J-S08034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TERRANCE STOCKTON                          :
                                               :
                       Appellant               :   No. 2980 EDA 2017

             Appeal from the Judgment of Sentence April 28, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0011921-2015


BEFORE:      BENDER, P.J.E., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                          FILED MARCH 07, 2019

        Appellant, Terrance Stockton, appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County following his

conviction at a non-jury trial on the charges of possession of a firearm

prohibited, carrying a firearm without a license, and possession of an

instrument of crime.1 After a careful review, we affirm.

        The relevant facts and procedural history are as follows: Following his

arrest, Appellant, who was represented by counsel, proceeded to a bench trial.

At the bench trial, Robert Charles Lammers testified that, on April 9, 2015, at

approximately 4:10 p.m., he was at Smith’s Playground at 24th and Jackson

Streets exercising his dog when he observed a gray Ford Taurus following a


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1   18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 907(a), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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dark blue Chevrolet Suburban on 24th Street. N.T., 1/31/17, at 8-9. The

driver of the gray Taurus was honking the horn of the vehicle, and in Mr.

Lammers’ opinion, was trying to get the Suburban driver’s attention. Id. at

9. Mr. Lammers observed as the Suburban turned onto Wolf Street with the

Taurus following it. Id. at 12. When the Suburban stopped at a stop sign,

the Taurus pulled alongside the driver’s side of the Suburban.       Id.   The

vehicles were alongside each other for “maybe 5 to 10 seconds,” and then Mr.

Lammers heard “a bunch of gunfire, maybe 6 to 8 gunshots.” Id. at 14. Mr.

Lammers testified that it was obvious the gunfire was coming from occupants

of one or both vehicles, but he could not tell “who was shooting at who.” Id.

He clarified that “it sounded like there were two guns being fired because of

the fastness and rapidness of the fire[.]” Id. at 14-15.

      After the gunfire ceased, Mr. Lammers observed as the Suburban turned

to the right and the Taurus turned to the left. Id. at 15. Within five minutes,

Mr. Lammers was able to flag down a police officer to report what he had just

witnessed. Id. Subsequently, the police took Mr. Lammers to 39th Street and

Woodland Avenue, where the police had discovered the gray Taurus. Id. Mr.

Lammers positively identified the vehicle as the one that had been following

the Suburban. Id.

      Philadelphia Police Officer Rafael Nieves-Smart testified that he was on

routine patrol driving south on 24th Street approaching Wolf Street when Mr.

Lammers, who was frantically waving his arms, ran towards his patrol car.


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N.T., 2/8/17, at 4. Mr. Lammers advised the officer that, thirty seconds prior

thereto, occupants of a dark blue Chevrolet Suburban and a gray Ford Taurus

had engaged in a shootout with each other. Id. at 5. Officer Nieves-Smart

immediately put flash information out over the police radio as to the two

vehicles, and he confirmed that, eight minutes later, he received instructions

to transport Mr. Lammers to 39th Street and Woodland Avenue. Id. at 6, 9.

He testified that a gray Ford Taurus was at the location, and Mr. Lammers

positively identified the vehicle as being involved in the earlier gun battle. Id.

at 7. Officer Nieves-Smart noted that the vehicle had bullet holes down the

passenger’s side. Id. at 8.

      University of Pennsylvania Police Officer Paul Frosch testified that he

was on duty when he received information that a male, who had been riding

in a Ford Taurus with a certain license plate number, had been dropped off at

the hospital with a gunshot wound. Id. at 22. Officer Frosch began looking

for the vehicle, and soon located it at 39th Street and Woodland Avenue. Id.

at 22-23. Officer Frosch activated his cruiser’s lights and stopped the Ford

Taurus. Id. at 24.

      Officer Frosch testified that Edward Dolison was driving the Ford Taurus

and, upon searching the vehicle, officers discovered a firearm in the center

console. Id. at 25. He also noted that a spent fired shell casing was slightly

stuck to the right windshield wiper and the vehicle’s passenger side had two

or three bullet holes. Id. at 26-27. Officer Frosch testified that, at this time,


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officers did not remove the firearm or the shell casing but left the items intact

for later processing. Id. Officer Frosch transported Mr. Dolison to the police

station. Id.

