J-S23007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    TIMOTHY JOHN ANTHONY,

                             Appellant                No. 536 WDA 2018


       Appeal from the Judgment of Sentence Entered February 27, 2018
               In the Court of Common Pleas of Venango County
             Criminal Division at No(s): CP-61-CR-0000617-2016


BEFORE: BENDER, P.J.E., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 18, 2019

        Appellant, Timothy John Anthony, appeals from the judgment of

sentence of an aggregate term of 5-10 years’ incarceration, imposed following

his conviction for drug and firearm offenses. After careful review, we affirm.

        On April 6, 2016, Venango County Sheriff Eric Foy, Deputy Sheriff Ryan

Williams, and Deputy Sheriff Jeffrey Hollidge, Jr., along with Pennsylvania

State Troopers Adam Haun, Devin Seybert, and Bingman1 went to 1729

Meadville Road in Venango County to apprehend Appellant, who was barred

from that address pursuant to a protection from abuse order (hereinafter

“PFA”). N.T., 9/21/17, at 37, 51-52. Deputy Williams approached the front


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*   Retired Senior Judge assigned to the Superior Court.

1   Trooper Bingman’s first name is not mentioned in the record.
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door, knocked, and announced, “Sheriff’s Office” and “come to the door.” Id.

at 39. For the next several minutes, nobody answered. Id. at 39-40. Trooper

Bingman eventually used a battering ram to gain entry. Id. at 41. Soon

thereafter, Deputy Williams heard “a loud yell or scream from inside….” Id.

at 42.

         Trooper Haun was watching a side entrance to the home when he heard

Trooper Bingman breach the front door and the subsequent scream. Id. at

86. Trooper Haun then observed Appellant exiting the side entrance, wearing

nothing but a leather thong. Id. at 100. He was holding a “fake vagina” sex

toy in one hand, and a “pet rabbit”2 in the other. Id. at 87. Trooper Haun

ordered Appellant to the ground at gunpoint. Id. at 88. Appellant dropped

the sex toy and the rabbit, complied with the officer’s commands, and was

immediately taken into custody. Id. Trooper Haun later discovered a loaded

shotgun on the living room couch.3 Id. at 90-91. Three other firearms were

discovered in plain view throughout the house, two in another first-floor room,

and one in a second-floor bedroom. Id. at 91-92, 128.




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2   Trooper Haun verified that it was “a real rabbit.” Id. at 87.

3 Venus Nikole Anthony, who had sought the PFA against Appellant, and who
also resided at 1729 Meadville Road (but was not present when police detained
Appellant), provided written consent to a search of the premises after
Appellant’s arrest.




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       Following the seizure of these firearms and live marijuana plants from

Appellant’s home,4 the Commonwealth charged him with four counts of

possession of a firearm prohibited (“PFP”), 18 Pa.C.S. § 6105; and one count

each of the manufacture, delivery, or possession with intent to manufacture

or deliver, a controlled substance (“PWID”), 35 P.S. § 780-113(a)(30);

possession of drug paraphernalia, 35 P.S. § 780-113(a)(32); and conspiracy

to PWID, 18 Pa.C.S. § 903. Appellant negotiated a guilty plea to PWID, and

the Commonwealth nolle prossed the drug paraphernalia charge and withdrew

the conspiracy charge. A jury convicted Appellant of all firearm counts on

September 21, 2017. Subsequently, on February 26, 2018, the trial court

sentenced Appellant to concurrent terms of 5-10 years’ incarceration for each

PFP count, and to a concurrent term of 2-4 years’ incarceration for PWID.

Appellant filed a timely motion for reconsideration of his sentence, which the

trial court denied on March 19, 2018. He also timely filed a notice of appeal.

Appellant filed a timely, court-ordered Pa.R.A.P. 1925(b) statement on June

28, 2018, and the trial court issued its Rule 1925(a) opinion on July 24, 2018.

       Appellant now presents the following questions for our review:

        I.    Whether or not the evidence was insufficient to sustain the
              verdict[] of four counts of persons not to possess a firearm
              because the Commonwealth failed to prove beyond a
              reasonable doubt that Appellant had constructive
              possession of the four guns found at 1729 Meadville Road,
              Titusville, Pa.—both the power to control the guns and the
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4  The seizure of the marijuana plants was not the subject of any trial
testimony, as the charges related to that contraband were severed from the
firearm charges prior to trial.

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             intent to control the guns—when … Appellant was merely
             present at the residence on April 6, 2016?

      II.    Whether or not the trial court erred in allowing the
             Commonwealth to use the affidavit of probable cause in
             support of an alleged PFA violation as a prior consistent
             statement of Chief Deputy Danny J. Bimber, when Chief
             Bimber did not author the affidavit of probable cause and
             the statement was hearsay?

