J-S63040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

KHALIL SMITH

                           Appellant                  No. 1881 EDA 2015


              Appeal from the Judgment of Sentence June 4, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0011567-2013

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 19, 2016

        Appellant, Khalil Smith, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following a jury

trial and conviction for three violations of the Uniform Firearm Act (“VUFA”):

persons not to possess firearms,1 firearms not to be carried without a

license,2 and carrying firearms on public streets or property in Philadelphia.3

Appellant challenges the sufficiency of the evidence. We affirm.

        We adopt the facts set forth in the trial court’s opinion. See Trial Ct.

Op., 11/05/15, at 1-3.       Following a jury conviction, the court sentenced


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6105.
2
    18 Pa.C.S. § 6106.
3
    18 Pa.C.S. § 6108.
J-S63040-16


Appellant on June 4, 2015, to an aggregate term of eight-and-one-half to

seventeen years’ imprisonment.       Appellant filed a timely post-sentence

motion, which the court denied on June 16, 2015. Appellant filed a timely

appeal and a court-ordered Pa.R.A.P. 1925(b) statement. The court filed a

responsive Pa.R.A.P. 1925(a) opinion.

      On appeal, Appellant raises the following issue for review:

         Did the trial court err when it found that there was
         sufficient evidence to prove, beyond a reasonable doubt,
         the crimes of persons not to possess firearms, firearms not
         to be carried without a license and carrying firearms on
         public streets or public property in Philadelphia?

Appellant’s Brief at 2.

      Appellant argues that the evidence was insufficient to support any of

his VUFA convictions because the testimony presented at trial did not

establish that he either possessed or constructively possessed the firearm

found in the vehicle he was driving.       Instead, Appellant contends that

because the gun was recovered in the backseat of the car, it must have been

in the possession of a passenger in the vehicle and not Appellant, who was

the driver. We conclude that no relief is due.

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

evidence is de novo, as it is a question of law.         Commonwealth v.

Ratsamy, 934 A.2d 1233, 1235 (Pa. 2007).         As our Supreme Court has

explained:

         [T]he critical inquiry on review of the sufficiency of the
         evidence to support a criminal conviction . . . does not


                                    -2-
J-S63040-16


        require a court to ask itself whether it believes that the
        evidence at the trial established guilt beyond a reasonable
        doubt. Instead, it must determine simply whether the
        evidence believed by the fact-finder was sufficient to
        support the verdict.

                                 *    *    *

        When reviewing the sufficiency of the evidence, an
        appellate court must determine whether the evidence, and
        all reasonable inferences deducible from that, viewed in
        the light most favorable to the Commonwealth as verdict
        winner, are sufficient to establish all of the elements of the
        offense beyond a reasonable doubt.

Id. at 1235-37 (citations and quotation marks omitted).

     The doctrine of constructive possession provides:

        [i]n order to prove that a defendant had constructive
        possession of a prohibited item, the Commonwealth must
        establish that the defendant had both the ability to
        consciously exercise control over it as well as the intent to
        exercise such control. An intent to maintain a conscious
        dominion may be inferred from the totality of the
        circumstances, and circumstantial evidence may be used
        to establish a defendant’s possession of drugs or
        contraband.

Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa. Super. 2013)

(quotation marks and citations omitted).

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Daniel J.

Anders, we conclude Appellant’s issue merits no relief.        The trial court

opinion comprehensively discusses and properly disposes of the question

presented. See Trial Ct. Op. at 3-6 (finding evidence sufficient to support

Appellant’s VUFA convictions because Appellant had both possessed and


                                     -3-
J-S63040-16


constructively possessed the weapon in question where trial testimony

established that a police officer had observed the firearm in the hands of

Appellant, saw Appellant place the firearm in the waistband of his pants, and

had thereafter watched Appellant and a passenger engage in furtive

movements towards the center console of the car). Accordingly, we affirm

on the basis of the trial court’s opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/19/2016




                                       -4-
J-S63040-16




              -5-
                                                                                              Circulated 09/19/2016 04:27 PM
\   -




                      IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                              FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                      TRIAL DIVISION - CRIMINAL

        COMMONWEALTH OF PENNSYLVANIA                                   CP-51-CR-001156\=iLED
        vs.                                                            1881 EDA 2015
                                                                                                 NOV 06- 2015
                                                                                                           .   ':
        KHALIL SMITH
                                                                                         Criminal Appeals Unit
                                                      OPINION                          first Judicial District of PA
                  Following a jury trial, Defendant Khalil Smith was convicted of three violations of the

        Uniform Firearms Act ("VUFA"). The trial court sentenced Defendant to 8.5 to 17 years of

        incarceration. Defendant filed a timely appeal in which he argues that the evidence was
                                                                               CP-51-CR-0011567-2013 Comm. v. Smrth, Khalil
                                                                                                Opinion
        insufficient to support the verdict.

