Com. v. Pitts, D. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DECOREY PITTS :
:
Appellant : No. 73 EDA 2021
Appeal from the Judgment of Sentence Entered August 25, 2020
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002276-2019
BEFORE: LAZARUS, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED JANUARY 26, 2022
Appellant, Decorey Pitts, appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas, following his jury
trial convictions for risking catastrophe, recklessly endangering another
person (“REAP”), endangering the welfare of a child (“EWOC”), and persons
not to possess firearms.1 We affirm.
The relevant facts and procedural history of this case are as follows. On
March 25, 2019, the Delaware County Sherriff’s Department arrived at
Appellant’s home for the purpose of evicting Appellant and his family from the
premises, following mortgage foreclosure proceedings. The trial court
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3302(b), 2705, 4304, and 6105(a)(1), respectively.
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summarized the trial testimony as follows:2
Timothy Bernhardt, then a Lieutenant of Narcotics and the
Mountain Bike and Traffic Division, testified [that] on March
25, 20[19] he was assisting the Delaware County Sheriff’s
Department and members of the Upper Darby police
department at 36 N. Harwood Avenue. After being shown a
photograph, marked as Commonwealth Exhibit 8,
Superintendent Bernhardt testified and identified the exhibit
as a picture of the master bedroom where Appellant and his
wife were located, and on the bed is a shotgun from the
master bedroom closet.
On cross-examination, Superintendent Bernhardt testified
and identified in Commonwealth Exhibit 8 there appeared to
be on the bed a large, long rifle. He clarified, “There was a
gun. There was a shotgun that was located in the closet,
similar to the image that’s depicted in the picture.”
* * *
[Ciro] Merone testified he works for CNA Properties, and his
company assists with evictions. As part of this general task,
the company is responsible for changing the locks on the
property and packing the personal items of the homeowner
or tenant and placing them in storage. On March 25, 2019
he assisted in an eviction taking place at 36 N. Harwood
Avenue, including overseeing the crew and packing. Merone
testified he noticed the shotgun in the closet, tucked behind
several clothes toward the back wall. Merone testified the
closet contained typical items of adult men and women
clothing. Merone was shown Commonwealth Exhibit 35 and
testified the exhibit depicts a photograph of the shotgun
found in the closet.
On cross-examination, Merone testified he recognizes the
shotgun in the photograph as the one he found in the closet.
Merone testified the photograph of the item in
Commonwealth Exhibit 8 does not appear to be same item
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2 Following a hearing pursuant to Commonwealth v. Grazier, 552 Pa. 9, 713
A.2d 81 (1998), the court permitted Appellant to proceed pro se at trial, with
the assistance of Attorney Robert Schwarz as stand-by counsel.
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as depicted in Commonwealth Exhibit 35. Merone testified
when they find weapons on a property, protocol is to give
them to the sheriff.
* * *
Chief Donohue testified he was present at 36 N. Harwood
Avenue to assist with an eviction. He testified
Commonwealth Exhibit 8 is a photograph showing the
master bedroom and a pellet or BB gun on the bed. He
testified this is not the same item brought to him by the
movers. He testified when the firearm was brought out to
him, he “took possession of it and rendered it safe by
removing all the rounds from the gun.” He testified there
were five rounds of ammunition in the gun: four in the tube
and one in the chamber. The safety was not on the gun and
it was “ready to fire.” Chief Donohue testified
Commonwealth Exhibit 32 shows the gun and rounds of
ammunition on the hood of one of the sheriff’s marked cars,
and Commonwealth Exhibit 33 is a close up photograph of
the gun and ammunition; Commonwealth Exhibit 34 is a
close-up photograph of [the] shotgun showing its make,
model, and serial number. Chief Donohue testified
Commonwealth Exhibit 40 is a picture showing the same five
shotgun rounds, all 12 gauge; three of them are red, three
inch magnums -- Federal Ammunition, and two of them are
black, two and three quarters -- Remington. Chief Donohue
testified Commonwealth Exhibit 35 is a rifle box with the
shotgun in it. The shotgun has the same serial number as
the number of the gun [shown on the March 25, 2019
photograph of the gun that was] found in the closet of
Appellant’s bedroom closet.
