J-A04004-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                   v.                       :
                                            :
DEWANE B. JOLLY,                            :           No. 61 WDA 2015
                                            :
                         Appellant          :

        Appeal from the Judgment of Sentence, September 5, 2014,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0016851-2013

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND SHOGAN, J.

DISSENTING MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 23, 2016


     I respectfully Dissent.

     When reviewing a claim challenging the sufficiency of evidence

supporting a conviction, this Court is bound to “determine whether the

evidence admitted at trial, and all reasonable inferences derived therefrom,

when viewed in the light most favorable to the Commonwealth as verdict

winner, supports the jury's finding of all of the elements of the offense

beyond a reasonable doubt.”      Commonwealth v. Bomar, 826 A.2d 831,

840 (Pa. 2003) (emphasis added).         As emphasized above, this standard

does not permit, much less encourage, the reaching of any inference that

might favor the verdict winner; instead, any inference permitted under

sufficiency review must be reasonable.

     Furthermore, the evaluation of the Commonwealth’s burden of proof

does not begin from some neutral position stationed directly in between the

interests of the parties.      Instead, the evidence, and the reasonable

inferences   derived    therefrom,   must       “overcome[]   the   presumption   of
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innocence.”    Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa. Super.

2013).   And while “the facts and circumstances need not be absolutely

incompatible with defendant's innocence” to survive sufficiency review,

evidence is insufficient as “as a matter of law” when it is so “weak and

inconclusive” that “no probability of fact can be drawn from the combined

circumstances.”    Commonwealth v. Sullivan, 371 A.2d 468, 478 (Pa.

1977) (emphasis added) (citing Commonwealth v. Libonati, 31 A.2d 95,

97 (Pa. 1943)).

      Instantly,   I   respectfully   disagree   with   the   Majority   that   the

Commonwealth has overcome the presumption of innocence with reasonable

inferences in this case.    Most troubling for me is the analysis of the DNA

evidence discovered on the firearm, which excluded Appellant as a

contributor.   This is fundamentally different from DNA analysis that is

inconclusive as to potential contributors, or situations where testable DNA

evidence is simply lacking.      In my mind, this is affirmative evidence of

Appellant’s innocence of the possessory firearm offenses at issue, and there

is no indication in the record that this fact was rejected by the trial court,

which sat as the fact-finder below.          Instead, the trial court inferred,

unreasonably in my opinion, that Appellant’s guilt was proven “despite the

DNA tests….” Trial Court Opinion, 6/2/15, at 8. This indicates that a non-

trivial, uncontradicted fact was simply ignored by the court. The trial court

made no efforts to downplay the import of this fact in its analysis, but

instead examined the remaining evidence as if that fact did not even exist.

Id. at 8-9.




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      I ascertain nothing in our standard of review that requires us to

sustain the trial court’s logic when it accepts a fact as true, but then simply

ignores it, as well as virtually all rational inferences that flow from that fact.

While doing so may cast this evidence in a light most favorable to the

Commonwealth, it does so at the expense of the reasonableness principle

that underpins our standard of review.

      Although not as dispositive to my analysis, I also question the

reasonableness of the trial court’s inferring that Richardson’s right-

handedness rendered it “difficult for him to place the gun in that position

prior to him running from the vehicle.” Id. at 9. I find it unfathomable that

a right-handed person, not otherwise disabled, would find it difficult, or even

awkward, to drop a firearm from his left hand.

      Given the combined circumstances presented in this case, including

the evidence unreasonably excluded from consideration by the trial court, I

believe the evidence was too weak and inconclusive to sustain Appellant’s

convictions for person not to possess a firearm, possession of a firearm with

altered identification, and possession of an firearm without a license. As the

Majority has adopted the trial court’s rationale for sustaining these

convictions on sufficiency grounds, I respectfully dissent from that decision.




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