J-A29007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
LAMAR LEWIS                                    :
                                               :
                       Appellant               :   No. 2783 EDA 2015

              Appeal from the Judgment of Sentence July 17, 2015
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0007857-2013


BEFORE:      LAZARUS, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                           FILED NOVEMBER 29, 2017

        Lamar Lewis appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, following his convictions of

two counts of possession of firearms prohibited.1 After our review, we affirm.

        The trial court summarized the facts as follows:

        On December 8, 2012, [Lewis] and his then girlfriend[,] Veronica
        Jackson[,] went to a gun store located in Feasterville. Jackson
        bought a Beretta Nano nine-millimeter firearm, which she brought
        back to her house at 6132 N. Lambert Street. On December 9,
        2012, [Lewis] and Jackson attended a gun show. At the gun show,
        Jackson bought a Beretta HiPoint nine-millimeter firearm and a
        .40 caliber Smith and Wesson HiPoint firearm, which she brought
        back to her house. At the time Jackson bought the firearms,
        [Lewis] and Jackson had been living together at 6132 N. Lambert
        Street for two years, and they had been dating for three and a
        half years. Their relationship was periodically interrupted because
        of [Lewis’s] relationship with another woman, Vikki Scott. On May
        5, 2013, Jackson broke up with [Lewis] due to his relationship with

____________________________________________


1   18 Pa.C.S. § 6105.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A29007-17


      Vikki Scott. Jackson told [Lewis] not to return to her house. The
      next day, Jackson was out with her daughter when [Lewis] called
      her to apologize. When Jackson returned home, she found [Lewis]
      inside her house. Jackson asked [Lewis] for the keys to her house
      and car that she previously gave to him. [Lewis] refused to give
      her the keys and left the house. He then entered a vehicle that
      they shared and was parked across the street. Before [Lewis]
      drove away, Jackson observed several items that were loaded into
      the vehicle and which [Lewis] had taken from the house.

      On May 8, 2013, Jackson contacted police to report the vehicle as
      stolen. On that same day, Jackson discovered that the nine-
      millimeter HiPoint was missing from behind the sofa and that the
      .40 caliber HiPoint, as well as [Lewis’s] clothes, were missing from
      [Lewis’s] dresser drawer.

Trial Court Opinion, 4/28/16, at 1-2 (citations to record omitted).

      Police obtained a search warrant for Vikki Scott’s residence at 433 W.

Hansberry Street; the warrant identified the items to be searched for and

seized as “A black Smith and Wesson 9mm, a black Beretta .45 caliber, and

correspondence addressed to Lamar Lewis or Vikki Scott, anything else of

evidentiary value.” Id. at 3. On May 10, 2013, police executed the search

warrant and recovered a black Smith and Wesson .40 caliber HiPoint handgun

and a black Beretta nine-millimeter HiPoint handgun, as well as ammunition,

a trigger lock, a gun wrench, and a letter from Philadelphia Gas Works to Lewis

with the address of 433 W. Hansberry Street, 2F.     Lewis returned to 433 W.

Hansberry Street as police were executing the warrant, at which point Lewis

was arrested.

      Lewis appeared for a preliminary hearing on June 18, 2013. On August

2, 2013 he filed a motion to suppress, which was denied. On September 6,

2013 he moved for modification of bail, on November 4, 2013 he moved for

                                     -2-
J-A29007-17



consolidation, and on December 2, 2013, he filed a Pa.R.Crim.P. 600 motion

to dismiss. On May 11, 2015, Lewis filed another motion to dismiss for lack

of personal and subject matter jurisdiction, which was denied. Following trial

on May 13, 2015, a jury convicted Lewis of two counts of possession of

firearms prohibited.

      Lewis filed a post-trial motion, which was denied. On July 17, 2015, the

court sentenced Lewis to five to ten years’ incarceration on one count, and a

consecutive term of one day to ten years’ incarceration on the second count.

Lewis filed a timely motion for reconsideration of sentence, which was denied

on August 21, 2015. Lewis filed a timely notice of appeal and court-ordered

Pa.R.A.P. 1925(b) statement of errors complained of on appeal. He raises the

following issues for our review:

         1. Whether the verdicts were against the weight of the
            evidence?

         2. Whether the court erred in denying [Lewis’s] motion to
            dismiss under Rule 600(G)?

         3. Whether there was prosecutorial misconduct during the
            closing argument?

         4. Whether the court abused its discretion in denying the
            motion to suppress?

Appellant’s Brief, at 8.

      First, Lewis argues the verdict is against the weight of the evidence.

This claim is waived.




