J-S88038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
         Appellee                          :
                                           :
          v.                               :
                                           :
WARREN NICHOLS,                            :
                                           :
         Appellant                         :     No. 3647 EDA 2015


        Appeal from the Judgment of Sentence September 22, 2015
           in the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0008876-2012

BEFORE: OLSON, RANSOM, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                FILED FEBRUARY 07, 2017

      Warren Nichols (Appellant) appeals from the judgment of sentence

imposed following his convictions for possession of a controlled substance,

carrying a firearm without a license, carrying a firearm on the streets of

Philadelphia, and carrying loaded weapons other than firearms. We affirm in

part and vacate in part.

      Appellant was arrested and charged with the aforementioned offenses,

as well as various summary motor vehicle violations, stemming from an

incident that occurred on July 11, 2012. On September 12, 2012, following

a hearing in Philadelphia Municipal Court – Traffic Division, Appellant was

found not-guilty of the summary offenses of failure to use lights and driving

an unregistered vehicle.   A suppression hearing on the indictable offenses




*Retired Senior Judge assigned to the Superior Court.
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was heard, and denied, on August 12, 2013.            The matter proceeded to a

non-jury trial on April 9, 2014.

               At trial, [Philadelphia Police Officer Eyleen] Archie testified
        that she was traveling northbound on North Broad Street, when
        she observed [Appellant] driving a vehicle traveling southbound
        in the 2100 block of North Broad Street, approaching Broad and
        Diamond Streets.        The vehicle was being operated without
        headlights. The officer activated her lights, and [Appellant’s]
        vehicle stopped. The officer exited her vehicle and as she
        approached [Appellant’s] vehicle, she saw [Appellant], who was
        the driver, reaching under his seat, making movements between
        his legs. Officer Archie ordered [Appellant] to stay still and stop
        moving, but he ignored her commands. A female passenger was
        also in the car.

              The officer opened the door and ordered [Appellant] to exit
        the vehicle. She then escorted him to the rear of the vehicle,
        where [Appellant] stood with her sergeant.          Officer Archie
        returned to the passenger compartment of the car, where she
        observed the butt of a black handgun sticking out beneath the
        seat. The officer notified the sergeant she had found a loaded
        gun, whereupon [Appellant] was secured in the officer’s vehicle.
        Officer Archie continued her sweep of the vehicle, where she
        observed a knotted clear plastic bag in an open area near the
        gear shift, along with five live rounds of ammunition.

               While in custody in the officer’s vehicle, [Appellant] stated
        that he thought [Pennsylvania] was an open carry state, so he
        didn’t need a license to carry a firearm.

              The gun was test fired and found to be operable. Although
        [Appellant] had previously possessed a license to carry, he did
        not have a valid license on July 11, 2012. The substance found
        in the plastic bag tested positive for cocaine.

Trial   Court   Opinion,    4/8/216,   at   4-5   (unnumbered)      (citations   and

unnecessary capitalization omitted).

        Appellant was convicted of all charges.       On May 6, 2016, Appellant

filed a motion for extraordinary relief, which was denied on August 3, 2015.


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A second motion was filed on September 11, 2015 and denied on September

17, 2015.

     On September 22, 2016, Appellant was sentenced to an aggregate

term of 30 to 60 months of incarceration on the charge of carrying a firearm

without a license, and a consecutive term of three years’ probation on the

charge of carrying a firearm on the streets of Philadelphia.        No further

penalty was imposed at the other two counts.

     Appellant, through counsel, filed timely post-sentence motions, which

were denied on December 2, 2015.         This timely appeal followed.        Both

Appellant and the trial court complied with the mandates of Pa.R.A.P. 1925.

     Appellant raises four issues for our review.

     [I.] Was the evidence presented at trial sufficient as a matter of
     law to support a conviction for 18 Pa.C.S.[] § 6106.1 where the
     evidence of record does not establish that [Appellant] was
     carrying a loaded weapon “other than a firearm as defined in
     section [] 6102” of the Crimes Code in a vehicle?

     [II.] Did the trial court err when it denied [Appellant’s] motion
     seeking dismissal of the charges against [him] based on 18
     Pa.C.S.[] § 110?

     [III.] Is the verdict of guilty with respect to the charge of 35 P.S.
     § 780-113(a)(16) against the weight of the evidence and so
     contrary to the evidence that it shocks one’s sense of justice in
     light of the evidence presented at trial?

     [IV.] Is the sentence imposed in this matter unduly harsh and
     excessive under the circumstances as it is above the standard
     range set forth in the guidelines, fails to take into account all
     relevant and necessary factors to be considered by a sentencing
     court, and/or is based upon factors or evidence which should not
     be relied upon by a sentencing court?



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Appellant’s Brief at 8-9 (suggested answers and trial court answers omitted).

