Com. v. Tarpley, J. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAMES LOUIS TARPLEY, : No. 1237 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, February 25, 2013,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0013386-2011
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 03, 2015
Following a bench trial, James Louis Tarpley was convicted of one
count of persons not to possess a firearm. Herein, he appeals from the
judgment of sentence entered on February 25, 2013, in the Court of
Common Pleas of Allegheny County. We affirm.
On July 12, 2011, police and EMS responded to 1712 Brinton Avenue
in North Braddock, Pennsylvania, at approximately 11:00 p.m. to calls of a
heroin overdose. The evidence demonstrated that the residence was
managed by Ronald Padolf (“Ronald”) who permitted Michaela McBride
Bradly (“Michaela”) and Jessica Rosenberger (“Jessica”) to live at the
property rent-free and without a signed lease. The apartment consisted of a
living room, kitchen, and two bedrooms -- Michaela and Jessica lived in one
bedroom and Jessica’s son stayed in the other. Ronald testified that he had
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noticed that appellant, Jessica’s boyfriend, was at the apartment “almost all
the time.” (Notes of testimony, 11/9-13-12 at 90-92, 33-34, 56-57.)
Michaela, however, stated that appellant stayed there four or five nights a
week. Due to appellant’s continued presence, Ronald amended his rent-free
policy and insisted on being paid $250 per month; Michaela and Jessica
complied.
On the date in question, appellant and his ten-year-old son were at the
apartment. Appellant was shooting heroin in the living room, and Michaela
was in her bedroom watching television. Around 11:00 p.m., Jessica started
calling out Michaela’s name, saying she needed help with appellant as she
thought he had overdosed. Appellant, while injecting heroin, had fallen back
onto a futon. Michaela saw appellant lying on the futon unresponsive with
Jessica on top of him trying to pull him up; Michaela called 9-1-1.
Carl Rech “(Officer Rech”), an officer with the North Braddock Police
Department, arrived and observed appellant lying on his back on the living
room floor unconscious. At this time, Officer Rech saw a digital scale on the
top of the television with white powder residue and the grip of a pistol
sticking out between the frame and the mattress of the futon, located just to
the right of appellant. Paramedics arrived and administered three shots of
Narcan to appellant, which led him to regain consciousness. Upon
resuscitation, appellant was combative and detained with handcuffs.
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As EMS prepared to take appellant to the hospital, appellant was led to
the ambulance; he asked Officer Rech to retrieve his backpack from the
bedroom. Officer Rech found the backpack and, for safety purposes given
the presence of the firearm in the living room, looked inside. At the bottom
of the backpack, a silver revolver was found. Thereafter, appellant was
charged with two counts of possession of person not to possess a firearm in
violation of 18 Pa.C.S.A. § 6105(A)(1) relating to the weapons found in the
residence.
Michaela testified that earlier that same day she had seen appellant
with a backpack in the living room. She also stated that a few days prior to
the incident she had seen appellant “digging through” the same backpack
and pulling out a silver revolver. (Id. at 40-41.) Jessica testified that she
had previously seen appellant with a backpack and had seen him with
firearms in the apartment, including the silver revolver. (Id. at 65-67.)
Appellant testified at trial and admitted that he went to 1712 Brinton
Avenue to shoot heroin. Appellant denied taking a firearm to the residence
and denied owning the backpack. Appellant testified that he was not in the
business of selling drugs and did not carry a firearm.
The jury returned a verdict of guilty as to the firearm found in the
backpack and not guilty as to the firearm located on the futon. On
February 23, 2013, appellant was sentenced to serve 42 to 84 months’
imprisonment. A timely post-sentence motion was filed requesting a
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modification of sentence; this motion was later denied by operation of law
pursuant to Pa.R.Crim.P. 720(B)(3)(b). (Docket #10.) A timely notice of
appeal was filed. (Docket #11.) The following issues have been presented
for our review:
I. THE TRIAL COURT ERRED IN PERMITTING
EVIDENCE OF ITEMS CONTAINED IN A CLOSED
CONTAINER FOLLOWING A WARRANTLESS
SEARCH OF SAID CONTAINER, TO BE THE
BASIS FOR THE WITHIN CHARGES AND
VERDICT WHEN THERE WAS CLEAR EVIDENCE
THAT APPELLANT WAS NOT IN POSSESSION
OF THAT BAG/CONTAINER WHEN HE WAS
DETAINED AND THE SEARCH WAS NOT
INCIDENT TO ARREST.
II. THE TRIAL COURT ERRED BY ADMITTING
EVIDENCE OF APPELLANT’S PRIOR
CONVICTIONS FOR VIOLATIONS OF THE
UNIFORM FIREARMS ACT.
