J. S15036/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
ALANAH F.F. PETERS,                      :         No. 2176 EDA 2015
                                         :
                          Appellant      :


            Appeal from the Judgment of Sentence, June 2, 2015,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0001270-2012


BEFORE: BOWES, J., DUBOW, J. AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED JANUARY 30, 2018

      Alanah F.F. Peters appeals from the judgment of sentence entered in

the Court of Common Pleas of Philadelphia County after a jury convicted her

of attempted murder, aggravated assault, robbery, conspiracy to commit

murder, possession of an instrument of crime, recklessly endangering

another person, firearms not to be carried without a license, and carrying

firearms on public streets or public property in Philadelphia.1 The trial court

imposed an aggregate sentence of 13 to 30 years of imprisonment.           We

affirm.

      The trial court set forth the following factual history gleaned from

appellant’s jury trial:


1 18 Pa.C.S.A. §§ 901(a), 2702(a), 3701(a)(1)(ii), 903, 907(a), 2705,
6106(a)(1), and 6108, respectively.
J. S15036/17


          [The] events began on August 17, 2011, when
          uniformed Philadelphia Police Lieutenant Steffan
          Gallagher responded to a radio call for a person
          screaming at an apartment building located at
          8836 Cottage Street in Northeast Philadelphia,
          Pennsylvania. Upon arriving at this second floor of
          the reported address, Lieutenant Gallagher saw the
          victim, Jesse Hicks, suffering from a gunshot wound
          to his face and other critical injuries alone inside the
          bedroom of this apartment. Mr. Hicks was bleeding
          profusely from his face and chest and wearing only a
          sleeveless T-shirt and underwear.            Mr. Hicks
          immediately informed Lieutenant Gallagher that he
          had been brutally beaten, shot in the mouth and
          robbed by two men of his cash and clothes inside his
          bedroom after his girlfriend, [appellant], had
          permitted the perpetrators to enter his single
          bedroom apartment. Lieutenant Gallagher testified
          that he had observed the bedroom where he had
          found the victim to be in complete disarray. He
          observed broken furniture including an open safe and
          blood covered papers strewn across the floor.
          Lieutenant Gallagher estimated that the distance
          from [the] victim’s bedroom was 15 feet to the
          single apartment entrance located on the second
          floor of the building.

                 Lieutenant Gallagher further stated that he had
          observed [appellant] standing near the downstairs
          apartment or outside the building upon his arrival.
          At the scene, Lieutenant Gallagher eventually
          convinced Mr. Hicks to seek emergency treatment
          for his gunshot wounds, other injuries and heart
          disease related difficulties and transported him to
          Aria Torresdale Hospital.           During his initial
          investigation at the scene, Mr. Hicks informed the
          responding police officers that two males knocked on
          the door of the property, and were let in by
          [appellant].   Mr. Hicks further communicated his
          belief to law enforcement during the transportation
          to the hospital that he was set up to be robbed and
          shot by [appellant, his girlfriend].




                                   -2-
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                 Mr. Hicks explained that he and [appellant]
          had been arguing over money and her amorous
          activities with other men. He said that he had been
          upset because [appellant] continued to whisper or
          text on her cellphone through the night with other
          men as they argued. He said that shortly after
          [appellant’s] suspicious telephone conversations,
          there was a knock at the apartment door. He told
          the officer that [appellant] let the two males into the
          apartment, who threatened, beat, shot and robbed
          him while [appellant] stood near and directed the
          men to check his pockets as they rifled through his
          belongings, shot him in the mouth and stripped him
          of his pants. [Appellant’s] three year old son was
          present in the apartment during this violent episode.

                 Jesse Hicks’s trial testimony corroborated and
          supplemented Lieutenant Gallagher’s accounts to the
          jury of that fateful evening.       Mr. Hicks credibly
          recalled that prior to the attack around 1:00 a.m. on
          August 17, 2011, he and [appellant] had been
          involved in a volatile paramour relationship. They
          had been continually arguing because [Jesse] Hicks
          threatened to stop his financial support of
          [appellant] and members of her family. He had
          become resentful of [appellant’s] increasing contact
          and texting of other men throughout the night.
          Mr. Hicks recalled that he told [appellant] that he
          was tired of arguing and that he was going to bed.
          [Appellant] continued to communicate on the cellular
          telephone and yelled out to him that he was going
          “to get it.”

