J-S45013-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

DEMETRICK LAMONT RICHARDSON,

                          Appellant                  No. 2184 MDA 2014


          Appeal from the Judgment of Sentence November 14, 2014
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0001953-2014


BEFORE: BOWES, WECHT, AND FITZGERALD * JJ.

MEMORANDUM BY BOWES, J:                         FILED SEPTEMBER 11, 2015

       Demetrick Lamont Richardson appeals from the judgment of sentence

of two to four years imprisonment followed by twelve months probation,

which was imposed by the court following his conviction at a bench trial of

possession of a firearm, possession of an instrument of crime (“PIC”), and

possession of cocaine. We affirm.

       The facts giving rise to Appellant’s conviction are summarized from the

transcript of the October 2, 2014 non-jury trial. Pennsylvania State Police

Trooper William Colvin testified that on January 1, 2014, he was patrolling in

a marked vehicle when he observed a vehicle on Market Street.          As he

customarily does, the trooper ran the registration for the vehicle and learned

that the operating license of its registered owner had been suspended. After
*
    Former Justice specially assigned to the Superior Court.
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procuring a JNET photograph1 of the owner of the vehicle, he pulled his

cruiser alongside and visually confirmed that the driver of the vehicle was

the registered owner, Appellant.               The trooper initiated a traffic stop,

approached the vehicle, identified himself, and advised Appellant of the

reason for the stop. Trooper Colvin subsequently confirmed that Appellant

had two outstanding warrants and no vehicle insurance, and took him into

custody.

       When the tow truck arrived, the trooper conducted an inventory

search of the vehicle. He found several small empty baggies in the center

console. On the rear passenger-side floor, he observed a white sheet with a

large solid object beneath it.         When he removed the sheet, he found a

sawed-off shotgun. A small baggie of cocaine lay in close proximity to the

gun.    The trooper identified the shotgun as the weapon he found in

Appellant’s vehicle.      A lab report on the firearm, which did not bear a

registration number, indicated that it had a broken firing pin and was

inoperable.

       Appellant testified that he was stopped by police while driving his

vehicle on Market Street on January 1, 2014. He provided his license and
____________________________________________


1
  JNET is the Pennsylvania integrated justice portal that provides a common
online environment for authorized users to access public safety and criminal
justice information. It includes access to PennDot’s driver’s license and
photo records.




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registration to the officer upon request and asked why he had been pulled

over. He confirmed that the trooper told him that he was being placed in

custody due to outstanding warrants and a suspended license.

      Appellant admitted at trial that the cocaine found in the car could have

been his because he was addicted. He denied that he owned the shotgun

and maintained further that he did not know it was in the vehicle. Appellant

testified that he had loaned out his vehicle that night in exchange for

cocaine.

      The Commonwealth withdrew the charge of possession of a firearm

without a license at the commencement of trial, conceding that it could not

establish the elements of that offense due to the inoperability of the firearm.

However, it maintained that the charge of person not to possess was

unaffected because the firearm, although inoperable, was “designed to or

may be readily converted to expel any projectile” for purposes of 18 Pa.C.S.

§ 6105. The trial court agreed. It found Appellant guilty of person not to

possess a firearm, possession of cocaine, PIC, and driving with a suspended

license.

      On   November    14,   2014,   with   the   benefit   of   a   pre-sentence

investigation report, the court imposed a mitigated range sentence, granted

Appellant credit for time served, and suggested that he enroll in boot camp.

Appellant filed a post-sentence motion seeking judgment of acquittal, or, in

the alternative, a new trial or reconsideration of sentence. The court found

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that there was sufficient evidence to convince the finder of fact as to every

one of the charges, and denied the motion on December 17, 2014.

Appellant timely appealed on December 26, 2014, and complied with the

trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Appellant raises two issues:

      I.     The evidence at trial was insufficient as a matter of law to
             support the trial court’s verdict that defendant committed
             the crimes of person not to possess a firearm and
             possession of an instrument of crime.

      II.    The verdict of guilty for person not to possess a firearm
             and possession of an instrument of crime are against the
             weight of the evidence.

Appellant’s brief at ii.

      In reviewing a challenge to the sufficiency of the evidence, we must

determine

      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. In applying the above test, we may
      not weigh the evidence and substitute our judgment for the fact-
      finder. 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



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        evidence produced, is free to believe all, part or none of the
        evidence.

Commonwealth v. Giordano, 2015 Pa. Super. LEXIS 448, *6-7, 2015 PA

Super 167 (quoting Commonwealth v. Cahill, 95 A.3d 298, 300 (Pa.Super.

2014)).

        Appellant contends first that the evidence was insufficient to sustain

his conviction for person not to possess. That statute provides in pertinent

part:

        § 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.

                      (i)    A person who is prohibited from
                possessing, using, controlling, selling, transferring or
                manufacturing a firearm under paragraph (1) or
                subsection (b) or (c) shall have a reasonable period
                of time, not to exceed 60 days from the date of the
                imposition of the disability under this subsection, in
                which to sell or transfer that person’s firearms to
                another eligible person who is not a member of the
                prohibited person’s household.


