Opinion
385 MDA 2023 J-S29005-23
10-02-2023
COMMONWEALTH OF PENNSYLVANIA v. JUSTIN MATTHEW LEPPO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered December 21, 2022 In the Court of Common Pleas of York County Criminal Division at CP-67-CR-0004392-2021
BEFORE: MURRAY, J., KING, J., and COLINS, J. [*]
MEMORANDUM
MURRAY, J.
Justin Matthew Leppo (Appellant) appeals from the judgment of sentence imposed after a jury convicted him of persons not to possess firearms. Also, Appellant's appointed counsel, Anthony J. Tambourino, Esquire (Counsel), has filed a petition to withdraw as counsel and accompanying brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Upon review, we grant Counsel's request and affirm the judgment of sentence.
The evidence adduced at Appellant's jury trial established that on August 17, 2021, Hanover Borough police went to a residence at 133 Meade Avenue (the property), to serve Appellant with a protection from abuse (PFA) order.N.T., 10/20/21, at 100-01. Hanover Borough Police Officer Timothy Mease (Officer Mease) testified that he went to the property because it "was the address listed on the [PFA] paperwork." Id. at 100. Officer Mease knocked on the door and Appellant eventually answered. Id. at 101. Officer Mease described Appellant as the only occupant, and noted that Appellant was barefoot and had personal belongings at the property. Id. at 106, 145-46.
The property was rented by Appellant's ex-girlfriend, Kathryn Weissman (Weissman). N.T., 10/20/21, at 239.
The jury was not provided with details such as the identity of the PFA petitioner and the nature of the order.
Officer Mease did not describe the personal belongings that "lead us to believe [Appellant] was living there." N.T., 10/20/21, at 107.
Officer Mease served Appellant with the PFA order and informed him that
the paperwork basically evicted [Appellant] from the [property]. The paperwork also required that … [Appellant] relinquish any firearms or weapons that may be inside the [property].Id. at 102; see also id. (Officer Mease stating: "I actually read [Appellant] … verbatim the [PFA weapon] relinquishment paperwork."). Officer Mease stated that he told Appellant the police were "looking for a firearm." Id.; see also id. at 104 (Officer Mease clarifying police "were there just to have the guns turned over to us. It wasn't … a criminal investigation at that point.").
The parties stipulated that Appellant was legally prohibited from possessing a firearm due to a prior felony drug conviction. Id. at 82, 121-22; see also id. at 94 (Appellant's counsel stating during opening argument, "the defense concedes [Appellant] was a person not to possess" firearms). Officer Mease testified that Appellant told him there was a rifle at the property, but "[Appellant] didn't know where it was, and then he … pointed towards the door." Id. at 102-03. Appellant told Officer Mease the rifle "was his dad's and it came from the farm." Id. at 103. Officer Mease's colleague, Hanover Borough Police Sergeant Joshua Brady (Sergeant Brady), subsequently entered the property and retrieved a Noble .22 caliber rifle stored inside a chest on the first floor. Id. at 116. Police tested the rifle and found it was operable. Id. at 108.
Officer Mease explained the PFA order did not "permanently ban[] Appellant from getting th[e] firearm back[.]" Id. at 103. According to Officer Mease, Appellant asked "how he would be able to get the firearm back." Id. at 104. Officer Mease advised Appellant he would have to contact the York County Sheriff's Department. Id.
On cross-examination, Officer Mease confirmed that police did not attempt to retrieve any fingerprints or DNA evidence from the firearm, id. at 137-39; there was no mail addressed to Appellant at the property, id. at 147-48; and when Officer Mease escorted Appellant off the property, Appellant did not take anything besides his shoes and cell phone. Id. at 165.
After the Commonwealth presented its case, the defense made an oral motion for judgment of acquittal, claiming "the Commonwealth has [not] established its burden [of proving Appellant] possessed [the] firearm[.]" Id. at 186; see also id. at 187 (defense arguing Appellant "was merely at the [property]."). The trial court denied Appellant's motion and trial resumed. Id.
