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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALPHONSO DASHIELL
Appellant No. 495 EDA 2016
Appeal from the Judgment of Sentence January 8, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008239-2015
BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED MAY 05, 2017
Alphonso Dashiell appeals from the January 8, 2016 judgment of
sentence entered in the Philadelphia County Court of Common Pleas
following his bench trial convictions for carrying a firearm without a license,
carrying a firearm on the public streets or property of Philadelphia,
possessing an instrument of crime ("PIC"), and attempted theft of a motor
vehicle.' We affirm.
The well -reasoned opinion of the Honorable Sierra Thomas Street set
forth the detailed factual and procedural history underlying this appeal,
which we adopt and incorporate herein. See Trial Ct. Op., 6/21/16, at 1-8
("1925(a) Op.").
' 18 Pa.C.S. §§ 6106(a)(1), 6108, 907(a), and 901(a), respectively.
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Dashiell raises two issues on appeal:
I. The evidence was insufficient as a matter of law to
sustain the verdicts of guilt as to the crimes of
Firearms Not to be Carried Without License (F3),
Carrying a Firearm on Public Streets in Philadelphia
(M1), Possession of an Instrument of Crime with
Intent (M1), and Criminal Attempt -Theft from a
Motor Vehicle (M1).
II. The verdicts of guilt as to the four (4)
aforementioned crimes are against the weight of the
evidence.
Dashiell's Br. at 4 (footnotes omitted).
Dashiell first argues that the "Commonwealth's evidence adduced at
trial resulting in a judgment was not legally sufficient to establish [Dashiell]'s
guilt of the [aforementioned] crimes." Id. at 8. This Court's standard for
reviewing sufficiency of the evidence claims is as follows:
We must determine whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when
viewed in a light most favorable to the Commonwealth as
verdict winner, support the conviction beyond a reasonable
doubt. Where there is sufficient evidence to enable the
trier of fact to find every element of the crime has been
established beyond a reasonable doubt, the sufficiency of
the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact -finder is free to
believe all, part, or none of the evidence presented. It is
not within the province of this Court to re -weigh the
evidence and substitute our judgment for that of the fact -
finder. The Commonwealth's burden may be met by
wholly circumstantial evidence and any doubt about the
defendant's guilt is to be resolved by the fact[ -]finder
unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
combined circumstances.
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Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)
(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).
With respect to the firearms convictions, Dashiell argues that the
Commonwealth "failed to prove beyond a reasonable doubt that . .
[Dashiell] had actual or constructive possession of the firearm." Dashiell's
Br. at 8. According to Dashiell, "Officer Negler never actually saw Dashiell
carrying or disposing of a firearm" and "the Commonwealth was unable to
offer any additional witnesses to corroborate the officer's testimony that
[Dashiell] possessed and/or tossed the firearm that was subsequently
located in a grassy area on another street (from where the arrest
occurred)." Id. We disagree.
In its opinion, the trial court set forth the elements of the firearms
offenses, addressed Dashiell's claims, and properly determined that the
evidence was sufficient to support the firearms convictions. See 1925(a)
Op. at 10-14. The evidence presented by the Commonwealth showed that
police recovered the firearm on the public streets of Philadelphia, "150 feet
away from where Dashiell was first observed and five . . . minutes after his
arrest," the firearm was not registered to Dashiell, and Dashiell was not
licensed to carry a firearm. Id. at 11-14. Further, when questioned,
Dashiell admitted to police that he possessed the firearm on the night in
question. Id. at 12. After reviewing the briefs, the record, and the relevant
law, we affirm based on the trial court's reasoning. Id. at 10-14.
