J-A12038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMES BERGEN,

                            Appellant                No. 3148 EDA 2014


            Appeal from the Judgment of Sentence October 1, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006117-2012


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

MEMORANDUM BY STEVENS, P.J.E.:                         FILED JUNE 02, 2016

       Appellant James Bergen appeals the judgment of sentence entered on

October 1, 2014, by the Honorable Earl W. Trent in the Court of Common

Pleas of Philadelphia County following his convictions of resisting arrest and

three violations of the Uniform Firearms Act, 18 Pa.C.S.A. §§ 6106-6126.1

Upon our review of the record, we affirm.

       On the evening of May 3, 2012, Officers Michael Chichearo and

Matthew Winscom were on patrol in full uniform and in a marked police

vehicle in Philadelphia. After observing a car fail to come to a complete stop

____________________________________________


1
  The jury convicted Appellant of 18 Pa.C.S.A. §§ 5104, 6108, and
6106(a)(1). In addition, following the parties’ stipulation to Appellant’s prior
record, the trial court convicted him of 18 Pa.C.S.A. § 6105(a)(1). Appellant
does not challenge his resisting arrest conviction herein.



*Former Justice specially assigned to the Superior Court.
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at a stop sign and almost collide with their police car, the officers activated

their siren and pulled the vehicle over.         N.T., 6/10/14, at 63-65. Officer

Chichearo approached on the passenger side of the vehicle, and Officer

Winscom approached on the driver’s side.          Officer Chichearo observed the

male front seat passenger who was later identified as Appellant bent over

and reaching for the floorboard area. Id. at 19, 67-68. Officer Chichearo

opened the passenger-side door at which time Appellant sat up and began to

exit the vehicle while the driver, later identified as James Black (hereinafter

“Mr. Black), stated “he’s got a gun.” Id. at 21, 69. Appellant pushed Officer

Chichearo and attempted to flee, but Officer Chichearo was able to grasp

Appellant in the arm area.           A lengthy struggle ensued in which Officer

Winscom soon joined. Id. at 21, 70-71. During the tussle, Officer Winscom

hit Appellant several times with an asp2 in an effort to subdue him. Id. at

96-97.

       Appellant refused the officers’ repeated verbal requests to show his

hands and instead kept them concealed in his waistband area. Id. at 71-72.

Officer Chichearo called for backup and the officers’ struggle with Appellant

escalated. Eventually, backup arrived and five or six officers attempted to

place Appellant in handcuffs. Id. at 75.

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2
  An asp is an expandable baton. Officer Winscom’s had a small metal
handle which could be extended to form a longer instrument. Id. at 96,
136-137.



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      After he had wrestled with Appellant for a few moments, Officer

Chichearo observed Mr. Black exit the vehicle at which time Officer

Chichearo directed Mr. Black to get on the ground, and Mr. Black initially

complied.    Id. at 30, 74, 99.   Before Officer Chichearo reached him, Mr.

Black stood up and fled on foot, and Officer Chichearo chased him. A few

moments later, Officer Chichearo overtook Appellant, placed him in

handcuffs and led him directly back to the vehicle. Id. at 99-101. Mr. Black

ultimately was cited for driving with a suspended license. Id. at 103.

      When Appellant finally was handcuffed and Mr. Black had been

detained, Officer Chichearo went back to the vehicle and noticed the

passenger-side door was still ajar.    When he looked inside, he saw the

handle of a black firearm protruding from underneath the passenger seat.

Id. at 32-33, 76. Officer Chichaero immediately removed the firearm from

the vehicle and took out the magazine so it was no longer a loaded weapon.

Id. at 77.

      Officer Winscom testified that as he approached the driver’s side of

the vehicle, he observed Appellant hunched over and was unable to see his

hands because he was reaching in the area under the seat. Id. at 127-228.

He warned Officer Chichearo to proceed with caution because he believed

Appellant was stuffing something under the seat. Id. at 129. When Officer

Winscom approached the car and asked if there was anything therein, Mr.

Black instantaneously replied that Appellant had a gun. Id. at 132. Officer


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Winscom further detailed the difficulty he experienced while attempting to

detain Appellant after Officer Chichearo left to pursue Mr. Black and before

backup officers arrived. He indicated he used the handle of his asp like a

weapon, for Appellant had overpowered him and Officer Winscom was not

sure whether Appellant had a loaded firearm on his person.   Id. at 133-44.

