Com. v. Brown, N. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
NATHAN EDWARD BROWN
Appellant No. 277 WDA 2015
Appeal from the Judgment of Sentence September 3, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013601-2013
BEFORE: BOWES, DUBOW AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J: FILED JUNE 24, 2016
Nathan Edward Brown appeals from the judgment of sentence of four
to eight years imprisonment that the trial court imposed after a jury
convicted Appellant of a violation of the Uniform Firearms Act (“VUFA”),
persons not to possess firearms, 18 Pa.C.S. § 6105. We affirm.
We first examine the evidence supporting the jury’s verdict. In 2012,
Appellant was under the supervision of the Pennsylvania Board of Probation
and Parole (the “Board”), but had absconded from oversight. On December
23, 2012, Ashley Munda called police at about 3:00 a.m. and told them that
Appellant entered her apartment on 209 Station Street, Penn Hills Township,
and, utilizing a silver gun, robbed her and Sandra Leski. Ms. Munda
reported that she knew that the perpetrator was Appellant since she had
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“multiple encounters with [Appellant] and he has been at her apartment in
the past.” Affidavit of Probable Cause, 1/4/13, at 2.
An arrest warrant was issued in connection with that incident. On
January 8, 2013, Appellant’s parole officer and three Penn Hills Township
police executed the warrant by proceeding to 118 Clinton Drive, Penn Hills
Township, the residence Appellant had registered with the Board.
Appellant’s sister allowed the officers into the house, stating that Appellant
was in his bedroom. Police discovered Appellant in the designated location,
placed him under arrest, and searched the room, discovering packets of
heroin and a .22 caliber silver gun in a backpack underneath the bed.
At the Penn Hills Township police station, Detective Anthony Diulus
gave Appellant a copy of the criminal complaint underlying the arrest
warrant and disseminated Miranda warnings. Appellant signed the
warnings and waived his rights. Appellant thereafter admitted to Detective
Diulus that he possessed the gun and drugs discovered in the backpack. As
to the weapon, Appellant told Detective Diulus that, about eighteen months
before January 8, 2013, Appellant found the gun in debris in a dumpster
outside the house next door to 118 Clinton Drive. Appellant told Detective
Diulus that “he decided to keep [the firearm] because of some incidents that
have come up in his past of his life that he didn’t feel comfortable being out
without a firearm in his possession.” N.T. Trial, 4/14-16/14, at 87.
Appellant then admitted that he always carried the gun on his person, either
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in the backpack or his pants, and acknowledged that he “knew he wasn’t
allowed to possess” the weapon. Id. The Commonwealth also presented
evidence that Appellant had a prior robbery conviction.
At criminal action number 658 of 2013, Appellant was charged with
the VUFA violation at issue in this appeal as well as two counts of robbery
and one count each of burglary, possession of a controlled substance, and
possession of a controlled substance with intent to deliver (“PWID”). That
action encompassed the crimes Appellant allegedly committed on December
23, 2012, as well as the offenses arising from the January 8, 2013 execution
of the arrest warrant. Thereafter, the trial court severed the VUFA count
from the other charges, and Appellant was tried by a jury on that offense at
the present criminal action number, 13601 of 2013. Appellant proceeded
pro se with the assistance of standby counsel, and was found guilty of the
VUFA charge. On September 3, 2014, Appellant was sentenced to four to
eight years imprisonment. This timely, counseled appeal followed.
Appellant raises these issues:
I. Whether the evidence presented in this matter was legally
insufficient to sustain Appellant’s conviction of possession of a
firearm prohibited.
II. Whether the jury’s verdict was against the weight of the
evidence.
III. Whether the trial court erred in denying Appellant’s post-
sentence motions.
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IV. Whether the trial court erred in denying Appellant’s motion to
suppress the evidence without a hearing.
V. Whether the trial court erred in denying Appellant’s oral
motion for a continuance prior to the start of trial.
VI. Whether the trial court erred in denying Appellant’s motion
for judgment of acquittal as the evidence presented at trial
was legally insufficient (sic) to show that Appellant had actual
or constructive possession of the firearm.