                                    -3-
J-A29007-17



      Pennsylvania Rule of Criminal Procedure 607 governs the procedure by

which weight of the evidence claims shall be considered by the trial court and

preserved for appellate review. Rule 607 provides, in relevant part:

      (A) A claim that the verdict was against the weight of the evidence
      shall be raised with the trial judge in a motion for a new trial: (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). Here, Lewis filed a post-sentence motion, but he did not

include his weight of the evidence claim in that motion. See Post-Sentence

Motion, 7/22/15.    Although Lewis did raise the issue in his Rule 1925(b)

Statement, and the trial court addressed it in its Rule 1925(a) opinion, the

claim, nonetheless, is waived. The question is not simply a matter of whether

the trial court addressed it, but, rather, the point at which the trial court was

able to grant a new trial based on the weight claim. The trial court had no

jurisdiction to do so after the notice of appeal was filed. In Commonwealth

v. Sherwood, 982 A.2d 483 (Pa. 2009), the Pennsylvania Supreme Court

explained:

      The fact that Appellant included an issue challenging the verdict
      on weight of the evidence grounds in his [Rule] 1925(b) statement
      and the trial court addressed Appellant’s weight claim in its
      Pa.R.A.P. 1925(a) opinion did not preserve his weight of the
      evidence claim for appellate review in the absence of an earlier
      motion. Pa.R.Crim.P. 607(A). . . . Appellant’s failure to challenge
      the weight of the evidence before the trial court deprived that
      court of an opportunity to exercise discretion on the question of
      whether to grant a new trial. Because “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. Widmer, [] 744 A.2d 745,

                                      -4-
J-A29007-17


     753 ([Pa.] 2000), this Court has nothing to review on appeal. We
     thus hold that Appellant waived his weight of the evidence claim
     because it was not raised before the trial court as required by
     Pa.R.Crim.P. 607.

Id. at 494 (some citations omitted). We conclude, therefore, that Lewis has

waived his challenge to the weight of the evidence.

     Next, Lewis argues that the court erred in denying his Rule 600 motion

to dismiss. This Court explained Rule 600 at length in Commonwealth v.

Ramos, 936 A.2d 1097 (Pa. Super. 2007) (en banc).

     In evaluating Rule 600 issues, our standard of review of a trial
     court’s decision is whether the trial court abused its discretion.
     Judicial discretion requires action in conformity with law, upon
     facts and circumstances judicially before the court, after hearing
     and due consideration. An abuse of discretion is not merely an
     error of judgment, but if in reaching a conclusion the law is
     overridden or misapplied or the judgment exercised is manifestly
     unreasonable, or the result of partiality, prejudice, bias, or ill will,
     as shown by the evidence or the record, discretion is abused.

     The proper scope of review is limited to the evidence on the record
     of the Rule 600 evidentiary hearing, and the findings of the trial
     court. An appellate court must view the facts in the light most
     favorable to the prevailing party. Additionally, when considering
     the trial court’s ruling, this Court is not permitted to ignore the
     dual purpose behind Rule 600. Rule 600 serves two equally
     important functions: (1) the protection of the accused’s speedy
     trial rights, and (2) the protection of society. In determining
     whether an accused’s right to a speedy trial has been violated,
     consideration must be given to society’s right to effective
     prosecution of criminal cases, both to restrain those guilty of crime
     and to deter those contemplating it. However, the administrative
     mandate of Rule 600 was not designed to insulate the criminally
     accused from good faith prosecution delayed through no fault of
     the Commonwealth. So long as there has been no misconduct on
     the part of the Commonwealth in an effort to evade the
     fundamental speedy trial rights of an accused, Rule 600 must be
     construed in a manner consistent with society’s right to punish
     and deter crime. In considering these matters, courts must

                                      -5-
J-A29007-17


       carefully factor into the ultimate equation not only the
       prerogatives of the individual accused, but the collective right of
       the community to vigorous law enforcement as well.

Id. at 1100 (brackets, ellipses, and citation omitted).

       Rule 600 provides that where a written complaint is filed against a

defendant, trial in a court case shall commence within 365 days from the date

on which the complaint is filed. Pa.R.Crim.P. 600(A)(2)(a). If trial takes place

beyond 365 days (plus excludable time as set forth in Rule 600(C)),2 then the

defendant is entitled to dismissal with prejudice. Pa.R.Crim.P. 600(D)(1).3


____________________________________________


2 Rule 600(C) provides that period of delay at any stage of the proceedings
caused by the Commonwealth when the Commonwealth has failed to exercise
due diligence shall be included in the computation of the time within which
trial must commence. Any other periods of delay shall be excluded from the
computation. Pa.R.Crim.P. 600(C).

