J-S18007-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JARVIS PAYTON,
Appellant No. 2583 EDA 2013
Appeal from the Judgment of Sentence Entered August 9, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0013450-2012
BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 17, 2015
Appellant, Jarvis Payton, appeals from the judgment of sentence of
eight and a half (8½) to seventeen (17) years’ incarceration, followed by five
(5) years’ probation, imposed after he was convicted of persons not to
possess firearms, firearms not to be carried without a license, and carrying
firearms on public streets or public property in Philadelphia. Appellant
challenges the sufficiency of the evidence to sustain his convictions and
requests that this matter be remanded to the trial court for further
proceedings based on after-discovered evidence. We conclude that the
sufficiency claim is without merit, but we remand for further proceedings.
The trial court has set forth the facts which led to Appellant’s
convictions as follows: J-S18007-15
On October 23, 2012, at approximately 8:45 p.m., Philadelphia Police Officer David O’Connor was on routine patrol with his partner on the 300 block of East Upsal Street when he observed a blue Ford Aerostar minivan that was being operated with a non-working brake light. After following the vehicle for one block, the officers stopped the vehicle for investigation. As Officer O’Connor exited the patrol car and approached the vehicle, he had a clear view inside the vehicle through the rear window. The area where the vehicle was stopped was well lit. Officer O’Connor observed three males inside. One male was located in the driver’s seat, one male was seated in the front passenger seat, and [Appellant] was seated in the middle row of the vehicle, in the seat directly behind the driver.
As Officer O’Connor approached the vehicle, he observed [Appellant] making numerous movements. Specifically, Officer O’Connor observed [Appellant] reaching down and to his right with the upper half of his body shifting toward the passenger side. As [Appellant] was making these movements, he was looking back at Officer O’Connor. The two other occupants did not make any movements as Officer O’Connor approached the vehicle.
Officer O’Connor initially attempted to have the passengers exit the vehicle through the side door in the middle of the vehicle. No one could open the middle side door, so all of the front passengers exited first and were taken to the patrol car while [Appellant] remained alone in the rear of the vehicle for a short period of time before exiting. Officer O’Connor returned to search the car and immediately found a silver handgun, loaded with eight live rounds. The gun was located within the immediate reach of where [Appellant] was seated, i.e., on the floor next to the middle row passenger side seat where [Appellant] was seated. This is the same area in which Officer O’Connor previously saw [Appellant] reaching toward. Upon recovery of the gun, [Appellant] provided Officer O’Connor with a false name.
At trial, [Appellant] testified that he was aware that a gun was recovered next to his seat in the same place where Officer O’Connor observed him reaching, but denied that he saw the gun. [Appellant] stipulated that he ha[d] a prior conviction in 2005 for a crimen falsi [offense].
Trial Court Opinion (TCO), 5/16/14, at 1-2 (citations to the record omitted).
-2- J-S18007-15
Based on this evidence presented at a non-jury trial on June 7, 2013,
Appellant was found guilty of one count each of persons not to possess
firearms,1 firearms not to be carried without a license,2 and carrying firearms
on public streets or public property in Philadelphia.3 On August 9, 2013, he
was sentenced by the court to eight and a half (8½) to seventeen (17)
years’ incarceration, followed by five (5) years’ probation. Appellant filed a
timely notice of appeal, as well as a timely concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), wherein Appellant
preserved his sufficiency claim. In response, the trial court filed a Rule
1925(a) opinion addressing the sufficiency of the evidence. Subsequently,
Appellant waived his right to counsel, proceeded pro se on appeal,4 and filed
a motion to submit after-discovered evidence. Said motion was denied
without prejudice by the trial court. Therefore, Appellant additionally
presents the issue of after-discovered evidence on appeal.
____________________________________________
1 Pursuant to 18 Pa.C.S. § 6105(a)(1). 2 Pursuant to 18 Pa.C.S. § 6106(a)(1). 3 Pursuant to 18 Pa.C.S. § 6108. 4 On May 29, 2014, Appellant filed a motion to proceed on appeal pro se. A Grazier hearing was held on October 9, 2014, whereby Appellant waived his right to counsel and was granted leave to proceed pro se. Appellant’s Brief, at 6. See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
-3- J-S18007-15
First, we address the merits of the sufficiency claim. Specifically,
Appellant presents the following issue for our review: “Did the trial court err
when it found the evidence sufficiently proved beyond a reasonable doubt
that … Appellant was in constructive possession of a firearm found on the
passenger side floor of a minivan in which he was a passenger with two
other occupants?” Appellant’s Brief, at 4.
