J-A25005-17

                                   2018 PA Super 14


    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ERIC MCCLELLAN                             :
                                               :   No. 2014 EDA 2016
                       Appellant

             Appeal from the Judgment of Sentence March 1, 2016
     In the Court of Common Pleas of Montgomery County Criminal Division
                      at No(s): CP-46-CR-0004322-2015,
                           CP-46-CR-0008053-2015


BEFORE:      OTT, J., STABILE, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                           FILED JANUARY 26, 2018

       Appellant, Eric McClellan, appeals from the judgment of sentence

entered in the Court of Common Pleas of Montgomery County, which, sitting

as finder of fact in Appellant’s bench trial, convicted him of Persons Not To

Possess, Manufacture, Control or Transfer Firearms.1           Herein, Appellant

challenges the order denying his suppression motion and contends evidence

at trial failed to prove he constructively possessed a handgun recovered from

the basement of his family home. We affirm.




____________________________________________


1 18 Pa.C.S.A. § 6105(a)(1). The trial court also convicted Appellant on two
additional charges, one for Possession of a Controlled Substance, 35 P.S. §
780-113(a)(16) and the other for Possession of Drug Paraphernalia, 35 P.S.
§780-113(a)(32), but the Commonwealth subsequently nol prossed the drug
offense convictions prior to sentencing.
____________________________________
* Former Justice specially assigned to the Superior Court.
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       On April 24, 2014, Agent Scott Dominick of the Pennsylvania Board of

Parole was participating in a LCB/Norristown Police Department sweep of local

bars in search of noncompliant and/or absconder parolees, when he saw one

of his state parolees, Appellant, exiting a bar at 11:30 p.m. Agent Dominick

stopped Appellant for violating two conditions of his parole, one imposing an

8:00 p.m. curfew and the other prohibiting his presence in a drinking

establishment. N.T. 11/30/15 at 12-13. Appellant displayed no outward signs

of alcohol consumption, but a frisk of his person produced $320 in cash, two

cell phones, and a house key. N.T. at 19-20.

       On suspicion that Appellant was engaging in other violations at the bar

consistent with his history of drug dealing, Agent Dominick obtained

permission to search Appellant’s approved residence, his grandmother’s

home, from his supervisor, who was on the scene at the time. N.T. at 20.

Appellant had, at the outset of his parole, also signed a parole agreement form

consenting to warrantless searches of his residence. N.T. at 14-15.

       Parole    agents    searched      Appellant’s   grandmother’s   home   while

Norristown Police maintained a security presence inside without otherwise

participating in or directing the search. N.T. at 21-22. Agent Dominick was

familiar with the home, having previously conducted numerous routine field

visits there, and he knew Appellant lived with his grandmother, father, and

adult sister.2   The parole officer went straight to Appellant’s bedroom and
____________________________________________


2 Appellant’s father testified that he was no longer living at the home in
question on the night of the search. See infra.

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uncovered from underneath his mattress a clear sandwich bag containing a

trace amount of cocaine. N.T. at 22-23. A different parole officer went down

to the finished basement and discovered a loaded firearm. N.T. at 61-63.

Charges were filed.

         On November 30, 2015, Appellant filed motion to suppress, which, after

a hearing, the court denied. Appellant’s bench trial ensued on the same day,

ending with the court convicting Appellant on the above-mentioned charges.

On March 1, 2016, the court imposed a standard range sentence of five to ten

years’ incarceration on the charge of persons not to possess. N.T., 3/1/16,

34-35. After the denial of post-sentence motions, this timely appeal followed.

         Appellant presents the following questions for our review:

   I.      WAS THE EVIDENCE INSUFFICIENT TO ESTABLISH
           BEYOND A REASONABLE DOUBT THAT APPELLANT HAD
           THE POWER TO CONTROL THE FIREARM AND THE
           INTENT TO EXERCISE THAT CONTROL, WHERE THE
           FIREARM WAS RECOVERED IN THE BASEMENT OF
           APPELLANT’S GRANDMOTHER’S HOME AND WHERE DNA
           TESTING REVEALED THAT MORE THAN ONE PERSON HAD
           HANDLED THE FIREARM?

