The opinion
J-S43011-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DEREK SCOTT ZIPP
Appellant No. 1689 MDA 2015
Appeal from the Judgment of Sentence May 27, 2015
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001196-2014
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 05, 2016
Appellant, Derek Scott Zipp, appeals from the judgment of sentence
entered in the Lebanon County Court of Common Pleas, following his jury
trial conviction of persons not to possess, use, manufacture, control, sell or
transfer firearms.1 We affirm.
The relevant facts and procedural history of this case are as follows.
In March 2014, Kathleen Wright, Appellant’s stepmother, allowed Appellant
to stay at her home on multiple occasions. Appellant’s visits usually lasted
two or three days, and Ms. Wright let Appellant stay in her bedroom on each
occasion. At the time, Ms. Wright owned a Raven .25 caliber handgun,
which she kept in an unlocked gun cabinet in her bedroom. On March 22,
____________________________________________
1
18 Pa.C.S.A. § 6105(a)(1).
J-S43011-16
2014, Ms. Wright contacted police after she noticed her handgun was
missing from the gun cabinet. Ms. Wright informed Officer Salvatore
Mannino that she suspected Appellant had taken the handgun. Specifically,
Ms. Wright told Officer Mannino that Appellant had tried to sell the handgun
to Chad Hall. Officer Mannino subsequently interviewed Mr. Hall, who
confirmed that Appellant had tried to sell him the handgun. Mr. Hall further
informed Officer Mannino that Appellant planned to sell the handgun to Mr.
Mentzer. A subsequent interview with Mr. Mentzer confirmed that Appellant
also tried to sell the handgun to Mr. Mentzer; however, Mr. Mentzer denied
purchasing the handgun from Appellant. Based on this information, police
arrested Appellant.
On August 5, 2014, the Commonwealth charged Appellant with
receiving stolen property and persons not to possess, use, manufacture,
control, sell or transfer firearms. Appellant proceeded to a jury trial. On
April 16, 2015, the jury convicted Appellant of persons not to possess, use,
manufacture, control, sell or transfer firearms and found Appellant not guilty
of receiving stolen property. The court deferred sentencing pending the
preparation of a pre-sentence investigation (“PSI”) report. On May 27,
2015, the court sentenced Appellant to a term of four (4) to ten (10) years’
imprisonment. Appellant timely filed post-sentence motions on June 8,
2015, which the court denied on August 27, 2015. Appellant timely filed a
notice of appeal on September 28, 2015. On October 12, 2015, the court
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ordered Appellant to file a concise statement of errors complained of on
appeal, and Appellant timely complied on October 30, 2015.
Appellant raises the following issues for our review:
DID THE COMMONWEALTH FAIL TO PRESENT SUFFICIENT
EVIDENCE AT TRIAL TO PROVE BEYOND A REASONABLE
DOUBT THAT APPELLANT ACTUALLY POSSESSED THE
FIREARM?
WAS THE JURY’S VERDICT AGAINST THE WEIGHT OF THE
EVIDENCE BECAUSE THE JURY PLACED TOO GREAT A
WEIGHT ON THE TESTIMONY PRESENTED BY THE
COMMONWEALTH’S WITNESSES THAT [APPELLANT]
POSSESSED THE FIREARM?
(Appellant’s Brief at 4).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Samuel A.
Kline, we conclude Appellant’s issues merit no relief.2 The trial court opinion
comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed August 27, 2015, at 2-8) (finding:
(1-2) Commonwealth and Appellant stipulated that Appellant has been
____________________________________________
2
With respect to Appellant’s first issue on appeal, we note that Appellant
vaguely claims the evidence was insufficient to support his persons not to
possess, use, manufacture, control, sell or transfer firearms conviction.
Appellant’s failure to develop any meaningful analysis for his sufficiency of
the evidence claim could constitute waiver on appeal. See Pa.R.A.P.
