J-S40029-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

JOSEPH JAMES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 2335 EDA 2019

Appeal from the Judgment of Sentence Entered July 19, 2019

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003953-2018

BEFORE: SHOGAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.: FILED OCTOBER 14, 2020

Appellant, Joseph James, appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas, following his bench 

trial conviction for persons not to possess firearms.

1

 We affirm. 

In its opinion, the trial court sets forth the relevant facts of this case as 

follows. 

On April 14, 2018, around 10:30 P.M., Police Officer Allen 

Reed responded to a police radio call with his partner, Police 

Officer Brian Waltman, in the area of 3227 West Hilton 

Street. Upon arrival, Officer Reed observed the front door 

to 3227 West Hilton Street was open, but the screen door 

was shut. The ground level of the residence was a basement 

level, meaning in order to go through the front door of the 

house, one would need to go up a flight of stairs. 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 6105(a)(1). 
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Officer Reed observed [Appellant], inside the house, coming 

down the steps from the second floor to the first floor. 

Officer Reed ordered, “Police come outside,” to which 

[Appellant] responded by shutting the front door and 

running inside the residence. Officer Reed and his partner 

ran up the flight of stairs to get to the front door and 

proceeded to enter the residence. Officer Reed observed a 

young woman, Karima Williams, standing in the living room 

and heard a set of footsteps rapidly going down the stairs 

beneath him. He radioed other police officers to go towards 

the back of the house to assist in apprehending [Appellant]. 

Officer Reed then ran out of the house and down Hilton 

Street in an attempt to cut [Appellant] off. When Officer 

Reed arrived at a breezeway close to the house, two other

police officers had apprehended [Appellant] and were 

attempting to cuff him. After assisting in cuffing 

[Appellant], Officer Reed and the other officers brought 

[Appellant] back to the front of the house and placed him in 

the back of a police car.

After [Appellant] was apprehended, Officer Reed and his 

partner questioned Ms. Williams, who was crying and 

appeared visibly upset with a high-pitched and upset tone 

of voice. As Ms. Williams was being questioned, an older 

woman who identified herself as Judy James, approached 

the residence. Ms. James was also visibly distraught. She 

too was crying, upset, and had a high-pitched tone of voice. 

Further, she had difficulty getting her words out and seemed 

like she was trying to catch her breath. 

Ms. James informed Officer Reed that she was the owner of 

the property and that she had gotten into a verbal argument 

with her son, [Appellant]. During the verbal argument, 

[Appellant] pulled out a firearm, pointed it at her, and began 

waving it around inside the living room. After making this 

statement, Ms. James gave verbal and written permission 

for police officers to search her house. Officer Reed later 

observed and recovered, from the ground floor, basement 

area, a black and silver Smith and Wesson .40 caliber

firearm which was loaded with 1 live round and a magazine 

with 11 [live] rounds. The firearm was found on top of a 

pile of clothes in a lidless storage container. Officer Reed 

also recovered 1 live round for a .40 caliber firearm in a 

bedroom in the upstairs portion of the home. 
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(Trial Court Opinion, filed October 30, 2019, at 1-3) (internal record citations 

omitted).

Procedurally, the Commonwealth charged Appellant with, inter alia, 

possession of an instrument of crime and persons not to possess firearms. On 

April 25, 2019, Appellant proceeded to a bench trial only on the persons not 

to possess firearms charge. At trial, Officer Reed testified about the events of 

the day in question. The parties also stipulated that Appellant is disqualified 

from carrying or possessing firearms. Immediately following trial, the court 

convicted Appellant of persons not to possess firearms.

The court sentenced Appellant on July 19, 2019, to three (3) to six (6) 

years’ incarceration, plus four (4) years’ probation. On July 29, 2019, 

Appellant filed a timely notice of appeal.2 The court ordered Appellant on 

August 30, 2019, to file a concise statement of errors complained of on appeal 

per Pa.R.A.P. 1925(b). On September 17, 2019, Appellant filed an application 

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2 “A direct appeal in a criminal proceeding lies from the judgment of sentence.” 

Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa.Super. 2007), appeal 

denied, 599 Pa. 691, 960 A.2d 838 (2008). Here, Appellant indicated in his 

notice of appeal that he was appealing from the April 25, 2019 verdict. 

