Com. v. Amos, M. ( 2017 )

J-A21040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
MELVIN WALLACE AMOS, SR.
Appellant No. 1868 WDA 2016
Appeal from the Judgment of Sentence Entered September 9, 2016
In the Court of Common Pleas of Mercer County
Criminal Division at No: CP-43-CR-0001559-2015
BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 22, 2017
Appellant, Melvin Wallace Amos, Sr., appeals from the September 9,
2016 judgment of sentence imposing four to eight years of incarceration for
unlawful possession of a firearm.1 We affirm.
On August 18, 2015, police executed a search warrant at Appellant’s
home, arrested him, and charged him with the aforementioned offense. On
June 16, 2016, a jury found Appellant guilty. After the trial court imposed
sentence, Appellant filed a timely post-sentence motion challenging, among
other things, the weight of the evidence in support of Appellant’s conviction.
The trial court denied the motion on November 8, 2016. This timely appeal
followed. Appellant raises four issues for our review:
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1 18 Pa.C.S.A. § 6105.
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I. Whether the trial court erred in overruling
[Appellant’s] challenge to the prosecution striking the only African
American juror in the panel?
II. Whether the trial court erred in admitting hearsay
evidence as to the identification of [Appellant] for purposes of a
prior conviction?
III. Whether the Commonwealth produced sufficient
evidence to convict [Appellant under § 6105]?
IV. Whether the verdict was against the weight of the
evidence?
Appellant’s Brief at 5. We will address these issues in turn.
In Batson v. Kentucky, 476 U.S. 79, 89 (1986), the United States
Supreme Court held that the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution forbids a prosecutor to strike a
juror solely on the basis of race. Appellant is African American, and the venire
contained only one African American. The prosecutor used a peremptory
strike to exclude her from the trial jury. Appellant claims the prosecutor
violated Batson.
In an equal protection claim, the defendant bears the burden “to prove
the existence of purposeful discrimination.” Id. at 93. First, the defendant
must make a prima face showing of discriminatory juror selection, that is, that
the prosecution excluded jurors because of their race. Id. at 97.
In deciding whether the defendant has made the requisite
showing, the trial court should consider all relevant
circumstances. For example, a “pattern” of strikes against black
jurors included in the particular venire might give rise to an
inference of discrimination. Similarly, the prosecutor’s questions
and statements during voir dire examination and in exercising his
challenges may support or refute an inference of discriminatory
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purpose. These examples are merely illustrative. We have
confidence that trial judges, experienced in supervising voir dire,
will be able to decide if the circumstances concerning the
prosecutor’s use of peremptory challenges creates a prima facie
case of discrimination against black jurors.
Id. If the defendant makes the prima facie showing, the prosecutor must
defend the exclusion with “a neutral explanation related to the case to be
tried.” Id. at 98. “The trial court will then have the duty to determine if the
defendant has established purposeful discrimination.” Id.
Instantly, Appellant objected when the prosecutor used a peremptory
challenge to exclude the only black juror from the petit jury. The trial court
explained:
This Court, as is its practice, called counsel to sidebar after
the prospective panel was seated and asked the Commonwealth
to put on the record its reason for striking the sole African
American juror. The reason given was the juror’s lack of a college
degree. The case against [Appellant] involved constructive
possession and the Commonwealth sought jurors with college
degrees.
[Appellant] objected to this reason on the grounds it was
not racially neutral in that there were other jurors who did not
have a college degree who were not stricken.
[…]
Given the Commonwealth struck the only African American
on the panel, this [c]ourt finds there is a prima facie showing that
the Commonwealth struck the juror based on race.
This [c]ourt further finds that the reason given was race
neutral. The Commonwealth’s case involved one of constructive
possession. Such cases require jurors to apply complex legal
theories. The higher degree of education, the more likely it is a
juror would correctly apply the theory.
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The fact that there were other jurors who did not have a
college education who were not struck does not make the reason
less racially neutral. The reason is still racially neutral and that is
what is required. There can be other reasons for those other
jurors that were not stricken.
Trial Court Opinion, 11/8/16, at 3-4.
