J-S48004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DION LEE MCBRIDE

                            Appellant                 No. 760 WDA 2014


             Appeal from the Judgment of Sentence March 4, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0008429-2013


BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

MEMORANDUM BY PANELLA, J.                        FILED NOVEMBER 06, 2015

        Appellant, Dion Lee McBride, appeals from the judgment of sentence

entered by the Allegheny County Court of Common Pleas, challenging the

sufficiency and weight of the evidence, as well as the trial court’s ruling that

the Commonwealth properly established the corpus delicti of the crime

charged. Upon consideration of McBride’s claims, we reverse.

        Following a jury trial, McBride was convicted of one count of persons

not to possess firearms.1         On March 4, 2014, the trial court sentenced

McBride to five to ten years of imprisonment.       McBride subsequently filed

post-sentence motions, which the trial court denied.        This timely appeal

followed.

____________________________________________


1
    18 Pa.C.S.A. § 6105(a)(1).
J-S48004-15



         McBride was charged with persons not to possess firearms after a

loaded firearm was found in a video game store that he owned. At the time

when law enforcement agents found the firearm in McBride’s store, McBride

was the subject of an ongoing tax fraud investigation conducted by agents

from the Pennsylvania Office of the Attorney General.           The investigation

involved the surveillance of the store location as well as McBride’s residence.

         On March 13, 2012, law enforcement agents conducted a search of

McBride’s residence pursuant to a search warrant.             While at McBride’s

residence, the agents told McBride that they also had a search warrant for

the store location and planned to search the store later that day.         Then,

after being read his Miranda2 rights, McBride made a statement to the

agents warning them that they would find a handgun in the rear of the

store.    McBride explained that the store is in an area where robberies are

prevalent, so he allowed his employees to keep the gun for protection.

McBride then voluntarily provided the agents with keys to the store.

McBride was not present during the agents’ search of the store. During the

search, the agents found a loaded handgun on a shelf in the rear of the store

in close proximity to a pile of mail.3         McBride is a person not to possess




____________________________________________


2
    Miranda v. Arizona, 384 U.S. 436 (1966).
3
    The mail found in the store was not addressed to McBride.



                                           -2-
J-S48004-15



under the Uniform Firearms Act.4           McBride was subsequently charged with

one count of persons not to possess firearms.

       Before trial,5 McBride filed a motion in limine seeking to suppress the

statements he made about the firearm pursuant to the corpus deliciti rule.

See Motion in Limine, filed 10/31/13, at ¶¶ 5-10. McBride argued that the

Commonwealth could not sufficiently establish corpus delicti for the firearm

charge independent of his statements; therefore, the statements should not

be admitted at trial. See id., at ¶¶ 9-10. The trial court denied McBride’s

motion. McBride renewed his objection regarding the lack of corpus delicti

at trial, but the objection was overruled. See N.T., Trial, 1/21/14, at 202-

204.    At trial, Agent Darren Fisher of the Pennsylvania Department of

Revenue and Agent Lee Yingling of the Pennsylvania Office of the Attorney

General testified concerning the statements McBride made to them regarding

the firearm.

       Ultimately, the jury convicted McBride on the basis that he had

constructive possession of the firearm.          On appeal, McBride raises three

issues for us to consider. First, McBride contends that there was insufficient

evidence to sustain a conviction based on constructive possession of the


____________________________________________


4
   The fact that McBride was a person not to possess was stipulated to at
trial. See N.T., Trial, 1/21/14, at 67.
5
 McBride was also facing various tax fraud charges; however, these charges
were bifurcated and the trial at issue only concerned the firearms charge.



                                           -3-
J-S48004-15



firearm. Next, McBride raises a weight of the evidence challenge. Finally,

McBride    avers   that   the   trial   court   erred   when   it   found   that   the

Commonwealth had established the corpus deliciti of the crime and admitted

the statements he made regarding the firearm into evidence.

      We will first address McBride’s challenge to the trial court’s ruling that

the Commonwealth properly established the corpus delicti of the crime

charged.    McBride claims that the Commonwealth failed to establish the

corpus delicti of persons not to possess firearms before his statements

regarding the firearm were admitted into evidence. Without the statements,

McBride asserts that there was no evidence linking him to the firearm, other

than the fact that it was found in his store.