                 [Jesse] Hicks testified that a few minutes after
          he went to his bedroom, [appellant] yelled up to him
          that his friend Henry Houston, also known as Tupac,
          was at the apartment door. Mr. Hicks testified that
          he had been confused because Henry Houston had
          also been at the house that day, but he left earlier in
          the night well before any disputes arose with
          [appellant]. Because [appellant] insisted that he had
          a friend at the door, [Jesse] Hicks went to the living
          room to see who was knocking.



                                   -3-
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                When Mr. Hicks entered the living room, he
          immediately noticed that the front door to his
          apartment was widely opened. He testified that this
          was odd to him because he had constantly kept a
          deadlock bolt on the front door. The only method for
          anyone to gain access, was for someone on the
          inside of the apartment to unlock the deadbolt and
          open the door. He deduced that [appellant] was the
          only person who could have successfully unlocked
          the deadbolt and opened the door. [Appellant] at a
          later point in the trial corroborated this data when
          she admitted both in her statement to the Detective
          and during her testimony that she had permitted the
          perpetrators to enter [Mr.] Hicks’s apartment by
          unlocking and opening the front door.

                At the same time he noticed the open door,
          [Jesse] Hicks turned to see two men standing with
          [appellant] in his kitchen. When he saw one [of] the
          two males carrying a gun in his hand, he ran to his
          bedroom with this gunman in fresh pursuit. As
          Mr. Hicks attempted to shut his bedroom door, it
          split open and the second male without an
          observable gun forcefully entered his room followed
          by the gunman. Mr. Hicks stated this unarmed man
          began to ransack his furniture room and closet, and
          repeatedly demanded for him to tell him where he
          had his money stashed.

                 Mr. Hicks testified that the gunman also
          assisted the other male in ransacking his apartment
          and harming him. He stated that after apparently
          not locating enough money, the gunman shot him
          directly into his mouth in his bedroom and hit him
          repeatedly. Mr. Hicks further testified that as this
          was occurring[, appellant] directed the assailants to
          check [Jesse’s] pockets.     Mr. Hicks noticed that
          throughout this attack his girlfriend simply stood by
          acting as if a shooting did not occur. He later
          overheard [appellant] try to convince the frightened
          neighbors in the downstairs apartment to tell
          responding police that she had not been present for
          the robbery and shooting.



                                  -4-
J. S15036/17


                Mr. Hicks distinctly recalled that [appellant]
          was the only person he had informed that he had
          been keeping large amounts of cash that night.
          Mr. Hicks testified that shortly before the robbery, he
          and [appellant] had spoken about her father’s
          financial misfortune and that Mr. Hicks had roughly
          $700.00 in cash in his apartment intended for
          [appellant’s] father.

                [Mr. Hicks] vividly recollected that while he
          was being brutally beaten by both males, [appellant]
          told them that the money was in his pocket. The
          men not only took the money from his pockets, they
          removed and [sic] the pair of pants Mr. Hicks had
          been wearing to humiliate him. Mr. Hicks also stated
          that when he had later questioned [appellant] as to
          why she helped the men rob him, [appellant]
          claimed she had let the two males into the
          apartment because they threatened to hurt her son,
          and had hurt her neck. She admitted to telling at
          least one of the assailants that [Jesse] Hicks was
          home in the apartment with her and had a large
          amount of cash.

                 During the earlier morning hours following the
          shooting and robbery of [Jesse] Hicks, Police
          Detective John Cawley of the Special Investigations
          Unit of the Northeast Detective Division was initially
          assigned to conduct the investigation. The next day,
          upon starting a new shift, Northeast Division
          Detectives Christopher [Casey] and Andrew Danks
          were assigned to assist this investigation.           The
          Detectives observed the bloodied scene and
          recover[ed] a spent or fired cartridge shell from the
          bedroom where Mr. Hicks and [appellant] had
          reported he had been shot. Because Mr. Hicks had
          positively identified his girlfriend[, appellant], to the
          Detectives as a suspect in the shooting after he was
          transported to the hospital, Detective [Casey]
          attempted multiple times, without success to reach
          [appellant].

