J-S03026-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ALEXANDER AQUINO-OQUENDO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 974 MDA 2023

Appeal from the Judgment of Sentence Entered June 12, 2023

In the Court of Common Pleas of Berks County Criminal Division at 

No(s): CP-06-CR-0000302-2022

BEFORE: OLSON, J., NICHOLS, J., and BECK, J.

MEMORANDUM BY NICHOLS, J.: FILED MAY 07, 2024

Appellant Alexander Aquino-Oquendo appeals from the judgment of 

sentence imposed following his conviction for persons not to possess firearms 

and related offenses. Appellant’s counsel (Counsel) has filed a petition to 

withdraw and an Anders/Santiago1 brief. After review, we grant Counsel’s 

petition to withdraw and affirm the judgment of sentence. 

The trial court summarized the factual history of this case as follows:

At trial, Officer Vincent Garapoli of the Cumru Township Police 

Department testified that after midnight on December 17, 2021, 

he was driving on Lancaster Avenue behind a Nissan Murano that 

he intended to stop for traffic violations when the driver, who was 

subsequently identified as [] Appellant, stopped the vehicle, got 

out, threw his hands in the air, and started yelling. Officer 

Garapoli testified that [] Appellant was the only person in the 

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1 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 

978 A.2d 349 (Pa. 2009).
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vehicle. Officer Garapoli described [] Appellant as angry and 

hostile. 

Officer Garapoli testified that [] Appellant ignored his orders to 

return to the vehicle. [] Appellant closed the driver’s side door, 

locked the car, and walked toward Officer Garapoli while alleging 

that he was being racially profiled. Officer Garapoli informed [] 

Appellant that he was under arrest and placed [] Appellant in 

handcuffs following a brief struggle. 

Officer Garapoli then walked to the vehicle and used his flashlight 

to look in through the driver’s side window. He observed a black 

semi-automatic handgun on the driver’s side floorboard. Further 

investigation revealed that the vehicle was registered to Miguel 

Angel Reyes Lopez. The handgun was subsequently sent to the 

Pennsylvania State Police Laboratory for forensic analysis. DNA 

swabs were obtained from [] Appellant and the registered owner 

of the firearm, Andrew Morales-Garcia.[2] 

Timothy Gavel, a forensic DNA scientist employed by the 

Pennsylvania State Police Laboratory, testified that his analysis 

revealed that DNA from at least four individuals was present on 

the firearm. Mr. Gavel explained that [] Appellant’s DNA profile 

could be included as a potential contributor to the DNA sample 

obtained from the gun and that Andrew Morales-Garcia’s DNA 

profile could be excluded as a contributor. Mr. Gavel testified that 

it was seventy-three septillion times more likely that the DNA 

sample obtained from the gun originated from [] Appellant and 

three unknown individuals as opposed to four unknown 

individuals. A septillion is a number with twenty-four zeros. Mr. 

Gavel further testified that out of the four individuals who 

contributed DNA to the sample obtained from the gun, [] 

Appellant’s contribution was the largest. 

[Appellant] called Andrew Morales-Garcia to testify. Mr. MoralesGarcia testified that [] Appellant is his cousin and that on 

December 16, 2021, he borrowed [] Appellant’s car because he 

was having car problems. Mr. Morales-Garcia stated that he 

picked up [] Appellant’s Nissan Murano, used it for approximately 

an hour, and then returned it. Mr. Morales-Garcia testified that 

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2 Although the transcript of the trial spelled Mr. Morales-Garcia’s last name as 

“Moralas Garcia,” it appears that the correct spelling is “Morales-Garcia.” See

Ex. C-7. Therefore, we will use that spelling throughout this memorandum.
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he owned the Mossberg semi-automatic pistol at issue in this case 

and that he placed it under the seat in the Nissan Murano when 

he borrowed the car. 

Mr. Morales-Garcia stated that he did not realize that he had left 

his gun in [] Appellant’s car until he heard about [] Appellant’s 

arrest the following day. Mr. Morales-Garcia testified that he 

contacted the Cumru Township Police Department and provided a 

statement about leaving his gun in [] Appellant’s vehicle. Mr. 

