J-S50036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JUNIE ANTONIO WOFFARD

                            Appellant                 No. 2889 EDA 2014


              Appeal from the Judgment of Sentence May 6, 2014
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0003741-2013

BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                           FILED AUGUST 18, 2015

        A jury found Junie Antonio Woffard guilty of persons not to possess

firearms and carrying firearms without a license,1 and the trial court

sentenced him to an aggregate term of 45-108 months’ imprisonment. We

affirm.

        The following evidence was adduced during trial. On August 5, 2013,

Detectives Erik Landis and Raymond Ferraro of the Allentown Police

Department were investigating the murder of Charles Bryant that evening in

the 900 block of Oak Street in the City of Allentown. N.T., 3/11/14, at 34.

In the course of the investigation, Detective Landis obtained the iPhone of a

third person, who consented to the extraction of the phone’s contents.
____________________________________________


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


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Commonwealth     exhibits   1A,   1B.     Detective     Landis   extracted   147

photographs and 8 videos from the iPhone. N.T., 3/11/14, at 38.

     During Woffard’s trial, the Commonwealth introduced data recovered

from the iPhone, including a group photograph of four individuals, a video,

and still photographs retrieved from the video. The group photograph was

taken two hours before Bryant’s death. Commonwealth exhibits 2, 3; N.T.,

3/11/14, at 42-43. The photograph depicted Woffard with a TEC-9 firearm

partially concealed in his waistband; Bryant and two other men were also in

the photograph. Id. The video was taken on August 2, 2013, three days

before Bryant’s murder. Commonwealth exhibit 8; N.T., 3/11/14, at 46-50.

The video and the still photographs from the video depicted Woffard

possessing both the TEC-9 firearm and ammunition in a vehicle. Id.

     Detective Ferraro recognized Woffard from the group photograph. The

detective further observed that the photograph was taken “right where

Charles Bryant was killed”, and that Bryant was wearing the same clothing in

the photograph as when he was murdered.            N.T., 3/11/14, at 62-63, 68.

From these facts, Detective Ferraro deduced that Woffard had been present

during the homicide. The detective arranged to meet with Woffard as part of

the homicide investigation. Id. at 63, 68.

     On   the   afternoon   following   Bryant’s    death,   Woffard   appeared

voluntarily, not as a suspect but as a witness to the homicide.        Detective

Ferraro presented him with several photographs, including the group


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photograph described above. Id. at 64-69. Woffard identified himself and

other individuals in the photographs and pinpointed their date and time. Id.

at 76-77.   Woffard confirmed that the group photograph was taken in the

900 block of Oak Street, the same block in which Bryant was killed, only

hours before the murder. Id. at 80.

      Woffard also admitted that he was holding a “real TEC-9” in the

photographs and described various features of this weapon. Id. at 72-78,

82. He also admitted putting the TEC-9 firearm in the back of his friend’s

car prior to the homicide. Id. at 81; N.T., 3/12/14, at 28. He stated that he

would have used this gun to protect himself had he possessed it at the time

of Bryant’s murder.   N.T., 3/11/14, at 79; N.T., 3/12/14, at 24.     Woffard

confirmed that the TEC-9 firearm in the video was the same TEC-9 firearm

from the photographs. N.T., 3/11/14, at 75, 78, 82; N.T., 3/12/14, at 24.

      Detective Kurt Tempinski, an expert in firearms and tool mark

examination, examined the photographs and video.       N.T., 3/12/14, at 44.

He testified that during the video, he heard the magazine being inserted and

locked in place. Id. at 45. He also observed “various physical features of it,

including what appears to be a steel receiver that is rusted, slight

configurations, configurations of a charging handle ... the barrel, the fact

that it has a barrel extension attached to it, the magazine ... a polymer

frame, the position of the lettering on the polymer frame of the firearm.”

Id. at 45-46.   The magazine for the firearm appeared to be loaded with


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cartridges. Id. at 47. In Detective Tempinski’s expert opinion, the firearm

in the photographs and video was consistent with a real TEC-9 firearm and

inconsistent with a replica or airsoft firearm. Id. at 61-62.

      The parties stipulated that Woffard was legally prohibited from

possessing a firearm for more than 60 days prior to August 5, 2013.

Commonwealth exhibit 9; N.T., 3/12/14 at 35-36.

      As stated above, the jury found Woffard guilty of two firearms

offenses, and the trial court sentenced him to a term of imprisonment.

Woffard filed timely post-sentence motions, which the court denied, and a

timely notice of direct appeal.   Both Woffard and the trial court complied

with Pa.R.A.P 1925.

      Woffard raises three issues on appeal:

      Whether the trial court violated the corpus delicti rule by
      allowing the admission of [Woffard’s] out of court statements?

      Whether the evidence was sufficient to convict [Woffard for]
      carrying a firearm without a license?

      Whether [Woffard’s] conviction for firearms not to be carried
      without a license was against the weight of the evidence?

Brief for Appellant, p. 9.

