Opinion
259 WDA 2023 J-A18021-24
09-05-2024
COMMONWEALTH OF PENNSYLVANIA v. DAVON GIBSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered February 1, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0007170-2021
BEFORE: OLSON, J., MURRAY, J., and BENDER, P.J.E.
MEMORANDUM
MURRAY, J.
Davon Gibson (Appellant) appeals from the judgment of sentence imposed following his jury conviction of persons not to possess firearms.After careful review, we affirm.
The trial court summarized the underlying facts:
On September 2, 2021, at 12:47 a[.]m[.], Homestead police responded to a [report of a] violent domestic [incident] at 347 West 14th Street. Upon arrival, police encountered Wanda Humphries [(Ms. Humphries)], who was very distressed and bleeding. Ms. Humphries reported that her ex-boyfriend, [Appellant], hit her with a gun. She described [Appellant's] clothing, noting he was wearing jeans, white shoes[,] and a black shirt with Michael Kors written on the front. Ms. Humphries also reported that [Appellant] might be traveling in a grey Buick. Responding officers put this description on the radio.
Approximately one hour later, [Homestead Borough Police Officers Darnell Coles and James Caterino] observed someone
riding in a grey Buick that matched the description given by Ms. Humphries. A traffic stop was initiated at the intersection of Sarah and West 13th Streets. When police approached the grey Buick, [Appellant] was seated in the passenger seat. A purple and silver firearm was observed in the center cup holder. Although the driver, Jhenae Youngblood [(Ms. Youngblood)], initially reported that she [owned] the gun [and brought it into her vehicle with her], she later told police that when she picked up [Appellant], he got into the vehicle and placed the firearm in the cup holder. A blood stain was observed on the gun[,] and the DNA profile of the major contributor to the blood stain matched the reference sample taken from [Ms.] Humphries.Trial Court Opinion, 1/3/24, at 3 (citations to record omitted).
The court's Pa.R.A.P. 1925(a) opinion is dated December 20, 2023, but was not timestamped by the clerk of courts until January 3, 2024.
Officer Coles filed a criminal complaint, charging Appellant with aggravated assault, persons not to possess firearms, and criminal mischief. At the start of the preliminary hearing, the Commonwealth indicated it would only proceed with the firearm charge, and it withdrew the aggravated assault and criminal mischief charges. The criminal information, filed on November 8, 2021, also included the charge of firearms not to be carried without a license, which was severed for trial.
On February 15, 2022, Appellant filed an omnibus pretrial motion, which included a petition for writ of habeas corpus and a motion to suppress physical evidence. In the petition for writ of habeas corpus, Appellant argued the Commonwealth failed to present prima facie evidence that he constructively possessed the firearm. In the motion to suppress, Appellant argued the vehicle stop was not supported by reasonable suspicion, as the descriptions of Appellant and the vehicle provided by Ms. Humphries were vague. Following a hearing, the trial court denied Appellant's omnibus pretrial motion.
Appellant filed several motions in limine prior to trial. Relevant to this appeal, Appellant sought to exclude testimony from police officers about information they received from Ms. Humphries when they responded to the incident. Appellant argued such testimony constituted inadmissible hearsay. The trial court denied this motion in limine.
The matter proceeded to a jury trial, which took place on October 18-21 and 24, 2022. The jury convicted Appellant of persons not to possess firearms. On February 1, 2023, the trial court sentenced Appellant to 4 to 8 years' imprisonment.
Appellant filed a motion to reconsider or modify sentence. Appellant attached as an exhibit a notarized letter from Ms. Humphries, which he asserts was received by defense counsel on February 9, 2023. In the letter, Ms. Humphries stated she and Appellant merely had a verbal altercation on the date of the incident, and that Ms. Youngblood is the individual who hit her. See Motion to Reconsider or Modify Sentence, 2/10/23, Exhibit A (Letter), at 1 (unnumbered). Ms. Humphries stated Appellant is not violent and is active in his children's lives. See id. at 2-3 (unnumbered). Appellant requested reconsideration of his sentence in light of Ms. Humphries' statements. The trial court denied Appellant's post-sentence motion.
