# Com. v. Hollins, E. > Superior Court of Pennsylvania · July 1, 2019 URL: https://www.frixlaw.com/law-library/cases/4412987 ## Case - **Court:** Superior Court of Pennsylvania - **Decided:** July 1, 2019 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4412987 ## How later opinions describe it (automated extraction) - finding evidence sufficient where no direct evidence of concealment was presented to the jury, holding "The evidence was I 1 !' I sufficient to allow the jury to infer that the appellant concealed the gun." Id. - finding evidence sufficient where no direct evidence of concealment was presented to the jury, holding "The evidence was I 1 !' I sufficient to allow the jury to infer that the appellant concealed the gun." Id. - finding evidence of concealment sufficient where officer testified "his partner saw [defendant] reach ro T.T., Vol. V, at 20. II Id. at 23-24. 7 1 I .l I t J under his sweater, a bus passed, and then the officers saw a gun on the ground at [defendant's] l: feet." Id. ## Opinion text J-A08016-19 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. EARL LOUIS HOLLINS Appellant No. 682 WDA 2018 Appeal from the Judgment of Sentence Entered November 29, 2017 In the Court of Common Pleas of Beaver County Criminal Division at No.: CP-04-CR-0002638-2015 BEFORE: PANELLA, P.J., STABILE, and McLAUGHLIN, JJ. MEMORANDUM BY STABILE, J.: FILED July 1, 2019 Appellant Earl Louis Hollins appeals from the November 29, 2017 judgment of sentence entered in the Court of Common Pleas of Beaver County (“trial court”), following his jury convictions for aggravated assault (serious bodily injury), assault on law enforcement, criminal attempt – murder, aggravated assault (bodily injury), aggravated assault (deadly weapon), firearms carried without license, simple assault, and recklessly endangering another person (“REAP”).1 Upon review, we affirm. The facts and procedural history underlying this case are undisputed. Briefly, in connection with the October 28, 2015 shooting of Alan Loskoch, ____________________________________________ 1 18 Pa.C.S.A. §§ 2702(a)(2), 2702.1(a), 901(a), 2502(a), 2702(a)(3), 2702(a)(4), 6106(a)(1), 2701(a)(1), and 2705, respectively. J-A08016-19 Harmony Township Police Officer (“Officer Loskoch”),2 Appellant was charged with the foregoing crimes. Following a preliminary hearing, all charges were held for court. On June 15, 2017, Appellant filed a “Petition for Retention of A Criminal Investigator,” arguing that he needed to investigate and interview prosecution and defense witnesses, potential eye witnesses and physical evidence. On June 16, 2017, the trial court denied Appellant’s petition for the appointment of a private investigator. On July 20, 2017, Appellant filed an “Omnibus Pre-trial Application,” containing, among other things, a request for discovery. Specifically, Appellant requested from the Commonwealth any police reports that Officer Loskoch created with respect to his prior encounters with Appellant and a list of Commonwealth’s trial witnesses. The trial court conducted a hearing on the omnibus motion on August 9, 2017, at which Appellant once again repeated his discovery requests for police reports and witness lists. See N.T. Suppression, 8/9/17 at 54-55 (“I know at this point the Commonwealth has not prepared a list of witnesses, but I would ask that at some point in time the Commonwealth be required to provide me with a list of those witnesses[.]”). On August 30, 2017, the trial court issued an order directing the Commonwealth to comply Pa.R.Crim.P. 573 “by producing the appropriate discovery.”3 ____________________________________________ 2 Appellant fired a round at Officer Loskoch, striking him in the chest area approximately two inches above his left nipple. But for the Kevlar vest, Officer Loskoch would have sustained serious bodily injury. 