Com. v. Hopkins, O. ( 2023 )

J-S37037-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OMAR HOPKINS :
:
Appellant : No. 513 EDA 2023
Appeal from the Judgment of Sentence Entered February 21, 2023
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0003110-2022
BEFORE: BENDER, P.J.E., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 27, 2023
Omar Hopkins (Appellant) appeals from the judgment of sentence
imposed after the trial court convicted him of persons not to possess firearms,
firearms not to be carried without a license, carrying firearms on public streets
in Philadelphia; and the summary offense of carrying a loaded weapon.1 We
affirm.
The trial court summarized the following evidence:
At a bench trial held on December 14, 2022, Police Officer
David Allen testified that on February 22, 2022, at around 4:00
p.m., he was involved in the stop of a stolen car near Kensington
and East Lehigh Avenues in Philadelphia. N.T. 12/14/22 at 5.
[Appellant] was in the back seat of the car. Id. at 8. While the
car was coming to a stop, Appellant jumped out of the car and ran
away. Id. at 7-8. Officer Allen chased Appellant on foot for about
three blocks, never losing sight of him. Id. at 8-9. While they
were running, Officer Allen saw Appellant reaching toward his
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1 See 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 6108, 6106.1(a).
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waistband. Id. at 8, 9. Officer Allen then saw Appellant take
something from his waist area and throw it onto the roof of a
building at 1812 East Somerset Street. Id. at 13-14. Officer Allen
could see the color and shape of the object as it flew through the
air, and heard it make a metallic noise as it hit the roof. Id. at
14. Based on his five years of service as a police officer, in which
he had made hundreds of firearms arrests, Officer Allen identified
the object Appellant threw as a firearm with an extended
magazine. Id. at 6, 9-10. While still pursuing Appellant, Officer
Allen radioed to his colleagues that Appellant had tossed a firearm
onto the roof of 1812 East Somerset Street. Id. at 10. Officer
Allen apprehended Appellant at the corner of Somerset [Street]
and Kensington [Avenue], handcuffed him, and asked
[Southeastern Pennsylvania Transportation Authority] officers on
the scene to hold him. Id. at 10, 15-16.
Officer Allen then returned to 1812 East Somerset Street,
which was “right there by Kensington and Somerset.” Id. at 16.
By the time he returned, the owner of the building had set up a
ladder to the building’s roof. Id. at 16-17. Officer Allen climbed
the ladder, recovered a loaded Black Taurus 9mm handgun with
an extended magazine from the roof, and placed it on a property
receipt. Id. at 10-11. He estimated that about a minute and a
half passed between the time he saw Appellant throw the firearm
onto the roof and the time he retrieved the firearm. Id. at 11-12.
(On cross examination, Appellant’s attorney showed that the time
between the foot chase and the firearm recovery was likely a few
minutes longer than a minute and a half.) Id. at 15-17. … The
parties stipulated to the property receipt, to the firearm’s
operability, and to the fact that no DNA test was performed on the
firearm. Id. at 11, 21. The parties also agreed that Appellant did
not have a firearm permit and that he was statutorily ineligible for
one. Id. at 29-30.
Trial Court Opinion, 5/26/23, at 1-2 (citations to line numbers omitted).
The trial court subsequently convicted Appellant of the above-described
offenses. On February 21, 2023, the court sentenced Appellant to an
aggregate prison term of 30 to 60 months, followed by two years of probation.
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Appellant timely filed the instant appeal. Appellant and the trial court have
complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Whether the evidence introduced at trial and all reasonable
inferences derived from the evidentiary record, viewed in the
light most favorable to the Commonwealth as verdict winner,
is insufficient to establish all elements of possession of a
firearm prohibited … beyond a reasonable doubt?
2. Whether the evidence introduced at trial and all reasonable
inferences derived from the evidentiary record, viewed in the
light most favorable to the Commonwealth as verdict winner,
is insufficient to establish all elements of firearm not to be
carried without a license …?
3. Whether the evidence introduced at trial and all reasonable
inferences derived from the evidentiary record, viewed in the
light most favorable to the Commonwealth as verdict winner,
is insufficient to establish all elements of carry[ing] firearms
in public in Phila[delphia] … beyond a reasonable doubt?
4. Whether the evidence introduced at trial and all reasonable
inferences derived from the evidentiary record, viewed in the
light most favorable to the Commonwealth as verdict winner,
is insufficient to establish all elements of carrying a loaded
weapon … beyond a reasonable doubt?
5. Whether the [] verdict was against the weight of the evidence
as a matter of law to establish [Appellant’s] guilt beyond a
reasonable doubt on all charges?
Appellant’s Brief at 6-8 (capitalization modified, subparagraphs omitted).
