J-S15036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

OTTO PAXTON,

                            Appellant                      No. 230 EDA 2015


            Appeal from the Judgment of Sentence August 22, 2012
                in the Court of Common Pleas of Bucks County
              Criminal Division at No.: CP-09-CR-0000231-2012


BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                FILED MARCH 02, 2016

        Appellant, Otto Paxton, appeals nunc pro tunc from the judgment of

sentence imposed pursuant to his conviction of possession of a firearm by

person prohibited, possession of a firearm with altered manufacturer’s

number,      prohibited     offensive     weapons,   and    possession   of   drug

paraphernalia.1 We affirm.

        We take the following background from the trial court’s June 6, 2013,

and April 21, 2015, opinions, and our independent review of the certified

record.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 6105(a)(1), 6110.2, and 908(a); and 35 P.S. § 780-
113(a)(32).
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           Police began investigating [Appellant] and his brother
     William Paxton in June of 2011. . . .

           On July 12, 2011, police executed a search warrant at the
     [Paxton home located at 2407 Bloomsdale Road, in Bristol
     Township, Bucks County]. When police arrived at the residence,
     William Paxton was on scene and was found to be in physical
     possession of a plastic bag filled with a mix of rice and [2.0
     grams of crack] cocaine.

           A black Cadillac registered to [Appellant] was parked in
     [front] of the Paxton residence. The registration to that vehicle
     was found on the dining room table. The registration was valid
     from June of 2011 to April of 2012.        Police also found a
     document addressed to [Appellant] at the Bloomsdale Road
     address regarding medical services he received in September of
     2010.

            The residence had three bedrooms.         In a bedroom
     identified at trial as bedroom number one, police recovered two
     firearms[, ammunition, cash, cocaine, and marijuana]. . . .

          The evidence established that William Paxton utilized
     bedroom number one. . . .

           [Appellant utilized bedroom number two, which] was
     locked when police arrived. After gaining entry by force police
     found two handguns. A Jennings 9-millimeter semiautomatic
     handgun, loaded with nine rounds, was located on a chair. A
     Bryco Arms .380 semiautomatic handgun was found in a holster
     in a box near the bed. Neither handgun was registered. In a
     bag next to the bed, police found a box with loose ammunition.
     In the bottom drawer of a dresser, police discovered a sawed-off
     shotgun with the serial number obliterated. The shotgun was
     previously owned by [Appellant’s] deceased father.       A vest
     containing twenty-four (24) rounds of shotgun ammunition was
     found hanging in the closet. Inside another plastic bag, police
     found a box containing rifle and pistol ammunition.

           . . . The door to the second bedroom was separately
     secured from the rest of the residence and was padlocked when
     police arrived. None of William Paxton’s keys fit that lock.
     Photographs of [Appellant] and mail addressed to [Appellant] at
     the Bloomsdale Road address was found in the room. The mail

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      was postmarked May and June of 2011 and January and
      February of 2010. A wallet on top of the dresser in the room
      contained [Appellant’s] Pennsylvania driver’s license indicating
      an address of 2407 Bloomsdale Road. The wallet also contained
      [Appellant’s] social security card and an identification card that
      displayed [Appellant’s] photograph and signature.        Inside a
      second wallet found in the room, police found another
      Pennsylvania driver’s license of [Appellant’s] and an
      identification card from St. Mary’s Medical Center with
      [Appellant’s] name and photograph.             Police also found
      [Appellant’s] birth certificate in the room. In the bottom drawer
      of the dresser, next to the sawed-off shotgun, police found mail,
      all of which was addressed to [Appellant].

             The third bedroom served as a storage room. Inside that
      room police found a pistol cleaning kit and mail addressed to
      [Appellant] at 2407 Bloomsdale Road which included a box of
      checks. Inside the closet of that room, police found two cigar
      boxes filled with ammunition, a digital scale with white residue,
      latex gloves, and three razor blades wrapped inside of a napkin,
      all with white residue on them. The white material on the scale
      and razor blades was tested and was identified as being cocaine-
      based residue.

           On July 13, 2011, the day after the execution of the search
      warrant, police arrived at 2407 Bloomsdale Road and observed
      [Appellant] removing items from the home.

