J-S17021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: T.W., A MINOR                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: T.W., A MINOR,

                            Appellant                 No. 733 WDA 2014


               Appeal from the Dispositional Order April 7, 2014
              In the Court of Common Pleas of Allegheny County
                      Juvenile Division at No(s): 1409-98


BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED MAY 1, 2015

       Appellant, T.W., appeals from the April 7, 2014 dispositional order

entered by the Allegheny County Court of Common Pleas. Although we find

Appellant’s challenge to the sufficiency of the evidence lacking in merit, we

remand to give Appellant the opportunity to file a post-dispositional motion

nunc pro tunc challenging the weight of the evidence.

       The juvenile court summarized the facts of the case, as follows:

       Homestead Police Officers were conducting surveillance of a
       house known to be the sales location for a specific brand of
       stamped heroin called AR15. Trial Transcript 04/01/2014 pp.
       10-11. The officers obtained information from two separate
       sources that an individual by the name of Dorian Richardson
       Serrano, the subject of an eventual search warrant, was selling
       heroin out of that same house. Id. at 10, 35. The officers
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S17021-15


     obtained a search warrant and executed said warrant on
     February 10, 2014 at approximately 4:00 p.m. at the known
     heroin location.     Id. at 12.    Several officers knocked and
     announced their presence at the house. When there was no
     response, one officer breached the door with the batting [sic]
     ram. Id. at 13, 74. The officers went into the house and began
     questioning the female sitting in the living room. They then
     began to search the house while calling out “police” and “search
     warrant.” From the search, it was unclear who lived in the
     house. Id. at 43. Officer Matt Fusco was the first or second
     officer into the house where Appellant was located while Officer
     Ronald DePelligrin was behind Officer Fusco when entering the
     house and subsequently the back bedroom. Both officers saw
     four male juveniles in the back bedroom of the house, one being
     Appellant. Id. at 14-16, 47. Officer Fusco saw what was later
     determined to be a replica or BB gun lying on the floor in the
     middle of the room, thus he did not enter the room right away,
     but remained in the doorway. When Officer Fusco looked into
     the room one individual was sitting in the middle of the bed, one
     individual was sitting in the corner of the room, both with their
     hands raised upon seeing Officer Fusco and Appellant and his co-
     defendant were sitting on the edge of the bed leaning into the
     closet, both with at least one hand in the closet. Both Appellant
     and his co-defendant were bending down near the bottom of the
     closet moving their arms back and forth in a motion consistent
     with moving items. Id. at 52, 54-56, 79. Officer Fusco ordered
     Appellant and his co-defendant to put their hands up and they
     complied. The officers secured or detained the males in the
     room and then they were handcuffed and moved from the
     bedroom one by one. Officer DePelligrin searched the closet and
     Officer Fusco searched the other side of the small bedroom. Id.
     at 16, 49, 64. Officer DePelligrin found 6.21 grams of heroin
     and drug paraphernalia on the bottom of the closet, towards the
     top of the items in the closet, but settled down a bit. Id. at 21-
     23, 27, 70. A .38 Special caliber Ruger revolver, a .380 auto
     caliber Bersa pistol and a “magazine,” and four .380 caliber
     cartridges were also found in the bottom of the closet and were
     in plain view to Officer Fusco. The firearms were both found to
     be in good operating condition. Id. at 60, 67-68.

Juvenile Court Opinion, 9/19/14, at 2–4.




                                   -2-
J-S17021-15


           A juvenile petition filed on February 13, 2014, charged Appellant with

one count of receiving stolen property, two counts of carrying a firearm

without a license, one count of possession of heroin, one count of possession

with intent to deliver heroin, and three counts of criminal conspiracy. The

juvenile court held a delinquency hearing for Appellant and his co-defendant,

R.P., on April 1, 2014. Appellant was adjudicated delinquent of one count of

carrying a firearm without a license and one count of possession of heroin,

and disposition was deferred.

           On April 7, 2014, the juvenile court held a dispositional hearing

following which Appellant was ordered to remain committed to the

McKeesport Community Intensive Supervision Program (“CISP”).1               That

same day, privately retained counsel withdrew. The juvenile court appointed

new counsel, who filed a timely notice of appeal to this Court on May 7,

2014. Both Appellant and the juvenile court complied with Pa.R.A.P. 1925.

           Appellant presents two issues for our review:

      I.     Whether the evidence presented at trial by the
             Commonwealth was insufficient to establish, beyond a
             reasonable doubt that the Appellant was delinquent of
             Carrying a Firearm with [sic] a License and Possession of a
             Controlled substance?

