J-S54037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        :        IN THE SUPERIOR COURT OF
                                                    :              PENNSYLVANIA
               v.                                   :
                                                    :
WILLIAM JAYUOW CLARK,                               :
                                                    :
                      Appellant                     :               No. 137 WDA 2016

                Appeal from the Judgment of Sentence July 30, 2015
              in the Court of Common Pleas of Westmoreland County,
                 Criminal Division, No.(s): CP-65-CR-0004407-2014

BEFORE: BENDER, P.J.E., OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                                         FILED JULY 08, 2016

        William Jayuow Clark (“Clark”) appeals from the judgment of sentence

imposed       following   his   conviction     of       Persons    Not    to   Possess,   Use,

Manufacture, Control, Sell or Transfer a Firearm (“Persons Not to Possess a

Firearm”).1 We affirm.

        On June 17, 2013, Officer Dan Zilli (“Officer Zilli”) of the Mount

Pleasant Borough Police Department responded to a 911 call and found a

blue    bag    amongst     some    weeds       containing,        among    other   things,   a

disassembled handgun, a magazine holding one live round, a knife, and a

time    sheet       and   sweatshirt    from    Minniefield        Construction     Company

(“Minniefield Construction”).          According to Officer Zilli, the disassembled

handgun was not operable in its current state, and the upper receiver was

not in the bag.



1
    18 Pa.C.S.A. § 6105.
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        After contacting Minniefield Construction, Officer Zilli discovered that

Clark was the owner of the bag.          Clark came to the police station and

admitted to owning the bag and all of the contents except the gun. Clark

stated that he was cleaning the gun for his niece’s boyfriend, and that he

forgot that the gun was in the bag. Officer Zilli also discovered that Clark

had previously been adjudicated delinquent for the crime of minor not to

possess a firearm. Officer Zilli subsequently charged Clark with one count

each of Persons Not to Possess a Firearm and Carrying a Firearm Without a

License.2

        After a non-jury trial, Clark was found guilty of Persons Not to Possess

a Firearm. Thereafter, the trial court sentenced Clark to two to five years in

prison.       Clark filed a timely Post-Sentence Motion, which the trial court

denied. Clark filed a timely Notice of Appeal.

        Clark raises the following questions for our review:

        I.       Whether the trial court erred by denying [Clark’s]
                 Post[-]Sentence Motion for judgment of acquittal, for the
                 reason that the non-jury guilty verdict for the offense of
                 Persons Not to Possess a Firearm was contrary to the
                 sufficiency of the evidence?

        II.      Whether the trial court erred by denying [Clark’s] Post-
                 Sentence Motion for new trial, for the reason that the
                 non-jury guilty verdict for the offense of Persons Not to
                 Posses [sic] a Firearm was contrary to the weight of the
                 evidence?

Brief for Appellant at 6.


2
    18 Pa.C.S.A. § 6106(a)(1).


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      In his first claim, Clark alleges that the evidence was insufficient to

prove he was in possession of a firearm. See Brief for Appellant at 9-12.

Clark claims that he did not possess the firearm, as the Commonwealth

failed to prove the requisite criminal intent beyond a reasonable doubt. Id.

at 11-12. Clark argues that his statements that the firearm did not belong

to him, and that he had only been cleaning the firearm, demonstrated a lack

of possession. Id.

      The standard of review for a sufficiency of the evidence claim is as

follows:

      When reviewing a sufficiency of the evidence claim, an appellate
      court, viewing all of the evidence and reasonable inferences in
      the light most favorable to the Commonwealth as the verdict
      winner, must determine whether the evidence was sufficient to
      enable the fact-finder to find that all elements of the offense
      were established beyond a reasonable doubt.

Commonwealth v. Hawkins, 701 A.2d 492, 499 (Pa. 1997). “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.” Commonwealth

v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014).

      Under 18 Pa.C.S.A. § 6105,

      [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.



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18 Pa.C.S.A. § 6105(a)(1).

      Possession of a firearm is an essential element of Section 6105.

Antidormi, 84 A.3d at 757.      “Possession can be found by proving actual

possession,   constructive   possession   or   joint   constructive   possession.”

Commonwealth v. Heidler, 741 A.2d 213, 215 (Pa. Super. 1999).

Because the bag, and its contents, were not found on Clark’s person,

constructive possession must be demonstrated.

      In order to prove that a defendant had constructive possession
      of a prohibited item, the Commonwealth must establish that the
      defendant had both the ability to consciously exercise control
      over it as well as the intent to exercise such control. An intent
      to maintain a conscious dominion may be inferred from the
      totality of the circumstances, and circumstantial evidence may
      be used to establish a defendant’s possession of [prohibited
      items].

Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa. Super. 2013) (citation

and internal quotations omitted).

      In the instant case, Officer Zilli testified that he responded to a call

about a blue JanSport bag lying in some weeds, found the described bag,

and took it to the police station. N.T., 5/6/15, at 14-15. Officer Zilli stated

that within the bag, he found “a large knife, a disassembled handgun, bolt

cutters, a magazine with one live round and there was also an empty casing,

there was a time sheet from Minniefield Construction Company and also a

sweatshirt that said Minnifield [sic] Construction and Demolition.” Id. at 15.

Odell Minniefield (“Odell”), one of the owners of Minniefield Construction,

testified that he took Clark to work two days prior to the discovery of the


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bag, and that Clark brought the bag with him that day. Id. at 31-32, 34.

