J-S56039-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BASIL SALEEM GARCIA,
Appellant No. 498 MDA 2014
Appeal from the Judgment of Sentence November 22, 2013
in the Court of Common Pleas of Lycoming County
Criminal Division at No.: CP-41-CR-0000357-2012
BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 07, 2014
Appellant, Basil Saleem Garcia, appeals from the judgment of sentence
imposed following his jury conviction of fleeing or attempting to elude a
police officer, unauthorized use of automobiles and other vehicles, tampering
with or fabricating physical evidence, criminal mischief, receiving stolen
property (firearm), firearms not to be carried without a license, possession
of a controlled substance, and possession of drug paraphernalia. 1
Specifically, Appellant challenges the sufficiency of the evidence to support
his convictions for receiving stolen property (firearm) and firearms not to be
carried without a license. We affirm.
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*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S.A. § 3733(a); 18 Pa.C.S.A. §§ 3928(a), 4910(1), 3304(a)(1),
3925(a), 6106(a)(1); 35 P.S. §§ 780-113(a)(16) and (a)(32), respectively.
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On January 15, 2012, Jennifer Colon stole a red Dodge truck from
Dennis Mullinger, who reported the vehicle stolen to police. Ms. Colon then
sold the stolen truck to Appellant in exchange for a $50.00 bag of crack
cocaine. Officer Jason Dockey of the Williamsport Bureau of Police, while on
routine patrol in a marked patrol car, observed Appellant driving the truck
Officer Dockey activated his emergency lights and sirens, and Appellant
accelerated, leading officers in a high-speed chase during which he ran
numerous stop signs and drove at speeds in excess of eighty miles per hour.
Appellant eventually lost control of the truck and jumped out of it while it
was still moving. He fled on foot and the vehicle struck a tree. Police
officers pursued Appellant and Officer Jeremy Brown observed him throw a
bag of crack cocaine to the ground. Police arrested Appellant and, during
the search incident to arrest, found a yellow sheet of paper on his person
listing prices for cocaine and heroin at various quantities, and the names,
addresses and phone numbers of various individuals.
a small loaded handgun and a blunt cigar in an open compartment built into
the front passenger-side door. Polic
Jason Philbin, who advised that the gun had been stolen from his home
within the last three months. Crime laboratory test results showed a
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On April 23, 2013, following a two-day trial, a jury found Appellant
guilty of the above-stated offenses. The court held a sentencing hearing on
November 14, 2013, at which the parties discussed the appropriate structure
nd the court stated its intention to
sentence Appellant to an aggregate term of sixty-
incarceration.2 On November 22, 2013, the court filed a sentencing order
imposing an aggregate term of sixty-
(See Order, 11/22/13, at 2). On February 19, 2014, after hearing
-
sentence motion. (See Order, 2/19/14, at 1); see also Pa.R.Crim.P.
720(B)(3)(d). This timely appeal followed.3
Appell
a reasonable doubt on counts [sic] 16, firearms not to be carried without a
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2
The notes of testimony from this hearing are not included in the certified
record. We observe that the trial court apparently deferred sentencing until
its order dated November 14, 2013 was filed on November 22, 2013. We
note that the Commonwealth does not challenge the timeliness of
-sentence motion. (See
Accordingly, we give Appellant the benefit of the doubt and deem his post-
sentence motion timely filed.
3
t timely filed a Rule 1925(b)
statement of errors on April 17, 2014. The trial court filed a Rule 1925(a)
opinion on May 19, 2014, in which it referred this Court to its order and
opinion entered February 19, 2014. See Pa.R.A.P. 1925.
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license and count 14, receiving stolen pr
Brief, at 6). This issue is waived and would not merit relief.
We address challenges to the sufficiency of the evidence under the
following standard of review:
[W]hether 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
-finder 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 evaluated and
all evidence actually received 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. Jannett, 58 A.3d 818, 819-20 (Pa. Super. 2012)
(citations omitted).
However, because Appellant has failed to preserve his issue properly in
his Pennsylvania Rule of Appellate Procedure 1925(b) concise statement, it
is waived. This Court has held:
when challenging the sufficiency of the evidence on appeal, the
elements upon which the evidence was insufficient in order to
preserve the issue for appeal. Such specificity is of particular
importance in cases where, as here, the Appellant was convicted
of multiple crimes each of which contains numerous elements
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that the Commonwealth must prove beyond a reasonable doubt.
Here, Appellant . . . failed to specify which elements he was
challenging in his [Rule] 1925[(b)] statement . . . . While the
trial court did address the topic of sufficiency in its opinion, we
have held that this is of no moment to our analysis because we
apply Pa.R.A.P. 1925(b) in a predictable, uniform fashion, not in
a selec
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009), appeal
denied, 3 A.3d 670 (Pa. 2010) (citations and quotation marks omitted).
