J-S78002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAWN MCDANIEL,
Appellant No. 927 WDA 2015
Appeal from the Judgment of Sentence Entered September 24, 2012
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009703-2011
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 23, 2016
Appellant, Shawn McDaniel, appeals from the judgment of sentence of
4½-9 years’ incarceration imposed following his conviction for multiple
firearms offenses. Appellant claims that the verdict, which was premised on
a finding that he constructively possessed a firearm, was against the weight
of the evidence. After careful review, we affirm.
The following is Appellant’s summary of the evidence produced at trial,
which was uncontested by the Commonwealth in its own brief:
Officer Luptak with the Homestead Police Department
testified that he was on patrol on May 31, 2011. He received a
dispatch about a domestic disturbance at 911 West Street. He
was in uniform when he arrived at the scene. Another officer,
Officer Strang, also was at the scene. Officer Luptak observed
an SUV parked in the front, and a man, Derek Wilkins, and
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*
Former Justice specially assigned to the Superior Court.
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woman, Kelly Franklin, on the sidewalk. Derek Wilkins, told the
officer that the male inside the SUV had threatened to shoot
him. The officer identified [Appellant] as the male who was
inside the SUV. He was sitting in the left rear passenger seat.
There was a male driver and possibly a child in the vehicle.
Neither Mr. Wilkins nor Ms. Franklin was presented as a
Commonwealth witness to testify with regard to seeing
[Appellant] display a gun.
Neither officer had heard [Appellant] make any threats.
Officer Strang approached [Appellant] and asked him if he had
any weapons. Officer Strang then opened the door for
[Appellant] to step out. He told [Appellant] he was going to pat
him down. At that point, [Appellant] stepped out of the vehicle
and took off running. The two officers chased him[,]
commanding him to stop. They were about 15 feet behind him.
[Appellant] ran down Tenth Avenue then cut through an
alleyway towards Ninth. Officer Luptak said that [Appellant] cut
through some yards and jump[ed] over a chain link fence into
some weeds leading into an apartment building parking lot. The
officer asserted that he briefly lost sight of [Appellant] at that
point. The weeded area was bordered by a railroad tie wall
approximately 6 feet high that dropped down into the parking
lot. Officer Luptak admitted that at no point did he see
[Appellant] with a gun. He also did not see [Appellant] throw
anything.
The police apprehended [Appellant] in the weeds about 20
feet from where he jumped over the fence, and about 75 yards
east and another 50 yards north from where he exited the
vehicle. The pursuit lasted approximately three minutes. He
was in possession of what was later identified as crack cocaine
and several Oxycodone pills. He was not wearing any gloves,
and no gloves were found in the area.
After [Appellant] had been transported to the police
station, the officers searched the area where [Appellant] was
apprehended. A nine-millimeter Glock was discovered on top of
the railroad tie wall that separated the weeded area from a
parking lot. A broken magazine was on the pavement 4 to 6 feet
below the gun. The officer did not remember if the gun was
loaded. The gun was in a holster. The officer did not see
[Appellant] place or throw the gun on the wall.
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According to the Crime Lab, the firearm was found to be in
good operating condition and had a four-inch barrel length. No
fingerprints were found on the gun. The cartridge, bullets and
holster were not tested for fingerprints.
Officer Ian Strang testified that he spoke with Ms. Franklin
at the time of the incident. He claimed that Ms. Franklin told
him she had gotten into an argument with [Appellant] earlier
that day and he had threatened to shoot her. Ms. Franklin
pointed out [Appellant] to the officer. She appeared upset. The
officer did not include any of this information in his report. He
did not see [Appellant] with a weapon, nor did Ms. Franklin or
anyone else tell him that [Appellant] had a weapon.
The defense presented the testimony of Ms. Kelly Franklin.
She stated that [Appellant] is her boyfriend, and was her
boyfriend at the time of the incident. Derek Williams was the
father of one of her sons. Her brother drove her to Derek's
house to retrieve her cellphone that Derek had taken from her
earlier that evening at her mother's house. [Appellant] went
with them and was sitting in the back seat with Ms. Franklin's
kids. Ms. Franklin said that her brother got into an argument
with Derek about returning the phone. However, she was
certain that her brother did not make any threats about shooting
anyone, nor did [Appellant]. Her brother stood on the running
board of his vehicle yelling at Derek. [Appellant] stayed in the
backseat and did not say anything. Ms. Franklin did not see
[Appellant] with a weapon.