3  Rule 600 takes into account both “excludable time” and “excusable delay.”
Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa. Super. 2004).
“Excludable time” is defined in Rule 600(C) as the period of time between the
filing of the written complaint and the defendant's arrest, provided defendant
could not be apprehended because his whereabouts were unknown and could
not be determined by due diligence; any period of time for which defendant
expressly waives Rule 600; and/or such period of delay at any stage of the
proceedings as results from: (a) the unavailability of the defendant or the
defendant's attorney; and/or (b) any continuance granted at the request of
the defendant or the defendant's attorney. Id. (citing Pa.R.Crim.P. 600(C)).
The “due diligence” required under Rule 600(C)(1) pertains to the
Commonwealth's efforts to apprehend the defendant. Id. at 1241 n. 10. The
other aspects of Rule 600(C) defining “excludable time” do not require a
showing of due diligence by the Commonwealth. Id. “Excusable delay” is not
expressly defined in Rule 600, but the legal construct takes into account delays
that occur as a result of circumstances beyond the Commonwealth's control
and despite its due diligence. See id. at 1241–42 (explaining manner in which
excludable time, excusable delay and due diligence are to be determined).



                                           -6-
J-A29007-17



        Here, the complaint against Lewis was filed on May 11, 2013, and thus

the mechanical run date was May 11, 2014.           Pa.R.Crim.P. 600(A)(2)(a).

Because Lewis’ trial began on May 11, 2015, one year beyond the run date,

we must next examine whether any periods of excusable time existed, so as

to create an adjusted run date. Ramos, supra.

        The trial court determined that there was excusable time attributable to

judicial delay of 371 days and excludable time attributable to the defense of

26 days,4 for a total of 397 days. The adjusted run date, therefore, was June

12, 2015. Trial commenced one month before that date, on May 11, 2015.

        Lewis argues, however, that the time period between May 5, 2014 and

January 12, 2015 should not have been excluded because the Commonwealth

filed a “prior bad acts” motion on May 12, 2014, and thus was not duly diligent.

The Commonwealth, however, was ready to proceed to trial on May 5, 2014

without the benefit of a ruling on its motion. See Trial Court Opinion, supra

at 5. Further, the trial court was on trial in another case on May 5-6, 2014.

Lewis’s trial, therefore, was continued to January 12, 2015. On that date, the

court was conducting another unrelated trial, and Lewis’ trial was continued

to May 2015.      See Commonwealth v. Malgieri, 889 A.2d 604, 607 (Pa.

Super. 2005) (judicial delay may serve as basis for extending time in which

Commonwealth may commence trial so long as prosecutor was prepared to

commence trial prior to expiration of mandatory period but court, due to

____________________________________________


4   Lewis concedes this time is excludable time attributable to the defense.

                                           -7-
J-A29007-17



scheduling difficulties, is unavailable).        We find no abuse of discretion.

Ramos, supra.

      In his third claim, Lewis argues the court erred in denying his objection

to the prosecutor’s remarks during closing arguments.             He contends the

prosecutor’s statement amounted to prosecutorial misconduct and, therefore,

he was denied his right to a fair trial.

      In accord with the long-standing principle that a “prosecutor must be

free to present his or her arguments with logical force and vigor,” this Court

has permitted vigorous prosecutorial advocacy “as long as there is a

reasonable    basis   in   the   record    for    the   [prosecutor’s]   comments.”

Commonwealth v. Robinson, 864                    A.2d 460, 516–17        (Pa. 2004).

Prosecutorial comments based on the evidence or reasonable inferences

therefrom are not objectionable, nor are comments that merely constitute

oratorical flair. Commonwealth v. Tedford, 960 A.2d 1, 33 (Pa. 2008). Any

challenged prosecutorial comment must not be viewed in isolation, but rather

must be considered in the context in which it was offered. Robinson, supra

at 517.
      The standard by which the court considers allegations of improper

prosecutorial comments is a stringent one:

      Comments by a prosecutor constitute reversible error only where
      their unavoidable effect is to prejudice the jury, forming in their
      minds a fixed bias and hostility toward the defendant such that
      they could not weigh the evidence objectively and render a fair
      verdict.

Tedford, supra at 33.

                                          -8-
J-A29007-17



       Here, Lewis points to the following statement by the prosecutor: “You

can possess something even if you don’t have it on your body, even if it’s just

in the house. So if he is in a house living with Veronica Jackson [on December

9, 2012] and he knows that the gun is there . . . .” Appellant’s Brief, at 22.

Lewis cites to the notes of testimony of trial, at 5/14/15, 90-92.5 He argues

that the prosecutor’s statement “urged the jury to consider facts to support

defendant’s conviction of 18 Pa.C.S. § 6105(A)(1) from December 9, 2012[,]

that formed the basis of acquittal under the statute.” Appellant’s Brief, at 22.

