J-A13016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

TYRONE BENJAMIN

                        Appellant                   No. 43 WDA 2015


    Appeal from the Judgment of Sentence Entered December 2, 2014
           In the Court of Common Pleas of Allegheny County
            Criminal Division at No: CP-02-CR-0005681-2013


BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                       FILED AUGUST 24, 2016

     Appellant, Tyrone Benjamin, appeals from the December 2, 2014

judgment of sentence imposing 11 months and 15 days to 23 months of

incarceration followed by two years of probation for carrying a firearm

without a license (18 Pa.C.S.A. § 6106).      We vacate the judgment of

sentence and order Appellant discharged.

     The trial court summarized the facts in its Pa.R.A.P. 1925(a) opinion:

           On February 14, 2013, City of Pittsburgh Police Officer
     Dustin Rummel responded to the scene of a shooting in the
     7200-7300 block of Hamilton Avenue in the City of Pittsburgh
     near the Phase 3 Bar. The shooting occurred in the Homewood
     section of the City of Pittsburgh, which is known as a high crime
     area. Officer Rummel arrived on the scene, accompanied by
     other officers, whereupon he observed an unknown female who
     had been shot in the leg. Later that day, the officers learned
     that the body of a deceased male was found nearby.

          A witness to the shooting informed Officer Rummel that he
     heard five (5) gunshots come from a location near the Phase 3
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       Bar. The witness further relayed that three (3) black males fled
       from the location where the gunshots were fired. The witness
       observed three men retreat to two (2) vehicles: a dark sedan
       and a red Chevrolet Malibu. The witness reported that the three
       men fled down Hamilton Avenue in the direction of Washington
       Boulevard.     Immediately upon learning of the vehicle
       descriptions, Officer Rummel put the information conveyed to
       him by the witness in a be-on-the-lookout (“bolo”) notice on the
       police radio.

             Officer Timothy Matson reported hearing the dispatch of
       Officer Rummel, as he was patrolling the 7200 block of
       Susquehanna Street with his partner, Officer Jonathon Craig.
       Officer Matson observed a maroon Malibu make a left turn on to
       Hamilton Avenue from North Homewood Street immediately
       following the dispatch. Officer Matson performed a stop of the
       vehicle, which was driven by [Appellant]. Officer Matson asked
       [Appellant] to exit the vehicle, whereby he was handcuffed and
       moved away from the vehicle. [Appellant] was removed from
       the area of the traffic stop a couple of cars behind, as the
       passenger of the vehicle, Mr. Wallace,1 was uncooperative and
       disorderly. Officer Craig observed furtive movements made by
       Mr. Wallace, and removed him from the vehicle, whereupon
       Officer Craig located a firearm on Mr. Wallace’s person, which
       had dropped from his waistband.

             Believing the vehicle may have been involved in the
       shooting that took place minutes earlier, the officers made the
       decision to conduct an inventory search of the vehicle. During
       the inventory search, the officers learned that [Appellant] had a
       suspended driver’s license, and Mr. Wallace was placed under
       arrest for a firearms violation.      The inventory search also
       recovered a backpack with a firearm inside, which was recovered
       from the rear hatch area of the vehicle.

Trial Court Opinion, 11/15/16, at 2-3.




____________________________________________


1
  Elsewhere, the record identifies Appellant’s passenger as Michael “Waller.”
N.T. Hearing, 6/3/14, at 33.



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       The Commonwealth did not charge Appellant with any crime arising

out   of    the   February    14,   2013       Homewood   shooting.   Rather,   the

Commonwealth charged Appellant with several firearms violations based on

the firearm discovered in the backpack in the rear hatch of the Chevy

Malibu. Appellant filed a pretrial motion to suppress the firearm, which the

trial court denied on June 3, 2014. At the conclusion of a bench trial, the

trial court found Appellant guilty of violating 18 Pa.C.S.A. §§ 6105 (persons

not to possess a firearm) and 6106 (carrying a firearm without a license).

