Com. v. Canty, C.

• Court: Superior Court of Pennsylvania
• Decided: February 17, 2021
• Docket: 620 MDA 2020
• Status: Unpublished

Opinion

J-A29041-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CURAHN LORENZO CANTY : : Appellant : No. 620 MDA 2020

Appeal from the Judgment of Sentence Entered January 8, 2020 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0005916-2018

BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED FEBRUARY 17, 2021

Appellant, Curahn Lorenzo Canty, appeals from the judgment of

sentence imposed after his convictions for persons not to possess firearms,

firearms not to be carried without a license, and possession of a small amount

of marijuana.1 In this appeal, Appellant argues that his conviction for persons

not to possess firearms was against the weight of the evidence. Upon review,

we affirm.

On September 2, 2018, two Lancaster City Bureau of Police officers

approached a car parked illegally in a high-crime location within the City of

Lancaster. Appellant, who was in the front passenger seat of the car, admitted

to possessing marijuana, which he gave to the officers, and he was observed ____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. § 6105(a)(1), 18 Pa.C.S. § 6106(a)(1), and 35 P.S. § 780- 113(a)(31), respectively. J-A29041-20

moving his hand under his right leg. After being removed from the vehicle,

the officers discovered a semi-automatic handgun with an extended magazine

on the passenger seat where Appellant had been sitting.

Appellant was arrested and charged with the above-stated offenses.

The persons not to possess firearms count was bifurcated and Appellant

proceeded to a jury trial on that charge on October 7, 2019. On October 8,

2019, the jury convicted Appellant of that offense. On December 30, 2019,

the trial court sentenced Appellant to a term of imprisonment of five to ten

years. On January 8, 2019, Appellant entered a nolo contendere plea to the

firearms not to be carried without a license and possession of marijuana

charges and he was sentenced on those counts pursuant to a plea agreement.2

After being granted an extension by the trial court, Appellant filed a

post-sentence motion on February 26, 2020, in which he raised the weight-

of-the-evidence claim presented in this appeal. The Commonwealth filed an

answer, and on April 3, 2020, the trial court entered an order denying the

post-sentence motion. Appellant then filed a timely notice of appeal.3

Appellant raises the following issue for our review: “Did the trial court

err and abuse its discretion in not overturning the verdict after trial as it was ____________________________________________

2 Appellant received a sentence of three-and-a-half to seven years of imprisonment on the firearms not to be carried without a license charge and 30 days of probation on the marijuana charge. Both sentences were directed to run concurrently with the sentence on the persons not to possess firearms charge. 3Appellant filed his statement of errors complained of on appeal on May 4, 2020. The trial court entered its opinion on June 2, 2020.

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against the weight of the evidence?” Appellant’s Brief at 4 (unnecessary

capitalization omitted). Appellant argues that the verdict was against the

weight of the evidence based upon the trial testimony of Taylor Eisenberger,

the driver of the stopped vehicle and owner of the firearm in question, that

Appellant was unaware that the handgun was on the front passenger seat

when he entered the car just prior to the officers’ arrival. Appellant contends

that Eisenberger’s post-arrest statement that Appellant was aware of the gun

was made after he was threatened with losing his car and license to carry a

firearm if he did not implicate either Appellant or the third occupant of the car.

Appellant argues that, based on Eisenberger’s ownership of the firearm and

proximity to Appellant prior to their interactions with the police, Eisenberger’s

testimony so outweighed the Commonwealth’s contrary evidence that a new

trial is necessary.

We are guided by the following principles when reviewing a weight-of-

the-evidence claim. “The weight of the evidence is exclusively for the finder

of fact, who is free to believe all, none or some of the evidence and to

determine the credibility of witnesses.” Commonwealth v. Cramer, 195

A.3d 594, 600 (Pa. Super. 2018) (citation omitted). A verdict will only be

reversed as against the weight of the evidence where the evidence is “so

tenuous, vague and uncertain that the verdict shocks the conscience of the

court.” Id. at 601 (citation omitted). The factfinder is charged with the

responsibility to resolve contradictory testimony and questions of credibility,

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and we may not substitute our judgment in place of the factfinder’s. Id. at

600.

