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2022 PA Super 202

COMMONWEALTH OF PENNSYLVANIA

v.

ENDER RADAMES ARIAS

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 543 MDA 2022
Appeal from the Judgment of Sentence Entered February 3, 2022 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP

- 35

- CR

- 0001049

- 2020

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E. *

OPINION BY STEVENS, P.J.E.: FILED NOVEMBER 30, 2022

Appellant Ender Radames Arias appeals from the judgment of sentence

entered by the Court of Common Pleas of Lackawanna County after Appellant

was convicted of several violations of the Uniform Firearms Act (VUFA)
, receiving stolen property
, and related cha rges. Appellant raises challenges to

the trial court’s denial of his suppression motion as well as the sufficiency and

weight of the evidence supporting his convictions. W e affirm.

On June 19, 2020, officers found Appellant in possession of marijuana

and a firearm reported as stolen . Thereafter, Appellant was charged with

persons not to possess a firearm, possession of a firearm without a license,

receiving stolen property, disarming a law enforcement officer, resisting

arrest, obstruction of justice, posse ssion of marijuana, and possession of drug

paraphernalia.

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.J

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On September 16, 2020, Appellant filed a n omnibus pretrial motion,

which included a request to suppress evidence based on allegations that the

police conducted a warrantless vehicle search not supported by probable

cause. O n October 27, 2020, the Honorable Michael Barrasse held a hearing

on the pretrial motion at which the following factual history was developed.

On June 19, 2020, S cr anton Police Officer Kyle Gilmartin was on patrol

at the Vall ey View Housing Complex, an area that the police had been

monitoring due to increased crime , including drug and firearm violations

. Notes of Testimony (N.T.), Omnibus Motion Hearing, 10/27/20 , at 3

- 4.

Officer Gilmartin observed a n individual parked in a g old Mercedes sedan

in an area where vehicles typically do not park , away from the houses and

parking lots of the housing complex. Id

. at 4

- 5. When Officer Gilmartin initially

observed the vehicle, he ran the vehicle’s license plate which he discovered

belo nged to a Honda sedan owned by a female from Jessup

. Id

. at 4

- 5.

After the vehicle did not move for forty

- five minutes and the vehicle’s

occupant did not exit, Officer Gilmartin pulled his patrol car behind the vehicle

without activating his emergency lights. Id

. at 5. Officer Gilmartin approached

the vehicle on foot and noticed a n odor of marijuana emanating through t he

driver’s side window that was partially open. Id

. at 5

- 6.

Officer Gilmartin knocked on the driver’s window, e ncountered Appellant

sitting in the driver’s seat , and asked a few questions

. Id

. at 5

- 6. Officer

Gilmartin testified that Appellant did not appear to be paying attention to what

was “going on around him.” Id . When Officer Gilmartin asked Appellant howJ

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lon g he had been sitting there, Appellant stated that he had been there for

ten minutes. Id

. After Officer Gilmartin told Appellant he had been watching

him for forty

- five minutes, Appellant disagreed. Id

.

After Officer Gilmartin commented on the smell of ma rijuana coming

from the car, Appellant admitted that the car smelled like marijuana, but

denie d smoking marijuana , stated that there was no marijuana in the car, and

indicated that the vehicle was not his car. Id

. at 6

- 7.

At that point, Officer Gilmartin asked Appellant to step out of the car,

indicating that he did so due to the high crime area, the long time frame in

which Appellant was sitting in the car without doing anything, the vehicle’s

position in an area where cars typically do not park, the fact that the car had

a tag on it that it was not assigned by PennDOT, the odor of marijuana, and

Appellant’s behavior when Officer Gilmartin approached. Id

. at 7.

Appellant did not comply with Officer Gilmartin’s requests to exit the

vehicle. Officer Gilmart in summoned the assistance of other officers, asked

Appellant repeatedly to exit the vehicle, and informed him that he w ould be

removed from the vehicle if he did not comply. Id

. at 8. When Appellant still

would not comply, Officer Gilmartin informed Appel lant that the vehicle’s

window would be broken if Appellant continued to refuse to comply. Id

. After Appellant was ultimately removed from the vehicle, the officers

discovered a loaded firearm with a round in the chamber under the driver’s

seat of vehicle as well as a small amount of marijuana. Id

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On April 6, 2021, Judge Barrasse denied Appellant’ s suppression motion.