      With respect to Appellant’s first issue, the trial court and the

Commonwealth concede that the evidence was insufficient to sustain

Appellant’s conviction for the summary offense of carrying loaded weapons

other than firearms, 18 Pa.C.S. § 6106.1, because that subsection does not

apply to the weapon recovered during the search of Appellant’s vehicle. Trial

Court Opinion, 4/8/2016, at 9-11; Commonwealth’s Brief at 7.

      As a general matter, our 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 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. [T]he facts and circumstances
      established by the Commonwealth need not be absolutely
      incompatible with the defendant’s innocence. 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.

Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)

(citation omitted).

      Section 6106.1(a) states that

      except as provided in Title 34 (relating to game), no person shall
      carry a loaded pistol, revolver, shotgun or rifle, other than a
      firearm as defined in section 6102 (relating to definitions), in
      any vehicle. The provisions of this section shall not apply to
      persons excepted from the requirement of a license to carry


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     firearms under section 6106(b)(1), (2),        (5) or (6) (relating to
     firearms not to be carried without a          license) nor shall the
     provisions of this section be construed to    permit persons to carry
     firearms in a vehicle where such conduct      is prohibited by section
     6106.

18 Pa.C.S. § 6106.1(a) (emphasis added).           The weapon recovered from

Appellant’s vehicle was an automatic handgun with a barrel length of 3 ¾

inches, Trial Court Opinion, 4/8/2016, at 10, which qualifies as a “firearm”

under 18 Pa.C.S. § 6102 (defining firearm for the purposes of the Uniform

Firearms Act, in pertinent part, as “[a]ny pistol or revolver with a barrel

length less than 15 inches, … or any pistol, revolver, rifle or shotgun with

an overall length of less than 26 inches.”) (emphasis added).

     Based    on   the   foregoing,   we   agree   that   section   6106.1(a)   is

inapplicable to the weapon recovered from Appellant’s vehicle; thus, the

evidence is insufficient to sustain Appellant’s conviction.     Accordingly, we

vacate his conviction under section 6106.1(a). However, because Appellant

did not receive a sentence for that conviction, we need not remand this case

for imposition of a new sentence. See Commonwealth v. Thur, 906 A.2d

552, 569 (Pa. Super. 2006) (stating that when our disposition does not

upset overall sentencing scheme, there is no need for a remand).

     In his second issue on appeal, Appellant contends that the trial court

erred in denying Appellant’s motion to dismiss charges pursuant to the

compulsory joinder rule outlined in 18 Pa.C.S. § 110. Appellant’s Brief at 27-

34. Specifically, Appellant argues that his acquittal of the summary traffic



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offenses on September 12, 2012, three years prior to his non-jury trial on

the remaining indictable offenses, barred the later prosecution. Id.

      It is well-established that

            Section 110 of the Pennsylvania Rules of Criminal
      Procedure governs when a prosecution is barred by a former
      prosecution for a different offense, and thus serves as a
      statutory enforcement mechanism for protecting a defendant’s
      Double Jeopardy rights in Pennsylvania’s criminal courts. In
      Commonwealth v. Pries, 861 A.2d 951 (Pa. Super. 2004), we
      held that:

            the compulsory joinder rule, set forth at [18 Pa.C.S.
            § 110], bars a subsequent prosecution if all prongs
            of the following test are met:

            (1) the former prosecution resulted in an acquittal or
            conviction [as defined by 18 Pa.C.S. § 109] ; (2) the
            current prosecution was based on the same criminal
            conduct or arose from the same criminal episode;
            (3) the prosecutor in the subsequent trial was aware
            of the charges before the first trial; and (4) all
            charges were within the same judicial district as the
            former prosecution.

Commonwealth v. Miskovitch, 64 A.3d 672, 686 (Pa. Super. 2013).

When dealing with an issue arising under section 110, our scope of review is

plenary. See Commonwealth v. M.D.P., 831 A.2d 714, 717 (Pa. Super.

2003).

      In his brief, Appellant argues that his subsequent prosecution is barred

by section 110(1)(ii), which applies where

      [t]he former prosecution resulted in an acquittal … as defined in
      section 109 … and the subsequent prosecution is for … any
      offense based on the same conduct or arising from the same
      criminal episode, if such offense was known to the appropriate
      prosecuting officer at the time of the commencement of the first


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      trial and occurred within the same judicial district as the former
      prosecution unless the court ordered a separate trial of the
      charge of such offense.

18 Pa.C.S. § 110(1)(ii).

      However, in Commonwealth v. Splain, 364 A.2d 384 (Pa. Super.

