J-S75019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

MICHAEL JEROME PALMER

                            Appellant                   No. 3510 EDA 2015


             Appeal from the Judgment of Sentence October 28, 2015
                 In the Court of Common Pleas of Lehigh County
               Criminal Division at No(s): CP-39-CR-0004205-2014


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

MEMORANDUM BY MOULTON, J.:                        FILED NOVEMBER 23, 2016

       Michael Jerome Palmer appeals from the October 28, 2015 judgment

of sentence entered in the Court of Common Pleas of Lehigh County

following his conviction for persons not to possess firearms.1 We affirm.

       The trial court set forth the following facts:

               [A]t 5:00 P.M. on February 12, 2014, Detective Robert
            Flores of the Allentown Police Department Vice and
            Intelligence Division was conducting a prostitution sting.
            Detective Flores had responded to an ad placed on the
            internet site, Backpage.com, that led to the exchange of
            text messages with a female. The female, later identified
            as Amanda Shore, made arrangements to meet Detective
            Flores at 6:00 P.M. at the Rodeway Inn located at 2115
            Downeyflake      Lane,    Allentown,    Lehigh    County,
            Pennsylvania. An agreement was reached between him
            and Ms. Shore regarding the exchange of one (1) hour of
____________________________________________


       1
           18 Pa.C.S. § 6105(a)(1).
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       sex for One Hundred seventy-five ($175.00) Dollars.
       Detective Flores proceeded to Room 215 at the Rodeway
       Inn as instructed. Ms. Shore observed Detective Flores
       through the peep hole and allowed his entrance into the
       motel room.6
          6
            Ms. Shore had provided Detective Flores with the
          room number across the hall from her motel room as
          a safety precaution. She wanted the opportunity to
          view him prior to allowing him to enter her motel
          room.

           After Detective Flores placed the money on the table
       and Ms. Shore began to take off her shirt, three (3) other
       detectives and one (1) detective sergeant (Detective
       Sergeant Rocca) responded and knocked on the door.7
       The four (4) police officers entered the motel room to
       arrest the subject female. Detective Flores inquired of Ms.
       Shore if there was any contraband in the room and she
       replied in the negative. Thereafter, the officers searched
       the motel room for contraband and weapons. While doing
       so, three (3) bags by the bed closer to the window were
       located. Specifically, a red and blue duffel bag, a suitcase
       with women’s clothing, and a toiletry bag with women’s
       toiletries in it. Within the red and blue duffel bag, a black
       Champion drawstring bag which contained a loaded black
       Kel-Tec 9mm handgun with a magazine was located.8 It
       was determined that this handgun had been stolen from
       Jacksonville, Florida in 2011.9
          7
             At this time, Detective Flores texted the other
          officers to come into the motel room.
          8
            All of the clothing within the red and blue duffel
          bag was men’s clothing.
          9
            The female showed Detective Flores approximately
          ten (10) to fifteen (15) pictures on her cell phone of
          “Millz,” and in one (1) picture he was wearing the
          same red shirt and red and black Chicago Bulls hat
          that were found in the duffel bag.

          When Detective Flores inquired as to whom the bags
       belonged to, the woman denied ownership of same. She
       called a male known as “Millz,” and asked him, via speaker
       phone, to come to the motel room. Shortly thereafter,

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           [Palmer] arrived at the Rodeway Inn in a black Jeep.10
           This black male, later identified as the Defendant Michael
           Palmer,11 proceeded to knock on the door of the motel
           room. [Palmer] entered the room, and Detective Boyer
           patted him down for officer safety. Detective Boyer asked
           [Palmer] to furnish his name and date of birth so that a
           warrant check could be performed. Upon learning that
           there were no warrants outstanding, Detective Flores
           inquired of [Palmer] if the duffel bag in the motel room
           was his. [Palmer] indicated that, “Yes. The clothes belong
           to me,” and asked if he could get them back. At this point,
           [Palmer] was handcuffed, placed into custody, and
           transported to the Headquarters of the Allentown Police
           Department.12
              10
                Ms. Shore had advised Detective Flores that Millz
              would be returning in a black Jeep.
              11
                 Detective Flores immediately recognized [Palmer]
              as the same male depicted in Ms. Shore’s pictures.
              12
                 At Headquarters, [Palmer]         denied   that   the
              handgun belonged to him.

