J. S52001/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                  v.                     :
                                         :
ISIAH WILLIAMS,                          :         No. 2643 EDA 2015
                                         :
                       Appellant         :


           Appeal from the Judgment of Sentence, July 15, 2015,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0003519-2014


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED OCTOBER 19, 2017

     Isiah Williams appeals from the judgment of sentence entered in the

Court of Common Pleas of Philadelphia County following his conviction in a

waiver trial of unlawful possession of a firearm, firearm not to be carried

without a license, and carrying a firearm on a public street in Philadelphia.1

The trial court sentenced appellant to 5 to 10 years’ incarceration on the

unlawful possession of a firearm count and 5 years of consecutive probation

for carrying a firearm without a license. The trial court imposed no further

penalty on the remaining count. We affirm.

     The trial court set forth the following:



* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 6105(a)(1), 18 Pa.C.S.A. § 6106(a)(1), and 18 Pa.C.S.A.
§ 6108, respectively.
J. S52001/16


                 On March 10, 2014, at approximately
          8:35 p.m., Officer Antoine Wesley and his partner,
          Officer Colon, stopped a black Hyundai Sonata driven
          by [appellant] in the area of 2900 N. 2nd Street.
          Officer Wesley observed [appellant] driving the
          vehicle “at a high rate of speed.” He and his partner
          activated their lights and sirens and pulled over
          [appellant’s] vehicle.     [Appellant] was the only
          occupant. Officer Wesley smelled a strong odor of
          burnt marijuana coming from the vehicle and asked
          for license and registration. [Appellant] failed to
          produce a driver’s license and could only produce a
          Budget      rental    agreement,      which     alerted
          Officer Wesley to conduct a live stop of the vehicle.
          At that time, [appellant] was operating the vehicle
          with keys in the ignition that could also open the
          trunk. A subsequent inventory search of the trunk
          revealed a black and red book bag containing a
          handgun and a plastic sandwich bag.[Footnote 1]
          Police found six .32 caliber rounds inside the gun and
          22 different caliber rounds inside the plastic bag.
          [Appellant] did not possess a valid permit to carry
          such a handgun.[Footnote 2] Officer Wesley then
          arrested [appellant] for firearm violations.

                [Footnote 1] Both counsels stipulated
                that analysts at the ballistics lab had
                tested the hand[gun], finding it to be
                operable.

                [Footnote 2] Both counsels stipulated
                that [appellant] was prohibited from
                possessing      a      firearm under
                18 Pa.C.S.[A.] § 6105.

                 Brittney Boyd and Akeem Williams testified as
          defense witnesses.     Ms. Boyd, [appellant’s] wife,
          testified that the Budget rental agreement was under
          her name. She rented the car for a month, but only
          drove it for two weeks before she lent the car to
          [appellant’s] brother, Akeem Williams. She was not
          present in the vehicle on [the] day in question.
          Mr. Williams testified that on that day, [appellant]
          picked up the rental car from him in the morning.


                                   -2-
J. S52001/16


            He had no intentions to borrow the car from
            Ms. Boyd after that day. He testified that before
            [appellant] was arrested, he had used the rental car
            to help a friend move, and his friend placed bags in
            the trunk. Both Ms. Boyd and Mr. Williams testified
            that on that day, [appellant] was supposed to pick
            up his children from school before returning the
            rental car.

                  As a result of this stop, Officer Wesley cited
            [appellant] for two summary offenses under the
            Motor Vehicle Code: failure to drive at a safe speed
            pursuant to 75 Pa.C.S.[A.] § 3361 and operating a
            vehicle without a license pursuant to 75 Pa.C.S.[A.]
            § 1501(a). On May 14, 2014, a Municipal Court
            Judge found [appellant] guilty in absentia of these
            two summary offenses. The Commonwealth also
            charged [appellant] with three violations of the
            Uniform Firearms Act pursuant to 18 Pa.C.S.[A.]
            §[§] 6105, 6106, and 6108. On February 23, 2015,
            the trial court found [appellant] guilty of all three
            charges concerning a Violation of the Uniform
            Firearms Act[].

Trial court opinion, 11/23/15 at 2-4 (citations to notes of testimony and trial

court record omitted).

      Appellant raises the following issues for our review:

            [1.]   Was the evidence presented at trial sufficient
                   as a matter of law to support the conviction for
                   carrying   a    firearm   without   a    license
                   (18 Pa.C.S.A. § 6106), persons not to possess
                   firearms (18 Pa.C.S.A. § 6105), and carrying a
                   firearm in Philadelphia (18 Pa.C.S.A. § 6108),
                   where the evidence of record did not establish
                   beyond a reasonable doubt that [appellant]
                   constructively possessed a firearm recovered
                   in the trunk of a rental car which was rented
                   by another person and used by several other
                   people?




