The opinion
J-S40029-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOSEPH JAMES :
:
Appellant : No. 2335 EDA 2019
Appeal from the Judgment of Sentence Entered July 19, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003953-2018
BEFORE: SHOGAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED OCTOBER 14, 2020
Appellant, Joseph James, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his bench
trial conviction for persons not to possess firearms.1 We affirm.
In its opinion, the trial court sets forth the relevant facts of this case as
follows.
On April 14, 2018, around 10:30 P.M., Police Officer Allen
Reed responded to a police radio call with his partner, Police
Officer Brian Waltman, in the area of 3227 West Hilton
Street. Upon arrival, Officer Reed observed the front door
to 3227 West Hilton Street was open, but the screen door
was shut. The ground level of the residence was a basement
level, meaning in order to go through the front door of the
house, one would need to go up a flight of stairs.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 6105(a)(1).
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Officer Reed observed [Appellant], inside the house, coming
down the steps from the second floor to the first floor.
Officer Reed ordered, “Police come outside,” to which
[Appellant] responded by shutting the front door and
running inside the residence. Officer Reed and his partner
ran up the flight of stairs to get to the front door and
proceeded to enter the residence. Officer Reed observed a
young woman, Karima Williams, standing in the living room
and heard a set of footsteps rapidly going down the stairs
beneath him. He radioed other police officers to go towards
the back of the house to assist in apprehending [Appellant].
Officer Reed then ran out of the house and down Hilton
Street in an attempt to cut [Appellant] off. When Officer
Reed arrived at a breezeway close to the house, two other
police officers had apprehended [Appellant] and were
attempting to cuff him. After assisting in cuffing
[Appellant], Officer Reed and the other officers brought
[Appellant] back to the front of the house and placed him in
the back of a police car.
After [Appellant] was apprehended, Officer Reed and his
partner questioned Ms. Williams, who was crying and
appeared visibly upset with a high-pitched and upset tone
of voice. As Ms. Williams was being questioned, an older
woman who identified herself as Judy James, approached
the residence. Ms. James was also visibly distraught. She
too was crying, upset, and had a high-pitched tone of voice.
Further, she had difficulty getting her words out and seemed
like she was trying to catch her breath.
Ms. James informed Officer Reed that she was the owner of
the property and that she had gotten into a verbal argument
with her son, [Appellant]. During the verbal argument,
[Appellant] pulled out a firearm, pointed it at her, and began
waving it around inside the living room. After making this
statement, Ms. James gave verbal and written permission
for police officers to search her house. Officer Reed later
observed and recovered, from the ground floor, basement
area, a black and silver Smith and Wesson .40 caliber
firearm which was loaded with 1 live round and a magazine
with 11 [live] rounds. The firearm was found on top of a
pile of clothes in a lidless storage container. Officer Reed
also recovered 1 live round for a .40 caliber firearm in a
bedroom in the upstairs portion of the home.
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(Trial Court Opinion, filed October 30, 2019, at 1-3) (internal record citations
omitted).
Procedurally, the Commonwealth charged Appellant with, inter alia,
possession of an instrument of crime and persons not to possess firearms. On
April 25, 2019, Appellant proceeded to a bench trial only on the persons not
to possess firearms charge. At trial, Officer Reed testified about the events of
the day in question. The parties also stipulated that Appellant is disqualified
from carrying or possessing firearms. Immediately following trial, the court
convicted Appellant of persons not to possess firearms.
The court sentenced Appellant on July 19, 2019, to three (3) to six (6)
years’ incarceration, plus four (4) years’ probation. On July 29, 2019,
Appellant filed a timely notice of appeal.2 The court ordered Appellant on
August 30, 2019, to file a concise statement of errors complained of on appeal
per Pa.R.A.P. 1925(b). On September 17, 2019, Appellant filed an application
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2 “A direct appeal in a criminal proceeding lies from the judgment of sentence.”
Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa.Super. 2007), appeal
denied, 599 Pa. 691, 960 A.2d 838 (2008). Here, Appellant indicated in his
notice of appeal that he was appealing from the April 25, 2019 verdict.
Appellant’s appeal, however, correctly lies from the judgment of sentence.
See id. Notwithstanding this technical error, we deem Appellant’s appeal as
timely filed from the judgment of sentence. See Commonwealth v. Claffey,
80 A.3d 780, 782-83 (Pa.Super. 2013), appeal denied, 624 Pa. 680, 86 A.3d
231 (2014) (accepting appellant’s timely notice of appeal mistakenly listing
verdict as appealed-from order, and deeming appellant’s appeal as from
judgment of sentence).
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for an extension of time to file a concise statement due to the unavailability
of the notes of testimony. Appellant filed a Rule 1925(b) statement on
October 23, 2019.3
Appellant raises the following issues for our review:
Was the evidence insufficient to prove Appellant committed
the crime of possession of a firearm by a prohibited person
because the Commonwealth failed to prove beyond a
reasonable doubt the required element of possession[?]
That element was not established either in actuality or
constructively because the authorities found the gun not on
Appellant’s person but in the basement of a residence that
was not Appellant’s where other persons resided who had
access to the gun. The evidence was also not sufficient
because the Commonwealth did not prove that Appellant
exercised dominion and control over the gun or that
Appellant acted with the intent to possess the gun[.]
Did the trial court commit an abuse of discretion by
overruling objections to testimony from Officer Reed
concerning what Judy James told him because Ms. James’
comments to the officer constituted inadmissible hearsay
and did not meet the requirements of [the] excited
utterance exception to the hearsay rule[?] That is because
the comments were testimonial in nature given that they
were the product of questioning and were not made
spontaneously and because there was no ongoing
emergency taking place when the alleged comments were
made because Appellant had already been apprehended.
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3 The record does not indicate whether the trial court granted Appellant’s
extension request. In any event, this Court may address the merits of a
criminal appeal, where a defendant files an untimely Rule 1925(b) statement,
if the trial court had adequate opportunity and chose to prepare an opinion
addressing the issue(s) raised on appeal. Here, the trial court issued an
opinion addressing Appellant’s complaints. Therefore, we decline to consider
Appellant’s issues waived, even if he filed an untimely Rule 1925(b)
statement. See Commonwealth v. Burton, 973 A.2d 428, 433 (Pa.Super.
2009) (en banc) (allowing for immediate review under these circumstances).
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(Appellant’s Brief at 3).
In his first issue, Appellant argues the evidence established merely that
Appellant was in the proximity of where police found the firearm. Appellant
emphasizes that no forensic evidence connected Appellant to the gun, and
that the evidence did not indicate the gun in the basement was the same gun
Appellant allegedly brandished at Ms. James. Appellant asserts there is no
evidence that Appellant lived in Ms. James’ house or that anything in the
basement was connected to Appellant. Appellant insists other individuals had
access to the basement, and that his brief presence in the basement did not
establish any association with the gun. Appellant submits the record did not
show Appellant knew the gun existed, knew it was in the basement, or
intended to control the gun. Appellant contends the Commonwealth
presented no testimony from any witness who saw Appellant with a gun.
Appellant concludes the trial evidence was insufficient to support his firearms
conviction. We disagree.
When reviewing a challenge to the sufficiency of the evidence supporting
a conviction, we analyze:
[W]hether the evidence, viewed in the light most favorable
to the Commonwealth as verdict winner, is sufficient to
enable a reasonable [fact finder] to find every element of
the crime beyond a reasonable doubt. See
Commonwealth v. Cousar, 593 Pa. 204, 217, 928 A.2d
1025, 1032 (2007)…. In applying this standard, we bear in
mind that the Commonwealth may sustain its burden by
means of wholly circumstantial evidence; that the entire
trial record should be evaluated and all evidence received
considered, whether or not the trial court’s rulings thereon
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were correct; and that the trier of fact, while passing upon
the credibility of witnesses and the weight of the proof, is
free to believe all, part, or none of the evidence. See id.,
928 A.2d at 1032–33; Commonwealth v. Chmiel, 585 Pa.
547, 574, 889 A.2d 501, 517 (2005)[, cert. denied, 549 U.S.