3Through that order, the trial court also denied Appellant’s suppression motion and petition for writ of habeas corpus. -2- J-A08016-19 On September 5, 2017, the day of jury selection, Appellant filed a “Supplemental Omnibus Pre-trial Application,” seeking, inter alia, to suppress alleged custodial statements he made to Casey E. Pelton (“Pelton”) while incarcerated in Beaver County Jail. Pelton claimed that Appellant had confessed to him. Appellant argued that his alleged statements to Pelton ran afoul, among other things, his constitutional rights guaranteed under the Sixth, Fifth and Fourteenth Amendments to the United States Constitution. The next day, on September 6, 2017, Appellant filed a “Supplemental Omnibus Pre-trial Application,” requesting, inter alia, a trial continuance. One of the reasons Appellant provided for seeking a continuance was the Commonwealth’s late disclosure of the confession evidence Pelton would present at trial. The trial court denied the supplemental and second supplemental motions. Following trial, which concluded on September 15, 2017, the jury found Appellant guilty of all charged crimes, including aggravated assault on law enforcement and firearms carried without license. On November 29, 2017, the trial court sentenced Appellant to twenty to forty years’ imprisonment for aggravated assault on law enforcement and a consecutive term of three to six years in prison for carrying firearms without license.4 On December 11, 2017, Appellant filed an “Omnibus Post-Sentence Motion,” seeking, inter alia, a new trial or a modification of his sentence. In ____________________________________________ 4 The trial court imposed no further penalty on the remaining counts. -3- J-A08016-19 support for his motion for a new trial, Appellant pointed out that he was denied appointment of a private investigator and that the Commonwealth committed various discovery violations. Specifically, Appellant argued that the Commonwealth revealed to him on the eve of trial that Officer Loskoch created no police reports detailing his prior encounters with Appellant. See Omnibus Post-Sentence Motion, 12/11/17, at 7. Additionally, Appellant argued that the Commonwealth disclosed to him merely two days prior to the start of trial that it intended to call to the stand Pelton, a jailhouse snitch who claimed Appellant confessed the crimes at issue to him.5 Id. at 9. Appellant asserted that he received relevant discovery material related to Pelton on the day of trial. Id. Because of the Commonwealth’s late disclosure of discovery materials, Appellant argued that he was prejudiced as he did not have a meaningful opportunity to prepare for trial. Appellant also challenged several evidentiary rulings made by the trial court. On April 10, 2018, the trial court denied Appellant’s post-sentence motion. Appellant timely appealed to this Court.6 ____________________________________________ 5 As detailed earlier, our review of the record does not reveal that Appellant sought to exclude Pelton’s testimony on the basis of the Commonwealth’s discovery violations. At worst, Appellant sought to suppress his own statements to Pelton based on alleged constitutional violations. At best, he requested a trial continuance. 6The trial court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The trial court, however, issued a Pa.R.A.P. 1925(a) opinion on July 10, 2018, wherein it adopted its April 10, 2018 memorandum denying Appellant’s post-sentence motion. -4- J-A08016-19 On appeal, Appellant presents seven issues for our review, reproduced verbatim here: I. Whether the trial court erred in denying an indigent defendant the constitutional right to effective legal representation by denying legal counsel the authority to retain private investigator resulting in a deprivation of pre- trial and trial investigative services leading to potential exculpatory evidence[.7] II. Whether the trial court erred in permitting [Officer] Loskoch to testify to all prior official contact he had with [Appellant] despite the Commonwealth’s tardy in-trial compliance with a discovery order by responding that no police reports of any such contact incidents existed leaving [Appellant] no time to investigate and marshal evidence to contradict and impeach such testimony[.8] III. Whether the trial court erred in