VII. Whether the trial court erred in denying Appellant’s request
for a failure to call a potential witness jury instruction.
Appellant’s brief at 8 (capitalization omitted).
We address the averments seriatim. The applicable standard of review
of Appellant’s first claim is well settled:
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
[that of] 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 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 witnesses and the
weight of the evidence produced, is free to believe all, part or
none of the evidence.
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Commonwealth v. Irvin, 134 A.3d 67, 75-76 (Pa.Super. 2016) (citation
omitted).
The pertinent section of VUFA provides, “A person who has been
convicted of an offense enumerated in subsection (b) [which includes the
crime of robbery], within or without this Commonwealth . . . shall not
possess, use, control, sell, transfer or manufacture . . . a firearm in this
Commonwealth.” 18 Pa.C.S. § 6105(a). Appellant’s specific contention is
that the Commonwealth failed to prove that he possessed the firearm in
question. Since the gun was not found on Appellant’s person, the
Commonwealth had to establish that he constructively possessed it.
Commonwealth v. Roberts, 133 A.3d 759, 767 (Pa.Super. 2016) (where
an item that a person is prohibited from possessing is not found on the
defendant’s body, the Commonwealth must demonstrate that the defendant
constructively possessed it). As we observed in Roberts,
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.
Id. at 767-68.
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In the instant case, the totality of the circumstances were as follows.
The gun was found in a backpack underneath a bed in a room identified as
Appellant’s bedroom. It was given to Detective Diulus, to whom Appellant
openly confessed that, when in public, he consistently carried the weapon on
his person, either in his pants or a backpack, for his own protection.
Appellant admitted that he possessed the firearm in question for
approximately eighteen months and was aware that he was not permitted to
do so. We thus conclude that the evidence was sufficient to support the
jury’s finding that Appellant had the power to control the firearm and the
intent to exercise that control, and reject this challenge to the sufficiency of
the evidence.
Appellant next levels a weight-of-the-evidence claim, which was
preserved in his post-sentence motion. When we review such a contention,
we do not actually examine the underlying question of whether the
conviction was against the weight of the evidence; instead, we review the
trial court’s exercise of discretion in resolving the averment.
Commonwealth v. Leatherby, 116 A.3d 73 (Pa.Super. 2015). This type
of review is necessitated by the fact that the trial judge heard and saw the
evidence presented. Id. Indeed, “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.” Id. at 82. A new trial is
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warranted in this context only when the verdict is “so contrary to the
evidence that it shocks one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to prevail.”
Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014).
Appellant contends that the jury’s verdict was contrary to the weight
of the evidence presented at trial because the officer who discovered the
weapon did not testify at trial. Instead, another officer involved in the
search described where it was located. Appellant also claims that his
confession should be discounted since it was not recorded or transcribed.
However, the jury was free to accept Detective Diulus’ testimony that
Appellant admitted to carrying the gun on his person for over a year and the
report of Penn Hills Township Police Officer Joseph Blaze, who participated in
the search, that the gun was discovered in Appellant’s bedroom. The verdict
herein was not so contrary to the evidence that it shocks one’s sense of
justice. We perceive of no abuse of discretion on the part of the trial judge
in rejecting Appellant’s weight claim.
Appellant’s third allegation is that the trial court erred in denying his
post-sentence motion. This position relates to Appellant’s parole officer,
Andrew Barnes, who participated in the January 8, 2013 search and found
the gun in the backpack. At the hearing on his post-sentence motion,
Appellant argued that the jury should have been informed that Mr. Barnes
had been fired by the Board after falsifying documents and that he also had
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been charged with a crime. Appellant contended that the fact that Mr.
Barnes falsified documents and committed crimes may have rendered
incredible his report to fellow police officers that the gun in question was
found in the backpack in Appellant’s room. This evidence as to Barnes had
been ruled inadmissible prior to trial.
We observed that, “In reviewing a trial court's ruling on the
admissibility of evidence, our standard of review is one of deference.”