      Philadelphia Police Detective Tim Quinn testified that the shooting

occurred near police headquarters and he heard “loud noises.” Id. at 37. He

heard the radio broadcast of “shots fired,” and he went to the park to talk to

Mr. Lammers. Id. at 37-38. While talking to Mr. Lammers, Detective Quinn

received a radio call that a gunshot victim had been dropped off at the Hospital

of the University of Pennsylvania, which was three miles from the scene of the

shooting, at approximately 4:18 p.m. Id. at 38-39. Accordingly, Detective

Quinn proceeded to the hospital. Id. at 40.

      Upon arrival, Detective Quinn discovered Appellant in the emergency

room with a gunshot wound to his right chest. Id. Detective Quinn testified

that he then received a radio call indicating the Ford Taurus had been located,

so he left the hospital with Appellant’s clothes, which had been bagged by

hospital personnel, and proceeded to examine the Ford Taurus. Id. at 41.

      Detective Quinn testified he took photographs of the Ford Taurus,

including the bullet holes, and removed the spent shell casing from the

passenger’s side windshield wiper. Id. at 41-47. The Ford Taurus was towed

to the police garage, where the gun was ultimately removed from the center

console.   Id.   Detective Quinn testified the gun was a Smith and Wesson

SW9F, which was loaded with four chrome Spear bullets and three gold FC .9


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millimeter bullets.   Id. at 44-45, 48.     The spent shell casing, which was

removed from the right windshield wiper, was a .9 millimeter Spear cartridge

(the same as the four chrome Spear bullets inside the gun). Id. Further,

Detective Quinn placed Appellant’s clothing on a property receipt and

submitted the clothing for gunshot residue testing. Id. at 42.

      Detective Quinn testified that he recovered from the hospital a video

recording, which depicted the gray Ford Taurus pulling up to the hospital’s bay

area. Id. at 56. The video showed a driver getting out of the vehicle, running

into the hospital, and returning with hospital personnel.    Id.   Further, the

video revealed that, as soon as hospital personnel removed the passenger

from the vehicle and placed him on a gurney, the driver sped away in the

vehicle. Id. at 57.

      Hun Lee, a forensics specialist employed by the Philadelphia Police

Department, testified that he has been trained to perform gunshot residue

testing and he examined Appellant’s clothing, which had been seized by

Detective Quinn. Id. at 79. Specifically, he examined a hooded sweatshirt,

a pair of blue jeans, a belt, a short-sleeved shirt, underwear, a tank top, a

pair of socks, and a pair of boots.    Id. at 80.   Upon testing, the hooded

sweatshirt tested positive for gunshot residue, a majority of which was on the

front and back of the right sleeve and cuff of the sweatshirt, with lesser

amounts as one went right to left across the sweatshirt. Id. at 84.




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      Mr. Lee testified that his testing detected 59 separate gunshot residue

particles on the sweatshirt, and he opined that this is a “large number”

consistent with the conclusion that the person who was wearing the sweatshirt

fired a weapon. Id. at 83-84. He added that he could not rule out other

scenarios, including the fact the person wearing the sweatshirt may have been

a victim who was standing within three feet of a discharging firearm. Id. at

85. Mr. Lee offered his opinions to a reasonable degree of scientific certainty.

Id. at 86.

      Philadelphia Police Officer Robert Stott, who testified as an expert in

firearms identification and analysis, indicated that the gun, which was seized

from the Ford Taurus, was operable. Id. at 93-94. He opined that the spent

fired shell casing, which had been seized from the Ford Taurus’ windshield

wiper, had been fired from the gun. Id. at 94-97. He noted that the shell

casing stuck to the windshield wiper because “at the time of fire a cartridge

casing is very hot.” Id. at 98. He noted that, if the driver of the Ford Taurus,

as opposed to a passenger of the Ford Taurus, had fired the gun, it would

have been more likely that the gunshot residue would be on the exterior of

the car, as opposed to the passenger’s sweatshirt. Id. at 98-99.