            At trial [Appellant] claimed to be living elsewhere but
      admitted that he went to the Bloomsdale Road residence at least
      two times per week. He admitted that the bedroom identified as
      bedroom number two was, at one time, his bedroom.
      [Appellant] also admitted that he knew that there were guns in
      his room. [Appellant] denied knowing about the presence of the
      sawed-off shotgun in the dresser claiming that he never used the
      dresser in his bedroom. When asked to explain the presence of
      his mail in the same drawer as the shotgun, [Appellant] claimed
      that someone else put his mail there without his knowledge.

(Trial Court Opinion, 6/06/13, 1-5) (record citations and footnote omitted).

      On April 27, 2012, at the conclusion of trial, the jury convicted

Appellant of possession of drug paraphernalia, possession of a firearm with

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altered manufacturer’s number, and prohibited offensive weapons. The trial

court found Appellant guilty of possession of a firearm by person prohibited.

On August 22, 2012, the court sentenced Appellant to an aggregate term of

not less than twelve-and-one-half nor more than twenty-five years’

incarceration, with one year of probation to run concurrently. On August 31,

2012, Appellant filed a motion for reconsideration that was denied by

operation of law on February 25, 2013. See Pa.R.Crim.P. 720(B)(3)(a).

       On March 27, 2013, Appellant filed a pro se direct appeal. On April 1,

2013, the trial court ordered him to file a concise statement of errors

complained of on appeal.           See Pa.R.A.P. 1925(b).   On April 15, 2013,

Appellant’s counsel filed a timely concise statement challenging the

sufficiency of the evidence.2 On May 15, 2013, Appellant filed an untimely

pro se concise statement of errors complained of on appeal raising additional

issues. On June 6, 2013, the trial court filed an opinion only addressing the

issue raised in the counseled statement, observing that Appellant was not

entitled to hybrid representation. (See Trial Ct. Op., 6/06/13, at 5 n.11).

On December 2, 2013, this Court dismissed Appellant’s appeal due to his

failure to file a brief.

____________________________________________


2
  Appellant filed pro se applications for appointment of counsel on May 13
and 15, 2013. Because Appellant already was represented, the clerk of
courts time-stamped the motions and entered them on the docket, but no
further action was taken on them.




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        On July 7, 2014, Appellant filed a pro se petition pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, wherein he sought

leave to file a post-sentence motion and appeal nunc pro tunc. The court

appointed PCRA counsel who filed an amended petition on November 3,

2014.     On December 15, 2014, by agreement of the parties, the court

granted Appellant’s PCRA petition.       Although the docket reflects that the

clerk of courts sent notice of the order to the parties, both the

Commonwealth and Appellant agree that they did not receive notice of the

order’s filing from the clerk of courts.        (See Appellant’s Brief, at 16;

Commonwealth’s Brief, at 4).       The trial judge’s clerk sent both parties an

email advising them of the order’s filing, but Appellant’s counsel represents

that she was not aware of it until after the time for filing post-sentence

motions nunc pro tunc had expired.         (See Appellant’s Brief, at 16, n.12;

Commonwealth’s Brief, at 4). On January 12, 2015, Appellant filed a timely

notice of appeal.     On April 6, 2015, Appellant filed a timely statement of

errors complained of on appeal, and the trial court filed an opinion on April

21, 2015. See Pa.R.A.P. 1925.

        Appellant raises three issues for this Court’s review:

        I.   Was the evidence presented at trial insufficient to sustain
        the verdicts of guilt with respect to Appellant’s convictions for
        possession of a firearm with altered manufacturer’s number,
        possession of offensive weapon and possession of firearm by
        person prohibited?

        II.  Can Appellant raise a sentencing claim that counsel was
        prevented from preserving in the [trial] court when [the] clerk of

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      court[s] failed to serve the parties with a copy of the court’s
      order reinstating Appellant’s post-sentence and direct appeal
      rights nunc pro tunc?

      III. Did the [trial] court commit reversible error and abuse its
      discretion when it imposed three consecutive statutory
      maximum sentences that exceeded the guidelines, were
      manifestly excessive, and contrary to the fundamental norms
      which underlie the sentencing process?

(Appellant’s Brief, at 6) (unnecessary capitalization omitted).

