J-S37019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES YATES,                               :
                                               :
                       Appellant.              :   No. 1062 EDA 2018


          Appeal from the Judgment of Sentence, December 9, 2016,
            in the Court of Common Pleas of Philadelphia County,
            Criminal Division at No(s): CP-51-CR-0011630-2013.


BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                           FILED AUGUST 21, 2019

        James Yates appeals from the judgment of sentence entered following

a bench trial on the charge of possession of firearm prohibited.1 After careful

review, we affirm.

        On July 3, 2013, police arrested and charged Yates with numerous

offenses stemming from a robbery and shooting incident. Yates requested

that the charge of possession of firearm prohibited be decided by the judge

not the jury. Following the trial on all charges, the jury found Yates not guilty

of the remaining charges, but the trial court found Yates guilty of possession

of firearm prohibited. The trial court summarized the facts relating to this

charge as follows:


____________________________________________


1   18 Pa.C.S.A. § 6105(a).
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     On May 29, 2013, Police Officer George Fetters took a statement
     from Ms. Tanesha Wells initially in reference to [an unrelated
     matter]. During this interview, she began talking about a person
     by the name of James Yates []. She indicated that Yates had told
     her about a robbery that had occurred at a Chinese store around
     5th and Somerset, on May 14th or 15th of 2013, and that it was
     posted on YouTube. She remembered the date because it was the
     day before her grandmother's funeral. Ms. Wells pulled up the
     YouTube posting of a robbery at Number One Chinese store, and
     identified Yates, her boyfriend, as the person in the video wearing
     a gray sweatshirt. Ms. Wells also recognized the other two people
     involved in the robbery as Chris and another person named
     "Reece."

     With respect to the firearm in question, on June 8, 2013,
     Lieutenant Bullick received a call from Detective Sherwood, who
     said a credible informant had told him there was a man with a gun
     in the area of 10th and Dakota. Sherwood described the man as
     a black male wearing a red drawstring backpack. Bullick drove to
     the area of 10th and Dakota, and saw a man who fit the
     description wearing a red drawstring backpack. Bullick said to
     him, "Hey, bud, come here." and the man immediately ran away.
     Bullick identified Yates as that man. As Yates ran from the police,
     he discarded the red backpack between two cars. Bullick returned
     to look for the backpack a few minutes later, but it was not there.

     About a month later, on July 3, 2013 around 7 p.m., police went
     to 3800 Archer Street in response to a call that a wanted man was
     there. When the police pulled up in front of the house, they saw
     Yates and Ms. Wells sitting on the front steps, eating water ice or
     ice cream. As soon as police exited their vehicle, Yates fled.

     At trial, Detective Hagan testified that early the next morning, on
     July 4, 2013, Ms. Wells called him and said. "James is at the house
     and he had a red bag that he normally carries a gun in." In
     response, police went to the house, arriving at 6:15 a.m., where
     they recovered a red Temple University backpack. Inside the
     backpack they found a gun, blue jean shorts with a gray belt, black
     sweat shorts, a gray t-shirt, a white t-shirt, and a black t-shirt
     that said "A hood, a boy," two white socks, a brown baseball hat
     with green and red stripes, and a gray hooded sweatshirt.

     Ms. Wells testified that Yates, her boyfriend at the time, lived at
     her house, and was there on the date when the gun was
     recovered. She testified that she told police they would find a


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      backpack under the couch with a gun and drugs, and that Yates
      had put it there.

Trial Court Opinion, 12/21/18, at 2-3 (citations omitted).        Following his

conviction, the court sentenced Yates to an aggregate sentence of 54 to 120

months of imprisonment.

      Originally, no appeal was filed.       However, after the PCRA court

reinstated his appeal rights, Yates timely appealed. Both Yates and the trial

court complied with Pennsylvania Rule of Appellate Procedure 1925.

      On appeal, Yates raises the following issues:

      A. Was [Yates’] conviction against the weight of the evidence?

      B. Did the Commonwealth prove beyond a reasonable doubt each
      element of the crime that [Yates] was convicted of (18 Pa.C.S.A.
      § 6105)?

Yates’ Brief at 3.

      First, we address Yates’ weight claim. Initially, we note that a claim that

the verdict is against the weight of the evidence must be raised with the trial

court in a motion for a new trial by one of the following methods: 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. Failure

to preserve the claim results in waiver. Commonwealth v. Bryant, 57 A.3d

191, 196 (Pa. Super. 2012).

      Our review of the record before us reveals that Yates did not raise his

weight claim with the trial court prior to sentencing.      He only challenged

sufficiency of the evidence. He also did not raise a weight challenge in a post-



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sentence or other motion.      Thus, the trial court was never given the

opportunity to provide Yates with relief. See Commonwealth v. Thompson,

93 A.2d 478, 490-91 (Pa. Super. 2014). Accordingly, Yates waived this issue.

     Next, we address Yates’ sufficiency claim.    In reviewing a sufficiency

claim, we must consider “whether the evidence admitted at trial, and all the

reasonable    inferences   derived   therefrom   viewed   in   favor   of   the

Commonwealth as verdict winner, supports the jury's finding of all the

elements of the offense beyond a reasonable doubt.” Commonwealth v.

