J. S25044/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
JARED WILEY,                             :           No. 3667 EDA 2015
                                         :
                         Appellant       :


          Appeal from the Judgment of Sentence, November 4, 2015,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0003396-2015


BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED AUGUST 15, 2017

        Jared Wiley appeals the judgment of sentence in which the Court of

Common Pleas of Philadelphia County sentenced him to no further penalty

for convictions of firearms not to be carried without a license and carrying

firearms in public in Philadelphia.1 After careful review, we reverse.

        The record reflects that on January 30, 2015 at approximately

2:00 a.m., Officer Thomas Bergey (“Officer Bergey”) and his partner of the

City of Philadelphia Police Department were on patrol in the 2100 block of

North 29th Street in the City of Philadelphia.     Officer Bergey pulled over a

gold 1998 Mercedes-Benz for a motor vehicle violation because it had only

one operational brake light. Appellant was the driver of the vehicle. There



1
    18 Pa.C.S.A. §§ 6106 and 6108, respectively.
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was a passenger, Andrew Robinson (“Robinson”), in the front passenger seat

of the vehicle. (Id. at 37-38.) Officer Bergey requested that he produce his

license and registration.      Appellant did not produce a driver’s license.

Appellant did produce a wallet.     Officer Bergey took the wallet and asked

appellant for his birthdate.   The birthdate did not match the date of birth

that was on the permit to carry firearms that was in the wallet. The name

on the permit to carry was Marasailles Burton (“Burton”). The vehicle was

registered to Burton.   Officer Bergey returned to the driver’s side of the

vehicle and asked for proper information. Appellant then identified himself

by name.     After Officer Bergey saw the identification of Burton as a

corrections officer, he asked if there was a firearm in the car.   (Notes of

testimony, 11/3/15 at 30-34.) Appellant replied affirmatively and said that

the firearm “was on the driver’s side in between the door frame and the

driver’s seat itself -- down towards the floor.” (Id. at 34.) Officer Bergey

opened the door, saw the firearm, and removed it. (Id. at 35.) Appellant

told Officer Bergey that he had a permit to carry that was issued in Florida.

When the police checked for a permit issued to appellant in Florida, the

search revealed no such permit. (Id. at 36.) Approximately ten to fifteen

minutes after the vehicle was stopped, Burton appeared at the scene. When

Officer Bergey questioned him, Burton replied that appellant did not have his

permission to take the firearm or the vehicle. (Id. at 37.)




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        Appellant was arrested and charged with two counts of theft by

unlawful taking--moveable property, receiving stolen property, unauthorized

use of a motor vehicle, and providing false identification to a law

enforcement officer in addition to the two crimes for which he was

convicted.2

        On November 3, 2015, the trial court conducted a bench trial. Burton

testified that he had known appellant for nine years and considered him a

friend.    (Id. at 8.)   Burton testified that on January 30, 2015, he and

appellant had been “driving around, going to different friends’ house [sic].

Then when we went to start to close the night out, we went to pick up

[Robinson].”     (Id. at 10.)   Burton testified that he had never allowed

appellant to drive one of his cars when Burton was not in the car. (Id. at

11.) On the night of January 30, 2015, Burton drove appellant and Robinson

to appellant’s residence.   Burton testified that he was carrying a firearm.

After talking for a while at appellant’s residence, the three fell asleep.

Before falling asleep, Burton removed his firearm from his “rig” or utility belt

and put the firearm by his head along with his car keys. (Id. at 14.) Burton

testified that he did not give appellant permission to take either his firearm

or his car. (Id. at 14-15.) After appellant was pulled over, he telephoned




2
    18 Pa.C.S.A. §§ 3921(a), 3925(a), 3928(a), and 4914(a), respectively.


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Burton who ran to the site of the vehicle. (Id. at 16.) Burton identified his

firearm for the police. (Id. at 18.)3

         Appellant called Robinson as a witness. He testified that appellant is

his brother. (Id. at 48.) Robinson testified that appellant and Burton “were

tight.    Every time you see [appellant], you see [Burton].           You see them

together if they’re not working.” (Id. at 50.) Robinson testified that he had

seen appellant drive Burton’s cars by himself in the past. (Id. at 51.) On

the night of January 30, 2015, Robinson did not see Burton’s gun. He did

not know that the gun was in the car, and he did not see it on Burton’s

person. (Id. at 58.)