To state it more clearly, the prosecutor was referring to underlying facts from

a prior case at which Lewis was found not guilty of violating section 6105 for

possessing a gun on December 9, 2012 when Jackson bought the guns.          The

prosecutor’s theory of the case was that Lewis knew where the guns were

when Jackson bought them while he lived with Jackson, and that he moved

the guns with him when he moved from Jackson’s home to 433 W. Hansberry

Street in May of 2013. This was evidence admitted at trial and the prosecutor

____________________________________________


5  We point out that the record before us does not contain the notes of
testimony from trial to which Lewis cites. See Pa.R.A.P. 1911(a) (“The
appellant shall request any transcript required under this chapter in the
manner and make any necessary payment or deposit therefor in the amount
and within the time prescribed by Rules 5000.1 et seq. of the Pennsylvania
Rules of Judicial Administration[.]”). See Commonwealth v. Williams, 715
A.2d 1101, 1103 (Pa. 1998); see also Commonwealth v. Steward, 775
A.2d 819, 833 (Pa. Super. 2001) (noting it was not responsibility of trial court
to order notes of transcript of defense counsel’s closing as Rule 1911 “makes
it abundantly plain that it is the responsibility of the Appellant to order all
transcripts necessary to the disposition of his appeal”). Because the parties
and the trial court do not dispute the content of the statement, or the court’s
curative instruction, we will not find waiver.

                                           -9-
J-A29007-17



could properly summarize it in closing. See Commonwealth v. Hutchinson,

25 A.3d 277, 307-08 (Pa. Super. 2011) (it is entirely proper for prosecutor to

summarize evidence presented, to offer reasonable deductions and inferences

from evidence and argue that evidence establishes defendant’s guilt).

      Finally, Lewis claims the court erred in denying his motion to suppress.

A magistrate’s finding of probable cause “must be based on facts described

within the four corners of the affidavit[,]” Commonwealth v. Stamps, 427

A.2d 141, 143 (Pa. 1981), and “our scope of review of a suppression court’s

ruling [on a magistrate’s finding of probable cause] is confined primarily to

questions of law.” Id. (citing Commonwealth v. Sharp, 683 A.2d 1219,

1221 (Pa. Super. 1996)). See also Commonwealth v. Ryerson, 817 A .2d

510, 513 (Pa. Super. 2003); Pa.R.Crim.P. 203.

      After our review of the parties’ briefs, the record, and the relevant law,

we conclude that the Honorable Daniel J. Anders has properly disposed of this

claim in his Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion, 4/28/16, at

6-7 (based on totality of circumstances, fact contained within four corners of

warrant were sufficient for magistrate to find probable cause; affidavit of

probable cause stated: complainant Jackson reported specific types of

firearms missing from her residence; only Jackson and Lewis knew of

firearms; Lewis was currently residing with Vikki Scott; search of motor

vehicle records confirmed Scott’s address; and, officer confirmed Lewis had

prior conviction and was prohibited from possessing firearm).




                                    - 10 -
J-A29007-17



      For the foregoing reasons, we affirm the judgment of sentence. The

parties are directed to attach a copy of the trial court’s opinion in the event of

further proceedings.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2017




                                     - 11 -
                                                                                                                 11/16/2017 01:27 PM
           IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COURretilated
                     FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                             TRIAL DIVISION-CRIMINAL

COMMONWEALTH OF PENNSYLVANIA                                          CP-51-CR-0007857-2013

VS.                                                          =        2783 EDA 2015
                                                                                                              FILED
LAMAR LEWIS                                                                                                     APR 2 S 2016

                                                    OPINION                       Criminal Appeals Unit
                                                                                First Judicial District at PA
       Following a jury trial, Defendant Lamar Lewis was convicted of two counts of violating

Section 6105 of the Uniform Firearms Act. The trial court sentenced Defendant to                       a   guideline

sentence of 5 years and   I   clay to 20   years of incarceration. Defendant filed a timely appeal in

which he argues: (I) the trial erred by denying his motion dismiss pursuant to Rule 600 of the

Pennsylvania Rules of Criminal Procedure, (2) the trial court erred in denying Defendant's

motion to suppress, (3) the evidence was insufficient to support the convictions, (4) the verdict

was against the weight of the evidence, and (5) the trial court erred by overruling the objection of

defense counsel to statements made by the prosecutor during closing arguments. For the reasons

stated below, the Superior Court should affirm the judgment of sentence.

FACTUAL BACKGROUND

               Defendant's Former Girlfriend Purchases Two Firearms

       On December 8, 2012, Defendant and his then girlfriend Veronica Jackson went to a gun

store located in Feasterville. Jackson bought a Beretta Nano nine millimeter firearm, which she

brought back to her house at 6132 N. Lambert Street N.T. 05/13/2015 at 8-13. 30. On December

9. 2012, Defendant and Jackson attended a gun show. At the gun show, Jackson bought a Beretta

HiPoint nine -millimeter firearm and        a   .40 caliber Smith and Wesson HiPoint firearm, which she
                                                                 CP, 51-CR-CONa57-2011 Comm. v LEW S. LAMAR
                                                                                   Opatior
brought hack to her house_ Id. at 17-23, 25-29.


