Com. v. Tarpley, J.

• Court: Superior Court of Pennsylvania
• Decided: March 3, 2015
• Docket: 1237 WDA 2013
• Status: Unpublished

Opinion

J. S09002/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : JAMES LOUIS TARPLEY, : No. 1237 WDA 2013 : Appellant :

Appeal from the Judgment of Sentence, February 25, 2013, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0013386-2011

BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 03, 2015

Following a bench trial, James Louis Tarpley was convicted of one

count of persons not to possess a firearm. Herein, he appeals from the

judgment of sentence entered on February 25, 2013, in the Court of

Common Pleas of Allegheny County. We affirm.

On July 12, 2011, police and EMS responded to 1712 Brinton Avenue

in North Braddock, Pennsylvania, at approximately 11:00 p.m. to calls of a

heroin overdose. The evidence demonstrated that the residence was

managed by Ronald Padolf (“Ronald”) who permitted Michaela McBride

Bradly (“Michaela”) and Jessica Rosenberger (“Jessica”) to live at the

property rent-free and without a signed lease. The apartment consisted of a

living room, kitchen, and two bedrooms -- Michaela and Jessica lived in one

bedroom and Jessica’s son stayed in the other. Ronald testified that he had J. S09002/15

noticed that appellant, Jessica’s boyfriend, was at the apartment “almost all

the time.” (Notes of testimony, 11/9-13-12 at 90-92, 33-34, 56-57.)

Michaela, however, stated that appellant stayed there four or five nights a

week. Due to appellant’s continued presence, Ronald amended his rent-free

policy and insisted on being paid $250 per month; Michaela and Jessica

complied.

On the date in question, appellant and his ten-year-old son were at the

apartment. Appellant was shooting heroin in the living room, and Michaela

was in her bedroom watching television. Around 11:00 p.m., Jessica started

calling out Michaela’s name, saying she needed help with appellant as she

thought he had overdosed. Appellant, while injecting heroin, had fallen back

onto a futon. Michaela saw appellant lying on the futon unresponsive with

Jessica on top of him trying to pull him up; Michaela called 9-1-1.

Carl Rech “(Officer Rech”), an officer with the North Braddock Police

Department, arrived and observed appellant lying on his back on the living

room floor unconscious. At this time, Officer Rech saw a digital scale on the

top of the television with white powder residue and the grip of a pistol

sticking out between the frame and the mattress of the futon, located just to

the right of appellant. Paramedics arrived and administered three shots of

Narcan to appellant, which led him to regain consciousness. Upon

resuscitation, appellant was combative and detained with handcuffs.

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As EMS prepared to take appellant to the hospital, appellant was led to

the ambulance; he asked Officer Rech to retrieve his backpack from the

bedroom. Officer Rech found the backpack and, for safety purposes given

the presence of the firearm in the living room, looked inside. At the bottom

of the backpack, a silver revolver was found. Thereafter, appellant was

charged with two counts of possession of person not to possess a firearm in

violation of 18 Pa.C.S.A. § 6105(A)(1) relating to the weapons found in the

residence.

Michaela testified that earlier that same day she had seen appellant

with a backpack in the living room. She also stated that a few days prior to

the incident she had seen appellant “digging through” the same backpack

and pulling out a silver revolver. (Id. at 40-41.) Jessica testified that she

had previously seen appellant with a backpack and had seen him with

firearms in the apartment, including the silver revolver. (Id. at 65-67.)

Appellant testified at trial and admitted that he went to 1712 Brinton

Avenue to shoot heroin. Appellant denied taking a firearm to the residence

and denied owning the backpack. Appellant testified that he was not in the

business of selling drugs and did not carry a firearm.

The jury returned a verdict of guilty as to the firearm found in the

backpack and not guilty as to the firearm located on the futon. On

February 23, 2013, appellant was sentenced to serve 42 to 84 months’

imprisonment. A timely post-sentence motion was filed requesting a

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modification of sentence; this motion was later denied by operation of law

pursuant to Pa.R.Crim.P. 720(B)(3)(b). (Docket #10.) A timely notice of

appeal was filed. (Docket #11.) The following issues have been presented

for our review:

I. THE TRIAL COURT ERRED IN PERMITTING EVIDENCE OF ITEMS CONTAINED IN A CLOSED CONTAINER FOLLOWING A WARRANTLESS SEARCH OF SAID CONTAINER, TO BE THE BASIS FOR THE WITHIN CHARGES AND VERDICT WHEN THERE WAS CLEAR EVIDENCE THAT APPELLANT WAS NOT IN POSSESSION OF THAT BAG/CONTAINER WHEN HE WAS DETAINED AND THE SEARCH WAS NOT INCIDENT TO ARREST.