                On August 19, 2011, [appellant] was taken
          into custody for questioning and gave a voluntary


                                    -5-
J. S15036/17


             statement to Detective [Casey], after full and fair
             Miranda[2] warnings had been provided and
             acknowledged as understood. At trial, the statement
             of [appellant] given by her on August 19, 2011 was
             introduced via testimony from Detective [Casey].
             Detective [Casey] stated that [appellant] admitted
             that she had a previous or ongoing relationship with
             one of the persons who participated in the robbery
             and shooting of [Jesse] Hicks. She claimed she
             knew this person as “Kwamaine” and that this
             person was one of [the] persons [Jesse] Hicks had
             been upset with her for communicating with him.
             [Appellant] told the Detective that she had told
             Kwamaine that Mr. Hicks had money because she
             had told him that [Jesse] had been buying things for
             her. She admitted that she knew Kwamaine and the
             other male intended to rob Mr. Hicks and harbored ill
             and jealous feelings toward him. She further stated
             to the Detectives that Kwamaine had texted her
             multiple times that night of the robbery before he
             had knocked at [Jesse’s] apartment door claiming to
             be Henry Houston.

                   [Appellant] stated that she had not observed
             Henry Houston, or Tupac, at the door.             She
             reiterated to Detectives that she knew what was
             going to happen when she permitted the entry of
             Kwamaine and the other man into Mr. Hicks’[s]
             apartment. When they entered she claimed to know
             that Kwamaine and the other male were there to rob
             Mr. Hicks. [Appellant] told Detectives that she heard
             two gunshots and the beating by both males of
             Mr. Hicks in his bedroom as she remained in the
             apartment.    She also stated that she believed
             Kwamaine wanted to rob Mr. Hicks because he was
             jealous of Mr. Hicks’[s] relationship with her, and
             because Mr. Hicks was flashy with his money.

                   At    trial, [appellant] incredibly  testified
             particularly when confronted with her material
             misstatements.       Her version of events was
             contradicted by the recorded prison telephone calls

2   Miranda v. Arizona, 382 U.S. 925 (1965).


                                     -6-
J. S15036/17


            from prison when she desperately and repeatedly
            attempted to enlist at least one other person to do
            something to the victim to prevent his appearance
            against her in court.         One of the recorded
            conversations played before the jury from call date
            of August 27, 2011 highlighted [appellant’s] state of
            mind in her comments in response to the person
            identified as “Male Speaker:”

                   [Appellant]: If Jesse doesn’t show up
                   they’ll lower my bail anyways, right?

                   Male speaker: Yeah they’re supposed to,
                   they’re supposed to freaking . . . if Jesse
                   don’t show up they ain’t got no case.

                   [Appellant]: That’s what I’m saying. I’m
                   fucking sitting her[e] praying to God, like
                   you need to make something happen to
                   him.

                   Male Speaker:       I was gonna do
                   something last night. I was supposed to
                   go do something last night.

Trial court opinion, 6/13/17 at 5-11 (citations to notes of testimony and trial

exhibit omitted; ellipses in original).

      The record reflects that following her conviction, the trial court

imposed a sentence of 20 to 50 years of imprisonment.            The trial court

summarized the remaining procedural history as follows:

            On June 24, 2015, this Court entered an Order
            Granting this Court’s sua sponte Motion for
            Reconsideration of Sentence, and amended the
            previously [sic] Order and Judgement of Sentence.
            This Court significantly reduced the previously
            imposed aggregate sentence to state supervised
            confinement for a minimum period of 13 years to a
            maximum period of 30 years by directing the
            sentence imposed for the First Degree Felony


                                          -7-
J. S15036/17


          Robbery charge to run concurrently rather than
          consecutively to sentence imposed for the Attempted
          Murder offense. All other aspects of the previously
          imposed sentence remained the same.

