J-S88039-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  Appellee              :
                                        :
             v.                         :
                                        :
GARVIN ROJAS,                           :
                                        :
                  Appellant             :    No. 1164 EDA 2015

             Appeal from the Judgment of Sentence February 6, 2015
               in the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0015168-2012

BEFORE: OLSON, RANSOM, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                FILED FEBRUARY 16, 2017

      Garvin Rojas (Appellant) appeals from the judgment of sentence

entered February 6, 2015, after he was found guilty of carrying a firearm

without a license and carrying a firearm on a public street in Philadelphia.

We affirm.

      The trial court offered the following summary of the facts underlying

this case.

             On December 6, 2012, Philadelphia Police Officers Castro
      and Hustler were on routine patrol, proceeding southbound on
      South 60th Street in a marked patrol vehicle when they observed
      Appellant enter an alleyway near the corner of 60th and Walton
      Streets. The alleyway was located next to a church, buildings
      which the officers were aware were often burglarized. The
      officers decided to conduct an investigation. They made a U-
      turn onto the 6000 block of Walton Street and stopped their
      vehicle at the Walton Street entrance to the alleyway. The alley
      was closed off by a chain link fence through which the officers
      observed Appellant in the alley.



* Retired Senior Judge assigned to the Superior Court
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              From their patrol car, the officers saw Appellant look in
        their direction and then crouch down and drop a heavy metallic
        object into a plastic trash can. The officers believed that the
        object was a firearm based on the distinct heavy sound it made,
        as well as its metallic appearance. As a result, the officers
        exited their patrol car. Officer Castro looked inside the trash can
        and discovered a .41 caliber Ruger Blackhawk loaded with two
        live rounds. The officers placed Appellant into custody and
        transported him to Southwest Detectives. The officers ran a gun
        check and determined Appellant did not have a license to carry a
        firearm. Further investigation revealed that the weapon had
        been reported stolen in New York in 1988.

Trial   Court   Opinion,   7/16/2015,    at   2-3   (citations   and   unnecessary

capitalization omitted).

        Appellant was arrested and charged with theft, carrying a firearm

without a license, and carrying a firearm on a public street in Philadelphia.

On June 27, 2014, the trial court found Appellant guilty of all charges. On

February 6, 2015, the trial court sentenced Appellant to six to 23 months of

incarceration with immediate parole to house arrest, followed by a

consecutive sentence of three years of probation.

        Appellant timely filed a post-sentence motion, which was granted in

part and denied in part. Specifically, the trial court granted Appellant an

arrest of judgment on the theft conviction, but denied relief with respect to

the other two convictions.      The trial court modified Appellant’s sentence

accordingly.    Appellant timely filed a notice of appeal, and both Appellant

and the trial court complied with Pa.R.A.P. 1925.1


1
  On appeal, Appellant, represented by new counsel, filed a petition for
remand to enable Appellant to file a supplemental Pa.R.A.P. 1925(b)


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      Appellant presents two questions for our review.

            (1) Whether the evidence was sufficient to convict
      Appellant of [carrying a firearm without a license and carrying
      firearm on a public street] when he did not possess the gun, no
      physical evidence connected him to the gun, and where police
      did not see him in possession of a gun?

             (2) Whether trial counsel provided ineffective assistance of
      counsel at trial by failing to file and litigate a motion to suppress
      the physical evidence, specifically the firearm, where Appellant
      was stopped by police without probable cause or reasonable
      suspicion in violation of the U.S. and Pennsylvania Constitutions,
      and where he was handcuffed and placed in a police vehicle prior
      to observing any handgun, where the officer had not observed
      any illegal activity in the area of the stop , and where the officer
      had not observed a handgun in Appellant’s possession prior to
      the stop?

Appellant’s Brief at 4.

      We    address   Appellant’s   first   argument,   which   challenges    the

sufficiency of the evidence to sustain his convictions, mindful of the following

standard of review.

      [O]ur standard of review of sufficiency claims requires that we
      evaluate the record in the light most favorable to the verdict
      winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence. Evidence will be
      deemed sufficient to support the verdict when it establishes each
      material element of the crime charged and the commission
      thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. Any doubt about the defendant’s guilt is
      to be resolved by the fact finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.




statement. This Court granted Appellant’s request, and both Appellant and
the trial court complied with the remand order.


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Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013)

(internal citations and quotations omitted). The Commonwealth may sustain

its burden by means of wholly circumstantial evidence, and we must

evaluate the entire trial record and consider all evidence received against the

defendant. Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007).

      Our Supreme Court has clarified the elements of the offenses for which

Appellant was convicted.

