J-S55004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MONTEZ DELMAR DIXON                        :
                                               :
                       Appellant               :   No. 1029 WDA 2018

       Appeal from the Judgment of Sentence Entered February 15, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0001829-2017


BEFORE:      MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                            FILED OCTOBER 25, 2019

        Montez Delmar Dixon (Appellant) appeals from the judgment of

sentence imposed after the trial court convicted him of persons not to possess,

use, manufacture, control, sell or transfer firearms; firearms not to be carried

without a license; tampering with or fabricating physical evidence; and defiant

criminal trespass.1 Upon review, we affirm.

        The trial court recounted the evidence presented at trial as follows:

              On December 28, 2016, at approximately 2:00 p.m.,
        Detective Andrew Robinson of the City of Pittsburgh Police
        Department was on patrol in the Beltzhoover area of Pittsburgh,
        a known high crime area. Detective Robinson was driving down
        Sylvania Way when he noticed Appellant, wearing black jeans, a
        black hoodie sweatshirt, and a black tassel cap. As Detective
        Robinson drove closer, Appellant observed the unmarked police

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 4910(1), and 3503(b)(1)(iii).
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      vehicle, quickly grabbed his right waist area with both hands
      securing what the officer believed to be a concealed firearm.
      Appellant fled while grasping his waistband area with both hands.
      Appellant ran toward the rear of 428 Orchard Place.
      Approximately three to five seconds later, Appellant emerged from
      the rear of 428 Orchard Place, “pumping both of his arms as he
      was running” and no longer grabbing his waistband area.
      Appellant was able to flee the area without being apprehended.

            Detective Robinson, based on his training and experience,
      believed that Appellant had discarded a firearm in the rear of 428
      Orchard Way. The detective checked the area where Appellant
      emerged seconds before and discovered a loaded 9mm Glock 26
      firearm. The firearm was recovered in plain view from a tarped
      area on the ground at the opening of the garage at 428 Orchard
      Way. Although Appellant successfully fled the area, Detective
      Robinson knew Appellant from several previous encounters.
      Appellant was not permitted to possess a license to carry a
      concealed weapon.

            Detective Robinson contacted probation and parole and
      requested Appellant’s current address.      After receiving the
      information Detective Robinson applied for an arrest warrant for
      Appellant, and he was subsequently apprehended and arrested at
      the address provided by probation and parole. The firearm was
      submitted to the Allegheny County Crime Lab and determined to
      be operable; no latent fingerprints of value were recovered.
      Additionally, the firearm was logged for DNA testing, but no test
      was performed.

            Mr. John Yochum, the owner of 428 Orchard Place at the
      time of the incident, indicated his property had a chain link fence
      and gate which was closed but not locked. Mr. Yochum further
      indicated that there was a two car garage approximately fifteen
      feet by twelve feet in size at the back of the property which could
      only be accessed by the main door. On the date in question part
      of the garage door was missing which he had covered with a tarp.
      Mr. Yochum verified that the firearm recovered was not his
      property, he had been in the garage the day before the incident,
      and did not observe any firearm on his property.

Trial Court Opinion, 1/14/19, at 4-6 (citations to notes of testimony omitted).




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       Based on this evidence, the trial court convicted Appellant of the

aforementioned crimes. Prior to sentencing, Appellant’s trial counsel filed a

motion to withdraw from representation. On January 22, 2018, the trial court

granted trial counsel’s motion and appointed current counsel, Kelvin L. Morris,

Esquire, to represent Appellant.

       On February 15, 2018, the trial court sentenced Appellant to an

aggregate 3 to 6 years of incarceration. Appellant filed a timely post-sentence

motion, and subsequently, an amended post-sentence motion. The trial court

denied Appellant’s post-sentence motions on June 21, 2018. Appellant filed a

timely notice of appeal. Both Appellant and the trial court have complied with

Pennsylvania Rule of Appellate Procedure 1925.

