J-S69005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JAMALL JACKSON
Appellant No. 1599 WDA 2016
Appeal from the Judgment of Sentence June 27, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007067-2015
BEFORE: BOWES, RANSOM, JJ. and STEVENS P.J.E.*
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 16, 2017
Jamall Jackson appeals from the judgment of sentence of four to eight
years imprisonment followed by two years probation. Judgment of sentence
was imposed after a jury convicted him of possession of a firearm by a
prohibited person. We affirm.
The jury’s conviction rests upon the following evidence adduced by the
Commonwealth. At approximately 1:30 p.m. on May 8, 2015, Pittsburgh
Police received several 911 calls indicating that a firearm had been
discharged multiple times near the intersection of Sacramento Avenue and
Minton Street. The shooter was described as a bearded African-American
man, who had fired shots at the feet of a woman just before they entered a
red car, which the assailant was driving.
* Former Justice specially assigned to the Superior Court.
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Police Officer Jeffrey Brock arrived at the scene. Officer Brock found
no one and did not see blood, but he did retrieve eight shell casings from the
sidewalk and a grassy area near the described intersection, as well as a cell
phone owed by Jenna Cox, Appellant’s girlfriend. While Officer Brock was
investigating the area, a bearded African-American male drove a red Impala
along Minton Street. Police unsuccessfully attempted to stop the vehicle in
question, which was found parked about .2 miles from the scene of the
shooting. The Impala was registered to Ms. Cox.
Several days later, Officer Brock called Ms. Cox, who was evasive and
appeared frightened. On May 13, 2015, Detective Dawn Mercurio called
Appelant, who agreed to come to the police station for an interview. After
being given his Miranda warnings, Appellant made a statement, which the
trial court described:
[Appellant] told Detective Mercurio that he had been in a
romantic relationship with Jenna Cox and that he had acted as a
surrogate father for her five-year-old son. The natural father
was incarcerated so he was acting in that individual’s place.
[Appellant] told Detective Mercurio that on the 8th of May, he
was angry at Cox because he had learned that Cox and the
natural father of her five-year-old had been talking behind his
back and that the natural father had recently been released from
incarceration. [Appellant] found out that Cox had taken her son’s
natural father to his son's school so that he could meet with the
teachers and become more involved in his son's life. [Appellant]
called Cox's cell phone and confirmed the fact that Cox was at
her son's school with the child's natural father and he demanded
that she leave him there and that she come pick him up at the
300 block of Minton Street.
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When Cox arrived, [Appellant] got in the passenger seat
and he was very angry and pulled out a gun from his right
pocket and set it on his lap while he was talking with her. The
[g]un was a nine-millimeter Ruger handgun. He was yelling at
her[,] telling her that he did not appreciate how deceitful she
was and he demanded to know where the natural father was
living because he needed to die. [Cox] then got out of the car
and was walking down the street when [Appellant] followed her,
telling her to get back in the car. When she refused to listen to
him, he fired several rounds at her feet and she took off running.
[Appellant] then got into the driver’s side of the vehicle and was
pursuing her down Minton Street. He told her to get back into
the car and if she did not, he was going to harm her. She got
back into the car and then they drove away. [Appellant] then
drove to his father’s house in McKees Rocks so that he could
dispose of the firearm. After giving the firearm to his father,
they drove back to Minton Street to look for the cell phone that
Cox had dropped. [Appellant] told Detective Mercurio that his
father still had the gun and then agreed to call his father to tell
him that they at least wanted to obtain the weapon. His father
agreed and then they rode to his father’s house and his father
came out to the police car with the gun and magazine in a bag
and gave it to Detective Mercurio.
Trial Court Opinion, 4/13/17, at 4-5. The Commonwealth also presented
evidence that Appellant was previously convicted of three counts of robbery.
In response to this Commonwealth evidence, Appellant’s father denied
receiving the gun from Appellant and claimed that he found it in some
bushes. Appellant also denied the entirety of the statement that he gave to
Detective Mercurio.