From context, it appears Appellant has children with more than one woman. It is unclear from Ms. Humphries' letter whether he is the father of any of her children.
Appellant filed a timely notice of appeal. Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant raises the following issues for review:
I. Whether the trial court erred in denying Appellant's motion to suppress the vehicle search?
II. Whether the trial court erred in denying Appellant's petition for writ of habeas corpus for the charges of persons not to possess a firearm and carrying a firearm without a license?
III. Whether the trial court erred in applying the excited utterance hearsay exception and admitting into evidence a hearsay statement?
IV. Whether Appellant's right to confront witnesses against him under the Confrontation Clause of the Sixth Amendment was violated?
V. Whether the Commonwealth presented insufficient evidence to support the offense of which Appellant was convicted?
VI. Whether Appellant's conviction was against the weight of the evidence?
VII. Whether the trial court erred in not repairing the mis[s]tatement made by a testifying officer to the jury?
VIII. Whether the trial court erred in denying Appellant's motion to reconsider?Appellant's Brief at 14-15 (issues renumbered).
In his first claim, Appellant asserts the trial court erred in denying his motion to suppress physical evidence recovered following the vehicle stop. Appellant's Brief at 38. Appellant contends police lacked reasonable suspicion to stop the vehicle, because they had only a vague description of Ms. Humphries' assailant. Id. at 39, 42.
Appellant does not specifically identify the physical evidence in his brief. Nonetheless, it is clear Appellant challenges the recovery of the firearm.
In considering this issue, we are mindful of our standard of review:
An appellate court's standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, the appellate court is bound by those findings and may reverse only if the court's legal conclusions are erroneous. Where the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to plenary review.Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015) (citation, brackets and ellipses omitted).
"The United States and Pennsylvania Constitutions protect against unreasonable searches and seizures." Commonwealth v. Rivera, 311 A.3d 1160, 1164 (Pa. Super. 2024). Instantly, the parties agree the vehicle stop was an investigative detention, which must be supported by reasonable suspicion that criminal activity is afoot. See Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005). "Reasonable suspicion requires a finding that based on the available facts, a person of reasonable caution would believe the intrusion was appropriate." Id. (citation omitted).
In evaluating whether reasonable suspicion exists, we examine "the totality of the circumstances to determine whether there was a particularized and objective basis for suspecting the individual stopped of criminal activity." Commonwealth v. Luczki, 212 A.3d 530, 544 (Pa. Super. 2019) (citation and quotation marks omitted). As this Court has explained,
In making this determination, we must give due weight to the specific reasonable inferences the police officer is entitled to draw from the facts in light of his experience. Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, even a combination of innocent facts, when taken together, may warrant further investigation by the police officer.Id. at 544-45 (citation and ellipses omitted).
During the suppression hearing, Officer Coles testified he responded to a reported domestic incident at 347 West 14th Street. N.T. (Suppression), 4/1/22, at 6. When he arrived at the scene, Officer Coles encountered Ms. Humphries, whom he described as distraught and upset. Id. at 8. Ms. Humphries told Officer Coles that Appellant, her ex-boyfriend, had hit her with a gun. Id. at 9-10. Ms. Humphries described Appellant as a "Black male, [with a] bald head." Id. at 11. She also identified Appellant as "Davon." Id. According to Officer Coles, Ms. Humphries explained that Appellant was wearing white shoes, and a black shirt with "Michael Kors" written in white lettering. Id. Further, Ms. Humphries told Officer Coles that Appellant was on foot, "but if he's not, he might be in a gray vehicle." Id. at 48, 50. Officer Coles testified that he provided Appellant's description to dispatch. Id. at 12.
Officer Coles began canvassing the area. Id. at 13. He did not immediately locate Appellant, but police remained in the area. Id. at 13-14. "[S]ome short time later," Officer Coles was contacted by Officer Caterino, who indicated he saw an individual matching Appellant's description. Id. at 14; see also id. (indicating Appellant was located about an hour after Officer Coles reported to the scene of the domestic incident). But see id. at 32 (Officer Coles acknowledging that he had "previously testified" that approximately two hours had elapsed before he initiated the traffic stop).