     II.     Whether the adjudication of delinquency was against the
             weight of the evidence presented at trial?

Appellant’s Brief at 3.
____________________________________________


1
    Appellant had been committed to CISP on March 17, 2014.



                                           -3-
J-S17021-15


       Our standard of review of dispositional orders in juvenile proceedings

is settled.   The Juvenile Act grants broad discretion to juvenile courts in

determining appropriate dispositions. In re C.A.G., 89 A.3d 704, 709 (Pa.

Super. 2014). Indeed, the Superior Court will not disturb the lower court’s

disposition absent a manifest abuse of discretion. In the Interest of J.D.,

798 A.2d 210, 213 (Pa. Super. 2002).

       Appellant first argues that there was insufficient evidence to find that

he committed the delinquent acts of carrying a firearm without a license and

possession of heroin. Appellant’s Brief at 10. Specifically, Appellant alleges

that the Commonwealth failed to provide sufficient evidence that Appellant

carried an unlicensed firearm on his person and failed to establish that he

had dominion or control of the heroin to support a finding of constructive

possession. Id. at 9.2 We will address these arguments in reverse order.

       In evaluating a challenge to the sufficiency of the evidence supporting

an adjudication of delinquency, our standard of review is as follows:

              When a juvenile is charged with an act that would
       constitute a crime if committed by an adult, the Commonwealth
       must establish the elements of the crime by proof beyond a
       reasonable doubt.       When considering a challenge to the
       sufficiency of the evidence following an adjudication of
____________________________________________


2
   While the concise statement Appellant filed pursuant to Pa.R.A.P. 1925 is
lacking in particularity regarding the sufficiency of the evidence supporting
the conviction for possession of heroin, we conclude that the issue is
sufficiently suggested thereby, and we do not find the claim waived. Concise
Statement of Matters Complained of on Appeal Pursuant to Pa.R.[A.]P.
1925(b), 5/21/14, at 3.



                                           -4-
J-S17021-15


     delinquency, we must review the entire record and view the
     evidence in the light most favorable to the Commonwealth.

            In determining whether the Commonwealth presented
     sufficient evidence to meet its burden of proof, the test to be
     applied is whether, viewing the evidence in the light most
     favorable to the Commonwealth and drawing all reasonable
     inferences therefrom, there is sufficient evidence to find every
     element of the crime charged. The Commonwealth may sustain
     its burden of proving every element of the crime beyond a
     reasonable doubt by wholly circumstantial evidence.

           The facts and circumstances established by the
     Commonwealth need not be absolutely incompatible with a
     defendant’s innocence. Questions of doubt are for the hearing
     judge, unless the evidence is so weak that, as a matter of law,
     no probability of fact can be drawn from the combined
     circumstances established by the Commonwealth.

In re V.C., 66 A.3d 341, 348-349 (Pa. Super. 2013) (quoting In re A.V., 48

A.3d 1251, 1252–1253 (Pa. Super. 2012)).            The finder of fact is free to

believe some, all, or none of the evidence presented. Commonwealth v.

Gainer, 7 A.3d 291, 292 (Pa. Super. 2010).

     We address Appellant’s contention that the evidence was insufficient to

support his conviction of possession of heroin.       We note that because the

heroin was not found on Appellant’s person, the Commonwealth was

required   to   prove   constructive   possession    to   establish   the   offense.

Commonwealth v. Estepp, 17 A.3d 939, 944 (Pa. Super. 2011).

     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.

                                       -5-
J-S17021-15


      To aid application, we have held that constructive possession
      may be established by the totality of the circumstances.

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012) (internal

quotation marks and citation omitted).      Additionally, it is possible for two

people to have joint constructive possession of an item of contraband.

Commonwealth v. Hopkins, 67 A.3d 817, 820–821 (Pa. Super. 2013).

Appellant posits that he did not have constructive possession of the heroin

found in the closet.   For the reasons that follow, our review of the record

compels the contrary conclusion.

      Appellant contends that the instant case is “factually more analogous”

to Commonwealth v. Valette, 613 A.2d 548 (Pa. 1992). Appellant’s Brief

at 15. In truth, Valette is factually dissimilar to the instant case. There,

the appellant was sitting in the living room when police entered to execute a

search warrant.   In a second-floor bedroom of the two-floor apartment,

police discovered a closed briefcase hidden beneath floorboards containing

283 grams of cocaine, a sifter, plastic bags, and a cellular telephone. Police

found identification for other individuals in the apartment, but found none

for the appellant. Nothing incriminating was found within the room where

the appellant was situated at the time of the raid, and no contraband was

found on his person.    Id. at 549.   Thus, we reject Appellant’s suggestion

that Valette supports his position.

