J-S32028-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GREGORY HOLSTON JR.

Appellant No. 2591 EDA 2016

Appeal from the Judgment of Sentence imposed March 18, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0011205-2014

BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD*, JJ.

MEMORANDUM BY STABILE, J.: FILED JULY 18, 2017

Appellant, Gregory Holston Jr., appeals from the judgment of sentence 

the Court of Common Pleas of Philadelphia County imposed on March 18, 

2016. Appellant challenges the weight of the evidence, the sufficiency of the 

evidence, and the discretionary aspects of his sentence. Upon review, we 

affirm.

The underlying facts are uncontradicted. Briefly, Philadelphia Police 

Officers Outlaw and Caesar responded to a radio call at 5900 Pine Street in 

Philadelphia. Upon arrival, the officers pulled next to a black Chevrolet 

Malibu and observed the driver and her passenger, later identified as 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
J-S32028-17

- 2 -

Appellant, with their faces covered by ski masks and wearing rubber gloves. 

Officer Outlaw opened the passenger door and observed a rifle, with the 

stock of the rifle next to Appellant’s leg. At trial the Commonwealth offered 

into evidence a ballistic report showing that the rifle was operable, a 

certificate of non-licensure, and Appellant’s criminal record showing a prior 

conviction making him ineligible to possess a firearm. At the conclusion of 

the trial, Appellant was convicted of possession of a firearm prohibited and 

carrying a firearm in public in Philadelphia.1 This appeal followed.

Appellant raises three main claims: (A) Appellant’s guilty verdict is 

against the weight of the evidence, (B) the evidence is insufficient to sustain 

“a conviction,”2and (C) the sentence is manifestly excessive. Appellant’s 

Brief at 2. For the reasons explained below, Appellant is entitled to no relief.

Pennsylvania Rule of Criminal Procedure 607 requires that a “claim 

that the verdict is against the weight of the evidence shall be raised with the 

trial judge in a motion for a new trial: (1) orally, on the record, at any time 

before sentencing; (2) by written motion at any time before sentencing; or 

____________________________________________

1 18 Pa.C.S.A. §§ 6105, 6108, respectively.

2

It should be noted Appellant was not generally “convicted,” rather he was 

convicted of possession of a firearm prohibited and carrying a firearm in 

public in Philadelphia. We also note Appellant uses “conviction” and 

“convictions” throughout his brief interchangeably despite the fact he was 

convicted of two crimes, and that Appellant failed to set forth the elements 

of the two crimes, generally arguing instead that the Commonwealth failed 

to prove he possessed the rifle. 
J-S32028-17

- 3 -

(3) in a post-sentence motion.” Pa.R.Crim.P. 607. This claim must be 

presented to the trial court while it exercises jurisdiction over a matter since 

“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.” Commonwealth v. Burkett, 830 A.2d 1034, 1037 (2003) 

(citation omitted), appeal denied, 927 A.2d 648 (Pa. 2007). Instantly, 

Appellant failed to raise the weight of the evidence claim orally or in writing 

prior to or after sentencing. In fact, Appellant raised it for the first time in 

his Rule 1925(b) statement, which is insufficient to preserve it for appellate 

review. See Commonwealth v. Sherwood, 982 A.2d 483 (Pa. 2009). In 

Sherwood, the Supreme Court noted:

Regarding [a]ppellant’s weight of the evidence claim[,] we note 

that [a]ppellant did not make a motion raising a weight of the 

evidence claim before the trial court as the Pennsylvania Rules of 

Criminal Procedure require. See Pa.R.Crim.P. 607(A). The fact 

that Appellant included an issue challenging the verdict on 

weight of the evidence grounds in his 1925(b) statement and the 

trial court addressed [a]ppellant’s weight claim in its Pa.R.A.P 

1925(a) opinion did not preserve his weight of the evidence 

claim for appellate review in the absence of an earlier motion.

Id. at 494 (footnote omitted). Because Appellant’s weight of the evidence 

claim fails to comport with the above rules, we conclude it is waived.3

____________________________________________

3 Additionally, we note Appellant failed to comply with Pa.R.A.P. 2117(c) and 

2119(e), both requiring Appellant to state the place of raising or preserving 

the weight of the evidence issue. 
J-S32028-17

- 4 -

Under the sufficiency of the evidence claim’s heading,4 Appellant 

challenges the sufficiency of the evidence to prove he possessed the firearm 

____________________________________________

4

In Commonwealth v. Rahman, 75 A.3d 497 (Pa. Super. 2013), this 

Court instructed:

We are guided by the following standard of review when 

presented with a challenge to the sufficiency of the evidence 

supporting a defendant’s conviction:

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.” Commonwealth v. Widmer, 560 Pa. 308, 

744 A.2d 745, 751 (2000). 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. 

Id. at 500-01 (Pa. Super. 2013) (quoting Commonwealth v. Pettyjohn, 

64 A.3d 1072, 1074 (Pa. Super. 2013) (internal citations and quotations 

omitted)).

