J-A06036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
DANEEN SANDS                            :
                                        :
                  Appellant             :   No. 1902 EDA 2015

           Appeal from the Judgment of Sentence May 28, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0010798-2014


BEFORE:    PANELLA, J., SHOGAN, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                            FILED JULY 11, 2017

     Appellant, Daneen Sands, appeals from the judgment of sentence of

time served to twenty-three months incarceration followed by three years of

probation, imposed May 28, 2015, following a bench trial resulting in her

conviction for violating 18 Pa.C.S.A. § 6105(a), persons not to possess, use,

manufacture, control, sell or transfer firearms.   Appellant contends there

was insufficient evidence to sustain her conviction.       We reverse the

judgment of sentence and discharge Appellant.

     The trial court summarized the facts of the case as follows:

     On March 16, 2014, Philadelphia Police Officer Lance Cannon was
     on routine patrol when he received a radio call directing him to
     go to 2555 Bonnafon Street in Philadelphia to investigate a
     report of a stolen gun. Upon arrival, the officer spoke to Mr.
     Frank Johns who said two of his guns were missing from his
     home after which Mr. Johns showed the officer where he kept
     them-a secret compartment built into the ceiling of a closet that
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      was operated with a hidden switch. Officer Cannon filled out a
      report and turned it over to the assigned detective.

      Mr. Johns testified that Appellant, someone he knew for some
      time, moved into his residence in March of 2013. Appellant
      moved out of the residence shortly after January 11, 2014, the
      day upon which Mr. Johns’ brother moved into the residence.
      On the day Appellant moved out, Mr. Johns and his brother
      returned from a shopping trip and observed that Appellant and
      all of her belongings were gone.

      In the closet, Mr. Johns showed Officer Cannon where he kept a
      .38 caliber Smith and Wesson hand gun and a .38 caliber Rossie
      handgun in their original boxes. It was Mr. Johns’ opinion that
      Appellant likely saw him going in and out of the closet where he
      kept the two handguns.

      On March 16, 2014, after receiving certain information, Mr.
      Johns went to the closet and discovered that the two handguns
      were missing from their boxes. Although he periodically checked
      the closet to see if the gun boxes were still in the closet, he
      usually did not lift the boxes to ascertain whether the guns were
      still inside them and could not recall when he actually last saw
      the guns.

      Mr. Johns did not tell either Appellant or his brother about the
      compartment or the guns but believed that Appellant likely saw
      him going in and out of the closet where he kept the two
      handguns.

      Special Agent Mark Schmidheiser of the Pennsylvania Attorney
      General’s Office became involved in the matter after receiving a
      report from the Philadelphia Police Department concerning the
      missing firearms. Based on the information he received, he
      obtained an arrest warrant for Appellant, which was executed on
      August 6, 2014.       Following Appellant’s arrest, the agent
      interviewed Appellant who while denying that she took Mr.
      Johns’ guns, admitted that she was aware of the secret
      compartment in the closet, and had been for some time, because
      Mr. Johns showed it to her and also told her how it worked, that
      Appellant kept guns inside the compartment, and that she knew
      they were missing approximately three weeks before she moved
      out of the residence.

Trial Court Opinion, 6/23/16, at 2-3 (citations omitted).

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       Based on this evidence, Appellant, who had a prior felony conviction,

was convicted of persons not to possess fire arms and was sentenced as

outlined above.1        Appellant timely appealed and filed a court-ordered

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

The trial court issued a responsive opinion.

       On appeal, Appellant raises the following issue for review:

       Was not Daneen Sands erroneously convicted of 18 Pa.C.S.
       §6105 where she did not constructively possess the firearms at
       issue and the trial court stated that its verdict of guilt was based
       on the fact that she merely resided in the home of a person who
       she knew lawfully owned the firearms?

Appellant’s Brief at 3.

       Appellant asserts that the trial court wrongly convicted her of 18

Pa.C.S. § 6105, thus challenging the sufficiency of the evidence. Appellant’s

Brief at 7.    The standard of review for a challenge to the sufficiency of

evidence is de novo, as it presents a question of law. Commonwealth v.

