J-S26022-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                       Appellee          :
                                         :
             v.                          :
                                         :
MONROE YOUNG,                            :
                                         :
                       Appellant         :    No. 1663 EDA 2013


      Appeal from the Judgment of Sentence Entered January 3, 2013,
           In the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No. CP-51-CR-0009297-2010.


BEFORE: BENDER, P.J.E., SHOGAN and FITZGERALD*, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED SEPTEMBER 29, 2014

     Appellant, Monroe Young, appeals from the judgment of sentence

entered following his convictions of one count each of possession with intent




possession of a controlled substance, possessing an instrument of crime



We affirm.

     The trial court summarized the facts of this case as follows:

           On June 2, 2010, Police Officer Cruz, Police Officer Turner,
     and Police Officer Kelly received information from another
     investigation which led them to the area of 3300 North 22 nd
     Street, in the city and county of Philadelphia. N.T., 9/11/12
     p.
     who had been used in over 50 investigations involving narcotics,

____________________
*Former Justice specially assigned to the Superior Court.
J-S26022-14



     which had produced over 50 arrests. N.T., 9/11/12 pp. 8-10.
     The CI was searched for contraband and currency.           N.T.,
     9/11/12 p. 11. Once cleared, the CI was supplied $40.00 in pre-
     recorded buy money and the CI placed a call to 267-595-XXXX,
     which the CI knew
     9/11/12 p. 11. [Appellant] answered the call and instructed the
     CI to proceed to a property located on [the] 3300 block of North
     22nd Street. N.T., 9/11/12 p. 12.

           The police and the CI arrived at the location sometime
     between 3:15 p.m. and 6:15 p.m. N.T., 9/11/12 p. 13. The CI
     was released in the area and met up with [Appellant], engaging
     in a brief conversation lasting approximately one minute, and
     then handing [Appellant] the prerecorded buy money. N.T.,
     9/11/12 pp. 13-14. Officer Cruz observed the entire transaction
     from approximately 35-40 feet away in his vehicle.         N.T.,
     9/11/12 pp. 13, 27 and N.T, 9/12/12 p. 22. As Officer Cruz
     continued to watch, the CI followed [Appellant] to 3325 North
     22nd Street where they both entered the property. N.T., 9/11/12
     pp. 13-14. They remained inside the property for approximately
     two minutes and then exited the property together.         N.T.,
     9/11/12 pp. 14-15. [Appellant] was wearing a white t-shirt, blue
     jean shorts that came to the knee, and orange and white shell
     top sneakers. N.T., 9/11/12 p. 40. The CI left the area and met
     with police at a predetermined location. The CI gave police five
     black packets containing crack cocaine that [Appellant] had sold
     him in exchange for the pre-recorded buy money. N.T., 9/11/12
     p. 13, 30.

            On June 3, 2010, the police returned to 3325 North 22nd
     Street with CI 01195 sometime between 2:15 p.m. and
     5:45 p.m. N.T., p. 15, 27. [Appellant] was sitting on the porch.
     N.T., 9/11/12 p. 16. [Appellant] was wearing a white t-shirt,
     blue jean shorts that came to the knee, and orange and white
     shell top sneakers. N.T., 9/11/12 p. 40. This was the identical
     clothing and shoes [Appellant] wore the previous day. N.T.,
     9/11/12 p. 40.       The CI was searched for currency and
     contraband and given $20.00 pre-recorded buy money. N.T.,
     9/11/12 p. 15. The CI went to 3325 North 22nd Street, engaged
     in a brief conversation with [Appellant] sitting on the porch, and
     handed [Appellant] the pre-recorded buy money. N.T., 9/11/12
     p. 16. [Appellant] entered the property and remained inside for
     a few minutes. N.T., 9/11/12 p. 16. [Appellant] exited the


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J-S26022-14



     property and handed the CI unidentified small objects. N.T.,
     9/11/12 p. 16. The CI left the area and met with police. N.T.,
     9/11/12 p. 16. The CI was searched and possessed four clear
     plastic packets containing crack cocaine. N.T., 9/11/12 p. 17.
     Officer Cruz observed this transaction. N.T., 9/11/12 pp. 34-36.
     Based on these observations, the police applied and obtained a
     search warrant for 3325 North 22nd Street. N.T., 9/11/12,
     pp. 17, 18.