                 On July 20, 2015, [appellant], by and through
          her original trial counsel, Reginald Johnson, Esquire
          filed a timely Notice of Appeal . . . . Gary S. Silver,
          Esquire entered his appearance as privately retained
          appellate counsel on behalf of [appellant].         On
          November 11, 2015, this Court ordered [appellant],
          by and through her counsel, Gary S. Silver, Esquire
          to file a concise Statement of Errors Complained of
          on     Appeal   pursuant     to   Pa.R.A.P.  1925(b).
          [Appellant], by and through counsel, failed to file a
          Rule 1925(b) statement. On January 20, 2016, this
          Court filed an amended Order directing [appellant] to
          file a Statement of Matters Complained of on Appeal
          within 21 days. [Appellant], by and through her
          counsel, again, failed to file any statement of errors.
          On February 12, 2016, this Court filed a second
          amended Order directing Gary Silver, Esquire as
          appellate counsel for [appellant] to file a statement
          of errors no later than April 1, 2016.

                 This Court granted a motion for extension to
          file the Rule 1925(b) statement on April 13, 2016,
          and directed counsel to file within 30 days. Defense
          counsel again failed to comply, and this Court filed a
          Rule 1925(a) opinion noting the numerous failures to
          file a statement of errors and the lack of merit for
          any issues [appellant] may raise.

                 On August 22, 2016, the Superior Court of
          Pennsylvania dismissed [appellant’s] appeal due to
          the failure of appellate counsel to file a brief. On
          September 16, 2016, the Superior Court of
          Pennsylvania reinstated [appellant’s] direct appeal.
          On October 16, 2016, the counsel for [appellant]
          filed a 1925(b) statement, and on April 17, 2017, the
          Superior Court of Pennsylvania entered an Order
          remanding      the   matter    due     to   per    se
          ineffective[ness] of appellate counsel’s dilatory
          conduct and directing this Court to file an opinion


                                   -8-
J. S15036/17


            addressing the seven issues raised by [appellant]
            within the belatedly filed Statement of Matters
            Complained of on Appeal.

Trial court opinion, 6/13/17 at 3-4. On June 13, 2017, the trial court filed its

Rule 1925(a) opinion.

      Appellant raises the following issues for our review:

            I.     WAS THE EVIDENCE INSUFFICIENT AS A
                   MATTER OF LAW TO SUPPORT [APPELLANT’S]
                   CONVICTION   FOR   ATTEMPTED    MURDER
                   BECAUSE THE COMMONWEALTH FAILED TO
                   PROVE, UNDER AN ACCOMPLICE LIABILITY
                   THEORY, THAT [APPELLANT] HARBORED THE
                   SHARED AND SPECIFIC INTENT TO KILL JESSE
                   HICKS DURING THE COURSE OF THE
                   ROBBERY?

            II.    WAS THE EVIDENCE WAS [SIC] INSUFFICIENT
                   AS A MATTER OF LAW TO SUPPORT
                   [APPELLANT’S]  CONVICTIONS    FOR   THE
                   POSSESSORY OFFENSES OF CARRYING A
                   FIREARM WITHOUT A LICENSE, CARRYING A
                   FIREARM IN PUBLIC AND POSSESSION OF AN
                   INSTRUMENT OF CRIME BECAUSE THE
                   COMMONWEALTH FAILED TO PROVE, UNDER
                   AN ACCOMPLICE LIABILITY THEORY, THAT
                   [APPELLANT] HARBORED THE SHARED INTENT
                   TO COMMIT AN ARMED ROBBERY, AS
                   OPPOSED TO AN UNARMED ROBBERY?

            III.   WAS THE EVIDENCE WAS [SIC] INSUFFICIENT
                   AS A MATTER OF LAW TO SUPPORT
                   [APPELLANT’S] CONVICTION FOR CARRYING A
                   FIREARM WITHOUT A LICENSE BECAUSE THE
                   COMMONWEALTH FAILED TO PROVE THAT THE
                   MAN WHO ACTUALLY POSSESSED THE
                   HANDGUN, AS OPPOSED TO [APPELLANT]
                   WHO NEVER ACTUALLY OR CONSTRUCTIVELY
                   POSSESSED THE HANDGUN, DID NOT HAVE A
                   LICENSE TO CARRY A FIREARM ON THE DATE
                   OF THE INCIDENT?


