J-S78002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SHAWN MCDANIEL,

                            Appellant                  No. 927 WDA 2015


      Appeal from the Judgment of Sentence Entered September 24, 2012
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0009703-2011


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

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

        Appellant, Shawn McDaniel, appeals from the judgment of sentence of

4½-9 years’ incarceration imposed following his conviction for multiple

firearms offenses. Appellant claims that the verdict, which was premised on

a finding that he constructively possessed a firearm, was against the weight

of the evidence. After careful review, we affirm.

        The following is Appellant’s summary of the evidence produced at trial,

which was uncontested by the Commonwealth in its own brief:

               Officer Luptak with the Homestead Police Department
        testified that he was on patrol on May 31, 2011. He received a
        dispatch about a domestic disturbance at 911 West Street. He
        was in uniform when he arrived at the scene. Another officer,
        Officer Strang, also was at the scene. Officer Luptak observed
        an SUV parked in the front, and a man, Derek Wilkins, and
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     woman, Kelly Franklin, on the sidewalk. Derek Wilkins, told the
     officer that the male inside the SUV had threatened to shoot
     him. The officer identified [Appellant] as the male who was
     inside the SUV. He was sitting in the left rear passenger seat.
     There was a male driver and possibly a child in the vehicle.
     Neither Mr. Wilkins nor Ms. Franklin was presented as a
     Commonwealth witness to testify with regard to seeing
     [Appellant] display a gun.

            Neither officer had heard [Appellant] make any threats.
     Officer Strang approached [Appellant] and asked him if he had
     any weapons.        Officer Strang then opened the door for
     [Appellant] to step out. He told [Appellant] he was going to pat
     him down. At that point, [Appellant] stepped out of the vehicle
     and took off running.         The two officers chased him[,]
     commanding him to stop. They were about 15 feet behind him.
     [Appellant] ran down Tenth Avenue then cut through an
     alleyway towards Ninth. Officer Luptak said that [Appellant] cut
     through some yards and jump[ed] over a chain link fence into
     some weeds leading into an apartment building parking lot. The
     officer asserted that he briefly lost sight of [Appellant] at that
     point. The weeded area was bordered by a railroad tie wall
     approximately 6 feet high that dropped down into the parking
     lot.   Officer Luptak admitted that at no point did he see
     [Appellant] with a gun. He also did not see [Appellant] throw
     anything.

            The police apprehended [Appellant] in the weeds about 20
     feet from where he jumped over the fence, and about 75 yards
     east and another 50 yards north from where he exited the
     vehicle. The pursuit lasted approximately three minutes. He
     was in possession of what was later identified as crack cocaine
     and several Oxycodone pills. He was not wearing any gloves,
     and no gloves were found in the area.

           After [Appellant] had been transported to the police
     station, the officers searched the area where [Appellant] was
     apprehended. A nine-millimeter Glock was discovered on top of
     the railroad tie wall that separated the weeded area from a
     parking lot. A broken magazine was on the pavement 4 to 6 feet
     below the gun. The officer did not remember if the gun was
     loaded. The gun was in a holster. The officer did not see
     [Appellant] place or throw the gun on the wall.




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            According to the Crime Lab, the firearm was found to be in
      good operating condition and had a four-inch barrel length. No
      fingerprints were found on the gun. The cartridge, bullets and
      holster were not tested for fingerprints.

             Officer Ian Strang testified that he spoke with Ms. Franklin
      at the time of the incident. He claimed that Ms. Franklin told
      him she had gotten into an argument with [Appellant] earlier
      that day and he had threatened to shoot her. Ms. Franklin
      pointed out [Appellant] to the officer. She appeared upset. The
      officer did not include any of this information in his report. He
      did not see [Appellant] with a weapon, nor did Ms. Franklin or
      anyone else tell him that [Appellant] had a weapon.

             The defense presented the testimony of Ms. Kelly Franklin.
      She stated that [Appellant] is her boyfriend, and was her
      boyfriend at the time of the incident. Derek Williams was the
      father of one of her sons. Her brother drove her to Derek's
      house to retrieve her cellphone that Derek had taken from her
      earlier that evening at her mother's house. [Appellant] went
      with them and was sitting in the back seat with Ms. Franklin's
      kids. Ms. Franklin said that her brother got into an argument
      with Derek about returning the phone.        However, she was
      certain that her brother did not make any threats about shooting
      anyone, nor did [Appellant]. Her brother stood on the running
      board of his vehicle yelling at Derek. [Appellant] stayed in the
      backseat and did not say anything. Ms. Franklin did not see
      [Appellant] with a weapon.

