J-S68026-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
RANDOLPH SIMPSON,                        :
                                         :
                 Appellant               :   No. 2164 EDA 2014

           Appeal from the Judgment of Sentence May 23, 2014,
                  Court of Common Pleas, Lehigh County,
             Criminal Division at No. CP-39-CR-0000648-2012

BEFORE: BENDER, P.J.E., DONOHUE and MUNDY, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED NOVEMBER 24, 2015

      Appellant, Randolph Simpson (“Simpson”) appeals nunc pro tunc from

the judgment of sentence entered on May 23, 2014 by the Court of Common

Pleas, Lehigh County, following a conviction of persons not to possess a

firearm, 18 Pa.C.S.A. § 6105(a)(1).    For the reasons set forth herein, we

affirm.

      A summary of the facts and procedural history is as follows:

               On December 22, 2011, around 11:00 PM,
           Taihisha Henry [(“Henry”)] was at Mr. Dick’s bar,
           located at 7th and Washington Streets in Allentown,
           Pennsylvania.    Henry’s ex-boyfriend, [] Simpson,
           came into the bar and asked Henry for a ride to
           Bethlehem. Henry refused, and [Simpson] “[c]alled
           [her] a bitch and pretty much stormed out, pissed
           off.”[] A few minutes later, one of the bouncers said,
           “[Henry], he’s out there shooting at your car.”[]
           Henry went outside to her Ford Explorer and saw
           that the driver’s window was shattered and saw a
           bullet hole in the driver’s seat. Henry then saw
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          [Simpson] walking towards her from the direction of
          his residence – Cookie’s bar and rooming house –
          which was about one half block southwest of Mr.
          Dick’s bar. Henry and [Simpson] began arguing.
          Henry asked [Simpson] why he shot out her car
          window, and [Simpson] told her to “shut the F up”
          and said the window would get fixed that night.[]
          Henry told her sister, Coral Smith [(“Smith”)], to go
          call the police, which Smith did. Eventually, Henry
          got on the phone with dispatch. While she was
          speaking to the dispatcher, [Simpson] threatened to
          kill Henry’s family. Police arrived on the scene and
          [Simpson] started walking away from Henry.

             Sergeant Alicia Conjour [(“Sergeant Conjour”)] of
          the Allentown Police Department (APD) responded to
          the area of Mr. Dick’s Bar for a gunshot complaint.
          When she arrived, Sergeant Conjour observed a
          female standing in the middle of Washington Street
          screaming, “he’s there, he’s there,” and pointing
          south on Morris Street. She also observed an SUV
          with a smashed out window. In the direction the
          woman was pointing, [Sergeant] Conjour observed a
          black male, wearing a black hoodie, walking north on
          Morris Street towards her direction.       [Sergeant]
          Conjour drew her weapon and ordered the man, later
          identified as [] [Simpson], to the ground.

             Officer Andrew Moll [(“Officer Moll”)] arrived soon
          after Sergeant Conjour, and observed [Sergeant]
          Conjour with her gun drawn and the defendant prone
          on his stomach. [Officer] Moll handcuffed [Simpson]
          and patted him down for weapons. No weapons
          were found. [Officer] Moll asked [Simpson] what
          was going on, and [Simpson] said [] Henry was mad
          at him because he was cheating on her.

             [Simpson] subsequently consented to a search of
          his residence at Cookie’s, which Sergeant Conjour
          recalled was Room 22. [Simpson] had keys to the
          front of Cookie’s and unlocked the door for police.
          Inside a common bathroom under a vanity sink,
          police found a bag hidden, which contained a .38



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            caliber revolver and a sock. Inside the sock was a
            box of .380 caliber ammunition and electrical tape.[]
            The gun’s trigger was wrapped in electrical tape.
            [Sergeant] Conjour cleared the gun and discovered
            the ammunition was also wrapped in electrical tape.
            One spent shell and three live shells were taken into
            evidence.[]    Police also found electrical tape in
            [Simpson’s] room.          Additionally, Officer Moll
            removed a spent bullet fragment from the driver’s
            seat of the Ford Explorer.         Pennsylvania State
            Trooper Mark A. Garrett [(“Corporal Garrett”)], an
            expert in the field of firearms and tool mark
            examinations, testified to a reasonable degree of
            scientific certainty that the spent bullet and spent
            shell were fired from the gun. No fingerprints were
            recovered in connection with this case.

