Opinion
J-S06045-17 No. 2151 EDA 2016
04-24-2017
COMMONWEALTH OF PENNSYLVANIA v. ODE SAVAGE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence June 17, 2016 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001222-2016 BEFORE: MOULTON, RANSOM, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Ode Savage, appeals from the judgment of sentence of four to ten years' imprisonment entered in the Philadelphia County Court of Common Pleas following his bench trial convictions of three violations of the Uniform Firearms Act ("VUFA") and additional drug and traffic offenses. Appellant challenges the sufficiency of the evidence for the VUFA convictions. We affirm.
18 Pa.C.S. §§ 6105(a)(1) (persons not to possess firearms), 6106(a)(1) (firearms not to be carried without a license), 6108 (carrying firearms in public in Philadelphia).
We adopt the facts and procedural history set forth by the trial court's opinion. See Trial Ct. Op., 9/7/16, at 1-3. In this timely appeal, Appellant raises the following issue for review: "[w]as the evidence insufficient to support the VUFA offenses?" Appellant's Brief at 3. Appellant argues the evidence was insufficient because the Commonwealth failed to establish he constructively possessed the firearm located in the backseat of the vehicle he was driving. Appellant contends the evidence did not prove he knew the firearm was in the vehicle, or that he intended to possess or exercise dominion over the firearm. He emphasizes that the firearm was in the back seat of the vehicle and was also accessible to the individual who exited from the front passenger seat of the vehicle and fled on foot during the traffic stop. Appellant, thus, claims that this Court should vacate his judgment of sentence. We conclude no relief is due.
We note that the trial court ordered Appellant to file a Rule 1925(b) statement by August 23, 2016. On August 24, 2016, Appellant's former counsel, Jennifer Ann Santiago, Esq. ("former counsel"), filed an untimely Rule 1925(b) statement raising, inter alia, the sufficiency of the evidence issue presented in this appeal. The following day, former counsel filed a Rule 1925(c) statement of intent to seek withdrawal from representation. The trial court issued a responsive opinion on September 7, 2016, in which it deemed all of Appellant's issues waived for failure to file a timely Rule 1925(b) statement. Nevertheless, the court addressed the merits of the issues raised in the untimely statement. This Court subsequently permitted former counsel to withdraw, and, on remand, the trial court appointed current counsel, John Belli, Esq. ("counsel"), to represent Appellant on appeal. Thereafter, counsel filed with this Court a petition to remand to file a Rule 1925(b) statement to preserve Appellant's right to appellate review of all of his issues. This Court denied Appellant's petition, however, "[i]in light of the fact that the trial court opinion addressed issues raised in a statement pursuant to Pa.R.A.P. 1925(b) filed by former counsel[.]" Order, 11/2/16; Cf. Commonwealth v. Burton , 973 A.2d 428, 433 (Pa. Super. 2009) (en banc) (allowing for immediate review where the trial court received the appellant's untimely statement but ultimately addressed the issues in a written opinion). Therefore, despite Appellant's untimely Rule 1925(b) statement, we shall address the merits of his sufficiency issue on appeal. Lastly, we note that Appellant has abandoned the claims in his Rule 1925(b) statement that the evidence was insufficient to support the conviction for the drug offense, that the verdict was against the weight of the evidence, and that the sentence was manifestly excessive. See Commonwealth v. Dunphy , 20 A.3d 1215, 1218 n.2 (Pa. Super. 2011). --------
It is well settled that:
[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction . . . does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, it must determine simply whether the evidence believed by the fact-finder was sufficient to support the verdict.Commonwealth v. Ratsamy , 934 A.2d 1233, 1235-36 (Pa. 2007) (citation and quotation marks omitted).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Barbara A. McDermott, we conclude the trial court's opinion comprehensively discusses and properly disposes of the sole issue presented. See Trial Ct. Op. at 4-6 (finding the totality of the circumstances supported the conclusion that Appellant was in constructive possession of the firearm, as it was discovered within arms' reach of Appellant in the back seat of the vehicle he was driving). Accordingly, we affirm on the basis of the trial court's opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/24/2017
Image materials not available for display.