J-S78024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CODY RUBINOSKY

                            Appellant                  No. 274 WDA 2016


            Appeal from the Judgment of Sentence January 26, 2016
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002253-2015


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                            FILED FEBRUARY 14, 2017

        Cody Rubinosky appeals from the judgment of sentence entered

January 26, 2016, in the Erie County Court of Common Pleas. On November

20, 2015, a jury convicted Rubinosky of one count of persons not to

possess, use, manufacture, control, sell or transfer firearms, one count of

firearms not to be carried without a license, and one count of false

identification to law enforcement authorities.1        The court imposed an

aggregate sentence of 60 to 120 months’ incarceration. The sole issue on

appeal is a challenge to the sufficiency of the evidence with respect to his

two firearms convictions. After a thorough review of the submissions by the
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), and 4914(a).
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parties, the certified record, and relevant law, we affirm the judgment of

sentence.

     The trial court set forth the factual history as follows:

            On July 27th, 2015, Pennsylvania State Troopers Joshua
     Zeigler and Jonathan Casey were patrolling around the area of
     Peach Street and Downs Drive, in full uniform and in a marked
     patrol vehicle, when they initiated a traffic stop on a dark-
     colored 2003 Cadillac sedan with an expired registration. The
     traffic stop was initiated in the northeast corner of the Walmart
     parking lot. Upon initiating the traffic stop, the driver, later
     identified as James Bigley, and the front seat passenger, later
     identified as Christine Kennell[e]y, stayed with the vehicle, but
     the backseat passenger, later identified as Appellant Cody
     Rubinosky, quickly exited the vehicle and “made a beeline,” i.e.
     walked briskly, towards Walmart. Trooper Casey went after
     [Rubinosky], while Trooper Zeigler remained with Mr. Bigley and
     Ms. Kennell[e]y. Trooper Casey shouted “State Police!” multiple
     times to [Rubinosky], who did not stop, and upon reaching
     [Rubinosky] informed him “he [Rubinosky] was involved in the
     traffic stop” and had to return to the vehicle.           Initially,
     [Rubinosky] did not comply and related to Trooper Casey “the
     only things that belong to him [Rubinosky] were on his person
     and nothing in that vehicle belonged to him [Rubinosky].”

            While Trooper Casey was speaking with [Rubinosky],
     Trooper Zeigler spoke with Mr. Bigley and Ms. Kennell[e]y.
     Trooper Zeigler noticed “track marks” on Mr. Bigley’s and Ms.
     Kennell[e]y’s arms and asked if there was anything illegal in the
     vehicle, to which they responded there was drug paraphernalia
     in the vehicle. This gave Trooper Zeigler probable cause to
     initiate a search. When Trooper Casey brought [Rubinosky] back
     to the vehicle, [Rubinosky] was “extremely irate an acting kind
     of indignant.” While Mr. Bigley and Ms. Kennell[e]y had a “calm
     demeanor,” [Rubinosky] was “real upset, trying to distance
     himself from the vehicle and obviously indicating ‘nothing in the
     vehicle belonged to him.’” Both troopers noticed a dark-colored
     or black backpack located in the back seat of the vehicle where
     [Rubinosky] had been seated. Based upon the information
     Trooper Zeigler received from Mr. Bigley and Ms. Kennell[e]y
     regarding drug paraphernalia in the vehicle, Trooper Zeigler
     “obtained probable cause to search the vehicle, which was

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      related to Trooper Casey,” but did not conduct the probable
      cause search of the vehicle himself. Along with various forms of
      drug paraphernalia, a Stallard Arms JS-9 9mm firearm was
      found in the backpack that was positioned in the middle rear of
      the vehicle. [Rubinosky] was “doing a lot of pacing,” and when
      the firearm was located, his pacing “began to intensify,” his
      “demeanor changed drastically,” and he was “acting really
      nervous.” Upon discovering the firearm, Trooper Casey notified
      Trooper Zeigler that he found the firearm and had removed the
      magazine from the firearm.       During the traffic stop, Ms.
      Kennell[e]y indicated to both Pennsylvania State troopers
      several times that the firearm belonged to [Rubinosky] and
      further indicated [Rubinosky] does carry around a black
      backpack.

            When asked to provide identification, [Rubinosky] failed to
      produce any identification and stated his name was “Corey
      Francis Gulnac” and his birth date was 11/26/1989; however,
      upon investigation, Trooper Casey determined this information
      was false. When Trooper Casey confronted [Rubinosky] and
      asked whether he provided false information, [Rubinosky]
      continued to state “No, my name is Corey Francis Gulnac and
      that’s my name;” however, in a side conversation, Ms.
      Kennell[e]y identified [Rubinosky] as “Cody Rubinosky.”
      [Rubinosky] later admitted to providing false identification to
      Trooper Casey, but maintained “nothing in the vehicle belonged
      to him, including the drug paraphernalia and the firearm.

