J-S51015-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

RICHARD BRESSI

                                                    No. 3034 EDA 2016


                Appeal from the Order September 16, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): MC-51-CR-0015422-2016


BEFORE: BOWES, J., SHOGAN, J., AND STEVENS, P.J.E.,*

MEMORANDUM BY BOWES, J.:                      FILED SEPTEMBER 21, 2017

      The Commonwealth appeals from the trial court order that denied the

refiling of a criminal complaint charging Appellee, Richard Bressi, with

possession of a firearm by a person prohibited, firearms not to be carried

without a license, and carrying firearms in public in Philadelphia. We reverse

and remand.

      On May 26, 2016, Philadelphia Police Officer Kevin Gorman and his

partner were patrolling the area near the intersection of 13 th Street and

West Moyamensing Avenue, Philadelphia, in an unmarked vehicle.         Officer

Gorman observed Mr. Bressi exit a club on 13th Street. Mr. Bressi shouted

an invitation to a woman sitting in a car parked across the street to join him




* Former Justice specially assigned to the Superior Court.
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in a black Land Rover.     He and the woman entered the vehicle and the

officers circled the block while they assessed the situation.

      After returning to the area, the officers saw that Mr. Bressi and the

woman were still seated in the Land Rover.       The officers parked their car

nose-to-nose with the Land Rover, at which point, Mr. Bressi and the woman

began to exit the car. Officer Gorman smelled a strong odor of marijuana

emanating from the vehicle and suspected that there was more marijuana

inside.   He contacted a K-9 unit, and during a canine search shortly

thereafter, the K-9 unit indicated on the driver’s and passenger’s side

doorways, signifying the possible presence of contraband.

      Officer Gorman recovered a vapor smoker packed with suspected

marijuana from inside the vehicle.     Within a compartment on the driver’s

side door, the officer discovered twenty-four small packages containing a

white powdery substance and a pill bottle, labeled with Mr. Bressi’s name,

containing numerous pills.    From the rear of the vehicle, Officer Gorman

located a .45 caliber handgun from the pocket of a jacket. Mr. Bressi denied

owning the firearm, but stated that he knew who owned it. The officer also

recovered $1,440 cash from Mr. Bressi’s person. A search of the woman did

not uncover any evidence of criminal activity.

      Based on the above, the Commonwealth filed a complaint against Mr.

Bressi charging him with possession with the intent to deliver, possession of

a controlled substance, and the aforementioned violations of the Uniform

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Firearms Act. After a preliminary hearing, a municipal court judge dismissed

the charges against Mr. Bressi, except one count of possession.            The

Commonwealth submitted notice of its intent to refile the criminal complaint

again charging him with possession and the weapons offenses.           After a

hearing before the court of common pleas on September 16, 2016, wherein

the Commonwealth relied primarily on the evidence adduced at the previous

preliminary hearing, the court denied the Commonwealth petition to refile

for lack of evidence.

      The Commonwealth filed a timely notice of appeal, including a

certification pursuant to Pa.R.A.P. 311(d) that the court’s order substantially

handicapped its prosecution. It complied with the court’s order to file a Rule

1925(b) concise statement of errors complained of on appeal, and the court

authored a Rule 1925(a) opinion. This matter is now ready for our review.

      The Commonwealth raises a single question for our consideration:

“Did the lower court err in holding that the evidence was insufficient for a

prima facie case, where the Commonwealth established at the preliminary

hearing that defendant constructively possessed the gun?” Commonwealth’s

brief at 4.

      At the outset, we delineate our standard of review.        Whether the

Commonwealth has established a prima facie case is a question of law.

Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa.Super. 2016).

Hence, our standard of review is de novo and our scope of review is plenary.

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Id.   In order to establish a prima facie case, “the Commonwealth must

produce evidence of every material element of the charged offense(s) as

well as the defendant’s complicity therein.” Id. (citation omitted). Further,

when determining whether the Commonwealth has sustained this burden,

“we   must    view   the   evidence   in   the   light   most    favorable   to   the

Commonwealth, and we are to consider all reasonable inferences based on

that evidence which would support a guilty verdict.”            Commonwealth v.

Lees, 135 A.3d 185, 188 (Pa.Super. 2016) (citation omitted).                      The

Commonwealth need not prove its case beyond a reasonable doubt. Id.

      The Uniform Firearms Act defines the crime of persons not to possess

firearms 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).



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      Finally, the offense of carrying a firearm in public in Philadelphia

states, in relevant part:

      No person shall carry a firearm, rifle or shotgun at any time
      upon the public streets or upon any public property in a city of
      the first class unless . . . such person is licensed to carry a
      firearm[.]