848, 127 S.Ct. 101, 166 L.Ed.2d 82 (2006)].
Commonwealth v. Reed, 605 Pa. 431, 436, 990 A.2d 1158, 1161 (2010),
cert. denied, 562 U.S. 1020, 131 S.Ct. 549, 178 L.Ed.2d 402 (2010) (internal
citation omitted).
The Uniform Firearms Act provides, in relevant part, 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)(1).
“When contraband is not found on the defendant’s person, the
Commonwealth must establish constructive possession….” Commonwealth
v. Jones, 874 A.2d 108, 121 (Pa.Super. 2005). “Constructive possession is
the ability to exercise conscious control or dominion over the illegal substance
and the intent to exercise that control.” Id.
Dominion and control means the defendant had the ability
to reduce the item to actual possession immediately…or was
otherwise able to govern its use or disposition as if in
physical possession. ... Mere presence or proximity to the
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contraband is not enough. Constructive possession can be
established by inferences derived from the totality of the
circumstances.
Commonwealth v. Peters, ___ Pa. ___, ___, 218 A.3d 1206, 1209 (2019)
(internal citations omitted).
Moreover, a witness’ testimony alone is sufficient to prove possession.
See, e.g., Commonwealth v. Antidormi, 84 A.3d 736, 757 (Pa.Super.
2014), appeal denied, 626 Pa. 681, 95 A.3d 275 (2014) (determining witness’
testimony alone was sufficient evidence to prove possession element under
Section 6105(a)(1)).
Instantly, the trial court found the Commonwealth presented sufficient
evidence to sustain Appellant’s conviction, reasoning:
In the instant matter, Ms. James gave a statement to Officer
Reed in which she stated that she and [Appellant] had
gotten into a verbal argument, [Appellant] pointed a gun at
her, and began [waving] the gun around. … Ms. James had
no reason to lie about [Appellant], her son, possessing a
gun when she gave her statement to police. Additional
corroborating evidence supporting Ms. James’ testimony,
was the testimony of Officer Reed that he recovered a
firearm in a lidless, plastic storage container filled with
clothing located in the exact area he had observed
[Appellant] go downstairs and where he had heard the rapid
footsteps of [Appellant]. There was no evidence that
another person was in that location, the basement area, the
area that [Appellant] fled and where the gun was recovered.
Based on these pieces of evidence, the Commonwealth has
proven beyond a reasonable doubt that [Appellant] had
knowledge of the firearm and he had previously exercised
control over the firearm as evidenced by Ms. James’
statement to Officer Reed. These facts, although
circumstantial, are more than sufficient evidence to support
the [firearms] conviction beyond a reasonable doubt; i.e.,
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[Appellant] had knowledge, dominion and control of the
firearm recovered from the lidless storage container and he
had previously exercised control over the firearm as
evidenced by his threat against Ms. James. For the reasons
discussed above and in viewing the evidence in favor of the
Commonwealth as verdict winner, there is sufficient
evidence to support the [persons not to possess firearms]
conviction.
(Trial Court Opinion at 4-5) (internal record citation omitted). We agree with
the trial court’s conclusion.
Although Appellant argues that Ms. James’ statement to Officer Reed
was inadmissible, for purposes of a sufficiency analysis we consider all
evidence presented at trial even if the court erred in admitting it.4 See Reed,
supra; Cousar, supra. Officer Reed testified at trial that Ms. James told him
Appellant pointed a gun at her and waved the gun around the living room.
