J-S45045-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
            Appellee                      :
                                          :
     v.                                   :
                                          :
SAMEER MITCHELL-WILLIAMS,                 :
                                          :
           Appellant                      :   No. 3394 EDA 2016

           Appeal from the Judgement of Sentence June 9, 2016
           in the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0002268-2015
                                       CP-51-CR-0002278-2015

BEFORE:    GANTMAN, P.J., PANELLA, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED SEPTEMBER 07, 2017

     Sameer Mitchell-Williams (Appellant) appeals from the judgment of

sentence imposed on his conviction for, inter alia, firearms not to be carried

without a license.   On appeal, Appellant claims that there was insufficient

evidence to support his conviction for the above-mentioned crime because

the trial court erred in admitting into evidence his own statements to the

police in violation of the corpus delicti rule.     We disagree and affirm

Appellant’s judgment of sentence.

     The trial court ably summarized the factual history of this case.

           [During Appellant’s non-jury trial for the aforementioned
     charges,] Detective Grace testified that on January 15, 2015, he
     was conducting an investigation into a shooting in the vicinity of
     10th and Olney Streets. In the course of that investigation he
     went to the hospital to interview [Appellant] who was believed to
     be the victim of a shooting.



*Retired Senior Judge assigned to the Superior Court.
J-S45045-17


            [Appellant] had a gunshot wound to his leg.

            [Appellant] gave an interview to Detective Grace, wherein
      [Appellant] described being accosted by men. [Appellant] stated
      that he was in possession of a gun during the incident which was
      tucked into the front of his waist.          [Appellant] further
      acknowledged that he did not have a permit to carry a gun.
      [Appellant] stated that his gun, which he had owned for about
      two years, was a black, .40 caliber Smith and Wesson, which the
      men took from him during the incident. [Appellant] reviewed
      and signed the statement. [Appellant] did not have a valid
      license to carry a firearm.

            Detectives obtained a search warrant for [Appellant’s]
      address. During execution of that warrant, police recovered
      from a second floor rear bedroom $530 in United States
      [c]urrency [] from under the mattress, two clear plastic bags
      containing a total of 4.9 grams of marijuana, three digital scales,
      [Appellant’s] identification and a box of Remington [.]40-caliber
      ammunition, containing nine live [.]40-caliber rounds and a case
      of new, unused green plastic containers with lids.

            … [Another police officer, testifying as an expert,]
      rendered the opinion that the marijuana was possessed with
      intent to deliver. …

            [Appellant] testified that he did not own a gun and did not
      have a gun at the time of the incident during which he was shot.
      He further testified that the box of ammunition was the remains
      of a box purchased for use at a firing range where he would rent
      a gun for practice. [Appellant] testified that the portions of the
      [written] statement [signed by Appellant and introduced by the
      Commonwealth] regarding possession of a gun were made up by
      Detective Grace, and that pages 1-2 containing those portions
      were never shown to [Appellant] before he signed the third
      page.

Trial Court Opinion, 1/19/2017, at 3-4 (internal citations omitted).

      At the conclusion of Appellant’s non-jury trial on April 1, 2016, the trial

court found Appellant guilty of possession with intent to deliver controlled




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substances, possession of a controlled substance, possession of drug

paraphernalia, firearms not to be carried without a license, and carrying

firearms in public in Philadelphia. On June 9, 2016, Appellant was sentenced

to concurrent terms of one-and-one-half to five years of incarceration each

for possession with intent to deliver controlled substances, firearms not to

be carried without a license, and carrying firearms in public in Philadelphia.

His conviction for a possession of controlled substance merged for purposes

of sentencing, and no further penalty was imposed for possession of drug

paraphernalia.

      Appellant’s post-sentence motion was denied by the trial court on

October 12, 2016. Appellant timely filed a notice of appeal. The trial court

filed an opinion pursuant to Pa.R.A.P. 1925(a), noting that Appellant failed to

file a concise statement of matters complained of on appeal pursuant to Rule

1925(b) as ordered by the court.      Appellant subsequently filed a concise

statement, which was accepted by the trial court nunc pro tunc.

      On appeal, Appellant asks this Court to determine whether the

Commonwealth proved that Appellant possessed an unlicensed firearm

beyond a reasonable doubt with admissible evidence. Appellant’s Brief at 5.

Appellant argues that the Commonwealth failed to prove the elements of

firearms not to be carried without a license because it did not present

independent evidence of the crime outside of his statement to Detective




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Grace, which, according to Appellant, should not have been admitted due to

the corpus delicti rule. Appellant’s Brief at 9.

      We begin with our standard of review regarding sufficiency of the

evidence.

      [O]ur standard of review of sufficiency claims requires that we
      evaluate the record in the light most favorable to the verdict
      winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence. Evidence 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.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. Any doubt about the defendant’s guilt is
      to be resolved by the fact finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.

      … Significantly, we may not substitute our judgment for that of
      the fact finder; thus, so long as the evidence adduced, accepted
      in the light most favorable to the Commonwealth, demonstrates
      the respective elements of a defendant’s crimes beyond a
      reasonable doubt, the appellant’s convictions will be upheld.

Commonwealth v. Tukhi, 149 A.3d 881, 886–87 (Pa. Super. 2016)

(internal citations omitted).   Credibility of witnesses and the weight of the

evidence produced is within the province of the trier of fact, who is free to

believe all, part or none of the evidence.     Commonwealth v. Scott, 146

A.3d 775, 777 (Pa. Super. 2016).

