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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                   v.                   :
                                        :
JAMES LOUIS TARPLEY,                    :       No. 1237 WDA 2013
                                        :
                         Appellant      :


        Appeal from the Judgment of Sentence, February 25, 2013,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0013386-2011


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED MARCH 03, 2015

     Following a bench trial, James Louis Tarpley was convicted of one

count of persons not to possess a firearm.    Herein, he appeals from the

judgment of sentence entered on February 25, 2013, in the Court of

Common Pleas of Allegheny County. We affirm.

     On July 12, 2011, police and EMS responded to 1712 Brinton Avenue

in North Braddock, Pennsylvania, at approximately 11:00 p.m. to calls of a

heroin overdose.        The evidence demonstrated that the residence was

managed by Ronald Padolf (“Ronald”) who permitted Michaela McBride

Bradly (“Michaela”) and Jessica Rosenberger (“Jessica”) to live at the

property rent-free and without a signed lease. The apartment consisted of a

living room, kitchen, and two bedrooms -- Michaela and Jessica lived in one

bedroom and Jessica’s son stayed in the other. Ronald testified that he had
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noticed that appellant, Jessica’s boyfriend, was at the apartment “almost all

the time.”     (Notes of testimony, 11/9-13-12 at 90-92, 33-34, 56-57.)

Michaela, however, stated that appellant stayed there four or five nights a

week. Due to appellant’s continued presence, Ronald amended his rent-free

policy and insisted on being paid $250 per month; Michaela and Jessica

complied.

      On the date in question, appellant and his ten-year-old son were at the

apartment. Appellant was shooting heroin in the living room, and Michaela

was in her bedroom watching television. Around 11:00 p.m., Jessica started

calling out Michaela’s name, saying she needed help with appellant as she

thought he had overdosed. Appellant, while injecting heroin, had fallen back

onto a futon. Michaela saw appellant lying on the futon unresponsive with

Jessica on top of him trying to pull him up; Michaela called 9-1-1.

      Carl Rech “(Officer Rech”), an officer with the North Braddock Police

Department, arrived and observed appellant lying on his back on the living

room floor unconscious. At this time, Officer Rech saw a digital scale on the

top of the television with white powder residue and the grip of a pistol

sticking out between the frame and the mattress of the futon, located just to

the right of appellant. Paramedics arrived and administered three shots of

Narcan to appellant, which led him to regain consciousness.            Upon

resuscitation, appellant was combative and detained with handcuffs.




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      As EMS prepared to take appellant to the hospital, appellant was led to

the ambulance; he asked Officer Rech to retrieve his backpack from the

bedroom. Officer Rech found the backpack and, for safety purposes given

the presence of the firearm in the living room, looked inside. At the bottom

of the backpack, a silver revolver was found.      Thereafter, appellant was

charged with two counts of possession of person not to possess a firearm in

violation of 18 Pa.C.S.A. § 6105(A)(1) relating to the weapons found in the

residence.

      Michaela testified that earlier that same day she had seen appellant

with a backpack in the living room. She also stated that a few days prior to

the incident she had seen appellant “digging through” the same backpack

and pulling out a silver revolver. (Id. at 40-41.) Jessica testified that she

had previously seen appellant with a backpack and had seen him with

firearms in the apartment, including the silver revolver. (Id. at 65-67.)

      Appellant testified at trial and admitted that he went to 1712 Brinton

Avenue to shoot heroin. Appellant denied taking a firearm to the residence

and denied owning the backpack. Appellant testified that he was not in the

business of selling drugs and did not carry a firearm.

      The jury returned a verdict of guilty as to the firearm found in the

backpack and not guilty as to the firearm located on the futon.             On

February 23, 2013, appellant was sentenced to serve 42 to 84 months’

imprisonment.     A timely post-sentence motion was filed requesting a



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modification of sentence; this motion was later denied by operation of law

pursuant to Pa.R.Crim.P. 720(B)(3)(b).    (Docket #10.)    A timely notice of

appeal was filed. (Docket #11.) The following issues have been presented

for our review:

            I.     THE TRIAL COURT ERRED IN PERMITTING
                   EVIDENCE OF ITEMS CONTAINED IN A CLOSED
                   CONTAINER FOLLOWING A WARRANTLESS
                   SEARCH OF SAID CONTAINER, TO BE THE
                   BASIS FOR THE WITHIN CHARGES AND
                   VERDICT WHEN THERE WAS CLEAR EVIDENCE
                   THAT APPELLANT WAS NOT IN POSSESSION
                   OF THAT BAG/CONTAINER WHEN HE WAS
                   DETAINED AND THE SEARCH WAS NOT
                   INCIDENT TO ARREST.

            II.    THE TRIAL COURT ERRED BY ADMITTING
                   EVIDENCE    OF    APPELLANT’S PRIOR
                   CONVICTIONS FOR VIOLATIONS OF THE
                   UNIFORM FIREARMS ACT.