      In the present case, Appellant was with three other male juveniles in a

bedroom on the first floor of a converted house in Homestead, Pennsylvania,

                                      -6-
J-S17021-15


when police executed a search warrant based on drug activity previously

observed at the residence.       N.T., 4/1/14, at 10–11.    Homestead Police

Officer Ronald DePelligrin testified that he and six other police officers

executed the warrant on February 10, 2014.          Id. at 6, 12.   Homestead

Detective Matt Fusco testified that two of the juveniles were brothers who

resided at the house and were known to him. Id. at 50, 52. The other two

juveniles in the room were Appellant and R.P., Appellant’s co-defendant, and

they did not live at the house.     Id. at 50–53.     Appellant and R.P. were

leaning into the closet, bent down to the floor, with their heads, torsos, and

right arms in the closet.     Id. at 55–58.   Appellant’s right arm up “to his

bicep[]” was in the closet.    Id. at 58.   Their arms were moving back and

forth in the bottom of the closet making motions consistent with an attempt

to conceal items in the clothes and other objects strewn across the closet

floor. Id. at 18, 54, 59. In comparison, the other two males already had

their hands up when Officer Fusco entered the bedroom. Id. at 52.

      Officer DePelligrin searched the left half of the room, which included

the closet, and Detective Fusco searched the right half, which included the

bed. N.T., 4/1/14, at 17, 60. Amidst the clutter on the closet floor, Officer

DePelligrin found two firearms on the left side and two bundles of heroin

toward the center. Id. at 18.

      Viewing the evidence in the light most favorable to the Commonwealth

as verdict winner, it can be inferred that Appellant and his companions heard


                                     -7-
J-S17021-15


the commotion caused by the police breaking in the door and shouting that

they were executing a search warrant.      It also can be reasonably inferred

that Appellant and R.P. were attempting to secrete the drugs when police

arrived at the bedroom door and observed them with their arms in the closet

making motions consistent with hiding something.          This raises a clear

inference of constructive possession, as it demonstrated Appellant’s ability to

exercise conscious control or dominion over the illegal substance and the

intent to exercise that control. Commonwealth v. Johnson, 26 A.3d 381,

1093–1094 (Pa. 2011) (intent to maintain conscious dominion may be

inferred from totality of the circumstances).

      The juvenile court analyzed the evidence and found that it supported

the conclusion “that Appellant and his co-defendant had equal access and

control over the contraband . . . .”   Juvenile Court Opinion, 9/19/14 at 6.

The juvenile court continued, “The Commonwealth offered a lab report

identifying what was found in that closet as heroin.             Further, the

Commonwealth proved Appellant’s constructive possession of the heroin

through his access and proximity to the heroin and his movements

demonstrating both intent and ability to assert control over the controlled

substance.”   Id.   We agree with the juvenile court and reject Appellant’s

claim.

      We next address Appellant’s argument that there is insufficient

evidence of record to support his conviction of carrying a firearm without a


                                     -8-
J-S17021-15


license.    The pertinent statutory provision of the Pennsylvania Uniform

Firearms Act provides, in relevant part, as follows:

      § 6106. Firearms not to be carried without a license

      (a) Offense defined.--

           (1) Except as provided in paragraph (2) [irrelevant to the
           instant case], 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 of the third
           degree.

18 Pa.C.S. § 6106(a)(1).

      Pursuant to 18 Pa.C.S. § 6106(a)(1), the Commonwealth was required

to establish that either Appellant carried a firearm in a vehicle; or carried a

firearm concealed on or about his person when he was not in his home or

place of business; and that he did not have a license to carry a firearm.

Appellant challenges only the Commonwealth’s alleged failure to prove “that

the firearm[] [was] concealed on or about his person.” Appellant’s Brief at

11–12.

      Utilizing the same constructive-possession analysis it advanced in

support of Appellant’s claim that insufficient evidence supported his

conviction for possession of heroin, the juvenile court found as follows:

            The Commonwealth proved, at trial, through the credible
      testimony of the police officers and the admitted lab reports that
      the weapons found in the closet of the bedroom were operable
      firearms capable of firing the ammunition for which it was
      manufactured. Trial testimony also supported that Appellant
      was not the age of majority, and thus could not have a license to

                                      -9-
J-S17021-15


       the firearms found in the bedroom closet. Further, it was
       determined through testimony that at least one of the weapons
       was stolen.     Because the weapons were not found on the
       Appellant’s person, the Commonwealth argued that there was
       constructive possession, or that Appellant had both the intent
       and ability to control the firearm.