                                     -9-
J. S15036/17



             IV.    DID   TRIAL  COURT   ERRED   [SIC] IN
                    PERMITTING    DETECTIVE   CHRISTOPHER
                    CASEY, OVER THE DEFENSE OBJECTION, TO
                    COMMENT ON [APPELLANT’S] CREDIBILITY,
                    GUILT AND INVOLVEMENT IN THE CRIMES
                    CHARGED?

             V.     DID THE TRIAL COURT ERRED [SIC] WHEN
                    INSTRUCTING THE JURY THAT [APPELLANT],
                    AS AN ACCOMPLICE, COULD NOT BE
                    RESPONSIBLE FOR A CRIME IF SHE ATTEMPTS
                    TO STOP THE CRIMES FROM HAPPENING,
                    WHERE THE TRIAL COURT FAILED TO ALSO
                    INSTRUCT THE JURY ON THE CLOSELY
                    RELATED LEGAL PRINCIPLE THAT SHE CANNOT
                    BE HELD CRIMINALLY LIABLE FOR THE ACTS
                    OF ANOTHER IF SHE WAS SIMPLY PRESENT AT
                    THE SCENE OF THE CRIME AND FAILED TO
                    STOP THE CRIMES FROM OCCURRING; TRIAL
                    COUNSEL SHOULD HAVE OBJECTED?

             VI.    DID THE TRIAL COURT ERRED [SIC] IN
                    INSTRUCTING THE JURY ON THE CHARGE OF
                    ATTEMPTED   MURDER     UNDER   BOTH  A
                    CONSPIRACY LIABILITY THEORY AND AN
                    ACCOMPLICE   LIABILITY  THEORY   WHERE
                    CONSPIRACY    TO    COMMIT   ATTEMPTED
                    MURDER IS NOT A LEGALLY COGNIZABLE
                    CRIME; TRIAL COUNSEL SHOULD HAVE
                    OBJECTED?

             VII.   DID THE TRIAL COURT ERRED [SIC] IN
                    APPLYING OR CONSIDERING THE DEADLY
                    WEAPON ENHANCEMENT WHEN SENTENCING
                    [APPELLANT]   ON   THE   CHARGES    OF
                    ATTEMPTED   MURDER   AND    CONSPIRACY
                    BECAUSE   THE   HANDGUN    WAS   NEVER
                    POSSESSED BY [APPELLANT] OR WITHIN HER
                    IMMEDIATE    CONTROL     DURING    THE
                    COMMISSION OF THE CRIMES?

Appellant’s brief at 4 (capitalization in original).



                                       - 10 -
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      Appellant frames her first three issues as challenges to the sufficiency

of the evidence.     In her first challenge, however, appellant contends that

“the evidence was insufficient to support a finding beyond a reasonable

doubt that she shared the specific intent to kill [the victim] to support her

conviction for attempted murder despite everything the victim and

others said.” (Appellant’s brief at 19 (emphasis added).) Appellant then

sets forth her interpretation of certain portions of the trial evidence in an

effort to convince this court to reach a different conclusion than the jury

reached. In so doing, appellant challenges the weight of the evidence, not

its sufficiency.     See, e.g., Commonwealth v. Gibbs, 981 A.2d 274,

281-282 (Pa.Super. 2008) (an argument that the fact-finder should have

credited one witness’ testimony over that of another witness goes to the

weight   of    the    evidence,    not    the     sufficiency    of   the   evidence);

Commonwealth v. Wilson, 825 A.2d 710, 713-714 (Pa.Super. 2003) (a

review of the sufficiency of the evidence does not include a credibility

assessment;    such    a   claim   goes     to    the   weight   of   the   evidence);

Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super. 1997) (the

fact-finder makes credibility determinations, and challenges to those

determinations go to the weight of the evidence, not the sufficiency of the

evidence).

