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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                      1   IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                              Appellee

                        v.

ALPHONSO DASHIELL

                              Appellant                     No. 495 EDA 2016


              Appeal from the Judgment of Sentence January 8, 2016
               In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-51-CR-0008239-2015

BEFORE:       STABILE, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                                    FILED MAY 05, 2017

        Alphonso Dashiell appeals from the January 8, 2016 judgment of

sentence entered        in    the Philadelphia County Court of Common Pleas

following his bench trial convictions for carrying     a   firearm without   a   license,

carrying      a   firearm on the public streets or property of Philadelphia,

possessing an instrument of crime ("PIC"), and attempted theft of                a   motor

vehicle.' We affirm.

        The well -reasoned opinion of the Honorable Sierra Thomas Street set

forth the detailed factual and procedural history underlying this appeal,

which we adopt and incorporate herein. See Trial Ct. Op., 6/21/16, at 1-8

("1925(a) Op.").



        '   18 Pa.C.S. §§    6106(a)(1), 6108, 907(a), and 901(a), respectively.
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        Dashiell raises two issues on appeal:

            I.    The evidence was insufficient as a matter of law to
                  sustain the verdicts of guilt as to the crimes of
                  Firearms Not to be Carried Without License (F3),
                  Carrying a Firearm on Public Streets in Philadelphia
                  (M1), Possession of an Instrument of Crime with
                  Intent (M1), and Criminal Attempt -Theft from a
                  Motor Vehicle (M1).
           II.    The    verdicts of guilt as to the four (4)
                   aforementioned crimes are against the weight of the
                   evidence.
Dashiell's Br. at 4 (footnotes omitted).

        Dashiell first argues that the "Commonwealth's evidence adduced at

trial resulting   in a   judgment was not legally sufficient to establish [Dashiell]'s
guilt of the [aforementioned] crimes." Id. at 8. This Court's standard for

reviewing sufficiency of the evidence claims is as follows:

          We must determine whether the evidence admitted at trial,
          and all reasonable inferences drawn therefrom, when
          viewed in a light most favorable to the Commonwealth as
          verdict winner, support the conviction beyond a reasonable
          doubt. Where there is sufficient evidence to enable the
          trier of fact to find every element of the crime has been
          established beyond a reasonable doubt, the sufficiency of
          the evidence claim must fail.
          The evidence established at trial need not preclude every
          possibility of innocence and the fact -finder is free to
          believe all, part, or none of the evidence presented. It is
          not within the province of this Court to re -weigh the
          evidence and substitute our judgment for that of the fact -
          finder.    The Commonwealth's burden may be met by
          wholly circumstantial evidence and 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.

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Commonwealth v. Rodriguez,                   141 A.3d     523,    525 (Pa.Super.           2016)

(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).

        With respect to the firearms convictions, Dashiell argues that the

Commonwealth "failed to prove beyond                a     reasonable doubt that             .   .




[Dashiell] had actual or constructive possession of the firearm." Dashiell's

Br. at 8.        According to Dashiell, "Officer Negler never actually saw Dashiell

carrying or disposing of          a   firearm" and "the Commonwealth was unable to

offer any additional witnesses to corroborate the officer's testimony that

[Dashiell] possessed and/or tossed the firearm that was subsequently

located     in    a   grassy area on another street (from where the arrest

occurred)." Id. We disagree.

        In its opinion, the trial court set forth the elements of the firearms

offenses, addressed Dashiell's claims, and properly determined that the

evidence was sufficient to support the firearms convictions.                       See 1925(a)

Op. at 10-14.         The evidence presented by the Commonwealth showed that

police recovered the firearm on the public streets of Philadelphia, "150 feet

away from where Dashiell was first observed and five                .   .   .   minutes after his

arrest," the firearm was not registered to Dashiell, and Dashiell was not
licensed to carry          a   firearm.   Id. at 11-14.     Further, when questioned,

Dashiell admitted to police that he possessed the firearm on the night in

question.        Id. at   12. After reviewing the briefs, the record, and the relevant

law, we affirm based on the trial court's reasoning.             Id. at 10-14.


