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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ALANAH F.F. PETERS, : No. 2176 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, June 2, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0001270-2012
BEFORE: BOWES, J., DUBOW, J. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 30, 2018
Alanah F.F. Peters appeals from the judgment of sentence entered in
the Court of Common Pleas of Philadelphia County after a jury convicted her
of attempted murder, aggravated assault, robbery, conspiracy to commit
murder, possession of an instrument of crime, recklessly endangering
another person, firearms not to be carried without a license, and carrying
firearms on public streets or public property in Philadelphia.1 The trial court
imposed an aggregate sentence of 13 to 30 years of imprisonment. We
affirm.
The trial court set forth the following factual history gleaned from
appellant’s jury trial:
1 18 Pa.C.S.A. §§ 901(a), 2702(a), 3701(a)(1)(ii), 903, 907(a), 2705,
6106(a)(1), and 6108, respectively.
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[The] events began on August 17, 2011, when
uniformed Philadelphia Police Lieutenant Steffan
Gallagher responded to a radio call for a person
screaming at an apartment building located at
8836 Cottage Street in Northeast Philadelphia,
Pennsylvania. Upon arriving at this second floor of
the reported address, Lieutenant Gallagher saw the
victim, Jesse Hicks, suffering from a gunshot wound
to his face and other critical injuries alone inside the
bedroom of this apartment. Mr. Hicks was bleeding
profusely from his face and chest and wearing only a
sleeveless T-shirt and underwear. Mr. Hicks
immediately informed Lieutenant Gallagher that he
had been brutally beaten, shot in the mouth and
robbed by two men of his cash and clothes inside his
bedroom after his girlfriend, [appellant], had
permitted the perpetrators to enter his single
bedroom apartment. Lieutenant Gallagher testified
that he had observed the bedroom where he had
found the victim to be in complete disarray. He
observed broken furniture including an open safe and
blood covered papers strewn across the floor.
Lieutenant Gallagher estimated that the distance
from [the] victim’s bedroom was 15 feet to the
single apartment entrance located on the second
floor of the building.
Lieutenant Gallagher further stated that he had
observed [appellant] standing near the downstairs
apartment or outside the building upon his arrival.
At the scene, Lieutenant Gallagher eventually
convinced Mr. Hicks to seek emergency treatment
for his gunshot wounds, other injuries and heart
disease related difficulties and transported him to
Aria Torresdale Hospital. During his initial
investigation at the scene, Mr. Hicks informed the
responding police officers that two males knocked on
the door of the property, and were let in by
[appellant]. Mr. Hicks further communicated his
belief to law enforcement during the transportation
to the hospital that he was set up to be robbed and
shot by [appellant, his girlfriend].
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Mr. Hicks explained that he and [appellant]
had been arguing over money and her amorous
activities with other men. He said that he had been
upset because [appellant] continued to whisper or
text on her cellphone through the night with other
men as they argued. He said that shortly after
[appellant’s] suspicious telephone conversations,
there was a knock at the apartment door. He told
the officer that [appellant] let the two males into the
apartment, who threatened, beat, shot and robbed
him while [appellant] stood near and directed the
men to check his pockets as they rifled through his
belongings, shot him in the mouth and stripped him
of his pants. [Appellant’s] three year old son was
present in the apartment during this violent episode.
Jesse Hicks’s trial testimony corroborated and
supplemented Lieutenant Gallagher’s accounts to the
jury of that fateful evening. Mr. Hicks credibly
recalled that prior to the attack around 1:00 a.m. on
August 17, 2011, he and [appellant] had been
involved in a volatile paramour relationship. They
had been continually arguing because [Jesse] Hicks
threatened to stop his financial support of
[appellant] and members of her family. He had
become resentful of [appellant’s] increasing contact
and texting of other men throughout the night.
Mr. Hicks recalled that he told [appellant] that he
was tired of arguing and that he was going to bed.
[Appellant] continued to communicate on the cellular
telephone and yelled out to him that he was going
“to get it.”
[Jesse] Hicks testified that a few minutes after
he went to his bedroom, [appellant] yelled up to him
that his friend Henry Houston, also known as Tupac,
was at the apartment door. Mr. Hicks testified that
he had been confused because Henry Houston had
also been at the house that day, but he left earlier in
the night well before any disputes arose with
[appellant]. Because [appellant] insisted that he had
a friend at the door, [Jesse] Hicks went to the living
room to see who was knocking.
