J-S16006-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MATTHEW DILLION                            :
                                               :
                       Appellant               :   No. 1357 EDA 2019

          Appeal from the Judgment of Sentence Entered May 2, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0006855-2018


BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                                 FILED APRIL 21, 2020

       Appellant, Matthew Dillon, appeals from the May 2, 2019 Judgment of

Sentence entered in the Philadelphia County Court of Common Pleas following

his conviction after a bench trial of Possessing a Firearm Prohibited, Carrying

a Firearm Without a License, Carrying a Loaded Weapon, Carrying a Firearm

on a Public Street, and Knowing and Intentional Possession of a Controlled

Substance.1 After careful review, we affirm.

       The charges in this case stem from the police search of a parked vehicle

in which Appellant was sitting in the driver’s seat. The facts most relevant to

this appeal, as gleaned from the Notes of Testimony, are as follows.        On

January 9, 2018, Philadelphia Police Officers Connor Dooley and John Teetz

were in their patrol vehicle when they observed a white Nissan parallel-parked
____________________________________________


118 Pa.C.S. §§ 6105, 6106, 6106.1, and 6108, and 35 P.S. § 780-113(a)(16),
respectively.
J-S16006-20



legally on the side of the road with its engine running. As they approached

the Nissan, still in their patrol vehicle, the officers observed the windows roll

up quickly and noticed the engine shut off.             The Nissan’s heavily-tinted

windows obscured the officers’ view into the car and they initially could not

tell if there were any passengers inside.

       The officers stopped their vehicle parallel to the parked Nissan. From

this vantage point, Officer Dooley observed two men sitting in the front of the

Nissan: Appellant in the driver’s seat, David Lerma (“Lerma”) in the front

passenger seat, and Mr. Daut in the back seat.2           Officer Teetz directed the

car’s passengers to roll down the windows. The men inside the car complied,

and the officers immediately smelled a strong odor of fresh marijuana.3

       Upon detecting the odor of marijuana, Officer Teetz put their police

vehicle into park. Officer Dooley began to exit the police vehicle, whereupon

Appellant exited the Nissan and fled.4           Officer Dooley unsuccessfully gave

chase. He returned to the police vehicle where he saw that Officer Teetz had

drawn his gun and was pointing it at Lerma and Mr. Daut. The officers

instructed the men to exit the Nissan and placed them in handcuffs. A frisk

____________________________________________


2 The Notes of Testimony do not provide Mr. Daut’s first name, and the
stenographer noted in the transcript her uncertainty about the spelling of Mr.
Daut’s name.

3 This is in contrast to the odor of burnt, or smoked, marijuana, which the
officers did not smell emanating from the vehicle.

4 Officer Dooley described the man who fled from the driver’s side of the
Nissan as a white male with a red beard.

                                           -2-
J-S16006-20



of Lerma resulted in the discovery and seizure of thirteen clear packets filled

with marijuana from his right sweatshirt pocket.

      Officer Dooley then conducted a search of the Nissan.         During the

search, he observed in plain view under the driver’s seat the butt of a

handgun. The handgun was operable, had a bullet in the chamber, and had

six live rounds in the magazine.    Officer Dooley also found a bundle of 25

plastic containers containing crack cocaine in a pocket on the passenger door,

and, in the glove compartment, 12 clear plastic containers with a green leafy

substance consistent with what he found on Lerma’s person. In the center

console, he found 2 medium-sized clear plastic bags and 17 clear containers

also filled with the same green leafy substance.        In between the front

passenger seat and the center console, Officer Dooley discovered a .22 caliber

handgun. In the back seat, he found numerous empty containers and a scale.

      Officer Dooley did not see Appellant operate the vehicle or make any

moves inside the vehicle before Appellant fled.       He likewise did not see

Appellant with anything in his hands or jettison anything from his person as

he ran away. He did see Mr. Daut make furtive movements in the back seat.

Officer Dooley’s investigation revealed that Appellant was not the owner of

the white Nissan.

      The next day, Officer Dooley participated in a photographic identification

session. He identified a photograph depicting Appellant, and he later testified

that he was seventy percent sure that the person in the photograph is the

person who fled from the Nissan. Officer Dooley noted that Appellant’s red

                                     -3-
J-S16006-20



beard specifically stood out to him. Officer Teetz also identified Appellant as

the person he spoke with, and who ran from the car.

       Police arrested Appellant, and the Commonwealth charged him with

Possessing a Firearm Prohibited, Carrying a Firearm Without a License,

Carrying a Loaded Weapon, Carrying a Firearm on a Public Street, Knowing

and Intentional Possession of a Controlled Substance, and Possessing a

Controlled Substance With Intent to Deliver.