      In order to raise a weight claim on appeal, Pennsylvania Rule of

Criminal Procedure 607 requires appellant to raise the claim with the trial



                                         - 11 -
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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). “The purpose of this

rule is to make it clear that a challenge to the weight of the evidence must

be raised with the trial judge or it will be waived.”        Pa.R.Crim.P. 607,

comment.

      Our review of the certified record reveals that appellant failed to raise

this weight claim with the trial court in a motion for a new trial orally, on the

record, prior to sentencing; by written motion prior to sentencing; or in a

post-sentence motion. Accordingly, appellant waives this weight challenge

on appeal.

      In her second issue, appellant presents the following two-sentence

argument:

                    In the present case, the evidence was
             insufficient to support the conclusions that
             [appellant] even knew her assailants would be
             armed before entering the house that night or
             otherwise assisted them in obtaining possession of
             the firearm used that night.

                   For the foregoing reasons, [appellant’s]
             convictions for all of the possessory offenses relating
             to the handgun in this case should be reversed.

Appellant’s brief at 24-25.

      Appellant waives this issue on appeal for failure to develop a legal

argument.     See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.

2009) (reiterating that “where an appellate brief fails to provide any


                                     - 12 -
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discussion of a claim with citation to relevant authority or fails to develop the

issue in any other meaningful fashion capable of review, that claim is

waived”); citing to Commonwealth v. Walter, 966 A.2d 560, 566 (Pa.

2009); Commonwealth v. Steele, 961 A.2d 786, 799 n.12 (Pa. 2008);

Commonwealth v. Puksar, 951 A.2d 267, 293-294 (Pa. 2008). See also

Pa.R.A.P. 2119(a) (requiring that each point treated in an argument must be

“followed by such discussion and citation of authorities as are deemed

pertinent”).    Moreover, our supreme court has long held that it is not the

court’s   obligation    to    formulate     an     appellant’s   arguments.     See

Commonwealth           v.    Wright,      961      A.2d   119,   135   (Pa.   2008);

Commonwealth v. Thomas, 717 A.2d 468, 482-483 (Pa. 1998).

      In her final sufficiency challenge, appellant contends that the evidence

was insufficient to convict her of carrying a firearm without a license

because, “[d]espite the unlikelihood that the [shooter] had a license,” the

Commonwealth failed to prove that the unidentified shooter did not have a

license to carry a firearm. (Appellant’s brief at 26.)

               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


                                          - 13 -
J. S15036/17


            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 proof 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 evaluated and all the evidence
            actually received 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. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)

(citation omitted).

      At the outset, we note that the record supports the conclusion that the

jury convicted appellant of possessing an instrument of crime (“PIC”) under

a constructive possession theory of criminal liability.         (See notes of

testimony, jury charge, 3/2/15 at 87.)        A person commits PIC “if he

possesses any instrument of crime with intent to employ it criminally.”

18 Pa.C.S.A. § 907(a).

            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.




                                     - 14 -
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Commonwealth v. Walker, 874 A.2d 667, 667-668 (Pa.Super. 2005)

(citations omitted).

       Here, the record reflects that appellant let the unidentified shooter and

another unidentified man into the victim’s apartment.       The victim testified

that when he saw this unidentified assailant holding a black gun, which the

victim believed to be a Glock pistol, the victim ran upstairs. The other man

followed, forced his way into the victim’s bedroom, and began ransacking

the victim’s closet and demanding to know where the victim had placed his

money. (Notes of testimony, 3/10/15 at 24-27.) When that man found no

money, he instructed the unidentified shooter to shoot the victim.           The

unidentified shooter complied and shot the victim in the face, knocking his

teeth out.   As the victim lay on the floor, the two men stomped on the

victim’s face while the victim’s blood shot up to the ceiling and he choked on

his own teeth. (Id. at 27-30, 36.) Appellant then told her cohorts that the

victim’s money was in his pants pocket.         The men removed the victim’s

pants, leaving him naked from the waist down, and fled with his money.

(Id. at 30-31.)

       Under the totality of the circumstance, this evidence established that

appellant had the power to control the firearm and the intent to exercise

that   control    and,   therefore,   constructively   possessed   the   firearm.

