J-S08011-16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

MICHAEL VINCENT ORR 

 Appellant No. 825 WDA 2015 

Appeal from the Judgment of Sentence Entered April 27, 2015 

In the Court of Common Pleas of Fayette County 

Criminal Division at No: CP-26-CR-0001708-2014 

BEFORE: STABILE, DUBOW, and MUSMANNO, JJ. 

MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 22, 2016 

 Appellant, Michael Orr, appeals from the judgment of sentence entered 

in the Court of Common Pleas of Fayette County following Appellant’s 

conviction for persons not to possess firearms and firearms not to be carried 

without a license.1 Upon review, we affirm. 

 The trial court summarized the background of the case as follows. 

On May 24, 2014, at approximately 1:29 A.M., 

Pennsylvania State trooper Adam Janosko and Trooper Patrick 

Biddle were on patrol in full uniform and driving a marked police 

vehicle when they observed a white Ford Escort station wagon 

parked in the Park Memorial Cemetery, on Coolspring Street, 

North Union Township, Fayette County. Trooper Janosko made 

contact with the driver of the vehicle, and determined that 

Appellant was the driver. Trooper Janosko observed that 

Appellant’s eyes were bloodshot, his pupils were dilated, he was 

____________________________________________ 

1

 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1). 
J-S08011-16 

- 2 - 

overly anxious and nervous, had rapid body movements and 

confused speech. When Trooper Janosko asked Appellant why 

he was in the cemetery at that time, Appellant stated that he 

was attempting to turn around. Trooper Janosko observed a 

burnt crochet needle, and he communicated to Appellant that 

such an object was commonly used for drug use. Appellant 

stated that he had been smoking crack out of an empty 

“Mountain Dew” soda can and directed Trooper Janosko to the 

location of the can in the back of Appellant’s vehicle. A further 

search of Appellant’s vehicle led to the discovery and seizure of a 

.25 caliber Phoenix Arms pistol, syringes and a pill marked 2064 

over “V”, as well as the “Mountain Dew” can allegedly used by 

Appellant to smoke crack. 

Trial Court Opinion (T.C.O.), 8/21/15, at 1-2. Additionally, Appellant 

attempted to justify the presence of the firearm in his vehicle, claiming that 

he placed it in his glove box to hide it from his cousin who had been 

brandishing the weapon at work while intoxicated. N.T. Jury Trial, 4/8-9/15, 

at 64-65. Knowing that he was not supposed to possess a firearm, 

Appellant directed the troopers’ attention to the aforementioned drug 

paraphernalia to attempt to “lure” them away from the firearm in the glove 

box. Id. at 68. 

Appellant filed a pretrial omnibus motion to dismiss for lack of 

probable cause, to suppress evidence, and as a writ of habeas corpus. The 

trial court denied Appellant’s pretrial motion, “finding that physical evidence 

was properly seized from [Appellant’s] vehicle, the statements made by 

Appellant prior to being Mirandized were spontaneous and without custodial 

interrogation, and the Commonwealth sufficiently established a prima facie 

case for the charges brought against Appellant.” T.C.O., 8/21/15, at 3. 
J-S08011-16 

- 3 - 

Following trial, a jury found Appellant guilty of persons not to possess 

firearms and firearms not to be carried without a license. Id. at 1. 

Appellant filed a post-sentence motion for a new trial, which the trial court 

denied. Appellant timely appealed. Appellant filed a Pa.R.A.P. 1925(b) 

statement, and the trial court issued a Pa.R.A.P. 1925(a) opinion. 

 Appellant raises three issues for our review. 

1) Whether the evidence presented at trial sufficiently 

established that the defendant possessed or controlled the 

firearm? 

2) Did the trial court err in denying the defendant’s postsentence motion for a new trial as the jury verdict was 

against the weight of the evidence? 

3) Did the suppression court err in denying defendant’s omnibus 

pre-trial motion in the nature of a motion to dismiss; motion 

to suppress physical evidence and statements; and a writ of 

habeas corpus? 