[Appellant] confirmed Ms. Franklin's testimony. He denied
that he threatened to shoot anyone. He had outstanding
warrants from California for probation violations at the time. He
denied having a gun on him. He admitted that he had narcotics
in his possession. When the police asked him to get out of the
car, he was afraid of being caught with the drugs so he ran
away.
Appellant’s Brief, at 8-11 (citations to the record omitted).
Appellant’s non-jury trial occurred on May 1, 2012, following which the
trial court found him guilty of two firearm offenses, 18 Pa.C.S. § 6105
(“Persons not to possess, use, manufacture, control, sell or transfer
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firearms”) and 18 Pa.C.S. § 6106 (“Firearms not to be carried without a
license”), and one count of possession of a controlled substance, 35 P.S. §
780-113(a)(16).1 On September 24, 2012, the trial court sentenced
Appellant to 4½-9 years’ incarceration for his Section 6105 offense, and to
no further penalty at all remaining counts.
After a protracted post-sentence history, Appellant’s appellate and
post-sentence rights were reinstated by trial court order dated March 24,
2015.2 Appellant then filed a nunc pro tunc post-sentence motion on April 1,
2015. Following a hearing held on May 11, 2015, the motion was denied by
the trial court. Appellant then filed a timely notice of appeal on July 10,
2015. Appellant filed a court-ordered, Pa.R.A.P. 1925(b) statement on July
27, 2015, and the trial court issued its brief Rule 1925(a) opinion 10 months’
later, on May 31, 2016.
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1
The Commonwealth withdrew charges of resisting arrest and possession of
a controlled substance with intent to distribute.
2
The procedural history leading to this outcome is not relevant to this
appeal and, therefore, is only briefly summarized as follows. After failing to
perfect his direct appeal, Appellant filed a pro se petition under the Post
Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, in September of 2013. Prior
counsel was appointed, who then amended the petition to include a claim
seeking reinstatement of Appellant’s direct appeal rights nunc pro tunc.
Following a change to current counsel, the petition was again amended to
include a claim seeking reinstatement of Appellant’s post-sentence motion
rights nunc pro tunc as well. As noted above, the court ordered the
reinstatement of Appellant’s direct appeal and post-sentence motion rights
nunc pro tunc on March 24, 2015. It appears from the record that the
Commonwealth did not oppose this action.
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Appellant now presents the following question for our review:
Did the lower court abuse its discretion in denying the post-
sentence motion which averred that the verdict of guilty of
violations of the Uniform Firearms Act as contrary to the [weight
of the] evidence where none of the witnesses observed Appellant
in possession of a firearm, Appellant was not found in possession
of a firearm at the time of his arrest, and the police did not see
Appellant throw or drop anything while they were pursuing him?
Appellant’s Brief, at 5 (unnecessary capitalization omitted).
We apply the following standard of review to a challenge that a verdict
is against the weight of the evidence:
An appellate court's standard of review when presented with
a weight of the evidence claim is distinct from the standard of
review applied by the trial court:
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 conviction 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.
This does not mean that the exercise of discretion by the trial
court in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court's discretion, we have
explained:
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for
the purpose of giving effect to the will of the judge.
Discretion must be exercised on the foundation of reason,
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as opposed to prejudice, personal motivations, caprice or
arbitrary actions. Discretion is abused where the course
pursued represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or where
the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations
omitted).
Appellant argues that the trial court abused its discretion in ruling
against his weight-of-the-evidence challenge because
the evidence used to support [Appellant]'s conviction relied
solely on the police officers' testimony that [Appellant]'s
girlfriend told them that [Appellant] threatened to shoot her, and
that fact that a broken gun was found in the area where
[Appellant] was arrested after fleeing from the police. At trial,
[Appellant]'s girlfriend denied telling police that [Appellant] had
threatened to shoot her or anyone else[.] In fact, Ms. Franklin's
alleged statements to the police were not contained in the police
report. Furthermore, no one testified as to hearing [Appellant]
threaten to shoot anyone, observing [Appellant] in possession of
a firearm, or to seeing him throw or drop anything as the police
pursued him. Notably, illegal contraband was found in his
pockets - it had not been dropped or discarded. The area in
which the gun was found was located next to a parking lot and
was accessible to the public in general. [Appellant] was not
wearing gloves, but his fingerprints were not found on the gun,
the holster, or the cartridge.