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When Mr. Hicks entered the living room, he
immediately noticed that the front door to his
apartment was widely opened. He testified that this
was odd to him because he had constantly kept a
deadlock bolt on the front door. The only method for
anyone to gain access, was for someone on the
inside of the apartment to unlock the deadbolt and
open the door. He deduced that [appellant] was the
only person who could have successfully unlocked
the deadbolt and opened the door. [Appellant] at a
later point in the trial corroborated this data when
she admitted both in her statement to the Detective
and during her testimony that she had permitted the
perpetrators to enter [Mr.] Hicks’s apartment by
unlocking and opening the front door.
At the same time he noticed the open door,
[Jesse] Hicks turned to see two men standing with
[appellant] in his kitchen. When he saw one [of] the
two males carrying a gun in his hand, he ran to his
bedroom with this gunman in fresh pursuit. As
Mr. Hicks attempted to shut his bedroom door, it
split open and the second male without an
observable gun forcefully entered his room followed
by the gunman. Mr. Hicks stated this unarmed man
began to ransack his furniture room and closet, and
repeatedly demanded for him to tell him where he
had his money stashed.
Mr. Hicks testified that the gunman also
assisted the other male in ransacking his apartment
and harming him. He stated that after apparently
not locating enough money, the gunman shot him
directly into his mouth in his bedroom and hit him
repeatedly. Mr. Hicks further testified that as this
was occurring[, appellant] directed the assailants to
check [Jesse’s] pockets. Mr. Hicks noticed that
throughout this attack his girlfriend simply stood by
acting as if a shooting did not occur. He later
overheard [appellant] try to convince the frightened
neighbors in the downstairs apartment to tell
responding police that she had not been present for
the robbery and shooting.
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Mr. Hicks distinctly recalled that [appellant]
was the only person he had informed that he had
been keeping large amounts of cash that night.
Mr. Hicks testified that shortly before the robbery, he
and [appellant] had spoken about her father’s
financial misfortune and that Mr. Hicks had roughly
$700.00 in cash in his apartment intended for
[appellant’s] father.
[Mr. Hicks] vividly recollected that while he
was being brutally beaten by both males, [appellant]
told them that the money was in his pocket. The
men not only took the money from his pockets, they
removed and [sic] the pair of pants Mr. Hicks had
been wearing to humiliate him. Mr. Hicks also stated
that when he had later questioned [appellant] as to
why she helped the men rob him, [appellant]
claimed she had let the two males into the
apartment because they threatened to hurt her son,
and had hurt her neck. She admitted to telling at
least one of the assailants that [Jesse] Hicks was
home in the apartment with her and had a large
amount of cash.
During the earlier morning hours following the
shooting and robbery of [Jesse] Hicks, Police
Detective John Cawley of the Special Investigations
Unit of the Northeast Detective Division was initially
assigned to conduct the investigation. The next day,
upon starting a new shift, Northeast Division
Detectives Christopher [Casey] and Andrew Danks
were assigned to assist this investigation. The
Detectives observed the bloodied scene and
recover[ed] a spent or fired cartridge shell from the
bedroom where Mr. Hicks and [appellant] had
reported he had been shot. Because Mr. Hicks had
positively identified his girlfriend[, appellant], to the
Detectives as a suspect in the shooting after he was
transported to the hospital, Detective [Casey]
attempted multiple times, without success to reach
[appellant].
On August 19, 2011, [appellant] was taken
into custody for questioning and gave a voluntary
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statement to Detective [Casey], after full and fair
Miranda[2] warnings had been provided and
acknowledged as understood. At trial, the statement
of [appellant] given by her on August 19, 2011 was
introduced via testimony from Detective [Casey].
Detective [Casey] stated that [appellant] admitted
that she had a previous or ongoing relationship with
one of the persons who participated in the robbery
and shooting of [Jesse] Hicks. She claimed she
knew this person as “Kwamaine” and that this
person was one of [the] persons [Jesse] Hicks had
been upset with her for communicating with him.
[Appellant] told the Detective that she had told
Kwamaine that Mr. Hicks had money because she
had told him that [Jesse] had been buying things for
her. She admitted that she knew Kwamaine and the
other male intended to rob Mr. Hicks and harbored ill
and jealous feelings toward him. She further stated
to the Detectives that Kwamaine had texted her
multiple times that night of the robbery before he
had knocked at [Jesse’s] apartment door claiming to
be Henry Houston.
