J-S44010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT HILL                                :
                                               :
                       Appellant               :   No. 3742 EDA 2016

              Appeal from the Judgment of Sentence July 8, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0006158-2014


BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                                 FILED JULY 27, 2018

        Robert Hill appeals pro se from the judgment of sentence, entered in

the Court of Common Pleas of Philadelphia County, following his jury

conviction for possession of a firearm (prohibited).1 Hill received a 4-10 year

sentence of incarceration for his offense, a penalty below the mitigated range

of the Sentencing Guidelines. After careful review, we affirm.

        The trial court aptly set forth the facts of this case as follows:

        Ms. Tia Hughes, a childhood friend of [Hill], testified that on May
        7, 2014, around 4:30-5:00 p.m. she arrived to a friend's house
        on 2029 Vicci Street for a cookout. During the cookout, Ms.
        Hughes and [Hill] got into an argument. As [Hughes] was walking
        away to her car, [Hill] hit her from behind in the back of her head.
        Ms. Hughes then turned around and started hitting [Hill] back. As
        Ms. Hughes was about to get in her car, she saw [Hill] pick up a
        brick. [Hughes] was not sure if he was going to hit her with it or
        break her car window. Someone at the party, in an attempt to
        break up the fight, took the brick from [Hill]. Ms. Hughes then
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1   18 Pa.C.S. § 6105(a)(1).
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     got into her car and drove to pick up her daughter to return back
     to the cookout. She arrived back at the Vicci Street residence
     around 8:30 p.m. When she returned to the residence, she
     witnessed [Hill] standing in the doorway of 2029 Vicci Street with
     a gun in his hand. [Hill] pointed the gun in her general direction[,]
     at which time she ducked. As [Hill] pointed the gun in Ms.
     Hughes’s direction, she heard “click, click, click.” Ms. Hughes’s
     daughter then called the police.

     The police came within minutes. The officers went into the
     residence at 2029 Vicci Street and escorted [Hill] outside. Ms.
     Hughes was then brought down to the police station. The officers
     then showed Ms. Hughes the firearm that they recovered from the
     residence. She stated that it looked like the gun that [Hill] pointed
     in her direction earlier that night.

     Ms. Brianna Phillips, Ms. Hughes’s daughter, testified to the events
     that occurred on the night in question. Around 9:00 p.m. that
     night, [Phillips] had received a call from her mom telling her that
     she had a fight with [Hill]. Ms. Phillips took the bus to Bouvier
     Street with her grandmother and Ms. Hughes picked them up from
     that location. Ms. Phillip’s noticed that her mother’s hair was
     pulled out, her face was scratched and that she had a swollen lip.
     As they were driving back to Vicci Street, [Hill] called Ms. Hughes’s
     phone multiple times. Ms. Phillips heard her mother and [Hill]
     screaming at each other over the phone and heard [Hill] say
     something like “I have a gun too.” Once they arrived to 2029 Vicci
     Street, she saw [Hill] standing in the doorway at that residence.
     As Ms. Hughes and [Hill] were about to talk, Ms. Phillips noticed
     something on the side of [Hill]. [Hill] then lifted up his arm and
     she heard one click and then he pointed it at Ms. Hughes and she
     heard another click. Ms. Phillips then called the police. When the
     police took the gun from the house, she was not asked to identify
     it, but she recognized it as the gun [Hill] possessed.

     Officer Leroy Ziegler received a radio call on the night in question
     for a person with a gun at 2029 Vicci Street. Officer Ziegler noted
     that he was there earlier that night in connection with another
     radio call reporting screams. He left the first time because there
     was already two or three police vehicles on scene. [After t]he
     second radio call, he reported again to the scene and was met by
     three females. He noticed [Hill] standing in the doorway of 2029
     Vicci Street. Ms. Hughes told Officer Ziegler that during an
     argument with [Hill], he pulled out a silver handgun, pointed it at
     her, her daughter and mother and pulled the trigger. Officer

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        Ziegler and his partner then walked over toward [Hill] and asked
        him if he was involved in an argument with the three females and
        he said “no.” Officer Ziegler then asked [Hill] if he and his partner
        could enter his house and he said, “yes, you will not find a gun.”
        [Hill] and the two officers then walked into the house. Officer
        Ziegler noticed an older male in the house, standing in the living
        room. Officer Ziegler explained that when you first walk in, about
        10 to 15 feet to the left of the front door is a stairwell and at the
        bottom of the steps was a piano. Officer Ziegler then observed a
        silver revolver behind the piano. Officer Ziegler's partner
        recovered the handgun and then he placed [Hill] under arrest.