Even without consideration of the circumstances surrounding the officer’s
ultimate recovery of a gun in the house from which he saw Appellant flee, Ms.
James’ statement alone was sufficient to establish possession. See
Antidormi, supra. As well, the parties stipulated that Appellant was
prohibited from possessing a firearm. Viewed in the light most favorable to
the Commonwealth as verdict winner, the evidence was sufficient to establish
Appellant’s conviction for persons not to possess firearms. See Reed, supra;
18 Pa.C.S.A. § 6105(a)(1).
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4We address the admissibility of Ms. James’ statement in our discussion of
Appellant’s second issue on appeal.
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In his second issue, Appellant argues the trial court improperly admitted
into evidence Ms. James’ statement to Officer Reed. Appellant asserts that
the record does not establish how much time elapsed between when the
disturbing event occurred and when Ms. James spoke to Officer Reed.
Appellant submits Ms. James made her statement to Officer Reed in narrative
form. Appellant claims the evidence established no basis for Ms. James’
reliability. Appellant contends Ms. James’ statement failed to satisfy the
excited utterance exception to the rule against hearsay. Appellant concludes
Ms. James’ disclosure to Officer Reed constituted inadmissible hearsay, and
this Court should grant him a new trial.5 We disagree.
Our standard of review of a trial court’s admission or exclusion of
evidence is well established and very narrow:
Admission of evidence is a matter within the sound
discretion of the trial court, and will not be reversed absent
a showing that the trial court clearly abused its discretion.
Not merely an error in judgment, an abuse of discretion
occurs when the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill-will, as shown by
the evidence on record.
Commonwealth v. Montalvo, 604 Pa. 386, 403, 986 A.2d 84, 94 (2009),
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5 To the extent Appellant raises on appeal a Sixth Amendment Confrontation
Clause argument, that claim is waived for failure to specify it in his Rule
1925(b) statement. See Commonwealth v. Hansley, 24 A.3d 410
(Pa.Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d 1275 (2011)
(explaining vague concise statement is functional equivalent of no statement
at all; failure to specify claim of error in concise statement constitutes waiver
on appeal).
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cert. denied, 562 U.S. 857, 131 S.Ct. 127, 178 L.Ed.2d 77 (2010) (internal
citations and quotation marks omitted). “[A] discretionary ruling cannot be
overturned simply because a reviewing court disagrees with the trial court’s
conclusion.” Commonwealth v. O’Brien, 836 A.2d 966, 968 (Pa.Super.
2003), appeal denied, 577 Pa. 695, 845 A.2d 817 (2004) (internal citation and
quotation marks omitted).
Pennsylvania Rule of Evidence 801 defines hearsay as follows:
Rule 801. Definitions That Apply to This Article
(a) Statement. “Statement” means a person’s oral
assertion, written assertion, or nonverbal conduct, if the
person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made
statement.
(c) Hearsay. “Hearsay” means a statement that
(1) the declarant does not make while testifying at the
current trial or hearing; and
(2) a party offers in evidence to prove the truth of the
matter asserted in the statement.
Pa.R.E. 801.
Pennsylvania Rule of Evidence 803 sets forth exceptions to the hearsay
rule, in pertinent part, as follows:
Rule 803. Exceptions to the Rule Against Hearsay—
Regardless of Whether the Declarant Is Available as a
Witness
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a
witness:
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* * *
(2) Excited Utterance. A statement relating to a
startling event or condition, made while the declarant was
under the stress of excitement that it caused. …
* * *
Pa.R.E. 803(2).
