J-S16026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                      v.

JASON D. DATES,

                           Appellant                   No. 787 MDA 2014


            Appeal from the Judgment of Sentence of March 31, 2014
                In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0004009-2012


BEFORE: PANELLA, OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                                 FILED MAY 06, 2015

      Appellant, Jason D. Dates, appeals from the judgment of sentence

entered on March 31, 2014, following his jury trial conviction for persons not

to possess a firearm, 18 Pa.C.S.A. § 6105. Upon review, we affirm.

      The trial court set forth the facts and procedural history of this case as

follows:

               On September 25, 2012, at approximately 2:30 p.m.,
           [Appellant] and two other adult males were observed by
           Wilkes-Barre City Police Sergeant Joseph Mangan in the
           area where steps and a driveway are located on the
           property of G.A.R. Memorial Junior/Senior High School
           (GAR) in the City of Wilkes-Barre. Sergeant Mangan was
           working as a school resource officer positioned in front of
           the school as students were leaving at the end of the school
           day. The record reflects he was of the opinion that the
           three adult males were not students. As a result, he
           approached the individuals at which time one of the group –
           a tall, thin, light-skinned male wearing glasses and a yellow
           shirt – ran away. As a result, Sergeant Mangan radioed for
           assistance and confronted the two other adult males.
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          Additional information was thereafter received reporting
       the individual who ran from the scene was observed at the
       rear of 402 South Sherman Street on a second floor porch.
       With the assistance of other responding units, [Appellant]
       was located on the second floor porch and taken into
       custody.     Sergeant Mangan ascended the stairs to
       determine whether the door located on the porch had been
       tampered with in an attempt to gain entry when he
       observed a large dusty gym bag on the porch with a gun
       handle beneath the bag.[fn1] This was the area where
       [Appellant] attempted to secret himself behind the banister.

            As a result of the aforementioned, on October 9, 2013, a
       criminal complaint was filed.       Subsequent thereto the
       criminal information containing five specific counts was
       filed.   [Prior to trial, the Commonwealth dismissed all
       charges except persons not to possess a firearm.]

           On October 9, 2013, [Appellant’s] trial in absentia
       commenced with jury selection and concluded on October
       10, 2013.[fn2] [Appellant] was found guilty of [persons not
       to possess a firearm] and was sentenced on March 31, 2014
       [to 48 to 96 months of imprisonment].

          A notice of appeal was filed on April 24, 2014, and on
       June 4, 2014, the court issued an order directing
       [Appellant] to file a [Pa.R.A.P.] 1925(b) statement within 21
       days of said order. [… Appellant] advanced several motions
       requesting additional time to review the record prior to
       completing the 1925(b) statement.

           On August 15, 2014, the statement of errors complained
       of on appeal was filed raising a single issue[. The trial court
       issued an opinion pursuant to Pa.R.A.P. 1925(a) on
       September 26, 2014.]



       [fn1] [The porch led to an apartment where the registered
       gun owner, Antoine Harrell, lived. Harrell had reported the
       gun stolen several days prior to this incident.]

       [fn2] At the time of trial, [Appellant] was lodged at the
       Luzerne County Correctional Facility (LCCF) in the work

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          release program. Prior to trial, [Appellant] escaped the
          LCCF and his whereabouts were unknown. He did not
          appear for his trial despite the fact that he was aware of his
          trial date. He was eventually apprehended and charged
          with escape, a charge he pleaded guilty to.

Trial Court Opinion, 9/26/2014, at 1-2 (most footnotes omitted).

      On appeal, Appellant raises the following issue for our review:

          Whether the Commonwealth failed to present evidence
          sufficient to prove beyond a reasonable doubt that
          [Appellant] had the intent to control and the power to
          control a firearm pursuant to 18 Pa.C.S.A. § 6105(a)(1)?

Appellant’s Brief at 1.

      Appellant argues that the Commonwealth failed to produce sufficient

evidence that Appellant was in possession of the recovered firearm.             He

asserts he was not in actual possession of the firearm.         Id. at 5.     More

specifically, he claims:

          The testimony reflects that the firearm was found on the
          property of its registered owner, [Mr.] Harrell. It also
          reflects that the firearm was found beneath a large dusty
          gym bag. No one had been to this porch before to testify
          whether the firearm had been on the property before
          [Appellant] was there. The scientific tests did not show that
          [Appellant] had been in possession of the firearm.

Id. at 7 (record citations omitted). Appellant claims that his statement to

police, following his arrest, wherein he claimed that his DNA and fingerprints

would be found on the firearm “does not [show] when [Appellant] may have

touched    the   firearm.”    Id.     Finally,   Appellant   argues   that   “[t]he

Commonwealth failed to introduce any evidence to indicate when [Mr.]




