Com. v. Allen, T

J-A01034-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THURMOND ALLEN :
:
Appellant : No. 2144 EDA 2019
Appeal from the Judgment of Sentence Entered May 29, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004768-2017
BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 17, 2023
Thurmond Allen (“Thurmond”) appeals from the judgment of sentence,
entered in the Court of Common Pleas of Delaware County, following his
conviction of persons not to possess a firearm.1, 2 Upon review, we affirm.
On January 23, 2017, at approximately 11:30 a.m., Police Officer
Jonathan Jagondinski executed a search warrant at an apartment building
located at 313 Creek Drive, Apartment 319, in Delaware County. The search
warrant sought, inter alia, narcotics, drug paraphernalia, and firearms. Police
recovered a sawed-off shotgun, a bullet, a black ski mask, two swords, a taser,
____________________________________________
1 Thurmond purports to appeal from the order denying his post-sentence
motion. However, “[i]n a criminal action, [an] appeal properly lies from the
judgment of sentence made final by the denial of post-sentence motions.”
Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2011)
(en banc) (citation omitted). Instantly, Thurmond’s judgment of sentence
was entered on May 29, 2019; we have corrected the caption accordingly.
2 18 Pa.C.S.A. § 6105.
J-A01034-23
a PA license plate, a marijuana grinder, a glass bong, a burnt marijuana roach,
and various pieces of mail addressed to both Thurmond and his girlfriend,
Sabrina Allen (Sabrina).3 See Trial Court Opinion, 10/24/19, at 2. The sawed-
off shotgun and ski mask were located in a duffle bag in the living room of the
apartment. Thurmond was arrested and charged with persons not to possess
a firearm, prohibited offensive weapon, possession of a controlled substance,
possession of drug paraphernalia, and three counts of conspiracy.
On September 18, 2018, Thurmond filed an omnibus pretrial motion
seeking suppression of the evidence recovered at Apartment 319. The trial
court entered an order granting Thurmond’s motion to suppress. The
Commonwealth appealed to this Court, and we reversed the trial court’s order
and remanded the matter for further proceedings. See Allen, supra.
____________________________________________
3 The search warrant arose from an incident that occurred on January 22,
2017, at approximately 9:43 p.m. in the parking lot of the apartment building.
Police had responded to reports of a gun fight and, upon arrival, spoke with
Anthony Allen (Anthony) and Sabrina, who informed police that Sabrina had
gotten into a fight with her boyfriend, Thurmond. Sabrina called Anthony, her
son, who confronted Thurmond, and a fight ensued.
Ultimately, Police searched Anthony’s vehicle and recovered a substantial
amount of marijuana, which resulted in Anthony’s arrest. See
Commonwealth v. Allen, 203 A.3d 299 (Pa. Super. 2018) (Table). Police
did not recover a firearm in the vehicle. See id. Police then proceeded to
Apartment 319 to speak with Thurmond about the alleged use of a firearm.
Thurmond was present at the apartment, and he refused to consent to a
search of his apartment, but his neighbor, Cynthia Neenan, who had reported
the gun fight, told police that she had overheard someone involved say they
had a gun. As a result, Police sought the instant search warrant.
-2-
J-A01034-23
Upon remand, on April 23, 2019, Thurmond proceeded to a jury trial.
During trial, the Commonwealth withdrew the charges of prohibited offensive
weapon, possession of a controlled substance, and all three conspiracy counts.
At trial, the parties entered a stipulation that Thurmond was a person
prohibited by law from possessing, using, or controlling a firearm. Ultimately,
the jury convicted Thurmond of persons not to possess a firearm, but
acquitted him of possession of drug paraphernalia. The trial court deferred
sentencing and ordered the preparation of pre-sentence investigation report.
On May 29, 2019, the trial court sentenced Thurmond to a period of 42 to 84
months in prison.