Odell stated that Clark carried the bag every day, but could not find it when

they were leaving work.      Id.   Officer Zilli testified that Clark admitted to

owning the bag and all of its contents except the gun. Id. at 22. According

to Officer Zilli, Clark stated that he was cleaning the gun for his niece’s

boyfriend and had placed the gun in the bag. Id. at 22, 28. Officer Zilli also

testified that Clark admitted to carrying the bag with him to work, and Clark

believed the bag was stolen at some point, leading to it being found in the

weeds. Id. at 22-23.

        Here, the trial court did not credit Clark’s statement that the firearm

did not belong to him. See Trial Court Opinion, 12/22/15, at 5. Because

Clark admitted to owning the bag, placing the gun in the bag, and carrying

the bag with him while it contained the gun, we conclude that the evidence

was sufficient to establish that Clark had constructive possession of the

gun.3

        Next, Clark alleges that the Commonwealth did not prove beyond a

reasonable doubt that the disassembled gun qualified as a firearm. Brief for


3
  Clark was subject to the penalties of this statute because of his prior
delinquent adjudication for a minor in possession of a firearm. N.T., 5/6/15,
at 23-25. Section 6105 states that a person is subject to the statute if he
“was adjudicated delinquent by a court pursuant to 42 Pa.C.S.[A.] § 6341 or
under any equivalent Federal statute or statute of any other state as a result
of conduct which if committed by an adult would constitute an offense
enumerated in subsection (b).” 18 Pa.C.S.A. § 6105(c)(8). In subsection
(b), one enumerated offense is Section 6110.1, “Possession of firearm by
minor.” Id. § 6105(b). Thus, the statute was properly applied.


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Appellant at 10-11. Clark claims that under 18 Pa.C.S.A. § 6102, the item

recovered from the bag would not be considered a firearm.              Brief for

Appellant at 10. Clark also argues that the firearm was not operable, and

thus he could not violate Section 6105. Id. at 11.

      Section 6105 provides, “the term ‘firearm’ shall include any weapons

which are designed to or may readily be converted to expel any projectile by

the action of an explosive or the frame or receiver of any such weapon.” 18

Pa.C.S.A. § 6105(i).

      The statutory language is clear, and it does not require proof
      that the weapon was capable of expelling a projectile when it
      was seized; on the contrary, the fact that a person can be
      prosecuted simply for possessing a semiautomatic pistol frame
      refutes this notion because the frame requires additional parts,
      e.g., a slide and barrel, in order to fire a bullet. Thus, the use of
      the terms “frame” and “receiver” in section 6105(i)
      demonstrates that the legislature sought to eliminate the
      operability requirement … for purposes of [section 6105].

Commonwealth v. Thomas, 988 A.2d 669, 672 (Pa. Super. 2009)

(footnote omitted); see also Commonwealth v. Gainer, 7 A.3d 291, 298

n.4 (Pa. Super. 2010) (stating that “[s]ection 6105 includes a revised

definition of ‘firearm’ under which operability is not an element”).

      Officer Zilli stated that the gun was disassembled, the upper receiver

was not in the bag, and the weapon would be inoperable without that piece.

N.T., 5/6/15, at 17-18. However, Officer Zilli also stated that it would be

relatively easy to make the gun operable since the majority of the gun was

in the bag, including a magazine with a live round and the spring that would



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go on the upper receiver.     Id.    Since the applicable definition refers to

something that “may readily be converted to expel any projectile by the

action of an explosive or the frame or receiver of any such weapon,” 18

Pa.C.S.A. § 6105(i), the contents of the bag qualify as a firearm for the

purposes of this crime.      Further, Clark’s claim that the weapon was

inoperable at the time is irrelevant as operability is not a necessary element

of Section 6105. See Thomas, 988 A.2d at 672.

      Viewing these facts in the light most favorable to the Commonwealth,

the evidence was sufficient to support Clark’s conviction.

      In his second claim, Clark asserts that his conviction of Persons Not to

Possess a Firearm was against the weight of the evidence.             Brief for

Appellant at 12.   Clark argues that the evidence did not establish that he

possessed the gun or that the gun was operable. Id.

      The standard of review for challenges to the weight of the evidence is

as follows:

      A claim alleging the verdict was against the weight of the
      evidence is addressed to the discretion of the trial court.
      Accordingly, an appellate court reviews the exercise of the trial
      court’s discretion; it does not answer for itself whether the
      verdict was against the weight of the evidence.               It is
      well[-]settled that the fact-finder is free to believe all, part, or
      none of the evidence and to determine the credibility of the
      witnesses, and a new trial based on a weight of the evidence
      claim is only warranted where the fact-finder’s verdict is so
      contrary to the evidence that it shocks one’s sense of justice. In
      determining whether this standard has been met, appellate
      review is limited to whether the trial judge’s discretion was
      properly exercised, and relief will only be granted where the



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      facts and inferences of record disclose a palpable abuse of
      discretion.

Commonwealth v. Karns, 50 A.3d 158, 165 (Pa. Super. 2012) (citation

and brackets omitted).

      Considering Clark’s arguments and the evidence of the case, it is

apparent that the trial court judge found the testimony of Officer Zilli and

other witnesses credible, and the evidence supports the verdict. Therefore,

we conclude that the trial court did not abuse its discretion in denying

Clark’s weight of the evidence claim.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/8/2016




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