   II.     DID THE SUPPRESSION COURT ERRONEOUSLY DENY
           APPELLANT’S  MOTION   TO   SUPPRESS   PHYSICAL
           EVIDENCE, WHERE THE FACTS AND CIRCUMSTANCES
           KNOWN TO THE PAROLE AGENT PRIOR TO THE SEARCH
           DID NOT ESTABLISH REASONABLE SUSPICION TO
           BELIEVE THAT THERE WAS CONTRABAND OR OTHER
           EVIDENCE OF VIOLATIONS OF THE CONDITIONS OF
           SUPERVISION INSIDE APPELLANT’S RESIDENCE?

Appellant’s brief at 6.




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      In his first issue, Appellant contends that DNA and circumstantial

evidence offered to link him to the loaded handgun found in the basement was

insufficient to prove beyond a reasonable doubt that he constructively

possessed the gun, an element to the crime of Persons Not to Possess of which

he was convicted. We disagree.

      Our standard of review of sufficiency claims is well-settled:

      A claim challenging the sufficiency of the evidence is a question of
      law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a reasonable
      doubt. Where the evidence offered to support the verdict is in
      contradiction to the physical facts, in contravention to human
      experience and the laws of nature, then the evidence is insufficient
      as a matter of law. When reviewing a sufficiency claim[,] the court
      is required to view the evidence in the light most favorable to the
      verdict winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      Furthermore, the trier of fact, in this case the trial court, is free to

believe, all, part, or none of the evidence presented when making credibility

determinations. Commonwealth v. Beasley, 138 A.3d 39, 45 (Pa.Super.

2016). In deciding a sufficiency of the evidence claim, this court may not

reweigh the evidence and substitute our judgment for that of the fact-finder.

Commonwealth v. Williams, 153 A.3d 372, 375 (Pa.Super. 2016).




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      Illegal possession of a firearm may be established by constructive

possession.   Commonwealth v. Parker, 847 A.2d 745, 750 (Pa.Super.

2005). With respect to constructive possession, this Court has held:

      When contraband is not found on the defendant's person, the
      Commonwealth must establish “constructive possession,” that is,
      the power to control the contraband and the intent to exercise
      that control. Commonwealth v. Valette, 531 Pa. 384, 613 A.2d
      548 (1992). The fact that another person may also have control
      and access does not eliminate the defendant's constructive
      possession.... As with any other element of a crime, constructive
      possession may be proven by circumstantial evidence.
      Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132
      (1983). The requisite knowledge and intent may be inferred from
      the totality of the circumstances.         Commonwealth v.
      Thompson, 286 Pa.Super. 31, 428 A.2d 223 (1981).

Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa.Super. 1996), appeal

denied, 692 A.2d 563 (Pa. 1997). Constructive possession is an inference

arising from a set of facts that possession of the contraband was more likely

than not. Commonwealth v. Mudrick, 507 A.2d 1212, 1213 (1986).

      To support his argument against constructive possession, Appellant

points to evidence that the gun was found neither in his bedroom nor in a

room containing any of his personal belongings, but, instead, in a basement

used primarily by his father and otherwise accessible to the whole family.

      The Commonwealth counters that DNA samples taken from the gun

implicated Appellant and that the basement was furnished primarily as a

common area, as evidenced by the presence of exercise equipment and a

futon in the upright position with a TV opposite it on the day of the search.




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J-A25005-17



       With respect to DNA evidence adduced at trial,3 the prosecution

established that each of the four DNA swab samples taken from the gun

produced a profile representing a mixture of at least three DNA contributors,

from which group Appellant could not be excluded. N.T. 11/30/15 at 138.

Because there existed the possibility that one or more members of Appellant’s

family were among the three DNA contributors, however, additional DNA

testing and analyses were undertaken to assess the relative probability that

Appellant, rather than a family member, contributed to the DNA mixture.

       Of the four DNA samples taken from the gun in question, one yielded no

conclusion and another, from the trigger, was more probable if it came from

a relative of Appellant’s and two unknown, unrelated individuals than if it came

from Appellant and two unknown, unrelated individuals.

       However, the two other DNA swab samples pointed more heavily to

Appellant. First, it was determined that the DNA sample taken from the gun’s

grip was at least 384 times more probable if the sample originated from

Appellant and two unknown, unrelated individuals than if it originated from a

relative to Appellant and two unknown, unrelated individuals.4 Therefore, the



____________________________________________


3  At trial, Appellant lodged no objection to the admissibility of the
Commonwealth’s DNA evidence.
4 Hence, the record belies Appellant’s contention that DNA evidence failed to

address the probability that a relative of Appellant’s and two unknown,
unrelated individuals had contributed to the mix. See Appellant’s brief, at 29.




