Com. v. Amos, M.

J-A21040-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

MELVIN WALLACE AMOS, SR.

Appellant No. 1868 WDA 2016

Appeal from the Judgment of Sentence Entered September 9, 2016

In the Court of Common Pleas of Mercer County

Criminal Division at No: CP-43-CR-0001559-2015

BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.

MEMORANDUM BY STABILE, J.: FILED DECEMBER 22, 2017

Appellant, Melvin Wallace Amos, Sr., appeals from the September 9,

2016 judgment of sentence imposing four to eight years of incarceration for

unlawful possession of a firearm.1 We affirm.

On August 18, 2015, police executed a search warrant at Appellant’s

home, arrested him, and charged him with the aforementioned offense. On

June 16, 2016, a jury found Appellant guilty. After the trial court imposed

sentence, Appellant filed a timely post-sentence motion challenging, among

other things, the weight of the evidence in support of Appellant’s conviction.

The trial court denied the motion on November 8, 2016. This timely appeal

followed. Appellant raises four issues for our review:

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1 18 Pa.C.S.A. § 6105.

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I. Whether the trial court erred in overruling

[Appellant’s] challenge to the prosecution striking the only African

American juror in the panel?

II. Whether the trial court erred in admitting hearsay

evidence as to the identification of [Appellant] for purposes of a

prior conviction?

III. Whether the Commonwealth produced sufficient

evidence to convict [Appellant under § 6105]?

IV. Whether the verdict was against the weight of the

evidence?

Appellant’s Brief at 5. We will address these issues in turn.

In Batson v. Kentucky, 476 U.S. 79, 89 (1986), the United States

Supreme Court held that the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution forbids a prosecutor to strike a

juror solely on the basis of race. Appellant is African American, and the venire

contained only one African American. The prosecutor used a peremptory

strike to exclude her from the trial jury. Appellant claims the prosecutor

violated Batson.

In an equal protection claim, the defendant bears the burden “to prove

the existence of purposeful discrimination.” Id. at 93. First, the defendant

must make a prima face showing of discriminatory juror selection, that is, that

the prosecution excluded jurors because of their race. Id. at 97.

In deciding whether the defendant has made the requisite

showing, the trial court should consider all relevant

circumstances. For example, a “pattern” of strikes against black

jurors included in the particular venire might give rise to an

inference of discrimination. Similarly, the prosecutor’s questions

and statements during voir dire examination and in exercising his

challenges may support or refute an inference of discriminatory

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purpose. These examples are merely illustrative. We have

confidence that trial judges, experienced in supervising voir dire,

will be able to decide if the circumstances concerning the

prosecutor’s use of peremptory challenges creates a prima facie

case of discrimination against black jurors.

Id. If the defendant makes the prima facie showing, the prosecutor must

defend the exclusion with “a neutral explanation related to the case to be

tried.” Id. at 98. “The trial court will then have the duty to determine if the

defendant has established purposeful discrimination.” Id.

Instantly, Appellant objected when the prosecutor used a peremptory

challenge to exclude the only black juror from the petit jury. The trial court

explained:

This Court, as is its practice, called counsel to sidebar after

the prospective panel was seated and asked the Commonwealth

to put on the record its reason for striking the sole African

American juror. The reason given was the juror’s lack of a college

degree. The case against [Appellant] involved constructive

possession and the Commonwealth sought jurors with college

degrees.

[Appellant] objected to this reason on the grounds it was

not racially neutral in that there were other jurors who did not

have a college degree who were not stricken.

[…]

Given the Commonwealth struck the only African American

on the panel, this [c]ourt finds there is a prima facie showing that

the Commonwealth struck the juror based on race.

This [c]ourt further finds that the reason given was race

neutral. The Commonwealth’s case involved one of constructive

possession. Such cases require jurors to apply complex legal

theories. The higher degree of education, the more likely it is a

juror would correctly apply the theory.

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The fact that there were other jurors who did not have a

college education who were not struck does not make the reason

less racially neutral. The reason is still racially neutral and that is

what is required. There can be other reasons for those other

jurors that were not stricken.

Trial Court Opinion, 11/8/16, at 3-4.

As set forth above, Batson involves a three-step analysis. First, the

defendant must establish a prima facie case of discrimination. Second, if the

trial court finds a prima facie case, the prosecutor must offer a race-neutral

explanation. Third, the trial court must evaluate the case to determine

whether the defendant has established purposeful discrimination.