18 Pa.C.S. § 6105(a)(1).




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     The defense stipulated that Appellant was prohibited from possessing a

firearm and that he had been so prohibited since 2009. However, Appellant

contends that the Commonwealth failed to introduce evidence that he knew

the gun was in the vehicle.

     Where the defendant is not found in actual possession of contraband,

the Commonwealth must establish a theory of constructive possession to

support the conviction.   Commonwealth v. Hopkins, 67 A.3d 817, 820

(Pa.Super. 2013). As this Court held in Commonwealth v. Brown, 48 A.3d

426, 430 (Pa.Super. 2012) (internal quotation marks and citation omitted),

            Constructive possession is a legal fiction, a pragmatic
     construct to deal with the realities of criminal law enforcement.
     Constructive possession is an inference arising from a set of
     facts that possession of the contraband was more likely than not.
     We have defined constructive possession as conscious dominion.
     We subsequently defined conscious dominion as 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.

     This Court has found constructive possession where the individual does

not have actual possession over the illegal item but has conscious dominion

over it, i.e., the power to control the item and the intent to exercise it.

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

Hopkins, supra.    When the contraband is located in an area usually only

accessible to the defendant, an inference may be made that the defendant

either knew of its presence or placed it there. Commonwealth v. Haskins,

677 A.2d 328 (Pa.Super. 1996); Commonwealth v. Carter, 450 A.2d 142

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(1982) (appellant had constructive possession of a firearm where the firearm

was found on the floor of a vehicle within his view); Commonwealth v.

Thompson, 428 A.2d 223, 224 (Pa.Super. 1981); Commonwealth v.

Ferguson, 331 A.2d 856, 860 (Pa.Super. 1974).

      We find Commonwealth v. Boatright, 453 A.2d 1058 (Pa.Super.

1982), upon which Appellant relies, distinguishable.       In that case, the

defendant was not the only individual in the car, as there was also a driver

and a rear seat passenger.      Furthermore, the car was registered to the

driver’s girlfriend. Consequently, this Court held that the evidence failed to

establish constructive possession and we reversed the conviction.      Herein,

Appellant was the sole occupant of the vehicle, which was registered in his

name. The shotgun was hidden under a sheet in the rear floor of the car in

close proximity to cocaine that Appellant admitted belonged to him. Though

Appellant testified that he had lent his car and was unaware of the shotgun,

the trial court did not credit that testimony. We find no basis to disturb that

credibility determination.

      With regard to the PIC charge, Appellant reiterates his claim that there

was insufficient evidence of possession, an argument we have already

rejected.   He also claims that the Commonwealth did not introduce any

evidence to show that the shotgun was in fact an instrument of crime or that

he had any intent to employ it criminally. He claims that there are many

lawful uses for a shotgun, and the Commonwealth failed to show that it was

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being used for something unlawful.    Additionally, Appellant points out that

the shotgun’s firing pin was broken, rendering it “impossible to fire.”

Appellant’s brief at 14.

      Possessing an instrument of crime, 18 Pa.C.S. § 907(a) provides

      (a)Criminal instruments generally. --A person commits a
      misdemeanor of the first degree if he possesses any instrument
      of crime with intent to employ it criminally.


18 Pa.C.S. § 907.

      It is the Commonwealth’s burden to prove that the defendant

possessed an object that is an instrument of crime with the intent to use the

object for a criminal purpose. In the Interest of A.C., 763 A.2d 889, 890

(Pa.Super. 2000). An instrument of crime is defined as “[a]nything specially

made or specially adapted for criminal use” or “[a]nything used for criminal

purposes and possessed by the actor under circumstances not manifestly

appropriate for lawful uses it may have.” Commonwealth v. Stokes, 38

A.3d 846, 854 (Pa.Super. 2011).       A "weapon" for purposes of the PIC

statute is “[a]nything readily capable of lethal use and possessed under

circumstances not manifestly appropriate for lawful uses which it may have”

and includes “a firearm which is not loaded or lacks a clip or other

component to render it immediately operable, and components which can

readily be assembled into a weapon.” 18 Pa.C.S. § 907.

      The instrument of crime herein is a sawed-off shotgun, which is a

prohibited offensive weapon by statute. 18 Pa.C.S. § 908. Although it did

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not have a firing pin, the trial court determined that the missing component

could be readily inserted into the weapon.    Both the stock and barrel had

been altered and the serial number had been removed to prevent

identification, making it something specially adapted for criminal use. The

Commonwealth     maintains    that   those   modifications   to   the   weapon

demonstrated a criminal objective. Furthermore, the shotgun was found in

close proximity to cocaine possessed by Appellant and within Appellant’s

reach. It argues that one may infer consciousness of guilt from the fact of

its concealment under a sheet. See Commonwealth v. Silo, 502 A.2d 173

(Pa. 1985).

      Our Supreme Court has held that an actor's criminal purpose provides

the touchstone of his liability for possessing an instrument of crime and that

such purpose may be inferred from the circumstances surrounding the

possession. Commonwealth v. Hardick, 380 A.2d 1235, 1237 (Pa. 1977).

