J-S56004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DEVIN PARKS
Appellant No. 3497 EDA 2015
Appeal from the Judgment of Sentence October 15, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012472-2013
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DEVIN PARKS
Appellant No. 3189 EDA 2016
Appeal from the Judgment of Sentence October 15, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s):
CP-51-CR-0012473-2013
CP-51-CR-0012474-2013
CP-51-CR-0012475-2013
CP-51-CR-0012476-2013
BEFORE: BOWES, STABILE, AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 27, 2017
* Retired Senior Judge specially assigned to the Superior Court.
J-S56004-17
Devin Parks appeals from the judgment of sentence of eleven months
and fifteen days to twenty-three months imprisonment followed by five
years probation. The trial court imposed the sentence after a jury convicted
Appellant of three counts of receiving stolen property, and one count each of
possession of an instrument of crime and false identification to a police
officer. We affirm.
Appellant was charged with the above offenses at five different
criminal actions, which proceeded to a consolidated jury trial. We rely upon
the trial court’s thorough recitation of the evidence presented by the
Commonwealth:
Philadelphia Police Detective James Brady, testified that on
June 28, 2013, at approximately 12:30 a.m., he along with other
officers, executed a search warrant for the premises [at a
location on] Pine Street in the City and County of Philadelphia.
(N.T., 7/15/15, pgs. 36, 37, 39) He described the premises as a
typical two story row home with three bedrooms, on the second
floor. (N.T., 7/15/15, pg. 40) On entering the premises he
encountered an adult female, later identified as Samira Taylor,
and . . . young children but no adult males. (N.T., 7/15/15, pg.
39) When he asked which room Ms. Taylor and Defendant
occupied, he was directed to the second floor front bedroom.
(N.T., 7/15/15, pg. 40) (N.T., 7/16/15, pg. 46)
Detective Brady testified that on searching the front
bedroom, he recovered a “black and tan Converse sneaker box,”
from below the floor boards of the closet, containing the 3
loaded hand guns, an empty box for a hand gun and numerous
live rounds of ammunition of various calibers. In addition to the
box, he also recovered various gun related items. (N.T.,
7/15/15, pgs. 41-43, 49, 51, 58) He also recovered a Marshall's
bag containing 100 to 150 clear, unused sandwich bags and a
Whitman's sampler box containing two silver digital scales and
various sized Apple brand heat sealable packets, “common for
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packaging narcotics.” (N.T., 7/15/15, pgs. 43, 44, 56, 57) In
addition to recovering the guns and drug paraphernalia, he also
recovered a jacket containing “three packets of what we believed
at the time to be narcotics,” which he believed to be an agent for
cutting illegal drugs. The contents of the packets later proved
not to be narcotic. (N.T., 7/15/15, pg. 44, 62)
He also testified that he recovered $424.00 in cash and
two pieces of mail from a dresser in the bedroom. The
recovered mail consisted of a letter from Bank of America and a
letter from Target Card Services both of which were addressed
to Defendant at that address. (N.T., 7/15/15, pgs. 46, 48)
Before leaving the premises, [but] after concluding the
search, Detective Brady advised Ms. Taylor that he needed to
speak to Defendant. Since Defendant did not come in to be
interviewed, although someone identifying himself as Defendant
may have called, Detective Brady secured a warrant for
Defendant's arrest and distributed a “wanted poster” which he
distributed to the local police district. (N.T., 7/15/15, pgs. 65,
66, 85)
As part of his investigation, Detective Brady contacted the
National Crime Institute Center and learned that all three of the
recovered guns had been reported stolen, as well as the gun
identified on the empty box. He then spoke with each of the
owners who confirmed that the guns had been stolen and that
they had no knowledge of Defendant, and hadn't given him
permission to possess the guns in question. (N.T., 7/15/15, pgs.