Appellant’s appeal, however, correctly lies from the judgment of sentence. 

See id. Notwithstanding this technical error, we deem Appellant’s appeal as 

timely filed from the judgment of sentence. See Commonwealth v. Claffey, 

80 A.3d 780, 782-83 (Pa.Super. 2013), appeal denied, 624 Pa. 680, 86 A.3d 

231 (2014) (accepting appellant’s timely notice of appeal mistakenly listing 

verdict as appealed-from order, and deeming appellant’s appeal as from 

judgment of sentence). 
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for an extension of time to file a concise statement due to the unavailability 

of the notes of testimony. Appellant filed a Rule 1925(b) statement on 

October 23, 2019.3

Appellant raises the following issues for our review:

Was the evidence insufficient to prove Appellant committed 

the crime of possession of a firearm by a prohibited person 

because the Commonwealth failed to prove beyond a 

reasonable doubt the required element of possession[?] 

That element was not established either in actuality or 

constructively because the authorities found the gun not on 

Appellant’s person but in the basement of a residence that 

was not Appellant’s where other persons resided who had 

access to the gun. The evidence was also not sufficient 

because the Commonwealth did not prove that Appellant 

exercised dominion and control over the gun or that 

Appellant acted with the intent to possess the gun[.]

Did the trial court commit an abuse of discretion by 

overruling objections to testimony from Officer Reed 

concerning what Judy James told him because Ms. James’ 

comments to the officer constituted inadmissible hearsay 

and did not meet the requirements of [the] excited 

utterance exception to the hearsay rule[?] That is because 

the comments were testimonial in nature given that they 

were the product of questioning and were not made 

spontaneously and because there was no ongoing 

emergency taking place when the alleged comments were 

made because Appellant had already been apprehended.

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3 The record does not indicate whether the trial court granted Appellant’s 

extension request. In any event, this Court may address the merits of a 

criminal appeal, where a defendant files an untimely Rule 1925(b) statement, 

if the trial court had adequate opportunity and chose to prepare an opinion 

addressing the issue(s) raised on appeal. Here, the trial court issued an 

opinion addressing Appellant’s complaints. Therefore, we decline to consider 

Appellant’s issues waived, even if he filed an untimely Rule 1925(b) 

statement. See Commonwealth v. Burton, 973 A.2d 428, 433 (Pa.Super. 

2009) (en banc) (allowing for immediate review under these circumstances).
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(Appellant’s Brief at 3).

In his first issue, Appellant argues the evidence established merely that 

Appellant was in the proximity of where police found the firearm. Appellant 

emphasizes that no forensic evidence connected Appellant to the gun, and 

that the evidence did not indicate the gun in the basement was the same gun 

Appellant allegedly brandished at Ms. James. Appellant asserts there is no 

evidence that Appellant lived in Ms. James’ house or that anything in the 

basement was connected to Appellant. Appellant insists other individuals had 

access to the basement, and that his brief presence in the basement did not 

establish any association with the gun. Appellant submits the record did not 

show Appellant knew the gun existed, knew it was in the basement, or 

intended to control the gun. Appellant contends the Commonwealth 

presented no testimony from any witness who saw Appellant with a gun. 

Appellant concludes the trial evidence was insufficient to support his firearms 

conviction. We disagree. 

When reviewing a challenge to the sufficiency of the evidence supporting 

a conviction, we analyze:

[W]hether the evidence, viewed in the light most favorable 

to the Commonwealth as verdict winner, is sufficient to 

enable a reasonable [fact finder] to find every element of 

the crime beyond a reasonable doubt. See 

Commonwealth v. Cousar, 593 Pa. 204, 217, 928 A.2d 

1025, 1032 (2007).... In applying this standard, we bear in 

mind that the Commonwealth may sustain its burden by 

means of wholly circumstantial evidence; that the entire 

trial record should be evaluated and all evidence received 

considered, whether or not the trial court’s rulings thereon 
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were correct; and that the trier of fact, while passing upon 

the credibility of witnesses and the weight of the proof, is 

free to believe all, part, or none of the evidence. See id., 

928 A.2d at 1032–33; Commonwealth v. Chmiel, 585 Pa. 

547, 574, 889 A.2d 501, 517 (2005)[, cert. denied, 549 U.S. 