Trial Court Opinion, 2/11/15, at 2-4 (footnotes omitted).

      Simpson    was   charged   with   terroristic   threats,   18   Pa.C.S.A.   §

2706(a)(1), and persons not to possess a firearm, 18 Pa.C.S.A. §

6105(a)(1). On April 22, 2013, Simpson waived his right to a jury trial. A

non-jury trial was held on April 24, 2013. At the conclusion of trial, the trial

court found Simpson not guilty of terroristic threats, but guilty of persons

not to possess a firearm.

      On May 6, 2013, Simpson filed a motion for new trial and arrest of

judgment.    The trial court denied Simpson’s motion without prejudice on

May 22, 2013.    On May 23, 2013, the trial court sentenced Simpson to a

term of five to ten years of incarceration. The trial court also appointed the

public defender’s office to represent Simpson in post-sentence matters.




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      On June 25, 2013, the Deputy Public Defender, Attorney John F.

Baurkot (“Attorney Baurkot”), filed a Motion to Reconsider Nunc Pro Tunc,

which the trial court denied on July 1, 2013.        On December 16, 2013,

Simpson filed a pro se notice of appeal. Conflicts counsel was appointed and

on February 24, 2014, Attorney Sean Poll (“Attorney Poll”) discontinued

Simpson’s pro se notice of appeal.

      On May 19, 2014, Attorney Poll filed a petition for relief pursuant to

the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541 et seq. In the

petition, Attorney Poll alleged that Attorney Baurkot provided ineffective

assistance of counsel by failing to file a direct appeal. The trial court granted

the PCRA petition on July 8, 2014 and reinstated Simpson’s direct appeal

rights, nunc pro tunc.

      On July 22, 2014, Simpson filed the instant appeal. 1          On appeal,

Simpson raises the following issue for our review:

            Did the [t]rial [c]ourt err in returning a verdict of
            guilt when such a verdict was not supported by


1
    On August 29, 2014, Simpson filed a petition for extension of time for
filing a concise statement of reasons complained of on appeal pursuant to
Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, claiming that
the notes of testimony from trial had not yet been transcribed. The trial
court granted Simpson’s appeal, ordering him to file his statement by
September 15, 2014. Simpson filed a second petition for an extension of
time on September 15, 2014, asserting that he had still not received the
notes of testimony. The trial court denied the petition. On November 5,
2014, Simpson filed with this Court a petition to remand the case to the trial
court. On November 25, 2014, this Court issued an order remanding the
case to the trial court and granting ninety days for the production of the
transcript, filing of a 1925(b) statement, and a 1925(a) opinion.


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            sufficient evidence so as to prove [Simpson] guilty of
            Persons Not to Possess, Use, Manufacture, Control,
            Sell or Transfer Firearms?

Simpson’s Brief at 4.

      In reviewing Simpson’s claim that the Commonwealth failed to present

sufficient evidence to convict him of persons not to possess a firearm, we

are mindful of our well settled standard of review:

            The standard we apply in reviewing the sufficiency of
            the evidence is whether viewing all of 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 trier of
            fact while passing upon the credibility of witnesses
            and the weight of the evidence produced, is free to
            believe all, part or none of the evidence.

Commonwealth v. Helsel, 53 A.3d 906, 917-18 (Pa. Super. 2012) (citing

Commonwealth v. Bricker, 41 A.3d 872, 877 (Pa. Super. 2012)). “This

standard is equally applicable in cases where the evidence is circumstantial,

rather than direct, provided that the combination of evidence links the


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accused to the crime beyond a reasonable doubt.” Commonwealth v. Orr,

38 A.3d 868, 873 (Pa. Super. 2011) (citing Commonwealth v. Cox, 686

A.2d 1279, 1285 (Pa. 1996), cert. denied, 522 U.S. 999 (1997)).

     In this case, the trial court found Simpson guilty of persons not to

possess a firearm, which provides, in relevant part:

           (a) Offense defined.—

              (1) 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.A. § 6105(a)(1).

     At trial, Simpson stipulated that he is not eligible to possess a firearm,

and therefore, “does not challenge that the element of a prior enumerated

conviction has [] been met.” Simpson’s Brief at 12. The crux of Simpson’s

argument on appeal is that the Commonwealth failed to prove that he

possessed a firearm on the night in question.      Simpson argues, and the

Commonwealth concedes, that Simpson was not physically in possession of

the handgun at the time of his arrest. See id.; Commonwealth’s Brief at 6.

