J-S65009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES EDWARDS COLE

Appellant No. 1526 WDA 2015

Appeal from the Judgment of Sentence September 2, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0013244-2013

BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 16, 2016

James Edwards Cole appeals from the judgment of sentence entered in 

the Court of Common Pleas of Allegheny County after his conviction, in a 

non-jury trial, for various firearms, drug, and traffic offenses.1 Upon careful 

review, we affirm.

The salient facts of this case have been gleaned from the trial court’s 

opinion and are as follows. On September 12, 2013, McKeesport Police 

Officer Steve Kondrosky was on patrol when he observed a blue Hyundai 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Cole was convicted of the following offenses: possession of firearm 

prohibited, 18 Pa.C.S.A. § 6105(a)(1); firearms not to be carried without a 

license, 18 Pa.C.S.A. § 6106(a)(1); resisting arrest, 18 Pa.C.S.A. § 5104; 

possession of marijuana, 35 P.S. § 780-113(a)(31); carrying a loaded 

weapon, 18 Pa.C.S.A. § 6106.1(a); and improper signal, 75 Pa.C.S.A. § 

3334(b).
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travelling eastbound on East Fifth Avenue. The vehicle was travelling in a 

prohibited driving lane and made an illegal left turn across three lanes of 

traffic onto the Duquesne McKeesport Bridge without using a signal. Officer 

Kondrosky pursued the vehicle, which finally pulled over after approximately 

one half of a mile, on Route 837 and Cochran Street in Duquesne. 

Officer Kondrosky approached the car’s driver, subsequently identified 

as Cole, and requested his license, insurance and registration information. 

Cole provided the officer with his license, but indicated that he was not the 

car’s owner and could not find the insurance or registration. Officer 

Kondrosky advised Cole that the documents could usually be found either in 

the center console or glove compartment. However, Cole responded that he 

did not want to go in the glove box. Officer Kondrosky testified that Cole 

appeared nervous. Officer Kondrosky told Cole not to make any sudden 

movements while he waited for the dispatch center to respond with 

information regarding Cole’s license.

While Officer Kondrosky waited to hear from dispatch, he observed 

Cole lean over to the passenger-side of the vehicle, nearly disappearing from 

his line of sight. Officer Kondrosky told Cole to sit up and stop reaching 

around and Cole complied. Due to Cole’s movements and behavior, Officer 

Kondrosky called for backup. Lieutenant Connor Craig, a K-9 officer, 

Sergeant Mark Steele and Detective Vandelli Summers responded to the 

scene. As they arrived, Officer Kondrosky again approached Cole’s vehicle, 

at which point Cole again began to reach toward the passenger-side floor. 
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Officer Kondrosky yelled to Cole to sit up and stop reaching and proceeded 

to unholster his weapon, as he was not sure whether Cole was reaching for a 

gun. At that point the three backup officers had arrived, and they all 

approached the vehicle together. 

Officer Kondrosky asked Cole why he had disobeyed his order not to 

reach around in the vehicle, at which time he detected the odor of marijuana 

and informed Cole of what he smelled. Officer Kondrosky then observed 

that Cole was sweating profusely and was unable to complete a sentence 

because he was so shaken up. As a result of Cole’s actions, movements and 

demeanor, Officer Kondrosky asked Cole to exit the vehicle. Cole replied, 

“for what?” and placed his foot on the brake as he reached for the center 

gearshift. Officer Kondrosky then pointed his weapon at Cole and informed 

him that he was not free to leave. After a few more demands by Officer 

Kondrosky, Cole exited the vehicle. Cole was placed at the rear of his 

vehicle. Officer Kondrosky informed Lieutenant Craig of Cole’s nervousness 

and movement while in the vehicle. As a result, Lieutenant Craig went to 

the passenger side of the vehicle and, through the window, observed what 

appeared to be the butt of a firearm protruding from the passenger seat 

floorboard. He stated “gun” to the other officers, at which time Cole fled 

across Route 837 as Sergeant Steele grasped the back of his shirt. 

Lieutenant Craig deployed his taser on Cole’s back, after which Cole was 

taken into custody. Lieutenant Craig recovered the firearm and another 
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officer located a baggie containing a small amount of marijuana in the 

vehicle.

Prior to trial, Cole filed a motion to suppress the firearm and 

marijuana, which the trial court denied. Cole also filed a motion to sever as 

to the possession of firearm prohibited charge, which the court also denied. 

A non-jury trial was held before the Honorable Philip A. Ignelzi on February 

18, 2015, after which the court found Cole guilty of the above charges. On 

September 2, 2015, the court sentenced Cole to a term of three to six years’ 

imprisonment on the possession of firearm prohibited charge and imposed 

no further penalty on the remaining counts. Cole did not file post-sentence 

motions. He filed a timely notice of appeal to this Court on October 2, 2015, 

followed by a court-ordered statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b). 

