J-S31006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

TYLER DAVID FIX,

                         Appellant                     No. 1613 MDA 2014


          Appeal from the Judgment of Sentence August 25, 2014
              In the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0000216-2014


BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

MEMORANDUM BY BENDER, P.J.E.:                           FILED JUNE 12, 2015

      Appellant, Tyler David Fix, appeals from the August 25, 2014

judgment of sentence imposed after he was convicted of persons not to

possess a firearm, 18 Pa.C.S. § 6105(a)(1), and possession of a controlled

substance, 35 P.S. § 780-113(a)(16). Appellant challenges the sufficiency

and weight of the evidence to sustain his firearm conviction, as well as the

discretionary aspects of his sentence. After careful review, we affirm.

      Appellant was charged with the above-stated offenses and proceeded

to a non-jury trial on July 31, 2014.        The trial court summarized the

evidence presented at Appellant’s trial, as follows:

           [T]he record reflects that Chief John Pontician of the
      Womelsdorf Borough Police Department proceeded to 20 East
      High Street in Womelsdorf, Berks County, Pennsylvania after
      being informed by Nancy Ruth, [Appellant’s] Aunt, that
      [Appellant] was living at that address. There was an active
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       warrant for [Appellant’s] arrest due to a parole violation.
       Moreover, Ms. Ruth did not want [Appellant] living at her
       parents’ home because they were elderly and she believed his
       presence would have a negative impact on their health.

             On the afternoon of November 6, 2013, Chief Pontician
       found [Appellant] illegally burning items in a barrel at the
       residence.    As Chief Pontician was taking [Appellant] into
       custody, he noticed a firearm magazine and [a] number of .22
       caliber long rifle cartridges at [Appellant’s] feet. Also, Chief
       Pontician observed a Mossberg semiautomatic .22 long rifle
       nearby.[1] The magazine and ammunition contained in the rifle
       were identical to the magazine and ammunition discovered at
       [Appellant’s] feet. In addition, Nancy Ruth testified that only her
       father and [Appellant] had keys to the garage where the gun
       was located and that she had never known her father to keep
       firearms in the house.

Trial Court Opinion (TCO), 11/14/14, at 3-4 (citations to the record

omitted).

       Based on these facts, the trial court found Appellant guilty of persons

not to possess a firearm. Additionally, at the time of Appellant’s arrest, he

was found to be in possession of the prescription drug Benzodiazepine, for

which he did not have a prescription.            N.T. Trial, 7/31/14, at 30-31.

Accordingly, the court also convicted Appellant of possession of a controlled

substance.



____________________________________________


1
  Chief Pontician testified that Appellant was standing close to an open door
leading into the garage and, just inside the garage, the chief could “see the
butt of a rifle stock.” N.T. Trial, 7/31/14, at 23-24. Chief Pontician stated
that Appellant was standing approximately 6 to 7 feet from the gun. Id. at
29.



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      On August 25, 2014, the court sentenced Appellant to an aggregate

term of five to ten years’ incarceration, followed by three years’ probation.

Appellant filed a timely post-sentence motion, which the court denied. He

then filed a timely notice of appeal, as well as a timely Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.        Herein, Appellant

raises three issues for our review:

      A. Whether the evidence was insufficient to establish the guilty
         verdict of Persons Not to Possess, Use, Manufacture, Control,
         Sell or Transfer Firearms under 18 Pa.C.S.A. [§] 6105(a)(1)
         where the evidence presented at trial was insufficient to
         prove beyond a reasonable doubt that Appellant had actual or
         constructive possession of a firearm[?]

      B. Whether the verdict of guilty for Persons Not to Possess, Use,
         Manufacture, Control, Sell or Transfer Firearms under 18
         Pa.C.S.A. [§] 6105(a)(1) was contrary to the weight of the
         evidence presented, which showed that Appellant’s father was
         the sole owner of the rifle[?]

      C. Whether the court abused its discretion by sentencing
         Appellant to a term of five (5) to ten (10) years[’]
         incarceration followed by three (3) years of special probation
         where the period of confinement and the consecutive
         probation sentence are greater than that which would be
         consistent with the sentencing factors including the protection
         of the public, the gravity of the offense as it relates to the
         impact on the life of the victim and the community, and the
         rehabilitative needs of [] Appellant[?]

