Appeal from the Judgment of Sentence of May 17, 2010, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No.: CP-51-CR-0003465-2007, CP- 51-CR-0007499-2007, MC-51-CR-0003396-2007
The opinion of the court was delivered by: Bowes, J.:
BEFORE: BOWES, SHOGAN, and FREEDBERG, JJ.
Nafis Stokes appeals from the judgment of sentence of sixteen to thirty-two years incarceration imposed by the trial court after his convictions for conspiracy to commit murder, aggravated assault,*fn1 conspiracy to commit aggravated assault, recklessly endangering another person ("REAP"), possession of an instrument of crime ("PIC"), possession of a controlled substance (marijuana), and persons not to possess a firearm. After careful review, we affirm.
The pertinent facts are as follows. On January 8, 2007, fourteen-year- old M.L. and his friend were seeking to purchase marijuana. The two boys proceeded down Judson Street in Philadelphia where they encountered a group of males, including Appellant. A member of the group asked M.L. why he was on his block and ordered M.L. to leave. M.L. responded that he could walk wherever he wanted and that the individual did not own the block. After the verbal sparring, M.L. and his friend entered a Chinese restaurant at the end of the street. When M.L. exited, he was shot three times, once in the lower back, left arm, and left groin. Although suffering from three gunshot wounds, M.L. ran four blocks before collapsing in the road. Police transported him immediately to Temple University Hospital where he underwent emergency surgery. As a result of the shooting, doctors removed M.L.'s left kidney.
Philadelphia detectives James Rago and James Waring interviewed M.L. after his release from the hospital. M.L. informed police that the shooter was, "Black, dark skin, tall but a little shorter than the other guy, short hair, he's always on Judson Street. Somebody told me his name is Nafis." N.T., 2/24/10, at 103. In addition, he told the detectives that the shooter was not wearing a mask and that he recognized him from seeing him on Judson Street for approximately one year. After being shown a photograph of Appellant, M.L. confirmed that the photograph was of the individual who shot him.
Police arrested Appellant at his mother's home on Judson Street. At the time of the arrest, Appellant was exiting the front bedroom on the second floor of the house. A search of Appellant's person revealed six packets of marijuana. Additionally, in the bedroom from which Appellant was seen departing, police found a .38 caliber revolver as well as a small amount of marijuana. The gun recovered by police did not match ballistics for the weapon that wounded M.L. In another bedroom, police located additional marijuana, Appellant's identification card, and drug paraphernalia. Thereafter, the Commonwealth charged Appellant with attempted murder, conspiracy to commit murder, aggravated assault, conspiracy to commit aggravated assault, REAP, PIC, firearms not to be carried without a license, and carrying firearms on public streets or public property in Philadelphia. These charges stemmed from the shooting incident. The Commonwealth also charged Appellant with possession of marijuana, PIC, and persons not to possess firearms.
M.L. subsequently identified Appellant as his attacker at Appellant's preliminary hearing, stating that he knew Appellant did it and that he had no doubt that Appellant shot him. However, at trial M.L. testified differently, asserting that Appellant did not shoot him and that he never told police that Appellant was the shooter. According to M.L., Appellant was entering a car on the corner of the street when the incident occurred. He also claimed that he told police the same story. As a result of Appellant's inconsistent statements, the Commonwealth introduced Appellant's preliminary hearing testimony as substantive evidence and called the assistant district attorney who presented the Commonwealth's case at Appellant's preliminary hearing. The district attorney testified that M.L. had identified Appellant as his assailant. Similarly, both Detectives Rago and Waring stated that they took a verbatim statement from M.L. identifying Appellant as his attacker.
Prior to the court instructing the jury, Appellant's trial counsel requested a special interrogatory relative to the possession of marijuana charge. Specifically, counsel sought to have the jury specify whether it found Appellant possessed marijuana on his person, in the front bedroom, or the back bedroom. Counsel reasoned that since a handgun was located in the front bedroom, Appellant could be subject to a mandatory sentence. The trial court declined to issue the special interrogatory.
Related to the shooting incident, the jury returned not guilty verdicts on the counts charging attempted murder, PIC, and both firearms violations. Thus, the jury appeared to have concluded that the prosecution failed to prove beyond a reasonable doubt that Appellant was the actual shooter and possessed a gun during the shooting. However, the jury did find Appellant guilty of conspiracy to commit murder, aggravated assault, conspiracy to commit aggravated assault, and REAP. With respect to the drug related charges, the jury found Appellant guilty of possession of a controlled substance and PIC. In a separate proceeding, the trial court adjudicated Appellant guilty of the person not to possess firearms charge.
At sentencing, the Commonwealth invoked 42 Pa.C.S. § 9712, and requested that the court sentence Appellant to a five-year mandatory term based on possession of a firearm during a crime of violence. In addition, the Commonwealth invoked the deadly weapon used enhancement for determining Appellant's sentencing guideline ranges. Appellant argued that because the jury found him not guilty of the firearms charges, as well as PIC, and attempted murder, it had concluded that he was innocent of possessing and using a firearm during the shooting. The Commonwealth countered that the trial judge could determine at sentencing, based on the preponderance of the evidence, whether the mandatory sentence applied. The court agreed with the Commonwealth and held that M.L.'s trial testimony that Appellant did not shoot him or have a gun during the incident was incredible. Accordingly, the court imposed the mandatory minimum sentence of five years for the aggravated assault charge and applied the deadly weapon used enhancement in ascertaining the guideline ranges for Appellant's additional convictions, except his PIC and person not to possess firearms convictions.*fn2
The court also sentenced Appellant to ten to twenty years incarceration for conspiracy to commit murder, and one to two years imprisonment on the persons not to possess firearms count. These sentences were imposed consecutively. In addition, the court sentenced Appellant to concurrent terms of incarceration of one to two years for both REAP, PIC, and thirty days imprisonment for possession of marijuana. Appellant's aggregate sentence was sixteen to thirty-two years imprisonment.