Due to court congestion, this case was transferred to the Honorable Margaret

Bisignani Moyle, who scheduled Appellant’s jury trial for November 15, 2021.

At trial, Officer Scott Be zeleski, one of the officers that arrived to assist

Officer Gilmartin during the stop of Appellant’s vehicle, testified for the

prosecution. He recalled that before Appellant exited his vehicle, Officer

Bezeleski observed Appellant repeatedly reaching underneath the driver’s seat

of the vehicle. N.T. Trial, 11/17/ 21, 35

- 36, 78

- 79

. These movements made

Officer Bezeleski concerned that Appellant was trying to retrieve a weapon or

contraband from underneath the seat. Id

. at 36. Once Appellant was removed

from the vehicle, Officer Bezeleski observed the handle o f a firearm directly

under the driver’s seat. Id

. at 87

- 88.

Upon seizure of the firearm, the officers noted that the serial number

on the firearm was PY124307. Further investigation by Officer Ta y lor Dunn

revealed the firearm had been reported stolen from the Scranton residence of

an individual named Charles Thorne

. Id . at 7

- 12, 102. While Mr. Thorne was

subpoenaed to testify at Appellant’s tr ial, he did not appear. Id . at 12.

Britney Lenig, a member of the State Police Forensic Unit
, offered expert

testimony in the field of DNA profiling and compared Appellant’s D NA with

DNA found on the firearm, magazines, and cartridges. N.T. Trial, 11/16/21, at

204

- 208, 211

- 12. Ms. Lenig testified that DNA found on the firearm consisted

of a mixture of three contributors and opined that it was 25 nonillion times

more likely that the profile included Appell ant and two unknown individualsJ

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than three unknown individuals. Id

. at 217

- 22 1

. Ms. Lenig stated that

nonillion is a number followed by 30 zeros. Id

. at 220

- 21. As a point of

reference, Ms. Lenig noted there are approximately 7.9 billion peo ple on Earth,

which is a number followed by 9 zeros. Id . at 221.

At the conclusion of the trial, the jury found Appellant guilty of

possessing a firearm without a license , receiving stolen property, resisting

arrest, and obstruction of justice. The jury found Appellant not guilty of

disarming a police officer. The prosecution withdrew the charges of possession

of marijuana and possession of drug paraphernalia. In a bifurcated portion of

trial on November 18, 2 021 , the trial court found Appellant guilty of persons

not to possess a firearm.

O n February 3, 2022, the trial court sentenced Appellant to an

a ggregate term of five to fourteen years’ imprisonment

. On February 10,

2022, Appellant filed a post

- sen tence motion, which the trial court

subsequently denied. This timely appeal followed.

Appellant raises the following issues for review:

A. Whether the trial court erred when it denied Appellant’s motion to suppress evidence discover[ed] in his vehicle in violatio n [of] Commonwealth v. Barr , 266 A.3d 25 (Pa. 2021), which held that the smell of marijuana alone is insufficient to establish probable case in order to conduct a warrantless search of his vehicle?

B. Whether the Commonwealth proferred sufficient evidence to prove beyond a reasonable doubt that Appellant committed the offense of receiving stolen property, 18 Pa.C.S.A. § 3925?

C. Whether the Commonwealth proferred sufficient evidence to prove beyond a reasonable doubt that Appellant committ edJ

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- the offense of possession of a firearm, prohibited , 18 Pa.C.S.A. § 6105(a)(1) ?

D. Whether the Commonwealth proferred sufficient evidence to prove beyond a reasonable doubt that Appellant committed the offense of firearms not to be carried without a license, 18 Pa.C.S.A. § 6106(a)(1) ?

E. Whether the guilty verdict rendered on the offense of receiving stolen property, 18 Pa. C.S.A. § 3925 , was against the weight of the evidence?