Appellant’s Brief at 6 (footnote omitted).

      Appellant first argues that the evidence was insufficient to sustain his

firearm conviction.

            Our standard of review in a sufficiency of the evidence
         challenge is to determine if the Commonwealth established
         beyond a reasonable doubt each of the elements of the

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         offense, considering all the evidence admitted at trial, and
         drawing all reasonable inferences therefrom in favor of the
         Commonwealth as the verdict-winner. The trier of fact
         bears the responsibility of assessing the credibility of the
         witnesses and weighing the evidence presented. In doing
         so, the trier of fact is free to believe all, part, or none of
         the evidence.

      Commonwealth v. Newton, 994 A.2d 1127, 1131 (Pa. Super.
      2010), appeal denied, 608 Pa. 630, 8 A.3d 898 (2010), quoting
      Commonwealth v. Pruitt, 597 Pa. 307, 318, 951 A.2d 307,
      313 (2008) (citations omitted). The Commonwealth may sustain
      its burden by means of wholly circumstantial evidence, and we
      must evaluate the entire trial record and consider all evidence
      received against the defendant. Commonwealth v. Markman,
      591 Pa. 249, 270, 916 A.2d 586, 598 (2007).

Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013).

      Here, Appellant maintains that his conviction of persons not to possess

a firearm cannot stand because the Commonwealth failed to prove that he

constructively possessed the gun discovered inside the garage.

      Constructive possession is a legal fiction, which is invoked when
      actual possession at the time of arrest cannot be shown, but
      there is a strong inference of possession from the facts
      surrounding the case. Constructive possession has been defined
      as “conscious dominion,” which requires two elements: the
      power to control the contraband and the intent to exert such
      control.

Commonwealth v. Battle, 883 A.2d 641, 644-645 (Pa. Super. 2005).

      Appellant acknowledges that his “presence at the home could arguably

establish the first element of constructive possession, [i.e.] that he had the

power to exercise control over the contraband….”       Appellant’s Brief at 14.

However, he argues that “the Commonwealth failed to offer evidence that it

was his intention to possess the rifle.” Id.

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      We disagree. We reiterate that “[t]he Commonwealth may sustain its

burden by means of wholly circumstantial evidence….” Hopkins, 67 A.3d at

820 (citation omitted).     In this case, Chief Pontician testified that he

discovered at Appellant’s feet the exact same type of magazine and

ammunition that were found in the firearm.        Ms. Ruth testified that only

Appellant and her father (Appellant’s grandfather) had keys to the garage,

and she did not know her father to keep guns at the home.         When Chief

Pontician arrived at the scene on November 6, 2013, Appellant was standing

just outside the open door to the garage with the firearm located six to

seven feet away.      We conclude that this circumstantial evidence was

sufficient to permit the trial court, as the fact-finder, to conclude that

Appellant had the intent to exert control over the firearm. Accordingly, his

challenge to the sufficiency of the evidence is meritless.

      Next, Appellant contends that his conviction of persons not to possess

a firearm was contrary to the weight of the evidence presented at trial.

      Our standard of review for a challenge to the weight of the
      evidence is well-settled: The finder of fact is the exclusive judge
      of the weight of the evidence as the fact finder is free to believe
      all, part, or none of the evidence presented and determines the
      credibility of the witnesses. As an appellate court, we cannot
      substitute our judgment for that of the finder of fact. Therefore,
      we will reverse a jury's verdict and grant a new trial only where
      the verdict is so contrary to the evidence as to shock one's sense
      of justice. Our appellate courts have repeatedly emphasized that
      [o]ne of the least assailable reasons for granting or denying a
      new trial is the lower court's conviction that the verdict was or
      was not against the weight of the evidence.

      Furthermore,

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         where the trial court has ruled on the weight claim below,
         an appellate court's role is not to consider the underlying
         question of whether the verdict is against the weight of the
         evidence. Rather, appellate review is limited to whether
         the trial court palpably abused its discretion in ruling on
         the weight claim.

Commonwealth v. Rabold, 920 A.2d 857, 860-861 (Pa. Super. 2007)

(internal citations and quotation marks omitted).