Cole raises the following issues for our review:

1. Whether the trial court erred in failing to sever [Cole’s] 

charge of [p]ossession of [f]irearm [p]rohibited . . . from his 

other charges[?]

2. Whether the evidence was insufficient as a matter of law to 

support [Cole’s] convictions for [possession of firearm prohibited 

and firearm not to be carried without a license]?

Brief of Appellant, at 4.

Cole first alleges that the trial court erred in failing to grant severance 

as to the charge of possession of firearm prohibited. A motion for severance 

is addressed to the sound discretion of the trial court, and its decision will 
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not be disturbed absent a manifest abuse of discretion. Commonwealth v. 

Melendez-Rodriguez, 856 A.2d 1278, 1282 (Pa. Super. 2004) (citation 

omitted). In reviewing the decision of the trial court, the critical 

consideration is whether the defendant was prejudiced by the trial court’s 

decision not to sever. Commonwealth v. Lopez, 739 A.2d 485, 501 

(1999). The Pennsylvania Supreme Court has reiterated the appropriate 

three-part test under this rule:

the court must determine: [1] whether the evidence of each of 

the offenses would be admissible in a separate trial for the 

other; [2] whether such evidence is capable of separation by the 

jury so as to avoid danger of confusion; and, if the answers to 

these inquiries are in the affirmative; [3] whether the defendant 

will be unduly prejudiced by the consolidation of offenses.

Melendez-Rodriguez, 856 A.2d at 1283 (citations and ellipses omitted). A 

defendant bears the burden of establishing prejudice. Lopez, 739 A.2d at 

501. 

Here, Cole was charged with persons not to possess firearms pursuant 

to section 6105 of the Crimes Code, which provides, in relevant part, as 

follows:

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

in subsection (b), within or without this Commonwealth, . . . 

shall not possess . . . a firearm in this Commonwealth.

18 Pa.C.S.A. § 6105(a)(1). Cole was previously convicted of rape, along 

with other disabling felonies enumerated in subsection (b) of section 6105. 

As such, Cole’s criminal record constituted one of the elements of proof 

necessary to the Commonwealth’s case. The trial court concluded that Cole 
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would suffer no prejudice if severance were not granted and that “since the 

[c]ourt [sat] as trier of fact . . . [it could] sort out any prior charges that Mr. 

Cole had” and apply the law as required. 

Cole asserts that the introduction of his criminal record required that 

the trial court sever the charge of persons not to possess from the remaining 

charges because “[t]he prejudice that comes from the introduction of 

conviction for crimes of violence is a special type of prejudicial evidence 

[sic].” Brief of Appellant, at 17. Cole argues that

[t]o distinguish between requiring severance in situations where 

a defendant requests a jury trial from those in which a defendant 

proceeds to a non-jury trial, is a slippery slope. Judges are 

human. What type of things bias us may be known but how 

they do so is not. It is simply impossible to say not only that a 

trial judge may not have been improperly motivated by certain 

things in reaching a decision but it is impossible for any human 

being to say something did not impact him or her. In other 

words, it is easy for a trial judge to say he or she was able to not 

improperly consider certain inflammatory evidence. It is quite 

another for a trial judge, being a human being, to actually know 

if that was true.

Id. at 16-17. 

In support of his claim, Cole cites to several cases in which this Court 

held that a charge under section 6105 must be severed from other charges 

where a defendant opts to proceed to trial and where evidence of the prior 

crime is not otherwise admissible to prove motive, intent, absence of 

mistake, common scheme or identity. See Commonwealth v. Jones, 858 

A.2d 1198 (Pa. Super. 2004); Commonwealth v. Neely, 444 A.2d 1199 

(Pa. Super. 1982); Commonwealth v. Galassi, 442 A.2d 328 (Pa. Super. 
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1982); and Commonwealth v. Carroll, 418 A.2d 702 (Pa. Super. 1980). 

However, these cases are all distinguishable from the case at bar because 

they were tried before juries and not before a judge. 

Cole also attempts to distinguish the case relied upon by the trial 

court, Commonwealth v. Gribble, 863 A.2d 455 (Pa. 2004). In that case, 

our Supreme Court held that the trial court did not err in declining to sever 

the defendant’s trial from that of his co-defendant. In doing so, the Court 

concluded that the defendant was not prejudiced because he was tried in a 

bench trial, in which 

[t]he learned trial judge is assumed to be able to separate the 

evidence that was admitted against the co-defendant alone and 

that which was admitted against appellant. Appellant’s present 

claim of prejudice is premised upon an assumption that the trial 

judge was unable to consider the evidence only for its intended 

evidentiary purpose. That assumption is contrary to settled law.