         Appellant testified that he knew that there was a gun in Burton’s car

because Burton usually kept a gun there. (Id. at 74.) Appellant believed

that appellant had a valid Florida license to carry a firearm.          (Id. at 77.)

Appellant did not touch the gun on January 30, 2015. (Id. at 86.)

         The trial court stated, “I barely believe anything [Burton] said.” (Id.

at 90.) The trial court found appellant guilty on the firearms charges and

not guilty on the other charges. The trial court sentenced appellant to no

further penalty.

         Appellant appealed to this court and filed a statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).                The trial court

issued an opinion in response.


3
    Officer Bergey testified regarding the traffic stop and arrest.


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      Appellant raises the following issue for this court’s review: “Was not

the evidence insufficient as a matter of law to sustain appellant’s convictions

for violating the Uniform Firearms Act when there was no evidence that

appellant had actual or constructive possession of the firearm, and appellant

reasonably believed that he had a valid permit to carry a firearm?”

(Appellant’s brief at 4.)

      With respect to the sufficiency of the evidence, we observe:

                  In reviewing the sufficiency of the evidence,
            we view all the evidence admitted at trial in the light
            most favorable to the Commonwealth, as verdict
            winner, to determine whether there is sufficient
            evidence to enable the factfinder to find every
            element of the crime established beyond a
            reasonable doubt.     Commonwealth v. Thomas,
            867 A.2d 594 (Pa.Super. 2005). “This standard is
            equally applicable to cases where the evidence is
            circumstantial rather than direct so long as the
            combination of the evidence links the accused to the
            crime beyond a reasonable doubt.” Id. at 597. And
            while a conviction must be based on more than mere
            suspicion or conjecture, the Commonwealth need not
            establish guilt to a mathematical certainty.        Id.
            quoting Commonwealth v. Coon, 695 A.2d 794,
            797 (Pa.Super. 1997). This Court is not free to
            substitute its judgment for that of the fact-finder; if
            the record contains support for the convictions they
            may not be disturbed. Id. citing Commonwealth v.
            Marks, 704 A.2d 1095, 1098 (Pa.Super. 1997) and
            Commonwealth v. Mudrick, 510 Pa. 305, 308, 507
            A.2d 1212, 1213 (1986). Lastly, the factfinder is
            free to believe some, all, or none of the evidence.
            Id.

Commonwealth v. Hartle, 894 A.2d 800, 803-804 (Pa.Super. 2006).




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     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).

     Section 6106 of the Crimes Code provides:

           § 6106.     Firearms not to be carried without a
           license

           (a)   Offense defined.--

                 (1)   Except as provided in paragraph
                       (2), any 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.

                 (2)   A person who is otherwise eligible
                       to possess a valid license under
                       this chapter but carries a firearm in


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                       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 and has not
                       committed any other criminal
                       violation commits a misdemeanor
                       of the first degree.

18 Pa.C.S.A. § 6106.

     Section 6108 of the Crimes Code provides

           § 6108. Carrying firearms on public streets or
           public property in Philadelphia

           No person shall carry a firearm, rifle or shotgun at
           any time upon the public streets or upon any public
           property in a city of the first class unless:

           (1)   such person    is   licensed   to   carry   a
                 firearm; or

           (2)   such person is exempt from licensing
                 under section 6106(b) of this title
                 (relating to firearms not to be carried
                 without a license).

18 Pa.C.S.A. § 6108.

     Therefore, in order to establish that appellant violated these firearm

statutes, the Commonwealth had to present evidence sufficient to show that

appellant carried a concealed weapon on his person or in the car without

possessing a valid license to do so. Appellant concedes that he was aware

that the firearm was in the vehicle when he took Burton’s car to get

something to drink. However, he argues that he had no intent to exercise




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any control over the firearm, and the Commonwealth failed to present any

evidence that he did.