III. THE EVIDENCE IS INSUFFICIENT TO SUPPORT
THE VERDICT GENERALLY AND SPECIFICALLY
BECAUSE THE EVIDENCE DEMONSTRATED
THAT THE APPELLANT WAS UNCONSCIOUS
AND THUS INCAPABLE OF FORMING THE
SPECIFIC INTENT TO POSSESS THE FIREARM
IN QUESTION.
IV. THE VERDICT IS AGAINST THE WEIGHT OF
THE EVIDENCE.
[V.] THE TRIAL COURT ERRED IN DENYING
APPELLANT’S MOTION TO MODIFY SENTENCE.
Appellant’s brief at 4.
The first issue presented is whether the trial court erred in failing to
suppress the revolver discovered in the backpack. He avers that the weapon
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was seized pursuant to an unlawful, warrantless search. (Appellant’s brief at
12.) We agree with the trial court and the Commonwealth that this claim is
waived.
Appellant never filed a motion to suppress the evidence he now claims
was impermissibly seized by the police. Under Pennsylvania Rule of Criminal
Procedure 578, unless otherwise required in the interests of justice, all
pretrial requests, including a request for suppression of evidence, must be
included in one omnibus pretrial motion. See Pa.R.Crim.P. 578, Comment.
Rule 579 states that an omnibus pre-trial motion must be filed within
30 days of arraignment. The only exceptions to this rule are: (1) the
opportunity to do so did not exist, (2) the defendant or defense counsel was
unaware of the grounds for the motion, or (3) the time for filing was
extended by the court for good cause shown. See Pa.R.Crim.P. 579(A). “If
timely motion is not made . . . , the issue of suppression of . . . evidence
shall be deemed waived.” Pa.R.Crim.P. 581(C). See also Commonwealth
v. Baumhammers, 960 A.2d 59, 76 (Pa. 2008) (“[t]his Court has
consistently affirmed the principle that a defendant waives the ground of
suppressibility as a basis for opposition to the Commonwealth’s introduction
of evidence when he or she fails to file a suppression motion pursuant to our
rules of criminal procedure”); Commonwealth v. Williams, 311 A.2d 920
(Pa. 1973) (claim waived where defendant did not file motion to suppress
evidence). Thus, we deem appellant’s claim waived.
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The second issue presented is whether the trial court erred by
admitting evidence of appellant’s prior firearms violation. (Appellant’s brief
at 15.) Again, we concur with the Commonwealth that this claim is also
waived. Appellant failed to include this issue in his Rule 1925(b) statement,
and the trial court has not addressed it in its Rule 1925(a) opinion.
Therefore, it is deemed waived. Pa.R.A.P., Rule 1925(b)(4)(vii),
42 Pa.C.S.A. See also Commonwealth v. Marion, 981 A.2d 230, 237
(Pa.Super. 2009), appeal denied, 990 A.2d 729 (Pa. 2010) (“to preserve
their claims for appellate review, [a]ppellants must comply whenever the
trial court orders them to file a Statement of Matters Complained of on
Appeal pursuant to [Rule] 1925. Any issues not raised in a [Rule] 1925(b)
statement will be deemed waived.”) (citations omitted).
Next, appellant argues that the evidence was insufficient to sustain his
conviction for person not to possess a firearm.
In reviewing a sufficiency challenge, we apply the following
well-settled principles:
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, 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
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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 considered. Finally, the trier of fact
while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to
believe all, part or none of the evidence.
Commonwealth v. Brown, 23 A.3d 559-560 (Pa.Super. 2011) (en banc),
quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805 (Pa.Super.
2008).
Section 6105 of the Crimes Code states in pertinent part:
§ 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.
18 Pa.C.S.A. § 6105(a)(1).
Appellant does not dispute that a prior conviction disqualified him from
possessing a firearm; on July 16, 2004, appellant pled guilty to possession
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of a controlled substance. Appellant argues that the Commonwealth failed
to satisfy the possession element. (Appellant’s brief at 22.) As appellant
was not in physical possession of the firearm, the Commonwealth was
required to establish that he had constructive possession of the weapon.
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, 63 A.3d 1243 (Pa. 2013) (internal quotation marks and citation
omitted).
Herein, the Commonwealth established that appellant was in
constructive possession of the backpack. Officer Rech testified that he
responded to a call regarding a heroin overdose. He explained that after
appellant was treated by paramedics and revived, appellant asked the officer
to retrieve his backpack from the bedroom. Officer Rech found the
backpack, and for safety purposes, looked inside the backpack before giving
it to appellant. Inside the backpack, Officer Rech discovered a silver
revolver. The Commonwealth also presented the testimony of Jessica and
Michaela; both women testified that they had seen appellant previously with
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the backpack and the silver revolver. Thus, the jury was entitled to
conclude that appellant had possessed the firearm found in the backpack.
