J-S18007-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JARVIS PAYTON,

Appellant No. 2583 EDA 2013

Appeal from the Judgment of Sentence Entered August 9, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0013450-2012

BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 17, 2015

Appellant, Jarvis Payton, appeals from the judgment of sentence of 

eight and a half (81⁄2) to seventeen (17) years’ incarceration, followed by five 

(5) years’ probation, imposed after he was convicted of persons not to 

possess firearms, firearms not to be carried without a license, and carrying 

firearms on public streets or public property in Philadelphia. Appellant 

challenges the sufficiency of the evidence to sustain his convictions and 

requests that this matter be remanded to the trial court for further 

proceedings based on after-discovered evidence. We conclude that the 

sufficiency claim is without merit, but we remand for further proceedings. 

The trial court has set forth the facts which led to Appellant’s 

convictions as follows:
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On October 23, 2012, at approximately 8:45 p.m., Philadelphia 

Police Officer David O’Connor was on routine patrol with his 

partner on the 300 block of East Upsal Street when he observed 

a blue Ford Aerostar minivan that was being operated with a 

non-working brake light. After following the vehicle for one 

block, the officers stopped the vehicle for investigation. As 

Officer O’Connor exited the patrol car and approached the 

vehicle, he had a clear view inside the vehicle through the rear 

window. The area where the vehicle was stopped was well lit. 

Officer O’Connor observed three males inside. One male was 

located in the driver’s seat, one male was seated in the front 

passenger seat, and [Appellant] was seated in the middle row of 

the vehicle, in the seat directly behind the driver.

As Officer O’Connor approached the vehicle, he observed 

[Appellant] making numerous movements. Specifically, Officer 

O’Connor observed [Appellant] reaching down and to his right 

with the upper half of his body shifting toward the passenger 

side. As [Appellant] was making these movements, he was 

looking back at Officer O’Connor. The two other occupants did 

not make any movements as Officer O’Connor approached the 

vehicle. 

Officer O’Connor initially attempted to have the passengers 

exit the vehicle through the side door in the middle of the 

vehicle. No one could open the middle side door, so all of the 

front passengers exited first and were taken to the patrol car 

while [Appellant] remained alone in the rear of the vehicle for a 

short period of time before exiting. Officer O’Connor returned to 

search the car and immediately found a silver handgun, loaded 

with eight live rounds. The gun was located within the 

immediate reach of where [Appellant] was seated, i.e., on the 

floor next to the middle row passenger side seat where 

[Appellant] was seated. This is the same area in which Officer 

O’Connor previously saw [Appellant] reaching toward. Upon 

recovery of the gun, [Appellant] provided Officer O’Connor with 

a false name.

At trial, [Appellant] testified that he was aware that a gun was 

recovered next to his seat in the same place where Officer 

O’Connor observed him reaching, but denied that he saw the 

gun. [Appellant] stipulated that he ha[d] a prior conviction in 

2005 for a crimen falsi [offense]. 

Trial Court Opinion (TCO), 5/16/14, at 1-2 (citations to the record omitted).
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Based on this evidence presented at a non-jury trial on June 7, 2013, 

Appellant was found guilty of one count each of persons not to possess 

firearms,1firearms not to be carried without a license,2and carrying firearms 

on public streets or public property in Philadelphia.3 On August 9, 2013, he 

was sentenced by the court to eight and a half (81⁄2) to seventeen (17) 

years’ incarceration, followed by five (5) years’ probation. Appellant filed a 

timely notice of appeal, as well as a timely concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b), wherein Appellant 

preserved his sufficiency claim. In response, the trial court filed a Rule 

1925(a) opinion addressing the sufficiency of the evidence. Subsequently, 

Appellant waived his right to counsel, proceeded pro se on appeal,4and filed 

a motion to submit after-discovered evidence. Said motion was denied 

without prejudice by the trial court. Therefore, Appellant additionally 

presents the issue of after-discovered evidence on appeal. 