The trial court imposed sentence as set forth above,2 and this timely appeal

followed.     Appellant argues that the Commonwealth failed to produce

sufficient evidence of Appellant’s constructive possession of the firearm.

       We apply this well-settled standard of review:

             Our standard of review for a challenge to the sufficiency of
       the evidence is de novo, but our scope of review is limited to
       considering the evidence of record, and all reasonable inferences
       arising therefrom, viewed in the light most favorable to the
       Commonwealth as the verdict winner. Evidence is sufficient if it
       can support every element of the crime charged beyond a
       reasonable doubt. The trier of fact, while passing upon the
       credibility of witnesses and the weight of the proof, is free to
       believe all, part, or none of the evidence.

Commonwealth v. Robinson, 128 A.3d 261, 264 (Pa. Super. 2015)

(citations omitted).


____________________________________________


2
   The trial court concluded the § 6105 offense merged for sentencing
purposes.



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       Appellant’s convictions under §§ 6105 and 6106 depend upon his

constructive possession of the firearm in the rear hatch of the Chevy Malibu.

             When contraband is not found on the defendant’s person,
       the Commonwealth must establish constructive possession[.]
       Constructive possession is the ability to exercise conscious
       control or dominion over the illegal substance and the intent to
       exercise that control. [T]wo actors may have joint control and
       equal access and thus both may constructively possess the
       contraband. The intent to exercise conscious dominion can be
       inferred from the totality of the circumstances.

Commonwealth v. Jones, 874 A.2d 108, 121 (Pa. Super. 2005) (citations

and quotation marks omitted).

       The trial court relied on Commonwealth v. Haskins, 677 A.2d 328,

329-30 (Pa. Super. 1996), appeal denied, 692 A.2d 563 (Pa. 1997), in which

police recovered cash and drug paraphernalia from the rear hatch of the

defendant’s Volkswagen Rabbit. Police approached the defendant’s vehicle,

which was stopped at a red light, and asked to speak to Appellant. Id. at

329.    Appellant ran the red light and a chase ensued.      Id. at 329-30.

Defendant, who was driving, fled on foot from his moving vehicle.      Id. at

330.   Appellant’s passenger fled on foot after the vehicle crashed into a

parked car.   Id.   During the foot chase, the defendant discarded a plastic

baggie containing marijuana.    Id.    On appeal, the defendant challenged,

among other things, the sufficiency of the evidence of his possession of the

cash and paraphernalia recovered from the rear hatch of his car.      Id.   In

rejecting that argument, this Court reasoned that “the money and




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paraphernalia found in the hatch area were located in areas usually

accessible only to the operator of a vehicle.” Id.

      The Commonwealth relies on Commonwealth v. Bentley, 419 A.2d

85 (Pa. Super. 1980). There, police recovered a .45 caliber handgun from a

bag in the spare tire well of a station wagon.       Id. at 87.   The defendant

driver’s wife owned the vehicle, and an unidentified passenger was in the

front seat. Id. at 86-87. This Court concluded, “the presence of a Colt .45

in a gym bag found in a portion of the vehicle not readily accessible to

passengers would be sufficient to support an inference of [the defendant’s]

possession.” Id. at 87. In addition, police found a .38 caliber handgun on

the floor by the driver’s seat. Id.

      This Court distinguished Bentley in Commonwealth v. Juliano, 490

A.2d 891 (Pa. Super. 1985).       In Juliano, the defendant joined several

individuals who were under observation. Id. at 893. The other individuals

were suspected of engaging in a drug transaction at an airport. Id. They

picked up the defendant at an airport hotel. Id. When police stopped the

vehicle, the defendant was one of four occupants. He was seated in the left

rear passenger seat, and a green bag was on the floor at his feet.          Id.

Police observed other vehicle occupants carrying the bag before they picked

up the defendant.     Id.   Police seized the green bag and found that it

contained methaqualone.      This Court vacated the defendant’s conviction,

reasoning that the Commonwealth produced no evidence the defendant


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knew the content of the green bag, even though the bag was at his feet in

the car. Id. at 894. We noted that the green bag was already in the car

before the other occupants of the vehicle picked the defendant up.        Id.

