Com. v. London, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANDRE MAURICE LONDON
Appellant No. 2421 EDA 2021
Appeal from the Judgment of Sentence Entered October 14, 2021
In the Court of Common Pleas of Chester County
Criminal Division at No: CP-15-CR-0001093-2020
BEFORE: BOWES, J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 27, 2022
Appellant, Andre Maurice London, appeals from the October 14, 2021
judgment of sentence imposing 36 to 72 months of incarceration for one count
of prohibited possession of a firearm, 18 Pa.C.S.A. § 6105(a)(1). We affirm.
The record reveals that, in the early morning of November 12, 2019,
Pennsylvania State Troper Zachary Railing responded to a report of an active
domestic violence incident at 112 South Gibbons Avenue in Coatesville,
Chester County, Pennsylvania. N.T. Trial, 4/29/21, a 11-12. Trooper Railing
knocked on the front door and announced himself as state police, and, after
no one responded, he walked the perimeter of the house. Id. at 15-16. On
the ground beneath a first-floor window, Trooper Railing discovered a Cobray
Street Sweeper shotgun. Id. at 17-18. Trooper Railing secured the shotgun
in his patrol vehicle and returned to the front door. Id. at 22. After
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discovering it was unlocked, Trooper Railing announced himself as a police
officer and entered. Id. Given the nature of the call—an active domestic
violence incident—and the gun outside the window, Trooper Railing was
concerned someone had been shot. Id. at 23. The home was divided into
two apartments, one in front and one in back. Id. at 23-24. Trooper Railing
found the front apartment vacant, and knocked on a locked door that
appeared to lead to the rear apartment. Id. at 23-24, 27. Appellant
answered. Id. at 27. He had one eye swollen shut and blood all over his
shirt. Id. at 30, 38. Trooper Railing contacted emergency medical services.
In the meantime, Trooper Railing asked Appellant if he owned a “street
sweeper” shotgun. A street sweeper is an unusual weapon—a shotgun with a
drum magazine on it. Id. at 19-20. It was the first one Officer Railing had
seen in person. Id. at 21. Trooper Railing testified that Appellant knew
precisely what he meant when he asked Appellant if he owned a “street
sweeper.” Id. at 30-31. Appellant responded that he owned the street
sweeper, and told Trooper Railing it would be in a corner of the apartment’s
living room behind a reclining chair. Id. When the gun was not in that
location, Appellant claimed to be surprised. Id. at 32. Subsequent
examination of the shotgun revealed no DNA and no usable fingerprints. Id.
at 43, 60. The gun was not loaded and inoperable.
Appellant’s registered address was 110 South Sixth Avenue in
Coatesville. Trooper Railing noted, however, that Appellant retrieved clothes
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and his wallet from the master bedroom at 112 South Gibbons before leaving
with EMS to go to the hospital. Id. at 45-46. The owner of 112 South
Gibbons, Diana Nieves, testified that Appellant did not live there. Id. at 75-
76. Nieves testified that the Cobray Street Sweeper belonged to Appellant.
Id. at 77.
Based on his prior convictions, Appellant was arrested and charged with
a single count of unlawful possession of a firearm under 18 Pa.C.S.A. § 6105.
At the conclusion of an April 29, 2021 bench trial, the trial court found
Appellant guilty. On October 14, 2021, the trial court imposed 36 to 72
months of incarceration. Appellant filed a timely post-sentence motion on
October 20, 2021, in which he requested reconsideration of his sentence and
challenged the weight and sufficiency of the evidence. The trial court denied
the motion on October 28, 2021. This timely appeal followed.
Appellant raises three issues for our review:
I. Whether the trial court erred in denying Appellant’s motion
for judgment of acquittal where Appellant did not ‘possess’
the firearm under Pennsylvania law.
II. Whether the trial court erred in denying Appellant’s motion
for new trial because the verdict was against the weight of
the evidence?
III. Whether the sentencing court abused its discretion by
imposing an excessive sentence that ignored mitigating
factors and which was based on an impermissibly prejudicial
statement by the Commonwealth that Appellant was a ‘drug
trafficker’ based upon his record, even though this case
involved no evidence of drugs?
Appellant’s Brief at 9 (emphasis in original).
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A challenge to the sufficiency of the evidence presents a question of law
for which our scope of review is plenary and our standard of review is de novo.
Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013).
The standard we apply when 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 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. Furthermore,
when reviewing a sufficiency claim, our Court is required to give
the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.
However, the inferences must flow from facts and
circumstances proven in the record, and must be of such volume
and quality as to overcome the presumption of innocence and
satisfy the jury of an accused’s guilt beyond a reasonable doubt.
The trier of fact cannot base a conviction on conjecture and
speculation and a verdict which is premised on suspicion will fail
even under the limited scrutiny of appellate review.
Commonwealth v. Slocum, 86 A.3d 272, 275–76 (Pa. Super. 2014).
Because police recovered the shotgun from outside of the home in which
they found Appellant, the Commonwealth was required to prove that Appellant
was in constructive possession of it.
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Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law enforcement.
We have defined constructive possession as conscious dominion,
meaning that the defendant has 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.