Appellant’s Brief at 7.2 

____________________________________________ 

2

 In reviewing a sufficiency of the evidence claim, we determine “whether 

the evidence at trial, and all reasonable inferences derived therefrom, when 

viewed in the light most favorable to the Commonwealth as verdict winner, 

are sufficient to establish all elements of the offense beyond a reasonable 

doubt.” Commonwealth v. Stevenson, 894 A.2d 759, 773 (Pa. Super. 

2006). “[W]here the trial court has ruled on the weight claim below, an 

appellate court’s role is not to consider the underlying question of whether 

the verdict is against the weight of the evidence. Rather, appellate review is 

limited to whether the trial court palpably abused its discretion in ruling on 

the weight claim.” Commonwealth v. Sanders, 42 A.3d 325, 331 (Pa. 

Super. 2012) (citation omitted). “In reviewing appeals from an order 

denying suppression, our standard of review is limited to determining 

whether [the trial court’s] factual findings are supported by the record and 

whether [its] legal conclusions drawn from those facts are correct. When 

(Footnote Continued Next Page) 
J-S08011-16 

- 4 - 

After careful review of the parties’ briefs, the record on appeal, and 

the relevant case law, we conclude that the trial court’s Rule 1925(a) 

opinion, authored by Judge Linda R. Cordaro, thoroughly and adequately 

disposes of Appellant’s issues on appeal.3 See T.C.O., 8/21/15, at 3-13. 

We, therefore, affirm Appellant’s judgment of sentence. We direct that a 

copy of the trial court’s August 21, 2015 opinion be attached to any future 

filings in this case. 

Judgment of sentence affirmed. 

(Footnote Continued) _______________________ 

reviewing the rulings of a [trial] court, the appellate court considers only the 

evidence of the prosecution and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the record as a whole. 

When the record supports the findings of the [trial] court, [we are] bound by 

those facts and may reverse only if the legal conclusions drawn therefrom 

are in error. Commonwealth v. Frederick, 124 A.3d 748, 753-54 (Pa. 

Super. 2015) (citation omitted). 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., 79 A.3d 1073, 1087 (Pa. 2013). In 

evaluating a trial court’s decision regarding a pre-trial habeas corpus motion, 

our standard of review is plenary. Commonwealth v. Dantzler, --- A.3d --

-, No. 681 EDA 2014, 2016 WL 910149, at *2 (Pa. Super. Mar. 9, 2016). 

3

 We note the trial court relied on pre-Commonwealth v. Gary, 91 A.3d 

102 (Pa. 2014) cases for the definition and identification of the elements of 

the “limited automobile exception,” which required both probable cause and 

exigent circumstances for a warrantless search of a vehicle. However, as 

also acknowledged by the trial court later in its opinion, in Gary, the 

Supreme Court abolished the exigency prerequisite in the context of the 

automobile exception. T.C.O., 8/21/15, at 8 (quoting Gary, 91 A.3d 102, 

138 (Pa. 2014)) (“[t]he prerequisite for a warrantless search [or seizure] of 

a motor vehicle is probable cause to search; no exigency beyond the 

inherent mobility of a motor vehicle is required.”). 
J-S08011-16 

- 5 - 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/22/2016 
1 

1 18 Pa.C.S.A. §610S(a)(l) 

218 Pa.CS.A. §6106(a)(l) 

vehicle when they observed a white Ford Escort station wagon parked in the Park Memorial 

Janosko and Trooper Patrick Biddle were on patrol in full uniform and driving a marked police 

On May 24, 2014, at approximately 1 :29 A.M., Pennsylvania State Trooper Adam 

FINDINGS OF FACT 

l 925(b). 

denied. Appellant thereafter filed a timely Notice of Appeal and Concise Issues under Pa.R.A.P. 

On April 29, 2015, Appellant filed a Post-Sentence Motion for a New Trial, which this Court 

Correctional Institution for a period of not less than two (2) years nor more than four ( 4) years. 