      Appellant filed an omnibus pre-trial motion on July 25, 2012, and a

motion in limine on February 20, 2014, to introduce Mr. Black’s prior arrest

and conviction in 1998 of Carrying a firearm without a license, 18 Pa.C.S.A.

§ 6106.   On June 10, 2014, the trial court held a hearing on and denied

Appellant’s motion to suppress evidence, and a jury trial immediately

ensued. The trial court ultimately sentenced Appellant to an aggregate term

of six years to fifteen years in prison.        Appellant filed a Motion for

Reconsideration of Sentence and a Motion for Reconsideration of New Trial

on October 9, 2014. In its Order of October 15, 2014, the trial court denied

Appellant’s motion to modify sentence, and in its Order of October 27, 2014,

the trial court denied Appellant’s motion for a new trial.

      Appellant filed a timely notice of appeal on November 4, 2014. Due to

the trial court’s prior retirement, Appellant had not been ordered to file a

concise statement of the reasons relied upon on appeal nor was an opinion

filed pursuant to Pa.R.A.P. 1925. In his appellate brief, Appellant presents

the following Statement of Questions Involved:

      1.   Where [A]ppellant was charged with possessing a gun
      found in a car in which he was a passenger, and his defense was

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      that the driver exclusively possessed the gun, was it not error to
      bar [A]ppellant from presenting relevant and admissible
      evidence in support of his defense, namely, the driver’s prior
      conviction for gun possession?

      2.   Did not the trial court deprive [A]ppellant of a fair and
      impartial trial by making prejudicial comments that negated
      [A]ppellant’s theory of defense and irreparably damaged defense
      counsel’s trustworthiness in the eyes of the jury?

Brief for Appellant at 3.

      Appellant initially contends his judgment of sentence must be vacated

and the matter remanded for a new trial in light of the trial court’s error in

denying his motion in limine which prohibited him from introducing evidence

at trial of Mr. Black’s previous possession of a firearm conviction. Appellant

maintains such evidence would have bolstered his defense and permitted a

reasonable inference that it was Mr. Black, not Appellant, who exclusively

possessed the firearm and had ample opportunity to secret it under the

passenger seat while Appellant struggled with police officers outside the car.

Brief for Appellant at 8, 14. Appellant stresses defense counsel presented

this theory in opening and closing statements and explored it through cross-

examination of the Commonwealth’s witnesses. Therefore, Appellant posits

he   was   denied   his     right   under   the   Pennsylvania   constitution,   the

Pennsylvania Rules of Evidence and caselaw to present relevant evidence for

the jury’s consideration that tended to prove another individual committed

the crimes with which he had been charged. Brief for Appellant at 8, 13-14.




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Finally, Appellant asserts Commonwealth v. Thompson, 779 A.2d 1195

(Pa.Super. 2001) directly controls the instant matter because the facts of

that case are “strikingly similar” to those presented herein.          Brief for

Appellant at 10, 12.

      Our standard of review of a trial court’s evidentiary ruling is as follows:

            The admissibility of evidence is within the sound discretion
      of the trial court, wherein lies the duty to balance the evidentiary
      value of each piece of evidence against the dangers of unfair
      prejudice, inflaming the passions of the jury, or confusing the
      jury. We will not reverse a trial court's decision concerning
      admissibility of evidence absent an abuse of the trial court's
      discretion.

Commonwealth v. Estepp, 17 A.3d 939, 945 (Pa.Super. 2011) (citation

omitted).

      Pennsylvania Rule of Evidence 402 provides that, generally, “[a]ll

relevant evidence is admissible” and “[e]vidence that is not relevant is not

admissible.” Pa.R.E. 402. Relevant evidence is that which has “any tendency

to make a fact more or less probable than it would be without the

evidence[,] and the fact is of consequence in determining the action.”

Pa.R.E. 401(a), (b). However, pursuant to Rule 403, “[t]he court may

exclude relevant evidence if its probative value is outweighed by a danger of

... confusing the issues [or] misleading the jury[.]” Pa.R.E. 403.