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J-A25005-17



laboratory concluded there was “strong support” that Appellant contributed to

this mixture.5

       Testing of the DNA sample retrieved from the gun’s magazine also

yielded the conclusion that the DNA sample was at least 29 times more

probable if the sample originated from Appellant and two unknown, unrelated

individuals than if it originated from a relative to Appellant and two unknown,

unrelated individuals.

       Thus, we agree with the trial court that the DNA evidence strongly

implicated Appellant as a possessor of the gun found in the basement of his

approved residence. In this regard, the fact that other family members may

have also handled the gun does not preclude Appellant’s constructive

possession of it, as the constructive possession concept allows for more than

one possessor. Id. See also Commonwealth v. Macolino, 469 A.2d 132,

136 (Pa. 1983) (overturning ruling that would “provide a privileged sanctuary

for the storage of illegal contraband. Simply by storing contraband in a place

controlled by more than one party, a spouse, roommate, partner would render

all impervious to prosecution”).

       As such, evidence establishing that Appellant was dealing drugs that he

kept hidden in his bedroom of his approved home, had handled a gun
____________________________________________


5 This same analysis also concluded that it was 1,000,000 times more likely
that the DNA on the gun’s grip belonged to Appellant and two unknown,
unrelated individuals than if it originated from three unknown, unrelated
individuals, thus lending “very strong support” that Appellant and two
unknown, unrelated individuals contributed to this mixture rather than three
unknown, unrelated individuals.

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J-A25005-17



discovered in the basement of that home, and had unrestricted access to the

basement was sufficient to prove the element of possession necessary to his

conviction for Persons Not to Possess. Viewed in a light most favorable to the

Commonwealth as verdict winner, such evidence went beyond showing he

merely resided in a home where a gun was stored and knew of the gun’s

location; it established, instead, both his control and his intent to exercise

control of the gun.

      Appellant assails the Commonwealth’s proffer in this regard by alluding

to defense evidence offered to show that Appellant had no interest in the

basement of his approved home.          Such an argument goes not to the

sufficiency of the evidence, however, but to the weight of the evidence, a

claim that Appellant has raised in neither his Pa.R.A.P. 1925(b) statement nor

his statement of questions presented. Accordingly, he has waived his weight

of the evidence claim.

      Even if he had preserved the claim, it would afford him no relief. The

court, sitting as finder of fact at Appellant’s bench trial, found the testimony

of Appellant’s father (“Father”) incredible to the extent he attempted to

disassociate his son completely from the basement where the gun was

recovered. Specifically, Father claimed exclusive control of everything in the

basement except the gun, which he attributed to his incarcerated cousin,

Manuel McClellan. N.T. at 170-72. He did this by testifying that the basement

was “my area,” even though he no longer resided in the home, because he

stored some personal items there. Id. When asked specifically about the

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J-A25005-17



futon, however, under which the handgun was hidden, Father said only that

his cousin Manuel slept there until his arrest, the obvious implication being

that the gun found underneath the futon belonged to Manuel.

      In arguing that the trial court erroneously rejected defense evidence

that Appellant had no interest in the basement space that was essentially

within the dominion of his father, Appellant asks us to do what we may not

do, i.e., disturb the credibility determinations of the finder of fact.   See

Beasley, supra; Williams, supra. For that reason, we would discern no

abuse of discretion with the trial court’s denial of Appellant’s weight claim

raised in his post-trial motion even if Appellant properly raised it for our

review.

      Here, the totality of evidence comprising DNA analysis of the gun and

Appellant’s access to the gun in a common area of his grandmother’s home

supported a finding of fact that he constructively possessed the gun.

Discerning no error with the court’s determination on this point, we conclude

Appellant’s sufficiency claim affords him no relief.