      “Corpus delicti means the body of the crime or the fact that a crime

has been committed.” Commonwealth v. Meder, 611 A.2d 213, 215 (Pa.

Super. 1992) (citation omitted).          The corpus delicti rule embodies the

concept that the fact that a crime has been committed must be shown, by

independent evidence, before an out-of-court confession or admission will be

received. See Commonwealth v. Taylor, 831 A.2d 587, 590 (Pa. 2003).

“[O]nly inculpatory statements of an accused are subject to the protection of

the corpus delicti rule.” Commonwealth v. Verticelli, 706 A.2d 820, 824

(Pa. 1998), abrogated on other grounds, Commonwealth v. Taylor, 831

A.2d 587 (Pa. 2003). A statement is inculpatory if it “specifically connects

[the defendant] . . . to criminal activity.” Id., at 824.




                                         -4-
J-S48004-15



      “The corpus delicti rule is an evidentiary one. On a challenge to a trial

court’s evidentiary ruling, our standard of review is one of deference. The

admissibility of evidence is solely within the discretion of the trial court and

will be reversed only if the trial court has abused its discretion.”

Commonwealth v. Hernandez, 39 A.3d 406, 411 (Pa. Super. 2012)

(citation omitted).

      Under Pennsylvania law, the corpus delicti rule is applied in two

distinct phases. The first phase concerns the trial judge’s admission of the

defendant’s statements.    “In this first phase of the rule’s application, the

court must determine whether the Commonwealth has proven the corpus

delicti of the crimes charged by a mere preponderance of the evidence. If

the court is satisfied that, on the evidence presented, it is more likely than

not that a wrong has occurred through criminal agency, then the confession

and/or admissions of the defendant are admissible.”       Commonwealth v.

Ahlborn, 657 A.2d 518, 521 (Pa. Super. 1995).            This phase does not

require the Commonwealth to establish any connections between the

accused and the crime, but merely requires that the Commonwealth

establish the fact that someone has committed the crime charged.           See

Meder, 611 A.2d at 216.        The second phase concerns the fact finder’s

consideration of the statements admitted into evidence. “After the court has

made its initial determination that the Commonwealth has proved the corpus

delicti by a preponderance of the evidence and has ruled the confession to

be admissible, the corpus delicti rule additionally requires that the

                                     -5-
J-S48004-15



Commonwealth prove to the jury's satisfaction beyond a reasonable doubt,

the corpus delicti of the crimes charged.”      Ahlborn, at 521 (citations

omitted).

        In the instant case, McBride confessed that he purchased the firearm

from a man and stated to the agents, “You’re going to find a firearm in the

rear of the store in a closet. I want you guys to know that before you go

in.”    N.T., Trial, 1/21/14, at 204-205 and 273.     These statements are

inculpatory. They specifically connect McBride to criminal activity since he

was not permitted to possess a firearm.      Thus, the corpus delicti rule is

applicable. We now turn to McBride’s arguments as to the application of the

rule.

        Under the first phase of the corpus delicti rule, in order to admit

McBride’s statements, the Commonwealth had to prove, by a preponderance

of the evidence, that the crime of persons not to possess firearms was

committed by someone. In order to prove the corpus delicti of persons not

to possess firearms, the Commonwealth had to establish that someone

prohibited from possessing, using, manufacturing, controlling, selling, or

transferring a firearm under Section 6105, in fact, did so.     Because the

firearm was found in the rear of the store, and not on someone’s person, the

Commonwealth must show constructive possession.

        “Constructive possession is a legal fiction, which is invoked when

actual possession at the time of arrest cannot be shown, but there is a


                                     -6-
J-S48004-15


strong inference of possession from the facts surrounding the case.”

Commonwealth v. Battle, 883 A.2d 641, 644 (Pa. Super. 2005) (citations

omitted).       Constructive    possession     has    been    defined   as     “conscious

dominion,” which has subsequently been defined as “the power to control

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

Walker,     874   A.2d   667,    678    (Pa.   Super.     2005)    (citation    omitted).

“[C]onstructive possession may be established by the totality of the

circumstances.” Id. (citation omitted). “Additionally, it is possible for two

people to have joint constructive possession of an item of contraband.”

Commonwealth v. Hopkins, 67 A.3d 817, 820-821 (Pa. Super. 2013)

(citation omitted).

