Com. v. Howard, C.

J-S40033-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CRAIG ANTONIO HOWARD :
:
Appellant : No. 156 WDA 2019
Appeal from the Judgment of Sentence Entered January 10, 2019
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0002133-2016
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 16, 2019
Craig Antonio Howard (Howard) appeals from the judgment of sentence
entered in the Court of Common Pleas of Fayette County (trial court) following
his convictions by a jury of possession of a firearm prohibited and possession
of a controlled substance.1 Howard contends that there was insufficient
evidence of those crimes before the jury to convict him, and that the trial
court erred in admitting into evidence recorded telephone calls between
Howard and his girlfriend about the purchase of a firearm. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 Howard was convicted pursuant to 18 Pa.C.S. § 6105(a)(1) (unlawful
possession of a firearm), and 35 Pa.C.S. § 780-113(a)(16) (unlawful
possession of a controlled substance). At sentencing, the trial court imposed
an aggregate prison term of 48 to 96 months as to those two counts.
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The summary of facts below is taken from the trial court’s opinion:
On 17 September, Alice Clark was residing in a camper with her
boyfriend, [Howard], in Ronco, Fayette County, Pennsylvania. On
that date, she and [Howard] were doing crack, he was holding his
gun, and the gun went off striking her in her leg. She was treated
at the hospital and gave a voluntary statement to the police
[recounting the above facts] but did not want assault charges filed
against [Howard] because she believed the shooting was an
accident. The gun was in the trunk of her vehicle and it was turned
over to police. She further testified that [Howard] wanted her to
take responsibility for the gun because she would only get a fine.
[Howard] initially denied shooting his girlfriend but then admitted
shooting her and then provided the officers with a written
confession. A stipulation was entered by the parties that
[Howard] was a member of a class of persons who are unable to
possess a firearm. [Howard] was taken into custody and three
Vicodin, a Schedule II controlled substance, tablets were located
in his pants pocket.
When [Howard] testified [at trial,] he denied possessing any gun.
He testified that he was trying to get his girlfriend to stop smoking
crack, she got crazy and began swinging a bag with the gun in it.
He stated that the gun, while in the bag, went off and shot her but
he never possessed the gun. The Commonwealth presented tape
recordings of telephone conversations between [Howard] and his
girlfriend [while he was incarcerated, including] . . . a conversation
that was made between [Howard] and his girlfriend regarding the
purchase of a gun.
Trial Court Opinion, 3/27/2019, at 1-2 (internal citations omitted).
After the trial court entered the judgment of sentence, Howard timely
appealed raising three issues.2
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2 Both Howard and the trial court complied with Pa.R.A.P. 1925.
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I.
First, Howard contends that the trial court abused its discretion by
permitting the Commonwealth to play for the jury taped prison telephone
recordings between Howard and his girlfriend regarding Howard’s purchase of
a gun. Despite arguing in his brief that those recordings were inadmissible
hearsay,3 Howard did not object on that basis at trial, and as a result this
issue, is not a preserved for appeal. See Pa.R.A.P. 302(a) (party must make
a timely and specific objection at trial in order to preserve an issue for
appellate review); Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa.
2008) (explaining that issues are waived if not preserved at trial by a
contemporaneous objection).
Not only was this issue not raised below, Howard did not adequately
present this evidentiary claim for appellate review. He failed to identify the
specific statements he objects to and how they were prejudicial, and the
certified record does not even contain a transcript of the subject recordings.
Because the issue was not preserved below and, even if it was, not adequately
preserved for our review, this claim is without merit.4
____________________________________________
3 See Pa.R.E. 801(c) (defining hearsay as an out-of-court statement offered
to prove the truth of the matter asserted).
4 Additionally, to the extent Howard contends his own statements were
hearsay, they would be admissible under the “party admission” exception to
the hearsay rule. See Pa.R.E. 803(25)(a) (making hearsay admissible if
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II.
Howard next contends that the Commonwealth failed to present
sufficient evidence that he possessed a firearm when he was not permitted to
do so.5 The offense is defined as: “A person who has been convicted of an
offense enumerated in subsection (b), within or without this Commonwealth,
____________________________________________
statement is offered against an opposing party who himself made the
statement).
5 The applicable standard of review is as follows:
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable to
the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it establishes
each material element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by 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.
The Commonwealth may sustain its burden by means of wholly
circumstantial evidence. Accordingly, [t]he fact that the evidence
establishing a defendant’s participation in a crime is circumstantial
does not preclude a conviction where the evidence coupled with
the reasonable inferences drawn therefrom overcomes the
presumption of innocence. Significantly, we may not substitute
our judgment for that of the fact finder; thus, so long as the
evidence adduced, accepted in the light most favorable to the
Commonwealth, demonstrates the respective elements of a
defendant’s crimes beyond a reasonable doubt, the appellant’s
convictions will be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)
(internal quotations and citations omitted).
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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. § 6105(a)(1).
The Commonwealth presented the testimony of Howard’s girlfriend, who
identified him as the person who shot her in the leg. The jury also heard a
recording of the couple discussing a gun’s purchase not long after Howard’s
arrest. Howard admitted at trial that he made the statements in the recording
and he gave police a written admission that he shot his girlfriend. He also
stipulated that he is a member of a class of persons who cannot possess a
firearm in the Commonwealth. If accepted by the jury, the above facts
establish all of the elements outlined in 18 Pa.C.S. § 6105(a)(1). Thus,
Howard’s sufficiency ground as to this offense has no merit.
III.
Finally, Howard claims that the Commonwealth failed to present
sufficient evidence that he possessed a controlled substance without
authorization. This crime is defined in pertinent part as:
Knowingly or intentionally possessing a controlled or counterfeit
substance by a person not registered under this act . . ., unless
the substance was obtained directly from, or pursuant to, a valid
prescription order or order of a practitioner, or except as otherwise
authorized by this act.
35 Pa.C.S. § 780-113(a)(16) (emphasis added).
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The jury in this case heard evidence that police found three pills in
Howard’s pocket. An officer identified the pills as Vicodin, a controlled
substance. Howard does not dispute that he possessed three pills of Vicodin.
He instead argues only that the Commonwealth did not offer any proof that
he did not have a prescription. See Appellant’s Brief, at 14.
Although the Commonwealth presented no evidence regarding
Howard’s lack of a prescription for Vicodin, it was Howard who carried the
initial burden of production that he had a prescription. See Commonwealth
v. Sojourner, 408 A.2d 1108, 1113 (Pa. Super. 1979) (explaining that in
controlled substance prosecutions, the defendant bears the initial burden of
production as to his authorization before the Commonwealth has the burden
of proving a lack of authorization beyond a reasonable doubt). “[B]efore the
prosecution must disprove the accused was authorized to possess narcotics
. . ., the accused must establish some credible evidence of such
authorization.” Commonwealth. v. James, 46 A.3d 776, 780 (Pa. Super.
2012) (citing Sojourner, 408 A.2d at 1113); see also Commonwealth v
Daniels, 422 A.2d 196, 198 (Pa. Super. 1980) (holding that Commonwealth
may carry its burden in a controlled substance prosecution by proving actual
or constructive possession alone).
Howard did not present any evidence at trial that he had a prescription
for Vicodin. As a result, the burden of proof as to that element did not shift
to the Commonwealth. Based on his undisputed possession of the controlled
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substance, the jury could conclude that Howard committed the offense. Thus,
Howard’s convictions must stand.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2019
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