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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANTWAIN SMITH,
Appellant No. 479 EDA 2016
Appeal from the Judgment of Sentence of December 17, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012108-2014
BEFORE: OLSON, STABILE AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 04, 2017
Appellant, Antwain Smith, appeals from the judgment of sentence
entered on December 17, 2015, as made final by the denial of Appellant's
post -sentence motion on January 5, 2016. We affirm.
The trial court has ably summarized the underlying facts of this case:
On October 8, 2014, at 8:30 p.m., Philadelphia Police
Officer Bryan Outterbridge set up [] narcotics surveillance
on the 4400 block of North 17th Street. Officer Outterbridge
conducted his surveillance from an unmarked police vehicle.
He considered the area well -lit given that there were several
light posts and flood lights on the block.
During his surveillance, Officer Outterbridge observed co-
defendant Alpha Johnson standing in a doorway when he
was approached by [Appellant]. [Appellant] and co-
defendant Johnson engaged in a brief conversation. During
their conversation, Officer Outterbridge observed co-
defendant Johnson reach into his waistband to retrieve a
silver firearm and hand the firearm to [Appellant], who
secured the firearm in his right waistband. [Appellant] then
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walked northbound on 17th Street until he entered a bar at
the corner of 17th and Wingohocking Streets. Officer
Outterbridge radioed his backup team of his observations
(black male, red shirt, blue jeans entered a bar with a
firearm) and instructed them to stop [Appellant]. Officer
Outterbridge testified that he recognized the item passed to
[Appellant] as a firearm based upon his observation of the
receiver and hand grips of the firearm as well [as] his
personal experience carrying and using firearms.
Philadelphia Police Officer Ernes Toland was one of the
backup officers to Officer Outterbridge. Officer Toland
received information from Officer Outterbridge that a black
male with a red shirt and blue pants entered a bar located
at 17th and Wingohocking Streets with a firearm. Upon
entering the bar, Officer Toland observed [Appellant], who
was the only person in the bar wearing a red shirt and blue
pants. Officer Toland asked [Appellant] to stand up so that
he could be searched. Following a search of [Appellant],
Officer Toland's partner recovered a silver firearm from
[Appellant's] right waistband. The firearm was loaded with
one round in the chamber and 15 rounds in the magazine.
[Appellant] stipulated that he did not have a license to carry
a firearm, that the firearm was operable, and that
[Appellant] had a prior conviction that prohibited him from
carrying or possessing a firearm.
Trial Court Opinion, 6/8/16, at 1-2 (internal citations and some internal
capitalization omitted).
Following a jury trial, Appellant was convicted of possession of a
firearm by a prohibited person, firearms not to be carried without a license,
and carrying a firearm on a public street in Philadelphia.' On December 17,
' 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.
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2015, the trial court sentenced Appellant to serve an aggregate term of five
to ten years in prison for his convictions.
Appellant filed an untimely post -sentence motion on Tuesday,
December 29, 2015. Within this motion, Appellant requested that:
[the trial] court reconsider its original sentence because
[the sentence] was excessive given the nature and
circumstances of [Appellant], the facts of the underlying
case, and the disproportionate nature of [Appellant's]
sentence as compared to the much lighter sentence
imposed on the co-defendant, who was known to police and
was also in possession of the firearm based upon the verdict
of the jury.
Appellant's Post -Sentence Motion, 12/29/15, at 2 (some internal
capitalization omitted).
On January 5, 2016, the trial court entered an order declaring: 1) that
Appellant's "petition to allow his [post -sentence motion] to be filed nunc pro
tunc [wa]s granted" and 2) that Appellant's post -sentence motion was
denied. Trial Court Order, 1/5/16, at 1 (some internal capitalization
omitted). Appellant filed a timely notice of appeal on February 1, 2016.
Appellant raises two claims to this Court:
[1.] Is [Appellant] entitled to an arrest of judgment where
the evidence is insufficient to sustain the verdict?
[2.] Is [Appellant] entitled to a new trial where the greater
[] weight of the evidence does not support the verdict?
Appellant's Brief at 3.
Appellant first claims that the evidence was insufficient to support his
convictions. This claim fails.
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We review Appellant's sufficiency of the evidence claim under the
following standard:
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 [that of] 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 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. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en
banc) (internal quotations and citations omitted). Further, as our Supreme
Court has held, a claim that "the testimony presented to the [fact -finder]
was so unreliable and contradictory that the[] verdict could only have been
arrived at through speculation and conjecture . . . [is] a challenge to the
sufficiency [of the evidence]." Commonwealth v. Brown, 52 A.3d 1139,
1156 n.18 (Pa. 2012).
On appeal, Appellant seemingly acknowledges that, if accepted as
true, the testimony of Officers Outterbridge and Toland is sufficient to
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support his convictions. See Appellant's Brief at 7-10. However, Appellant
takes the rather remarkable position that "the police were simply lying" at
trial. Id. at 9. Specifically, Appellant claims, "the area in question was not
well lit . . . [,] there was no video surveillance . . . [, and] the
Commonwealth could not produce other types of evidence, such as
fingerprints, DNA[,] or trace evidence[] that would have corroborated the
testimony of the police." Id. at 8-9. According to Appellant, "the lack of
corroboration, the lack of seeming veracity[,] and the lack of evidence
against [Appellant] . . . lead only to one conclusion, to wit, that this incident
did not happen the way the police said it did and, perhaps, that the police
were simply fabricating the entire story." Id. at 9-10.
Appellant's claim on appeal is frivolous. To be sure, Officer
Outterbridge specifically testified that the area in question was well -lit from
the "[s]everal streetlights on the block" and the floodlights from the
building. N.T. Trial, 9/9/15, at 53-54. Further, as the trial court explained:
Officer Outterbridge watched as [Appellant] took possession
of a silver handgun from co-defendant Johnson. While the
object was being passed, Officer Outterbridge recognized
the handgrip and receiver and immediately identified this
object as a firearm. The officer had a clear, unobstructed,
and well -lit view of [Appellant] concealing the firearm at his
right waistband. Officer Outterbridge radioed to backup
officers an accurate description of [Appellant], what he was
wearing[,] and where he was located. [M]inutes later,
. . .
when police officers entered the bar, [Appellant] was the
only individual matching the description provided by Officer
Outterbridge. Furthermore, the firearm was found precisely
where Officer Outterbridge saw [Appellant] conceal it, i.e.,
at his right waistband.
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Trial Court Opinion, 6/8/16, at 3.
In no way can the testimony from Officer Outterbridge or Officer
Toland be considered "so unreliable and contradictory that the[] verdict
could only have been arrived at through speculation and conjecture."
Brown, 52 A.3d at 1156 n.18. Appellant's sufficiency of the evidence claim
thus fails.
For Appellant's final claim on appeal, Appellant contends that the
verdict was against the weight of the evidence. This claim is waived, as
Appellant failed to raise the claim before the trial court. See Pa.R.Crim.P.
607(A) (declaring that, to preserve a weight of the evidence challenge, the
appellant must raise the claim with the trial court before sentencing or in a
post -sentence motion).
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 4/4/2017
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