J-S14022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    DORMEN LISBY                               :
                                               :   No. 1042 EDA 2017
                       Appellant               :

        Appeal from the Judgment of Sentence Entered February 22, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0012318-2015


BEFORE:      OTT, J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY McLAUGHLIN, J.:                               FILED MAY 11, 2018

        Appellant Dormen Lisby appeals from the judgment of sentence imposed

on February 22, 2017, for his convictions of possession of a firearm by a

prohibited person, carrying a firearm without a license, carrying a firearm on

a public street in Philadelphia, and possession of a firearm with an altered

manufacturer’s number.1 He challenges the sufficiency of the evidence. We

affirm on the basis of the trial court opinion.

        Lisby was tried without a jury on November 22, 2016. The trial court

recounted the facts established at trial as follows:

              On November 17, 2015, at about 11:00 p.m., Philadelphia
        Police Officer Timothy Stephen and his partner Keith White were
        on routine patrol in the 3600 block of Germantown Avenue in
____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 6105, 6106, 6108, and 6110.2, respectively.
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     Philadelphia when Officer Stephen observed a [D]odge Caravan
     with Delaware plates, the windows of which were heavily tinted
     making it impossible to see inside the vehicle. When the Caravan
     pulled to the curb without the driver using his turn signal the
     officers activated the emergency lights on their police car and
     pulled up behind it. Officer White activated the spot light[] on top
     of the police car and directed it at the Caravan. However, because
     of the tint, the officers could only see the silhouettes of the three
     individuals inside it, two of whom were sitting in the front driver
     and passenger seats and the third male, identified as Jafiq Barnes,
     was sitting in the rear of the Caravan. From his patrol car, Officer
     Stephen observed the vehicle rock and saw the silhouettes of the
     two persons in the front seat moving about in their seats. He did
     not see the silhouette of the person in the rear of the Caravan
     move at all.

           Upon observing the foregoing, Officers Ste[ph]en and White
     exited their patrol car; Officer Stephen walked up to the front
     passenger side window of the Caravan and Officer White went to
     the driver’s side window and began speaking to the vehicle’s
     driver[.] Officer Stephen opened the front passenger door so that
     he could hear the conversation between the driver and Officer
     White for his and Officer White’s safety. When he did so, Officer
     Stephen observed [Lisby] sitting in the front passenger seat with
     a cigar and green leafy material in his lap and a jar in the door
     pocket, which the officer knew, based on his experience, is used
     to hold marijuana. He also saw a third male sitting on a bench in
     the rear of the vehicle, the middle seat of which was missing.

            Upon making these observations, Officer Stephen asked
     [Lisby] if he had identification and he said he did not. During the
     conversation, [Lisby] moved, which caused the cigar to fall onto
     the floor of the Caravan. [Lisby] also appeared to become very
     nervous; his hands began shaking, he started breathing very
     heavily, and he repeatedly asked Officer Stephen if he was in
     trouble. As he was speaking to [Lisby], Officer Stephen noticed a
     half[-]burned marijuana cigarette in a cup holder in the center
     console and also detected a strong odor of marijuana inside the
     vehicle.

           Based on their observations, the officers concluded that they
     had enough information to remove the occupants from the
     Caravan and placed them in the backseat of their patrol car so
     that they could search the vehicle. Once the three occupants were

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       secured, the officers returned to the Caravan and began searching
       it for contraband. In the pocket of a jacket on the seat on which
       [Lisby] was sitting, Officer Stephen recovered a .45 caliber FEG
       hand gun loaded with four or five rounds, one of which was in the
       chamber. After recovering the firearm, both [Lisby] and the driver
       of the vehicle were taken into custody and the handgun was
       placed on a property receipt.

             Jafiq Barnes, who was seventeen years old at the time,
       spoke to Officer Stephen that evening and told him that he owned
       both gun[s] found inside the Caravan[2] and that he put one of the
       guns [] under the front passenger seat and the other one under
       the driver’s seat as the officers were approaching the Caravan.

            An examination of the .45 caliber handgun revealed that it
       was operable and that its serial number had been obliterated.

             In his defense, [Lisby] called Robert Rachlin as a witness.
       In the course of working in a law office as an intern, Mr. Rachlin
       interviewed Jafiq Barnes, who told him that he was sitting in the
       rear of the Caravan when the police commenced their
       investigation. Mr. Barnes related that when he first got into the
       Caravan he got into its front passenger seat because [Lisby] had
       yet to be picked up and that after [Lisby] got into the vehicle, he
       placed a Colt .45 handgun under the front passenger seat and
       went to the rear of the Caravan. Finally, Barnes stated to Mr.
       Rachlin that the .45 caliber handgun recovered by Officer Stephen
       belonged to him and not [Lisby] and that the other gun discovered
       inside the Caravan did not belong to him.