      The defense may introduce evidence that “someone else committed a

crime that bears a highly detailed similarity to the crime with which a

defendant is charged.” Commonwealth v. Patterson, 625 Pa. 104, 131,


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91 A.3d 55, 72 (Pa. 2014) (citation omitted).    Such evidence is admissible

when the lapse of time between the commission of the two crimes and the

resemblance of the methodology of the two crimes establish its relevance

and probative value. Commonwealth v. Palagonia, 868 A.2d 1212, 1216

(Pa.Super. 2005). “Thus, even if the time lapse between commission of the

crimes is brief. . . the evidence is not admissible unless the nature of the

crimes is so distinctive or unusual as to be like a signature or the handiwork

of the same individual.” Id. (citations and quotation marks omitted).

      Herein, as in Thompson, supra, Appellant seeks to introduce the

prior criminal record of the driver and owner of a vehicle, Mr. Black, who had

not been charged with any crimes related to the contraband found in his

vehicle and was not called as a witness at Appellant’s trial.    However, in

Thompson, when finding that the driver’s prior history of cocaine trafficking

was relevant to demonstrate that he, and not Thompson, constructively

possessed the cocaine, a panel of this Court noted that the driver had been

arrested four times for cocaine trafficking in a period of two years and four

months and stressed that “[i]t is the pattern of cocaine trafficking which is

relevant in this case, not just any single isolated incident.” Thompson, 779

A.2d at 1207 n. 4.

      To the contrary, as the trial court noted on the record, the facts of

Thompson are distinguishable from those in the matter sub judice:

            With respect to my denial of [Appellant’s] motion in limine,
      after a careful review of Commonwealth versus Thompson, the

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      Court found that although the principle espoused by the Court
      would likely extend to other contraband, including weapons, the
      Thompson Court was silent as to whether its holding intended to
      establish a bright-line rule, or, rather, reflected the consideration
      of seemingly relevant factors in evaluating the admissibility of
      the prior criminal history of a third party.
            Such factors likely included the temporal proximity of the
      prior convictions the defendant intends to introduce, as well as
      the extent and relatedness of the third party’s pertinent criminal
      history.
            Accordingly, the Court finds Thompson distinguishable to
      the facts of this case. In Thompson, the nexus between the
      prior criminal history and the narcotics recovered was
      presumably significant, in part, due to the packaging of narcotics
      and the recency [sic] of his prior trafficking.
            Such factors are simply absent in this case. Here a single
      conviction for possession of a firearm from approximately 15
      years prior to this incident does not support a reasonable
      inference that someone other than the defendant was the sole
      possessor of the firearm recovered from under the passenger
      seat.

N.T., 6/10/14, at 121-122.

      Upon our review of the record and relevant caselaw, we find the trial

court did not abuse its discretion in finding that the admissibility of Mr.

Black’s more than decade-old, single conviction for possession of a firearm,

the circumstances surrounding which are unclear from the record, would

have little probative value.

      Moreover, even were we to determine the trial court erred in denying

Appellant’s motion in limine, contrary to Appellant’s rationale, the admission

of Mr. Black’s criminal history does not automatically lead to the conclusion

that Appellant lacked possession of the gun, for our Supreme Court has

recognized that one or more individuals may be               deemed to have


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constructive possession of contraband where the item is in an area of joint

control and equal access. Commonwealth v. Johnson, 611 Pa. 381, 407,

26 A.3d 1078, 1094 (2011). See also Commonwealth v. Haskins, 677

A.2d 328, 330 (Pa.Super. 1996) (citation omitted) (stating “[t]he fact that

another person may also may have control and access does not eliminate

the defendant's constructive possession; two actors may have joint control

and   equal   access   and   thus   both   may   constructively   possess   the

contraband”). When determining whether one may be deemed to have

constructive possession of contraband, this Court has stated the following:

      As appellant was not in physical possession of the contraband,
      the Commonwealth was required to establish that he had
      constructive possession of the seized items to support his
      convictions. Constructive possession is a legal fiction, a
      pragmatic construct to deal with the realities of criminal law
      enforcement. Constructive possession is an inference arising
      from a set of facts that possession of the contraband was more
      likely than not. We have defined constructive possession as
      conscious dominion. We subsequently defined conscious
      dominion as 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. Commonwealth v. Brown, 48 A.3d 426, 430
      (Pa.Super. 2012), appeal denied, 619 Pa. 697, 63 A.3d 1243
      (2013) (internal quotation marks and citation omitted).
      Additionally, it is possible for two people to have joint
      constructive    possession   of   an    item    of  contraband.
      Commonwealth v. Bricker, 882 A.2d 1008, 1016–1017
      (Pa.Super. 2005).