Trial Court Opinion, 4/14/2016, at 1-3 (record citations omitted).

      Rubinosky was charged with one count of persons not to possess

firearms, one count of firearms not to be carried without a license, and one

count of false identification to law enforcement authorities. A one-day jury

trial took place on November 20, 2015. At the conclusion of the trial, the

jury convicted Rubinosky of all three counts. Subsequently, on January 26,

2016, the court imposed the following sentence: (1) a term of 60 to 120

months’ imprisonment for the persons not to possess a firearm conviction;


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(2) a concurrent term of 42 to 84 months’ incarceration for the firearms not

to be carried without a license conviction; and (3) a concurrent term of six

to 12 months’ incarceration for the false identification offense.     Rubinosky

did not file post-sentence motions but did file this timely direct appeal.2

       In his sole issue on appeal, Rubinosky challenges the sufficiency of the

evidence with respect to his two firearms convictions.          Specifically, he

states, “[T]he Commonwealth failed to present any evidence at trial that he

actually possessed the firearm in question.”      Rubinosky’s Brief at 7.     In

support of his argument, Rubinosky points to the following: (1) the firearm

was found in the backseat of a vehicle belonging to Kennelley and Bigley;

(2) Kennelley and Bigley were under the influence of heroin at the time of

the incident; (3) contrary to statements Kennelley gave to police, she

testified at trial that she did not remember who the gun belonged to and

that she and Bigley had been living out of the car for a month and had given

several individuals rides in that car, all of whom had ridden in the backseat;

(4) Kennelley alleged that some of those passengers were drug dealers who

were known to possess firearms; and (5) Kennelley stated she never
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2
    On March 4, 2016, the trial court ordered Rubinosky to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
We note neither the certified record nor the docket reveals that Rubinosky
filed a concise statement. Nevertheless, in its opinion, the trial court
indicated Rubinosky filed a concise statement on March 22, 2016. Neither
party takes issue with this; therefore, we will infer that a concise statement
was filed. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
April 14, 2016.



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checked the back seat so she was unsure who owned the gun.                  Id.

Additionally, Rubinosky states the Commonwealth failed to present any

evidence in form of fingerprints or deoxyribonucleic acid (“DNA”) to connect

him with the gun. Id. Lastly, Rubinosky argues the Commonwealth did not

present sufficient evidence to demonstrate constructive possession of the

firearm because it only established he was sitting in the backseat of the

same car where a backpack was found in the center of that backseat. Id. at

8. He notes the vehicle was unkempt and there were only two ammunition

clips recovered from the vehicle – one in the gun and one in the glove

compartment. Rubinosky states the only person who connected him to the

firearm was Kennelley and she was high on heroin at the time of the stop.

Id.

      We begin with our well-settled standard of review:

      The standard we apply in reviewing the sufficiency of the
      evidence is 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. In applying the above test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.     In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.          Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      finder of fact while passing upon the credibility of witnesses and

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      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

      The crime of persons not to possess firearms is defined as follows:

      A person who has been convicted of an offense enumerated in
      subsection (b), within or without this Commonwealth, regardless
      of the length of sentence or whose conduct meets the criteria in
      subsection (c) 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).

      The crime of firearms not to be carried without a license is defined as

follows:

      Except as provided in paragraph (2), 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).

      Because the firearm was not found on Rubinosky’s person, we also

note the Commonwealth may satisfy its burden by establishing constructive

possession:

      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.


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       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) (citation

omitted), appeal denied, 78 A.3d 1090 (Pa. 2013).

       Here, the record reveals the following: Trooper Zeigler testified that

on July 27, 2015, he and Trooper Casey conducted a traffic stop of a dark-

colored Cadillac with an expired registration. N.T., 11/20/2015, at 18. The

officers observed Rubinosky sitting in the backseat on the driver’s side of the

vehicle. Id. While the other passengers exited the car, Rubinosky “made

his way around the vehicle and made a direct beeline towards the entrance

of Wal-mart.”      Id.    Trooper Casey followed after Rubinosky.   Id. at 19.

When Trooper Casey returned to the car with Rubinosky, Trooper Zeigler

testified Rubinosky was acting “irate” and “indignant.” Id. at 20. Trooper

Zeigler also indicated he saw a dark-colored backpack “right in the middle of

the backseat.” Id. at 30. Inside the backpack, Trooper Casey discovered a

Stallard Arms JS-9, 9 mm firearm. Id. at 62.

