Com. v. Gordon, K.

Opinion

J-S02033-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

KAREEM GORDON

Appellant No. 3588 EDA 2014

Appeal from the Judgment of Sentence Entered November 14, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0011236-2013

BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED JULY 07, 2016

Appellant, Kareem Gordon, appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County on November

14, 2014, revoking his parole and sentencing him to an aggregate of five to

ten years of incarceration to be followed by five years of reporting probation.

Upon review, we affirm the revocation of Appellant’s parole, vacate

Appellant’s judgment of sentence, and remand for resentencing.

On July 16, 2014, Appellant entered a negotiated guilty plea on four

counts: Count 1 – Firearms not to be carried without a license; Count 2 –

Carrying firearms in public in Philadelphia; Count 4 - Fleeing or attempting

to elude an officer; and Count 5 - Possession of a firearm by a prohibited J-S02033-16

person.1 An order of nolle prosequi was entered as to Count 3. In

accordance with plea negotiations, Appellant was sentenced to eleven and

one-half to twenty-three months of incarceration followed by three years’

reporting probation on Count 1 and five years’ consecutive probation on

Count 4. As to Counts 2 and 5, there was a determination of guilt without

further penalty.

Appellant was paroled on September 18, 2014. However, on October

4, 2014, Appellant was arrested for possession of a firearm by Officer Robert

McCuen. The Commonwealth then moved for revocation of Appellant’s

parole.

At the parole revocation hearing held on November 14, 2014, the

Commonwealth presented the testimony of Officer McCuen, which

established the following. On October 4, 2014 around 8:00 p.m., Officer

McCuen and his partner conducted a vehicle investigation. N.T. Violation

Hearing, 11/14/14, at 8-9. The vehicle belonged to the driver and Appellant

was in the passenger’s seat. Id. at 14. As Officer McCuen approached the

passenger’s side of the car, through the back window of the vehicle he

observed Appellant lean forward toward the glove box and then lean back.

Id. at 10, 18. Appellant’s hands were “really nervous” and “shaking” and

Appellant started doing something on his phone. Id. at 10, 12-13.

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1 Respectively, 18 Pa.C.S.A §§ 6106, 6108, 75 Pa.C.S.A. § 3733, and 18 Pa.C.S.A. § 6105.

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Appellant’s heart was beating so hard that Officer McCuen could see

Appellant’s shirt rising from his chest. Id. at 13. Officer McCuen then asked

Appellant to step out of the car, conducted a frisk of Appellant’s person, and

removed him to the rear of the vehicle. While his partner had Appellant at

the rear of the car, Officer McCuen went to the front part of the car and

recovered a loaded handgun with an obliterated serial number from the

glove box. Id. at 10-11.

On cross-examination, Officer McCuen testified that the driver, who

was still in the car, was surprised at the sight of the gun stating, “Oh shit.

That’s not my gun. I’m a correctional officer in Delaware County.” Id. at

16. The driver was released without giving any further statements, and it

was not verified whether or not the driver was actually a correctional officer.

Id. at 17. Additionally, Officer McCuen indicated that it was possible

Appellant was talking on his phone when he initially approached the vehicle

and that Appellant complied with his request to stop talking on the phone.

Id. at 21. Further, Officer McCuen never saw Appellant’s hands near the

glove box. Id. at 22.

At the conclusion of the hearing, the trial court determined Appellant

had violated his parole. The trial court resentenced Appellant following the

violation hearing as follows:

Count 1 – Firearms not to be carried without a license (18 Pa.C.S. § 6106): parole revoked and 2 ½ - 5 years incarceration.

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Count 2 – Carrying firearm in public in Philadelphia (18 Pa.C.S. §6108): 2 ½ - 5 years incarceration, concurrent with Count 1;

Count 4 – Fleeing or attempting to elude an officer (75 Pa.C.S. §3733): 5 years probation consecutive to Count 1; and

Count 5 – Possession of a firearm by prohibited person (18 Pa.C.S. § 6105): 2 ½ - 5 years incarceration, consecutive to Count 1.

Appellant timely filed a notice of appeal and, as ordered by the trial

court, a Pa.R.A.P. 1925(b) statement. The trial court issued a Pa.R.A.P.

1925(a) opinion.

On appeal, Appellant raises two issues for our review.

1. Did the court below err by finding Appellant in violation of his [parole][2] based on testimony that was insufficient to prove that Appellant had actual or constructive possession of a gun recovered from the glove compartment of a vehicle in which he was a passenger?

2. Did the lower court impose an illegal sentence when it resentenced Appellant on two counts for which Appellant had originally received no further penalty?

Appellant’s Brief at 4.

Appellant first claims his sentence should be vacated because the trial

court erred in revoking his parole. Appellant alleges the Commonwealth

failed to provide sufficient evidence to prove that Appellant had actual or

constructive possession of the recovered firearm. Appellant argues,

therefore, that the trial court erred in finding that Appellant had possession ____________________________________________

2 In his brief, Appellant consistently misstates that he was on probation. Appellant was on parole at the time of his arrest.