Trial Court Opinion, 11/9/15, at 13-15 (“Op.”) (internal citations omitted).2

After Palmer was taken to the police department, the police conducted a

criminal background check and discovered that Palmer was prohibited from

carrying a firearm because of a 2009 felony robbery conviction in

Northampton County. Id.

       On September 11, 2015, a jury convicted Palmer of persons not to

possess firearms. On October 28, 2015, the trial court sentenced Palmer to

3½ to 7 years’ imprisonment.           On November 3, 2015, Palmer filed post-
____________________________________________


       2
        In its subsequent Pennsylvania Rule of Appellate Procedure 1925(a)
Opinion, the trial court incorporated its November 9, 2015 opinion in its
entirety.



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sentence motions, which the trial court denied. Palmer filed a timely notice

of appeal.

      Palmer raises the following issues on appeal:

         A. WHETHER OR NOT THE EVIDENCE AS PRESENTED WAS
         SUFFICIENT AS A MATTER OF LAW TO SUPPORT THE
         CONVICTION FOR PERSON NOT TO POSSESS A FIREARM
         WHEN THE EVIDENCE IDENTIFYING THE DEFENDANT AS
         THE POSSESSOR OF THE FIREARM WAS UNCLEAR, VAGUE,
         OR SPECULATIVE?

         B. WAS THE VERDICT AGAINST THE WEIGHT OF ALL THE
         EVIDENCE IN REGARDS TO THE PROOF OF WHETHER OR
         NOT THE DEFENDANT WAS PROPERLY IDENTIFIED AS THE
         POSSESSOR OF THE FIREARM?

         C. WAS THE DEFENDANT UNFAIRLY PREJUDICED WHEN
         THE PROSECUTOR, DURING CLOSING ARGUMENTS,
         MISSTATED THE EVIDENCE REGARDING THE OWNERSHIP
         OF THE BAG IN WHICH THE ILLEGAL FIREARM WAS
         FOUND OR IMPROPERLY ASKED THE JURY TO CONSIDER
         AS EVIDENCE TESTIMONY THAT HAD BEEN SPECIFICALLY
         LIMITED IN ITS USE?

Palmer’s Br. at 8-9.

      Palmer first challenges the sufficiency of the evidence. We apply the

following standard when reviewing a sufficiency claim: “[W]hether 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.”        Commonwealth v.

Lehman, 820 A.2d 766, 772 (Pa.Super. 2003), aff’d, 870 A.2d 818 (Pa.

2005) (quoting Commonwealth v. DiStefano, 782 A.2d 574, 582

(Pa.Super. 2001)).     In applying this standard, “we may not weigh the

evidence and substitute our judgment for the fact-finder.” Id.


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       “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.”          Id.   Moreover, “[a]ny

doubts regarding a defendant’s guilt may be resolved by the fact-finder

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.”              Id.

“The Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.”     Id.   In applying the above test, we must evaluate the entire

record and consider all evidence actually received. DiStefano, 782 A.2d at

582. Further, “the trier of fact[,] while passing upon the credibility of the

evidence produced, is free to believe all, part or none of the evidence.” Id.

       A defendant is guilty of persons not to possess a firearm if he has been

convicted of an enumerated offense and possesses, uses, controls, sells,

transfers, or manufactures a firearm.          18 Pa.C.S. § 6105(a)(1). 3   Because

the firearm was not found on Palmer’s person, the Commonwealth had to

prove constructive possession. See Commonwealth v. Kirkland, 831 A.2d

607, 610 (Pa.Super. 2003) (finding that when no narcotics were found on

appellant’s     person,    the    Commonwealth       had   to   prove   constructive

possession). “Constructive possession is established when a person, though

lacking . . . physical custody, still has the power and intent to exercise

____________________________________________


       3
           Robbery is an offense enumerated in 18 Pa.C.S. § 6105(b).



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control over the object.”    Henderson v. United States, 135 S.Ct. 1780,

1784 (2015). The elements of constructive possession may be inferred from

the totality of the circumstances and may be proven by circumstantial

evidence.   Commonwealth v. Gray, 469 A.2d 169, 170-71 (Pa.Super.

