J-S55043-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                             Appellant

                       v.

MARTIN LUTHER LAFOND

                             Appellee                   No. 625 EDA 2014


               Appeal from the Order Entered January 17, 2014
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0005473-2010


BEFORE: BOWES, J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                              FILED FEBRUARY 27, 2015

        The Commonwealth appeals from the order entered on January 17,

2014, in the Court of Common Pleas of Lehigh County, granting Martin

Luther Lafond’s motion for arrest of judgment after a jury found him guilty

of possession of a controlled substance and firearms not to be carried

without a license.1         By agreement with the parties, the trial court found

Lafond guilty of person not to possess firearms.2 The charges arose from a

police search of Lafond’s unoccupied car.        The trial court granted Lafond’s

motion for arrest of judgment on the basis there was insufficient evidence to

prove Lafond constructively possessed the drugs and gun found in his car.

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1
    35 P.S. § 780-113(a)(16) and 18 Pa.C.S. § 6106(a)(1)(c), respectively.
2
    18 Pa.C.S. § 6105(a)(1).
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In this timely appeal, the Commonwealth argues the trial court based its

decision upon impermissible inferences that had no basis in the record.

After a thorough review of the submissions by the parties, the certified

record, and relevant law, we reverse and remand for re-imposition of the

jury verdict and entry of judgment of sentence against Martin Luther Lafond.

      Before we begin our substantive analysis, we recite our standard of

review.

      When ruling on a motion in arrest of judgment, a trial court is
      limited to ascertaining “the absence or presence of that quantum
      of evidence necessary to establish the elements of the crime.” At
      this stage in the proceedings, the trial court is limited to
      rectifying trial errors, and cannot make a redetermination of
      credibility and weight of the evidence....

      For purposes of appellate review,

      “In passing upon such a motion [in arrest of judgment], the
      sufficiency of the evidence must be evaluated upon the entire
      trial record. All of the evidence must be read in the light most
      favorable to the Commonwealth and it is entitled to all
      reasonable inferences arising therefrom. The effect of such a
      motion is to admit all the facts which the Commonwealth's
      evidence tends to prove.”

      In order for a trial court to properly grant a criminal defendant's
      motion in arrest of judgment on the ground of insufficient
      evidence, “it must be determined that accepting all of the
      evidence and all reasonable inferences therefrom, upon which, if
      believed [the verdict could properly have been based], it would
      be nonetheless insufficient in law to find beyond a reasonable
      doubt that the [defendant] is guilty of the crime charged.”

Commonwealth v. Marquez, 980 A.2d 145, 147-48 (Pa. Super. 2009)

(citation omitted).




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       We are also cognizant that circumstantial evidence was presented in

the Commonwealth’s case. Accordingly, we note:

       Circumstantial evidence is defined as “evidence of one fact, or of
       a set of facts, from which the existence of the fact to be
       determined may reasonably be inferred.” The inference, or
       process of reasoning by which a conclusion is reached, “must be
       based upon the evidence given, together with a sufficient
       background of human experience to justify the conclusion.”

D’Ardenne by D’Ardenne v. Strawbridge & Clothier, Inc., 712 A.2d

318, 320 (Pa. Super. 1998) (internal citation omitted).

       In addition, “Although a guilty verdict may not be based on ‘suspicion

or surmise,’ ... the Commonwealth may rely on circumstantial evidence to

prove its case.” Commonwealth v. Perry, 483 A.2d 561, 565 (Pa. Super.

1984) (citation omitted).

       We recite the facts3 as reported by a prior panel of our Court:4

       On July 30, 2010, a police officer was on routine patrol in his
       vehicle when an unidentified pedestrian stopped him.       The
       pedestrian informed the officer that there were four men with
       guns in a burgundy Buick. The officer went to the location
       identified by the tipper and found the vehicle unoccupied and
       locked. The officer observed a large bag of marijuana in plain
       view partially under the passenger seat.     After obtaining a
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3
  These are the facts as presented in the preliminary hearing held December
10, 2010. Testimony at trial was substantially similar. Any discrepancies
with trial evidence will be noted. None of the discrepancies is material to the
resolution of the instant appeal.
4
  The issue in this prior appeal was whether the Commonwealth had
presented a prima facie case against Lafond.




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       warrant, the officer[5] found additional marijuana in the console
       and a revolver under the console on the seat. No fingerprints
       belonging to [Lafond] were found on the firearm or drugs.
       Fingerprints of an unidentified third-party were found on the
       drugs.

       [Lafond] owns the Buick. In the car, officers found mail with
       [Lafond’s] name and address. Officers also found photographs
       of [Lafond] in the glove compartment.[6] Additionally officers
       found a beaded necklace, which [Lafond] appears to be wearing
       in some of the photographs.[7] One of the photographs also
       depicts [Lafond] standing near the Buick on the same street
       where the officers found the Buick on July 30, 2010.

