J-S25004-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RONALD PARKER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1874 EDA 2022

Appeal from the Judgment of Sentence Entered June 28, 2022

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

No(s): CP-51-CR-0006152-2021

BEFORE: NICHOLS, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 23, 2023

Appellant Ronald Parker appeals from the judgment of sentence 

imposed following his convictions for possession of a firearm prohibited, 

firearms not to be carried without a license, carrying a firearm in public in 

Philadelphia, and possession of a firearm with an altered manufacturer’s

number.

1

 On appeal, Appellant challenges the sufficiency of the evidence, the 

weight of the evidence, and the discretionary aspects of his sentence. After 

careful review, we vacate Appellant’s sentence for possession of a firearm with 

an altered manufacturer’s number and remand for resentencing on that count, 

and we affirm the judgment of sentence in all other respects.

The trial court summarized the underlying facts of this case as follows:

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1 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 6108, and 6110.2(a), respectively.
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On March 30, 2021, at approximately 1:53am, Officer [Jeffrey] 

Kintsch and Officer Kelly[2] were on patrol in the area of 6000 

Elmwood Avenue. According to Officer Kintsch, he and his partner 

were patrolling the area because earlier that night and the 

previous night there was a residence struck with multiple 

gunshots. They were patrolling about a half a block away from 

the residence that was struck with multiple gunshots. 

During their patrol, Officer Kintsch and Officer Kelly parked their 

patrol vehicle at the stop sign on Edgewood and Elmwood. From 

across the street, the officers observed [Appellant] walking 

eastbound on the 600 block Elmwood Avenue. Officer Kintsch 

testified that “[Appellant] goes to the stop sign on Elmwood, looks

in our direction and turns around at the back of the pickup truck, 

then stops at the cab of the pickup truck. It would be the front 

part of the pickup truck. He stops. He bends down. And you see 

him toss something.” [N.T. Trial, 4/26/22, at 16]. The officers 

were [on] a two-lane highway and a parked car away from

[Appellant]. Officer Kintsch also stated that their vehicle windows 

were down, and they heard a metal clink after [Appellant] tossed 

something. After the Officers heard the metal clink, Officer 

Kintsch shines the patrol light underneath the car where he saw 

[Appellant] bend down and toss. They observed a firearm. After 

observing the firearm, Officer Kintsch made a left-hand turn 

because [Appellant] was walking westbound at that point. Then 

Officer Kelly exited the patrol vehicle to stop [Appellant]. Officer 

Kintsch recovered the firearm from right side of the truck, behind 

the front passenger tire. The firearm was a Polymer 80 model and 

it did not have a serial number. 

During their encounter with [Appellant], the officers were unable 

to verify [Appellant’s] identity because he gave them false 

information. [Appellant] told the officers his name was Peter 

Parker. However, they were able to verify his identity from a 

credit card or debt card that was on his person. 

After listening to Officer Kintsch’s testimony, viewing the exhibits 

and body cam footage, this court found [Appellant] guilty of all 

charges. This court stated[:]

It’s a circumstantial case. The circumstances such that at 

1:30 in the morning, in most neighborhoods, no one is out. 

And if you hear someone dropping any kind of metal onto 

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2 Police Officer Kelly’s first name does not appear in the record.
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concrete it’s going to be audible. And they weren’t 

particularly looking for him. They were routine patrolling. 

It’s not like they ran him down. So, for that reason I will 

find him guilty.

On June 28, 2022, [Appellant] was sentenced. At the 

sentencing hearing, the Commonwealth referred to a 

Disciplinary Report from the prison. [Appellant’s counsel] 

objected and noted for the record:

I didn’t review this and I’m not going to because it’s the 

morning of sentencing and it’s not fair for the 

Commonwealth to give me some sort of damaging evidence 

against my client without sufficient time to go over it and 

discuss it with my client. You can do what you want with it. 

I won’t depend on it . . . and under Brady,

[3] all inculpatory 

and exculpatory, not only for trial, but for sentencing has to 

be provided.

The Commonwealth stated that Brady did not apply. This court 

allowed the Commonwealth to continue to present the evidence 

regarding the Disciplinary Report from the prison. Ultimately, this 

court did not rely on the Disciplinary Report when determining 

[Appellant’s] sentence. . . . 