1983), aff’d, 503 A.2d 921 (Pa. 1985).

       Palmer claims that the Commonwealth failed to present sufficient

evidence that he constructively possessed the firearm. Palmer’s Br. at 19.

We disagree.        As the trial court found, the Commonwealth presented

sufficient evidence that Palmer constructively possessed the firearm. Op. at

15-16. Shore testified that before arriving at Rodeway Inn, she and Palmer

had stayed at The Knights Inn for two to three days, N.T., 9/10/15, at 50-

51, and that the duffel bag belonged to Palmer, id. at 58-60.       She also

testified that her arrangement with Palmer included his providing her

protection in the event she needed it. Id. at 49-50, 87-88. At the scene,

she showed the officers pictures of Palmer on her phone, including a picture

of Palmer wearing the clothes that the police found in the duffel bag that

also contained the drawstring bag with the firearm. Id. at 61-72; Op. at 6

n.4. On one of the pictures of Palmer, Shore had superimposed the word

“Millz.” N.T., 9/10/15, at 64-65. Shore was asked to call “Millz,” which she

did.   Id. at 78.     She further informed the officers that “Millz” would be

arriving in a black Jeep. Id. at 81. Approximately 15 minutes later, Palmer

arrived in a black Jeep.    Id. at 135-36. When the police asked him if he


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owned the duffel bag, he responded, “Yes.” Id. at 136-37. Palmer did go

on to say “[t]he clothes are mine,” id. at 137, and he never specifically

admitted that the drawstring bag or firearm belonged to him. Nevertheless,

taken together, Palmer’s admission that he owned the duffel bag in which

the firearm was found, Shore’s testimony to his ownership of that bag and to

his offer of protection, and circumstantial evidence linking him to the bag

(the bag contained male clothing and a hat embroidered with “Millz”) were

more than sufficient to allow the fact-finder to conclude that Palmer had the

power and intent to exercise control over the firearm.

      Next, Palmer claims that the verdict was against the weight of the

evidence and, thus, that the trial court abused its discretion in upholding the

verdict. Palmer’s Br. at 21-22. A defendant must raise a claim challenging

the weight of the evidence 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).   A defendant waives a weight challenge if he fails to

raise it before the trial court.   Commonwealth v. Sherwood, 982 A.2d

483, 494 (Pa. 2009).      Palmer waived his weight of the evidence claim




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because he failed to raise it before sentencing, at sentencing, or in a post-

sentence motion.4

       Finally, Palmer challenges the trial court’s denial of a mistrial based on

prosecutorial misconduct. We apply the following standard when reviewing

a claim of prosecutorial misconduct:

               Our standard of review for a claim of prosecutorial
           misconduct is limited to whether the trial court abused its
           discretion.    In considering this claim, our attention is
           focused on whether the defendant was deprived of a fair
           trial, not a perfect one. Not every inappropriate remark by
           a prosecutor constitutes reversible error. A prosecutor’s
____________________________________________


       4
         Palmer also waived this claim by failing to include it in his
Pennsylvania Rule of Appellate Procedure 1925(b) statement.       See
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not
raised in a [Rule] 1925(b) statement will be deemed waived.”).