      In his first issue, Appellant challenges the sufficiency of the evidence

to support his conviction of the possessory weapons charges. (See id. at

20-24). Appellant’s claim does not merit relief.

             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
      [finder] 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. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (citation

omitted).




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       Here, Appellant was convicted of three weapons charges, and he

argues that “the evidence was insufficient to establish that he constructively

possessed any of the weapons.” (Appellant’s Brief, at 21).3 We disagree.

             When contraband is not found on the defendant’s person,
       the Commonwealth must establish constructive possession. . . .
       Constructive possession is the ability to exercise conscious
       control or dominion over the illegal substance and the intent to
       exercise that control. [T]wo actors may have joint control and
       equal access and thus both may constructively possess the
       contraband. The intent to exercise conscious dominion can be
       inferred from the totality of the circumstances.

Commonwealth v. Jones, 874 A.2d 108, 121 (Pa. Super. 2005) (citations

and quotation marks omitted).

       In finding the evidence sufficient to establish that Appellant possessed

the firearms located in the second bedroom of the house on Bloomsdale

Road, the trial court reasoned:

       [Appellant] was frequently at the residence. (See N.T. Trial,
       4/25/12, at 91; N.T. Trial, 4/26/12, at 140-41; N.T. Trial,
       4/27/12, at 50). His vehicle registration and driver’s licenses
       identified the Bloomsdale Road residence as his current address.
       (See N.T. Trial, 4/26/12, at 31, 34, 59). He received mail at
____________________________________________


3
   “In order to establish a prima facie case of [p]erson not to [p]ossess
[f]irearms, the Commonwealth must prove that a person possessed a
firearm and had a prior conviction of an offense listed in 18 Pa.C.S.[A.]
section 6105(b).” Commonwealth v. Williams, 911 A.2d 548, 550-51
(Pa. Super. 2006) (citation omitted). Pursuant to the crimes code, “[n]o
person shall possess a firearm which has had the manufacturer’s number
integral to the frame or receiver altered, changed, removed or obliterated.”
18 Pa.C.S.A. § 6110.2(a).       The Crimes Code additionally provides, in
pertinent part, “[a] person commits a misdemeanor of the first degree if,
except as authorized by law, he . . . possesses . . . [a] sawed-off shotgun[.]”
18 Pa.C.S.A. § 908(a), (c).



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      that address and kept important documents and other personal
      items in bedroom number two of that residence. (See id. at 29,
      31-34, 47-49, 59-60). [Appellant] admitted that the bedroom
      where the relevant firearms were found had been his bedroom.
      (See N.T. Trial, 4/27/12, at 42). Finally, [Appellant] admitted
      that he knew guns were in the room. (See id. at 42, 53). This
      evidence is sufficient to establish that [Appellant] exercised
      dominion and control over the separately secured bedroom and
      the weapons located inside that bedroom in the Paxton
      residence. See Commonwealth v. Santiesteban, 552 A.2d
      1072, 1074-75 (Pa. Super. 1988)[, appeal denied, 571 A.2d 382
      (Pa. 1989)] (finding trier of fact could infer constructive
      possession where the defendant lived in house, had access and
      control of floor where the contraband was recovered, and large
      amount of cash was found in his bedroom); Commonwealth v.
      Keefer, 487 A.2d 915, 918 (Pa. Super. 1985) (finding evidence
      sufficient to support inference that defendant maintained control
      over bedroom where drugs were seized and, thus, over the
      drugs, where men’s clothing and receipts, one with the
      property’s address listed as defendant’s, were found in
      bedroom). . . .

(Trial Ct. Op., 6/06/13, at 6-7) (record citations provided).

      After our own independent review of the record, we agree with the

findings of the trial court. Viewing the evidence in the light most favorable

to the Commonwealth as verdict winner, we conclude that the trial court did

not abuse its discretion when it found that there was sufficient evidence that

Appellant constructively possessed the firearms to support his convictions.

See Harden, supra at 111; Jones, supra at 121. Appellant’s first issue

does not merit relief.

      In Appellant’s second issue, he argues that his third claim, which

challenges the discretionary aspects of his sentence, should not be waived

for his failure to file a post-sentence motion addressing and preserving the


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allegation,4 because the clerk of courts failed to forward him a copy of the

trial court’s order reinstating his right to file post-sentence motions and an

appeal nunc pro tunc. (See Appellant’s Brief, at 24-28).

