J-S28037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

DURWIN GODWIN,

                            Appellant                      No. 2925 EDA 2014


            Appeal from the Judgment of Sentence August 28, 2014
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0011960-2013


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

MEMORANDUM BY PLATT, J.:                                     FILED MAY 10, 2016

        Appellant, Durwin Godwin, appeals from the judgment of sentence

entered on August 28, 2014, following his non-jury conviction of multiple

violations of the Uniform Firearms Act (VUFA) and one count of fleeing or

attempting to elude the police.1               On appeal, Appellant challenges the

sufficiency and weight of the evidence to support his VUFA conviction. For

the reasons discussed below, we affirm.




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 6105(a)(1), 6016(a)(1), 6108, and 75 Pa.C.S.A. §
3733(a), respectively.
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      We take the underlying facts and procedural history in this matter

from the trial court’s August 12, 2015 opinion and our independent review of

the certified record.

            On September 5, 2013, [Philadelphia Police] Officer Brad
      Momme and Sergeant Shantee Warren were in full uniform
      patrolling on Pickering Street in a marked car. Around 10 p.m.,
      they observed the Appellant run a red light at the intersection of
      Gowen and Pickering. Officer Momme turned on lights and
      sirens and pulled directly behind Appellant’s vehicle on Gowen
      Street. Appellant pulled his vehicle over and slowed down[,] but
      did not come to a complete stop initially. While the vehicle
      continued to travel at a slow rate of speed, Officer Momme
      observed Appellant moving around in the vehicle. When the
      vehicle eventually came to a complete stop, both officers exited
      the vehicle and approached the rear of Appellant’s vehicle.
      Sergeant Warren approached from the rear passenger side and
      Office Momme from the driver side. Officer Momme testified
      that he could see Appellant frantically moving towards the center
      console area making quick motions. The Appellant’s movements
      made Officer Momme extremely nervous. While approaching the
      vehicle, Officer Momme yelled[,] “show me your hands[,]” but
      Appellant did not respond. Officer Momme was standing directly
      behind the truck when he saw Appellant wearing purple latex
      gloves and holding a large black firearm over his lap. Officer
      Momme observed the gun while leaning, over the truck looking
      into the vehicle. There was no tint anywhere on the vehicle.
      The gun was pointing [to the] center of the vehicle and was on
      Appellant’s lap. Officer Momme described the gun as black,
      large, semi or full automatic, and similar to a police-issued gun.
      Officer Momme testified that he could see the entire length of
      the slide. After seeing the gun, Officer Momme yelled “gun” to
      his partner [Sergeant] Warren and the vehicle sped off at an
      extremely high rate of speed. Officer Momme and Sergeant
      Warren then pursued the vehicle for three to five miles.

            Officer Momme radioed into police command vehicle
      pursuit with a description of the vehicle and that the male had a
      firearm. While on patrol, Officer James McGorry heard the radio
      call and observed a vehicle matching the description in the
      driveway of 7900 Thouron Avenue. Office[r] McGorry testified
      that he saw the vehicle with the lights on and saw Appellant exit

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      the vehicle wearing purple latex gloves. Appellant saw the
      officers and ran. Officer McGorry pursued, jumped a fence and
      caught Appellant. While in pursuit on foot, Officer McGorry
      observed Appellant throw away the purple latex gloves he was
      wearing. Officer McGorry testified that it took several officers to
      get Appellant handcuffed because Appellant was fighting the
      officers.    Appellant was ordered to put his hands behind his
      back but refused. Appellant had his hands in front of him and
      was swinging back, elbowing the officers with his fists. It wasn’t
      until after a fellow officer tased Appellant that he was able to be
      handcuffed. There were at least 3-4 officers on the scene [who]
      subdued [Appellant].

            Approximately five minutes after the initial pursuit, Officer
      Momme heard over the radio that Appellant was apprehended at
      7900 Thouron Avenue. Two purple latex gloves were recovered
      from the ground between the vehicle and the driveway. No gun
      was recovered from the vehicle or the Appellant.