In his first four issues, Appellant challenges the sufficiency of the
evidence. Appellant first assails the evidence regarding his conviction for
person not to possess firearms. Id. at 15. “Appellant argues that the
Commonwealth failed to present sufficient evidence to establish [he] actually
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or constructively possessed the firearm.” Id. at 16. Appellant asserts the
Commonwealth failed to present evidence of his dominion and control over
the firearm, and only established that he was present at the scene. Id. at 18.
According to Appellant,
the gun-in-question was found on a residential homeowner’s roof
for which [Appellant] did not have exclusive access or control.
Additionally, there was no DNA or fingerprint evidence of
[Appellant] on the gun-in-question and/or admitted at trail. As
such there was insufficient evidence to convict Appellant of
Persons Not to Possess Firearms, in violation of 18 Pa.C.S. § 6105.
Id.
When reviewing a sufficiency claim, this Court
must determine whether the evidence admitted at trial and
all reasonable inferences drawn therefrom, viewed in the light
most favorable to the Commonwealth as verdict winner,
is sufficient to prove every element of the offense beyond a
reasonable doubt. As an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder. Any question of doubt is for 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.
Commonwealth v. Martin, 297 A.3d 424, 434 (Pa. Super. 2023). “[A]
conviction may be sustained wholly on circumstantial evidence, and the trier
of fact—while passing on the credibility of the witnesses and the weight of the
evidence—is free to believe all, part, or none of the evidence.”
Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (citation
omitted).
The Crimes Code defines persons not to possess firearms as follows:
Offense defined.
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(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).2
“Illegal possession of a firearm may be shown by constructive
possession.” Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super.
2011). “Constructive possession is a legal fiction, a pragmatic construct to
deal with the realities of criminal law enforcement.” Commonwealth v.
Johnson, 26 A.3d 1078, 1093 (Pa. 2011) (citation omitted). “Constructive
possession has been defined as the ability to exercise a conscious dominion
over the [contraband]: the power to control the contraband and the intent to
exercise that control.” Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa.
1983). “Dominion and control means the defendant had the ability to reduce
the item to actual possession immediately or was otherwise able to govern its
use or disposition as if in physical possession.” Commonwealth v. Peters,
218 A.3d 1206, 1209 (Pa. 2019) (citation omitted). The “intent to maintain a
conscious dominion may be inferred from the totality of the circumstances.”
[A]lthough mere presence at a crime scene cannot alone sustain
a conviction for possession of contraband[,] a [fact finder] need
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2 As stated above, the parties agree Appellant is statutory ineligible to possess
a firearm.
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not ignore presence, proximity and association when presented in
conjunction with other evidence of guilt.
Commonwealth v. Vargas, 108 A.3d 858, 869 (Pa. Super. 2014) (internal
quotation marks and citation omitted). “[A]s with any other element of a
crime, constructive possession may be proven by circumstantial
evidence.” Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018).
At trial, Officer Allen testified that on February 22, 2022, between 4:00
and 4:30 p.m., he received a radio report about a stolen vehicle. N.T.,
12/14/22, at 5-6. According to Officer Allen, his supervisor was following
directly behind the suspect vehicle in a separate police cruiser. Id. at 7. When
Officer Allen’s supervisor attempted to “light it up”, the vehicle “took off, [and]
disregarded a red light at Kensington and Lehigh [Avenues].” Id. Officer
Allen testified,
We notified On Star, who was … also monitoring the vehicle, to
turn the vehicle off. They turned the vehicle off. And I
maneuvered my vehicle next to the stolen vehicle. My partner got
out of the vehicle and detained the driver of the vehicle.
Id. At that time, Officer Allen saw Appellant exit from the back seat of the
stolen vehicle. Id. at 7-8. Officer Allen pursued Appellant on foot for about
one and one-half minutes. Id. at 9. According to Officer Allen,
[d]uring the beginning of the foot pursuit, I noticed that the male
was reaching in his front waistband. So for my safety, I kept my
distance, but I still had eyes on [Appellant].
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Id. During the pursuit, Officer Allen saw Appellant toss what appeared to be
a firearm with an extended magazine onto the roof of 1812 East Somerset
Street. Id. at 9-10.
Based on Officer Allen’s testimony, the trial court concluded there was
sufficient evidence to establish Appellant’s constructive possession of the
firearm. The trial court explained:
[A]ccepting Officer Allen’s testimony as true, … the following
events happened over the course of a few minutes: Officer Allen
saw Appellant throw a firearm with an extended magazine onto
the roof of 1812 East Somerset Street and heard the firearm hit
the roof; Officer Allen radioed the location where he had seen
Appellant throw the firearm; and Officer Allen returned to 1812
East Somerset Street, climbed a ladder, and retrieved a firearm
from the roof that matched the description of the one he saw
Appellant throw.