License2• On April 27, 2015, Appellant was sentenced to undergo imprisonment at a State 

was convicted of Possession of a Firearm Prohibited' and Firearm Not to be Carried Without a 

2015, by Appellant Michael Vincent Orr, hereinafter "Appellant". On April 10, 2015, Appellant 

Before the Court are the "Concise Issues" pursuant to Pa.R.A.P. 1925(b) filed June 2, 

Pa. R.A.P. 1925(b) OPINION 

CORDARO, Linda R., J 

Defendant, 

MICHAEL VINCENT ORR, 

vs. No. 1708 of2014 

Plaintiff, 

IN THE COURT OF COMMON PLEAS OF FAYETTE COUNTY, PENNSYLVANIA 

CRIMINAL DIVISION 

COMMONWEALTH OF PENNSYLVANIA 

Circulated 05/24/2016 02:29 PM
2 

The complaints contained in Appellant's "Concise Issues under Pa. R.A.P. l 925(b)" are 

as follows: 

Appellant was convicted of Possession of a Firearm Prohibited, a second degree felony, 

punishable by a maximum term of imprisonment of ten (10) years and a maximum fine of 

$25,000.00. Appellant's prior record score is two (2), and this is a level five (5) offense. The 

offense gravity score is nine (9), and the standard range sentence is twenty-four (24) to thirty six 

(36) months. Appellant was sentenced to undergo imprisonment at a state correctional institution 

for a period of not less than two (2) years nor more than four (4) years. Appellant was also 

convicted of Firearms Not to be Carried Without a License, with no further penalty imposed by 

this Court. Appellant had previously been convicted of a felony and is prohibited from 

possessing firearms. Appellant is also a suspended driver due to a previous DUI conviction. 

Cemetery, on Coolspring Street, North Union Township, Fayette County. Trooper Janosko made 

contact with the driver of the vehicle, and determined that Appellant was the driver. Trooper 

Janosko observed that Appellant's eyes were bloodshot, his pupils were dilated, he was overly 

anxious and nervous, had rapid body movements and confused speech. When Trooper Janosko 

asked Appellant why he was in the cemetery at that time, Appellant stated that he was attempting 

to turn around. Trooper Janosko observed a burnt crochet needle, and he communicated to 

Appellant that such an object was commonly used for drug use. Appellant stated that he had 

been smoking crack out of an empty "Mountain Dew" soda can and directed Trooper Janosko to 

the location of the can in the back of Appellant's vehicle. A further search of Appellant's 

vehicle led to the discovery and seizure of a .25 caliber Phoenix Arms pistol, syringes and a pill 

marked 2064 over "V", as well as the "Mountain Dew" can allegedly used by Appellant to 

smoke crack. 
3 

·1 For organizational purposes, this opinion addresses Appellant's Concise Issue No. 3 first, followed by Issue No. I and Issue No. 2. 

4 This Court dismissed Count 7: Driving While BAC .02 or Greater While License Suspended 

of a crime and that the accused is most likely the perpetrator of that crime. Com. v. Lopez, 654 

the light most favorable to the Commonwealth that sufficiently establishes both the commission 

v. Packard, 767 A.2d 1068 (Pa. Super. 2001). A prima facie case consists of evidence viewed in 

whether the Commonwealth has established a prima facie case of the crime being charged. Com. 

In an Omnibus Pretrial Petition for Habeas Corpus relief, the court must determine 

Appellant. 4 

the Commonwealth sufficiently established a prima facie case for the charges brought against 

Appellant prior to being Mirandized were spontaneous and without custodial interrogation, and 

physical evidence was properly seized from Defendant's vehicle, the statements made by 

writ of habeas corpus. This Court denied Appellant's Omnibus Pretrial Motion, finding that 

motion to dismiss for lack of probable cause, motion to suppress evidence and statements, and a 

On November 11, 2014, Appellant filed an Omnibus Pretrial Motion in the nature of a 

ISSUE NO. 3: DID THE SUPPRESSION COURT ERR IN DENYING DEFENDANT'S 

OMNIBUS PRE-TRIAL MOTION IN THE NATURE OF A MOTION TO DISMISS; 

MOTION TO SUPPRESS PHYSICAL EVIDENCE ANO ST A TEMENTS; AND A WRIT OF 

HABEAS CORPUS? 