67, 68, 69-73, 86, 87)
Philadelphia Police Detective, Matthew Carey, testified that
on June 28, 2013, he assisted Detective Brady in executing of
the search warrant for the premises 5942 Pine Street. (N.T.,
7/15/15, pg. 90) Corroborating Detective Brady's testimony, he
testified that on entering the closet in the second floor front
bedroom, he immediately noticed “a floor plank was missing
from the bottom of the closet.” He was able to easily remove
additional pieces of the wood flooring to reveal the “Converse
box,” containing the guns, as well as the scales and additional
drug paraphernalia. (N.T., 7/15/15, pgs. 91-93)
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Philadelphia Police Officer, Eugene Roher, testified that on
July 6, 2013, while in uniform on routine patrol with his partner,
in a marked patrol car, he stopped a vehicle and immediately
identified Defendant as the passenger. (N.T., 7/15/15, pgs. 106-
107, 115) When he asked Defendant for identification,
Defendant produced a “Pennsylvania ID card with the name of
James Roderick Sherlock Jacobs, III . . .” which clearly did not fit
his description. When asked: “Are you sure this is you?”,
Defendant responded “yes.” (N.T., 7/15/15, pgs. 107, 110, 116)
....
After placing Defendant in the patrol car, Defendant
remained silent when Officer Roher, checking the warrant
database, brought Defendant's picture and arrest warrant up on
the computer screen. (N.T., 7/15/15, pgs. 109, 111) It wasn't
until Officer Roher had taken Defendant back to headquarters
that he revealed his true identity. (N.T., 7/15/15, pgs. 111, 113,
118, 119)
Trial Court Opinion, 9/21/16, at 4-6.
After he was sentenced, Appellant filed a pro se appeal at 3497 EDA
2015. That notice of appeal did not include four of the docket numbers that
were encompassed by the jury trial. Appellant, pursuant to a timely PCRA
petition and with the Commonwealth’s assent, was granted permission to file
an appeal nunc pro tunc at the four other docket numbers. The appeal at
3189 EDA 2016 followed. The two appeals were consolidated for our review.
Appellant raises these averments:
A. Did the Commonwealth fail to present sufficient evidence that
Appellant possessed the firearms at issue or had the necessary
‘guilty knowledge' needed to be convicted of Receiving Stolen
Property?
B. Did the trial judge commit prejudicial error by participating in
the cross-examination of a crucial defense witness without giving
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trial counsel an opportunity to object outside the presence of the
jury?
Appellant’s brief at 4.
Appellant’s first position is that there was insufficient evidence to
support his three convictions for receiving stolen property with respect to the
guns. Since a challenge to the sufficiency of the evidence raises a question
of law, our standard of review is de novo and our scope of review is plenary.
Commonwealth v. Giron, 155 A.3d 635, 638 (Pa.Super. 2017).
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 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. Fitzpatrick, 159 A.3d 562, 567 (Pa.Super. 2017)
(emphasis added; citation omitted).
The crime of receiving stolen property is defined as follows:
(a) Offense defined.—A person is guilty of theft if he
intentionally receives, retains, or disposes of movable property
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of another knowing that it has been stolen, or believing that it
has probably been stolen, unless the property is received,
retained, or disposed with intent to restore it to the owner.
18 Pa.C.S. § 3925(a). Accordingly, the elements of the crime of receiving
stolen property include “(1) intentionally acquiring possession of the
movable property of another; (2) with knowledge or belief that it was
probably stolen; and (3) the intent to deprive permanently.”
Commonwealth v. Robinson, 128 A.3d 261, 265 (Pa.Super. 2015).