      In addition to the foregoing evidence, the parties stipulated that no

fingerprints could be lifted from the gun. Id. at 103. DNA samples from the

gun, and testing thereof, excluded Mr. Dolison but the results as to Appellant

were, in part, “negative” and, in part, “inconclusive.” Id. at 103-04. Further,


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the parties stipulated that Appellant did not have a valid license to carry a

firearm and was ineligible to possess a firearm due to a previous conviction.

Id. at 107.

       At the conclusion of the trial, the trial court found Appellant guilty of the

foregoing charges, and on April 28, 2017, Appellant proceeded to a sentencing

hearing at which Appellant received an aggregate of six years to twelve years

in prison, to be followed by ten years of probation. Appellant filed a timely,

counseled post-sentence motion in which he raised, inter alia, a weight of the

evidence claim. The post-sentence motion was denied by operation of law on

August 30, 2017, and this timely appeal followed.2

       On appeal, Appellant presents the following issues (verbatim):

       I.     Was the evidence was [sic] sufficient to sustain the verdicts
              in view of the fact that each incriminating inference also
              included an exculpatory inference which left the fact finder
              with a guess as to which to apply?
       II.    Were the verdicts against the weight of the evidence
              because each incriminating inference also allowed an
              exculpatory inference which only allowed the fact finder to
              guess at which to apply and such procedures shock the
              conscience?

Appellant’s Brief at 9.




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2 Counsel initially failed to file a court-ordered Pa.R.A.P. 1925(b) statement;
however, counsel filed a petition in this Court seeking permission to file a
statement nunc pro tunc. This Court granted relief, and Appellant filed a Rule
1925(b) statement, to which the trial court filed a responsive Rule 1925(a)
opinion on February 13, 2018.

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      In his first issue, Appellant contends the evidence was insufficient to

sustain his three firearms convictions. Specifically, Appellant avers the

Commonwealth failed to prove beyond a reasonable doubt that Appellant

possessed a firearm since the evidence was contradictory as to whether he

actually fired it. In this vein, Appellant contends that, particularly as it relates

to the gunshot residue test results, the trial court made improper inferences

of guilt where the evidence equally provided inferences of innocence.

      Preliminarily, we note:

             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 and
      the weight of the evidence produced, is free to believe all, part or
      none of the evidence.
            Further, in viewing the evidence in the light most favorable
      to the Commonwealth as the verdict winner, the court must give
      the prosecution the benefit of all reasonable inferences to be
      drawn from the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014) (quotation

marks and quotations omitted).

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       Initially, we agree with Appellant that possession is an element of the

firearms offenses,3 and the firearm was not discovered on Appellant’s person

so as to establish actual possession. See Commonwealth v. Macolino, 503

Pa. 201, 469 A.2d 132, 134 (1983) (holding that actual possession is shown

by proving the contraband was found on the defendant’s person). However,

to the extent Appellant suggests the Commonwealth was required to prove



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318 Pa.C.S.A. § 6105 provides, in relevant part, the following:
     § 6105. Persons not to possess, use, manufacture, control,
     sell or transfer firearms
     (a) Offense defined.--
         (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.A. § 6105(a)(1).
     18 Pa.C.S.A. § 6106 provides, in relevant part, the following:
     § 6106. Firearms not to be carried without a license
     (a) Offense defined.-
         (1) [A]ny 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 under this chapter commits a
     felony of the third degree.
18 Pa.C.S.A. § 6106(a)(1).
     18 Pa.C.S.A. § 907 provides, in relevant part, the following:
     § 907. Possessing instruments of crime
     (a) Criminal instruments generally.--A person commits a
     misdemeanor of the first degree if he possesses any instrument
     of crime with intent to employ it criminally.
18 Pa.C.S.A. § 907(a)(1).