Officer Caterino testified that he responded to the general area of the incident to serve as backup. Id. at 55. He stated the police dispatch included a description of Appellant, as well as his name. Id. at 58. Officer Caterino observed a silver Buick driving eastbound on West 13th Street, and he identified Appellant as the vehicle's passenger. Id. at 56. Officer Caterino initiated a traffic stop and positioned his police cruiser to block the passenger side door of the Buick. Id.
Officer Coles arrived, and both officers approached the vehicle. Id. at 15. The officers observed a firearm in the cup holder located in the vehicle's center console. Id. at 15, 57; see also id. at 16 (indicating the gun was in "the passenger's side cup holder"). Based on that observation, the officers asked Ms. Youngblood (the driver) and Appellant (the passenger) to exit the vehicle. Id.
The trial court concluded "the totality of the information provided to the police supports this traffic stop." Trial Court Opinion, 1/3/24, at 8. Our review confirms the court's findings are supported by the record, and its legal conclusion is sound. Contrary to Appellant's assertion, the officers had a detailed description of Appellant, including 1) his name, 2) the clothing he was wearing, and 3) the possibility that he was a passenger in a grey Buick. Further, the officers located a grey Buick and identified Appellant as the passenger within one to two hours of responding to the domestic violence incident. Under the totality of the circumstances, the officers had a "particularized and objective basis" for suspecting Appellant of criminal activity. Luczki, 212 A.3d at 544; see also Commonwealth v. Milburn, 191 A.3d 891, 898-99 (Pa. super. 2018) (concluding an investigative detention was supported by reasonable suspicion where police responded to a robbery within minutes; the victim provided a detailed description of the assailants; the victim was "fairly sure" the assailants fled in a vehicle; and officers were able to locate the victim's stolen phone using the "Find My iPhone" app). Accordingly, Appellant's first claim lacks merit.
In his second claim, Appellant asserts the trial court erred by denying his petition for writ of habeas corpus. Appellant's Brief at 32. Appellant contends the Commonwealth failed to present, during the preliminary hearing, evidence establishing a prima facie case of Appellant's guilt. Id. According to Appellant, the Commonwealth did not offer evidence indicating that he possessed the firearm. Id.
This issue is moot, as Appellant was found guilty following a jury trial."[O]nce a defendant has gone to trial and has been found guilty of the crime … charged, any defect in the preliminary hearing is rendered immaterial." Commonwealth v. Sanchez, 82 A.3d 943, 984 (Pa. 2013); Commonwealth v. Dixon, 276 A.3d 794, 799 (Pa. Super. 2022) ("It is well settled that when, at trial, the Commonwealth proves the offense beyond a reasonable doubt, any defects at a preliminary hearing regarding the sufficiency of the evidence are considered harmless." (citation and brackets omitted)). Accordingly, this claim merits no relief.
We discuss Appellant's challenge to the sufficiency of the evidence presented at trial infra.
In his third claim, Appellant argues the trial court erred by denying his motion in limine to exclude testimony from police officers about information they received from Ms. Humphries, who was unavailable as a witness. Appellant's Brief at 26. Appellant claims the testimony constituted hearsay, and the trial court improperly applied the excited utterance exception to the rule against hearsay. Id. According to Appellant, there is no evidence concerning the length of time that elapsed between the purported assault and the officers' conversation with Ms. Humphries. Id. at 30.
"When reviewing the denial of a motion in limine, we apply an evidentiary abuse of discretion standard of review." Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa. Super. 2013) (citation omitted).
When reviewing a challenge to the admissibility of evidence, we note that the admissibility of evidence rests within the sound discretion of the trial court, and such a decision will be reversed only upon a showing that the trial court abused its discretion. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record.Commonwealth v. Gray, 867 A.2d 560, 569-70 (citations, quotation marks, and brackets omitted).
Hearsay is defined as "a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." Pa.R.E. 801(d) (formatting modified). Hearsay is inadmissible, "unless the proffered statement falls within an established hearsay exception." Commonwealth v. Fitzpatrick, 255 A.3d 452, 479 (Pa. 2021) (citing Pa.R.E. 802).