Thurmond filed a timely post-sentence motion challenging the
sufficiency of the evidence and the verdict as against the weight of the
evidence. On June 25, 2019, the trial court denied Thurmond’s post-sentence
motion. Thurmond filed a timely notice of appeal, and both Thurmond and
the trial court have complied with Pa.R.A.P. 1925.4
____________________________________________
4 We note that despite Thurmond’s timely appeal, several additional matters
have delayed our disposition in this case. Subsequent to the filing of his timely
appeal, Thurmond requested to proceed pro se and this Court remanded for a
Grazier hearing. See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
On remand, Thurmond indicated that he wished to proceed pro se, and the
trial court appointed the Delaware County Public Defender’s Office as standby
counsel.
During his time as a pro se appellant, Thurmond filed in excess of 10
applications for relief. Of particular relevance, on October 20, 2020, the trial
court issued an order directing Thurmond to forfeit the firearm in question.
Thurmond filed a pro se application for relief requesting that we reverse the
(Footnote Continued Next Page)
-3-
J-A01034-23
Thurmond now raises the following claims for our review:
1. Whether the evidence was insufficient as a matter of law to
establish possession of a firearm, an element of 18 Pa.C.S.[A.] §
6105, beyond a reasonable doubt where the evidence did not
demonstrate [Thurmond]’s conscious dominion over the
recovered firearm, in violation of appellant’s federal and state
constitutional rights?
2. Whether the trial court erred in denying [Thurmond]’s motion
for a new trial, as the verdict was against the weight of the
____________________________________________
trial court’s order. This Court directed the Prothonotary to docket the
application for relief as a separate notice of appeal. See Order, 12/2/20, at
1. That appeal was docketed at 2159 EDA 2020.
Simultaneously, Thurmond filed a pro se motion to stay the forfeiture order in
the trial court, which the trial court granted pending the outcome of the instant
appeal. See Order, 4/8/21, at 1. It appears that additional confusion arose,
and Thurmond filed a timely pro se notice of appeal from the trial court’s
forfeiture order, which this Court docketed as 2363 EDA 2020. Ultimately,
this Court quashed 2363 EDA 2020 as duplicative of the appeal at 2159 EDA
2020.
After this stint as a pro se appellant, Thurmond requested appointment of
counsel, which this Court granted and appointed the Delaware County Public
Defender’s Office to represent Thurmond for the remainder of this appeal.
See Order, 6/16/21. In response, the trial court permitted appellate counsel
to file an amended Rule 1925(b) concise statement; however, the trial court
issued its Rule 1925(b) order at 2159 EDA 2020, and not at the instant appeal.
Appellate counsel complied and, upon realizing that the amended Rule
1925(b) statement was filed at the wrong appellate docket, filed an application
to withdraw the briefing schedule at 2159 EDA 2020 and transfer the record
to 2144 EDA 2019, which this Court granted. Therefore, our Court functionally
stayed the 2159 EDA 2020 appeal. Appellate counsel has since filed an
appellate brief at the instant appeal, and we proceed to address the claims
raised therein.
We note that the appeal at 2159 EDA 2020 has a pending Rule to Show Cause
as to whether or not that appeal should be transferred to the Commonwealth
Court as appeals from forfeiture orders fall within the Commonwealth Court’s
jurisdiction. We make no ruling on that Rule, as that appeal is not before this
panel, and, thus, the appeal at 2159 EDA 2020 remains pending.
-4-
J-A01034-23
evidence where the determination of [Thurmond]’s guilt was
based purely on speculation and conjecture, in violation of
[Thurmond]’s constitutional rights under the state and federal
constitutions?
3. Whether the trial court erred and abused its discretion in
sustaining the Commonwealth’s objection to admission of
testimony regarding evidence of third-party guilt?
Brief for Appellant, at 4 (reordered).
In his first claim, Thurmond argues that the Commonwealth presented
insufficient evidence that Thurmond constructively possessed the sawed-off
shotgun. Id. at 13-27. Thurmond concedes that he is a person not to possess
a firearm and, consequently, focuses his entire argument on constructive
possession. Id. at 15-16. Thurmond contends that he was not in the
apartment at the time the search warrant was executed, but asserts that
Anthony was there mere hours before the execution of the search warrant.
