J-S74009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NICHOLAS DELGADO,                          :
                                               :
                       Appellant               :   No. 3514 EDA 2017

             Appeal from the Judgment of Sentence March 22, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0014752-2013


BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY LAZARUS, J.                                  Filed: January 2, 2019

        Nicholas Delgado appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, following his conviction of

possession of a firearm prohibited.1 After our review, we affirm.



____________________________________________


1   18 Pa.C.S.A. § 6105.

        (a) Offense defined.--

        (1) A person who has been convicted of an offense enumerated in
        subsection (b), within or without this Commonwealth, 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.A § 6105(a)(1) (emphasis added).
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       On October 18, 2013, Pennsylvania State Parole Agents John Collier and

Darren Baker, along with members of the Philadelphia Police Department,

went to Delgado’s residence at 6637 Oakland Street in Philadelphia after

receiving a tip2 that Delgado, a convicted felon currently on parole, was in

possession of firearms. N.T. Trial, 8/19/15, at 13. At the residence, Agent

Baker and a police officer proceeded to the basement.                  There, they

encountered Delgado and two other individuals.            Id. at 14.   Agent Baker

testified that he observed two handguns in plain view on top of the clothes

dryer, within arm’s reach of Delgado.          Id. at 15. The agents also found an

SKS assault rifle in the garage of the home and a third handgun under

Delgado’s mattress in the master bedroom. Id. at 17-18.

       Delgado waived a jury trial and was tried before the Honorable Carolyn

H. Nichols.3 At trial, Agent Collier testified that several weeks prior to the

search he had been informed that Delgado was moving to 6637 Oakland

Street. Id. at 56-58, 71. Agent Collier testified as follows:

       Q: Okay. Prior to [the search on] October 18th of 2013, had you
       met with Mr. Delgado?

____________________________________________


2 Agent Collier testified that the information he received from the Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF) “was that a confidential
informant had informed [ATF] that [Delgado] had firearms at the residence.
N.T. Trial, 8/19/15, at 74.

3Judge Nichols now sits on this Court. At the time of Delgado’s appeal, Judge
Nichols was no longer sitting as a judge in Philadelphia County and, therefore,
she did not file a trial court opinion in this case.



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      A: Yes. I met with him originally on October the 2nd, 2013. That
      was when he had – he had a previous agent, Agent Ashton, at
      that time. And when I met with him in the office on that day,
      Agent Ashton had informed me that Nicholas Delgado had moved
      to the area that I supervised, which was the area, you know, of
      his residence at that time on Oakland Street. That was the area
      that I supervised. You know, we go by census tracts at the Parole
      Board. So he had moved into my area. She introduced me to him
      and told him that he would be assigned to me now. At that point,
      I gave him reporting instructions and told him I would be out to
      the house to see him at some point.

      Q Okay. And was the address given to you, 6637 Oakland Street?

      A: Yes. Yes, it was.

Id. at 56. Additionally, Delgado’s name was on the lease for the property.

See Trial Exhibit D-5; N.T. Trial, supra at 58.

      Following trial, the court convicted Delgado of possession of a firearm

prohibited and sentenced him to 3½ to 8 years’ incarceration. Delgado filed

a timely notice of appeal and Pa.R.A.P. 1925(b) statement of errors

complained of on appeal.

      Delgado raises one issue for our review: “Did the court commit error

by convicting appellant of possession [of] a firearm prohibited when the

evidence at trial was insufficient to prove that appellant ever possessed a

firearm?” Appellant’s Brief, at 2.

      The standard of review of a challenge to the sufficiency of the evidence

follows:
            The standard we apply when reviewing the sufficiency
            of the evidence is whether viewing all the evidence
            admitted at trial in the light most favorable to the
            verdict winner, there is sufficient evidence to enable
            the fact-finder to find every element of the crime
            beyond a reasonable doubt.

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Commonwealth v. Gibbs, 981 A.2d 274, 280 (Pa. Super. 2009). “[T]his

Court may not substitute its judgment for that of the factfinder, and where

the record contains support for the convictions, they may not be disturbed.”

Commonwealth v. Smith, 146 A.2d 257, 261 (Pa. Super. 2016) (citations

omitted). The finder of fact is permitted to believe all, part, or none of the

evidence presented at trial. Id. at 262.

      Even though a person does not physically possess contraband, the

Commonwealth may meet its burden by proving constructive possession.

      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. Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (citations

omitted).   See also Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.

Super. 2013). Further, we have held that circumstantial evidence is reviewed

by the same standard as direct evidence, and a decision by the trial court will

be affirmed “so long as the combination of the evidence links the accused to

the crime beyond a reasonable doubt.” Commonwealth v. Johnson, 818

A.2d 514, 516 (Pa. Super. 2003) (citations omitted).

      While mere presence of contraband is insufficient to establish

constructive possession, this Court has held that constructive possession can

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be found where a defendant, who lived in the house, had both access and

control of the area where the contraband was found. Commonwealth v.

Santiesteban, 552 A.2d 1072, 1075 (Pa. Super. 1988). Further, where a

defendant’s name is on the lease of the property where the contraband was

found, this Court has found constructive possession.     Commonwealth v.

Parsons, 570 A.2d 1328, 1335 (Pa. Super. 1990). Finally, and notable here,

it is significant if contraband is found in a bedroom because a bedroom is a

“more private place with limited access and usually subject to the exclusive

control of the owner or lessee of the premises.”         Commonwealth v.

Gilchrist, 386 A.2d 603, 605 (Pa. Super. 1978).

     Viewing the totality of the circumstances, the evidence was sufficient to

establish constructive possession beyond a reasonable doubt.        Delgado’s

name was on the lease of the residence, he had previously informed his parole

agent that he was moving to that address, and officers found a gun in the

master   bedroom.      Parsons,    supra;   Gilchrist,   supra.   See    also

Commonwealth v. Nelson, 582 A.2d 1115, 1119 (Pa. Super. 1990) (holding

constructive possession may be found where no individual factor establishes

possession but totality of circumstances demonstrates such).

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/2/2019




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