Commonwealth v. Lafond, 48 A.3d 478 (Pa. Super. 2012) (unpublished

memorandum).

       Additionally, we note that the Commonwealth introduced seven of the

photographs that were found in the vehicle into evidence and published

those photographs to the jury. Lafond is shown wearing the necklace in four

of the seven photographs published to the jury.          See Commonwealth

Exhibits 3-5, 8. The photograph of the car parked on the street, mentioned

in the prior memorandum, was also shown to the jury. See Commonwealth

Exhibit 6. The remaining 200+ photographs were introduced into evidence

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5
 The assigned detective, not the patrol officer, obtained the search warrant
and found the contraband. N.T. Trial, 8/13/2013, at 61.
6
  Some mail was found in the glove compartment and some in the trunk.
The photographs were found in the trunk. N.T. Trial, 8/13/2013, at 67.
7
 The testimony at trial indicated the necklace was at least similar, but not
necessarily identical, to the one Lafond was wearing in the photographs.
N.T. Trial 8/13/2013, at 71.




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and are part of the certified record, but were not shown to the jury.

Evidence was presented confirming the Buick was owned by Lafond, N.T.

Trial, 8/13/2013, at 62, the gun was a loaded and operable .38 caliber

revolver, id. at 67, 201-204, and the substance found in the baggies in the

car was marijuana. Id. at 75, 83-85. There was no sign the car had been

broken into, and the car had not been reported stolen. Id. at 74-75, 121.

The car was parked approximately two to two and one-half blocks from

Lafond’s home. Id. at 66. Finally, the car was parked near a playground

that had 20-40 people in it, so the police could not positively identify any

person nearby as associated with the car. Id. at 16.

      The Commonwealth argues that the circumstantial evidence was

sufficient to allow the jury to conclude beyond a reasonable doubt that

Lafond was one of the people in the car and was in possession of the drugs

and revolver. Pursuant to the trial court’s standard in initially passing on the

motion for arrest of judgment and our standard in review, we are compelled

to agree with the Commonwealth and reverse the trial court’s grant of the

motion to arrest judgment.

      The trial court opines that the Commonwealth’s case, and therefore

the verdict, “relies solely on the ownership of the Buick, and the marijuana

and revolver found in the vehicle.”    Trial Court Opinion, 1/17/2014, at 7.

Additionally, the trial court states, “the evidence is nothing more than

conjecture based on the assumption that ownership equals guilt. It fails to




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take into account the myriad of ways the Buick could have found its way into

someone else’s control.” Id. at 10.

       While ownership of the Buick and the contraband found therein are

necessarily large parts of the circumstantial evidence, they are not, as the

trial court opines, the only evidence.         The tipster’s brief description of the

occupants of the Buick does not exclude Lafond. The car was found locked

and in a place the car had demonstrably been parked by Lafond before. See

Exhibits C-2 and C-6. There were no signs of a break in and the car had not

been reported stolen.        The car was found a short distance from Lafond’s

home.      The only other items in the car, photographs and mail, were

demonstrably Lafond’s. Finally, no other persons’ belongings were found in

the car.

       Based upon the totality of this evidence, it was not mere suspicion or

surmise for the jury to conclude that Lafond had been one of the people in

his own car.     While a person may lend his or her automobile to another,

here, there was no evidence in the car to suggest Lafond had done so.8

Similarly, the police found no evidence that the car had been taken without




____________________________________________


8
  This comment is not meant to suggest Lafond had an obligation to present
evidence. We simply note that the police found nothing in the car to suggest
Lafond had lent to car to anyone, and, therefore, had no knowledge of the
contraband held within.




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Lafond’s permission or knowledge.       Accordingly, this is not an instance

where ownership of the car alone is equated to guilt.

     We must now look to the possession aspect of the verdict. Clearly, the

police did not apprehend Lafond with actual possession of the contraband.

     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.

        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. Brown, 48 A.3d 426, 430 (Pa. Super.
     2012), appeal denied, 619 Pa. 697, 63 A.3d 1243 (2013)
     (internal quotation marks and citation omitted). Additionally, it is
     possible for two people to have joint constructive possession of
     an item of contraband. Commonwealth v. Bricker, 882 A.2d
     1008, 1016-1017 (Pa. Super. 2005).

Commonwealth v. Kinard, 95 A.3d 279, 292 (Pa. Super. 2014).

     Because this is a unique factual situation, there is no case law directly

on point, however, we believe Commonwealth v. Kirkland, 831 A.2d 607

(Pa. Super. 2003), provides guidance.

     In the instant case, Appellant contends that the Commonwealth
     failed to prove constructive possession because: 1) Appellant did
     not own the vehicle in which the cocaine was found; 2) Appellant


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      was “never placed” in the vehicle; 3) the cocaine was located on
      the back seat of the vehicle rather than the front seat; 4) the
      vehicle’s front windows were down and the vehicle was
      unlocked. Appellant's brief at 10-11.