Id. at 462. Cole asserts that Gribble is distinguishable because it 

addresses severance of trials rather than charges. Under the circumstances 

of this case, we find that to be a distinction without a difference. In both 

scenarios, the trial court, sitting as finder of fact, is presented with evidence 

that is admissible for one purpose and not for another, and is tasked with 

considering the evidence only for its intended purposes. As our Supreme 

Court noted, it is settled law that judges are capable of doing just that. See 

id. As this Court has previously stated, 

Judges, . . . by virtue of their legal training and professional 

experience[,] can be expected to sift through the evidence, 

critically analyze it, and discard that which is not properly 
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presented. As a result, an appellate court can more readily 

presume proper decision making when the trier of fact is a 

judge.

Commonwealth v. Walls, 415 A.2d 890, 893 (Pa. Super. 1979) (citation 

omitted). Accordingly, inasmuch as the Supreme Court concluded in 

Gribble that a trial judge is capable of separating evidence admitted against 

one co-defendant alone from that admitted against another co-defendant in 

the same trial, we find that a trained, experienced jurist is capable of 

considering evidence of a defendant’s prior convictions only for the purpose 

for which it is admissible. 

In any event, Cole has failed to demonstrate how he was prejudiced by 

the court’s alleged abuse of discretion. 

An abuse of discretion is not merely an error of judgment, but is 

rather the overriding or misapplication of the law, or the exercise 

of judgment that is manifestly unreasonable, or the result of 

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

record.

Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015). Here, 

there is no evidence that the court exhibited any bias or ill-will toward Cole. 

To the contrary, at sentencing, the court gave Cole a “break,” see N.T. 

Sentencing, 9/2/15, at 33, and imposed the minimum sentence for his 

violation of section 6105. Moreover, Cole received no further penalty on the 

remaining convictions. Accordingly, as the Commonwealth points out in its 

brief, Cole was not penalized for the charges on which he was allegedly 

prejudiced by the admission of the prior conviction evidence. 

For all the foregoing reasons, Cole’s first claim is meritless.
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Cole next asserts that the evidence was insufficient to sustain his 

convictions for possession of firearm prohibited and firearm not to be carried 

without a license. Specifically, Cole argues that the evidence was insufficient 

to prove either actual or constructive possession of the firearm located under 

the passenger-side seat. There is no merit to this claim.

As a general matter, our standard of review of sufficiency claims 

requires that we evaluate the record in the light most favorable 

to the verdict winner giving the prosecution the benefit of all 

reasonable inferences to be drawn from the evidence. Evidence 

will be deemed sufficient to support the verdict when it 

establishes each material element of the crime charged and the 

commission thereof by the accused, beyond a reasonable doubt. 

Nevertheless, the Commonwealth need not establish guilt to a 

mathematical certainty. Any doubt about the defendant’s guilt is 

to be resolved by the fact finder unless the evidence is so weak 

and inconclusive that, as a matter of law, no probability of fact 

can be drawn from the combined circumstances.

The Commonwealth may sustain its burden by means of wholly 

circumstantial evidence. Accordingly, the fact that the evidence 

establishing a defendant’s participation in a crime is 

circumstantial does not preclude a conviction where the evidence 

coupled with the reasonable inferences drawn therefrom

overcomes the presumption of innocence. Significantly, we may 

not substitute our judgment for that of the fact finder; thus, so 

long as the evidence adduced, accepted in the light most 

favorable to the Commonwealth, demonstrates the respective 

elements of a defendant’s crimes beyond a reasonable doubt, 

the appellant’s convictions will be upheld. 

Commonwealth v. Franklin, 69 A.3d 719, 722–23 (Pa. Super. 2013) 

(internal citations and punctuation omitted). 

Possession of a firearm is an essential element of the two statutes at 

issue in this claim, and is the only element challenged by Cole on appeal. 

Where possession is an element of a crime, the Commonwealth may 
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demonstrate actual or constructive possession. Here, the firearm was not 

located on Cole’s person. Thus, the Commonwealth was required to 

establish constructive possession. 

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). Possession may be shown by circumstantial evidence. 

Commonwealth v. Bentley, 419 A.2d 85, 87 (Pa. Super. 1980)

Here, the evidence showed that Cole was the driver and sole occupant 

of a vehicle in which a firearm was found within arms-reach of the driver’s 

seat. Officer Kondrosky testified that Cole repeatedly leaned over and 

appeared to reach for something on the passenger-side of the vehicle before 

being instructed to stop. Moreover, Cole demonstrated consciousness of 

guilt by acting nervous and “shaken up” and sweating profusely. Cole also 

attempted to flee across Route 837 before finally being tasered and taken 

into custody. The conduct of an accused following a crime, including 

“manifestations of mental distress,” is admissible as tending to show guilt. 

Commonwealth v. Hughes, 865 A.2d 761, 792 (Pa. 2004). Based upon 

the totality of the circumstances, we conclude that the Commonwealth’s 

evidence was sufficient to establish that Cole had constructive possession of 
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the firearm and, therefore, was sufficient to support his convictions for 

possession of firearm prohibited and firearm not to be carried without a 

license.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/16/2016