____________________________________________

1

Pursuant to 18 Pa.C.S. § 6105(a)(1).

2

Pursuant to 18 Pa.C.S. § 6106(a)(1).

3

Pursuant to 18 Pa.C.S. § 6108.

4 On May 29, 2014, Appellant filed a motion to proceed on appeal pro se. A 

Grazier hearing was held on October 9, 2014, whereby Appellant waived his 

right to counsel and was granted leave to proceed pro se. Appellant’s Brief, 

at 6. See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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First, we address the merits of the sufficiency claim. Specifically, 

Appellant presents the following issue for our review: “Did the trial court err 

when it found the evidence sufficiently proved beyond a reasonable doubt 

that ... Appellant was in constructive possession of a firearm found on the 

passenger side floor of a minivan in which he was a passenger with two 

other occupants?” Appellant’s Brief, at 4. 

To begin, we note our standard of review for a challenge to the 

sufficiency of the evidence:

In reviewing a sufficiency of the evidence claim, we must 

determine whether the evidence admitted at trial, as well as all 

reasonable inferences drawn therefrom, when viewed in the light 

most favorable to the verdict winner, are sufficient to support all 

elements of the offense. Commonwealth v. Moreno, 14 A.3d 

133 (Pa. Super. 2011). Additionally, we may not reweigh the 

evidence or substitute our own judgment for that of the fact 

finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa.Super. 

2009). The evidence may be entirely circumstantial as long as it 

links the accused to the crime beyond a reasonable doubt. 

Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

Each of the counts of which Appellant was convicted requires proof of 

possession of a firearm. Where there is a lack of evidence of literal, physical 

possession, “the Commonwealth may sustain its burden by showing 

constructive possession.” Commonwealth v. Harris, 397 A.2d 424, 429 

(Pa. Super. 1979). 

Constructive possession is a legal fiction, a pragmatic construct 

to deal with the realities of criminal law enforcement. 

Constructive possession is an inference arising from a set of 

facts that possession of the contraband was more likely than not. 
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We have defined constructive possession as conscious dominion. 

We subsequently defined conscious dominion as the power to 

control the contraband and the intent to exercise that control. 

To aid application, we have held that constructive possession 

may be established by the totality of the circumstances. 

Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013) (quoting 

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012)).

Appellant avers that the Commonwealth failed to prove he 

constructively possessed the firearm found on the floor of the vehicle at the 

time of his arrest. Appellant alleges that the officers merely saw him moving 

towards the right side of the vehicle but never actually saw him hold or drop 

the firearm, Appellant’s Brief, at 15, and states “it is not logical to conclude 

that [he] would have been able to see where the firearm was hidden on the 

floor,” id. at 12, as Officer O’Connor needed “to use his flashlight to 

illuminate the spot where the gun was found[,]” id. He further argues that 

the other two occupants of the vehicle had equal access and “could ... just as 

easily have placed th[e] firearm on the floor.” Id. at 10. We disagree. 

In support of his argument, Appellant relies heavily on 

Commonwealth v. Boatwright, 453 A.2d 1058 (Pa. Super. 1982), where 

the defendant was seated in the front passenger seat of a parked vehicle, 

accompanied by the driver and another passenger seated in the rear, 

directly behind the driver. As the officer in Boatwright approached the 

vehicle, he observed the defendant’s body moving towards his left rear. 

When the officer shined a light into the vehicle, he discovered a gun on the 

left rear floor. The Boatwright court found the evidence insufficient to 
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prove constructive possession of the firearm where the only evidence was 

the officer’s testimony that he saw the defendant move towards the left rear 

of the vehicle where another passenger was also seated. Id. at 1059. 

A review of the evidence in the instant case discloses that Appellant’s 

reliance on the decision in Boatwright is misplaced. Unlike in Boatwright, 

there were no other occupants seated in the middle row where the firearm 

was found. TCO, at 2. Furthermore, Officer O’Connor testified that 

Appellant was the only occupant to make furtive movements as he 

approached the car and the firearm was found in the same area towards 

which Appellant had been observed bending and leaning. Id. at 1-2. 