[Appellant] stated that she had not observed
Henry Houston, or Tupac, at the door. She
reiterated to Detectives that she knew what was
going to happen when she permitted the entry of
Kwamaine and the other man into Mr. Hicks’[s]
apartment. When they entered she claimed to know
that Kwamaine and the other male were there to rob
Mr. Hicks. [Appellant] told Detectives that she heard
two gunshots and the beating by both males of
Mr. Hicks in his bedroom as she remained in the
apartment. She also stated that she believed
Kwamaine wanted to rob Mr. Hicks because he was
jealous of Mr. Hicks’[s] relationship with her, and
because Mr. Hicks was flashy with his money.
At trial, [appellant] incredibly testified
particularly when confronted with her material
misstatements. Her version of events was
contradicted by the recorded prison telephone calls
2 Miranda v. Arizona, 382 U.S. 925 (1965).
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from prison when she desperately and repeatedly
attempted to enlist at least one other person to do
something to the victim to prevent his appearance
against her in court. One of the recorded
conversations played before the jury from call date
of August 27, 2011 highlighted [appellant’s] state of
mind in her comments in response to the person
identified as “Male Speaker:”
[Appellant]: If Jesse doesn’t show up
they’ll lower my bail anyways, right?
Male speaker: Yeah they’re supposed to,
they’re supposed to freaking . . . if Jesse
don’t show up they ain’t got no case.
[Appellant]: That’s what I’m saying. I’m
fucking sitting her[e] praying to God, like
you need to make something happen to
him.
Male Speaker: I was gonna do
something last night. I was supposed to
go do something last night.
Trial court opinion, 6/13/17 at 5-11 (citations to notes of testimony and trial
exhibit omitted; ellipses in original).
The record reflects that following her conviction, the trial court
imposed a sentence of 20 to 50 years of imprisonment. The trial court
summarized the remaining procedural history as follows:
On June 24, 2015, this Court entered an Order
Granting this Court’s sua sponte Motion for
Reconsideration of Sentence, and amended the
previously [sic] Order and Judgement of Sentence.
This Court significantly reduced the previously
imposed aggregate sentence to state supervised
confinement for a minimum period of 13 years to a
maximum period of 30 years by directing the
sentence imposed for the First Degree Felony
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Robbery charge to run concurrently rather than
consecutively to sentence imposed for the Attempted
Murder offense. All other aspects of the previously
imposed sentence remained the same.
On July 20, 2015, [appellant], by and through
her original trial counsel, Reginald Johnson, Esquire
filed a timely Notice of Appeal . . . . Gary S. Silver,
Esquire entered his appearance as privately retained
appellate counsel on behalf of [appellant]. On
November 11, 2015, this Court ordered [appellant],
by and through her counsel, Gary S. Silver, Esquire
to file a concise Statement of Errors Complained of
on Appeal pursuant to Pa.R.A.P. 1925(b).
[Appellant], by and through counsel, failed to file a
Rule 1925(b) statement. On January 20, 2016, this
Court filed an amended Order directing [appellant] to
file a Statement of Matters Complained of on Appeal
within 21 days. [Appellant], by and through her
counsel, again, failed to file any statement of errors.
On February 12, 2016, this Court filed a second
amended Order directing Gary Silver, Esquire as
appellate counsel for [appellant] to file a statement
of errors no later than April 1, 2016.
This Court granted a motion for extension to
file the Rule 1925(b) statement on April 13, 2016,
and directed counsel to file within 30 days. Defense
counsel again failed to comply, and this Court filed a
Rule 1925(a) opinion noting the numerous failures to
file a statement of errors and the lack of merit for
any issues [appellant] may raise.
On August 22, 2016, the Superior Court of
Pennsylvania dismissed [appellant’s] appeal due to
the failure of appellate counsel to file a brief. On
September 16, 2016, the Superior Court of
Pennsylvania reinstated [appellant’s] direct appeal.
On October 16, 2016, the counsel for [appellant]
filed a 1925(b) statement, and on April 17, 2017, the
Superior Court of Pennsylvania entered an Order
remanding the matter due to per se
ineffective[ness] of appellate counsel’s dilatory
conduct and directing this Court to file an opinion
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addressing the seven issues raised by [appellant]
within the belatedly filed Statement of Matters
Complained of on Appeal.
