Com. v. Dickey, M. ( 2018 )

J-A02035-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
MASSAI SHAWN DICKEY,
Appellant No. 678 WDA 2017
Appeal from the Judgment of Sentence entered February 21, 2017,
in the Court of Common Pleas of Cambria County,
Criminal Division, at No(s): CP-11-CR-0001385-2015.
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 28, 2018
Appellant, Massai Shawn Dickey, appeals from the judgment of sentence
imposed after a jury convicted him of one count of persons not to possess a
firearm.1 We affirm.
The trial court ably summarized the pertinent facts and procedural
history as follows:
On April 30, 2015, a search warrant was executed by the
Safe Street Task Force[, a joint federal, state and local
effort,] at 1127 Riffith Street in Stonycreek Township,
Pennsylvania. As a group of eight to ten officers arrived at
the residence to execute the warrant, a sizeable group of
people were encountered exiting through the front door.
[Appellant] was one of [the] people [the officers]
encountered at this time. In one of the upstairs bedrooms
of the residence, a Wilson’s brown leather jacket was found
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1 18 Pa.C.S.A. § 6105(a)(1).
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by Special Agent (Ret.) Arnold Bernard of the Federal
Bureau of Investigation. Inside the pocket of the jacket was
a Taurus .38 caliber firearm. Inside a safe located in a closet
of the same room, officers recovered an Erma .22 caliber
firearm. A bedroom dresser in the same room contained
photographs depicting [Appellant], a hotel receipt with
[Appellant’s] name on it and two traffic citations issued to
[Appellant]. [Appellant] was arrested and charged with,
inter alia, two counts of Persons Not to Possess a Firearm[.]
After a two day jury trial on January 25-26, 2017,
[Appellant] was found guilty of one count (the jury convicted
him of possessing the Taurus firearm and acquitted him of
the Erma firearm). On February 21, 2017, the Court
sentenced [Appellant] to a period of five (5) to ten (10)
years in a State Correctional Institution.
Trial Court Opinion, 4/21/17, at 1-2 (citations and footnotes omitted).
Appellant filed this appeal after the denial of his timely post-sentence motion.
Appellant raises the following issues on appeal:
1. The Trial Court erred by not sentencing [Appellant] in the
mitigated range.
2. The evidence presented by the Commonwealth was
insufficient to sustain a conviction [for Persons not to
Possess a Firearm].
Appellant’s Brief at 5. Because, if meritorious, Appellant’s sufficiency
challenge would result in discharge, we consider it first. Commonwealth v.
Toritto, 67 A.3d 29, 33 (Pa. Super. 2013) (en banc).
Initially, we set forth our standard of review:
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,
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we note that 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
[trier] of fact while passing upon the credibility of the
witnesses and the weight of the evidence produced, is free
to believe all, part or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citation
omitted).
The relevant portion of the Pennsylvania Crimes Code is 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 . . . a firearm in
this Commonwealth.
18 Pa.C.S.A. § 6105(a)(1). Appellant does not challenge the Commonwealth’s
proof that he was convicted of an offense that prohibited him from possessing
a firearm. However, because the firearm was not found on Appellant’s person,
Appellant argues that the Commonwealth failed to prove that he constructively
possessed it. The applicable principles have been summarized as follows:
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In order to prove that a defendant had constructive
possession of a prohibited item, the Commonwealth must
establish that the defendant had both the ability to
consciously exercise control over it as well as the intent to
exercise such control. An intent to maintain a conscious
dominion may be inferred from the totality of the
circumstances, and circumstantial evidence may be used to
establish a defendant’s possession[.]
Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa. Super. 2013) (citations
omitted).
Here, the trial court concluded the Commonwealth established that
Appellant had constructive possession of the Taurus revolver. The court
explained:
[T]he Commonwealth offered testimony that firearms were
located within a bedroom that contained items directly
linked to [Appellant] including items that had his name on
them and photographs of [him]. This indicia of occupancy
is precisely the kind of circumstantial evidence that the jury
could have used to link [Appellant] to the firearms and find
that he constructively possessed them. Moreover, the fact
that the jury acquitted as to one of the firearms and
convicted as to the other is a strong indication that during
their deliberations the jury considered factors that weighed
in favor of finding constructive possession as to the .38
caliber Taurus and against as to the .22 caliber Erma. For
these reasons, we find that there was sufficient evidence
presented to find that [Appellant] had constructive
possession of the .38 caliber Taurus and decline to afford
[him] any relief on this issue.