           On June 4, 2010, the police set up surveillance at 3325
     North 22nd Street. N.T., 9/11/12 p. 18. At approximately
     3:55 p.m., [Appellant] arrived in a burgundy Mercury Sable with
     a Pennsylvania license plate. N.T., 9/11/12 p. 18. Defendant
     wore the same clothing from June 2nd and June 3rd. N.T.,
     9/11/12 p. 43. [Appellant] and an unidentified black female
     exited the vehicle. N.T., 9/11/12 p. 18 and N.T., 9/12/12 p. 65.
     [Appellant] used a key to enter the property. N.T., 9/11/12
     p. 18. The police arrived soon after to execute the search
     warrant and knocked on the door. N.T., 9/11/12 p. 19. An

     window of the property. N.T., 9/11/12 p. 19 and N.T., 9/12/12
     pp. 24-25.     The police entered the property and observed
     [Appellant] exiting Apartment B located on the first floor towards
     the rear of the row home. N.T., 9/11/12., pp. 19, 20, 38.
     [Appellant] was stopped midexit. N.T., 9/11/12 pp. 20, 21, 38
     and N.T., 9/12/12 p. 43. Recovered from his person were: two
     keys, one that opened the front door of the house and the other
     that opened [A]partment B, and a cell phone.1 N.T., 9/11/12
     pp. 20, 21, 38 and N.T., 9/12/12 p. 43. The police called
     the same telephone number used by the CI on June 2, 2010,
     267-595-

          1
                                               ave him the
          color-coded keys that unlocked the front door of
          3325 North 22nd Street and Apartment B. N.T.,
          9/12/12 pp. 101-103.

           The police entered Apartment B and saw an open can on
     the kitchen table. N.T., 9/11/12 p. 22. The can contained one
     clear Ziploc packet with red markings on it that contained three
     black packets and forty clear packets (identical to the packets
     from the purchases of June 2nd and June 3rd 2010), all containing


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J-S26022-14



      crack cocaine. N.T., 9/11/12 p. 22 and 9/12/12 pp. 28-29. The
      can also contained one clear Ziploc packet with spades on it
      containing bulk crack cocaine. N.T., 9/11/12 p. 22. [Appellant]

      in the apartment. N.T., 9/12/12 pp. 104,106. On the bed was
      one clear Ziploc packet with purple markings with the words

      N.T., 9/12/12 p. 29. The police recovered various items in and
      on the dresser in the apartment, including a letter with the name
      of Country Black, a letter in the name of Monroe Young, a
      Pennsylvania identification card with the name Monroe Young
      Junior, a semi-automatic handgun with an obliterated serial
      number, bullets, and $303.00 in United States currency. N.T.,
      9/11/12 p. 22, 24 and N.T., 9/12/12 pp. 30-31, 41-42. The
      correspondence was addressed to 3419 North 22nd Street. N.T.,
      9/12/12 pp. 41-42.2       The handgun and the bullets were
      recovered from the same drawer of the dresser. N.T., 9/12/12
      p. 35. A deed with the address of 3325 North 22nd Street listing
      the names of Anthony Floyd and Monroe Young was found on the
      dresser.3 N.T., 9/12/12 pp. 37-41. There was male clothing
      observed inside the drawers of the dresser. N.T., 9/11/12 p. 24.
      No other person stayed with [Appellant] in the apartment. N.T.,
      9/12/12 pp. 106-107.
            2

            at both 3419 North 22nd Street with his mother and
            at 3325 North 22nd Street Apartment B.        N.T.,
            9/12/12 pp. 92-107.
            3
              The deed was identified as a lease during the
            motions hearing on September 11, 2012.              This
            misidentification was clarified at trial. N.T., 9/12/12
            pp. 36-41, 50.

Trial Court Opinion, 12/10/13, at 3-6 (footnotes in original).

      On September 12, 2012, at the conclusion of a nonjury trial, Appellant

was convicted of the crimes stated above.       On January 3, 2013, the trial

court sentenced Appellant to serve concurrent terms of incarceration of five

to ten years for the conviction of PWID, two to five years for the conviction


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J-S26022-14



of VUFA, and one and one-half to three years for the conviction of criminal

use of a communication facility.   No further penalty was imposed on the

convictions of possession of controlled substance, PIC, and possession of a

                                                                  -sentence

motion, which included a challenge to the weight of the evidence, was

denied by operation of law. This appeal followed.

