Com. v. Reed, K.

J-S26019-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KHALIL REED :
:
Appellant : No. 3350 EDA 2016
Appeal from the Judgment of Sentence September 22, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008102-2014
BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 16, 2018
Khalil Reed appeals from the judgment of sentence of three to seven
years imprisonment that was imposed after a jury convicted him of persons
not to possess firearms. We affirm.
We adopt the trial court’s summary of the testimony that the
Commonwealth presented during the jury trial.
Philadelphia Police Officer, John Krewer, testified that on
June 27, 2014, he was on patrol in plain clothes, in an unmarked
police vehicle, with his partner, Officer Patrick DiDomenico. At
approximately 7:30 p.m., he was traveling east on Greenway
Avenue, in the City and County of Philadelphia, when a gold Grand
Marquis passed him going at a high rate of speed. After pursuing
this vehicle for eight or nine blocks, along with other marked
police units, he observed [Appellant] close the driver’s door and
start running. Officer Krewer exited his vehicle, pursued
[Appellant] and, as he approached him, he identified himself as a
police officer. [Appellant], dropping to the ground, immediately
surrendered, stating; “I’m dirty, I’m dirty. There’s a gun in my
vehicle.” [Appellant] later told Officer Krewer that he had
purchased the gun that day. After securing [Appellant], he
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S26019-18
examined the vehicle and noticed “on the passenger floor mat, in
clear view, you could see it from the outside, is a small black
caliber semi-automatic handgun.”
Officer Krewer’s partner, Patrick DiDomenico, testified
similarly that while on patrol with Officer Krewer, a gold Mercury
Grand Marquis passed them at a high rate of speed. He identified
[Appellant] as the driver of the car and also that he saw no one
else in the vehicle. Once the vehicle was stopped, he observed
[Appellant] exit and start running towards him. Immediately, on
identifying themselves as police officers, [Appellant] dropped to
the ground and was taken into custody. Although he heard
[Appellant] shouting something he could not make out what it
was.
Philadelphia Police Detective, Vincent Parker, testified that
he was the assigned detective investigating this incident. Based
on information he received from Officer Krewer, he went to the
scene and recovered a handgun from the front passenger floor of
the gold 2003 Grand Marquis.
Trial Court Opinion, 10/3/17, at 2-3 (citations to the record omitted).
The jury convicted Appellant of the firearm offense and the trial court
imposed three to seven years imprisonment. This appeal followed.
Appellant’s timely Rule 1925(b) statement raised two issues, which he
reiterates on appeal as follows:
1. Was the evidence insufficient to convict [Appellant] of 18
P[a].C.S. § 6105, [p]ersons not to possess firearms?
2. Did the [t]rial [c]ourt err in permitting the introduction of
photographs marked as Commonwealth Exhibit c12 through 17,
mid-trial, which was not provided to the defense in violation of
Pa.R.Crim.P. 573?
Appellant’s brief at 3.
First, we acknowledge our standard of review. In addressing a
sufficiency of the evidence claim, we examine all of the evidence admitted,
-2-
J-S26019-18
even improperly admitted evidence. Commonwealth v. Watley, 81 A.3d
108, 113 (Pa.Super. 2013) (en banc). We consider the evidence in the light
most favorable to the verdict winner, herein the Commonwealth, drawing all
possible inferences from the evidence in its favor. Id. The sufficiency claim
will fail when evidence exists to allow the fact finder to determine beyond a
reasonable doubt each element of the crime. Id.Importantly, the evidence need not preclude the possibility of innocence
entirely. The fact finder is free to believe, in whole or in part, whatever
evidence it chooses. Id. Additionally, the Commonwealth may prove its case
by circumstantial evidence alone. It is only when “the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact can be drawn
from the combined circumstances,” that the defendant is entitled to relief. Id.This Court is not permitted “to re-weigh the evidence and substitute our
judgment for that of the fact finder.” Id.Appellant argues that the Commonwealth failed to adduce sufficient
evidence to support the conviction for possession of a firearm by a prohibited
person. That offense provides “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 . . . a firearm in this Commonwealth.” 18
Pa.C.S. § 6105.
During the trial, Appellant stipulated that he had a prior conviction that
disqualified him from owning or possessing a firearm under the statute. N.T.,
-3-
J-S26019-18
6/7/16, at 65. The only element that Appellant challenges relates to whether
he possessed the gun that Officer Krewer discovered in the vehicle Appellant
was operating. Stated plainly, Appellant asserts that the evidence was
insufficient because the Commonwealth demonstrated only that the police
recovered the handgun from the passenger floor of the vehicle. He continues
that those facts do not support the finding that he possessed the weapon
constructively. For the following reasons, we disagree.