F. Whether the guilty verdict rendered on the offense of possession of a firearm, prohibited, 18 Pa.C.S.A. § 6105(a)(1), was against the weight of the evidence?

G. Whether the guilty verdict rendered on the offense of firearms not to be carried without a license, 18 Pa.C.S.A. § 6106(a)(1), was against the weight of the evidence?
Appellant’s Brief, at 6.

Appellant first claims the trial court erred in denying his suppression

motion , alleging that the trial co u rt improperly found that the smell of

marijuana alone provided the requisite suspicion to search his vehicle.

In reviewing an appeal from the denial of a motion to suppress evidence,

we are guided by the following standard of review:

Our standard of revie w in addressing a challenge to a trial court's denial of a suppression motion is whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. When reviewing the ruling of a suppression court , we must consider only the evidence of the prosecution and so much of the evidence of the defense as remains uncontradicted when read in the context of the record. ... Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.
Commonwealth v. Eichinger , 591 Pa. 1, 915 A.2d 1122, 1134 (2007) (citations omitted). “It is within the suppression court'sJ

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sole province as factfinder to pass on the credibi lity of witnesses and the weight to be given their testimony.” Commonwealth v. Gallagher , 896 A.2d 583, 585 (Pa. Super. 2006). Moreover, our scope of review from a suppression ruling is limited to the evidentiary record that was created at the suppression hearing. In re L.J. , 622 Pa. 126, 79 A.3d 1073, 1087 (2013).

Commonwealth v. Bumbarger , 231 A.3d 10, 15, (Pa.Super. 2020)

. Appellant limits his challenge to claim that the warrantless search of his

vehicle was not supported by probable cause. Our review of this claim is

guided by the following principles:

The Fourth Amendment to the United States Constitution protects the right of people in this country to be secure against “unreasonable searches and seizures.” U.S. Const. amend. IV. Thus, pursuant to the protections of the Fourth Amendment, before a police officer may conduct a search, he must generally obtain a warrant that is supported by probable cause and authorizes the search. Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.E d.2d 854 (1973).

Commonwealth v. Reid , 811 A.2d 530, 544

– 45 ( Pa. 2002) (some footnotes

omitted).

However, there are exceptions to the warrant requirement

. A

w arrantless search of a residence is permissible if officers have probable cause

to believe evidence of crime will be found in the home and exigent

circumstances exist to compel the search. Commonwealth v. Edgin , 273

A.3d 573, 579

– 8 1 ( Pa.Super. 2022) (citing Commonwealth v. Roland , 637

A.2d 269, 270

- 271 ( Pa. 1994) )

. Further, o ur courts in Pennsylvania previously recognized the federal

au tomobile exception, which permitted police to conduct a warrantless search

or seizure of an automobile solely based on probable cause without any needJ

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for a separate findin g of exigent circumstances. At the time of the vehicle

search in this case, the automobile exception was valid in Pennsylvania

pursuant to Com monwealth v. Gary , 91 A.3d 102, 138 ( Pa. 2014)

. Since

then, our Supreme Court overruled Gary in Commonwealth v. Alexander
, 243 A.3d 177 (Pa. 2020) , concluding that Article I, Section 8 of the

Pennsylvania Constitution provides greater protection and only permits

warrantless vehicle searches upon a showing of probable cause and exigent

circumstances.

However, while the Supreme Court in Alexander announced a new rule

of criminal law , defendants are “ not aut omatically entitled to the retroactive

application of the Alexander decision .” Commonwealth v. Heidelberg , 267

A.3d 492, 502 ( Pa.Super. 2021) (citing Commonwealth v. Grooms , 247

A.3d 31, 37 n.8 (Pa.Super. 2021)). “To be entitled to retroactive application

of a new constitutional rule, a defendant must have raised and preserved the

issue in the court below.” Commonwealth v. Newman , 99 A.3d 86, 9 0

(Pa.Super. 2014) ( en banc )

.

