J-S56039-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

BASIL SALEEM GARCIA, 

 Appellant No. 498 MDA 2014 

Appeal from the Judgment of Sentence November 22, 2013 

in the Court of Common Pleas of Lycoming County 

Criminal Division at No.: CP-41-CR-0000357-2012 

BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

 

MEMORANDUM BY PLATT, J.: FILED OCTOBER 07, 2014 

Appellant, Basil Saleem Garcia, appeals from the judgment of sentence 

imposed following his jury conviction of fleeing or attempting to elude a 

police officer, unauthorized use of automobiles and other vehicles, tampering 

with or fabricating physical evidence, criminal mischief, receiving stolen 

property (firearm), firearms not to be carried without a license, possession 

of a controlled substance, and possession of drug paraphernalia.1

 

Specifically, Appellant challenges the sufficiency of the evidence to support 

his convictions for receiving stolen property (firearm) and firearms not to be 

carried without a license. We affirm. 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court.

1

 75 Pa.C.S.A. § 3733(a); 18 Pa.C.S.A. §§ 3928(a), 4910(1), 3304(a)(1), 

3925(a), 6106(a)(1); 35 P.S. §§ 780-113(a)(16) and (a)(32), respectively. 
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On January 15, 2012, Jennifer Colon stole a red Dodge truck from 

Dennis Mullinger, who reported the vehicle stolen to police. Ms. Colon then 

sold the stolen truck to Appellant in exchange for a $50.00 bag of crack 

cocaine. Officer Jason Dockey of the Williamsport Bureau of Police, while on 

routine patrol in a marked patrol car, observed Appellant driving the truck 

and he ran the vehicle’s license plate to confirm that it had been stolen. 

Officer Dockey activated his emergency lights and sirens, and Appellant 

accelerated, leading officers in a high-speed chase during which he ran 

numerous stop signs and drove at speeds in excess of eighty miles per hour. 

Appellant eventually lost control of the truck and jumped out of it while it 

was still moving. He fled on foot and the vehicle struck a tree. Police 

officers pursued Appellant and Officer Jeremy Brown observed him throw a 

bag of crack cocaine to the ground. Police arrested Appellant and, during 

the search incident to arrest, found a yellow sheet of paper on his person 

listing prices for cocaine and heroin at various quantities, and the names, 

addresses and phone numbers of various individuals. 

On January 16, 2012, police searched Mr. Mullinger’s truck and found 

a small loaded handgun and a blunt cigar in an open compartment built into 

the front passenger-side door. Police traced the gun’s serial number to 

Jason Philbin, who advised that the gun had been stolen from his home 

within the last three months. Crime laboratory test results showed a 

mixture of Appellant’s and two other male individuals’ DNA on the handgun. 
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On April 23, 2013, following a two-day trial, a jury found Appellant 

guilty of the above-stated offenses. The court held a sentencing hearing on 

November 14, 2013, at which the parties discussed the appropriate structure 

for Appellant’s individual sentences and the court stated its intention to 

sentence Appellant to an aggregate term of sixty-nine to 138 months’ 

incarceration.2

 On November 22, 2013, the court filed a sentencing order 

imposing an aggregate term of sixty-nine to 138 months’ incarceration. 

(See Order, 11/22/13, at 2). On February 19, 2014, after hearing 

argument, the court entered an order and opinion denying Appellant’s postsentence motion. (See Order, 2/19/14, at 1); see also Pa.R.Crim.P. 

720(B)(3)(d). This timely appeal followed.3

 

Appellant raises one issue for our review: “Whether the evidence 

presented at trial was sufficient to support the jury’s verdict of guilt beyond 

a reasonable doubt on counts [sic] 16, firearms not to be carried without a 

____________________________________________ 

2

 The notes of testimony from this hearing are not included in the certified 

record. We observe that the trial court apparently deferred sentencing until 

its order dated November 14, 2013 was filed on November 22, 2013. We 

note that the Commonwealth does not challenge the timeliness of 

Appellant’s post-sentence motion. (See Commonwealth’s Brief, at 6). 

Accordingly, we give Appellant the benefit of the doubt and deem his postsentence motion timely filed. 

3

Pursuant to the trial court’s order, Appellant timely filed a Rule 1925(b) 

statement of errors on April 17, 2014. The trial court filed a Rule 1925(a) 

opinion on May 19, 2014, in which it referred this Court to its order and 

opinion entered February 19, 2014. See Pa.R.A.P. 1925. 
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license and count 14, receiving stolen property (firearm)?” (Appellant’s 

Brief, at 6). This issue is waived and would not merit relief. 