Commonwealth v. Kinard, 95 A.3d 279, 292 (Pa.Super. 2014) (en banc).

      In arguing the admission of Mr. Black’s prior firearms conviction would

have exonerated him, Appellant ignores the evidence viewed in a light most


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favorable to the Commonwealth as verdict winner and the reasonable

inferences the jury may have drawn therefrom which support a conclusion

that Appellant had constructive possession of the firearm, or, at a minimum,

shared joint constructive possession of it with Mr. Black. Officer Chichearo

testified he observed Appellant hunched over, reaching and apparently

shoving something in the area where he later would discover the firearm.

Similarly, Officer Winscom stated that as he approached the driver’s side of

the car, he saw Appellant seated in the front passenger seat bending

forward, although he could not see his hands because Appellant was

reaching under the seat. From this testimony, the jury reasonably may have

inferred Appellant, as the sole passenger of the vehicle and the only

occupant to exit from that side, had access to and control over the area

beneath the front-passenger seat where the firearm was found.

     In addition, the jury had heard testimony from Officers Chichearo and

Winscom who observed Mr. Black exiting the vehicle from the driver’s side a

few moments after Appellant as well as defense counsel’s arguments that it

was Mr. Black who secreted the firearm under the front-passenger seat

when he was alone in the vehicle.   While such testimony and argument may

have formed the foundation of reasonable doubt for the jury, it did not as a

matter of law create a reasonable doubt requiring this Court to overturn its

verdict. It was within the province of the jury as fact-finder to make

credibility determinations and find Appellant had secreted the gun under the


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passenger seat where he had been sitting before he struggled with officers.

See Commonwealth v. Stembridge, 579 A.2d 901, 905 (Pa.Super. 1990).

Accordingly, we conclude the trial court did not abuse its discretion in

excluding evidence of Mr. Black’s prior conviction.

      Appellant next asserts he is entitled to a new trial because the trial

court deprived him of his constitutional right to a fair and impartial one when

it made prejudicial comments that negated his defense and irreparably

damaged defense counsel’s trustworthiness in the presence of the jury.

Brief for Appellant at 14, 17.   The challenged commentary occurred during

the cross-examination of Officer Winscom and reads in context as follows:

      Q.     Okay. And then when you were falling backwards, and
      when you were hitting [Appellant], you were looking at what you
      were hitting; is that right?
      A.     Well, when I was hitting him, Officer Chichearo was there.
      Q.     Right. But you were obviously looking at him when you
      were hitting him.
      A.     Sure. I was giving verbal commands, and I was also
      noticing the guy get out of the car, so I was looking up the street
      at the same time. When he got out of the car, I’m the one who
      sees him get out of the car because I’m looking right at [the] car
      the whole time.
      Q.     Well, how many minutes later was that?
      A.     Excuse me?
      Q.     Was that instantaneous that the driver got out of the car
      at the same time—
      A.     No, no. But my point being, I’m telling you that I’m not
      looking at him. I’m looking straight ahead as I’m dealing with
      him. Because I also know there’s a gun in that car. I also feel
      that I know more than my partner at the time because I feel—
      Q.     I’m sorry. I don’t want to get into how you feel.
             THE COURT: You don’t want to talk about the gun. You
      want to talk about the fight. This case is about the gun, not the
      fight, not how many times he was hit in the head, not him trying


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      to get away, not the wrestling match on the street. It’s about
      the gun.
            [Defense Counsel] Yes, your Honor. I just got done.
            THE WITNESS: Is it okay if I answer the question, your
      Honor?
            THE COURT: No.
            [Defense Counsel]: I’ll move on, your Honor.

Brief for Appellant at 15-16 (citing N.T., 6/10/14, at 171-172).

