J-S43040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

DENZEL KADEEM GAINES

                           Appellant                   No. 196 WDA 2017


            Appeal from the Judgment of Sentence January 12, 2017
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0001197-2016

BEFORE: STABILE, SOLANO, and FITZGERALD* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 28, 2017

        Appellant, Denzel Kadeem Gaines, appeals from the judgment of

sentence entered in the Fayette County Court of Common Pleas following his

jury trial conviction of, inter alia, persons not to possess firearms.1

Appellant alleges there was insufficient evidence to support his firearms

conviction. We affirm.

        The trial court’s opinion summarizes the relevant facts of this case as

follows:

              The evidence presented at trial established through the
           testimony of Pennsylvania State Trooper Shane Reaghard
           that he was partnered with another trooper, Adam
           Sikorski, on May 31, 2016, at 2:30 A.M., when they
           attempted to make a routine traffic stop of the vehicle in
           which [Appellant] was a passenger.          The stop was

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6105(a)(1).
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        originally attempted on East Fayette Street in Uniontown,
        Fayette County, Pennsylvania, but the vehicle turned down
        an alley instead of stopping. When the vehicle was in the
        alley, the front passenger door opened and [Appellant]
        jumped out and ran.        Trooper Reaghard immediately
        exited his marked police vehicle and began a foot chase in
        an area colloquially referred to as the Pershing Court
        housing project. [Appellant] tried to climb over a fence,
        but fell backward, at which time the trooper observed a
        gun in the waistband of [Appellant’s] pants. During the
        chase Trooper Sikorski saw a handgun in [Appellant’s] left
        hand as [Appellant] fled from him, and yelled at him to
        drop it, which [Appellant] did.

           After    Trooper    Reaghard    and   Trooper    Sikorski
        apprehended [Appellant], he initially gave them a name
        other than his own when they asked him for his name.
        When they patted him down, he no longer had a weapon
        on his person. While [T]rooper Reaghard stayed with the
        just-apprehended [Appellant], Trooper Sikorski went back
        along the chase route to locate the gun. The trooper found
        the gun on the sidewalk, put gloves on to retrieve it and
        then secured [the gun] in the trunk of the police vehicle.
        Photos of the firearm retrieved from the sidewalk along the
        chase route by Trooper Sikorski were admitted into
        evidence . . . . For the benefit of the trial jury, defense
        counsel stipulated that [Appellant] is a member of the
        class referred to in 18 Pa.C.S. § 6105(c) and as such, he is
        not permitted to possess a firearm.

Trial Ct. Op., 3/1/17, at 2 (record citations omitted). On January 9, 2017, a

jury convicted Appellant of, inter alia, persons not to possess firearms. The

trial court sentenced him on January 12, 2017, to three to six years’

imprisonment. Appellant timely appealed. The court ordered Appellant to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), and Appellant timely complied.

     Appellant raises the following issue for our review:



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         WHETHER THE EVIDENCE WAS LEGALLY AND FACTUALLY
         INSUFFICIENT TO PROVE THAT [APPELLANT] WAS GUILTY
         OF [PERSONS] NOT TO POSSESS FIREARMS?

Appellant’s Brief at 8.

      Appellant argues there was insufficient evidence to support his

conviction of persons not to possess firearms.          Appellant claims the

Commonwealth failed to meet its burden and present sufficient evidence

through its witnesses to enable the jury to find Appellant guilty of the

firearms offense beyond a reasonable doubt. Specifically, Appellant alleges

that Trooper Reaghard’s description of the firearm was inconsistent with his

testimony at a previous hearing, and that Trooper Sikorski testified that he

did not actually see Appellant throw a gun. Appellant concludes he should

be granted a judgment of acquittal or a new trial. We disagree.2

      When reviewing a challenge to the sufficiency of the evidence,

         [t]he standard we apply . . . 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

2
  We note Appellant’s brief also alleges the verdict was against the weight of
the evidence. See Appellant’s Brief at 14, 16. Nevertheless, Appellant did
not raise this claim in either a post-sentence motion or his Rule 1925(b)
statement. Therefore, any claim challenging the weight of the evidence is
waived. See Pa.R.Crim.P. 607(A); Commonwealth v. Castillo, 888 A.2d
775, 780 (Pa. 2005) (“Any issues not raised in a [Rule] 1925(b) statement
will be deemed waived.” (citation and quotation marks omitted)).



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         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. 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 evaluated and all evidence
         actually received must be considered. Finally, the finder of
         fact [,] while passing upon credibility of witnesses and the
         weight of the evidence, is free to believe all, part or none
         of the evidence.

Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015),

appeal denied, 138 A.3d 4 (Pa. 2016) (citation omitted).

      The Pennsylvania Consolidated Statutes define persons not to possess

firearms, in relevant part, as follows:

         § 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. § 6105(a)(1).

      Instantly, at trial, both Trooper Reaghard and Trooper Sikorski

testified to seeing a bulge in Appellant’s waistband/shirt area as he fled the

vehicle on foot.   N.T., 1/9/17, at 18-19, 22.      Trooper Reaghard further

testified that he observed a silver and black firearm in Appellant’s waistband


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when Appellant climbed over a fence and fell backwards during the foot

pursuit. Id. at 9-10, 15-16. Moreover, Trooper Sikorski testified that during

the chase, he saw Appellant holding a firearm in his left hand but briefly lost

sight of Appellant as they were rounding the corner of a house. Id. at 23.

When Trooper Sikorski cleared the corner, he saw that Appellant no longer

had a gun in his hand. Id. Additionally, the trial court concluded:

         [T]he Commonwealth established that the weapon is/was
         seen to be in [Appellant’s] possession by both [state
         troopers] during the foot chase. Through the stipulation
         placed into the record, [Appellant] admitted that he is in
         the class of persons precluded by the statute from
         possessing or being in control of a firearm.

Trial Ct. Op. at 3.    Therefore, viewing the evidence in the light most

favorable to the Commonwealth, there was sufficient evidence to support

Appellant’s conviction of persons not to possess firearms. See Talbert, 129

A.3d at 542. Accordingly, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/28/2017




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