       Appellant proceeded to a bench trial on February 11, 2019.             At

Appellant’s trial, the Commonwealth presented the testimony of Officers

Dooley and Teetz. At the close of the Commonwealth’s case, Appellant moved

for a Judgment of Acquittal, which the trial court granted in part and denied

in part.5   Appellant did not testify or offer any evidence on his own behalf. 6

Following the trial, the court convicted Appellant of the above charges.

       On May 2, 2019, the court sentenced Appellant to a term of two to five

years’ incarceration on his Possessing a Firearm Prohibited conviction,

followed by five years’ probation. The court also sentenced Appellant to two




____________________________________________


5 The court granted Appellant’s Motion for Judgment of Acquittal on charges
of Possessing a Controlled Substance With Intent to Deliver and Criminal
Conspiracy.

6Appellant and the Commonwealth stipulated that, for purposes of 18 Pa.C.S
§ 6105, Appellant is ineligible to possess a firearm based on a prior conviction.



                                           -4-
J-S16006-20



concurrent terms of five years’ probation on Appellant’s Carrying a Firearm

Without a License and Carrying a Firearm on a Public Street convictions.7

        This timely appeal followed.8 Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

        Appellant raises the following two issues on appeal:

        [1.] Whether the [t]rial [c]ourt erred by denying the Motion for
        Acquittal as to all charges?

        [2.] Whether the [t]rial [c]ourt erred by finding [Appellant] guilty
        of some of the charges?

Appellant’s Brief at xii.

        In his first issue, Appellant purports to challenge the trial courts’ denial

of his Motion for Judgment of Acquittal as to “all charges.” Before we reach

the merits of this claim, we must consider whether Appellant has preserved

it.

        Although Appellant asserts in his Brief that the Commonwealth’s

evidence was insufficient “to establish all of the elements for each offense[,]”

he has developed his sufficiency claim only as it pertains to his convictions of

Possession of Firearm Prohibited and Possession of a Controlled Substance.

Id. at 10-17. Because Appellant has not set forth any argument challenging

the sufficiency of the Commonwealth’s evidence in support of his Carrying a


____________________________________________


7 The court imposed no further penalty on Appellant’s Carrying a Loaded
Weapon and Knowing and Intentional Possession of a Controlled Substance
convictions.
8   Appellant did not file any post-trial motions.

                                           -5-
J-S16006-20



Firearm Without a License, Carrying a Loaded Weapon, or Carrying a Firearm

on a Public Street convictions, we find these claims waived. See Pa.R.A.P.

2119(a); Commonwealth v. Luktisch, 680 A.2d 877, 879 n.1 (Pa. 1996)

(holding that an issue is waived where the defendant failed to develop an

argument in his appellate brief and cited no authority).

Appellant’s Issues

       We turn now to Appellant’s claims that the trial court erred in not

granting his Motion for Judgment of Acquittal on the Possession of Firearm

Prohibited and Knowing and Intentional Possession of a Controlled Substance

charges because the Commonwealth did not present evidence to prove each

element of the charges.         Appellant’s Brief at 11-17.   With respect to the

Possession of a Firearm Prohibited conviction, Appellant asserts that his mere

presence in the vehicle and his flight from the vehicle, absent other evidence,

were insufficient to prove that he constructively possessed the firearm found

by Officer Dooley found under the driver’s seat. Id. at 13. He further asserts

that the passenger sitting in the front passenger seat had greater access to

and control over the firearm. Id.

       With respect to his Knowing and Intentional Possession of a Controlled

Substance conviction, Appellant argues that he could not have constructively

possessed the drugs since they were not on his person or accessible to him.9

____________________________________________


9 In support of this argument, Appellant has mischaracterized the location of
the drugs found in the car, claiming that “the center console only contained



                                           -6-
J-S16006-20



Id. at 17. To this end, Appellant has mischaracterized the location of the

drugs found in the car, erroneously claiming that “the center console only

contained drug paraphernalia, and the drugs were either found in the back

seat of the vehicle . . . or on Lerma’s person.”

Standard of Review

       We review claims regarding the sufficiency of the evidence by

considering 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.”10

Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014) (citation

omitted). Further, a conviction may be sustained wholly on circumstantial

evidence, and the trier of fact—while passing on the credibility of the witnesses

and the weight of the evidence—is free to believe all, part, or none of the

evidence. Id. at 40 (citation omitted). “Because evidentiary sufficiency is a

matter of law, our standard of review is de novo and our scope of review is

plenary.”    Commonwealth v. Brooker, 103 A.3d 325, 330 (Pa. Super.

2014).

____________________________________________


drug paraphernalia, and the drugs were either found in the back seat of the
vehicle . . . or on Lerma’s person.” Appellant’s Brief at 17. Officer Dooley’s
testimony, found credible by the trial court, that he found drugs in the pocket
in the passenger side door, in the glove compartment, and in the center
console belies this assertion. N.T. at 25.
10We review the trial court’s denial of a motion for a judgment of acquittal
under the same standard. Commonwealth v. Emanuel, 86 A.3d 892, 894
(Pa. Super. 2014).

