J-S51043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DERRICK LAMAR KING,                        :
                                               :
                       Appellant               :       No. 358 MDA 2019

       Appeal from the Judgment of Sentence Entered December 6, 2018
                 in the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0004202-2017

BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                    FILED: NOVEMBER 21, 2019

        Derrick Lamar King (“King”) appeals from the judgment of sentence

imposed following his conviction for persons not to possess firearms.1 We

affirm.

        At about 4:30 a.m., on August 27, 2017, Matthew Cavallo, a

Wyomissing Police Officer (“Officer Cavallo”), was on patrol targeting

particular areas of the borough. He was parked in his unmarked police vehicle

surveilling the parking lot of a Quality Inn, where he observed a black Toyota

van with dark window tinting in the parking lot. Officer Cavallo observed a

person—later identified as King—enter the rear passenger side of the van, and

followed the van for several blocks as it drove away.2


____________________________________________


1   See 18 Pa.C.S.A. § 6105(a)(1).

2   The vehicle was later determined to be operating as a taxi-like service.
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      Subsequently, Officer Cavallo performed a traffic stop based upon a

suspected violation of the Vehicle Code. As he approached the vehicle, he

noticed the vehicle rocking back and forth as though a passenger in the vehicle

was moving around inside. Upon reaching the vehicle, Officer Cavallo used

his flashlight to look through the rear window where he observed, in plain

view, King in the back seat of the van with a small amount of marijuana in his

lap and kicking a wrapped object under the front passenger seat.

      Officer Cavallo ordered King out of the vehicle, King complied, and

Officer Cavallo detained King.   Upon searching the vehicle, Officer Cavallo

retrieved a revolver, which was wrapped in a white cloth and two plastic

grocery bags, under the front passenger seat of the van. King was determined

to have had a prior felony conviction and an active outstanding warrant, and

was placed under arrest.    Following King’s arrest, Officer Cavallo sent the

firearm and its ammunition for fingerprint and DNA testing. Relevantly, at

some point prior to the firearm being tested, Officer Cavallo disposed of the

white cloth and grocery bags in which the gun was wrapped.

      King filed an Omnibus Pretrial Motion on November 14, 2017, including,

inter alia, a Motion to suppress the evidence recovered from the vehicle based

on Officer Cavallo’s lack of reasonable suspicion to perform the traffic stop.

The suppression court held a hearing on December 7, 2017, where it heard

testimony from Officer Cavallo. On April 4, 2018, the suppression court issued

an Order and accompanying Statement denying King’s suppression Motion.




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       Following a jury trial, King was found guilty of persons not to possess

firearms.    On December 6, 2018, King was sentenced to 5 to 10 years in

prison. King filed a post-sentence Motion on December 12, 2018, which the

trial court denied on January 31, 2019. King timely filed a Notice of Appeal

and a court-ordered Concise Statement pursuant to Pa.R.A.P. 1925(b).3

       On appeal, King raises the following questions for our review:

       A. Whether the [suppression court] erred in not granting the pre-
          trial Motion that the stop [of] the vehicle was without probable
          cause[,] and the fruits of said stop should have been
          suppressed?

       B. Whether the Commonwealth committed a [Brady v.
          Maryland, 373 U.S. 83 (1963),4] violation and/or a violation
          of [King’s] due process rights for their intentionally discarding
          by officers of the items holding the firearm[,] and[,] thus[,]
          effectively preventing [King] from being able to test those
          items for fingerprints or DNA[, which may have been]
          potentially exculpatory evidence?

       C. Whether the evidence presented at trial was insufficient[,] as
          a matter of law[,] wherein the Commonwealth’s evidence
____________________________________________


3 We note that it appears that the trial court filed its Rule 1925(a) Opinion
under the mistaken belief that King had not filed a Concise Statement. As a
result, the trial court did not direct us to the places in the record where it
states the reasons for its decisions. Though ordinarily the remedy for non-
compliance with Rule 1925(a) is a remand to the trial court for preparation of
an opinion, our review of the record and the trial transcript adequately
apprises us of the trial court’s reasoning, and we will review the merits of
King’s claims. See Commonwealth v. Hood, 872 A.2d 175, 178 (Pa. Super.
2005) (explaining that “the lack of a Rule 1925(a) opinion is not always fatal
to our review, because we can look to the record to ascertain the reasons for
the order.”).

4In Brady, the Supreme Court of the United States held that suppression of
evidence favorable to the accused violates due process when the evidence is
material either to guilt or punishment. Brady, 373 U.S. at 87.