When reviewing a challenge to constructive possession, we utilize the
following principles:
In order to prove that a defendant had constructive possession of
a prohibited item, the Commonwealth must establish that the
defendant had both the ability to consciously exercise control over
it as well as the intent to exercise such control. [Commonwealth
v. Sanes, 955 A.2d 369 (Pa.Super. 2008)] “An intent to maintain
a conscious dominion may be inferred from the totality of the
circumstances, and circumstantial evidence may be used to
establish a defendant’s possession of drugs or contraband.”
Commonwealth v. Valette, 531 Pa. 384, 613 A.2d 548, 550
(1992) (quoting Macolino, supra at 134).
Commonwealth v. Gutierrez, 969 A.2d 584, 590 (Pa.Super. 2009).
Contrary to Appellant’s protestations, the Commonwealth presented
sufficient evidence during the jury trial to establish beyond a reasonable doubt
that Appellant exercised exclusive control over the firearm. As outlined in the
trial court’s summary of the police officers’ testimony, Officer DiDomenico
identified Appellant as the only person in the vehicle that Appellant was driving
at a high rate of speed. After the police chase, Officer DiDomenico and Officer
Krewer both observed Appellant exit the vehicle and flee. While Officer
-4-
J-S26019-18
DiDomenico could not decipher what Appellant shouted immediately prior to
his apprehension, Officer Krewer testified that Appellant volunteered, “I’m
dirty, I’m dirty. There’s a gun in my vehicle.” N.T., 7/7/16, at 11, 16.
Appellant subsequently explained to Officer Krewer that he purchased the
firearm earlier that day. Upon examining the car, Officer Krewer observed the
firearm in plain view on the floor of the vehicle.
Viewing the foregoing evidence in the light most favorable to the
Commonwealth, as we must, and drawing all possible inferences in the
Commonwealth’s favor, the evidence sustains the jury’s determination that
Appellant had constructive possession of the firearms. Not only was Appellant
the only occupant of the car in which police discovered the firearm, he
volunteered to Officer Krewer that he knew the gun was there because he
purchased it that day. Appellant’s sufficiency claim fails.
Appellant’s second issue relates to the trial court’s admission of five
photographs that depicted the exterior and interior of the automobile that
Officer DiDomenico observed Appellant operating. The following facts are
relevant to our review of this issue. On the first day of trial, Detective Parker
testified about his recovery of the firearm from the vehicle that Appellant was
driving. N.T., 6/7/16, at 40-41. Detective Parker indicated that he observed
the firearm on the floor of the car’s front passenger area. Id. at 46. During
cross-examination, Appellant inquired whether Detective Parker had taken
any photographs of the vehicle, and Detective Parker responded that he had,
-5-
J-S26019-18
including one depicting the firearm resting on the car floor. Id. at 50. On re-
direct, Detective Parker outlined the typical procedure for producing
documents and photographs for trial, but he could not explain why the instant
photos had not been made available for either party’s review in this case. Id.
at 52.
The following day, the Commonwealth requested permission to
introduce the five photographs that Detective Parker referenced in his
testimony. Appellant leveled a Brady1 objection because the photos were not
disclosed during pretrial discovery. N.T., 6/8/18, at 3. Following a side bar
discussion, the trial court permitted the Commonwealth to recall Detective
Parker to describe how he procured the photographs the prior evening. He
explained, “After testimony yesterday and becoming aware that neither
counsel had the photographs, I reviewed my [digital] camera and the pictures
were still there. And I [sent] them to [the prosecution].” Id. at 9. Thereafter,
the five photos were presented to Detective Parker, who described the scenes
depicted therein, and then displayed them to the jury. Id. at 11.
____________________________________________
1 In Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme
Court held, “the suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.” In order “[t]o prove a Brady violation, the defendant must
show that (1) the prosecutor has suppressed evidence; (2) the evidence
whether exculpatory or impeaching, is helpful to the defendant; and (3) the
suppression prejudiced the defendant.” Commonwealth v. Busanet, 54
A.3d 35, 48 (Pa. 2012). Significantly, Appellant did not assert that the
photographs were exculpatory or that the Commonwealth suppressed them.
-6-
J-S26019-18
Instantly, Appellant contends that the photographs were inadmissible
because the Commonwealth failed to timely disclose them pursuant to the
discovery rules outlined in Pa.R.Crim.P. 573. For the reasons described infra,
no relief is due.
In pertinent part, Rule 573 provides a follows:
(B) Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the
defendant, . . . the Commonwealth shall disclose to the
defendant's attorney all of the following requested items or
information, provided they are material to the instant case.
....
