Com. v. Jones, J.

J-S06009-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMAINE JONES,
Appellant No. 3445 EDA 2013
Appeal from the Judgment of Sentence Entered November 12, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014034-2011
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 26, 2015
Appellant, Jamaine Jones, appeals from the judgment of sentence of
five to ten years’ incarceration, imposed after a jury convicted him of
persons not to possess a firearm, 18 Pa.C.S. § 6105. Appellant challenges
the sufficiency of the evidence to sustain his conviction. We affirm.
Appellant was arrested and charged with the above-stated offense on
October 3, 2011. His jury trial commenced on September 5, 2013. At trial,
the Commonwealth presented, inter alia, the testimony of Philadelphia Police
Officers Cyrus Pollard and Robert Ellis. Officers Pollard and Ellis testified that
on the night of October 3, 2011, they responded to a report of shots fired
and observed Appellant walking on a well-lit sidewalk. Both officers testified
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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that they saw a silver firearm in Appellant’s hand. Upon seeing the officers,
Appellant dropped the gun and ran. The officers pursued Appellant and
ultimately apprehended him, after which they retraced the path of his flight
and found a stainless steel, 9-millimeter semiautomatic handgun. The
Commonwealth submitted that firearm for fingerprint and DNA analysis.
Philadelphia Police Officer Edward Fidler, an expert in the development of
fingerprints, testified that he did not find Appellant’s fingerprints on the
weapon. Jamila Howard, an expert in DNA analysis, testified that Appellant’s
DNA was also not found on the gun.1
On September 10, 2013, the jury convicted Appellant of persons not to
possess a firearm. On November 12, 2013, Appellant was sentenced to five
to ten years’ incarceration, imposed to run consecutively to any other
sentence he was then serving. Appellant filed a timely notice of appeal, as
well as a timely Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal. Herein, Appellant presents one question for our review:
“Whether the evidence was insufficient to support a conviction of possession
of a firearm by a prohibited person?” Appellant’s Brief at 3.
To begin, we note our standard of review of a challenge to the
sufficiency of the evidence:
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1
The trial court set forth a detailed recitation of the evidence presented at
trial in its Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion (TCO),
6/17/14, at 2-9.
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In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
Here, Appellant challenges his conviction for persons not to possess a
firearm, defined in 18 Pa.C.S. § 6105 as follows:
(a) Offense defined.--
(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. § 6105(a).
Appellant acknowledges that at trial, he stipulated that he is “[a]
person who has been convicted of an offense enumerated in subsection (b)”
of section 6105 and, therefore, he was prohibited from possessing a firearm
under that statute. See 18 Pa.C.S. § 6105(a); Appellant’s Brief at 8-9.
Appellant maintains, however, that the Commonwealth failed to prove that
he possessed a firearm because, “[a]lthough both police officers testified
that they saw [A]ppellant holding a gun, there [were] some major
discrepancies in the evidence that challenged that testimony.” Appellant’s
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Brief at 7. Namely, Appellant cites purported inconsistencies between
Officer Pollard’s trial testimony and (1) statements he made over the police
radio on the night of Appellant’s arrest, (2) his testimony at Appellant’s
preliminary hearing, and (3) statements in his written police report. Id. at
7. Appellant also claims that Officer Ellis’ trial testimony was inconsistent
with statements he made over the police radio on the night of the incident.
Id. at 8. Appellant essentially argues that because of these alleged
inconsistencies between the officers’ testimony and other evidence
presented at trial, the jury should not have credited the officers’ testimony
that they observed Appellant in possession of a gun. Appellant also
maintains that the evidence was insufficient to prove he possessed the
firearm because neither his DNA nor fingerprints were found on that
weapon. Id. at 9.
After careful review, we are constrained to deem Appellant’s argument
regarding the purported inconsistencies in Officer Pollard’s and Officer Ellis’
testimony waived. This claim attacks the credibility of the officers’
testimony and, thus, it constitutes a challenge to the weight of the evidence,
not the sufficiency. See Commonwealth v. Wilson, 825 A.2d 710, 713-
714 (Pa. Super. 2003) (“A sufficiency of the evidence review … does not
include an assessment of the credibility of the testimony offered by the
Commonwealth. Such a claim is more properly characterized as a weight of
the evidence challenge.”) (citations omitted). “A challenge to the weight of
the evidence must first be raised in the trial court in order for it to be the
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subject of appellate review.” Id. (citing Commonwealth v. Hodge, 658
A.2d 386 (Pa. Super. 1995)); see also Pa.R.Crim.P. 607(A)(1)-(3)
(directing that a weight of the evidence claim must be raised “orally, on the
record, at any time before sentencing; … by written motion at any time
before sentencing; or … in a post-sentence motion”). Here, Appellant did
not file a post-sentence motion raising his challenge to the weight of the
evidence, and he also does not point to where in the record he orally
preserved it for our review. See Pa.R.A.P. 2117(c) (directing the appellant
to set forth, in the Statement of the Case section of his brief, a “specific
reference to the places in the record” where he preserved the issue(s)
below). Accordingly, Appellant’s weight of the evidence claim is waived.
See Wilson, 825 A.2d at 714 (finding the appellant’s weight of the evidence
claim waived based on his failure “to raise it first before the trial court”)
(citing, inter alia, Pa.R.Crim.P. 607).
In regard to Appellant’s assertion that the evidence was insufficient to
prove that he possessed the gun because his DNA and/or fingerprints were
not found on the firearm, this claim is meritless. As the trial court
emphasizes, Officer Pollard and Officer Ellis both testified that they “saw
[Appellant] in a well-lit area holding a gun, which he dropped upon seeing
them.” TCO at 10. While defense counsel attempted to undermine this
testimony by highlighting that no physical evidence tied Appellant to the
gun, Officer Fidler, an expert in fingerprint analysis, testified that
“fingerprints are not always recoverable from firearms because of factors
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like the oil production on skin or the finish of the gun.” TCO at 11 (citation
to the record omitted). Additionally, Ms. Howard, the Commonwealth’s DNA
expert, opined that the absence of DNA on the firearm “did not mean that
the gun was not touched.” Id. at 8. She explained “that it [is] variable
whether DNA will be left behind on a piece of evidence because of many
different factors, including how long the evidence was in contact with the
person, whether the person was wearing gloves, or whether the person has
a disposition to leave behind more DNA.” Id. (citation to the record
omitted).
Based on the expert opinions of Officer Fidler and Ms. Howard, it is
clear that the absence of Appellant’s fingerprints and DNA on the gun did not
necessarily prove that he did not touch that weapon. Instead, the jury was
free to credit the testimony of Officers Pollard and Ellis that they saw
Appellant with a gun in his hand, despite the lack of physical evidence tying
Appellant to the firearm. Therefore, Appellant’s challenge to the sufficiency
of the evidence to sustain his conviction is meritless.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/26/2015
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