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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

____________________________________________


*   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


____________________________________________


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.


____________________________________________


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).



____________________________________________


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),


____________________________________________


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

                                       - 12 -
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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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