848, 127 S.Ct. 101, 166 L.Ed.2d 82 (2006)].

Commonwealth v. Reed, 605 Pa. 431, 436, 990 A.2d 1158, 1161 (2010), 

cert. denied, 562 U.S. 1020, 131 S.Ct. 549, 178 L.Ed.2d 402 (2010) (internal 

citation omitted). 

The Uniform Firearms Act provides, in relevant part, as follows: 

§ 6105. Persons not to possess, use, manufacture, 

control, sell or transfer firearms

(a) Offense defined.—

(1) A person who has been convicted of an offense 

enumerated in subsection (b), within or without this 

Commonwealth, regardless of the length of sentence or 

whose conduct meets the criteria in subsection (c) 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.A. § 6105(a)(1). 

“When contraband is not found on the defendant’s person, the 

Commonwealth must establish constructive possession....” Commonwealth 

v. Jones, 874 A.2d 108, 121 (Pa.Super. 2005). “Constructive possession is 

the ability to exercise conscious control or dominion over the illegal substance 

and the intent to exercise that control.” Id. 

Dominion and control means the defendant had the ability 

to reduce the item to actual possession immediately...or was 

otherwise able to govern its use or disposition as if in 

physical possession. ... Mere presence or proximity to the 
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contraband is not enough. Constructive possession can be 

established by inferences derived from the totality of the 

circumstances. 

Commonwealth v. Peters, ___ Pa. ___, ___, 218 A.3d 1206, 1209 (2019) 

(internal citations omitted). 

Moreover, a witness’ testimony alone is sufficient to prove possession. 

See, e.g., Commonwealth v. Antidormi, 84 A.3d 736, 757 (Pa.Super.

2014), appeal denied, 626 Pa. 681, 95 A.3d 275 (2014) (determining witness’ 

testimony alone was sufficient evidence to prove possession element under 

Section 6105(a)(1)). 

Instantly, the trial court found the Commonwealth presented sufficient 

evidence to sustain Appellant’s conviction, reasoning: 

In the instant matter, Ms. James gave a statement to Officer 

Reed in which she stated that she and [Appellant] had 

gotten into a verbal argument, [Appellant] pointed a gun at 

her, and began [waving] the gun around. ... Ms. James had 

no reason to lie about [Appellant], her son, possessing a 

gun when she gave her statement to police. Additional 

corroborating evidence supporting Ms. James’ testimony, 

was the testimony of Officer Reed that he recovered a 

firearm in a lidless, plastic storage container filled with 

clothing located in the exact area he had observed 

[Appellant] go downstairs and where he had heard the rapid 

footsteps of [Appellant]. There was no evidence that 

another person was in that location, the basement area, the 

area that [Appellant] fled and where the gun was recovered.

Based on these pieces of evidence, the Commonwealth has 

proven beyond a reasonable doubt that [Appellant] had 

knowledge of the firearm and he had previously exercised 

control over the firearm as evidenced by Ms. James’ 

statement to Officer Reed. These facts, although 

circumstantial, are more than sufficient evidence to support 

the [firearms] conviction beyond a reasonable doubt; i.e., 
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[Appellant] had knowledge, dominion and control of the 

firearm recovered from the lidless storage container and he 

had previously exercised control over the firearm as 

evidenced by his threat against Ms. James. For the reasons 

discussed above and in viewing the evidence in favor of the 

Commonwealth as verdict winner, there is sufficient 

evidence to support the [persons not to possess firearms] 

conviction.

(Trial Court Opinion at 4-5) (internal record citation omitted). We agree with 

the trial court’s conclusion.

Although Appellant argues that Ms. James’ statement to Officer Reed 

was inadmissible, for purposes of a sufficiency analysis we consider all

evidence presented at trial even if the court erred in admitting it.4 See Reed, 

supra; Cousar, supra. Officer Reed testified at trial that Ms. James told him

Appellant pointed a gun at her and waved the gun around the living room. 

