J-S52036-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JAMES CROAK

                            Appellant                 No. 804 EDA 2014


            Appeal from the Judgment of Sentence January 16, 2014
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0003924-2013


BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                   FILED NOVEMBER 18, 2014

        Appellant, James Croak, appeals from the judgment of sentence

entered in the Bucks County Court of Common Pleas, following his jury trial

convictions for persons not to possess a firearm and possession of a small

amount of marijuana.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

On April 7, 2013, Jared Miller was on the front lawn of his residence when he

observed Appellant walking in the area of Erie Avenue and Penrose Street in

Quakertown.       Appellant was stumbling and appeared to be intoxicated.

When Appellant bent over, Mr. Miller observed a revolver holstered on his

____________________________________________


1
    18 Pa.C.S.A. § 6105(a)(1), 35 P.S. § 780-113(a)(31), respectively.


_____________________________

*Former Justice specially assigned to the Superior Court.
J-S52036-14


right hip and another firearm tucked in the back of his pants.             Mr. Miller

called 911 and reported what he saw.

     Approximately three to four minutes later, Quakertown Borough Police

Officers Mario Cabrera and Bryan Lockwood arrived. After speaking with a

neighbor, the officers proceeded to Appellant’s residence.           Officer Cabrera

approached the residence and rang the doorbell three times. On the third

attempt, Officer Cabrera looked through the door window and observed

Appellant holding a firearm.     When Officer Cabrera identified himself, he

observed    Appellant   toss   the   firearm   behind   the   door    as   Appellant

simultaneously opened the door.        Officer Cabrera asked Appellant to step

outside. Officer Cabrera then recovered a loaded black revolver lying next

to a holster in the area where Officer Cabrera saw Appellant toss the

firearm.   Thereafter, Appellant was arrested.      During a search incident to

arrest, the officers found a smoking pipe on Appellant’s person.           The pipe

contained marijuana residue.

     The Commonwealth charged Appellant with persons not to possess a

firearm and possession of a small amount of marijuana. Following a one-day

trial on October 22, 2013, a jury convicted Appellant of all charges.             On

January 16, 2014, the court sentenced Appellant to an aggregate term of

five (5) to ten (10) years’ imprisonment.

     On January 27, 2014, Appellant filed a post-sentence motion, which

the court denied on February 10, 2014.         Appellant timely filed a notice of


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appeal on February 19, 2014. The court ordered Appellant to file a concise

statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b);

Appellant timely complied.

       Appellant raises a single issue for our review:

          DID THE [TRIAL] COURT ERR IN FINDING THAT THE
          EVIDENCE   WAS   SUFFICIENT  TO   SUPPORT   THE
          CONVICTION FOR PERSONS NOT TO POSSESS FIREARMS?

(Appellant’s Brief at 4).2

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Diane E.

Gibbons, we conclude Appellant’s issue merits no relief.       The trial court

opinion comprehensively discusses and properly disposes of the issue

presented.     See Trial Court Opinion, filed April 14, 2014, at 2-4 (finding:

eyewitness observed Appellant in physical possession of revolver; within
____________________________________________


2
  Additionally, we note Appellant’s assertions that Mr. Miller did not identify
the firearm, and that Mr. Miller’s observations were from a distance and very
brief, go to the weight of the evidence, not its sufficiency. Likewise,
Appellant’s challenge to Officer Cabrera’s credibility implicates the weight of
the evidence. See Commonwealth v. Price, 616 A.2d 681, 683 (Pa.Super.
1992) (explaining sufficiency challenge asks whether evidence exists on
record to support conviction, whereas argument that witness’s account is not
credible goes to weight). Appellant did not raise a weight of the evidence
claim in a post-sentence motion or at sentencing. Therefore, to the extent
Appellant argues on appeal that the verdict was against the weight of the
evidence, this claim is waived. See Pa.R.Crim.P. 607(A)(1)-(3) (stating
challenge to weight of evidence must be raised with trial court in oral or
written motion before sentencing or in post-sentence motion). See also
Commonwealth v. Jones, 874 A.2d 108, 121 (Pa.Super. 2005) (stating
“finder of fact, while passing upon credibility of witnesses and weight of
evidence produced, is free to believe all, part or none of the evidence”).



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J-S52036-14


minutes of that observation, Officer Cabrera also observed Appellant in

physical possession of revolver; when Mr. Miller observed Appellant, firearm

was holstered; Officer Cabrera recovered holster at Appellant’s residence;

evidence was sufficient to support jury’s finding that Appellant was in

possession of firearm). Accordingly, we affirm on the basis of the trial court

opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2014




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     IN THE COURT OF COMMON PLEAS OF I3UCKS COUNTY,PENNSYLVANIA
                         CRIMINAL DIVISION


 COMMONWEALTH OF PENNSYLVANIA : No.                          CP-09-CR-0003924-2013

                           v    .

 JAMES CROAK •



                                             OPINION

         On October 22,2013,following a jury trial, the Defendant, James Croak, was found

guilty ofPersons not to possess, use, manufacture, control, sell or transfer firearms — convicted

of enumerated offensel — i.e. Burglary2 and Possession ofa small amount of marijuana for

personal use.3 The Defendant appeals from the judgment of sentence challenging the sufficiency

ofthe evidence to support his conviction ofthe firearms offense.