        FACTUAL BACKGROUND
                                                                                     II
                                                                                   II II I I 11111111111111111
                                                                                           7366610801
                  On August 6, 2013, at approximately 11:00pm, Philadelphia Police Officers Robert

        McCuen, John Terry, and Anthony Mooney were in plain clothes and traveling in an unmarked

        vehicle on the 3500 block of North 18th Street when they observed a silver Nissan Altima that

        was double-parked in the only lane of travel. Officer McCuen, who was driving the unmarked

        police vehicle, stopped his vehicle approximately one car length behind the Altima. Another

        vehicle was stopped in front of the Altima at the comer of the block. N.T 09/23/2014 at 33-38,

        133-34.

               While waiting for the Altima to proceed, Officer McCuen saw Defendant walking on the

    driver's side of the street and facing his direction. Defendant was walking back from the vehicle

    that was stopped in front of the Altima. As Defendant approached the driver's side door of the

    Altima, he was still facing the direction of the police officers. Defendant then looked toward the

    unmarked police vehicle. At this point, Officer McCuen observed a black handgun in

    Defendant's right hand. Officer McCuen then observed Defendant place the handgun into the
 waistband of his gray sweatpants at his mid-abdomen. Defendant then opened the door and

 entered the Altima. Id. at 132-38, 158-63, 179.

         When he was making these observations, Officer McCuen testified that the area where

 the vehicles were stopped was well-lit and that the police vehicle's high-beam headlights were

 on. He was also approximately 15 feet away from Defendant when he observed Defendant with

 the firearm. Office Mooney, who was seated in the rear of the police vehicle, testified that he

 heard both Officers McCuen and Terry say that they observed Defendant place a gun in his

waistband. Id. at 133-38, 158-62, 179.

        After following the Altima for one-and-a-half blocks, the officers stopped the Altima for

investigation. Three males were inside the vehicle, and Defendant was in the driver's seat. As

Officer McCuen approached the Altima from the driver's side, he observed Defendant making

movements. Specifically, Officer Mc Cuen observed Defendant lean toward the middle of the

vehicle. As Defendant leaned toward the middle, the back-seat passenger leaned forward

between the two front seats. When Officer Mooney approached the Altima, he had a clear view

of the occupants through the rear window. Officer Mooney observed Defendant lean right toward

the center of the vehicle. At the same moment, the back-seat passenger leaned forward toward

the center console. Id. at 40-42, 69-71, 142.

        During the vehicle stop, Officer Mooney searched the vehicle and recovered a black,

loaded .32-caliber revolver underneath an article of clothing that was located between the middle

seat and the seat behind the driver. The gun was located to the immediate left of the rear passenger.

Officer McCuen testified that the gun recovered from the rear of the vehicle was the same gun that

he observed in Defendant's right hand prior to entering the Altima. Id. at 42-53, 143-54.

       Defendant called Brian Bosket as a defense witness. Bosket was the passenger in the

front seat of the Altima. At trial, Bosket testified that he was aware that a gun was recovered
                                                -2-
 from the Altima but denied that he saw the Defendant with the gun. Bosket testified that the

 back-seat passenger was in possession of the gun. On cross-examination, Bosket acknowledged

 that he uses several aliases. Id. at 201-22.

 DISCUSSION

         Defendant asserts that the evidence was insufficient to support the VUF A convictions

 because there was no evidence that Defendant actually possessed or constructively possessed the

 firearm. Appellate courts review claims regarding the sufficiency of the evidence by considering

 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. Commonwealth v. Bradley, 69 A.3d 253, 255 (Pa. Super. Ct. 2013).

 The appellate court must evaluate the entire record and consider all evidence actually received.

Id. Further, a conviction may be sustained wholly on circumstantial evidence, and the trier of

fact-while passing on the credibility of the witnesses and the weight of the evidence-is free to

believe all, part, or none of the evidence. Id. In conducting this review, the appellate court may

not weigh the evidence and substitute its judgment for the fact-finder. Id.

        l.      There Is Sufficient Evidence To Support The Conviction Under 18 Pa.C.S. § 6105

        To sustain a conviction under Section 6105, there must be sufficient evidence to prove

beyond a reasonable doubt that Defendant possessed a firearm and that he was convicted of an

enumerated offense that prohibited him from possessing, using, controlling, or transferring a

firearm. Section 6105 defines "firearm" as any weapon that is "designed to or may readily be

converted to expel any projectile by the action of an explosive or the frame or receiver of any such

weapon." 18 Pa.C.S. § 6105; Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa. Super. Ct. 2009).

       Possession includes both actual possession and constructive possession. Constrnctive

possession is defined as "conscious dominion," i.e., the power to control the contraband and the
                                                 -3-
 intent to exercise that control over the contraband. Commonwealth v. Mudrick, 507 A.2d 1212,

 1213 (Pa. 1986). Constructive possession may be established by the totality of the circumstances.

 Id. "Individually, the circumstances may not be decisive; but in combination, they may justify an

 inference that the accused had both the power to control and the intent to exercise that control ...

 . " Commonwealth v. DeCampli, 364 A.2d 454, 456 (Pa. Super. Ct. 1976). Constrnctive possession

 can be established based upon a defendant's furtive movements and if the contraband was found

 within the area of the defendant's immediate control. Commonwealth v. Stembridge, 579 A.2d 901,

 903 (Pa. Super. Ct. 1990) (upholding a conviction for constrnctive possession of narcotics based

upon defendant's seating location inside the car and his furtive movements).

