Case Information

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA Appellee

v.

ANTWAIN SMITH,

Appellant No. EDA 2016 Appeal from the Judgment of Sentence of December 17, 2015

In the Court of Common Pleas Philadelphia County Criminal Division at No(s): CP-51-CR-0012108-2014 BEFORE: OLSON, STABILE AND MUSMANNO, JJ. FILED APRIL 04, 2017

MEMORANDUM BY OLSON, J.: Appellant, Antwain Smith, appeals from judgment sentence on 17, 2015, made final by denial of Appellant's -sentence motion on January 5, 2016. We affirm. trial court has ably summarized the underlying facts of this case: October 2014, at 8:30 p.m., Philadelphia Police Bryan set up [] narcotics surveillance the 4400 block of North 17th Street. Officer Outterbridge

conducted his surveillance from unmarked police vehicle. He considered the area well -lit given that there were several light posts flood lights block.

During his surveillance, Officer Outterbridge observed co- defendant Alpha Johnson standing doorway when he approached [Appellant]. co- defendant Johnson engaged brief conversation. During their conversation, Officer Outterbridge observed co- defendant Johnson reach into waistband retrieve silver hand firearm who secured waistband. then walked northbound 17th Street until he entered a bar at corner of 17th and Wingohocking Streets. Officer Outterbridge radioed backup team of his observations (black male, red shirt, blue jeans entered a bar with a firearm) and instructed them stop [Appellant]. Officer Outterbridge testified that he recognized the item passed [Appellant] a firearm based upon observation of the receiver and hand grips of the firearm well [as] personal experience carrying and using firearms.

Philadelphia Police Officer Ernes Toland was one of the backup officers Officer Outterbridge. Officer Toland received information from Officer that a black male with a red shirt and blue pants a bar located 17th Wingohocking Streets with a firearm. Upon entering the bar, Officer Toland observed who the only person in bar wearing a red shirt blue pants. asked [Appellant] stand up so that he be searched. Following a search [Appellant], Officer Toland's partner recovered a silver firearm from [Appellant's] waistband. firearm was loaded with one round the chamber 15 rounds the magazine. stipulated that he did not a license to carry firearm, firearm operable, and a had a prior conviction prohibited him from carrying or possessing a firearm.

Trial Court Opinion, 1-2 (internal citations some internal capitalization omitted).

Following a jury trial, convicted of possession prohibited person, firearms not carried without a license, carrying public street Philadelphia.' 17, ' Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 6108, respectively.

2015, the trial court sentenced Appellant to serve an aggregate term five to ten years prison for convictions. filed an untimely post -sentence motion on Tuesday,

Appellant 29, 2015. Within this motion, Appellant requested that: [the trial] court reconsider its original sentence because [the sentence] excessive given the nature and circumstances of the facts of the underlying disproportionate nature [Appellant's] case, and sentence compared much lighter sentence imposed co-defendant, who was known to police and also possession of the based upon the verdict of the jury.

Appellant's Post -Sentence Motion, 12/29/15, 2 (some internal capitalization omitted). January 5, 2016, the trial court an order declaring: 1)

Appellant's "petition to allow [post -sentence motion] to filed nunc pro tunc [wa]s granted" and 2) Appellant's -sentence motion was denied. Trial Court Order, (some internal capitalization omitted). Appellant filed timely notice of appeal February 2016.

Appellant raises two claims to this Court:

[1.] Is [Appellant] entitled arrest judgment where the evidence insufficient sustain the verdict?

[2.] Is [Appellant] entitled new where the greater [] weight of the evidence does not support the verdict?

Appellant's Brief at 3. first claims the evidence insufficient support

convictions. This claim fails.

We review Appellant's sufficiency of the evidence claim under the following standard:

The standard we apply reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at light most favorable the verdict winner, there is sufficient evidence to enable the fact -finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for [that of] the fact -finder. In addition, we note the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding defendant's guilt may be resolved by the fact -finder unless the evidence is so weak and inconclusive that a matter law probability of fact may be drawn from the combined circumstances. Commonwealth may sustain its burden of proving every element of the crime beyond reasonable doubt means wholly circumstantial evidence. Moreover, applying the above test, entire record must evaluated all evidence actually received must be considered. Finally, the trier fact while passing upon the credibility of witnesses weight of the evidence is free believe all, part none of the produced, evidence.

Commonwealth v. Brown, 23 A.3d 559-560 (Pa. Super. 2011) (en banc) (internal quotations citations omitted). Further, our Supreme Court has held, that "the testimony presented [fact -finder] so unreliable contradictory the[] verdict been arrived at through speculation conjecture . . [is] challenge . sufficiency [of evidence]." Commonwealth v. Brown, 52 A.3d 1139, 1156 n.18 (Pa. 2012). appeal, Appellant seemingly acknowledges that, if accepted

true, of Officers sufficient

- - support convictions. See Appellant's Brief at 7-10. However, Appellant takes the rather remarkable position that "the police were simply lying" at trial. Id. at 9. Specifically, claims, "the area question was not [,] there was video surveillance lit . well [, and] the . . . . . Commonwealth not produce other types of evidence, such fingerprints, DNA[,] trace evidence[] that would corroborated the of the police." Id. at 8-9. According Appellant, "the lack corroboration, the lack seeming veracity[,] the lack of evidence against [Appellant] . lead to one conclusion, wit, that this incident . . did not happen the way police said it did and, perhaps, the police were simply fabricating the entire story." Id. at 9-10.

Appellant's appeal frivolous. To sure, Officer is Outterbridge specifically testified area question was well -lit from "[s]everal streetlights the block" floodlights from the building. N.T. Trial, at 53-54. Further, as trial court explained:

Officer Outterbridge watched [Appellant] took possession silver handgun from co-defendant Johnson. While the object was being passed, Outterbridge recognized the handgrip receiver immediately identified this object firearm. officer had clear, unobstructed, well -lit view of [Appellant] concealing right waistband. Officer Outterbridge radioed backup officers accurate description of what he was wearing[,] where he located. . [M]inutes later, . . when police officers entered the bar, only individual matching the description provided Officer Outterbridge. Furthermore, the found precisely where Officer saw conceal it, i.e., waistband. Trial Court Opinion, at 3.

In way can from Officer or Officer considered "so unreliable contradictory the[] verdict have been arrived through speculation conjecture." Brown, A.3d 1156 n.18. Appellant's sufficiency evidence claim

thus fails.

For Appellant's final claim appeal, Appellant contends verdict against the weight of the evidence. This claim waived, failed to raise claim before court. See Pa.R.Crim.P. 607(A) (declaring that, preserve weight of the evidence challenge, the appellant must raise with trial court before sentencing -sentence motion).

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 4/4/2017