2119(a); Commonwealth v. Johnson, 604 Pa. 176, 191, 985 A.2d 915,
924 (2009), cert. denied, 562 U.S. 906, 131 S.Ct. 250, 178 L.Ed.2d 165
(2010) (stating: “where an appellate brief fails to provide any 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”). Despite
this deficiency, we decline to find waiver on this basis.
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J-S43011-16
prohibited by law from possessing, using, controlling, selling or transferring
firearms since May 21, 2008; Commonwealth presented testimony of Ms.
Wright, who stated she kept her Raven .25 caliber handgun in unlocked gun
cabinet in her bedroom; Ms. Wright testified that Appellant stayed in
bedroom where gun was located two or three times in March 2014; Ms.
Wright further stated she noticed handgun was missing from gun cabinet on
March 22, 2014, after Appellant’s stays at her house; Mr. Hall, Appellant’s
neighbor, also testified on behalf of Commonwealth; Mr. Hall stated he saw
Raven .25 caliber handgun in Appellant’s possession in late March 2014,
when Appellant tried to sell handgun to Mr. Hall; Mr. Hall also testified that
Appellant indicated he planned to sell handgun to Mr. Mentzer after Mr. Hall
declined Appellant’s offer to sell handgun; Mr. Mentzer testified he saw gun
in Appellant’s possession when Appellant offered to sell it to him; Appellant
testified at trial and denied allegations that he took gun from Ms. Wright,
possessed gun, or tried to sell gun to Mr. Hall or to Mr. Mentzer; jury was
free to believe testimony of Mr. Hall and Mr. Mentzer and disbelieve
Appellant’s testimony; court will not disturb jury’s credibility determinations;
thus, Commonwealth presented sufficient evidence to establish Appellant’s
possession of handgun, and verdict was not against weight of evidence).
Accordingly, we affirm on the basis of the trial court opinion.
Judgment of sentence affirmed.
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J-S43011-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/5/2016
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IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY,
PENNSYLVANIA 2015 nuG 27 Pf'l 2 02
CRIMINAL DIVISION
COMMONWEALTH OF .. •
PENNSYLVANIA ...
v. No: CP-38-CR-1196-2014
·DEREK SCOTT ZIPP
ORDER
And now, to wit, this 27th day of August, 2015, upon consideration
of the Defendant's Post-Sentence Motions, the parties' briefs in support of
their respective positions, and the record of the case, the Post-Sentence
Motions are DENIED.
Pursuant to Pa. R. Crim. P. 720(B)(4),the Defendant is advised that he
has the right to appeal from this denial to the Superior Court of
Pennsylvania. An appeal must be filed in writing no later than thirty (30)
days from the date of this Order. The Defendant has the right to the
assistance of counsel in the preparation of an appeal. In the event that the
Defendant is indigent, he has the right to appeal in forma pauperis and to
proceed with assigned counsel as provided by Pa. R. Crim. P. 122. The
Defendant has the qualified right to bail under Pa. R. Crim. P. 521(B).
BY
-~ _ _,_ ,J.
PURSUANT T['j· .rim ..P. 114.
All partieHr' ·~ A. KLINE
this date:!> PA
Clerk of Co ris. Le rnon,
cc: Gregory H. Becker, Esq. :l?D
Nicholas Sidelnick, Esq.~
i/09
ENTERED t ;· i ~C:)
CLERK Of. COURTS
IN THE COURT OF COMMON PLEAS OF LEBANON cou~t;~w:·J, PA
PENNSYLVANIA 2015 flUG 27 Prl 2 02
CRIMINAL DIVISION
COMMONWEALTH OF
PENNSYLVANIA
v. No: CP-38-CR-1196-2014
DEREK SCOTT ZIPP
.
APPEARANCES:
Gregory H. Becker, Esq. for the Commonwealth
Nicholas Sidelnick, Esq. for the Defendant
OPINION, KLINE, J., AUGUST 27, 2015
Before the Court are the Defendant's Post-Sentence Motions. For the
reasons set forth herein, we deny the Post-Sentence Motions, as specified
below.