permitting the Commonwealth to present the testimony of Pelton to an alleged jailhouse confession despite the Commonwealth’s tardy in-trial compliance with a discovery order by providing said notice of and related discovery material leaving [Appellant] no time to investigate and marshal evidence and locate and secure the attendance of witnesses who could ____________________________________________ 7 “Appointment of expert witnesses and the provision of public funds to hire them to assist in the defense against criminal charges are decisions within the trial court’s sound discretion and will not be reversed absent an abuse thereof.” Commonwealth v. Wholaver, 989 A.2d 883, 894 (Pa.2010) (citing Commonwealth v. Albrecht, 720 A.2d 693, 707 (Pa. 1998)). 8 It is settled: [a]dmission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record. Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015) (internal citations omitted). -5- J-A08016-19 effectively contradict and impeach said confession testimony[.9] IV. Whether the trial court erred in refusing to permit [Appellant] to elicit testimony from inmate Ikard regarding personal knowledge of the manner in which Pelton would benefit from his testimony against [Appellant.] V. Whether the trial court erred in refusing to permit [Appellant] to elicit testimony from a cosmetologist experienced in African American hairstyles regarding the different hairstyles for males[.] VI. Whether the trial court erred in refusing to instruct the jury (A) that eyewitness identifications, even if made with a high level of confidence, can be unreliable, (B) to receive [Officer] Loskoch’s identification testimony with caution as one of doubtful accuracy, (C) to consider the current probation and parole status of a witness and the potential incarceration for violations thereof in deciding the believability of the testimony of a witness, (D) to consider the probation or parole status of a witness at the time he first talked to police and the potential incarceration of the same in deciding whether or not to believe all or part of the testimony of the witness, (E) of the limits using inferences to prove crimes, (F) of no adverse inference from either (1) [Appellant’s] detention since his arrest or (2) Sheriff Deputies’ seated or standing near counsel table for [Appellant.10] ____________________________________________ 9 This particular issue is waived because, as indicated earlier, Appellant failed to raise it before the trial court. See 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.”); Pa.R.E. 103(a) (“[a] party may claim error in a ruling to admit or exclude evidence only: (1) if the ruling admits evidence, a party, on the record: (A) makes a timely objection, motion to strike, or motion in limine; and (B) states the specific ground, unless it was apparent from the context[.]”). 10 “Our standard of review when considering the denial of jury instructions is one of deference—an appellate court will reverse a court’s decision only when it abused its discretion or committed an error of law.” Commonwealth v. Cannavo, 199 A.3d 1282, 1286 (Pa. Super. 2018) (cleaned up). “Our key inquiry is whether the instruction on a particular issue adequately, accurately and clearly presents the law to the jury, and is sufficient to guide the jury in its deliberations.” Commonwealth v. Hamilton, 766 A.2d 874, 878 (Pa. Super. 2001) (brackets omitted). -6- J-A08016-19 VII. Whether the trial court abused its discretionary authority under the Sentence Code and/or the Sentence Guidelines in imposing an additional consecutive sentence on the firearms violation as unnecessary to comply with the criteria of the protection of the public and the gravity of the offense as it relates to the impact on the life of the victim and on the community and runs counter to the rehabilitative needs of [Appellant.11, 12] Appellant’s Brief at 5-6 (unnecessary capitalizations omitted). After careful review of the record, and the relevant case law, we conclude that the trial court accurately and thoroughly addressed the merits of Appellant’s issues. See Trial Court Opinion, 4/10/18, at 9-39. Accordingly, we affirm Appellant’s November 29, 2017 judgment of sentence. We further ____________________________________________ 11When reviewing a challenge to the trial court’s discretion, our standard of review is as follows: Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will. Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) (quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002)), appeal denied, 64 A.3d 630 (Pa. 2013). 12 We explained in Commonwealth v. Radecki, 180 A.3d 441 (Pa. Super. 2018) that “excessiveness claims premised on imposition of consecutive sentences do not raise a substantial question for our review.” Radecki, 180 A.3d at 468 (citations omitted). Accordingly, Appellant’s argument that the trial court abused its discretion in imposing a consecutive sentence for the firearms conviction sub judice, and thus rending his aggregate sentence excessive, does not raise a substantial question. Even if Appellant had presented a substantial question, we still would not conclude that he is entitled to relief based on the reasons outlined in the trial court’s April 10, 2018 opinion. See Trial Court Opinion, 4/10/18, at 36-39. -7- J-A08016-19 direct that a copy of the trial court’s April 10, 2018 opinion be attached to any future filings in this case. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/1/2019 -8- •l'.f Circulated 05/30/2019 02:16 PM � . -. IN THE COURT OF COMMON PLEAS OF BEA VER COUNTY PENNSYLVANIA CRIMINAL DIVISION COMMONWEALTH OF PENNSYLVANIA v. Case No: 2638 - 2015 ''• r' EARLL. HOLLINS Defendant, '. MEMORANDUM OPINION AND ORDER -,Ji KNAFELC,J. APRIL /(} , 2018 On September 15, 2017, following a jury trial held on September 5 through September 15, 20 I _7 before the Honorable Harry Knafelc, Defendant was convicted of one Count of Aggravated Assault (F 1 ), 1 one Count of Assault of Law Enforcement Officer (FI), 2 one Count of Criminal Attempt to Criminal Homicide (Fl),3 two Counts of Aggravated Assault (F2),4 one Count of Firearms not to be Carried without a License (F3),5 one Count of Simple Assault (M2),6 and_ one Count of Recklessly Endangering Another Person (M2).7 ' On November· 2�, 2017, Defendant was sentenced to an aggregate term of imprisonment of 23 to 46 years.8 , On December 11,, 2017, Defendant through trial counsel, Dennis Di Martini, filed a timely 1 motion for post-sentence relief pursuant to Rule 720 of the Pennsylvania Rules of Criminal J I Count I of the Information charged under. 18 Pa.C.S. §2702(a)(2) . 1 Count 2 of the Information charged under 18 Pa.CS. §2702. l(a). 3 Count 3 of the Information charged under 18 Pa.CS. §90I(a). 4 Count 4 of the Information �hargcd under 18 Pa.CS. §2702(a)(2); and Count 5 of the Information charged under 18 Pa.CS. §2702(a)( 4). 5 Count 6 of the Information �hargcd under 18 Pa.CS. §6l06(a)(l). 6 Count 7 of the Information charged under 18 Pa.CS. §2701(a)(l). 7 Count 8 of the Information �hargcd under 18 Pa.CS. §2705 8 Defendant was sentenced to' 20 to 40 years for Count 2, 3 to 6 years for Count 6, and no further penalty for the remaining Counts. Ii Procedure. Defendant's motion complains of multiple Discovery violations and multiple errors on rulings of evidence among other errors. Defendant requests the following relief: A. a motion in arrest of judgment; 8. a motion for a new trial; and C. a motion for modification of sentence. The Opinion of this Court and an appropriate Order shall follow. , ' DISPOSITION OF DEFENDANT'S REQUESTS FOR RELIEF A. Motion in Arrest of Judgment Defendant requests that the judgment entered against him and in favor of the t . Commonwealth be set aside inasmuch as the evidence was insufficient as a matter of law to have found Defendant guilty beyond a reasonable doubt. In reviewing a request for a motion in arrest of judgment, the Court considers whether the evidence offered by the Commonwealth was legally sufficient to support the verdict Commonwealth v. Froelich, 458 Pa. 104, 326 A.2d 364 , I. (1974). The evidence in this case supports the verdict, and the motion for arrest