J-A12025-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    TEVIN BRONAUGH                             :
                                               :
                       Appellant               :      No. 1009 WDA 2019

          Appeal from the Judgment of Sentence Entered June 4, 2019
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0006768-2017


BEFORE:      KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.:                                    FILED MAY 21, 2020

        Appellant, Tevin Bronaugh, appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas, following his bench

trial convictions for persons not to possess a firearm and tampering with

physical evidence.1 We affirm.

        In its opinion, the trial court accurately set forth the relevant facts and

procedural history of this case as follows:

           [Appellant] was charged by criminal information with one
           count each of Receiving Stolen Property, Violation of the
           Uniform Firearms Act (VUFA) – Carrying a Concealed
           Weapon Without a License, VUFA – Person not to Possess,
           Tampering with Physical Evidence[,] and Escape. On March
           6, 2019, [Appellant] waived his right to a jury trial and
           proceeded before this court in a non-jury trial. At the
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 6105; 4910(1), respectively.
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       outset, the Commonwealth withdrew the receiving stolen
       property and escape counts.

       The parties stipulated that [Appellant] did not possess a
       concealed carry permit and had prior convictions that
       prohibited his possession of a firearm. The Commonwealth
       then presented one witness, former McKees Rocks and
       current Pittsburgh Police Officer, Steven Harris. At the
       conclusion of the evidence, and after the arguments of
       counsel, the [c]ourt adjudicated [Appellant] guilty of VUFA
       – person not to possess and tampering with physical
       evidence and not guilty of VUFA – carrying without a license.
       On [June 4, 2019, Appellant] was sentenced to two and one-
       half to five years at the VUFA count and a consecutive term
       of six to twelve months for tampering with evidence, for an
       aggregate sentence of three to six years. He was given
       credit for [time served] prior to sentencing. A timely notice
       of appeal was filed [on July 5, 2019 (July 4, 2019 was a
       court holiday)] and, pursuant to this [c]ourt’s order,
       [Appellant] filed a Concise Statement of Errors Complained
       of on Appeal in which he raised a single claim: that the
       evidence was insufficient as to both counts.

       Officer Harris testified that he was on patrol on May 13,
       2017 in McKees Rocks Borough when he was dispatched to
       22 Locust Street to respond to a report that three men had
       tried to force entry into that residence. They were described
       as wearing hoodies; two grey and one black. When he
       arrived, he observed three young men wearing hoodies. He
       stepped from his vehicle and ordered them to stop, which
       they initially did. As he reached into his vehicle to turn on
       his lights, the individual in the black hoodie began to walk
       away from him. When Officer Harris exited his vehicle, this
       person ran, and the officer gave chase. He began to pursue
       him, holding his flashlight on [Appellant] as he ran. He kept
       [Appellant] in sight for all but a few seconds when a car
       passed between them. During the chase, he observed
       [Appellant] grabbing at his waistband, as if he was trying to
       clutch at something held there. His experience told him that
       this was a common area where firearms are found and that
       armed suspects will often clutch there as they run, trying to
       hold the weapon in place.

       [Appellant] ran up a ramp that ended at a wall alongside

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         railroad tracks. He tried to climb over the wall but failed.
         As the officer got closer and shined the flashlight on him, he
         saw [Appellant] make a throwing motion with his left arm.
         He could not identify the black object he saw traveling from
         [Appellant’s] left hand and go up onto the tracks. He did,
         however, hear a loud thud as that object hit the ground near
         the tracks. Assisted by a [D]etective Finnerty, he took
         [Appellant] into custody and then returned to the area
         where [Appellant] had thrown the black object where he
         discovered a Sig Sauer nine-millimeter lying on the ground,
         about three feet from a black cellphone later determined to
         belong to [Appellant]. [Appellant] did not have a cell phone
         in his possession when apprehended. The firearm was
         tested at the Allegheny County Crime Lab and determined
         to be operable. No DNA or fingerprints were found on the
         weapon.

(Trial Court Opinion, filed December 9, 2019, at 2-4) (internal citations

omitted).

      Appellant raises the following issue for our review:

         WAS THE EVIDENCE INSUFFICIENT TO SUSTAIN THE
         CONVICTIONS FOR POSSESSION OF FIREARM PROHIBITED
         (18 PA.C.S. § 6105(A)(1)), AND TAMPER[ING] WITH
         PHYSICAL EVIDENCE (18 PA.C.S. § 4910), INSOFAR AS THE
         COMMONWEALTH     FAILED    TO    PROVE    BEYOND    A
         REASONABLE DOUBT THAT [APPELLANT] WAS IN
         POSSESSION OF THE FIREARM THAT WAS LOCATED IN
         PROXIMITY TO WHERE HE WAS ARRESTED?

(Appellant’s Brief at 5).

      When examining a challenge to the sufficiency of evidence:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all 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

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         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. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.

Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).

