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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KAREEM GORDON
Appellant No. 3588 EDA 2014
Appeal from the Judgment of Sentence Entered November 14, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0011236-2013
BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 07, 2016
Appellant, Kareem Gordon, appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia County on November
14, 2014, revoking his parole and sentencing him to an aggregate of five to
ten years of incarceration to be followed by five years of reporting probation.
Upon review, we affirm the revocation of Appellant’s parole, vacate
Appellant’s judgment of sentence, and remand for resentencing.
On July 16, 2014, Appellant entered a negotiated guilty plea on four
counts: Count 1 – Firearms not to be carried without a license; Count 2 –
Carrying firearms in public in Philadelphia; Count 4 - Fleeing or attempting
to elude an officer; and Count 5 - Possession of a firearm by a prohibited
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person.1 An order of nolle prosequi was entered as to Count 3. In
accordance with plea negotiations, Appellant was sentenced to eleven and
one-half to twenty-three months of incarceration followed by three years’
reporting probation on Count 1 and five years’ consecutive probation on
Count 4. As to Counts 2 and 5, there was a determination of guilt without
further penalty.
Appellant was paroled on September 18, 2014. However, on October
4, 2014, Appellant was arrested for possession of a firearm by Officer Robert
McCuen. The Commonwealth then moved for revocation of Appellant’s
parole.
At the parole revocation hearing held on November 14, 2014, the
Commonwealth presented the testimony of Officer McCuen, which
established the following. On October 4, 2014 around 8:00 p.m., Officer
McCuen and his partner conducted a vehicle investigation. N.T. Violation
Hearing, 11/14/14, at 8-9. The vehicle belonged to the driver and Appellant
was in the passenger’s seat. Id. at 14. As Officer McCuen approached the
passenger’s side of the car, through the back window of the vehicle he
observed Appellant lean forward toward the glove box and then lean back.
Id. at 10, 18. Appellant’s hands were “really nervous” and “shaking” and
Appellant started doing something on his phone. Id. at 10, 12-13.
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1
Respectively, 18 Pa.C.S.A §§ 6106, 6108, 75 Pa.C.S.A. § 3733, and 18
Pa.C.S.A. § 6105.
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Appellant’s heart was beating so hard that Officer McCuen could see
Appellant’s shirt rising from his chest. Id. at 13. Officer McCuen then asked
Appellant to step out of the car, conducted a frisk of Appellant’s person, and
removed him to the rear of the vehicle. While his partner had Appellant at
the rear of the car, Officer McCuen went to the front part of the car and
recovered a loaded handgun with an obliterated serial number from the
glove box. Id. at 10-11.
On cross-examination, Officer McCuen testified that the driver, who
was still in the car, was surprised at the sight of the gun stating, “Oh shit.
That’s not my gun. I’m a correctional officer in Delaware County.” Id. at
16. The driver was released without giving any further statements, and it
was not verified whether or not the driver was actually a correctional officer.
Id. at 17. Additionally, Officer McCuen indicated that it was possible
Appellant was talking on his phone when he initially approached the vehicle
and that Appellant complied with his request to stop talking on the phone.
Id. at 21. Further, Officer McCuen never saw Appellant’s hands near the
glove box. Id. at 22.
At the conclusion of the hearing, the trial court determined Appellant
had violated his parole. The trial court resentenced Appellant following the
violation hearing as follows:
Count 1 – Firearms not to be carried without a license (18
Pa.C.S. § 6106): parole revoked and 2 ½ - 5 years
incarceration.
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Count 2 – Carrying firearm in public in Philadelphia (18
Pa.C.S. §6108): 2 ½ - 5 years incarceration, concurrent
with Count 1;
Count 4 – Fleeing or attempting to elude an officer (75
Pa.C.S. §3733): 5 years probation consecutive to Count 1;
and
Count 5 – Possession of a firearm by prohibited person (18
Pa.C.S. § 6105): 2 ½ - 5 years incarceration, consecutive
to Count 1.
Appellant timely filed a notice of appeal and, as ordered by the trial
court, a Pa.R.A.P. 1925(b) statement. The trial court issued a Pa.R.A.P.
1925(a) opinion.
On appeal, Appellant raises two issues for our review.
1. Did the court below err by finding Appellant in violation of his
[parole][2] based on testimony that was insufficient to prove that
Appellant had actual or constructive possession of a gun recovered
from the glove compartment of a vehicle in which he was a passenger?
2. Did the lower court impose an illegal sentence when it resentenced
Appellant on two counts for which Appellant had originally received no
further penalty?
Appellant’s Brief at 4.
Appellant first claims his sentence should be vacated because the trial
court erred in revoking his parole. Appellant alleges the Commonwealth
failed to provide sufficient evidence to prove that Appellant had actual or
constructive possession of the recovered firearm. Appellant argues,
therefore, that the trial court erred in finding that Appellant had possession
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2
In his brief, Appellant consistently misstates that he was on probation.