in judgment is denied. B. Motion for a New Trial Defendant argues that he is entitled to a new trial, stating that the evidence was insufficient to support a guilty verdict as to each of the charges and that the verdict was contrary to the weight of the evidence presented at trial. This Court disagrees. A trial court should award new trial on grounds that verdict is against the weight of evidence only when the verdict is so contrary to evidence as to shock one's sense of justice and make award of new trial imperative, so that right may be given another opportunity to prevail. Commonwealth v. Whitney, 511 Pa. 232, 239, 512 A.2d 1152, 1155� 1156 ( 1986). Where, as here, a finding of guilt is supported by the record, a motion for a new trial must be denied. Commonwealth v. Larew, 289 Pa. Super. 34, 37, 432 A.2d 1037, 1038 (1981). 2 \1 C. Motion for Modification of Sentence Imposition of proper sentence is matter vested in sound discretion of trial court. Com. v, High, 450 A.2d 158, 304 Pa.Super. 174, 1982; Com. v. Galloway, 448 A.2d 568, Super.1982; Com. v. Corson, 444 A.2d I 70, 298 Pa.Super. 51, 1982; Com. v. Ellison, 439 A.2d 136, 293 Pa.Super. 320 ( 1982). "[T]he extent of sentence is a matter within the discretion of the trial judge and will not be disturbed if within the statutory limits." Com. v. Zelnick, 202 Pa. Super. 129, 131, 195 A. 2d 171, 173 ( 1963). However, where the legislature has deemed to enact a mandatory minimum term of imprisonment, that statute must be followed and the standard guidelines in P .S. § 303.16(a) "shall not supersede the mandatory sentences provided." 42 Pa.C.S. § 9719. l(b). Where, as here, a mandatory minimum term of imprisonment was enacted by the legislature, the Court lacks the authority to sentence the Defendant to a term of imprisonment less than the statutory minimum, and the request must be denied. The rationale supporting the Court's decision to deny the requested relief is set out below. ISSUES Defendant raises the following arguments in support of his motions: A. Motion in Arrest of Judgment I. Insufficient evidence as to Count 3 and Count 6; 2. The verdict is against the weight of the evidence for all Counts. B. Motion for New Trial: I. Denial of Defendant's right to effective assistance of legal counsel; 2. Discovery violations; 3. Court erred in denying Defendant's pre-trial motions to suppress defendant's statements made to police outside Defendant's residence on October 29, 2015; 3 ·I 1 '\ j \\- I 4. Trial Court erred on evidentiary rulings at trial; I! 5. Trial Court erred by refusing to instruct the jury as to numerous instructions � 1 )1 I requested by Defendant. i I C. request for reconsideration as the sentence for Count 3 is overly harsh and is outside the 11 standard range. ,. I I • The Court will address each argument in seriatim. I I � I .. ii I RULES, ANALYSIS, AND CONCLUSIONS OF LAW } A. r-vfotion in Arrest of Judgment r: ); I t 1. Insufficient evidence as to Count 3 and Count 6 t: .,1., Defendant challenges the sufficiency of the evidence as to Count 3 (Criminal Attempt to Criminal Homicide} and Count 6 (Firearm not to be Carried without a License} and requests that ti l 11! I the judgment should be arrested arid a judgement of acquittal entered. i l When reviewing a sufficiency of the evidence claim, an appellate court must view aH the evidence and reasonable inferences therefrom in a light most favorable to II the Commonwealth as the verdict winner and must determine whether the evidence was such as to enable a fact finder to find that all of the elements of the offense were established beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and suhstitute our judgment for the fact-finder 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 iaw no probabiiity 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. I I' I Commonwealth v, Reed, 851 A.2d 958, 963 (Pa.Super. 