DISCUSSION 

ISSUE NO. 1: WHETHER THE EVIDENCE PRESENTED AT TRIAL SUFFICIENTLY 

ESTABLISHED THAT THE DEFENDANT POSSESSED OR CONTROLLED THE 

FIREARM? 

ISSUE NO. 2: DID THE TRIAL COURT ERR IN DENYING THE DEFENDANT'S POSTSENTENCE MOTION FOR A NEW TRIAL AS THE JURY VERDICT WAS AGAINST THE 

WEIGHT OF THE EVIDENCE? 

ISSUE NO. 3: DID THE SUPPRESSION COURT ERR IN DENYING DEFENDANT'S 

OMNIBUS PRE-TRIAL MOTION IN THE NATURE OF A MOTION TO DISMISS; 

MOTION TO SUPPRESS PHYSICAL EVIDENCE ANO STATEMENTS; ANO A WRIT OF 

HABEAS CORPUS?3 
4 

Traditionally, this Court has recognized three categories of encounters between citizens 

and the police. These categories include (1) a mere encounter, (2) an investigative detention, and 

(3) custodial detentions. Com. v. Mendenhall, 552 Pa. 484, 488 715 A.2d 1117, 1119 (1998) 

(citing Com. v. Polo, 563 Pa. 218, 759 A.2d 372, 375 (2000)). The first of these, a "mere 

encounter" (or request for information), which need not be supported by any level of suspicion, 

but carries no official compulsion to stop or to respond. id. The second, an "investigative 

detention" must be supported by reasonable suspicion; it subjects a suspect to a stop and a period 

of detention, but does not involve such coercive conditions as to constitute the functional 

Appellant argued that he was not Mirandized at the time he made statements to the 

troopers and any statements made should therefore be dismissed. The question of law before this 

Court is whether the initial interaction between Trooper Janosko and Appellant was a mere 

encounter or an investigative detention so as to trigger Appellant's rights under Miranda. This 

Court finds the situation is a classic example of the former. 

A.2d 1159 (Pa. Super. 1995). The prima facie case in support of a defendant's guilt consists of 

evidence presented by the Commonwealth that if accepted as true, would warrant the trial judge 

to allow the case to go to a jury. Com. v. Austin, 575 A.2d 141 (Pa. Super. 1990). At the hearing 

on Appellant's Omnibus Pretrial Motion, the Commonwealth presented the testimony of Trooper 

Janosko who stated that he seized the firearm from Appellant's vehicle and that Appellant was of 

the class of people prohibited from carrying a firearm. Further, Trooper Janosko related that he 

also recovered several items of paraphernalia consistent with drug use from Appellant's vehicle. 

As such this Court determined that the Commonwealth met the prima facie burden for the 

charges listed, and denied Appellant's motion. 
s 

In this case, Trooper Janosko and Trooper Biddle both testified that they encountered 

AppeJJant sitting in his vehicle at the Park Memorial Cemetery, which at the time was closed. 

Trooper Janosko testified that he approached Appellant's vehicle because of concerns that 

Appellant was present at the cemetery to vandalize headstones or to take his life at the headstone 

363 Pa.Super. 488, 526 A.2d 784 (1987). 

To determine whether a mere encounter rises to the level of an investigatory detention, 

we must discern whether, as a matter of law, the police conducted a seizure of the person 

involved. Id To decide whether a seizure has occurred, a court must consider all the 

circumstances surrounding the encounter to determine whether the demeanor and conduct of the 

police would have communicated to a reasonable person that he or she was not free to decline 

the officer's request or otherwise terminate the encounter. Id. Thus, the focal point of our inquiry 

must be whether> considering the circumstances surrounding the incident, a reasonable person 

innocent of any crime, would have thought he was being restrained had he been in the 