As set forth above, Batson involves a three-step analysis. First, the
defendant must establish a prima facie case of discrimination. Second, if the
trial court finds a prima facie case, the prosecutor must offer a race-neutral
explanation. Third, the trial court must evaluate the case to determine
whether the defendant has established purposeful discrimination.
The trial court found a prima facie case, and the Commonwealth does
not challenge that finding on appeal. Regarding the second prong, the United
States Supreme Court has held that the prosecutor need not offer “an
explanation that is persuasive, or even plausible.” Purkett v. Elem, 514 U.S.
765, 768 (1995). “At this second step of the inquiry, the issue is the facial
validity of the prosecutor’s explanation. Unless a discriminatory intent is
inherent in the prosecutor’s explanation, the reason offered will be deemed
race-neutral.” Id. (quoting Hernandez v. New York, 500 U.S. 352, 360
(1991)). Here, the prosecutor said he struck the juror because of her
education level. The trial court properly accepted that explanation as race-
neutral.
As to the third prong, “[t]he trial court ultimately makes a determination
of whether the defense has carried its burden of proving purposeful
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discrimination.” Commonwealth v. Sanchez, 36 A.3d 24, 44 (Pa. 2011),
cert. denied, 585 U.S. 833 (2012). “A finding by the trial court as to
discriminatory intent must be given great deference on appeal.”
Commonwealth v. Simmons, 662 A.2d 621, 631 (Pa. 1995); see also,
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Here, the trial court noted
that the prosecution did not use peremptory challenges to strike two other
jurors who had only a high school education. The court concluded the
prosecution could have had other reasons for not striking those jurors.
Appellant argues the prosecutor’s explanation was not credible because the
prosecutor failed to strike other jurors who lacked college degrees. Appellant
also notes that the black juror held a management level position at a retail
store, thus indicating her sufficient intellectual ability to understand
constructive possession.
As the foregoing makes clear, the defense bears the ultimate burden of
proving purposeful discrimination after the prosecution offers a race-neutral
explanation. Appellant has established that the prosecutor struck the only
black juror because she lacked a college education, but failed to strike white
jurors who lacked college educations. Presumably, for this reason, the trial
court found a prima facie case of discrimination. The trial court ultimately
found nothing more than a prima facie case, and we agree. Appellant elicited
no evidence about the other qualifications of the jurors who lacked college
educations. We therefore cannot assess whether the prosecutor had race
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neutral reasons for deeming them to be qualified, despite their lack of a
college education. As a result, we have little to go on but the trial court’s
assessment of the prosecutor’s credibility, an assessment to which we owe
great deference. We therefore will not disturb the trial court’s ruling.
Next, Appellant argues the trial court erred in admitting hearsay
evidence to establish Appellant’s identity. Admissibility of evidence rests
within the sound discretion of the trial court. Commonwealth v. Chmiel,
738 A.2d 406, 414 (Pa. 1999), cert. denied, 528 U.S. 1131 (2000). We will
reverse only if the trial court abuses its discretion. Id. Instantly, the
Commonwealth introduced a certified copy of a 1995 jury verdict slip
indicating Appellant was found guilty of possession with intent to deliver a
controlled substance (“PWID”).2 The witness who introduced the verdict slip
also testified to Appellant’s name, date of birth, and social security number.
Appellant claims that this information appeared in the criminal complaint
related to the 1995 conviction, but did not appear in the verdict slip. Thus,
Appellant claims the Commonwealth failed to produce admissible evidence
identifying him as the person convicted of PWID in 1995. The trial court relied
on 42 Pa.C.S.A. §§ 6103 and 6104, regarding evidence of official records. The
Commonwealth cites Pa.R.E. 902, regarding self-authenticating public
documents. Appellant responds that these rules are inapplicable because the
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2 35 P.S. § 780-113(a)(30).
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Commonwealth did not introduce any document properly identifying him as
the party convicted in 1995. We need not analyze the applicable law in any
detail. Appellant’s argument fails because he testified in his own defense and
admitted that he had a prior conviction in 1995. N.T. Trial, 6/16/16, at 30.