1976), this Court held that a defendant must normally assert a section

110(1)(ii) claim in a timely manner, and may not wait until after the

Commonwealth has presented its evidence before doing so. Id. at 387. See

Commonwealth v. Block, 469 A.2d 650, 652 n. 4 (Pa. Super. 1983)

(citations omitted) (“While it is true that the lack of a specific objection will

not constitute a waiver of a particular basis for relief under double jeopardy,

… it has also been held that a defendant cannot sit back and put the

Commonwealth to the expense and time of presenting its evidence then later

object to the proceeding on double jeopardy grounds.”).

      Instantly, Appellant raised his compulsory joinder argument for the

first time in his supplemental post-sentence motion, which was filed on

October 2, 2015, three years after his acquittal for the summary traffic

offenses and nearly six months after his non-jury trial.      Such assertion is

patently untimely and, as such, we find Appellant’s claim waived for failure

to raise it in a timely manner.

      In his third issue, Appellant claims that his conviction for possession of

a controlled substance is against the weight of the evidence. Appellant’s

Brief at 35-41. Specifically, Appellant claims the trial court erred in finding



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that the testimony of the officers that Appellant constructively possessed the

cocaine recovered from the center console of the vehicle was outweighed by

the evidence that Appellant was “seen reaching away from” the area

containing the cocaine upon being pulled over, the presence in the vehicle of

another individual with equal access to the drugs, and a lack of “forensic

evidence” connecting Appellant with the drugs. Id. at 40.

             The law pertaining to weight of the evidence claims is well-
     settled. The weight of the evidence is a matter exclusively for
     the finder of fact, who is free to believe all, part, or none of the
     evidence and to determine the credibility of the witnesses. A new
     trial is not warranted because of a mere conflict in the testimony
     and must have a stronger foundation than a reassessment of the
     credibility of witnesses. 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.

            On appeal, our purview is extremely limited and is
     confined to whether the trial court abused its discretion in
     finding that the jury verdict did not shock its conscience. Thus,
     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.

Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015)

(quotation marks and citations omitted).

     Herein, the trial court, acting as fact-finder, assessed the credibility of

the witnesses and the evidence presented. It found the Commonwealth

established that Appellant had constructively possessed the recovered

cocaine and and that the verdict was not against the weight of the evidence.

Trial Court Opinion, 4/08/2016, at 12. We find no abuse of discretion.


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      Finally, Appellant attempts to challenge the discretionary aspects of his

sentence.

      It is well settled that, with regard to the discretionary aspects of
      sentencing, there is no automatic right to appeal.

         Before [this Court may] reach the merits of [a challenge to
         the discretionary aspects of a sentence], we must engage
         in a four part analysis to determine: (1) whether the
         appeal is timely; (2) whether Appellant preserved his
         issue; (3) whether Appellant’s brief includes a concise
         statement of the reasons relied upon for allowance of
         appeal with respect to the discretionary aspects of
         sentence; and (4) whether the concise statement raises a
         substantial question that the sentence is appropriate under
         the sentencing code.... [I]f the appeal satisfies each of
         these four requirements, we will then proceed to decide
         the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

      Appellant timely filed a notice of appeal.       Appellant both objected to

his sentence during the sentencing hearing, N.T., 9/22/2015, at 19, and

sought reconsideration of his sentence in his post-sentence motion.

Additionally,    Appellant’s   brief   contains   a   Pa.R.A.P.   2119(f)   concise

statement.      Thus, we must determine whether he has raised a substantial

question worthy of appellate review.

         The determination of whether a substantial question exists
         must be made on a case-by-case basis. It is only where
         an aggrieved party can articulate clear reasons why the
         sentence issued by the trial court compromises the
         sentencing scheme as a whole that we will find a
         substantial question and review the decision of the trial
         court.   This [C]ourt has been inclined to find that a
         substantial question exists where the appellant advances a


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         colorable argument that the sentencing judge’s actions
         were either: (1) inconsistent with a specific provision of
         the Sentencing Code; or (2) contrary to the fundamental
         norms underlying the sentencing process.

      Also, a bald allegation that a sentence is excessive does not
      raise a substantial question.

Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa. Super. 2002) (citations

omitted).

      Appellant argues that the trial court considered improper factors in

fashioning his sentence. Appellant’s Brief at 43.        This claim raises a

substantial question. Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa.

Super. 2003) (“[A] claim that the sentence is excessive because the trial

court relied on impermissible factors raises a substantial question”).

      Our standard for reviewing a claim challenging a discretionary aspect

of sentencing is as follows:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)

(quoting Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006)) .

A sentencing court has broad discretion in deciding the proper sentence,

following a careful consideration of the individual circumstances of the case

in light of statutory factors. Commonwealth v. Walls, 926 A.2d 957, 962–


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63 (Pa. 2007). Where the sentencing court reviews a pre-sentence

investigation report (PSI), “the presumption arises that the sentencing court

was aware of and weighed all relevant information contained therein along

with any mitigating sentencing factors.” Commonwealth v. Marts, 889

A.2d 608, 615 (Pa. Super. 2005).

