J-S25013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GEORGE LEE BARNES

                            Appellant                No. 1104 MDA 2013


             Appeal from the Judgment of Sentence May 13, 2013
               In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0000826-2012


BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                              FILED AUGUST 22, 2014

       George Lee Barnes appeals from the judgment of sentence entered

May 13, 2013, in the Luzerne County Court of Common Pleas. Barnes was



jury found him guilty of carrying a firearm without a license, resisting arrest,

possession with intent to deliver (PWID) cocaine, and possession of cocaine.1

On appeal, Barnes challenges the sufficiency of the evidence supporting his

conviction of possession of a firearm. For the reasons set forth below, we

affirm.

       The evidence presented at trial was as follows. Officer John Sosnoski

of the Kingston Borough Police Department was on routine patrol on
____________________________________________


1
 18 Pa.C.S. §§ 6106(a)(1) and 5104, and 35 P.S. §§ 780-113(a)(30) and
780-113(a)(16), respectively.
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December 23, 2011, when, at approximately 7:44 p.m., he observed a dark

colored sedan driving southbound on Route 11 with the lights off. The sedan

matched the description of a vehicle that had been stolen at gunpoint the

previous night.2 Officer Sosnoski, who was traveling northbound on Route

11, made a U-turn and activated his lights so that he could stop the vehicle

to investigate. However, when he began following the vehicle, the vehicle

took off at a high rate of speed, swerving in and out of the north and

southbound lanes.        Officer Sosnoski lost sight of the vehicle for a brief

period, but then saw that the car had crashed into a telephone pole. N.T.,

3/11/2013, at 52-53.



were pinned in the crash. Officer Sosnoski also observed that the front seat

passenger, later identified as Barnes, was uninjured, and another passenger,

who was sitting in the backseat behind the driver, suffered a minor injury.

Id. at 54. The officer approached the vehicle and asked the occupants to

show their hands, which they refused to do. Because the driver was injured,

Officer Sosnoski approached the passenger side where Barnes was sitting.

At this point, additional officers had arrived to assist Officer Sosnoski. When

Officer Sosnoski attempted to escort Barnes out of the vehicle, Barnes
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2
    Officer Sosnoski testified that, the night before, the Wilkes-Barre police

stolen outside of Wilkes-




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officers.   Id. at 56-57.      He struck one officer, causing her to fall to the

ground. As the other officers struggled to contain Barnes, they all fell to the



subdue him. Id. at 58.

       During the scuffle, Officer Sosnoski noticed a cigarette packet fall to

the ground.       Afterwards, the officers opened it and discovered what

appeared to be crack cocaine.             Furthermore, inside the vehicle, Officer

Sosnoski observed a .40 caliber handgun protruding from underneath the

front passenger seat, with the grip facing the front of the vehicle.3 Id. at

60. He explained that the gun wa

                               Id. at 88-89.

    Barnes was arrested and charged with carrying a firearm without a

license, resisting arrest, PWID and possession of cocaine.          On March 12,

2013, a jury returned a verdict of guilty on all charges.             Barnes was




                                                                 imprisonment for


____________________________________________


3
                                                         grip and the back butt of


3/11/2013, at 87.




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PWID,4

timely appeal followed.5

        The sole issue raised on appeal challenges the sufficiency of the



the Commonwealth failed to prove that he had either actual or constructive

possession of the firearm recovered from the stolen vehicle.

        Our review of a challenge to the sufficiency of the evidence is well-

settled:

        A claim challenging the sufficiency of the evidence presents a
        question of law. Commonwealth v. Widmer, 560 Pa. 308, 744
        A.2d 745, 751 (2000). We must d
        evidence is sufficient to prove every element of the crime
                                      Commonwealth v. Hughes, 521

        in the light most favorable to the Commonwealth as the verdict
        winner, and accept as true all evidence and all reasonable
        inferences therefrom upon which, if believed, the fact finder
                                              Id.