                                                                              17.1],J1.17121J11111
      At the time Jackson bought the firearms, Defendant and Jackson had been living together

at 6132 N. Lambert Street for two years, and they had been        dating for three and a half years_

Their relationship was periodically interrupted because    of Defendant's relationship with another

woman. Vikki Scott. Id. at 13-15.

       On May 5, 2013, Jackson broke up with Defendant due to his relationship with Vikki

Scott. Jackson told Defendant not to return to her house. The next day, Jackson was out with her

daughter when Defendant called her to apologize. When Jackson returned home, she found

Defendant inside her house. Jackson asked Defendant for the keys to her house and car that she

previously gave to him. Defendant refused to give her the keys and left the house. He then

entered a vehicle that they shared and was parked across the street. Before Defendant drove

away, Jackson observed several items that were loaded into the vehicle and which Defendant had

taken from the house. Id. at 40-48.

       2.     Defendant's Former Girlfriend Reports The Two Firearms As Stolen

       On May 8, 2013, Jackson contacted police to report the vehicle as stolen. On that same

day. Jackson discovered that the nine -millimeter HiPoint was missing from behind the sofa and

that the .40 caliber HiPoint, as well as Defendant's clothes, were missing from Defendant's

dresser drawer. Id at 48-50.

       On May 8, 2013, Officer Brett Werner arrived       at.   Jackson's residence and wrote a police

report that included a description of the weapons and ammunition that were missing from her

home. Officer Werner then brought Jackson to Northwest Detectives to provide a full statement.

Jackson provided a written statement to Detective Sanders in which she stated that Defendant

had taken the .40 caliber HiPoint and the nine -millimeter HiPoint from her home. Jackson further

stated that Defendant was residing at his new girlfriend's residence (Vicki Scott's) locatedTat 433

 W. Hansberry Street. Jackson told Detective Sanders that she believed        Defendant brought the
guns to Scott's house. Jackson provided the sales receipts containing the serial numbers for the

two missing guns. Jackson reviewed, signed and dated the statement. Id at 50-54, 56, 63-64;

N.T. 05/12/2015 at 33-37, 53-55, 90.

       Later that same night, Detective Sanders met with Jackson at her residence. Jackson then

provided a second statement to Detective Sanders wherein she positively identified a photograph

of Defendant. When shown the photograph, Jackson wrote on the photograph: my "ex -boyfriend

Lamar Lewis took my handguns." On May 9, 2013, based upon the information provided by

Jackson, Detective Sanders obtained a search warrant for 433 W. Hansberry Street. The search

warrant identified the items to be searched for and seized as "A black Smith and Wesson 9rnm,

black Beretta .45 caliber, and correspondence addressed to Lamar Lewis or Vikki Scott, anything

else of evidentiary value." The warrant confirmed Vikki Scott's residence as 433 W. Hansberry

Street, Apt. 2 as a result   of a records check of the bureau of motor vehicles. N.T. 5/12/2015 at

44-47, 55-61; Affidavit No_ 174062.

        3.      The Search of Defendant's New Girlfriend's Home

        On May 10, 2013, Detective Sanders executed the search wanant for 433 W. Hansberry

Street. From inside a closet in the laundry room, Detective Druding observed a black "ecco"

brand shoebox. Detective Druding opened the shoebox and recovered         a black.   Beretta nine -

millimeter HiPoint handgun, a black Smith and Wesson .40 caliber HiPoint handgun with             a


cracked handle, two black nine millimeter magazines containing a total of      11    rounds, an empty   -




black _40 caliber magazine, two boxes of .40 caliber ammunition containing a total of 90 rounds,

one box containing 50 rounds of nine-millimeter ammunition, a book titled "Exodus," one

polaroid photograph of Defendant and another female (not Jackson or Scott), a small white box

marked "HiPoint C9 Holster" containing a ghost ring sight and allcn wrench for a HiPoint

handgun, a trigger lock, and a gun wrench. From the master bedroom, police recovered a letter
                                                   -3-
from Philadelphia Gas Works to Defendant with the address           of 433 W. Hansberry Street, 2F. Id.

at 49-51, 76-85, 93, 98, 102-106.

        As police searched the home, Defendant returned to 433 W. Hansberry Street. Instead of

parking in the available parking spaces outside of 433 W. Hansberry Street, Defendant parked on

the 5100 block of Morris Street, which was a block and a half away from his house. Upon his

arrest. Defendant told Officer Lally that his address was 433 W. Hansberry Street, 2nd Floor. Id

at 106-113.

