J-S55036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

RENE VEGA,

                         Appellant                  No. 2053 EDA 2015


           Appeal from the Judgment of Sentence May 18, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0010724-2012

BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*

DISSENTING MEMORANDUM BY STEVENS, P.J.E.:FILED OCTOBER 18, 2016

      It is not for this Court to usurp the fact-finding function of the trial

court. The evidence overwhelmingly supports the decision of the trial court,

and I respectfully dissent and would affirm the judgment of sentence.

      The totality of evidence introduced at Appellant’s trial demonstrated

beyond a reasonable doubt that he was not merely present near the

handgun recovered in the barbershop restroom but was, instead, responsible

for discarding it there just moments before his imminent encounter with

Officer Carter.   Appellant’s nervous and evasive behavior in response to

police arrival, his implausible explanation for such a short visit to the

restroom, the incomplete manner in which the gun was hidden, and the

absence of other persons in the barbershop all supported the inference that

Appellant had rushed to hide the gun in the ceiling before police entered the

room behind him.

*Former Justice specially assigned to the Superior Court.
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      Because Appellant did not have the gun on his person at the time

Officer Carter detained him outside the restroom, the Commonwealth was

required to establish that Appellant had constructive possession of the

firearm in order to sustain his convictions.     “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.”

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

Constructive possession has been defined as conscious dominion, i.e., “the

power to control the contraband and the intent to exercise that control.” Id.

Recognizing that constructive possession is not amenable to a bright line

test, we have held that it may be established by the totality of the

circumstances.    Commonwealth v. Woody, 679 A.2d 817 (Pa.Super.

1996).

      When viewed in a light most favorable to the Commonwealth as

verdict winner, the totality of circumstances supported the reasonable

inference that Appellant constructively possessed the handgun recovered

from the bathroom into which he, alone, had just hurriedly entered and

exited with a police officer in pursuit.     It was undisputed that Appellant,

upon seeing police approach and detain his companion, immediately

reversed his course and reentered the barbershop from which he had just

appeared.   With Officer Carter following, Appellant briskly walked into a

bathroom. According to the officer, Appellant “went in and came right back

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out” in an amount of time too brief to have allowed use of the facilities; “he

was not in there five, ten seconds,” N.T. at 10-11, the officer testified, and

Appellant managed to exit the room just as Officer Carter reached the

threshold of the door. N.T. at 9.

       Appellant explained his conduct to the officer by saying he had to go to

the bathroom. The trial court deemed this explanation unworthy of belief,

and reasonably so.       Just moments before the encounter, Appellant walked

by that same restroom on his way out of the shop apparently without feeling

any urgent need to use it. Moreover, when observed by the officer “not five,

ten seconds” after he had entered the restroom, Appellant gave no

indication—such as zipping his pants, adjusting his clothes, or drying his

hands—that he had used the facilities.

       When the officer entered the five-by-five foot bathroom after Appellant

had exited it, he saw a displaced ceiling block from a section of the drop

ceiling directly above the sink and toilet.      Sticking out of the opening was

the handle of a revolver, which the officer was able to retrieve before leaving

the restroom. No one else was in the bathroom or the barbershop at this

time.1


____________________________________________


1
  The Majority notes that there were two or three people located in the
basement of the same building, but there was no interior passageway
connecting the basement to the main floor of the barbershop. N.T. 2/27/15
at 28.



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      In sum, Appellant’s evasive behavior and nervously-delivered, false

explanation in response to police presence manifested his consciousness of

guilt. See Commonwealth v. Tharp, 101 A.3d 736, 780 (Pa. 2014) (citing

Commonwealth v. Tharp, 830 A.2d 519, 527 (Pa. 2003) (holding

defendant’s concocting false tale of kidnapping suggests consciousness of

guilt)); Commonwealth v. Jones, 570 A.2d 1338, 1349 (Pa.Super. 1990)

(holding finder of fact may infer a consciousness of guilt from person's flight

or other evasive conduct); Commonwealth v. Whiting, 187 A.2d 563, 565

(Pa. 1963) (holding hurried exit from crime scene and subsequent false and

misleading statements to police indicate consciousness of guilt).

      Moreover, it was reasonable to infer from Appellant’s attempt to

conceal himself from the officer’s view momentarily, the absence of anyone

else in the barbershop at the time in question, and the incomplete manner in

which the gun was secreted that Appellant unsuccessfully attempted to hide

the gun in haste before the officer could enter the bathroom.         Indeed, it

strains credulity to suggest the handgun was left exposed in that location as

a matter of routine, or that it was abandoned by someone else at the time

when no other persons were discovered at the scene.

      I, therefore, agree with the trial court, which sat as finder of fact, that

sufficient evidence existed to establish Appellant’s constructive possession of

the handgun discovered in the restroom he, alone, had just exited.

Accordingly, discerning no merit to Appellant’s sufficiency challenge, I would

affirm judgment of sentence.

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