(Trial Court Opinion, 8/12/15, at 2-4) (record citations omitted).

      On October 11, 2013, the Commonwealth filed a criminal information

charging Appellant with the aforementioned offenses.       On May 19, 2014,

following a bench trial, the court convicted Appellant. On August 28, 2014,

the trial court sentenced Appellant to an aggregate term of incarceration of

not less than two nor more than four years to be followed by a consecutive

term of six years of probation.    On September 8, 2014, Appellant filed a

post-sentence motion challenging the weight of the evidence.                (See

[Appellant’s] Post-Sentence Motions, 9/08/14, at unnumbered pages 2-3).

The trial court denied the motion on September 10, 2014.

      The instant timely appeal followed.    On October 16, 2014, the trial

court ordered Appellant to file a concise statement of errors complained of

on appeal.    See Pa.R.A.P. 1925(b). Subsequently, counsel requested and

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the trial court granted two extensions of time for Appellant to file his Rule

1925(b) statement. On March 4, 2015, Appellant filed a timely Rule 1925(b)

statement.     On August 12, 2015, the trial court filed an opinion.               See

Pa.R.A.P. 1925(a).

       On appeal, Appellant raises the following questions for our review:

       1. Was the evidence insufficient to support [Appellant’s] VUFA
          conviction[]?

       2. Even if the evidence was sufficient to support [Appellant’s]
          VUFA conviction[ was that conviction] nevertheless against
          the weight of the evidence?

(Appellant’s Brief, at 4).

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

underlying his VUFA2 conviction.3              (See Appellant’s Brief, at 8-13).   Our

standard of review for sufficiency of the evidence claims is well settled:

             We must determine whether the evidence admitted at trial,
       and all reasonable inferences drawn therefrom, when viewed in a
       light most favorable to the Commonwealth as verdict winner,
       support the conviction beyond a reasonable doubt. Where there
____________________________________________


2
  A defendant is guilty of violating 18 Pa.C.S.A. § 6105 if he “has been
convicted of an offense enumerated in subsection” and possesses a firearm.
18 Pa.C.S.A. § 6105(a)(1). A defendant violates 18 Pa.C.S.A. § 6106 if he
carries a firearm without a license. See 18 Pa.C.S.A. § 6106(a)(1). Finally,
a defendant is guilty of violating 18 Pa.C.S.A. § 6108 if he carries an
unlicensed firearm “upon the public streets or upon any public property” in
Philadelphia. 18 Pa.C.S.A. § 6108(1). Appellant stipulated at trial that he
had committed an offense making him ineligible to carry a firearm and
unable to get a license. (See N.T. Trial, 5/19/15, at 56).
3
 Appellant does not challenge his conviction for fleeing or eluding the police.
(See Appellant’s Brief, at 8 n. 1, see also id. at 8-13).



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      is sufficient evidence to enable the trier of fact to find every
      element of the crime has been established beyond a reasonable
      doubt, the sufficiency of the evidence claim must fail.

            The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute
      our judgment for that of the fact-finder. The Commonwealth’s
      burden may be met by wholly circumstantial evidence and 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.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citations

omitted).

      This Court has repeatedly stated that, when challenging the sufficiency

of the evidence on appeal, the appellant’s Rule 1925 statement must

“specify the element or elements upon which the evidence was insufficient”

in order to preserve the issue for appeal.     Commonwealth v. Williams,

959 A.2d 1252, 1257 (Pa. Super. 2008) (citation and emphasis omitted).

Such specificity is of particular importance in cases where, as here, the trial

court convicted Appellant of multiple crimes and each of the crimes contains

numerous    elements   that   the   Commonwealth     must    prove   beyond     a

reasonable doubt. See id. at 1258 n.9. In the instant matter, Appellant did

not specify which elements of the offenses he wished to challenge.           (See

Appellant’s Rule 1925(b) Statement, 3/04/15, at 1-2).       Instead, Appellant

vaguely and incomprehensibly stated that the evidence was insufficient to

sustain his VUFA conviction because it “was in contradiction to the physical

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facts and in contravention of human experience and the laws of nature.”