II. THE TRIAL COURT ERRED BY ADMITTING EVIDENCE OF APPELLANT’S PRIOR CONVICTIONS FOR VIOLATIONS OF THE UNIFORM FIREARMS ACT.

III. THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE VERDICT GENERALLY AND SPECIFICALLY BECAUSE THE EVIDENCE DEMONSTRATED THAT THE APPELLANT WAS UNCONSCIOUS AND THUS INCAPABLE OF FORMING THE SPECIFIC INTENT TO POSSESS THE FIREARM IN QUESTION.

IV. THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE.

[V.] THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO MODIFY SENTENCE.

Appellant’s brief at 4.

The first issue presented is whether the trial court erred in failing to

suppress the revolver discovered in the backpack. He avers that the weapon

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was seized pursuant to an unlawful, warrantless search. (Appellant’s brief at

12.) We agree with the trial court and the Commonwealth that this claim is

waived.

Appellant never filed a motion to suppress the evidence he now claims

was impermissibly seized by the police. Under Pennsylvania Rule of Criminal

Procedure 578, unless otherwise required in the interests of justice, all

pretrial requests, including a request for suppression of evidence, must be

included in one omnibus pretrial motion. See Pa.R.Crim.P. 578, Comment.

Rule 579 states that an omnibus pre-trial motion must be filed within

30 days of arraignment. The only exceptions to this rule are: (1) the

opportunity to do so did not exist, (2) the defendant or defense counsel was

unaware of the grounds for the motion, or (3) the time for filing was

extended by the court for good cause shown. See Pa.R.Crim.P. 579(A). “If

timely motion is not made . . . , the issue of suppression of . . . evidence

shall be deemed waived.” Pa.R.Crim.P. 581(C). See also Commonwealth

v. Baumhammers, 960 A.2d 59, 76 (Pa. 2008) (“[t]his Court has

consistently affirmed the principle that a defendant waives the ground of

suppressibility as a basis for opposition to the Commonwealth’s introduction

of evidence when he or she fails to file a suppression motion pursuant to our

rules of criminal procedure”); Commonwealth v. Williams, 311 A.2d 920

(Pa. 1973) (claim waived where defendant did not file motion to suppress

evidence). Thus, we deem appellant’s claim waived.

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The second issue presented is whether the trial court erred by

admitting evidence of appellant’s prior firearms violation. (Appellant’s brief

at 15.) Again, we concur with the Commonwealth that this claim is also

waived. Appellant failed to include this issue in his Rule 1925(b) statement,

and the trial court has not addressed it in its Rule 1925(a) opinion.

Therefore, it is deemed waived. Pa.R.A.P., Rule 1925(b)(4)(vii),

42 Pa.C.S.A. See also Commonwealth v. Marion, 981 A.2d 230, 237

(Pa.Super. 2009), appeal denied, 990 A.2d 729 (Pa. 2010) (“to preserve

their claims for appellate review, [a]ppellants must comply whenever the

trial court orders them to file a Statement of Matters Complained of on

Appeal pursuant to [Rule] 1925. Any issues not raised in a [Rule] 1925(b)

statement will be deemed waived.”) (citations omitted).

Next, appellant argues that the evidence was insufficient to sustain his

conviction for person not to possess a firearm.

In reviewing a sufficiency challenge, we apply the following

well-settled principles:

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

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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 considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Brown, 23 A.3d 559-560 (Pa.Super. 2011) (en banc),

quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805 (Pa.Super.

2008).

Section 6105 of the Crimes Code states in pertinent part:

§ 6105. Persons not to possess, use, manufacture, control, sell or transfer firearms

(a) Offense defined.

(1) A person who has been convicted of an offense enumerated in subsection (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).

Appellant does not dispute that a prior conviction disqualified him from

possessing a firearm; on July 16, 2004, appellant pled guilty to possession

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of a controlled substance. Appellant argues that the Commonwealth failed

to satisfy the possession element. (Appellant’s brief at 22.) As appellant

was not in physical possession of the firearm, the Commonwealth was

required to establish that he had constructive possession of the weapon.

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. 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. Brown, 48 A.3d 426, 430 (Pa.Super. 2012), appeal

denied, 63 A.3d 1243 (Pa. 2013) (internal quotation marks and citation

omitted).

