J-S13013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHAEL HAMILTON

                            Appellant                  No. 560 WDA 2015


             Appeal from the Judgment of Sentence March 3, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0014737-2013


BEFORE: LAZARUS, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED FEBRUARY 23, 2016

        Michael Hamilton appeals from the judgment of sentence, entered in

the Court of Common Pleas of Allegheny County, following his conviction for

possession of a firearm by a person prohibited.1       After careful review, we

affirm.2

        At trial, the Commonwealth presented evidence that Hamilton and

Daniel Nelson were involved in selling heroin. Hamilton and Nelson shared



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6105(a)(1).
2
  Hamilton was also convicted of several offenses related to the possession
and distribution of drugs. He does not appeal from the judgments of
sentence imposed for those convictions.
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an apartment in a four-unit building located at 620 North Sheridan Avenue in

Pittsburgh.

      On July 25, 2013, Detective Shiela Ladner purchased heroin from

Nelson. On August 22, 2013, Detective Ladner arranged to meet Nelson at

the same location to purchase thirty stamp bags of heroin for $240.00. As

part of this operation, Detective Daniel Zeltner was conducting surveillance

outside 620 North Sheridan Avenue when he observed Nelson leave the

building. Shortly thereafter, he received notification that Nelson had been

arrested for selling heroin to the detective. As the trial court noted:

      Soon thereafter, [Hamilton] left the apartment building and
      began walking toward the area where Detective Ladner was
      located. As soon as he left the front entrance of the building,
      the [Hamilton] stopped and turned back. He reached back
      toward the threshold of the common doorway and reached down
      to his right. [Hamilton] then stood up and walked outside onto
      the street.

      At that point, [Hamilton] began walking down the street. Police
      officers pulled up beside him in unmarked vehicles. As Officer
      Derbish exited his police vehicle in full uniform, [Hamilton]
      began to flee the area. Officer Derbish yelled, “Stop, police!”
      and, “You’re under arrest.”

                                      ...

      A Glock .40 caliber pistol was recovered in a common hallway
      just to the right of the common entranceway of the apartment
      building.   It was the precise area where [Hamilton] was
      observed leaning and reaching toward as he exited the
      apartment building. It was wrapped in a large pair of shorts.

                                      ...

      After [Hamilton] was arrested, Officer Zeltner did a search on
      Facebook and located [Hamilton’s] profile.      Officer Zeltner
      located a photograph of [Hamilton] in which [he] is holding a


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      Glock firearm. From this [c]ourt’s perspective, the firearm in the
      Facebook photograph is very similar, if not identical, to the
      firearm seized in this case.

Trial Court Opinion, 5/14/15, at 3-5.

      On September 28, 2014, at the conclusion of a nonjury trial, the court

convicted Hamilton of several offenses.      On March 3, 2015, the court

sentenced Hamilton to three to six years of incarceration for firearms

possession plus five years’ probation for possession with intent to deliver.

Hamilton then filed this timely appeal in which he challenges the sufficiency

of the evidence to support a conviction for persons not to possess a firearm.

      Our standard of review in assessing a challenge to the sufficiency of

the evidence is well-settled.    “The standard we apply in 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.” Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.

Super. 2013).    “Any doubts concerning an appellant’s guilt [are] to be

resolved by the trier of fact unless the evidence was so weak and

inconclusive that no probability of fact could be drawn therefrom.”

Commonwealth v. West, 937 A.2d 516, 523 (Pa. Super. 2007).             “[T]he

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.”    Commonwealth v. Perez, 931 A.2d 703, 707 (Pa. Super.

2007).


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      Possession of a firearm by a prohibited person is defined, in relevant

part, as follows:

      § 6105. Persons not to possess, use, manufacture,
      control, sell, or transfer firearms

      (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. § 6105(a)(1).

      Hamilton had been previously convicted of robbery, an enumerated

offense under section 6105(b). Hamilton does not contest this. However,

Hamilton argues that the evidence was insufficient to prove constructive

possession. We disagree.

      Because there was no evidence that the Hamilton was in actual

possession of the firearm at the time it was recovered, the Commonwealth

must rely on constructive possession. Commonwealth v. Sanes, 955 A.2d

369, 373 (Pa. Super. 2008).        Constructive possession is “the ability to

exercise a conscious dominion over the illegal substance, the power to

control   the   contraband   and   the   intent   to   exercise   that   control.”

Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa. 1983). Possession

can be proved by circumstantial evidence.         Commonwealth v. Bentley,

419 A.2d 85, 87 (Pa. Super. 1980). Constructive possession is proven when



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contraband is discovered in an area of joint control and joint access, given

“the totality of the circumstances.” Commonwealth v. Mudrick, 507 A.2d

1212, 1214 (Pa. 1986).

      In Mudrick, police arrived at the home of Sandra Dietz to serve a New

Jersey warrant upon her. The defendant answered the door and told police

he lived there. Police, upon entering the home, saw marijuana on the coffee

table in the living room. After obtaining a search warrant for the rest of the

home, they found cocaine in the only bedroom in the house. The defendant

was found guilty of possession, but this Court reversed.       Our Supreme

Court, in reversing this Court, stated that “[g]iven the totality of the

circumstances, joint control, equal access, and evidence that the cocaine

was found in plain view, the jury could have found constructive possession.”

Id.

      As in Mudrick, Hamilton’s weapon was found in an area of joint

control and equal access. Moreover, the evidence showed that police saw

Hamilton exit his apartment building, turn back through the doorway of the

common entrance, and reach down to his right. This was the exact location

where the weapon was found.         Furthermore, Hamilton’s Facebook photo

showed a weapon, “which exactly matched the firearm recovered in the

incident.” N.T. Trial, 9/28/14, at 10. Accordingly, the evidence is sufficient

to show the ability to exercise conscious dominion over the weapon, the

power to control it and the intent to exercise that control.




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      Hamilton relies on Commonwealth v. Burkley, 443 A.2d 1182 (Pa.

Super. 1982,) to support his position that constructive possession was not

established in this case. We find that case inapposite. In Burkley, the trial

court determined that a prisoner constructively possessed a sharpened

screwdriver that was found in his cell.       On appeal, this Court reversed

because all sixty-four cells within the cellblock were left open during the day,

and inmates were free to leave their cells unattended.         “The mere fact of

appellant’s residency in the cell is insufficient to raise the inference that he

exercised the requisite intent to control the screwdriver when guards and

other inmates had and exercised access to the cell.” Id. at 1184. Here, in

contrast, police were monitoring Hamilton’s actions and saw him reach into

the common hallway where soon thereafter they found a gun wrapped in a

large pair of undershorts.   While Detective Zeltner had the building under

surveillance, the only people he saw enter and exit were Nelson and

Hamilton.   N.T. Trial, 9/28/14, at 50.     Accordingly, Hamilton’s reliance on

Burkley is misplaced.

      Because the Commonwealth presented sufficient evidence to establish

constructive possession, Hamilton is not entitled to relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/2016




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