On cross examination, Chief Donohue testified the “gun in
and of itself…is not an illegal firearm.”
On redirect examination, Chief Donohue testified Appellant
had come to the Sheriff’s office about the eviction [prior to
March 25, 2019]. Chief Donohue testified Appellant did not
identify himself, and co-defendant Sharon Tracy Gale
mostly spoke claiming there was no authority for the
eviction and if they proceeded there would be resistance.
Chief Donohue testified he assisted Appellant and his wife
with paperwork to file an emergency stay, which was
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denied. Upon learning of the denial, co-defendant Gale
stated they were not going to leave. Chief Donohue testified
that eventually [Appellant] asked, “How can we avoid a
Mexican standoff?”
Chief Donohue testified that, before the eviction, the
sheriff’s [department] received intelligence Appellant and
Ms. Gale had assembled a large number of people to thwart
the eviction -- thirty-five or more people “guarding the front
of the house”, and pictures of this were posted online. In
an effort to avoid violence and promote the safety of the
people at the residence, especially children, a determination
was made to postpone the eviction to a later date. Since
the occupants would not leave, the decision was made to
attempt an action and ejectment, and serve a writ of
possession at a later date without posting the property or
giving notice when the ejectment was going to occur.
On recross examination, Chief Donohue testified the gun
was found in the closet in the house Appellant occupied, and
during the eviction on March 25, 2019, the only two adults
present were Appellant and his wife.
* * *
Before Appellant testified, this court on the record advised
Appellant concerning his right to testify and if he chose to
not testify, the jury would not be permitted to infer anything
negative. Following the court’s caution, Appellant waived
this right and declared his intention to testify. Appellant
testified he did not do anything wrong and he emphatically
denied knowing the weapon was in the house.
(Trial Court Opinion, filed May 12, 2021, at 6-10) (internal citations omitted).
On January 9, 2020, at the conclusion of trial, the jury convicted
Appellant of risking catastrophe, REAP, EWOC, and answered “yes” to a
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question asking whether Appellant possessed a firearm.3 The court then
bifurcated trial and proceeded on the charge of persons not to possess
firearms. The Commonwealth presented the testimony of Casey Elfin, who
testified that he is a parole agent who supervised Appellant for his 2004
convictions of robbery and conspiracy to commit robbery. The jury
subsequently convicted Appellant of persons not to possess firearms.
Appellant appeared at sentencing on August 25, 2020 pro se, still
assisted by Attorney Schwarz as stand-by counsel. The court sentenced
Appellant to an aggregate term of 5 to 10 years’ imprisonment, plus two years’
probation. After imposing sentencing, the court advised Appellant of his post-
sentence rights and informed Appellant that the court would be appointing
Attorney Schwarz as counsel for any appeal. Nevertheless, the court did not
enter an order appointing counsel on that date.
The next day, Appellant mailed a pro se post-sentence motion
challenging his sentence, which was docketed on September 4, 2020.
Meanwhile, on August 28, 2020, the court entered the order appointing
Attorney Schwarz as counsel. On September 15, 2020, the court appointed
new counsel, Attorney Mary Elizabeth Welch, to represent Appellant because
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3 In addition to testimony concerning firearms in the home, the
Commonwealth had presented evidence of deplorable conditions in the home,
which presented serious electrical and other safety hazards. Appellant
challenges only the persons not to possess a firearm conviction on appeal, so
we do not need to detail the hazardous conditions of the home.
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Attorney Schwarz had moved out of state. Attorney Welch filed an amended
post-sentence motion on Appellant’s behalf on November 29, 2020,
challenging the weight of the evidence.
On December 11, 2020, the court denied the post-sentence motions.
Appellant filed a timely notice of appeal on December 18, 2020.4 On January
13, 2021, the court ordered Appellant to file a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b). Following the grant of an
extension of time, Appellant filed a Rule 1925(b) statement on March 8, 2021.
