J-S73034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

LARRY TREMEL-DEVON ALEXANDER

                            Appellant                   No. 442 WDA 2016


           Appeal from the Judgment of Sentence January 26, 2015
                 in the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0001065-2014


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED OCTOBER 18, 2016

        Larry Tremel-Devon Alexander appeals from the judgment of sentence

entered in the Erie County Court of Common Pleas following his bench trial

convictions for possession of a firearm prohibited1 and possession of a

controlled substance.2 After careful review, we affirm.

        The trial court set forth the facts and procedural history underlying this

matter as follows:

              On April 5, 2014, between 8:00 and 9:00 p.m., police were
        dispatched to the area of East 7th and Cedar Streets, City of Erie.
        As police approached, they observed Appellant, who matched
        the description of the suspect provided by dispatch, walk up onto
        a porch at 424 East 8th Street. The porch was unlit, and no
____________________________________________


1
    18 Pa.C.S. § 5104.
2
  35 P.S. § 780-113(a)(16). Appellant does not challenge his judgment of
sentence regarding his possession of a controlled substance conviction.
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      other individuals were observed on the porch or in the vicinity.
      Appellant sat behind a pillar for approximately fifteen seconds,
      and police observed him manipulating something behind it.
      Appellant then left the porch and fled as police exited their patrol
      vehicle and asked to see his hands. Appellant was apprehended
      and arrested a few seconds later. Police recovered pills from
      Appellant’s pocket. A minute later, police went back to the
      porch at 424 East 8th Street and recovered a firearm behind the
      pillar where Appellant was sitting.

            On November 19, 2014 following a nonjury trial before the
      Honorable Ernest J. DiSantis, Jr., Appellant was found guilty of
      the foregoing offenses.      On January 26, 2015, Appellant
      appeared before Judge DiSantis and was sentenced to a term of
      36 to 72 months’ incarceration at Count 1 (possession of a
      firearm), and a concurrent term of 3 to 12 months’ incarceration
      at Count 4 (possession).

             On January 21, 2016, following the filing of Appellant’s
      PCRA petition, this [c]ourt granted Appellant’s request for
      collateral relief, and reinstated his rights to file a post-sentence
      motion and direct appeal. On February 16, 2016, Appellant filed
      a timely [m]otion for [n]ew [t]rial and/or [a]rrest of [j]udgment
      [n]unc [p]ro [t]unc, which this [c]ourt denied on February 23,
      2016.

            On March 24, 2016, Appellant filed a timely [n]otice of
      [a]ppeal [n]unc [p]ro [t]unc. In response to this [c]ourt’s
      [Pa.R.A.P.] 1925(b) [o]rder, Appellant filed a [s]tatement of
      [m]atters [c]omplained of on [a]ppeal on April 15, 2016.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed May 5, 2016 (“1925(a)

Opinion”), pp. 1-2 (internal record citations omitted).

      Appellant raises the following issues for our review:

      A. Whether the evidence was sufficient to convict appellant of
      the firearm violation?

      B. Whether Appellant’s conviction of the firearm violation was
      against the weight[] of the evidence?

Appellant’s Brief, p. 2 (all capitals omitted).




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      First, Appellant claims the evidence was insufficient to support his

conviction.   See Appellant’s Brief, pp. 4-5.   Specifically, Appellant argues

that the Commonwealth failed to prove Appellant actually or constructively

possessed the firearm recovered from the porch where police observed him.

Id. He is incorrect.

      When examining a challenge to the sufficiency of evidence, this Court’s

standard of review is as follows:

      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 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
      [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. Smith, 97 A.3d 782, 790 (Pa.Super.2014).

      The Crimes Code provides, in pertinent part, as follows:

      § 6105. Persons not to possess, use, manufacture,
      control, sell or transfer firearms

      (a) Offense defined.--



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         (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.

     As this Court has explained:

     Constructive possession is a legal fiction, a pragmatic construct
     to deal with the realities of criminal law enforcement.
     Constructive possession is an inference arising from a set of
     facts that possession of the contraband was more likely than not.
     We have defined constructive possession as “conscious
     dominion.” We subsequently defined “conscious dominion” as
     “the power to control the contraband and the intent to exercise
     that control.” To aid application, we have held that constructive
     possession may be established by the totality of the
     circumstances.

