J-S22001-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CALVIN LABRON JONES, JR.                   :
                                               :
                       Appellant               :   No. 1189 MDA 2019

          Appeal from the Judgment of Sentence Entered June 17, 2019
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0000451-2018


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.:                                   FILED MAY 22, 2020

        Appellant, Calvin Labron Jones, Jr., appeals from the June 17, 2019

judgment of sentence ordering him to serve 50 to 100 months’ imprisonment

and to pay a $500 fine and costs after a jury convicted Appellant of persons

not to possess firearms.1 We affirm.

        The trial court summarized the factual history as follows:

        On the evening of December 8, 2017, Officer Chad McGowan of
        the Harrisburg Bureau of Police was working as a [s]treet [c]rimes
        [u]nit [o]fficer with Probation Officer Dan Kinsinger. They came
        across an individual by the name of Curtis Hall [(“Curtis”)] in the
        1300 block of Swatara Street, a high crime/drug area of
        Harrisburg[, Pennsylvania]. Officer McGowan testified that the
        initial reason why they stopped in that area was because his
        partner recognized Curtis[, who] was standing next to a silver


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 6105(a)(1).
J-S22001-20


     minivan. Officer Kinsinger initiated contact with Curtis, who was
     with his brother Donell Hall [(“Donell”)] at the time.

     Officer McGowan exited his vehicle to assist Officer Kinsinger. As
     he walked over to the minivan, he observed a male, later identified
     as [Appellant], sitting in the driver’s seat. As Officer McGowan
     approached, [Appellant] got out of the vehicle and started to walk
     towards him. According to Officer McGowan, while Curtis and
     Donell did not appear to be at all affected by the police presence,
     [Appellant] appeared very nervous, talkative, excited, and looked
     as though he was trying to distance himself from the [minivan].
     [Appellant] asked to talk to [Officer McGowan] in private, away
     from [Curtis and Donell], and told him that he was actually
     working undercover for the [Pennsylvania] State Police, and had
     previously done work for former Chief Deputy District Attorney
     Johnny Baer. [Appellant] told Officer McGowan that the officers’
     presence was [interfering with] the undercover operation. It
     appeared to Officer McGowan that [Appellant] was [attempting to
     use] various [distraction techniques to avoid inquiry by the
     officer].

     Through the [minivan’s] lowered window, Officer McGowan saw
     an open, partially consumed bottle of brandy on the front
     passenger seat.         He asked for and [received Appellant’s
     identification card] and asked if [Appellant] had anything illegal
     on his person. [Appellant] said he did not, and then consented to
     a search of his person. The only thing found by Officer McGowan
     was a folded stack of lottery tickets. Officer McGowan then asked
     for permission to search the minivan. [Appellant] said yes, but
     then told the officer that it was his girlfriend Khailah Layton’s
     vehicle, and he would feel better if they called her first to get her
     consent. When asked if there were any drugs or firearms inside
     the [minivan], [Appellant] told Officer McGowan that he believed
     his girlfriend left a [gun] in the [minivan]. Officer McGowan asked
     exactly where [the] gun was located, and [Appellant] told him Ms.
     Layton left the gun inside her purse on the second[-]row bench
     seat. They made contact with Ms. Layton and received her
     consent to search the vehicle. During the search of the [minivan],
     Officer McGowan found the [gun] directly underneath the
     second[-]row bench seat, within arm’s reach of the driver’s seat.
     There was no purse, only the gun. It was a nine-millimeter
     semi-automatic Smith and Wesson pistol and was fully-loaded,
     with a round in the chamber. The firearm was registered to Ms.
     Layton.     [Appellant’s] explanation for the gun being in the
     [minivan] was that he, Ms. Layton, and their children had been

                                     -2-
J-S22001-20


      grocery shopping and Ms. Layton had left her purse inside the
      [minivan]. [Appellant] was subsequently arrested by Officer
      McGowan.

      When asked who owned the [minivan], Ms. Layton testified that it
      was not owned by her; rather, it was a loaner [vehicle] given to
      her from the dealership after she experienced car trouble. At trial
      Ms. Layton testified that she, [Appellant], and their daughter had
      gone grocery shopping on the evening in question, although the
      statement given to the police that night indicated that [Appellant]
      had not gone shopping with them. Ms. Layton testified that the
      gun was in her purse, as she had forgotten to take it out, and
      when they got to the grocery store[,] she did not want it with her.
      She claimed to have put it under the [front] passenger seat. Ms.
      Layton testified that she was carrying a loaded gun because a
      woman[,] who [Appellant] had a relationship with[,] was stalking
      and harassing her.