AppeJJant 's shoes. Id Among the factors the court utilizes in determining, under the totality of 

the circumstances, whether the detention became so coercive as to constitute the functional 

equivalent of a formal arrest are: the basis for the detention; the duration; the location; whether 

the suspect was transferred against his will, how far, and why; whether restraints were used; the 

show, threat or use of force; and the methods of investigation used to confirm or dispel 

suspicions. Com. v. Bybel, 399 Pa.Super. 149, 158, 581 A.2d 1380, 1385 (1990). The fact that a 

defendant was the focus of the investigation is also a relevant factor in determining whether he 

was "in custody," but does not require, per se, Miranda warnings. Bybel, supra; Com. v. Fento, 

equivalent of an arrest. Id Finally, an arrest or "custodial detention" must be supported by 

probable cause. Id 
6 

It is well settled that the Fourth Amendment to the United States Constitution and Article 

I, § 8 of the Pennsylvania Constitution require that searches be conducted pursuant to a warrant 

issued by a neutral and detached magistrate. A search conducted without a warrant is generally 

deemed to be unreasonable for constitutional purposes. Com. v. Stewart, 740 A.2d 712, 715 

(Pa.Super.1999), affd, 568 Pa. 499, 798 A.2d 697 (2002) (internal citation omitted). While the 

United States Supreme Court has recognized an automobile exception to the warrant 

requirement, the Pennsylvania Supreme Court has not. Com. v. Casanova, 570 Pa. 682, 808 

A.2d 569 (2002). Nevertheless, this Court has adopted a limited automobile exception under 

Article I, § 8 of the Pennsylvania Constitution. Com. v. McCree,. 592 Pa. 238, 252, 924 A.2d 

621, 630 (2007). Specifically, a warrantless search of an automobile may be conducted "when 

of a loved one. (Transcript P. 24). Trooper Biddle testified that the Troopers pulled their vehicle 

diagonal to Appellant's vehicle so Appellant would be free to leave should he so desire. 

(Transcript P. 49). Trooper Janosko asked questions of the Appellant, and he asked for 

identification from the Appellant. The purpose for which Trooper Janosko approached the 

vehicle was to ascertain the safety of the occupant(s), considering the area and the time of night. 

Under these circumstances, this Court finds that there was a "mere encounter" between Trooper 

Janosko and the Appellant, and there was no requirement for the Appellant to be Mirandized. 

Turning to the issue of whether Trooper Janosko had probable cause to search 

Appellant> s vehicle, this Court finds that the Commonwealth presented sufficient evidence to 

sustain its burden of showing probable cause. Appellant's Omnibus Pretrial Motion claimed that 

Trooper Janosko and Trooper Biddle conducted an illegal search and seizure of Appellant and 

his vehicle in violation of Appellant's rights under the United States and Pennsylvania 

Constitutions. 
7 

Likewise, "exigent circumstances" arise where the need for prompt police action is 

imperative, either because evidence is likely to be destroyed or because there exists a threat of 

physical harm to police officers or other innocent individuals. Com. v. Copeland, 955 A.2d 396, 

400 (Pa.Super.2008) (quoting Com. v. Stewart, 740 A.2d 712, 717 (Pa.Super.1999)). "[A] court 

must balance the individual's right to be free from unreasonable intrusions against the interest of 

society in quickly and adequately investigating crime and preventing the destruction of 

evidence." Id. (quoting Stewart, supra at 717). Such a search is justified because (I) a vehicle is 

highly mobile and the likelihood is therefore great that it and its contents may never be found if 

police are prohibited from immobilizing it until a warrant is secured; and (2) one's expectation of 

privacy with respect to a motor vehicle is significantly less than that relating to one's home or 

office. Com. v. Holzer, 480 Pa. 93, 389 A.2d 101 (l 978). Furthermore, where an officer who has 

not intruded into a constitutionally protected area sees contraband in plain view, such as the 

In determining whether probable cause exists, we apply a totality of the circumstances 

test. Probable cause is made out when the facts and circumstances which are within the 

knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy 

information, are sufficient to warrant a man of reasonable caution in the belief that the suspect 

ha~ committed or is committing a crime. See Com. v. Thompson, 985 A.2d 928 (Pa. 2009) (citing 

Com. v. Clark, 735 A.2d 1248 (Pa. 1999); Com. v. Rodriguez, 585 A.2d 988 (Pa. 1991); Texas v. 