However, mere possession of an instrument of crime, standing alone, will

not support an inference that the defendant intended to use the instrument

of crime for a criminal purpose. In In the Interest of A.V., 48 A.3d 1251,

1253-1254 (Pa.Super. 2012), we rejected the trial court’s finding that mere

possession of counterfeit money demonstrated intent to use the bills for a

criminal purpose simply because there was "no lawful use" for counterfeit

bills. We reasoned that “[i]f we were to accept this conclusion, any citizen

who possesses counterfeit money after finding or receiving the bills in a

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transaction would be subject to criminal prosecution for possessing an

instrument of crime regardless of whether they intended to employ the bills

criminally or even knew the bills were counterfeit.”     Id. at 1253.    We

concluded that the fact that counterfeit money has no lawful use supported

its classification as an instrument of crime, but did not “relieve the

Commonwealth of its burden to prove an actor's intent to use the counterfeit

money for a criminal purpose beyond a reasonable doubt.” Id.

       Moreover, in Commonwealth v. Naranjo, 53 A.3d 66, 71 (Pa.Super.

2012), we held the PIC statute does not require that a crime be completed;

the focus is on whether the defendant possesses the instrument for any

criminal purpose. In that case, the defendant was charged with murder and

PIC. He admitted to stabbing the victim in a fight but claimed that he acted

in self-defense. The jury acquitted the defendant of the homicide charges

but convicted him of PIC. On appeal, we affirmed the PIC conviction based

on the Commonwealth’s evidence that the defendant had prepared for the

confrontation with the victim by concealing weapons on his person and

refusing to retreat.2


____________________________________________


2
  This was consistent with the Supreme Court’s subsequent decision in
Commonwealth v. Moore, 103 A.3d 1240, 1248 (Pa. 2014), holding that
juries may issue inconsistent verdicts and that reviewing courts may not
draw factual inferences in relation to the evidence from a jury's decision to
acquit a defendant of a certain offense.



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     The sawed-off shotgun was an instrument of crime by virtue of its

special adaptation for criminal use and its status as a prohibited offensive

weapon. 18 Pa.C.S. § 907. However, the Commonwealth must also prove

intent to employ the weapon criminally.     Hardick, supra at 1237.     That

intent need not be directly proven, and there need not be evidence of intent

to use the instrument of crime in a particular place or for a particular

purpose. Id. The requisite intent may be inferred from the circumstances

surrounding the incident that gives rise to the charges. Id. In Hardick, the

defendant’s possession of burglary tools typically used for safe-cracking in

his motor vehicle in a commercial area at night when such establishments

were not open for business, together with his evasive explanation as to why

he was in possession of such tools, was legally sufficient evidence of intent

to employ them criminally to sustain the PIC conviction.

     The instant case lacks the type of direct evidence of criminal intent

that flows from the defendant’s actual use of the instrument of crime, such

as discharging a weapon during an altercation.       However, since it was

stipulated that Appellant was a person not to possess a firearm, a fact

known to the trial court, the court could infer the requisite general intent

from Appellant’s unlawful possession of the gun and other circumstantial

evidence. Appellant possessed a sawed-off shotgun, a prohibited weapon by

definition, under circumstances where he could not have possessed it for any

lawful purpose. That, together with the fact that its registration number was

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obliterated, provided powerful evidence of intent to employ the weapon

criminally. The concealment of the weapon in close proximity to cocaine was

further circumstantial evidence of a criminal purpose.        Viewing all of the

evidence in the light most favorable to the verdict winner, as we must, we

find the evidence sufficient to sustain the PIC conviction.

      Next Appellant challenges the weight of the evidence supporting his

two firearm-related convictions. In support of his claim, he largely reiterates

the same arguments he made in his challenge to the sufficiency of the

evidence. However, he also relies upon his uncontroverted testimony that

he frequently lent his car to his drug supplier in exchange for drugs, and

that he had just done so before Trooper Colvin stopped him.          Appellant’s

brief at 17. We find no merit in Appellant’s position.

      The weight of the evidence is exclusively for the finder of fact who is

free to believe all, part, or none of the evidence and to determine the

credibility of the witnesses. Commonwealth v. Champney, 832 A.2d 403,

408 (Pa. 2003) (citations omitted).      As our Supreme Court explained in

Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our standard of review

when presented with a weight of the evidence claim is distinct from the

standard of review applied by the trial court:

      Appellate review of a weight claim is a review of the exercise of
      discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge has
      had the opportunity to hear and see the evidence presented, an
      appellate court will give the gravest consideration to the findings

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      and reasons advanced by the trial judge when reviewing a trial
      court's determination that the verdict is against the weight of the
      evidence. One of the least assailable reasons for granting or
      denying a new trial is the lower court's conviction that the
      verdict was or was not against the weight of the evidence and
      that a new trial should be granted in the interest of justice.

Clay, supra at 1055 (citations omitted).

      Herein, the trial court, acting as fact-finder, assessed the credibility of

witnesses and the evidence. It found the Commonwealth’s case “convincing

beyond a reasonable doubt” and that the verdict was not against the weight

of the evidence. Trial Court Opinion, 2/27/15, at 3. We find no abuse of

discretion.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/2015




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