To begin, we note our standard of review for a challenge to the
sufficiency of the evidence:
In reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense. Commonwealth v. Moreno, 14 A.3d 133 (Pa. Super. 2011). Additionally, we may not reweigh the evidence or substitute our own judgment for that of the fact finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa.Super. 2009). The evidence may be entirely circumstantial as long as it links the accused to the crime beyond a reasonable doubt. Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
Each of the counts of which Appellant was convicted requires proof of
possession of a firearm. Where there is a lack of evidence of literal, physical
possession, “the Commonwealth may sustain its burden by showing
constructive possession.” Commonwealth v. Harris, 397 A.2d 424, 429
(Pa. Super. 1979).
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.
-4- J-S18007-15
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.
Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013) (quoting
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012)).
Appellant avers that the Commonwealth failed to prove he
constructively possessed the firearm found on the floor of the vehicle at the
time of his arrest. Appellant alleges that the officers merely saw him moving
towards the right side of the vehicle but never actually saw him hold or drop
the firearm, Appellant’s Brief, at 15, and states “it is not logical to conclude
that [he] would have been able to see where the firearm was hidden on the
floor,” id. at 12, as Officer O’Connor needed “to use his flashlight to
illuminate the spot where the gun was found[,]” id. He further argues that
the other two occupants of the vehicle had equal access and “could … just as
easily have placed th[e] firearm on the floor.” Id. at 10. We disagree.
In support of his argument, Appellant relies heavily on
Commonwealth v. Boatwright, 453 A.2d 1058 (Pa. Super. 1982), where
the defendant was seated in the front passenger seat of a parked vehicle,
accompanied by the driver and another passenger seated in the rear,
directly behind the driver. As the officer in Boatwright approached the
vehicle, he observed the defendant’s body moving towards his left rear.
When the officer shined a light into the vehicle, he discovered a gun on the
left rear floor. The Boatwright court found the evidence insufficient to
-5- J-S18007-15
prove constructive possession of the firearm where the only evidence was
the officer’s testimony that he saw the defendant move towards the left rear
of the vehicle where another passenger was also seated. Id. at 1059.
A review of the evidence in the instant case discloses that Appellant’s
reliance on the decision in Boatwright is misplaced. Unlike in Boatwright,
there were no other occupants seated in the middle row where the firearm
was found. TCO, at 2. Furthermore, Officer O’Connor testified that
Appellant was the only occupant to make furtive movements as he
approached the car and the firearm was found in the same area towards
which Appellant had been observed bending and leaning. Id. at 1-2.
Additionally, Appellant was left alone in the vehicle for a short period of time
prior to the discovery of the firearm. Id. at 2. Although Officer O’Connor
used a flashlight to conduct his search of the vehicle, the firearm was not
hidden and was within Appellant’s view. Id. at 4. Finally, we concur with
the Commonwealth that Appellant exhibited a consciousness of guilt when
he provided Officer O’Connor with a false name. Viewed in the light most
favorable to the Commonwealth as the verdict winner, we conclude that
there was sufficient evidence to support the trial court’s finding of
constructive possession and, therefore, Appellant’s sufficiency claim lacks
merit.
Next, we address the question of whether this matter should be
remanded to the trial court, “for further proceedings based on after-
discovered evidence regarding the illegal searches and police misconduct by
-6- J-S18007-15
Officer David O’Connor, the prosecution[’]s only testifying witness?”
Appellant’s Supplemental Brief, at 2.
On October 20, 2014, directly following a grant of leave to proceed pro
se, Appellant filed a motion to submit after-discovered evidence pursuant to
Pa.R.Crim.P. 720(C).5 Having determined that Appellant has followed the
proper procedure to request a new trial, we now turn to the merits of his
request for relief.
It has been well-established that in order to be granted a new trial on
the basis of after-discovered evidence:
[A]ppellant must demonstrate that the evidence: (1) could not have been obtained prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely to impeach the credibility of a witness; and (4) would likely result in a different verdict if a new trial were granted.
Commonwealth v. Perrin, 108 A.3d 50 (Pa. Super. 2015) (quoting
Commonwealth v. Montalvo, 986 A.2d 84, 109 (Pa. 2009)). Additionally,
“the proposed new evidence must be ‘producible and admissible.’”
Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014) (quoting
Commonwealth v. Chamberlain, 30 A.3d 381, 414 (Pa. 2011)).
5 “[A]fter-discovered evidence discovered during the direct appeal process must be raised promptly during the direct appeal process, and should include a request for a remand to the trial judge ….” Pa.R.C.P. 720, Comment.