Trial Court Opinion, 4/21/17, at 5. Our review of the record supports the trial
court’s conclusion.
Appellant argues that his conviction was “based on innuendo, but not
solid facts to show that he had constructive possession of one of the firearms.”
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Appellant’s Brief at 8. According to Appellant, even the scientific DNA
presented by the Commonwealth as to this gun was inconclusive, and that
there was no direct evidence establishing that the bedroom in which the gun
was found belonged to him or that the house searched was even his residence.
Even if these latter facts were established, Appellant still contends that the
Commonwealth “failed to present any evidence as to how [he] exerted
dominion and control of a firearm in a room [where he] was not even found,
and in fact, he was vacating the residence at the time of his arrest.”
Appellant’s Brief at 8. Finally, Appellant reminds this Court that he was
acquitted of the other firearm found in the bedroom.
Appellant’s claims are without merit. In Commonwealth v. Coleman,
130 A.3d 38 (Pa. Super. 2015), this Court affirmed the trial court’s finding
that the evidence presented by the Commonwealth was sufficient to support
the defendant’s drug convictions based on constructive possession. We
reasoned:
Here, [Coleman] informed his parole agent that he lived at
the address. Further, a bill addressed to him at the
apartment from two weeks earlier was inside. [Coleman’s]
grandmother’s name was on the lease, but there was no
indication that she lived there. Men’s clothing was located
inside the apartment. The circumstantial evidence was
more than sufficient to establish [Coleman] used or lived
inside the apartment and therefore constructively possessed
the drugs and the scale.
Coleman, 130 A.3d at 41-42. In the instant case, when asked his address at
police headquarters, Appellant gave the address for the residence that was
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searched. See N.T., 1/26/17, at 7. Although Appellant testified that he never
lived at the address, that he wore a smaller size jacket, and explained why
the photographs, traffic citations, and the hotel receipt were found in the
bedroom, the credibility assigned this testimony was for the jury as fact-
finder. Hansley, supra. Additionally, Appellant’s DNA was found on the
Taurus revolver. Although Appellant argued alternative theories to explain
the presence of this evidence, once again the jury was free to accept or reject
the claim.
The cases cited by Appellant to support his arguments are inapposite
because they involve different facts and do not include DNA evidence found
on the contraband in question. These cases involve situations where the
defendant was merely present in a house when a search warrant was executed
or involved contraband found in an area where other occupants had equal
access. See, e.g., Commonwealth v. Fortune, 318 A.2d 327 (Pa. 1974);
Commonwealth v. Valette, 613 A.2d 548 (Pa. 1992). In other cases cited
by Appellant, there was either no indicia that the defendant had dominion and
control over the specific area where the contraband was found, or the indicia
found identified a different individual. See, e.g., Commonwealth v.
Mercado, 617 A.2d 342 (Pa. Super. 1992); Commonwealth v. Rodriguez,
618 A.2d 1007 (Pa. Super. 1991).
Finally, the fact that Appellant was acquitted of possessing the Erma
handgun found in the hidden, locked safe within the same bedroom is of no
significance. Although the trial court found these contrary verdicts
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demonstrate that the jury consistently applied the factors proving constructive
possession, see supra, even if the verdicts were inconsistent, Appellant would
not be entitled to relief. See Commonwealth v. Moore, 103 A.3d 1240,
1246 (Pa. 2014) (citations omitted) (reiterating the well settled rule that a
jury’s acquittal “may not be interpreted as specific factual findings with regard
to the evidence, as an acquittal does not definitively establish that the jury
was not convinced of a defendant’s guilt. Rather, . . . an acquittal may merely
show lenity on the jury’s behalf, or that the verdict may have been the result
of compromise, or of a mistake on the part of the jury.”)
In summary, for all of the above reasons, Appellant’s challenge to the
sufficiency of the evidence supporting his conviction is without merit.
In his remaining claim, Appellant challenges the discretionary aspects
of his sentence. As this Court has summarized:
Challenges to the discretionary aspects of sentence do not
entitle an appellant to review as of right. An appellant
challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s
brief has a fact defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
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Commonwealth v. Griffin, 65 A.3d 932, 935-36 (Pa. Super. 2013) (citations
omitted).
