J-S74031-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                       Appellee         :
                                        :
                  v.                    :
                                        :
KENNETH F. BOLLINGER,                   :
                                        :
                       Appellant        :     No. 1123 EDA 2014

      Appeal from the Judgment of Sentence Entered March 25, 2014,
              in the Court of Common Pleas of Lehigh County,
           Criminal Division at No(s): CP-39-CR-0002985-2012

BEFORE: BENDER, P.J.E., DONOHUE and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED JANUARY 02, 2015

      Kenneth F. Bollinger (Appellant) appeals from a judgment of sentence

which was entered after a jury convicted him of persons not to possess

firearms, 18 Pa.C.S. § 6105(a)(1). We affirm.

      Appellant was arrested and charged with persons not to possess a

firearm.   He pled guilty and was sentenced.     He, however, obtained relief

pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, and

was permitted to withdraw his guilty plea.     A jury subsequently convicted

Appellant, and the trial court sentenced him to four to ten years in prison.

Appellant timely filed a post-sentence motion wherein he claimed that he is

entitled to a new trial because the jury’s verdict is contrary to the weight of

the evidence. The trial court denied that motion, and Appellant timely filed a

notice of appeal. The trial court directed Appellant to comply with Pa.R.A.P.



* Retired Senior Judge assigned to the Superior Court.
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1925(b); Appellant filed a 1925(b) statement; and the court issued a

1925(a) opinion.

      In his brief to this Court, Appellant asks us to consider whether the

trial court erred by denying his post-sentence motion.       Stated succinctly,

Appellant argues that the evidence produced by the Commonwealth at trial

regarding his possession of a firearm was so tenuous, vague, and uncertain

that he is entitled to a new trial.

            An allegation that the verdict is against the weight of the
      evidence is addressed to the discretion of the trial court. Our
      Supreme Court has explained that [a]ppellate review of a weight
      claim is a review of the exercise of discretion, not of the
      underlying question of whether the verdict is against the weight
      of the evidence. 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. [A] new trial should be
      awarded when the jury’s verdict is so contrary to the evidence as
      to shock one’s sense of justice and the award of a new trial is
      imperative so that right may be given another opportunity to
      prevail. Stated another way, … this Court has explained that the
      evidence must be so tenuous, vague and uncertain that the
      verdict shocks the conscience of the court.

Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003)

(citations omitted; emphasis eliminated).

      The trial court summarized Appellant’s trial as follows.

            In order to find a defendant guilty of the crime of persons
      not to possess a firearm under 18 Pa.C.S. § 6105(a)(1), the
      Commonwealth must first demonstrate that the defendant was a
      person prohibited by law from possessing a firearm. To be
      prohibited, the Commonwealth must show that defendant had
      previously been convicted of an enumerated offense at Section
      6105(b) of the Crimes Code. Second, it must be demonstrated


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     that the defendant, on a date more than 60 days from the time
     he became a person prohibited by law from possessing a
     firearm,   knowingly    possessed   a   firearm   within   the
     Commonwealth.

           At trial, the district attorney and counsel for [Appellant]
     stipulated that [Appellant] had a prior conviction that precluded
     him from possessing a firearm. The parties further stipulated
     that the prior conviction occurred more than 60 days prior to the
     incident in question. Therefore, the jury only had to decide if
     [Appellant] possessed a firearm.

           The Commonwealth presented three witnesses at trial,
     Officers Michael Becker, Thurman D’Argenio and Michael Yetter,
     from the Allentown Police Department. These three were on
     patrol in uniform in downtown Allentown during the early
     morning of June 24, 2012.

            Officer Becker testified that, at approximately 4:00 a.m.
     on June 24, he received information via police radio about a
     domestic dispute occurring at 525 Oak Street in Allentown.
     Officer Becker was told that several individuals left that
     residence on foot and that one of the individuals possibly had a
     firearm. The officer drove in his marked patrol car to the area
     around the 500 block of Oak Street in an attempt to locate these
     individuals.   While he was stopped at the red light at the
     intersection of Sixth and Chew Streets, Officer Becker saw a man
     carrying a bag run across Sixth Street from east to west. The
     officer radioed his observation to other police units and he began
     to pursue the running man. Officer Becker’s testimony on this
     point was corroborated by Exhibit C-5, a video from June 24
     recorded on a police wireless surveillance camera fixed at Sixth
     and Chew Streets. The video shows a man running with a bag
     across Sixth Street. Officer Becker testified that the video
     accurately depicts what he saw the man doing.

