight of the evidence shall be raised: (1)

orally, on the record, at any time before sentencing; (2) by written motion at

any time before sentencing; or (3) in a post-sentence motion. Pa. R. Crim. P.

607(A)(1)-(3).   We agree.     In the instant case, the docket reflects that

Appellant, by his trial counsel, filed a post-sentence motion in the nature of a

“Motion for Reconsideration of Sentence,” requesting the vacating of the

sentence, a remand and a modification of the sentence. Prior to the filing of

a statement of matters complained of on appeal, Appellant took no steps to

raise a claim that the verdict was against the weight of the evidence. A claim

challenging the weight of the evidence generally cannot be raised for the first

time in a Rule 1925(b) statement. Commonwealth v. Sherwood, 982 A.2d

483, 494 (Pa. 2009).

      Moreover, even if Appellant had successfully preserved his challenge to

the weight of the evidence, we find that it would merit no relief. Our review

of the record shows that the evidence was not tenuous, vague or uncertain,


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and the verdict was clearly not so contrary to the evidence as to shock the

court’s conscience.   Commonwealth v. Cramer, 195 A.3d at 601.               The

officers’ testimony at the suppression hearing was simply not inconsistent or

contradictory. Officer Armendariz did not testify that there was no weapon,

but rather that he did not see the weapon, and testified that he was focused

on Appellant’s hands at the time he shined a flashlight into the vehicle. N.T.

at 31. Officer Harper observed the weapon after Appellant stepped out of the

vehicle.   Moreover, even if the parallel testimonies could be viewed as

inconsistent, the trial court was permitted, as factfinder, to believe all, part,

or none of the evidence presented and to determine the credibility of the

witnesses. Id. at 600.

      We discern no abuse of discretion on the part of the trial court.

Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/19




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