J-S71005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
                v.                          :
                                            :
                                            :
  CALVIN MORRIS                             :
                                            :
                      Appellant             :   No. 2593 EDA 2017

                Appeal from the Judgment of Sentence July 7, 2017
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0003804-2016


BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY PANELLA, J.                               FILED APRIL 10, 2019

         Calvin Morris appeals from the judgment of sentence entered on July 7,

2017 in the Philadelphia County Court of Common Pleas following his

conviction of possession of a firearm while prohibited, and related offenses.

On appeal, he challenges the sufficiency of the evidence to support his

convictions. We affirm.

         On March 31, 2016, Officer Loesch, a Philadelphia police officer, was on

duty around 1600 North Bailey Street when he received a tip from Officer

Rausch that a male in a blue Honda Accord was suspected to be armed with a

firearm in the area. While traveling eastbound on Cecil B. Moore Avenue,

Officer Loesch observed the vehicle, which was driven by a female operator.

Morris was in the front passenger seat. Officer Loesch stopped the vehicle at

the intersection of Bailey Street and Cecil B. Moore Avenue by pulling in front

of it.
J-S71005-18



      He then approached the passenger side of the vehicle as he had

information that the male in the vehicle was armed. He immediately removed

Morris from the vehicle. While exiting the vehicle, Morris’s clothing shifted,

and Officer Loesch observed the wooden handle of a firearm in Morris’s right

waistband. N.T., 4/28/2017, at 15-16.

      The loaded firearm was recovered and Morris was arrested. At the time

of his arrest, Morris did not possess a valid license to carry a firearm and was

precluded from possessing a firearm due to a previous felony conviction. Id.,

at 15-17, 29.

      After a bench trial, the court found Morris guilty of carrying a firearm

while prohibited, carrying a firearm without a license, and carrying a firearm

in public in Philadelphia. On July 7, 2017, Morris was sentenced to four to

eight years in prison for possession of a firearm, to be followed by two years’

probation for carrying a firearm without a license. No further penalty was

given for carrying a firearm in public.

      In his sole issue raised on appeal, Morris asserts that the evidence was

insufficient to sustain all charges because of alleged contradictions and

inconsistencies in Officer Loesch’s testimony. We find that Morris’s reliance on

Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993) to support his claim

of insufficient evidence is misplaced, and further find his claim to be a

challenge to the weight of the evidence.

      While challenges based on inconsistent testimony generally implicate

the weight of the evidence, our Supreme Court has made an exception to the

                                      -2-
J-S71005-18



general rule that the finder of fact is the sole arbiter of the facts where the

testimony is so inherently unreliable that a verdict based upon it could amount

to no more than surmise or conjecture. Id., at 1170. Instantly, we do not

agree that the verdict was based on conjecture or that the officer’s testimony

was so inherently unreliable as to render the verdict unsupportable.

      In fact, the record does not support Morris’s claimed inconsistencies in

Officer Loesch’s testimony at all. Contrary to what Morris claims, Officer

Loesch did not testify that the vehicle was never searched. See N.T.,

4/28/2017, at 17. Further, he did not testify that Morris was wearing a hoodie.

He testified that he had no independent memory of what Morris was wearing

and could only verify what was written in the biographical information sheet

that was given to him to refresh his memory. See id., at 23-24.

      Officer Loesch testified he found the firearm on Morris. See id., at 15.

Morris claims the firearm was not recovered from him. Instead, he claims the

firearm was found in the vehicle. He therefore argues there is no evidence to

support the inference he constructively possessed the firearm.

      Unlike the case in Karkaria, the testimony here was not so inconsistent

as to be completely irreconcilable, and the finder of fact did not have to guess

which version of the story to believe. The finder of fact was free to find the

officer’s testimony credible and to find Morris’s self-serving testimony not

credible. Accordingly, Morris’s claim of insufficient evidence merits no relief.

      Therefore, although Morris phrased this claim as a challenge to the

sufficiency of the evidence, we find Morris’s claim to be a challenge to the

                                      -3-
J-S71005-18



weight of the evidence. Morris’s argument focuses almost exclusively on his

contention that Officer Loesch’s testimony was contradictory and inconsistent.

See Appellant’s Brief, at 9. This is a challenge not to the sufficiency of the

evidence, but to its weight. See Commonwealth v. Wilson, 825 A.2d 710,

713-714 (Pa. Super. 2003) (“A sufficiency of the evidence review, however,

does not include an assessment of the credibility of the testimony offered by

the Commonwealth.”)

      A challenge to the weight of the evidence must, in the first instance, be

presented to the trial court. See Commonwealth v. Rivera, 983 A.2d 1211,

1225 (Pa. Super. 2009). As Morris did not raise a challenge to the weight of

the evidence in the trial court, any such claim is waived for purposes of this

appeal. See Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa. Super.

2011).

      As we find Morris is not entitled to relief under either a sufficiency of the

evidence claim, nor a weight of the evidence claim, we affirm the judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/19

                                      -4-