The jury rejected Appellant’s proof and convicted him of the firearm’s
offense. After imposition of the above-described sentence, Appellant filed a
post-trial motion, which included a challenge to the weight of the evidence.
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This appeal followed denial of that motion. Appellant presents these issues
for our review:
I. Whether the evidence was insufficient as a matter of law to
establish Appellant as possessing a firearm beyond a
reasonable doubt, since no witness testified that Appellant
was ever in actual possession of a firearm, no scientific or
circumstantial evidence indicated Appellant possessed the
firearm, and the only evidence regarding Appellant's
possession of a firearm were the hearsay statements of Jena
Cox introduced by Detective Mercurio as if these statements
were made by Appellant during his alleged confession that
was neither written or recorded.
II. Whether Appellant's conviction of person not to possess a
firearm was against the weight of the evidence; where no
witness testified that Appellant was in possession of the
firearm; where no scientific or circumstantial evidence
indicated Appellant possessed the firearm; where the only
evidence regarding the element of possession of the firearm
was hearsay testimony of an alleged confession made by
Appellant; where Appellant's confession was not recorded,
reduced to writing, or adopted by Appellant in any part.
III. Whether trial counsel was ineffective for failing to prepare or
demonstrate a sufficient understanding of the evidence and
ultimately failing to object to the hearsay statements of Jena
Cox introduced by Detective Mercurio as the Appellant's
alleged confession.
IV. Whether the trial court's denial of appellant's motion for
mistrial was an abuse of discretion where Appellant sought
to terminate trial counsel's representation for the
aforementioned ineffective assistance of counsel.
Appellant’s brief at 5.
Appellant first challenges the sufficiency of the evidence supporting his
conviction. Since a challenge to the sufficiency of the evidence raises a
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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)
(citation omitted).
Appellant was convicted of 18 Pa.C.S. § 6105(a)(1), persons not to
possess, use, manufacture, control, sell or transfer firearms, which states:
(1) A person who has been convicted of an offense enumerated
in subsection (b), within or without this Commonwealth,
regardless of the length of sentence or whose conduct meets the
criteria in subsection (c) shall not possess, use, control, sell,
transfer or manufacture or obtain a license to possess, use,
control, sell, transfer or manufacture a firearm in this
Commonwealth.
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18 Pa.C.S. § 6105(a)(1). One of the enumerated offenses is robbery. 18
Pa.C.S. § 6105(b). Thus, § 6105(a)(1) essentially contains two elements,
that the defendant (1) possessed a firearm and (2) was convicted of an
enumerated offense. See Commonwealth v. Jemison, 98 A.3d 1254 (Pa.
2014); Commonwealth v. Antidormi, 84 A.3d 736 (Pa.Super. 2014).
Herein, Appellant does not contest that he was convicted of an
enumerated offense, and the Commonwealth established that he had been
convicted of three counts of robbery prior to the incident at issue herein. On
appeal, Appellant challenges that the Commonwealth proved, beyond a
reasonable doubt, that he was in possession of a firearm. Although
Appellant confessed to Detective Mercurio that he had a gun in possession
on the day in question, Appellant suggests that his confession must be
discounted since it was not written or recorded, even though it could have
been. As clearly articulated above, the jury assesses the credibility of the
trial witnesses. Detective Mercurio outlined the contents of Appellant’s
statement, and the jury was free to credit her testimony, regardless of
whether Appellant’s statement was written or recorded. Hence, we reject
Appellant’s first position.
