Com. v. Johnson, J. ( 2021 )

J-A15045-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JERMAINE JOHNSON :
:
Appellant : No. 1913 EDA 2020
Appeal from the Judgment of Sentence Entered September 6, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002405-2015
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 27, 2021
Jermaine Johnson (“Johnson”) appeals from the judgment of sentence
entered following his conviction of persons not to possess, use, manufacture,
control, sell or transfer firearms (“persons not to possess”).1 We affirm.
The trial court summarized the relevant history underlying the instant
appeal as follows:
On January 28, 2015, at 6:55 in the morning, [o]fficers
responded to 9-1-1 calls for reported gunshots around 6058
Regent Street in the city and county of Philadelphia. Outside [of]
the property, [o]fficers found shell casings and a live rifle round.
Upon knocking on the door, an older occupant also named Mr.
Johnson [(“Mr. Johnson”)], of no relation to [Johnson], opened
the door and [o]fficers saw an additional live rifle round[,]
identical to the one outside[,] behind Mr. Johnson, inside [of] the
residence.
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1 See 18 Pa.C.S.A. § 6105(a)(1).
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Officers then entered the residence, which they learned to
be a boarding house, and discovered [Johnson] upstairs in the
bathroom with his girlfriend, Antionette Roberts [(“Ms. Roberts”)],
in the shower. [Johnson] and Ms. Roberts then indicated an
intention to enter the bedroom on the first floor, in the front of
the building[,] to change their clothing so that they could leave
the building. [An officer] asked them if the police could conduct
a sweep of the bedroom to secure the room before they entered
to change their clothing. [Johnson] and Ms. Roberts consented to
the search of the room. The door had previously been unlocked
and opened.
Upon [a] search of the room, a nine-millimeter black
handgun was recovered. The gun was recovered from a bag inside
a small mini-fridge inside the bedroom. At this time, the handgun
was secured in the bedroom and a search warrant [was applied
for, received and] executed. [Johnson subsequently was charged
with the above-described offense.]
[Johnson] appeared before [the trial court] on January 3,
2018, and April 27, 2018[,] for a waiver trial, at the conclusion of
which he was found guilty of [violating] Uniform Firearm Act
§ 6105, persons not to possess….
Trial Court Opinion, 12/28/20, at 1-2 (unnumbered) (citations omitted).
The trial court subsequently sentenced Johnson to three and one-half to
seven years in prison, followed by two years of probation. Johnson timely
filed a Notice of Appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of matters complained of on appeal.
Johnson presents the following claims for our review:
A. Did the [trial] court err in admitting the hearsay statements of
[Ms.] Roberts and [Mr. Johnson] regarding the rooms where
each person stayed in the house in question?
B. Was the evidence insufficient to sustain [Johnson’s] conviction
for [persons not to possess] in that the evidence failed to
establish beyond a reasonable doubt that [Johnson]
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constructively possessed the firearm in question[,] or was even
aware of the presence of the firearm?
Brief for Appellant at 4.
Johnson first claims that the trial court improperly admitted the hearsay
statements of Ms. Roberts and Mr. Johnson regarding the location of each
resident’s rooms in the boarding house. Id. at 9. Johnson asserts that, “[i]n
allowing in the hearsay statements of the non-testifying witnesses, the trial
court disregarded the rules against hearsay testimony and the accused[’s]
right to confront adverse witnesses.” Id. Johnson argues that
[t]he statements of the older Mr. Johnson were clearly hearsay.
Although the words of the older Mr. Johnson were never used, the
indirect implication of his statements [was] used as substantive
evidence in this matter. Specifically, the inference that the older
Mr. Johnson only had access to the upper room[,] and lacked
access to the room on the first floor, was made available by the
trial court allowing the officer to state that he searched a specific
room based upon a statement made by the gentle[man] who
opened the door.
Id. at 11. Johnson argues that this evidence went “directly to access and
control” of the firearm at issue. Id. According to Johnson, because Mr.
Johnson did not testify at trial, Mr. Johnson could not be impeached as to his
access to the room on the first floor. Id. Johnson asserts that the reference
to Mr. Johnson’s statement was substantive in nature and should have been
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excluded as hearsay. Id. Further, Johnson argues that the admission of this
evidence caused him prejudice.2 Id. at 11-12.