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4 On March 11, 2021, this Court issued a rule to show cause why the appeal
should not be quashed as untimely where Appellant’s pro se post-sentence
motion docketed on September 4, 2020 was a legal nullity because Appellant
was represented by counsel at that time, citing Commonwealth v. Ruiz, 131
A.3d 54, 56 n.4 (Pa.Super. 2015) (explaining appellant’s pro se post-sentence
motion was legal nullity, where he was represented by counsel at time of
motion). Appellate counsel responded on March 22, 2021, explaining that
Appellant was still pro se at the time he filed the initial post-sentence motion
in this case. This Court subsequently discharged the rule to show cause and
referred the issue to the merits panel. Our review of the record confirms
appellate counsel’s averments. The record makes clear that at sentencing on
August 25, 2020, Appellant was still pro se. The next day, Appellant delivered
his pro se post-sentence motion to prison authorities for mailing. Thus,
pursuant to the prisoner mailbox rule, Appellant’s pro se post-sentence motion
was filed on August 26, 2020, before the court appointed Attorney Schwarz
for appeal on August 28, 2020. See Commonwealth v. Chambers, 35 A.3d
34 (Pa.Super. 2011), appeal denied, 616 Pa. 625, 46 A.3d 715 (2012)
(explaining that prisoner mailbox rule provides that pro se prisoner’s
document is deemed filed on date he delivers it to prison authorities for
mailing). Under these circumstances, Appellant’s pro se post-sentence motion
was timely filed within 10 days of sentencing, and Appellant timely filed his
notice of appeal within 30 days of the court’s denial of the post-sentence
motion. See Pa.R.Crim.P. 720(A)(1-2) (explaining written post-sentence
motion shall be filed no later than 10 days after imposition of sentence; if
defendant files timely post-sentence motion, notice of appeal shall be filed
within 30 days of entry of order deciding motion).
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Appellant raises the following issues for our review:
1. Whether there was insufficient evidence to prove beyond
a reasonable doubt that Appellant was guilty as to the
charge of Person Not to Possess a Firearm in that the
element of possession was not proven beyond a reasonable
doubt:
a. The firearm was found in the back of a closet,
concealed in a towel or blanket and out of sight;
b. The closet contained both men and women’s
clothing;
c. There was no evidence presented that [Appellant]
knew the firearm was in the closet;
d. There was no evidence that [Appellant] had the
intent to control the firearm;
e. Other people had access to the closet, including
[Appellant’s] wife;
2. Whether the verdict was against the weight of the
evidence in that;
a. The evidence presented by the Commonwealth
showed that the firearm was concealed in a closet and
completely covered up by a towel or blanket when it was
located.
b. The evidence presented by the Commonwealth
showed that other people had access to the closet area[.]
(Appellant’s Brief at 6).
In his issues combined, Appellant argues that the Commonwealth did
not introduce any evidence showing Appellant was in physical possession of a
firearm. Appellant avers the Commonwealth’s case rested on a theory of
constructive possession. Appellant contends a firearm was recovered in a
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closet containing men and women’s clothing. Appellant emphasizes this
firearm was not submitted for DNA analysis. Appellant insists the firearm was
recovered from the back of the closet and covered with clothing or blankets.
Appellant submits there was no testimony that the male clothes in the closet
were Appellant’s clothes or that those clothes were consistent with his build.
Appellant asserts there was no evidence that Appellant knew a firearm was in
the closet. Appellant proclaims there was no evidence that Appellant had the
intent or ability to possess a firearm. Appellant concludes the Commonwealth
presented insufficient evidence to sustain his conviction for persons not to
possess firearms, and that verdict was against the weight of the evidence. 5
We disagree.
In reviewing a challenge to the sufficiency of the evidence, our standard
of review is as follows:
As a general matter, our standard of review of sufficiency
claims requires that we evaluate the record in the light most
favorable to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence. Evidence will be deemed sufficient to support the
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5 “A claim that the verdict was against the weight of the evidence shall be
raised with the trial judge in a motion for a new trial[.]” Pa.R.Crim.P. 607(A).