DISCUSSION

        1.     The Trial Court Properly Denied Defendant's Motion To Dismiss

       Defendant asserts that the trial court improperly denied his motion to dismiss pursuant to

Rule 600 of the Pennsylvania Rules of Criminal Procedure. The standard of review in an appeal

froth an order denying a motion to dismiss under Rule 600 is as follows:

               When reviewing a trial court's decision in a Rule 600 case, an
               appellate court will reverse only if the trial court abused its
               discretion. An abuse of discretion is not merely an error of judgment,
               but if in reaching a conclusion the law is overridden or misapplied,
               or the judgment exercised is manifestly unreasonable, or the result of
               partiality, prejudice, bias or ill -will .discretion is abused. The
                                                            .   .


               appellate court's scope of review is limited to the record evidence
               from the Rule 600 hearing and the findings of the lower court,
               viewed in the light most favorable to the prevailing party.

Commonwealth     v.   Selenski, 994 A..2d 1083. 1087 (Pa. 2010).

       Rule 600 has the "dual purpose of both protecting a defendant's constitutional speedy

trial rights and protecting society's interest to effective prosecution of criminal cases."

Commonwealth v. Bradford, 46 A.3d 693, 701 (Pa. 2012). There is a three step analysis to

determine if there is a violation of Rule 600. First, the court calculates the mechanical run date,

which is 365 days from the date on which the criminal complaint is filed. Second, pursuanno

subsection (C) of Rule 600, the court excludes all periods of delay except delay "caused byg.he
                                                  -4-
Commonwealth when the Commonwealth has failed to exercise due diligence." Third, the court

adds the "excludable time" under subsection (C) to the mechanical run date to produce an

adjusted run date. If the defendant has not been brought to trial within the adjusted run date, the

defendant may file a written motion requesting the charges be dismissed. Pa.R.Crim.P. 600(1)).

            "Excludable time" generally includes (1) delay caused by or attributable to the defendant

or defense, (2) delay attributable to the judiciary I, and (3) delay that occurs "as a result of

circumstances beyond the control of the Commonwealth and despite its due diligence." See

Comments to Pa.R.Cr.P. 600 (entitled, computation                  of Time). The Commonwealth has the

burden of proving, by a preponderance of the evidence, that it exercised due diligence and that

the circumstances surrounding the delay of trial were beyond the Commonwealth's control.

Bradford, 46 A.3d at 701. Due diligence is a "fact-specific [inquiry,] to be determined case -by -

case; it does not require perfect vigilance and punctilious care, but merely a showing the

Commonwealth has put forth a reasonable effort." kl. (quoting Selenski, 994 A.2d at 1089).

             Here, Defendant concedes that the time between May 28, 2013 through June 17, 2013

and that the time between August 13, 2013 and August 19, 2013 is excludable, which is a total                           of

26 days. On the trial dates of May 5, 2014, and January 12, 2015, the trial court was conducting

trials on unrelated matters and thus was unavailable to preside over Defendant's tria1.2 On both

 May 5, 20143 and January 12, 2015, the Commonwealth was ready to proceed to trial. As a




   Pennsylvania courts have held that "judicial delay may serve as a basis for extending the period of time
                                                                                                                 in which
 '


 the Commonwealth may commence trial so long as the prosecutor      was  prepared   to commence     trial prior to the
                                                           of scheduling  difficulties or the like, was   unavailable."
 expiration of the mandatory period but the court. because
 Commonwealth v, Malgieri, SS9 A.2d 604, 607 (Pa. Super. Ct. 2005).
                                                                                           v. Vaughn Robinson. On January
 2    On May 5, 2014 and May 6. 2014, the trial court was on trial on Commonweatih
     12, 2015. the quarter sessions file notes that the court was on trial and that time was  ruled excludable..




                                                                                        5, 2014 without the
 3The trial court determined that the Commonwealth was ready to proceed to trial on May
 benefit of its Rule 404(b) motion. N.T. 05/11i2015 at 11.

                                                             -5-
result, the excludable time attributable to judicial delay is 371 days. The total amount of

excludable time is 397 days_ N.T. 05/11/2015 at 10-14.

       Because the criminal complaint was filed on May 11, 2013, the mechanical run date was

May 11, 2014_ Adding 397 days of excludable time to the mechanical run date produces an

adjusted run date oflune 12, 2015. Defendant's trial commenced on May 11, 2015, which was

within the adjusted run date. As a result, the trial court did not abuse its discretion in denying

Defendant's Rule 600 motion to dismiss.

       2.      The Trial Court Properly Denied Defendant's Motion To Suppress

       Defendant asserts that the trial court improperly denied his motion to suppress because

the facts contained within the "four comers" of the warrant lacked probable cause that the

firearms would be located at the address searched. The standard of review in an appeal from an

order denying a motion to suppress is as follows:

               Our standard of review in addressing a challenge to the denial of a
               suppression motion is limited to determining whether the
               suppression court's factual findings are supported by the record
               and whether the legal conclusions drawn from those facts are
               correct. Because the Commonwealth prevailed before the
               suppression court, we may consider only the evidence of the
               Commonwealth and so much of the evidence for the defense as
               remains uncontradieted when read in the context of the record as a
               whole.. Where the suppression court's factual findings are
               supported by the record, we are hound by these findings and may
               reverse only if the court's legal conclusions are erroneous.