Appellant was on parole at the time of his arrest.
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of the weapon. Id. at 16. Essentially, Appellant argues this Court should
reinstate his parole and vacate his sentence because the Commonwealth
failed to prove he had possession of the firearm recovered from the glove
box. Id. at 19.
Possession can be proven by actual possession or by constructive
possession. Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super.
2013).
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.
Id. Further,
the purposes of a court’s parole-revocation hearing—the
revocation court’s tasks—are to determine whether the parolee
violated parole and, if so, whether parole remains a viable
means of rehabilitating the defendant and deterring future
antisocial conduct, or whether revocation, and thus
recommitment, are in order. The Commonwealth must prove
the violation by a preponderance of the evidence and, once it
does so, the decision to revoke parole is a matter for the court’s
discretion.[3] . . .
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3
“[A]n abuse of discretion is not merely an error in judgment. Instead, it
involves bias, partiality, prejudice, ill-will, or manifest unreasonableness.”
Commonwealth v. Kalichak, 943 A.2d, 285, 290 (Pa. Super. 2008)
(citation omitted).
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Following parole revocation and recommitment, the proper
issue on appeal is whether the revocation court erred, as a
matter of law, in deciding to revoke parole and, therefore, to
recommit the defendant to confinement.
Kalichak, 943 A.2d at 290-91 (citations omitted).
The record reveals the Commonwealth proved that Appellant violated
his parole by a preponderance of the evidence, and that the trial court fully
addressed whether parole remained a viable means of rehabilitating
Appellant and deterring his future antisocial conduct. In particular, the trial
court considered Appellant’s movements, behavior, and his placement in the
car in relation to the firearm in the glove box. N.T. Violation Hearing,
11/14/14, at 31. Based on these facts, the trial court determined it was
more likely than not that Appellant had constructive possession of the
recovered firearm. Id. at 35, 40. Additionally, the trial court held that it no
longer believed parole was a viable means of rehabilitating Appellant or that
it would deter any future criminal conduct. Id. at 38-44. As such, the trial
court did not abuse its discretion or err in revoking Appellant’s parole.
In his second issue, Appellant challenges the legality of his sentence
and the jurisdiction of the trial court. Appellant argues that his sentence
was illegal as the trial court imposed a sentence on Counts 2 and 5 for which
Appellant had originally received a sentence of guilty with no further penalty.
Appellant further argues that the trial court had no jurisdiction to impose
this sentence as the thirty-day period for altering or modifying Appellant’s
sentence had passed.
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Both the trial court and the Commonwealth agree with Appellant that
the sentence imposed is illegal and that the trial court could not impose,
upon revocation of parole, new sentences for Counts 2 and 5. The trial court
requests a remand for resentencing.4 As this Court has previously
explained:
Unlike a probation revocation, a parole revocation does not
involve the imposition of a new sentence. Indeed, there is no
authority for a parole-revocation court to impose a new penalty.
Rather, the only option for a court that decides to revoke parole
is to recommit the defendant to serve the already-imposed,
original sentence. At some point thereafter, the defendant may
again be paroled.
Kalichak, 943 A.2d at 290; see also 42 Pa.C.S.A. § 9776(e). Accordingly,
the trial court was permitted only to recommit Appellant under the terms of
his original sentence, not to impose a new sentence. It was error to impose
a sentence on Counts 2 and 5, and those sentences will therefore, be
vacated.
Although not raised by Appellant, we sua sponte also raise the legality
of the trial court’s resentencing on Count 1. Appellant was initially
sentenced on Count 1 to 11 ½ - 23 months’ incarceration, followed by three
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4
Challenges to an illegal sentence can never be waived. Commonwealth
v. Randal, 837 A.2d 1211, 1214 (Pa. Super. 2003). The trial court requests
that we remand for resentencing as it imposed an illegal sentence with
respect to Counts 2 and 5, as a finding of guilt with no further penalty was
originally entered on those counts more than thirty days prior. Trial Court
Opinion, 3/17/15, at 2 (citing Commonwealth v. Williams, 97 A.2d 1205,
1210 (Pa. Super. 2010)).
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years’ reporting probation. After his violation hearing, Appellant was
resentenced on Count 1 to 2 ½ - 5 years’ incarceration. As previously
stated, upon parole revocation, a sentencing court may only recommit the
defendant to serve the already-imposed original sentence. It may not
impose a new penalty. Here, the trial court improperly increased the penalty
originally imposed on Count 1 after finding a violation of parole, as opposed
to committing Appellant to his original sentence. This too was error
requiring a remand for resentencing.
As the trial court did not abuse its discretion or err in revoking
Appellant’s parole, we affirm Appellant’s parole revocation. We however
vacate Appellant’s judgment of sentence to the extent that the trial court
imposed an illegal sentence, and remand for resentencing consistent with
this Memorandum.
Revocation of parole affirmed. Judgment of sentence vacated. Case
remanded for further proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2016
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