Id. at 22-26. Thurmond further argues that the Commonwealth failed to
present any evidence “of his presence in or near the apartment close in time
to the search warrant.” Id. at 22-23. We disagree.
When examining a challenge to the sufficiency of the evidence, we
adhere to the following standard of review:
The standard we apply in 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 [re-
]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
-5-
J-A01034-23
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.
Commonwealth v. Smith, 97 A.3d 782, 790 (Pa. Super. 2014) (citation
omitted).
Section 6105 of the Pennsylvania Uniform Firearms Act provides, in
relevant part, as follows:
§ 6105. Persons not to possess, use manufacture, control,
sell or transfer firearms
(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.A. § 6105(a)(1).
An individual can possess a firearm either physically or constructively.
Regarding constructive possession, we are guided by the following:
Constructive possession is a legal fiction, a pragmatic construct to
deal with the realities of criminal law enforcement. Constructive
possession is an inference[,] arising from a set of facts[,] that
possession of the contraband was more likely than not. We have
defined constructive possession as conscious dominion. We
subsequently defined conscious dominion as the power to control
-6-
J-A01034-23
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.
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012).
“To find constructive possession, the power and intent to control the
contraband does not need to be exclusive to the appellant.” Commonwealth
v. Rojas-Rolon, 256 A.3d 432, 438 (Pa. Super. 2021). “[C]onstructive
possession may be found in one or more actors where the item in issue is in
an area of joint control and equal access.” Commonwealth v. Johnson, 26
A.3d 1078, 1094 (Pa. 2011) (citation omitted).
Instantly, our review of the record reveals that the Commonwealth
presented sufficient evidence to sustain Thurmond’s conviction of persons not
to possess. At trial, Officer Jagodinski testified for the Commonwealth that
police recovered court mail addressed to Thurmond,5 as well as male and
female clothing throughout the apartment. See N.T. Jury Trial, 4/23/19, at
200-01, 208-10. Officer Jagodinski also testified that Thurmond’s name was
on the apartment lease. See id. at 190, 259-60. Thus, it is clear Thurmond
lived in this apartment, and it is of no moment that Thurmond was not present
at the time the search warrant was executed. See Commonwealth v,
Macolino, 469 A.2d 132 (Pa. 1983) (where contraband was recovered via
____________________________________________
5The letter was from District Court 38-1-16, and addressed to Thurmond Allen
at 313 Creek Drive, Apartment 319, Wayne Pennsylvania, 19087. N.T. Jury
Trial, 4/23/19, at 201, 08. The Commonwealth noted, at trial, that St. Davids,
Radnor, and Wayne all share the 19087 zip code. Id. On cross-examination,
Officer Jagodinski testified that this letter involved payment of a traffic ticket.
Id. at 208-09.
-7-
J-A01034-23
search warrant in husband and wife’s shared bedroom, Commonwealth
presented sufficient evidence of constructive possession). Accordingly, we
conclude that the Commonwealth presented sufficient evidence to sustain
Thurmond’s conviction. See Johnson, supra; Smith, supra.In his second claim, Thurmond argues that the verdict was against the
weight of the evidence. Brief for Appellant, at 29-32. Similar to his sufficiency
claim, Thurmond contends that he was not in the apartment at the time the
search warrant was executed, and that the only evidence linking him to the
apartment is a single piece of mail. Id. at 31-32. Thurmond asserts that
Anthony had a stronger connection to the apartment and, therefore, the
sawed-off shotgun. Id. Thurmond posits that due to Anthony’s connection
to the apartment, the verdict was against the weight of the evidence. Id.
Our standard of review related to a challenge to the verdict as against
the weight of the evidence is well settled.