Ou r review of the record reveals that Appellant never raised the issue

of exigen t circumstances requirement or cited to the Alexander decision

before the trial court or in his Rule 1925(b) statement . As such, as Appellant

failed to preserve this argument for appeal, this particular sub issue is waived

and we need not apply Alexander to this case.

Instead, we must evaluate the trial court’s conclusion that the officers

had probable cause to justify the warrantless vehicle search . Under theseJ

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circumstances, “police have probable cause where the facts and circumstances

within the officer's knowledge are sufficient to warrant a person of reasonable

caution in the belief that an offense has been or is being committed. ”

Commonwealth v. Barr , 266 A.3d 25, 40 (Pa. 2021) (citations omitted).

Pursuant to the “plain smell” doctrine, Pennsylvania courts historically

held that the smell of marijuana alone would provide officers probable cause

to conduct a warrantless search. However, the Supreme Court recognized that

the 2016 enactment of the Medical Marijuana Act (“MMA”)
, 1 which created a

limited exception for legal possession and use of medical marijuana under

certain circumstances, invalidated the “plain smell” doctrine as marijuana is

no longer per se illegal in Penns ylvania. Barr , 266 A.3d at 41.

Nevertheless, as the C ontrolled Substance, Drug, Device, and Cosmetic

Act (“CSA”) 2 deems marijuana to be a prohibited substanc e for individuals not

qualified under the MMA, the Supreme Court found that the smell of marijuana

can still be indicative of criminal activity. Barr , 266 A.3d at 41

. As a result,

the Supreme Court concluded that “t he odor of marijuana may be a factor,

but not a stand

- alone one, in evaluating the totality of the circumstances for

purposes of determining whether police had probable cause to conduct a

warr antless search. ” Id

.

In this cas e, the trial court found that Officer Gilmartin did not rely solely

on the odor of marijuana emanating from the vehicle in de termining that

_________________ __________ ______ ____ _______

1 35 P.S. §§ 10231.101

- 10231.2110.

2 35 P.S. §§ 780.101

- 780.144.J

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probable cause existed to justify a vehicle search. Officer Gilmartin testified

that he witnessed the vehicle parked for 45 minutes in a location where

vehicles are not typically parked in a high crime area known for drug and

weapons violations. Moreover, Officer Gilmartin ’s investigation revealed that

the vehicle’s license plate was registered to different vehicle owned by a

someone else, a female

. While Appellant characterizes this as a minor

summary infraction, he fails to acknowledge that this is a more serious

violation as being an attempt to conceal the true identification of the vehicle.

Officer Gilmartin approache d the vehicle and smell ed the odor of

marijuana. Appellant, the vehicle’s male occupant, was not paying attention

to what was going on around him and stated he had only been in the car for

ten minutes when the officer observed Appellant sitting in the vehicle for forty

five min utes. As Appellant denied smoking marijuana and claimed there was

no marijuana in the vehicle
, the re was no evidence Appellant was p ermitted

to use medical marijuana

. When officers asked Appellant to exit the vehicle,

Appellant repeatedly refused and had to be forcibly removed from the vehicle.

Viewing the totality of the circumstances, we agree with the trial court

that the officers had probable cause to conduct the search given the peculiar

lo cation of the car where vehicles do not typically park
, the time frame that

the vehicle was idle in the high crime are a , the fact that the vehicle had a

license plate registered to another vehicle
, the odor of marijuana, Appellant’s

dishonesty, and his combative behavior. As a result, we conclude the trial

court did not err in denying Appellant’s suppression motion.J

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In the remaining claims
, A ppellant challenges the sufficiency and weight

of the evidence supporting his convictions for possessing a firearm without a

license, persons not to possess firearms, and receiving stolen property.

As an initial matter, we note that Appellant does not offer any analysis

in his appellate brief to support his challenges to his convictions for the

charges of possessing a firearm without a license and persons not to possess

a firearm. Instead, Appellant baldly asserts that the firearm should have been

suppressed as fruit of the poisonous tree based on his allegation that they

were seized during an unlawful warrantless search. However, as noted above,

we conclud ed this claim was meritless and upheld the trial court’s denial of

Appellant’s suppression motion.