It is well established that, [a]s with any other element of a
crime, constructive possession may be proven by circumstantial
evidence. In other words, the Commonwealth must establish
facts from which the trier of fact can reasonably infer that the
defendant exercised dominion and control over the contraband at
issue.
Commonwealth v. Parrish, 191 A.3d 31, 36–37 (Pa. Super. 2018) (citations
and quotation marks omitted); appeal denied, 202 A.3d 42 (Pa. 2019).
As noted above, Trooper Railing recovered the Cobray Street Sweeper
outside of a home in which Appellant was the only person present. Appellant
admitted that the shotgun was his, and even led Trooper Railing to the location
where the gun was normally stored. Appellant also testified that he purchased
the shotgun legally but subsequently relinquished it to his cousin when it
became illegal for him to possess it. Though Appellant did not own the home,
he retrieved personal items from the master bedroom prior to leaving for the
hospital. Diana Nieves, who owned the home where the gun was found,
testified that it belonged to Appellant.
The foregoing facts, construed in a light most favorable to the
Commonwealth as verdict winner, are sufficient to establish Appellant’s
constructive possession of the shotgun. He was its original purchaser,
admitted to Trooper Railing that it was his, and took Trooper Railing to the
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location in the home where he believed it to be stored. Nieves’ testimony
further supports Appellant’s continued ownership, possession, and control of
the gun. The trial court was not required to credit Appellant’s self-serving
testimony about his relinquishment of the gun to his cousin. The absence of
DNA or usable fingerprints on the weapon did not preclude a finding of
constructive possession in light of all the other evidence.1 Appellant’s first
argument fails.
Next, Appellant challenges the weight of the evidence in support of his
conviction.
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. 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.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in
original; citations omitted).
The term ‘discretion’ imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion, within
the framework of the law, and is not exercised for the purpose of
giving effect to the will of the judge. Discretion must be exercised
on the foundation of reason, as opposed to prejudice, personal
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1 Likewise, the weapon’s inoperability did not preclude a conviction under
§ 6105. Commonwealth v. Batty, 169 A.3d 70, 77 (Pa. Super. 2017),
appeal denied, 182 A.3d 434 (Pa. 2018).
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motivations, caprice or arbitrary actions. Discretion is abused
when the course pursued represents not merely an error of
judgment, but where the judgment is manifestly unreasonable or
where the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill will.
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000).
Appellant cites no law in support of his weight of the evidence argument,
in violation of Pa.R.A.P. 2119(c). Further, he simply relies on the facts that
no DNA or fingerprint evidence was found on the shotgun, and that he did not
own the house where it was found. Appellant ignores Trooper Railing’s
testimony, which included Appellant’s own admission that the gun was his, his
knowledge of the location in the home where it was usually kept, and Nieves’
testimony that the gun belonged to Appellant. We discern no abuse of
discretion in the trial court’s refusal to award a new trial.
In his third and final argument, Appellant challenges the trial court’s
sentencing discretion. As noted above, he preserved this issue in a timely
post-sentence motion. We must next discern whether Appellant has raised a
substantial question as to the propriety of his sentence. 42 Pa.C.S.A.
§ 9781(b). In his statement pursuant to Pa.R.A.P. 2119(f),2 Appellant quotes
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2 The Rule provides:
An appellant who challenges the discretionary aspects of a
sentence in a criminal matter shall set forth in a separate section
of the brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence. The statement shall immediately precede the argument
(Footnote Continued Next Page)
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Commonwealth v. Raven, 97 A.3d 1244 (Pa. Super. 2014) for the
proposition that “an excessive sentence claim—in conjunction with an
assertion that the court failed to consider mitigating factors—raises a
substantial question.” (Id. at 1253), and then states that “[t]his is precisely
the argument being raised in the third question presented on appeal.”
Appellant’s Brief at 18. Appellant provides no further detail.
We apply the following strictures in determining whether a substantial
question exists:
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial
question exists “only when the appellant advances a colorable
argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.”
Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012), appeal
denied, 63 A.3d 774 (Pa. 2013). In order for this Court to make a case-by-
case evaluation of whether a substantial question exists, a 2119(f) statement
must explain why a substantial question exists in a particular case. “To
demonstrate that a substantial question exists, a party must articulate
reasons why a particular sentence raises doubts that the trial court did not
properly consider [the] general guidelines provided by the legislature.”
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on the merits with respect to the discretionary aspects of the
sentence.
Pa.R.A.P. 2119(f). We note that Appellant’s Brief does not comply with the
second sentence.
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Commonwealth v. Mouzon, 812 A.2d 617, 622 (Pa. 2002). Appellant’s
Pa.R.A.P. 2119(f) says nothing about his particular sentence. He cites Raven
for the circumstances under which a substantial question can exist, but fails
to explain why those circumstances exist in this case. Under these
circumstances, we conclude Appellant has failed to establish a substantial
question.3
Because we have concluded that none of Appellant’s arguments merits
relief, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2022
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3 We observe that, contrary to Appellant’s argument, the sentencing court
stated, “[Appellant] may well be a drug dealer. I don’t know. But he’s not
charged with that in this case and that’s not what he’s being
sentenced for here.” N.T. Sentencing, 10/14/21, at 12 (emphasis added).
Thus, the record does not support the underlying substance of Appellant’s
argument.
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