FACTS AND PROCEDURAL HISTORY
The Defendant was charged with one count of Receiving Stolen
Property and one count of Persons Not to Possess, Use, Manufacture, Control,
Sell, or Transfer Firearms pursuant to 18 Pa.C.S.A. §3925(a) and 18
Pa.C.S.A. §6105(a)(l), respectively. A jury trial was held on April 16, 2015.
The jury found the Defendant guilty of Persons Not to Possess a Firearm but
not guilty of Receiving Stolen Property. On May 27, 2015, the Defendant was
sentenced to 4-10 years in a state correctional institution.
On June 8, 2015, the Defendant filed Post-Sentence Motions, which
included a Motion for Judgment of Acquittal and a Motion for New Trial.
Specifically, the Defendant argues that the evidence adduced at trial was
insufficient to find him guilty insofar as the Commonwealth failed to present
sufficient evidence that he ever possessed a firearm. Also, the Defendant
1
argues the verdict was against the weight of the evidence as the jury placed
too great a weight on the testimony of the Commonwealth's witnesses.
Pursuant to the Defendant's request, a motion for extension of time for
disposition was granted pursuant to Pa.R.Crim.P. 720(B)(3)(b). The
Defendant filed a brief in support of his position on August 10, 2015. The
Commonwealth filed a brief in support of its position on August 21, 2015.
The case is thus before us and ripe for disposition.
DISCUSSION
"The defendant in a court case shall have the right to make a post-
sentence motion." Pa.R.Crim.P. 720 (B)(l)(a). Post-sentence motions shall be
filed no later than 10 days after imposition of sentence. Pa.R.Crim.P.
720(A)(l). Pursuant to Pa.R.Crim.P. 720(B)(l)(a)(ii) and (iv), post-sentence
motions may include a motion for judgment of acquittal and a motion for a
new trial.
Sufficiency of the Evidence
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
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[finder] 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.
Com. v. Jones, 874 A.2d 108, 120-121 (Pa. Super. 2005).
Persons not to possess a firearm is defined as follows:
§ 6105. Persons not to possess, use, manufacture, control,
sell or transfer firearms
(a) Offense defined.--
(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.·
18 Pa.C.S.A. §6105(a)(l).
The first element of the offense is that the Defendant must have been
convicted of an offense enumerated in subsection (b) within or without this
Commonwealth or whose conduct meets the criteria in subsection (c),
The Commonwealth and the Defendant entered into a stipulation. The
stipulation states, "Since May 21, 2008, Defendant is/has been prohibited by
law from possessing, using, controlling, selling, or transferring a firearm."
(N.T. 10, Exhibit 1). Therefore, the Commonwealth only had to prove the
second element: possession of a firearm. The record of the jury trial reflects
the following relevant facts.
Kathleen Wright (hereinafter "Ms. Wright") presented testimony on
behalf of the Commonwealth. Ms. Wright owned a Raven .25 caliber
handgun. (N.T. 12, 17). She kept it in an unlocked gun cabinet in her
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bedroom in her home. (N.T. 13). The Defendant was Ms. Wright's stepson,
and the Defendant stayed at her home two or three times in March of 2014
while she owned the gun. (N.T. 12-13, 102). She testified, "Well, it was a
couple times that he came there, but it was like two or three days that he
would stay there ... each time." (N.T. 102). The Defendant stayed in the
bedroom where the gun cabinet was located. (N.T. 14). She noticed the gun
was missing on March 22, 2014. (N.T. 13-14, 27). Ms. Wright subsequently
spoke with Chad Hall (hereinafter "Mr. Hall"). (N.T. 15, 24). Mr. Hall then
drove Ms. Wright over to her ex-husband's house where she met with a
person by the name of Red. (N.T. 18, 24-25).