       While Trooper Casey was searching the car, Rubinosky told the

troopers that nothing in the vehicle belong to him.        Id. at 21, 24-25.

Trooper Zeigler indicated Rubinosky was very upset and “doing a lot of

pacing.”    Id. at 21.3       Rubinosky also provided the troopers with false

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3
    During a search of the vehicle, Trooper Zeigler stated Rubinosky’s
nervousness and pacing “began to intensify.” Id. at 21.
(Footnote Continued Next Page)


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identification information. Id. at 22. Trooper Zeigler testified that the front

seat passenger, Kennelley, eventually told him that the subject he was

talking to was, indeed, Rubinosky.               Id. at 23.4   Kennelley also told the

trooper that the firearm was Rubinosky’s and he “needed [their] assistance

in taking that firearm to Gander Mountain to trade it in for funds to get more

funds to obtain heroin.” Id. at 41. Lastly, Kennelley informed the trooper

the backpack belonged to Rubinosky. Id.

      Kennelley also testified at trial.           On direct examination, she stated

Rubinosky had been a family friend for a very long time.              Id. at 48. She

also indicated she could not recall telling the troopers Rubinosky was the

backseat passenger, and that he had a gun and had asked Kennelley and

her husband to drive him to Gander Mountain to sell that firearm. Id. at 49.

On cross-examination, Kennelley stated she and her husband had been

living out of the car for a month. Id. at 50-51. She indicated she had given

rides to a handful of individuals during that period. Id. at 52-53. Kennelley

testified a lot of the passengers were drug dealers who had guns, but she

could not remember if any of them left their guns in her car, and she did not

always check to make sure they did not leave their firearms. Id. at 53-55.



                       _______________________
(Footnote Continued)


4
  Kennelly also indicated there was drug paraphernalia in the car.              Id. at
31.



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Lastly, Kennelley admitted she and her husband had used heroin on the day

in question. Id. at 52.

     The trial court analyzed the claim as follows:

            After a thorough review of the facts and circumstances of
     the instant criminal action, together with a thorough review of
     relevant case law, this Trial Court concludes the Commonwealth
     presented sufficient evidence to establish beyond a reasonable
     doubt that [Rubinosky] “possessed” a firearm, and the jury
     properly found [Rubinosky] “Guilty” as to Counts 1 and 2 based
     upon the evidence presented. The facts and circumstances,
     considered in their totality, clearly establish [Rubinosky] had
     both the ability to exercise consciously his control over the
     firearm as well as his intent to exercise this control. First, the
     location of the firearm indicates [Rubinosky]’s constructive
     possession of said firearm. The firearm was located inside a
     black backpack, and said backpack was located “in the center of
     the back seat directly adjacent to where the defendant
     [Rubinosky] was seated,” according to Troopers Zeigler and
     Casey. No other individuals were seated in the rear of the
     vehicle besides [Rubinosky] at the time of the traffic stop.
     Furthermore, during the traffic stop, the front seat passenger,
     Christine Kennell[e]y, indicated to both Pennsylvania State
     troopers that both the firearm and the black backpack belonged
     to [Rubinosky], and there was no evidence or statements from
     the other occupants in the vehicle that led the troopers to
     believe the firearm might have belonged or been in the
     possession of the other occupants. Finally, according to Trooper
     Jonathan Casey, the firearm was found with a magazine inside,
     which was eventually removed by Trooper Casey. A firearm
     functionality test, admitted at trial as Commonwealth’s Exhibit 2,
     indicated the firearm was functional and capable of discharging
     the types of ammunition for which it was designed and
     manufactured.

           [Rubinosky]’s actions before and during the traffic stop
     also demonstrated his constructive possession of the firearm.
     The conduct of an accused following a crime, including
     “manifestations of mental distress,” is admissible as tending to
     show guilt. Commonwealth v. Hughes, 865 A.2d 761, 792
     (Pa. 2004). When the traffic stop was initiated by Troopers
     Zeigler and Casey, [Rubinosky] quickly exited the vehicle and