      Prior to engaging in the aforementioned line of questioning, defense

counsel extensively had questioned Officer Winscom concerning his physical

struggle with Appellant.    N.T., 6/10/14, at 164-168.      Although defense

counsel asked for the trial court’s indulgence and indicated she was

wrapping up,    Id. at 168, counsel continued exploring this line of cross-

examination. Id. at 168-172.       It was not until counsel cut off Officer

Winscom’s answer to one of her own queries that the trial court interjected

and indicated its view that “[t]his case is about the gun” and not about the

struggle in the street. Id. at 172.    Defense counsel did not object to the

trial court’s characterization of the matter. To the contrary, counsel agreed

with the trial court’s statements and stated she had completed her cross-

examination on the subject and would be moving on. Id. at 172.

      The Commonwealth next called Detective Thomas Lauf to the stand.

Detective Lauf briefly testified regarding photographs he had taken of the

firearm and was questioned on cross-examination as to whether he similarly

had taken photos of the injuries Appellant had sustained. Once again, the

trial court interjected and indicated that the matter dealt only with the gun.


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Id. at 177. However, at this time, counsel reminded the trial court Appellant

also had been charged with resisting arrest.      In response, the trial court

replied “Okay. All right. Go ahead.” Id. at 178. It was not until Detective

Lauf was excused from the witness stand and the jury exited the courtroom

for a brief comfort break that Appellant moved for a mistrial based upon two

grounds:

             Number one, the detective mentioned, on his own—we
      didn’t ask him—on his own he said [he] tried to take a statement
      from [Appellant].
             And the second ground is that your Honor has consistently
      been putting down the Defense strategy numerous times in front
      of the jury. So, your Honor, based on that, I would ask for a
      mistrial on both grounds.

Id. at 183.   In response, the court indicated its disagreement with counsel’s

position and denied the motion. Id. at 184.

      The Commonwealth contends Appellant has waived this claim in light

of counsel’s failure to lodge a timely and proper objection to the trial court’s

challenged remarks. Pa.R.Crim.P. 605 provides that only a defendant may

move for a mistrial when an event prejudicial to him occurs and that such

motion “shall be made when the event is disclosed.” Pa.R.Crim.P. 605(B).

Herein, not only did counsel fail to make a contemporaneous objection to the

trial court’s statements during Officer Winscom’s cross-examination, as was

done during the questioning of Detective Lauf, but counsel also failed to

specifically reference the remarks Appellant cites in his appellate brief when

eventually moving for a mistrial. As such, we find Appellant has waived this


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issue. See Commonwealth v. Colon, 31 A.3d 309, 316 (Pa.Super. 2011)

(stating appellate courts will not overlook defense counsel’s failure to raise a

timely objection to allegedly improper remarks uttered by the trial court). 3

       Judgment of sentence affirmed.




____________________________________________


3
   We note that even had Appellant properly preserved this claim for
appellate review, our Supreme Court has found that not every unwise or
irrelevant remark a trial judge directs toward defense counsel in the course
of trial and in the presence of the jury will be construed as creating an
atmosphere of unfairness that constitutes grounds for a mistrial.
Commonwealth v. Jones, 546 Pa. 161, 683 A.2d 1181 (1996). In Jones,
the Supreme Court noted the trial court’s statements were not so
disparaging so as to prejudice Appellant in any manner and observed that
“while at times, the comments of the trial judge evidenced his impatience
with defense counsel, none of those comments were related to the issues in
the case; none were reflective of any predisposition of the trial judge
respecting the guilt or innocence of the defendant; and none were indicative
of any bias in favor of the prosecution.” Id., 546 Pa. at 182, 683 A.2d at
1191. In addition, the Supreme Court stressed the trial court properly had
charged the jury that it was to be the sole arbiter of the facts. Id., 546 Pa.
at 183, 683 A.2d at 1192.
       Herein, we would similarly find that the trial court’s aforementioned
comment did not warrant a mistrial. Indeed, counsel had extensively cross-
examined Detective Winscom about his struggle to subdue Appellant before
the trial court interjected. Moreover, while the court did comment on what it
deemed to be the relevant focus, when counsel later properly reminded the
trial court of the resisting arrest charge following the trial court’s similar
statement during the cross-examination of Officer Lauf, the trial court
agreed and encouraged counsel to continue the line of questioning. Finally,
the trial court charged the jury that it must make factual determinations and
draw inferences therefrom. The trial court further informed the jurors that
they “must trust [their] recollection of the facts rather than accept any
statements or comments made by Counsel or [the trial court] concerning the
evidence.” N.T., 6/11/14, at 58.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2016




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