J-S81021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    TERRELL LEE DOUGLAS

                             Appellant                No. 995 MDA 2017


         Appeal from the Judgment of Sentence imposed May 16, 2017
                 In the Court of Common Pleas of Berks County
              Criminal Division at No: CP-06-CR-0004313-2016


BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.;                           FILED MARCH 27, 2018

        Appellant, Terrell Lee Douglas, appeals from the judgment of sentence

imposed on May 16, 2017 by the Court of Common Pleas of Berks County.

Appellant argues the trial court abused its discretion in denying his weight of

the evidence claim. Upon review, we affirm.

        The relevant factual background can be summarized as follows.        On

September 12, 2016, Berks County Adult Probation officers went to 717 Locust

Street in Reading to conduct a home visit on Lidia Burgos, a parolee who lived

at that address, on the third floor of the residence. Once inside the residence,

the officers could smell burnt marijuana when approaching the second floor.

When they entered Burgos’ apartment, they discovered Burgos’ boyfriend, the

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*   Retired Senior Judge assigned to the Superior Court.
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Appellant, lying in a bed. One of the officers recognized Appellant as a state

parole violator. After confirming he had an outstanding state parole warrant,

Appellant was taken into custody and removed from the residence.

      The officers then conducted a search of the apartment. In the process,

they found handgun ammunition on the floor and a handgun in between the

mattress and the box spring of the bed on which Appellant had been lying.

They also found a cell phone, a suitcase containing male clothing, and two

letters, one from Appellant to Burgos and one from the Domestic Relations

Sections of the Berks County Services Center to Appellant.

      Subsequently, Appellant was taken to the police station where he was

interrogated. He confessed that the handgun and the ammunition found on

the third floor of the apartment belonged to him. It is undisputed Appellant’s

several prior felony convictions prevented him from legally possessing a

handgun.

      At trial, Appellant testified that the handgun belonged to a friend who

had passed away.      He also explained that his prior confession to the

interrogating officers was false and was offered to protect his pregnant

girlfriend, Burgos, from consequences of violating parole. He also added that

he recanted his confession because it was unfair that he should suffer the

consequences of Burgos’ actions.

      On May 16, 2017, a jury convicted Appellant [] of [p]ersons not
      to [p]ossess, [u]se, [m]anufacture, [c]ontrol, [s]ell, or [t]ransfer
      [f]irearms. That day, Appellant received a sentence of five (5) to
      ten (10) years of incarceration. Following sentencing[,] Appellant


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      filed a post-sentence motion on May 26, 2017. [The trial court]
      denied this motion on May 30, 2017.

Trial Court Opinion, 8/28/17, at 1.

      As noted above, Appellant raises a weight of the evidence claim.

Specifically, Appellant argues the trial court abused its discretion in denying

his weight of the evidence claim because: (i) there was no evidence Appellant

had actual possession of the weapon; (ii) there was no DNA or fingerprints

evidence tying Appellant to the weapon; (iii) the trial court did not believe he

did not live in the residence where the weapon was found; (iv) the trial court

did not believe that the weapon belonged to a friend; and (v) the trial court

should have given more weight to his testimony at trial (negating any

connection to the weapon) over his confession to the possession of the weapon

given to the officers at the time of the investigation.           We disagree.

Accordingly, we affirm the judgment of sentence.

      In Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000), our Supreme

Court explained:

      An allegation that the verdict is against the weight of the evidence
      is addressed to the discretion of the trial court. A new trial should
      not be granted because of a mere conflict in the testimony or
      because the judge on the same facts would have arrived at a
      different conclusion. A trial judge must do more than reassess
      the credibility of the witnesses and allege that he would not have
      assented to the verdict if he were a juror. Trial judges, in
      reviewing a claim that the verdict is against the weight of the
      evidence do not sit as the thirteenth juror. Rather, the role of the
      trial judge is to determine that 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. at 751-52 (internal citations and quotation marks omitted).

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      On review, an appellate court does not substitute its judgment for that

of the finder of fact and consider the underlying question of whether the

verdict is against the weight of the evidence, but, rather, determines only

whether the trial court abused its discretion in making its determination. Id.

at 753.

      The trial court addressed Appellant’s weight of the evidence claim as

follows:

      At trial, [an investigating officer] testified that he discovered a
      suitcase with mens [sic] clothing, [] Appellant’s cell phone, and
      two letters that were either to or from Appellant within the
      residence. The jury from this testimony was free to conclude that
      Appellant was staying in the house for an extended period of time.
      This testimony was corroborated by other officers testifying that
      Appellant was found lying on top of a mattress – the gun was
      under the mattress – in the room where the gun and ammunition
      were found. Considering this testimony, a reasonable juror could
      have concluded that Appellant possessed the gun.

      Additionally, the jury was free to believe all the statements of the
      owner of the residence, [], were incredible. She clearly had
      motive to fabricate, as her own son was a close friend of Appellant.
      Moreover, a reasonable juror would have deducted that her
      testimony concerning the ownership of the gun was clearly false.
      She testified that her son’s firearm had pearl grips, while in fact
      the discovered gun had wooden grips, making her explanation as
      to why the firearm was in the bedroom incredible. It follows that
      the jury was free to conclude that she was false in all her
      statements.

      Furthermore, the lack of DNA and fingerprint evidence was
      accurately and adequately explained to the jury. An expert
      credibly testified as to why a gun may lack a fingerprint and the




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       irrelevance of DNA evidence when a gun is found in a person’s
       bedroom.[1]

       Finally, a reasonable juror could have concluded that the gun
       belonged to Appellant by his confession alone. During the
       confession, Appellant was accurately able to identify the gun.
       Also, Appellant’s had an obvious motive to recant his prior
       confession as he now faced the prospect of punishment.[2]

       As such, the guilty verdict, when weighed against the relevant law
       and against the facts as elucidated above, does not reveal any
       partiality, prejudice, bias or ill will, nor do the verdicts shock one’s
       sense of justice. In light of the confession and physical evidence,
       which was presented to the jury, [the trial court sees] no reason
       to conclude that the jury’s verdict was contrary to the weight of
       the evidence.

Trial Court Opinion, 8/28/17, at 14-15 (footnote omitted).

       In light of the foregoing, we conclude that the trial court did not abuse

its discretion in denying Appellant’s weight of the evidence claim.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/27/2018



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1In addition, we note that Appellant fails to explain why the Commonwealth
needed to conduct either of the above tests to prove possession. Indeed,
constructive possession is all that is required.

2 To this end, we also note Appellant’s claim essentially amounts to asking us
to reweigh the evidence in his favor, substituting our judgment for that of the
jury and the trial court. We cannot do so. Widmer, supra.

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