Appellant next raises a challenge to the weight of the evidence, which
is identical to his claim that there was insufficient evidence to support the
verdict. He suggests that the jury should not have credited Detective
Mercurio’s report of the contents of his confession since he did not sign a
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written confession and since it was not recorded. Our standard of review in
this context is settled:
In assessing a claim that the verdict was against the
weight of the evidence, this Court will not substitute its
judgment for that of the factfinder, which is free to assess the
credibility of witnesses and to believe all, part, or none of the
evidence presented. Commonwealth v. DeJesus, 580 Pa. 303,
860 A.2d 102 (2004); Commonwealth v. Johnson, 542 Pa.
384, 668 A.2d 97, 101 (1995) (“An appellate court is barred
from substituting its judgment for that of the finder of fact.”
(citing Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d
1203, 1206 (1982)).
“When the challenge to the weight of the
evidence is predicated on the credibility of trial
testimony, our review of the trial court's decision is
extremely limited. Generally, unless the evidence is
so unreliable and/or contradictory as to make any
verdict based thereon pure conjecture, these types
of claims are not cognizable on appellate review.”
Commonwealth v. Rossetti, 863 A.2d 1185, 1191
(Pa. Super. 2004) (citation omitted). “Moreover,
where the trial court has ruled on the weight claim
below, an appellate court's role is not to consider the
underlying question of whether the verdict is against
the weight of the evidence.” Commonwealth v.
Champney, 574 Pa. 435, 832 A.2d 403, 408
(2003). “Rather, appellate review is limited to
whether the trial court palpably abused its discretion
in ruling on the weight claim.” Id.
Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007).
Commonwealth v. Fortson, 165 A.3d 10, 16 (Pa.Super. 2017).
Additionally, resolution of a weight-of-the-evidence challenge is
assigned to the discretion of the trial court so that this Court does not review
such an allegation in the first instance. Commonwealth v. Storey, 167
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A.3d 750, 761 (Pa.Super. 2017). Instead, we consider whether the trial
court abused the discretion in rejecting a contention that the verdict is
against the weight of the evidence. Id. The trial court should credit an
averment that the verdict is against the weight of evidence only if the
verdict is so contrary to the evidence as to shock one’s sense of justice. Id.
In this case, the jury was permitted to accept Detective Mercurio’s
testimony about the statement that Appellant gave to her. We conclude that
the trial court did not abuse its discretion in concluding that Appellant’s
conviction was not so against the weight of the evidence as to shock the trial
court’s sense of justice. We therefore reject Appellant’s second position.
Appellant’s third issue concerns trial counsel’s ineffectiveness. A claim
of ineffective assistance of counsel may not be addressed on direct appeal,
but must be deferred to collateral review. Commonwealth v. Grant, 813
A.2d 726 (Pa. 2002). Hence, we decline to examine Appellant’s third issue,
which he can raise in a PCRA proceeding.
Appellant’s final claimed error is that the trial court should have
granted counsel’s request for a mistrial, which counsel sought on the basis
that his relationship with Appellant had deteriorated to the point that counsel
could no longer effectively represent Appellant. In the criminal context, a
mistrial is declared in order to “to eliminate the negative effect wrought
upon a defendant when prejudicial elements are injected into the case or
otherwise discovered at trial.” Commonwealth v. Cole, 167 A.3d 49, 73
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(Pa.Super. 2017). A mistrial is warranted when the trial process is tainted,
depriving the defendant of a fair trial. Id. The trial court “is vested with
discretion to grant a mistrial whenever the alleged prejudicial event may
reasonably be said to deprive the defendant of a fair and impartial trial.” Id.
Mistrial can be granted only when “misconduct or prejudicial error actually
occurred,” and, if it did, a new trial is needed to avoid the resulting
prejudice. Id.
In this case, there was no prejudicial element introduced at trial.
There was no improper evidence or remarks presented to the jury.
Appellant’s mistrial request was predicated solely upon the manner in which
counsel was conducting trial. Simply put, there was no ground upon which
a mistrial could have been granted because there was no trial error.
However, as noted, claims of ineffective assistance of counsel must be
deferred to collateral review. Appellant is free to present any issue involving
how he was represented at trial in a timely collateral proceeding. Hence, we
reject this final claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 11/16/2017
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