Mr. Hall testified on behalf of the Commonwealth. Mr. Hall was the
Defendant's neighbor back in March of 2014. (N.T. 28). The record reflects
the following:
Question: Okay. And did the Defendant try and sell you a
gun back in March?
Answer: Yes, he did.
Question: Can you tell the jury about that?
Answer: Mr. Zipp came to my house, I believe it was on a
Friday. He came to the house, he had a -he had a little
pistol that he wanted to sell. He asked for $70.00 for the
gun. My wife-we were moving out at the time. My wife
had a couch-a leather couch that we wasn't taking with us
so Mr. Zipp said that, you know, he wanted to trade me the
gun for the couch. So I didn't want nothing to do with the
gun at the time so Mr. Zipp said he was going to go to his
dad's to get rid of the gun. That's the last time I saw him
at that time.
(N.T. 28-29). Mr. Hall saw the Defendant with a gun in his possession when
he came to his house. (N.T. 29). The Defendant handed him the gun. (N.T.
4
29-30). The gun was a Raven .25 caliber. (N.T. 30). Mr. Hall testified that
Ms. Wright later came to his house, and he wound up driving her to the
Defendant's dad's house. (N.T. 31). The Defendant told him that he sold the
gun to Red. (N.T. 31, 32).
Robert Mentzer (hereinafter "Red") testified on behalf of the
Commonwealth. The record reflects the following:
Question: Okay. Did the Defendant try and sell you a gun
at that time?
Answer: Yes, sir.
Question: Can you tell the jury about that?
-
Answer: Well, at/the time I was actually staying with his
father taking . care of him. He has some-he has some
health issues. I couldn't tell you the day, but he had come
over, we had gone inside, and he pulled the handgun out
and asked me if I wanted to buy it, and I didn't, and he
ended up leaving.
(N.T. 50-51). Red saw the Defendant with the gun in his possession. (N.T. 51,
59). Ms. Wright, Mr. Hall, and Red all identified the Defendant. (N.T. 16, 35,
54).
The Defendant also testified. The Defendant denied taking the gun
from Ms. Wright, and he denied ever having it in his possession. (N.T. 95).
The Defendant denied trying to sell the gun to Mr. Hall and to Red. (N.T. 95).
We find that there was sufficient evidence for the jury to find that
the Defendant possessed a firearm. Mr. Hall and Red each testified that the
Defendant tried to sell them a firearm. Both witnesses testified that they
actually saw the firearm in the Defendant's possession.
In Com. v. Antidormi, 84 A.3d 736 (Pa. Super. 2014), an appellant
claimed that the evidence adduced by the Commonwealth at trial was
5
insufficient to find him guilty of persons not to possess a firearm. The
Superior Court found the evidence was sufficient and stated the following:
In relevant part, we already have reviewed the breadth of
the evidence presented by the Commonwealth at trial in
our discussion of Appellant's challenge to the admission of
evidence. Specifically, Reck's testimony established
that Appellant had possessed firearms on the night
in question. In response, Appellant called both Harper
and Burton to the stand to refute Reck's testimony. Both
men testified that Appellant was not with them in the PT
Cruiser on the night in question, and that Appellant did
not possess a firearm. However, as the Commonwealth
adduced during cross-examination, Harper and Burton's
exculpatory claims directly contradicted earlier statements
both men made while being questioned by the
Pennsylvania State Police and appearing before the court of
common pleas. In those prior statements, both men had
attested that Appellant was present and participated in
discharging the firearms on July 21, 2011.
This evidence clearly was sufficient to establish that
Appellant possessed a firearm on the morning of July 21,
2011. The testimony of Reck, alone, established that
Appellant possessed a firearm on July 21, 2011. See
N. T. Part III at 25-26 ("[Appellant] had a sawed-off
shotgun in his hand .... All of us shot the firearms.").
Antidormi, 84 A.3d at 757 (emphasis added).
