J-S78002-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHAWN MCDANIEL,

Appellant No. 927 WDA 2015

Appeal from the Judgment of Sentence Entered September 24, 2012

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0009703-2011

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 23, 2016

Appellant, Shawn McDaniel, appeals from the judgment of sentence of 

41⁄2-9 years’ incarceration imposed following his conviction for multiple 

firearms offenses. Appellant claims that the verdict, which was premised on 

a finding that he constructively possessed a firearm, was against the weight 

of the evidence. After careful review, we affirm. 

The following is Appellant’s summary of the evidence produced at trial, 

which was uncontested by the Commonwealth in its own brief:

Officer Luptak with the Homestead Police Department 

testified that he was on patrol on May 31, 2011. He received a 

dispatch about a domestic disturbance at 911 West Street. He 

was in uniform when he arrived at the scene. Another officer, 

Officer Strang, also was at the scene. Officer Luptak observed 

an SUV parked in the front, and a man, Derek Wilkins, and 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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woman, Kelly Franklin, on the sidewalk. Derek Wilkins, told the 

officer that the male inside the SUV had threatened to shoot 

him. The officer identified [Appellant] as the male who was 

inside the SUV. He was sitting in the left rear passenger seat. 

There was a male driver and possibly a child in the vehicle. 

Neither Mr. Wilkins nor Ms. Franklin was presented as a 

Commonwealth witness to testify with regard to seeing 

[Appellant] display a gun.

Neither officer had heard [Appellant] make any threats. 

Officer Strang approached [Appellant] and asked him if he had 

any weapons. Officer Strang then opened the door for 

[Appellant] to step out. He told [Appellant] he was going to pat 

him down. At that point, [Appellant] stepped out of the vehicle 

and took off running. The two officers chased him[,] 

commanding him to stop. They were about 15 feet behind him. 

[Appellant] ran down Tenth Avenue then cut through an 

alleyway towards Ninth. Officer Luptak said that [Appellant] cut 

through some yards and jump[ed] over a chain link fence into 

some weeds leading into an apartment building parking lot. The 

officer asserted that he briefly lost sight of [Appellant] at that 

point. The weeded area was bordered by a railroad tie wall 

approximately 6 feet high that dropped down into the parking 

lot. Officer Luptak admitted that at no point did he see 

[Appellant] with a gun. He also did not see [Appellant] throw 

anything.

The police apprehended [Appellant] in the weeds about 20 

feet from where he jumped over the fence, and about 75 yards 

east and another 50 yards north from where he exited the

vehicle. The pursuit lasted approximately three minutes. He 

was in possession of what was later identified as crack cocaine 

and several Oxycodone pills. He was not wearing any gloves, 

and no gloves were found in the area.

After [Appellant] had been transported to the police 

station, the officers searched the area where [Appellant] was 

apprehended. A nine-millimeter Glock was discovered on top of 

the railroad tie wall that separated the weeded area from a 

parking lot. A broken magazine was on the pavement 4 to 6 feet 

below the gun. The officer did not remember if the gun was 

loaded. The gun was in a holster. The officer did not see 

[Appellant] place or throw the gun on the wall. 
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According to the Crime Lab, the firearm was found to be in 

good operating condition and had a four-inch barrel length. No 

fingerprints were found on the gun. The cartridge, bullets and 

holster were not tested for fingerprints.

Officer Ian Strang testified that he spoke with Ms. Franklin 

at the time of the incident. He claimed that Ms. Franklin told 

him she had gotten into an argument with [Appellant] earlier 

that day and he had threatened to shoot her. Ms. Franklin 

pointed out [Appellant] to the officer. She appeared upset. The 

officer did not include any of this information in his report. He 

did not see [Appellant] with a weapon, nor did Ms. Franklin or 

anyone else tell him that [Appellant] had a weapon.

The defense presented the testimony of Ms. Kelly Franklin. 

She stated that [Appellant] is her boyfriend, and was her

boyfriend at the time of the incident. Derek Williams was the 

father of one of her sons. Her brother drove her to Derek's 

house to retrieve her cellphone that Derek had taken from her 

earlier that evening at her mother's house. [Appellant] went 

with them and was sitting in the back seat with Ms. Franklin's 

kids. Ms. Franklin said that her brother got into an argument 

with Derek about returning the phone. However, she was 

certain that her brother did not make any threats about shooting 

anyone, nor did [Appellant]. Her brother stood on the running 

board of his vehicle yelling at Derek. [Appellant] stayed in the 

backseat and did not say anything. Ms. Franklin did not see 

[Appellant] with a weapon. 

