the car, which he said was too small for the Uzi, and that he did not see any part of a gun sticking
out of the bag. (N.T. 3/14/16, 13-1110-111).
DISCUSSION
Appellant first complains in his 1925(b) statement that his convictions and sentencing
violated his constitutional right to procedural and substantive due process. It is submitted that
Appellant waived review of this claim by failing to raise this claim previously or specify why he
believes this to be the case.
First, Pennsylvania law is clear that, "[i]ssues not raised in the lower court are waived
and cannot be raised for the first time on appeal." Commonwealth v. Wallace, 533 A.2d 1051,
1053 (Pa. Super. 1987) (citations omitted). After reviewing the record herein at no time did
Appellant raise a due process claim. Therefore, the claim should be deemed waived.
Even if the claim had been preserved Appellant still waived the issue because he did not
set forth in his 1925(b) statement why he believes that his right to due process was violated.
Waiver applies to concise statements "which are so vague as to prevent the court from
identifying the issue to be raised on appeal." Commonwealth v. Dowling, 778 A.2d 683, 686-87
(Pa. Super. 2001) ("[A] Concise Statement which is too vague to allow the court to identify the
issues raised on appeal is the functional equivalent of no Concise Statement at all."). In
Commonwealth v. Lemon, 804 A.2d 34, 38 (Pa. Super. 2002), the Court indicated:
The absence of a trial court opinion poses a substantial impediment to meaningful and effective appellate review. Pa.R.A.P. 1925 is intended to aid trial judges in identifying and focusing upon those issues which the parties plan to raise on appeal. Rule 1925 is thus a crucial component of the appellate process. 'When the trial court has to guess what issues an appellant is appealing, that is not enough for meaningful review.' 'When an appellant fails adequately to identify in a concise manner the issues sought to be pursued on appeal, the trial court is impeded in its preparation of a legal analysis which is pertinent to those issues.' 'In other words, a
4 IJiUrt'd'tJ11 · r ure l.'.t t ,..,
Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no Concise Statement at all.'
Id. at 36-37.
In accordance with the above passage from Lemon, it is clear that Appellant waived his
first issue for purposes of appellate review because his Rule 1925(b) statement did not identify
the grounds underlying his claim that he was deprived of due process. As a result, this Court has
been given the impossible task of identifying the reasons why he believed his constitutional
rights were violated. This Court is not obliged to play a guessing game or glean from an
ambiguous 1925(b) statement the substance of the issue being raised. Accordingly, it is
respectfully suggested that his ineffectiveness issue be declared waived for purposes of appellate . 4 review.
In his second claim, Appellant contends that the sentence imposed on him by this Court
violated the cruel and unusual punishment clauses of the Pennsylvania and United States
Constitutions.5 As is the case with his first issue, Appellant waived review of it. First, review
was waived because he did not raise the current claim previously. For this reason alone it should
be deemed waived. See Wallace, supra.
It should also be deemed waived because Appellant again failed to set forth in the claim
why he believes the sentence violated the prohibition against imposing a sentence that is cruel
and unusual. This is fatal to his claim and it is submitted be determined to have waived review
of the claim.
Although it is the opinion of this Court that the claim has been waived, the Court will
4 This Court has carefully scrutinized the record in this case and failed to discern any due process violations. Appellant knowingly, intelligently, and voluntarily waived his right to a jury trial. In addition, he was not prohibited from confronting witnesses against him or from presenting evidence and the sentence imposed upon him was imposed in conformity with all applicable laws. 5 Article I, section 13, Pennsylvania Constitution and the 8t11 Amendment of the United States Constitution.
5 undertake a review of it in any event. The Pennsylvania prohibition against cruel and unusual
punishment is coextensive with the Eighth and Fourteenth Amendment of the United States
Constitution. Commonwealth v. Cottam, 616 A.2d 988, 1003 (Pa. Super. 1992). Consequently,
the Pennsylvania Constitution affords no broader protection against excessive sentences than that
provided by the Eighth Amendment to the United States Constitution. Commonwealth v.
