J-S40033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CRAIG ANTONIO HOWARD                       :
                                               :
                       Appellant               :   No. 156 WDA 2019

       Appeal from the Judgment of Sentence Entered January 10, 2019
     In the Court of Common Pleas of Fayette County Criminal Division at
                       No(s): CP-26-CR-0002133-2016


BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                          FILED AUGUST 16, 2019

       Craig Antonio Howard (Howard) appeals from the judgment of sentence

entered in the Court of Common Pleas of Fayette County (trial court) following

his convictions by a jury of possession of a firearm prohibited and possession

of a controlled substance.1         Howard contends that there was insufficient

evidence of those crimes before the jury to convict him, and that the trial

court erred in admitting into evidence recorded telephone calls between

Howard and his girlfriend about the purchase of a firearm. We affirm.


____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1 Howard was convicted pursuant to 18 Pa.C.S. § 6105(a)(1) (unlawful
possession of a firearm), and 35 Pa.C.S. § 780-113(a)(16) (unlawful
possession of a controlled substance). At sentencing, the trial court imposed
an aggregate prison term of 48 to 96 months as to those two counts.
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        The summary of facts below is taken from the trial court’s opinion:

        On 17 September, Alice Clark was residing in a camper with her
        boyfriend, [Howard], in Ronco, Fayette County, Pennsylvania. On
        that date, she and [Howard] were doing crack, he was holding his
        gun, and the gun went off striking her in her leg. She was treated
        at the hospital and gave a voluntary statement to the police
        [recounting the above facts] but did not want assault charges filed
        against [Howard] because she believed the shooting was an
        accident. The gun was in the trunk of her vehicle and it was turned
        over to police. She further testified that [Howard] wanted her to
        take responsibility for the gun because she would only get a fine.

        [Howard] initially denied shooting his girlfriend but then admitted
        shooting her and then provided the officers with a written
        confession.    A stipulation was entered by the parties that
        [Howard] was a member of a class of persons who are unable to
        possess a firearm. [Howard] was taken into custody and three
        Vicodin, a Schedule II controlled substance, tablets were located
        in his pants pocket.

        When [Howard] testified [at trial,] he denied possessing any gun.
        He testified that he was trying to get his girlfriend to stop smoking
        crack, she got crazy and began swinging a bag with the gun in it.
        He stated that the gun, while in the bag, went off and shot her but
        he never possessed the gun. The Commonwealth presented tape
        recordings of telephone conversations between [Howard] and his
        girlfriend [while he was incarcerated, including] . . . a conversation
        that was made between [Howard] and his girlfriend regarding the
        purchase of a gun.

Trial Court Opinion, 3/27/2019, at 1-2 (internal citations omitted).

        After the trial court entered the judgment of sentence, Howard timely

appealed raising three issues.2




____________________________________________


2   Both Howard and the trial court complied with Pa.R.A.P. 1925.


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                                               I.

       First, Howard contends that the trial court abused its discretion by

permitting the Commonwealth to play for the jury taped prison telephone

recordings between Howard and his girlfriend regarding Howard’s purchase of

a gun. Despite arguing in his brief that those recordings were inadmissible

hearsay,3 Howard did not object on that basis at trial, and as a result this

issue, is not a preserved for appeal. See Pa.R.A.P. 302(a) (party must make

a timely and specific objection at trial in order to preserve an issue for

appellate review); Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa.

2008) (explaining that issues are waived if not preserved at trial by a

contemporaneous objection).

       Not only was this issue not raised below, Howard did not adequately

present this evidentiary claim for appellate review. He failed to identify the

specific statements he objects to and how they were prejudicial, and the

certified record does not even contain a transcript of the subject recordings.

Because the issue was not preserved below and, even if it was, not adequately

preserved for our review, this claim is without merit.4


____________________________________________


3 See Pa.R.E. 801(c) (defining hearsay as an out-of-court statement offered
to prove the truth of the matter asserted).

4 Additionally, to the extent Howard contends his own statements were
hearsay, they would be admissible under the “party admission” exception to
the hearsay rule. See Pa.R.E. 803(25)(a) (making hearsay admissible if



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                                               II.

        Howard next contends that the Commonwealth failed to present

sufficient evidence that he possessed a firearm when he was not permitted to

do so.5 The offense is defined as: “A person who has been convicted of an

offense enumerated in subsection (b), within or without this Commonwealth,


____________________________________________


statement is offered against an opposing party who himself made the
statement).

5   The applicable standard of review is as follows:

        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, [t]he 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 quotations and citations omitted).

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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.C.S. § 6105(a)(1).

      The Commonwealth presented the testimony of Howard’s girlfriend, who

identified him as the person who shot her in the leg. The jury also heard a

recording of the couple discussing a gun’s purchase not long after Howard’s

arrest. Howard admitted at trial that he made the statements in the recording

and he gave police a written admission that he shot his girlfriend. He also

stipulated that he is a member of a class of persons who cannot possess a

firearm in the Commonwealth.       If accepted by the jury, the above facts

establish all of the elements outlined in 18 Pa.C.S. § 6105(a)(1).            Thus,

Howard’s sufficiency ground as to this offense has no merit.

                                         III.

      Finally, Howard claims that the Commonwealth failed to present

sufficient evidence that he possessed a controlled substance without

authorization. This crime is defined in pertinent part as:

      Knowingly or intentionally possessing a controlled or counterfeit
      substance by a person not registered under this act . . ., unless
      the substance was obtained directly from, or pursuant to, a valid
      prescription order or order of a practitioner, or except as otherwise
      authorized by this act.

35 Pa.C.S. § 780-113(a)(16) (emphasis added).




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      The jury in this case heard evidence that police found three pills in

Howard’s pocket.       An officer identified the pills as Vicodin, a controlled

substance. Howard does not dispute that he possessed three pills of Vicodin.

He instead argues only that the Commonwealth did not offer any proof that

he did not have a prescription. See Appellant’s Brief, at 14.

      Although   the    Commonwealth      presented   no   evidence   regarding

Howard’s lack of a prescription for Vicodin, it was Howard who carried the

initial burden of production that he had a prescription. See Commonwealth

v. Sojourner, 408 A.2d 1108, 1113 (Pa. Super. 1979) (explaining that in

controlled substance prosecutions, the defendant bears the initial burden of

production as to his authorization before the Commonwealth has the burden

of proving a lack of authorization beyond a reasonable doubt). “[B]efore the

prosecution must disprove the accused was authorized to possess narcotics

. . ., the accused must establish some credible evidence of such

authorization.” Commonwealth. v. James, 46 A.3d 776, 780 (Pa. Super.

2012) (citing Sojourner, 408 A.2d at 1113); see also Commonwealth v

Daniels, 422 A.2d 196, 198 (Pa. Super. 1980) (holding that Commonwealth

may carry its burden in a controlled substance prosecution by proving actual

or constructive possession alone).

      Howard did not present any evidence at trial that he had a prescription

for Vicodin. As a result, the burden of proof as to that element did not shift

to the Commonwealth. Based on his undisputed possession of the controlled


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substance, the jury could conclude that Howard committed the offense. Thus,

Howard’s convictions must stand.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2019




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