Appellant’s failure t o develop these claims with argument, applicable

authority, and pertinent analysis results in the waiver of his claims.

Commonwealth v. Antidormi , 84 A.3d 736 (Pa.Super. 2014) (“[a]s

Appellant has cited no legal authorities nor developed any meaningful

ana lysis, we find this issue waived for lack of development”).

However, Appellant did adequately develop his c hallenges to the

sufficiency and weight of the evidence supporting his conviction for receiving

stolen property (“RSP”)

. This Court has clarified th e difference between

sufficiency and weight claims:

The distinction between a claim challenging the sufficiency of evidence and a claim challenging the weight of evidence is critical. A motion for a new trial on the grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but claims that “notwithstandingJ

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all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with al l the facts is to deny justice.” A claim challenging the sufficiency of the evidence, however, asserts that there is insufficient evidence to support at least one material element of the crime for which Appellant has been convicted.

Commonwealth v. Lyons , 833 A.2d 245, 258 (Pa.Super. 2003) (citation

omitted).

Our standard of review for a challenge to the sufficiency of the evidence

is well

- established:

In reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at tria l, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense. Commonwealth v. Moreno , 14 A.3d 133 (Pa.Super. 2011). Additionally, we may not r eweigh the evidence or substitute our own judgment for that of the fact finder. Commonwealth v. Hartzell
, 988 A.2d 141 (Pa. Super. 2009). The evidence may be entirely circumstantial as long as it links the accused to the crime beyond a reasonable doubt. Moreno , supra at 136.

Commonwealth v. Juray , 275 A.3d 1037 (Pa.Super. 2022) (quoting

Commonwealth v. Koch
, 39 A.3d 996, 1001 (Pa.Super. 2011)).

To sustain a RSP conviction , the prosecution must prove th at the

defendant “(1) intentionally acquir [ed ] possession of the movable property of

another; (2) with knowledge or belief that it was probably stolen ; and (3) the

intent to deprive permanently.” Commonwealth v. Robinson , 128 A .3d 261,

265 (Pa.Super. 2015) ( en banc ) (citing 18 Pa.C.S. A. § 3925(a) )

. Appellant’s chall enge to the sufficiency of the evidence supporting his

RSP conviction has t wo parts. First, Appellant claims the Commonwealth failedJ

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to meet its burden to show t he firearm found in his possession was stolen as

the prosecution failed to present the owner of the gun as a witness to verify

that the gun was his and that it was stolen

. While Appellant admits that the

prosecution presented th e NCIC record which reported t he firearm as stolen,

Appellant asserts that the NCIC record was inadmissible hearsay.

While Appellant asks this Court to review his sufficiency challenge

without consideration of the NCIC report, this Court has held that “[i]n

evaluating the sufficiency of the evidence, we do not review a diminished

record. Rather, the law is clear that we are required to consider all evidence

that was actually received, without consideration as to the admissibility of that

evidence or whether the trial court's evidentiar y rulings are correct.”

Commonwealth v. Gray , 867 A.2d 560, 567 (Pa.Super. 2005) (quoting

Commonwealth v . Palmer
, 751 A.2d 223, 227 (Pa.Super. 2000 ). 3

_________________ __________ ______ ____ _______

3 We note that Appellant did not raise or develop a specific challenge to the admissibility of the NCIC report on appeal. As such, this particular issue is waived. See Antidormi
, supra

. Even assuming this challenge was properly raised on appeal, Appellant

wo uld not be entitled to any relief. Appellant fails to recognize that this Court has held that NCIC records may be admissible under the business records exception to the hearsay rule. See 42 Pa.C.S.A. § 6108 (the Uniform Business Records as Evidence Act); P a.R.E. 803(6); Commonwealth v. Corradino
, 588 A.2d 936 (Pa.Super. 1991) (finding the trial court properly exercised its discretion in deeming NCIC printouts admissible under the business records exception when a state trooper “testified in detail concernin g the identity of the printouts, when they were made, how they were obtained, and their mode of preparation” ).J

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Therefore, we reject Appellant’s claim that the prosecution failed to

show the firearm found in Ap pellant’s possession was stolen as the jury was

permitted to rely on the NCIC report which reported the firearm as stolen.