Trial court opinion, 6/13/17 at 3-4. On June 13, 2017, the trial court filed its
Rule 1925(a) opinion.
Appellant raises the following issues for our review:
I. WAS THE EVIDENCE INSUFFICIENT AS A
MATTER OF LAW TO SUPPORT [APPELLANT’S]
CONVICTION FOR ATTEMPTED MURDER
BECAUSE THE COMMONWEALTH FAILED TO
PROVE, UNDER AN ACCOMPLICE LIABILITY
THEORY, THAT [APPELLANT] HARBORED THE
SHARED AND SPECIFIC INTENT TO KILL JESSE
HICKS DURING THE COURSE OF THE
ROBBERY?
II. WAS THE EVIDENCE WAS [SIC] INSUFFICIENT
AS A MATTER OF LAW TO SUPPORT
[APPELLANT’S] CONVICTIONS FOR THE
POSSESSORY OFFENSES OF CARRYING A
FIREARM WITHOUT A LICENSE, CARRYING A
FIREARM IN PUBLIC AND POSSESSION OF AN
INSTRUMENT OF CRIME BECAUSE THE
COMMONWEALTH FAILED TO PROVE, UNDER
AN ACCOMPLICE LIABILITY THEORY, THAT
[APPELLANT] HARBORED THE SHARED INTENT
TO COMMIT AN ARMED ROBBERY, AS
OPPOSED TO AN UNARMED ROBBERY?
III. WAS THE EVIDENCE WAS [SIC] INSUFFICIENT
AS A MATTER OF LAW TO SUPPORT
[APPELLANT’S] CONVICTION FOR CARRYING A
FIREARM WITHOUT A LICENSE BECAUSE THE
COMMONWEALTH FAILED TO PROVE THAT THE
MAN WHO ACTUALLY POSSESSED THE
HANDGUN, AS OPPOSED TO [APPELLANT]
WHO NEVER ACTUALLY OR CONSTRUCTIVELY
POSSESSED THE HANDGUN, DID NOT HAVE A
LICENSE TO CARRY A FIREARM ON THE DATE
OF THE INCIDENT?
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IV. DID TRIAL COURT ERRED [SIC] IN
PERMITTING DETECTIVE CHRISTOPHER
CASEY, OVER THE DEFENSE OBJECTION, TO
COMMENT ON [APPELLANT’S] CREDIBILITY,
GUILT AND INVOLVEMENT IN THE CRIMES
CHARGED?
V. DID THE TRIAL COURT ERRED [SIC] WHEN
INSTRUCTING THE JURY THAT [APPELLANT],
AS AN ACCOMPLICE, COULD NOT BE
RESPONSIBLE FOR A CRIME IF SHE ATTEMPTS
TO STOP THE CRIMES FROM HAPPENING,
WHERE THE TRIAL COURT FAILED TO ALSO
INSTRUCT THE JURY ON THE CLOSELY
RELATED LEGAL PRINCIPLE THAT SHE CANNOT
BE HELD CRIMINALLY LIABLE FOR THE ACTS
OF ANOTHER IF SHE WAS SIMPLY PRESENT AT
THE SCENE OF THE CRIME AND FAILED TO
STOP THE CRIMES FROM OCCURRING; TRIAL
COUNSEL SHOULD HAVE OBJECTED?
VI. DID THE TRIAL COURT ERRED [SIC] IN
INSTRUCTING THE JURY ON THE CHARGE OF
ATTEMPTED MURDER UNDER BOTH A
CONSPIRACY LIABILITY THEORY AND AN
ACCOMPLICE LIABILITY THEORY WHERE
CONSPIRACY TO COMMIT ATTEMPTED
MURDER IS NOT A LEGALLY COGNIZABLE
CRIME; TRIAL COUNSEL SHOULD HAVE
OBJECTED?
VII. DID THE TRIAL COURT ERRED [SIC] IN
APPLYING OR CONSIDERING THE DEADLY
WEAPON ENHANCEMENT WHEN SENTENCING
[APPELLANT] ON THE CHARGES OF
ATTEMPTED MURDER AND CONSPIRACY
BECAUSE THE HANDGUN WAS NEVER
POSSESSED BY [APPELLANT] OR WITHIN HER
IMMEDIATE CONTROL DURING THE
COMMISSION OF THE CRIMES?