-7- J-S18007-15
Appellant presents an article published by the Philadelphia Daily News
on June 12, 2014,6 which alleges that retired police officer, Herbert
Spellman, filed a civil rights lawsuit against Officer O’Connor and Officer
Momme, the same officers involved in Appellant’s arrest,7 for the unlawful
stop and frisk of his person based on his race. Although the lawsuit brought
by Spellman was still pending, and thus provides mere speculations, the
article also references another federal lawsuit filed by Aaron Bell, in which
Officer O’Connor was named a defendant.8 In Bell v. City of Philadelphia,
the plaintiff alleged he was unlawfully stopped and searched by Officer
O’Connor and his former partner, Officer Goshert. The facts in Bell are
similar to the case before us, as Bell involved a traffic stop during which a
firearm was recovered from the plaintiff’s vehicle by Officer O’Connor. The
newspaper article reports that a jury verdict was entered in Bell, on May 29,
2014, awarding the plaintiff compensatory damages and punitive damages
6 Julie Shaw, Suit: Blue-on-blue stop was also white-on-black, Philadelphia Daily News, June 12, 2014. 7 Appellant’s convictions stemmed from a vehicle stop involving Officers David O’Connor and Brad Momme. Officer Momme did not testify at trial. Officer O’Connor was the prosecution’s sole testifying witness. Appellant’s Supplemental Brief, at 4. 8 See Appellant’s Supplemental Brief, Exhibit “A.” (where Appellant attaches a docket for the Eastern District of Pennsylvania, Civil Action Case #: 2:12- cv-02625-GP, Aaron L. Bell v. City of Philadelphia, Police Officer David O’Connor, and Police Officer Colin Goshert).
-8- J-S18007-15
against each officer. In support of the allegations made in the article,
Appellant provides a copy of the court docket for the Bell case, Appellant’s
Supplemental Brief, Exhibit “A,” evidencing the fact that Officer O’Connor is
a named defendant in said case, as well as a memorandum opinion written
by the court in response to post-verdict motions.9 In its opinion, the court
overturned the count of municipal liability, but upheld Officer O’Connor’s
illegal search and false arrest verdicts and left the jury award undisturbed.
Appellant’s Reply Brief, Exhibit “A,” at 19-20. Additionally, Appellant
produces an affidavit by Aaron Bell in which Bell attests to material facts of
his case and alleges that Officers O’Connor and Goshert fabricated a basis
for the unlawful stop in their police reports, searched Bell’s person and
vehicle without consent, and gave false testimony at trial. Appellant’s Reply
Brief, Exhibit “B,” at 1-3.
The Commonwealth argues that Appellant is not entitled to an
evidentiary hearing because he has failed to produce any admissible ____________________________________________
9 “In this suit under 42 U.S.C. § 1983, Aaron L. Bell alleged that the City of Philadelphia (the “City”) and Police Officers David O’Connor and Colin Goshert (the “Officers”) violated his Fourth Amendment rights through an illegal stop (Count I), a false arrest (Count II), an illegal search (Count III), malicious prosecution (Count IV), and the City’s adoption of a policy or custom of permitting Fourth Amendment violations (Count V). … [T]he case proceeded to trial. Mr. Bell, a layperson, represented himself. At trial, the jury found for Mr. Bell on Counts II, III, and V, and awarded Mr. Bell $100,000.00 in compensatory damages from all the Defendants (i.e., jointly and severally) and $1,000.00 in punitive damages from the Officers. The jury rendered defense verdicts on Counts I and IV.” Appellant’s Reply Brief, Exhibit “A,” at 1.
-9- J-S18007-15
evidence, asserting that “[n]ewspaper articles are generally inadmissible to
prove the facts contained therein.” Commonwealth’s Brief, at 8-9.
Generally, newspaper articles do not constitute evidence as they contain
inadmissible hearsay. In Commonwealth v. Castro, 93 A.3d 818 (Pa.
2014),10 our Supreme Court addressed the issue of whether it is possible to
meet the test for after-discovered evidence where the defendant only relies
on a newspaper article. The Court concluded “[w]hile newspaper articles can
alert a party to the possible existence of evidence, the party must do more
than attach the article as establishing the evidence that will meet the four-
pronged test.” Id. at 827. While it declined to impose a strict requirement
of attaching affidavits or other offers of proof, the Court went on to hold that
a motion seeking an evidentiary hearing based on after-discovered evidence
“must, at the very least, describe the evidence that will be presented at the
hearing. Simply relying on conclusory accusations made by another, without
more, is insufficient to warrant a hearing.” Id.