      The trial court reasoned:

                  Here, we accepted [appellant’s] testimony that
            he had permission to use the car, that he knew
            Burton kept the gun in the car and that he knew the
            gun was in the car when he drove the vehicle. Those
            facts established the circumstances of [appellant’s]
            constructive possession of the gun.        While we
            understood that [appellant’s] direct intent was to
            possess the car, the fact that he knew the gun was
            in the car established his constructive possession of
            the gun and thus violation of 18 Pa.C.S. §§ 6106 and
            [] 6108.

                  The facts of this case are somewhat unique, in
            that [appellant] borrowed a friend’s car, in which
            that friend kept his lawfully owned and carried gun,
            and that the gun was unloaded, and separated from
            the magazine within the passenger compartment.
            We also accepted that the presence of the gun was
            incidental to [appellant’s] goal -- use of his friend’s
            car with permission. Although we took all of those
            factors into account in imposing the sentence of no
            further penalty, we could not ignore the fact that
            [appellant] knowingly took constructive possession
            of the gun, in violation of the law.

Trial court opinion, 5/18/16 at 5.

      Appellant argues that the evidence, whether direct or circumstantial,

failed to establish that he had “conscious dominion” over the firearm as

there was no evidence to establish an intent to exercise control over the

firearm.   See Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super.

2012).




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       In Commonwealth v. Boatwright, 453 A.2d 1058 (Pa.Super. 1982),

this court addressed constructive possession in the context of firearms in a

vehicle. In Boatwright, police officers responded to a radio call that three

“suspicious” men were in an automobile parked in front of a residence in the

Hazelwood section of the City of Pittsburgh.           When Officer Charles Roller

(“Officer   Roller”)   arrived   at   the   location   of   the   car,   he   observed

Albert Boatwright (“Boatwright”) sitting in the front passenger seat of the

car.   Officer Roller observed Boatwright “moving towards his left rear.”

Officer Roller just observed the movement of Boatwright’s body.                  When

Officer Roller opened the car door, he shined a light into the vehicle and saw

a gun on the left rear floor.         In addition to Boatwright, the vehicle was

occupied by the driver and another passenger. The firearm was registered

to an individual who was not in the vehicle. Boatwright was convicted in the

Court of Common Pleas of Allegheny County of carrying a firearm without a

license. Id. at 1058-1059.

       Boatwright appealed to this court which reversed:

                   Because the firearm was not found on
             appellant’s person, he could properly be convicted
             only if the Commonwealth proved joint constructive
             possession with the other occupants of the vehicle.
             To do this, the Commonwealth must present
             evidence to show that appellant had both the power
             to control the firearm and the intent to exercise that
             control. Mere presence at the scene where the gun
             was found is not sufficient. The only evidence other
             than mere presence was Officer Roller’s testimony
             that [Boatwright] made a movement toward the left
             rear of the vehicle. This evidence cannot provide


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            proof beyond a reasonable doubt that [Boatwright]
            possessed the firearm in question. Therefore, the
            conviction cannot be sustained.

Id. at 1059 (citations omitted).

      In evaluating whether the evidence presented was sufficient to

establish possession of the firearm, the evidence must be evaluated in the

light most favorable to the Commonwealth. Here, there is no question that

appellant was driving the vehicle that contained a firearm that belonged to

Burton. It is also undisputed that appellant was aware that the firearm was

in the vehicle.     However, a review of the evidence presented by the

Commonwealth reveals no evidence that indicates that appellant intended to

exercise control over the firearm.      He and Robinson were traveling in the

vehicle to get something to drink. As this court held in Boatwright, mere

presence is not enough to establish constructive possession.

      The Commonwealth argues that Burton’s testimony that appellant took

the firearm when they fell asleep at the apartment is sufficient evidence to

establish that appellant had an intent to exercise control over the firearm.

The Commonwealth further argues that it is irrelevant that the trial court,

while conducting a bench trial, explicitly did not credit Burton’s testimony.

      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



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

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

the   Commonwealth      is    asking    this     court    to   ignore    the    credibility

determination made by the trial court at time of trial, not in post-trial

motions, and reweigh the evidence in the form of Burton’s testimony. This

court may not do so.4

      Judgment of sentence reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/15/2017




4
  Because we have resolved that appellant did not possess the firearm, we
need not address whether appellant possessed or thought he possessed a
Florida license to carry a concealed weapon.


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