            [Appellant] confirmed Ms. Franklin's testimony. He denied
      that he threatened to shoot anyone.          He had outstanding
      warrants from California for probation violations at the time. He
      denied having a gun on him. He admitted that he had narcotics
      in his possession. When the police asked him to get out of the
      car, he was afraid of being caught with the drugs so he ran
      away.

Appellant’s Brief, at 8-11 (citations to the record omitted).

      Appellant’s non-jury trial occurred on May 1, 2012, following which the

trial court found him guilty of two firearm offenses, 18 Pa.C.S. § 6105

(“Persons not to possess, use, manufacture, control, sell or transfer



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firearms”) and 18 Pa.C.S. § 6106 (“Firearms not to be carried without a

license”), and one count of possession of a controlled substance, 35 P.S. §

780-113(a)(16).1        On September 24, 2012, the trial court sentenced

Appellant to 4½-9 years’ incarceration for his Section 6105 offense, and to

no further penalty at all remaining counts.

       After a protracted post-sentence history, Appellant’s appellate and

post-sentence rights were reinstated by trial court order dated March 24,

2015.2 Appellant then filed a nunc pro tunc post-sentence motion on April 1,

2015. Following a hearing held on May 11, 2015, the motion was denied by

the trial court.    Appellant then filed a timely notice of appeal on July 10,

2015. Appellant filed a court-ordered, Pa.R.A.P. 1925(b) statement on July

27, 2015, and the trial court issued its brief Rule 1925(a) opinion 10 months’

later, on May 31, 2016.

____________________________________________


1
  The Commonwealth withdrew charges of resisting arrest and possession of
a controlled substance with intent to distribute.
2
   The procedural history leading to this outcome is not relevant to this
appeal and, therefore, is only briefly summarized as follows. After failing to
perfect his direct appeal, Appellant filed a pro se petition under the Post
Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, in September of 2013. Prior
counsel was appointed, who then amended the petition to include a claim
seeking reinstatement of Appellant’s direct appeal rights nunc pro tunc.
Following a change to current counsel, the petition was again amended to
include a claim seeking reinstatement of Appellant’s post-sentence motion
rights nunc pro tunc as well. As noted above, the court ordered the
reinstatement of Appellant’s direct appeal and post-sentence motion rights
nunc pro tunc on March 24, 2015. It appears from the record that the
Commonwealth did not oppose this action.



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      Appellant now presents the following question for our review:

      Did the lower court abuse its discretion in denying the post-
      sentence motion which averred that the verdict of guilty of
      violations of the Uniform Firearms Act as contrary to the [weight
      of the] evidence where none of the witnesses observed Appellant
      in possession of a firearm, Appellant was not found in possession
      of a firearm at the time of his arrest, and the police did not see
      Appellant throw or drop anything while they were pursuing him?

Appellant’s Brief, at 5 (unnecessary capitalization omitted).

      We apply the following standard of review to a challenge that a verdict

is against the weight of the evidence:

         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.
         Because the trial judge has had the opportunity to hear
         and see the evidence presented, an appellate court will
         give the gravest consideration to the findings and reasons
         advanced by the trial judge when reviewing a trial court's
         determination that the verdict is against the weight of the
         evidence. One of the least assailable reasons for granting
         or denying a new trial is the lower court's conviction that
         the verdict was or was not against the weight of the
         evidence and that a new trial should be granted in the
         interest of justice.

         This does not mean that the exercise of discretion by the trial
      court in granting or denying a motion for a new trial based on a
      challenge to the weight of the evidence is unfettered.         In
      describing the limits of a trial court's discretion, we have
      explained:

         The term “discretion” imports the exercise of judgment,
         wisdom and skill so as to reach a dispassionate conclusion
         within the framework of the law, and is not exercised for
         the purpose of giving effect to the will of the judge.
         Discretion must be exercised on the foundation of reason,

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         as opposed to prejudice, personal motivations, caprice or
         arbitrary actions. Discretion is abused where the course
         pursued represents not merely an error of judgment, but
         where the judgment is manifestly unreasonable or where
         the law is not applied or where the record shows that the
         action is a result of partiality, prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations

omitted).