2004) (internal citations and quotations omitted). ( 4 I a. Criminal Attempt to Criminal Homicide I j Defendant argues that even assuming Defendant was the individual who discharged a I firearm at Officer Loskoch, the only evidence introduced at trial was that one bullet struck the tti Kevlar vest of the officer which did not result in any .. serious bodily injury"; without evidence of Ii the buiiet striking a vital part of the victim's body causing "serious bodily injury" the evidence is · insufficient to infer a specific intent to kill. This Court disagrees. !: I' "For the Commonwealth to prevail in a conviction of criminal attempt to r I. commit homicide, it must prove beyond a reasonable doubt that the accused with a specific intent I,. f to kill took a substantial step towards that goal. Commonwealth v. Hobson, 413 Pa.Super. 29, f l \� 604 A.2d 7 I 7, 719-720 (1992). We have held that a specific intent to kill can be inferred from i I the circumstances surrounding an unlawful killing. Commonwealth v. Geathers, 847 A.2d 730, ! I I; I I I ! 73 7 (Pa. Super. 2004). Moreover, specific intent to kill may be inferred from the fact that the 1· I ! II accused used a deadly weapon to inflict injury to a vital part of the victim's body." Com. v. III i Robertson, 2005 PA Super 152, ,r 14, 874 A.2d I 200, 1207 (2005). i. Here, the Jury found that Defendant was the individual who discharged a firearm-a I t ,: deadly weapon-at Officer Loskoch. The evidence presented at trial showed that a round fired by Defendant struck the officer in the chest-a vital part of the body-and but for the protection of his Kevlar vest, the round would have caused serious bodily injury to the Officer. Defendant's argument that a conviction cannot stand without evidence that serious bodily injury was actuaJly inflicted is of no moment and is contrary to established Pennsylvania case I' attempt with intent to kill is completed by the discharging of a firearm at a person with intent to ! i · 5 kiii, despite the fortuitous circumstances that no injury is suffered." Id.) (citing Commonwealth ex rel. Robinson v. Baldi, 106 A.2d 689 (1954)).9 Therefore, Defendant's request fnr arrest of judgment l'lnti judgment nf acquittal as to l Count 3 (Criminal Attempt to Criminal Homicide) is denied. I\ b. Firearm Not to Be Carried without a License The offense of Firearm not to be Carried without a License is defined by 18 Pa.C.S.A. 1: i ) §6106(a)(I) as follows: I Except as pmvided in paragraph (2), any person who carries a firearm in any vehicle or Ii I any person who carries a firearm concealed on or about his person, except in his place I of abode or fixed placeof business, without a valid and lawfully issued license under ' this chapter commits a felony of the third degree. tI 1: Pursuant to Pennsylvania's Standard Jury Instruction 15.6106, in order for the Appellant to have been found guilty of §6016(a)(1 }, L'1e Commonwealth was required to prove the following t: 'I i three elements beyond a reasonable doubt: I ii • First, that the defendant: carried a firearm concealed on or about his person. � A "firearm" is any pistol or revolver witli a ba.rre! less than 15 inches or any pistol, \ revolver, rifle, or shotgun with an overall length of less than 26 inches. ) To be a "firearm," the specific object charged must either be operabie, that is, capabie of firing a projectile, or, if inoperable, that the defendant had under his control the 11 I means to convert the object into one capable of firing a shot. You may, if you choose, infer that the object was an operable firearm from the way it appears and feels; Ii • Second, that the defendant was not in his place of abode that is, his home or his fixed ! 9 T'h;� hnl..-lino ic r- ..,.,.nci-c-tPnt u,-ith PPnn-c-uh,'11ni�"'"c Ir.no ct�n..-lino i11r-icnn1A,:::i,n.r-P rPiPrtino th,:::i. ,l,:::i,f"pnc,:::i, r.f" f11rh1�I impo�sibilitybln Crimes Co�.e·§ 901(b),-it is provid;d that"[�: shaii not be a d�fensebto a 0 0 0 0 charge of attempt that \ because of a misapprehension of the circumstances it would have been impossible for the accused to commit the f crime attempted."§ I :63.lmpossibility defense, 14 West's Pa. Prac., Crim. Offenses & Defenses§ l :63 (6th ed.). 