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         presented at trial failed to establish that [King] had possession
         of the alleged firearm?


      D. Whether the verdict was against the weight of the evidence[,]
         wherein the verdict is so contrary to evidence and shocks one’s
         sense of justice[,] where the Commonwealth’s evidence
         presented at trial failed to establish that [King] possessed a
         firearm?

      E. Whether      the   [trial]  court’s    sentence was     illegal,
         unconstitutional[,] and cruel and unusual[,] wherein the court
         failed to consider mitigating factors?

Brief for Appellant at 5-6 (capitalization omitted; footnote added).

      In his first issue, King argues that Officer Cavallo’s traffic stop for a

window-tint violation was merely a pretense for a search of the vehicle’s

occupants, pointing to the fact that Officer Cavallo failed to issue a citation for

or further investigate the vehicle’s tinting. Id. at 12-14.

      Our standard of review in addressing a challenge to the denial of a

suppression motion is as follows:

      [An appellate court’s] standard of review in addressing a challenge
      to the denial of a suppression motion is limited to determining
      whether the suppression court's factual findings are supported by
      the record and whether the legal conclusions drawn from those
      facts are correct. Because the Commonwealth prevailed before
      the suppression court, we may consider only the evidence of the
      Commonwealth and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record as
      a whole. Where the suppression court’s factual findings are
      supported by the record, [the appellate court is] bound by [those]
      findings and may reverse only if the court’s legal conclusions are
      erroneous. Where ... the appeal of the determination of the
      suppression court turns on allegations of legal error, the
      suppression court’s legal conclusions are not binding on an
      appellate court, whose duty it is to determine if the suppression
      court properly applied the law to the facts. Thus, the conclusions
      of law of the courts below are subject to [] plenary review.

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Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010).

      The Vehicle Code prohibits window tinting “which does not permit a

person to see or view the inside of the vehicle through the windshield, side

wing or side window of the vehicle.” 75 Pa.C.S.A. § 4524(e)(1). “When a

police officer has reasonable suspicion that a violation of the [Vehicle Code] is

occurring, he may stop a vehicle, upon request or signal….”          75 Pa.C.S.A.

§ 6308(b).

      At the suppression hearing, Officer Cavallo testified that on the night of

King’s arrest, he was in an unmarked police vehicle across from the parking

lot of the Quality Inn. N.T. (Suppression), 12/7/17, at 5. He observed a black

Toyota van pull up to, and idle at, the front entrance of the hotel. Id. Upon

observing the vehicle from his vantage point, he could not see the driver

through the vehicle’s tinted windows. Id. at 5-6. Officer Cavallo testified that

in his experience, his threshold for conducting a traffic stop for illegally tinted

windows is when he cannot see through the window into the vehicle. Id. at

7. When the vehicle left the parking lot—thereby entering a public roadway—

Officer Cavallo testified that he followed the vehicle, again observing that the

window tinting was beyond his threshold to suspect it exceeded the legal

limits, and performed a traffic stop. Id. at 8-10.

      In its Order and accompanying Statement, the trial court determined

that Officer Cavallo had reasonable suspicion that the vehicle exceeded legal

tinting levels when he performed the traffic stop, based on his inability to see

or view the inside of the vehicle through its windows while it was operating on

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a public roadway. Trial Court Statement of Findings of Fact and Conclusions

of Law, 4/4/18, at 2. Upon review, we conclude that there is sufficient support

in the record for the trial court’s findings of fact based on Officer Cavallo’s

testimony, and discern no clear error in the trial court’s conclusions of law.

Thus, King is not entitled to relief on this claim.

      King next mounts a Brady challenge, arguing that Officer Cavallo’s

disposal of the cloth and bags that contained the firearm constituted a

destruction of potentially exculpatory evidence. Brief for Appellant at 14-15.

Specifically, King argues that Officer Cavallo’s decision to dispose of the

materials, rather than submit them for DNA and/or fingerprint testing,

deprived King of the opportunity to locate potentially exculpatory evidence.

Id.

      At trial, King’s counsel cross-examined Officer Cavallo about the disposal

of the cloth and bags, but did not object to the potential Brady violation at

any point during the trial. See N.T., 10/30/18, at 123-24. King also did not

raise the potential Brady issue in his post-sentence Motion, nor was the issue

raised either at the December 6, 2018 sentencing hearing or the January 30,

2019 hearing to address the post-sentence Motion. Pa.R.A.P. 302(a) (stating

that issues not previously raised in a lower court are waived). Though King

does raise the Brady issue in his Concise Statement, we have stated that “[a]

party cannot rectify the failure to preserve an issue by proffering it in response

to a Rule 1925(b) order.” Commonwealth v. Kohan, 825 A.2d 702, 706




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(Pa. Super. 2003). Accordingly, this claim is waived.5

       In his third claim, King argues that the evidence presented at trial was

insufficient to convict him of persons not to possess firearms.          Brief for

Appellant at 16. King argues that evidence of constructive possession was

insufficient because King was not the owner of the vehicle, the driver’s

testimony was not credible, and the statements he made to the arresting

officers were not inculpatory. Id. at 16-17.