     Appellant presents the following issues for our review:

     1)    Whether the evidence presented at trial was sufficient to
     support
     Mother appeared in court and testified that she found the gun,
     placed it in a hidden area of the house, and failed to inform
     Appellant that the gun was inside the house?

     2)    Whether the verdict was against the weight of the
     evidence shocks a sense of justice where the Appellant was
     convicted of possessory weapons and drug offenses where the
     evidence showed that he was not in control of the weapon and
     that he knew nothing of its existence or placement inside the
     house?

     3)    Whether the sentence imposed constituted an abuse of
     discretion where it was harsh, excessive and illegal?



     Appellant first argues that there was insufficient evidence to support

his convictions relating to the firearm. He contends that his convictions of

firearms violations and PIC require that he be in possession of a weapon.




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J-S26022-14



Appellant asserts that the evidence did not establish that he was in either

actual or constructive possession of the weapon.1

       When reviewing challenges to the sufficiency of the evidence, we

evaluate the record in the light most favorable to the Commonwealth as

verdict winner, giving the prosecution the benefit of all reasonable inferences

to be drawn from the evidence.      Commonwealth v. Duncan, 932 A.2d



sufficient to support the verdict when it establishes each material element of

the crime charged and the commission thereof by the accused, beyond a

                      Id. (quoting Commonwealth v. Brewer, 876 A.2d


1
    We note that there is some error in the argument portion of Appellan


16. We will consider this to be a clerical error and address the arguments as
a single issue. However, to the extent that Appellant includes a discussion
challenging the sufficiency of the evidence concerning his conviction of
                              -16, we observe that such claim is waived for
purposes of appeal because Appellant did not include that specific issue in
his Pa.R.A.P. 1925(b) statement. See Commonwealth v. Lord, 719 A.2d
306, 308 (Pa. 1998) (holding that where a trial court directs a defendant to
file a concise statement pursuant to Pa.R.A.P. 1925, any issues not raised in
that statement shall be waived). See also Commonwealth v. Mattison,
82 A.3d 386, 393 (Pa. 2013) (waiving sufficiency of the evidence challenges
to particular convictions where the appellant did not raise those convictions
in his Pa.R.A.P. 1925(b) statement). Moreover, Appellant did not include in

evidence with regard to his conviction of PWID and, thus, waived the issue
                                             See Commonwealth v. Bryant,
57 A.3d 191, 196 n.7 (Pa. Super. 2012) (citing Pa.R.A.P. 2116(a) and
concluding that challenges to the weight and sufficiency of the evidence of
particular convictions were waived for failure to include them in Statement of
the Questions in appellate brief).


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J-S26022-14



1029, 1032 (Pa. Super. 2005)).      However, the Commonwealth need not

establish guilt to a mathematical certainty, and it may sustain its burden by

means of wholly circumstantial evidence. Id. In addition, this Court may

not substitute its judgment for that of the factfinder, and where the record

contains support for the convictions, they may not be disturbed. Id. Lastly,

we note that the finder of fact is free to believe some, all, or none of the

evidence presented.   Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa.

Super. 2006).

     Because Appellant was not in physical possession of the firearm in

question, the Commonwealth was required to establish that he had

constructive possession of the seized item to support his convictions.   We

are mindful that where the contraband a person is charged with possessing

is not found on the person of the defendant, the Commonwealth is required

to prove constructive possession. Commonwealth v. Kirkland, 831 A.2d

607, 611 (Pa. Super. 2003). Constructive possession is an inference arising

from a set of facts that possession of the contraband was more likely than

not. Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004).

     In addition, constructive possession can be proven by circumstantial



                                                        Commonwealth v.

Clark, 746 A.2d 1128, 1136 (Pa. Super. 2000) (quoting Commonwealth v.




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J-S26022-14



Haskins, 677 A.2d 328, 330 (Pa. Super. 1996)). Moreover, we have held

that circumstantial evidence is reviewed by the same standard as direct

evidence

as the combination of the evidence links the accused to the crime beyond a

                     Commonwealth v. Johnson, 818 A.2d 514, 516 (Pa.

Super. 2003) (citations omitted).



establish his possession of the firearm beyond a reasonable doubt.      Our

review of the record, in the light most favorable to the Commonwealth,

reflects that Appellant had the intent and ability to control the firearm.