Brown, 460 U.S. 730 ( 1983); Illinois v. Gates, 462 U.S. 213 (1983)). The question we ask is not 

whether the officer's belief was correct or more likely true than false. Id Rather, we require only 

a probability, and not a prima facie showing, of criminal activity. Id. 

there exists probable cause to search and exigent circumstances necessitating a search." 

Casanova, supra at 211 ( quoting Stewart, supra at 715). 
8 

s CLEIN stands for the "Commonwealth Law Enforcement Information Network" 

further, Trooper Janosko testified that he observed a crochet needle located between the driver 

revealed that Appellant did not possess a valid driver's license. After speaking with Appellant 

information through the CLIEN5 and NCIC databases. (Transcript P. 25). The database search 

Appellant, Trooper Janosko stated that he returned to his patrol vehicle and queried Appellant's 

extremely nervous and excited, and spoke very quickly. (Transcript P. 25). After speaking to 

Trooper Janosko stated that during his conversation with Appellant, Appellant appeared 

Com. v. Gary, 625 Pa. 183, 91 A.3d 102, 138 (2014) 

In sum, our review reveals no compelling reason to interpret 

Article I, Section 8 of the Pennsylvania Constitution as providing 

greater protection with regard to warrantless searches of motor 

vehicles than does the Fourth Amendment. Therefore, we hold 

that, in this Commonwealth, the law governing warrantless 

searches of motor vehicles is coextensive with federal law under 

the Fourth Amendment. The prerequisite for a warrantless search 

of a motor vehicle is probable cause to search; no exigency beyond 

the inherent mobility of a motor vehicle is required. The consistent 

and firm requirement for probable cause is a strong and sufficient 

safeguard against illegal searches of motor vehicles, whose 

inherent mobility and the endless factual circumstances that such 

mobility engenders constitute a per se exigency allowing police 

officers to make the determination of probable cause in the first 

instance in the field. 

conduct a warrantless search of a vehicle: 

Supreme Court in Com. v. Gary, held that mobility is the only exigent circumstance needed to 

suspect is dangerous and the suspect might gain control of a weapon.) Further, the Pennsylvania 

(2000)(An officer may search an automobile for a weapon if he has a reasonable belief the 

Pullano, 295 Pa.Super. 68, 440 A.2d 1226 (1982). See Com. v. Rosa, 561 Pa. 693, 751 A.2d 189 

burnt crochet needle in this case, that evidence may be seized without a warrant. Com. v. 
9 

side door and driver's seat, and that the needle appeared to be rusted and burnt on one end. 

(Transcript P. 26). Trooper Janosko testified that his training, knowledge, and experience with 

drug enforcement led him to believe that the crochet needle was being used as a "push rod", 

which is commonly used to empty out the glass pipes used to smoke illegal substances. 

(Transcript P. 27). Trooper Janosko testified that he explained the significance of the crochet 

needle to Appellant, and asked Appellant for consent to search the vehicle. (Transcript P. 27). 

Appellant initially denied permission to search his vehicle. Trooper Janosko testified that 

Appellant then stated "I want to explain to you why I'm really in the cemetery." (Transcript P. 

27). Appellant stated to Trooper Janosko that he had fabricated a smoking device out of a 

"Mountain Dew" can and had recently used the can to smoke crack cocaine. (Transcript P. 27). 

See, e.g., Com. v. Baez, 554 Pa. 66, 720 A.2d 711, 720 (l 998)(volunteered or spontaneous 

utterances by an individual are admissible even without Miranda warnings.). Appellant then 

directed Trooper Biddle to the location of the can in his vehicle. (Transcript P. 27). 