Consequently, the evidence was sufficient to sustain appellant’s PIC

conviction because, viewed in the light most favorable to the Commonwealth



                                      - 15 -
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as verdict winner, it enabled the jury to find that appellant constructively

possessed an instrument of crime -- a firearm -- with intent to employ it

criminally beyond a reasonable doubt.

      With respect to her conviction for carrying an unlicensed firearm in

violation of Section 6106(a), because the totality of the circumstances

established that appellant constructively possessed the firearm and because

the parties stipulated at trial that appellant did not have a license to possess

a firearm (notes of testimony, 3/11/15 at 63-64.), this evidence, viewed in

the light most favorable to the Commonwealth as verdict winner, was

sufficient to enable the jury to conclude that appellant carried an unlicensed

firearm.3 Therefore, appellant’s sufficiency challenge fails.


3 We note that in her brief, appellant baldly asserts that the jury convicted
her of carrying an unlicensed firearm based on an accomplice liability theory,
which would require proof of licensure of her unidentified cohort.
(Appellant’s brief at 26).      In its opinion, the trial court disposed of
appellant’s sufficiency challenge to this conviction because the “facts amply
make out that she constructively possessed the weapon because she
exercised conscious dominion and the power to control the firearm and the
intent to exercise that control.” (Trial court opinion, 6/13/17 at 16.)
Notwithstanding this conclusion, the trial court addressed appellant’s
contention that this conviction was based on an accomplice liability theory
and “[d]espite the unlikelihood that the other man had a license, the
Commonwealth needed to prove it to make out this particular crime.”
(Appellant’s brief at 26.) Although we disagree with the trial court’s analysis
with respect to appellant’s accomplice liability argument on this issue, the
fact remains that because the totality of the circumstances established
constructive possession and the evidence was sufficient to sustain her PIC
conviction, the evidence was also sufficient to convict appellant of carrying
an unlicensed firearm because she constructively possessed that firearm and
the parties stipulated that she was not licensed to carry a firearm. A review
of the trial court’s charge to the jury clarifies the point. (See notes of
testimony, 3/2/15 at 88-89.)


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J. S15036/17

      Appellant next complains that the trial court erred when it permitted

Detective Christopher Casey, “over defense objection, to comment on

[appellant’s] credibility, guilt and involvement in the crimes charged.”

(Appellant’s brief at 26.) The record belies appellant’s claim. In her brief,

appellant   sets   forth   two   questions    that     the   prosecution   asked

Detective Casey on redirect examination.             (Appellant’s brief at 27.)

Appellant, however, fails to set forth the specific objection defense counsel

made, as well as the fact that Detective Casey was merely reviewing, at the

prosecution’s request, the statement appellant made to law enforcement.

The record clearly indicates that trial counsel did not object to the detective’s

making a “comment on [appellant’s] credibility, guilt and involvement in the

crimes charged,” and that the detective made no such comment, as follows:

            Q.     Going to C-37, her statement, I’d like to walk
                   you through all the different things she said
                   that led you to document in your 75-52,
                   [appellant] admits her role in the robbery
                   shooting, because defense counsel asked you
                   about that.

                         Let’s start with page 1. Read it quietly to
                   yourself. You’re the detective, the one doing
                   the interview. Let us know what, if anything
                   she said that indicated she was involved in
                   this.

            [DEFENSE COUNSEL]: Your Honor, I’m going to
            object. It’s asked and answered.

            THE COURT: Overruled. Go ahead.




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J. S15036/17

Notes of testimony, 3/1/15 at 49.        The detective then testified as to the

contents of the statement that appellant had made to law enforcement,

without further objection from defense counsel.          Therefore, because the

record belies appellant’s claim, it necessarily fails.

      Appellant’s   next   two   complaints    concern   the   jury   instructions.

Although appellant concedes that trial counsel failed to object to the jury

instructions, she nevertheless contends that “the trial court erred when

instructing the jury that [appellant], as an accomplice, could not be

responsible for a crime if she attempts to stop the crimes from happening,

where the trial court failed to also instruct the jury on the closely related

legal principle that she cannot be held criminally liable for the acts of

another if she was simply present at the scene of the crime and failed to

stop the crimes from occurring” and “the trial court erred in instructing the

jury on the charge of attempted murder under both a conspiracy theory and

accomplice liability theory.” (Appellant’s brief at 28, 31.)

