J-S34044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

QUINTEZ DEVAR HALL

                            Appellant                  No. 1796 MDA 2014


       Appeal from the Judgment of Sentence imposed October 20, 2014
                 In the Court of Common Pleas of York County
               Criminal Division at No: CP-67-CR-0007930-2013


BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                           FILED AUGUST 21, 2015

        Appellant, Quintez Devar Hall, appeals from the judgment of sentence

imposed on October 20, 2014 in the Court of Common Pleas of York County

following his conviction of two firearms violations.    Appellant contends the

evidence was insufficient to support either conviction.     We disagree and,

therefore, affirm.

        On September 5, 2014, a jury convicted Appellant of persons not to

possess firearms and for possessing a firearm not to be carried without a

license.1 On October 20, 2014, the trial court sentenced Appellant to five to

ten years in prison as a person not to possess a firearm and imposed a

concurrent sentence of three to six years for his second conviction.
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1
    18 Pa.C.S.A. §§ 6105 and 6106, respectively.
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Appellant filed a timely notice of appeal and complied with the trial court’s

directive to file a statement of errors complained of on appeal, asserting

“[t]he evidence presented by the Commonwealth was insufficient as a

matter of law to support the jury verdict of guilty for Carrying a Firearm

without a License and Person not to Possess a Firearm.”          Statement of

[Errors] Complained of under Pa.R.A.P. 1925(b), 11/6/14, at 1. The issue

Appellant asks this Court to consider is worded substantially identically to his

1925(b) statement.

      Before addressing Appellant’s issue, we shall first address the

Commonwealth’s contention that Appellant has waived his issue for failure to

preserve it for appellate review.         In support of this position, the

Commonwealth cites, inter alia, Commonwealth v. Williams, 959 A.2d

1252 (Pa. Super. 2008), for the proposition that an appellant asserting

insufficiency of evidence must specify the element or elements upon which

the evidence was insufficient. As this Court explained in Williams:

      If [an a]ppellant wants to preserve a claim that the evidence
      was insufficient, then the 1925(b) statement needs to specify
      the element or elements upon which the evidence was
      insufficient.   This Court can then analyze the element or
      elements on appeal. The instant 1925(b) statement simply does
      not specify the allegedly unproven elements. Therefore, the
      sufficiency issue is waived.

Id. at 1257 (emphasis deleted).     However, waiver will not be found in all

instances. As this Court recognized in Williams:

      We are cognizant of our Supreme Court’s recent decision in
      Commonwealth v. Laboy, 594 Pa. 411, 936 A.2d 1058

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      (2007)[,] in which the Court vacated this Court’s Order and
      remanded the case for us to decide the merits of certain issues
      the appellant had raised on appeal.          The Supreme Court
      determined a panel of this Court had erred in deciding the
      appellant had failed to adequately develop his claim of
      insufficient evidence to support his conviction in his statement of
      matters complained of on appeal and noted that the case was a
      “relatively straightforward drug case” though “in more complex
      criminal matters the common pleas court may require a more
      detailed statement to address the basis for a sufficiency
      challenge.” Id. at 1060.

Id. at 1258 n.9.

      We find that this case is a “relatively straightforward” firearms case,

especially in light of the stipulation at trial that Appellant “is a person not to

possess and has been since the year 2007. [Also, Appellant] did not have a

valid license to carry a concealed firearm on his person or within a vehicle.”

Notes of Testimony (N.T.) Trial, 9/4/14, at 82. As the trial judge instructed

the jury after counsel presented the stipulation:

      Again you may accept that stipulation. The stipulation is that
      [Appellant] did not have a license at the time the gun was
      located and, secondly, that he is a person not to possess a
      firearm. So those two facts may be accepted by you. There is
      still obviously other issues that remain to determine whether or
      not [Appellant] had the firearm in his possession.

Id. at 83. Under the circumstances of this case, we decline to find waiver

for Appellant’s failure to specify in the 1925(b) statement the elements upon

which he bases his insufficiency challenge.

      The statutory provisions for the crimes in question provide that “a

person who has been convicted of an offense enumerated in subsection (b) .

. . shall not possess . . . a firearm in this Commonwealth.” 18 Pa.C.S.A. §

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6015(a)(1).     Further, “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 . . . commits a felony of the third degree.” 18 Pa.C.S.A. §

6106. Because it was stipulated that Appellant was a person not to possess

under § 6105(a)(1) and was not licensed to carry a firearm under § 6106,

the only issue for the jury to determine was whether Appellant was in

possession of, or was carrying, a firearm.

       The only witnesses at Appellant’s trial were three Commonwealth

witnesses from the York City Police Department: Officer Christopher Roosen,

Sergeant Nicholas Figge and Officer Derek Hartman.             The trial court

summarized the officers’ testimony as follows:

       In this case, the jury heard that on October 21, 2013, Officer
       Christopher Roosen was on patrol around 11:00 p.m. Officer
       Roosen saw a known male, Brandon Orr, for whom there were
       outstanding warrants walking towards him. Officer Roosen then
       testified that at this point Mr. Orr ran. Officer Roosen alerted
       Sergeant Nicholas Figge that Mr. Orr was known to utilize or ride
       in a silver [J]eep. Sergeant Figge testified that he saw and
       pursued the sliver [J]eep in question. While attempting to flee,
       the [J]eep crashed and Sergeant Figge testified that three
       suspects ran from the vehicle. Sergeant Figge was able to
       identify [Appellant], in blue jeans and a sweatshirt, as one of the
       fleeing subjects.[2]


____________________________________________


2
  Sergeant Figge testified that two of the three individuals ran in a southerly
direction while the third, Appellant, ran down an alleyway in a different
direction. N.T. Trial, 9/4/14, at 91.



