J-S18007-15




NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                    v.

JARVIS PAYTON,

                          Appellant                 No. 2583 EDA 2013


      Appeal from the Judgment of Sentence Entered August 9, 2013
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0013450-2012


BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                         FILED JUNE 17, 2015

      Appellant, Jarvis Payton, appeals from the judgment of sentence of

eight and a half (8½) to seventeen (17) years’ incarceration, followed by five

(5) years’ probation, imposed after he was convicted of persons not to

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

firearms on public streets or public property in Philadelphia.      Appellant

challenges the sufficiency of the evidence to sustain his convictions and

requests that this matter be remanded to the trial court for further

proceedings based on after-discovered evidence.       We conclude that the

sufficiency claim is without merit, but we remand for further proceedings.

      The trial court has set forth the facts which led to Appellant’s

convictions as follows:
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      On October 23, 2012, at approximately 8:45 p.m., Philadelphia
      Police Officer David O’Connor was on routine patrol with his
      partner on the 300 block of East Upsal Street when he observed
      a blue Ford Aerostar minivan that was being operated with a
      non-working brake light. After following the vehicle for one
      block, the officers stopped the vehicle for investigation. As
      Officer O’Connor exited the patrol car and approached the
      vehicle, he had a clear view inside the vehicle through the rear
      window. The area where the vehicle was stopped was well lit.
      Officer O’Connor observed three males inside. One male was
      located in the driver’s seat, one male was seated in the front
      passenger seat, and [Appellant] was seated in the middle row of
      the vehicle, in the seat directly behind the driver.

            As Officer O’Connor approached the vehicle, he observed
      [Appellant] making numerous movements. Specifically, Officer
      O’Connor observed [Appellant] reaching down and to his right
      with the upper half of his body shifting toward the passenger
      side. As [Appellant] was making these movements, he was
      looking back at Officer O’Connor. The two other occupants did
      not make any movements as Officer O’Connor approached the
      vehicle.

             Officer O’Connor initially attempted to have the passengers
      exit the vehicle through the side door in the middle of the
      vehicle. No one could open the middle side door, so all of the
      front passengers exited first and were taken to the patrol car
      while [Appellant] remained alone in the rear of the vehicle for a
      short period of time before exiting. Officer O’Connor returned to
      search the car and immediately found a silver handgun, loaded
      with eight live rounds.         The gun was located within the
      immediate reach of where [Appellant] was seated, i.e., on the
      floor next to the middle row passenger side seat where
      [Appellant] was seated. This is the same area in which Officer
      O’Connor previously saw [Appellant] reaching toward. Upon
      recovery of the gun, [Appellant] provided Officer O’Connor with
      a false name.

      At trial, [Appellant] testified that he was aware that a gun was
      recovered next to his seat in the same place where Officer
      O’Connor observed him reaching, but denied that he saw the
      gun. [Appellant] stipulated that he ha[d] a prior conviction in
      2005 for a crimen falsi [offense].

Trial Court Opinion (TCO), 5/16/14, at 1-2 (citations to the record omitted).

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        Based on this evidence presented at a non-jury trial on June 7, 2013,

Appellant was found guilty of one count each of persons not to possess

firearms,1 firearms not to be carried without a license,2 and carrying firearms

on public streets or public property in Philadelphia.3 On August 9, 2013, he

was sentenced by the court to eight and a half (8½) to seventeen (17)

years’ incarceration, followed by five (5) years’ probation. Appellant filed a

timely notice of appeal, as well as a timely concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), wherein Appellant

preserved his sufficiency claim.         In response, the trial court filed a Rule

1925(a) opinion addressing the sufficiency of the evidence. Subsequently,

Appellant waived his right to counsel, proceeded pro se on appeal,4 and filed

a motion to submit after-discovered evidence.            Said motion was denied

without prejudice by the trial court.            Therefore, Appellant additionally

presents the issue of after-discovered evidence on appeal.




____________________________________________


1
    Pursuant to 18 Pa.C.S. § 6105(a)(1).
2
    Pursuant to 18 Pa.C.S. § 6106(a)(1).
3
    Pursuant to 18 Pa.C.S. § 6108.
4
  On May 29, 2014, Appellant filed a motion to proceed on appeal pro se. A
Grazier hearing was held on October 9, 2014, whereby Appellant waived his
right to counsel and was granted leave to proceed pro se. Appellant’s Brief,
at 6. See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).




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      First, we address the merits of the sufficiency claim. Specifically,

Appellant presents the following issue for our review: “Did the trial court err

when it found the evidence sufficiently proved beyond a reasonable doubt

that … Appellant was in constructive possession of a firearm found on the

passenger side floor of a minivan in which he was a passenger with two

other occupants?” Appellant’s Brief, at 4.