       On appeal, Appellant challenges whether “the Commonwealth presented

sufficient evidence that Appellant, beyond a reasonable doubt, constructively

possessed the firearm related to the crimes charged.” Appellant’s Brief at 2.2

Our standard of review is well-settled:

          [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
____________________________________________


2 Appellant's Rule 1925(b) statement raises additional weight of the evidence
claims not presented in his appellate brief. See Rule 1925(b) Statement,
9/21/18, at *2. Appellant does not raise these claims in his brief and thus we
do not address them. See Appellant’s Brief at 2; see also Commonwealth
v. Briggs, 12 A.3d 291, 310 n.19 (Pa. 2011), cert. denied, 132 S. Ct. 267
(2011) (refusing to address claim appellant raised with trial court but
subsequently abandoned in brief).

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     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.

         The Commonwealth may sustain its burden by means of wholly
     circumstantial evidence. Accordingly, the fact that the evidence
     establishing a defendant’s participation in a crime is circumstantial
     does not preclude a conviction where the evidence coupled with
     the reasonable inferences drawn therefrom overcomes the
     presumption of innocence. Significantly, we may not substitute
     our judgment for that of the factfinder; thus, so long as the
     evidence adduced, accepted in the light most favorable to the
     Commonwealth, demonstrates the respective elements of a
     defendant’s crimes beyond a reasonable doubt, the appellant’s
     convictions will be upheld.

Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa. Super. 2019)

(citation omitted). We emphasize that the trial court — as the trier of fact —

is free to believe all, part, or none of the evidence.    Commonwealth v.

Melvin, 103 A.3d 1, 40 (Pa. Super. 2014) (citation omitted). In conducting

review, the appellate court may not weigh the evidence and substitute its

judgment for the fact-finder. Id. at 39-40.

     On appeal, Appellant challenges the sufficiency of the Commonwealth’s

evidence regarding his two firearms convictions, asserting that the evidence

did not support “constructive possession beyond a reasonable doubt . . . over

the firearm found at 428 Orchard Place, specifically, that Appellant had both

the power to control the firearm and the intent to exercise that control.”

Appellant’s Brief at 8. Appellant argues that there was insufficient evidence


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“for a judge to find him guilty . . . of person not to possess a firearm, carrying

a firearm without a license, and tampering with or fabricating physical

evidence,” and asserts that “the firearm was found on the property of a third-

party, a location that was accessible to anyone who passed the rear of 428

Orchard Place, and therefore, would not lead to the inference that Appellant

was the only one that could have placed it there or knew of its presence.” Id.

at 8, 14.

      With regard to persons not to possess a firearm, Section 6105 of the

Uniform Firearms Act (UFA) provides:

      (a) Offense defined.--

      (1) A person who had 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) (emphasis added).

      With regard to carrying a firearm without a license, Section 6106 states:

      Except as provided in paragraph (2), any person who carries a
      firearm in any vehicle or any person who carries a firearm
      concealed on or about his person, except in his place of abode
      or fixed place of business, without a valid and lawfully issued
      license under this chapter commits a felony of the third degree.

18 Pa.C.S.A. § 6106(a)(1) (emphasis added).

      In addressing Appellant’s arguments as to both firearms convictions, the

trial court explained:


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              Contrary to Appellant’s assertion, the evidence showed that
      Appellant both possessed and concealed the firearm in question
      and did not possess a license to carry said firearm. As such, the
      evidence was sufficient to convict Appellant of possession of
      firearm prohibited and firearms not to be carried without a license.
      To wit, the evidence established that: (1) Detective Robinson
      observed Appellant near Sylvania Way while on patrol in the
      [Beltzhoover] area of Pittsburgh; (2) upon noticing the unmarked
      police vehicle, Appellant grabbed his waist area with both hands
      in an obvious attempt to conceal the firearm; (3) Appellant, while
      still grasping his waistband, immediately fled the immediate area
      running toward the property owned by Mr. Yochum; (4) three to
      five seconds later Detective Robinson observed Appellant emerge
      running from the rear of the property; (5) Appellant’s hands were
      no longer grasping his waist area, but rather his arms were
      “pumping” as he fled the scene; (6) Detective Robinson recovered
      the loaded firearm from the area Appellant had just emerged from
      seconds earlier; (7) the firearm was considered a valuable
      commodity among individuals involved in criminal activity and not
      likely to be abandoned in such a manner; (8) Detective Robinson
      was able to identify Appellant from previous encounters; and (9)
      the recovered loaded firearm was not the property of Mr. Yochum.