                                     -3-
J. S52001/16


            [2.]   With respect to the charges of carrying a
                   firearm without a license (18 Pa.C.S.A.
                   § 6106), persons not to possess firearms
                   (18 Pa.C.S.A. § 6105), and carrying a firearm
                   in Philadelphia (18 Pa.C.S.A. § 6108), was the
                   verdict against the weight of the evidence and
                   so contrary to the evidence that it shocks one’s
                   sense of justice where the Commonwealth’s
                   evidence at trial consisted of the fact that a
                   firearm was recovered from inside a back pack,
                   inside the trunk of a rental car which was
                   rented by a person other than [appellant] and
                   used by several other people?

            [3.]   Did the trial court erred [sic] when it denied
                   [appellant’s] motion seeking dismissal of the
                   charges against [appellant] based upon
                   18 Pa.C.S.A. § 110[, the compulsory joinder
                   statute]?

Appellant’s brief at 6-7.

      Appellant first complains that the Commonwealth failed to produce

sufficient evidence to support his convictions because it failed to establish

beyond a reasonable doubt that appellant constructively possessed the

firearm that police recovered from the trunk of the rental car that appellant

was driving.

            Our standard of review for a challenge to the
            sufficiency of the evidence is well settled. We must
            view all the evidence in the light most favorable to
            the verdict winner, giving that party the benefit of all
            reasonable inferences to be drawn therefrom.
            Additionally, it is not the role of an appellate court to
            weigh the evidence or to substitute our judgment for
            that of the fact-finder.

Commonwealth v. Alford, 880 A.2d 666, 669-670 (Pa.Super. 2005),

appeal denied, 890 A.2d 1055 (Pa. 2005), quoting Commonwealth v.


                                      -4-
J. S52001/16


Gruff, 822 A.2d 773, 775 (Pa.Super. 2003), appeal denied, 863 A.2d 1143

(Pa. 2004) (citations omitted).

      Because the firearm was not found on appellant’s person, the

Commonwealth          was   required    to    prove     that   appellant    constructively

possessed the firearm. See Commonwealth v. Brown, 48 A.3d 426, 430

(Pa.Super. 2012).

            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.

Commonwealth v. Parker, 847 A.2d 745, 750 (Pa.Super. 2004) (internal

citations and quotation marks omitted). “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.”

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

omitted). “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.” Id.




                                             -5-
J. S52001/16


      Here, Officer Wesley testified that he observed appellant driving at a

high rate of speed. (Notes of testimony, 2/23/15 at 9.) For that reason, he

and his partner pulled appellant over. (Id. at 9-10.) After pulling appellant

over, Officer Wesley smelled a strong odor of burnt marijuana coming from

the inside of the car.     (Id. at 10.)     Officer Wesley also observed that

appellant was the only person inside the vehicle. (Id. at 9.) At that point,

appellant could not produce a driver’s license or vehicle registration. (Id. at

10.) Officer Wesley then learned that appellant was driving a vehicle that

was rented to someone else and that appellant was driving that vehicle

without a valid driver’s license. (Id.)

      Officer Wesley then conducted a vehicle inventory. (Id.) The officer

opened the trunk of the vehicle with the keys that appellant had in his

possession and which appellant also used to operate the vehicle.         (Id. at

12-13.)   Inside the trunk of the vehicle, Officer Wesley found a book bag

containing a gun loaded with 6 live rounds, together with a plastic bag

containing 22 different caliber rounds. (Id. at 10.)

      At trial, appellant presented two defense witnesses in an attempt to

demonstrate that the gun may have belonged to someone else. Appellant’s

wife testified that she rented the vehicle, but that she loaned it to appellant’s

brother. (Id. at 25.) Appellant’s brother testified that he used the vehicle

to help his friend move and that his friend placed items in the trunk of the




                                      -6-
J. S52001/16


car shortly before he turned the car over to appellant.               (Id. at 37-39.)

Appellant did not offer his brother’s friend as a witness.

      Appellant’s brother further testified that shortly after his friend placed

the items in the car, he turned the car over to appellant on the morning of

March 10, 2014. (Id. at 42.) Appellant’s wife testified that appellant picked

up their children after school that day and was then to return the rental

vehicle. (Id. at 28.) Appellant was pulled over at approximately 8:35 p.m.

(Id. at 8.)     Appellant offered no evidence to explain his whereabouts

between the time he allegedly picked up his children from school and the

time police pulled him over.