18 Pa.C.S. § 6108.

      The Commonwealth alleges that it produced sufficient evidence to

show that Mr. Bressi constructively possessed the firearm found in the rear

compartment of the Land Rover. We have previously observed,

      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. Hopkins, 67 A.3d 817, 820 (Pa.Super. 2013) (citation

omitted).

      Specifically, the Commonwealth contends that the evidence proffered

was sufficient to show that Mr. Bressi exercised control over the vehicle and

its contents. It highlights that Mr. Bressi referred to the car as his “office,”

that he sat in the driver’s seat, and that, among the drugs and paraphernalia

discovered in the driver’s side door, was a pill bottled labeled with his name.

Commonwealth’s brief at 11-12.       The Commonwealth asserts that it also



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offered evidence that Mr. Bressi was aware of the gun in the car,

emphasizing his concession that he knew the owner of the weapon.         The

Commonwealth maintains that it had no duty to prove the ownership of the

Land Rover, the gun, or the jacket in order to make out a prima facie case

that Mr. Bressi possessed the weapon, since those facts are not elements of

the crimes listed above. Thus, the Commonwealth posits that the trial court

erred in denying it leave to refile the firearm offenses against Mr. Bressi.

We agree.

      Instantly, the Commonwealth offered the testimony of Officer Gorman

at the preliminary hearing.     Officer Gorman testified that, on the day in

question, he witnessed Mr. Bressi exit a club and hail a female companion

sitting in a parked car across the street. N.T. Hearing 6/14/16, at 5-6. The

officer reported that Mr. Bressi invited the woman to “[c]ome into my

office.”   Id. at 6.   At that time, the two individuals entered a black Land

Rover parked nearby, with Mr. Bressi entering the driver’s side door.     Id.

When the officers approached the vehicle, both occupants immediately

exited the car. Id. at 7.

      After discerning the odor of marijuana emanating from the vehicle,

Officer Gorman requested a K-9 unit to perform a canine search of the

vehicle.   Id. at 7-8.   The dog alerted to the presence of contraband, and

following the ensuing search of the vehicle, the officer recovered a vapor

smoker packed with a green, leafy marijuana-like substance. Id. at 8. The

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officer noted “Mr. Bressi told me how to get into the bottom of [the vapor

smoker],” where the marijuana-like substance had been placed. Id. Within

a compartment on the driver’s side door, the officer discovered twenty-four

packets containing a white powdery substance, which upon field testing

tested positive for cocaine, numerous pills, and an amber-colored pill bottle

with Mr. Bressi’s name on the label. Id. at 9, 11-12, 22.

      In the rear compartment of the vehicle, Officer Gorman recovered a

.45 caliber semiautomatic handgun from the pocket of a black jacket. Id. at

10. Mr. Bressi denied owning the handgun, although he stated that he knew

who did own it, and did not provide a license to carry the firearm. Id. at 13,

22-23.   Finally, the Commonwealth offered evidence that Mr. Bressi had

previously been convicted of aggravated assault. Id. at 23.

      When viewing the totality of the circumstances in the light most

favorable to the Commonwealth, we find that it sustained its burden of

establishing a prima facie case for the aforementioned firearms offenses,

including that Mr. Bressi constructively possessed the firearm found in the

rear of the Land Rover. Mr. Bressi invited another individual to join him in

his “office,” after which the two people sat inside the Land Rover. Further,

the vehicle contained Mr. Bressi’s pill bottle and a vapor smoker that Mr.

Bressi knew how to operate. From these facts it is reasonable to infer that

Mr. Bressi exercised control over the vehicle and the contents within.




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      The pill bottle is especially indicative of his relationship to the vehicle,

as it is reasonable to infer that the pill bottle would not be located within the

car unless Mr. Bressi had exerted some dominion over the Land Rover.

Moreover, Mr. Bressi’s statement that he “knew whose [the firearm] was,”

id., is probative of his knowledge that the weapon existed, that it was in the

rear of the vehicle, and that he intended to exercise control over it.

      That the Commonwealth did not offer evidence of the ownership of

vehicle, the gun, or the jacket in which the gun was found is not dispositive,

as constructive possession is not dependent on conventional principles of

ownership. See Commonwealth v. Jones, 874 A.2d 108 (Pa.Super. 2005)

(finding constructive possession where cocaine located within rental car);

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

appellant constructively possessed contraband recovered during search of

home owned by another person and contraband purchased by that

homeowner). Nor do the offenses in question require evidence of ownership

of a firearm to support a conviction. 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1),

and 6108. We find that the above facts support the inference that it is more

likely than not that Mr. Bressi possessed the handgun. Hopkins, supra.

      Hence, when viewing the totality of the evidence in the light most

favorable to the Commonwealth, and drawing all reasonable inferences

therefrom, we find the Commonwealth established a prima facie case that

Mr. Bressi constructively possessed the firearm in question.

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     Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/2017




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