Trial Ct. Op., 11/8/22, at 1-3 (citations omitted and some formatting altered).

On June 28, 2022, the trial court sentenced Appellant to concurrent 

terms of four to eight years of incarceration followed by three years of 

probation for possession of a firearm prohibited and four to eight years of 

incarceration followed by three years of probation for possession of a firearm 

with an altered manufacturer’s number, with no further penalty for firearms 

not to be carried without a license and carrying a firearm in public in 

Philadelphia. Sentencing Order, 6/28/22. This resulted in an aggregate 

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3 Brady v. Maryland, 373 U.S. 83 (1963). 
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sentence of four to eight years of incarceration followed by three years of 

probation. Id. Appellant did not file post-sentence motions. 

Appellant filed a timely appeal. Both the trial court and Appellant 

complied with Pa.R.A.P. 1925. On appeal, Appellant raises the following

issues, which we have reordered as follows:

1. Did the trial court err, abuse its discretion, and/or make a 

mistake of law in upholding the verdict in the situation where 

there was insufficient evidence to demonstrate that Appellant 

was in physical possession or control of a firearm, whether 

visible, concealed about the person or within the person’s 

reach?

2. Did the trial court err, abuse its discretion, and/or make a 

mistake of law because the guilty verdict was against the 

weight of the evidence in the situation where [Appellant] was 

never in actual or constructive possession of a handgun?

3. Did the trial court err, abuse its discretion, and/or make a 

mistake of law when it relied at sentencing on a prison 

disciplinary report that was not disclosed in a timely fashion to 

defense counsel[?]

Appellant’s Brief at 6 (renumbered and some formatting altered).

Sufficiency of the Evidence

Appellant first argues that there was insufficient evidence supporting his 

conviction for possession of a firearm prohibited under 18 Pa.C.S. § 

6105(a)(1), graded as a first-degree felony. Id. at 17. Appellant contends 

that the Commonwealth was required to prove that Appellant “was in physical 

possession or control of a firearm, whether visible, concealed about the person 
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or within the person’s reach.” Id. (quoting 18 Pa.C.S. § 

6105(a.1)(1.1)(i)(B)).

4

 

Our standard of review is as follows:

The standard we apply in reviewing the sufficiency of the evidence 

is 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. 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 proof 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 the evidence actually 

received must be considered. Finally, the trier of fact while 

passing on the credibility of witnesses and the weight of the 

evidence produced, is free to believe all, part[,] or none of the 

evidence.

Commonwealth v. Bragg, 133 A.3d 328, 330-31 (Pa. Super. 2016) (citation 

omitted). Because a sufficiency of the evidence challenge raises a question of 

law, our standard of review is de novo, and our scope of review is plenary. 

Commonwealth v. Mikitiuk, 213 A.3d 290, 300 (Pa. Super. 2019).

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4

It was undisputed that Appellant had a prior conviction for robbery, which is 

an offense enumerated in 18 Pa.C.S. § 6105(b), and he was therefore 

prohibited from possessing a firearm pursuant to 18 Pa.C.S. § 6105(a)(1).4 

See N.T., Trial, 4/26/22, at 61-63. Accordingly, Appellant challenges only the 

possession element of the crime. See Appellant’s Brief at 17-18.
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The crime of possession of a firearm prohibited is defined, in relevant 

part, as follows:

(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.

* * *

(a.1) Penalty.—

* * *

(1.1) The following shall apply:

* * *

(i) A person convicted of a felony enumerated under 

subsection (b) or a felony under The Controlled 

Substance, Drug, Device and Cosmetic Act, or any 

equivalent Federal statute or equivalent statute of any 

other state, who violates subsection (a) commits a 

felony of the first degree if:

* * *

(B) at the time of the commission of a violation 

of subsection (a), the person was in physical 

possession or control of a firearm, whether 

visible, concealed about the person or within the 

person’s reach.