      Therefore, under the totality of the circumstances, the evidence was

sufficient to establish constructive possession.          The trial court, sitting as

fact-finder, could reasonably infer that appellant had both the ability and

intent to control the firearm because appellant exercised control over the

vehicle by driving the vehicle, being its only occupant, and possessing the

keys that operated the vehicle and that also opened the trunk where the gun

was stored.      Moreover, the trial court found the defense witnesses’

testimony to be incredible for lack of common sense and failure to explain a

significant time gap. The fact-finder exclusively assesses witness credibility

and   may     choose   to   believe   all,   part,   or   none   of    the   evidence.

Commonwealth v. Sanchez, 36 A.3d 24, 39 (Pa. 2011).                          Therefore,

appellant’s sufficiency claim lacks merit.



                                        -7-
J. S52001/16


     Appellant next complains that the verdict was against the weight of

the evidence because the Commonwealth failed to prove constructive

possession of the firearm.

           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 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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations

omitted; emphasis omitted).

           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. An appellate court cannot substitute
           its judgment for that of the finder of fact. Thus, we
           may only reverse the . . . verdict if it is so contrary
           to the evidence as to shock one’s sense of justice.

Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011).

     Appellant specifically complains that the verdict was against the weight

of the evidence because “the only evidence linking [appellant] to the gun

was the fact that both he and the gun were located in the same vehicle.”

(Appellant’s brief at 33.)    The Commonwealth, however, presented the

testimony of Officer Wesley which, if believed, established that appellant


                                    -8-
J. S52001/16


constructively possessed the firearm because he exercised control over the

vehicle and, therefore, the gun because he was the sole occupant of the

vehicle, and he possessed the keys necessary to operate the vehicle and

open the trunk where police found the gun. Although appellant presented

two defense witnesses, the trial court found their testimony wholly incredible

for lack of common sense and failure to explain a significant time gap. In its

opinion, the trial court also noted that both defense witnesses -- appellant’s

wife and his brother -- had a strong motive to lie and fabricate evidence.

(Trial court opinion, 11/23/15 at 9.) The trial court, sitting as fact-finder,

was free to determine witness credibility.    See Devine, 26 A.3d at 1146.

We cannot substitute our judgment for that of the fact-finder.         See id.

Therefore, the trial court properly concluded that the verdict was not against

the weight of the evidence and did not shock one’s sense of justice.

        Finally, appellant complains that the trial court erred when it denied

his motion to dismiss under the compulsory joinder statute, 18 Pa.C.S.A.

§ 110.    Specifically, appellant complains that because he was convicted of

the summary traffic offenses of failure to drive at a safe speed and operating

a vehicle without a license2 prior to being convicted of the firearms

violations, the compulsory joinder statute barred his subsequent prosecution

for the firearms violations. Preliminary, we note that appellant’s conviction

for possession of a firearm prohibited was graded as a second-degree felony,


2   75 Pa.C.S.A. § 3361 and 75 Pa.C.S.A. § 1501(a), respectively.


                                     -9-
J. S52001/16


his conviction for firearms not to be carried without a license was graded as

a third-degree felony, and his conviction for carrying firearms in public in

Philadelphia was graded as a first-degree misdemeanor.

      The compulsory joinder rule bars a subsequent prosecution if each of

the following test prongs is met:

            (1) the former prosecution resulted in an acquittal or
            conviction; (2) the current prosecution was based on
            the same criminal conduct or arose from the same
            criminal episode; (3) the prosecutor in the
            subsequent trial was aware of the charges before the
            first trial; and (4) all charges [are] within the same
            judicial district as the former prosecution.

Commonwealth v. Reid, 77 A.3d 579, 582 (Pa. 2013) (citation omitted;

bracket in original).

      Here, no dispute exists that appellant’s prosecution on the summary

traffic offenses resulted in convictions, that his subsequent firearms

prosecutions were based on the same criminal conduct or arose from the

same criminal episode, and that the Commonwealth knew of the firearms

charges before the summary trial.    In light of this court’s recent en banc

decision in Commonwealth v. Perfetto,           A.3d     , 2017 WL 3776631

(Pa.Super. 2017) (en banc), however, appellant fails to satisfy the fourth

Reid test prong.

      In Perfetto, 2017 WL 3776631 at *11, this court held that where, as

here, a defendant’s summary traffic offense was to be heard solely in the

Philadelphia Municipal Court Traffic Division pursuant to its jurisdiction in



                                    - 10 -
J. S52001/16


accordance with Pa.C.S.A. § 1302(a.1)(1)(i), a prior disposition of that

summary traffic offense in traffic court does not bar a later prosecution of

other criminal charges that arose in the same judicial district and at the

same time as the summary traffic offense because Section 1302 carves out

an exception to compulsory joinder and directs that the summary traffic

offense is within the exclusive jurisdiction of the traffic court. Consequently,

appellant’s subsequent prosecution on the firearms violations was not barred

by compulsory joinder.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/19/2017




                                     - 11 -