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     The jury heard Officer Derek Harman testify that he pursued an
     individual dressed as Sergeant Figge described. Officers Roosen
     and Hartman testified that upon apprehension of this person, a
     firearm was located near the individual’s hands. Sergeant Figge
     identified the individual as [Appellant], who was one of the three
     individuals he had seen flee the crashed [J]eep. Officer Roosen
     related to the jury that 9 mm ammunition was found in the
     crashed [J]eep. The firearm [in] question is a 9 mm handgun. .
     . . All of the officers who testified stated that they never saw
     [Appellant] in physical possession of the firearm. And Officer
     Roosen stated that the gun was not fingerprinted because there
     was no question who the actor was in this case. The jury also
     heard a stipulation that [Appellant] is a person not to possess
     firearms and has been since 2007. . . . The jury was provided
     with the stipulation that [Appellant] was a person not to possess.
     Ergo, under 18 Pa.C.S.A. § 6105(a)(1), the Commonwealth
     would only have needed to show the element of possession.

Trial Court Rule 1925(a) Opinion, 1/29/15, at 3-4 (references to Notes of

Testimony omitted).

     Again, the sole issue before this Court involves the sufficiency of

evidence. This Court has stated:

     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
     [finder] of fact while passing upon the credibility of witnesses

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     and the weight of the evidence produced, is free to believe all,
     part or none of the evidence.

Commonwealth v. Cruz, 21 A.3d 1247, 1252 (Pa. Super. 2011) (citations

omitted). In Cruz, this Court explained:

     Illegal possession of a firearm may be shown by constructive
     possession. Commonwealth v. Parker, 847 A.2d 745, 750
     (Pa. Super. 2004).

        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.

Id. at 1253 (quoting Parker, 847 A.2d at 750) (additional citations

omitted).

     Appellant argues that the Commonwealth must prove Appellant had

both the power to control the firearm and the intent to exercise control,

contending mere presence at the scene is insufficient. Appellant’s Brief at

11 (citing Commonwealth v. Boatwright, 453 A.2d 1058, 1059 (Pa.

Super. 1982), in turn citing Commonwealth v. Townsend, 237 A.2d 192

(Pa. Super. 1968); and Commonwealth v. Luddy, 422 A.2d 601 (Pa.

Super. 1980)). While we do not disagree with the premise Appellant

advances, we find the cases he has cited inapposite. Unlike the cases cited

by Appellant, Appellant was alone when he was apprehended. When he and

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the other subjects fled the Jeep, Appellant headed in a different direction

from his associates.        Neither of the other individuals was noted to be

anywhere near Appellant when Appellant was taken into custody. Moreover,

the officers each testified that the handgun was within a few feet of

Appellant’s hand.3 As the trial court observed:

       [Appellant] was apprehended with the firearm near his hands.
       [Appellant] was identified as one of the individuals who fled the
       crashed [J]eep which contained more ammunition of the sort
       used in the firearm recovered. Taken together, these facts are
       the strongest basis upon which to find possession. There is no
       specific quantum of evidence that the Commonwealth must
       produce in order for a court to find that sufficient evidence has
       been presented; but, rather, we must evaluate whether the
       evidence was so weak and inconclusive that no probability of fact
       may be drawn from the combined circumstances. It strains
       credulity to believe that [Appellant] was unlucky enough to be
       apprehended within reach of a firearm for which there was
       matching ammunition in the vehicle from which [he] fled.

Trial Court Opinion, 1/29/15, at 4-5. We agree. Viewing all the evidence—

including circumstantial evidence—in the light most favorable to the

Commonwealth as verdict winner, coupled with the stipulation that Appellant

was a person not to possess a firearm, we conclude the evidence was

sufficient to enable the jury to find every element of the crime beyond a

reasonable doubt.

____________________________________________


3
  Appellant contends that testimony indicating multiple subjects exited the
Jeep and fled after it crashed suggests that “anyone from that Jeep could
have been in possession of that firearm and have dropped it while fleeing.”
Appellant’s Brief at 11. In light of the officers’ testimony, Appellant’s
proposition is without foundation.



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      With respect to Appellant’s conviction of firearms not to be carried

without a license, we likewise conclude the evidence was sufficient to

support the conviction.   As the trial court noted, Officer Hartman testified

that he continually commanded Appellant to show his hands during his

pursuit and that Appellant failed to do so. “This evidence tends to show that

[Appellant] had concealed the weapon upon his person and would not show

his hands in order to maintain his grasp upon the firearm.” Id. at 6. When

the officers apprehended Appellant, the gun was observed on the ground

next to Appellant, “within his reach.” N.T. Trial, 9/4/14, at 75.    Again, in

conjunction with the stipulation that Appellant did not have a license to carry

the firearm, we conclude the evidence viewed in the light most favorable to

the Commonwealth was sufficient to prove the elements of the crime

charged.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2015




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