Appellant’s Brief at 3.

      In Appellant’s first claim, he asserts that there was insufficient evidence

to convict him of the four counts of PFP.      Specifically, he claims that the

Commonwealth lacked sufficient evidence that he constructively possessed

the firearms found in the home because the Commonwealth did not provide

testimony establishing that Appellant resided there. He argues:

      The Commonwealth did not present any testimony or offer
      evidence that … Appellant owned the residence and/or leased the
      residence. There was no evidence presented that … Appellant had
      a key to the residence, had utilities from the residence registered
      in his name, listed the residence on his personal identification such
      as his driver’s license, or presented any evidence that [he] was
      residing at the residence such as mail, documents in his name, or
      other indicia of evidence found during the search of the said
      residence.     Clearly, had … Appellant been residing at the
      residence, the search of the residence would have yielded bills in
      … Appellant’s name, utilities in … Appellant’s name, or other
      documents or indicia of [his] residing at that residence.

Id. at 14.

      Our standard of review of sufficiency claims is well-settled:

      A claim challenging the sufficiency of the evidence is a question of
      law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a reasonable
      doubt. Where the evidence offered to support the verdict is in
      contradiction to the physical facts, in contravention to human


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       experience and the laws of nature, then the evidence is insufficient
       as a matter of law. When reviewing a sufficiency claim[,] the court
       is required to view the evidence in the light most favorable to the
       verdict winner[,] giving the prosecution the benefit of all
       reasonable inferences to be drawn from the evidence.

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

citations omitted).

       A person is guilty of PFP if, having been previously convicted of a

criminal offense enumerated in Section 6105(b), he possesses, uses, controls,

sells, or transfers a firearm in the Commonwealth of Pennsylvania. 18 Pa.C.S.

§ 6105(a)(1). Appellant does not dispute that he was previously convicted of

an offense enumerated in Section 6105(b); instead, he challenges whether

the Commonwealth sufficiently proved that he constructively possessed the

aforementioned firearms.

       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 (Pa. Super. 2013) (cleaned

up).

       In its Rule 1925(a) opinion, the trial court concluded that there was

sufficient evidence supporting Appellant’s conviction on four counts of PFP.

Trial Court Opinion (“TCO”), 7/24/18, at 13-17. The court first addressed the

undisputed evidence that Appellant was previously convicted of an offense


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enumerated in Section 6105(b). Id. at 15. The court then detailed some of

the evidence demonstrating Appellant’s conscious dominion over the firearms

discovered. Id. at 15-16 (reciting Deputy Hollidge’s testimony that Appellant

was alone in the home; that he was seen in the living room immediately

following the breach of the door and before he fled out another exit; that a

loaded shotgun was on the couch in that living room next to a fresh plate of

spaghetti; and that two additional firearms were in the open in another nearby

room, leaning against the doorway area).

      The jury was free to infer that Appellant had both the power to control

these firearms, and the intent to exercise control over them in these

circumstances. This was not a situation where Appellant was merely present

at a location where firearms were discovered.      None of the cases cited by

Appellant, discussed below, supports his claims to the contrary.

      In Commonwealth v. Vargas, 108 A.3d 858 (Pa. Super. 2014), we

concluded that the evidence was sufficient to support a finding of constructive

possession of drugs and related paraphernalia where the defendant was found

alone in a hotel room and the at-issue contraband was “strewn about the

room.” Id. at 869.   We noted that testimony establishing that the room was

used as a drug manufacturing operation also dispelled the notion that he was

merely present therein, because it would be highly unlikely for the operators

of such an operation to allow the defendant to be there unless he was an

active participant in their illegal enterprise. Id. Thus, Vargas is unhelpful to

Appellant because 1) it involved substantially different circumstances than the

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present case; and 2) the Vargas Court concluded that the Commonwealth

had established the defendant’s constructive possession of the at-issue

contraband.

      In Commonwealth v. Boatwright, 453 A.2d 1058 (Pa. Super. 1982),

this Court held that there was insufficient evidence to convict the defendant

of constructive possession of a firearm discovered in the rear portion of a

vehicle, where the defendant was seated in the front seat of the automobile,

and a firearm was discovered on the left rear floor. However, “[i]n addition

to [Boatwright], the car was occupied by the driver and another passenger

who was seated in the left rear seat. The car was registered to the driver’s

girlfriend and the gun to one Darlene Simpson.” Id. at 1058–59. The only

evidence that Boatwright intended to exercise control of the firearm was the

fact that an officer observed him moving slightly in that direction, but the

“officer could not see [Boatwright]’s hand or arm, only a movement of his

body.” Id. at 1058. However, in the instant case, Appellant was alone in the

home where the firearms were discovered in plain view, one of which was

immediately next to warm food and a laptop where Appellant was most likely

seated immediately before the police breached the door. The critical issue in

Boatwright was whether the defendant had joint possession with the other

people in the immediate vicinity of the firearm in an automobile. Accordingly,

we conclude that the Boatwright decision is inapposite.