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With respect to the PIC conviction, Dashiell argues that "the
Commonwealth failed to prove beyond a reasonable doubt that . . . Dashiell
had actual or constructive possession of instruments of crime or that [he]
possessed the instruments for the specific purpose (intent) of employing
them criminally." Dashiell's Br. at 8. According to Dashiell, Officer Negler
only saw, from a long distance with binoculars, Dashiell attempt to break
into the motor vehicle with the single metal rod and then, minutes later,
stopped Dashiell without observing him discard anything. Id. at 9. Dashiell
further asserts that even if the officer had established that Dashiell was in
actual or constructive possession of an instrument of crime, the
Commonwealth failed to prove that Dashiell "possessed the instruments for
the specific purpose of employing them criminally." Id. According to
Dashiell, "[a]t no point did the Commonwealth produce or enter into
evidence the instruments of crime that it claimed . . . Dashiell possessed at
the time of the incident" and "there are inconsistencies within the various
reports and testimony as to where the instruments were actually located."
Id. This claim is without merit.
In its opinion, the trial court set forth the elements of PIC, addressed
Dashiell's claims, and properly determined that the evidence was sufficient
to support the PIC conviction. See 1925(a) Op. at 14-16. The evidence
showed that Dashiell possessed a slim metal rod that he applied to the door
of a vehicle in an attempt to break into said vehicle. Id. at 15. Officer
Negler watched Dashiell use the metal rod and later found scratches "all
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over the door of the vehicle." Id. Officer Negler later recovered two of
these rods, along with a pair of gloves, a screwdriver, and a flashlight "in the
middle of the same block where he first observed [Dashiell]." Id. After
reviewing the briefs, the record, and the relevant law, we affirm based on
the trial court's reasoning. Id. at 14-16.
With respect to the attempted theft of a motor vehicle conviction,
Dashiell argues that "the Commonwealth failed to prove beyond a
reasonable doubt that . . . Dashiell had the intent to commit the crime of
Theft from a Motor Vehicle or that he engaged in any act that constituted a
substantial step towards the commission of that crime." Dashiell's Br. at 10.
We disagree.
In its opinion, the trial court set forth the elements of attempted theft
of a motor vehicle, addressed Dashiell's claim, and properly determined that
the evidence was sufficient to support the attempt conviction. See 1925(a)
Op. at 16-18. The evidence showed that Officer Negler observed Dashiell
"utilizing a metal rod against a vehicle in an attempt to unlawfully enter" and
"scratches were subsequently discovered on the door of the vehicle." Id. at
16. Officer Negler also testified that Dashiell continued to use the rod until
Dashiell "acknowledged the Officer's presence." Id. at 17. Officer Negler
also recovered, among other things, two metal rods 150 feet from where
Officer Negler had first observed Dashiell using the metal rod. Id. After
reviewing the briefs, the record, and the relevant law, we affirm based on
the trial court's reasoning. Id. at 16-18.
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Next, Dashiell argues that his convictions were against the weight of
the evidence, "as the Commonwealth's proffered evidence is all derived
solely from the inconsistent and vague statements of Officer Negler."
Dashiell's Br. at 10. The Commonwealth argues that Dashiell has waived
these claims and, even if Dashiell had preserved them for review, they are
meritless. Cmwlth.'s Br. at 10-11.
We conclude that Dashiell waived his weight of the evidence claims,
because he failed to raise them before the trial court. Pennsylvania Rule of
Criminal Procedure 607(a) sets forth the requirements for preserving weight
of the evidence challenges:
(A) A claim that the verdict was against the weight of the
evidence shall be raised with the trial 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). Here, the record shows that Dashiell did not challenge
the weight of the evidence, by oral or written motion, before sentencing and
did not file a post -sentence motion. Because Dashiell did not present these
claims before the trial court, he has waived them.2 See Commonwealth v.
Thompson, 93 A.3d 478, 490 (Pa.Super. 2014).
Even if Dashiell had preserved his weight claims for review, we would
2
conclude that he is not entitled to relief based upon the trial court's analysis.
See 1925(a) Op. at 10-18.
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Judgment of sentence affirmed.
Judgment Entered.
J Seph D. Seletyn, Es .
Prothonotary
Date: 5/5/2017
-7
Circulated 04/13/2017 01:17 PM
Com. v. Dashiell, A.
Combined Opinion