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that Appellant actually possessed the firearm (i.e., fired it), we disagree.

Rather, to establish the element of possession, this Court has held that

“[p]ossession can be found by proving actual possession, constructive

possession, or joint constructive possession.” Commonwealth v. Parrish,

191 A.3d 31, 36 (Pa.Super. 2018) (citation omitted).

      We have previously determined:

             Where a defendant is not in actual possession of the
      prohibited items, the Commonwealth must establish that the
      defendant had constructive possession to support the conviction.
      Constructive possession is a legal fiction, a pragmatic construct to
      deal with the realities of criminal law enforcement. We have
      defined constructive possession as conscious dominion, meaning
      that the defendant has 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.
             It is well established that, as with any other element of a
      crime, constructive possession may be proven by circumstantial
      evidence. In other words, the Commonwealth must establish
      facts from which the trier of fact can reasonably infer that the
      defendant exercised dominion and control over the contraband at
      issue.

Parrish, 191 A.3d at 36–37 (internal citations and quotations omitted).

      To find constructive possession, the power and intent to control the

contraband does not need to be exclusive to the appellant.        Our Supreme

Court has recognized that “constructive 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. Johnson, 611 Pa. 381, 26 A.3d 1078, 1094

(2011) (internal citation omitted).



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      Here, viewing the evidence in the light most favorable to the

Commonwealth, as the verdict winner, we agree with the trial court that the

evidence sufficiently establishes Appellant’s joint constructive possession of

the firearm, which was seized from the center console of the Ford Taurus. As

the trial court noted, in developing his claim that the evidence was insufficient,

Appellant focused on the gunshot residue test results and Mr. Lee’s opinions

in connection therewith. See Trial Court Opinion, filed 2/13/18, at 8.

However, the trial court’s verdict was based on the gunshot residue test

results, as well as other evidence, which Appellant completely ignores in his

sufficiency argument. See id.

      For instance, Mr. Lammers testified that he observed as the driver of a

gray Ford Taurus honked the vehicle’s horn in an apparent attempt to get the

attention of the occupant or occupants of a dark blue Chevrolet Suburban. He

then watched as the Suburban stopped at a stop sign and the Taurus pulled

up alongside the driver’s side of the Suburban. Within five to ten seconds,

Mr. Lammers heard a gun fight between occupants of the two vehicles and he

specifically indicated “it sounded like there were two guns being fired because

of the fastness and rapidness of the fire[.]”        N.T., 1/31/17, at 14-15.

According to Officer Nieves-Smart, Mr. Lammers frantically waved down his

patrol car, reporting that, just thirty seconds prior thereto, occupants of a gray

Ford Taurus and dark blue Chevrolet Suburban had engaged in a shootout

with each other. N.T., 2/8/17, at 5.


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      Further, video footage from the Hospital of the University of

Pennsylvania, which was located just three miles from the shootout, revealed

Appellant was removed from a gray Ford Taurus with a certain license plate

number approximately eight minutes after the shootout. The video footage

also showed the driver of the Ford Taurus speeding away as soon as Appellant

was removed from the vehicle. Appellant had sustained a gunshot wound to

his right chest.

      University Police Officer Frosch testified he received information about

Appellant being dropped off at the hospital, as well as a description of the

vehicle, and effectuated a stop of the Ford Taurus soon thereafter. Officer

Nieves-Smart testified that, eight minutes after Mr. Lammers approached him,

he was directed to take Mr. Lammers to 39th Street and Woodland Avenue to

view the Ford Taurus. Mr. Lammers positively identified the Ford Taurus as

the same vehicle he had seen earlier. The police observed bullet holes on the

passenger side of the Ford Taurus, as well as a spent fired shell casing stuck

to the passenger side windshield wiper. The firearm was discovered in the

center console. Also, subsequent fingerprint analysis of the firearm was, in

part, “inconclusive” as to Appellant. There is no dispute that Appellant had a

large amount of gunshot residue particles on his sweatshirt, which he was

wearing when he arrived at the hospital; however, Mr. Lee could not state

with certainty whether Appellant fired the gun, which produced the gunshot

residue.


