Com. v. Brown, E.

J-A05024-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD BROWN :
:
Appellant : No. 1403 EDA 2022
Appeal from the Judgment of Sentence Entered July 12, 2019,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0008622-2017.
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 5, 2023
Edward Brown appeals nunc pro tunc from the 10-to-20-year judgment
of sentence imposed following his conviction for persons not to possess
firearms, under 18 Pa.C.S.A. § 6105(a)(1). We affirm.
The trial court set out the factual background as follows:
On August 26, 2017, at approximately 3:40 a.m., Officers
Daniel Orth and Sean Devlin were patrolling the area near 52 nd
and Master Streets in a marked police vehicle. The officers pulled
up behind a Honda Accord, which was waiting at a red light at the
intersection of 52nd and Master Streets. [Brown] was driving the
vehicle and he was the only occupant. While the light was still
red, [Brown] made a left turn onto Master Street. The officers
briefly followed [Brown], who failed to stop at several stop signs
before the officers activated the police vehicle’s lights and siren to
initiate a traffic stop. [Brown] eventually stopped his vehicle near
the intersection of 55th and Master Streets. Fearing [Brown]
would drive away because his brake lights were on, Officer Orth,
who was driving the police vehicle, leaned out the window and
ordered [Brown] to take his foot off the brake and turn his car off.
Immediately thereafter, [Brown] drove away, turned onto 55th
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Street, and began driving at a high rate of speed. The officers
followed [Brown] in their vehicle. [Brown] then made a left turn
off of 55th Street onto Media Street and crashed into parked
vehicles on Media Street.
When the Officers pulled up to the intersection of 55 th and
Media Streets, they saw that [Brown’s] vehicle had crashed. They
then observed a dark object being thrown out of the vehicle’s open
sunroof. Immediately thereafter, [Brown] climbed out of the
driver’s seat window and began to flee from the officers. Officer
Devlin pursued [Brown] on foot and Officer Orth pursued him in
his vehicle. As he pursued [Brown], Officer Devlin ordered
[Brown] to stop. Initially, [Brown] did not comply, but eventually
[Brown] stopped running and Officer Devlin was able to apprehend
and handcuff [Brown]. Seeing that his partner had apprehended
[Brown], Officer Orth went back to the area where he had
observed the dark object that was thrown from [Brown’s] vehicle
land and found a loaded 9mm handgun on the ground
approximately 5 feet from where the car accident took place.
Officer Orth then searched [Brown’s] vehicle and found 3 rounds
of ammunition that matched the type of ammunition that was in
the recovered firearm. [Brown] was prohibited from possessing a
firearm because he has a felony conviction for robbery.
Trial Court Opinion, 6/24/22, at 2–3 (quoting Trial Court Opinion, 11/15/19,
at 2–3) (record citations omitted).
A jury convicted Brown of persons not to possess firearms. On July 12,
2019, Brown was sentenced to 10 to 20 years of imprisonment. Brown filed
post-sentence motions, which were denied. On direct appeal, this Court found
that all of Brown’s claims were either waived or abandoned because his
counsel did not develop them. Commonwealth v. Brown, No. 2369 EDA
2019, 2020 WL 5797641, at *2–3 (Pa. Super. Sept. 29, 2020) (non-
precedential memorandum).
Brown then filed a petition and an amended petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–9546, seeking to reinstate
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his direct appeal rights. On April 29, 2022, the PCRA court reinstated Brown’s
direct appeal rights nunc pro tunc. Brown appealed.1 Brown and the trial
court complied with Pennsylvania Rule of Appellate Procedure 1925.
Brown raises three issues for our review:
1. Did the trial court abuse its discretion, and/or make a mistake
of law in upholding the verdict in the situation where there was
insufficient evidence to demonstrate that [Brown] “was in
physical possession or control of a firearm, whether visible,
concealed about the person or within the person’s reach?”
2. Did the trial court err, abuse its discretion, and/or make a
mistake of law when it denied [Brown’s] Post-Sentence Motion
that the guilty verdict was against the weight of the evidence?
3. Did the [sentencing] court err, abuse its discretion, and/or
make a mistake of law when [Brown] was sentenced as a
REVOC and the [sentencing court] considered as a factor that
somebody with a record like [Brown’s] was driving around with
a loaded hand gun?
Brown’s Brief at 6–7 (reordered for ease of disposition, footnote omitted).
Brown first challenges the sufficiency of the evidence to sustain his
conviction. Brown’s Brief at 16–17. He argues that the evidence at trial was
insufficient to establish that the handgun was in his possession or control.