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           With   respect     to   the   PIC    conviction,    Dashiell        argues that "the

Commonwealth failed to prove beyond                 a    reasonable doubt that             .    .   .   Dashiell

had actual or constructive possession of instruments of crime or that [he]

possessed the instruments for the specific purpose (intent) of employing

them criminally." Dashiell's Br. at 8.              According to Dashiell, Officer Negler

only saw, from         a    long distance with binoculars, Dashiell attempt to break

into the motor vehicle with the single metal rod and then, minutes later,

stopped Dashiell without observing him discard anything.                        Id. at         9.       Dashiell

further asserts that even if the officer had established that Dashiell was                                    in

actual       or   constructive      possession      of    an   instrument            of        crime,       the

Commonwealth failed to prove that Dashiell "possessed the instruments for

the specific purpose of employing them criminally."                            Id.        According to

Dashiell,      "[a]t   no    point did the Commonwealth produce or enter into

evidence the instruments of crime that it claimed                .   .   .   Dashiell possessed at

the time of the incident" and "there are inconsistencies within the various

reports and testimony as to where the instruments were actually located."

Id.       This claim is without merit.

           In its opinion, the trial court set forth the elements of PIC, addressed

Dashiell's claims, and properly determined that the evidence was sufficient

to support the PIC conviction.             See 1925(a) Op. at 14-16.                      The evidence

showed that Dashiell possessed            a    slim metal rod that he applied to the door

of    a   vehicle in an attempt to break into said vehicle.                    Id. at          15.       Officer

Negler watched Dashiell use the metal rod and later found scratches "all

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over the door of the vehicle."                   Id. Officer Negler later recovered two of
these rods, along with        a   pair of gloves,      a    screwdriver, and    a   flashlight "in the

middle of the same block where he first observed [Dashiell]."                             Id. After
reviewing the briefs, the record, and the relevant law, we affirm based on

the trial court's reasoning.              Id. at 14-16.
          With respect to the attempted theft of                  a   motor vehicle conviction,

Dashiell      argues that "the Commonwealth                       failed   to    prove    beyond    a

reasonable doubt that         .   .   .    Dashiell had the intent to commit the crime of

Theft from       a   Motor Vehicle or that he engaged in any act that constituted                   a

substantial step towards the commission of that crime." Dashiell's Br. at 10.

We disagree.

          In its opinion, the trial court set forth the elements of attempted theft

of   a   motor vehicle, addressed Dashiell's claim, and properly determined that

the evidence was sufficient to support the attempt conviction. See 1925(a)

Op. at 16-18.          The evidence showed that Officer Negler observed Dashiell

"utilizing   a   metal rod against         a   vehicle in an attempt to unlawfully enter" and

"scratches were subsequently discovered on the door of the vehicle." Id. at

16.      Officer Negler also testified that Dashiell continued to use the rod until

Dashiell "acknowledged the Officer's presence."                       Id. at    17.   Officer Negler

also recovered, among other things, two metal rods 150 feet from where

Officer Negler had first observed Dashiell using the metal rod.                           Id. After
reviewing the briefs, the record, and the relevant law, we affirm based on

the trial court's reasoning.              Id. at 16-18.

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        Next, Dashiell argues that his convictions were against the weight of

the evidence, "as the Commonwealth's proffered evidence              is all   derived

solely from the inconsistent and vague statements of Officer Negler."

Dashiell's Br. at 10.         The Commonwealth argues that Dashiell has waived

these claims and, even if Dashiell had preserved them for review, they are

meritless. Cmwlth.'s Br. at 10-11.

        We conclude that Dashiell waived his weight of the evidence claims,

because he failed to raise them before the trial court.       Pennsylvania Rule of

Criminal Procedure 607(a) sets forth the requirements for preserving weight

of the evidence challenges:

            (A) A claim that the verdict was against the weight of the
            evidence shall be raised with the trial judge in a motion for
            a new trial:

               (1) orally, on the record, at any time before sentencing;
               (2) by written motion at any time before sentencing; or
               (3) in   a   post -sentence motion.
Pa.R.Crim.P. 607(A). Here, the record shows that Dashiell did not challenge

the weight of the evidence, by oral or written motion, before sentencing and

did not file   a   post -sentence motion.    Because Dashiell did not present these

claims before the trial court, he has waived them.2 See Commonwealth v.

Thompson, 93 A.3d 478, 490 (Pa.Super. 2014).


       Even if Dashiell had preserved his weight claims for review, we would
        2

conclude that he is not entitled to relief based upon the trial court's analysis.
See 1925(a) Op. at 10-18.


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        Judgment of sentence affirmed.

Judgment Entered.




J Seph D. Seletyn,   Es   .


Prothonotary


Date: 5/5/2017




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