Pendola, 611 A.2d 761, 764 n. 2 (Pa. Super. 1992). Additionally, successful challenges to a
criminal penalty are extremely rare where the penalty is something other than capital
punishment. Commonwealth v. Strunk, 582 A.2d 1326, 1331 (Pa. Super. 1990).
Further, "[t]he Eighth Amendment does not require strict proportionality between crime
and sentence. Rather, it forbids only extreme sentences which are grossly disproportionate to the
crime." Commonwealth v. Hall, 701 A.2d 190, 209 (Pa. 1997) (quoting Harmelin v. Michigan,
501 U.S. 957, 1001(1991)).
The Superior Court, in Commonwealth v. Spells, 612 A.2d 458, 462 (Pa. Super. 1992),
utilized the three-prong test for Eighth Amendment proportionality review set forth by the
United States Supreme Court in Solem v. Helm, 463 U.S. 277, 292 (1983) which requires a
review of: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences
imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for
commission of the same crime in other jurisdictions." Id. at 462. The Spells court noted that a
reviewing court is not obligated to reach the second and third prongs of the test unless "a
threshold comparison of the crime committed and the sentence imposed leads to an inference of
gross disproportionality." Id. at 463.
In the present case, the penalty, a standard guidelines sentence of five to ten years, is
plainly not disproportionate to the gravity of the offense committed. Appellant was found guilty
6 JFIA1115 ·z t.11
of possessing a machine gun and a handgun while legally prohibited from doing so and without a
license. These crimes occurred in a City that has an epidemic of gun violence in a part of the City
especially prone to such violence. Given the foregoing, this Court submits that the sentence may
have been too lenient. It certainly was not cruel and unusual as contended and if the claim is not
deemed to have been waived, it is suggested that the claim be found to lack merit.
Appellant next complains that this Court committed an abuse of discretion when it
imposed sentence upon him because the Court unduly relied on the Commonwealth's sentencing
memorandum and did not take into account the mitigating evidence Appellant presented during
the sentencing hearing. "The proper standard of review when considering whether to affirm a
court's sentencing determination is an abuse of discretion. An abuse of discretion is more than a
mere error in judgment; thus a sentencing court will not have abused its discretion unless the
record discloses that the judgment exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007),
citing Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996). In imposing a sentence, the court
must consider the protection of the public, the gravity of the offense as it relates to the impact on
the life of the victim and on the community and the rehabilitative needs of the defendant as well
as the sentencing guidelines. 42 Pa. C.S. § 9721(b), Walls, 926 A.2d at 963.
There is no automatic right to appeal the discretionary aspects of sentencing, so this
appeal must be considered as a petition for permission to appeal. Commonwealth v. Tuladzieki,
522 A.2d 17 (Pa. 1987). There are four ( 4) prerequisites to the proper preservation of an issue
regarding the discretionary aspects of sentencing: (1) the issue must be specifically preserved in
a timely motion to modify sentence; (2) a timely notice of appeal must be filed; (3) the issue
must be set forth in the issues to be raised on appeal in the statement of questions presented; and
7 HU" -H_t Ut I JJ.· z ti y·p aw bl tilf"fll ". n "l � 'i'AIIJ.UI l&IU I t rlllill hlU 'Iii • " •. d. N� I. ahU> �Ji$&!>:(_C
(4) the issue must be included within a concise statement of the reasons for allowance of appeal
which demonstrates a substantial question that the sentence imposed was not appropriate under
the sentencing code. 42 Pa.C.S. § 9781(b); Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.
Super. 2014). While it appears Appellant properly preserved the issues he raised, it is suggested
that he is not entitled to relief because he has failed to raise a substantial question.