       Pursuant to Pennsylvania Rule of Criminal Procedure 114, upon

receiving an order for filing, the clerk of courts is required to serve a copy of

the notice on the parties’ counsel in writing by personal delivery or mail.

See Pa.R.Crim.P. 114(B).

       In this case, the docket includes a notation by the clerk of courts

regarding when it provided notice of the trial court’s order to counsel. (See

Trial Court Docket, CP-09-CR-0000231-2012, at 16).          However, the filed

order does not have a document appended to it that contains the addresses

to where the clerk sent notice, as is present with other trial court orders.

(Compare Order, 12/15/14 with, e.g., Order, Trial Court Opinion, 4/21/15,

at attachment and Order, 1/15/15, at attachment).            Indeed, both the

Commonwealth and Appellant agree that they did not receive notice of the

entry of the court’s order from the clerk of courts. (See Appellant’s Brief, at

16; Commonwealth’s Brief, at 4). Although the court’s law clerk apparently

____________________________________________


4
  It is well-settled that “[i]ssues challenging the discretionary aspects of
sentence must be raised in a post-sentence motion or by presenting the
claim to the trial court during the sentencing proceedings. Absent such
efforts, an objection to a discretionary aspect of a sentence is waived.”
Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004), appeal
denied, 860 A.2d 122 (Pa. 2004) (citations and internal quotation marks
omitted).



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did email a copy of the signed order to the parties, such a means of serving

notice is not authorized by Rule 114.          (See Appellant’s Brief, at 16 n.12;

Commonwealth’s Brief, at 4); Pa.R.Crim.P. 114.5

       Based on the foregoing breakdown in the court system, we will not

penalize Appellant for his failure to file post-trial motions raising the

discretionary aspects of sentence claim and, in the interest of justice, we

decline to deem Appellant’s sentencing claim waived. See Commonwealth

v. Hess, 810 A.2d 1249, 1255 (Pa. 2002) (holding that because defendant

did not receive order directing him to file concise statement of matters

complained of on appeal, he could not be penalized for failing to file timely

statement or found to have waived all claims for purposes of appellate

review); accord Commonwealth v. Parks, 768 A.2d 1168, 1172 (Pa.

Super. 2001).      Accordingly, we will address the merits of Appellant’s third

claim.

       In his third issue, Appellant claims that the trial “court imposed a

sentence that exceeded the aggravated range of the Sentencing Guidelines

without adequately setting forth its reasons on the record, and [] improperly

[relied] on the severity of the crime and the nature of the charges for which

____________________________________________


5
  We are cognizant that the parties stipulated to the court’s order granting
Appellant’s PCRA petition and permission to filed post-sentence motions and
an appeal nunc pro tunc. However, there is nothing in Rule 114 that states
the clerk of courts is not required to provide notice of the order’s filing where
the parties stipulate to its terms. See Pa.R.Crim.P. 114.



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[he] had been previously convicted . . . .”        (Appellant’s Brief, at 29-30).

Appellant’s challenge to the discretionary aspects of his sentence “must be

considered a petition for permission to appeal.” Commonwealth v. Best,

120 A.3d 329, 348 (Pa. Super. 2015) (citations omitted).

      The Rules of Appellate Procedure mandate that, to obtain review
      of the discretionary aspects of a sentence, the appellant must
      include in his brief a Concise Statement of Reasons Relied Upon
      for Allowance of Appeal. See Pa.R.A.P. 2119(f). This statement
      must raise a substantial question as to whether the trial judge,
      in imposing sentence, violated a specific provision of the
      Sentencing Code or contravened a fundamental norm of the
      sentencing process.

Id. (citations and quotation marks omitted).

      Here,   Appellant’s   claim   raises    a   substantial   question.   See

Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa. Super. 2002), appeal

denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148 (2005) (“A

claim that the sentencing court imposed an unreasonable sentence by

sentencing outside the guideline ranges presents a ‘substantial question’ for

our review.”). Therefore, we will consider the issue’s merits.

      Our standard of review of a sentencing challenge is well-settled:

              Sentencing is a matter vested in the sound discretion of
      the sentencing judge, and a sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. In this context, an
      abuse of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.