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       We agree with the trial court that, when viewed in its totality, the

circumstantial evidence reveals that Appellant and the driver of the Ford

Taurus had the power and intent to control the firearm. See Johnson, supra.

Simply put, contrary to Appellant’s assertion, the Commonwealth was not

required to demonstrate that he actually fired the gun in order to establish

Appellant’s possession thereof. Further, contrary to Appellant’s assertion, the

Commonwealth was permitted to establish Appellant’s constructive possession

via circumstantial evidence and the reasonable inferences that arise

therefrom.     Parrish, supra.         Accordingly, we conclude Appellant is not

entitled to relief on his first claim.

       In his final issue, Appellant contends the trial court’s verdict was against

the weight of the evidence such that he is entitled to a new trial.4 Specifically,

Appellant avers that, in finding Appellant possessed the firearm, the trial court

relied upon “guess work.” Appellant’s Brief at 11. His argument is premised

upon the fact Mr. Lee offered several theories as to how the large amount of

gunshot residue landed on Appellant’s sweatshirt.

       When considering challenges to the weight of the evidence, we apply

the following precepts.       “The weight of the evidence is exclusively for the

finder of fact, who is free to believe all, none[,] or some of the evidence and

to determine the credibility of the witnesses.” Commonwealth v. Talbert,


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4Appellant adequately preserved his weight claim in his post-sentence motion.
See Pa.R.Crim.P. 607(a).

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129 A.3d 536, 545 (Pa.Super. 2015) (quotation marks and quotation

omitted). Resolving contradictory testimony and questions of credibility are

matters for the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910,

917 (Pa.Super. 2000). It is well-settled that we cannot substitute our

judgment for that of the trier of fact. Talbert, supra.

      Moreover, appellate review of a weight claim is a review of the trial

court’s exercise of discretion in denying the weight challenge raised in the

post-sentence motion; this Court does not review the underlying question of

whether the verdict is against the weight of the evidence. See id.

      Because the trial judge has had the opportunity to hear and see
      the evidence presented, an appellate court will give the gravest
      consideration to the findings and reasons advanced by the trial
      judge when reviewing a trial court’s determination that the verdict
      is against the weight of the evidence. One 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 and that a new trial should be granted in the interest
      of justice.

Id. at 546 (quotation omitted). Furthermore, “[i]n order for a defendant to

prevail on a challenge to the weight of the evidence, the evidence must be so

tenuous, vague and uncertain that the verdict shocks the conscience of the

court.” Id. (quotation marks and quotation omitted).

      Here, in rejecting Appellant’s weight claim, the trial court indicated that

it found “[t]he Commonwealth presented credible testimony that [A]ppellant

possessed a firearm.” Trial Court Opinion, filed 2/13/18, at 11. Further, the

trial court indicated:


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      As noted [supra], the factors underlying that conclusion were,
      inter alia, the large amount of gunshot residue on the front of his
      sweatshirt, the fact that he was shot in the chest during a gunfight
      while sitting in the passenger seat of the [Taurus], [] the discovery
      of and location where the spent shell casing was found, [and the
      location of the gun in the center console]. These factors caused
      the [lower] court to conclude that the verdict did not shock the
      conscience and it is respectfully submitted that said finding did not
      amount to an abuse of discretion.

Id.

      On appeal, Appellant requests that we re-weigh the evidence and assess

the credibility of the witnesses presented at trial, a task that is beyond our

scope of review. The trial judge, as finder of fact, had the duty to determine

the credibility of the testimony and evidence presented at trial. See

Commonwealth v. Collins, 70 A.3d 1245, 1251 (Pa.Super. 2013) (stating

that “[a]n appellate court cannot substitute its judgment for that of the finder

of fact”). We agree with the trial court’s analysis and conclude Appellant is

not entitled to relief on his weight of the evidence claim. See Talbert, supra.

      For all of the foregoing reasons, we affirm.

      Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/19



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