When a sentence is within the guideline ranges, it must be determined whether the
sentence is "clearly unreasonable." 42 Pa. C.S.A. § 9781(c)(2). Commonwealth v. Dodge, 957
A.2d 1198, 1200 (Pa. Super. 2008). The reasonableness inquiry is based in part on the factors set
forth in 42 Pa. C.S.A. § 978l(d). Under that statute, the reviewing court must consider the nature
and circumstances of the offense and the history and characteristics of the defendant; the
opportunity of the sentencing court to observe the defendant, including any presentence
investigation; the findings upon which the sentence was based; and the guidelines promulgated
by the commission. Id.; Dodge, supra. In addition, a sentence may be unreasonable if the
sentencing court fails to consider the factors set forth in 42 Pa. C.S.A. § 972l(b): i.e., the
protection of the public; the gravity of the offense in relation to the impact on the victim and the
community; and the rehabilitative needs of the defendant. Walls, supra.
Finally, the Superior Court has stated that, "allegations that the sentencing court 'failed to
consider' or 'did not adequately consider' various factors does not raise a substantial question
that the sentence was inappropriate." Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa. Super.
2013 (citing Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011)); accord
Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa. Super. 1999) ("[A]n allegation that the
sentencing court 'failed to consider' or 'did not adequately consider' various factors is, in effect,
a request for this Court to substitute its judgment for that of the lower court in fashioning [an
8 nW'lliliH ·u . W IT 1• ¢M n Uile••• ti I'. 1 '11 1 ! l Ji ·•:11M J d lillli U'l.!l tltl! ; . 1;1a• · ,,�·
a]ppellant's sentence. Such an allegation does not raise a substantial question that the sentence
imposed was in fact inappropriate.") (quoting Commonwealth v. Rivera, 637 A.2d 1015, 1016
(Pa. Super. 1994)); see Commonwealth v. Rhoades, 8 A.3d 912, 918-19 (Pa. Super. 2010) ("an
allegation that the sentencing court failed to consider mitigating factors generally does not raise a
substantial question for our review."); Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super.
2010) (same).
Under these standards, it is suggested that Appellant did not raise a substantial question.
As noted above, the failure to consider mitigating evidence or the consideration of permissible
factors as those set forth in the Commonwealth's sentencing memorandum do not raise
substantial questions. Even if they did, the sentence imposed here was not unreasonable or an
abuse of discretion because all of the factors above were considered when this Court fashioned
its sentence. This Court carefully considered the information in the pre-sentence reports and that
presented by Appellant during the sentencing hearing and thus, was well aware of Appellant's
personal history.
Finally, the law is clear that "where the sentencing court imposed a standard-range
sentence with the benefit of a pre-sentence report, [an appellate court] will not consider the
sentence excessive." Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011) (citing
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).
Accordingly, for all of the foregoing reasons it is suggested that the instant claim be
deemed lacking in merit because it is clear that the sentence imposed herein did not constitute an
abuse of discretion because the sentence is not excessive under the circumstances and the Court
considered all of the required factors in fashioning Appellant's sentence. See Commonwealth v.
9 ·n · n · Mlii:1 lft . I . MUM '.tfft 'S ll:t11 ·; rn
Griffin, 804 A.2d 1 (Pa. Super. 2002) (where a judge who makes a discretionary sentencing
decision has been fully informed of pertinent facts, his discretion should not be disturbed).
Appellant next contends that the evidence presented at trial by the Commonwealth was
insufficient to sustain the charges. Appellant failed, however, to state why he believes the
evidence was insufficient. Thus, it is suggested that the claim be deemed waived because
Appellant failed to articulate which elements of the crimes he was convicted of committing the
Commonwealth failed to establish. "[W]hen challenging the sufficiency of the evidence on
appeal, the [a]ppellant's [Rule] 1925 statement must 'specify the element or elements upon
which the evidence was insufficient' in order to preserve the issue for appeal." Commonwealth
v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010) (quoting
Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008)). "Such specificity is of
particular importance in cases here ... the [a]ppellant was convicted of multiple crimes each of
which contains numerous elements that the Commonwealth must prove beyond a reasonable
doubt." Gibbs, supra (holding appellant waived challenge to sufficiency of evidence where
appellant failed to specify in Rule l 925(b) statement which convictions, and which elements of
those crimes, he was challenging on appeal; fact that trial court addressed appellant's sufficiency
claim in its opinion was of no moment to waiver analysis).