      Relying upon Commonwealth v. Karash, 452 A.2d 528 (Pa. Super.

1982), Appellant asserts that the sentencing court abused its discretion in

imposing a sentence outside of the applicable guideline range and based

upon “allegations relating to [Appellant’s] arrest by federal authorities for

conduct occurring between December of 2014 and March of 2015 … three-

and-one-half years after the incident at issue” in this case.1 Appellant’s Brief

at 43-45.

           In setting forth the standard a court must follow in
      imposing sentence, the Karash court explained:

            A sentence is invalid if the record discloses that the
            sentencing court may have relied in whole or in part
            upon an impermissible consideration. This is so
            because the court violates the defendant’s right of
            due process if, in deciding upon the sentence, it

1
  The conduct to which Appellant alludes in his brief is an allegation that,
while he was awaiting sentencing in this matter, Appellant was arrested on
federal drug trafficking charges. In addition, Appellant was accused of other
conduct that supported the allegations of drug trafficking activity, including
purchasing a small airplane for $50,000 in cash, which he flew frequently
between Ohio and California, reporting no income to the IRS despite having
thousands of dollars in his bank accounts and lying about his employment
status. N.T., 9/22/2015, at 15-16. These allegations were presented to the
sentencing court by the district attorney through a report compiled by the
United States Attorney’s Office which was made part of the record at
Appellant’s sentencing.


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           considers unreliable information or information
           affecting the court’s impartiality, or information that
           it is otherwise unfair to hold against the defendant.

     Id. at 528-29.

          The trial judge in Karash revealed at sentencing that he
     was relying on crimes allegedly committed by the defendant:

           I’ve also taken into consideration the crimes
           [escape] you have committed in Pennsylvania since
           the time that you returned here .... The [c]ourt feels,
           while I’m not sentencing you for those crimes, they
           have been part of the [c]ourt’s consideration in
           imposing this sentence ....

     Id. at 529.

          At a subsequent hearing on a motion to modify sentence,
     the Karash trial judge elaborated:

           Okay. So the record reflects, I don’t know
           whether it’s in there or not, but the matter of
           Mr. Karash’s [escape] incident was on all of the
           local television channels and in all the local
           newspapers. It was the only source of the
           [c]ourt’s information, and actually showed
           pictures of Mr. Karash being apprehended in
           handcuffs at the scene, and the [c]ourt was
           aware that he was supposed to be in jail
           awaiting sentence and not to be out.

     Id.

Commonwealth v. Druce, 796 A.2d 321, 334–35 (Pa. Super. 2002)

(emphasis added).

     Because the trial court relied on such impermissible information, this

Court vacated Karash’s judgment of sentence. However, the instant case is

distinguishable. Here, the sentencing court was presented with, and



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reviewed, “the sentencing guidelines form, the modified presentence report,

the   Commonwealth’s        sentencing   memorandum        as    well   as    the

Commonwealth’s packet [from the United States Attorney’s Office detailing

the allegations against Appellant since the commission of the crime herein,

the defendant’s allocution, and the circumstances of this case in whole.”

N.T., 9/22/2015, at 17.        The court then articulated its reasons for

Appellant’s sentence as follows.

            I do find that the guidelines grossly [underrepresent]
      [Appellant’s] history of criminality and propensity to commit
      crimes. I’ve carefully considered, over the course of many
      weeks, the information in the modified presentence report, and I
      think there is good reason to doubt a whole lot of it. Much of the
      information would have served as a mitigator. Even taking it at
      face value, any mitigating circumstances before this [c]ourt
      would be greatly outweighed by the aggravating circumstances
      that exist in this case.

             I do find that [Appellant] poses a threat to society for
      reasons, not the least of which is his conduct while still on bail in
      this offense.

Id. at 17-18.

      It is evident that the court herein was not relying on televised reports

of illegal conduct; rather, the court was presented at sentencing with a

report concerning crimes allegedly committed while Appellant was out on

bail awaiting sentencing.    It is well-settled that “[a] court may consider

criminal activity or preparation for crimes as factors in sentencing even

though no arrest or conviction resulted.” Commonwealth v. Palmer, 462




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A.2d 755, 762 (Pa. Super. 1983). Accordingly, we find that the trial court

did not abuse its discretion in sentencing Appellant.

      In sum, we vacate Appellant’s conviction for the summary offense of

carrying loaded weapons other than firearms, 18 Pa.C.S. § 6106.1. Because

he was not sentenced with respect to this conviction, we need not remand

for a new sentence. We affirm Appellant’s remaining convictions and affirm

his judgment of sentence in all other respects.

      Judgment    of   sentence   vacated    in   part   and   affirmed   in   part.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/7/2017




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