One established hearsay exception is the excited utterance exception. An excited utterance is "[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused." Pa.R.E. 803(2). The comment to Rule 803(2) explains the excited utterance need only relate to the startling event or condition, and it "need not be made contemporaneously with, or immediately after, the startling event. It is sufficient if the stress of excitement created by the startling even or condition persists as a substantial factor in provoking the utterance." Id., Comment.
"As is well-settled, excited utterances fall under the common law concept of res gestae." Commonwealth v. Murray, 83 A.3d 137, 157 (Pa. 2013); see also id. (explaining res gestae statements are excepted from the hearsay rule "because the reliability of such statements [is] established by the statement being made contemporaneous with a provoking event."). To qualify as an excited utterance, a statement must be
[a] spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence which [s]he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from h[er] reflective faculties…. Thus, it must be shown first, that the declarant had witnessed an event sufficiently startling and so close in point of time as to render her reflective thought processes inoperable and, second, that her declarations were a spontaneous reaction to that startling event. The circumstances surrounding the statement may be sufficient to establish the existence of a sufficiently startling event.Id. at 157-58 (emphasis added; citations, paragraph break, and some brackets omitted).
This Court has considered the following factors in determining whether a statement is an excited utterance:
1) [W]hether the declarant, in fact, witnessed the startling event; 2) the time that elapsed between the startling event and the
declaration; 3) whether the statement was in narrative form (inadmissible); and, 4) whether the declarant spoke to others before making the statement, or had the opportunity to do so. These considerations provide the guarantees of trustworthiness which permit the admission of a hearsay statement under the excited utterance exception. It is important to note that none of these factors, except the requirement that the declarant have witnessed the startling event, is in itself dispositive. Rather, the factors are to be considered in all the surrounding circumstances to determine whether a statement is an excited utterance.Commonwealth v. Keys, 814 A.2d 1256, 1258 (Pa. Super. 2003) (citations, quotation marks, and emphasis omitted).
Further, there is no "bright line rule regarding the amount of time that may elapse between the declarant's experience and her statement." Gray, 867 A.2d at 570.
Rather, the crucial question, regardless of time lapse, is whether, at the time the statement is made, the nervous excitement continues to dominate while the reflective processes remain in abeyance. It is the spontaneity of an excited utterance that is the source of reliability and the touchstone of admissibility.Id. at 570-71 (citations, quotation marks, ellipses, and brackets omitted).
Instantly, the trial court determined it properly admitted Ms. Humphries' hearsay statements into evidence under the excited utterance exception, reasoning as follows:
First, the record reflects that Ms. Humphries [experienced] a startling event, namely, she was hit with a gun by her ex-boyfriend, [Appellant]. Second, the evidence shows that Ms. Humphries made [the] statements [at issue] while dominated by her nervous excitement, not her reflective faculties. Officer Coles testified that [Ms. Humphries] was distressed and distraught. Third, Ms. Humphries made her statement close in place and time to the assault. Officer Coles responded quickly to the call[; Ms. Humphries] was still bleeding from her head[;] and she was encountered near the scene of the incident. Finally, the
Commonwealth presented evidence that corroborated the statement[,] as [Appellant] matched the description given by Ms. Humphries and was travelling in a car containing a gun with Ms. Humphries' DNA on it.Trial Court Opinion, 1/3/24, at 4-5.
Our review discloses the trial court's reasoning is supported by the record and the law. Officer Coles testified that during his shift on September 2, 2021, he responded to an incident at 347 West 14th Street at approximately 12:47 a.m. N.T., 10/18-22/22, at 48. He was the first to respond to the call. Id. Officer Coles testified Ms. Humphries was outside and was "very distressed, bleeding." Id. at 48-49; see also id. at 49 (explaining, "She was crying, very angry, sad and hurt."). Officer Coles stated that Ms. Humphries' head was bleeding when he arrived. Id. at 49.