Officer Mario Cruz, a twenty-two-year veteran of the Philadelphia Police

Department, testified that on June 4, 2010, he executed a search warrant at

3325 North 22nd Street. N.T., 9/12/12, at 19-23. As the officers arrived at

Apartment B, within the building, Appellant opened the door and was exiting

the apartment. Id. at 25. Officer Cruz explained that, while searching the

apartment, the officers recovered a semiautomatic handgun with an

obliterated serial number from a dresser drawer in the bedroom. Id. at 31-

35, 48.    Officer Cruz further testified that other items were found in the

bedroom dresser, including a deed to the residence at 3325 North 22nd




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J-S26022-14



                    Id. at 35-43.   Officer Cruz also stated that the police

recovere

door of the building and the door to Apartment B. Id. at 43. This evidence,

viewed in the light most favorable to the Commonwealth, although

circumstantial, established that Appellant was in constructive possession of



present sufficient evidence to prove constructive possession of the firearm

for the crimes of VUFA, PIC, and possession of a firearm with altered

manufac

     Appellant next raises a claim challenging the weight of the evidence.

In the argument portion of his appellate brief, Appellant solely challenges

whether the weight of the evidence supported his firearms convictions.

Appellant fails to make any argument pertaining to the narcotics offenses.



          The determination of whether the verdict was against the
     weight of the evidence rests with the trial court. Where the

     justice then an award of a new trial is imperative so that right
                                                   Commonwealth
     v. Ragan, 439 Pa. Super. 337, 653 A.2d 1286 (1995); citing
     Thompson vs. City of Philadelphia, 507 Pa. 592, 493 A.2d
     669 (1985).

          The evidence failed to even circumstantially establish
     beyond a reasonable doubt that Appellant had knowledge of the
     gun or that he intended to use the gun for criminal purposes.
     The evidence viewed in a light favorable to the Commonwealth
     at most suggested that Appellant may have known of the gun.



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J-S26022-14



      house years earlier, that the gun was old and dusty, and that
      she placed [it] in a dresser drawer. N.T., 09/12/2012, 83-85.

            The totality of the circumstances demand that Appellant be
      granted a new trial. The Commonwealth was required to prove
      every element, i.e., specifically possession, beyond a reasonable
      doubt. To permit the verdicts to stand for the PIC and VUFA
      charges would result in a miscarriage of justice. Appellant seeks


      and VUFA charges to be set aside and be resentenced.

                         -20.   Thus, we must conclude that Appellant has

abandoned any weight of the evidence argument with regard to the narcotics

convictions.      Accordingly, we address only the weight of the evidence

pertaining to the firearms convictions.

      We use the following standard of review in addressing a weight of the

evidence claim:

             Our scope of review for such a claim is very narrow. The
      determination of whether to grant a new trial because the
      verdict is against the weight of the evidence rests within the
      discretion of the trial court, and we will not disturb that decision
      absent an abuse of discretion. Where issues of credibility and
      weight of the evidence are concerned, it is not the function of
      the appellate court to substitute its judgment based on a cold
      record for that of the trial court. The weight to be accorded
      conflicting evidence is exclusively for the fact finder, whose
      findings will not be disturbed on appeal if they are supported by
      the record. A claim that the evidence presented at trial was
      contradictory and unable to support the verdict requires the
      grant of a new trial only when the verdict is so contrary to the


Commonwealth v. Young, 692 A.2d 1112, 1114 (Pa. Super. 1997)

(citations omitted).



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            It must be emphasized that it is not for this Court or any
      appellate court to view the evidence as if it was the jury. 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.

Commonwealth v. Griffin, 684 A.2d 589, 597 (Pa. Super. 1996). Thus,



exercise of discretion, not a review of the underlying question of whether the

verdict is against the weight of the evidence. Commonwealth v. Widmer,

744 A.2d 745, 753 (Pa. 2000).

      Our review of the record reflects that the trial court addressed



challenge to the sufficiency of the evidence claim raised in the preceding

issue, and determined that it lacked merit.             See Trial Court Opinion,

12/10/13, at 9-

the   evidence    presented   at   trial   plainly   established   that   [Appellant]

                                           Id. at 9.     The trial court ultimately

concluded the following:

             The Court, as factfinder, credited the testimony of the
      police officers, along with the evidence presented at trial, over
      the testimony presented by [Appellant]. Because the evidence
      fully supported the verdict, the Court did not abuse its discretion


Id. at 10.