       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 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.
____________________________________________


5 We note that even if King’s Brady issue had been properly preserved, the
record does not indicate that he would be entitled to relief on appeal, as King
concedes that the discarded evidence is merely potentially exculpatory, and
the record contains no indication that Officer Cavallo acted in bad faith in
disposing of the cloth and bags. See Commonwealth v. Chamberlain, 30
A.3d 381, 402 (Pa. 2011) (holding that when the Commonwealth disposes of
“‘potentially useful’ evidence, as opposed to materially exculpatory evidence,
no violation of due process occurs unless the defendant proves that the
Commonwealth acted in bad faith.”).

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Commonwealth v. Stiles, 143 A.3d 968, 981 (Pa. Super. 2016) (citation

omitted).

      A person commits the offense of persons not to possess if he (1) either

has been convicted of a crime as defined in 18 Pa.C.S.A. § 6105(b), or is a

person who meets the additional prohibitions as defined in 18 Pa.C.S.A.

§ 6105(c); and (2) possesses, uses, controls, sells, transfers, or manufactures

a firearm in the Commonwealth. 18 Pa.C.S.A. § 6105(a).

      When contraband is not found on the defendant’s person, the
      Commonwealth must establish “constructive possession,” that is,
      the power to control the contraband and the intent to exercise
      that control. Commonwealth v. Valette, 613 A.2d 548 (Pa.
      1992). The fact that another person may also have control and
      access does not eliminate the defendant’s constructive
      possession.... As with any other element of a crime, constructive
      possession may be proven by circumstantial evidence.
      Commonwealth v. Macolino, 469 A.2d 132 (Pa. 1983). The
      requisite knowledge and intent may be inferred from the totality
      of the circumstances. Commonwealth v. Thompson, 428 A.2d
      223 (Pa. Super. 1981).

Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996).

      The parties stipulated at trial to King’s prior felony conviction, see N.T.,

10/29/18, at 124-26, and it is uncontroverted that the firearm was not

physically found on King’s person.      As a result, the Commonwealth was

required to prove constructive possession at trial.

      Officer Cavallo testified that as he approached the vehicle, he observed

King kicking an object that he suspected to be a firearm wrapped in a bag,

under the seat of the van. Id. at 102. Officer Cavallo removed King from the

vehicle, detained him, and upon searching the vehicle, he located the firearm


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under the seat in the same area where he saw King kicking. Id. at 106. After

locating the firearm, Officer Cavallo testified that he had a conversation with

King wherein King indicated that he “kn[ew] a place where he can get [Officer

Cavallo] more guns,” and provided Officer Cavallo with an address to that

location. Id. at 109. Additionally, the driver of the vehicle testified that he

had cleaned the vehicle prior to the start of his shift, and there was not a

firearm in the vehicle when he started his shift. Id. at 88-89.

      Viewed in the light most favorable to the Commonwealth, as the verdict-

winner, we conclude that the evidence presented at trial was sufficient to

establish King’s constructive possession of the firearm.    The circumstantial

evidence and King’s statement strongly implicated him as the possessor of the

firearm. The Commonwealth presented sufficient evidence to establish that

King had both the power to control the firearm and the intent to exercise that

control. See Haskins, supra. As a result, King is entitled no relief on this

claim. See, e.g., Commonwealth v. Stembridge, 579 A.2d 901, 905 (Pa.

Super. 1990) (holding that the defendant, who had been sitting in the

passenger seat of a vehicle prior to the traffic stop, was in constructive

possession of methamphetamine that the police found on the pavement under

the passenger side of the vehicle, and stating that “[defendant’s] access to

and control over the area in which the contraband was found was greater than

that of the driver and the other passenger[.]”).

      In his fourth claim, King argues that his guilty verdict was against the

weight of the evidence.   King’s primary contention is that the evidence of his

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constructive possession of the firearm could not be proven beyond a

reasonable doubt. Brief for Appellant at 18. King argues that the totality of

the circumstances and evidence created a verdict that shocks the conscience.

Id.