Cash, 137 A.3d 1262, 1269 (Pa. 2016) (citation omitted). “The trier of fact

bears the responsibility of assessing the credibility of the witnesses and

weighing the evidence presented.     In doing so, the trier of fact is free to

believe all, part, or none of the evidence.” Commonwealth v. Newton, 994

A.2d 1127, 1131 (Pa. Super. 2010), appeal denied, 8 A.3d 898 (Pa. 2010)

(citations omitted). “The Commonwealth may sustain its burden by means of

wholly circumstantial evidence, and we must evaluate the entire trial record

and consider all evidence received against the defendant.” Commonwealth

v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013). Only “where the evidence

offered to support the verdict is in contradiction to the physical facts, in

contravention to human experience and the laws of nature, then the evidence

is insufficient as a matter of law.” Commonwealth v. Widmer, 744 A.2d

745, 751 (Pa. 2000). “Because evidentiary sufficiency is a question of law,

our standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013).

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        To convict Yates on a charge of possession of firearm prohibited, the

Commonwealth was required to show that he: 1) was previously convicted of

an enumerated offense; and 2) possessed a firearm.           See 18 Pa.C.S.A. §

6105.     To establish the element of possession, this Court has held that

“[p]ossession can be found by proving actual possession, constructive

possession, or joint constructive possession.” Commonwealth v. Parrish,

191 A.3d 31, 36 (2018) (citation omitted).

        As noted by the trial court, Yates does not dispute the first factor

(previous conviction); he only disputes that the evidence was insufficient to

establish that he possessed the firearm in question. Specifically, Yates argues

that when contraband is found other than in one’s physical possession, as it

was here, the Commonwealth must be able to show constructive possession.

Yates’ Brief at 19-20. According to Yates, the Commonwealth failed to present

sufficient evidence to establish that he had constructive possession of the

firearm found at his girlfriend’s house.     Id. at 20.   Instead, the evidence

presented at trial demonstrated that Yates was unaware of the firearm, and

he was not at his girlfriend’s house the day the gun was found. The only

evidence linking him to the gun was the testimony of his girlfriend, who was

mad at him and called the police on him. Id. Thus, his conviction should be

reversed. We disagree.

        Constructive possession is a legal fiction, a pragmatic construct to
        deal with the realities of criminal law enforcement. Constructive
        possession is an inference arising from a set of facts that
        possession of the contraband was more likely than not. We have
        defined constructive possession as conscious dominion. We

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      subsequently defined conscious dominion as the power to control
      the contraband and the intent to exercise that control. To aid
      application, we have held that constructive possession may be
      established by the totality of the circumstances.

Hopkins, 67 A.3d at 820 (citations omitted) (emphasis added).

      The trial court, in finding Yates guilty of possession of firearm prohibited,

considered the totality of the circumstances in this case which established that

Yates constructively possessed the firearm. The trial court explained:

      This Court, the trier of fact in this matter, found Ms. Wells’
      testimony to be credible. Ms. Wells testified that Yates, her
      boyfriend at the time, lived at her house, and was there on the
      date when the gun was recovered. She testified that she told
      police they would find a backpack under the couch with a gun and
      drugs, and that Yates had put it there. Her demeanor leant further
      credibility to her testimony.

      In addition to Ms. Wells' credible testimony, the Court credits the
      testimony of Lieutenant Bullick, and Detective Hagan, who linked
      Yates to the gun and the red drawstring backpack. On June 8,
      2013, after receiving credible information that a black man with a
      gun was near 10th and Dakota and wearing a red drawstring
      backpack, Bullick drove to 10th and Dakota, where he saw Yates
      wearing a red drawstring backpack. As Yates fled, he discarded
      the backpack between two cars. Detective Hagan testified that
      Ms. Wells called him on July 4, and told him that James was at the
      house and he had a red bag that he normally carries a gun in.
      That same day, after obtaining permission to search her house,
      police recovered from under her couch a red Temple University
      duffel book bag that had a gun and some personal items inside.

      Finally, the Court considered Yates' actions in twice fleeing upon
      sight of police officers. Flight does indicate consciousness of guilt,
      and a trial court may consider this as evidence, along with other
      proof, from which guilt may be inferred. Though flight in itself is
      not dispositive, a court can and should consider flight along with
      other proof. In this instance, when police approached him near
      10th and Dakota on June 8, 2013, Yates fled, discarding a red
      drawstring backpack as he ran. Police had been responding to
      credible information that they would find a black man with a gun,


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      wearing a red drawstring backpack in the area of 10th and Dakota.
      Then, less than thirty days later, on July 3, 2013 around 7 p.m.,
      police went to 3800 Archer Street in response to a call that a
      wanted man was there. Once again, as soon police arrived,
      Appellant, who was sitting on the front steps, immediately fled.
      The police recovered the gun from that address early the next
      morning.

      The totality of Ms. Wells’ credible testimony, combined with the
      testimony of several police officers, and Yates’ action of twice
      fleeing upon sight of police, convinced the Court beyond a
      reasonable doubt that Yates possessed the firearm in question.
      Yates was seen wearing a red drawstring backpack by police,
      which he threw between two cars as he ran from police; he stayed
      at 3800 Archer Street, was seen there on July 3, the gun was
      found there early in the morning on July 4, and his girlfriend told
      police that he kept his gun in the red backpack, and they would
      find it under the couch, where they did in fact find it. These facts
      are sufficient to convince the court that Yates had the power to
      control the firearm, as well as the intent to control the firearm.

Trial Court Opinion, 12/21/18, at 5-7 (internal quotations and citations

omitted).

      Based upon our review of the record, and viewing the totality of the

evidence in the light most favorable to the Commonwealth as verdict winner,

we agree with the trial court and conclude that there was sufficient evidence

to prove beyond a reasonable doubt that Yates was in possession of the

firearm prohibited. Therefore, no relief is warranted.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2019




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