                                           -7-
J-S16006-20



       The trial court convicted Appellant of both firearm charges and drug

charges. Appellant’s drug conviction was based upon the Controlled

Substance, Drug, Device & Cosmetic Act, 35 P.S. § 780-101, et seq. Section

780-113(a)(16) of the Controlled Substance, Drug, Device & Cosmetic Act

requires the Commonwealth to prove that a defendant “[k]nowingly or

intentionally possess[ed] a controlled or counterfeit substance.” 35 P.S. §§

780-113(a)(16) (emphasis added).

       Appellant’s firearm conviction was based on Section 6105 of the Uniform

Firearms Act, which prohibits, in relevant part, a person convicted of an

enumerated offense from possessing a firearm.11 18 Pa.C.S § 6105(a)(1).

       Both types of convictions require the Commonwealth to prove that

Appellant “possessed” the contraband.            The Crimes Code defines the term

“possession” as “an act, within the meaning of this section, if the possessor

knowingly procured or received the thing possessed or was aware of his

control thereof for a sufficient period to have been able to terminate his

possession.” 18 Pa.C.S. § 301(c). Because possession is the only statutory

element Appellant challenges, we address his two issues together.

Constructive Possession

       We have held 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
____________________________________________


11Appellant does not dispute that he is a person convicted of an offense
enumerated in Section 6105.

                                           -8-
J-S16006-20



omitted). 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. Commonwealth v. Hopkins, 67 A.3d

817, 820 (Pa. Super. 2013).       “Constructive possession is a legal fiction, a

pragmatic construct to deal with the realities of criminal law enforcement.”

Id. at 820 (citation omitted). “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.” Id. (citation omitted).

“To aid application, we have held that constructive possession may be

established by the totality of the circumstances.” Id. (citation omitted).

      It is well established that, “[a]s with any other element of a crime,

constructive   possession   may    be   proven   by   circumstantial   evidence.”

Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996) (citation

omitted). See, e.g., Commonwealth v. Davis, 743 A.2d 946, 953-54 (Pa.

Super. 1999) (holding that evidence was sufficient to prove constructive

possession over drugs found in common areas of an apartment where the

defendant entered the apartment using his own key, possessed $800 in cash

on his person, and police recovered defendant’s identification badge, size-

appropriate clothing, and firearms from a bedroom). The Commonwealth can

prove constructive possession if the defendant shared with another actor or

actors equal access and joint control of an area where the drug or gun was

located. Commonwealth v. Mudrick, 507 A.2d 1212, 1214 (Pa. 1986).




                                        -9-
J-S16006-20



      In addition, evidence of flight is admissible to establish an inference of

a defendant’s consciousness of guilt. Commonwealth v. Spotz, 870 A.2d

822, 825 n.10 (Pa. 2005). See also Commonwealth v. Johnson, 838 A.2d

663, 681 (Pa. 2003) (same).

      In the instant case, the trial court, which sat as the finder of fact,

explained its verdict of guilt as follows:

      The evidence, when viewed in the light most favorable to the
      Commonwealth, clearly established that Appellant constructively
      possessed the gun found under his seat and some of the drugs
      secreted in various locations in the car, including the center
      console. That is because a gun was found under the seat
      Appellant was sitting in and some of the drugs were collected from
      the center console, locations [to] which Appellant had easy access
      []. In addition, Appellant manifested consciousness of guilt by
      fleeing the vehicle after the police began to get out of their vehicle.

Trial Ct. Op., 9/10/19, at 8 (citations omitted).

      We agree with the trial court that in light of the controlling authority,

and viewing the circumstantial and direct evidence in the light most favorable

to the Commonwealth as verdict-winner as we must, the Commonwealth’s

evidence was sufficient to prove that Appellant constructively possessed the

gun and the drugs found by police in the Nissan. See, e.g., Commonwealth

v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996) (constructive possession

established where the appellant was the driver of the car and the contraband

was recovered from the glove compartment and trunk, which are “areas

usually only accessible to the operator of a vehicle”); Commonwealth v.

Bentley, 419 A.2d 85, 87 (Pa. Super. 1980) (constructive possession

established where the appellant was the driver because the gun was within

                                      - 10 -
J-S16006-20



the appellant’s easy reach, two bullets were near the driver’s door, and police

saw the appellant and a passenger locking the car’s doors after the police

responded to the scene where the car had been in an accident). Accordingly,

Appellant’s claim that the trial court erred in not granting his Motion for

Judgment of Acquittal of his two possessory offenses fails because the

Commonwealth’s evidence was sufficient.

      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/21/2020




                                    - 11 -