Commonwealth v. Jones, 988 A.2d 649.654 (Pa. 2010).

       In reviewing a claim     of whether a search warrant was invalid within its four corners,

appellate courts review whether the issuing magistrate had a substantial basis for concluding that

probable cause existed. Commonwealth        v.   Huntington 924 A.2d 1252 (Pa. Super. Ct. 2007). This

review is limited to the factual allegations contained within the four corners of the supporting

affidavit. Commonwealth    v.   Dukeman, 917 A.2d 338 (Pa. Super. Ct. 2007).
                                                     -6-
          Courts utilize the totality of the circumstances test to determine whether probable cause

exists for the issuance of a search warrant. Huntington; 924 A.2d at 1255. Courts recognize that

the issuing magistrate makes a "practical common sense assessment"         of whether -- "given   all the

circumstances set forth in the affidavit" -- a "fair probability" exists that contraband or evidence

of a crime will be found in a particular place. Id. Probable cause exists where there is only a

probability of criminal activity, not a prima facie showing. of such activity. Dukeman, 917 A.2d

at 341.

          Here, based on the totality of the circumstances, the facts contained within the

"four corners" of the warrant were sufficient for the magistrate's finding of probable cause. The

affidavit of probable cause states that the complainant, Veronica Jackson, reported to Detective

Sanders the type of firearms that were missing from her residence and where in the residence

they were last seen. The affidavit of probable cause further states that   (I) other than Jackson,

only Defendant knew about the firearms and that they were stored in his dresser drawer; (2)

Jackson discovered the firearms missing only two days after Defendant returned to take his

belongings; and (3) Defendant was currently residing with his other girlfriend Nikki Scott. Based

on the information provided by Jackson, Detective Sanders conducted a search of the bureau of

motor vehicle records and confirmed that Scott resided at 433 W. Hansherry Street, Apt. 2.

Detective Sanders also confirmed that Defendant had a prior conviction and was prohibited from

possessing a firearm. All of these facts were specifically set forth in the warrant.

          Given all of these facts and circumstances set forth in the affidavit of probable cause,

there was sufficient probable cause contained in the four corners of the warrant that the stolen

firearms would be found at Scott's residence. Commonwealth        v.   Hernandez, 935 A.2d 1275,

 1284 (Pa. 2007).



                                                   -7-
       3.      There is Sufficient Evidence to Support the Convictions

       Defendant claims the evidence was insufficient to prove the possession element of a

violation of Section 6105 of the Uniform Firearms Act. To sustain a conviction under Section

6105. there must be sufficient evidence to prove beyond a reasonable doubt that Defendant

possessed a firearm and that he was convicted of an enumerated offense that prohibited him from

possessing, using, controlling, or transferring a firearm. Section 6105 defines "firearm" as any

weapon that is "designed to or may readily be converted to expel any projectile by the action       elan

explosive or the frame or receiver of any such weapon." 18 Pa.C.S.       §   6105; Commonwealth   v.


Thomas. 988 A.2d 669, 670 (Pa. Super. Ct. 2009).

       Constructive possession is defined as "conscious dominion," which itself is defined as the

power to control the contraband and the intent to exercise that control. Commonwealth      v.


Mudrick. 507 A.2d 1212, 1213 (Pa. 1986). Constructive possession may be established by the

totality of the circumstances. Id. "Individually, the circumstances may not be decisive; but in

combination, they may justify an inference that the accused had both the power to control and

the intent to exercise that control   .   ." Commonwealth   v.   DeCampli, 364 A.2d 454, 456 (Pa.

Super. Ct. 1976).

        Here, there is sufficient evidence to prove beyond a reasonable doubt that Defendant

constructively possessed the firearms recovered from 433 W. Hansberry Street. Defendant

received a letter from a utility company addressed to him at 433 W. Hansberry Street. He told

Officer Lally that he resided at 433 W. Hansberry Street. The firearms recovered by police

matched the sales records that Jackson provided to police and that were previously stored at

Jackson's home. Defendant was the only person beside Jackson who knew where Jackson stored

the firearms in her residence and Defendant was the only person who could have accessed them

from her residence, i.e., Defendant possessed a key to Jackson's residence. Jackson twice stated
                                                  -8-
to the police that she believed that Defendant stole her firearms_ And, last, when the firearms

were recovered from inside of 433 W. Hansberry, they were found inside a shocbox that also

contained a photo of Defendant with yet another female, i.e., not Scott or Jackson_

        Viewing this direct and circumstantial evidence in the light most favorable to the

Commonwealth, there was sufficient evidence4 to support Defendant's convictions under Section

6105.