Second, Appellant argu es there was insufficient evidence to show he had

the requisite knowledge that the firearm was stolen. Appellant argues that his

mere possession of the propert y was not sufficient evidence to sh ow the

knowledge element of the crime.

This Court has recognized that “[w] hile mere possession of stolen

property is insufficient to establish such knowledge, guilty knowledge may be

inferred from unexplained, or unsatisfactorily explained, possession of

r ecently stolen goods. ” Commonwealth v. Bowens , 265 A.3d 730, 745

– 46

( Pa.Super. 2021) ( en banc )
, appeal denied
, 279 A.3d 508 (Pa. 2022)

. Moreover, “guilty knowledge” may be proven through other

circumstantial evidence.

Circumstantial evidence of guilty knowledge may include, inter alia , the place or manner of possession, alterations to the property indicative of theft, the defendant's conduct or statements at the time of arrest (including attempts to flee apprehension), a false explanation for the possession, the location of the theft in comparison to where the defendant gained possession, the value of the property compared to the price paid for it, or any other evidence connecting the defendant to the crime.

Commonwealth v. Gomez , 224 A.3d 1095, 1099

– 1 100 ( Pa.Super. 2019 ).

In Gomez
, th e defendan t refused to cooperate with officer s ’ requests

during a routine traffic stop such that the officers forcibly extracted the

defendant and his passengers from the vehicle. Id . at 1097

- 98. During aJ

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subsequent search, the police discovered drugs and two stolen firearms, one

in the center console and one in a safe underneath the driver’s seat. Id

. This Court upheld the defendant’s RSP conviction despite the

prosecution ’s failure to establish any of the circumstances of how and when

the firearm s w ere stolen . T his Court found other circumstantial evidence would

allow the jury to infer that the defendant believed the firearm s w ere stolen,

primarily in the consciousness of guil t demonstrated by his non

- cooperation

during the traffic stop

. Id . at 1100. While Appellant alleged that his c onduct

could “be explained by other crimes he had committed,” specifically being a

felon in possession of a firearm
, t his Court found that “ [t] he fact

- finder need

not choose between [a defendant’s] several crimes to determine whether one

or more would cause [his] obstinate behavior. Rather, based on his conduct,

the fact

- finder was free to infer that Appellant knew or believed that the

firearms were probably s tolen.” Id

. Further, this Court in Gomez noted that the defendant’s status as a

previously convicted felon prohibited him from lawfully purchasing or

possessing a firearm. Thus, as the defendant likely had to obtain the stolen

firearms illicitly, there wa s adequate evidence for the jury to infer the

defendant believed the firearms were probably stolen. Id

. See also Bowens , ( upholding RSP conviction based on circumstantial evidence showing the

defendant knew the firearm was stolen including that fact that the defendant

was a convicted felon that was “unable to obtain any firearm legally, and wouldJ

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have to resort to illegitimate means and product streams to procure a

firearm” ).

In the insta nt case, the prosecution presented the NCIC report which

indicated that the firearm found in Appellant’s possession was stolen in June

2018 from an individual named Charles Thorne. N.T., 11/17/21, at 10

- 11.

While the underlying theft did not occur close to the time Appellant was found

in possession of the stolen firearm in June 2020
, other circumstantial evidence

presented by the Commonwealth provided the jury with a sufficient basis to

infer that Appellant knew or believed the firearm was stolen.

During the routine traffic stop, officers noticed that Appellant was

reaching under the driver’s seat where the firearm was eventually located.

Appellant then presented substantial resistance to the officers in refusing to

cooperat e with the ir repeated request s that he exit the vehicle
, which

ultimately resulted in the officers forcibly removing Appellant from his vehicle.

Based on this conduct, the jury could infer that Appellant had guilty knowledge

that he was in possession of a stolen firearm.