Appellant’s brief at 4 (capitalization in original).
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Appellant frames her first three issues as challenges to the sufficiency
of the evidence. In her first challenge, however, appellant contends that
“the evidence was insufficient to support a finding beyond a reasonable
doubt that she shared the specific intent to kill [the victim] to support her
conviction for attempted murder despite everything the victim and
others said.” (Appellant’s brief at 19 (emphasis added).) Appellant then
sets forth her interpretation of certain portions of the trial evidence in an
effort to convince this court to reach a different conclusion than the jury
reached. In so doing, appellant challenges the weight of the evidence, not
its sufficiency. See, e.g., Commonwealth v. Gibbs, 981 A.2d 274,
281-282 (Pa.Super. 2008) (an argument that the fact-finder should have
credited one witness’ testimony over that of another witness goes to the
weight of the evidence, not the sufficiency of the evidence);
Commonwealth v. Wilson, 825 A.2d 710, 713-714 (Pa.Super. 2003) (a
review of the sufficiency of the evidence does not include a credibility
assessment; such a claim goes to the weight of the evidence);
Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super. 1997) (the
fact-finder makes credibility determinations, and challenges to those
determinations go to the weight of the evidence, not the sufficiency of the
evidence).
In order to raise a weight claim on appeal, Pennsylvania Rule of
Criminal Procedure 607 requires appellant to raise the claim with the trial
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judge in a motion for a new trial “(1) orally, on the record, at any time
before sentencing; (2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.” Pa.R.Crim.P. 607(A). “The purpose of this
rule is to make it clear that a challenge to the weight of the evidence must
be raised with the trial judge or it will be waived.” Pa.R.Crim.P. 607,
comment.
Our review of the certified record reveals that appellant failed to raise
this weight claim with the trial court in a motion for a new trial orally, on the
record, prior to sentencing; by written motion prior to sentencing; or in a
post-sentence motion. Accordingly, appellant waives this weight challenge
on appeal.
In her second issue, appellant presents the following two-sentence
argument:
In the present case, the evidence was
insufficient to support the conclusions that
[appellant] even knew her assailants would be
armed before entering the house that night or
otherwise assisted them in obtaining possession of
the firearm used that night.
For the foregoing reasons, [appellant’s]
convictions for all of the possessory offenses relating
to the handgun in this case should be reversed.
Appellant’s brief at 24-25.
Appellant waives this issue on appeal for failure to develop a legal
argument. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.
2009) (reiterating that “where an appellate brief fails to provide any
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discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived”); citing to Commonwealth v. Walter, 966 A.2d 560, 566 (Pa.
2009); Commonwealth v. Steele, 961 A.2d 786, 799 n.12 (Pa. 2008);
Commonwealth v. Puksar, 951 A.2d 267, 293-294 (Pa. 2008). See also
Pa.R.A.P. 2119(a) (requiring that each point treated in an argument must be
“followed by such discussion and citation of authorities as are deemed
pertinent”). Moreover, our supreme court has long held that it is not the
court’s obligation to formulate an appellant’s arguments. See
Commonwealth v. Wright, 961 A.2d 119, 135 (Pa. 2008);
Commonwealth v. Thomas, 717 A.2d 468, 482-483 (Pa. 1998).
In her final sufficiency challenge, appellant contends that the evidence
was insufficient to convict her of carrying a firearm without a license
because, “[d]espite the unlikelihood that the [shooter] had a license,” the
Commonwealth failed to prove that the unidentified shooter did not have a
license to carry a firearm. (Appellant’s brief at 26.)
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
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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 proof 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 the 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. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)
(citation omitted).
At the outset, we note that the record supports the conclusion that the
jury convicted appellant of possessing an instrument of crime (“PIC”) under
a constructive possession theory of criminal liability. (See notes of
testimony, jury charge, 3/2/15 at 87.) A person commits PIC “if he
possesses any instrument of crime with intent to employ it criminally.”
18 Pa.C.S.A. § 907(a).
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.
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Commonwealth v. Walker, 874 A.2d 667, 667-668 (Pa.Super. 2005)
(citations omitted).