Even without consideration of the circumstances surrounding the officer’s 

ultimate recovery of a gun in the house from which he saw Appellant flee, Ms. 

James’ statement alone was sufficient to establish possession. See 

Antidormi, supra. As well, the parties stipulated that Appellant was 

prohibited from possessing a firearm. Viewed in the light most favorable to 

the Commonwealth as verdict winner, the evidence was sufficient to establish 

Appellant’s conviction for persons not to possess firearms. See Reed, supra; 

18 Pa.C.S.A. § 6105(a)(1). 

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4 We address the admissibility of Ms. James’ statement in our discussion of 

Appellant’s second issue on appeal. 
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In his second issue, Appellant argues the trial court improperly admitted 

into evidence Ms. James’ statement to Officer Reed. Appellant asserts that

the record does not establish how much time elapsed between when the 

disturbing event occurred and when Ms. James spoke to Officer Reed. 

Appellant submits Ms. James made her statement to Officer Reed in narrative 

form. Appellant claims the evidence established no basis for Ms. James’ 

reliability. Appellant contends Ms. James’ statement failed to satisfy the 

excited utterance exception to the rule against hearsay. Appellant concludes 

Ms. James’ disclosure to Officer Reed constituted inadmissible hearsay, and 

this Court should grant him a new trial.5 We disagree. 

Our standard of review of a trial court’s admission or exclusion of 

evidence is well established and very narrow: 

Admission of evidence is a matter within the sound 

discretion of the trial court, and will not be reversed absent 

a showing that the trial court clearly abused its discretion. 

Not merely an error in judgment, an abuse of discretion 

occurs when the law is overridden or misapplied, or the 

judgment exercised is manifestly unreasonable, or the 

result of partiality, prejudice, bias, or ill-will, as shown by 

the evidence on record. 

Commonwealth v. Montalvo, 604 Pa. 386, 403, 986 A.2d 84, 94 (2009), 

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5 To the extent Appellant raises on appeal a Sixth Amendment Confrontation

Clause argument, that claim is waived for failure to specify it in his Rule 

1925(b) statement. See Commonwealth v. Hansley, 24 A.3d 410 

(Pa.Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d 1275 (2011) 

(explaining vague concise statement is functional equivalent of no statement 

at all; failure to specify claim of error in concise statement constitutes waiver 

on appeal).
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cert. denied, 562 U.S. 857, 131 S.Ct. 127, 178 L.Ed.2d 77 (2010) (internal 

citations and quotation marks omitted). “[A] discretionary ruling cannot be

overturned simply because a reviewing court disagrees with the trial court’s 

conclusion.” Commonwealth v. O’Brien, 836 A.2d 966, 968 (Pa.Super. 

2003), appeal denied, 577 Pa. 695, 845 A.2d 817 (2004) (internal citation and 

quotation marks omitted).

Pennsylvania Rule of Evidence 801 defines hearsay as follows:

Rule 801. Definitions That Apply to This Article

(a) Statement. “Statement” means a person’s oral 

assertion, written assertion, or nonverbal conduct, if the 

person intended it as an assertion.

(b) Declarant. “Declarant” means the person who made 

statement.

(c) Hearsay. “Hearsay” means a statement that

(1) the declarant does not make while testifying at the 

current trial or hearing; and

(2) a party offers in evidence to prove the truth of the 

matter asserted in the statement.

Pa.R.E. 801. 

Pennsylvania Rule of Evidence 803 sets forth exceptions to the hearsay 

rule, in pertinent part, as follows:

Rule 803. Exceptions to the Rule Against Hearsay—

Regardless of Whether the Declarant Is Available as a 

Witness

The following are not excluded by the rule against hearsay, 

regardless of whether the declarant is available as a 

witness:
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* * *

(2) Excited Utterance. A statement relating to a 

startling event or condition, made while the declarant was 

under the stress of excitement that it caused. ... 

* * *

Pa.R.E. 803(2). 