Morales-Garcia testified that he also attended [] Appellant’s first 

court appearance. Sergeant Thomas Pinkasavage of the Cumru 

Township Police Department verified that Mr. Morales-Garcia 

called and spoke to him about the gun and testified that, following 

the conversation, he confirmed that Mr. Morales-Garcia had a 

permit to carry a concealed firearm.

Trial Ct. Op., 8/10/23, at 3-5 (citations and footnotes omitted). 

We add that at trial, the parties stipulated that Appellant had a prior 

conviction which made it illegal for him to possess a firearm under 18 Pa.C.S. 

§ 6105(b). N.T., 1/11/23, at 128. On January 11, 2023, a jury convicted 

Appellant of persons not to possess firearms, and the trial court convicted 

Appellant of six summary violations of the Vehicle Code.3 

On June 12, 2023, the trial court sentenced Appellant to four and onehalf to ten years’ imprisonment for persons not to possess firearms and 

imposed a total of $650.00 in fines for the six summary offenses. Appellant 

filed a timely post-sentence motion challenging the weight of the evidence. 

The trial court denied that motion. 

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3 18 Pa.C.S. § 6105(a)(1), 75 Pa.C.S. §§ 1543(a), 4703(a), 1301(a), 

4302(a)(1), 4107(b)(2), and 1786(f), respectively. 
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Appellant filed a timely notice of appeal. Appellant and the trial court 

both complied with Pa.R.A.P. 1925. 

Counsel has identified two issues in the Anders/Santiago brief,

4 which 

we summarize as follows:

1. Was the evidence sufficient to sustain Appellant’s conviction for 

persons not to possess firearms?

2. Was Appellant’s conviction for persons not to possess firearms 

against the weight of the evidence?

Anders/Santiago Brief at 5-7. 

“When faced with a purported Anders[/Santiago] brief, this Court may 

not review the merits of any possible underlying issues without first examining 

counsel’s request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 

379, 382 (Pa. Super. 2008) (citation omitted). Counsel must comply with the 

technical requirements for petitioning to withdraw by (1) filing a petition for 

leave to withdraw stating that after making a conscientious examination of 

the record, counsel has determined that the appeal would be frivolous; (2) 

providing a copy of the brief to the appellant; and (3) advising the appellant 

that he has the right to retain private counsel, proceed pro se, or raise 

additional arguments that the appellant considers worthy of the court’s 

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4 We note that Counsel’s Anders/Santiago brief does not contain a statement 

of questions presented as required by the Rules of Appellate Procedure. See

Pa.R.A.P. 2111(a)(4), 2116. Instead Counsel states “[i]t is the opinion of 

Counsel that the appeal is frivolous.” Anders/Santiago Brief at 5. We derive 

these issues from the argument section of Counsel’s Anders/Santiago brief.
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attention. See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 

2007) (en banc). In an Anders/Santiago brief, counsel must set forth the 

issues that the defendant wishes to raise and any other claims necessary to 

effectuate appellate presentation of those issues. Commonwealth v. 

Millisock, 873 A.2d 748, 751 (Pa. Super. 2005). 

Additionally, counsel must file a brief that meets the requirements 

established in Santiago, namely:

(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. 

“Once counsel has satisfied the above requirements, it is then this 

Court’s duty to conduct its own review of the trial court’s proceedings and 

render an independent judgment as to whether the appeal is, in fact, wholly 

frivolous.” Goodwin, 928 A.2d at 291 (citation omitted). This includes “an 

independent review of the record to discern if there are any additional, nonfrivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113 

A.3d 1246, 1250 (Pa. Super. 2015) (citation and footnote omitted); accord 

Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en 

banc). Moreover, we note that when an issue is waived, it is deemed a 

frivolous issue. See Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. 
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Super. 2008) (holding that when an issue has been waived, “pursuing th[e] 

matter on direct appeal is frivolous”). 