Commonwealth v. Belknap, 105 A.3d 7, 9 (Pa.Super. 2014). The trial
court has the discretion to determine the admissibility of evidence, and this
Court does not reverse such a ruling unless that discretion is abused. Id.
In the present matter, Mr. Barnes did not testify at Appellant’s trial. Officer
Blaze told the jury about the events that occurred on January 8, 2013.
Officer Blaze personally observed the firearm in question in Appellant’s
bedroom. N.T. Trial, 4/14-16/14, at 62. Additionally, another Penn Hills
Township police officer was present when the backpack and gun were
recovered. Id. at 66. Appellant also admitted to Detective Diulus that the
gun was his and that he often kept it in the backpack. We conclude that the
information about Mr. Barnes was inconsequential and irrelevant and that
the trial court did not abuse its discretion in its evidentiary ruling.
Appellant’s fourth allegation is that the trial court erred in denying his
motion to suppress the evidence. There are three subsidiary positions raised
in connection with this averment. Appellant suggests that there was not a
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suppression hearing on his motion, maintains that the search leading to the
recovery of the gun was unconstitutional, and posits that his confession to
Detective Diulus about possession of the weapon should have been
suppressed. The disposition of the other charges filed at action 658-2013 is
pertinent to Appellant’s present suppression claims. First, there was in fact
a hearing. Before it severed the present VUFA charge from the other
offenses, the trial court conducted a hearing on Appellant’s suppression
motion. Commonwealth v. Brown, 2016 WL 686482 (Docket number 885
WDA 2014) (Pa.Super. Feb. 19, 2016) (unpublished memorandum at 16).
Hence, we reject the position that a hearing was not held.
Additionally, this Court has specifically ruled that the search in
question was constitutional and that Appellant’s statements to Detective
Diulus were not obtained in violation of his Fifth Amendment right against
incrimination. Id. As noted, Appellant was charged at criminal action 658-
2013 with the VUFA offense as well as robbery, burglary, PWID, and
possession of a controlled substance. The drug charges were premised upon
the heroin discovered in the backpack where the gun at issue herein was
recovered.
At the police station, Appellant made admissions to Detective Diulus
about the heroin during the same interrogation that led to Appellant’s
inculpatory remarks about his possession of the gun. Specifically, Appellant
told Detective Diulus that the heroin belonged to him and that he sold it
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when he needed money. Before the VUFA charge was severed, in his
suppression motion, Appellant maintained that the search of his backpack
was unconstitutional and that his statements admitting to possession of the
gun and drugs should have been suppressed. After his suppression motion
was denied and severance on the VUFA charge was granted, Appellant
proceeded to a jury trial on the charges pending at case number 658-2013.
The jury convicted him of PWID and possession of a controlled substance,
but acquitted him of the robbery and burglary offenses.
Appellant filed an appeal from the judgment of sentence imposed on
the drug convictions. Id. Therein, Appellant raised the same challenges
that he now raises in the present appeal, i.e., that the search of his bedroom
was unconstitutional and that his admissions to Detective Diulus at the
police station should have been suppressed. The prior Brown panel
specifically rejected those positions, upheld the constitutionality of the
search, and ruled that his statements were not obtained in violation of his
Fifth Amendment right against self-incrimination. Id.
We thus conclude herein that the law of the case doctrine applies.
“This doctrine refers to a family of rules which embody the concept that a
court involved in the later phases of a litigated matter should not reopen
questions decided by another judge of that same court or by a higher court
in the earlier phases of the matter.” Commonwealth v. Starr, 664 A.2d
1236, 1331 (Pa. 1995) (citations omitted). The doctrine provides, in
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pertinent part, that “upon a second appeal, an appellate court may not alter
the resolution of a legal question previously decided by the same appellate
court.” Id. The applicable legal precept is that “judges of coordinate
jurisdiction sitting in the same case should not overrule each other’s
decisions.” Id. In the prior appeal, a panel held that the same search at
issue herein was valid and that the suppression court properly refused to
suppress Appellant’s statements to Detective Diulus. The facts and issues
are identical to those litigated in the Brown decision, filed on February 19,
2016, and the law of the case doctrine compels us to affirm the suppression
court’s rulings on the search’s validity and the admissibility of Appellant’s
statements. See Commonwealth v. Jones, 858 A.2d 1198 (Pa.Super.