Herein, the Commonwealth established that appellant was in

constructive possession of the backpack. Officer Rech testified that he

responded to a call regarding a heroin overdose. He explained that after

appellant was treated by paramedics and revived, appellant asked the officer

to retrieve his backpack from the bedroom. Officer Rech found the

backpack, and for safety purposes, looked inside the backpack before giving

it to appellant. Inside the backpack, Officer Rech discovered a silver

revolver. The Commonwealth also presented the testimony of Jessica and

Michaela; both women testified that they had seen appellant previously with

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the backpack and the silver revolver. Thus, the jury was entitled to

conclude that appellant had possessed the firearm found in the backpack.

In the fourth issue, appellant argues that the verdict was against the

weight of the evidence. (Appellant’s brief at 26.)

“[A] weight of the evidence claim must be preserved either in a post-sentence motion, by a written motion before sentencing, or orally prior to sentencing. Pa.R.Crim.P. 607; Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa.Super. 2011). Failure to properly preserve the claim will result in waiver, even if the trial court addresses the issue in its opinion.” Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483, 494 (2009).

Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.Super. 2012). Here,

appellant did not raise a weight of the evidence claim in either a

pre-sentence or post-sentence motion. As we noted above, appellant filed a

post-sentence motion, but the motion requested only a modification of

sentence. (Docket #8.) As such, we find this allegation waived for purposes

of appeal. Lofton, supra.

The final issue presented concerns the discretionary aspects of

sentencing. Appellant is challenging the discretionary aspects of sentencing

for which there is no automatic right to appeal. Commonwealth v. Koren,

646 A.2d 1205, 1207 (Pa.Super. 1994). Two requirements must be met

before a challenge to the judgment of sentence will be heard on the merits.

Id. First, the appellant must set forth in his brief a concise statement of the

reasons relied upon for allowance of appeal with respect to the discretionary

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aspects of his sentence. Id.; Pa.R.A.P. 2119(f). Second, he must show that

there is a substantial question that the sentence imposed is not appropriate

under the Sentencing Code. 42 Pa.C.S.A. § 9781(b); Commonwealth v.

Urrutia, 653 A.2d 706, 710 (Pa.Super. 1995).

The determination of whether a particular issue raises a substantial

question is to be evaluated on a case-by-case basis. Commonwealth v.

Maneval, 688 A.2d 1198, 1199-1200 (Pa.Super. 1997). Generally,

however, in order to establish a substantial question, the appellant must

show actions by the sentencing court inconsistent with the Sentencing Code

or contrary to the fundamental norms underlying the sentencing process.

Id.

Appellant has included in his brief the mandatory concise statement of

reasons relied upon for allowance of appeal from the discretionary aspects of

his sentence. (Appellant’s brief at 28-30.) Therein, appellant complains that

his sentence, which was within the statutory limits and at the lower end of

the standard range of the Sentencing Guidelines, was unreasonable. (Id. at

29.) Appellant has not, however, explained in his Rule 2119(f) statement

how he has set forth a substantial question. A Rule 2119(f) statement that

simply contains incantations of statutory provisions and pronouncements of

conclusions of law is inadequate. Commonwealth v. Thompson, 547 A.2d

800, 802 (Pa.Super. 1988).

Rather, only where the appellant’s Rule 2119(f) statement sufficiently articulates the manner in

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which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process, will such a statement be deemed adequate to raise a substantial question so as to permit a grant of allowance of appeal of the discretionary aspects of the sentence.

Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002).

Limiting our review to appellant’s Rule 2119(f) statement, we conclude

that appellant has failed to raise a substantial question. In fact, nowhere in

his Rule 2119(f) statement does he explain what specific provision of the

sentencing code or fundamental norm underlying the sentencing process has

been violated. Thus, we decline to review his sentencing claim.

Even if we were to turn to the argument section of his brief to review

his claim, we would find Judge Durkin did not abuse her discretion in

sentencing appellant. Appellant was sentenced at the bottom-end of the

standard range of the sentencing guidelines. The trial court explicitly stated

that it reviewed the pre-sentence report. (Notes of testimony, 2/25/13 at 2-

3, 19.) The trial court also considered letters written on behalf of appellant,

the testimony of Kim Vilella, appellant’s mother-in-law, and appellant’s

testimony. The court considered the fact that appellant had a previous 15 to

30-month sentence for a felony drug conviction that involved firearms,

following which appellant violated probation. The Commonwealth argued

that appellant committed the instant offense with his young son in the

house, where he readily admitted he went to use heroin. (Id. at 18.) It

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cannot be said that the sentence imposed was unreasonable.

Commonwealth v. Ventura, 975 A.2d 1128, 1133-1135 (Pa.Super. 2009),

appeal denied, 987 A.2d 161 (Pa. 2009) (where the trial court clearly

relied on the pre-sentence report and the sentence imposed was not outside

the applicable guidelines or unreasonable, the court did not commit an abuse

of its discretion).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/3/2015

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