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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CLARENCE GLENN :
:
Appellant : No. 2078 EDA 2016
Appeal from the Judgment of Sentence May 4, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009741-2015
BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY OTT, J.: FILED JULY 25, 2017
Clarence Glenn appeals from the judgment of sentence imposed May
4, 2016, in the Philadelphia County Court of Common Pleas.1 The trial court
sentenced Glenn to an aggregate term of seven to 15 years’ imprisonment
following his non-jury conviction of persons not to possess firearms and
possession of an instrument of crime (“PIC”).2 On appeal, Glenn challenges
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*
Former Justice specially assigned to the Superior Court.
1
Glenn was tried jointly with his two co-defendants, Hassan Robinson and
Lawrence Mangrum. All three were convicted of the same offenses. They
are now represented by the same attorney on appeal, and have filed
identical briefs. See Commonwealth v. Robinson 2434 EDA 2016;
Commonwealth v. Mangrum, 2149 EDA 2016.
2
See 18 Pa.C.S. §§ 6105 and 907, respectively.
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the sufficiency and weight of the evidence supporting his convictions. For
the reasons below, we affirm.
The facts underlying Glenn’s conviction were aptly summarized by the
trial court as follows:
Officer Kevin Lewis of the Philadelphia Police Department
testified that at approximately 8:48 PM on August 19, 2015, he
and his partner, Officer Sanders, were on duty and were parked
at the intersection of 56th and Haverford Ave. in the city and
County of Philadelphia when they heard the sound of nearby
gunfire. Believing it to have come from the area of “55th and
Vine, which is a block down and… one block over,” he
immediately drove to the vicinity and observed three males,
identified in Court as [Glenn] and his Co-Defendants, []
Mangrum and [] Robinson, “running across Vine from 300
Sickles onto 200 Sickles.” The three males were the only
individuals he observed in the area.
Believing “the males might possibly come out of the
breezeway there”, Officer Lewis drove to the 5400 block of
Summer Street to intercept them. On arriving, he observed the
three males attempting “to get into a white Oldsmobile, which
was running on the highway unattended.” Officer Lewis and his
partner “were able to stop them from getting in the car and get
them in handcuffs.” Officer Lewis estimated that it took
“between ten and fifteen seconds” from when he first heard the
gunshots to when he intercepted [Glenn] and the two other Co-
Defendants.
On August 19, 2015, Detective Vincent Parker of the
Philadelphia Police Department was on duty, along with his
partner, Detective Ortiz. They responded to the area of 300
North 55 Street, the location of the incident in question, where
Detective Parker observed his partner recover “12 9 MM FCCs
[fired cartridge casings] … on the west side of the street” and
four 9MM FCCs… from the east side of the street near the
walkway.” Detective Parker also personally recovered three
firearms from 236 Sickles Way. This was corroborated by Officer
Lewis, who testified that these three firearms were located in
“the flight path” that he observed the three Co-Defendant’s “run
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through”, only “about 20 yards” from where the white
Oldsmobile was located with the engine running.
At his waiver trial it was stipulated by counsel that [Glenn]
did not “have a valid license to carry a firearm” and was
prohibited from carrying a firearm. It was also stipulated that
the FCCs recovered correspond to two of the three firearms
recovered by Detective Parker, with the third firearm being
determined to be inoperable.
Trial Court Opinion, 10/17/2016, at 3-4 (record citations omitted).
Glenn and his co-defendants were subsequently charged with persons
not to possess firearms, possession of a firearm without a license,
possession of a firearm on a public street in Philadelphia, PIC, and
conspiracy.3 They proceeded to a joint non-jury trial held on February 26,
2016. At the conclusion of the testimony, the trial court found Glenn guilty
of persons not to possess firearms and PIC, and not guilty of the remaining
charges. On May 4, 2016, the court sentenced Glenn to a term of five to 10
years’ incarceration for the firearms offense, and a consecutive term of two
to five years’ incarceration for PIC. Glenn filed a timely post-sentence
motion challenging the sufficiency and weight of the evidence and requesting
reconsideration of his sentence. The trial court denied Glenn’s motion on
May 24, 2016, and this timely appeal followed.4
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3
18 Pa.C.S.§§ 6105, 6106, 6108, 907, and 903, respectively.
4
On June 24, 2016, the court ordered Glenn to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Glenn
complied with the court’s directive, and filed a concise statement on July 15,
2016.
