J-S64035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    MAYO WHITAKER,                               :
                                                 :
                       Appellant.                :   No. 858 EDA 2018


           Appeal from the Judgment of Sentence, February 1, 2018,
              in the Court of Common Pleas of Delaware County,
             Criminal Division at No(s): CP-23-CR-0003962-2017.


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                            FILED JANUARY 15, 2019

        Mayo Whitaker appeals from the judgment of sentence entered following

a bench trial on several charges including one count of persons not to possess

firearms.1 After careful review, we affirm.

        The pertinent facts, elicited at trial, and procedural history, as aptly

summarized by the trial court, are as follows:

              [Whitaker] was found guilty of one count of Persons Not to
        Possess Firearms following a non-jury trial held on February 1,
        2018.     He was sentenced to the mitigated range of the
        Pennsylvania Sentencing Guidelines to a term of thirty-six (36) to
        seventy-two (72) months [of] incarceration. Whitaker was found
        not guilty of the remaining [drug related] charges[.]

                                           ***



____________________________________________


1   18 Pa.C.S.A. 6105(a).
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            At trial, Officer Matthew Donohue and Officer Timothy
     William Garron testified for the Commonwealth. The officers were
     members of a team executing a search warrant at 1135 Chestnut
     Street in Chester, Pennsylvania on May 9, 2017. Officer Donohue
     testified that the team breached the door at the residence
     immediately upon arrival, as there were people in the streets
     yelling that they had arrived. After entering, both officers testified
     that they observed [Whitaker] seated on a couch in the living
     room.     After [Whitaker] was detained and given Miranda
     warnings, Officer Donohue asked him if there was anything in the
     house the officers needed to know about. Both officers testified
     that [Whitaker] nodded towards the other sofa in the room and
     stated, ‘my jawn’s over there.’ When Officer Donohue inquired as
     to what his ‘jawn’ was, [Whitaker] responded that it was his gun.
     The officers retrieved a .32 caliber silver revolver under the couch.
     The officer did not take any finger print or DNA samples from the
     gun.     They explained that it was not necessary based on
     [Whitaker’s] statement that it was his gun. Officer Garron
     testified that in his personal experience, ‘jawn’ can be used to
     refer to a gun. Counsel stipulated that [Whitaker] is a person not
     to possess a firearm under 18 Pa.S.C.A. § 6105.

            Whitaker took the stand and testified that at the time of the
     event he had been living in a halfway house. His sister came to
     visit him in the halfway house and brought her friend, Kanisha
     Mack, a co-defendant in this case. This was the first time Whitaker
     met Ms. Mack. He explained that she gave him her phone number
     and told him they were going to ‘have intercourse.’ When he
     entered the house, Ms. Mack greeted him at the door, did not say
     anything and then immediately went upstairs, leaving [Whitaker]
     in the living room. He was there for a minute before the police
     came in. [Whitaker] testified that he did not know there was a
     gun in the house; he didn’t know that Ms. Mack was a drug dealer;
     and that he did not say the gun was his.

Trial Court Opinion, 4/24/18, at 1-3. This timely appeal followed. Whitaker

and the trial court have complied with Pa.R.A.P. 1925.

     Whitaker has presented the following single issue for our review:

     Did the Commonwealth fail to provide sufficient evidence that Mr.
     Whitaker was guilty of the offense of Possession of Firearm
     Prohibited because it failed to provide evidence that proved he

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      was in constructive possession of a firearm beyond a reasonable
      doubt?

Whitaker’s Brief at 7.

      In reviewing a sufficiency claim, we must consider “whether the

evidence admitted at trial, and all the reasonable inferences derived therefrom

viewed in favor of the Commonwealth as verdict winner, supports the jury's

finding of all the elements of the offense beyond a reasonable doubt.”

Commonwealth v. Cash, 137 A.3d 1262, 1269 (Pa. 2016) (citation omitted).

“The trier of fact bears the responsibility of assessing the credibility of the

witnesses and weighing the evidence presented. In doing so, the trier of fact

is free to believe all, part, or none of the evidence.”   Commonwealth v.

