J-S49003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    LARRY E. SMITH,                            :
                                               :
                      Appellant                :   No. 549 WDA 2016

             Appeal from the Judgment of Sentence March 18, 2016
                 In the Court of Common Pleas of Blair County
               Criminal Division at No.: CP-07-CR-0001415-2014

BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD J.*

MEMORANDUM BY DUBOW, J.:                            FILED SEPTEMBER 12, 2017

        Appellant, Larry E. Smith, appeals from the Judgment of Sentence

entered in the Blair County Court of Common Pleas, following his conviction

after a jury trial for Persons Not to Possess Firearms.1       He challenges the

sufficiency of the evidence. After careful review, we affirm.

        The relevant facts, as gleaned from the certified record, are as follows.

The instant charges stemmed from the Pennsylvania State Police’s seven-

month investigation into Appellant’s suspected drug activity with co-

conspirator Gary Williams.         Police used a confidential informant (“CI”) to

conduct several controlled buys of narcotics from Appellant and Williams.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6105.
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      On May 8, 2014, police conducted a final controlled buy of narcotics at

the CI’s residence. Before the controlled buy of narcotics with the CI, police

observed Appellant and Williams exit 1818 15th Avenue in Altoona,

Pennsylvania, as they had on numerous prior occasions.          Police arrested

Appellant and Williams after the controlled buy with the CI. Police recovered

$500 of prerecorded buy money from Appellant and a key to the second-

floor apartment at 1818 15th Avenue.

      Police obtained and executed a search warrant for Appellant’s

apartment at 1818 15th Avenue.      Police found marijuana packaged in the

same manner as marijuana obtained during all of the previous controlled

buys, codeine-laced cough syrup, cocaine, heroin, unused baggies for

packaging, a digital scale, “a fake can” for hiding items, $1990 in U.S.

currency, and a Sig Sauer 9mm pistol.        Police recovered all of the drugs,

distribution paraphernalia, and the firearm from common areas of the

apartment.

      Pennsylvania   State   Trooper    Steven   Peterson   testified   that   he

participated in executing the search warrant at Appellant’s apartment and

found the 9mm Sig Sauer pistol in the pocket of Lucky brand blue jeans in a

large pile of clothing bags located in a common hallway area in the

apartment.    Police also discovered mail addressed to both Appellant and

Williams within the apartment.




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       The Commonwealth charged Appellant with numerous drug-related

offenses, as well as Persons Not to Possess Firearms. Appellant litigated a

Motion to Suppress the evidence recovered during the May 8, 2014 search of

the apartment, which the suppression court denied. On July 29, 2015, the

trial court granted Appellant’s Motion to Sever the instant firearm charge

from the drug-related offenses.2

       Appellant proceeded to a jury trial.      Appellant filed a Motion for

Judgment of Acquittal after the Commonwealth rested its case-in-chief, and

renewed the Motion after the close of evidence, which the trial court denied.

On December 18, 2015, a jury convicted Appellant of Persons Not to Possess

Firearms following a two-day jury trial. The trial court imposed a term of

four to ten years’ imprisonment for Appellant’s firearm conviction.

       Appellant filed a timely Notice of Appeal on April 15, 2016.          Both

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

       Appellant presents the following issue for our review:

       Whether the [t]rial [c]ourt erred by denying Appellant’s Motion
       for Judgment of Acquittal because the testimony and evidence
       presented during the two (2) day criminal trial was insufficient to
       establish each material element of the crime charged and the
       commission thereof by [Appellant] beyond a reasonable doubt.

____________________________________________


2
  A jury convicted Appellant of the drug-related offenses, and the trial court
imposed a term of 9½ to 19 years’ imprisonment. This Court affirmed
Appellant’s Judgment of Sentence on December 9, 2016. Commonwealth
v. Smith, No. 1802 WDA 2015 (Pa. Super. filed Dec. 9, 2016) (unpublished
memorandum).



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Appellant’s Brief at 4.

      “A motion for judgment of acquittal challenges the sufficiency of the

evidence to sustain a conviction on a particular charge, and is granted only

in cases in which the Commonwealth has failed to carry its burden regarding

that charge.” Commonwealth v. Abed, 989 A.2d 23, 26 (Pa. Super. 2010)

(citations omitted).      Appellant challenges the sufficiency of the evidence

supporting his firearm conviction.

      We review claims regarding the sufficiency of the evidence by

considering whether, “viewing all the evidence admitted at trial in the light

most favorable to the verdict winner, there is sufficient evidence to enable

the fact-finder to find every element of the crime beyond a reasonable

doubt.”   Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014)

(citation and quotation omitted).      Further, a conviction may be sustained

wholly on circumstantial evidence, and the trier of fact—while passing on the

credibility of the witnesses and the weight of the evidence—is free to believe

all, part, or none of the evidence.          Id. at 40 (citation and quotation

omitted). In conducting this review, the appellate court may not weigh the

evidence and substitute its judgment for the fact-finder.        Id. at 39-40

(citation and quotation omitted).

