J-S69005-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                    v.

JAMALL JACKSON

                         Appellant                 No. 1599 WDA 2016


           Appeal from the Judgment of Sentence June 27, 2016
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0007067-2015


BEFORE: BOWES, RANSOM, JJ. and STEVENS P.J.E.*

MEMORANDUM BY BOWES, J.:                      FILED NOVEMBER 16, 2017

      Jamall Jackson appeals from the judgment of sentence of four to eight

years imprisonment followed by two years probation. Judgment of sentence

was imposed after a jury convicted him of possession of a firearm by a

prohibited person. We affirm.

      The jury’s conviction rests upon the following evidence adduced by the

Commonwealth.      At approximately 1:30 p.m. on May 8, 2015, Pittsburgh

Police received several 911 calls indicating that a firearm had been

discharged multiple times near the intersection of Sacramento Avenue and

Minton Street.   The shooter was described as a bearded African-American

man, who had fired shots at the feet of a woman just before they entered a

red car, which the assailant was driving.


* Former Justice specially assigned to the Superior Court.
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      Police Officer Jeffrey Brock arrived at the scene. Officer Brock found

no one and did not see blood, but he did retrieve eight shell casings from the

sidewalk and a grassy area near the described intersection, as well as a cell

phone owed by Jenna Cox, Appellant’s girlfriend.     While Officer Brock was

investigating the area, a bearded African-American male drove a red Impala

along Minton Street. Police unsuccessfully attempted to stop the vehicle in

question, which was found parked about .2 miles from the scene of the

shooting. The Impala was registered to Ms. Cox.

      Several days later, Officer Brock called Ms. Cox, who was evasive and

appeared frightened.     On May 13, 2015, Detective Dawn Mercurio called

Appelant, who agreed to come to the police station for an interview. After

being given his Miranda warnings, Appellant made a statement, which the

trial court described:

            [Appellant] told Detective Mercurio that he had been in a
      romantic relationship with Jenna Cox and that he had acted as a
      surrogate father for her five-year-old son. The natural father
      was incarcerated so he was acting in that individual’s place.
      [Appellant] told Detective Mercurio that on the 8th of May, he
      was angry at Cox because he had learned that Cox and the
      natural father of her five-year-old had been talking behind his
      back and that the natural father had recently been released from
      incarceration. [Appellant] found out that Cox had taken her son’s
      natural father to his son's school so that he could meet with the
      teachers and become more involved in his son's life. [Appellant]
      called Cox's cell phone and confirmed the fact that Cox was at
      her son's school with the child's natural father and he demanded
      that she leave him there and that she come pick him up at the
      300 block of Minton Street.




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            When Cox arrived, [Appellant] got in the passenger seat
     and he was very angry and pulled out a gun from his right
     pocket and set it on his lap while he was talking with her. The
     [g]un was a nine-millimeter Ruger handgun. He was yelling at
     her[,] telling her that he did not appreciate how deceitful she
     was and he demanded to know where the natural father was
     living because he needed to die. [Cox] then got out of the car
     and was walking down the street when [Appellant] followed her,
     telling her to get back in the car. When she refused to listen to
     him, he fired several rounds at her feet and she took off running.
     [Appellant] then got into the driver’s side of the vehicle and was
     pursuing her down Minton Street. He told her to get back into
     the car and if she did not, he was going to harm her. She got
     back into the car and then they drove away. [Appellant] then
     drove to his father’s house in McKees Rocks so that he could
     dispose of the firearm. After giving the firearm to his father,
     they drove back to Minton Street to look for the cell phone that
     Cox had dropped. [Appellant] told Detective Mercurio that his
     father still had the gun and then agreed to call his father to tell
     him that they at least wanted to obtain the weapon. His father
     agreed and then they rode to his father’s house and his father
     came out to the police car with the gun and magazine in a bag
     and gave it to Detective Mercurio.

Trial Court Opinion, 4/13/17, at 4-5.     The Commonwealth also presented

evidence that Appellant was previously convicted of three counts of robbery.

