J-S68009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JASON AARON JACKSON                      :
                                          :
                   Appellant              :   No. 1813 WDA 2017

            Appeal from the Judgment of Sentence July 18, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0004681-2017


BEFORE:    SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:               FILED: January 29, 2019

     Jason Aaron Jackson (Appellant) appeals from the judgment of sentence

entered on July 18, 2017, following his conviction of possession of a firearm

prohibited, 18 Pa.C.S. § 6105(a)(1). After careful review, we affirm.

     The trial court set forth the following factual and procedural background:

           On March 19, 2016, detectives with the McKees Rocks Police
     Department executed a search warrant at 1240 Church Street.
     Police obtained the search warrant in connection with the
     investigation of a fatal heroin overdose that occurred on or about
     March 18, 2016. During their investigation of the overdose death,
     detectives developed evidence indicating that [Appellant] was
     involved in the distribution of narcotics, and that he resided at the
     Church Street address. Upon execution of the search warrant at
     [Appellant’s] residence, officers discovered illicit narcotics, drug
     paraphernalia, a .40 caliber semiautomatic handgun, and indicia
     of residency for [Appellant]. These items were discovered while
     police were searching an area of the residence that had been
     converted into a makeshift bedroom. During a conversation with
     police, and after receiving his Miranda warnings, [Appellant]
     admitted to possessing the firearm recovered during the execution
     of the search warrant.
____________________________________
* Former Justice specially assigned to the Superior Court.
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            [Appellant] was charged with one count each of receiving
      stolen property, possession of marijuana, and persons not to
      possess firearms. Prior to the commencement of trial, the persons
      not to possess firearms charge was severed from the receiving
      stolen property and possession of marijuana charges. Following
      a jury trial, [Appellant] was found guilty of being a person not to
      possess a firearm and, on April 18, 2017, he was sentenced to a
      period of incarceration of three (3) to six (6) years, to be followed
      by a period of four years’ probation.           The Commonwealth
      subsequently withdrew the charges of receiving stolen property
      and possession of marijuana.

             [Appellant] filed timely post-sentence motions, which
      included claims that: (1) he was only awarded time credit for a 90
      -day period of incarceration when he was actually incarcerated for
      481 days; (2) the evidence presented by the Commonwealth at
      trial was insufficient to support the jury’s verdict; and (3) the
      jury’s verdict was against the weight of the evidence. This [c]ourt
      denied [Appellant’s] post-sentence motions on December 4, 2017,
      and [Appellant] thereafter filed the instant appeal, in which he
      raises the same three claimed errors asserted in his post-sentence
      motions.

Trial Court Opinion, 7/19/18, at 2–3. Both the trial court and Appellant have

complied with Pa.R.A.P. 1925.

      Appellant presents the following questions for our review:

      1. Whether the jury erred when it found [Appellant] guilty at
         Count 1–Possession of Firearm Prohibited, when the evidence
         presented by the Commonwealth was insufficient to support
         such a conviction?

      2. Whether the jury erred when it found [Appellant] guilty when
         the verdict was against the weight of the evidence as Ms.
         Thornton’s testimony was so tenuous and vague and Detective
         Finerty’s statements regarding [Appellant’s] behavior on the
         day in question were so contradictory so as to shock the
         conscious [sic] of the court?

Appellant’s Brief at 3.




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      In support of his first question, Appellant avers that the Commonwealth

failed to prove that he constructively possessed the recovered firearm.

Appellant’s Brief at 11.   Specifically, Appellant argues that four individuals

resided at the address where the firearm was found, and the Commonwealth

failed to present evidence which ruled out the possibility that another one of

the occupants was able to legally possess the firearm. Id. Further, he argues

that the Commonwealth failed to present any witness testimony or evidence

establishing that Appellant placed the firearm in the chair where it was

discovered and failed to present any forensic evidence, including DNA or

fingerprints, linking Appellant to the firearm.    Id. at 12.   Thus, Appellant

argues, the evidence presented by the Commonwealth was insufficient to

prove that he had the power to control and the intent to exercise control over

the firearm.

      This Court applies the following standards when reviewing a sufficiency

of the evidence claim:

      When presented with a claim that the evidence was insufficient to
      sustain a conviction, an appellate court, viewing all of the evidence
      and reasonable inferences therefrom in the light most favorable
      to the Commonwealth as the verdict winner, must determine
      whether the evidence was sufficient to enable the fact-finder to
      find that all elements of the offense were established beyond a
      reasonable doubt.

Commonwealth v. Woody, 939 A.2d 359, 361 (Pa. Super. 2007) (citation

omitted).   “Furthermore, ‘[t]he Commonwealth may sustain its burden by

proving the crime’s elements with evidence which is entirely circumstantial


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and the trier of fact, who determines credibility of witnesses and the weight

to give the evidence produced, is free to believe all, part, or none of the

evidence.’” Id. at 361–62 (quoting Commonwealth v. Brown, 701 A.2d

252, 254 (Pa. Super. 1997)).

     The elements of persons not to possess firearms are:

     § 6105. Persons not to possess, use, manufacture, control, sell or
     transfer firearms

     (a)      Offense defined.—

     (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.A. § 6105(a)(1). Where the firearm is not found on the defendant,

the Commonwealth may meet its burden of proof by showing constructive

possession.    Commonwealth v. Hopkins, 67 A.3d 817, 821 (Pa. Super.

2013).

     Constructive possession is a legal fiction, a pragmatic construct to
     deal with the realities of criminal law enforcement. Constructive
     possession is an inference arising from a set of facts that
     possession of the contraband was more likely than not. We have
     defined constructive possession as “conscious dominion.” We
     subsequently defined “conscious dominion” as “the power to
     control the contraband and the intent to exercise that control.” To
     aid application, we have held that constructive possession may be
     established by the totality of the circumstances.