Here, Counsel has complied with the procedural requirements for 

seeking withdrawal by filing a petition to withdraw, sending Appellant a letter 

notifying Appellant of his intent to withdraw, explaining his appellate rights, 

informing Appellant of his right to proceed pro se or with private counsel, and 

supplying Appellant with a copy of the Anders/Santiago brief. See 

Goodwin, 928 A.2d at 290. Counsel also provided this Court with a copy of 

his letter to Appellant informing him of his rights. Moreover, Counsel’s 

Anders/Santiago brief complies with the requirements of Santiago. 

Counsel includes a summary of the relevant factual and procedural history, 

refers to the portions of the record that could arguably support Appellant’s 

claim, and sets forth the conclusion that the appeal is frivolous. See 

Santiago, 978 A.2d at 361. Accordingly, we conclude that Counsel has met 

the technical requirements of Anders and Santiago, and we will proceed to 

address the issues presented in Counsel’s Anders/Santiago brief. 

Sufficiency of the Evidence

The first issue identified by Counsel is that the evidence was insufficient 

to sustain Appellant’s conviction because the Commonwealth did not prove 

that Appellant possessed the handgun. Anders/Santiago Brief at 5-7. 

Counsel notes that to the extent that Appellant’s claim relies on testimony of 

Mr. Morales-Garcia, the handgun’s owner, that claim goes to the weight of the 

evidence and not the sufficiency. Id. at 6-7. 
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In reviewing a challenge to the sufficiency of the evidence, our standard 

of review is as follows: 

Because a determination of evidentiary sufficiency presents a 

question of law, our standard of review is de novo and our scope 

of review is plenary. In reviewing the sufficiency of the evidence, 

we must determine whether the evidence admitted at trial and all 

reasonable inferences drawn therefrom, viewed in the light most 

favorable to the Commonwealth as verdict winner, were sufficient 

to prove every element of the offense beyond a reasonable doubt. 

The facts and circumstances established by the Commonwealth 

need not preclude every possibility of innocence. It is within the 

province of the fact-finder to determine the weight to be accorded 

to each witness’s testimony and to believe all, part, or none of the 

evidence. The Commonwealth may sustain its burden of proving 

every element of the crime by means of wholly circumstantial 

evidence. Moreover, as an appellate court, we may not re-weigh 

the evidence and substitute our judgment for that of the factfinder.

Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation 

omitted and formatting altered). 

“To sustain a conviction for the crime of persons not to possess a 

firearm, the Commonwealth must prove that [the defendant] possessed a 

firearm and that he was convicted of an enumerated offense that prohibits 

him from possessing, using, controlling, or transferring a firearm.” See 

Commonwealth v. Miklos, 159 A.3d 962, 967 (Pa. Super. 2017) (citation 

omitted and formatting altered); see also 18 Pa.C.S. § 6105(a)(1), (b).

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). 

“Constructive possession is an inference arising from a set of facts that 
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possession of the contraband was more likely than not.” Commonwealth v. 

McClellan, 178 A.3d 874, 878 (Pa. Super. 2018) (citation omitted). 

This Court has explained:

Where a defendant is not in actual possession of the prohibited 

items, the Commonwealth must establish that the defendant had 

constructive possession to support the conviction. Constructive 

possession is a legal fiction, a pragmatic construct to deal with the 

realities of criminal law enforcement. We have defined 

constructive possession as conscious dominion, meaning that the 

defendant has 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.

It is well established that, as with any other element of a crime, 

constructive possession may be proven by circumstantial 

evidence. In other words, the Commonwealth must establish 

facts from which the trier of fact can reasonably infer that the 

defendant exercised dominion and control over the contraband at 

issue.

[A] defendant’s mere presence at a place where contraband is 

found or secreted is insufficient, standing alone, to prove that he 

exercised dominion and control over those items. Thus, the 

location and proximity of an actor to the contraband alone is not 

conclusive of guilt. Rather, knowledge of the existence and 

location of the contraband is a necessary prerequisite to proving 

the defendant’s intent to control, and, thus, his constructive 

possession.

Parrish, 191 A.3d at 36-37 (citations omitted and formatting altered).