      Woffard first argues that the trial court violated the corpus delicti rule

by permitting the Commonwealth to introduce his inculpatory statements

that (1) photographs taken hours before Bryant’s murder depicted Woffard

with a firearm in his waistband and (2) he placed the firearm into another

friend’s car prior to Bryant’s murder.

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      The corpus delicti rule “applies to the admissibility 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.”   Commonwealth        v.    Otterson,     947       A.2d   1239,      1249

(Pa.Super.2008).    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.”     Id.        The   corpus   delicti   rule   requires    the

Commonwealth to show that the charged crime actually occurred before a

confession or admission by an accused can be admitted as evidence.                  Id.

The purpose of this rule is to guard against hasty and unguarded confessions

and admissions and the consequent danger of a conviction where no crime

has in fact been committed. Id.

      Courts apply the corpus delicti rule in two phases. In the first phase,

the court determines whether the Commonwealth has proven the corpus

delicti of the crimes charged by a preponderance of the evidence. If so, the

defendant’s confession is admissible. Otterson, 947 A.2d at 1249. In the

second phase, the Commonwealth must prove the corpus delicti to the

factfinder’s satisfaction beyond a reasonable doubt before the factfinder may

consider the confession in assessing the defendant’s guilt or innocence. Id.

      Here, prior to admission of Woffard’s inculpatory statements, the

Commonwealth presented the group photograph created on August 5, 2013

at 10:03 p.m.    Commonwealth exhibit 3.         Woffard was in the photograph


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and appeared to conceal a firearm in the waistband of his pants.         Id.

Detective Landis testified that he recognized the background of the

photograph as the 900 block of Oak Street in Allentown, Lehigh County,

because he is familiar with this block, and because the photograph depicts a

street sign for Hazel Street, which intersects Oak Street. N.T., 3/11/14, at

41-42.   Detective Landis also identified Woffard and Bryant from the

photograph and pointed out that Bryant was wearing the same clothes he

was wearing when he was murdered two hours later.             Id. at 42-43.

Detective Landis testified that the August 2, 2013 video depicted Woffard

placing what appeared to be a TEC-9 firearm into a Steelers bag in a red

Volkswagen vehicle. Id. at 46-50. The video also showed Woffard and two

others in a vehicle while Woffard loaded the firearm with ammunition. Id.

The Steelers bag was also in this vehicle. Id.

     Detective Ferraro also identified Woffard and others in the group

photograph and the video.    N.T., 3/11/14, at 64, 73-82.    He interviewed

Woffard and showed him the group photograph and still photographs from

the video, and Woffard said the firearm in the group photograph and still

photographs was real.    Id. at 73-82.    Moreover, Detective Tempinski, an

expert in firearms and tool mark identification, testified that in his expert

opinion, the firearm in the photograph and video were consistent with a real

TEC-9 firearm. N.T., 3/12/14, at 62.




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     The group photograph, video, and photograph stills obtained from the

video, along with the detectives’ authenticating and corroborating testimony,

established the body, or the corpus delicti, of the crimes of persons not to

possess a firearm and firearms not to be carried without a license. Thus, the

trial court properly admitted Woffard’s inculpatory statements into evidence.

Otterson, 947 A.2d at 1250 (corpus delicti sufficiently proven, and court

properly   admitted    defendant’s    statement    into   evidence,   where

Commonwealth introduced several photos showing defendant with marijuana

plants and also introduced numerous calendars found during search of

defendant’s properties, and calendars contained handwritten notes indicating

when plants were to be watered as well as projected harvesting dates and

other information related to harvesting, and search of defendant’s properties

revealed multiple marijuana plants at these locations).

     Woffard contends in his corpus delicti argument that because Detective

Ferraro referenced Woffard’s inculpatory statements to authenticate the

photograph and video, their admission was improper.       We disagree.   The

Commonwealth satisfied its burden by presenting authentication evidence

that was independent of Woffard’s inculpatory statements.

     Pennsylvania Rule of Evidence 901 provides that “to satisfy the

requirement of authenticating or identifying an item of evidence, the

proponent must introduce evidence sufficient to support a finding that the

item is what the proponent claims it is.” This can be accomplished by the


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testimony of a witness with knowledge that “an item is what it is claimed to

be,” a “comparison with an authenticated specimen by an expert witness,”

or based on the “appearance, contents, substance, internal patterns, or

other distinctive characteristics of the item, taken together with all the

circumstances.”   Pa.R.E. 901(b)(1), (3), (4); see also     Nyce v. Muffley,

119 A.2d 530, 532 (Pa.1956) (authentication testimony may be provided by

the person who took the photograph or video, “or by some other witness

with sufficient knowledge to state that it fairly and accurately represents the

object or place reproduced as it existed at the time” of recording);

Commonwealth v. Impellizzeri, 661 A.2d 422, 428 (Pa.Super.1995) (“a

witness familiar with the subject matter can testify that the tape was an

accurate and fair depiction of the events sought to be shown”).