Here, the record reflects that appellant let the unidentified shooter and
another unidentified man into the victim’s apartment. The victim testified
that when he saw this unidentified assailant holding a black gun, which the
victim believed to be a Glock pistol, the victim ran upstairs. The other man
followed, forced his way into the victim’s bedroom, and began ransacking
the victim’s closet and demanding to know where the victim had placed his
money. (Notes of testimony, 3/10/15 at 24-27.) When that man found no
money, he instructed the unidentified shooter to shoot the victim. The
unidentified shooter complied and shot the victim in the face, knocking his
teeth out. As the victim lay on the floor, the two men stomped on the
victim’s face while the victim’s blood shot up to the ceiling and he choked on
his own teeth. (Id. at 27-30, 36.) Appellant then told her cohorts that the
victim’s money was in his pants pocket. The men removed the victim’s
pants, leaving him naked from the waist down, and fled with his money.
(Id. at 30-31.)
Under the totality of the circumstance, this evidence established that
appellant had the power to control the firearm and the intent to exercise
that control and, therefore, constructively possessed the firearm.
Consequently, the evidence was sufficient to sustain appellant’s PIC
conviction because, viewed in the light most favorable to the Commonwealth
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as verdict winner, it enabled the jury to find that appellant constructively
possessed an instrument of crime -- a firearm -- with intent to employ it
criminally beyond a reasonable doubt.
With respect to her conviction for carrying an unlicensed firearm in
violation of Section 6106(a), because the totality of the circumstances
established that appellant constructively possessed the firearm and because
the parties stipulated at trial that appellant did not have a license to possess
a firearm (notes of testimony, 3/11/15 at 63-64.), this evidence, viewed in
the light most favorable to the Commonwealth as verdict winner, was
sufficient to enable the jury to conclude that appellant carried an unlicensed
firearm.3 Therefore, appellant’s sufficiency challenge fails.
3 We note that in her brief, appellant baldly asserts that the jury convicted
her of carrying an unlicensed firearm based on an accomplice liability theory,
which would require proof of licensure of her unidentified cohort.
(Appellant’s brief at 26). In its opinion, the trial court disposed of
appellant’s sufficiency challenge to this conviction because the “facts amply
make out that she constructively possessed the weapon because she
exercised conscious dominion and the power to control the firearm and the
intent to exercise that control.” (Trial court opinion, 6/13/17 at 16.)
Notwithstanding this conclusion, the trial court addressed appellant’s
contention that this conviction was based on an accomplice liability theory
and “[d]espite the unlikelihood that the other man had a license, the
Commonwealth needed to prove it to make out this particular crime.”
(Appellant’s brief at 26.) Although we disagree with the trial court’s analysis
with respect to appellant’s accomplice liability argument on this issue, the
fact remains that because the totality of the circumstances established
constructive possession and the evidence was sufficient to sustain her PIC
conviction, the evidence was also sufficient to convict appellant of carrying
an unlicensed firearm because she constructively possessed that firearm and
the parties stipulated that she was not licensed to carry a firearm. A review
of the trial court’s charge to the jury clarifies the point. (See notes of
testimony, 3/2/15 at 88-89.)
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Appellant next complains that the trial court erred when it permitted
Detective Christopher Casey, “over defense objection, to comment on
[appellant’s] credibility, guilt and involvement in the crimes charged.”
(Appellant’s brief at 26.) The record belies appellant’s claim. In her brief,
appellant sets forth two questions that the prosecution asked
Detective Casey on redirect examination. (Appellant’s brief at 27.)
Appellant, however, fails to set forth the specific objection defense counsel
made, as well as the fact that Detective Casey was merely reviewing, at the
prosecution’s request, the statement appellant made to law enforcement.
The record clearly indicates that trial counsel did not object to the detective’s
making a “comment on [appellant’s] credibility, guilt and involvement in the
crimes charged,” and that the detective made no such comment, as follows:
Q. Going to C-37, her statement, I’d like to walk
you through all the different things she said
that led you to document in your 75-52,
[appellant] admits her role in the robbery
shooting, because defense counsel asked you
about that.
Let’s start with page 1. Read it quietly to
yourself. You’re the detective, the one doing
the interview. Let us know what, if anything
she said that indicated she was involved in
this.
[DEFENSE COUNSEL]: Your Honor, I’m going to
object. It’s asked and answered.
THE COURT: Overruled. Go ahead.
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Notes of testimony, 3/1/15 at 49. The detective then testified as to the
contents of the statement that appellant had made to law enforcement,
without further objection from defense counsel. Therefore, because the
record belies appellant’s claim, it necessarily fails.
