J-S65020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA
                         Appellee

                    v.

CHRIS ALAN NEIL

                         Appellant                  No. 1970 MDA 2017


    Appeal from the Judgment of Sentence imposed November 21, 2017
           In the Court of Common Pleas of Cumberland County
             Criminal Division at No: CP-21-CR-0001847-2017


BEFORE: SHOGAN, and STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.:                      FILED FEBRUARY 15, 2019

      Appellant, Chris Alan Neil, appeals from his judgment of sentence of

3½-7 years’ imprisonment for carrying a firearm without a license in violation

of 18 Pa.C.S.A. § 6106. We affirm.

      The trial court accurately summarized the evidence adduced during trial

as follows:

      On May 23, 2017, [Appellant] left a threatening voicemail for his
      estranged wife. He indicated that when he saw her the next day
      that he would have a “gun waiting for [her].” On May 24, 2017,
      he saw his estranged wife as she approached the county
      courthouse in her car. He immediately jumped on his motorcycle
      and followed. When she pulled over to park near the courthouse,
      [Appellant] ran up to her vehicle and began banging on the
      window while screaming at her. Afraid of what might happen, she
      blew her car horn steadily until county sheriffs and local police
      responded. As the officers approached, [Appellant] jumped back
      onto his motorcycle and fled.
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      The estranged wife recounted the threatening voicemail and her
      fear that [Appellant] might be armed. Officers quickly followed in
      his direction. They found his motorcycle parked around the block
      from the courthouse[.] Pursuant to a search of the motorcycle’s
      saddlebag, officers found a revolver inside a men’s motorcycle
      vest. As a result, the Commonwealth charged [Appellant] with
      one count of firearms not to be carried without a license for the
      revolver recovered from the motorcycle.

      At trial, the defense stipulated that [Appellant] did not have a
      license to conceal-carry the revolver because he was ineligible for
      such a license. The Commonwealth presented a firearms expert
      who opined that the revolver recovered from the motorcycle was
      capable of firing projectiles. Another Commonwealth witness and
      long-time friend of the former couple testified that [Appellant] had
      possessed a revolver like that found on the motorcycle prior to the
      May incident. He believed that the revolver in evidence was the
      very same revolver that he had seen in [Appellant]’s possession.
      He also testified to what he witnessed as he followed [Appellant]’s
      estranged wife on the day of the incident.

Trial Ct. Op., 4/5/18, at 1-2.

      The jury found Appellant guilty of the aforementioned firearms offense.

On November 21, 2017, the trial court imposed sentence. Appellant timely

appealed to this Court, and both Appellant and the trial court complied with

Pa.R.A.P. 1925.

      Appellant raises two issues in this appeal:

      I. Did the trial court err when it concluded that the evidence
      provided by the Commonwealth was sufficient to find [Appellant]
      guilty of possessing a firearm without a license?

      II. Did the trial court err when it allowed the Commonwealth to
      present prejudicial testimony through a late-provided witness not
      previously mentioned in discovery?

Appellant’s Brief at 5.




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      In his first argument, Appellant contends that the evidence was

insufficient to sustain his conviction for carrying a firearm without a license.

Our Supreme Court has explained:

      A claim challenging the sufficiency of the evidence is a question of
      law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a reasonable
      doubt. Where the evidence offered to support the verdict is in
      contradiction to the physical facts, in contravention to human
      experience and the laws of nature, then the evidence is insufficient
      as a matter of law. When reviewing a sufficiency claim the court
      is required to view the evidence in the light most favorable to the
      verdict winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). Further:

      The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute our
      judgment for that of the fact-finder. The Commonwealth’s burden
      may be met by wholly circumstantial evidence and any doubt
      about the defendant’s guilt is to be resolved by the fact finder
      unless the evidence is so weak and inconclusive that, as a matter
      of law, no probability of fact can be drawn from the combined
      circumstances. Additionally, in applying the above test, the entire
      record must be evaluated and all evidence actually received must
      be considered.

Commonwealth v. Feliciano, 67 A.3d 19, 23-24 (Pa. Super. 2013) (en

banc).

      Section 6106 provides in relevant part: “Any person who carries a

firearm in any vehicle or any person who carries a firearm concealed on or

about his person, except in his place of abode or fixed place of business,

without a valid and lawfully issued license under this chapter commits a felony

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of the third degree.” 18 Pa.C.S.A. § 6106(a)(1). Appellant argues that the

Commonwealth failed to prove that he carried a firearm in a vehicle. 1 We

conclude that the Commonwealth satisfied this element by introducing

evidence that Appellant was in constructive possession of the firearm in the

motorcycle that he was operating.

       We have held that

       possession can be found by proving actual possession,
       constructive possession, or joint constructive possession. 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. Constructive
       possession is a legal fiction, a pragmatic construct to deal with the
       realities of criminal law enforcement.           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. To aid application, we have held that
       constructive possession may be established by the totality of the
       circumstances.