Here, the trial court addressed Appellant’s claim as follows:

[The evidence presented at trial], taken together, were sufficient 

for the jury as fact[-]finder to find [] Appellant guilty of persons 

not to possess, use, manufacture, control, sell, or transfer 

firearms. The fact that [] Appellant was the largest contributor to 

the DNA sample retrieved from the firearm and the fact that 

Andrew Morales-Garcia’s DNA profile could be excluded from the 

DNA sample was no doubt helpful to the jury in reaching its 
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decision. [] Appellant’s claim that the evidence produced at trial 

failed to establish beyond a reasonable doubt that he possessed 

the firearm is without merit.

Trial Ct. Op. at 5-6 (citations omitted and some formatting altered). 

Following our review of the record, the parties’ arguments, and the trial 

court’s opinion, we affirm on the basis of the trial court’s analysis of this issue. 

See Trial Ct. Op. at 3-6. Specifically, we agree with the trial court that, when 

viewed in the light most favorable to the Commonwealth, there was sufficient 

evidence to establish Appellant possessed the firearm. See id.; Palmer, 192 

A.3d at 89; Miklos, 159 A.3d at 967. Therefore, Appellant is not entitled to 

relief on this claim.

Weight of the Evidence

The next issue identified by Counsel is that Appellant’s convictions were 

against the weight of the evidence. Anders/Santiago Brief at 6-7. 

Specifically, Appellant presented the testimony of Mr. Morales-Garcia, who 

explained that he owned the handgun and he had inadvertently left the

handgun in Appellant’s car. Id. at 3, 6-7. 

In reviewing a weight claim, this Court has explained:

The weight of the evidence is a matter exclusively for the finder 

of fact, who is free to believe all, part, or none of the evidence 

and to determine the credibility of the witnesses. A new trial is 

not warranted because of a mere conflict in the testimony and 

must have a stronger foundation than a reassessment of the 

credibility of witnesses. Rather, the role of the trial judge is to 

determine that notwithstanding all the facts, certain facts are so 

clearly of greater weight that to ignore them or to give them equal 

weight with all the facts is to deny justice. 
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On appeal, our purview is extremely limited and is confined to 

whether the trial court abused its discretion in finding that the jury 

verdict did not shock its conscience. Thus, appellate review of a 

weight claim consists of a review of the trial court’s exercise of 

discretion, not a review of the underlying question of whether the 

verdict is against the weight of the evidence. An appellate court 

may not reverse a verdict unless it is so contrary to the evidence 

as to shock one’s sense of justice.

Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015) 

(citations and quotation marks omitted). 

As this Court has repeatedly stated:

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. Resolving contradictory 

testimony and questions of credibility are matters for the finder of 

fact. It is well-settled that we cannot substitute our judgment for 

that of the trier of fact.

* * *

Because the trial judge has had the opportunity to hear and see 

the evidence presented, an appellate court will give the gravest 

consideration to the findings and reasons advanced by the trial 

judge when reviewing a trial court’s determination that the verdict 

is against the weight of the evidence. 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 

the evidence and that a new trial should be granted in the interest 

of justice.

Furthermore, in order for a defendant to prevail on a challenge to 

the weight of the evidence, the evidence must be so tenuous, 

vague and uncertain that the verdict shocks the conscience of the 

court.

Commonwealth v. Spence, 290 A.3d 301, 311 (Pa. Super. 2023) (citations 

omitted and formatting altered). 
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Here, the trial court addressed Appellant’s weight-of-the-evidence claim 

as follows:

Here, given the facts set forth above, the jury’s verdict of guilty 

on the charge of persons not to possess, use, manufacture, 

control, sell, or transfer firearms was well reasoned and does not 

shock one’s sense of justice. Furthermore, this court’s denial of 

[Appellant’s] post-sentence motion was not manifestly 

unreasonable, was not the result of misapplication of the law, and 

was not the result of partiality, prejudice, bias, or ill will. 

Therefore, [Appellant’s] second allegation of error is also without 

merit.

Trial Ct. Op. at 7. 

Based on our review of the record, we discern no abuse of discretion by 

the trial court in denying Appellant’s weight claim. See Gonzalez, 109 A.3d 

at 723. We note that credibility determinations and the resolution of 

conflicting evidence are exclusively within the province of the fact-finder, and 

that this Court cannot substitute its judgment for that of the fact-finder. See 

Spence, 290 A.3d at 311. The record amply supports the trial court’s 

conclusion that Appellant possessed the handgun. See Trial Ct. Op. at 7. 