These facts lead to only one reasonable conclusion: the firearm
Officer Allen saw Appellant throw is the same firearm that he
recovered from the roof a few minutes later. Any other
explanation is entirely implausible. The firearm could not have
been on the roof by happenstance; loaded weapons are not things
that people ordinarily leave lying around, particularly not on
rooftops. And to accept Appellant’s suggestion that the owner of
1812 East Somerset Street planted the firearm on the rooftop,
th[e c]ourt would have had to conclude that after the owner saw
Appellant run past and throw something, the owner quickly —
within the space of a few minutes — saw an opportunity to frame
Appellant (who was presumably a stranger to him), located a
loaded firearm that resembled the item that Officer Allen saw
Appellant throw, climbed a ladder to plant that loaded firearm on
the roof, and then directed Officer Allen to the roof so Officer Allen
could retrieve the firearm. Moreover, neither the firearm-on-
roof-by-coincidence scenario or the owner-planted-firearm
scenario explains what happened to the firearm that
Officer Allen saw Appellant throw.
[The Superior C]ourt’s precedents confirm that the
Commonwealth presented more than enough evidence to meet
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either a sufficiency or weight-of-the-evidence standard. See,
e.g., In re R.N., 951 A.2d 363, 369-70 (Pa. Super. 2008) (officer
saw defendant toss a metal object from a vehicle window right
before defendant crashed, police later recovered a firearm near
the crashed vehicle, and no other metal objects in the area could
have accounted for the object defendant tossed);
Commonwealth v. Mann, 820 A.2d 788, 793 (Pa. Super. 2003)
(officer saw defendant throw a black firearm into a vacant lot while
fleeing, and police recovered a black firearm from the lot that was
used in a shooting where defendant was a suspect) …. Therefore,
the Commonwealth’s evidence was sufficient ….
Trial Court Opinion, 5/26/23, at 5-6 (one citation and footnote omitted,
emphasis added). Mindful of our standard and scope of review, we agree that
the evidence is sufficient to establish Appellant’s constructive possession of
the firearm. See id.; see also Parrish, 191 A.3d at 36; Vargas, 108 A.3d
at 869; Cruz, 21 A.3d at 1253. Thus, Appellant’s first issue lacks merit.
Appellant’s second, third, and fourth issues are premised on the same
rationale, i.e., that the evidence is insufficient to establish his possession of
the firearm. Appellant’s Brief at 18-20. Because we conclude the
Commonwealth presented sufficient evidence to establish Appellant’s
constructive possession of the firearm, his second, third, and fourth issues do
not warrant relief.
In his final issue, Appellant argues the trial court’s verdicts are against
the weight of the evidence. Id. at 20. Appellant argues:
There was no DNA or fingerprint evidence of [Appellant] found on
the gun-in-question and/or admitted at trial. No reasonable jury[3]
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3 Appellant waived his right to a jury trial.
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could have found the Commonwealth’s witnesses credible.
Additionally, the homeowner-in-question never testified at trial
that the gun found on his roof by law enforcement was not put
there by him, thereby casting reasonable doubt on the testimony
of the Commonwealth’s witnesses who implicated [Appellant].
Id. at 22-23 (footnote added).
The Commonwealth argues that Appellant waived his weight challenge
because he did not file a post-sentence motion. Commonwealth’s Brief at 8.
Upon review, we agree.
Rule 607 of the Pennsylvania Rules of Criminal Procedure requires that
a weight claim be raised with the trial judge in a motion for a new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607. “The purpose of this rule is to make it clear that a challenge
to the weight of the evidence must be raised with the trial judge or it will
be waived.” Id. cmt.; accord Commonwealth v. Bond, 985 A.2d 810, 820
(Pa. 2009). As our Supreme Court explained,
[t]his rule is consistent with our standard of review in challenges
to the weight of the evidence, which this Court has articulated as
follows:
A motion for a new trial alleging that the verdict was against
the weight of the evidence is addressed to the discretion of
the trial court. An appellate court, therefore, reviews the
exercise of discretion, not the underlying question whether
the verdict is against the weight of the evidence. The
factfinder is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. The trial
court will award a new trial only when the jury’s verdict is so
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contrary to the evidence as to shock one’s sense of
justice. In determining whether this standard has been met,
appellate review is limited to whether the trial judge’s
discretion was properly exercised, and relief will only be
granted where the facts and inferences of record disclose a
palpable abuse of discretion.
Bond, 985 A.2d at 820 n.10 (citation omitted).
Appellant failed to raise his challenge to the weight of the evidence
before the trial court. Accordingly, it is waived. See id. at 820; see also
Pa.R.A.P. 302(a) (stating an issue cannot be raised for the first time on
appeal).
Judgment of sentence affirmed.
Date: 11/27/2023
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