      Similarly, our review of the record reflects that the Commonwealth




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J-S26022-14



the firearm in question.   N.T., 9/12/12, at 19-23.     Here, the trial court,

sitting as the finder of fact, was free to believe all, part, or none of the

evidence against Appellant.     The trial judge weighed the evidence and

concluded Appellant committed the crimes in question.             We decline



evidence.   Accordingly, we conclude that the trial court did not abuse its



merit.

      In his final issue, Appellant argues that the trial court erred when it

imposed a mandatory minimum sentence of five years of incarceration,

pursuant to 42 Pa.C.S.A. § 9712.1, for his conviction of PWID.       Appellant

again asserts that he was not in constructive possession of the firearm, and

therefore a sentence pursuant to section 9712.1 is illegal.

      Application of a mandatory minimum sentence gives rise to illegal

sentence concerns, even where the sentence is within the statutory limits.

Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013).2

relating to the legality of a sentence are questions of law[; as a result, o]ur

standard of review over such questions is de novo, and our scope of review


2
  We note that in Commonwealth v. Watley, 81 A.3d 108 (Pa. Super.
2013) (en banc), this Court recognized that many mandatory minimum
statutes in Pennsylvania are no longer constitutional based on Alleyne v.
United States, ___ U.S. ___, 133 S.Ct. 2151 (2013). Alleyne requires
facts increasing a sentencing floor, unrelated to prior convictions, to be
established beyond a reasonable doubt.


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J-S26022-14



              Commonwealth v. Delvalle, 74 A.3d 1081, 1087 (Pa. Super.

2013) (citations omitted).

      The relevant portion of the statute, requiring the imposition of a

mandatory minimum sentence, provides as follows:

      § 9712.1. Sentences for certain drug offenses committed
      with firearms.

      (a) Mandatory sentence.--Any person who is convicted of a
      violation of section 13(a)(30) of the . . . Controlled Substance,
      Drug, Device and Cosmetic Act, when at the time of the offense
                                                           in physical
      possession or control of a firearm, whether visible, concealed

                                  in close proximity to the controlled
      substance, shall likewise be sentenced to a minimum sentence
      of at least five years of total confinement.

42 Pa.C.S.A. § 9712.1(a) (footnote omitted; emphasis added).

      In Commonwealth v. Hanson, 82 A.3d 1023 (Pa. 2013), our

Supreme Court interpreted the meaning behind physical possession and

control in Section 9712.1(a), and stated the following:

      [I]t is clear enough that, in prescribing a mandatory minimum

      connection with PWID, the Legislature intended to address    the
      actual or constructive exercise of power over a weapon, as   the
      Commonwealth contends.          The requirement favored       by
      Appellant immediate and direct physical accessibility to     the
      firearm is in tension with the guidance
      face.

            We do agree with Appellant, however, that an overt


      without knowledge (as, for example, a weapon might
      surreptitiously be slipped into a bag carried by the defendant),


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J-S26022-14



      the longstanding understanding of constructive possession
      and/or constructive control incorporates a scienter requirement.
      Consistent with the rule of lenity, we find that such requisite
      should pertain in the context of mandatory sentencing as well.

      control   is     appropriate;   our   main    difference   with   the

      there is no need to make the scienter requirement overt.

            Accordingly,    we     hold     that,   for   purposes    of
      Section
      knowing exercise of power over a weapon, which may be proven
      through evidence of a direct, physical association between the
      defendant and the weapon or evidence of constructive control.
      Constructive control, in this setting, an analogue to constructive
      possession, entails the ability to exercise a conscious dominion
      and the intent to do so.

Hanson, 83 A.3d at 1036-1037.

      As discussed previously in this Memorandum, Appellant proceeded in a

nonjury trial and evidence of the constructive possession of the firearm was

introduced at trial.    In this respect, the trial court, sitting as the finder of

fact, found that Appellant constructively possessed the gun in the dresser.

Trial Court Opinion, 12/10/13, at 7-9.          Thus, the trial court, in finding

Appellant guilty of the firearm charges, found beyond a reasonable doubt

that Appellant constructively possessed the firearm, which is an analogue to

constructive    control,    thereby   triggering    the   mandatory     minimum.



      Judgment of sentence affirmed.




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J-S26022-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/29/2014




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