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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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

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- 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 judgm ent of sentence imposed following his jury conviction of fleeing or att empting to elude a police officer, unauthorized use of automobiles and oth er vehicles, tampering with or fabricating physical evidence, criminal mischief, receiving stolen property (firearm), firearms not to be carried withou t a license, possession of a controlled substance, and possession of drug paraphern alia. 1 Specifically, Appellant challenges the sufficiency of th e evidence to support his convictions for receiving stolen property (firearm) and firearms not to be carried without a license. We affirm.

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* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S.A. § 3733(a); 18 Pa.C.S.A. §§ 3928(a), 4 910(1), 3304(a)(1), 3925(a), 6106(a)(1); 35 P.S. §§ 780-113(a)(16) and (a)(32), respectively.J-S56039- 14

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On January 15, 2012, Jennifer Colon stole a red Dodg e 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 Bure au of Police, while on routine patrol in a marked patrol car, observed Appel lant driving the truck and he ran the vehicle’s license plate to confirm that i t had been stolen. Officer Dockey activated his emergency lights and sirens, a nd Appellant accelerated, leading officers in a high-speed chase durin g 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 jum ped out of it while it was still moving. He fled on foot and the vehicle stru ck a tree. Police officers pursued Appellant and Officer Jeremy Brown obse rved him throw a bag of crack cocaine to the ground. Police arrested Appe llant and, during the search incident to arrest, found a yellow sheet of p aper on his person listing prices for cocaine and heroin at various quantiti es, and the names, addresses and phone numbers of various individuals. On January 16, 2012, police searched Mr. Mullinger’s tr uck and found a small loaded handgun and a blunt cigar in an open compartment built into the front passenger-side door. Polic e traced the gun’s serial number to Jason Philbin, who advised that the gun had been stole n from his home within the last three months. Crime laboratory test results showed a mixture of Appellant’s and two other male individual s’ DNA on the handgun.J-S56039- 14

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On April 23, 2013, following a two-day trial, a jur y found Appellant guilty of the above-stated offenses. The court held a sentencing hearing on November 14, 2013, at which the parties discussed the app ropriate structure for Appellant’s individual sentences a nd 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 ord er imposing an aggregate term of sixty- nine to 138 months’ incarceration. ( See Order, 11/22/13, at 2). On February 19, 2014, aft er hearing argument, the court entered an order and opinion den ying Appellant’s post

sentence motion. ( See Order, 2/19/14, at 1); see also Pa.R.Crim.P. 720(B)(3)(d). This timely appeal followed. 3 Appell ant raises one issue for our review: “Whether the eviden ce 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 incl uded in the certified record. We observe that the trial court apparently de ferred sentencing until its order dated November 14, 2013 was filed on Novemb er 22, 2013. We note that the Commonwealth does not challenge the ti meliness of Appellant’s post -sentence motion. ( See Commonwealth’s Brief, at 6). Accordingly, we give Appellant the benefit of the dou bt and deem his postsentence motion timely filed.

3 Pursuant to the trial court’s order, Appellan t timely filed a Rule 1925(b) statement of errors on April 17, 2014. The trial cou rt filed a Rule 1925(a) opinion on May 19, 2014, in which it referred this Co urt to its order and opinion entered February 19, 2014. See Pa.R.A.P. 1925.J-S56039- 14

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license and count 14, receiving stolen pr operty (firearm)?” (Appellant’s Brief, at 6). This issue is waived and would not meri t relief. We address challenges to the sufficiency of the evidence u nder 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 su fficient evidence to enable the fact-finder to find every elem ent of the crime beyond a reasonable doubt. In applying [the ab ove] test, we may not weigh the evidence and substitute our judgm ent 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 reg arding a defendant’s guilt may be resolved by the fact -finder unless the evidence is so weak and inconclusive that as a matter o f 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 reasonabl e doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be eva luated and all evidence actually received must be considered. Final ly, the trier of fact while passing upon the credibility of wi tnesses and the weight of the evidence produced, is free to believ e 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 issu e properly in his Pennsylvania Rule of Appellate Procedure 1925(b) co ncise statement, it is waived. This Court has held: when challenging the sufficiency of the evidence on appe al, the Appellant’s 1925[(b)] statement must specify the elemen t or elements upon which the evidence was insufficient in orde r to preserve the issue for appeal. Such specificity is of pa rticular importance in cases where, as here, the Appellant was co nvicted of multiple crimes each of which contains numerous element sJ-S56039- 14