      In arguing that the evidence was insufficient to support his conviction,

Appellant asks us to disregard the statement he gave to Detective Grace

wherein he explicitly admitted that he possessed a concealed gun on his




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person without a license on the streets of Philadelphia and implicitly

admitted that the gun was operable. See Appellant’s Brief at 12. This we

cannot do. See Commonwealth v. Gray, 867 A.2d 560, 567 (Pa. Super.

2005) (“[I]n evaluating the sufficiency of the evidence, we do not review a

diminished record. Rather, the law is clear that we are required to consider

all evidence that was actually received, without consideration as to the

admissibility of that evidence or whether the trial court’s evidentiary rulings

are correct.”) (citation and internal quotation marks omitted).

      It is clear that while Appellant couches his argument in terms of

sufficiency of the evidence, his real challenge is to the admission and

consideration of his statement to Detective Grace based on the corpus delicti

rule. This Court has discussed corpus delicti challenges as follows.

      The corpus delicti rule is designed to guard against the hasty and
      unguarded character which is often attached to confessions and
      admissions and the consequent danger of a conviction where no
      crime has in fact been committed. The corpus delicti rule is a
      rule of evidence. Our standard of review on appeals challenging
      an evidentiary ruling of the trial court is limited to a
      determination of whether the trial court abused its discretion.
      The corpus delicti rule places the burden on the prosecution to
      establish that a crime has actually occurred before a confession
      or admission of the accused connecting him to the crime can be
      admitted. The corpus delicti is literally the body of the crime; it
      consists of proof that a loss or injury has occurred as a result of
      the criminal conduct of someone. The criminal responsibility of
      the accused for the loss or injury is not a component of the rule.
      The historical purpose of the rule is to prevent a conviction
      based solely upon a confession or admission, where in fact no
      crime has been committed. The corpus delicti may be
      established by circumstantial evidence. Establishing the corpus
      delicti in Pennsylvania is a two-step process. The first step



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     concerns the trial judge’s admission of the accused’s statements
     and the second step concerns the fact finder’s consideration of
     those statements. In order for the statement to be admitted, the
     Commonwealth must prove the corpus delicti by a
     preponderance of the evidence. In order for the statement to be
     considered by the fact finder, the Commonwealth must establish
     the corpus delicti beyond a reasonable doubt.

Commonwealth v. Hernandez, 39 A.3d 406, 410-11 (Pa. Super. 2012)

(citations and quotation marks omitted).

     Appellant’s corpus delicti argument focuses on his conviction under

subsection 1606(a)(1) of the crimes code, which provides in relevant part:

“any person who carries a firearm concealed on or about his person …

without a valid and lawfully issued license under this chapter commits a

felony of the third degree.” 18 Pa.C.S. § 1606(a)(1).

     Appellant argues that the Commonwealth failed to follow the two-step

process to establish corpus delicti.   According to Appellant, because the

Commonwealth never established by a preponderance of the evidence that a

crime occurred, it should not have been permitted to enter into the record

Appellant’s statement obtained while he was being interviewed in the

hospital after being shot. Appellant’s Brief at 11. Highlighting that the gun

at issue was never recovered, Appellant further contends that it was

improper for the trial court to have considered Appellant’s statement

because there was no other evidence that Appellant carried a firearm

concealed on his person without a license. Id. at 12.




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     However, we agree with the trial court and the Commonwealth that

Appellant waived his corpus delicti claim.       See Trial Court Opinion,

1/19/2017, at 6-7. In order to preserve a challenge to the admission of an

inculpatory statement based on corpus delicti grounds, an objection must be

raised prior to or during the Commonwealth’s introduction of the statement.

Commonwealth v. Chambliss, 847 A.2d 115, 120-21 (Pa. Super. 2004)

(“As Appellant did not raise any objection to the Commonwealth’s admission

of this evidence during the Commonwealth’s presentation of this evidence,

we do not find that Appellant has properly preserved a [corpus delicti]

challenge to the admissibility of the confession.”) An appellant’s failure to

raise a contemporaneous objection to evidence at trial waives that claim on

appeal. Pa.R.E. 103(a); Commonwealth. v. Thoeun Tha, 64 A.3d 704,

713 (Pa. Super. 2013).

     Our review of the record reveals that Appellant filed a motion to

suppress, but the motion made no arguments regarding corpus delicti.

Furthermore, when the Commonwealth sought to introduce Appellant’s

written statement into the record, not only did Appellant fail to object on

corpus delicti grounds, he specifically stated that he did not have any

objections to the admission of the statement.      N.T., 4/1/2016,1 at 15.




1
 The trial occurred on April 1, 2016, but the transcript is erroneously dated
June 9, 2016.


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Therefore, Appellant did not preserve a challenge to the admissibility of his

statement, and the trial court did not err by admitting it.

       Furthermore, Appellant has also waived any challenge to the trial

court’s consideration of his statement. Appellant moved for acquittal after

the Commonwealth rested its case, but his oral motion was based upon his

argument that the Commonwealth did not prove that the gun was operable

or that Appellant did not have a license on the day in question, not corpus

delicti.   N.T., 4/1/2016, at 41.   Although Appellant did raise the issue of

corpus delicti in his post-sentence motion, this was after the trial court’s

deliberations and, therefore, too late.    See Chambliss, 847 A.2d at 121

(holding that corpus delicti challenge to trial court’s consideration of a

confession was not waived because it was raised during closing argument

prior to the factfinder’s deliberations). Accordingly, we hold that the trial

court did not abuse its discretion in considering Appellant’s statements to

Detective Grace when rendering its verdict.

       Judgement of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 9/7/2017




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