J-S35039-22

2022 PA Super 202

COMMONWEALTH OF PENNSYLVANIA

v.

ENDER RADAMES ARIAS 

Appellant

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 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 charges. 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. We 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, possession of marijuana, and possession of drug 

paraphernalia.

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* Former Justice specially assigned to the Superior Court.
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On September 16, 2020, Appellant filed an 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. On 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, Scranton Police Officer Kyle Gilmartin was on patrol 

at the Valley 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 an individual parked in a gold 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 

belonged 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 an odor of marijuana emanating through the 

driver’s side window that was partially open. Id. at 5-6.

Officer Gilmartin knocked on the driver’s window, encountered 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 how 
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long 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 marijuana coming 

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

denied 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 Gilmartin summoned the assistance of other officers, asked 

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

removed from the vehicle if he did not comply. Id. at 8. When Appellant still 

would not comply, Officer Gilmartin informed Appellant 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 Bezeleski, 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 of 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 Taylor 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 trial, 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 DNA 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 Appellant and two unknown individuals 
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than three unknown individuals. Id. at 217-221. 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 people 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, 2021, the trial court found Appellant guilty of persons 

not to possess a firearm.

On February 3, 2022, the trial court sentenced Appellant to an 

aggregate term of five to fourteen years’ imprisonment. On February 10, 

2022, Appellant filed a post-sentence 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 

violation [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 committed 
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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 court 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 review 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's 
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sole province as factfinder to pass on the credibility 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.Ed.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 

warrantless 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, 579–81 (Pa.Super. 2022) (citing Commonwealth v. Roland, 637 

A.2d 269, 270-271 (Pa. 1994)).

Further, our courts in Pennsylvania previously recognized the federal 

automobile exception, which permitted police to conduct a warrantless search 

or seizure of an automobile solely based on probable cause without any need 
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for a separate finding of exigent circumstances. At the time of the vehicle 

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

pursuant to Commonwealth 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 automatically 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, 90 

(Pa.Super. 2014) (en banc).

Our review of the record reveals that Appellant never raised the issue 

of exigent 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 subissue 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 these 
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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 Pennsylvania. Barr, 266 A.3d at 41.

Nevertheless, as the Controlled Substance, Drug, Device, and Cosmetic 

Act (“CSA”)2 deems marijuana to be a prohibited substance 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 “the 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 

warrantless search.” Id.

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

on the odor of marijuana emanating from the vehicle in determining that

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1 35 P.S. §§ 10231.101-10231.2110.

2 35 P.S. §§ 780.101-780.144.
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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 approached the vehicle and smelled 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 fortyfive minutes. As Appellant denied smoking marijuana and claimed there was

no marijuana in the vehicle, there was no evidence Appellant was permitted

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

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

the vehicle was idle in the high crime area, 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.
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In the remaining claims, Appellant 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 concluded this claim was meritless and upheld the trial court’s denial of

Appellant’s suppression motion.

Appellant’s failure to 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 

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

However, Appellant did adequately develop his challenges to the 

sufficiency and weight of the evidence supporting his conviction for receiving 

stolen property (“RSP”). This Court has clarified the 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 “notwithstanding 
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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 all 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 trial, 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 reweigh 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 that 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 challenge to the sufficiency of the evidence supporting his 

RSP conviction has two parts. First, Appellant claims the Commonwealth failed 
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to meet its burden to show the 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 the NCIC record which reported the 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 evidentiary 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 

would 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); Pa.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 concerning the identity of 

the printouts, when they were made, how they were obtained, and their mode 

of preparation”).
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Therefore, we reject Appellant’s claim that the prosecution failed to

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

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

Second, Appellant argues there was insufficient evidence to show he had 

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

mere possession of the property was not sufficient evidence to show 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 

recently 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, 1099–1100 (Pa.Super. 2019). 

In Gomez, the defendant refused to cooperate with officers’ 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 a 
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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 firearms were stolen. This Court found other circumstantial evidence would 

allow the jury to infer that the defendant believed the firearms were stolen, 

primarily in the consciousness of guilt demonstrated by his non-cooperation

during the traffic stop. Id. at 1100. While Appellant alleged that his conduct 

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

felon in possession of a firearm, this 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 stolen.” 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 was 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 would 
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have to resort to illegitimate means and product streams to procure a 

firearm”).

In the instant 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

cooperate with their repeated requests 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 he 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 Appellant was a previously convicted felon who was not

permitted to purchase or possess a firearm, he could not obtain a firearm
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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 totality of the circumstances, the prosecution

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 probably stolen, and that Appellant intended

to permanently deprive its rightful 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 with 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 exercise of discretion, not of 

the underlying question of whether the verdict is against the

weight of the evidence.
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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 testimony 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 had 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 the 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 bodycams 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 

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

facing the front of the vehicle 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 DNA 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 

events, 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.” 

Commonwealth 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