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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYWAN ADAMS,
Appellant No. 1617 WDA 2014
Appeal from the Judgment of Sentence of August 6, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000350-2014
BEFORE: SHOGAN, OLSON AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 29, 2015
Appellant, Tywan Adams, appeals from the judgment of sentence
entered on August 6, 2014, as made final by the denial of his post-sentence
motion on September 2, 2014. We affirm.1
On October 11, 2013, Patrol Officer Ira Bush of the City of Erie Bureau
of Police was dispatched to 142 East 31st Street in Erie, Pennsylvania to
investigate a domestic disturbance involving a man with a gun. While en
route to the incident, Patrol Officer Bush received instructions from other
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1
On May 13, 2015, Appellant petitioned this Court to stay these proceedings
on grounds that direct appeal counsel refused to include a claim alleging
prosecutorial misconduct arising from the Commonwealth’s presentation of
alleged hearsay evidence during the testimony of Patrol Officer Bush. As our
discussion of the issues will reveal, counsel included the substance of
Appellant’s prosecutorial misconduct claim in the arguments raised on
appeal. Hence, we shall deny Appellant’s petition with prejudice.
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officers to stop a sports utility vehicle that was departing from the scene.
Patrol Officer Bush performed the stop and encountered three vehicle
occupants. Selena Clark was the driver, Simon Odom was the front seat
passenger, and Appellant was the only passenger in the back seat.
All three individuals exited the vehicle and Clark, the owner, gave
Patrol Officer Bush her consent to conduct a search. In a rear compartment
of the vehicle, directly behind the location where Appellant had been seated,
Patrol Officer Bush recovered a mesh lawn chair bag that contained a
Hi-Point, model 995, 9 mm semi-automatic rifle. Appellant, who was
handcuffed by this point, attempted to jump over a fence when he observed
Patrol Officer Bush recover the mesh bag.
On March 27, 2014, the Commonwealth filed an information charging
Appellant with persons not to possess firearms, 18 Pa.C.S.A. § 6105(a)(1),
and carrying a firearm without a license, 18 Pa.C.S.A. § 6106(a)(1).
Appellant proceeded to a non-jury trial on June 25, 2014. At the conclusion
of trial, the court found Appellant guilty of all charges. Thereafter, on
August 6, 2014, the trial court sentenced Appellant to serve 60 to 120
months in prison for his persons not to possess firearms conviction. In
addition, Appellant was ordered to serve 42 to 84 months’ incarceration for
carrying a firearm without a license. The trial court ordered Appellant’s
sentences to run consecutive to each other and consecutive to a sentence
imposed at a separate docket. Appellant moved to reconsider his sentences
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on August 18, 2014 and the court denied that motion on September 2,
2014.
Appellant filed a timely notice of appeal on October 2, 2014. Pursuant
to Pa.R.A.P. 1925(b), Appellant filed a court-ordered concise statement of
errors complained of on appeal on October 24, 2014. The trial court issued
its Rule 1925(a) opinion on November 6, 2014.
Appellant’s brief raises the following issues for our consideration:
Whether the trial court’s finding of guilt subsequent to a [t]rial
[w]ithout [a] [j]ury was not supported by sufficient evidence,
specifically whether the trial court erred when it found the
Commonwealth’s primary witness, Selena Clark, credible[?]
Whether [Appellant] was denied his Constitutional right to
confront his accuser present at the time of the alleged offense,
but who failed to appear for trial[?]
Whether the trial court erred when [it] failed to sufficiently take
into account [] mitigating factors pertaining to Appellant at the
time of sentencing, resulting in a sentence that was excessive
and unreasonable[?]
Appellant’s Brief at 4.
Appellant’s first claim challenges the sufficiency of the evidence
introduced by the Commonwealth to support his firearms convictions.
Specifically, Appellant attacks the testimony of the two witnesses the
Commonwealth produced at trial. Appellant argues that Clark’s testimony at
trial differed from her statements to officers on the night of the incident.
Appellant points out that, on the night Patrol Officer Bush stopped her
vehicle, Clark denied that the firearm was hers but never indicated that
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Appellant brought it into her car. At trial, however, Clark testified that she
observed Appellant enter her vehicle with the mesh bag from which Patrol
Officer Bush recovered the firearm. Appellant also makes a passing
argument that Clark may have harbored a bias against Appellant. With
respect to Patrol Officer Bush, Appellant states that the officer never
observed Appellant in possession of a firearm. Appellant concludes that he
is entitled to relief because Patrol Officer Bush’s testimony was insufficient to
establish possession of a firearm and because Clark’s testimony lacked
credibility. We disagree.