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of the weapon. Id. at 16. Essentially, Appellant argues this Court should

reinstate his parole and vacate his sentence because the Commonwealth

failed to prove he had possession of the firearm recovered from the glove

box. Id. at 19.

Possession can be proven by actual possession or by constructive

possession. Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super.

2013).

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 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.

Id. Further,

the purposes of a court’s parole-revocation hearing—the revocation court’s tasks—are to determine whether the parolee violated parole and, if so, whether parole remains a viable means of rehabilitating the defendant and deterring future antisocial conduct, or whether revocation, and thus recommitment, are in order. The Commonwealth must prove the violation by a preponderance of the evidence and, once it does so, the decision to revoke parole is a matter for the court’s discretion.[3] . . .

3 “[A]n abuse of discretion is not merely an error in judgment. Instead, it involves bias, partiality, prejudice, ill-will, or manifest unreasonableness.” Commonwealth v. Kalichak, 943 A.2d, 285, 290 (Pa. Super. 2008) (citation omitted).

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Following parole revocation and recommitment, the proper issue on appeal is whether the revocation court erred, as a matter of law, in deciding to revoke parole and, therefore, to recommit the defendant to confinement.

Kalichak, 943 A.2d at 290-91 (citations omitted).

The record reveals the Commonwealth proved that Appellant violated

his parole by a preponderance of the evidence, and that the trial court fully

addressed whether parole remained a viable means of rehabilitating

Appellant and deterring his future antisocial conduct. In particular, the trial

court considered Appellant’s movements, behavior, and his placement in the

car in relation to the firearm in the glove box. N.T. Violation Hearing,

11/14/14, at 31. Based on these facts, the trial court determined it was

more likely than not that Appellant had constructive possession of the

recovered firearm. Id. at 35, 40. Additionally, the trial court held that it no

longer believed parole was a viable means of rehabilitating Appellant or that

it would deter any future criminal conduct. Id. at 38-44. As such, the trial

court did not abuse its discretion or err in revoking Appellant’s parole.

In his second issue, Appellant challenges the legality of his sentence

and the jurisdiction of the trial court. Appellant argues that his sentence

was illegal as the trial court imposed a sentence on Counts 2 and 5 for which

Appellant had originally received a sentence of guilty with no further penalty.

Appellant further argues that the trial court had no jurisdiction to impose

this sentence as the thirty-day period for altering or modifying Appellant’s

sentence had passed.

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Both the trial court and the Commonwealth agree with Appellant that

the sentence imposed is illegal and that the trial court could not impose,

upon revocation of parole, new sentences for Counts 2 and 5. The trial court

requests a remand for resentencing.4 As this Court has previously

explained:

Unlike a probation revocation, a parole revocation does not involve the imposition of a new sentence. Indeed, there is no authority for a parole-revocation court to impose a new penalty. Rather, the only option for a court that decides to revoke parole is to recommit the defendant to serve the already-imposed, original sentence. At some point thereafter, the defendant may again be paroled.

Kalichak, 943 A.2d at 290; see also 42 Pa.C.S.A. § 9776(e). Accordingly,

the trial court was permitted only to recommit Appellant under the terms of

his original sentence, not to impose a new sentence. It was error to impose

a sentence on Counts 2 and 5, and those sentences will therefore, be

vacated.

Although not raised by Appellant, we sua sponte also raise the legality

of the trial court’s resentencing on Count 1. Appellant was initially

sentenced on Count 1 to 11 ½ - 23 months’ incarceration, followed by three

4 Challenges to an illegal sentence can never be waived. Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa. Super. 2003). The trial court requests that we remand for resentencing as it imposed an illegal sentence with respect to Counts 2 and 5, as a finding of guilt with no further penalty was originally entered on those counts more than thirty days prior. Trial Court Opinion, 3/17/15, at 2 (citing Commonwealth v. Williams, 97 A.2d 1205, 1210 (Pa. Super. 2010)).

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years’ reporting probation. After his violation hearing, Appellant was

resentenced on Count 1 to 2 ½ - 5 years’ incarceration. As previously

stated, upon parole revocation, a sentencing court may only recommit the

defendant to serve the already-imposed original sentence. It may not

impose a new penalty. Here, the trial court improperly increased the penalty

originally imposed on Count 1 after finding a violation of parole, as opposed

to committing Appellant to his original sentence. This too was error

requiring a remand for resentencing.

As the trial court did not abuse its discretion or err in revoking

Appellant’s parole, we affirm Appellant’s parole revocation. We however

vacate Appellant’s judgment of sentence to the extent that the trial court

imposed an illegal sentence, and remand for resentencing consistent with

this Memorandum.

Revocation of parole affirmed. Judgment of sentence vacated. Case

remanded for further proceedings. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/7/2016

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