J-S05003-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 HENRY ELLIS BLAIR                        :
                                          :
                    Appellant             :    No. 639 MDA 2019

       Appeal from the Judgment of Sentence Entered March 6, 2019
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0005326-2017


BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                               FILED JUNE 10, 2020

     Appellant, Henry Ellis Blair, appeals from the judgment of sentence

entered in the Court of Common Pleas of Dauphin County. We affirm.

     The trial court set forth the factual history of this case as follows:

           The following facts were established at a jury trial that took
     place on March 5, 2019. (Notes of Testimony, Jury Trial, 3/5/19).6

           6   Hereinafter, “N.T.”

           The Commonwealth presented the testimony of Officer Chad
     McGowan. (N.T., 3). On August 20, 2017, Officer McGowan was
     working the Street Crimes Unit. (N.T., 4). Officer McGowan was
     on patrol with Adult Probation Officer Bruce Cutter and in an
     unmarked vehicle. (N.T., 4). Officer McGowan and Probation
     Officer Cutter were patrolling the midtown portion of the city, in
     the area of 4th and Harris Street. (N.T., 4). They eventually made
     their way over to the 300 block of Harris Street. (N.T., 4).
     Officer McGowan saw two males standing next to a white Cadillac
     sedan. (N.T., 4). Eventually, the car drove away from the 300
     block of Harris Street. (N.T., 5).
J-S05003-20


           Officer McGowan continued to monitor the vehicle as it
     drove away. (N.T., 5). Set up in a surveillance position,
     Officer McGowan observed the vehicle begin driving on Harris
     Street with the driver. (N.T., 5). The vehicle quickly parked at a
     convenience store at the intersection of 4th and Harris Street.
     (N.T., 5-6). The operator left the vehicle then returned to the
     vehicle before driving away. (N.T., 6).

             After the vehicle [drove] away, Officer McGowan left his
     parked position and began following the Cadillac sedan. (N.T., 6).
     Officer McGowan attempted to stop the vehicle with lights and
     sirens on for illegal window tint. (N.T., 6). The vehicle traveled a
     short distance, then eventually pulled over to the side of the road
     as if it was stopping for the traffic stop. (N.T., 6-7). At this point,
     the vehicle stopped momentarily then takes off at a high rate of
     speed. (N.T., 7). When the driver took off at a high rate of speed,
     Officer McGowan kept his lights and sirens on for a few moments,
     but because it was evident to him that the driver was not going to
     stop and comply, he discontinued the pursuit. (N.T., 7).

           The vehicle eventually came to a stop.             (N.T., 7).
     Officer McGowan saw the driver apply the brake lights and park
     the vehicle. (N.T., 7). Officer McGowan then quickly accelerate[d]
     to catch up to the vehicle. (N.T.,7-8). Appellant exited the vehicle
     from the driver’s side and began to run on foot to the west of
     North 4th Street. (N.T., 7-8). Officer McGowan followed on foot.
     (N.T., 8). Officer McGowan chased Appellant through a grass lot
     to the west of North 4th Street and advanced towards Kelker
     Street. (N.T., 8). Officer McGowan was able to get a good look
     at Appellant’s face and clothing. (N.T., 9).

           Officer McGowan then observed Appellant dive and lay out
     beside an Escalade. (N.T., 9). Once Appellant was on the ground,
     Officer McGowan was able to close the distance between them.
     (N.T., 11-12). As Appellant was laying flat on the ground,
     Officer McGowan saw him place an object underneath the vehicle.
     (N.T., 12).

           Appellant got up and continued to run as Officer McGowan
     followed. (N.T., 12). The pursuit led them to Logan Street. (N.T.,
     12).    Appellant turned down Granite Street.         (N.T., 12).
     Officer McGowan lost sight of Appellant. (N.T., 12). During this
     pursuit, Officer McGowan was radioing for other members of the
     street crimes unit to let them know what was going on. (N.T.,

                                      -2-
J-S05003-20


     13). After losing Appellant during the foot pursuit,
     Officer McGowan retraced the path of the pursuit to look for any
     evidence. (N.T., 14). Officer McGowan observed a knotted plastic
     baggie laying in the middle of Granite Street. (N.T., 14-15). The
     baggie was in excellent condition and had no signs or appearance
     of being weathered from prolonged exposure to the elements.
     (N.T., 17). Inside of the bag was an off-white chalky substance,
     which he knew to be consistent with crack cocaine. (N.T., 14).
     The baggie was sent to the Pennsylvania State Police Laboratory
     for testing. (N.T., 15).