      We reject Appellant's argument that the evidence was
      insufficient to establish constructive possession. The record
      reveals that Ms. Byrd told the arresting officers that Appellant
      drove the vehicle in question to their residence prior to the
      assault, and Appellant possessed the keys to the vehicle. The
      cocaine was situated on a plate lying in plain view on the back
      seat of the vehicle, and when Officer Lynch returned to his patrol
      car, Appellant stated, “Ya'll found narcotics.” Considering the
      totality of the circumstances, we find that the Commonwealth
      proffered ample evidence to support the inference that Appellant
      constructively possessed the cocaine.

Id. at 610.

      Here, the evidence demonstrated that the tipster informed the police

that there were four men in the car with guns. When the car was located,

where the tipster reported seeing it, it was locked. Drugs were seen in plain

view under the front passenger’s seat. A gun was found tucked next to the

console, next to the driver’s seat. Drugs were found in the console, next to

the driver’s seat.    Drugs were found, in plain view, under the front

passenger’s seat. The car was owned by Lafond. Although Lafond made no

admission regarding the contraband, unlike Kirkland, this circumstantial

evidence is sufficient to demonstrate Lafond’s constructive possession of

both the drugs and the gun.

      Because we recognize the close nature of the evidence in this matter,

we believe it is important to distinguish our resolution from the central case

relied upon by the trial court, Commonwealth v. Carrington, 324 A.2d

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531 (Pa. Super. 1974).    In Carrington, the police found contraband in a

vehicle following a traffic stop. Carrington, the owner of the vehicle, was not

in the car at that time. In fact, some time earlier, he had reported the car

stolen. Amphetamines were found in the car and a loaded .22 caliber pistol

was found in a briefcase in the trunk.       There were also papers in the

briefcase suggesting the case was Carrington’s.      Based on this evidence,

Carrington was found guilty of carrying a firearm without a license.

      A panel of our Court reversed, finding the evidence was insufficient to

support the conviction. They stated:

      In the instant case, the appellant was not present in the car at
      the time the car was stopped, nor when the gun was found. In
      fact, the appellant, the owner of the vehicle, had reported the
      car as stolen to the police. There is nothing in the record to
      indicate a conspiracy or link between the appellant and the
      occupants of the car so as to show that he in any manner
      vicariously engaged in criminal activity. No fingerprints belonging
      to the appellant were found on the gun, nor was there any
      evidence that appellant had placed the gun in the attache case.
      The mere fact that appellant owned the stolen vehicle and that
      papers were found in the attache case that could lead to a belief
      that appellant owned the case does not establish beyond a
      reasonable doubt that appellant placed the gun in the attache
      case or sanctioned the transport of the gun in the car. There is,
      in short, insufficient evidence to establish the offense of
      ‘carrying’ with respect to the appellant. As this Court said in
      Commonwealth v. Festa, [40 A.2d 112, 116 (Pa. Super.
      1944)]: ‘(T)he mere presence of a revolver in the appellant's car
      was not a crime unless the appellant was present and in control
      of the movements of the car.’ That crucial ‘connection’ was not
      established by the Commonwealth in its case.

Carrington, 324 A.2d at 532.




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       A controlling difference between Carrington and the instant matter is

that the Commonwealth provided no link between Carrington and either the

contraband or the people in the car. There was no question that Carrington

was not in the car when the police stopped it. There was additional evidence

that the car was stolen. Accordingly, it was no stretch to believe people who

would steal a car and put drugs in it, may also hide a gun in a briefcase. In

short, there was ample reason to question Carrington’s connection to the

contraband in the vehicle.           That question made it impossible for the

Commonwealth to sustain its burden of proof. However, no such reasonable

question was demonstrated herein.              The Commonwealth was able to

circumstantially link Lafond to the car, and therefore, to the contraband.

       Similarly, the trial court cited United States v. Brown, 3 F.3d 673,

683 (3d Cir. 1993) (“simple ownership or control of a vehicle is not enough

on its own to establish constructive possession of drugs found therein, but

rather, additional evidence must link the defendant to the drugs”).9

However, as our discussion demonstrates, we believe the additional

evidence was provided.          Further, we note that U.S. v. Brown, supra,

involved drugs found in a residence, not in a vehicle.      In addition to the

sentence quoted by the trial court regarding mere ownership, Brown also

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9
  Our prior discussion demonstrates we believe the additional evidence was
provided.




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stated, “[W]hen drugs are found in a multi-room house, as opposed to a

vehicle, the evidence linking the defendant to the drugs arguably must be

even stronger.” Id. at 683 (emphasis added).

      In light of the foregoing, we are compelled to reverse the order

entered on January 14, 2014, granting Lafond’s motion for arrest of

judgment.

      Order reversed.     This matter is remanded to the trial court for re-

imposition of the jury verdict and judgment of sentence.         Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2015




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