      The trial court found Appellant guilty of the firearms offense codified at

18 Pa.C.S. § 6105(a)(1).       Section 6105, Persons Not to Possess Firearms

provides, in relevant part, that “[a] person who has been convicted of an


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offense enumerated in subsection (b) . . . shall not possess, use, control,

sell, transfer or manufacture or obtain a license to possess, use, control,

sell, transfer or manufacture a firearm in this Commonwealth.” 18 Pa.C.S. §

6105(a)(1).

       Appellant     specifically   challenges       the     evidence     supporting     the

possession     element      of   this    offense.      Appellant        argues    that   the

Commonwealth failed to present sufficient circumstantial evidence to

establish that Appellant constructively possessed the firearm.3                  Appellant’s

Brief at 14-19. Thus, we limit our analysis to this element only.4

       This Court has held that “[p]ossession can be found by proving actual

possession, constructive possession, or joint constructive possession.”

Commonwealth v. Heidler, 741 A.2d 213, 215 (Pa. Super. 1999). Where

a defendant is not in actual possession of the recovered firearm, the

Commonwealth        must     establish    that   the       defendant    had   constructive

possession to support the conviction.               Commonwealth v. Hopkins, 67

A.3d 817, 820 (Pa. Super. 2013). “Constructive possession is a legal fiction,

a pragmatic construct to deal with the realities of criminal law enforcement.”
____________________________________________


3
  We note that the Commonwealth did not argue that Appellant actually
possessed the firearm.     N.T. Trial, 12/18/15, at 17.        Rather, the
Commonwealth relied on a theory of joint constructive possession. Id.
4
  Appellant concedes that “[t]here was ample testimony proffered by the
Commonwealth to show that [Appellant] is in the class of individuals who is
not to own a firearm.” Appellant’s Brief at 14 (citing N.T. Trial, 12/17/15, at
37-39).



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Id. (citation and quotation omitted).                “We have defined constructive

possession as conscious dominion.”             Id. (citation and quotation omitted).

“We subsequently defined conscious dominion as the power to control the

contraband and the intent to exercise that control.”                    Id. (citation and

quotation omitted).        “To aid application, we have held that constructive

possession may be established by the totality of the circumstances.”                      Id.

(citation and quotation omitted).

      It is well established that, “[a]s with any other element of a crime,

constructive     possession     may     be    proven    by      circumstantial   evidence.”

Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996) (citation

omitted)..      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 weapon.                  See, e.g., Commonwealth v.

Davis, 743 A.2d 946, 953-54 (Pa. Super. 1999) (holding evidence was

sufficient to prove constructive possession over drugs found in common

areas of apartment where defendant entered apartment using his own key,

possessed $800 in cash on his person, and police recovered defendant’s

identification    badge,    size-appropriate        clothing,     and   firearms   from    a

bedroom).

      It   is    insufficient   to    infer    “dominion     and     control”    when     the

Commonwealth only provides evidence of the defendant’s presence.                        See

Commonwealth v. Valette, 613 A.2d 548, 551 (Pa. 1992) (holding mere


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presence at a place where contraband is found or secreted is insufficient

standing alone to prove constructive possession).        Moreover, 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.

Id. “It is well settled that facts giving rise to mere ‘association,’ ‘suspicion’

or ‘conjecture,’ will not make out a case of constructive possession.” Id.

      Here, the trial court summarily concluded that the evidence was

sufficient to support Appellant’s conviction for Persons Not to Possess

Firearms.   Trial Court Opinion, filed 1/27/16, at 4-5.     After reviewing the

record and case law, we agree with the trial court’s conclusion.

      The extensive testimony about the lengthy investigation showed

Appellant and Williams were engaged in an ongoing drug distribution scheme

based out of their shared apartment at 1818 15th Avenue.                     The

Commonwealth established that Appellant frequently entered and exited this

apartment, that Appellant had his own key to the apartment, and that

Appellant had mail addressed to him at 1818 15th Avenue inside the

apartment. Appellant also had a cashable check inside the apartment.

      From this evidence, it was reasonable for the jury to infer that

Appellant exercised dominion and control over the apartment itself, as well

as the numerous items in the common areas of the apartment.            Since the

police found the firearm in the jeans lying in a pile of clothing bags in the

hallway of the apartment, the jury could reasonably infer that Appellant


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exercised dominion and control over the gun as well. See Davis, supra at

953-54.        Accordingly, we conclude that the Commonwealth presented

sufficient circumstantial evidence to establish that Appellant constructively

possessed the firearm.

      Appellant argues that the jury erroneously concluded that he exercised

dominion and control over the gun because the police recovered the gun in a

shared hallway closer to his co-conspirator’s room and the defense witness

testified that he brought the firearm into the apartment without Appellant’s

knowledge. This argument ignores our standard of review. We must view

all of the evidence in the light most favorable to the Commonwealth as

verdict winner and we may not reweigh the evidence and substitute our

judgment for that of the fact-finder. See Melvin, supra at 39-40.

      Viewing the totality of the evidence in the light most favorable to the

Commonwealth as the verdict winner, it is clear that the Commonwealth

proved each element of Section 6105.       Appellant’s sufficiency challenge,

thus, fails.

      Judgment of Sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2017




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