Here, Appellant does not merely rely on the newspaper article as his
basis to request a new trial. The article initially alerted Appellant to the
existence of the Bell case and the possibility of additional evidence. While
the Court in Castro declined to strictly require affidavits or other offers of
10 See Castro, 93 A.3d at 829 n.11 (citing Commonwealth v. Saksek, 522 A.2d 70 (Pa. Super. 1987)) (upholding exclusion of newspaper article as inadmissible hearsay).
- 10 - J-S18007-15
proof in support of a motion for a new trial based on after-discovered
evidence, Appellant has, in fact, provided an affidavit of a witness he intends
to use if granted a new trial, as well as a court docket and the opinion from
the trial court as other offers of proof. Furthermore, Appellant describes in
detail the evidence he intends to present at an evidentiary hearing.
Appellant’s Supplemental Brief, at 8; Appellant’s Reply Brief, at 7-10.
Finally, we note that the newspaper article produced by Appellant refers to a
jury verdict, not a mere investigation, arrest, or pending lawsuit. 11 We
conclude that Appellant has proffered sufficient evidence to satisfy the
requirements set forth in Castro.
At an evidentiary hearing, Appellant will be required to show by a
preponderance of the evidence that each prong of the after-discovered
evidence test has been met in order for a new trial to be warranted.
Rivera, 939 A.2d at 359. Reviewing the four prongs, it appears unlikely
that Appellant would have discovered the evidence before the conclusion of
his trial, as both the jury verdict in the Bell case and the publication of the
newspaper article did not occur until more than a year after Appellant’s ____________________________________________
11 See Commonwealth v. Estepp, 17 A.3d 939 (Pa. Super. 2011) (where we found newspaper articles were not sufficient to meet the test for after- discovered evidence where the articles merely stated that the officer was under investigation for misconduct, distinguishing Estepp from our decision in Commonwealth v. Rivera, 939 A.2d 355 (Pa. Super. 2007), where the appellant cited newspaper articles referencing an actual arrest and the case was remanded for an evidentiary hearing based on after-discovered evidence).
- 11 - J-S18007-15
conviction. Second, the evidence does not appear to be merely
corroborative or cumulative, as Officer O’Connor’s conduct was not
questioned at trial, because Appellant had no basis to challenge the officer’s
credibility at the time.12 Moreover, we note that while the evidence may,
indeed, be used to impeach the credibility of Officer O’Connor, the evidence
will not solely be used for this purpose. Appellant intends to use the
evidence to file a motion to suppress the evidence recovered from the
search. Appellant’s Supplemental Brief, at 7. Finally, the evidence could
likely result in a different outcome if a new trial were granted, because it
calls into question the character of Officer O’Connor, who was the only
witness to testify against Appellant at trial. The evidence may also be used
to establish that Officer O’Connor engaged in a pattern of unlawful stops and
falsifying reports. This could form the basis for a motion to suppress the
firearm. Based on the information in the record, we conclude that Appellant
ostensively could satifsfy the four-prong test. However, procedure demands
that the trial court review the evidence and make this determination.
Rivera, 939 A.2d at 359.
In Commonwealth v. Perrin, 108 A.3d 50 (Pa. Super 2015), the
proof of after-discovered evidence at issue was a document generated by an
12 See Rivera, 939 A.2d at 359 (where we concluded after-discovered evidence was neither corroborative nor cumulative since at no time was the veracity of the witness’ testimony questioned at trial).
- 12 - J-S18007-15
FBI agent detailing a conversation in which the key witness at Appellant’s
trial admitted that he perjured himself and that Appellant did not participate
in the crime. After concluding that the “evidence [was] even more pointed
toward Appellant’s innocence than the evidence at issue in Rivera and
Castro,” id. (emphasis omitted), we remanded the case to the trial court
for an evidentiary hearing. Similar to Perrin, we find it appropriate here,
where the Appellant has proffered more evidence than in Castro and has
sufficiently described the evidence he will offer at an evidentiary hearing, to
remand the case to allow Appellant to flesh-out his claim for a new trial
before the trial court.
Judgment of sentence vacated. Case remanded for an evidentiary
hearing consistent with this memorandum in order to determine if a new
trial is required based upon after-discovered evidence, and, if not, for the re-
imposition of sentence. Jurisdiction relinquished.
Judge Mundy joins this memorandum.
Judge Allen files a concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/17/2015
- 13 -