        4.      The Verdict Was Not Against The Weight Of The Evidence

        Defendant asserts that the verdict was against the weight of the evidence. When

evaluating the weight of the evidence, the standard of review is as follows:

                The weight of the evidence is exclusively for the finder of fact who
                is free to believe all, part, or none of the evidence and to determine
                the credibility of the witnesses. An appellate court cannot
                substitute its judgment for that of the finder of fact. Thus, [the
                Superior Court] may only reverse the lower court's verdict if it is
                so contrary to the evidence as to shock one's sense of justice.
                Moreover, where the trial court has niled on the weight claim
                below, an appellate court's role is not to consider the underlying
                question of whether the verdict is against the weight of the
                evidence. Rather, appellate review is limited to whether the trial
                court palpably abused its discretion in ruling on the weight claim.

Commonwealth      v.   Champney, 832 A.2d 403, 408 (Pa. Super. Ct. 2003).

        The trial court presided over the entire trial and had the opportunity to observe the

demeanor of the witnesses who testified as well as their manner of testifying. Based upon those

observations and the consistency of their testimony, there is no basis to disturb the jury's

credibility determinations that are imbedded within their verdict. Moreover, in light of the

overwhelming evidence of Defendant's guilt discussed above, the verdict is not contrary to the

evidence and does not shock one's sense of justice.


4At trial Detective Walsh testified to the operability of both Firearms. N.T. 05/13/2015 at 128-131, 136-137.
Defendant stipulated that he was prohibited from possessing a firearm under Section 6105.

                                                     -9-
       5.   The Trial Court Did Not Abuse Its Discretion by
            Denying Defendant's Objection During Closing Statements

       Defendant argues that the trial court erred by denying his objection to facts mentioned by

the prosecutor during his closing statement. Courts review claims          of prosecutorial misconduct

under an abuse of discretion standard. Commonwealth           v.   Lopez, 57 A.3d 74, 84 (Pa_ Super. Ct.

2012). Consideration of this claim focuses on whether the defendant was deprived of a fair trial,

not a perfect trial_ Commonwealth     v.   Solomon. 25 A.3d 380, 383 (Pa. Super. Ct. 2011). A

prosecutor's statements to the jury do not occur in a vacuum and must be viewed in context. Id.

Not every inappropriate remark by a prosecutor constitutes reversible error. Commotnvealrh                 v.


Harris, 884 A.2d 920, 927 (Pa. Super. Ct. 2005). Evert if the prosecutor's arguments are

improper, they generally will not form the basis for a new trial unless the comments unavoidably

prejudiced the jury and prevented a true verdict. Commonwealth            v.   Rolan, 964 A.2d 398, 410

(Pa. Super. Cr. 2008).

        Here, at the beginning of his closing argument, the prosecutor stated "you can possess

something even if you don't have it on your body, even if it's just in the house. So if he is in            a


house living with Veronica Jackson [on December 9, 2012] and he knows that the gun is there."

N.T. 5/14/2015 at 90. Defendant objected that the prosecutor was improperly arguing facts that

formed the basis of an acquittal for an alleged violation of Section 6105 from December 9, 2012.

The trial court overruled Defendant's objection and later noted that the prosecution was

permitted to put forth its theory of the case    -   i.e., that Defendant moved the firearms from

Jackson's residence to 433 W. Hansbeny Street on or about May 10, 2013. Id. at 95. Such

argument is not improper because prosecutors are permitted to summarize the evidence admitted

at trial.. See Commonwealth   v.   Hutchinson, 25 A.3d 277 (Pa Super. Ct. 201         1)   (it is entirely proper

for the prosecutor to summarize the evidence presented, to offer reasonable deductions and


                                                      -10-
inferences from the evidence, and to argue that the evidence establishes defendant's guilt).

Additionally, after the prosecutor's closing and just before the jury retired to deliberate, the trial

court cured any potential prejudice by instructing the jury with the specific date of the alleged

violations of Section 6105, i.e., on or about May 13.2013     - not December 9, 2012. id. at 94;
Conunonwealth    v.   Linder, 425 A.2d 1126 (Pa. Super. Ct. 1981) (finding that no prejudice

occurred after the trial court provided a cautionary instruction to the jury following the

prosecutor's remark that there was no question the defendant was guilty).

       As such, there was no prosecutorial misconduct. And, even        if there were, any improper

argument was cured through the trial court's instruction to the jury.

CONCLUSION

        For the fore         easons, the appellate court should affirm the judgment of sentence.




DANIEL. J.. DERS, JUDGE
Dated: April 28, 2016




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