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Harrell purchased the firearm [] such that it would mean that [Appellant]

was in possession of the firearm after his previous conviction.” Id. at 8.

       In challenges to the sufficiency of the evidence,

         our standard of review is de novo, however, our scope of
         review is limited to considering the evidence of record, and
         all reasonable inferences arising therefrom, viewed in the
         light most favorable to the Commonwealth as the verdict
         winner. Evidence is sufficient if it can support every element
         of the crime charged beyond a reasonable doubt. The
         evidence does not need to disprove every possibility of
         innocence, and doubts as to guilt, the credibility of
         witnesses, and the weight of the evidence are for the fact-
         finder to decide. We will not disturb the verdict 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. Forrey, 108 A.3d 895, 897 (Pa. Super. 2015) (citations

and quotations omitted).

       As charged in this case, “[a] person who has been convicted of an

[enumerated] offense […] shall not possess, use, control, sell, transfer or

manufacture […] a firearm in this Commonwealth.”1                            18 Pa.C.S.A.

§ 6105(a).

       Because Appellant was not in physical possession of the firearm, the

Commonwealth        was    required     to     establish   that   he   had    constructive

possession of the seized item to support his conviction.
____________________________________________


1
   Appellant does not challenge the fact that he had a 2011 conviction for
aggravated assault, an enumerated offense under Section 6105(a);
therefore, he was not permitted to possess a firearm. See N.T., 10/9/2013,
at 66.



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        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. Hopkins, 67 A.3d 817, 820 (P. Super. 2013) (citation

omitted).

     Here, Sergeant Mangan testified that he observed Appellant, who was

not a student, on school property talking with two other men. N.T.,

10/9/2013, at 26-28. When Sergeant Mangan began walking towards them,

Appellant fled.   Id.   Sergeant Mangan radioed police dispatch, gave a

physical description of Appellant (“[t]all, thin, light skinned black male,

yellow t-shirt, glasses”), and asked for additional police assistance. Id. at

28. Officer James Conmy proceeded to the area after hearing a request to

respond. Id. at 53. “While en route, there was an update that one of the

males possibly had a firearm.”   Id. “[T]here was a subsequent 9-1-1 call

that indicated the male that [the police] were looking for was […] at 402

South Sherman Street hiding on [] a porch.” Id. at 54, 32-33. Sergeant

Mangan and Officer Conmy found Appellant on a second floor porch at that

address, “hiding down below the railing.”   Id. at 33, 54.   After the police

ordered Appellant to come down and he complied, Sergeant Mangan found

“a rather large dusty gym bag and beneath it [he] saw the handle of [a]

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pistol.” Id. at 36. Sergeant Mangan testified that he recovered the firearm

from “directly below” where Appellant was hiding on the porch. Id. at 51.

The firearm was reported stolen two or three days prior. Id. at 40. At the

police station, Appellant said, “I’ll take [a DNA] test. My DNA is going to be

on the gun. My fingerprints are going to be on the gun. I held the gun. I

helped [Mr. Harrell] buy the gun.” Id. at 56.

       Based upon a totality of the evidence, as viewed in the light most

favorable to the Commonwealth as our standard requires, we conclude there

was sufficient evidence to support Appellant’s conviction for persons not to

possess a firearm. Upon approach by the police, Appellant ran. While the

police were attempting to locate him, they received additional information

that Appellant was potentially armed and hiding on a porch. Consciousness

of   guilt,   evidenced   by   flight   from   the   scene   and   concealment   of

whereabouts, may support the finding of guilt. Commonwealth v. Davis,

421 A.2d 179, 182 (Pa. 1980) (collected citations omitted).           “Evidence of

flight or concealment can be established through eyewitness testimony.”

Commonwealth v. Hudson, 955 A.2d 1031, 1036 (Pa. Super. 2008)

(citation omitted). After the police detained Appellant, they found a partially

hidden, stolen firearm in Appellant’s immediate vicinity. Appellant admitted

that his DNA and fingerprints were on the weapon and that he helped

purchase the firearm.      Based upon the evidence, the jury could infer that

because of Appellant’s felonious status, proximity to the gun, the gun being


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partially hidden under a dusty bag, and the firearm being reported stolen

recently, Appellant’s possession of the gun was recent and immediately prior

to his arrest. In sum, the evidence showed Appellant exercised control over

the found gun, despite being prohibited from so doing.         Accordingly,

Appellant’s claim lacks merit.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2015




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