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Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012), appeal

denied, 63 A.3d 774 (Pa. 2013) (citations omitted).

             The Sentencing Code requires a trial judge who intends to
      sentence outside the guidelines to demonstrate, on the record,
      his awareness of the guideline ranges. Having done so, the
      sentencing court may, in an appropriate case, deviate from the
      guidelines by fashioning a sentence which takes into account the
      protection of the public, the rehabilitative needs of the
      defendant, and the gravity of the particular offense as it relates
      to the impact on the life of the victim and the community. In
      doing so, the sentencing judge must state of record the factual
      basis and specific reasons which compelled him or her to deviate
      from the guideline ranges. When evaluating a claim of this type,
      it is necessary to remember that the sentencing guidelines are
      advisory only.

Griffin, supra at 7 (citations omitted); see also Glass, supra at 727-28

(“the guidelines have no binding effect, create no presumption in sentencing,

and do not predominate over other sentencing factors—they are advisory

guideposts that are valuable, may provide an essential starting point, and

that must be respected and considered; they recommend, however, rather

than require a particular sentence.”) (citation omitted).

      In this case, when explaining its reasons for Appellant’s sentence, the

court stated, in pertinent part:

      [Appellant] has been convicted of possessing [a 9-millimeter
      Jennings handgun] when he is precluded from doing so as a
      result of a felony conviction. . . .

      . . . He is also charged with possessing a firearm with an altered
      serial number, which is the .38 caliber semiautomatic
      handgun[.]

            He has also been convicted by a jury of possessing a
      prohibitive offensive weapon, which is a sawed-off shotgun . . . .

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J-S15036-16



       . . . [T]here is . . . absolutely no explanation or reason to have a
       sawed-off shotgun, other than to utilize that in order to commit
       a crime.

            There is no reason to have a firearm with an altered . . .
       manufacturer’s number, except in order to use that to commit a
       crime and go and have that weapon not be identified or
       connected to [Appellant.] . . .

             The purpose for possessing these weapons I am not going
       to attribute to any particular purpose. . . . But, in any case,
       these three weapons indicate without any doubt whatsoever that
       these weapons were intended for criminal use, and only for
       criminal use. Whatever that criminal use may be, it certainly
       involves use of violence. And I take that into account.

             I take into account that [Appellant] has engaged in
       criminal conduct since at least as far back as 1982, [which
       included convictions for assault, robbery, and third degree
       murder.]

       . . . [T]herefore, I find that the nature of the crime is such that it
       requires incarceration for a long period of time.               Since
       [Appellant] has clearly not learned anything as a result of
       incarceration in the state penitentiary, his history of criminal
       conduct and his history during the course of his incarceration has
       demonstrated that he is a violent individual who will use violence
       when and if he deems it necessary;[6] and he will continue to do
       so. The only way to protect the public from [Appellant] is to
       remove him from the community for as long as possible.

            There is no excuse or justification for [Appellant’s]
       possession of these weapons. And to impose a lesser sentence
       than I’m about to impose would depreciate the seriousness of
       the crimes charged and would ignore his history of criminal
       conduct and violence.

____________________________________________


6
 While in prison, Appellant stabbed a fellow inmate and attempted to throw
a person off the tier of the sixth floor. (See N.T. Sentencing, 8/22/12, at
17).



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J-S15036-16


(N.T. Sentencing, 8/22/12, at 24-26). We agree.

      We conclude that the trial court aptly stated its reasons for imposing

Appellant’s sentence, where it took into account the protection of the public,

and the gravity of the particular offenses as they related to the impact on

the community.    See Griffin, supra at 7.    The court also considered the

arguments of counsel, Appellant’s testimony, and the sentencing guidelines.

(See N.T. Sentencing, 8/22/12, at 11-15, 17-18, 26-27).        Moreover, the

court had Appellant’s pre-sentence investigation report and therefore we

presume that it was aware of relevant information regarding his character

and weighed those considerations along with mitigating statutory factors.

See Best, supra at 348-49; (see also N.T. Sentencing, 8/22/12, at 5-6).

      Based on the foregoing, we conclude that the trial court did not abuse

its discretion or commit an error of law by imposing Appellant’s sentence.

See Glass, supra at 727-28.      Therefore, Appellant’s third issue does not

merit relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2016




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