Additionally, Appellant was left alone in the vehicle for a short period of time 

prior to the discovery of the firearm. Id. at 2. Although Officer O’Connor 

used a flashlight to conduct his search of the vehicle, the firearm was not 

hidden and was within Appellant’s view. Id. at 4. Finally, we concur with 

the Commonwealth that Appellant exhibited a consciousness of guilt when 

he provided Officer O’Connor with a false name. Viewed in the light most 

favorable to the Commonwealth as the verdict winner, we conclude that 

there was sufficient evidence to support the trial court’s finding of 

constructive possession and, therefore, Appellant’s sufficiency claim lacks 

merit. 

Next, we address the question of whether this matter should be 

remanded to the trial court, “for further proceedings based on afterdiscovered evidence regarding the illegal searches and police misconduct by 
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Officer David O’Connor, the prosecution[’]s only testifying witness?” 

Appellant’s Supplemental Brief, at 2.

On October 20, 2014, directly following a grant of leave to proceed pro 

se, Appellant filed a motion to submit after-discovered evidence pursuant to 

Pa.R.Crim.P. 720(C).5 Having determined that Appellant has followed the 

proper procedure to request a new trial, we now turn to the merits of his 

request for relief. 

It has been well-established that in order to be granted a new trial on 

the basis of after-discovered evidence: 

[A]ppellant must demonstrate that the evidence: (1) could not 

have been obtained prior to the conclusion of the trial by the 

exercise of reasonable diligence; (2) is not merely corroborative 

or cumulative; (3) will not be used solely to impeach the 

credibility of a witness; and (4) would likely result in a different 

verdict if a new trial were granted.

Commonwealth v. Perrin, 108 A.3d 50 (Pa. Super. 2015) (quoting 

Commonwealth v. Montalvo, 986 A.2d 84, 109 (Pa. 2009)). Additionally, 

“the proposed new evidence must be ‘producible and admissible.’” 

Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014) (quoting 

Commonwealth v. Chamberlain, 30 A.3d 381, 414 (Pa. 2011)).

____________________________________________

5

“[A]fter-discovered evidence discovered during the direct appeal process 

must be raised promptly during the direct appeal process, and should 

include a request for a remand to the trial judge ....” Pa.R.C.P. 720, 

Comment.
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Appellant presents an article published by the Philadelphia Daily News 

on June 12, 2014,6 which alleges that retired police officer, Herbert 

Spellman, filed a civil rights lawsuit against Officer O’Connor and Officer 

Momme, the same officers involved in Appellant’s arrest,7for the unlawful 

stop and frisk of his person based on his race. Although the lawsuit brought 

by Spellman was still pending, and thus provides mere speculations, the 

article also references another federal lawsuit filed by Aaron Bell, in which 

Officer O’Connor was named a defendant.8 In Bell v. City of Philadelphia, 

the plaintiff alleged he was unlawfully stopped and searched by Officer 

O’Connor and his former partner, Officer Goshert. The facts in Bell are 

similar to the case before us, as Bell involved a traffic stop during which a 

firearm was recovered from the plaintiff’s vehicle by Officer O’Connor. The 

newspaper article reports that a jury verdict was entered in Bell, on May 29, 

2014, awarding the plaintiff compensatory damages and punitive damages 

____________________________________________

6

Julie Shaw, Suit: Blue-on-blue stop was also white-on-black, Philadelphia 

Daily News, June 12, 2014. 

7 Appellant’s convictions stemmed from a vehicle stop involving Officers 

David O’Connor and Brad Momme. Officer Momme did not testify at trial. 

Officer O’Connor was the prosecution’s sole testifying witness. Appellant’s 

Supplemental Brief, at 4. 