(Id. at 1).     Appellant then cites to three cases, Commonwealth v.

Santana, 333 A.2d 876 (Pa. 1975); Commonwealth v. Karkaria, 625

A.2d 1167 (Pa. 1993), and Commonwealth v. Brown, 52 A.3d 1139 (Pa.

2012), none of which discuss challenges to the sufficiency of the evidence

underlying a VUFA conviction.          It is thus impossible to determine from

Appellant’s vague Rule 1925(b) statement that Appellant is claiming that the

evidence     was   insufficient   to    sustain   his    conviction   because   the

Commonwealth did not introduce a weapon into evidence (see Appellant’s

Brief, at 11) and that the Commonwealth did not prove that the weapon was

operable (see id. at 12). Accordingly, we find Appellant’s sufficiency of the

evidence claim waived. See Williams, supra at 1257.

      Further, even if we did not find his claim waived for the reason

discussed above, Appellant’s sufficiency of the evidence argument is

underdeveloped. Appellant does not set forth the elements of the crimes the

court convicted him of and he does not specify which element he seeks to

challenge.    (See Appellant’s Brief, at 8-13).         Appellant does set out the

standard of review for sufficiency of the evidence claims and cites to several

cases that stand for the proposition that a court must reject incredible

testimony and not base a conviction on conjecture or speculation. (See id.).

However, despite apparently claiming that Officer Momme’s testimony was

insufficient, (see id. at 11-13), Appellant does not cite to the record and


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does not specify what portions of Officer Momme’s testimony were

insufficient.   Moreover, Appellant does not cite to any support for what

appear to be his main legal arguments: (1) that the Commonwealth must

produce the weapon to sustain a conviction for VUFA;4 (2) that the

Commonwealth must prove that the weapon was operable;5 and (3) that the

Commonwealth cannot prove operability by circumstantial evidence. 6 (See

id.).    Accordingly, Appellant has waived his sufficiency of the evidence

claims. See Commonwealth v. Liston, 941 A.2d 1279, 1285 (Pa. Super.

2008) (en banc), affirmed in part and vacated in part, 977 A.2d 1089 (Pa.

2009).
____________________________________________


4
  We note that this Court has clearly stated that circumstantial evidence that
the defendant possessed a gun is sufficient to sustain a conviction for VUFA.
See Commonwealth v. Robinson, 817 A.2d 1153, 1162 (Pa. Super. 2003)
(evidence sufficient to sustain conviction for VUFA even where no weapon
recovered when victim testified that she saw firearm and there was time
between incident and arrest for defendant to discard weapon).
5
  While the Commonwealth is required to prove operability to sustain
convictions under sections 6106 and 6108, see Commonwealth v. Layton,
307 A.2d 843, 844-45 (Pa. 1973), section 6105 does not require such proof.
See Commonwealth v. Thomas, 988 A.2d 669, 672 (Pa. Super. 2009),
appeal denied, 4 A.3d 1054 (Pa. 2010).
6
  The Pennsylvania Supreme Court has stated: “[a] reasonable fact finder
may, of course, infer operability from an object which looks like, feels like,
sounds like or is like, a firearm. Such an inference would be reasonable
without direct proof of operability.” Layton, supra at 844. Further, this
Court has long rejected claims that an inference of operability is
inappropriate where the Commonwealth does not recover a weapon. See
Commonwealth v. Yaple, 357 A.2d 617, 618 (Pa. Super. 1976) (rejecting
claim that evidence was insufficient to sustain VUFA conviction because
Commonwealth could not prove operability in absence of weapon).



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      Moreover, Appellant’s claim is, in essence, a contention that the

finder-of-fact should not have credited the testimony of Officer Momme that

he saw Appellant in possession of an operable gun.      (See Appellant’s Brief,

at 11-13). However, such an argument goes to the weight of the evidence,

not the sufficiency of the evidence. See Commonwealth v. W.H.M., Jr.,

932 A.2d 155, 160 (Pa. Super. 2007) (claim that jury should have believed

appellant’s version of event rather than that of victim goes to weight, not

sufficiency of evidence); Commonwealth v. Wilson, 825 A.2d 710, 713-14

(Pa. Super. 2003) (review of sufficiency of evidence does not include

assessment of credibility of testimony; such claim goes to weight of

evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa. Super.