The weight of the evidence is exclusively for the finder of fact[,]
who is free to believe all, part, or none of the evidence and to
determine the credibility of witnesses. An appellate court cannot
substitute its judgment for that of the finder of fact. Thus, we
may only reverse the . . . verdict if it is so contrary to the evidence
as to shock one’s sense of justice.
Commonwealth v. Small, 741 A.2d 666, 672-73 (Pa. 1999). Additionally,
where the trial court has ruled on the weight claim, an appellate court’s role
is not to consider the underlying question of whether the verdict is against the
weight of the evidence; rather, our appellate review is limited to whether the
-8-
J-A01034-23
trial court abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003).
Instantly, Thurmond’s connection to the apartment was not based solely
on a single piece of court mail. Rather, the Commonwealth presented
evidence, through Officer Jagodinski’s testimony, that Thurmond’s name
appeared on the apartment lease and the firearm was found in a shared
common space of the apartment. See N.T. Jury Trial, 4/23/19, at 190, 200-
01, 208-10, 259-60. By contrast, Anthony’s name was not on the apartment
lease, and police did not recover any mail addressed to Anthony. In light of
these facts, the trial court concluded that the jury’s verdict did not shock the
conscience. See Trial Court Opinion, 3/25/22, at 4-5. Upon review, we
discern no abuse of discretion on behalf of the trial court, and we conclude
that this claim lacks merit. See Champney, supra.
In his third claim, Thurmond argues that the trial court erred by
sustaining the Commonwealth’s objection to cross-examination questions
regarding Anthony. Brief for Appellant, at 27-29. Thurmond contends that
Officer Jagodinski would have testified to “physical characteristics of Anthony
[] to demonstrate that the ski mask in the suitcase with the firearm could not
have fit [Thurmond.]” Id. at 28. Thurmond asserts that this testimony was
relevant and admissible as evidence of third-party guilt because it would
“support an inference that [Thurmond] did not commit the crime[.]” Id.
(citation omitted). We disagree.
-9-
J-A01034-23
Preliminarily, as noted by the trial court in its opinion, this claim is
waived. Thurmond’s third-party guilt challenge was made for the first time in
his amended Rule 1925(b) statement. See Pa.R.A.P. 1925(b) Statement,
7/12/21, at 1-2. Additionally, Thurmond has failed to specify where in the
record he preserved this challenge, and we have found none. It appears that
Thurmond is referencing an exchange6 between respective counsels and the
court, but there is no reference to third-party guilt or any basis for which this
evidence may have been admissible. See Trial Court Opinion, 3/25/22, at 8-
9; N.T. Jury Trial, 4/23/19, at 214-15. Accordingly, we conclude that this
claim has not been properly preserved for our review. See Pa.R.A.P. 302(a)
(“[I]ssues not raised in the [trial] court are waived and cannot be raised for
the first time on appeal.”); see also Pa.R.A.P. 2117(c) (requiring appellate
brief state where issues are preserved); Pa.R.A.P. 2119(e) (requiring
argument section state where issues are preserved).
____________________________________________
6 Prior to this exchange, Thurmond’s counsel was attempting to elicit
testimony that the ski mask, found in the duffel bag with the sawed-off
shotgun, did not fit Thurmond, but rather fit Anthony. See N.T. Jury Trial,
4/23/19, at 211-15. Thurmond’s counsel sought to demonstrate this by
having Thurmond wear the ski-mask before the jury, and attempted to elicit
testimony from Officer Jagodinski that the mask did not fit Thurmond “well.”
Id. at 211-13. Counsel then asked Officer Jagodinski “[Anthony] would
probably fit in that mask a little better, right?” Id. at 214.
The Commonwealth objected to that line of questioning, and the trial court
sustained it as misleading and confusing to the jury, because Anthony was not
present in the courtroom, and the questions called for speculation regarding
the size of Anthony’s head and whether a mask fit a person that Officer
Jagodinski could not see. Id. at 214-15; Trial Court Opinion, 3/25/22, at 8-
9.
- 10 -
J-A01034-23
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2023
- 11 -