           After losing visual contact with the man, Officer Becker
     parked his patrol car at that intersection and began to search the
     area on foot. By this time, Officer Becker was joined in the
     search by Officer D’Argenio. The officers searched a parking lot
     near the Sixth and Chew Streets intersection. Officer Becker
     saw an open garage at one end of the parking lot. A fence
     separated the garage from the lot. The garage was accessible
     from the parking lot because a section of the fence near the


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      garage was broken. Both officers walked through the broken
      section of the fence and looked into the open garage. The
      garage was cluttered with rusty items and rubbish. Officer
      Becker noticed a man crouching behind some items inside the
      garage. The officers ordered the man out of the garage and
      they placed him in handcuffs. At trial, both officers identified the
      [Appellant] as the man hiding in the garage.

            After [Appellant] was detained, Officer D’Argenio testified
      that he saw a black bag wedged between the outside wall of the
      garage and an adjacent tree. Officer D’Argenio seized the bag
      and opened it. The bag contained a semiautomatic .380 black
      handgun with five rounds of ammunition in its magazine.

             Officer Michael Yetter testified that he also responded to
      the report of domestic violence at 525 Oak Street. He was the
      first officer to arrive at the residence. Officer Yetter explained
      that Danelle Brockel, a resident of 525 Oak Street, had called
      the police and reported that her brother, Scott Brockel, had
      threatened her with a firearm. Ms. Brockel told Officer Yetter
      that her brother, his friend Kenny and a female left the residence
      when she called the police. She also told the officer that her
      brother had a firearm.

            [Appellant] testified at trial. He admitted to being present
      at 525 Oak Street on the morning in question. He admitted that
      he ran from the residence after the domestic dispute between
      Scott and Danelle Brockel. He acknowledged that he was the
      man whose image was captured on the video, Exhibit C-5.
      [Appellant] said that he was carrying a computer bag as he ran
      from the residence. He admitted that he was hiding in the
      vacant garage but the police found him. However, he denied
      owning the bag found by the police immediately adjacent to the
      garage. [Appellant] claimed that he was hiding because he
      believed Scott Brockel had committed a crime and he did not
      want to become involved in a police investigation for that.

Trial Court Opinion, 5/15/2014, at 2-5 (citation omitted).

      The trial court explained its reasons for rejecting Appellant’s weight-of-

the-evidence claim as follows.




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            The trial testimony combined with the video recording
      presented the jury with strong circumstantial evidence that
      [Appellant] constructively possessed the handgun that the police
      found outside the garage where [Appellant] was hiding.
      Constructive possession requires a demonstration that the
      accused has the “power to control the contraband and the intent
      to exercise that power.”      Commonwealth v. Jones, 250
      Pa.Super. 236, 239, 378 A.2d 914, 915 (1977). “Location of the
      contraband in an area usually accessible only to the defendant
      may lead to an inference that he placed it there or knew of its
      presence if others did so.” Commonwealth v. Juliano, 340
      Pa.Super. 501, 506, 490 A.2d 891, 894 (1985) (citations
      omitted).

             In summary, the police responded to a call about an armed
      individual fleeing a residence where domestic violence occurred.
      An officer witnessed [Appellant’s] running with a bag in the area
      of the residence from where the call came. Police then found
      [Appellant] hiding in a garage close to where he was observed
      running. The police also found a bag containing a loaded firearm
      immediately outside of the garage where [Appellant] was hiding.
      All of this occurred in the dark early hours of the morning.
      Based on these facts, a jury could reasonably conclude that
      [Appellant] constructively possessed the firearm. The jury’s
      rejection of [Appellant’s] testimony on these topics fell within
      their discretion as the finders of fact. Nothing about the jury’s
      verdict could shock a reasonable person’s sense of justice.
      Accordingly, [Appellant’s] challenge to the weight of the
      evidence fails.

Id. at 5.

      We can discern no abuse of discretion in the trial court’s decision to

reject Appellant’s weight-of-the-evidence claim.   Consequently, we affirm

the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/2/2015




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