[Appellant] confirmed Ms. Franklin's testimony. He denied 

that he threatened to shoot anyone. He had outstanding 

warrants from California for probation violations at the time. He 

denied having a gun on him. He admitted that he had narcotics 

in his possession. When the police asked him to get out of the 

car, he was afraid of being caught with the drugs so he ran 

away. 

Appellant’s Brief, at 8-11 (citations to the record omitted). 

Appellant’s non-jury trial occurred on May 1, 2012, following which the 

trial court found him guilty of two firearm offenses, 18 Pa.C.S. § 6105 

(“Persons not to possess, use, manufacture, control, sell or transfer 
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firearms”) and 18 Pa.C.S. § 6106 (“Firearms not to be carried without a 

license”), and one count of possession of a controlled substance, 35 P.S. § 

780-113(a)(16).1 On September 24, 2012, the trial court sentenced 

Appellant to 41⁄2-9 years’ incarceration for his Section 6105 offense, and to 

no further penalty at all remaining counts. 

After a protracted post-sentence history, Appellant’s appellate and 

post-sentence rights were reinstated by trial court order dated March 24, 

2015.2 Appellant then filed a nunc pro tunc post-sentence motion on April 1, 

2015. Following a hearing held on May 11, 2015, the motion was denied by 

the trial court. Appellant then filed a timely notice of appeal on July 10, 

2015. Appellant filed a court-ordered, Pa.R.A.P. 1925(b) statement on July 

27, 2015, and the trial court issued its brief Rule 1925(a) opinion 10 months’ 

later, on May 31, 2016. 

____________________________________________

1 The Commonwealth withdrew charges of resisting arrest and possession of 

a controlled substance with intent to distribute.

 

2 The procedural history leading to this outcome is not relevant to this 

appeal and, therefore, is only briefly summarized as follows. After failing to 

perfect his direct appeal, Appellant filed a pro se petition under the Post 

Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, in September of 2013. Prior 

counsel was appointed, who then amended the petition to include a claim 

seeking reinstatement of Appellant’s direct appeal rights nunc pro tunc. 

Following a change to current counsel, the petition was again amended to 

include a claim seeking reinstatement of Appellant’s post-sentence motion 

rights nunc pro tunc as well. As noted above, the court ordered the 

reinstatement of Appellant’s direct appeal and post-sentence motion rights 

nunc pro tunc on March 24, 2015. It appears from the record that the 

Commonwealth did not oppose this action. 
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Appellant now presents the following question for our review: 

Did the lower court abuse its discretion in denying the postsentence motion which averred that the verdict of guilty of 

violations of the Uniform Firearms Act as contrary to the [weight 

of the] evidence where none of the witnesses observed Appellant 

in possession of a firearm, Appellant was not found in possession 

of a firearm at the time of his arrest, and the police did not see 

Appellant throw or drop anything while they were pursuing him?

Appellant’s Brief, at 5 (unnecessary capitalization omitted). 

We apply the following standard of review to a challenge that a verdict 

is against the weight of the evidence:

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. 

Because the trial judge has had the opportunity to hear 

and see the evidence presented, an appellate court will 

give the gravest consideration to the findings and reasons 

advanced by the trial judge when reviewing a trial court's 

determination that the verdict is against the weight of the 

evidence. One of the least assailable reasons for granting 

or denying a new trial is the lower court's conviction that 

the verdict was or was not against the weight of the 

evidence and that a new trial should be granted in the 

interest of justice.

This does not mean that the exercise of discretion by the trial 

court in granting or denying a motion for a new trial based on a 

challenge to the weight of the evidence is unfettered. In 

describing the limits of a trial court's discretion, we have 

explained:

The term “discretion” imports the exercise of judgment, 

wisdom and skill so as to reach a dispassionate conclusion 

within the framework of the law, and is not exercised for 

the purpose of giving effect to the will of the judge. 

Discretion must be exercised on the foundation of reason, 
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as opposed to prejudice, personal motivations, caprice or 

arbitrary actions. Discretion is abused where the course 

pursued represents not merely an error of judgment, but 

where the judgment is manifestly unreasonable or where 

the law is not applied or where the record shows that the 

action is a result of partiality, prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations 

omitted). 