        Here, the evidence at trial was sufficient to prove beyond a reasonable doubt that

Defendant actually possessed the firearm, Officer McCuen testified that he observed Defendant

holding a black, .32-caliber revolver in his right hand while his unmarked police vehicle was

stopped directly behind Defendant's vehicle. As Defendant approached the driver's side door,

Officer McCuen observed Defendant place the gun in the waistband of his gray sweatpants while

he was looking directly at the undercover officers. Officer McCuen was only 15 feet from

Defendant when he made these observations, and the area was well-lit, including from the front

high beams of the unmarked police vehicle.

        There is also sufficient evidence to prove beyond a reasonable doubt that Defendant

constructively possessed the firearm. Officer McCuen and Officer Mooney both testified that

Defendant and the rear passenger made leaning movements toward each other while inside the

Altima. The furtive movements observed by Officer Mooney-Defendant leaning to the right

and the back-seat passenger leaning toward the center console-are consistent with a transfer of

the weapon from Defendant to the back-seat passenger. The recovery of the revolver underneath

an article of clothing that was located between the middle seat and the seat behind the driver
                                                -4-
'•'.




           provides circumstantial evidence that Defendant transferred the firearm to the rear passenger

           after he entered the vehicle.

                  This direct and circumstantial evidence, viewed in the light most favorable to the

           Commonwealth as the verdict winner', is sufficient to prove beyond a reasonable doubt that

           Defendant possessed a firearm and that he was convicted of an enumerated offense that

           prohibited him from possessing the fireann.2

                  2.      There Is Sufficient Evidence To Suppo11
                          The Convictions Under 18 Pa.C.S. § 6106 And 6108

                  To sustain a conviction under Section 6106, there must be sufficient evidence to prove

           beyond a reasonable doubt that: (1) Defendant possessed a firearm, (2) the firearm was

           unlicensed, and (3) the firearm was concealed on or about Defendant's person. 18 Pa.C.S. §

           6106(a); Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. Ct. 2004). Section 6106

       defines "firearm" as any pistol or revolver with a barrel length less than 15 inches, or any pistol,

       revolver, rifle, or shotgun with an overall length ofless than 26 inches. 18 Pa.C.S. § 6102.

                  To sustain a conviction under Section 6108, there must be sufficient evidence to prove

       beyond a reasonable doubt that Defendant carried a firearm at any time upon the public street or

       upon public property in the city of Philadelphia and that Defendant was not licensed to carry a

       firearm or exempt from licensing. 18 Pa.C.S. § 6108; Commonwealth v. Mendozajr, 71 A.3d

       1023, 1026 (Pa. Super. Ct. 2013).

                 For the reasons stated supra at 3-5, there is sufficient evidence to support the convictions

       under Sections 6106 and 6108.

       1
        Based on the evidence presented and the demeanor of the witnesses at trial, the fact-finder's credibility
       determinations=-including its apparent disbelief of the defense witness' testimony based in part on his
       demeanor and use of several aliases-should stand because there is no basis to disturb them on appeal.
       2
        Defendant conceded that he was prohibited from possessing a firearm under Section 6105 due to a prior
       drug conviction, and Detective Andrejczak test-fired the weapon and testified that it was operable. N.T.
       09/23/2014 at 53, 90, 101, 198.
                                                           -5-
CONCLUSION

                 Based on the foregoing, the judgment of sentence should be affirmed.
 ,,.,.,, . • , ,- -.,... ,   ·,         /~·-,-.,""-.



l
 y THE CO,                            1':

    ~--              ---'
                                  \
                                       E S,JlJDGE
Dated: November 5, 2015




                                                       -6-
'   I




        Commonwealth v. Khalil Smith
        CP-51-CR-0011567-2013
        1881 EDA 2015

                                             PROOF OF SERVICE

        I herby certify that I am this day serving the foregoing Court Order upon the persons, and in the
        manner indicated below, which service satisfies the requirements of Pa.R.Ctim.P. 114:


        Attorney for the Commonwealth:
                                     Hugh Bums, Esq.
                                     Assistant District Attorney
                                     Office of the District Attorney
                                     Three South Penn Square
                                     Comer of Juniper and S. Penn Square
                                     Philadelphia, PA 19107-3499
                                     Hugh.Burns@phila.gov

        Type of Service:        (   ) Personal (X) Regular mail () CJC mailbox (X) Email

        Defendant's Counsel:
                                        David Barrish, Esq.
                                        1333 Race Street
                                        Philadelphia, PA 19107-1556
                                        (215) 557-6710
                                        dwbarrish@hotmail.com

        Type of Service:        (   ) Personal (X) Regular mail () CJC mailbox (X) Email

        Defendant/Petitioner:
                                        Khalil Smith
                                        1422 W. Lenox Street
                                        Philadelphia, PA 19140

        Type of Service:        (   ) Personal (X) Regular mail   O CJC mailbox()   Email


        DATED:

                                                           Law Clerk to Hon. Daniel J. Anders