      Appellant’s challenge to the weight of the evidence hinges primarily on

the trial court’s decision to disbelieve the testimony of his father, Ronald Fix.

Mr. Fix testified that he owned the rifle found in the garage, and claimed

that he had placed it there “because [he did not] want to drive around with

it in his vehicle.” N.T. Trial at 56. Appellant contends that,

      the trial court chose to completely discredit the testimony of
      Ronald, the owner of the rifle in question, while finding [Ms.]
      Ruth’s and the officers’ testimony credible.         In denying
      Appellant’s Motion for a New Trial, the trial court provided no
      reasoning as to why it found [Ms.] Ruth’s and the officers’
      testimony entirely credible, while disbelieving the testimony of
      the rifle’s owner.

Appellant’s Brief at 16.    Appellant also reiterates his argument that the

Commonwealth failed to prove he constructively possessed the firearm.

      Initially, Appellant cites no legal authority to support his suggestion

that a trial court is required to state the rationale underlying its credibility

determinations.    In any event, the trial court provides the following

explanation in its Pa.R.A.P. 1925(a) opinion:

      This court found the testimony of Nancy Ruth and the police
      officers to be credible. Furthermore, due to his demeanor, as

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      well as the circumstantial evidence presented at trial concerning
      [Appellant’s] constructive possession of the rifle, we found
      Ronald Fix’s testimony that he placed his rifle in the garage at
      his parents’ home to be incredible. Given these facts, the
      verdict certainly fails to shock one’s sense of justice.

TCO at 5 (emphasis added). Based on the court’s discussion, we ascertain

no abuse of discretion in its decision to deny Appellant’s challenge to the

weight of the evidence. Additionally, Appellant’s claim that the verdict was

contrary to the weight of the evidence because the Commonwealth did not

demonstrate that he constructively possessed the gun is meritless for the

reasons stated supra.

      Lastly, Appellant presents a challenge to the discretionary aspects of

his sentence. However, we are constrained to deem this issue waived. The

Pennsylvania Rules of Appellate Procedure explicitly state:

         An appellant who challenges the discretionary aspects of a
         sentence in a criminal matter shall set forth in his brief a
         concise statement of the reasons relied upon for allowance
         of appeal with respect to the discretionary aspects of a
         sentence. The statement shall immediately precede the
         argument on the merits with respect to the discretionary
         aspects of sentence.

Pa.R.A.P. 2119(f) (emphasis added).      Here, Appellant has not included a

Rule 2119(f) statement in his brief to this Court.      “While this does not

automatically waive his claim on appeal, we may not reach the merits of

[the] claims where the Commonwealth has object[ed] to the omission of the

statement.”   Commonwealth v. Hudson, 820 A.2d 720, 727 (Pa. Super.

2003) (internal citation and quotation marks omitted). The Commonwealth


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has expressly objected to Appellant’s omitted Rule 2119(f) statement in its

brief to this Court. See Commonwealth’s Brief at 12-13. Accordingly, we

are constrained to deem Appellant’s challenge to the discretionary aspects of

his sentence waived. See Commonwealth v. Anderson, 830 A.2d 1013,

1017 (Pa. Super. 2003) (“[I]f the appellant fails to comply with [Rule]

2119(f) and the Commonwealth objects, the issue is waived for purposes of

review.”) (citations omitted).

      Nevertheless, even if Appellant had not waived his sentencing

challenge, we would conclude that it is meritless.

      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. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007)

(citation omitted).

      The trial court explains in its opinion, and the record confirms, that the

court “thoroughly considered the sentencing guidelines, a pre-sentence

investigation report, the facts admitted on the record, and arguments of

counsel and [Appellant] before imposing a sentence within the standard

range of the sentencing guidelines.” TCO at 6-7. In fashioning Appellant’s

sentence, the court took into account Appellant’s “age, his prior record

score, the fact that he had not done well under county supervision, and the

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fact that he was on parole at the time he committed the instant offenses….”

Id. at 7.     In light of these circumstances, the “court concluded that a

standard range sentence followed by a period of probation was appropriate.”

Id. Based on our review of the record, and the court’s discussion, we would

conclude that Appellant’s sentence was not an abuse of the court’s

discretion.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/2015




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