            III.   THE EVIDENCE IS INSUFFICIENT TO SUPPORT
                   THE VERDICT GENERALLY AND SPECIFICALLY
                   BECAUSE THE EVIDENCE DEMONSTRATED
                   THAT THE APPELLANT WAS UNCONSCIOUS
                   AND THUS INCAPABLE OF FORMING THE
                   SPECIFIC INTENT TO POSSESS THE FIREARM
                   IN QUESTION.

            IV.    THE VERDICT IS AGAINST THE WEIGHT OF
                   THE EVIDENCE.

            [V.]   THE TRIAL COURT ERRED IN DENYING
                   APPELLANT’S MOTION TO MODIFY SENTENCE.

Appellant’s brief at 4.

      The first issue presented is whether the trial court erred in failing to

suppress the revolver discovered in the backpack. He avers that the weapon



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was seized pursuant to an unlawful, warrantless search. (Appellant’s brief at

12.) We agree with the trial court and the Commonwealth that this claim is

waived.

     Appellant never filed a motion to suppress the evidence he now claims

was impermissibly seized by the police. Under Pennsylvania Rule of Criminal

Procedure 578, unless otherwise required in the interests of justice, all

pretrial requests, including a request for suppression of evidence, must be

included in one omnibus pretrial motion. See Pa.R.Crim.P. 578, Comment.

Rule 579 states that an omnibus pre-trial motion must be filed within

30 days of arraignment.    The only exceptions to this rule are:     (1) the

opportunity to do so did not exist, (2) the defendant or defense counsel was

unaware of the grounds for the motion, or (3) the time for filing was

extended by the court for good cause shown. See Pa.R.Crim.P. 579(A). “If

timely motion is not made . . . , the issue of suppression of . . . evidence

shall be deemed waived.” Pa.R.Crim.P. 581(C). See also Commonwealth

v. Baumhammers, 960 A.2d 59, 76 (Pa. 2008) (“[t]his Court has

consistently affirmed the principle that a defendant waives the ground of

suppressibility as a basis for opposition to the Commonwealth’s introduction

of evidence when he or she fails to file a suppression motion pursuant to our

rules of criminal procedure”); Commonwealth v. Williams, 311 A.2d 920

(Pa. 1973) (claim waived where defendant did not file motion to suppress

evidence). Thus, we deem appellant’s claim waived.



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      The second issue presented is whether the trial court erred by

admitting evidence of appellant’s prior firearms violation. (Appellant’s brief

at 15.)    Again, we concur with the Commonwealth that this claim is also

waived. Appellant failed to include this issue in his Rule 1925(b) statement,

and the trial court has not addressed it in its Rule 1925(a) opinion.

Therefore,     it    is   deemed    waived.        Pa.R.A.P.,   Rule    1925(b)(4)(vii),

42 Pa.C.S.A.        See also Commonwealth v. Marion, 981 A.2d 230, 237

(Pa.Super. 2009), appeal denied, 990 A.2d 729 (Pa. 2010) (“to preserve

their claims for appellate review, [a]ppellants must comply whenever the

trial court orders them to file a Statement of Matters Complained of on

Appeal pursuant to [Rule] 1925. Any issues not raised in a [Rule] 1925(b)

statement will be deemed waived.”) (citations omitted).

      Next, appellant argues that the evidence was insufficient to sustain his

conviction for person not to possess a firearm.

      In   reviewing       a   sufficiency    challenge,   we   apply    the   following

well-settled principles:

             The standard we apply in reviewing the sufficiency of
             the evidence is whether viewing all the evidence
             admitted at trial in the light most favorable to the
             verdict winner, there is sufficient evidence to enable
             the fact-finder to find every element of the crime
             beyond a reasonable doubt. In applying the above
             test, we may not weigh the evidence and substitute
             our judgment for the fact-finder. In addition, we
             note that the facts and circumstances established by
             the Commonwealth need not preclude every
             possibility of innocence. Any doubts regarding a
             defendant’s guilt may be resolved by the fact-finder


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           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.           The
           Commonwealth may sustain its burden of proving
           every element of the crime beyond a reasonable
           doubt by means of wholly circumstantial evidence.
           Moreover, in applying the above test, the entire
           record must be considered. Finally, the trier of fact
           while passing upon the credibility of witnesses and
           the weight of the evidence produced, is free to
           believe all, part or none of the evidence.

Commonwealth v. Brown, 23 A.3d 559-560 (Pa.Super. 2011) (en banc),

quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805 (Pa.Super.

2008).

     Section 6105 of the Crimes Code states in pertinent part:

           § 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).

     Appellant does not dispute that a prior conviction disqualified him from

possessing a firearm; on July 16, 2004, appellant pled guilty to possession



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of a controlled substance. Appellant argues that the Commonwealth failed

to satisfy the possession element.    (Appellant’s brief at 22.)   As appellant

was not in physical possession of the firearm, the Commonwealth was

required to establish that he had constructive possession of the weapon.

            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), appeal

denied, 63 A.3d 1243 (Pa. 2013) (internal quotation marks and citation

omitted).