     In response to this Commonwealth evidence, Appellant’s father denied

receiving the gun from Appellant and claimed that he found it in some

bushes. Appellant also denied the entirety of the statement that he gave to

Detective Mercurio.

     The jury rejected Appellant’s proof and convicted him of the firearm’s

offense. After imposition of the above-described sentence, Appellant filed a

post-trial motion, which included a challenge to the weight of the evidence.




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This appeal followed denial of that motion. Appellant presents these issues

for our review:

      I.    Whether the evidence was insufficient as a matter of law to
            establish Appellant as possessing a firearm beyond a
            reasonable doubt, since no witness testified that Appellant
            was ever in actual possession of a firearm, no scientific or
            circumstantial evidence indicated Appellant possessed the
            firearm, and the only evidence regarding Appellant's
            possession of a firearm were the hearsay statements of Jena
            Cox introduced by Detective Mercurio as if these statements
            were made by Appellant during his alleged confession that
            was neither written or recorded.

      II.   Whether Appellant's conviction of person not to possess a
            firearm was against the weight of the evidence; where no
            witness testified that Appellant was in possession of the
            firearm; where no scientific or circumstantial evidence
            indicated Appellant possessed the firearm; where the only
            evidence regarding the element of possession of the firearm
            was hearsay testimony of an alleged confession made by
            Appellant; where Appellant's confession was not recorded,
            reduced to writing, or adopted by Appellant in any part.

      III. Whether trial counsel was ineffective for failing to prepare or
           demonstrate a sufficient understanding of the evidence and
           ultimately failing to object to the hearsay statements of Jena
           Cox introduced by Detective Mercurio as the Appellant's
           alleged confession.

      IV. Whether the trial court's denial of appellant's motion for
          mistrial was an abuse of discretion where Appellant sought
          to terminate trial counsel's representation for the
          aforementioned ineffective assistance of counsel.

Appellant’s brief at 5.

      Appellant first challenges the sufficiency of the evidence supporting his

conviction.   Since a challenge to the sufficiency of the evidence raises a




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question of law, our standard of review is de novo and our scope of review is

plenary. Commonwealth v. Giron, 155 A.3d 635, 638 (Pa.Super. 2017).

             The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to 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. Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      trier of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Fitzpatrick, 159 A.3d 562, 567 (Pa.Super. 2017)

(citation omitted).

      Appellant was convicted of 18 Pa.C.S. § 6105(a)(1), persons not to

possess, use, manufacture, control, sell or transfer firearms, which states:

      (1) A person who has been convicted of an offense enumerated
      in subsection (b), within or without this Commonwealth,
      regardless of the length of sentence or whose conduct meets the
      criteria in subsection (c) shall not possess, use, control, sell,
      transfer or manufacture or obtain a license to possess, use,
      control, sell, transfer or manufacture a firearm in this
      Commonwealth.




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18 Pa.C.S. § 6105(a)(1).      One of the enumerated offenses is robbery. 18

Pa.C.S. § 6105(b).     Thus, § 6105(a)(1) essentially contains two elements,

that the defendant (1) possessed a firearm and (2) was convicted of an

enumerated offense. See Commonwealth v. Jemison, 98 A.3d 1254 (Pa.

2014); Commonwealth v. Antidormi, 84 A.3d 736 (Pa.Super. 2014).

      Herein, Appellant does not contest that he was convicted of an

enumerated offense, and the Commonwealth established that he had been

convicted of three counts of robbery prior to the incident at issue herein. On

appeal, Appellant challenges that the Commonwealth proved, beyond a

reasonable doubt, that he was in possession of a firearm.            Although

Appellant confessed to Detective Mercurio that he had a gun in possession

on the day in question, Appellant suggests that his confession must be

discounted since it was not written or recorded, even though it could have

been. As clearly articulated above, the jury assesses the credibility of the

trial witnesses.    Detective Mercurio outlined the contents of Appellant’s

statement, and the jury was free to credit her testimony, regardless of

whether Appellant’s statement was written or recorded.      Hence, we reject

Appellant’s first position.