Our Supreme Court has explained:
As is well-settled, excited utterances fall under the common
law concept of res gestae. Res gestae statements, such as
excited utterances, present sense impressions, and
expressions of present bodily conditions are normally
excepted out of the hearsay rule, because the reliability of
such statements are established by the statement being
made contemporaneous with a provoking event. While the
excited utterance exception has been codified as part of our
rules of evidence since 1998, see Pa.R.E. 803(2), the
common law definition of an excited utterance remains
applicable, and has been often cited by this Court:
[A] spontaneous declaration by a person whose mind
has been suddenly made subject to an overpowering
emotion caused by some unexpected and shocking
occurrence, which that person has just participated in
or closely witnessed, and made in reference to some
phase of that occurrence which [s]he perceived, and
this declaration must be made so near the occurrence
both in time and place as to exclude the likelihood of
its having emanated in whole or in part from h[er]
reflective faculties.... Thus, it must be shown first,
that [the declarant] had witnessed an event
sufficiently startling and so close in point of time as to
render her reflective thought processes inoperable
and, second, that her declarations were a
spontaneous reaction to that startling event.
The circumstances surrounding the statements may be
sufficient to establish the existence of a sufficiently startling
event.
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Commonwealth v. Murray, 623 Pa. 506, 540-41, 83 A.3d 137, 157-58
(2013) (internal citations omitted).
In determining whether a statement is an excited utterance,
we have considered the following:
1) whether the declarant, in fact, witnessed the
startling event; 2) the time that elapsed between the
startling event and the declaration; 3) whether the
statement was in narrative form (inadmissible); and,
4) whether the declarant spoke to others before
making the statement, or had the opportunity to do
so.
These considerations provide the guarantees of
trustworthiness which permit the admission of a hearsay
statement under the excited utterance exception. It is
important to note that none of these factors, except the
requirement that the declarant have witnessed the startling
event, is in itself dispositive. Rather, the factors are to be
considered in all the surrounding circumstances to
determine whether a statement is an excited utterance.
Commonwealth v. Keys, 814 A.2d 1256, 1258 (Pa.Super. 2003) (internal
citations and quotation marks omitted) (emphasis omitted).
Pennsylvania courts “have not established a bright line rule regarding
the amount of time that may elapse between the declarant’s experience and
her statement.” Commonwealth v. Gray, 867 A.2d 560, 570 (Pa.Super
2005), appeal denied, 583 Pa. 694, 879 A.2d 781 (2005). “Rather, the crucial
question, regardless of time lapse, is whether, at the time the statement is
made, the nervous excitement continues to dominate while the reflective
processes remain in abeyance.” Id. at 570-71 (internal quotation marks
omitted). Furthermore, “a statement, which otherwise qualifies as an excited
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utterance, is not precluded from falling within the excited utterance exception
to the hearsay rule when made in response to questioning.” Commonwealth
v. Colon, 102 A.3d 1033, 1039 (Pa.Super. 2014), appeal denied, 631 Pa. 710,
109 A.3d 678 (2015).
Instantly, the trial court addressed Appellant’s hearsay claim as follows:
Here, Officer Reed testified that Ms. James’ statement was
not the result of any detailed questioning or prolonged
statement. In fact, Ms. James approached the officer and
started speaking to him. Officer Reed observed that she
was visibly distraught, she was crying, upset, speaking in a
high-pitched voice, and she had a difficult time getting her
words out, like she was trying to catch her breath. These
observations by Officer Reed support that Ms. James, in
fact, very recently witnessed a startling event and was still
under the effect of that startling event when she spoke to
Officer Reed and gave an account of what had transpired
with her son. Upon consideration of the factors in
determining whether an inadmissible hearsay statement
should be admitted, the trial court determined that Ms.
James’ statement was an excited utterance. Thus, it was
properly admitted as evidence by the trial court. The trial
court did not err by overruling [Appellant]’s objection to
testimony by Officer Reed regarding [Ms.] James’
statement.
(Trial Court Opinion at 7). We agree. The trial evidence showed that Ms.
James’ alarming occurrence still greatly influenced her when she encountered
Officer Reed. See Murray, supra; Gray, supra. We see no reason to disrupt
the court’s evidentiary ruling under these circumstances. See Montalvo,
supra; Pa.R.E. 803(2). Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2020
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