      Even had Palmer preserved this claim, it would fail. This court reviews
a weight of the evidence claim for abuse of discretion. Commonwealth v.
Clay, 64 A.3d 1049, 1055 (Pa. 2013). Palmer claims that the verdict was
against the weight of the evidence because there was no proof that he ever
possessed the firearm, no prints on the gun matched Palmer’s prints, and
the evidence “was so tenuous, vague and uncertain such that the verdict
should shock the conscience of the Court.”            Palmer’s Br. at 22, 23.
However, as discussed above, the Commonwealth established Palmer’s guilt
for the crime beyond a reasonable doubt. The jury was free to credit the
Commonwealth’s evidence linking him to the crime. See Commonwealth
v. Page, 59 A.3d 1118, 1130 (Pa.Super. 2013) (quoting Commonwealth
v. Price, 616 A.2d 681, 685 (Pa.Super. 1992) (credibility determination “lies
solely within the province of the factfinder”); Commonwealth v. DeJesus,
860 A.2d 102, 107 (Pa.Super. 2004) (“The weight of the evidence is
exclusively for the finder of fact, which is free to believe all, part, or none of
the evidence, and to assess the credibility of the witnesses.”). Palmer’s
argument that we should overturn the jury’s determination is unpersuasive.




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        statements to a jury do not occur in a vacuum, and we
        must view them in context.      Even if the prosecutor’s
        arguments are improper, they generally will not form the
        basis for a new trial unless the comments unavoidably
        prejudiced the jury and prevented a true verdict.


Commonwealth v. Bedford, 50 A.3d 707, 715-16 (Pa.Super. 2012)

(internal citations and quotations omitted).     Further “a prosecutor has

considerable latitude during closing arguments and his arguments are fair if

they are supported by the evidence or use inferences that can reasonably be

derived from the evidence.” Commonwealth v. Caldwell, 117 A.3d 763,

773 (Pa.Super. 2015) (quoting Commonwealth v. Judy, 978 A.2d 1015,

1020 (Pa.Super. 2009)).

     Palmer claims that the assistant district attorney (“ADA”), during his

closing argument, improperly used Shore’s statements to the officers.

Palmer’s Br. at 24.       The following exchange occurred during closing

argument:

        [ADA]: . . . Let’s go through it. Amanda says she’s
        sharing the room with [Palmer]. True. By their own
        admission, that’s true. She says that the bag belongs to
        [Palmer] when she’s questioned - -

        [DEFENSE COUNSEL]: Objection. That’s a false statement
        of the evidence.
        ...

            (The following discussion took place at sidebar:)

        ...

        [DEFENSE COUNSEL]: He just said that she said the bag
        is his. This is a direct misstatement of her testimony. She
        couldn’t identify the bag at all. She said it repeatedly.
        That’s my objection.

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        THE COURT: Your objection is overruled.

          (Discussion at sidebar concluded.)
        ...

        [ADA]: She tells us the bag is [Palmer]’s, the bag that the
        gun is found in belongs to [Palmer]. Again, [Palmer]
        agrees that that is - -

        [DEFENSE COUNSEL]: Objection, Your Honor. May we be
        heard?

        THE COURT: No, you may not. The testimony will be the
        jury’s determination and recollection is what is controlling
        here. I believe that what [the ADA] is talking about is
        when they first spoke to Amanda Shore. So if you want to
        be a little more clear about at what point she said that
        [Palmer]’s bag - - that that bag belonged to [Palmer]. For
        that reason, if there was an objection, I’ll sustain that part
        of it. Just to be clear on which portion of time, her
        testimony versus any other statement.

        [ADA]: The bag containing the male clothing, the only bag
        in the room containing male clothing - - this bag here so
        we’re sure what we’re talking about, . . . - - when she was
        asked about the bag containing male clothing found in the
        room, she said it belonged to the Defendant, Millz. That
        part is true, too.

N.T., 9/11/15, at 24-27.

     Palmer’s brief appears to advance two distinct complaints about that

part of the ADA’s closing quoted above. The first complaint is that the ADA

misstated the evidence.     Palmer’s Br. at 23-24.      In particular, Palmer

contends that while Shore had told the detective only that the larger duffel

bag belonged to Palmer, the ADA suggested that she had said the smaller

drawstring bag, which held the firearm and which was in the larger bag,

belonged to Palmer.     After the trial court partially sustained a defense

objection on this point, the ADA clarified that the “bag” he was referring to

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was the duffel bag with Palmer’s clothes, not the drawstring bag with the

firearm.      N.T., 9/11/15, at 26-27.         Moreover, the trial court promptly

instructed the jury that, concerning trial testimony, “the jury’s determination

and recollection is what is controlling here.”          Id. at 26.    “The jury is

presumed to have followed the court’s instructions.”          Commonwealth v.