In any event, even had Appellant set forth the elements that were not proven, no relief
need be granted. A claim that the evidence was insufficient to support a conviction is a question
of law. Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). When reviewing the
sufficiency of the evidence, the reviewing court must determine whether the evidence believed
by the factfinder was sufficient to support the verdict. Commonwealth v. Ratsamy, 934 A.2d
1233, 1236 (Pa. 2006). All evidence must be viewed in the light most favorable to the verdict
10 '.') t 'iilt ill tl111!MHll!1
wmner. Id. at 1237 (quoting Commonwealth v. Weiss, 776 A.2d 958, 963 (Pa. 2001)); see
Commonwealth v. Boczkowski, 846 A.2d 75, 80 (Pa. 2004). Both direct and circumstantial
evidence, along with all reasonable inferences arising therefrom, which the finder of fact could
properly have based its verdict, must be accepted as true and sufficient to support the challenged
conviction. Commonwealth v. Perez, 931 A.2d 703, 706-07 (Pa. Super. 2007). The finder of
fact may believe all, part, or none of the evidence regarding the question of whether reasonable
doubt existed, and the facts and circumstances need not be incompatible with the defendant's
innocence. Commonwealth v. Derr, 841 A.2d 558, 559 (Pa. Super. 2004).
Applying the foregoing to the firearms offenses, the law provides that where possession
rs an element of a crime, possession may be proven by actual possession, constructive
possession, or joint constructive possession. See Commonwealth v. Gutierrez, 969 A.2d 584 (Pa.
Super. 2009). Thus, when police do not find a firearm in a defendant's actual possession, a
defendant may still be convicted of the possession of the firearm if the Commonwealth
establishes that the defendant constructively possessed the firearm. See Commonwealth v.
Brown, 48 A.3d 426 (Pa. Super. 2012).
The Commonwealth presented sufficient evidence to support Appellant's convictions
under a theory of constructive possession.6 In Brown, supra, the Superior Court discussed the
constructive possession, stating:
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
6 To successfully obtain a conviction under 18 Pa.C.S. § 6106, the Commonwealth must prove that the accused carried a firearm on or about their person without a valid and lawfully issued firearms license. Commonwealth v. Bavusa, 750 A.2d 855, 857 (Pa. Super. 2000). For a conviction under 18 Pa.C.S. § 6108, the Commonwealth must prove that the defendant carried an unlicensed firearm, rifle, or shotgun within the city of Philadelphia. Id. Finally, Section 6105 provides that a person who has been convicted of any of several enumerated felonies, including burglary, "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. § 6105 (a)(I).
11 .... iii t II
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.
Brown, 48 A.3d at 430 ( quotation omitted).
Here, although Appellant did not physically possess the firearms when police
apprehended him, the Commonwealth nonetheless proved that he was in constructive possession
of them because Appellant was in control of the vehicle at the time the guns were discovered and
Appellant's behavior and reactions upon being stopped by police exhibited consciousness of
guilt. The evidence showed that he was moving about in his seat and kept looking behind him
upon being stopped by police, which was sufficient to create an inference of guilt. (N.T.
3/14/16, 81). See Commonwealth v. Hughes, 865 A.2d 761, 792 (Pa. 2004) ("The conduct of an
accused following a crime, including manifestations of mental distress, is admissible as tending
to show guilt") (internal quotation marks and citation omitted); Commonwealth v. Sanchez, 610
A.2d 1020, 1027 (Pa. Super. 1992) (a defendant's conduct evidencing fear or mental distress is
admissible to show consciousness of guilt), appeal denied, 620 A.2d 940 (Pa. 1993).
Moreover, given that the Uzi was clearly visible as it was sticking out of the bag and the
hand gun was in the vehicle controlled by Appellant, in easy reach of him, it can be inferred
Appellant had knowledge of the presence of the weapons in the car and that he could have
exercised dominion and control over them. See Commonwealth v. Mudrick, 507 A.2d 1212,
1214 (Pa. 1986) (joint possession of contraband is possible where contraband is accessible and
apparent to more than one individual).
Accordingly, if Appellant's attack on the sufficiency of his weapons convictions is found
not to have been waived, it is suggested that the claim be deemed lacking in merit.