Commonwealth v. Parker, 847 A.2d 745, 750 (Pa.Super.2004). “As with

any other element of a crime, constructive possession may be proven by

circumstantial evidence.” Commonwealth v. Haskins, 677 A.2d 328, 330

(Pa.Super.1996). “The intent to exercise conscious dominion can be inferred

from the totality of the circumstances.” Commonwealth v. Kirkland, 831

A.2d 607, 610 (Pa.Super.2003). Further, “[c]onstructive possession may be

found in one or more actors where the item in issue is in an area of joint

control and equal access.” Commonwealth v. Valette, 613 A.2d 548, 550

(Pa.1992);    see also Commonwealth v. Haskins, 677 A.2d 328, 330

(Pa.Super.1996) (multiple people may constructively possess the same

item).



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      Here, the trial court explained its rejection of Appellant’s sufficiency of

the evidence claim as follows:

      Based on the totality of the circumstances, the circumstantial
      evidence    adduced      at trial established   that   Appellant
      constructively possessed the firearm with the intent to exercise
      control of it.2 The firearm was recovered behind a pillar on a
      front porch and in the exact area where Appellant was observed.
      No other individuals were on the porch or in the surrounding
      area. Police observed Appellant manipulating something as he
      sat behind the pillar. This evidence was more than sufficient to
      find Appellant guilty of § 6105.
         2
           – The parties stipulated at trial that [Appellant] was a
         person prohibited from possessing a firearm in
         Pennsylvania.

1925(a) Opinion, p. 4 (record citation omitted).

      Viewed in the light most favorable to the Commonwealth as verdict

winner, the trial court properly concluded that the evidence was sufficient to

convict Appellant of possession of a firearm prohibited.            Accordingly,

Appellant’s sufficiency of the evidence claim fails.

      Next, Appellant alleges the trial court erred by denying his post-

sentence motion for a new trial based on the allegation that the guilty

verdict was against the weight of the evidence. See Appellant’s Brief, p. 5.

This claim lacks merit.

      The denial of a new trial based on a lower court’s determination that

the verdict was against the weight of the evidence is one of the least

assailable reasons for granting or denying a new trial. Commonwealth v.

Clay, 64 A.3d 1049, 1055 (Pa.2013).         This Court reviews weight of the

evidence claims pursuant to the following standard:

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       A motion for new trial on the grounds that the verdict is contrary
       to the weight of the evidence, concedes that there is sufficient
       evidence to sustain the verdict. Thus, the trial court is under no
       obligation to view the evidence in the light most favorable to the
       verdict winner. An allegation that the verdict is against the
       weight of the evidence is addressed to the discretion of the trial
       court. A new trial should not be granted because of a mere
       conflict in the testimony or because the judge on the same facts
       would have arrived at a different conclusion. A trial judge must
       do more than reassess the credibility of the witnesses and allege
       that he would not have assented to the verdict if he were a
       juror. Trial judges, in reviewing a claim that the verdict is
       against the weight of the evidence do not sit as the thirteenth
       juror. Rather, the role of the trial judge is to determine that
       notwithstanding all the facts, certain facts are so clearly of
       greater weight that to ignore them or to give them equal weight
       with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal

citations, quotations, and footnote omitted).

       Stated differently, a court may award a new trial because the verdict is

against the weight of the evidence only when the verdict is so contrary to

the evidence as to shock one’s sense of justice, 3 “such that right must be

given another opportunity to prevail.” Commonwealth v. Goodwine, 692


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3
 This Court has explained the notion of “shocking to one’s sense of justice”
as follows:

       When the figure of Justice totters on her pedestal, or when the
       jury’s verdict, at the time of its rendition, causes the trial judge
       to lose his breath, temporarily, and causes him to almost fall
       from the bench, then it is truly shocking to the judicial
       conscience.

Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.Super.2004)
(internal citations and quotations omitted).



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A.2d 233, 236 (Pa.Super.1997).       Moreover, appellate review of a weight

claim consists of a review of the trial court’s exercise of discretion, not a

review of the underlying question of whether the verdict is against the

weight of the evidence.    Widmer, 744 A.2d at 753.       When reviewing the

trial court’s determination, this Court gives the gravest deference to the

findings of the court below. We review the court’s actions for an abuse of

discretion. Id.

      Simply stated, the verdict in this matter illustrates that the trial court

found the police testimony credible and Appellant’s testimony not so. As the

trial court aptly explained:

      Judge DiSantis, as finder of fact, was free to believe the
      testimony of the police officers and discount Appellant’s version
      of events as not credible.         The circumstantial evidence
      demonstrated that Appellant constructively possessed the
      firearm and therefore, the verdict clearly does not shock one’s
      sense of justice.

1925(a) Opinion, p. 5.

      Our review of the trial transcript reveals the trial court did not abuse

its discretion in denying a new trial based on the weight of the evidence.

Accordingly, Appellant’s weight of the evidence claim fails.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2016




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