According to Officer Coles, Ms. Humphries promptly stated her ex-boyfriend had hit her. Id. Ms. Humphries supplied Appellant's name and described the clothing Appellant was wearing: "jeans, white shoes, a black shirt with white letters that said Michael Kors on the front." Id. at 50, 53. Ms. Humphries also told Officer Coles that Appellant does not own a car, but he might be in a gray Buick. Id. at 53-54.
Appellant's challenge turns solely on the time elapsed between the incident and Ms. Humphries's statements to Officer Coles. The above- described testimony confirms the trial court's conclusion that Ms. Humphries' statements were made sufficiently close in space and time to the startling incident. Officer Coles encountered Ms. Humphries when he reported to the scene, while she remained visibly upset and bleeding from the head. See Gray, 867 A.2d at 571 (concluding a witness's statement was properly admitted under the excited utterance exception where the witness told police she had been assaulted and her mother had been stabbed; the perpetrator was still upstairs with her mother; and the witness was crying and appeared flustered while talking to the officer). Accordingly, the trial court did not abuse its discretion in admitting Ms. Humphries' statements under the excited utterance exception.
In his fourth claim, Appellant asserts the trial court violated his Confrontation Clause protections by proceeding with the trial without the presence of Officer Caterino and Ms. Humphries. See Appellant's Brief at 43-44.
Appellant's two-paragraph argument is entirely devoid of citation to or discussion of relevant legal authority. Pa.R.A.P. 2119(a) (providing that the argument shall include "such discussion and citation of authorities as are deemed pertinent."). Accordingly, this claim is waived. See Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 781 (Pa. Super. 2015) (en banc) (stating that when an appellant cites no authority to support his argument, "this Court is inclined to believe there is none." (citing Pa.R.A.P. 2119(a) and (b)); see also Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014) (concluding that appellant waived his claim by failing to adequately develop his argument or provide citation to and discussion of relevant authority).
Moreover, Appellant failed to object to the absence of Officer Caterino and Ms. Humphries based on a Confrontation Clause violation at trial. For this reason as well, this claim is waived. See Pa.R.A.P. 302(a) ("Issues not raised in the trial court are waived and cannot be raised for the first time on appeal.").
Even if Appellant had preserved this claim, we would agree with the trial court's reasoning:
With respect to [Officer] Cat[e]rino, video evidence and testimony from Officer Coles was admitted. Given the evidence of record, [Appellant] cannot identify any need for [Officer] Cat[e]rino's testimony. Issues related to the seizure of the gun and the alleged contamination of the evidence were thoroughly and completely developed. As for Ms. Humphries, her statement was corroborated by [Appellant's presence] in the grey Buick sedan, the clothing he was wearing, and her DNA on the gun. Officer Coles testified extensively on direct and cross examination regarding the investigation. Given that [Appellant] was not charged with assault, the right of confrontation does not attach to [Ms.] Humphries.Trial Court Opinion, 1/3/24, 9 (emphasis added); see also generally Commonwealth v. Segarra, 228 A.3d 943, 856 (Pa. Super. 2020) ("The confrontation clause guarantees the accused the right to be confronted with the witnesses against him…." (emphasis added; citation and quotation marks omitted)). Appellant is not entitled to relief on this claim.
In his fifth claim, Appellant contends the evidence adduced at trial was insufficient to support his firearm conviction. Appellant's Brief at 35. Appellant claims the Commonwealth failed to establish his actual or constructive possession of the firearm. Id. at 36. Appellant acknowledges police found "what they believe to be blood" on the firearm, but argues "the alleged blood was never proven to in fact be blood[,] nor was it ever matched with DNA to anyone involved in this matter." Id. at 36-37.
Appellant does not dispute his conviction of a predicate offense. See N.T., 10/18-21/22, at 72-73 (wherein Commonwealth's Exhibit 4 (Appellant's certified conviction) was admitted into evidence without defense objection).
We review challenges to the sufficiency of the evidence with great deference to the credibility determinations of the fact finder:
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 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 finder 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. Gause, 164 A.3d 532, 540-41 (Pa. Super. 2017) (en banc) (citation omitted).
Section 6105 of the Crimes Code defines the offense of persons not to possess firearms, in relevant part, as follows:
A person who has been convicted of an offense enumerated in section (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).