Appellant testified in his defense. He claimed when he interacted with police on August 17, 2021, his living situation was inconsistent and he stayed at the property "two, maybe three nights a week." Id. at 206. According to Appellant, he did not reside at the property, and received mail at 845 York Street. Id. at 204-05. Appellant also denied handling the firearm police recovered from the property. Id. at 210-11. But see also id. at 211 (Appellant confirming his father owned the firearm, which Appellant had seen before). On cross-examination, Appellant admitted he stayed at the property two or three nights a week over a two-month period. Id. at 215. He also admitted to answering the door when Officer Mease knocked. Id. at 217. The prosecutor referred to video evidence, taken from Officer Mease's body camera, that was played for the jury and depicted Appellant at the property with food and a video gaming chair nearby. Id. at 218. Appellant stated: "I made myself comfortable at that time, yes." Id.
Appellant's counsel informed the trial court prior to trial, "it's our position [Appellant] was not living at the [property] and [Appellant] was couch surfing." Id. at 4; see also id. at 93 (defense counsel stating during opening: "Officer Mease assumed [Appellant] was living at the [property]…. However, we believe that the evidence is going to demonstrate [Appellant] was homeless. He was transient.").
The defense also presented testimony from Shawnacey Booz (Booz), who relayed that she was familiar with Appellant as her former neighbor. Id. at 180. Booz stated that Appellant did not have a permanent residence, and "he would come and go." Id. at 181.
The Commonwealth called Sergeant Brady and Appellant's ex-girlfriend, Weissman, for rebuttal. Sergeant Brady testified he entered the property with Weissman after the police interaction with Appellant, and with Weissman's permission, retrieved the firearm from inside a chest located on the first floor. Id. at 228. Weissman testified she had rented the property and permitted Appellant to reside there. Id. at 239. She also testified that the firearm did not belong to her, and she had seen Appellant handle it on two prior occasions. Id. at 239-40.
The jury found Appellant guilty of persons not to possess firearms. Id. at 280. On December 21, 2022, the trial court imposed a standard-guidelines-range sentence of 5 - 10 years in prison. Appellant filed a post-sentence motion (PSM) through Counsel on February 7, 2023. Appellant asked the trial court to vacate his sentence and order a new trial because "the jury's verdict shocks the conscience" and was against the weight of the evidence. PSM, 2/7/23, ¶ 5. The trial court denied the PSM on February 8, 2023. This timely appeal followed.
The trial court permitted Appellant's public defender to withdraw from representation. Counsel is conflict counsel.
On March 9, 2023, the trial court ordered Appellant to file a concise statement of errors pursuant to Pa.R.A.P. 1925(b). On April 11, 2023, Counsel filed a statement of intent to file an Anders brief, pursuant to Pa.R.A.P. 1925(c)(4), in lieu of a Rule 1925(b) statement. Statement of Intent, 4/11/23, ¶ 3 (Counsel opining "a direct appeal would be frivolous."). The trial court issued a Rule 1925(a) opinion, consisting of one paragraph, "urg[ing] affirmation of [Appellant's] sentence…." Trial Court Opinion, 4/17/23, at 1. The trial court referenced an excerpt from the transcript of Appellant's sentencing hearing, and stated the court "sees no reason to amend or change the rationale for the [s]entencing [o]rder…." Id.; see also id. Ex. A (sentencing transcript excerpt). The trial court did not address the weight of the evidence claim Appellant raised in the PSM.
On May 30, 2023, Counsel filed the Anders brief and a petition to withdraw as counsel. Appellant did not file a pro se brief or otherwise respond to Counsel's petition to withdraw.
We address Counsel's petition to withdraw before reaching the merits of the issues raised in the Anders brief. See Commonwealth v. Strasser, 134 A.3d 1062, 1065 (Pa. Super. 2016) ("we do not consider the merits of an issue raised in an Anders brief without first reviewing a request to withdraw"). Counsel seeking to withdraw from representation must (1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; (2) furnish a copy of the brief to the defendant; and (3) advise the defendant that he or she has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court's attention. Id. (citing Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc)).
Here, Counsel states he has conducted a thorough review of the record and concluded Appellant's appeal is frivolous, and that Appellant cannot raise any non-frivolous claim. Petition to Withdraw, 5/30/23, ¶ 3. Additionally, Counsel indicates that he notified Appellant of his request to withdraw, furnished Appellant with copies of the petition and Anders brief, and advised Appellant of his right to retain new counsel or proceed pro se to raise any claims he believes worthy of this Court's attention. Id. ¶ 5 (citing Ex. A (Counsel's letter to Appellant dated 5/30/23)). Accordingly, Counsel has satisfied the procedural requirements of Anders.