We apply the following standard of review to Appellant’s sufficiency
challenge.
Whether sufficient evidence exists to support the verdict is a
question of law; our standard of review is de novo and our scope
of review is plenary. We review the evidence in the light most
favorable to the verdict winner to determine whether there is
sufficient evidence to allow the [factfinder] to find every element
of a 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 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 finder 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.
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Commonwealth v. Tejada, 107 A.3d 788, 792-793 (Pa. Super. 2015).
To obtain a conviction for persons not to possess a firearm, the
Commonwealth needed to prove beyond a reasonable doubt that Appellant
had been convicted of an enumerated offense identified at 18 Pa.C.S.A.
§ 6105 (b) and that Appellant possessed a firearm in Pennsylvania. See 18
Pa.C.S.A. § 6105(a)(1). To convict Appellant of possessing a firearm
without a license, the Commonwealth needed to demonstrate beyond a
reasonable doubt that Appellant carried a firearm in a vehicle or concealed a
firearm on or about his person and that he did so without a license. See 18
Pa.C.S.A. § 6106(a)(1). Appellant stipulated that he had a prior
disqualifying conviction for purposes of § 6105 and he does not challenge
the Commonwealth’s proof that he did not possess a license to carry a
firearm. Thus, our focus in this case is whether the Commonwealth came
forward with sufficient evidence that Appellant possessed a firearm.
Our review of the certified record confirms that the Commonwealth
adduced sufficient evidence to prove beyond a reasonable doubt that
Appellant possessed a firearm. Clark testified at trial that Appellant entered
her vehicle with the mesh bag from which the firearm was later recovered.
N.T., 6/25/14, at 10-11. Appellant claims that this testimony is unworthy of
belief since she never stated on the night in question that Appellant brought
the mesh bag into her vehicle. The record, however, reveals that the
officers never asked Clark whether she saw Appellant enter her car with the
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bag. Id. at 16. Based upon this testimony, there is no factual support for
the alleged inconsistency Appellant raises on appeal. Moreover, Appellant’s
attack on Clark’s testimony relates more to the weight, not the sufficiency,
of the evidence since the trial court, serving as factfinder, was free to
believe all, part, or none of the evidence in passing on Clark’s credibility. As
our standard of review requires that we view the evidence in the light most
favorable to the Commonwealth, and forbids us from re-weighing the
evidence accepted by the factfinder, we conclude that Appellant’s first claim
merits no relief.2
Appellant’s next claim asserts that his right to confront adverse
witnesses was violated when Patrol Officer Bush “testified” that Appellant’s
girlfriend said that she saw him with a gun. This claim immediately fails.
Our review of the notes of testimony from Appellant’s trial reveals no such
testimony coming from Patrol Officer Bush. In addition, Appellant has not
directed our attention to any part of the record in which such testimony
appears. Since Patrol Officer Bush did not testify about an out-of-court
statement uttered by Appellant’s girlfriend, Appellant’s right to confront
adverse witnesses was not implicated in this case.
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2
Appellant’s effort to flee the scene when Patrol Officer Bush discovered the
firearm also supports the verdict since flight demonstrates consciousness of
guilt. See Commonwealth v. Tha, 64 A.3d 704, 714 (Pa. Super. 2013)
(defendant’s departure from crime, despite request from police to stop,
justified issuance of flight instruction which allowed jury to infer guilt from
evasive conduct in connection with other proof).
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Appellant’s final claim asserts that his sentence is excessive. This
issue challenges the discretionary aspects of Appellant’s sentence. See
Commonwealth v. Ali, 2015 WL 926952, *21 n.4 (Pa. Super. Mar. 5,
2015). “[A] trial court has broad discretion in sentencing a defendant, and
concomitantly, the appellate courts utilize a deferential standard of appellate
review in determining whether the trial court abused its discretion in
fashioning an appropriate sentence.” Commonwealth v. Pasture, 107
A.3d 21, 27 (Pa. 2014) (citation omitted).
Pursuant to statute, Appellant does not have an automatic right to
appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A.
§ 9781(b). Instead, Appellant must petition this Court for permission to
appeal the discretionary aspects of his sentence. Id. As Appellant received
a sentence within the guidelines, this Court may only overturn his
punishment if this “case involves circumstances where the application of the
guidelines would be clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2).