We address challenges to the sufficiency of the evidence under the 

following standard of review: 

[W]hether 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. In applying [the above] test, 

we may not weigh the evidence and substitute our judgment for 

the fact-finder. In addition, we note that the facts and 

circumstances established by the Commonwealth need not 

preclude every possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder unless the 

evidence is so weak and inconclusive that as a matter of law no 

probability of fact may be drawn from the combined 

circumstances. The Commonwealth may sustain its burden of

proving every element of the crime beyond a reasonable doubt 

by means of wholly circumstantial evidence. Moreover, in 

applying the above test, the entire record must be evaluated and 

all evidence actually received must be considered. Finally, the 

trier of fact while passing upon the credibility of witnesses and 

the weight of the evidence produced, is free to believe all, part 

or none of the evidence. 

Commonwealth v. Jannett, 58 A.3d 818, 819-20 (Pa. Super. 2012) 

(citations omitted). 

However, because Appellant has failed to preserve his issue properly in 

his Pennsylvania Rule of Appellate Procedure 1925(b) concise statement, it 

is waived. This Court has held: 

when challenging the sufficiency of the evidence on appeal, the 

Appellant’s 1925[(b)] statement must specify the element or 

elements upon which the evidence was insufficient in order to 

preserve the issue for appeal. Such specificity is of particular 

importance in cases where, as here, the Appellant was convicted 

of multiple crimes each of which contains numerous elements 
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that the Commonwealth must prove beyond a reasonable doubt. 

Here, Appellant . . . failed to specify which elements he was 

challenging in his [Rule] 1925[(b)] statement . . . . While the 

trial court did address the topic of sufficiency in its opinion, we 

have held that this is of no moment to our analysis because we 

apply Pa.R.A.P. 1925(b) in a predictable, uniform fashion, not in 

a selective manner dependent on [a party’s] argument or a trial 

court’s choice to address an unpreserved claim.

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009), appeal 

denied, 3 A.3d 670 (Pa. 2010) (citations and quotation marks omitted). 

Here, Appellant challenges the sufficiency of the evidence supporting 

the jury’s guilty verdicts for firearms not to be carried without a license and 

receiving stolen property (the handgun). (See Appellant’s Brief, at 16-18). 

However, Appellant’s Rule 1925(b) statement does not identify which 

elements of the crimes the Commonwealth allegedly failed to prove. (See

Concise Statement, 4/17/14, at 1). Instead, his statement merely presents 

the same generic issue that he raises in his Statement of Questions 

Involved, specifically: “Whether the evidence presented at trial was sufficient 

to support the jury’s verdict of guilt beyond a reasonable doubt on Counts 

[sic] 16, Firearms Not to be Carried Without a License and Count 14, 

Receiving Stolen Property (firearm)?” (Id.). Accordingly, we conclude that 

Appellant’s challenge to the sufficiency of the evidence waived. See Gibbs, 

supra at 281; see also Commonwealth v. Garland, 63 A.3d 339, 344 

(Pa. Super. 2013) (determining that appellant waived his sufficiency claim 

where his “Pa.R.A.P. 1925(b) statement simply provided a generic statement 
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stating ‘[t]he evidence was legally insufficient to support the convictions’”) 

(record citation omitted). 

Moreover, even if Appellant’s sufficiency claim were not waived, it 

would still not merit relief. Appellant argues that the evidence was 

insufficient to support his convictions related to the handgun police found in 

Mr. Mullinger’s truck because the Commonwealth failed to show that 

Appellant was in knowing possession of it. (See Appellant’s Brief, at 16). 

Appellant asserts that he was not aware that the handgun was in the 

passenger-side door of the truck, and that he merely was using the vehicle. 

(See id. at 17). While Appellant acknowledges that the Commonwealth’s 

evidence showed the presence of his and two other male individuals’ DNA on 

the gun, he contends that, while entering the truck, “[he] may have 

inadvertently come into contact with the pistol such that he left traces of 

DNA on the weapon secreted in the door[.]” (Id. at 18; see id. at 17). This 

issue would not merit relief. 