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Preliminarily, we must address the trial court’s contention that Glenn’s
issues are waived on appeal as a result of his vague concise statement. See
Trial Court Opinion, 10/17/2016, at 2-3. It is well-settled that when a trial
court directs an appellant to file a Rule 1925(b) statement, the statement
must “concisely identify each ruling or error that the appellant intends to
challenge with sufficient detail to identify all pertinent issues for the judge.”
Pa.R.A.P. 1925(b)(4)(ii). Indeed, this Court has found waiver where an
appellant’s concise statement is too vague to permit review.
Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015).
Particularly, when an appellant challenges the sufficiency of the evidence,
the [Rule] 1925(b) statement needs to specify the element or
elements upon which the evidence was insufficient. This Court
can then analyze the element or elements on appeal. [Where a
Rule] 1925(b) statement [ ] does not specify the allegedly
unproven elements[,] ... the sufficiency issue is waived [on
appeal].
Id., quoting Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa.
Super. 2008) (quotation omitted). The same is true for a challenge to the
weight of the evidence. See Commonwealth v. Freeman, 128 A.3d 1231,
1248-1249 (Pa. Super. 2015).
Nevertheless, when our appellate review is not hindered by the defects
in the concise statement, we have declined to find waiver. See
Commonwealth v. Smith, 955 A.2d 391, 393 (Pa. Super. 2008) (finding
issues not waived despite vague Rule 1925(b) statement when the trial court
“filed an opinion which meaningfully addressed the [appellant’s]
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arguments.”). In the present case, Glenn filed a post-sentence motion in
which he challenged both the weight and sufficiency of the evidence, and, in
particular, the fact that “the Commonwealth failed to present any direct
evidence that [he] was in possession of a firearm.” Post-Sentence Motion,
5/5/2016, at ¶ 7(a). Moreover, the trial court, despite finding waiver,
addressed both claims in its opinion. See Trial Court Opinion, 10/17/2016,
at 5-9. Consequently, because we are able to meaningfully review Glenn’s
issues on appeal, we decline to find his claims waived.
In his first issue, Glenn contends the evidence was insufficient to
support his convictions because the Commonwealth failed to prove he
possessed a firearm on the night in question. Our review of a challenge to
the sufficiency of the evidence is well-established:
The standard we apply in reviewing the sufficiency of the
evidence is whether 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
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
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weight of the evidence produced, is free to believe all, part
or none of the evidence.
“This standard is equally applicable to cases where the evidence
is circumstantial rather than direct so long as the combination of
the evidence links the accused to the crime beyond a reasonable
doubt.” “Although a conviction must be based on ‘more than
mere suspicion or conjecture, the Commonwealth need not
establish guilt to a mathematical certainty.’”
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014)
(internal citations omitted), appeal denied, 95 A.3d 275 (Pa. 2014).
In the present case, Glenn challenges his convictions of persons not to
possess firearms and PIC. Section 6105 of the Uniform Firearms Act,5
provides, inter alia, that a person who has been convicted of certain
enumerated offenses, “shall not possess, use, control, sell, transfer or
manufacture … a firearm in this Commonwealth.” 18 Pa.C.S. § 6105(a)(1).
Furthermore, pursuant to Section 907 of the Crimes Code, “[a] person
commits a misdemeanor of the first degree if he possesses any instrument
of crime with intent to employ it criminally.” 18 Pa.C.S. § 907(a).
Here, Glenn stipulated he was prohibited from possessing a firearm
under Section 6105. See N.T., 2/26/2016, at 51. Moreover, it is axiomatic
that “[a] handgun is clearly an instrument of crime as defined” in the PIC
statute. Commonwealth v. Monroe, 422 A.2d 193, 195 (Pa. Super.
1980). Consequently, Glenn’s argument focuses on the court’s finding that
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5
18 Pa.C.S. § 6101 et seq.
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he “constructively possessed one of the firearms the police found.” Glenn’s
Brief at 9.
Because Glenn did not possess a firearm on his person at that time of
his arrest, the Commonwealth was required to establish that Glenn
constructively possessed one of the three firearms recovered from the
courtyard.
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) (citation
omitted), appeal denied, 78 A.3d 1090 (Pa. 2013). “Additionally, it is
possible for two people to have joint constructive possession of an item of
contraband.” Id. at 820-821.