(f) any tangible objects, including documents, photographs,
fingerprints, or other tangible evidence.
Pa.R.Crim.P. 573(B)(1)(f). If a discovery violation occurs, the trial court may
grant a continuance, prohibit the introduction of the evidence, or enter any
order it deems just under the circumstances. Pa.R.Crim.P. 573(E).
The trial court has broad discretion in choosing the appropriate remedy
for a discovery violation. Commonwealth v. Johnson, 727 A.2d 1089, 1097
(Pa. 1999) (addressing Pa.R.Crim.P. 305, renumbered Rule 573 effective April
1, 2001). Our scope of review is whether the court abused its discretion in
not excluding evidence pursuant to Rule 573(E). Id. A defendant seeking
relief from a discovery violation must demonstrate prejudice. Id. More
specifically, an appellant must demonstrate how a more timely disclosure
would have affected his trial strategy or how he was otherwise prejudiced by
-7-
J-S26019-18
the alleged late disclosure. Commonwealth v. Jones, 668 A.2d 491, 510
(Pa. 1995); see also Commonwealth v. Chambers, 599 A.2d 630, 636-38
(Pa. 1991) (no error in denial of mistrial motion for untimely disclosure where
appellant cannot demonstrate prejudice).
Appellant contends that the Commonwealth’s failure to reveal the
existence of the five photographs until the second day of trial was prejudicial
because the photos refuted his opening statements, which he claims
highlighted the dearth of evidence that would corroborate the police officers’
proposed testimony. The implication of Appellant’s argument is that, if he had
been aware that the photographs existed, he would not have commented on
the Commonwealth’s lack of evidence in his introductory statements to the
jury. Trial counsel presented this argument to the trial court as follows:
These [photographs] are discoverable. The case is two
years old. We haven’t been given these. And, trial has begun.
So not only has trial begun, the witness has been called and left
the stand and then we[’]re being passed this evidence. I don’t
think I would have opened the way that I did if I was given this a
year and a half ago when I was given discovery.
N.T., 6/8/16, at 4-5.
Appellant’s assertion of prejudice fails. First, we observe that, since
counsel’s opening statements are not included in the certified record, we
cannot examine what counsel did or did not argue therein. Commonwealth
v. Johnson, 33 A.3d 122, 126 n.6 (Pa.Super. 2011) (“[F]or purposes of
appellate review, what is not of record does not exist.”). Second, Appellant’s
broad allegation of prejudice neglects to identify the specific aspect of Officer
-8-
J-S26019-18
Krewer’s testimony that was implicated by counsel’s opening. While counsel
argued to the trial court that “Officer Krewer [indicated] that the car was
there[,]” and the photographs presumably corroborated that statement, that
detail is minor because the vehicle’s presence at the scene of Appellant’s
arrest is undisputed. N.T., 6/8/16, at 5. Hence, whether the photos
corroborated that aspect of Officer Krewer’s testimony is inconsequential.
Moreover, assuming arguendo that counsel’s knowledge of the
photographs would have altered his decision to highlight a purported absence
of evidence to corroborate the officers’ testimony regarding their discovery of
the gun in Appellant’s vehicle, the unassailable truth remains that, since the
outset of these proceedings, counsel was aware of Appellant’s spontaneous
declaration to Officer Krewer that he owned the firearm that was recovered
from the car.2 N.T., 6/7/16, at 16. Thus, notwithstanding counsel’s current
allegation of prejudice, the certified record reveals that counsel persisted with
his chosen opening despite knowing that inculpatory evidence already existed
to corroborate the testimony that police found the gun in the car that Appellant
____________________________________________
2 For similar reasons, we find that the properly-admitted evidence of
Appellant’s statements to Officer Krewer regarding his ownership of the
firearm and knowledge of its location was tantamount to overwhelming
evidence of guilt that would render harmless any trial court error concerning
the Rule 573(B) violation. See Commonwealth v. Robinson, 721 A.2d 344,
350 (Pa. 1998) (“Harmless error exists where: . . . (3) the properly admitted
and uncontradicted evidence of guilt was so overwhelming and the prejudicial
effect of the error was so insignificant by comparison that the error could not
have contributed to the verdict.”).
-9-
J-S26019-18
operated. Hence, Appellant failed to demonstrate how a more timely
discovery would have affected his trial strategy.
Accordingly, we conclude that the trial court did not abuse its discretion
in admitting the five photographs notwithstanding the Commonwealth’s
technical violation of Rule 573(B)(1)(f). See Jones, supra at 510;
Chambers, supra at 636-38 (no error in denial of mistrial motion for untimely
disclosure where appellant cannot demonstrate prejudice).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/18
- 10 -