“[A]ppellate review of a weight claim consists of a review of the trial

court’s exercise of discretion, not a review of the underlying question of

whether the verdict is against the weight of the evidence.” Commonwealth

v. Rosser, 135 A.3d 1077, 1090 (Pa. Super. 2016) (en banc) (citation

omitted). When the trial court finds that the verdict is not against the weight

of the evidence, “we must give the gravest consideration to the trial court’s

conclusion because it is the trial court, and not the appellate court, that ‘had

the opportunity to see and hear the evidence presented.’” Cramer, 195 A.3d

at 601 (citation omitted). Our review of weight-of-the-evidence claims is

“extremely limited” and solely “consists of a review of the trial court’s exercise

of discretion, not a review of the underlying question of whether the verdict is

against the weight of the evidence.” Rosser, 135 A.3d at 1090 (citation

omitted).

The evidence elicited at trial reveals that, on September 3, 2018,

Officers Timothy Sinnott and Jacob Bingham were on patrol in a marked police

car when they saw a car parked in a posted no-parking zone on the 500 block

of Locust Street in Lancaster. N.T., 10/7/19, at 71-74, 155-56. Officer

Sinnott described that block during his testimony as “an extremely high crime

area,” and each officer stated that they had made numerous arrests for

narcotics, firearms, and violent offenses on that block. Id. at 72-73, 156-58.

The officers could detect that the parked vehicle was occupied as they

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approached, and Officer Sinnott testified that he saw no one entering or

exiting during the fifteen seconds from when they first saw the vehicle to when

they stopped their own car. Id. at 75-76, 158. While it was nighttime and

the area of the stopped vehicle was not well illuminated, the officers had good

visibility of the car owing first to the headlights of the police vehicle and then

to their flashlights once they had exited their vehicle. Id. at 76-78, 92-93,

158-59.

Officer Sinnott approached the driver’s side of the stopped car where he

encountered Eisenberger in the driver’s seat and the third individual in the

vehicle, Isaac Lopez, seated behind Eisenberger, while Officer Bingham made

contact with Appellant in the front passenger seat. Id. at 78-79, 156-60.

Officer Bingham first asked Appellant for identification and then if there was

anything in the car that should not be there. Id. at 80, 160, 167-68.

Appellant did not give an audible response to this question and instead took a

baggie of marijuana out of his right rear pocket and threw it on the center

console. Id. at 80, 167-68. During this initial portion of the encounter, Officer

Bingham described Appellant as having a “very nervous” and distracted

demeanor and he appeared to be listening to the conversation Officer Sinnott

was having with the other occupants of the vehicle rather than to Officer

Bingham. Id. at 162-63.

Officer Bingham then told Appellant that “if there’s anything else in the

car, we’re going to find it.” Id. at 168. Officer Bingham stated that at this

point he observed Appellant’s chest rising and falling as he became more

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nervous; Appellant then lifted his hands up from his lap and moved them out

through the open window. Id. at 164-65, 168-69. Officer Bingham asked

Appellant to calm down and place his hands back on his lap. Id. at 165-66.

Appellant responded that he did not “want to get shot.” Id. at 165.

Officer Bingham described Appellant’s next actions as follows:

After that he did put his hands down on his lap and immediately reached -- he leaned with his whole body over to the left side in a very clear unnatural way and he moved his right hand, which was on his right, and began to, with his hands still on his thigh, reach underneath.

Id. at 166-67. Officer Bingham stated that he instructed Appellant to stop

reaching under his leg, but Appellant continued to do so. Id. at 167. Officer

Bingham then grabbed Appellant’s wrist firmly. Id. The officers then asked

Appellant and Eisenberger to place their hands on the dashboard and Lopez

to place his hands on the driver’s seat headrest, while they waited for backup.

Id. at 81-82.

Once backup arrived, Officer Bingham removed Appellant from the

vehicle. Id. at 83, 169-70. At that point, Officer Sinnott could see the firearm

on the front passenger seat in the area where Appellant’s right buttocks had

been. Id. at 83-84. Officer Sinnott informed Officer Bingham of the presence

of the firearm and the latter retrieved it after placing Appellant under the

supervision of the backup officers. Id. at 84, 169-71. Officer Sinnott testified

that there was no way that either Eisenberger or Lopez could have placed the

firearm on Appellant’s seat as he was removed from the car because the other

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two men remained still the whole time in compliance with the officer’s

instructions. Id. at 84-85.