2004).
Next, Appellant claims that the trial court erred in denying a motion for
a continuance that he made at trial. “The grant or denial of a motion for a
continuance is within the sound discretion of the trial court and will be
reversed only upon a showing of an abuse of discretion.” Commonwealth
v. Antidormi, 84 A.3d 736, 745 (Pa.Super. 2014) (quoting
Commonwealth v. Boxley, 948 A.2d 742, 746 (Pa. 2008)). If the
defendant levels “a bald allegation of an insufficient amount of time to
prepare,” such allegation “will not provide a basis for reversal of the denial
of a continuance motion.” Antidormi, supra at 745 (quoting
Commonwealth v. Ross, 57 A.3d 85, 91 (Pa.Super. 2012)). To prevail on
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a claim that a continuance was improperly denied, the “appellant must be
able to show specifically in what manner he was unable to prepare for his
defense or how he would have prepared differently had he been given more
time.” Antidormi, supra at 745 (quoting Ross, supra at 91).
The following facts are relevant. After a jury had been selected,
Appellant decided to proceed pro se and then demanded a continuance to
“prepare an intelligent defense.” N.T. 4/14-16/14 at 10. The
Commonwealth witnesses were present and ready to testify. The trial court
found Appellant’s request was dilatory and unnecessary in that counsel had
adequately prepared him for trial. We perceive of no abuse of discretion
herein. Appellant’s issue necessarily fails since, on appeal, he does not
demonstrate how he could have prepared for a trial differently if given more
time. The gun was found in his bedroom in a backpack, and he admitted
that he carried the gun on his person for eighteen months prior to its
discovery.
Appellant’s sixth issue on appeal is that the trial court erred in denying
his motion for judgment of acquittal in that there was insufficient evidence
to establish that he constructively possessed the gun. This claim is a
repetition of the first one presented on appeal. As previously analyzed, the
proof adduced by the Commonwealth’s evidence at trial was sufficient to
sustain the possession element of the VUFA conviction.
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Lastly, Appellant alleges that the trial court erred in denying his
request for a missing witness jury instruction as to Mr. Barnes.
In reviewing a challenge to the trial court's refusal to give a
specific jury instruction, it is the function of this Court to
determine whether the record supports the trial court's decision.
In examining the propriety of the instructions a trial court
presents to a jury, our scope of review is to determine whether
the trial court committed a clear abuse of discretion or an error
of law which controlled the outcome of the case. . . . The trial
court is not required to give every charge that is requested by
the parties and its refusal to give a requested charge does not
require reversal unless the Appellant was prejudiced by that
refusal.
Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa.Super. 2013). The
following principles underlie a meritorious position that the proof warrants an
instruction that an adverse inference can be drawn from a party’s failure to
present a witness:
When a potential witness is available to only one
of the parties to a trial, and it appears this witness
has special information material to the issue, and
this person's testimony would not merely be
cumulative, then if such party does not produce the
testimony of this witness, the jury may draw an
inference that it would have been unfavorable.
Commonwealth v. Manigault, 501 Pa. 506, 510-11, 462 A.2d
239, 241 (1983).
....
To invoke the missing witness instruction against the
Commonwealth, the witness must only be available to the
Commonwealth[.]
Commonwealth v. Boyle, 733 A.2d 633, 638-39 (Pa.Super. 1999).
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In this case, Appellant failed to establish that Mr. Barnes was available
only to the Commonwealth. Appellant could have subpoenaed Mr. Barnes
himself if he wanted to present him as a witness. Additionally, there is no
indication that Mr. Barnes, who participated in a search witnessed by other
police officers, had special information. Finally, Appellant’s confessions were
made to Detective Diulus at the police station, and, due to those
confessions, Mr. Barnes’ testimony was not material. Therefore, the trial
court did not err in denying Appellant’s request for a missing witness jury
instruction.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2016
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