Appellant argues that the trial court abused its discretion in ruling 

against his weight-of-the-evidence challenge because 

the evidence used to support [Appellant]'s conviction relied 

solely on the police officers' testimony that [Appellant]'s 

girlfriend told them that [Appellant] threatened to shoot her, and 

that fact that a broken gun was found in the area where 

[Appellant] was arrested after fleeing from the police. At trial, 

[Appellant]'s girlfriend denied telling police that [Appellant] had 

threatened to shoot her or anyone else[.] In fact, Ms. Franklin's 

alleged statements to the police were not contained in the police 

report. Furthermore, no one testified as to hearing [Appellant] 

threaten to shoot anyone, observing [Appellant] in possession of 

a firearm, or to seeing him throw or drop anything as the police 

pursued him. Notably, illegal contraband was found in his 

pockets - it had not been dropped or discarded. The area in 

which the gun was found was located next to a parking lot and 

was accessible to the public in general. [Appellant] was not 

wearing gloves, but his fingerprints were not found on the gun, 

the holster, or the cartridge.

Appellant’s Brief, at 15-16 (citations omitted).

 The trial court credited Officer Luptak’s testimony that Appellant 

“threatened to shoot someone.” Trial Court Opinion (TCO), 5/31/16, at 4. 

Specifically, Officer Luptak testified that when he arrived on the scene to 

investigate a disturbance, Derek Wilkins told him that Appellant “threatened 

to shoot him.” Notes of Testimony (hereinafter “NT”), 5/1/12, at 8. The 
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trial court found this hearsay3statement credible, and reinforced 

circumstantially by Appellant’s flight from police when Appellant was asked if 

he had “any weapons on him[.]” Id. at 10. Furthermore, the firearm atissue “was located along the path that officers pursued [Appellant]. The 

firearm was found on the wall [Appellant] climbed over and a magazine 

matching the gun was located at the bottom of the wall in the weeds where 

it appeared [Appellant] had made a path.” TCO at 4. 

Thus, the evidence demonstrating Appellant’s constructive possession 

of the seized firearm was circumstantial. There were no direct observations 

of Appellant’s possessing the firearm. However, Appellant’s purported threat 

to use a firearm, his flight from police when asked if he was armed, and the 

discovery of a firearm on his subsequent flight path, all tend to suggest that 

Appellant possessed that firearm before abandoning it during his flight from 

police. 

This evidence was partially contradicted by Appellant’s testimony and 

the testimony of his girlfriend, Kelly Franklin. Appellant testified that he 

____________________________________________

3 The admissibility of such hearsay evidence is a wholly separate question 

from Appellant’s weight-of-the-evidence challenge. Notably, Appellant did 

not object at trial on hearsay grounds to this aspect of Officer Luptak’s 

testimony, nor to other statements attributed to Wilkins and Franklin as 

reported by the officers. If Appellant believes he was unduly prejudiced by 

the form of this evidence, independent of its content, he should have 

challenged the admission of these statements in the lower court, and raised 

such claims on appeal if unsuccessful. Appellant has not cited any basis for 

this Court to ignore or discredit such testimony because it was hearsay when 

considering the merits of his weight-of-the-evidence claim. 
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never possessed the firearm in question, NT at 55, and that he fled because 

of an outstanding warrant and his possession of controlled substances, id. at

54. Ms. Franklin testified that Appellant never made any threat to shoot 

anybody. Id. at 45. Ms. Franklin also denied Officer Strang’s testimony 

that, before Appellant’s flight and subsequent arrest, she had described 

Appellant’s threats or identified him for the officers when they arrived on the 

scene. Id. at 46-48. 

The trial court “did not find [Appellant]’s testimony credible.” TCO at 

4. Although it never said so specifically, it appears as if the trial court also 

disbelieved Ms. Franklin’s testimony. Given the totality of these 

circumstances, the court ruled that “it appropriately weighed the evidence” 

and “the court’s decision [did] not shock the conscience of the court.” Id.

We cannot ascertain any abuse of discretion in the trial court’s 

decision. It can be fairly said that proof of Appellant’s guilt for constructive 

possession of the seized firearm cannot be premised merely upon his 

purported threat to use a firearm, or his flight from police when asked if he 

was armed, or the discovery of a firearm on his subsequent flight path, when 

those circumstances are considered individually and/or in isolation. 

However, this web of facts, when considered in the aggregate, strongly 

suggests Appellant possessed the firearm in question, as the confluence of 

these circumstances bolsters their individual significance. Given the 

reasonableness of such a conclusion, in tandem with the trial court’s 

discrediting the defense witnesses’ testimony, the trial court’s finding of guilt 
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was not “manifestly unreasonable.” Clay, 64 A.3d 1055. Moreover, 

Appellant presents no argument that the court’s decision was a product “of 

partiality, prejudice, bias or ill-will.” Id. Accordingly, we conclude that the 

trial court did not abuse its discretion in rejecting Appellant’s weight-of-theevidence claim. 

Judgment of Sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/23/2016