Our Supreme Court has explained:

As is well-settled, excited utterances fall under the common 

law concept of res gestae. Res gestae statements, such as 

excited utterances, present sense impressions, and 

expressions of present bodily conditions are normally 

excepted out of the hearsay rule, because the reliability of 

such statements are established by the statement being 

made contemporaneous with a provoking event. While the 

excited utterance exception has been codified as part of our 

rules of evidence since 1998, see Pa.R.E. 803(2), the 

common law definition of an excited utterance remains 

applicable, and has been often cited by this Court:

[A] spontaneous declaration by a person whose mind 

has been suddenly made subject to an overpowering 

emotion caused by some unexpected and shocking 

occurrence, which that person has just participated in 

or closely witnessed, and made in reference to some 

phase of that occurrence which [s]he perceived, and 

this declaration must be made so near the occurrence 

both in time and place as to exclude the likelihood of 

its having emanated in whole or in part from h[er]

reflective faculties.... Thus, it must be shown first, 

that [the declarant] had witnessed an event 

sufficiently startling and so close in point of time as to 

render her reflective thought processes inoperable 

and, second, that her declarations were a 

spontaneous reaction to that startling event.

The circumstances surrounding the statements may be 

sufficient to establish the existence of a sufficiently startling 

event.
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Commonwealth v. Murray, 623 Pa. 506, 540-41, 83 A.3d 137, 157-58 

(2013) (internal citations omitted). 

In determining whether a statement is an excited utterance, 

we have considered the following:

1) whether the declarant, in fact, witnessed the 

startling event; 2) the time that elapsed between the 

startling event and the declaration; 3) whether the 

statement was in narrative form (inadmissible); and, 

4) whether the declarant spoke to others before 

making the statement, or had the opportunity to do 

so.

These considerations provide the guarantees of 

trustworthiness which permit the admission of a hearsay 

statement under the excited utterance exception. It is 

important to note that none of these factors, except the 

requirement that the declarant have witnessed the startling 

event, is in itself dispositive. Rather, the factors are to be 

considered in all the surrounding circumstances to 

determine whether a statement is an excited utterance.

Commonwealth v. Keys, 814 A.2d 1256, 1258 (Pa.Super. 2003) (internal 

citations and quotation marks omitted) (emphasis omitted). 

Pennsylvania courts “have not established a bright line rule regarding 

the amount of time that may elapse between the declarant’s experience and 

her statement.” Commonwealth v. Gray, 867 A.2d 560, 570 (Pa.Super 

2005), appeal denied, 583 Pa. 694, 879 A.2d 781 (2005). “Rather, the crucial 

question, regardless of time lapse, is whether, at the time the statement is 

made, the nervous excitement continues to dominate while the reflective 

processes remain in abeyance.” Id. at 570-71 (internal quotation marks 

omitted). Furthermore, “a statement, which otherwise qualifies as an excited 
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utterance, is not precluded from falling within the excited utterance exception 

to the hearsay rule when made in response to questioning.” Commonwealth 

v. Colon, 102 A.3d 1033, 1039 (Pa.Super. 2014), appeal denied, 631 Pa. 710, 

109 A.3d 678 (2015). 

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

Here, Officer Reed testified that Ms. James’ statement was 

not the result of any detailed questioning or prolonged 

statement. In fact, Ms. James approached the officer and 

started speaking to him. Officer Reed observed that she 

was visibly distraught, she was crying, upset, speaking in a 

high-pitched voice, and she had a difficult time getting her 

words out, like she was trying to catch her breath. These 

observations by Officer Reed support that Ms. James, in 

fact, very recently witnessed a startling event and was still 

under the effect of that startling event when she spoke to 

Officer Reed and gave an account of what had transpired 

with her son. Upon consideration of the factors in 

determining whether an inadmissible hearsay statement 

should be admitted, the trial court determined that Ms. 

James’ statement was an excited utterance. Thus, it was 

properly admitted as evidence by the trial court. The trial 

court did not err by overruling [Appellant]’s objection to 

testimony by Officer Reed regarding [Ms.] James’ 

statement. 

(Trial Court Opinion at 7). We agree. The trial evidence showed that Ms. 

James’ alarming occurrence still greatly influenced her when she encountered 

Officer Reed. See Murray, supra; Gray, supra. We see no reason to disrupt 

the court’s evidentiary ruling under these circumstances. See Montalvo, 

supra; Pa.R.E. 803(2). Accordingly, we affirm.

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/14/2020