Chmiel, 30 A.3d 1111, 1147 (Pa. 2011) (quoting Commonwealth v. Flor,

998 A.2d 606, 632 (Pa. 2010)). Accordingly, this complaint does not merit

reversal.

       Palmer’s second complaint is that the ADA’s closing argument used

Shore’s statement to the detective for its truth, contrary to the trial court’s

ruling and contrary to the rules of evidence.5 Palmer’s Br. at 24. Based on



____________________________________________


       5
         During Detective Flores’s direct examination, Palmer’s counsel
objected to the admission of Shore’s statements to the Detective on the day
of the arrest as inadmissible hearsay. After that objection was overruled on
the ground that the statements were not offered for their truth, N.T.,
9/10/15, at 114-15, counsel requested “a curative instruction so the jury
understands the distinction.” Id. at 115. The trial court administered the
following limiting instruction:

            THE COURT: I will give the appropriate instruction during
            closing.   But if you want something now, what the
            testimony is right now that is coming from this Detective
            about what was told to him by the witness you previously
            heard is what’s called hearsay. Because it’s an out-of-
            court statement made by someone who wasn’t under oath
            at the time, it can’t be offered by this officer for its truth.
            What you heard from her is direct testimony that you can
            evaluate its credibility based on its own.
(Footnote Continued Next Page)


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the trial transcript, we agree that the Commonwealth did appear to use for

its truth Shore’s statement to the police that the duffel bag belonged to

Palmer.   See id. at 27 (“[W]hen she was asked about the bag containing

male clothing found in the room, she said it belonged to the Defendant,

Millz. That part is true, too.”).6 That out-of-court statement was not, and

could not properly have been, admitted for its truth. See supra note 5.

      Despite this prosecutorial error, reversal is not warranted. First, the

reference to Shore’s statement to the detective was merely cumulative of

her trial testimony, during which she told the jury directly that the duffel bag

belonged to Palmer.          N.T., 9/10/15, at 58-60.   Moreover, the detective

testified that Palmer himself had admitted that the duffel bag belonged to

him. Palmer’s Br. at 16; N.T., 9/10/15, at 137. Second, the trial court twice

issued appropriate instructions concerning the proper use of Shore’s
                       _______________________
(Footnote Continued)

             When he tells you now what she told him, it will explain
          to you, ladies and gentlemen, why he next did what he did
          and the acts thereafter. That is how you are to receive
          this testimony. You may continue.

N.T., 9/10/15, at 115. Furthermore, at the end of trial, the trial court again
instructed the jury on the purpose of Shore’s statements to Detective Flores.
See infra note 7.
      6
          In context, this reference appears to be to “when [Shore was]
questioned” at the scene. N.T., 9/11/15, at 24.; see also id. at 26 (trial
court’s observation that “I believe that what [the ADA] is talking about is
when they first spoke to Amanda Shore”).         In contrast, Shore’s trial
testimony that the bag belonged to Palmer was properly admitted and used
for its truth.




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statement to the detective, once during Detective Flores’s testimony, see

supra note 5, and again during the jury charge.7             As noted above, “[t]he

jury is presumed to have followed the court’s instructions.”           Chmiel, 30

A.3d at 1147. The trial court did not abuse its discretion in denying Palmer’s

request for relief based on prosecutorial misconduct.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2016




____________________________________________


       7
           During the jury charge, the trial court stated:

            The statements made by Amanda Shore to Detective
            Flores on the night of her arrest were admitted for the
            purpose of you knowing why the Detective then took
            further action. Those statements made in the night of
            Amanda Shore’s arrest to Detective Flores were not
            admitted for the truth of the matter.

N.T., 9/11/15, at 51. Before the court gave this instruction, Palmer’s
counsel stated that he was satisfied with it. Id. at 41.




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