     Herein,   the    Commonwealth     established   that   appellant   was   in

constructive possession of the backpack.       Officer Rech testified that he

responded to a call regarding a heroin overdose.      He explained that after

appellant was treated by paramedics and revived, appellant asked the officer

to retrieve his backpack from the bedroom.           Officer Rech found the

backpack, and for safety purposes, looked inside the backpack before giving

it to appellant.     Inside the backpack, Officer Rech discovered a silver

revolver. The Commonwealth also presented the testimony of Jessica and

Michaela; both women testified that they had seen appellant previously with


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the backpack and the silver revolver.       Thus, the jury was entitled to

conclude that appellant had possessed the firearm found in the backpack.

      In the fourth issue, appellant argues that the verdict was against the

weight of the evidence. (Appellant’s brief at 26.)

            “[A] weight of the evidence claim must be preserved
            either in a post-sentence motion, by a written
            motion before sentencing, or orally prior to
            sentencing. Pa.R.Crim.P. 607; Commonwealth v.
            Priest, 18 A.3d 1235, 1239 (Pa.Super. 2011).
            Failure to properly preserve the claim will result in
            waiver, even if the trial court addresses the issue in
            its opinion.” Commonwealth v. Sherwood, 603
            Pa. 92, 982 A.2d 483, 494 (2009).

Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.Super. 2012). Here,

appellant did not raise a weight of the evidence claim in either a

pre-sentence or post-sentence motion. As we noted above, appellant filed a

post-sentence motion, but the motion requested only a modification of

sentence. (Docket #8.) As such, we find this allegation waived for purposes

of appeal. Lofton, supra.

      The final issue presented concerns the discretionary aspects of

sentencing. Appellant is challenging the discretionary aspects of sentencing

for which there is no automatic right to appeal. Commonwealth v. Koren,

646 A.2d 1205, 1207 (Pa.Super. 1994).        Two requirements must be met

before a challenge to the judgment of sentence will be heard on the merits.

Id. First, the appellant must set forth in his brief a concise statement of the

reasons relied upon for allowance of appeal with respect to the discretionary



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aspects of his sentence. Id.; Pa.R.A.P. 2119(f). Second, he must show that

there is a substantial question that the sentence imposed is not appropriate

under the Sentencing Code.     42 Pa.C.S.A. § 9781(b); Commonwealth v.

Urrutia, 653 A.2d 706, 710 (Pa.Super. 1995).

       The determination of whether a particular issue raises a substantial

question is to be evaluated on a case-by-case basis.     Commonwealth v.

Maneval, 688 A.2d 1198, 1199-1200 (Pa.Super. 1997).                Generally,

however, in order to establish a substantial question, the appellant must

show actions by the sentencing court inconsistent with the Sentencing Code

or contrary to the fundamental norms underlying the sentencing process.

Id.

       Appellant has included in his brief the mandatory concise statement of

reasons relied upon for allowance of appeal from the discretionary aspects of

his sentence. (Appellant’s brief at 28-30.) Therein, appellant complains that

his sentence, which was within the statutory limits and at the lower end of

the standard range of the Sentencing Guidelines, was unreasonable. (Id. at

29.)   Appellant has not, however, explained in his Rule 2119(f) statement

how he has set forth a substantial question. A Rule 2119(f) statement that

simply contains incantations of statutory provisions and pronouncements of

conclusions of law is inadequate. Commonwealth v. Thompson, 547 A.2d

800, 802 (Pa.Super. 1988).

            Rather, only where the appellant’s Rule 2119(f)
            statement sufficiently articulates the manner in


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            which the sentence violates either a specific
            provision of the sentencing scheme set forth in the
            Sentencing Code or a particular fundamental norm
            underlying the sentencing process, will such a
            statement be deemed adequate to raise a substantial
            question so as to permit a grant of allowance of
            appeal of the discretionary aspects of the sentence.

Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002).

      Limiting our review to appellant’s Rule 2119(f) statement, we conclude

that appellant has failed to raise a substantial question. In fact, nowhere in

his Rule 2119(f) statement does he explain what specific provision of the

sentencing code or fundamental norm underlying the sentencing process has

been violated. Thus, we decline to review his sentencing claim.

      Even if we were to turn to the argument section of his brief to review

his claim, we would find Judge Durkin did not abuse her discretion in

sentencing appellant.   Appellant was sentenced at the bottom-end of the

standard range of the sentencing guidelines. The trial court explicitly stated

that it reviewed the pre-sentence report. (Notes of testimony, 2/25/13 at 2-

3, 19.) The trial court also considered letters written on behalf of appellant,

the testimony of Kim Vilella, appellant’s mother-in-law, and appellant’s

testimony. The court considered the fact that appellant had a previous 15 to

30-month sentence for a felony drug conviction that involved firearms,

following which appellant violated probation.    The Commonwealth argued

that appellant committed the instant offense with his young son in the

house, where he readily admitted he went to use heroin.       (Id. at 18.)   It



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cannot    be    said   that   the   sentence   imposed   was   unreasonable.

Commonwealth v. Ventura, 975 A.2d 1128, 1133-1135 (Pa.Super. 2009),

appeal denied, 987 A.2d 161 (Pa. 2009) (where the trial court clearly

relied on the pre-sentence report and the sentence imposed was not outside

the applicable guidelines or unreasonable, the court did not commit an abuse

of its discretion).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/3/2015




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