      Our standard of review for weight of the evidence claims is well settled.

              The essence of appellate review for a weight claim appears
      to lie in ensuring that the trial court's decision has record support.
      Where the record adequately supports the trial court, the trial
      court has acted within the limits of its discretion. …

             A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. Rather, the
      role of the trial judge is to determine that notwithstanding all the
      facts, certain facts are so clearly of greater weight that to ignore
      them or to give them equal weight with all the facts is to deny
      justice. …

            An appellate court’s standard of review when presented with
      a weight of the evidence claim is distinct from the standard of
      review applied by the trial court. Appellate 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.

Commonwealth v. Mucci, 143 A.3d 399, 410-11 (Pa. Super. 2016)

(quotation marks and citations omitted). In order to prevail on a weight of

the evidence challenge, “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)

(quotation marks and quotations omitted).



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       King’s weight of the evidence claim is substantially identical to his

sufficiency argument, but sufficiency and weight are distinct claims.         See

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (stating that

“[t]he distinction between [weight and sufficiency claims] is critical.”). To the

extent that King challenges credibility determinations, the jury was free to

weigh the testimony presented at trial by Officer Cavallo, the taxi driver, and

King. See Stiles, 143 A.3d at 981. From the verdict, it is apparent that the

jury found Officer Cavallo’s testimony to be credible, and we may not

reconsider the credibility of that testimony on appeal. See Mucci, supra. In

particular, the testimony of King and Officer Cavallo contains significantly

differing accounts of the traffic stop, and the jury’s weighing of the testimony

in favor of Officer Cavallo was not so contrary to the evidence that it shocks

one’s sense of justice.     See Sullivan, supra.

       Finally, King argues that the 5-to-10 year sentence imposed by the trial

court was unconstitutionally cruel and unusual.6      Brief for Appellant at 19.

King argues that the trial court failed to “fully take into consideration[ King’s]

arguments for mitigation, or his circumstances.” Id.

       It is well settled that, with regard to the discretionary aspects of
       sentencing, there is no automatic right to appeal. Before [this
       Court may] reach the merits of [a challenge to the discretionary
       aspects of a sentence], we must engage in a four part analysis to
       determine: (1) whether the appeal is timely [filed]; (2) whether
       Appellant preserved his issue; (3) whether Appellant’s brief
       includes a concise statement of the reasons relied upon for
____________________________________________


6 Although King also describes his sentence as illegal, the substance of his
claim only challenges the discretionary aspects of his sentence.

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      allowance of appeal with respect to the discretionary aspects of
      sentence; and (4) whether the concise statement raises a
      substantial question that the sentence is appropriate under the
      sentencing code.... [I]f the appeal satisfies each of these four
      requirements, we will then proceed to decide the substantive
      merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

      Here, King filed a timely Notice of Appeal, and preserved his claim of an

excessive sentence in his post-sentence Motion.        He also included in his

appellate brief a separate Rule 2119(f) Statement. Therefore, we proceed to

determine whether King has presented a substantial question that his

sentence is not appropriate under the Sentencing Code.

      In his Rule 2119(f) Statement, King claims that the trial court “failed to

consider mitigating factors and circumstances” in imposing an excessive

sentence. Brief for Appellant at 10-11. However, King does not identify any

relevant mitigating factors which he believes the trial court failed to consider.

At no point in his brief does King develop his claim in any colorable fashion,

with citation to and discussion of relevant authorities. See Pa.R.A.P. 2119(a)

(stating that all arguments must be “followed by such discussion and citation

of authorities as are deemed pertinent”); see also Commonwealth v.

Rodgers, 605 A.2d 1228, 1239 (Pa. Super. 1992) (stating that an issue is




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waived if an appellant’s brief does not include pertinent discussion of the point

argued, with citation to authorities). Accordingly, King’s final issue is waived.7

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2019




____________________________________________


7  Even if King had preserved this claim, we would find no merit to his
underlying allegation that the trial court failed to consider mitigating factors
to his sentence. The trial court repeatedly stated that it reviewed the pre-
sentence investigation report prepared for King prior to imposing its sentence,
King’s counsel provided argument regarding mitigating factors. See N.T.
(Sentencing), 12/6/18, at 4-8; see also Commonwealth v. Ventura, 975
A.2d 1128, 1135 (Pa. Super. 2009) (explaining that “where the trial court is
informed by a pre-sentence report, it is presumed that the court is aware of
all appropriate sentencing factors and considerations….” Commonwealth v.
Devers, 546 A.2d 12, 18-19 (Pa. 1988)).

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