Relying on Commonwealth v. Carter, 450 A.2d 142 (Pa. Super.
1982), Glenn argues the evidence was insufficient to establish he had “both
the power to control and the intent to exercise that control over the
firearm.” Glenn’s Brief at 9. First, he notes the guns were recovered from
“the courtyard of a five-building public housing project in which hundreds of
people lived and to which hundreds more had access.” Id. at 10. Second,
he emphasizes neither his DNA nor his fingerprints were discovered on any
of the weapons, and he told police he was running because “somebody had
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just shot at him.” Id. Finally, Glenn maintains: “Other than the fact that
[he] was seen by Officer Lewis running from the area in which the gun was
found, there was no evidence connecting him to the gun.” Id. Accordingly,
he asserts his convictions were based upon “mere conjecture, speculation,
and suspicion.” Id.
The trial court addressed Glenn’s sufficiency claim as follows:
Within seconds of hearing gunfire, Officer Lewis saw [Glenn] and
his two Co-Defendants, fleeing the area. He, and his partner
apprehended the three Co-Defendants as they were trying to
enter an unattended and running vehicle. Only ten to fifteen
seconds had passed from when the shots were first fired and the
three Co-Defendants were taken into custody.
Subsequent inspection of the Co-Defendant’s flight path
led to the recovery of three firearms, as well as multiple FCCs
that came from two of the recovered firearms. Because it was
stipulated that [Glenn] was prohibited from possessing a
firearm, and because possession is the only element in dispute
as it relates to the PIC charge, the Commonwealth only needed
to prove that [Glenn] possessed a firearm for [Glenn] to be
found guilty of Possession of a Firearm by Persons Prohibited and
PIC. In viewing the totality of the circumstances, it is clear that
[Glenn] illegally possessed a firearm.
In finding [Glenn] guilty, the Court stated “[to] find the
defendants not guilty, I really would have to torture the facts. I
mean, it defies reason. I would have to manufacture a
reasonable doubt, and I’m not going to do that.” The Court also
stated:
“It’s a circumstantial evidence case, the circumstances
being you have a well-defined crime scene, a shooting that
takes place we know just within moments because the
police are right there and hear it. You have them running
from the direction of the crime scene toward a waiting car.
And along the way, along their path, they find three guns
– three guys, three guns.”
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Specifically, the court found that the presence of the unattended
white Oldsmobile in such close proximity of the crime scene was
a key factor, stating:
“The white Oldsmobile says they’re involved, doesn’t it?
Who leaves a car running with nobody in it unless they
expect to be back soon and be in a hurry to get away?
Even if you’re just going to, you know, be gone for a little
bit and come back in a short time, you turn your car off.
You take your key with you. You go wherever you’re going
to go, do whatever you’re going to do, unless you know
that you’re running from something and then you want to
be able to jump into the car and take off.
I mean that car is what prevents me from accepting your
argument. It’s not just the shooting took place
somewhere and these guys happen to be in the
neighborhood. They’re running for that car.
The Court finds that the circumstantial evidence presented
in this case by the Commonwealth is sufficient to support
[Glenn’s] convictions for Possession of a Firearm by Persons
Prohibited and PIC.
Trial Court Opinion, 10/17/2016, at 7-8 (record citations omitted).
Our review of the record and relevant case law reveals ample support
for the trial court’s decision. Absent from Glenn’s discussion is the one fact
the trial court found to be dispositive – Glenn and his cohorts were
apprehended while attempting to flee in an unattended, running vehicle
just moments after the shooting. See N.T., 2/26/2016, at 15. Indeed,
Officer Lewis testified he intercepted the three men “between ten and 15
seconds” after he heard the initial gunshots, and saw no other individuals in
the area. Id. at 16, 21. Further, he estimated the guns were recovered
“about 20 yards” from where the men were found, in the “flight path that
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[he] observed the males run through.” Id. at 17. As Officer Lewis
continued to retrace the defendants’ steps, he recovered “over 15 shell
casings” in the courtyard of the housing development. Id. at 18. The
totality of these circumstances supports the trial court’s finding that Glenn
had the power and intent to control one of the three recovered firearms.
See Hopkins, supra.
Moreover, the decision in Carter does not affect our analysis. In that
case, a panel of this Court held the evidence was sufficient to establish the
defendant constructively possessed a firearm recovered from a vehicle in
which he was the driver. See Carter, supra, 450 A.2d at 147-148.