      To begin, we note our standard of review for a challenge to the

sufficiency of the evidence:

      In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa.Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

      Each of the counts of which Appellant was convicted requires proof of

possession of a firearm. Where there is a lack of evidence of literal, physical

possession, “the Commonwealth may sustain its burden by showing

constructive possession.”      Commonwealth v. Harris, 397 A.2d 424, 429

(Pa. Super. 1979).

      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.


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      We have defined constructive possession as conscious dominion.
      We 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.

Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013) (quoting

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012)).

      Appellant    avers   that    the   Commonwealth      failed     to    prove    he

constructively possessed the firearm found on the floor of the vehicle at the

time of his arrest. Appellant alleges that the officers merely saw him moving

towards the right side of the vehicle but never actually saw him hold or drop

the firearm, Appellant’s Brief, at 15, and states “it is not logical to conclude

that [he] would have been able to see where the firearm was hidden on the

floor,” id. at 12, as Officer O’Connor needed “to use his flashlight to

illuminate the spot where the gun was found[,]” id. He further argues that

the other two occupants of the vehicle had equal access and “could … just as

easily have placed th[e] firearm on the floor.” Id. at 10. We disagree.

      In   support    of   his     argument,   Appellant     relies        heavily   on

Commonwealth v. Boatwright, 453 A.2d 1058 (Pa. Super. 1982), where

the defendant was seated in the front passenger seat of a parked vehicle,

accompanied by the driver and another passenger seated in the rear,

directly behind the driver.       As the officer in Boatwright approached the

vehicle, he observed the defendant’s body moving towards his left rear.

When the officer shined a light into the vehicle, he discovered a gun on the

left rear floor.   The Boatwright court found the evidence insufficient to


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prove constructive possession of the firearm where the only evidence was

the officer’s testimony that he saw the defendant move towards the left rear

of the vehicle where another passenger was also seated. Id. at 1059.

      A review of the evidence in the instant case discloses that Appellant’s

reliance on the decision in Boatwright is misplaced. Unlike in Boatwright,

there were no other occupants seated in the middle row where the firearm

was found.     TCO, at 2.      Furthermore, Officer O’Connor testified that

Appellant was the only occupant to make furtive movements as he

approached the car and the firearm was found in the same area towards

which Appellant had been observed bending and leaning.             Id. at 1-2.

Additionally, Appellant was left alone in the vehicle for a short period of time

prior to the discovery of the firearm. Id. at 2. Although Officer O’Connor

used a flashlight to conduct his search of the vehicle, the firearm was not

hidden and was within Appellant’s view. Id. at 4. Finally, we concur with

the Commonwealth that Appellant exhibited a consciousness of guilt when

he provided Officer O’Connor with a false name. Viewed in the light most

favorable to the Commonwealth as the verdict winner, we conclude that

there was sufficient evidence to support the trial court’s finding of

constructive possession and, therefore, Appellant’s sufficiency claim lacks

merit.

      Next, we address the question of whether this matter should be

remanded to the trial court, “for further proceedings based on after-

discovered evidence regarding the illegal searches and police misconduct by

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Officer   David    O’Connor,     the   prosecution[’]s    only   testifying   witness?”

Appellant’s Supplemental Brief, at 2.

       On October 20, 2014, directly following a grant of leave to proceed pro

se, Appellant filed a motion to submit after-discovered evidence pursuant to

Pa.R.Crim.P. 720(C).5        Having determined that Appellant has followed the

proper procedure to request a new trial, we now turn to the merits of his

request for relief.

       It has been well-established that in order to be granted a new trial on

the basis of after-discovered evidence:

       [A]ppellant must demonstrate that the evidence: (1) could not
       have been obtained prior to the conclusion of the trial by the
       exercise of reasonable diligence; (2) is not merely corroborative
       or cumulative; (3) will not be used solely to impeach the
       credibility of a witness; and (4) would likely result in a different
       verdict if a new trial were granted.

Commonwealth v. Perrin, 108 A.3d 50 (Pa. Super. 2015) (quoting

Commonwealth v. Montalvo, 986 A.2d 84, 109 (Pa. 2009)). Additionally,

“the   proposed       new   evidence    must     be   ‘producible   and   admissible.’”

Commonwealth           v.    Castro,     93    A.3d    818   (Pa.    2014)     (quoting

Commonwealth v. Chamberlain, 30 A.3d 381, 414 (Pa. 2011)).