      Appellant argues that the trial court abused its discretion in ruling

against his weight-of-the-evidence challenge because

      the evidence used to support [Appellant]'s conviction relied
      solely on the police officers' testimony that [Appellant]'s
      girlfriend told them that [Appellant] threatened to shoot her, and
      that fact that a broken gun was found in the area where
      [Appellant] was arrested after fleeing from the police. At trial,
      [Appellant]'s girlfriend denied telling police that [Appellant] had
      threatened to shoot her or anyone else[.] In fact, Ms. Franklin's
      alleged statements to the police were not contained in the police
      report. Furthermore, no one testified as to hearing [Appellant]
      threaten to shoot anyone, observing [Appellant] in possession of
      a firearm, or to seeing him throw or drop anything as the police
      pursued him.       Notably, illegal contraband was found in his
      pockets - it had not been dropped or discarded. The area in
      which the gun was found was located next to a parking lot and
      was accessible to the public in general. [Appellant] was not
      wearing gloves, but his fingerprints were not found on the gun,
      the holster, or the cartridge.

Appellant’s Brief, at 15-16 (citations omitted).

       The trial court credited Officer Luptak’s testimony that Appellant

“threatened to shoot someone.” Trial Court Opinion (TCO), 5/31/16, at 4.

Specifically, Officer Luptak testified that when he arrived on the scene to

investigate a disturbance, Derek Wilkins told him that Appellant “threatened

to shoot him.”   Notes of Testimony (hereinafter “NT”), 5/1/12, at 8.       The



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trial   court   found    this   hearsay3       statement   credible,   and   reinforced

circumstantially by Appellant’s flight from police when Appellant was asked if

he had “any weapons on him[.]” Id. at 10. Furthermore, the firearm at-

issue “was located along the path that officers pursued [Appellant].               The

firearm was found on the wall [Appellant] climbed over and a magazine

matching the gun was located at the bottom of the wall in the weeds where

it appeared [Appellant] had made a path.” TCO at 4.

        Thus, the evidence demonstrating Appellant’s constructive possession

of the seized firearm was circumstantial. There were no direct observations

of Appellant’s possessing the firearm. However, Appellant’s purported threat

to use a firearm, his flight from police when asked if he was armed, and the

discovery of a firearm on his subsequent flight path, all tend to suggest that

Appellant possessed that firearm before abandoning it during his flight from

police.

        This evidence was partially contradicted by Appellant’s testimony and

the testimony of his girlfriend, Kelly Franklin.           Appellant testified that he
____________________________________________


3
  The admissibility of such hearsay evidence is a wholly separate question
from Appellant’s weight-of-the-evidence challenge. Notably, Appellant did
not object at trial on hearsay grounds to this aspect of Officer Luptak’s
testimony, nor to other statements attributed to Wilkins and Franklin as
reported by the officers.    If Appellant believes he was unduly prejudiced by
the form of this evidence, independent of its content, he should have
challenged the admission of these statements in the lower court, and raised
such claims on appeal if unsuccessful. Appellant has not cited any basis for
this Court to ignore or discredit such testimony because it was hearsay when
considering the merits of his weight-of-the-evidence claim.



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never possessed the firearm in question, NT at 55, and that he fled because

of an outstanding warrant and his possession of controlled substances, id. at

54.   Ms. Franklin testified that Appellant never made any threat to shoot

anybody.      Id. at 45.   Ms. Franklin also denied Officer Strang’s testimony

that, before Appellant’s flight and subsequent arrest, she had described

Appellant’s threats or identified him for the officers when they arrived on the

scene. Id. at 46-48.

        The trial court “did not find [Appellant]’s testimony credible.” TCO at

4. Although it never said so specifically, it appears as if the trial court also

disbelieved    Ms.   Franklin’s    testimony.      Given   the   totality     of   these

circumstances, the court ruled that “it appropriately weighed the evidence”

and “the court’s decision [did] not shock the conscience of the court.” Id.

        We cannot ascertain any abuse of discretion in the trial court’s

decision. It can be fairly said that proof of Appellant’s guilt for constructive

possession of the seized firearm cannot be premised merely upon his

purported threat to use a firearm, or his flight from police when asked if he

was armed, or the discovery of a firearm on his subsequent flight path, when

those    circumstances     are    considered    individually   and/or   in    isolation.

However, this web of facts, when considered in the aggregate, strongly

suggests Appellant possessed the firearm in question, as the confluence of

these circumstances bolsters their individual significance.                  Given the

reasonableness of such a conclusion, in tandem with the trial court’s

discrediting the defense witnesses’ testimony, the trial court’s finding of guilt

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was not “manifestly unreasonable.”              Clay, 64 A.3d 1055.     Moreover,

Appellant presents no argument that the court’s decision was a product “of

partiality, prejudice, bias or ill-will.” Id.    Accordingly, we conclude that the

trial court did not abuse its discretion in rejecting Appellant’s weight-of-the-

evidence claim.

      Judgment of Sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2016




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