Juvenile Court Opinion, 9/19/14, at 4–5. The juvenile court found that “the

surrounding facts strongly support[ed]” its conclusion that Appellant had

constructive possession of the firearm. Id. at 6.

       The juvenile court relied on Commonwealth v. Smith, 392 A.2d 727

(Pa. Super. 1978), to support its constructive-possession conclusion.3     In

Smith, the defendant secreted a loaded pistol and drugs in a bag on a public

street. The paper bag was merely “in proximity” to the appellant, in that it

was on the pavement where the appellant was standing.          The arresting

officer observed the appellant bend down near his left foot and then resume

a standing position.         We concluded that this testimony “convincingly

demonstrated the requisite power and intent to control the contraband upon

which the convictions are based.” Id. at 729.

       In the case sub judice, the firearm, without doubt, was not found in a

vehicle. It also is not disputed that the apartment was not Appellant’s place

of abode, the gun indeed was a firearm, and due to Appellant’s minority, he
____________________________________________


3
   We acknowledge that the conviction in Smith was pursuant to the now-
repealed statute of carrying a firearm in public without a license.
Nevertheless, the court’s analysis in that case is relevant to demonstrate the
requisite power and intent to control the contraband upon which the
convictions were based. Id. at 729.



                                          - 10 -
J-S17021-15


could not possess a license for a firearm. Thus, the remaining words of the

statute required proof that Appellant concealed the firearm on or about his

person.   18 Pa.C.S. § 6106(a)(1)(emphasis added).        Merriam–Webster’s

Dictionary defines “about” as “reasonably close to” and “in the vicinity.”

Merriam–Webster's        Online       Dictionary,       http://www.merriam-

webster.com/dictionary/about.      Webster’s    New   Universal   Unabridged

Dictionary defines “about” as “near; close to.”     Webster’s New Universal

Unabridged Dictionary 6 (1996). The Commonwealth’s demonstration that

Appellant constructively possessed the firearms by showing his ability to

exercise conscious control or dominion over them and the intent to exercise

that control is sufficient to prove the weapons were concealed “about the

person” as required by 18 Pa.C.S. § 6106.

     In interpreting statutes, this Court has established, “When the

language of a statute is clear and unambiguous, it must be given effect in

accordance with its plain and common meaning.”           Commonwealth v.

Ostrosky, 866 A.2d 423, 427 (Pa. Super. 2005) (citation omitted); 1

Pa.C.S. § 1903(a). In Commonwealth v. Lopez, 663 A.2d 746 (Pa. Super.

1995), we reiterated our Supreme Court’s admonition that the word “or”

occurring in a statute must be given its ordinary meaning unless such a

construction would give a result which is absurd, impossible of execution,

highly unreasonable, or tending to nullify the legislative intent. Id. at 749.

See also Commonwealth v. Diodoro, 970 A.2d 1100, 1107 (Pa. 2009)


                                    - 11 -
J-S17021-15


(statute utilizing disjunctive “or” was purposeful use by General Assembly,

and the terms so connected “were meant to have different applications.”).

      Here, the Commonwealth presented evidence showing that Appellant

had both the power to control the firearm and intent to exercise that control

through the testimony of Officer DePelligrin and Detective Fusco.            The

officers observed Appellant and R.P. with their arms in the closet making

motions consistent with hiding something. This raised a clear inference of

constructive possession, as it demonstrated Appellant’s ability to exercise

conscious control or dominion over the illegal substance and the intent to

exercise that control. Johnson, 26 A.3d at 1093–1094 (intent to maintain

conscious dominion may be inferred from totality of the circumstances).

Thus, we agree with the juvenile court that there was sufficient evidence to

support Appellant’s adjudication for carrying a firearm without a license.

      Appellant’s final issue assails the weight of the evidence. He contends

that the trial court abused its discretion when it concluded that aspects of

Appellant’s testimony were not credible.       This Court applies the same

standard for reviewing weight-of-the-evidence claims in juvenile cases as

those involving adults. In re R.N., 951 A.2d 363, 370 (Pa. Super. 2008),

called into question on other grounds, In re J.B., 106 A.3d 76 (Pa. 2014).