Counsel has attached to the petition to withdraw a copy of the letter he sent to Appellant informing him of his rights, as required under Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005).
We next determine whether the Anders brief meets the requirements set forth in Santiago, supra. In the Anders brief that accompanies counsel's petition to withdraw, counsel must
(1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth
counsel's conclusion that the appeal is frivolous; and (4) state counsel's reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.Santiago, 978 A.2d at 361.
Counsel's thorough brief competently details the facts and procedural history of the case, with citation to the record. Anders Brief at 6-14. Additionally, Counsel discusses two issues that could arguably support Appellant's appeal, and explains Counsel's reasons for concluding both issues are wholly frivolous. Id. at 16-21. Counsel has complied with the requirements of Santiago and Anders.
We next review the merits of the issues in the Anders brief. We also conduct an independent review of the record to determine whether Appellant's appeal is in fact wholly frivolous. See Santiago, 978 A.2d at 358; see also Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc) ("part and parcel of Anders is our Court's duty to review the record to insure no issues of arguable merit have been missed or misstated.").
The Anders brief identifies two claims on Appellant's behalf:
1. The Commonwealth presented insufficient evidence to convict Appellant beyond a reasonable doubt of constructive possession of a firearm.
2. The trial court erred when it denied a new trial when the weight of the evidence demonstrated Appellant did not constructively possess the firearm.Anders Brief at 5.
Appellant first claims the evidence is insufficient to support his conviction because the Commonwealth failed to prove he possessed the firearm police found at the property. See id. at 16-18. According to Appellant, facts "arguably support [a finding of] insufficient evidence [and a finding that Appellant] did not live at the [property] but was only staying there a few days a week"; and Weissman rented the property and "may have brought the firearm there." Id. at 18 (citing N.T., 10/20/21, at 229, 230).
The Commonwealth counters that the evidence was sufficient to prove beyond a reasonable doubt Appellant constructively possessed the firearm:
Between the possession of the firearm, and [Appellant's] verbal statements to [] [O]fficer [Mease] that it belonged to [Appellant's] father and [Appellant] brought the firearm from his father's farm, it is clear that [Appellant] exercised control and dominion over the rifle despite having convictions that classified him as a person not to possess firearm.Commonwealth Letter in Lieu of Brief at 2.
When reviewing a sufficiency challenge,
we evaluate the record in the light most favorable to the Commonwealth as verdict winner, giving it the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Any doubt about the defendant's guilt is to be resolved by the fact-finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. Additionally, the Commonwealth may sustain its burden solely by means of circumstantial evidence.Commonwealth v. Lake, 281 A.3d 341, 346 (Pa. Super. 2022) (citations and quotation marks omitted). A challenge to the sufficiency of the evidence "presents a question of law, for which our standard of review is de novo and our scope of review is plenary." Commonwealth v. Packer, 168 A.3d 161, 166 (Pa. 2017).
To convict Appellant of persons not to possess firearms, the Commonwealth was required to prove beyond a reasonable doubt that Appellant: 1) was previously convicted of an enumerated offense; and 2) possessed a firearm. 18 Pa.C.S.A. § 6105. Here, only the second element is at issue due to Appellant's concession about his prior felony conviction.
Possession can be established "by proving actual possession, constructive possession, or joint constructive possession." Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018) (citation omitted); Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) ("Illegal possession of a firearm may be shown by constructive possession."). Constructive possession means the defendant had an ability to exercise conscious dominion over the contraband, that is, that he had the power to control the contraband and the intent to exercise that control. Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa. Super. 2014) (en banc); see also Parrish, 191 A.3d at 36 ("Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement." (citation omitted)). "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." Commonwealth v. Peters, 218 A.3d 1206, 1209 (Pa. 2019) (citation omitted). However, a defendant's mere presence at the scene does not establish constructive possession of a weapon. Vargas, 108 A.3d at 869; Parrish, 191 A.3d at 37 (stating that location and proximity of an actor to the weapon alone is not conclusive of guilt).