      Appellant next raises a challenge to the weight of the evidence, which

is identical to his claim that there was insufficient evidence to support the

verdict.   He suggests that the jury should not have credited Detective

Mercurio’s report of the contents of his confession since he did not sign a


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written confession and since it was not recorded. Our standard of review in

this context is settled:

             In assessing a claim that the verdict was against the
      weight of the evidence, this Court will not substitute its
      judgment for that of the factfinder, which is free to assess the
      credibility of witnesses and to believe all, part, or none of the
      evidence presented. Commonwealth v. DeJesus, 580 Pa. 303,
      860 A.2d 102 (2004); Commonwealth v. Johnson, 542 Pa.
      384, 668 A.2d 97, 101 (1995) (“An appellate court is barred
      from substituting its judgment for that of the finder of fact.”
      (citing Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d
      1203, 1206 (1982)).

                   “When the challenge to the weight of the
            evidence is predicated on the credibility of trial
            testimony, our review of the trial court's decision is
            extremely limited. Generally, unless the evidence is
            so unreliable and/or contradictory as to make any
            verdict based thereon pure conjecture, these types
            of claims are not cognizable on appellate review.”
            Commonwealth v. Rossetti, 863 A.2d 1185, 1191
            (Pa. Super. 2004) (citation omitted). “Moreover,
            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.” Commonwealth v.
            Champney, 574 Pa. 435, 832 A.2d 403, 408
            (2003). “Rather, appellate review is limited to
            whether the trial court palpably abused its discretion
            in ruling on the weight claim.” Id.

Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007).

Commonwealth v. Fortson, 165 A.3d 10, 16 (Pa.Super. 2017).

      Additionally,   resolution of   a weight-of-the-evidence    challenge   is

assigned to the discretion of the trial court so that this Court does not review

such an allegation in the first instance. Commonwealth v. Storey, 167

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A.3d 750, 761 (Pa.Super. 2017).       Instead, we consider whether the trial

court abused the discretion in rejecting a contention that the verdict is

against the weight of the evidence.      Id. The trial court should credit an

averment that the verdict is against the weight of evidence only if the

verdict is so contrary to the evidence as to shock one’s sense of justice. Id.

      In this case, the jury was permitted to accept Detective Mercurio’s

testimony about the statement that Appellant gave to her. We conclude that

the trial court did not abuse its discretion in concluding that Appellant’s

conviction was not so against the weight of the evidence as to shock the trial

court’s sense of justice. We therefore reject Appellant’s second position.

      Appellant’s third issue concerns trial counsel’s ineffectiveness. A claim

of ineffective assistance of counsel may not be addressed on direct appeal,

but must be deferred to collateral review. Commonwealth v. Grant, 813

A.2d 726 (Pa. 2002). Hence, we decline to examine Appellant’s third issue,

which he can raise in a PCRA proceeding.

      Appellant’s final claimed error is that the trial court should have

granted counsel’s request for a mistrial, which counsel sought on the basis

that his relationship with Appellant had deteriorated to the point that counsel

could no longer effectively represent Appellant.    In the criminal context, a

mistrial is declared in order to “to eliminate the negative effect wrought

upon a defendant when prejudicial elements are injected into the case or

otherwise discovered at trial.” Commonwealth v. Cole, 167 A.3d 49, 73

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(Pa.Super. 2017). A mistrial is warranted when the trial process is tainted,

depriving the defendant of a fair trial.   Id. The trial court “is vested with

discretion to grant a mistrial whenever the alleged prejudicial event may

reasonably be said to deprive the defendant of a fair and impartial trial.” Id.

Mistrial can be granted only when “misconduct or prejudicial error actually

occurred,” and, if it did, a new trial is needed to avoid the resulting

prejudice. Id.

      In this case, there was no prejudicial element introduced at trial.

There was no improper evidence or remarks presented to the jury.

Appellant’s mistrial request was predicated solely upon the manner in which

counsel was conducting trial. Simply put, there was no ground upon which

a mistrial could have been granted because there was no trial error.

However, as noted, claims of ineffective assistance of counsel must be

deferred to collateral review. Appellant is free to present any issue involving

how he was represented at trial in a timely collateral proceeding. Hence, we

reject this final claim.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

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     Date: 11/16/2017




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