      Finally, Appellant also cites to Commonwealth v. Townsend, 237

A.2d 192 (Pa. 1968), but we find that case easily distinguishable from the

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instant matter as well. Townsend also concerned joint possession of firearms

located in an automobile.         Townsend was found in a car where multiple

firearms were discovered by police. Id. at 193-94. No evidence demonstrated

his intent to control the firearms beyond his mere presence in the vehicle,

which the Court deemed to be insufficient to demonstrate constructive

possession. Id. at 194-95. Thus, Townsend also fails to provide any support

for Appellant’s arguments. There was evidence in this case above and beyond

his mere presence in the home where the firearms were located.

       Appellant argues that there was no evidence of when his wife was last

in the home, suggesting that she may have left the plate of fresh spaghetti

near the firearm laying on the couch. This is rank speculation, and does not

undermine the jury’s ability to make the rational inference regarding

Appellant’s constructive possession of the firearms.    Appellant also argues

that the inferences applied to the shotgun in the living room do not extend to

the firearms found in an adjacent room, and even less so to the firearm

discovered upstairs. We disagree. The jury was free to infer that Appellant

was treating the home as his own,5 and was not merely visiting without


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5 Indeed, there was more evidence that this was Appellant’s home, and that
the PFA, served on him a day earlier, had compelled him to vacate the
premises. Appellant received the PFA at the Sheriff’s office, and informed
Chief Deputy Danny Bimber at that time that he “wasn’t going to leave the
house” because he had to take care of his dogs and rabbits. N.T., 9/21/17,
at 163-64. The jury could have reasonably concluded that Appellant was
found in his own home, despite having been legally barred from residing there,
and that the contents therein were within his constructive possession.

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knowledge of or intent to control the contents therein, especially given the

unique and arguably comical circumstances in which he was apprehended.

      Additionally, all four firearms were located in plain view, and the jury

was free to infer Appellant’s guilty conscience from the fact that he

immediately tried to flee when the door was breached by law enforcement.

See Commonwealth v. Logan, 184 A.2d 321, 323 (Pa. Super. 1962) (“Flight

is evidence of guilt, and in connection with other proof, may be the basis from

which guilt may be inferred.”).    Moreover, we also find that it would be

reasonable for the jury to infer from Appellant’s conscious dominion over the

firearm in the living room that he also exercised conscious dominion over the

remaining firearms, especially since they could have concluded that this house

was Appellant’s own home. See n.5, supra.

      Finally, as to testimony provided by defense witnesses that contradicts

the inferences and evidence discussed above, the jury was free to disbelieve

their testimony and, furthermore, this Court is “required to view the evidence

in the light most favorable to the verdict winner” when considering a challenge

to the sufficiency of the evidence. Widmer, 744 A.2d at 751. For all the

aforementioned reasons, we conclude that there was sufficient evidence to

convict Appellant on all four counts of PFP.

      Next, Appellant argues that the trial court erred in allowing the

Commonwealth to use the affidavit of probable cause in support of an alleged

PFA violation as a prior consistent statement by Chief Bimber, because Chief

Bimber did not author the affidavit and it was therefore inadmissible hearsay,

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and because it was not actually a prior consistent statement in the context in

which it was admitted. We agree with the Commonwealth that this issue was

not specifically raised in Appellant’s Rule 1925(b) statement, see Pa.R.A.P.

1925(b) Statement, 6/28/18, at 2-3, ¶¶ 8-12, and, therefore, it is waived.

See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues

not raised in a 1925(b) statement will be deemed waived.”). In Appellant’s

Rule 1925(b) statement, he raised the claim that details related to the PFA

(which presumably includes the affidavit at issue) were inadmissible due to a

pre-trial ruling that such information constituted evidence of a prior bad act.

However, he did not raise the specific claim that any such information relating

to the PFA remained inadmissible when used as rebuttal to Appellant’s cross-

examination of Chief Bimber.     As these issues are clear and distinct, and

because the issue raised by Appellant in his brief was not preserved in his Rule

1925(b) statement, we are compelled to find that it has been waived.

      Judgment of sentenced affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/2019




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