      Appellant argues the Commonwealth failed to prove beyond a

reasonable doubt that he was in possession of the firearm recovered in close

proximity to him upon apprehension. Appellant asserts the Commonwealth’s

sole witness, Officer Harris, did not observe Appellant carrying a gun during

the police chase. Appellant claims the Commonwealth failed to produce any

DNA or fingerprint evidence that linked Appellant to the recovered gun.

Appellant maintains Officer Harris was unable to identify the object the officer

saw Appellant discard. Appellant insists the item the officer saw Appellant

toss could have been Appellant’s cellphone. Appellant claims the fact that he

was clutching his waistband during the police chase did not mean he was

carrying a gun, as Appellant might have just been holding up his pants.

Appellant stresses that Officer Harris did not see a bulge in Appellant’s


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clothing. Appellant submits the Commonwealth presented nothing more than

Appellant’s mere presence in the proximity of the recovered gun. Appellant

concludes the Commonwealth failed to prove he constructively possessed the

gun necessary to sustain his conviction for persons not to possess a firearm,

and this Court should reverse his conviction.2 We disagree.

       The Crimes Code defines the offense of persons not to possess a firearm,

in relevant part, as follows:

          § 6105. Persons not to possess, use, manufacture,
          control, sell or transfer firearms

          (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) (effective January 3, 2017 to April 9, 2019).


____________________________________________


2 Appellant does not cite to the statute for tampering with physical evidence
or provide any separate argument concerning the sufficiency of the evidence
for that offense. Rather, Appellant simply offers one sentence challenging the
sufficiency of the evidence for his tampering conviction, stating: “Because the
evidence was insufficient to establish that [Appellant] possessed the gun, it
was also insufficient to prove that he tampered with the gun.” (Appellant’s
Brief at 13). Appellant’s failure to develop this claim in a meaningful way with
citations to authority constitutes waiver on appeal. See Pa.R.A.P. 2119(a)
(discussing requirements for argument section in appellate brief);
Commonwealth v. Spotz, 610 Pa. 17, 80 n.21, 18 A.3d 244, 281 n.21
(2011) (explaining appellant’s one sentence argument “does not constitute a
developed, reasoned, supported, or even intelligible argument. The matter is
waived for lack of development”).

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     “When contraband is not found on the defendant’s person, the

Commonwealth must establish constructive possession….” Jones, supra at

121 (quoting Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa.Super.

1996), appeal denied, 547 Pa. 751, 692 A.2d 563 (1997)). This Court has

defined constructive possession as follows:

           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) (quotation 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.” Id.
        (citation omitted).

Commonwealth v. Roberts, 133 A.3d 759, 767-68 (Pa.Super. 2016), appeal

denied, 636 Pa. 675, 145 A.3d 725 (2016) (holding evidence was sufficient to

connect appellant to specific area where sergeant discovered cocaine to prove

appellant had control and possession of it, i.e., constructive possession;

specifically, record showed that sergeant who had discovered controlled

substance immediately “backtracked” appellant’s path; sergeant testified that

in area where he had observed appellant run around parked vehicle, he found


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cell phone which had picture of appellant as screen saver, lying by vehicle’s

tire, and within four feet, sergeant found two large plastic baggies containing

white substance, which subsequently tested positive for cocaine). See also

In re R.N., 951 A.2d 363 (Pa.Super. 2008) (holding evidence was sufficient

to support juvenile’s adjudication of delinquency for possession of firearm

where officer testified that he saw appellant throw metal object from

passenger-side window of vehicle in which he was riding, and that officer was

no more than ten feet from vehicle when he witnessed it; shortly after he

arrested appellant, officer recovered loaded handgun from front of vehicle; no

other metal objects were found in vicinity that could have been what officer

saw thrown from window; evidence in this case, including testimony of officer,

is sufficient to establish appellant possessed firearm found at crime scene).

      Instantly, the trial court addressed Appellant’s sufficiency claim as

follows:

           This [c]ourt determined that the evidence established,
           beyond a reasonable doubt, that [Appellant] possessed the
           firearm found lying near the railroad tracks.             The
           circumstances of [Appellant’s] flight, his clutching at
           something in his waistband, his tossing of a black object
           onto the railroad tracks and the discovery of a firearm in the
           area where this object was thrown, when taken together,
           convinced this court, beyond a reasonable doubt, that
           [Appellant] possessed that weapon and threw it onto the
           tracks when being chased and his capture appeared
           imminent.

(Trial Court Opinion at 5). We agree with the trial court that the totality of

the circumstances established Appellant’s constructive possession of the


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firearm. See Roberts, supra; In re: R.N., supra. Viewed in the light most

favorable to the Commonwealth as verdict-winner, the evidence was sufficient

to sustain Appellant’s conviction for persons not to possess a firearm. See 18

Pa.C.S.A. § 6105; Hansley, supra. Therefore, Appellant’s challenge to his

tampering conviction is waived; and his sufficiency claim concerning his

firearms offense merits no relief. Accordingly, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/2020




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