J. S45023/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

DESHAWN LEAL PETERS, :

:

Appellant : No. 1688 WDA 2015

Appeal from the Judgment of Sentence September 17, 2015

In the Court of Common Pleas of Erie County 

Criminal Division at No.: CP-25-CR-0000366-2015

BEFORE: OLSON, J., DUBOW, J., AND PLATT, J.*

MEMORANDUM BY DUBOW, J.: FILED AUGUST 09, 2016

Appellant, Deshawn Leal Peters, appeals from the Judgment of 

Sentence entered in the Erie County Court of Common Pleas following his 

convictions by a jury of Persons Not to Possess Firearms and Receiving 

Stolen Property.1 Appellant challenges the sufficiency of the evidence and 

the discretionary aspects of his sentence. We affirm.

The underlying facts, as summarized in the trial court’s 1925(a) 

Opinion filed on January 7, 2016, are as follows:

In mid-October 2014, a functional .45 caliber firearm was 

stolen from Casey Houghton’s home. On October 18, 2014, 

police recovered the stolen firearm and arrested Appellant. The 

facts surrounding Appellant’s arrest are as follows.

 

* Retired Senior Judge Assigned to the Superior Court.

1 18 Pa.C.S. § 6105 and 18 Pa.C.S. § 3925, respectively.
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On October 18, 2014, Hillary Encrasion and Antonia 

Sundberg observed Appellant, who was wearing a red hoodie

and carrying a firearm, along with another individual exit their 

neighbor’s back door, creep around in their backyard, and 

proceed down the alleyway to another house. They described 

Appellant as a black male with short braided hair. Moments 

later, Ms. Sundberg observed Appellant and the other individual 

enter the front door of the home they previously exited. 

Appellant was wearing a black t-shirt and no longer wore the red 

hoodie.

Erie Police Department Lieutenant Anthony Talarico was 

dispatched to the area and when he approached, he observed 

Appellant in a black t-shirt exiting between two houses and 

entering the witnesses’ neighbor’s residence. After police 

approached the neighbor’s house, Appellant, now wearing a plaid 

shirt, and at least five other individuals exited the residence. 

While Appellant stood on the porch, both Encracion and 

Sundberg unequivocally identified Appellant as the person they 

observed carrying a firearm.

At the scene, Erie Police Department Officer Jamie Russo 

received information from another officer that a firearm was 

discarded in the alleyway. Russo located the firearm wrapped in 

a red/blue sweatshirt with a pile of leaves freshly placed on top 

of it. Police later determined this was Houghton’s stolen firearm. 

DNA testing performed on both the firearm and sweatshirt failed 

to link either item to a specific individual.

After his arrest, Appellant told police that he had picked up 

the recovered firearm in the alleyway and immediately placed it 

back down.

On June 17, 2015, following a two-day jury trial, Appellant 

was found guilty of the aforementioned offenses. [The trial court 

obtained and reviewed a Pre-Sentence Report.] 

Trial Court Opinion, filed 1/7/16, at 1-2 (citations omitted).

At sentencing, the trial court took Appellant’s personal characteristics 

and rehabilitative needs into consideration and reviewed the presentence 

report. The trial court stated, “I’ve considered the Pennsylvania Sentencing 
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Code and its various factors. I’ve got the benefit of a Pre[sentence Report]. 

. . . I’m going to impose a sentence right in the standard range of the 

guidelines.” N.T. Sentencing, 9/17/15, at 10-11. The court then sentenced 

Appellant to a term of 60 to 120 months’ imprisonment for possession of 

firearm, and a concurrent term of 52 to 120 months’ imprisonment for 

receiving stolen property. On September 28, 2015, Appellant filed a Motion 

for Post Sentence Relief, which the trial court denied on September 29, 

2015. On October 23, 2015, Appellant filed a Notice of Appeal. Both 

Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents two issues for our review:

[1.] The evidence in this case was insufficient to prove that the 

[Appellant] committed the crimes of Person Not to Possess 

Firearms and Receiving Stolen Property[.]

