The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant's Motion for Judgment of Acquittal and/or a New Trial. (Doc. No. 51.) For the following reasons, Defendant's Motion will be denied.
On April 14, 2009, a grand jury indicted Defendant, Phillip Parrott, on a single count of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). (Doc. No. 10.) A suppression hearing was held on October 26, 2009. Defendant sought to suppress evidence of the shotgun that was seized at the time of his arrest. (Doc. No. 23.) The only witness to testify at the hearing was Philadelphia Police Officer Janeen Jones. Defendant's motion to suppress was denied. (Doc. No. 41.)*fn1 On November 24, 2009, following a jury trial, Defendant was found guilty. Defendant now moves for a judgment of acquittal under Federal Rule of Criminal Procedure 29 or, in the alternative, a new trial under Rule 33. (Doc. No. 51.)
In the early morning hours of November 30, 2008, Officer Jones and her partner, Officer Louis Pacell, were on patrol in a marked police car. At approximately 1:30 a.m., they received a call over the police radio about an individual with a gun in the 3600 block of North Bouvier Street in Philadelphia. While en route to that location, they received a radio call that shots had been fired in that vicinity. After turning onto the 3600 block of North Bouvier Street, Officer Jones saw Defendant standing in front of the last house in the block at the corner of Bouvier and Pacific Streets. Defendant was visible in the light from nearby streetlights, and Officer Jones saw that he was holding a long dark object. As the officers approached Defendant, they realized that he was holding a sawed-off shotgun. Officer Pacell, who was driving, stopped the car about 20 to 30 feet from Defendant. Both officers exited the car with their weapons drawn and ordered Defendant to drop the shotgun. Defendant instead ran into the house that he had been standing in front of.
Concerned that they might be ambushed, Officers Jones and Pacell did not follow Defendant inside. Instead, they set up a perimeter around the house to ensure that Defendant did not flee, and they waited for backup. Shortly thereafter, a woman leaned out of a window of the house, asking about the commotion. The officers asked her to open the front door and asked her about the man with the gun. At first, the woman denied that anyone had entered the house. She then said that the man had run out the back door. The officers had not seen anyone exit the rear of the house. As more officers arrived on the scene, the woman opened the front door and she and several other people came out. Defendant was not one of them. None of the people who exited the house had the shotgun. The woman told Officer Jones that nobody remained in the house.
Soon thereafter, Defendant appeared at the top of the internal staircase, which was visible to the officers through the front door. He pretended that he had just awakened and asked what was going on. As he came down the stairs, Officer Jones recognized him as the man that she had seen with the gun. Defendant was arrested.
At this point, Officer Jones, along with other officers, entered the house for the purpose of securing it. The police were unsure about the nature of the situation: they did not know whether there had been a home invasion, whether there was anyone injured in the house, or whether another person with the shotgun remained in the house. They also had a number of concerns based on their observations of Defendant and his actions, the report of shots having been fired at this location, and the fact that the gun was still inside the house. Their concerns were heightened by the false statements made by the woman that nobody had entered the house, that the gunman had run out the back, and that nobody remained inside after she had come outside with the others.
Once inside the house, the other officers went to the second floor and Officer Jones cleared the first floor, making sure that there was noone there either hurt or hiding. She then proceeded to the basement. While clearing the basement, Officer Jones came upon the shotgun that she had seen Defendant holding outside the house.*fn2
A. Rule 29 Motion for Acquittal
"A defendant challenging the sufficiency of the evidence bears a heavy burden." United States v. Casper, 956 F.2d 416, 421 (3d Cir. 1992) (citing United States v. Vastola, 899 F.2d 211, 226 (3d Cir. 1990)). In considering a motion for judgment of acquittal under Rule 29, the trial court must "review the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence." United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005) (citations and internal quotation marks omitted). The court cannot "usurp the role of the jury," id., and must presume "that the jury properly evaluated the credibility of witnesses, found the facts, and drew rational inferences" from the evidence. United States v. Menon, 24 F.3d 550, 564 (3d Cir. 1994); see also United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987) (setting forth the standard for a post-verdict judgment of acquittal). A finding of insufficiency of the evidence should "be confined to cases where the prosecution's failure is clear." Brodie, 403 ...