Newton, 994 A.2d 1127, 1131 (Pa. Super. 2010), appeal denied, 8 A.3d 898

(Pa. 2010) (citations omitted). “The Commonwealth may sustain its burden

by means of wholly circumstantial evidence, and we must evaluate the entire

trial record and consider all evidence received against the defendant.”

Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013).              Only

“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.”    Commonwealth v.

Widmer, 744 A.2d 745, 751 (Pa. 2000).

      To convict Whitaker on a charge of persons not to possess firearms, the

Commonwealth was required to show that Whitaker:           1) was previously

convicted of an enumerated offense; and 2) possessed a firearm.        See 18



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Pa.C.S. § 6105. To establish the element of possession, this Court has 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 (2018) (citation omitted).

     The parties stipulated that Whitaker was a “person” who was prohibited

from possessing a firearm. Thus, the first element was easily established.

Whitaker argues, however, that the Commonwealth failed to present sufficient

evidence to establish that he was in possession, specifically constructive

possession, of the firearm found at the house where the police executed the

search warrant. Whitaker’s Brief at 17, 19.

     The trial court concluded that there was sufficient evidence to establish

that Whitaker possessed the gun, both actually and constructively. Trial Court

Opinion, 4/24/18 at 4. Upon our review of the record, we agree.

     The trial court opined that the Commonwealth proved that Whitaker had

physical possession of the gun found at Mack’s house. Id. At trial, Officer

Donohue testified that when he questioned Ms. Mack and Whitaker whether

there was anything in the house, Whitaker nodded toward the other sofa in

the room, and said “my jawn’s over there.” Id. at 2. The officers asked,

“what’s your jawn?”   Whitaker replied, “my gun.”     Id.   When the officers

looked under the couch where he had indicated, they found a loaded silver .32

caliber revolver. Officer Garron, also part of the team executing the search

warrant, corroborated Officer Donohue’s testimony. Whitaker admitted that




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it was his gun. Based upon this testimony, it was reasonable for the trial court

to conclude that Whitaker had actually possessed the gun.

      Whitaker contends, however, that when contraband is found other than

in one’s physical possession as it was here, the Commonwealth must be able

to show constructive possession. Whitaker’s Brief at 20 (citing Hopkins, 67

A.3d at 820). According to Whitaker, the Commonwealth failed to do so. See

id. at 19-21.

      While it is generally true that constructive possession must be

established where it is uncertain whose contraband it is and no one claims it,

in this case, although he denied ownership at trial, Whitaker admitted to police

on the evening in question that the gun was his. Based upon his admission,

it is, therefore, logical to conclude that he had possessed it.

      Nonetheless, the trial court also concluded that the Commonwealth

presented sufficient evidence to show that Whitaker had constructive

possession of the gun. Trial Court Opinion, 4/24/18, at 4.

      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.

Hopkins, 67 A.3d at 820 (citations omitted).




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       The trial court found that the evidence showed Whitaker had the power

and intent to control the gun. Trial Court Opinion, 4/24/18 at 4. Contrary to

Whitaker’s argument, the Commonwealth established more than Whitaker’s

mere presence and proximity to the firearm. Here, Whitaker was the only

person in the living room. Whitaker indicated to the officers where the gun

was. The gun was in fact there, just a few feet from where Whitaker was

sitting. “[K]nowledge of the existence and location of the contraband is a

necessary prerequisite to proving a defendant’s intent to control, and, thus,

his constructive possession.” Parrish, 191 A.3d at 37. Most significant, is

that, upon the officers clarifying what Whitaker meant by “my jawn”, Whitaker

told the officers it was his gun.2         Taking all of these facts together, we

conclude that the Commonwealth presented sufficient evidence to establish

that Whitaker had constructive possession of the firearm.

       Based upon the foregoing, we conclude that the evidence admitted at

trial, and all the reasonable inferences derived therefrom viewed in favor of

the Commonwealth as verdict winner, supports the trial court’s finding that

that the Commonwealth established all of the elements of persons not to

possess firearms beyond a reasonable doubt.

       Judgment of sentence affirmed.




____________________________________________


2 Because Whitaker clarified what he meant by the term “jawn” and admitted
to the officers it was “his gun”, we do not address his arguments regarding
the meaning of “jawn”.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/15/19




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