           Officer McGowan went back to the Escalade. (N.T., 17-18).
     He looked under the car and found a Smith and Wesson
     bodyguard, which is a .380 caliber semiautomatic pistol. (N.T.,
     18). The pistol was determined to be loaded with one round
     inserted in the chamber and an additional 13 (thirteen) rounds
     were placed in the firearm’s high-capacity magazine which was
     placed in the firearm. (N.T., 21). The gun was submitted to the
     Pennsylvania State Police Bureau of Forensic Service. (N.T., 20).
     They conducted a functionality test to determine if the firearm was
     able to fire a projectile. (N.T., 21). It was determined that the
     firearm was functional. (N.T., 21). No fingerprints were found on
     the gun. (N.T., 55).

           When Officer McGowan returned to the vehicle,
     Officer Cutter was on scene near the vehicle. Both officers began
     a search of the vehicle and found several items laying in and
     outside of the vehicle. (N.T., 21-22). Outside of the vehicle, a
     black T-Mobile cellular phone was found lying just outside the
     driver’s door. (N.T., 22). Inside the vehicle, photographs and
     personal documents were found throughout the vehicle. (N.T.,
     23). One document was found in the trunk of the vehicle. (N.T.,
     27). Ten photographs were located in the center console storage
     area. (N.T., 27). Multiple photographs depicted Appellant posing.
     (N.T., 23-24). Officer McGowan was able to determine that the
     person in the photographs was the person he chased in a foot
     pursuit. (N.T., 24). Officer McGowan was able to obtain the name
     of Appellant through the person[al] documents found in the
     vehicle. (N.T., 25). These person[al] documents included a HACC
     student ID card, a document from Pennsylvania Department of
     Human Services addressed to Appellant with a Harrisburg
     address, a College Board Accuplacer, and a Riz Auto Service
     receipt. (N.T., 25-26).


                                    -3-
J-S05003-20


             Officer McGowan then found a phone number on many of
      the documents. (N.T., 27). Officer McGowan attempted to call
      the number listed on the bill. (N.T., 27). A male’s voice on the
      line told the caller to dial another number, 379-[***]. (N.T., 27).
      When Officer McGowan dialed the other number, it was
      determined that the number belonged to the phone recovered
      from the outside of the driver’s door of Appellant’s vehicle. (N.T.,
      27).

            One of the documents found in the vehicle contained
      Appellant’s date of birth. (N.T., 25). Officer McGowan used this
      through the driver'’s license center search that resulted in a
      driver’s license photograph. (N.T., 26). Officer McGowan was
      able to determine that Appellant was the man that ran from him
      in the foot pursuit. (N.T., 26). Officers McGowan and Cutter ran
      the Appellant’s name through PennDOT and JNET and confirmed
      that Appellant did not possess a valid permit for a concealed
      firearm and that Appellant did not have a license to drive a vehicle
      at the time due to a suspension. (N.T., 26).

            The Commonwealth presented the testimony of Sergeant
      Tyron Meik. (N.T., 59). Sergeant Meik is a supervisor of the street
      crimes unit and the K-9 unit. (N.T., 59). On August 16, 2017,
      Officer Meik was conducting a search warrant.         (N.T., 60).
      Officer Meik observed Appellant in the area at the time. (N.T.,
      60). He pointed Appellant out to Officer McGowan. (N.T., 60).
      Officer Meik was also working the night of August 20, 2017[,]
      when the foot pursuit took place. (N.T., 62). Back at the station
      that night, Officer McGowan showed Officer Meik a picture that
      Officer Meik recognized to be Appellant. (N.T., 62).

            The Commonwealth then presented the testimony of William
      Kimmick, a forensic investigator. (N.T., 65). Mr. Kimmick is
      trained in fingerprints comparison. (N.T., 66). Mr. Kimmick
      processed the weapon found by Officer McGowan. (N.T., 67). No
      useable fingerprints were developed from the firearm. (N.T., 68).

Trial Court Opinion, 4/23/20, at 2-6.

      The trial court summarized the procedural history of this matter as

follows:




                                     -4-
J-S05003-20


           Following a jury trial held on February 12, 2019, the jury
     was hung, and another trial was held on March 6, 2019. Appellant
     was found guilty of Possession of a Firearm Prohibited,1 Carrying
     a Firearm Without a License,2 Driving While Operating Privilege is
     Suspended or Revoked,3 and Fleeing.4        On March 6, 2019,
     Appellant was sentenced. Appellant filed a Post-Sentence Motion
     on April 3, 2019[,] requesting credit for the Appellant’s time
     served. This [c]ourt entered an Order granting Appellant’s Post-
     Sentence Motion on April 5, 2019.