The "power and intent to control the contraband does not need to be exclusive to the defendant," and "constructive possession may be found in one or more actors where the item [at] issue is in an area of joint control and equal access." Vargas, 108 A.3d at 868 (citation and quotations omitted); Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996) ("two actors may have joint control and equal access and thus both may constructively possess the contraband."). "[A]s with any other element of a crime, constructive possession may be proven by circumstantial evidence." Id. at 36-37 (citation and brackets omitted). This Court has stated that to "aid application, … constructive possession may be established by the totality of the circumstances." Parrish, 191 A.3d at 36 (citation omitted).
Here, under the totality of the circumstances, and drawing all inferences in favor of the Commonwealth as the law requires, we conclude the evidence was sufficient for the jury to find beyond a reasonable doubt that Appellant possessed the firearm. The jury considered evidence that when police knocked on the door to the property, Appellant was the only occupant and answered the door, barefoot, and had food nearby. N.T., 10/20/21, at 101, 107, 145-46, 218; see also id. at 218 (Appellant conceding he was "comfortable" in the property). When Officer Mease asked Appellant if there were any weapons at the property, Appellant responded there was a rifle that "was his dad's." Id. at 103.
Although Appellant denied living at the property, Weissman testified, to the contrary, that she allowed Appellant to live at the property for a time. Id. at 239. Weissman testified she did not own the firearm police recovered, and described seeing Appellant handle the firearm on two prior occasions. Id. at 239-40. Finally, Officer Mease testified that when he informed Appellant that police were temporarily confiscating the firearm pursuant to the PFA order, Appellant asked Officer Mease "how [Appellant] would be able to get the firearm back." Id. at 104 (emphasis added).
The totality of the evidence was sufficient for the jury to find beyond a reasonable doubt that Appellant constructively possessed the firearm. See Cruz, 21 A.3d at 1253 (rejecting defendant's sufficiency challenge to gun convictions, and concluding defendant constructively possessed gun police found on the passenger's side of a vehicle in which defendant was the only occupant and exhibited signs of consciousness of guilt). Accordingly, we agree with Counsel that Appellant's first issue is frivolous. See Anders Brief at 18.
Appellant next argues the trial court erred in denying his weight claim where the jury's verdict is against the weight of the evidence and shocks the conscience. See id. at 18-21. Counsel asserts:
Facts which arguably support [a finding of trial court] error in denying a new trial based on weight of the evidence [include that Appellant] testified that he did not live at the [property], but stayed there a few days a week. … He received no mail at the [property] address….Id. at 20-21 (citing N.T., 10/20/22, at 148).
"A weight of the evidence claim concedes that the evidence is sufficient to sustain the verdict but seeks a new trial on the grounds that the evidence was so one-sided or so weighted in favor of acquittal that a guilty verdict shocks one's sense of justice." In re A.G.C., 142 A.3d 102, 109 (Pa. Super. 2016) (citation omitted). For an appellant to prevail on a weight claim, he must establish that the evidence supporting a conviction is "so tenuous, vague, and uncertain that the verdict shocks the conscience of the court." Commonwealth v. Smith, 146 A.3d 257, 265 (Pa. Super. 2016) (citation omitted). "The weight of the evidence is exclusively for the finder of fact[,] who is free to believe all, none, or some of the evidence and to determine the credibility of the witnesses." Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super. 2015) (citation omitted). "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 evidence…." Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis added; citation omitted).
Upon review of the record and Appellant's arguments, we discern no abuse of the trial court's discretion in rejecting Appellant's weight claim. It was within the jury's purview to find that Appellant possessed the firearm, Talbert, supra, and discredit Appellant's testimony to the contrary. We decline Appellant's invitation to act as fact-finder, reweigh the evidence, and disturb credibility findings based on a cold record and Appellant's undeveloped argument. See Commonwealth v. Sanchez, 262 A.3d 1283, 1288-89 (Pa. Super. 2021) ("it is not the function of the appellate court to substitute its judgment based on a cold record for that of the trial court. The weight to be accorded conflicting evidence is exclusively for the fact finder, whose findings will not be disturbed on appeal if they are supported by the record." (citations omitted)); see also Commonwealth v. Einhorn, 911 A.2d 960, 970 (Pa. Super. 2006) ("This Court will not become the counsel for an appellant, and will not, therefore, consider issues which are not fully developed in the brief." (citation omitted)).
Both of Appellant's issues are frivolous, and the record reveals no issues of arguable merit Appellant could raise. Thus, we grant Counsel's petition to withdraw and affirm Appellant's judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.