____________________________________________


5
  “[A]fter-discovered evidence discovered during the direct appeal process
must be raised promptly during the direct appeal process, and should
include a request for a remand to the trial judge ….” Pa.R.C.P. 720,
Comment.



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       Appellant presents an article published by the Philadelphia Daily News

on June 12, 2014,6 which alleges that retired police officer, Herbert

Spellman, filed a civil rights lawsuit against Officer O’Connor and Officer

Momme, the same officers involved in Appellant’s arrest,7 for the unlawful

stop and frisk of his person based on his race. Although the lawsuit brought

by Spellman was still pending, and thus provides mere speculations, the

article also references another federal lawsuit filed by Aaron Bell, in which

Officer O’Connor was named a defendant.8 In Bell v. City of Philadelphia,

the plaintiff alleged he was unlawfully stopped and searched by Officer

O’Connor and his former partner, Officer Goshert.      The facts in Bell are

similar to the case before us, as Bell involved a traffic stop during which a

firearm was recovered from the plaintiff’s vehicle by Officer O’Connor. The

newspaper article reports that a jury verdict was entered in Bell, on May 29,

2014, awarding the plaintiff compensatory damages and punitive damages

____________________________________________


6
 Julie Shaw, Suit: Blue-on-blue stop was also white-on-black, Philadelphia
Daily News, June 12, 2014.
7
  Appellant’s convictions stemmed from a vehicle stop involving Officers
David O’Connor and Brad Momme. Officer Momme did not testify at trial.
Officer O’Connor was the prosecution’s sole testifying witness. Appellant’s
Supplemental Brief, at 4.
8
  See Appellant’s Supplemental Brief, Exhibit “A.” (where Appellant attaches
a docket for the Eastern District of Pennsylvania, Civil Action Case #: 2:12-
cv-02625-GP, Aaron L. Bell v. City of Philadelphia, Police Officer David
O’Connor, and Police Officer Colin Goshert).




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against each officer. In support of the allegations made in the article,

Appellant provides a copy of the court docket for the Bell case, Appellant’s

Supplemental Brief, Exhibit “A,” evidencing the fact that Officer O’Connor is

a named defendant in said case, as well as a memorandum opinion written

by the court in response to post-verdict motions.9 In its opinion, the court

overturned the count of municipal liability, but upheld Officer O’Connor’s

illegal search and false arrest verdicts and left the jury award undisturbed.

Appellant’s Reply Brief, Exhibit “A,” at 19-20.         Additionally, Appellant

produces an affidavit by Aaron Bell in which Bell attests to material facts of

his case and alleges that Officers O’Connor and Goshert fabricated a basis

for the unlawful stop in their police reports, searched Bell’s person and

vehicle without consent, and gave false testimony at trial. Appellant’s Reply

Brief, Exhibit “B,” at 1-3.

       The Commonwealth argues that Appellant is not entitled to an

evidentiary hearing because he has failed to produce any admissible
____________________________________________


9
   “In this suit under 42 U.S.C. § 1983, Aaron L. Bell alleged that the City of
Philadelphia (the “City”) and Police Officers David O’Connor and Colin
Goshert (the “Officers”) violated his Fourth Amendment rights through an
illegal stop (Count I), a false arrest (Count II), an illegal search (Count III),
malicious prosecution (Count IV), and the City’s adoption of a policy or
custom of permitting Fourth Amendment violations (Count V). … [T]he case
proceeded to trial. Mr. Bell, a layperson, represented himself. At trial, the
jury found for Mr. Bell on Counts II, III, and V, and awarded Mr. Bell
$100,000.00 in compensatory damages from all the Defendants (i.e., jointly
and severally) and $1,000.00 in punitive damages from the Officers. The
jury rendered defense verdicts on Counts I and IV.” Appellant’s Reply Brief,
Exhibit “A,” at 1.



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evidence, asserting that “[n]ewspaper articles are generally inadmissible to

prove the facts contained therein.”                Commonwealth’s Brief, at 8-9.

Generally, newspaper articles do not constitute evidence as they contain

inadmissible hearsay.        In Commonwealth v. Castro, 93 A.3d 818 (Pa.

2014),10 our Supreme Court addressed the issue of whether it is possible to

meet the test for after-discovered evidence where the defendant only relies

on a newspaper article. The Court concluded “[w]hile newspaper articles can

alert a party to the possible existence of evidence, the party must do more

than attach the article as establishing the evidence that will meet the four-

pronged test.” Id. at 827. While it declined to impose a strict requirement

of attaching affidavits or other offers of proof, the Court went on to hold that

a motion seeking an evidentiary hearing based on after-discovered evidence

“must, at the very least, describe the evidence that will be presented at the

hearing. Simply relying on conclusory accusations made by another, without

more, is insufficient to warrant a hearing.” Id.