Trooper Janosko testified that he retrieved the can and conducted a complete search of 

the vehicle which revealed four syringes and an unloaded Raven Arms .25-caliber pistol in the 

unlocked glovebox of the car. Appellant's behavior and spontaneous statements, combined with 

the existence of paraphernalia in the vehicle, was sufficient to warrant Trooper Janosko's 

reasonable belief that a crime was being committed. Based upon the above facts and case law, 

this Court found that Trooper Janosko had probable cause to search Appellant's vehicle, the 

vehicle was sufficiently mobile to qualify as an exigent circumstance, and any evidence seized 

therefrom is not subject to suppression. 
10 

he was aware of the firearm inside the glove compartment of his vehicle. (Transcript P. 67). As 

seized a Raven's .25-caliber pistol inside Appellant's glove compartment. Appellant stated that 

Trooper Janosko testified that while executing a lawful search of Appellant's vehicle, he 

that he is ineligible to receive a license to carry a firearm. 

ineligible to possess a firearm since 2009, that he did not have a license to carry a firearm, and 

The parties in this matter stipulated to the following: Appellant is of the class of persons 

A person who has been convicted of an offense enumerated in 

subsection (b ), within or without this Commonwealth, regardless of the length 

of sentence or whose conduct meets the criteria in subsection (c) shall not 

possess, use, control, sell, transfer or manufacture or obtain a license to 

possess, use, control, sell, transfer or manufacture a firearm in this 

Commonwealth. 18 Pa.CS.A. §6/0S(a)(I). 

which states: 

The Appellant was convicted of 18 Pa.C.S.A. §6105: Possession of a Firearm Prohibited 

credibility and weight of the evidence, is free to believe all, part, or none of the evidence. Id 

law no facts supporting a finding of guilt may be drawn. Id The fact-finder, when evaluating the 

regarding a defendant's guilt unless the evidence is so weak and inconclusive that as a matter of 

preclude every possibility of innocence, and the fact-finder is free to resolve any doubts 

substitute its judgment for that of the fact-finder. Id. Additionally, the evidence. at trial need not 

v. Smith, 863 A.2d 11 72, 1176 (Pa.Super.2004). The Court may not weigh the evidence or 

beyond a reasonable doubt. Com. v. Stevenson, 894 A.2d 759, 773 (Pa.Super.2006) quoting Com. 

the Commonwealth as verdict winner, are sufficient to establish all elements of the offense 

trial, and all reasonable inferences derived therefrom, when viewed in the light most favorable to 

The standard when reviewing the sufficiency of the evidence is whether the evidence at 

ISSUE NO. 1: WHETHER THE EVIDENCE PRESENTED AT TRIAL SUFFICIENTLY 

ESTABLISHED THAT THE DEFENDANT POSSESSED OR CONTROLLED THE 

FIREARM? 
11 

at Nudo's and was brandishing the firearm in front of employees and customers. (Transcript P. 

pistol. (Transcript P. 64 ). Appellant testified that his cousin had been intoxicated while working 

Tire Division, Dawson, Fayette County, his cousin was in possession of the Raven's .25~caliber 

firearm. (Transcript P. 64). In this case, Appellant stated that while he was working at Nudo's 

substantially greater harm that could have potentially been caused by his cousin brandishing the 

"The [defendant] has been charged with carrying a firearm without a license. 

To find the [ defendant] guilty of this offense, you must find that each of the 

following three (3) elements has been proven beyond a reasonable doubt: 

first, that the [defendant] carried a firearm in a vehicle ... second, that the 

[ defendant] was not in his place of abode, that is, his home, or his fixed place 

of business; and third, that the [ defendant] did not have a valid and lawfully 

issued license for carrying the firearm." (Transcript P. 86-7). 

Appellant argued that his conduct in taking and hiding the firearm was justified to avoid a 

This Court instrncted the jury on the charge of possession of a firearm prohibited as follows: 

"The [defendant] has been charged with possession of a firearm prohibited. 

To find the [defendant] guilty of this offense, you must find that the 

following elements have been proven beyond a reasonable doubt: first, that 

the [defendant] was a person prohibited by law from possessing a firearm; 

second, that the [defendant], on a date more than sixty days from the time he 

became prohibited from possessing a firearm did, in fact, possess a firearm." 