1997) (credibility determinations are made by finder of fact and challenges

to those determinations go to weight, not sufficiency of evidence).

Accordingly, Appellant’s sufficiency of the evidence claim fails.

      In his second claim, Appellant argues that his conviction was against

the weight of the evidence because the police officers’ testimony was

inaccurate and their version of events not credible because a charge of

resisting arrest was dismissed at the preliminary hearing. (See Appellant’s

Brief, at 14-15). We disagree.

      Initially, we note that Appellant waived this claim because, other than

a single citation to boilerplate law, his argument is completely devoid of

citation to any legal authority and contains no citation to the record. See In


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re C.R., 113 A.3d 328, 335-36 (Pa. Super. 2015) (finding weight of

evidence claim waived where appellant failed to cite to any legal authority).

      In any event, the claim is without merit. Our scope and standard of

review of a weight of the evidence claim is as follows:

            The finder of fact is the exclusive judge of the weight of
      the evidence as the fact finder is free to believe all, part, or none
      of the evidence presented and determines the credibility of the
      witnesses.

             As an appellate court, we cannot substitute our judgment
      for that of the finder of fact. Therefore, we will reverse a jury’s
      verdict and grant a new trial only where the verdict is so
      contrary to the evidence as to shock one’s sense of justice. A
      verdict is said to be contrary to the evidence such that it shocks
      one’s sense of justice when the figure of Justice totters on her
      pedestal, or when the jury’s verdict, at the time of its rendition,
      causes the trial judge to lose his breath, temporarily, and causes
      him to almost fall from the bench, then it is truly shocking to the
      judicial conscience.

            Furthermore, where the trial court has ruled 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. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en

banc) (citation and internal quotation marks omitted).          “Thus, the trial

court’s denial of a motion for a new trial based on a weight of the evidence

claim is the least assailable of its rulings.” Commonwealth v. Diggs, 949

A.2d 873, 879-80 (Pa. 2008), cert. denied, 556 U.S. 1106 (2009) (citation

omitted). Lastly, the instant matter was a bench trial, and we have stated

that, “[w]e will respect a trial court’s findings with regard to the credibility

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and weight of the evidence [after a bench trial] unless the appellant can

show that the court’s determination was manifestly erroneous, arbitrary and

capricious[,] or flagrantly contrary to the evidence.” J.J. DeLuca Co., Inc.

v. Toll Naval Assocs., 56 A.3d 402, 410 (Pa. Super. 2012) (citation

omitted).

      Here, the trial court rejected Appellant’s weight of the evidence claim,

finding the testimony of the police “entirely reasonable and credible[.]”

(Trial Ct. Op., at 6).   We agree.   The record reflects that the trial court,

sitting as finder-of-fact credited the testimony of the police and did not

credit Appellant’s testimony. (See id.). The trial court was free to believe

the Commonwealth’s witnesses and to disbelieve the defense.              See

Commonwealth v. Griscavage, 517 A.2d 1256, 1259 (Pa. 1986). “[I]t is

for the fact-finder to make credibility determinations, and the finder of fact

may believe all, part, or none of a witness’s testimony.” Commonwealth

v. Lee, 956 A.2d 1024, 1029 (Pa. Super. 2008), appeal denied, 964 A.2d

894 (Pa. 2009) (citation omitted). Thus, even if Appellant had not waived

his weight of the evidence claim, it would be without merit.

      For the reasons discussed above, we find that Appellant’s claims are

either waived or meritless.      Accordingly, we affirm the judgment of

sentence.

      Judgment of sentence affirmed.

      Judge Lazarus joins the Memorandum.


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     Judge Bowes files a Concurring Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/2016




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