Appellant has filed a timely appeal, properly preserved his sentencing
issue, and provided the requisite Rule 2119(f) statement. Thus, we must
determine whether he has raised a substantial question.
The presence of a substantial question is determined on a case-by-case
basis and only exists when the appellant advances a colorful argument that
the sentencing judge’s actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process. Commonwealth v. Diehl, 140 A.3d
34, 44-45 (Pa. Super. 2016) (citations omitted). “[W]e cannot look beyond
the statement of questions presented and the prefatory [Rule] 2119(f)
statement to determine whether a substantial question exists.”
Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013), affirmed,
125 A.3d 394 (Pa. 2015).
Moreover, this Court does not accept bald assertions of sentencing
errors. Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
2006). When we examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists, “[o]ur inquiry must focus on the
reasons for which the appeal is sought, in contrast to the facts underlying the
appeal, which are necessary only to decide the appeal on the merits.”
Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008) (citing
Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)).
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Appellant’s Rule 2119(f) statement reads, in pertinent part, as follows:
[Appellant] respectfully submits that the Court abused its
discretion by not sentencing him in the mitigated range.
[Appellant] would ask that [Superior] Court modify the
[trial] court’s sentence, and note that his prior offenses
occurred several years prior. More importantly, [Appellant]
would ask [Superior] Court to consider the fact that there is
no victim in this case; in other words, this was a victimless
crime, and as such [the] sentence is extremely harsh.
Appellant’s Brief at 11.
Even if we were to conclude that Appellant has raised a substantial
question that permits us to consider the merits of his sentencing claim, we
find the claim waived as undeveloped because Appellant has failed to provide
any supporting argument. See, e.g., Commonwealth v. Wilson, 147 A.3d
7, 14 (Pa. Super. 2016)(explaining that when an appellant offers no citation
to pertinent case law or other authority in support of an argument, the claim
is waived); see also Pa.R.A.P. 2119 (providing that the argument in an
appellant’s brief “shall be divided into as many parts as there are questions to
be argued,” include citations to the record, and references to the record).
Absent waiver, we would nevertheless find no merit to Appellant’s
sentencing claim. Sentencing is a matter vested in the sound discretion of the
sentencing court, and a sentence will not be disturbed on appeal absent a
manifest abuse of discretion, which in this context, is not shown merely to be
an error in judgment; rather the appellant must establish by reference to the
record, that the sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a
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manifestly unreasonable decision. Commonwealth v. Shull, 148 A.3d 820,
831 (Pa. Super. 2016).
When the trial court has the benefit of a presentence report “it is
presumed that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed.” See Commonwealth v. Ventura, 975 A.2d 1128,
1135 (Pa. Super. 2009) (discussing Commonwealth v. Devers, 546 A.2d
12, 18-19 (Pa. 1988)).
Here, the trial court had the benefit of the presentence report and
explained why the sentence it imposed was justified:
The Court’s sentence was a standard range sentence and
was imposed with the benefit of a pre-sentence report;
therefore it is appropriate under the Sentencing Code. More
specifically, [Appellant] has a prior record score of five (5)
and the jury found him guilty of an offense with an offense
gravity score of nine (9). This gave the Court a standard
range of forty-eight (48) to sixty (60) months. [Appellant]
is not in any way disputing that his sentencing guideline was
calculated incorrectly or that his prior record score [was]
incorrect, rather, only that he should a received a sentence
in the mitigated range. The Court sentenced [him] at the
top of the standard range.
We decline [Appellant’s] request to reconsider his
sentence and do not believe it represents an abuse of the
Court’s discretion. Moreover, the Court disagrees with
[Appellant’s] assertion that this crime is “victimless.” The
proliferation of firearms on the streets or our communities
is a direct outgrowth of the offense for which [he] has been
found guilty. When those whom the law deems to be
prohibited from possessing firearms do in fact possess
them, the risk of violence is heightened in our
neighborhoods.
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Trial Court Opinion, 4/21/17, at 3-4.
Our review of the record supports the trial court’s conclusions.
Essentially, Appellant is asking this Court to substitute its judgment for that
of the trial court in fashioning his sentence. See generally, Commonwealth
v. Williams, 562 A.2d 1385 (Pa. Super. 1989) (en banc). This we cannot do.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2018
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