Appellant’s next two complaints concern the jury instructions.
Although appellant concedes that trial counsel failed to object to the jury
instructions, she nevertheless contends that “the trial court erred when
instructing the jury that [appellant], as an accomplice, could not be
responsible for a crime if she attempts to stop the crimes from happening,
where the trial court failed to also instruct the jury on the closely related
legal principle that she cannot be held criminally liable for the acts of
another if she was simply present at the scene of the crime and failed to
stop the crimes from occurring” and “the trial court erred in instructing the
jury on the charge of attempted murder under both a conspiracy theory and
accomplice liability theory.” (Appellant’s brief at 28, 31.)
Where, as here, a defendant fails to request an instruction at trial and
makes no objection to the trial court’s jury charge, defendant waives the
claim on appeal. See Commonwealth v. Walter, 119 A.3d 255, (Pa.
2015); see also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal”); Pa.R.A.P. 302(b)
(With respect to the jury charge, “[a] general exception to the charge to the
jury will not preserve an issue for appeal[; rather, a] [s]pecific objection
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shall be taken to the language or omission complained of”);
Pa.R.A.P. 647(C) (“[n]o portions of the charge nor omissions from the
charge may be assigned as error, unless specific objections are made
thereto before the jury retires to deliberate”). Therefore, appellant waives
her fifth and sixth issues on appeal.4
Appellant finally complains that the “trial court erred in applying or
considering the deadly weapon enhancement.” (Appellant’s brief at 32.) We
need not consider whether appellant satisfies the four-part test required to
invoke our jurisdiction to entertain a challenge to a discretionary aspect of
4 We note that appellant invites us to determine whether trial counsel was
ineffective for failing to object to the jury instructions pursuant to
Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013) (recognizing two
exceptions to the general rule of deferral of ineffectiveness claims to
collateral review that both fall within the trial court’s discretion, which are
(1) extraordinary circumstances where a discrete claim or claims of trial
counsel’s ineffectiveness is apparent on the record and meritorious to the
extent that consideration on direct appeal best serves the interests of
justice; and (2) where a defendant seeks to litigate multiple ineffectiveness
claims, including non-record based claims, on post-verdict motions and
direct appeal where defendant shows good cause and where unitary review
is preceded by defendant’s knowing and express waiver of entitlement to
seek Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546, review
from conviction and sentence, including an express recognition that waiver
subjects further collateral review to the time and serial PCRA restrictions).
Because appellant’s request falls far short of falling under either of the
exceptions set forth in Holmes, we decline appellant’s invitation to entertain
her ineffective assistance of counsel claims on direct review.
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appellant’s sentence5 because the record reflects that the trial court did not
apply the deadly weapon enhancement, as follows:
[THE COMMONWEALTH]: And I would just ask the
Court to put on the record – I know Your Honor
obviously read my memorandum – but that you
consider the offense gravity score and prior record
score for each offense, and that the deadly weapon
used if – a ruling whether or not you applied that for
the attempted murder.
THE COURT: I ruled 8 to 20 applied the guidelines.
Both 8 to 20 is within reach of your deadly weapon
enhancements. It’s obviously within that. But also
with the -- without the deadly weapon enhancement,
it’s --
[DEFENSE COUNSEL]: It’s still within those
guidelines.
THE COURT: It’s still within the guidelines.
[THE COMMONWEALTH]: It is, Your Honor. I just
want to make a clean record so there’s, you know,
there’s no --
THE COURT: All right. I didn’t have to use the
deadly weapon enhancement. . . .
Notes of testimony, 6/2/15 at 32-33. We need not determine, as the trial
court did, whether mere consideration of the deadly weapon enhancement
5 An appellant challenging the discretionary aspects of sentencing is not
entitled to appellate review as of right, but must invoke this court’s
jurisdiction by satisfying a four-part test that demonstrates appellant filed a
timely notice of appeal, properly preserved the issue with the trial court,
included a Pa.R.A.P. 2119(f) statement in appellant’s brief, and raised a
substantial question. Commonwealth v. Moury, 992 A.2d 160, 170
(Pa.Super. 2010).
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was error because the sentencing transcript clearly demonstrates that the
trial court did not apply the enhancement.
Judgment of sentence affirmed.
Dubow, J. joins this Memorandum.
Bowes, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2018
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