18 Pa.C.S. § 6105(a)(1), (a.1)(1.1)(i)(B).

The Commonwealth may meet its burden by proving constructive 

possession of contraband beyond a reasonable doubt and may do so using 

circumstantial evidence of a defendant’s possession of the item at issue. 
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Commonwealth v. Bowens, 265 A.3d 730, 741 (Pa. Super. 2021) (en 

banc), appeal denied, 279 A.3d 508 (Pa. 2022). This Court has defined 

constructive possession as follows:

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) (citation 

omitted). “The evidence must show a nexus between the accused and the 

item sufficient to infer that the accused had the power and intent to exercise 

dominion and control over it.” Commonwealth v. Peters, 218 A.3d 1206, 

1209 (Pa. 2019) (citation omitted). “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.” Id. (citations omitted).

Here, the trial court addressed Appellant’s constructive possession of 

the firearm as follows:

In the instant matter, circumstantial evidence is sufficient to prove 

that [Appellant] constructively possessed the firearm. Officer 

Kintsch saw [Appellant] stop at the front part of the pickup truck, 

bend down and toss something. Also, Officer Kintsch and his 

partner [were] able to hear the metal clink as the firearm hit the 

ground, because the windows of the patrol vehicle were down and 

it was approximately 1:53 a.m., meaning there was little to no 

noise in the area. 
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Trial Ct. Op., 11/8/22, at 5 (citation omitted and some formatting altered).

Following our review of the record, and in viewing the evidence in the 

light most favorable to the Commonwealth, we conclude that there was 

sufficient evidence to support the trial court’s conclusion that Appellant 

constructively possessed the firearm. See Bragg, 133 A.3d at 330-31; 

Bowens, 265 A.3d at 741. As noted above, the determination of whether a 

witness has testified credibly is a matter reserved solely for the factfinder, and 

the Commonwealth’s evidence “need not preclude every possibility of 

innocence.” See Bragg, 133 A.3d at 330-31. Here, based on Officer Kintsch’s 

testimony, it was reasonable for the trial court to conclude that Appellant 

possessed and controlled the firearm, and that when he saw the police officers, 

Appellant bent down near a truck and tossed the firearm under a vehicle where 

the officers discovered it. See Trial Ct. Op., 11/8/22, at 5-6; N.T., 4/26/22, 

at 15-17. The trial court had the opportunity to hear all the evidence 

presented by the Commonwealth over the course of the trial, was free to weigh 

the credibility of the witness, and believe all or part or none of the testimony. 

See Bragg, 133 A.3d at 330; see also 18 Pa.C.S. § 6105(a)(1), 

(a.1)(1.1)(i)(B). It is not for this Court to substitute its judgment for the 

factfinder and re-weigh the evidence. See id. Accordingly, Appellant is not 

entitled to relief on this claim.

Weight of the Evidence

Next, Appellant contends that the verdict was against the weight of the 

evidence. Appellant reiterates that he was not found in actual possession of 
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the firearm and contends that it was not reasonable for the trial court to

conclude that Appellant constructively possessed the firearm based on the 

officer’s testimony that he heard a “clink” sound from approximately three car 

lengths away. Appellant’s Brief at 16.

Although the trial court addressed Appellant’s challenge to the weight of 

the evidence in its opinion, the Commonwealth asserts that Appellant waived 

this issue because he failed to raise it before the trial court. Commonwealth’s 

Brief at 8.

When reviewing a weight-of-the-evidence challenge, we are governed 

by the following standard:

When reviewing a challenge to the weight of the evidence, we 

review the trial court’s exercise of discretion. A reversal of a 

verdict is not necessary unless it is so contrary to the evidence as 

to shock one’s sense of justice. 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. The fact-finder also has the responsibility of resolving 

contradictory testimony and questions of credibility. We give 

great deference to the trial court’s decision regarding a weight of 

the evidence claim because it had the opportunity to hear and see 

the evidence presented.

Commonwealth v. Roane, 204 A.3d 998, 1001 (Pa. Super. 2019) (citations 

omitted and formatting altered). 

However, when a defendant fails to raise a challenge to the weight of 

the evidence in the trial court, that challenge is waived. See Commonwealth 

v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012) (failing to properly preserve 

a challenge to the weight of the evidence results in waiver even if the trial 
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court addresses the issue in its opinion) (citations omitted); Pa.R.Crim.P. 

607(A)(1)-(3) (claim verdict was against weight of evidence shall be raised 

with trial judge in motion for new trial orally on record, by written motion 

before sentencing, or in post-sentence motion).