The firearm was a Glock 43 nine millimeter semi-automatic pistol with

a ten bullet extended magazine. Id. at 88-90, 108. Officer Sinnott testified

that while the gun was relatively small and commonly used for concealed

carry, the extension on the magazine of several inches made the gun bulkier

and defeated the purpose of concealment. Id. at 95, 100. The parties

stipulated that the pistol was a functional firearm and that Appellant was

prohibited by law from possessing due to 2014 burglary and robbery

convictions. N.T., 10/8/19, at 207-08. The pistol was submitted for DNA and

fingerprint testing, but insufficient genetic material was available for testing

and no usable fingerprints could be obtained from the pistol. N.T., 10/7/19,

at 117, 143-44.

Eisenberger testified at trial on behalf of the defense that he owned the

Glock pistol and had a valid license to carry the firearm. N.T., 10/8/19, at

213-14. Eisenberger stated that he had no special place where he kept the

pistol in his car and sometimes he would put it in the middle compartment or

under the seat or just throw it “wherever.” Id. at 215-16. Eisenberger often

placed the gun on the front passenger seat for storage. Id. at 217.

Eisenberger testified that on September 3, 2018, he had parked in the

no-parking zone in the vicinity of Lopez’s residence, standing outside talking

with Appellant and Lopez for approximately 30 minutes. Id. at 211. They

entered the car only one or two minutes prior to the police arriving. Id. at

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213, 218. Eisenberger stated that during the stop, he told Officer Sinnott that

there was a firearm in the vehicle and he had a license to carry, but he was

not sure where exactly in the car the pistol was located. Id. at 216, 225-26.

Eisenberger testified that he never gave Appellant the pistol to hold, never

informed Appellant where the firearm was located, and never saw Appellant

handling the firearm. Id. at 217-19. While Eisenberger noticed that Appellant

looked nervous, he did not see Appellant move his hands at all. Id. at 216-

17.

Eisenberger testified that, during a later interview at the police station,

the officer he spoke with told him that he could potentially lose his car and

license to carry if he did not say that one of the vehicle’s other occupants was

aware of the firearm’s presence in the car. Id. at 221-22. Eisenberger then

informed the officer that Appellant knew the firearm was on the passenger

seat. Id. at 222. Eisenberger explained that this statement to the officer was

not truthful and he only said it to avoid any negative consequences or further

dealings with the police. Id. at 222-24.

The Commonwealth then called Officer Sinnott as a rebuttal witness to

Eisenberger’s testimony. Officer Sinnott testified that Eisenberger told him

during the traffic stop that there was a firearm in the vehicle and that it might

be in the glove compartment or in between the seats. Id. at 237-38. Officer

Sinnott stated that when he asked Eisenberger about the firearm his

demeanor became “extremely nervous” and he “started [] fidgeting around in

the car.” Id. at 238-39. Eisenberger then asked to get out of the car, which

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“raised [Officer Sinnott’s] concern level pretty high” and led him to call for

backup. Id. at 239.

Officer Sinnott stated that his conversation with Eisenberger at the

police station occurred near the booking counter outside the presence of

Appellant and Lopez. Id. at 239-41. Eisenberger told the officer that he had

given Appellant the firearm prior to the arrival of the police and he thought

Appellant had the gun in his pocket when they arrived. Id. at 243.

Eisenberger stated that he was not sure how the firearm had ended up under

Appellant’s leg. Id. Officer Sinnott described Eisenberger’s demeanor as calm

and that the conversation at the police station was “nonchalant [and] normal.”

Id. at 244. Officer Sinnott testified that he told Eisenberger that it was

possible he would lose his license to carry over the incident “but it was just []

an informative thing” rather than a threat, and the officer stated that he did

not tell Eisenberger that he would lose his car. Id. at 244-246.

Reviewing this evidence, the trial court concluded that the jury’s verdict

was not so contrary to the evidence as to shock the court’s sense of justice.

Trial Court Opinion, 6/2/20, at 8. While the trial court acknowledged

Eisenberger’s testimony that Appellant was never in possession of the firearm,

it contrasted it with the testimony of Officers Sinnott and Bingham that the

pistol was found on the passenger seat in the space vacated by Appellant’s

upper right leg, Appellant had been fidgeting with something in that area

under his right leg during the traffic stop, and there was no possibility that

either of the other two occupants could have placed the firearm on the seat.

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Id. at 7-8. The trial court further observed that Eisenberger admitted in his

testimony that he gave inconsistent statements to police on the night of the

incident, and it was solely for the jury to decide whether to credit or discredit

his trial testimony. Id. at 8. As the trial court explained, the jury was

instructed that if it found Eisenberger gave a statement on an earlier occasion

that was inconsistent with his trial testimony, the jury could consider this fact

to judge Eisenberger’s credibility and the weight of his testimony. Id. at 8

n.5 (citing N.T., 10/8/19, at 291).