While an argument could be made suggesting that Appellant was

uncooperative with police as h e was a felon not permitted to possess a firearm
,

we need not conclude that the jury was required to determine which of

Appellant’s numerous crimes was the cause of Appellant’s guilty knowledge.

See Gomez
, supra

.

In addition
, as Appe llant was a previously convicted felon who was not

permitted to purchase or possess a firearm
, he could not obtain a firearmJ

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through legal means but would have to resort to illegal avenues to obtain a

firearm

. Further, the firearm’s listing on the NCIC database as stolen would

prevent the firearm from being sold in a legitimate transaction

.

When viewing the tota lity of the circumstances, the pros ecution

presented sufficient evidence to allow the jury to infer that Appellant

intentionally acquired possession of a stolen firearm, Appellant had guilty

knowledge that the firearms were probabl y stole n , and that Appellant intended

to permanently deprive its right ful owner of possession of the firearm.

Accordingly, the trial court did not err in denying this sufficiency challenge.

Appellant also challenges the weight of the evidence supporting his RSP

conviction. Our standard of review is well

- established:

The essence of appellate review for a weight claim appears to lie in ensuring that the trial court's decision has record support. Where the record adequately supports the trial court, the trial court has acted within the limits of its discretion.

A motion for a new trial based on a claim that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight w ith all the facts is to deny justice.
An appellate court's standard of review when presented with

a weight of the evidence claim is distinct from the standard of review applied by the trial court. Appellate review of a weight claim is a review of the exerc ise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence

.J

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Commonwealth v. Mucci , 143 A.3d 399, 410

– 11 (Pa.Super. 2016), (quoting Commonwealth v. Clay , 619 Pa. 423, 64 A.3d 1049, 1054

– 55 (2013)). To successfully challenge the weight of the evidence , a defendant must prove the evidence is “so tenuous, vague and uncertain that the verdict shocks the conscience of the court.” Mucci , 143 A.3d at 411 (quoting Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa .Super. 2003)).

Commonwealth v. Windslowe , 158 A.3d 698, 712 ( Pa.Super. 2017)

. Appellant reiterates the same claims he raised in support of his

sufficiency challenge to his RSP conviction . Although Appellant does not

challenge the prosecution ’s expert tes timony that his DNA was found on the

firearm
, Appellant asserts that the weight of the evidence supports the

defense theory that Appellant’s DNA was improperly transferred to the firearm

by the arresting officers. Appellant claims that Officer Gilmartin ha d physical

contact with Appellant in removing him from the vehicle and then Officer

Gilmartin touched the firearm without any gloves on.

However, Officer Gilmartin testified that he used gloves when removing

the firearm from the vehicle and in pulling th e chamber back so that he did

not have direct contact with the firearm

. N.T., 11/16/21, at 153 , 160. While

defense counsel noted that one of the officer’s body cams appeared to show

that the glove on Officer Gilmartin’s right hand was torn, Officer Gilmartin

noted that the glove was ripped near his wrist but still covered his palm and

fingers. Id . at 156, 158.

In addition, the officers testified that Appellant had repeatedly tried to

reac h under the driver’s seat where the firearm was located during the vehicle

stop. Id . at 78; N.T. Trial, 11/17/21, 35

- 36, 78

- 79. When officers discoveredJ

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the firearm in the vehicle, they noticed the handle of the loaded firearm was

facing the front of the v ehicle where it could be easily grabbed . This testimony

corroborates the forensic analysis that suggests Appellant ’s DNA was

transferred to the firearm when it was in his possession and control.

While the jury heard the defense’s theory that Appellant’s D NA was

improperly transferred to the firearm by Officer Gilmartin, the jury was free

to reject this theory and find the stolen firearm was in Appellant’s possession

and control

. Although Appellant asks this Court to accept his version of the

ev ents, it was within the province of the jury to “ believe all, part , or none of

the evidence and to determine the credibility of the witnesses .”

Com monwealth v. Houser , 18 A.3d 1128, 1135

– 36 ( Pa. 2011)

. We will not

disturb the trial court’s discretion to uphold the jury’s verdict which is

supported by the record.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/30/2022