         The standard for reviewing a sufficiency claim is whether, viewing all the evidence and

any reasonable inferences from such evidence, in the light most favorable to the Commonwealth,

the finder offact reasonably could have determined all the elements ofthe crime were

established beyond a reasonable doubt. Commonwealth v. Hardy,918 A.2d 766, 774

(Pa.Super.2007). The Commonwealth may sustain its burden of proving every element ofthe

crime by means of wholly circumstantial evidence. Commonwealth v. Montalvo, 598 Pa. 263,

956 A.2d 926,932(2008). It is sufficient ifthe circumstances are consistent with criminal

activity even though they might likewise be consistent with innocent behavior. Commonwealth

v. Herman, 323•A,2d 228,230(Pa.Super.1974). Furthermore, it is not for the court to weigh the

evidence on review. Hardy, 918 A.2d at 774. Any question of doubt is for the finder offact to
              LiI :L:L"'    i    /
1 18 Pa.C.S. § 6105(a)(1).
2 18 Pa.C.S. § 3502.
3 35 P.S. § 780-113(a)(31)(1).




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resolve unless the evidence is so weak and inconclusive that no probability offact could be

drawn from that evidence. Id.

           The evidence viewed in the light most favorable to the Commonwealth established that

on April 7, 2013, Jared Miller was on the front lawn of his residence when he observed a white

male, approximately six feet, two inches, with long brown hair and a beard, wearing a black t-

shirt,jeans, and a long-sleeved denim shirt walking in the area of Erie Avenue and Penrose

Street in Quakertown Borough, Bucks County. Mr. Miller observed that the individual was

stumbling and appeared to be intoxicated. Mr. Miller next observed the Defendant bend over.

When he did so, Mr. Miller saw two handguns. One handgun was in a holster on his right hip.

The Defendant tucked another handgun in the back of his pants.4 Mr. Miller testified that he is

familiar with firearms as a result of his service in the Army National Guard for eight years. He

testified that the holstered gun appeared to be a revolver.5 Mr. Miller immediately called 911

and reported the above information.6 Mr. Miller identified the Defendant as the individual he

observed on that occasion.7 When Mr. Miller last observed the Defendant, he was walking on

Penrose Street.8

           Police arrive on scene with three or four minutes of the 911 call.9 After speaking with

Mr. Miller and another neighbor, police responded to the Defendant's residence located at 41

North Penrose Street.10 Officer Mario Cabrera approached the residence and rang the doorbell

three times. On the third attempt, Officer Mario Cabrera looked through the window in the door




4 N.T. 10/22/2013    pp. 47-53.
5 Id. at p. 68.
6 Id. at pp. 50-52, Commonwealth Exhibit C-2.
7 N.T. 10/22/13 pp. 48-49.
8 Id. at p. 53.
9 Id. at p. 54.
10 Id. at pp. 74-77.

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and observed the Defendant holding a handgun.11 The Defendant matched the description ofthe

individual given by Mr. Miller.12 When Officer Cabrera identified himself, the Defendant

simultaneously opened the door and tossed the gun behind the door. Officer Cabrera asked the

Defendant to step outside. Officer Cabrera then entered the residence and observed a black

Smith and Wesson .22 caliber revolver lying next to a holster in the area where Officer Cabrera

had seen the Defendant toss the gun. The revolver was loaded with six rounds.13 The Defendant

was thereafter placed under arrest. During a search incident to that arrest, officers discovered a 7

millimeter round of ammunition and a .38 caliber round ofammunition in the Defendant's

pocket. Police also found a small smoking pipe on the Defendant's person.14 The parties

stipulated that the Defendant was prohibited from possessing a firearm as of February 9, 1993.15

The parties also stipulated that the pipe seized from the Defendant's person was submitted to the

Bucks County Crime Laboratory for analysis and was determined to contain marijuana residue.16

            The Defendant's claim that the evidence was insufficient to establish that he was in

possession of a firearm is without merit. He was observed to be in physical possession ofa

revolver by eyewitness Jared Miller. Within minutes ofthat observation, Officer Cabrera also

observed the Defendant to be in physical possession of a revolver. When Mr. Miller observed

the Defendant, the Defendant's handgun was holstered. Officer Cabrera found a holster at the

Defendant's residence. The evidence was clearly sufficient to support the jury's finding that the

Defendant was in possession of a firearm.




11   Id. at pp. 79-80.
13 Id. at pp. 78-79.
13 Id. at pp. 81-85, Commonwealth Exhibit C-3.
14 N.T. 10/22/13 pp. 85-87.
15 Id, at pp. 115-116, Commonwealth Exhibit C-7(written stipulation). The Defendant was convicted of Burglary in
1993, an enumerated offense under 18 Pa.C.S. § 6105(b).
16
   N.T. 10/22/13 pp. 114-115, Commonwealth Exhibits C-5 (lab report) and C-6 (written stipulation).

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       For the reasons set forth above,the claim which the Defendant has raised on appeal is

without merit.



                                                   BY THE COURT:



 1-1-h--144
Date                                                 UNE E. GIBBONS,J.




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