Upon review, we discern no abuse of discretion in the trial court’s finding

that Appellant’s conviction for persons not to possess firearms was not against

the weight of the evidence. The evidence was not “so tenuous, vague and

uncertain that the verdict shocks the conscience of the court,” but rather the

testimony of the two officers regarding the September 3, 2018 traffic stop was

definite, certain, and internally consistent. Cramer, 195 A.3d at 600. The

officers’ testimony showed that Appellant was sitting directly on top of a

firearm and that Appellant made motions reaching under his right leg at the

exact position where the firearm was found once Appellant stood up. While

Eisenberger testified at trial that he had left the pistol on the passenger seat

and Appellant had no knowledge or possession of it, Eisenberger also admitted

that he informed the police at the station that Appellant was aware that the

firearm was on the passenger seat. Officer Sinnott’s testimony was consistent

with Eisenberger’s post-arrest statement regarding Appellant’s knowledge of

the gun. The question of whether to accept as credible Eisenberger’s different

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account of the events during his trial testimony was squarely within the jury’s

authority as fact-finder, and we may not substitute our judgment on this

question for that of the jury. Id. at 600. Appellant is therefore entitled to no

relief on his weight-of-the-evidence claim.

Appellant also argues that the jury issued an inconsistent verdict based

on the fact that the jury found in response to a special interrogatory that

Appellant was not “in physical possession or control of the firearm, whether

visible, concealed about [Appellant] or within [Appellant’s] reach.” N.T.,

10/8/19, at 312.4 Appellant contends that the jury’s “inherently self-

contradicting” finding was “counterintuitive as a person cannot possess a

firearm if he does not control [] the firearm.” Appellant’s Brief at 10, 12.

While Appellant raised this claim in his Pa.R.A.P. 1925(b) statement, he

did not include this issue in the statement of questions presented section of

his appellate brief, nor did he include a separate section for this issue in the

argument section of his brief. Concise Statement of Errors Complained of on

Appeal, 5/4/20, ¶3. Appellant also failed to cite to any relevant authority or

develop this argument in any meaningful way to allow for our review.

Therefore, we conclude that this issue is waived. See Pa.R.A.P. 2116(a) (“No

question will be considered unless it is stated in the statement of questions

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4 The trial court directed that the jury answer the special interrogatory if it found Appellant guilty of persons not to possess firearms in order to determine whether the offense would be graded as a felony of the first degree or second degree. N.T., 10/8/19, at 302-03; 18 Pa.C.S. § 6105(a.1)(1), (1.1)(i).

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involved or is fairly suggested thereby.”); Pa.R.A.P. 2119(a) (the argument

section of the appellant’s brief “shall be divided into as many parts as there

are questions to be argued”); In the Interest of D.R.-W., 227 A.3d 905,

910-11 (Pa. Super. 2020) (appellant’s failure to properly divide brief into as

many questions sought to be argued coupled with brief’s lack of citations to

relevant authority and otherwise undeveloped argument resulted in waiver of

claims); Werner v. Werner, 149 A.3d 338, 341 (Pa. Super. 2016) (failure to

include issue in statement of questions presented portion of an appellant’s

brief generally results in waiver).5

Judgment of sentence affirmed.

5 Even if we were to address Appellant’s inconsistent verdict argument, we would find that it lacks merit. It is well-established that inconsistent jury verdicts are permissible and will not be disturbed so long as there is sufficient evidence to support the verdict. Commonwealth v. Burton, 234 A.3d 824, 829 (Pa. Super. 2020). Viewed in the light most favorable to the Commonwealth, the evidence here was clearly sufficient to show that Appellant possessed the firearm within the meaning of the persons not to possess statute. See Commonwealth v. Hopkins, 67 A.3d 817, 819, 821 (Pa. Super. 2013) (evidence was sufficient to show that defendant had constructive possession of firearm where the firearm was found tucked between his car seat and center console and the defendant was seen reaching in that area just prior to his apprehension); see also Commonwealth v. Rose, 960 A.2d 149, 157-59 (Pa. Super. 2008) (jury’s disregard of instructions on verdict slip by returning a guilty verdict that was inconsistent with their answer to interrogatory was not grounds for setting aside verdict as there was sufficient evidence to support the verdict and the jury’s decision “may best be described as an exercise in lenity”).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 02/17/2021

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