Next, Appellant argues the Commonwealth failed to produce sufficient
evidence in support of his conviction under § 6105. The applicable standard
of review is as follows:
When evaluating a sufficiency claim, our standard is
whether, viewing all the evidence and reasonable inferences in the
light most favorable to the Commonwealth, the factfinder
reasonably could have determined that each element of the crime
was established beyond a reasonable doubt. This Court considers
all the evidence admitted, without regard to any claim that some
of the evidence was wrongly allowed. We do not weigh the
evidence or make credibility determinations. Moreover, any
doubts concerning a defendant’s guilt were to be resolved by the
factfinder unless the evidence was so weak and inconclusive that
no probability of fact could be drawn from that evidence.
Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010), appeal
denied, 29 A.3d 796 (Pa. 2011). Appellant argues the Commonwealth failed
to prove beyond a reasonable doubt that Appellant was in constructive
possession of the firearm in question.
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.
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Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013), appeal
denied, 78 A.3d 1090 (Pa. 2013).
The record reflects that Appellant lived in the home of Danielle Dallas,
his ex-girlfriend. Appellant and Dallas lived in the home together for 8 or 9
years, and Appellant rented the home after Dallas moved out. The gun in
question was registered to Dallas, but she moved out of the home
approximately a year and a half before Appellant’s arrest and left it behind.
Police found it in the master bedroom on a shelf. A wallet and pill bottles with
Appellant’s identifying information also were found in the master bedroom.
Appellant testified that he did not sleep in the master bedroom after Dallas
moved out, but the guns were within easy reach of the bed. Given that Dallas’
firearm remained in the house after she moved out and was found in the
master bedroom along with Appellant’s wallet and pill bottles, we conclude
that the record contains more than sufficient evidence to prove Appellant’s
constructive possession of the gun. See, e.g., Commonwealth v. Walker,
874 A.2d 667, 678 (Pa. Super. 2005) (finding sufficient evidence of
constructive possession where a gun was found in a basement where the
defendant kept some of his clothes); Commonwealth v. Keefer, 487 A.2d
915, 918 (Pa. Super. 1985) (finding sufficient evidence of constructive
possession where a document containing the defendant’s name and address
was found on a dresser in the same bedroom as the contraband).
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Finally, Appellant argues that his convictions are contrary to the weight
of the evidence. Our standard of review is well settled:
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. Rather, the
role of the trial judge is to determine that notwithstanding all the
facts, certain facts are so clearly of greater weight that to ignore
them or to give them equal weight with all the facts is to deny
justice. It has often been stated that a new trial should be
awarded when the jury’s verdict is so contrary to the evidence as
to shock one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail.
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.
Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (internal
citations and quotation marks omitted; emphasis in original).
Appellant argues the trial court erred in denying his motion for a new
trial because the trial court misconstrued the evidence. According to the trial
court, Dallas testified that she owned two handguns, a .25 and a .45, which
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she kept under the mattress in the master bedroom. Thus, the record
supports an inference that Appellant moved the gun in question, the .45, from
the mattress to the shelf. Appellant notes that Dallas actually testified that
she kept the .25 under the mattress and the .45 on the shelf where police
found it. Police did not find the .25. Thus, he contends, the record does not
support an inference that Appellant moved the .45 from under the mattress
sometime after Dallas moved out.
In our view, this discrepancy is not meaningful. Dallas left the home
and the .45 a year and a half prior to Appellant’s arrest. The .45 was on a
shelf in plain view in a bedroom where Appellant stored his pill bottles and
wallet, and within reach of the bed where Appellant slept while Dallas still lived
there. Furthermore, the jury was not required to credit Appellant’s testimony
that he stopped sleeping in the master bedroom after Dallas moved out. A
finding that Appellant was in constructive possession of the .45 is not against
the weight of the evidence. We discern no abuse of discretion in the trial
court’s decision to deny a new trial.
In summary, we have found no merit in any of Appellant’s arguments.
We therefore affirm the judgment of sentence.
Judgment of sentence affirmed.
President Judge Emeritus Bender joins the memorandum.
Judge Olson concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2017
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