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     briskly walked towards Walmart. Trooper Casey stated “State
     Police” several times to [Rubinosky], who would not stop. When
     Trooper Casey made contact with [Rubinosky, he] became irate,
     uncooperative and continuously stated “nothing in the vehicle
     belonged to him.” Upon being brought back to the vehicle,
     [Rubinosky] became extremely irate, acted indignant and
     continued to state “nothing in the vehicle belonged to him.”
     [Rubinosky] began pacing during Trooper Casey’s search of the
     vehicle, and when the firearm was discovered, [Rubinosky]’s
     pacing intensified, his demeanor changed drastically and he
     began acting very nervous.        When asked for identification,
     [Rubinosky] gave the name “Corey Francis Gulnac” and the
     birthdate 11/26/89 and repeatedly gave this information;
     however, through an investigation, Trooper Casey determined
     this information was false.      Christine Kennell[e]y identified
     [Rubinosky] as “Cody Rubinosky” in a side conversation with the
     troopers. [Rubinosky] ultimately admitted to Trooper Casey the
     information he gave was false. These facts and circumstances,
     considered     in   their   totality,   evidence     [Rubinosky]’s
     “consciousness of guilt” regarding his possession of the firearm.
     See [Commonwealth v.] Cruz, 21 A.3d [1247,] 1253 (Pa.
     Super. 2011) (“consciousness of guilt” regarding firearms
     offenses was shown by Defendant giving police officer five or six
     different   names     and   multiple    birthdates);   see   also
     Commonwealth v. Micking, 17 A.3d 924, 926 (Pa. Super.
     2011) (Appellant’s behavior of extreme nervousness, shaking
     and trembling exhibited a “consciousness of guilt” regarding
     firearms offenses).

            Therefore, in consideration of the totality of the facts and
     circumstances, together with a thorough review of relevant case
     law, this Trial Court concludes the Commonwealth produced
     sufficient evidence for the jury to find beyond a reasonable
     doubt that [Rubinosky] constructively possessed the firearm
     found inside the vehicle, as [Rubinosky] had both the ability to
     exercise consciously his control over the firearm as well as the
     intent to exercise this control.      This Trial Court concludes
     [Rubinosky]’s issue is without merit.

Trial Court Opinion, 4/16/2016, at 6-8.

     We agree with the court’s well-reasoned analysis. Viewed in the light

most favorable to the Commonwealth, the evidence was sufficient to sustain

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the trial court’s finding that Rubinosky constructively possessed the weapon.

Rubinosky was the only passenger in the backseat of the car adjacent to

where the backpack, which contained the gun, was located in plain view. As

such, one can reasonably infer the contraband was well within Rubinosky’s

reach.5 Furthermore, at the time of the car stop, Kennelley told the police

the gun and the backpack belonged to Rubinosky.         Moreover, Rubinosky’s

flight towards the Walmart store after the stop and nervous behavior were

both indicative signs of his guilt. See Commonwealth v. Dent, 837 A.2d

571, 576 (Pa. Super. 2003) (flight indicates consciousness of guilt, and “a

trial court may consider this as evidence, along with other proof, from which

guilt may be inferred.”), appeal denied, 863 A.2d 1143 (Pa. 2004);

Commonwealth v. Micking, 17 A.3d 924, 926 (Pa. Super. 2011) (“The

conduct of an accused following a crime, including ‘manifestations of mental

distress,’ is admissible as tending to show guilt.”) (citation omitted), appeal

denied, 31 A.3d 291 (Pa. 2011).

       Additionally, with respect to Rubinosky’s argument regarding the

counter-evidence of Kennelley’s testimony that she did not remember who

the gun belonged to, we note this argument goes to the weight rather than

the sufficiency of the evidence. The jury, sitting as the factfinder, “is free to
____________________________________________


5
   See Commonwealth v. Flythe, 417 A.2d 633, 634 (Pa. Super. 1979) (“It
strains the imagination to believe that defendant innocently entered this
vehicle having no knowledge of the items found therein when, the pistol at
least, was within a few inches of him and a portion of it was in plain view.”).



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believe all, part, or none of the evidence and to determine the credibility of

the witnesses.”    Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa.

2011) (citation omitted). Here, the jury chose to believe Kennelley’s prior

statements made to the troopers on the night of the incident, rather than

her trial testimony.

      Lastly, to the extent Rubinosky argues there was no DNA evidence

connecting him to the gun, we find this of no consequence based on the

remaining circumstantial evidence.     See Commonwealth v. Lopez, 57

A.3d 74, 80 (Pa. Super. 2012) (holding that the lack of forensic evidence

was not fatal to the prosecution’s case based on wholly circumstantial

evidence), appeal denied, 62 A.3d 379 (Pa. 2013). Accordingly, we conclude

there was sufficient evidence to enable the jury to find Rubinosky

constructively possessed a firearm. Therefore, Rubinosky is not entitled to

relief with respect to his sufficiency challenge regarding the firearms

convictions.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2017




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