12 ,,., . ·tnJ: . '1111 .. kiMl.lilM I. j IU01Mtrl5't "·tr n· ·en· I' i · . m u rm I' . r • ·iuiu run
Regarding Appellant's conspiracy conviction, he contends that the evidence was
insufficient and that he could not be convicted of Conspiracy to Possess a Firearm without a
License because the Commonwealth failed to prove that he formed an agreement with another
person the object of which was to possess a firearm without a license. No relief should be
granted with respect to this claim because a review of the Bills of Information filed in this case
indicates that Appellant was charged with Conspiracy to Possess a Firearm while prohibited
from doing so and not Possession of a Firearm without a License. Consequently, because
Appellant was not convicted of conspiring to possess a firearm without a license, it is clear that
the premise of Appellant's claim is incorrect and therefore, the issue should be found to lack
merit.
Appellant's final claim contends that the verdicts shock the conscience and thus, were
against the weight of the evidence because he presented credible evidence that he knew nothing
about the presence of the guns in the vehicle. The standard in reviewing a weight of the
evidence claim is well-settled:
Appellate 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 convict ion that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and citations omitted); see
also Commonwealth v. Sanchez, 36 .3d 24, 27 (Pa. 2011) (stating that "[r]elief on a weight of the
evidence claim is reserved for extraordinary circumstances, when the jury's verdict is so contrary
13 · """"--------------------------IOH I 1U, nil , � cs ·, , 1 -.e, , 'lettU'9 l�d ---, f,.,_, @ ! ·- · i! ii-- W'll.iJz- ··��k� il,\U- ;," · - ·
'
; to the evidence as to shock one's sense of justice and the award of a new trial is imperative so
that right may be given another opportunity to prevail." (citation omitted)).
The initial determination regarding the weight of the evidence is for the fact-finder.
Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa. Super. 2007). The trier of fact is free to
believe all, some or none of the evidence. Id. A reviewing court is not permitted to substitute its
judgment for that of the fact-finder. Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999).
When the challenge to the weight of the evidence is predicated on the credibility of trial
testimony, appellate review of a trial court's decision is extremely limited. Unless the evidence is
so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, weight
of evidence claims shall be rejected. Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa.
Super. 2004). Moreover, the grant of a new trial is not required because of conflicting
testimony. Commonwealth v. Widmer, 744 A.2d 745, 754 (Pa. 2000). See, e.g., Commonwealth
v. Edney, 439 A.2d 752. 754 (Pa. Super.1982): Commonwealth v. Larew, 432 A.2d 1037, 1038
(Pa. Super. 1981)
Here, this Court's decision to believe the Commonwealth's witnesses' testimony does not
shock the conscience. See Commonwealth v. Johnson, 668 A.2d 97. 102 (Pa. 1995) (weight of
the evidence argument based solely on contradictory testimony lacked merit); Commonwealth v.
Brown, 648 A.2d 1177. 1192 (Pa. 1994) (contradictory testimony did not establish a weight of
evidence claim where nothing in the record shocked the conscience). In addition, this Court did
not find the testimony of Appellant and his witness credible. Thus, because credibility
determinations rested with this Court, sitting as fact-finder, it is suggested that no relief is due
Appellant on this claim.
14 ..... pg
CONCLUSION
Based on the foregoing, it is respectfully suggested that the judgment of sentence entered
in this matter against Appellant be affirmed.
BY THE COURT,
Date: 3}'1/Jo/�
15 I' it¥"1f:t � , 'Miitll.ltlllil'11 ·no· t
CERTIFICATION OF SERVICE
I, James Molinari, Esquire, Law clerk to the Honorable Daniel D. McCaffery
hereby certifies that on the Cjt..rS day of March 2017, by first class mail, postage prepaid, a
true and correct copy of the attached opinion was served upon the following:
Brian F. Humble, Esquire 1225 Locust Street Philadelphia, Pa. 19107
Hugh Bums, Esquire Chief-Appeals Unit Office of the Philadelphia District Attorney Three South Penn Square Philadelphia, PA 19107
J