Therefore, Appellant is not entitled to relief on his weight-of-the-evidence 

claim. 

For these reasons, we agree with Counsel’s assessment that the claims 

presented in the Anders/Santiago brief are frivolous. 

Appellant’s Pro Se Responses

Appellant has filed several pro se responses to Counsel’s 

Anders/Santiago brief. First Appellant argues that Counsel provided 
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ineffective assistance by filing an Anders/Santiago brief instead of 

developing the claims Appellant raised in his Rule 1925(b) statement in an 

advocate’s brief. Appellant’s Pro Se Resp., 12/18/23; Appellant’s Pro Se Mot.

to Dismiss Anders Brief, 2/5/24, at 1 (unpaginated); Appellant’s Pro Se

Resp., 3/7/24. Appellant also claims that Counsel did not comply with the 

procedural requirements of Anders because Counsel failed to notify Appellant 

of his right to respond the petition to withdraw or Appellant’s right to proceed 

pro se. Appellant’s Pro Se Mot. to Dismiss Anders Brief, 2/5/24, at 1-2 

(unpaginated); Appellant’s Pro Se Resp., 3/7/24. 

Generally, a criminal defendant may not assert claims of ineffective 

assistance of counsel on direct appeal. See Commonwealth v. Holmes, 79 

A.3d 562, 577-80 (Pa. 2013). Instead, such claims are to be deferred to PCRA 

review. Id. None of the exceptions that our Supreme Court recognized in 

Holmes are applicable here because Appellant did not raise them before the 

trial court in his post-sentence motion. See id. at 563-64; see also

Commonwealth v. Delgros, 183 A.3d 352, 361 (Pa. 2018) (holding that trial 

courts can address “claims challenging trial counsel’s performance where the 

defendant is statutorily precluded from obtaining subsequent PCRA review[]” 

and the defendant raised his ineffectiveness claim(s) in a post-sentence

motion). Therefore, we conclude that Appellant’s ineffectiveness claim cannot 

be considered on direct appeal, and we dismiss these claims without prejudice 

to Appellant’s right to raise them in a timely filed PCRA petition. 
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Further, for the reasons stated above, we conclude that Counsel has 

complied with the technical requirements of Anders and Santiago, including 

informing Appellant of his right to proceed pro se or with privately retained 

counsel. See Goodwin, 928 A.2d at 290. 

Appellant also asserts that his conviction for persons not to possess 

firearms violates his rights under the Second Amendment to the United States 

Constitution. Appellant’s Pro Se Mot. to Vacate, 4/11/24, at 1-4 

(unpaginated) (citing, inter alia, New York State Rifle & Pistol Ass’n, Inc. 

v. Bruen, 597 U.S. 1, 22-25 (2022)); Appellant’s Pro Se Resp., 4/2/24. 

It is well-established that “issues, even those of constitutional 

dimension, are waived if not raised in the trial court. A new and different 

theory of relief may not be successfully advanced for the first time on appeal.” 

Commonwealth v. Cline, 177 A.3d 922, 927 (Pa. Super. 2017) (citations 

and quotation marks omitted); see also Pa.R.A.P. 302(a) (stating that 

“[i]ssues not raised in the trial court are waived and cannot be raised for the 

first time on appeal”). Appellant did not raise a challenge to the 

constitutionality of 18 Pa.C.S. § 6105 before the trial court; therefore, his 

constitutional claim is waived. See Cline, 177 A.3d at 927; Pa.R.A.P. 302(a); 

see also Kalichak, 943 A.2d at 291 (explaining that waived issues are 

frivolous). 

For these reasons, our independent review of the record does not reveal 

any additional, non-frivolous issues. See Flowers, 113 A.3d at 1250; see 
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also Goodwin, 928 A.2d at 291. Accordingly, we grant Counsel’s petition to 

withdraw and affirm the judgment of sentence. 

Judgment of sentence affirmed. Counsel’s petition to withdraw granted. 

Jurisdiction relinquished. 

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 05/07/2024
Circulated 04/18/2024 08:35 AM