"Illegal possession of a firearm may be established by constructive possession." Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super. 2018); see also Commonwealth v. Hopkins, 67 A.3d 817, 820-21 (Pa. Super. 2013) ("[I]t is possible for two people to have joint constructive possession of an item of contraband.").
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, as with other elements 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, quotation marks, and brackets omitted). "Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not." McClellan, 178 A.3d at 878. Further,
the location and proximity of an actor to the contraband alone is not conclusive of guilt. Rather, knowledge of the existence and location of contraband is a necessary prerequisite to proving the
defendant's intent to control, and, thus, his constructive possession.Parrish, 191 A.3d at 37 (citation omitted).
As noted above, after encountering Ms. Humphries, Officer Coles provided a description of Appellant's clothing to dispatch, as well as the make and model of the vehicle Appellant may be traveling in. At trial, Officer Coles testified that approximately an hour after he encountered Ms. Humphries, Officer Caterino notified him of a grey Buick containing a passenger matching Appellant's description. See N.T., 10/18-21/22, at 55-56. Officer Coles arrived at the location provided by Officer Caterino and initiated a vehicle stop. Id. at 56. Further, Officer Coles testified he had reason to believe someone in the vehicle may be armed, as the initial call was for "a domestic with a firearm." Id. at 66.
From his vantage point at the driver's side of the vehicle, Officer Coles observed Appellant in the passenger seat. Id. at 58. Officer Coles testified he saw a purple and silver firearm in the passenger-side cup holder located in the vehicle's center console. Id. at 58-59; see also id. at 69-70 (while the Commonwealth played for the jury video taken from Officer Caterino's body-worn camera, Officer Coles pointed to the firearm, which was situated behind a water bottle in the center console). Officer Coles acknowledged that he did not observe either the driver or the passenger placing it there. Id. at 59. According to Officer Coles, the firearm was within Appellant's reach. Id. at 70.
Officers Coles and Caterino asked Appellant and Ms. Youngblood to exit the vehicle. Id. at 59. Ultimately, Officer Coles determined the driver, Ms. Youngblood, was the registered owner of both the vehicle and the firearm. Id. at 59-60. After removing the firearm from the vehicle, Officer Coles recovered a magazine and live rounds of ammunition. Id. at 62. Officer Coles also observed a red stain on the firearm, which he "presumed [] to be blood." Id. at 76. Additionally, Officer Coles testified: "after [Ms. Youngblood] recanted what she previously said about bringing [the firearm] from home, she said [Appellant] got in the vehicle and placed the firearm in the cup holder." Id. at 207.
Regarding Officer Coles' reference to Ms. Youngblood recanting a prior statement, we note Officer Coles' testimony that Ms. Youngblood provided inconsistent statements about how the gun came to be in the vehicle. See N.T., 10/18-21/22, 207, 213-14; see also id. at 213-14 (wherein Officer Coles indicated that Ms. Youngblood first told him she brought the firearm into the car with her, but after being informed of suspected blood on the firearm, said she had not brought it with her); 219-20 (trial court confirming it was evident from the video played for the jury that Ms. Youngblood "changed her story" and "once she realized there was blood on the gun, that's when her story changed.").
We also note the following regarding the testing completed on the firearm. The Commonwealth presented Adelee Choban, a forensic biologist employed by the Allegheny County Office of the Medical Examiner's forensic laboratory. N.T., 10/18-21/22, at 235-36. Ms. Choban was offered and qualified as an expert in the field of serology. Id. at 238. Ms. Choban performed a technical review of the original analyst's processing. Id. at 239; see also id. at 239-40 (describing technical review as "examin[ing] all aspects of [the process], whether [the analyst] followed the procedures and whether their report and the processing they did was technically sound").
Ms. Choban testified that, according to the analyst's report, the substance on the firearm tested presumptively positive for blood. Id. at 246. The firearm was also sampled for DNA. Id.; see also id. at 247 (explaining the lab swabbed the firearm for DNA, and those samples are sent for testing). Ms. Humphries also supplied a buccal swab reference sample. Id. at 247.