Appellant first contests that the evidence established the first element,
i.e., that he was in possession of the guns. Appellant herein was not found
in actual possession of the three weapons; consequently, the
Commonwealth had to prove that he constructively possessed them. In
Pennsylvania,
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. Muniz, 5 A.3d 345, 348–49 (Pa.Super. 2010) (citation
omitted); accord Commonwealth v. Harvard, 64 A.3d 690, 699
(Pa.Super. 2013) (“In order to prove that a defendant had constructive
possession of a prohibited item, the Commonwealth must establish that the
defendant had both the ability to consciously exercise control over it as well
as the intent to exercise such control.”). The intent to exercise control over
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a piece of contraband can be proven by circumstantial evidence and all the
circumstances in question. Muniz, supra.
In this case, when police arrived at the Pine Street location to execute
the warrant, Ms. Taylor greeted them and said she had lived there with
Appellant for five years. When asked where Appellant’s bedroom was
located, she directed them to the room where the guns were found and
where mail addressed to Appellant was discovered. After Detective Brady
uncovered the three guns, he confronted Ms. Taylor, who denied any
knowledge of those items. Thereafter, Appellant refused to meet with police
and concealed his identity when eventually apprehended. Given these facts
and circumstances, we conclude that there was sufficient evidence to sustain
the jury’s determination that Appellant possessed the three guns. Harvard,
supra; Muniz, supra.
Appellant also maintains that the evidence was insufficient to establish
that he knew or believed that the guns were probably stolen. As to this
element of the crime in question, we observed in Robinson, supra at 265:
Circumstantial evidence of guilty knowledge may include, inter
alia, the place or manner of possession, alterations to the
property indicative of theft, the defendant's conduct or
statements at the time of arrest (including attempts to flee
apprehension), a false explanation for the possession, the
location of the theft in comparison to where the defendant
gained possession, the value of the property compared to the
price paid for it, or any other evidence connecting the defendant
to the crime.
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In this case, it was stipulated that all three weapons were stolen and
that Appellant did not have the owners’ permission to be in possession of
them. The fact that Appellant possessed multiple items of stolen property
supported the jury’s finding that he knew or believed that the guns were
probably stolen. The stolen items in question were guns, and Appellant did
not have a license to carry any of them, which also is probative of his
knowledge that they were probably stolen. Additionally, the guns were
hidden in a box underneath a board in the floor of the closet in the bedroom,
which constituted additional evidence of guilty knowledge. Finally, Appellant
was aware that he was wanted for questioning but failed to appear at the
police station. Then Appellant deliberately hid his identity from police when
apprehended. Given all of these circumstances, we conclude that the
evidence adduced by the Commonwealth was sufficient to support the jury’s
determination that Appellant knew or believed that the guns were probably
stolen.
Appellant’s next averment is that the trial court erred when it
“participated in the cross-examination of Appellant’s mother and did not give
defense counsel an opportunity to object to the questioning outside the
presence of the jury.” Appellant’s brief at 15. As pointed out by the
Commonwealth and acknowledged by Appellant, Appellant failed to object to
the court's questioning. Thus, Appellant has waived this claim of error. See
Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa.Super. 2016) (“[T]he
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failure to make a timely and specific objection before the trial court at the
appropriate stage of the proceedings will result in waiver of the issue.”);
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.”).
Appellant suggests that the trial court had to sua sponte afford him the
opportunity to object to its line of questioning outside of the presence of the
jurors. However, Pa.R.E. 614(c) provides otherwise:
(c) Objections. A party may object to the court's calling or
examining a witness when given notice that the witness will be
called or when the witness is examined. When requested to do
so, the court must give the objecting party an opportunity to
make objections out of the presence of the jury.
Pa.R.E. 614(c) (emphasis added).
Herein, Appellant merely had to ask to speak with the judge at
sidebar, outside of the hearing of the jury. At sidebar, Appellant could have
requested that the jurors be temporarily excused so that he could properly
object to the questioning and a ruling on the objection could have been
made for the record. Under the clear wording of the rule in question, a trial
court was not obligated to provide a party the chance to object to its
examination of a witness outside of the jury’s presence unless the party
requests that opportunity. Hence, Appellant’s second averment is waived.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2017
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