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012) (quoting

Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (internal



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citations omitted)).   Appellant asserts that “‘mere presence’ at the scene

where the firearm was found is not sufficient” to establish constructive

possession.   Appellant’s Brief at 11.      In the instant case, however, the

Commonwealth presented significant evidence beyond Appellant’s “mere

presence” where the firearm was recovered.         Indeed, the Commonwealth

presented the testimony of Detective David Finerty of the McKees Rocks Police

Department. Detective Finerty attested that the room in which he found the

firearm was a partitioned room with a bed, men and women’s clothing strewn

about, and photos of Appellant and his former girlfriend on the walls.

N.T.(Trial), 4/19/17, at 59–60, 64, 65. He further testified that he found a

cable bill addressed to Appellant at the Church Street address. Id. at 65.

Moreover, Detective Finerty testified that after Appellant was taken to the

police station, Appellant called him to his cell and admitted that the gun was

his. Id. at 73, 74. Finally, Detective Finerty stated that Appellant’s former

girlfriend, Ms. Roxanne Thornton, informed him that “it’s in the chair” referring

to the firearm that Detective Finerty found in the chair during the execution

of the search warrant. Id. at 89.

      In addition to the testimony of Detective Finerty, the Commonwealth

offered the testimony of Ms. Thornton, who testified that the partitioned room

was her and Appellant’s room, that it was their exclusive living area and

contained only items belonging to them.         N.T. (Trial), 4/19/17, at 103.

Additionally, Ms. Thornton stated that she knew the firearm was in the chair


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and that it belonged to Appellant. Id. at 110. She further testified that she

had seen Appellant holding the firearm before it was confiscated by the police.

Id. at 109. Finally, Ms. Thornton testified that the firearm did not belong to

her, and her signed statement confirming the same was admitted into

evidence. Id. at 111.

      In this case, it is uncontroverted that Appellant had access to the

firearm, which he had hidden in the chair. Given the testimony presented, we

find that viewing all of the evidence at trial in the light most favorable to the

verdict winner, the evidence is sufficient to enable the fact-finder to find every

element of the crime beyond a reasonable doubt. See, e.g., Commonwealth

v. Smith, 146 A.3d 257, 263 (Pa. Super. 2016) (finding constructive

possession of a firearm found in a basement dresser, located in a shoe box

with a letter addressed to the defendant at the address where the firearm was

found and the defendant’s driver’s license).

      In his second issue on appeal, Appellant argues that the verdict in this

case was against the weight of the evidence presented at trial. In support of

this issue, Appellant argues that the testimony of Ms. Thornton is so vague

and void of detail that the verdict should shock the conscience of the court.

Appellant’s Brief at 13. Specifically, he alleges that, because she testified that

she knew the firearm was in the chair but did not see Appellant put it there

and did not explain how she knew the firearm was in the chair, no reasonable

jury could have found her testimony to be convincing. Id. He also avers that


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because she admitted to using drugs the morning of March 19, 2016, the day

Appellant was arrested, there are significant questions regarding “the

truthfulness and accuracy of her testimony.” Id. He similarly argues that the

jury assigned too much weight to the “confusing and contradictory testimony”

of Detective Finerty, specifically pointing to Detective Finerty’s testimony that

Appellant was irate at the scene and in the holding cell at the police station,

but then accepted responsibility for the gun while in custody. Id. at 14.

      The law pertaining to weight of the evidence claims is well established:

      The weight of the evidence is a matter exclusively for the finder
      of fact, who is free to believe all, part, or none of the evidence
      and to determine the credibility of the witnesses. A new trial is
      not warranted because of a mere conflict in the testimony and
      must have a stronger foundation than a reassessment of the
      credibility of witnesses. 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. On appeal, 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. Thus, appellate review of a weight claim consists
      of a review of the trial court’s exercise of discretion, not a review
      of the underlying question of whether the verdict is against the
      weight of the evidence. An appellate court may not reverse a
      verdict unless it is so contrary to the evidence as to shock one’s
      sense of justice.

Commonwealth v. Rosser, 135 A.3d 1077, 1090 (Pa. Super. 2016)(en

banc) (quoting Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super.

2015)). “Thus, the trial court’s denial of a motion for a new trial based on a

weight of the evidence claims is the least assailable of its rulings.”

Commonwealth v. Cousar, 928 A.2d 1025, 1036 (Pa. 2007).


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      As discussed above, this Court will not reweigh evidence. “[R]ather,

this Court only reviews how the trial court has analyzed the weight of the

evidence.” Commonwealth v. Best, 120 A.3d 329, 345 (Pa. Super. 2015).

      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) (“[A]n 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)).

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

      In the instant case, the trial court opinion reflected that the court applied

the correct standard and found that Appellant “cites no facts which would

suggest that the evidence supporting his conviction was so tenuous, vague,

and uncertain that the verdict shocks the court. . . .” Trial Court Opinion,

7/19/18, at 9 (quotations omitted). We agree. The jury was “free to believe

all, none or some of the evidence and to determine the credibility of the

witnesses.” Commonwealth v. Winslowe, 158 A.3d 698, 712 (Pa. Super.

2017). In light of the testimony given by Detective Finerty and Appellant’s

former girlfriend, the trial court did not abuse its discretion in finding that the

jury’s verdict did not shock one’s sense of justice. The trial court did not abuse

its discretion in denying Appellant’s weight claim. Fortson, 165 A.3d at 16–

17.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/29/2019




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