The Commonwealth also offered the testimony of David Orbin, a forensic biologist employed by the Allegheny County Office of the Medical Examiner, and who was qualified as an expert in DNA analysis. See id. at 270. Mr. Orbin authored the DNA report in this case. Id. at 270-71.
Mr. Orbin testified that the sample taken from the firearm itself contained insufficient DNA to generate a profile for comparison to the reference sample. Id. at 276-77. Regarding the sample taken from the substance found on the firearm (presumptive blood), Mr. Orbin testified, "[t]he DNA profile of the major contributor matched the DNA profile obtained from the reference sample of Wanda Humphries." Id. at 277; see also id. at 278 (stating the DNA profile of the major contributor matched Ms. Humphries' reference sample).
The trial court concluded Appellant's conviction is supported by sufficient evidence based on Ms. Humphries' statement to police that Appellant had hit her in the head with a gun; Ms. Humphries' description of Appellant, as corroborated by Officer Coles; Officer Coles' observation of a firearm in the center console of the vehicle; statements by Ms. Youngblood that Appellant placed the gun in the cup holder; and the blood stain, which contained DNA matching Ms. Humphries. See Trial Court Opinion, 1/3/24, at 6-7.
Viewed in the light most favorable to the Commonwealth as the verdict winner, we agree that the evidence presented at trial, and all reasonable inferences taken therefrom, was sufficient to establish Appellant's knowledge of both the existence and location of the firearm, and thus, Appellant's constructive possession. See Parrish, 191 A.3d at 37. Though Ms. Youngblood was the owner of the vehicle and the firearm, the evidence establishes the firearm was in the center console and readily visible. Further, to the extent Ms. Youngblood provided conflicting statements, we reiterate that the jury was free to consider all, part, or none of the testimony and to make necessary credibility determinations. See Gause, 164 A.3d at 541. As we discern no error by the trial court, Appellant is not entitled to relief on this claim.
In his sixth claim, Appellant argues his conviction is against the weight of the evidence. Appellant's Brief at 37. Appellant again claims there was no evidence establishing his actual or constructive possession of the firearm. Id. Appellant points out that Ms. Humphries later retracted her initial statement that Appellant had a firearm. Id. Further, Appellant argues Ms. Youngblood told police officers that she possessed the firearm on the night of the incident. Id. at 38.
A weight of the evidence claims is addressed to the discretion of the trial court. As this Court has recognized,
[a]ppellate 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.Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa. Super. 2014) (citations omitted).
Instantly, Appellant did not raise a weight claim with the trial court before sentencing, nor did he include a challenge to the weight of the evidence in his post-sentence motion. See Pa.R.Crim.P. 607(a) (requiring a weight of the evidence claim be raised with the trial judge orally or by written motion before sentencing, or in a post-sentence motion). Accordingly, Appellant did not properly preserve this issue for appellate review. See Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009) (holding appellant's failure to raise a weight challenge with the trial court as required by Rule 607(a) resulted in waiver of his claim, even when he included the issue in his concise statement).
We also observe that Appellant failed to develop his weight claim with citation to relevant legal authority. Pa.R.A.P. 2119(a) (providing that the argument shall include "such discussion and citation of authorities as are deemed pertinent."). Moreover, as previously stated, the jury was free to consider any inconsistencies in Ms. Youngblood's testimony, and we may not disturb credibility findings on appeal.
In his seventh claim, Appellant argues the trial court erred by failing to correct a misstatement of law made by Officer Coles during trial. Appellant's Brief at 45. In particular, Appellant refers to the following portion of the trial transcript, pertaining to Appellant's certified conviction of a predicate offense:
[Assistant District Attorney]: … [B]ased on this certified conviction, can [Appellant] lawfully possess a firearm?
[Officer Coles]: [Appellant] cannot own a firearm.
Q: Officer Coles, you said that [Appellant] cannot own a firearm. Can [Appellant] possess a firearm?
A: [Appellant] cannot own or possess a firearm.
Q: And what do you mean by "possess"?