Trial Court Opinion, 11/30/17, at 2-4 (citations to notes of testimony omitted).

Hill was charged with aggravated assault,2 possession of a firearm

(prohibited), firearms not to be carried without a license,3 simple assault,4 and

recklessly endangering another person.5

        After a two-day trial held in May 2016, a jury convicted Hill of the above-

mentioned firearms offense and acquitted him of aggravated assault.6 He was

sentenced     to   a   below-the-mitigated       range   sentence   of   4-10   years’

incarceration. Hill filed a post-sentence motion raising sufficiency and weight

of the evidence claims. The motion was denied by operation of law. On May




____________________________________________


2   18 Pa.C.S. § 2702(a).

3   18 Pa.C.S. § 6106(a)(1).

4   18 Pa.C.S. § 2701(a).

5   18 Pa.C.S. § 2705.

6   All other charges were nolle prossed.



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16, 2017, Hill was permitted to proceed pro se after a Grazier7 hearing; he

timely filed a notice of appeal.

       On appeal, Hill presents the following issues for our review:

       (1)    Whether the Commonwealth establishe[d] any evidence set
              forth for a violation of the Uniform Firearms Act[,] 18
              Pa.C.S. § 6105(a.1), [t]o sustain the verdict of guilty by the
              jury.

       (2)    Whether the Court erred or abused its discretion in the jury
              instruction, pursuant to Pa.R.Crim.P. 564, and the United
              States and [t]he Pennsylvania Constitution, [w]hen the jury
              asked the definition of § 6105 Possession of Firearm
              Prohibited after the Commonwealth had presented its case-
              in-chief.

       (3)    Whether trial counsel was ineffective for failing to object [to]
              the court’s defining of possession of firearm prohibited, and
              the search of 2029 Vi[cci] [S]treet.

       (4)    [Did t]he court abuse its discretion under [t]he Pennsylvania
              Sentencing Code[,] 42 Pa.C.S. § 9781(b), when applying
              the sentence[] enhancement under 18 Pa.C.S. 6105(a.1)
              penalty, after appellant was acquitted by the jury of any use
              or possess[ion] of a firearm?

Appellant’s Brief, at 3.

       In his first issue on appeal, Hill challenges the sufficiency of the

evidence8 for his firearm offense, claiming that because he was acquitted of

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7 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (when waiver of
right to counsel is sought at post-conviction and appellate stages, on-the-
record determination should be made that waiver is knowing, intelligent, and
voluntary).

8 In evaluating a challenge to the sufficiency of the evidence, we must
determine whether, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, together with all reasonable inferences



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aggravated assault his conviction cannot stand.         He also alleges that the

Commonwealth failed to prove that he physically possessed a firearm. We

disagree.

       Pursuant to section 6105 (Persons not to possess, use, manufacture,

control, sell or transfer firearms):

       (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.

18 Pa.C.S. § 6105(a)(1).9         The Commonwealth may sustain its burden of

proving possession under section 6105 by means of wholly circumstantial

evidence. “In order to prove that a defendant had constructive possession of

a prohibited item, the Commonwealth must establish that the defendant had

both the ability to consciously exercise control over it as well as the intent to


____________________________________________


therefrom, the trier of fact could have found that each and every element of
the crimes charged was established beyond a reasonable doubt.
Commonwealth v. Swann, 635 A.2d 1103 (Pa. Super. 1994). “This
standard is equally applicable to cases where the evidence is circumstantial
rather than direct so long as the combination of the evidence links the accused
to the crime beyond a reasonable doubt.” Commonwealth v. Swerdlow,
636 A.2d 1173, 1176 (Pa. Super. 1994) (citing Commonwealth v.
Hardcastle, 546 A.2d 1101, 1105 (Pa. 1986)). Furthermore, “it is within the
province of the factfinder to determine the weight to be given to the testimony
and to believe all, part, or none of the evidence.” Commonwealth v. Moore,
648 A.2d 331, 333 (Pa. Super. 1994) (citations omitted).

9Hill does not contest that he has been convicted of an enumerated offense
under subsection (b) of section 6105.

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exercise such control.” Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa.

Super. 2013), citing Commonwealth v. Gutierrez, 969 A.2d 584, 590 (Pa.

Super. 2009).    The factfinder may infer an intent to maintain a conscious

dominion based on a totality of the circumstances; moreover, circumstantial

evidence may be used to establish a defendant’s possession of contraband.

Id.