8 See Appellant’s Supplemental Brief, Exhibit “A.” (where Appellant attaches 

a docket for the Eastern District of Pennsylvania, Civil Action Case #: 2:12-

cv-02625-GP, Aaron L. Bell v. City of Philadelphia, Police Officer David 

O’Connor, and Police Officer Colin Goshert). 
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against each officer. In support of the allegations made in the article, 

Appellant provides a copy of the court docket for the Bell case, Appellant’s 

Supplemental Brief, Exhibit “A,” evidencing the fact that Officer O’Connor is 

a named defendant in said case, as well as a memorandum opinion written 

by the court in response to post-verdict motions.9 In its opinion, the court 

overturned the count of municipal liability, but upheld Officer O’Connor’s 

illegal search and false arrest verdicts and left the jury award undisturbed. 

Appellant’s Reply Brief, Exhibit “A,” at 19-20. Additionally, Appellant 

produces an affidavit by Aaron Bell in which Bell attests to material facts of 

his case and alleges that Officers O’Connor and Goshert fabricated a basis 

for the unlawful stop in their police reports, searched Bell’s person and 

vehicle without consent, and gave false testimony at trial. Appellant’s Reply 

Brief, Exhibit “B,” at 1-3. 

The Commonwealth argues that Appellant is not entitled to an 

evidentiary hearing because he has failed to produce any admissible 

____________________________________________

9

“In this suit under 42 U.S.C. § 1983, Aaron L. Bell alleged that the City of 

Philadelphia (the “City”) and Police Officers David O’Connor and Colin 

Goshert (the “Officers”) violated his Fourth Amendment rights through an 

illegal stop (Count I), a false arrest (Count II), an illegal search (Count III), 

malicious prosecution (Count IV), and the City’s adoption of a policy or 

custom of permitting Fourth Amendment violations (Count V). ... [T]he case 

proceeded to trial. Mr. Bell, a layperson, represented himself. At trial, the 

jury found for Mr. Bell on Counts II, III, and V, and awarded Mr. Bell 

$100,000.00 in compensatory damages from all the Defendants (i.e., jointly 

and severally) and $1,000.00 in punitive damages from the Officers. The 

jury rendered defense verdicts on Counts I and IV.” Appellant’s Reply Brief, 

Exhibit “A,” at 1. 
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evidence, asserting that “[n]ewspaper articles are generally inadmissible to 

prove the facts contained therein.” Commonwealth’s Brief, at 8-9. 

Generally, newspaper articles do not constitute evidence as they contain 

inadmissible hearsay. In Commonwealth v. Castro, 93 A.3d 818 (Pa. 

2014),10 our Supreme Court addressed the issue of whether it is possible to 

meet the test for after-discovered evidence where the defendant only relies 

on a newspaper article. The Court concluded “[w]hile newspaper articles can 

alert a party to the possible existence of evidence, the party must do more 

than attach the article as establishing the evidence that will meet the fourpronged test.” Id. at 827. While it declined to impose a strict requirement 

of attaching affidavits or other offers of proof, the Court went on to hold that 

a motion seeking an evidentiary hearing based on after-discovered evidence 

“must, at the very least, describe the evidence that will be presented at the 

hearing. Simply relying on conclusory accusations made by another, without 

more, is insufficient to warrant a hearing.” Id. 

Here, Appellant does not merely rely on the newspaper article as his 

basis to request a new trial. The article initially alerted Appellant to the 

existence of the Bell case and the possibility of additional evidence. While 

the Court in Castro declined to strictly require affidavits or other offers of 

____________________________________________

10 See Castro, 93 A.3d at 829 n.11 (citing Commonwealth v. Saksek, 522 

A.2d 70 (Pa. Super. 1987)) (upholding exclusion of newspaper article as 

inadmissible hearsay). 
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proof in support of a motion for a new trial based on after-discovered 

evidence, Appellant has, in fact, provided an affidavit of a witness he intends 

to use if granted a new trial, as well as a court docket and the opinion from 

the trial court as other offers of proof. Furthermore, Appellant describes in 

detail the evidence he intends to present at an evidentiary hearing. 