At issue here are the crimes defined at Section 6105 and 6108. For 

Section 6105, the Commonwealth must prove that the defendant possessed 

a firearm and that he had been previously convicted of a qualifying offense. 

See 18 Pa.C.S.A. § 6105. Regarding Section 6108, the Commonwealth 

must show evidence that the perpetrator carried a firearm on a public street 

or property in the City of Philadelphia. See 18 Pa.C.S.A. § 6108.
J-S32028-17

- 5 -

at issue here.5 Specifically, Appellant argues that the evidence is insufficient 

to prove he possessed the firearm because the Commonwealth failed to 

conduct “any fingerprint and DNA testing to prove knowledge and 

possession.” Appellant’s Brief at 18. However, Appellant fails to explain 

why the Commonwealth needed to conduct either of the above tests to 

prove possession. Apparently, Appellant is unaware that possession can be 

exercised without actually holding the item in his hands. The law recognizes 

constructive possession. Indeed, the trial court found the rifle was 

positioned between Appellant’s leg and the console of the vehicle, “extending 

from the floor to almost the ceiling.” Trial Court Opinion, 11/8/16, at 5. In 

light of these findings, the trial court concluded, and we agree, that 

Appellant “exercise[d] a conscious dominion over the rifle[.]” Id. 

Finally, Appellant argues the trial court abused its discretion in 

sentencing him to consecutive terms of imprisonment totaling 71⁄2 to 15 

____________________________________________

5

In addition, under the same heading, Appellant alleges that the evidence is 

insufficient because: (1) there are contradictions in the officers’ testimony, 

and (2) the Commonwealth “failed to disprove he was sick.” Appellant’s 

Brief at 15. Regarding the contradictions in the testimony, we note that the 

claim is a quintessential weight of the evidence claim, not a sufficiency of 

the evidence claim. Appellant waived the instant weight of the evidence 

claim because, as mentioned above, Appellant failed to preserve it for our 

review. Regarding the alleged Commonwealth’s failure to prove he was sick, 

Appellant provided no other explanation or authority for such claim. As 

such, we are unable to conduct a meaningful review of the claim. 
J-S32028-17

- 6 -

years, followed by a 5-year probation term.6 Assuming, without deciding, 

that Appellant raised a substantial question for our review and met all other 

requirements for us to review his challenge to the discretionary aspects of 

his sentence,7 we conclude the trial court did not abuse its sentencing 

discretion.8 The trial court stated that it “reviewed the pre-sentence reports 

____________________________________________

6 Appellant also avers the trial court considered only the gravity of the 

crimes, but failed to consider the “other section 9712(b) factors.” Nowhere 

did Appellant elaborate on what other factors the trial court failed to 

consider. The claim is, therefore, waived for failure to articulate it in a 

meaningful way. 

7 See Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test:

[W]e conduct a four-part analysis to determine: (1) 

whether appellant has filed a timely notice of appeal, 

see Pa.R.A.P. 902 and 903; (2) whether the issue 

was properly preserved at sentencing or in a motion 

to reconsider and modify sentence, see Pa.R.Crim.P. 

[720]; (3) whether appellant’s brief has a fatal 

defect, Pa.R.A.P. 2119(f); and (4) whether there is a 

substantial question that the sentence appealed from 

is not appropriate under the Sentencing Code, 42 

Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)).

8 When reviewing a challenge to the discretionary aspects of sentence, our 

standard of review is as follows:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. An abuse of discretion is 

(Footnote Continued Next Page)
J-S32028-17

- 7 -

on [Appellant], along with all of the evidence presented, and clearly 

articulated the reasons for the sentence.” Trial Court Opinion, 11/8/16, at 8. 

As to the reasons for the sentence, the trial court noted, inter alia, the facts 

of the case, Appellant’s extensive criminal history, and Appellant’s inability 

to rehabilitate. Id. at 7-9. In light of the above, the trial court concluded 

that “[Appellant] is a danger to the community, and his affinity for illegally 

carrying firearms is going to result in serious injury, if not someone’s death, 

if not abated. [Appellant] clearly has indicated he does not wish to live by 

the rules of our society and clearly not shown to change his felonious ways.” 

Id. at 9. We agree with the trial court that the reasons for the sentence 

were explained and supported by the record. Accordingly, we conclude the 

trial court did not abuse its discretion in fashioning Appellant’s sentence.

Judgment of sentence affirmed.

(Footnote Continued) _______________________

more than just an error in judgment and, on appeal, the trial 

court will not be found to have abused its discretion unless the 

record discloses that the judgment exercised was manifestly 

unreasonable, or the result of partiality, prejudice, bias, or illwill.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) 

(quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 

2002)), appeal denied, 820 A.2d 703 (Pa. 2003)). 
J-S32028-17

- 8 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/18/2017