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that the Commonwealth must prove beyond a reasonable doubt. Here, Appellant . . . failed to specify which element s he was challenging in his [Rule] 1925[(b)] statement . . . . While the trial court did address the topic of sufficiency in its opi nion, we have held that this is of no moment to our analysis be cause we apply Pa.R.A.P. 1925(b) in a predictable, uniform f ashion, not in a selec tive manner dependent on [a party’s] argument or a t rial 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 mark s omitted). Here, Appellant challenges the sufficiency of the evide nce supporting the jury’s guilty verdicts for firearms not to be carri ed without a license and receiving stolen property (the handgun). ( See Appellant’s Brief, at 16 -18). However, Appellant’s Rule 1925(b) statem ent does not identify which elements of the crimes the Commonwealth allegedly fail ed to prove. ( See Concise Statement, 4/17/14, at 1). Instead, his statem ent merely presents the same generic issue that he raises in his Statement of Questions Involved, sp ecifically: “Whether the evidence presented at trial was sufficient to support the jury’s verdict of guilt beyond a reasona ble doubt on Counts [sic] 16, Firearms Not to be Carried Without a License a nd Count 14, Receiving Stolen Property (firearm)?” ( Id. ). Accordingly, we conclude that Appellant’s challenge to the sufficiency of the eviden ce waived. See Gibbs , supra at 281; see also Commonwealth v. Garland , 63 A.3d 339, 344 (Pa. Super. 2013) (determining that appellant waive d his sufficiency claim where his “Pa.R.A.P. 1925(b) statement simply provided a generic statementJ-S56039- 14

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stating ‘[t]he evidence was legally insufficient to sup port 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 ha ndgun 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 handg un was in the passenger-side door of the truck, and that he merely w as using the vehicle. ( See id. at 17). While Appellant acknowledges that the Commonwealth’s evidence showed the presence of his and two other male i ndividuals’ DNA on the gun, he contends that, while entering the truck, “[ he] may have inadvertently come into contact with the pistol such tha t 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 li cense under this chapter commits a felony of the third degree.J-S56039- 14

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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 fire arm was unlicensed, and (c) that where the firearm was concealed on or about th e 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 re ceiving 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, ret aining, disposing, or lending on the security of movable property of anothe r; (2) with knowledge or belief that it was probably s tolen; 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 t he contraband, the Commonwealth [is] required to establish that heJ-S56039- 14

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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 t o 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 A ppellant 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 ther e 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 “l ittle bisket,” and that she had seen him with cigars similar to those found in t he truck. ( Id. at 80; see id. at 77, 89). The Commonwealth’s expert witness, Joseph Kukosky, aJ-S56039- 14

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forensic DNA scientist, testified that test results showed th e 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 dev elop 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 busine ss commonly carry firearms to protect themselves. ( See id. at 134, 144). Appellant testified in his defense and stated that Ms. C olon 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 p olice 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 tha t 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 l ight most favorable to the Commonwealth, se e Jannett , supra at 819, we would conclude that the evidence is sufficient to support the j ury’s finding that Appellant possessed the handgun and to sustain his convictio ns for firearms not to be carried without a license and receiving stolen property. Th e jury

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4 Specifically, Mr. Kukosky stated that it was 140 millio n, 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 Hispan ic populations, respectively. ( See N.T. Trial, 4/22/13, at 168, 172, 179).J-S56039- 14

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did not credit Appellant’s version of events, and it wa s 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