Our standard of review in assessing whether sufficient
evidence was presented to sustain an appellant’s conviction is
well-settled. 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 this test, we
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1 Brown’s notice of appeal mentioned only the order reinstating his appellate
rights. In response to this Court’s rule to show cause, Brown explained that
he meant to appeal from the judgment of sentence, not the PCRA court order.
We have amended the case caption accordingly.
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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.
Commonwealth v. Boyer, 282 A.3d 1161, 1171 (Pa. Super. 2022) (brackets
omitted) (quoting Commonwealth v. Walsh, 36 A.3d 613, 618–19 (Pa.
Super. 2012)).
For the Section 6105(a)(1) offense, the Commonwealth was required to
prove that Brown possessed a firearm. Commonwealth v. Antidormi, 84
A.3d 736, 757 (Pa. Super. 2014). We conclude that the evidence was
sufficient to establish this element. Specifically, police testified that they saw
a dark object thrown out of the car that Brown had just crashed, and they
recovered the handgun from where the object had landed, as well as
compatible ammunition in the car. This occurred at 3:40 in the morning, and
there was no one else in the car. Viewed in a light most favorable to the
Commonwealth as verdict winner, this is sufficient to establish that Brown
possessed the handgun. No relief is due on Brown’s first claim.
Brown next challenges the weight of the evidence. Brown’s Brief at 12–
15. He emphasizes that he was never in actual possession of a handgun, that
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the officers had previously denied seeing Brown’s hand touch the gun, and
that the facts do not establish that he constructively possessed the gun.
The weight given to trial evidence is a choice for the
factfinder. If the factfinder returns a guilty verdict, and if a
criminal defendant then files a motion for a new trial on the basis
that the verdict was against the weight of the evidence, a trial
court is not to grant relief unless the verdict is so contrary to the
evidence as to shock one’s sense of justice.
When a trial court denies a weight-of-the-evidence motion,
and when an appellant then appeals that ruling to this Court, our
review is limited. It is important to understand we do not reach
the underlying question of whether the verdict was, in fact,
against the weight of the evidence. We do not decide how we
would have ruled on the motion and then simply replace our own
judgment for that of the trial court. Instead, this Court determines
whether the trial court abused its discretion in reaching whatever
decision it made on the motion, whether or not that decision is the
one we might have made in the first instance.
Moreover, when evaluating a trial court’s ruling, we keep in
mind that an abuse of discretion is not merely an error in
judgment. Rather, it involves bias, partiality, prejudice, ill-will,
manifest unreasonableness or a misapplication of the law. By
contrast, a proper exercise of discretion conforms to the law and
is based on the facts of record.
Commonwealth v. Arnold, 284 A.3d 1262, 1277 (Pa. Super. 2022) (quoting
Commonwealth v. West, 937 A.2d 516, 521 (Pa. Super. 2007)).
Here, the trial court reasoned that the evidence “plainly established”
Brown’s guilt. Trial Court Opinion, 11/15/19, at 7. We discern no abuse of
discretion. Despite the officer’s prior testimony that they did not see Brown’s
hand touch the gun, there was ample evidence to establish possession.
Therefore, the trial court acted within its discretion when it denied Brown’s
motion. No relief is due on Brown’s second claim.
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Finally, Brown challenges the discretionary aspects of his sentence.
Brown’s Brief at 17–18. Specifically, Brown contends that the sentencing
court relied on an improper factor by “double counting” his prior record, which
was already necessary to establish that he was a person not to possess
firearms.
The Commonwealth responds that Brown waived this specific claim by
failing to include it in his post-sentence motion, depriving the trial court of the
chance to address it in the first instance. Commonwealth’s Brief at 8–9.2 On
the merits, the Commonwealth argues that Brown’s standard-range sentence
was not an abuse of discretion.
We conclude that Brown waived his challenge. His post-sentence motion
requested a “mitigated” sentence but did not claim that the sentencing court
improperly “double counted” his prior record. Motion for Re-consideration of
Sentence, 7/12/19, at 3. We note that Brown’s amended PCRA petition sought
only to reinstate his direct appeal rights and did not include a request to file
amended post-sentence motions nunc pro tunc. Amended PCRA Petition,
1/18/22, at 6. Therefore, no relief is due on Brown’s final claim.
Judgment of sentence affirmed.
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2 The Commonwealth does not argue that Brown waived his claim by failing
to include a Pa.R.A.P. 2119(f) statement in his brief.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2023
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