           1   18   Pa.C.S.A.   §   6105(a)(1)
           2   18   Pa.C.S.A.   §   6106(a)(1)
           3   75   Pa.C.S.A.   §   1543(a)
           4   75   Pa.C.S.A.   §   3733(a)

            Following the granting of Appellant’s Post-Sentence Motion,
     Appellant filed a pro se Notice of Appeal on April 8, 2019. On
     April 18, 2019, Appellant’s trial counsel filed a Motion to Withdraw
     as Counsel. This [c]ourt granted the Motion on April 22, 2019. As
     such, this [c]ourt ordered Appellant on April 29, 2019, to file a
     concise statement of matters complained of on appeal pursuant
     to Pa.R.A.P. 1925(b). This [c]ourt was ordered by the Superior
     Court to determine the Appellant’s eligibility for court appointed
     counsel after Appellant filed a Motion for Appointment of Counsel
     on May 10, 2019. At that point in time, new counsel was
     appointed [for] Appellant.

            On May 16, 2019[,] we entered a 1925(b) Order and the
     Appellant filed a Concise Statement of Matters Complained of on
     Appeal in accordance with Pa.R.A.P. 1925(b).5 On May 20, 2019,
     we asked the Superior Court to extend the deadline to submit our
     Memorandum Opinion by thirty (30) days after a Concise
     Statement of Errors was submitted. On June 11, 2019, Appellant
     filed a request for an Extension to File Concise Statement of Errors
     Complained of on Appeal. On June 13, 2019, this [c]ourt granted
     said request. Appellant complied with the 1925(b) Order on
     June 18, 2019.

           5  Appellant’s Concise Statement was filed           by
           Attorney Jenni Chavis on behalf of the Appellant.

           This [c]ourt filed its Memorandum Opinion on July 16, 2019.
     In our Pa.R.A.P. 1925(a) opinion, we concluded that Appellant’s


                                          -5-
J-S05003-20


      claims could not be addressed due to the lack of trial transcripts
      in the certified record.

            In [a judgment] order filed by the Superior Court of
      Pennsylvania on March 13, 2020, this [c]ourt was directed to
      complete a supplemental Pa.R.A.P 1925(a) opinion addressing the
      issue challenging the sufficiency of the evidence presented in
      Appellant’s counseled brief.

Trial Court Opinion, 4/23/20, at 1-2.       The trial court complied with our

directive, and this matter is now ripe for disposition.

      Appellant presents the following issue for our review:

      1. Did the Commonwealth fail to present sufficient evidence to
      allow a jury to return a verdict of guilty on the charges of
      possession of firearm prohibited and carrying a firearm without a
      license?

Appellant’s Brief at 7.

      In his sole issue, Appellant presents a challenge to the sufficiency of the

evidence to support his convictions of person not to possess a firearm and

carrying a firearm without a license.     Appellant’s Brief at 13-17.     In the

argument section of his brief, Appellant argues the Commonwealth failed to

prove that he constructively possessed the gun because there was no evidence

that Appellant had dominion and control over the firearm.            Id. at 15.

Appellant contends that the Commonwealth failed to prove that Appellant was

the person who allegedly secreted a firearm under the vehicle. Id. at 15-17.

      Our standard of review is well established:

             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

                                      -6-
J-S05003-20


     crime beyond a reasonable doubt. In applying the above test, we
     may not weigh the evidence and substitute our judgment for the
     fact-finder[’s].   In addition, we note that the facts and
     circumstances established by the Commonwealth need not
     preclude every possibility of innocence. Any doubts regarding a
     defendant’s guilt may be resolved by the fact-finder unless the
     evidence is so weak and inconclusive that as a matter of law no
     probability of fact may be drawn from the combined
     circumstances. The Commonwealth may sustain its burden of
     proving every element of the crime beyond a reasonable doubt by
     means of wholly circumstantial evidence. Moreover, in applying
     the above test, the entire record must be evaluated and all
     evidence actually received must be considered. Finally, the finder
     of fact while passing upon the credibility of witnesses and the
     weight of the evidence produced, is free to believe all, part or none
     of the evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).

     Appellant was convicted of violating the following two provisions of

Pennsylvania’s Uniform Firearms Act:

     § 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).

     § 6106. Firearms not to be carried without a license.

     (a) Offense defined.

           (1) Except as [otherwise] provided … any person who
     carries a firearm in any vehicle or any person who carries a firearm

                                     -7-
J-S05003-20


        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.