        Our Supreme Court has instructed:

           [T]he facts and circumstances established by the
           Commonwealth need not preclude every possibility of
           innocence.
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4
    His possession charge merged for sentencing purposes.
5
   On June 11, 2013, the trial court ordered Barnes to file a concise
statement of matters complained of on appeal. Thereafter, trial counsel was
granted permission to withdraw and present counsel was appointed. On July
3, 2013, present counsel filed a motion seeking an extension of time to file a
concise statement since the trial transcript had not yet been transcribed.

filed a concise statement.



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        be resolved by the fact-finder unless the evidence is so
        weak and inconclusive that as a matter of law no
        probability of fact may be drawn from the combined
        circumstances. Moreover, in applying the above test, the
        entire record must be evaluated and all evidence actually
        received must be considered. Finally, the trier of fact while
        passing upon the credibility of witnesses and the weight of
        the evidence produced, is free to believe all, part or none
        of the evidence.

     Commonwealth v. Ratsamy, 594 Pa. 176, 934 A.2d 1233,
     1236 n. 2 (2007).

Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa. Super. 2013).

     The crime of carrying a firearm without a license is defined in Section

6106 of the Crimes Code as follows:

     [A]ny person who carries a firearm in any vehicle or any person
     who carries a firearm concealed on or about his person, except
     in his place of abode or fixed place of business, without a valid
     and lawfully issued license under this chapter commits a felony
     of the third degree.

18 Pa.C.S. § 6106(a)(1). Therefore, in order to secure a conviction under

the facts of the present case, the Commonwealth was required to prove that

Barnes was in possession of the firearm recovered from the stolen vehicle,

without a valid license to carry a firearm. Here, Barnes does not challenge

the fact that he had no license to carry a firearm, but rather, contends the

Commonwealth failed to prove he had constructive possession of the firearm

recovered from the vehicle.

     When a firearm or other prohibited item is not discovered on a



prove the defendant had constructive possession of the item.



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         Constructive possession is a legal fiction, a pragmatic
         construct to deal with the realities of criminal law
         enforcement.    Constructive possession is an inference
         arising from a set of facts that possession of the
         contraband was more likely than not. We have defined
         constructive possession as conscious dominion.          We
         subsequently defined conscious dominion as the power to
         control the contraband and the intent to exercise that
         control. To aid application, we have held that constructive
         possession may be established by the totality of the
         circumstances.

      Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.
      Super.2012), appeal denied, [] 63 A.3d 1243 (2013) (internal
      quotation marks and citation omitted).        Additionally, it is
      possible for two people to have joint constructive possession of
      an item of contraband. Commonwealth v. Sanes, 955 A.2d
      369, 373 (Pa. Super. 2008), appeal denied, 601 Pa. 696, 972
      A.2d 521 (2009).

Commonwealth v. Hopkins, 67 A.3d 817, 820-821 (Pa. Super. 2013),

appeal denied

dominion may be inferred from the totality of the circumstances, and

circumstantial evidence may be used to establish a defendant's possession

                           Commonwealth v. Harvard, 64 A.3d 690, 699

(Pa. Super. 2013) (citation omitted), appeal denied, 77 A.3d 636 (Pa. 2013).

      Here, the evidence presented at trial established that Barnes was a

passenger in a vehicle that fled from police. Once the vehicle was stopped,

as a result of a crash, Barnes was uncooperative and physically assaulted

the   police   officers as they tried to   extract him from the        vehicle.



seat, with the grip and bottom of the butt protruding in plain view. In fact,




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Officer Sosnoski explained that the gun was placed in a position as to allow

the passenger easy access. N.T., 3/11/2013, at 89.

      Barnes argues, however, that the Commonwealth failed to prove his

possession of the firearm because there were two other occupants in the

vehicle who had access to the gun.       Barnes emphasizes that one officer



refusing to show his hands before he was extracted from the vehicle. N.T.,

3/11/2013, at 111. Moreover, Barnes asserts the Commonwealth presented

no evidence to establish that he even knew the gun was in the vehicle. In

support, he relies on two appellate decisions, which he claims contain similar

circumstances: Commonwealth v. Armstead, 305 A.2d 1 (Pa. 1973) and

Commonwealth v. Duffy, 340 A.2d 869 (Pa. Super. 1975). We conclude

Barnes is entitled to no relief.