             Detective Robinson, with seven and a half years’ experience
      in law enforcement, indicated based on his training and that
      experience as a City of Pittsburgh Police Officer, that Appellant’s
      specific actions of grabbing his waist area with both hands upon
      noticing the unmarked police vehicle was entirely consistent with
      securing a firearm so that he could flee while retaining its
      possession. This was of course corroborated by Appellant’s
      subsequent conduct after discarding the weapon when he
      emerged from the garage area “running with both arms pumping.”
      See Commonwealth v. Hewlett, 189 A.3d 1004, 1010 (Pa.
      Super. 2018) (holding evidence was sufficient to convict
      defendant of possession of a firearm and carrying a firearm
      without a license where police witnessed defendant flee a vehicle
      involved in a high-speed chase clutching his waistband and
      observed defendant crouching behind parked vehicles where they
      later recovered a firearm).

Trial Court Opinion, 1/14/19, at 8-9 (citations to notes of testimony omitted).

      We agree. Our review reveals that Appellant did not testify nor did he


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present any witnesses in his defense.      The Commonwealth presented two

witnesses: Detective Robinson and Mr. Yochum. The evidence presented by

the Commonwealth was that Detective Robinson saw Appellant grab his waist

with both hands while running toward Orchard Place. N.T., 10/23/17, at 12.

Detective Robinson opined that Appellant appeared to be grabbing a firearm.

Id. at 13-14. Detective Robinson testified that a few seconds later, Appellant

reappeared, running with both of his arms “pumping,” and no longer reaching

toward his waist. Id. at 15.

      Because Detective Robinson recognized Appellant and believed he had

discarded a firearm, Detective Robinson proceeded to the yard behind 428

Orchard Place, where he recovered a Glock model 26 firearm protruding from

under a tarp.   N.T., 10/23/17, at 16-18.     Mr. Yochum, the owner of 428

Orchard Place, testified that the gun did not belong to him, and he had never

seen it before. Id. at 35-36. Further, Appellant stipulated that he was not

permitted to carry a firearm. Id. at 22.

      It is well-settled that the Commonwealth may sustain its burden of proof

“by means of wholly circumstantial evidence.” Sebolka, 205 A.3d 336. Thus,

the record supports the trial court’s conclusion that the “only reasonable

inference that flows from this instance is that [Appellant] was in possession of

a firearm[, fled] from the police[, and discarded] it in the face of police

presence.” N.T., 11/15/17, at 4.

      Appellant also challenges the sufficiency of the evidence pertaining to


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his tampering with physical evidence conviction relative to his actions in

discarding the firearm. Section 4910(1) reads:

      A person commits a misdemeanor of the second degree if,
      believing that an official proceeding or investigation is pending or
      about to be instituted, he . . . alters, destroys, conceals or
      removes any record, document or thing with intent to impair its
      verity or availability in such proceeding or investigation[.]

18 Pa.C.S.A. § 4910(1).

      The trial court succinctly but accurately rejected this claim, stating:

             The [t]rial [c]ourt carefully reviewed all the evidence and
      determined that the Commonwealth established beyond a
      reasonable doubt that Appellant fled the area upon observing the
      police and concealed said firearm in his waistband, later discarding
      it by the garage in an attempt to impair its recovery by the
      officers. As such, the evidence was clearly sufficient to support
      Appellant’s conviction for tamper with/fabricate physical evidence.
      See Commonwealth v. Toomer, 159 A.3d 956, 962 (Pa. Super.
      2017) (holding that the evidence was sufficient to convict
      defendant of tampering with evidence where defendant concealed
      the firearm with the intent to impair its availability).

Trial Court Opinion, 1/14/19, at 10.

      Again, our review of the record and pertinent legal authority supports

the trial court’s conclusions where the evidence, viewed in the light most

favorable to the Commonwealth, was that Appellant tampered with evidence

by discarding the firearm while running from Officer Robinson. See Sebolka,

205 A.3d at 336.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2019




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