The Crimes Code defines the offense of firearms not to be carried 

without a license, in relevant part, as follows: 

(a) Offense defined.—

(1) Except as provided in paragraph (2), any 

person who carries a firearm in any vehicle or any 

person who carries a firearm concealed on or about 

his person, except in his place of abode or fixed 

place of business, without a valid and lawfully issued 

license under this chapter commits a felony of the 

third degree. 
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18 Pa.C.S.A. § 6106(a)(1). 

To convict a defendant of this offense, the Commonwealth must prove: 

“(a) that the weapon was a firearm, (b) that the firearm was unlicensed, and 

(c) that where the firearm was concealed on or about the person, it was 

outside his home or place of business.” Commonwealth v. Coto, 932 A.2d 

933, 939 (Pa. Super. 2007), appeal denied, 948 A.2d 802 (Pa. 2008) 

(citation omitted). 

The Crimes Code defines the offense of receiving stolen property as 

follows: 

(a) Offense defined.—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. 

(b) Definition.—As used in this section the 

word “receiving” means acquiring possession, control 

or title, or lending on the security of the property. 

18 Pa.C.S.A. § 3925. 

A receiving stolen property conviction requires proof of: “(1) 

intentionally acquiring possession, control or title, retaining, disposing, or 

lending on the security of movable property of another; (2) with knowledge 

or belief that it was probably stolen; and (3) intent to deprive permanently.” 

Commonwealth v. Young, 35 A.3d 54, 63 (Pa. Super. 2011), appeal 

denied, 48 A.3d 1249 (Pa. 2012) (citations omitted). 

[Where an a]ppellant was not in physical possession of the 

contraband, the Commonwealth [is] required to establish that he 
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had constructive possession of the seized items to support his 

convictions. 

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. 

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

denied, 78 A.3d 1090 (Pa. 2013) (citations omitted). 

Here, at Appellant’s trial, Mr. Mullinger testified that the handgun and 

blunt cigar police found in his truck did not belong to him, and that he had 

never seen Jennifer Colon with a gun. (See N.T. Trial, 4/22/13, at 65, 68). 

Ms. Colon testified that, before she sold the truck to Appellant in exchange 

for crack cocaine, she looked inside of the vehicle to see if it contained 

anything that she could sell. (See id. at 78). She testified that she did not 

leave a gun or a cigar in the truck, and that if there had been a gun in the 

vehicle, she would have sold it for drugs. (See id. at 79-80). Ms. Colon 

stated that Appellant owned a gun that he nicknamed “little bisket,” and that 

she had seen him with cigars similar to those found in the truck. (Id. at 80; 

see id. at 77, 89). The Commonwealth’s expert witness, Joseph Kukosky, a 
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forensic DNA scientist, testified that test results showed the presence of 

Appellant’s DNA on the gun.4

 (See id. at 154, 158, 167-68, 172, 174). Mr. 

Kukosky opined that Appellant would have had to touch the gun in order for 

his DNA to be on it, because it is very difficult to develop a DNA profile from 

an object that has not been touched. (See id. at 175, 177). Officer Brown 

testified that individuals involved in the drug business commonly carry 

firearms to protect themselves. (See id. at 134, 144). 

Appellant testified in his defense and stated that Ms. Colon let him 

borrow the truck to go to a store. (See N.T. Appellant’s Trial Testimony, 

4/23/13, at 4-5). He explained that he fled from police when they 

attempted to stop him because he was on strict probation and did not want 

to be sent to state prison for driving without a license. (See id. at 6-8, 18). 

Appellant further testified that he did not know that there was a firearm in 

the truck, and that he never touched the handgun. (See id. at 9). 

Based on the foregoing, viewing the evidence in the light most 

favorable to the Commonwealth, see Jannett, supra at 819, we would 

conclude that the evidence is sufficient to support the jury’s finding that 

Appellant possessed the handgun and to sustain his convictions for firearms 

not to be carried without a license and receiving stolen property. The jury 

____________________________________________ 

4

 Specifically, Mr. Kukosky stated that it was 140 million, 5.5 million, and 7 

million times more likely that Appellant’s DNA was on the gun when 

compared to the Caucasian, African-American, and Hispanic populations, 

respectively. (See N.T. Trial, 4/22/13, at 168, 172, 179). 
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did not credit Appellant’s version of events, and it was within its province as 

fact-finder to assess the credibility of the witnesses and accept all, part, or 

none of the evidence. See id. at 820. Accordingly, Appellant’s challenge to 

the sufficiency of the evidence would not merit relief even if it were not 

waived. 

 Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 10/7/2014