"The term "firearm" includes any weapon that is designed or may readily be 

converted to expel any projectile by the action of an explosive. It also 

includes the frame or receiver of any such weapon. For a person to possess a 

firearm, he or she must have the intent to control and power to control the 

firearm." 

to view by the jury, was sufficient to sustain conviction for former convict not to own a firearm). 

in the Commonwealth, and the weapon itself, which was admitted into evidence and thus subject 

testimony by clerk of courts that defendant was convicted of a crime of violence, i.e., burglary, 

l 985)(Testimony by an arresting officer that defendant was in possession of a .357 Magnum, 

he was prohibited from doing so. See Com. v. Bryant, 491 A.2d 181 (Pa. Super. 

conclude that Appellant was in possession of a firearm more than sixty (60) days from the time 

such, this Court finds that the Commonwealth provided sufficient evidence to allow the jury to 
12 

403, 408 (2003)). The trial court's ruling is reversed only if the verdict "is so contrary to the 

the weight claim." Sanders, supra at 331 (quoting Com. v. Champney, 574 Pa. 435, 832 A.2d 

appellate review is limited to whether the trial court palpably abused its discretion in ruling on 

underlying question of whether the verdict is against the weight of the evidence. Rather, 

weight of the evidence."). In this setting, "an appellate court's role is not to consider the 

denying a new trial is the lower court's conviction that the verdict was or was not against the 

53 8 Pa. 410, 648 A.2d 1177, 1189-90 (1994) ("One of the least assailable reasons for granting or 

(partially quoting Com. v. Diggs, 597 Pa. 28, 949 A.2d 873, 880 (2008)); accord Com. v. Brown, 

claim is the least assailable of its rulings.''' Com. v. Sanders, 42 A.3d 325, 331 (Pa.Super.2012) 

"[A] trial court's denial of a post-sentence motion 'based on a weight of the evidence 

ISSUE NO. 2: DID THE TRIAL COURT ERR IN DENYING THE DEFENDANT'S POSTSENTENCE MOTION FOR A NEW TRIAL AS THE JURY VERDICT WAS AGAINST THE 

WEIGHT OF THE EVIDENCE? 

possess a firearm in his vehicle, and he was not justified in doing so. 

properly find, based solely on the testimony of Trooper Janosko, that the Appellant did in fact 

"Justification is a defense if the defendant reasonably believed that his actions 

were necessary to avoid a harm or evil to himself or to someone else that was 

or would have been greater than the crime with which he is charged. The 

Commonwealth has the burden of disproving the defense of justification. 

Thus you may find the defendant guilty if you are satisfied beyond a 

reasonable doubt that his conduct was not justified under the principle I have 

just set." (Transcript P. 87) 

The jury did not accept the justification defense raised by the Appellant. The jury could 

This Court instructed the jury on justification as follows: 

he felt his cousin may harm himself or others. (Transcript P. 64). 

before securing the firearm in the glovebox of his car. (Transcript P. 64). Appellant stated that 

64) Appellant testified that he attempted to hide the firearm from his cousin multiple times 
13 

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BY THE COURT: 

facts and case law, this Court recommends that the sentence in this matter be affirmed. 

verdict is not contrary to the evidence as to shock one's sense of justice. Based on the above 

Appellant did possess the firearm in his vehicle, and his conduct was not justified. The jury's 

part or none of the evidence"). Based on the Commonwealth's testimony, the jury found that the 

cousin for safety reasons to be credible. Nypaver, supra at 717 (factfinder "is free to believe all, 

The jury did not find Appellant's testimony that he retrieved the firearm from his intoxicated 

Biddle, both of whom stated that they observed Appellant in the vehicle containing the weapon. 

The Commonwealth presented testimony from Trooper Adam Janosko and Trooper Patrick 

Herein, this Court concluded that the jury verdict does not shock one's sense of justice. 

408). Com. v. Nypaver, 2013 PA Super 144, 69 A.3d 708, 717-18 (2013). 

evidence as to shock one's sense of justice." Sanders, supra at 331 (quoting Champney, supra at