Appellant timely appealed and the trial court directed that counsel file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Following a grant of an extension to file the 1925(b) statement, Appellant complied, and the court authored its Pa.R.A.P. 1925(a) opinion. The matter is now ready for our consideration. Appellant raises the following issues.
I. Did the trial court violate Appellant[']s state constitutional and federal 5th and 14th Amendment rights by refusing Appellant's request for a jury interrogatory that separated the drugs that Appellant conceded were found in his possession from those that were found in other parts of the house, specifically the front bedroom. The court erred in failing to sustain Appellant's request for a mistrial?
II. Did the trial court violate Appellant[']s state constitutional and statutory rights and his federal 6th, 8th and 14th Amendment rights and abuse its' [sic] discretion by impermissibly applying firearm evidence under 42 Pa.C.S.A. § 9712 at sentencing when the jury acquitted the Appellant of charges related to possession or use of a firearm?
III. Did the trial court deny Appellant his state constitutional and federal 14th Amendment rights in that there was insufficient evidence to support a finding that Appellant possessed the instrument of crime?
IV. Was the jury's guilty verdict on conspiracy to commit murder of the first degree inconsistent with their verdict acquitting Appellant of first degree murder thereby violating his state and federal constitutional rights?; [sic] Did the Court violate Appellant's constitutional rights by charging the jury on conspiracy to murder in the first degree when there was insufficient evidence of record to support the charge?
V. Was Appellant denied his state constitutional and his federal 14th Amendment rights when the prosecution was permitted to elicit impermissible voucher testimony from detectives?
VI. Was Appellant denied his state constitutional and his federal 14th Amendment rights when the prosecution was permitted to elicit impermissible voucher testimony from Detective James Waring related to the approval process for the arrest and search warrants?
VII. Was Appellant denied his state constitutional and federal 6th and 14th Amendment rights when the trial court permitted Detective James Rago to testify to irrelevant hearsay and give his personal opinion that he found it amusing that the person who shot the victim was trying to date the victim's sister?
VIII. Was Appellant denied his state constitutional and his federal 14th Amendment right[s] when the Commonwealth, through witness Assistant District Attorney McGlynn was permitted despite defense counsel's objection, to continue to bolster and highlight specific questions contained in the preliminary hearing transcript after the court had already sustained defense counsel's previous objection?
Appellant's brief at 4-5.
Both Appellant's third and fourth issues raise sufficiency challenges. As a successful sufficiency of the evidence claim warrants discharge on the pertinent crime, we address those claims first. Appellant contends that there was insufficient evidence to establish his guilt of PIC relative to the firearm located within the bedroom in his residence. Appellant avers that the Commonwealth failed to prove that he intended to control the gun located on the top shelf of a closet in the second floor front bedroom. In setting forth his argument, Appellant posits that to sustain his conviction, the prosecution was required to show that he "actually knew of the existence of the weapon." Appellant's brief at 18. Appellant submits that the sole proof that he constructively possessed the gun was based on police witnessing him exiting the room. Since Appellant's fingerprints were not on the gun and no other evidence demonstrated that he knew the gun was in the closet, Appellant maintains that the evidence was too weak and inconclusive to justify his conviction.
Our standard and scope of review for a sufficiency claim is settled.
We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth's burden may be met by wholly circumstantial evidence and 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.
Commonwealth v. Mobley, 14 A.3d 887, 889-890 (Pa.Super. 2011).
Additionally, "in applying the above test, the entire record must be evaluated and all evidence actually received must be considered." Commonwealth v. Coleman, 19 A.3d 1111, 1117 (Pa.Super. 2011).
To prove PIC, the Commonwealth must demonstrate that the defendant "possesses any instrument of crime with intent to employ it criminally." 18 Pa.C.S. § 907. An instrument of crime is defined as "[a]nything specially made or specially adapted for criminal use" or "[a]nything used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have." 18 Pa.C.S. § 907(d). It is undisputed that a gun can be an instrument of crime. Therefore, the Commonwealth was required to establish that Appellant constructively possessed the gun and intended to employ it criminally. Appellant does not specifically allege that he did not intend to employ the firearm criminally. Rather, he posits that "in order to prove the intent element necessary to establish constructive possession, the Commonwealth must present evidence that establishes beyond a reasonable doubt that the defendant actually knew of the existence of the weapon." Appellant's brief at 18.
We hold that the jury could have reasonably inferred that Appellant constructively possessed the loaded firearm in connection with the illegal drugs located in the home. Appellant had no license to carry the firearm.*fn3 Marijuana and a digital scale were located in close proximity to the gun; indeed, they were in the same room. Appellant hastily fled from the room where the gun was found after police knocked and announced their presence three times. Police also recovered six bags of marijuana on Appellant. The marijuana on Appellant's person was packaged identically to that found in a rear bedroom, which was close in proximity to the other bedroom. The fact that no fingerprints were on the firearm was explained by the presence of tape on the gun's handle, another indication that the gun was not intended for lawful purposes. Although Appellant's identification card was not discovered in the same room as the firearm, Appellant had access to that room as he was seen leaving it by the SWAT team that breached the residence. Viewed in a light most favorable to the Commonwealth, this evidence is not so weak and inconclusive that no probability of fact could be drawn from it.
Appellant's fourth issue is that the jury rendered an inconsistent verdict which deprived him of his constitutional rights, and that there was insufficient evidence to establish his guilt of conspiracy to commit murder. According to Appellant, the jury's verdicts of not guilty on the attempted murder ...