As this Court has explained:
To reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether appellant
has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, Pa.R.Crim.P. [720];
(3) whether appellant’s brief has a fatal defect, Pa.R.A.P.
2119(f); and (4) whether there is a substantial question that the
sentence appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.A. § 9781(b).
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Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014),
appeal denied, 99 A.3d 925 (Pa. 2014) (internal alteration and citation
omitted). Appellant filed a timely notice of appeal and properly preserved
his present claims for our review in his post-sentence motion. Appellant’s
brief also contains a statement pursuant to Pennsylvania Rule of Appellate
Procedure 2119(f). We now turn to whether the appeal presents a
substantial question.
“In order to establish a substantial question, the appellant must show
actions by the trial court inconsistent with the Sentencing Code or contrary
to the fundamental norms underlying the sentencing process.”
Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014)
(citation omitted). “The determination of whether a particular case raises a
substantial question is to be evaluated on a case-by-case basis.”
Commonwealth v. Seagraves, 103 A.3d 839, 841 (Pa. Super. 2014)
(citation omitted).
Appellant’s Rule 2119(f) statement sets forth general principles of law
pertaining to discretionary sentencing challenges but omits case-specific
grounds for review in the present matter. In the argument summary that
immediately follows the Rule 2119(f) statement, however, Appellant argues
that his sentence is excessive since the trial court failed to consider
mitigating factors, including Appellant’s strong family support, the fact that
this case involved constructive possession, the fact that the weapon was not
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used, and the inclusion of a juvenile offense in the calculation of Appellant’s
prior record score. This Court recently held that an “excessive sentence
claim in conjunction with an assertion that the court did not consider
mitigating factors” raises a substantial question. Commonwealth v.
Gonzalez, 2015 WL 252446, *15 (Pa. Super. Jan. 21, 2015) (internal
alteration and citation omitted). Accordingly, Appellant has raised a
substantial question and we proceed to consider the merits of his
discretionary aspects claim.
When sentencing a defendant, the trial court is required to consider
that
the sentence imposed should call for confinement that is
consistent with 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.
42 Pa.C.S.A. § 9721(b).
In this case, the trial court carefully examined all of the relevant
sentencing factors. It stated on the record that it reviewed the pre-sentence
investigation report, including the sentencing recommendation. N.T.,
8/6/14, at 9-10. See Commonwealth v. Raven, 97 A.3d 1244, 1254 n.12
(Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014) (citation
omitted) (“when a sentencing court has the benefit of a pre-sentence report,
we must presume that the sentencing judge was aware of, and duly
considered, any character-related information contained therein”). The trial
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court also considered the gravity of the offense, Appellant’s age, his
background, his character, and his rehabilitative needs.
The trial court focused on the need to protect the community.
Specifically, the trial court noted that Appellant was on parole for an armed
robbery when he committed the instant offenses. N.T., 8/6/14, at 10. The
trial court also outlined Appellant’s prior offense history, noting that
Appellant’s juvenile history was “rather significant” and that his adult history
was “even worse.” Id. In addition, the court noted Appellant’s inability
and/or unwillingness to conform his conduct to the law:
It is obvious from [Appellant’s] actions that even after serving a
lengthy state sentence he went out and committed a serious
crime within a city that has been wracked with gun violence, and
it is obvious that even while under supervision the
Commonwealth was unable to control [Appellant’s] behavior.
Id. Accordingly, the trial court considered all of the section 9721(b) factors.
Appellant argues that the trial court failed to consider certain
mitigating factors. Specifically, Appellant maintains that the trial court failed
to consider Appellant’s strong family support, the fact that this case involved
constructive possession, the fact that the weapon was not used, and the
inclusion of a juvenile offense in the calculation of Appellant’s prior record
score. The record rebuts Appellant’s assertion. Trial counsel made these
very same arguments on the record at Appellant’s sentencing hearing but
the trial court denied relief based upon the factors we have identified above.
Appellant makes no claim that the trial court’s determination was contrary to
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the facts. Instead, Appellant’s simply asks that we reassess the facts placed
before the court at sentencing. Because the trial court is in a far better
position to weigh the factors relevant to sentencing, our standard of review
precludes this approach to appellate review of a trial court’s discretionary
sentencing rulings. Accordingly, since Appellant has failed to demonstrate
that the trial court’s application of the guidelines in this case was clearly
unreasonable, his challenge to the discretionary aspects of his sentence is
without merit.
Judgment of sentence affirmed. Petition for stay of proceedings and
remand denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2015
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