      An allegation that the verdict is against the weight of the evidence is

addressed to the discretion of the trial court.          Commonwealth v.

Ramtahal, 33 A.3d 602, 609 (Pa. 2011).        “An appellate court, therefore,


                                    - 12 -
J-S17021-15


reviews the exercise of discretion, not the underlying question whether the

verdict is against the weight of the evidence.” Id. at 609. A weight-of-the-

evidence claim is waived for failure to raise the issue in the trial court.

Pa.R.Crim.P. 607(A); Commonwealth v. Thompson, 93 A.3d 478, 490

(Pa. Super. 2014) (quoting Commonwealth v. Lofton, 57 A.3d 1270, 1273

(Pa. Super. 2012)).

      While Pa.R.Crim.P. 607(A) specifies that weight-of-the-evidence claims

in criminal proceedings are waived unless they are raised with the trial court

in a motion for a new trial, “the Pennsylvania Rules of Juvenile Procedure

have no counterpart requiring the same manner of preservation.”          In re

J.B., 106 A.3d 76, 91 (Pa. 2014).      Indeed, “the current Rules of Juvenile

Court Procedure—which ‘govern delinquency proceedings in all courts’—are

utterly silent as to how a weight of the evidence claim must be presented to

the juvenile court so that it may rule on the claim in the first instance, which

is . . . a necessary prerequisite for appellate review.”   Id. at 98 (footnote

omitted).   Pa.R.J.C.P. 620(A)(2), governs the filing of what it expressly

designates as an “optional post-dispositional motion.” See Pa.R.J.C.P.

620(A)(2) (“Issues raised before or during the adjudicatory hearing shall be

deemed preserved for appeal whether or not the party elects to file a post-

dispositional motion on those issues.”).

      Similarly to the juvenile in In re J.B., Appellant in the case sub judice

“faced procedural rules that made optional the filing of a post-dispositional


                                     - 13 -
J-S17021-15


motion, and which did not otherwise specify how a weight of the evidence

claim was to be presented in the first instance to the juvenile court in order

to preserve it for appellate review.” In re J.B., 106 A.3d at 98. Also, as did

the juvenile in J.B., Appellant herein presented his weight-of-the-evidence

claim to the trial court by first raising it in his Pa.R.A.P. 1925(b) statement.

Id. Just as the juvenile court did in In re J.B., the instant juvenile court

considered Appellant’s weight-of-the-evidence claim and ruled on it in the

Pa.R.A.P. 1925(a) opinion. Trial Court Opinion, 9/19/14, at 7–8. However,

our Supreme Court held in In re J.B.:

            In sum, because we conclude that finding J.B.’s weight of
      the evidence claim to be waived under these circumstances
      would be manifestly unjust—a state of affairs our Court
      recognized in [Commonwealth v.] Widmer, [689 A.2d 211,
      212 (1997)] was unacceptable—principles of fundamental justice
      and sound reason counsel that our Court take the same prudent
      path in the instant matter, and remand this matter to the
      juvenile court to allow J.B. to file a post-dispositional motion
      nunc pro tunc.

In re J.B., 106 A.3d at 99.

      In the present case, Appellant did not file an optional post-disposition

motion pursuant to Pa.R.J.C.P. 620 alleging that the verdict was against the

weight of the evidence. Despite this omission, the juvenile court considered

the claim in its Pa.R.A.P. 1925(a) opinion.     The Commonwealth, although

acknowledging the language and holding of In re J.B., suggests that since

the juvenile court herein addressed the issue, this Court should address it as

well. As noted above, however, our Supreme Court considered this very fact


                                     - 14 -
J-S17021-15


in In re J.B. but concluded that the matter must be remanded to the

juvenile court to allow the juvenile to file a post-dispositional motion nunc

pro tunc. In re J.B., 106 A.3d at 99. Although we recognize the inherent

redundancy of such an approach because the juvenile court has already

addressed the weight of the evidence in its Pa.R.A.P. 1925(a) opinion, we

are compelled by controlling precedent to do the same.

      Therefore, we conclude the evidence of record was sufficient to

support Appellant’s adjudication of delinquency with regard to possession of

heroin and carrying a firearm without a license. We remand to the juvenile

court, however, to allow Appellant to file a post-dispositional motion nunc

pro tunc.

      Case remanded for proceedings consistent with this Memorandum.

Jurisdiction is relinquished.

      P.J. Gantman joins the memorandum.

      Justice Fitzgerald concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2015




                                     - 15 -