[2.] The lower court commit[t]ed reversible error in that its 

sentence was manifestly extreme and clearly unreasonable, and 

not individualized as required by law, considering the 

[Appellant’s] age, background and rehabilitative needs[.]

Appellant’s Brief at 2 (capitalization omitted).

Appellant first challenges the sufficiency of the evidence supporting his 

convictions for Persons Not to Possess Firearms and Receiving Stolen 

Property. We review claims challenging the sufficiency of the evidence by 

considering whether, viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, “there is sufficient evidence to enable 

the fact-finder to find every element of the crime beyond a reasonable 

doubt.” Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014). 
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The trier of fact—while passing on the credibility of the witnesses and 

the weight of the evidence—is free to believe all, part, or none of the 

evidence. Id. at 40. Moreover, a jury may base a conviction solely on 

circumstantial evidence. Id. In conducting this review, the appellate court 

may not weigh the evidence and substitute its judgment for that of the factfinder. Id.

The offense of Persons Not to Possess Firearms provides, in relevant 

part, that “[a] person who has been convicted of an offense enumerated in 

subsection (b) ... 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. § 6105(a)(1), 

(b).

The crime of Receiving Stolen Property is defined, in relevant part, as 

follows: 

A person is guilty of theft if he intentionally receives, retains, or 

disposes of movable property of another knowing that it has 

been stolen, or believing that it has probably been stolen, unless 

the property is received, retained, or disposed with intent to 

restore it to the owner.

18 Pa.C.S. § 3925(a).

“Possession can be found by proving actual possession, constructive 

possession, or joint constructive possession.” Commonwealth v. Heidler, 

741 A.2d 213, 215 (Pa. Super. 1999). Where a defendant is not found in 

actual possession of the firearm, the Commonwealth must establish that the 
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defendant had constructive possession of it to support the conviction. 

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

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. 

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.

Id. (citations omitted).

Constructive possession cases are fact-specific. See Commonwealth 

v. Stembridge, 579 A.2d 901, 904 (Pa. Super. 1990) (noting the “difficulty 

of drawing bright lines in this area of the law.”). “As with any other element 

of a crime, constructive possession may be proven by circumstantial 

evidence.” Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 

1996).

Appellant argues that the Commonwealth failed to present any 

evidence that connected Appellant to the previous burglary of the firearm. 

Additionally, Appellant avers that no evidence demonstrated that he “knew 

the gun was stolen or even intentionally exercised any control over the gun” 

because he “picked up a gun and then put it down when he realized what it 

was.” Appellant’s Brief at 9.

The trial court concluded that the evidence was sufficient to support 

Appellant’s convictions for Persons Not to Possess Firearms and Receiving 
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Stolen Property because the Commonwealth proved constructive possession 

of the firearm. The court noted that Appellant “discarded the firearm in an 

alleyway and attempted to conceal it by wrapping it in a sweatshirt and 

placing it underneath a pile of leaves.” Trial Court Opinion, filed 1/7/16, at 

3-5.

We agree with the trial court’s assessment. Two witnesses observed 

Appellant in possession of the firearm and Appellant admitted to picking up 

the stolen firearm. Moreover, the two witnesses and Officer Talarico 

provided sufficient circumstantial evidence that Appellant constructively 

possessed the stolen firearm because he attempted to discard the firearm in 

an alleyway by wrapping it in his sweatshirt and covering it with a pile of 

leaves. Accordingly, we reject Appellant’s sufficiency claims and affirm his 

convictions.

Appellant next challenges the discretionary aspect of his sentence. 

“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction 

when challenging the discretionary aspects of a sentence.” 

Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa. Super. 2015). The test 

includes: (1) preserving the issue in the court below; (2) filing a timely 

Notice of Appeal; (3) including a Pa.R.A.P. 2119(f) statement; and (4) 

raising a substantial question for our review. Id. at 797-98 (citation 

omitted); Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013).
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Our Supreme Court in Commonwealth v. Mouzon, 812 A.2d 617 

(Pa. 2002), held that “allegations of an excessive sentence raise a 

substantial question where the defendant alleges that the sentence violates 

the requirements and goals of the Code and of the application of the 

guidelines.” Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa. Super. 