      Next, we consider whether the lower court erred in denying Appellant’s

motion to suppress evidence obtained during the parole agents’ search of his

residence. We review the denial of a motion to suppress as follows:

      An appellate court's standard of review in addressing a challenge
      to the denial of a suppression motion is limited to determining
      whether the suppression court's factual findings are supported by
      the record and whether the legal conclusions drawn from those
      facts are correct. Because the Commonwealth prevailed before
      the suppression court, we may consider only the evidence of the


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J-A25005-17


      Commonwealth and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record as
      a whole. Where the suppression court's factual findings are
      supported by the record, the appellate court is bound by those
      findings and may reverse only if the court's legal conclusions are
      erroneous.     Where the appeal of the determination of the
      suppression court turns on allegations of legal error, the
      suppression court's legal conclusions are not binding on an
      appellate court, whose duty it is to determine if the suppression
      court properly applied the law to the facts. Thus, the conclusions
      of law of the courts below are subject to plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015) (citation,

alterations, and ellipsis omitted).

      Appellant filed a motion to suppress evidence obtained from the search

of his home, which, he maintained, was unsupported by reasonable suspicion

that he possessed contraband or was otherwise in violation of parole

conditions. During his nine months on parole, Appellant argued, he kept every

appointment, committed no violations, and never failed a drug test.            He

stressed that there was no evidence as to whether either phone in his

possession contained texts, emails, or messages suggesting illegal activity.

      Appellant’s parole officer testified that Appellant’s presence at a bar, his

possession of a large amount of cash and two working cell phones, and his

underlying criminal record involving violations of the Drug Act created

reasonable suspicion that he was dealing drugs at the bar, which justified a

search of his residence for drug-related contraband. The suppression court

agreed that parole agents had reasonable suspicion to support a search of his

home, hence, it denied Appellant’s motion to suppress.




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J-A25005-17


             A parolee has limited Fourth Amendment rights because of
      a diminished expectation of privacy.       Commonwealth v.
      Williams, 692 A.2d 1031, 1035 (Pa. 1997). A “parolee's signing
      of a parole agreement giving his parole officer permission to
      conduct a warrantless search does not mean either that the parole
      officer can conduct a search at any time and for any reason or
      that the parolee relinquishes his Fourth Amendment right to be
      free from unreasonable searches.” Id. at 1036.

Commonwealth v. Coleman, 130 A.3d 38, 45 (Pa. Super. 2015).

      However, under 42 Pa.C.S. § 6153, “Supervisory relationship to

offenders,” an Agent of the Pennsylvania Board of Probation and Parole may

conduct a warrantless property search “if there is reasonable suspicion to

believe that the real or other property in the possession or under the control

of the offender contains contraband or other evidence of violations of the

conditions of supervision[,]” subsection 6153(d)(2), and where, in the

absence of exigent circumstances, prior approval of a supervisor is obtained,

subsection 6153(d)(3). Subsection 6153(d)(6) also addresses the formulation

of reasonable suspicion to support a property search without a warrant:

      (6) The existence of reasonable suspicion to search shall be
      determined in accordance with constitutional search and seizure
      provisions as applied by judicial decision. In accordance with such
      case law, the following factors, where applicable, may be taken
      into account:

            (i) The observations of officers.
            (ii) Information provided by others.
            (iii) The activities of the offender.
            (iv) Information provided by the offender.
            (v) The experience of the officers with the offender.
            (vi)    The    experience      of  officers in  similar
            circumstances.
            (vii) The prior criminal and supervisory history of the
            offender.


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J-A25005-17


           (viii) The need to verify          compliance   with   the
           conditions of supervision.
42 Pa.C.S.A. § 6153(d)(6).

      Here, the facts as they relate to subsections 9912(d)(6)(i), (iii), (vii),

and (viii) created reasonable suspicion to believe Appellant possessed

contraband in his home. Specifically, Appellant was present in a bar late at

night in violation of his parole conditions.    Notably, it appeared to Agent

Dominick that Appellant had not been drinking while at the bar, and he was

otherwise found to have two working cell phones and a large amount of cash

on his person, items associated with the drug trade. Viewed in conjunction

with Appellant’s prior history as a drug offender, Agent Dominick’s

observations and search of Appellant’s person provided reason to suspect

Appellant was dealing drugs in the bar, thus justifying the warrantless search

for illicit drugs in his residence. Accordingly, we reject Appellant’s challenge

to the suppression order in question as meritless.

      Judgment of sentence is AFFIRMED.

      Judge Stabile joins the Opinion.

     Judge Ott files a Concurring Opinion.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/26/18




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