In its Opinion, the trial court set forth the relevant law, addressed
Johnson’s claim, and concluded that it lacks merit. See Trial Court Opinion,
12/28/20, at 4-6 (unnumbered). We agree with the sound reasoning of the
trial court, as set forth in its Opinion, and affirm on this basis with regard to
Johnson’s first claim. See id.;3 see also Commonwealth v. Fitzpatrick,
2021 Pa. LEXIS 3164, at *2 (Pa. filed July 23, 2021) (recognizing that, “if the
statement is intended to be used for some purpose other than establishing its
truth—i.e., to show the effect that the statement had on the listener[,] … then
it would not be hearsay and, consequently, would be admissible for that non-
truth purpose, subject to any other applicable evidentiary rules.”);
Commonwealth v. Dent, 837 A.2d 571, 582 (Pa. Super. 2003) (stating that
trial judges, sitting as fact finders, are presumed to ignore prejudicial evidence
in reaching a verdict, and to have disregarded inadmissible hearsay
testimony).
____________________________________________
2 In the Argument section of his brief, Johnson provides no further argument
regarding the alleged hearsay statements of Ms. Roberts.
3 Further, such evidence would be admissible to explain the officers’ course of
conduct. Commonwealth v. Estepp, 17 A.2d 939, 945 (Pa. Super. 2011)
(recognizing that “an out-of-court statement offered not for its truth but to
explain the witness’s course of conduct is not hearsay and thus, is not
excludable under the hearsay rule.” (citation and internal quotation marks
omitted)).
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In his second claim, Johnson challenges the sufficiency of the evidence
underlying his conviction of persons not to possess. Brief for Appellant at 12.
Johnson argues that, because the firearm was not found on his person, the
Commonwealth was required to prove that he constructively possessed the
firearm. Id. at 13. Johnson asserts that the Commonwealth presented no
evidence that he knew that a firearm was in the refrigerator, or even in the
room. Id. at 14. According to Johnson, he provided unequivocal testimony
that he did not live at the residence and would only stay there “from time to
time.” Id. Johnson points out that police found no clothing, shoes,
identifications cards or any other evidence that he lived at the residence. Id.
Further, Johnson directs our attention to the sworn Affidavit of Ms. Roberts
that she, in fact, owned the weapon, and that Johnson did not live at the
residence. Id. Johnson asserts that the Commonwealth solely relied on one
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piece of mail addressed to him at the residence,4 and his mere presence at
the residence on the day in question. Id. at 14-15.
In reviewing a challenge to the sufficiency of the evidence,
[t]he standard we apply … 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 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
[finder] 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. Fabian, 60 A.3d 146, 150-51 (Pa. Super. 2013) (citation
omitted). “This standard of deference is not altered in cases involving a bench
trial, because the province of a trial judge sitting without a jury is to do what
a jury is required to do.” Commonwealth v. Lee, 956 A.2d 1024, 1027 (Pa.
Super. 2008) (internal quotation marks and citation omitted).
____________________________________________
4 At trial, Philadelphia Police Detective Robert Conway (“Detective Conway”)
testified regarding his execution of the search warrant at 6058 Regent Street.
N.T., 4/27/18, at 57. Detective Conway testified that he recovered a piece of
mail addressed to Johnson at 6058 Regent Street address. Id. at 61. That
piece of mail was from the District Attorney’s Office. Id.
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To establish the crime of persons not to possess firearms, the
Commonwealth must prove that the defendant was convicted of an offense
enumerated under subsection (b) of the statute, and possessed, used,
controlled, sold, transferred, or manufactured or obtained a license to use,
control, sell, transfer, or manufacture a firearm. See 18 Pa.C.S.A.
§ 6105(a)(1).
Johnson does not dispute that he was convicted of an offense
enumerated under subsection 18 Pa.C.S.A. § 6105(b). In reviewing whether
the evidence established Johnson’s possession of the firearm, we are
cognizant that,
[w]hen contraband is not found on the defendant’s person, the
Commonwealth must establish “constructive possession,” that is,
the power to control the contraband and the intent to exercise
that control. The fact that another person may also have control
and access does not eliminate the defendant’s constructive
possession …. As with any other element of a crime, constructive
possession may be proven by circumstantial evidence. The
requisite knowledge and intent may be inferred from the totality
of the circumstances.
Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super. 2018)
(citations omitted). “Constructive possession is an inference arising from a
set of facts that possession of the contraband was more likely than not.” Id.In its Opinion, the trial court addressed Johnson’s claim and concluded
that it lacks merit. See Trial Court Opinion, 12/28/20, at 6-8 (unnumbered).
We agree with the sound reasoning of the trial court and affirm on this basis
with regard to Johnson’s challenge to the sufficiency of the evidence. See id.-7-
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Judgment of sentence affirmed.
Judge Bowes joins the memorandum.
Judge Stabile concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2021
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Circulated 09/09/2021 09:25 AM