The instant matter is analogous to Antidormi as the record established
that the Defendant possessed a firearm in March of 2014. The verdict
indicates that the jury found Mr. Hall's and Red's testimony to be credible.
Accordingly, we find there was sufficient evidence to sustain the Defendant's
conviction, and the Defendant is not entitled to relief on this claim.
Weight of the Evidence
"A court will grant a new trial on the ground that the verdict was
against the weight of the evidence only where it 'appear]s] from the record
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that the jury's verdict was so contrary to the evidence as to shock one's sense
of justice and to make the award of a new trial imperative, so that right may
be given another opportunity to prevail."' Com. v. Bellini, 482 A.2d 997, 999
(Pa. Super. 1984).1
An allegation that the verdict is against the weight of the
evidence is addressed to the discretion of the trial court. A
new trial should not be granted because of a mere conflict
in the testimony or because the judge on the same facts
would have arrived at a different conclusion. A trial judge
must do more than reassess the credibility of the witnesses
and allege that he would not have assented to the verdict if
he were a juror. Trial judges, in reviewing a claim that the
verdict is against the weight of the evidence do not sit as
the thirteenth juror. Rather, the role of the trial judge is to
determine that "notwithstanding all the facts, certain facts
are so clearly of greater weight that to ignore them or to
give them equal weight with all the facts is to deny justice.
Com. v. Widmer, 744 A.2d 745, 751-752 (Pa. 2000). (citations omitted). "A
motion for new trial on the grounds that the verdict is contrary to the weight
of the evidence, concedes that there is sufficient evidence to sustain the
verdict. Thus, the trial court is under no obligation to view the evidence in
the light most favorable to the verdict winner." Com. v. Lewis, 911 A.2d 558.
565 (Pa. Super. 2006).
Having found sufficient evidence to sustain the Defendant's conviction,
the verdict in this case does not shock the conscience of the Court. Therefore,
it is not against the weight of the evidence.
Further, the Defendant specifically argues that the jury placed too
great a weight on the Commonwealth's witnesses. In the Defendant's brief,
1
"A verdict is said to be contrary to the evidence such that it shocks one's sense of justice when 'the
figure of Justice totters on her pedestal,'. or when 'the jury's verdict, at the time of its rendition,
causes the trial judge to lose his breath, temporarily, and causes him to almost fall from the bench,
then it is truly shocking to the judicial conscience."' Com. v. Cruz, 919 A.2d 279, 282 (Pa. Super.
2007).
7
'. ..
he claims that both Mr. Hall and Red's testimony was not credible in that
they provided differing accounts as to what happened with the pistol.
Further, their testimony was self-serving in so far as to avoid criminal
liability as to each of their own potential roles in possessing a stolen firearm.
In addition, the Defendant contends that Mr. Hall had an interest to
incriminate him, and Mr. Hall had pending charges and his plea offer would
be reevaluated. (See Defendant's brief, p. 6-7).
The Defendant's arguments ignore the well-settled principles of law
that the finder of fact is free to believe all, part, or none of the evidence, and
the fact finder makes credibility determinations. Com. v. Gibbs, 981 A.2d 274,
282 (Pa. Super. 2009). The jury made the credibility determinations of the
witnesses, and it was permitted to believe all, part, or none of the testimony
and evidence presented. The jury was free to believe the Commonwealth's
witnesses over the Defendant, and the jury was free to weigh the
Commonwealth's witnesses' testimony accordingly. This Court cannot
disturb the jury's credibility determinations as a court is strictly prohibited
from substituting its judgment for that of the trier of fact. If we were to
accept the Defendant's argument, then we would be ruling that the jury
should have believed the Defendant over Mr. Hall and Red. This is
impermissible. Accordingly, the Defendant is not entitled to relief on this
claim.
The Defendant's Post-Sentence Motions are denied. We will enter an
Order consistent with the foregoing.
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