      Where, as here, a defendant fails to request an instruction at trial and

makes no objection to the trial court’s jury charge, defendant waives the

claim on appeal.     See Commonwealth v. Walter, 119 A.3d 255, (Pa.

2015); see also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal”); Pa.R.A.P. 302(b)

(With respect to the jury charge, “[a] general exception to the charge to the

jury will not preserve an issue for appeal[; rather, a] [s]pecific objection



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J. S15036/17

shall    be   taken   to   the   language     or   omission   complained   of”);

Pa.R.A.P. 647(C) (“[n]o portions of the charge nor omissions from the

charge may be assigned as error, unless specific objections are made

thereto before the jury retires to deliberate”). Therefore, appellant waives

her fifth and sixth issues on appeal.4

        Appellant finally complains that the “trial court erred in applying or

considering the deadly weapon enhancement.” (Appellant’s brief at 32.) We

need not consider whether appellant satisfies the four-part test required to

invoke our jurisdiction to entertain a challenge to a discretionary aspect of




4 We note that appellant invites us to determine whether trial counsel was
ineffective for failing to object to the jury instructions pursuant to
Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013) (recognizing two
exceptions to the general rule of deferral of ineffectiveness claims to
collateral review that both fall within the trial court’s discretion, which are
(1) extraordinary circumstances where a discrete claim or claims of trial
counsel’s ineffectiveness is apparent on the record and meritorious to the
extent that consideration on direct appeal best serves the interests of
justice; and (2) where a defendant seeks to litigate multiple ineffectiveness
claims, including non-record based claims, on post-verdict motions and
direct appeal where defendant shows good cause and where unitary review
is preceded by defendant’s knowing and express waiver of entitlement to
seek Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546, review
from conviction and sentence, including an express recognition that waiver
subjects further collateral review to the time and serial PCRA restrictions).
Because appellant’s request falls far short of falling under either of the
exceptions set forth in Holmes, we decline appellant’s invitation to entertain
her ineffective assistance of counsel claims on direct review.


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J. S15036/17

appellant’s sentence5 because the record reflects that the trial court did not

apply the deadly weapon enhancement, as follows:

            [THE COMMONWEALTH]: And I would just ask the
            Court to put on the record – I know Your Honor
            obviously read my memorandum – but that you
            consider the offense gravity score and prior record
            score for each offense, and that the deadly weapon
            used if – a ruling whether or not you applied that for
            the attempted murder.

            THE COURT: I ruled 8 to 20 applied the guidelines.
            Both 8 to 20 is within reach of your deadly weapon
            enhancements. It’s obviously within that. But also
            with the -- without the deadly weapon enhancement,
            it’s --

            [DEFENSE COUNSEL]:           It’s   still   within   those
            guidelines.

            THE COURT: It’s still within the guidelines.

            [THE COMMONWEALTH]: It is, Your Honor. I just
            want to make a clean record so there’s, you know,
            there’s no --

            THE COURT: All right. I didn’t have to use the
            deadly weapon enhancement. . . .

Notes of testimony, 6/2/15 at 32-33. We need not determine, as the trial

court did, whether mere consideration of the deadly weapon enhancement




5 An appellant challenging the discretionary aspects of sentencing is not
entitled to appellate review as of right, but must invoke this court’s
jurisdiction by satisfying a four-part test that demonstrates appellant filed a
timely notice of appeal, properly preserved the issue with the trial court,
included a Pa.R.A.P. 2119(f) statement in appellant’s brief, and raised a
substantial question.     Commonwealth v. Moury, 992 A.2d 160, 170
(Pa.Super. 2010).


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J. S15036/17

was error because the sentencing transcript clearly demonstrates that the

trial court did not apply the enhancement.

     Judgment of sentence affirmed.



     Dubow, J. joins this Memorandum.

     Bowes, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 1/30/2018




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