      Here, Detectives Landis and Ferraro identified the location and

individuals in the group photograph and video based on their independent

knowledge.    Their testimony regarding the clothing worn by Bryant in the

photograph, along with Detective Landis’ testimony concerning his extraction

of data from the iPhone, established when and how the group photograph

and video were captured. The detectives further testified that based on their

experience and personal knowledge, both the item in the group photograph

that Woffard partially concealed in his pants and the item in the video that

Woffard placed inside the vehicle and loaded with ammunition was a firearm

– specifically, a TEC-9 firearm. Finally, Detective Tempinski testified that in


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his expert opinion, the item in both the group photograph and video was

consistent with a real TEC-9 firearm.       This combination of testimony was

sufficient to authenticate the group photograph and video independent of

Woffard’s inculpatory statements.

      In Woffard’s second argument on appeal, he contends that the

evidence is insufficient to support his conviction for carrying a firearm

without a license, because the firearm was not concealed and was not

carried in a vehicle.

      Our standard of review challenges to the sufficiency of the evidence is

well-settled:

      [W]hether[,] viewing all the evidence admitted at trial in the
      light most favorable to the [Commonwealth as 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.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa.Super.2015).

      A person is guilty of carrying a firearm without a license “if he carries a

firearm in any vehicle or concealed on or about his person, except in his

place of abode or fixed place of business, without a valid and lawfully issued

license.”   18 Pa.C.S. § 6106(a)(1).     The Commonwealth may prove the

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“carrying” element either with evidence that the defendant carried a firearm

in a vehicle or concealed a firearm on or about his person. Id. In this case,

the Commonwealth furnished both types of evidence.

       Proof of concealment of a firearm on the defendant’s person depends

on the particular circumstances of the case and is a question for the trier of

fact. Commonwealth v. Scott, 436 A.2d 607, 608 (Pa.1981). Here, the

group photograph depicting Woffard with a firearm partially concealed in his

waistband, along with Woffard’s admission that this firearm was a TEC-9

weapon, demonstrates that Woffard carried a firearm concealed on or about

his   person.   Woffard   argues   that    the   photograph   does   not   prove

concealment because the firearm is partially visible.         Proof of partial

concealment, however, is sufficient to demonstrate that the defendant

carried a firearm on his person. See Commonwealth v. Butler, 150 A.2d

172, 173 (Pa.Super.1959) (evidence of concealment sufficient where

defendant carried gun in pocket; fact that part of gun was visible to

witnesses did not undermine conviction).

       The Commonwealth can prove that the defendant carried a firearm

inside a vehicle through evidence of either actual or constructive possession.

See Commonwealth v. Hopkins, 67 A.3d 817, 821 (Pa.Super.2013)

(evidence was sufficient to show that defendant constructively possessed

firearm found in vehicle he was driving, as required to support convictions

for carrying a firearm without a license; firearm was found within arms


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length of where defendant was seated).          Here, the video demonstrates

actual possession by showing that Woffard placed a firearm inside a vehicle

and loaded it with ammunition while in the vehicle.           Moreover, Woffard

admitting carrying the same TEC-9 firearm in the vehicle that he had in the

group photograph. For these reasons, Woffard’s challenge to the sufficiency

of the evidence is devoid of merit.

      In his final argument, Woffard insists that his conviction for carrying

firearms without a license is against the weight of the evidence.      The law

pertaining to weight of the evidence claims is well-settled. The weight of the

evidence is a matter 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.   Commonwealth        v.   Forbes,    867   A.2d    1268,   1273–74

(Pa.Super.2005). A new trial is not warranted because of “a mere conflict in

the testimony” and must have a stronger foundation than a reassessment of

the credibility of witnesses. Commonwealth v. Bruce, 916 A.2d 657, 665

(2007). The role of the trial judge is to determine whether, notwithstanding

all the facts, certain facts are so clearly of greater weight that to ignore

them or to give them equal weight with all the facts is to deny justice. Id.

On appeal, “our purview is extremely limited and is confined to whether the

trial court abused its discretion in finding that the jury verdict did not shock

its conscience. Thus, appellate review of a weight claim consists of a review

of the trial court’s exercise of discretion, not a review of the underlying


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question of whether the verdict is against the weight of the evidence.”

Commonwealth v. Knox, 50 A.3d 732, 738 (Pa.Super.2012). An appellate

court may not reverse a verdict unless it is so contrary to the evidence as to

shock one’s sense of justice. Forbes, 867 A.2d at 1273–74.

      Woffard’s weight of the evidence argument is largely a reprise of his

attack on the sufficiency of the evidence.     He states that the evidence,

viewed in the light most favorable to the Commonwealth, is insufficient to

support the element of concealment of a firearm on Woffard’s person or

carrying a firearm in a vehicle.   This argument fails because, as we have

held above, the evidence was sufficient to sustain Woffard’s conviction.

      Woffard also claims baldly that the guilty verdict on the charge of

carrying firearms without a license was so contrary to the evidence as to

shock the conscience.    He fails to identify any reason why the trial court

abused its discretion in finding that the jury verdict did not shock its

conscience.   Having reviewed the record, we conclude that the trial court

acted within its discretion by determining that the evidence did not shock its

conscience.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2015




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