Trial Court Opinion, filed October 16, 2017, at 2-4 (citations to the notes of

testimony and footnote omitted). The court convicted Lisby of the above-listed




____________________________________________


2 A second gun was recovered from the “radio area of the vehicle.” See Motion
to Suppress Evidence, Ex. A (Philadelphia Police Department Investigation
Report); N.T., 11/22/16, at 24 (trial court sustaining objection to testimony
about “what was on the radio” because “Mr. Lisby is not charged with those”);
id. at 43 (Officer Stephen recounting that he told Jafiq Barnes that there was
a gun recovered from “by the radio”).

                                           -3-
J-S14022-18


offenses, and sentenced him to an aggregate of 4 to 10 years’ incarceration

followed by five years’ probation.

      Lisby appealed, and raises the following issue:

      Is the evidence sufficient as a matter of law to sustain [Lisby]’s
      conviction for the crimes of violations of the uniform firearms act,
      18 Pa.C.S.A. §§ 6105, 6106, 6108, and 6110.2, where the
      competent evidence of record did not establish beyond a
      reasonable doubt that [Lisby] constructively possessed the
      firearm recovered in a vehicle in which [Lisby] was a passenger
      where the evidence established the following:

            (1) when [Lisby] was removed from the vehicle by police,
            they did not immediately observe a gun on the seat that
            [Lisby] had been seated in,

            (2) another firearm was recovered hidden beneath the radio
            in the dashboard of the vehicle,

            (3) the driver of the vehicle was attempting to block the
            police from viewing the radio area where the other gun was
            hidden,

            (4) there was a third passenger in that vehicle—Mr.
            Barnes—who stated to police that both firearms belonged to
            him, and

            (5) the vehicle did not belong to [Lisby].

Lisby’s Br. at 4.

      “Because evidentiary sufficiency is a question of law, our standard of

review is de novo and our scope of review is plenary.” Commonwealth v.

Ballard, 80 A.3d 380, 390 (Pa. 2013) (citation omitted). We must determine

whether, when viewed in a light most favorable to the verdict winner, the

evidence at trial and all reasonable inferences therefrom are sufficient for the

trier of fact to find that each element of the crime charged is established

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beyond a reasonable doubt. See Commonwealth v. Dale, 836 A.2d 150,

152 (Pa.Super. 2003). “The Commonwealth may sustain its burden of proving

every element of the crime beyond a reasonable doubt by means of wholly

circumstantial evidence.” Commonwealth v. Brown, 23 A.3d 544, 559

(Pa.Super. 2011) (en banc) (citation omitted).

      Further, “[a]s an appellate court, we do not assess credibility nor do we

assign weight to any of the testimony of record.” Commonwealth v. Kinney,

863 A.2d 581, 584 (Pa.Super. 2004) (citation omitted). Therefore, we will not

disturb the verdict “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.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa.Super.

2007) (citation omitted).

      To establish constructive possession of contraband, the Commonwealth

must show that the defendant has “the ability to exercise conscious dominion”

over the contraband; that is, “the power to control the contraband and the

intent to exercise that control.” Commonwealth v. Valette, 613 A.2d 548,

550 (Pa. 1992). The “intent to maintain a conscious dominion may be inferred

from the totality of the circumstances,” and “constructive possession may be

found in one or more actors where the item in issue is in an area of joint

control and equal access.” Commonwealth v. Johnson, 26 A.3d 1078, 1094

(Pa. 2011) (citations and brackets omitted).




                                     -5-
J-S14022-18


      The trial court concluded that (1) the Commonwealth presented

sufficient evidence that Lisby constructively possessed the firearm found in a

jacket lying on the seat on which Lisby was sitting, because “[i]ts location

allowed [the court] to infer that [Lisby] not only was aware of the existence

of the firearm but also that he had the power to control it,” and Lisby’s “furtive

movements demonstrate[d] knowledge of guns or contraband located in close

proximity”; and (2) most of Lisby’s challenges went to the weight, and not the

sufficiency of the evidence. See Trial Ct. Op. at 6-7.

      After a review of the record, the briefs of the parties, the applicable law,

and the well-reasoned opinion of the Honorable Daniel D. McCaffery, we hold

that there was sufficient evidence presented to establish beyond a reasonable

doubt that Lisby constructively possessed the firearm. Thus, we affirm on the

basis of the trial court’s opinion, which we adopt and incorporate herein.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/18




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