1 6 ( :\ ,- . I I l. JI' piace of business; and r t • Third, that the defendant did not have a valid and lawfully issued license for l, carrying the firearm, Defendant avers the only evidence produced at trial as to the element of concealment was that Officer Loskoch never saw any weapon prior to seeing a flash immediately prior to the bullet striking his vest. Defendant argues that without evidence of seeing the gun concealed as it is being displayed, the evidence is insufficient to infer concealment. The Court finds this t •, i:l.f!l,Ufficnt unpcr.sui:1:Sivc. "[t]he Commonwealth may sustain its burden by means of wholly circumstantial evidence" and "the fact that the evidence establishing a defendant's participation in a crime is circumstantial does not preclude a conviction where the evidence, coupled with the reasonable inferences drawn I I I I l. therefrom, overcomes the presumption of innocence." Com. v. Lopez, 2012 PA Super 161, 57 A.3d 74, 80 (2012) (quoting Commonwealth v. Stays, 40 A.3d 160, 167 (Pa.Super.2012) J ( citations omitted)). I· . Evidence at trial did establish that Officer Loskoch never saw a gun as he drove up towards the Defendant. But he testified that the defendant was wearing a hoodie and had his hands out of sight.10 When asked to see his hands, the individual puJled from his waist-line and fired three ! . shots.11 All of this evidence would be consistent with a person who is carrying a firearm r . concealed. The very nature of concealment is that the gun would not be plainly visible prior to it I ! being drawn. See, e.g., Com. v, Pressley, 433 Pa. 163, 166, 249 A.2d 345, 346 (1969)(finding evidence of concealment sufficient where officer testified "his partner saw [defendant] reach ro T.T., Vol. V, at 20. II Id. at 23-24. 7 1 I .l I t J under his sweater, a bus passed, and then the officers saw a gun on the ground at [defendant's] l: feet." Id.). {, Furthermore, if the jury helieveti th:it thf> OP.fPncl:int w;i,;: thf' ,;:hnnter :incl w:i,;: present nn thP street in question the night of the incident attempting to break into cars, the jury could reasonably l conciude that such a person wouid not openiy carry a firearm in his hand the entire time nor that I- I I he had a holster for open carry. It is far more likely for a person engaged in covert criminal . . - . behavior to conceal the instruments of crime he has with him so as not to draw unwanted attention. ln the instant case, with this circumstantial evidence before the jury, it would be I reasonable for the jury to infer the defendant was carrying the firearm concealed. Com. v. !·' I Horshaw, 23 7 Pa. Super. 76, 80, 346 A.2d 340, 342--43 ( 1975) (finding evidence sufficient where no direct evidence of concealment was presented to the jury, holding "The evidence was I 1 !' I sufficient to allow the jury to infer that the appellant concealed the gun." Id.). 2. The Verdict is Against the Weight of the Evidence for All Counts A trial court should find that the verdict is against the weight of evidence only when the verdict is so contrary to evidence as to shock one's sense of justice and make award of new trial imperative. Commonwealth v. Whitney, 511 Pa. 232, 239, 512 A.2d 1152, 1155-1156 (1986). ' i, A motion for a new trial alleging that the verdict was against the weight of the evidence is l Lf addressed to the discretion of the trial court. Com. v. Cousar, 928 A.2d 1025, 593 Pa. 204 t \ (2007), certiorari denied 128 S.Ct. 2429, 553 U.S. 1035, 171 L.Ed.2d 235, denial ofpost- r conviction relief affirmed in part, vacated in part 154 A.3d 287. ! ! ! where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will. Com. v, Dupre, 866 8 A.2d i 089 (Pa. Super. 2005), appeai denied 879 A.2d 781, 583 Pa. 694 (stating a trial court's exercise of discretion in finding that a verdict is or is not against the weight of the evidence is one of the lea,; .t a,; .s.ailahle reasons for granting or denying a nf'w trial). Thf' trial judge rlnP (J 0 c. - 1) \1 -::;:; .. " ., I uJ uJ ,, '. f �i I I .! 11 \! iin 11 l I • I II I I I'II ! I I· I t • 41 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4412987. Public record. Not legal advice.