      First, the cases Barnes cites for support are readily distinguishable. In

Armstead, supra, police officers conducted a traffic stop, and ordered the

driver and the passenger, Armstead, out of the vehicle.      The officers who

conducted the stop did not see a weapon on the front seat. However, when

additional officers arrived as backup, they observed a .38 caliber pistol lying



unlawful possession of a firearm, the Supreme Court held that the




that the weapon was on the person of the driver during the time appellant

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was a passenger, and that the driver discarded the weapon as he got out of

            Armstead, supra, 305 A.2d at 2.6 Here, however, the officers



to do so.

       In Duffy, supra, the defendant was also a passenger in a car stopped

by police for a routine traffic stop. The driver was not the registered owner

of the vehicle, and, after he was unable to produce identification, the officer

asked him to proceed to the station.             Once there, the driver gave police

consent to search the vehicle.         During the search, they recovered a pistol



                                                                     Duffy, supra,

340 A.2d at 870. Although Duffy was convicted of possession of the weapon

and instruments of crime, this Court reversed that conviction on appeal. In

a one-

that appellant knew of

                                                                         Id., citing

Armstead, supra.         Conversely, in the present case, the firearm was not

                                                               er, protruding from


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6
 It merits mention the Armstead Court also noted that the Commonwealth
had doubts as to the sufficiency of the evidence in that case, and even filed
with defense counsel a joint petition for reconsideration when the case was
before this Court. However, this Court denied that request. Armstead,
supra, 305 A.2d at 2, n.1.



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underneath his seat in plain view of the officers once Barnes was removed

from the car.

       Moreover, while it is true there were other occupants in the vehicle,

the evidence established that Officer Sosnoski observed the firearm

protruding

front of the vehicle. As the gun was visible to the officers, it was reasonable

for the jury to conclude that the gun was also visible to Barnes.

Furthermore, the way it was secreted under the seat allowed for easy access

by Barnes, and the evidence did not establish that the firearm was easily

accessible to either the driver or the back seat passenger, who was sitting

behind the driver. Therefore, the totality of the circumstances surrounding

the discovery of the firearm provided sufficient circumstantial evidence for

the jury to find that Barnes had constructive possession of the weapon.

       Therefore, viewing the evidence in the light most favorable to the

Commonwealth, we conclude that B

the evidence must fail. Accordingly, we affirm the judgment of sentence.7
____________________________________________


7



                                                                      .
§ 9712.1. However, on November 25, 2013, an en banc panel of this Court
in Commonwealth v. Watley, 81 A.3d 108 (Pa. Super. 2013) (en banc),
held that the mandatory minimum sentencing provision in Section 9712.1
was unconstitutional in light of the Unite
Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013). Id. at
112, n.2.

(Footnote Continued Next Page)


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      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2014




                       _______________________
(Footnote Continued)

      In Alleyne
                                                               ted to
                                                Alleyne, 133 S.Ct. at
2155. The Court expanded upon its holding in Apprendi v. New Jersey,
530 U.S. 466 (2000), which applied only to facts that increased the
statutory maximum for a crime, to include facts which increase the
mandatory minimum sentence. Id. Accordingly, under the holding of
Alleyne


       Here, however, the jury found Barnes guilty of both PWID, for the
drugs recovered after the struggle just outside the car, and carrying a
firearm without a license, for the gun recovered under his seat in the car.
Accordingly, the fact that Barnes sold drugs while in possession or control of
a firearm was determined by the jury as evident from its verdict. Moreover,
because Barnes was sentenced prior to the decision in Alleyne, we find that
imposition of the mandatory minimum sentence set forth in Section 9712.1
was proper.




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