       Here, Appellant does not merely rely on the newspaper article as his

basis to request a new trial.         The article initially alerted Appellant to the

existence of the Bell case and the possibility of additional evidence. While

the Court in Castro declined to strictly require affidavits or other offers of


____________________________________________


10
   See Castro, 93 A.3d at 829 n.11 (citing Commonwealth v. Saksek, 522
A.2d 70 (Pa. Super. 1987)) (upholding exclusion of newspaper article as
inadmissible hearsay).



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proof in support of a motion for a new trial based on after-discovered

evidence, Appellant has, in fact, provided an affidavit of a witness he intends

to use if granted a new trial, as well as a court docket and the opinion from

the trial court as other offers of proof. Furthermore, Appellant describes in

detail the evidence he intends to present at an evidentiary hearing.

Appellant’s Supplemental Brief, at 8; Appellant’s Reply Brief, at 7-10.

Finally, we note that the newspaper article produced by Appellant refers to a

jury verdict, not a mere investigation, arrest, or pending lawsuit. 11       We

conclude that Appellant has proffered sufficient evidence to satisfy the

requirements set forth in Castro.

       At an evidentiary hearing, Appellant will be required to show by a

preponderance of the evidence that each prong of the after-discovered

evidence test has been met in order for a new trial to be warranted.

Rivera, 939 A.2d at 359.          Reviewing the four prongs, it appears unlikely

that Appellant would have discovered the evidence before the conclusion of

his trial, as both the jury verdict in the Bell case and the publication of the

newspaper article did not occur until more than a year after Appellant’s
____________________________________________


11
   See Commonwealth v. Estepp, 17 A.3d 939 (Pa. Super. 2011) (where
we found newspaper articles were not sufficient to meet the test for after-
discovered evidence where the articles merely stated that the officer was
under investigation for misconduct, distinguishing Estepp from our decision
in Commonwealth v. Rivera, 939 A.2d 355 (Pa. Super. 2007), where the
appellant cited newspaper articles referencing an actual arrest and the case
was remanded for an evidentiary hearing based on after-discovered
evidence).



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conviction.      Second,     the   evidence    does    not   appear   to   be   merely

corroborative     or cumulative,       as Officer   O’Connor’s conduct was         not

questioned at trial, because Appellant had no basis to challenge the officer’s

credibility at the time.12     Moreover, we note that while the evidence may,

indeed, be used to impeach the credibility of Officer O’Connor, the evidence

will not solely be used for this purpose.             Appellant intends to use the

evidence to file a motion to suppress the evidence recovered from the

search.    Appellant’s Supplemental Brief, at 7.        Finally, the evidence could

likely result in a different outcome if a new trial were granted, because it

calls into question the character of Officer O’Connor, who was the only

witness to testify against Appellant at trial. The evidence may also be used

to establish that Officer O’Connor engaged in a pattern of unlawful stops and

falsifying reports.    This could form the basis for a motion to suppress the

firearm. Based on the information in the record, we conclude that Appellant

ostensively could satifsfy the four-prong test. However, procedure demands

that the trial court review the evidence and make this determination.

Rivera, 939 A.2d at 359.

       In Commonwealth v. Perrin, 108 A.3d 50 (Pa. Super 2015), the

proof of after-discovered evidence at issue was a document generated by an


____________________________________________


12
   See Rivera, 939 A.2d at 359 (where we concluded after-discovered
evidence was neither corroborative nor cumulative since at no time was the
veracity of the witness’ testimony questioned at trial).



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FBI agent detailing a conversation in which the key witness at Appellant’s

trial admitted that he perjured himself and that Appellant did not participate

in the crime. After concluding that the “evidence [was] even more pointed

toward Appellant’s innocence than the evidence at issue in Rivera and

Castro,” id. (emphasis omitted), we remanded the case to the trial court

for an evidentiary hearing. Similar to Perrin, we find it appropriate here,

where the Appellant has proffered more evidence than in Castro and has

sufficiently described the evidence he will offer at an evidentiary hearing, to

remand the case to allow Appellant to flesh-out his claim for a new trial

before the trial court.

      Judgment of sentence vacated.       Case remanded for an evidentiary

hearing consistent with this memorandum in order to determine if a new

trial is required based upon after-discovered evidence, and, if not, for the re-

imposition of sentence. Jurisdiction relinquished.

      Judge Mundy joins this memorandum.

      Judge Allen files a concurring and dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/17/2015




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