       It is well established that, [a]s with any other element of a crime,
       constructive possession may be proven by circumstantial
       evidence. In other words, the Commonwealth must establish
       facts from which the trier of fact can reasonably infer that the
       defendant exercised dominion and control over the contraband at
       issue. 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, and possessed $800 in cash on his person, and police
       recovered defendant's identification badge, size-appropriate
       clothing, and firearms from a bedroom).

       [A] defendant’s mere presence at a place where contraband is
       found or secreted is insufficient, standing alone, to prove that he
____________________________________________


1 Appellant does not claim that the Commonwealth failed to prove the other
elements of Section 6106(a)(1).

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        exercised dominion and control over those items. Thus, the
        location and proximity of an actor to the contraband alone is not
        conclusive of guilt. Rather, knowledge of the existence and
        location of the contraband is a necessary prerequisite to proving
        the defendant’s intent to control, and, thus, his constructive
        possession.

        If the only inference that the fact finder can make from the facts
        is a suspicion of possession, the Commonwealth has failed to
        prove constructive possession. 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. Parrish, 191 A.3d 31, 36-37 (Pa. Super. 2018) (several

citations and quotation marks omitted).

        Here, one day before the incident, Appellant threatened to shoot his

wife.   The next morning, May 23, 2017, while on a motorcycle, Appellant

approached his wife’s car outside a courthouse and banged on her window.

Although Appellant’s wife was the registered owner of the motorcycle, she

testified that he was the only person who ever operated it, and that he was

the sole operator on the date of the incident. As Appellant confronted her,

she blew her car horn until law enforcement officers approached. Appellant

fled on the motorcycle, which the police found around the block from the

courthouse.     The officers found a loaded firearm inside the motorcycle’s

saddlebag.     Both Appellant’s wife and David Downs, an eyewitness to the

encounter outside the courthouse, testified that they previously had seen this

firearm in Appellant’s possession. Viewed collectively, this evidence gave rise

to more than “mere association, suspicion or conjecture.”       Id. at 37. The




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totality of the evidence demonstrates that Appellant exercised dominion and

control over the firearm.

      Appellant argues that his case is analogous to Parrish, in which we held

that the evidence was insufficient to prove constructive possession. We find

Parrish distinguishable. There, the police discovered guns and drugs in the

front row of a vehicle, but the defendant was seated in the back row. The

defendant was not carrying any type of bag when he entered the car. He did

not have keys to the car and was not its owner or operator. There was no

evidence that he had ever been seated in either of the front seats. Neither of

the recovered firearms was registered to him, and there was no fingerprint

evidence for either weapon. We held that the jury could not reasonably infer

that the defendant knew about the contraband in the front row, let alone

exercise dominion and control over these items. Id. at 37-38. In contrast,

there is abundant evidence in the present case that Appellant knew about the

firearm in the motorcycle saddlebag and exercised both dominion and control

over it.

      Accordingly, the evidence was sufficient to sustain Appellant’s conviction

under Section 6106.

      In his second argument, Appellant contends that the trial court abused

its discretion by failing to preclude Downs’ testimony that he had previously

seen Appellant in possession of the firearm recovered in the saddlebag. We

review the trial court’s decision to admit or deny evidence for abuse of


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discretion or error of law. Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.

Super. 2012). “Thus our standard of review is very narrow. To constitute

reversible error, an evidentiary ruling must not only be erroneous, but also

harmful or prejudicial to the complaining party.” Id.

      The trial court cogently discussed this issue as follows:

      Regarding the challenge to Mr. Downs, defense counsel claimed
      that he was only objecting to Mr. Downs’ statement that he had
      seen [Appellant] with a revolver prior to the incident. However,
      counsel conceded that he could not articulate any prejudice aside
      from the fact that the statement was damaging. Nor did he claim
      that the statement was known to and purposely withheld by the
      Commonwealth to gain an advantage.

      Given [the] defense’s concession to the absence of unfair
      prejudice, we allowed Mr. Downs to testify to having seen
      [Appellant] with a similar revolver prior to the May incident. The
      testimony went to [Appellant’s] identity and his knowledge of, or
      lack of mistake concerning, his carrying of the firearm on the
      motorcycle. The revolver itself was antique in nature and not like
      revolvers commonly seen today.           Considering the unique
      characteristics of the revolver, Mr. Downs’ testimony tended to
      establish that [Appellant] was the person on the motorcycle, and
      that he possessed and, therefore, was the one who carried the
      revolver found on that motorcycle.              It completed the
      Commonwealth’s story in these respects.

Trial Ct. Op. at 4-5. Based on our review of the record, we agree with this

analysis and hold that the trial court acted within its discretion by permitting

Downs’ testimony.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/15/2019




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