2005) (internal quotation marks omitted); see also Mouzon, at 435, 812 

A.2d at 627. Moreover, a bald allegation of excessiveness will not suffice. 

Fiascki, supra at 263; see also Mouzon, supra at 627.

This Court held that “where the sentencing judge had the benefit of a 

presentence investigation report, it will be presumed that he or she was 

aware of the relevant information regarding the defendant’s character and 

weighed those considerations along with mitigating statutory factors.” 

Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004) (citation 

omitted). An allegation that the sentencing court “failed to consider” or “did 

not adequately consider” various factors is, in effect, a request that this 

Court substitute its judgment for that of the lower court in fashioning 

Appellant's sentence. Commonwealth v. Griffin, 804 A.2d 1, 9 (Pa. 

Super. 2004) (citation omitted). Additionally, such an allegation does not 

raise a substantial question that the sentence imposed was, in fact, 

inappropriate. Id.

In the instant case, Appellant preserved his sentencing challenge in his 

September 28, 2015 Post-Sentence Motion, and timely appealed. Appellant 
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filed a 2119(f) Statement, stating that “the sentence was manifestly 

excessive in that it was not individualized” and “the lower court abused its 

discretion when it could have handed down a lesser sentence with a shorter 

period of incarceration had it taken into consideration [Appellant’s] age, 

background, and rehabilitative needs.” Appellant’s Brief at 6.

As an initial matter, we note that the Appellant bases his argument 

that the sentence was manifestly excessive upon the assumption that the 

trial court imposed consecutive, and not concurrent, sentences. Appellant’s 

Brief at 10. This is incorrect. The trial court imposed concurrent sentences. 

N.T. Sentencing, 9/17/15, at 11. Thus, this argument fails.

Appellant also erroneously assumes that the trial court failed to 

consider that: (1) he was only 21 years old at the time of the incident; (2) 

he had received a high school diploma while incarcerated at SCI Pine Grove; 

(3) he has a three-month-old son; and (4) “he had found the weapon in 

question and picked it up and otherwise had no connection to it.” 

Appellant’s Brief at 10. Once again, the Appellant is misstating facts in the 

record. Appellant provided the court with testimony about these four 

mitigating circumstances, inter alia, during his sentencing hearing. N.T. 

Sentencing, 9/17/15, at 6-7. The trial court just chose to place little weight 

on these factors and the court’s discretion in doing so does not raise a 

substantial question. Griffin, supra at 9.
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Appellant also failed to state in his Rule 2119(f) Statement “where the 

sentence falls in relation to the sentencing guidelines[.]” Commonwealth 

v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc). Appellant 

notably omits this Rule 2119(f) requirement despite citing Goggins in his 

Brief. Appellant’s Brief at 5. Since the trial court sentenced the Appellant 

within the standard range set forth in the sentencing guidelines, the 

Appellant’s failure to follow the requirements of Rule 2119(f) and mention 

this fact, demonstrates Appellant’s lack of candor with the court. Appellant, 

instead, just characterizes the sentence as “excessive” or “extreme” without 

providing any legitimate basis to support his characterization. Thus, the 

Appellant again has failed to articulate effectively a substantial question.

Because Appellant has failed to raise a substantial question, this Court 

has no jurisdiction to review Appellant’s challenge to the discretionary 

aspects of his sentence. Griffin, supra at 9.

In light of the mischaracterizations of the record recounted above, we 

find it necessary to remind counsel of the obligations imposed by our Rules 

of Appellate Procedure and the Pennsylvania Rules of Professional Conduct. 

Pa.R.A.P. 2101 et seq.; Pa.R.P.C. 3.3(a)(1) (“Candor Toward the Tribunal”); 

see also First Union Mortg. Corp. v. Frempong, 744 A.2d 327, 329 (Pa. 

Super. 1999) (criticizing “cursory and factually incomplete” brief as 

inadequate).

Judgment of sentence affirmed.
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Judge Olson and Judge Platt concur in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/9/2016