Here, Appellant challenges the sufficiency of the evidence supporting
receiving stolen property (the handgun). (See -18).
ent does not identify which
elements of the crimes the Commonwealth allegedly failed to prove. (See
Concise Statement, 4/17/14, at 1). Instead, his statement merely presents
the same generic issue that he raises in his Statement of Questions
Involved, sp
[sic] 16, Firearms Not to be Carried Without a License and Count 14,
Id.). Accordingly, we conclude that
See Gibbs,
supra at 281; see also Commonwealth v. Garland, 63 A.3d 339, 344
(Pa. Super. 2013) (determining that appellant waived his sufficiency claim
statement simply provided a generic statement
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(record citation omitted).
Moreover, even if
would still not merit relief. Appellant argues that the evidence was
insufficient to support his convictions related to the handgun police found in
Mr. truck because the Commonwealth failed to show that
Appellant was in knowing possession of it. (See
Appellant asserts that he was not aware that the handgun was in the
passenger-side door of the truck, and that he merely was using the vehicle.
(See id. at 17). While
inadvertently come into contact with the pistol such that he left traces of
Id. at 18; see id. at 17). This
issue would not merit relief.
The Crimes Code defines the offense of firearms not to be carried
without a license, in relevant part, as follows:
(a) Offense defined.
(1) Except as provided in paragraph (2), any
person who carries a firearm in any vehicle or any
person who carries a firearm concealed on or about
his person, except in his place of abode or fixed
place of business, without a valid and lawfully issued
license under this chapter commits a felony of the
third degree.
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18 Pa.C.S.A. § 6106(a)(1).
To convict a defendant of this offense, the Commonwealth must prove:
(c) that where the firearm was concealed on or about the person, it was
Commonwealth v. Coto, 932 A.2d
933, 939 (Pa. Super. 2007), appeal denied, 948 A.2d 802 (Pa. 2008)
(citation omitted).
The Crimes Code defines the offense of receiving stolen property as
follows:
(a) Offense defined. A person is guilty of
theft if he intentionally receives, retains, or disposes
of movable property of another knowing that it has
been stolen, or believing that it has probably been
stolen, unless the property is received, retained, or
disposed with intent to restore it to the owner.
(b) Definition. As used in this section the
or title, or lending on the security of the property.
18 Pa.C.S.A. § 3925.
intentionally acquiring possession, control or title, retaining, disposing, or
lending on the security of movable property of another; (2) with knowledge
or belief that it was probably s
Commonwealth v. Young, 35 A.3d 54, 63 (Pa. Super. 2011), appeal
denied, 48 A.3d 1249 (Pa. 2012) (citations omitted).
[Where an a]ppellant was not in physical possession of the
contraband, the Commonwealth [is] required to establish that he
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had constructive possession of the seized items to support his
convictions.
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. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013), appeal
denied, 78 A.3d 1090 (Pa. 2013) (citations omitted).
Mr. Mullinger testified that the handgun and
blunt cigar police found in his truck did not belong to him, and that he had
never seen Jennifer Colon with a gun. (See N.T. Trial, 4/22/13, at 65, 68).
Ms. Colon testified that, before she sold the truck to Appellant in exchange
for crack cocaine, she looked inside of the vehicle to see if it contained
anything that she could sell. (See id. at 78). She testified that she did not
leave a gun or a cigar in the truck, and that if there had been a gun in the
vehicle, she would have sold it for drugs. (See id. at 79-80). Ms. Colon
she had seen him with cigars similar to those found in the truck. (Id. at 80;
see id.
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forensic DNA scientist, testified that test results showed the presence of
4
(See id. at 154, 158, 167-68, 172, 174). Mr.
Kukosky opined that Appellant would have had to touch the gun in order for
his DNA to be on it, because it is very difficult to develop a DNA profile from
an object that has not been touched. (See id. at 175, 177). Officer Brown
testified that individuals involved in the drug business commonly carry
firearms to protect themselves. (See id. at 134, 144).
Appellant testified in his defense and stated that Ms. Colon let him
borrow the truck to go to a store. (See
4/23/13, at 4-5). He explained that he fled from police when they
attempted to stop him because he was on strict probation and did not want
to be sent to state prison for driving without a license. (See id. at 6-8, 18).
Appellant further testified that he did not know that there was a firearm in
the truck, and that he never touched the handgun. (See id. at 9).
Based on the foregoing, viewing the evidence in the light most
favorable to the Commonwealth, see Jannett, supra at 819, we would
Appellant possessed the handgun and to sustain his convictions for firearms
not to be carried without a license and receiving stolen property. The jury
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4
Specifically, Mr. Kukosky stated that it was 140 million, 5.5 million, and 7
compared to the Caucasian, African-American, and Hispanic populations,
respectively. (See N.T. Trial, 4/22/13, at 168, 172, 179).
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fact-finder to assess the credibility of the witnesses and accept all, part, or
none of the evidence. See id. at 820.
the sufficiency of the evidence would not merit relief even if it were not
waived.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2014
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