Appellant’s Brief, at 15-16 (citations omitted).
The trial court credited Officer Luptak’s testimony that Appellant
“threatened to shoot someone.” Trial Court Opinion (TCO), 5/31/16, at 4.
Specifically, Officer Luptak testified that when he arrived on the scene to
investigate a disturbance, Derek Wilkins told him that Appellant “threatened
to shoot him.” Notes of Testimony (hereinafter “NT”), 5/1/12, at 8. The
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trial court found this hearsay3 statement credible, and reinforced
circumstantially by Appellant’s flight from police when Appellant was asked if
he had “any weapons on him[.]” Id. at 10. Furthermore, the firearm at-
issue “was located along the path that officers pursued [Appellant]. The
firearm was found on the wall [Appellant] climbed over and a magazine
matching the gun was located at the bottom of the wall in the weeds where
it appeared [Appellant] had made a path.” TCO at 4.
Thus, the evidence demonstrating Appellant’s constructive possession
of the seized firearm was circumstantial. There were no direct observations
of Appellant’s possessing the firearm. However, Appellant’s purported threat
to use a firearm, his flight from police when asked if he was armed, and the
discovery of a firearm on his subsequent flight path, all tend to suggest that
Appellant possessed that firearm before abandoning it during his flight from
police.
This evidence was partially contradicted by Appellant’s testimony and
the testimony of his girlfriend, Kelly Franklin. Appellant testified that he
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3
The admissibility of such hearsay evidence is a wholly separate question
from Appellant’s weight-of-the-evidence challenge. Notably, Appellant did
not object at trial on hearsay grounds to this aspect of Officer Luptak’s
testimony, nor to other statements attributed to Wilkins and Franklin as
reported by the officers. If Appellant believes he was unduly prejudiced by
the form of this evidence, independent of its content, he should have
challenged the admission of these statements in the lower court, and raised
such claims on appeal if unsuccessful. Appellant has not cited any basis for
this Court to ignore or discredit such testimony because it was hearsay when
considering the merits of his weight-of-the-evidence claim.
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never possessed the firearm in question, NT at 55, and that he fled because
of an outstanding warrant and his possession of controlled substances, id. at
54. Ms. Franklin testified that Appellant never made any threat to shoot
anybody. Id. at 45. Ms. Franklin also denied Officer Strang’s testimony
that, before Appellant’s flight and subsequent arrest, she had described
Appellant’s threats or identified him for the officers when they arrived on the
scene. Id. at 46-48.
The trial court “did not find [Appellant]’s testimony credible.” TCO at
4. Although it never said so specifically, it appears as if the trial court also
disbelieved Ms. Franklin’s testimony. Given the totality of these
circumstances, the court ruled that “it appropriately weighed the evidence”
and “the court’s decision [did] not shock the conscience of the court.” Id.
We cannot ascertain any abuse of discretion in the trial court’s
decision. It can be fairly said that proof of Appellant’s guilt for constructive
possession of the seized firearm cannot be premised merely upon his
purported threat to use a firearm, or his flight from police when asked if he
was armed, or the discovery of a firearm on his subsequent flight path, when
those circumstances are considered individually and/or in isolation.
However, this web of facts, when considered in the aggregate, strongly
suggests Appellant possessed the firearm in question, as the confluence of
these circumstances bolsters their individual significance. Given the
reasonableness of such a conclusion, in tandem with the trial court’s
discrediting the defense witnesses’ testimony, the trial court’s finding of guilt
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was not “manifestly unreasonable.” Clay, 64 A.3d 1055. Moreover,
Appellant presents no argument that the court’s decision was a product “of
partiality, prejudice, bias or ill-will.” Id. Accordingly, we conclude that the
trial court did not abuse its discretion in rejecting Appellant’s weight-of-the-
evidence claim.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2016
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