After review, we conclude that the record reflects that Appellant did not 

file post-sentence motions nor otherwise raise his challenge to the weight of 

the evidence before the trial court. Accordingly, we agree with the 

Commonwealth and conclude that this issue is waived. Roane, 204 A.3d at 

1001; Lofton, 57 A.3d at 1273.

Discretionary Aspects of Sentencing

Appellant next contends that the trial court relied on an improper factor 

at sentencing. Specifically, Appellant claims that the trial court improperly 

considered his prison disciplinary report, which the Commonwealth failed to 

disclose to the defense in a timely manner. Appellant’s Brief at 18-19. 

Appellant argues that Commonwealth’s failure to provide this report to the 

defense caused prejudice because Appellant’s counsel was unable to prepare 

a defense to the information in the report. Id.

Claims alleging that the trial court considered an improper sentencing 

factor involve the discretionary aspects of sentencing. See, e.g.,

Commonwealth v. Tobin, 89 A.3d 663, 667-69 (Pa. Super. 2014) (holding 

that the claim that the sentencing court improperly considered nolle prossed

charges was a challenge to the discretionary aspects of sentencing); 

Commonwealth v. Scott, 860 A.2d 1029 (Pa. Super. 2004) (holding that a 
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claim that the trial court relied on ex parte information not of record presents 

a challenge to the discretionary aspects of sentencing); see also 42 Pa.C.S. 

§ 9781. “[C]hallenges to the discretionary aspects of sentencing do not entitle 

an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987, 

991 (Pa. Super. 2016) (citations omitted). Before reaching the merits of such 

claims, we must determine:

(1) whether the appeal is timely; (2) whether Appellant preserved 

his issues; (3) whether Appellant’s brief includes a [Pa.R.A.P. 

2119(f)] concise statement of the reasons relied upon for 

allowance of appeal with respect to the discretionary aspects of 

sentence; and (4) whether the concise statement raises a 

substantial question that the sentence is inappropriate under the 

sentencing code.

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citations 

omitted).

“To preserve an attack on the discretionary aspects of sentence, an 

appellant must raise his issues at sentencing or in a post-sentence motion.

Issues not presented to the sentencing court are waived and cannot be raised 

for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247, 

1251 (Pa. Super. 2006) (citations 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”).

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Battles, 169 A.3d 

1086, 1090 (Pa. Super. 2017) (citation omitted). “A substantial question 
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exists only when the appellant advances a colorable argument that the 

sentencing judge’s actions were either: (1) inconsistent with a specific 

provision of the Sentencing Code; or (2) contrary to the fundamental norms 

which underlie the sentencing process.” Commonwealth v. Grays, 167 A.3d 

793, 816 (Pa. Super. 2017) (citation omitted).

Here, although Appellant did not file a post-sentence motion, he 

preserved the instant claim before the trial court by objecting to the 

Commonwealth’s use of the prison disciplinary report at sentencing. See N.T. 

Sentencing Hr’g, 6/28/22, at 12-13. Appellant also filed a timely notice of 

appeal and included a Rule 2119(f) statement in his brief. Therefore, 

Appellant preserved this issue. See Corley, 31 A.3d at 296. Further, 

Appellant’s assertion that the trial court considered an improper factor at 

sentencing raises a substantial question for review. See Commonwealth v. 

Crawford, 254 A.3d 769, 782 (Pa. Super. 2021).

Our well-settled standard of review is as follows:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by an error in judgment. Rather, 

the appellant must establish, by reference to the record, that the 

sentencing court ignored or misapplied the law, exercised its 

judgment for reasons of partiality, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision.

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation 

omitted). 
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The Commonwealth is required to turn over favorable evidence to the 

defendant when it is material to either the guilt or sentencing phase. 

Commonwealth v. King, 271 A.3d 437, 445 (Pa. Super. 2021) (citing 

Brady, 373 U.S. at 87)). To establish a Brady violation, the defendant has 

the burden of proving: “(1) the evidence at issue was favorable to the accused, 

either because it is exculpatory or because it impeaches; (2) the evidence was 

suppressed by the prosecution, either willfully or inadvertently; and (3) 

prejudice ensued.” Id. at 442 n.4 (citation omitted); see also

Commonwealth v. Murray, 174 A.3d 1147, 1152 (Pa. Super. 2017)

(explaining that defendant bears the burden of proving these three factors).