Appellant’s Supplemental Brief, at 8; Appellant’s Reply Brief, at 7-10. 

Finally, we note that the newspaper article produced by Appellant refers to a 

jury verdict, not a mere investigation, arrest, or pending lawsuit.11 We 

conclude that Appellant has proffered sufficient evidence to satisfy the 

requirements set forth in Castro. 

At an evidentiary hearing, Appellant will be required to show by a 

preponderance of the evidence that each prong of the after-discovered 

evidence test has been met in order for a new trial to be warranted. 

Rivera, 939 A.2d at 359. Reviewing the four prongs, it appears unlikely 

that Appellant would have discovered the evidence before the conclusion of 

his trial, as both the jury verdict in the Bell case and the publication of the 

newspaper article did not occur until more than a year after Appellant’s 

____________________________________________

11 See Commonwealth v. Estepp, 17 A.3d 939 (Pa. Super. 2011) (where 

we found newspaper articles were not sufficient to meet the test for afterdiscovered evidence where the articles merely stated that the officer was 

under investigation for misconduct, distinguishing Estepp from our decision 

in Commonwealth v. Rivera, 939 A.2d 355 (Pa. Super. 2007), where the 

appellant cited newspaper articles referencing an actual arrest and the case 

was remanded for an evidentiary hearing based on after-discovered 

evidence). 
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conviction. Second, the evidence does not appear to be merely 

corroborative or cumulative, as Officer O’Connor’s conduct was not 

questioned at trial, because Appellant had no basis to challenge the officer’s 

credibility at the time.12 Moreover, we note that while the evidence may, 

indeed, be used to impeach the credibility of Officer O’Connor, the evidence 

will not solely be used for this purpose. Appellant intends to use the 

evidence to file a motion to suppress the evidence recovered from the 

search. Appellant’s Supplemental Brief, at 7. Finally, the evidence could 

likely result in a different outcome if a new trial were granted, because it 

calls into question the character of Officer O’Connor, who was the only 

witness to testify against Appellant at trial. The evidence may also be used 

to establish that Officer O’Connor engaged in a pattern of unlawful stops and 

falsifying reports. This could form the basis for a motion to suppress the 

firearm. Based on the information in the record, we conclude that Appellant 

ostensively could satifsfy the four-prong test. However, procedure demands 

that the trial court review the evidence and make this determination. 

Rivera, 939 A.2d at 359. 

In Commonwealth v. Perrin, 108 A.3d 50 (Pa. Super 2015), the 

proof of after-discovered evidence at issue was a document generated by an 

____________________________________________

12 See Rivera, 939 A.2d at 359 (where we concluded after-discovered 

evidence was neither corroborative nor cumulative since at no time was the 

veracity of the witness’ testimony questioned at trial). 
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FBI agent detailing a conversation in which the key witness at Appellant’s 

trial admitted that he perjured himself and that Appellant did not participate 

in the crime. After concluding that the “evidence [was] even more pointed 

toward Appellant’s innocence than the evidence at issue in Rivera and 

Castro,” id. (emphasis omitted), we remanded the case to the trial court 

for an evidentiary hearing. Similar to Perrin, we find it appropriate here, 

where the Appellant has proffered more evidence than in Castro and has 

sufficiently described the evidence he will offer at an evidentiary hearing, to 

remand the case to allow Appellant to flesh-out his claim for a new trial 

before the trial court. 

Judgment of sentence vacated. Case remanded for an evidentiary 

hearing consistent with this memorandum in order to determine if a new 

trial is required based upon after-discovered evidence, and, if not, for the reimposition of sentence. Jurisdiction relinquished. 

Judge Mundy joins this memorandum.

Judge Allen files a concurring and dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/17/2015