            Appellant’s conviction under Section 6106, for carrying a
      firearm without a license, required the Commonwealth to
      establish that Appellant was either carrying a firearm in a vehicle
      or concealed on his person, and that he had no license to do so.
      Appellant’s conviction under Section 6108, for carrying a firearm
      on the public streets or public property of Philadelphia, required
      the Commonwealth to establish that Appellant was carrying a
      firearm either on the public streets or public property of
      Philadelphia and that he was neither licensed to do so nor
      exempt from the licensing requirement.

Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).

      In his argument, Appellant first contends that the evidence was

insufficient to sustain his convictions because the “testimony by Officer

Castro did not establish that he saw Appellant with [a] gun.” Appellant’s

Brief at 10. This argument is belied by the record. Officer Castro testified to

the following:

      I observed [Appellant], [Appellant] looked in my direction, and
      [Appellant] discarded a heavy metallic object into a rubber trash
      can that was out there.

             The sound made a distinct sound. It was a heavy sound,
      that it was hitting that rubber siding of the trash can. I believe



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      that [Appellant] had discarded a firearm based off that metallic
      observation.

            I exited the patrol car, [Appellant] didn’t run, we stopped
      him for investigation. I walked over to the trash can. Inside was
      … a Ruger Blackhawk .41 caliber magnum revolver. It was
      loaded with two live rounds.

N.T., 6/27/2014, at 11.

      It is well established that “the evidence at trial need not preclude

every possibility of innocence, and the fact-finder is free to resolve any

doubts regarding a defendant’s guilt 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.” Commonwealth v. Hughes, 908 A.2d

924, 928 (Pa. Super. 2006). Here, Officer Castro testified that he saw and

heard Appellant drop a metallic object into a trash can, which he

immediately recovered, and that object was a gun.         This testimony, if

believed by the fact-finder, established the elements to sustain Appellant’s

convictions.

      Appellant also argues that the trial court should have believed his

testimony, rather than the testimony of Officer Castro, and that the

Commonwealth did not present evidence linking Appellant to possession of

the gun. Id. at 12. At trial, Appellant testified that he was in the alleyway

“taking a leak” when Officer Castro pointed a “taser or gun” at him told him

to “freeze.” N.T., 6/27/2014, at 27-28. He testified that he never discarded

anything into the trash can or went near it. Appellant further testified that



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the gun was not his.2        However, “[a]n argument that the finder of fact

should have credited one witness’ testimony over that of another witness

goes to the weight of the evidence, not the sufficiency of the evidence.”

Commonwealth v. Gibbs, 981 A.2d 274, 281–82 (Pa. Super. 2009). Thus,

Appellant’s claim fails.

      Appellant next contends that trial counsel was ineffective for failing to

file a motion to suppress the gun. He contends that Officer Castro lacked

reasonable suspicion to conduct an investigatory stop, and that Appellant’s

arrest was unlawful.3

      Our   Supreme        Court   has   made   clear   that   “absent   [certain]

circumstances … claims of ineffective assistance of counsel are to be

deferred to PCRA review; trial courts should not entertain claims of

ineffectiveness upon post-verdict motions; and such claims should not be

reviewed upon direct appeal.” Commonwealth v. Holmes, 70 A.3d 562,

576 (Pa. 2013). The circumstances outlined by the Supreme Court include

cases “where the trial court, in the exercise of its discretion, determines that

2
 The trial court specifically found Appellant’s testimony not credible. Trial
Court Opinion, 7/16/2015, at 5 n. 1.
3
  Our review of the certified record reveals that Appellant did file a pre-trial
motion to suppress on these bases. Omnibus Motion, 7/24/2013. A hearing
was scheduled and continued several times; however, the record does not
show that a hearing was ever held, that the motion was ever ruled upon, or
that the motion was withdrawn.          Moreover, neither Appellant nor the
Commonwealth appears to be aware of this motion. Thus, to the extent
there is an ineffective assistance of counsel claim, it appears the claim is
that counsel was ineffective for failing to ensure this motion was heard and
ruled upon.


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a claim (or claims) of ineffectiveness is both meritorious and apparent from

the record so that immediate consideration and relief is warranted[;]” and

where the trial court “in its discretion, and for good cause shown, [permits]

post-verdict review of multiple, and indeed comprehensive, ineffectiveness

claims if such review is accompanied by a waiver of PCRA rights.” Id. at

577-78.   These exceptions are not present here.       In fact, the trial court

specifically held that neither exception outlined in Holmes applies here. See

Supplemental Opinion, 4/3/2016, at 4.       Accordingly, we will not address

Appellant’s ineffective-assistance-of-counsel claim at this time.

      Because the evidence was sufficient to sustain Appellant’s convictions,

we affirm his judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/16/2017




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