      Instantly, Hughes and Phillips testified that Hill pointed a gun in the air,

then pointed the gun at Hughes, and, at the time he pointed the gun at

Hughes, the women heard two “click” noises. Phillips also testified that before

the incident occurred, she heard Hill say on the phone that he had a gun.

After the incident, the police recovered a silver, .32 caliber Smith & Wesson

revolver hidden behind a piano in the home that Hill entered immediately after

pointing the gun at Hughes. Finally, both women testified that the recovered

gun was the same gun Hill pointed at Hughes. Thus, we conclude that the

combination of the evidence sufficiently establishes that Hill possessed the

gun beyond a reasonable doubt.      Swerdlow, supra; Hardcastle, supra.

      Moreover, the fact that the jury acquitted Hill of aggravated assault is

of no moment. In Gutierrez, supra, our Court noted that:

      In this jurisdiction, inconsistent verdicts are not a basis for
      reversal. Commonwealth v. Larsen, [] 682 A.2d 783 (Pa.
      Super. 1996). “The rationale for allowing inconsistent verdicts is
      that it is the jury’s sole prerogative to decide on which counts to
      convict in order to provide a defendant with sufficient punishment.
      [A]n acquittal cannot be interpreted as a specific finding in relation
      to some of the evidence.” Commonwealth v. Miller, 657 A.2d
      946, 948 (Pa. Super. 1995). Inconsistent verdicts by a jury will

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      not be disturbed, provided that the Commonwealth produces
      sufficient evidence of the crime for which the defendant is
      convicted. Id.

Gutierrez, 969 A.2d at 591 (citation omitted). Here, as we have established,

the Commonwealth was required to prove that Hill had been convicted of an

offense enumerated in section 6105(b) and that he possessed, used, or

controlled a firearm in this Commonwealth. 18 Pa.C.S. § 6105(a)(1). The

testimony presented at trial was clearly sufficient to prove Hill’s culpability

under section 6105(a)(1); therefore, the jury’s verdict should not be reversed.

Miller, supra.

      In his next issue, Hill contends that the court abused its discretion when

it defined “possession” by utilizing the definition of constructive possession.

Hill has waived this claim by failing to object to this instruction at trial. See

N.T. Jury Trial, 5/5/16, at 92; see also Pa.R.A.P. 302(a).

      Even if we were to address the merits of this claim, it warrants no relief.

It is well established that when a defendant is not found in actual possession

of a firearm, the Commonwealth may prove that he or she constructively

possessed the firearm to sustain its burden under section 6105(a)(1).

Commonwealth v. Sanes, 955 A.2d 369 (Pa. Super. 2008).

      Hill next raises claims of trial counsel’s ineffectiveness for failing to

object to the aforementioned constructive possession jury instruction, for

ineffectively cross-examining the arresting officer regarding Hill’s consent to

search the residence where the firearm was recovered, and also for counsel’s

direct examination of the officer at the preliminary hearing. As our courts


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have repeatedly stated, we will defer all claims of ineffectiveness until

collateral review. See Commonwealth v. Grant, 813 A.2d 726, 738 (Pa.

2002) ("We now hold that, as a general rule, a petitioner should wait to raise

claims of ineffective assistance of trial counsel until collateral review."); see

also Commonwealth v. Holmes, 79 A.3d 562, 563-64 (Pa. 2013) (holding

court retains discretion to entertain ineffectiveness claims on post-verdict

motions or direct appeal where: (1) ineffectiveness claim is apparent from

record and meritorious to extent that immediate consideration best serves

interests of justice; or (2) where good cause is shown and defendant

knowingly and expressly waives entitlement to seek post-conviction relief

review). Thus, these claims are premature.

       Finally, Hill contends that the trial court erred in applying a sentencing

enhancement under section 6105(a.1) to his sentence, and that the

enhancement is unconstitutionally vague. Hill also argues that elements of

the enhancement had to be proven, beyond a reasonable doubt, by a jury in

accordance with the dictates of Alleyne.10 The certified record reveals that

Hill was neither sentenced to a mandatory minimum sentence nor a

sentencing enhancement.11 Thus, his claim is frivolous.

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10 See Alleyne v. United States, 570 U.S. 99 (2013) (holding that element
of offense that increases mandatory minimum sentence must be found by jury
beyond reasonable doubt).

11Notably, the Sentencing Guidelines prohibit the application of a deadly
weapon enhancement for violations of the Uniform Firearms Act. See 204 Pa.
Code § 303.10(3)(vii).

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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/18




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