Here, after Appellant objected to the Commonwealth’s use of the prison 

disciplinary report at sentencing, the trial court stated: “I haven’t reviewed it. 

We’re going to let [the Commonwealth] continue and then we’re going to let 

your client go. I haven’t reviewed it yet, so we’re just going to go ahead.”

N.T. Sentencing Hr’g, 6/28/22, at 12-13. In its opinion, the trial court 

reiterated that it did not rely on or consider the report when it sentenced 

Appellant. See Trial Ct. Op., 11/8/22, at 7.

Because the trial court explicitly stated that it did not consider or rely 

on the report, we conclude that Appellant cannot establish prejudice and has 

failed to satisfy his burden with respect to his Brady claim. See Murray, 174 

A.3d at 1152. Likewise, because the trial court did not consider the report, 

Appellant’s claim that the trial court considered an improper sentencing factor 

is meritless. See Raven, 97 A.3d at 1253. For these reasons, Appellant is 
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not entitled to relief on his challenge to the discretionary aspects of his 

sentence.

Legality of Sentence

Finally, although Appellant did not raise this issue on appeal, we address 

the legality of the sentence because the issue is not waivable and may be 

raised by this Court on direct review. Commonwealth v. Dahl, 296 A.3d 

1242, 1253 (Pa. Super. 2023) (citation omitted); see also Commonwealth 

v. Tucker, 143 A.3d 955, 960 (Pa. Super. 2016) (stating that an illegal 

sentence must be vacated and requires remand for resentencing). When 

reviewing the legality of a sentence, “our standard of review is de novo and 

our scope of review is plenary.” Commonwealth v. Tighe, 184 A.3d 560, 

584 (Pa. Super. 2018) (citations omitted).

 It is well settled that a sentencing court may impose a split sentence 

that includes both incarceration and probation. Commonwealth v. Eid, 249 

A.3d 1030, 1036 (Pa. 2021) (citation omitted). However, when determining 

the lawful maximum term on a split sentence, the sentence imposed cannot 

exceed the statutory maximum. See id.; Commonwealth v. Crump, 995 

A.2d 1280, 1283-84 (Pa. Super. 2010). Therefore, when the statutory 

maximum sentence is ten years, the trial court cannot impose a total sentence 

that exceeds ten years. See Crump, 995 A.2d at 1184 (stating that where 

the statutory maximum is ten years, a defendant cannot receive a term of 
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incarceration followed by a term of probation where the total maximum 

exceeds ten years).5

As noted above, the trial court sentenced Appellant to a term of four to 

eight years of incarceration followed by three years of probation for possession 

of a firearm with an altered manufacturer’s number, which was graded as a 

second-degree felony. Sentencing Order, 6/28/22. This split sentence 

imposes a combined maximum sentence of eleven years, which exceeds the 

ten-year statutory maximum sentence for a second-degree felony. See 18 

Pa.C.S. §§ 106(b)(3); 1103(2); 6110.2(b). 

Accordingly, we are constrained to vacate Appellant’s judgment of 

sentence with respect to his conviction for possession of a firearm with an 

altered manufacturer’s number, and we remand for resentencing on that 

count.

6

 See Tucker, 143 A.3d at 960. 

Judgment of sentence for possession of a firearm with an altered 

manufacturer’s number vacated and remanded for resentencing on that count. 

Judgment of sentence affirmed in all other respects. Jurisdiction relinquished.

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5 The Crump Court provided an example stating that “a defendant cannot 

receive a term of incarceration of three to six years followed by five years [of] 

probation” because the total combined maximum term of eleven years would 

exceed the allowable maximum sentence of ten years. Crump, 995 A.2d at 

1284.

6 “Where we determine that a sentence must be corrected, this Court has the 

option of amending the sentence directly or remanding it to trial court for resentencing. If a correction by this Court may upset the sentencing scheme 

envisioned by the trial court, the better practice is to remand.” 

Commonwealth v. Phillips, 946 A.2d 103, 115 (Pa. Super. 2008)

(formatting altered and citation omitted).
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Date: 10/23/2023