The trial court found a prima facie case, and the Commonwealth does

not challenge that finding on appeal. Regarding the second prong, the United

States Supreme Court has held that the prosecutor need not offer “an

explanation that is persuasive, or even plausible.” Purkett v. Elem, 514 U.S.

765, 768 (1995). “At this second step of the inquiry, the issue is the facial

validity of the prosecutor’s explanation. Unless a discriminatory intent is

inherent in the prosecutor’s explanation, the reason offered will be deemed

race-neutral.” Id. (quoting Hernandez v. New York, 500 U.S. 352, 360

(1991)). Here, the prosecutor said he struck the juror because of her

education level. The trial court properly accepted that explanation as race-

neutral.

As to the third prong, “[t]he trial court ultimately makes a determination

of whether the defense has carried its burden of proving purposeful

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discrimination.” Commonwealth v. Sanchez, 36 A.3d 24, 44 (Pa. 2011),

cert. denied, 585 U.S. 833 (2012). “A finding by the trial court as to

discriminatory intent must be given great deference on appeal.”

Commonwealth v. Simmons, 662 A.2d 621, 631 (Pa. 1995); see also,

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Here, the trial court noted

that the prosecution did not use peremptory challenges to strike two other

jurors who had only a high school education. The court concluded the

prosecution could have had other reasons for not striking those jurors.

Appellant argues the prosecutor’s explanation was not credible because the

prosecutor failed to strike other jurors who lacked college degrees. Appellant

also notes that the black juror held a management level position at a retail

store, thus indicating her sufficient intellectual ability to understand

constructive possession.

As the foregoing makes clear, the defense bears the ultimate burden of

proving purposeful discrimination after the prosecution offers a race-neutral

explanation. Appellant has established that the prosecutor struck the only

black juror because she lacked a college education, but failed to strike white

jurors who lacked college educations. Presumably, for this reason, the trial

court found a prima facie case of discrimination. The trial court ultimately

found nothing more than a prima facie case, and we agree. Appellant elicited

no evidence about the other qualifications of the jurors who lacked college

educations. We therefore cannot assess whether the prosecutor had race

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neutral reasons for deeming them to be qualified, despite their lack of a

college education. As a result, we have little to go on but the trial court’s

assessment of the prosecutor’s credibility, an assessment to which we owe

great deference. We therefore will not disturb the trial court’s ruling.

Next, Appellant argues the trial court erred in admitting hearsay

evidence to establish Appellant’s identity. Admissibility of evidence rests

within the sound discretion of the trial court. Commonwealth v. Chmiel,

738 A.2d 406, 414 (Pa. 1999), cert. denied, 528 U.S. 1131 (2000). We will

reverse only if the trial court abuses its discretion. Id. Instantly, the

Commonwealth introduced a certified copy of a 1995 jury verdict slip

indicating Appellant was found guilty of possession with intent to deliver a

controlled substance (“PWID”).2 The witness who introduced the verdict slip

also testified to Appellant’s name, date of birth, and social security number.

Appellant claims that this information appeared in the criminal complaint

related to the 1995 conviction, but did not appear in the verdict slip. Thus,

Appellant claims the Commonwealth failed to produce admissible evidence

identifying him as the person convicted of PWID in 1995. The trial court relied

on 42 Pa.C.S.A. §§ 6103 and 6104, regarding evidence of official records. The

Commonwealth cites Pa.R.E. 902, regarding self-authenticating public

documents. Appellant responds that these rules are inapplicable because the

____________________________________________

2 35 P.S. § 780-113(a)(30).

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Commonwealth did not introduce any document properly identifying him as

the party convicted in 1995. We need not analyze the applicable law in any

detail. Appellant’s argument fails because he testified in his own defense and

admitted that he had a prior conviction in 1995. N.T. Trial, 6/16/16, at 30.

Next, Appellant argues the Commonwealth failed to produce sufficient

evidence in support of his conviction under § 6105. The applicable standard

of review is as follows:

When evaluating a sufficiency claim, our standard is

whether, viewing all the evidence and reasonable inferences in the

light most favorable to the Commonwealth, the factfinder

reasonably could have determined that each element of the crime

was established beyond a reasonable doubt. This Court considers

all the evidence admitted, without regard to any claim that some

of the evidence was wrongly allowed. We do not weigh the

evidence or make credibility determinations. Moreover, any

doubts concerning a defendant’s guilt were to be resolved by the

factfinder unless the evidence was so weak and inconclusive that

no probability of fact could be drawn from that evidence.

Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010), appeal

denied, 29 A.3d 796 (Pa. 2011). Appellant argues the Commonwealth failed

to prove beyond a reasonable doubt that Appellant was in constructive

possession of the firearm in question.

Constructive possession is a legal fiction, a pragmatic

construct to deal with the realities of criminal law enforcement.

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.

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Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013), appeal

denied, 78 A.3d 1090 (Pa. 2013).

The record reflects that Appellant lived in the home of Danielle Dallas,

his ex-girlfriend. Appellant and Dallas lived in the home together for 8 or 9

years, and Appellant rented the home after Dallas moved out. The gun in

question was registered to Dallas, but she moved out of the home

approximately a year and a half before Appellant’s arrest and left it behind.

Police found it in the master bedroom on a shelf. A wallet and pill bottles with

Appellant’s identifying information also were found in the master bedroom.

Appellant testified that he did not sleep in the master bedroom after Dallas

moved out, but the guns were within easy reach of the bed. Given that Dallas’

firearm remained in the house after she moved out and was found in the

master bedroom along with Appellant’s wallet and pill bottles, we conclude

that the record contains more than sufficient evidence to prove Appellant’s

constructive possession of the gun. See, e.g., Commonwealth v. Walker,

874 A.2d 667, 678 (Pa. Super. 2005) (finding sufficient evidence of

constructive possession where a gun was found in a basement where the

defendant kept some of his clothes); Commonwealth v. Keefer, 487 A.2d

915, 918 (Pa. Super. 1985) (finding sufficient evidence of constructive

possession where a document containing the defendant’s name and address

was found on a dresser in the same bedroom as the contraband).

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Finally, Appellant argues that his convictions are contrary to the weight

of the evidence. Our standard of review is well settled:

A motion for a new trial based on a claim 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. 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. It has often been stated that a new trial should be

awarded when the jury’s verdict is so contrary to the evidence as

to shock one’s sense of justice and the award of a new trial is

imperative so that right may be given another opportunity to

prevail.

An appellate court’s standard of review when presented with

a weight of the evidence claim is distinct from the standard of

review applied by the trial court:

Appellate review of a weight claim is a review of the exercise

of discretion, not of the underlying question of whether the verdict

is against the weight of the evidence. Because the trial judge has

had the opportunity to hear and see the evidence presented, an

appellate court will give the gravest consideration to the findings

and reasons advanced by the trial judge when reviewing a trial

court’s determination that the verdict is against the weight of the

evidence. One of the least assailable reasons for granting or

denying a new trial is the lower court’s conviction that the verdict

was or was not against the weight of the evidence and that a new

trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (internal

citations and quotation marks omitted; emphasis in original).

Appellant argues the trial court erred in denying his motion for a new

trial because the trial court misconstrued the evidence. According to the trial

court, Dallas testified that she owned two handguns, a .25 and a .45, which

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she kept under the mattress in the master bedroom. Thus, the record

supports an inference that Appellant moved the gun in question, the .45, from

the mattress to the shelf. Appellant notes that Dallas actually testified that

she kept the .25 under the mattress and the .45 on the shelf where police

found it. Police did not find the .25. Thus, he contends, the record does not

support an inference that Appellant moved the .45 from under the mattress

sometime after Dallas moved out.

In our view, this discrepancy is not meaningful. Dallas left the home

and the .45 a year and a half prior to Appellant’s arrest. The .45 was on a

shelf in plain view in a bedroom where Appellant stored his pill bottles and

wallet, and within reach of the bed where Appellant slept while Dallas still lived

there. Furthermore, the jury was not required to credit Appellant’s testimony

that he stopped sleeping in the master bedroom after Dallas moved out. A

finding that Appellant was in constructive possession of the .45 is not against

the weight of the evidence. We discern no abuse of discretion in the trial

court’s decision to deny a new trial.

In summary, we have found no merit in any of Appellant’s arguments.

We therefore affirm the judgment of sentence.

Judgment of sentence affirmed.

President Judge Emeritus Bender joins the memorandum.

Judge Olson concurs in the result.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/22/2017

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