Thus, in order to establish the possession element of section 6105(a)(1), the

Commonwealth was required to establish that Simpson constructively

possessed the handgun.    See Commonwealth v. Hopkins, 67 A.3d 817,




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820 (Pa. Super. 2013) (“As appellant was not in physical possession of the

contraband, the Commonwealth was required to establish that he had

constructive possession of the seized items to support his convictions.”).

      Simpson    asserts   that   the    Commonwealth    failed   to   establish

constructive possession because there was insufficient evidence “to tie him

to the hand gun found in the common bathroom.” Id. at 13-14. Simpson

specifically alleges that “the handgun was found in a common bathroom

shared by approximately ten (10) different rooms in a boarding house. The

bathroom did not have a lock on the door so anyone that was in the building

could access the bathroom.” Id. at 13. After our review of the record, we

conclude that Simpson’s arguments are unavailing.2

      This Court has established that

            [c]onstructive 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.”




2
  Simpson’s reliance on Commonwealth v. Stanley, 401 A.2d 1166 (Pa.
Super. 1979), is also unavailing as he relies upon the dissenting opinion,
which is not binding authority.


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

Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (internal

citations omitted)). “The Commonwealth may sustain its burden by means

of wholly circumstantial evidence, and we must evaluate the entire trial

record and consider all evidence received against the defendant.” Brown,

48 A.3d at 430 (citing Commonwealth v. Markman, 916 A.2d 586, 598

(Pa. 2007)).   Moreover, this Court has held that “[t]he fact that another

person may also have control and access does not eliminate the defendant’s

constructive possession[.]”   Commonwealth v. Haskins, 677 A.2d 328,

330 (Pa. Super. 1996).

     In this case, the Commonwealth presented the testimony of several

members of the APD in support of its case that Simpson possessed the gun.

Officer Brubaker testified that he transported Simpson to his housing unit at

Cookie’s, whereupon Simpson “gave [them] the keys to his -- to the main

door to get into the building and to his apartment.” N.T., 4/24/13, at 81.

Officer Brubaker further testified that Simpson “signed a consent for [them]

to check his apartment for a firearm[,]” which Simpson identified as

Apartment 22. Id. at 81-82.

     Sergeant Conjour testified that they searched the bathroom, which

was a common bathroom for the entire apartment floor.       Id. at 42.   The

bathroom did not require a key for access. Id. Sergeant Conjour testified

that they discovered a .38 caliber gun in the bathroom in a hole in a wall



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that was accessible from the inside of the sink vanity. Id. at 25-26. The

gun was not immediately visible. Id. at 44. The officers also discovered in

the same hole a tube sock that contained a box of .380 ammunition and a

roll of electrical tape. Id. at 26.

      Sergeant Conjour testified that when she attempted to clear the gun,

she discovered that there were three live bullets and two spent shells in the

gun’s chamber.      Id. at 27-28.     The ammunition was wrapped in electrical

tape, presumably so that the ammunition would fit in the cylinder because

.380 ammunition is smaller than what a .38 takes, and there was electrical

tape on the trigger of the gun. Id. at 27-28, 29. Sergeant Conjour testified

that in addition to the electrical tape found in the hole in the bathroom,

officers found electrical tape in Simpson’s bedroom. Id. at 29. Henry also

testified that she previously saw Simpson with a revolver that had black tape

on it. Id. at 61.

      Trooper Moll testified that he removed the bullet fragment from

Henry’s seat. Id. at 115. Corporal Garrett, whom the trial court recognized

as “an expert in the field of firearms and tool mark examinations[,]”

examined the recovered gun, the three undischarged bullets, one discharged

bullet, and one discharged cartridge case. Id. at 98-100. Corporal Garrett

testified to a reasonable degree of scientific certainty that the discharged

bullet from the vehicle he examined was discharged by the gun officers

recovered from the bathroom at Simpson’s residence. Id. at 105. He further



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testified that the cartridge case he examined was discharged by the firearm

in question. Id.

      Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, we conclude that the Commonwealth presented

sufficient evidence to establish constructive possession.   When viewed in

their totality, the facts establish a strong inference that Simpson possessed

the weapon. Thus, we reject Simpson’s challenge to the sufficiency of the

evidence.

      Judgment of sentence affirmed.

      Bender, P.J.E. joins the Memorandum.

      Mundy, J. concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/24/2015




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