Although there were four other occupants in the car, the panel concluded the
location of the firearm (under the brake pedal), and the actions of the
defendant immediately after the stop (bending down towards the
floorboard), supported the trial court’s finding that the defendant had
constructive possession of the weapon. See id. Similarly, here, Glenn’s
actions in fleeing from the crime scene, moments after gunshots were heard,
to an unattended vehicle left running for a quick getaway, was sufficient to
support the trial court’s determination that Glenn constructively possessed
one of the weapons.6 Accordingly, no relief is warranted on Glenn’s first
issue.
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6
We note Glenn also relies on this Court’s decision in Commonwealth v.
Person, 39 A.3d 302 (Pa. Super. 2012), in which the panel determined the
(Footnote Continued Next Page)
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Next, Glenn challenges the weight of the evidence supporting his
convictions. Our review of a weight claim is well-established:7
The weight of the evidence is a matter exclusively for the finder
of fact, who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. A new trial is
not warranted because of “a mere conflict in the testimony” and
must have a stronger foundation than a reassessment of the
credibility of witnesses. Rather, the role of the trial judge is to
determine that notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to give them
equal weight with all the facts is to deny justice. On appeal, our
purview is extremely limited and is confined to whether the trial
court abused its discretion in finding that the jury verdict did not
shock one’s conscience. Thus, appellate review of a weight claim
consists of a review of the trial court’s exercise of discretion, not
a review of the underlying question of whether the verdict is
against the weight of the evidence. An appellate court may not
reverse a verdict unless it is so contrary to the evidence as to
shock one’s sense of justice.
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(Footnote Continued)
defendant did not have constructive possession of a gun recovered from the
top of a kitchen cabinet for purposes of applying the now unconstitutional
mandatory minimum sentence found at 42 Pa.C.S. § 9712.1 (mandatory
sentence for defendant who possesses firearm while selling narcotics). See
Person, supra, 39 A.3d at 306-307. Indeed, the panel emphasized the
defendant did not reside in the home, did not have exclusive access to the
area where the gun was recovered, and was not seen entering the kitchen.
See id. at 307. However, Glenn fails to acknowledge that the Pennsylvania
Supreme Court vacated this Court’s opinion on appeal, and remanded for
further consideration in light of the Supreme Court’s decision in
Commonwealth v. Hanson, 82 A.3d 1023 (Pa. 2013). See
Commonwealth v. Person, 86 A.3d 864 (Pa. 2014). Therefore, the
Superior Court’s original decision is of little precedential value.
7
We note Glenn properly preserved his weight of the evidence claim by
raising the issue in a timely post-sentence motion before the trial court.
See Pa.R.Crim.P. 607(A)(3).
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Commonwealth v. Rosser, 135 A.3d 1077, 1090 (Pa. Super. 2016) (en
banc), appeal denied, 2017 WL 1194930 [711 MAL 2016] (Pa. March 31,
2017) (quotation omitted).
In support of his claim, Glenn emphasizes “there was no evidence to
connect him to the guns found by the police.” Glenn’s Brief at 10. He
maintains that while the trial court relied upon the fact he was apprehended
as “he attempted to get into a running car[,]” the Commonwealth presented
no evidence “that Glenn owned the car or had arrived at the location in the
car.” Id. at 11. Moreover, Glenn repeats his assertion that there was no
DNA or fingerprint evidence linking him to the recovered weapons. See id.
The trial court denied Glenn’s weight claim by emphasizing that the
police officers were “credible witnesses as their testimony was credible,
clear, convincing, truthful, and uncontradicted.” Trial Court Opinion,
10/17/2016, at 9. Although Glenn’s conviction rests solely upon
circumstantial evidence, we detect no abuse of discretion on the part of the
trial court in concluding the weight of the evidence, considering all the
circumstances surrounding Glenn’s arrest, supports the guilty verdicts.
Indeed, we agree with the trial court’s determination that the verdict does
not “shock one’s sense of justice and make the award of a new trial
imperative.” Id., quoting Commonwealth v. Rosetti, 863 A.2d 1185,
1192 (Pa. Super. 2004) (citation omitted), appeal denied, 878 A.2d 864 (Pa.
2005). Accordingly, Glenn is entitled to no relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2017
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