       Dominion and control are not established, however, by mere proximity

to the contraband, mere presence on the property where it is located, or

mere    association    with    others   who     control      the   contraband.       See

Commonwealth v. Naguski, 299 A.2d 39, 40-41 (Pa. Super. 1972). “It is

well settled that facts giving rise to mere ‘association,’ ‘suspicion’ or

‘conjecture,’   will   not make    out a       case   of constructive        possession.”

Commonwealth v. Valette, 613 A.2d 548, 551 (Pa. 1992) (citations

omitted).   “Pennsylvania courts have held that where another person has

equal access to the area where illegal contraband or weapon is found, the

defendant cannot be said to have either the power to control or the intent to

control such contraband or weapon per se.” Commonwealth v. Heidler,


                                         -7-
J-S48004-15


741 A.2d 213, 216 (Pa. Super. 1999) (en banc) (citing Commonwealth v.

Chenet, 373 A.2d 1107 (Pa. 1977) (finding no constructive possession

because the contraband was found in an area equally accessible to a third

party); Commonwealth v. Juliano, 490 A.2d 891 (Pa. Super. 1985)

(finding the evidence insufficient to conclude that appellant constructively

possessed contraband when three other people had equal access to the area

in which the contraband was found)).        See also Commonwealth v.

Armstead, 305 A.2d 1 (Pa. 1973) (finding that mere presence in an

automobile in which a weapon is found is not sufficient to prove possession

of that weapon where there were other passengers).

       Here, outside of McBride’s statements and the stipulated fact that

McBride was a person not to possess, the only evidence that the

Commonwealth presented during trial was that McBride owned the store

where the firearm was found, possessed keys to the store, and presumably

received mail there. See Trial Court Opinion, 10/22/14, at 10 and 13-15.

This evidence alone does not make it more likely than not that McBride

constructively possessed the firearm because the record makes clear that

employees worked at the store and that McBride was not the only person

with access to the store and the back area of the store where the firearm

was found. See N.T., Trial, 1/21/14, at 105, 108, 114-115, 116, 237-238,

324.




                                   -8-
J-S48004-15


      For instance, the landlord of the premises, Angelo Mancuso, testified

that he witnessed a “man with burns on his face” working at the store and

that two different cars were regularly parked in front of the store, including

McBride’s and one belonging to Phil Lyle. See id., at 108 and 116. Agent

Fisher also testified that he saw other people in and around the store. See

id., at 194-196.   Thus, because multiple people other than McBride had

access and control over the store and the area where the firearm was found,

it is not more likely than not that McBride possessed the firearm.

      Moreover, the evidence presented does not make it more likely than

not that someone else subject to the prohibitions of Section 6105

constructively possessed the firearm.   If all of the employees at the store

were persons subject to the prohibitions of Section 6105, it may be

reasonable to conclude that a firearm found in the store makes it more likely

than not that the crime of persons not to possess firearms was committed.

However, no evidence was presented showing that this was the case.

      Therefore, we conclude that the Commonwealth failed to meet its

burden under the first phase of the corpus delicti test to prove by a

preponderance of the evidence that the crime of persons not to possess




                                    -9-
J-S48004-15


firearms was committed. Consequently, we hold that the trial court abused

its discretion by admitting McBride’s statements into evidence.6

       McBride next challenges the sufficiency of the evidence. Because we

have already concluded that McBride’s statements were improperly admitted

and that the remaining circumstantial evidence was insufficient to conclude

that McBride constructively possessed the firearm at issue, we need not

conduct a further sufficiency of the evidence analysis.            After all, the

Commonwealth was unable to establish constructive possession by a

preponderance of the evidence; let alone by beyond a reasonable doubt.

       In summary, we find that the Commonwealth has failed to prove

McBride possessed the handgun. Accordingly, we reverse the judgment of

sentence.7

       Judgment of sentence reversed.          Defendant discharged.   Jurisdiction

relinquished.




____________________________________________


6
  The closely related crime exception to the corpus delicti rule is inapplicable
in this case because McBride’s unlawful possession of a firearm charge is not
sufficiently closely related to his tax fraud charges. See Verticelli, 706
A.2d at 447-448.
7
 Our disposition renders McBride’s challenge to the weight of the evidence
moot.



                                          - 10 -
J-S48004-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2015




                          - 11 -