A: As in he can't have it in his hand. He can't have it around him. He can't be near a firearm.N.T., 10/18-21/22, at 74. Appellant points out that during deliberations, the jury queried "whether there [i]s a law that says a felon cannot be in a vehicle with a firearm present." Appellant's Brief at 46. According to Appellant, this jury question evidences the confusion created by Officer Coles' misstatement. Id.
Appellant fails to cite the relevant portion of the transcript. Our own review confirms the jury raised the following question during deliberations:
Is it illegal for a convicted felon to ride in a car with a gun knowingly or unknowingly? If this is too specific, please tell us the law with regards to felons and gun law.N.T., 10/18-21/22, at 478.
We first observe that immediately following the above-quoted statement by Officer Coles, defense counsel objected:
[Defense counsel]: Objection, Your Honor. That would be a mischaracterization of what is the law, and the witness is unable to describe the law to the jury.N.T., 10/18-21/22, at 74-75. The trial court overruled the defense objection
because the law is clear. I'll give the jury the law, and they'll ultimately make the determination regarding whether or not the law applies, and they'll draw their own conclusion.Id. at 75.
Appellant's argument on this issue is hardly a model of clarity. Appellant only asserts the trial court should have "repaired" the misstatement by Officer Coles. Notably, Appellant did not ask the trial court to issue a cautionary instruction after this testimony. Thus, to the extent Appellant argues the trial court erred by failing to "repair" the misstatement through a cautionary instruction, his claim is waived. See Commonwealth v. Bryant, 855 A.2d 726, 739 (Pa. 2004) ("Failure to request a cautionary instruction upon introduction of evidence constitutes a waiver of a claim of trial court error in failing to issue a cautionary instruction.").
To the extent Appellant challenges the court's decision to overrule his objection immediately following the challenged testimony, we review his claim for an abuse of discretion. See Commonwealth v. Williams, 274 A.3d 722, 729 (Pa. Super. 2022) ("An appellate court generally reviews a trial court's decisions regarding the admissibility of evidence for an abuse of discretion."). "An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such a lack of support so as to be clearly erroneous." Id. (citation omitted).
As stated above, the trial court overruled the objection, stating the law is clear, and the jury would be fully instructed before deliberations. See N.T., 10/18-21/22, at 75. The court made this statement in the jury's presence, alerting the jury that it would receive specific instructions concerning the relevant law. Upon review, we discern no clear abuse of the trial court's discretion in overruling the objection. For the foregoing reasons, Appellant's seventh claim merits no relief.
We further note that Appellant does not specifically challenge the content of the jury instructions concerning persons not to possess firearms and possession. The record likewise confirms that Appellant did not object to the jury instructions when (a) the parties discussed the proposed points of charge; (b) the court issued the instructions to the jury; or (c) the court re-issued the instructions in response to the jury's question. See Commonwealth v. Moury, 992 A.2d 162, 179 (Pa. Super. 2010) (concluding the appellant waived his challenge to a jury instruction because he failed to object when the court charged the jury, or in response to the jury's question regarding the charge). Our review likewise confirms the jury instructions accurately stated the law. See Commonwealth v. Vucich, 194 A.3d 1103, 1111 (Pa. Super. 2018) (stating that jury "instructions will be upheld if they adequately and accurately reflect the law and are sufficient to guide the jury properly in its deliberations." (citation omitted)).
In his eighth and final claim, Appellant argues the trial court erred in denying his motion to reconsider or modify his sentence. Appellant's Brief at 47. Appellant contends his motion to reconsider included "newly found evidence" in the form of Ms. Humphries' notarized letter. Id. Appellant argues, "[t]his new evidence was so important and against the finding of guilt and sentence of Appellant that the trial court should have reconsidered its sentence after being presented with such evidence." Id. at 48.
Appellant failed to adequately develop this claim (which conflates the distinct concepts of after-discovered evidence, weight of the evidence, and discretionary aspects of sentencing) for review with citation to and discussion of any pertinent legal authority. See Pa.R.A.P. 2119(a). Accordingly, this claim is waived. See Samuel, 102 A.3d at 1005.
Based upon the foregoing, we affirm Appellant's judgment of sentence.
Judgment of sentence affirmed.
P.J.E. Bender joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.