In the fourth issue, appellant argues that the verdict was against the
weight of the evidence. (Appellant’s brief at 26.)
“[A] weight of the evidence claim must be preserved
either in a post-sentence motion, by a written
motion before sentencing, or orally prior to
sentencing. Pa.R.Crim.P. 607; Commonwealth v.
Priest, 18 A.3d 1235, 1239 (Pa.Super. 2011).
Failure to properly preserve the claim will result in
waiver, even if the trial court addresses the issue in
its opinion.” Commonwealth v. Sherwood, 603
Pa. 92, 982 A.2d 483, 494 (2009).
Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.Super. 2012). Here,
appellant did not raise a weight of the evidence claim in either a
pre-sentence or post-sentence motion. As we noted above, appellant filed a
post-sentence motion, but the motion requested only a modification of
sentence. (Docket #8.) As such, we find this allegation waived for purposes
of appeal. Lofton, supra.
The final issue presented concerns the discretionary aspects of
sentencing. Appellant is challenging the discretionary aspects of sentencing
for which there is no automatic right to appeal. Commonwealth v. Koren,
646 A.2d 1205, 1207 (Pa.Super. 1994). Two requirements must be met
before a challenge to the judgment of sentence will be heard on the merits.
Id. First, the appellant must set forth in his brief a concise statement of the
reasons relied upon for allowance of appeal with respect to the discretionary
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aspects of his sentence. Id.; Pa.R.A.P. 2119(f). Second, he must show that
there is a substantial question that the sentence imposed is not appropriate
under the Sentencing Code. 42 Pa.C.S.A. § 9781(b); Commonwealth v.
Urrutia, 653 A.2d 706, 710 (Pa.Super. 1995).
The determination of whether a particular issue raises a substantial
question is to be evaluated on a case-by-case basis. Commonwealth v.
Maneval, 688 A.2d 1198, 1199-1200 (Pa.Super. 1997). Generally,
however, in order to establish a substantial question, the appellant must
show actions by the sentencing court inconsistent with the Sentencing Code
or contrary to the fundamental norms underlying the sentencing process.
Id.
Appellant has included in his brief the mandatory concise statement of
reasons relied upon for allowance of appeal from the discretionary aspects of
his sentence. (Appellant’s brief at 28-30.) Therein, appellant complains that
his sentence, which was within the statutory limits and at the lower end of
the standard range of the Sentencing Guidelines, was unreasonable. (Id. at
29.) Appellant has not, however, explained in his Rule 2119(f) statement
how he has set forth a substantial question. A Rule 2119(f) statement that
simply contains incantations of statutory provisions and pronouncements of
conclusions of law is inadequate. Commonwealth v. Thompson, 547 A.2d
800, 802 (Pa.Super. 1988).
Rather, only where the appellant’s Rule 2119(f)
statement sufficiently articulates the manner in
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which the sentence violates either a specific
provision of the sentencing scheme set forth in the
Sentencing Code or a particular fundamental norm
underlying the sentencing process, will such a
statement be deemed adequate to raise a substantial
question so as to permit a grant of allowance of
appeal of the discretionary aspects of the sentence.
Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002).
Limiting our review to appellant’s Rule 2119(f) statement, we conclude
that appellant has failed to raise a substantial question. In fact, nowhere in
his Rule 2119(f) statement does he explain what specific provision of the
sentencing code or fundamental norm underlying the sentencing process has
been violated. Thus, we decline to review his sentencing claim.
Even if we were to turn to the argument section of his brief to review
his claim, we would find Judge Durkin did not abuse her discretion in
sentencing appellant. Appellant was sentenced at the bottom-end of the
standard range of the sentencing guidelines. The trial court explicitly stated
that it reviewed the pre-sentence report. (Notes of testimony, 2/25/13 at 2-
3, 19.) The trial court also considered letters written on behalf of appellant,
the testimony of Kim Vilella, appellant’s mother-in-law, and appellant’s
testimony. The court considered the fact that appellant had a previous 15 to
30-month sentence for a felony drug conviction that involved firearms,
following which appellant violated probation. The Commonwealth argued
that appellant committed the instant offense with his young son in the
house, where he readily admitted he went to use heroin. (Id. at 18.) It
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cannot be said that the sentence imposed was unreasonable.
Commonwealth v. Ventura, 975 A.2d 1128, 1133-1135 (Pa.Super. 2009),
appeal denied, 987 A.2d 161 (Pa. 2009) (where the trial court clearly
relied on the pre-sentence report and the sentence imposed was not outside
the applicable guidelines or unreasonable, the court did not commit an abuse
of its discretion).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/3/2015
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