“[T]he only evidence tying [the defendant] to the illegal drug transaction

were his appearance [at the hotel], his presence in the car with the three

men, and the fact that the green bag had been found near where he was

sitting in the car.” Id. “[M]ere presence of one person, among a group at a

scene of contraband, is not a strong factor indicative of guilt.” Id. (quoting

Commonwealth v. Cash, 367 A.2d 726, 727 (Pa. Super. 1976)). Likewise,

the Juliano Court noted that “mere presence in an automobile in which a

weapon his found is not sufficient to prove that a defendant-passenger is in

possession of the weapon.”    Id. (quoting Commonwealth v. Armstead,

305 A.2d 1, 2 (Pa. 1973)).

      The Juliano Court relied on Commonwealth v. Wisor, 353 A.2d 817,

818 (Pa. 1976), in which the defendant driver and owner of the car was

convicted of possession of a corncob pipe containing marijuana.      The pipe

was under the front passenger seat and became visible only when police

pushed the seat forward. Id. Since the pipe was concealed, the trial court

inferred that it belonged to the defendant (driver and owner) rather than

any of the five passengers in the car in addition to the defendant. Id. Our

Supreme Court disagreed, holding that “[t]he fact of ownership does not

support the inference that [the defendant] knew the pipe was under the


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seat.”    The Court further concluded that the vehicle’s other occupants had

ample opportunity to conceal the pipe. Id.

         Appellant argues the foregoing case law does not control this case

because of significant factual distinctions.          First, the record indicates that

Appellant was “very cooperative” with the police. N.T. Hearing, 1/6/15, at

18.3 Police did not observe Appellant make any furtive movements. Id. at

34. Police determined that Appellant’s sister owned the car. Id. at 21.

         The police officer who searched the Chevy Malibu described its interior.

“The vehicle doesn’t have a closed trunk area.             It has the front seat, the

back seat and then the next area in the back is just a rear cargo area. It’s

accessible from the back seat.          It’s accessible from the vehicle.     It’s not

closed off.”     Id. at 38.      The backpack in the rear hatch was therefore

accessible to anyone in the car.               We observe that the record does not

support the trial court’s finding that the backpack was “well within reach of

[Appellant].”     Trial Court Opinion, 11/15/16, at 6.          To the contrary, the

record indicates that Appellant was in the driver’s seat and the backpack was

in an open hatch area behind the back seat. The Commonwealth conducted

forensic testing of the firearm and discovered no fingerprint or any other

evidence linking Appellant to the gun. Likewise, nothing in the record links

Appellant to the backpack that contained the gun.
____________________________________________


3
  After the trial court denied Appellant’s motion to suppress evidence, the
parties proceeded to a bench trial on stipulated facts.



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      We conclude the trial court’s reliance on Haskins is misplaced.      In

Haskins, the defendant ran a red light, fled his moving vehicle on foot, and

discarded a bag of marijuana during the ensuing foot chase.        Thus, the

Commonwealth’s case did not rest entirely on the defendant’s presence in

the hatchback vehicle. Bentley is easily distinguishable because nothing in

that opinion indicated that the spare tire well was open and accessible to any

vehicle occupant, as is the rear hatch of the Chevy Malibu involved in the

instant case.

      The trial court convicted Appellant largely because he was in control of

the vehicle, and because he purportedly had the bag within reach. We have

already concluded that the record does not support the latter finding. We

further conclude that the trial court misapplied the law of constructive

possession in finding that Appellant possessed the firearm. Appellant did not

own the vehicle. No evidence linked Appellant to the backpack or the gun in

the backpack.    The rear hatch was open and accessible to anyone who

entered the vehicle.   Appellant, unlike his passenger, cooperated with the

police. In summary, the record contains no evidence, other than Appellant’s

presence in the vehicle, linking him to the firearm. That evidence is legally

insufficient to support a finding of constructive possession.   We therefore

vacate Appellant’s judgment of sentence and order him discharged.

      Judgment of sentence vacated.          Appellant ordered discharged.

Jurisdiction relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2016




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