18 Pa.C.S. § 6106(a)(1).

        Possession of a firearm is an essential element of Sections 6105 and

6106.     However, to establish the element of possession, this Court has

explained that “[p]ossession can be found by proving actual possession,

constructive possession, or joint constructive possession.” Commonwealth

v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018) (citation omitted), appeal

denied, 202 A.3d 42 (2019). We previously have determined:

        Where a defendant is not in actual possession of the prohibited
        items, the Commonwealth must establish that the defendant had
        constructive possession to support the conviction. Constructive
        possession is a legal fiction, a pragmatic construct to deal with the
        realities of criminal law enforcement.           We have defined
        constructive possession as conscious dominion, meaning that the
        defendant has 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.

               It is well established that, as with any other element of a
        crime, constructive possession may be proven by circumstantial
        evidence. In other words, the Commonwealth must establish
        facts from which the trier of fact can reasonably infer that the
        defendant exercised dominion and control over the contraband at
        issue.

Parrish, 191 A.3d at 36–37 (internal citations and quotations omitted).

        Thus, illegal possession of a firearm may be established by one’s

constructive possession thereof. Commonwealth v. McClellan, 178 A.3d

874, 879 (Pa. Super. 2018).        In addition, the power and intent to control


                                        -8-
J-S05003-20


contraband does not need to be exclusive to an appellant in order to find

constructive   possession.    Our      Supreme    Court   has   recognized   that

“constructive possession may be found in one or more actors where the item

in issue is in an area of joint control and equal access.” Commonwealth v.

Johnson, 26 A.3d 1078, 1094 (Pa. 2011) (citation omitted). Further, the

Commonwealth was permitted to establish Appellant’s constructive possession

via circumstantial evidence and the reasonable inferences that arise

therefrom. Parrish, 191 A.3d at 36–37.

      The trial court addressed the evidence that established Appellant’s

possession of the firearm as follows:

            In this case, the Commonwealth presented evidence that
      Appellant possessed a firearm through the testimony of
      Officer McGowan. (N.T., 9-12). Officer McGowan testified that he
      saw Appellant lay flat on the ground during the foot chase and
      place something underneath an Escalade before running off again.
      (N.T., 12). After losing sight of Appellant during the chase,
      Officer McGowan returned to the vehicle that he saw Appellant
      place something under and found a Smith and Wesson pistol.
      (N.T., 9-12). Officer McGowan was not able to see what Appellant
      placed under the vehicle at the time, however he was able to
      immediately return to the vehicle and find the gun. (N.T., 9-12;
      17-18). The Commonwealth presented sufficient evidence for a
      jury to believe beyond a reasonable doubt that Appellant
      possessed a firearm.

Trial Court Opinion, 4/23/20, at 8-9. We agree.

      Under the totality of the circumstances, the evidence presented at the

trial on March 5, 2010, viewed in the light most favorable to the

Commonwealth      as   the   verdict    winner,   established    that   Appellant

constructively possessed the firearm that was found on the ground under the

                                       -9-
J-S05003-20


Cadillac Escalade, where Appellant dropped to the ground as he interrupted

his flight from police. Officer McGowan specifically stated that during the

pursuit, he observed Appellant’s face and his clothing. N.T., 3/5/19, at 9. In

addition, Officer McGowan testified:

             So I’m giving chase. I’m chasing [Appellant] across a grass
      field and I see [him] leave his feet and literally dive hands first
      towards a parked [C]adillac Escalade on Kelker Street.

                                    * * *

            I’ve been a police officer for over seven years now. I’ve
      been involved in numerous foot pursuits. And I’ve never seen
      anything quite like this. I’ve never seen anyone in the midst of a
      foot pursuit leave their feet and dive like [Appellant] did.

Id. at 9-10.    The officer further explained that he observed Appellant

“reaching underneath the front passenger side tire of this Cadillac Escalade

with his arms.” Id. at 11. The officer stated, “After what I believed him to

be plac[ing] an object underneath the vehicle, he then got to his feet and

began running again.”         Id. at 12.        After abandoning the pursuit,

Officer McGowan    returned    to   the    vehicle   and   discovered   a   black

semiautomatic pistol under the front passenger side tire. Id. at 17-18. This

evidence proved that Appellant had the power to control the contraband and

the intent to exercise such control, thereby establishing his constructive

possession of the gun. Accordingly, Appellant’s claim that the Commonwealth

failed to present sufficient evidence to support these convictions lacks merit.

      Judgment of sentence affirmed.




                                       - 10 -
J-S05003-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/10/2020




                          - 11 -