Ratsamy, 934 A.2d 1233, 1235 (Pa. 2007).

       The critical inquiry on review of the sufficiency of the evidence to
       support a criminal conviction…does not require a court to ask
       itself whether it believes that the evidence at the trial
       established guilt beyond a reasonable doubt. Instead, it must
       determine simply whether the evidence believed by the fact-
       finder was sufficient to support the verdict.
____________________________________________


1
   Appellant was acquitted of two counts each of theft by unlawful taking,
receiving stolen property, firearms not to be carried without license, carrying
firearms on public streets or public property in Philadelphia. 18 Pa.C.S. §§
3921, 3925, 6106, 6108, respectively.



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J-A06036-17



Id. at 1235-36 (emphasis added). “When reviewing the sufficiency of the

evidence, an appellate court must determine whether the evidence, and all

reasonable inferences deducible from that, viewed in the light most

favorable to the Commonwealth as verdict winner, are sufficient to establish

all of the elements of the offense beyond a reasonable doubt.” Id. at 1237

(citation omitted).

      In order to obtain a conviction under 18 Pa.C.S. § 6105, the

Commonwealth must prove beyond a reasonable doubt that the defendant

possessed a firearm and that he was convicted of an enumerated offense

that prohibits her from possessing, using, controlling, or transferring a

firearm.   It is undisputed that Appellant is unauthorized to possess a

firearm. Rather, the issue in the instant case is whether Appellant violates

Section 6105 when residing in a home with an individual who lawfully

possesses a firearm.

      Here, the victim’s testimony was found so unreliable by the trial court

that it determined the evidence was insufficient to establish theft charges

against Appellant or actual possession of the firearms. Notes of Testimony,

2/13/15 at 100; Notes of Testimony, 5/28/15 at 15. According to the court,

the victim’s testimony was “all over the place about whether or not those

guns where there after she left”.     Notes of Testimony, 2/13/15 at 97.

Nevertheless, the court found that Appellant knew the victim’s firearms were

hidden in a secret compartment and that she was the only other person

aware of their existence. The court concluded that based on these facts, as

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J-A06036-17



well as her residing at the victim’s home, the evidence was sufficient to

establish that Appellant constructively possessed the firearms.

       Illegal possession of a firearm may be established by constructive

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

2005).   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).      The

Pennsylvania    Supreme      Court   has defined      constructive    possession    as

conscious dominion, meaning the defendant had the power to control the

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

Davis, 280 A.2d 119, 121 (1971).

       According to Appellant, merely residing in a home where a firearm is

present is insufficient to establish a violation of 18 Pa.C.S. § 6105.

Appellant asserts that “the critical factor in establishing constructive

possession, particularly the intent to exercise control, is the defendant’s

connection to the specific room or area where the evidence was kept.”

Appellant’s   Brief   at   11.   We    agree.      Apart   from      knowledge,    the

Commonwealth presented no evidence of Appellant’s connection to the room

where the firearms were stored. The mere facts that Appellant resided in a

home in which guns were lawfully stowed and that she knew of their location

are insufficient to establish the intent to exercise control over them.            See

Commonwealth v. Harlow, 408 A.2d 479, 481 (Pa. Super. 1979) (“[S]ince

others occupied the house, the mere fact that he was the lessee or that he

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J-A06036-17



knew of the existence of the gun would be insufficient to convict.”),

Commonwealth v. Wisor, 353 A.2d 817 (1976) (“[T]he fact of possession

loses all persuasiveness if persons other than the accused had equal access

with him to the place in which the property was discovered.”) (quoting

Commonwealth v. Davis, 280 A.2d 119, 121 (Pa. 1971)).

     Accordingly, the evidence was insufficient to support a conviction

under Section 6105.

     Judgement of sentence reversed. Appellant discharged.

     Judge Panella joins the memorandum.

     Judge Shogan files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2017




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