Failure to properly preserve a challenge to the weight of the evidence will
constitute waiver on appeal. Commonwealth v. Griffin, 65 A.3d 932(Pa.Super. 2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013). Here,
Appellant’s timely filed pro se post-sentence motion did not raise a challenge
to the weight of the evidence. Although current counsel filed an amended
post-sentence motion on November 30, 2020 raising a weight claim, that
motion was filed beyond the 10-day timeframe following sentencing and
without leave of court. Consequently, Appellant did not preserve his weight
claim on appeal, and it is waived. See id.-8-
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verdict when it establishes each material element of the
crime charged and the commission thereof by the accused,
beyond a reasonable doubt. Nevertheless, the
Commonwealth need not establish guilt to a mathematical
certainty. Any doubt about the defendant’s guilt is to be
resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of
fact can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. Accordingly, [t]he fact that
the evidence establishing a defendant’s participation in a
crime is circumstantial does not preclude a conviction where
the evidence coupled with the reasonable inferences drawn
therefrom overcomes the presumption of innocence.
Significantly, we may not substitute our judgment for that
of the fact finder; thus, so long as the evidence adduced,
accepted in the light most favorable to the Commonwealth,
demonstrates the respective elements of a defendant’s
crimes beyond a reasonable doubt, the appellant’s
convictions will be upheld.
Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa.Super. 2019)
(quoting Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa.Super.
2013)).
The Uniform Firearms Act defined the crime of persons not to possess
firearms at the time of Appellant’s offenses, in relevant part, as follows:
§ 6105. Persons not to possess, use, manufacture,
control, sell or transfer firearms
(a) Offense defined.—
(1) A person who has been convicted of an offense
enumerated in subsection (b), within or without this
Commonwealth, regardless of the length of sentence or
whose conduct meets the criteria in subsection (c) shall not
possess, use, control, sell, transfer or manufacture or obtain
a license to possess, use, control, sell, transfer or
manufacture a firearm in this Commonwealth.
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18 Pa.C.S.A. § 6105(a)(1) (effective January 3, 2017 to April 9, 2019).
Robbery is an enumerated offense under Section 6105(b). See 18 Pa.C.S.A.
§ 6105(b).
“When contraband is not found on the defendant’s person, the
Commonwealth must establish constructive possession….” Commonwealth
v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting Commonwealth
v. Haskins, 677 A.2d 328, 330 (Pa.Super. 1996), appeal denied, 547 Pa. 751,
692 A.2d 563 (1997)). This Court has defined constructive possession as
follows:
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) (quotation omitted). “The Commonwealth may
sustain its burden by means of wholly circumstantial
evidence, and we must evaluate the entire trial record and
consider all evidence received against the defendant.” Id.(citation omitted).
Commonwealth v. Roberts, 133 A.3d 759, 767-68 (Pa.Super. 2016), appeal
denied, 636 Pa. 675, 145 A.3d 725 (2016).
Instantly, the trial court addressed Appellant’s sufficiency claim as
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follows:
The record shows the firearm was found in the back of
Appellant’s master bedroom closet, during an eviction
process, and it was concealed by clothing. The record also
shows the master bedroom was occupied by Appellant and
his wife, and the closet contained both men and women’s
adult clothing. The jury considered the evidence that other
people, including Appellant’s wife, had access to the closet,
and the jury reasonably inferred Appellant had unrestricted
access to the closet, and linked Appellant to the closet and
the items in the closet. Further bolstering the
Commonwealth’s case, the record shows Appellant made
reference to a Mexican standoff while meeting with Chief
Donohue in the sheriff’s office. The jury carefully weighed
all the evidence and found that the Commonwealth met its
burden of proof beyond a reasonable doubt,
notwithstanding Appellant’s testimony to the contrary.
Based on the totality of the evidence presented, the
Commonwealth proved each element of the charge beyond
a reasonable doubt thereby satisfying its burden.
Appellant’s claim lacks merit and judgment of sentence
should be affirmed.
(Trial Court Opinion at 14-15). We agree with the court’s analysis. Viewed in
the light most favorable to the Commonwealth as verdict-winner, the evidence
was sufficient to prove Appellant’s constructive possession of a firearm. See
Sebolka, supra; Roberts, supra. Therefore, sufficient evidence supported
Appellant’s persons not to possess conviction. Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/26/2022
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