      [Appellant] took the stand and first admitted that he had []a prior
      conviction for false identification to law enforcement. He asserted
      that he had already been in the process of getting out of the
      minivan when the officers [arrived on] the evening in question,
      and [he] had been at that location to speak to Curtis. He testified
      that he did not know that the firearm was in the [minivan] when
      he gave Officer McGowan consent to search the [vehicle].
      Contrary to Officer McGowan’s testimony, he claimed that Officer
      McGowan never asked if there was anything illegal in the vehicle
      and that [Appellant] never revealed that he knew there was a gun
      in the [minivan]. Rather, [Appellant’s] testimony was that he
      called his girlfriend on speaker-phone and told her he was with
      the police. According to [Appellant], Ms. Layton responded by
      asking why he [was not] answering his phone, told him she left
      her firearm in the [minivan], and asked where he was. Officer
      McGowan was re-called as a witness to clarify that [Appellant]
      made an admission that there was a firearm inside the vehicle,
      and was specific about its whereabouts. [Officer McGowan] was
      given this information prior to searching the [minivan].

Trial Court Opinion, 9/30/19, at 1-4 (record citations and footnote omitted).

      After a jury found Appellant guilty, on April 11, 2019, of the

aforementioned crime, the trial court sentenced Appellant, on June 17, 2019,



                                     -3-
J-S22001-20



to 50 to 100 months’ incarceration and ordered him to pay a fine in the amount

of $500, as well as costs. Appellant filed a post-sentence motion raising a

claim of insufficient evidence and arguing that the verdict was against the

weight of the evidence.         The trial court denied Appellant’s post-sentence

motion on June 27, 2019. This appeal followed.2

       Appellant raises the following issues for our review:

       [1.] Did the Commonwealth fail to present evidence sufficient to
            sustain a verdict of guilty with respect to [the crime of
            persons not to possess a firearm]?

       [2.] Did the trial [court] abuse its discrection [sic] when it denied
            Appellant[’]s motion for [a] new trial claiming the verdict of
            the jury was contrary to the greater weight of the
            evidence[?]

Appellant’s Brief at 6 (extraneous capitalization omitted).

       Appellant claims the evidence is insufficient to support his conviction of

persons not to possess a firearm because the Commonwealth failed to prove

Appellant possessed the firearm, an element of the crime.         Id. at 13.   In

addressing a sufficiency claim, our standard and scope of review are well

settled.

       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
____________________________________________


2Both Appellant and the trial court complied with Pa.R.A.P. 1925. In a January
2, 2020 per curiam order, this Court dismissed the instant appeal for
Appellant’s failure to file a brief. On January 7, 2020, this Court, in a per
curiam order, vacated its dismissal order and reinstated Appellant’s appeal.
Appellant subsequently filed his brief on February 18, 2020, and the
Commonwealth filed its brief on April 2, 2020.

                                           -4-
J-S22001-20


     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 proof or 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 the 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. Pappas, 845 A.2d 829, 835-836 (Pa. Super. 2004)

(citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004). To preserve a

sufficiency claim, the Rule 1925(b) statement must specify the element or

elements upon which the evidence was insufficient.       Commonwealth v.

Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008).

     Pursuant to 18 Pa.C.S.A. § 6105, in order to sustain a conviction for

persons not to possess a firearm, “the Commonwealth must prove that

Appellant possessed a firearm and that he was convicted of an enumerated

offense [under Section 6105(b) or (c)] that prohibits him from possessing,

using, controlling, or transferring a firearm.” Commonwealth v. Miklos, 159

A.3d 962, 967 (Pa. Super. 2017) (brackets and original quotation marks

omitted), appeal denied, 170 A.3d 1042 (Pa. 2017); see also 18 Pa.C.S.A.

§ 6105.



                                    -5-
J-S22001-20



         “Illegal possession of a firearm may be established by constructive

possession.” Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super.

2018).

         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
         []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 []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), appeal denied, 78 A.3d 1090 (Pa. 2013).

         In his Rule 1925(b) statement, which incorporated the allegations set

forth in his post-sentence motion, Appellant contends the Commonwealth

failed to prove that the firearm was either in his possession or under his

control at the time of the incident.       Appellant’s Rule 1925(b) Statement,

9/17/19, at ¶3; see also Appellant’s Post-Sentence Motion, 6/25/19, at ¶5;

Appellant’s Brief at 13-15. Appellant argues that his mere presence in the

vehicle where the police found the firearm does not amount to constructive

possession of the firearm because the Commonwealth failed to establish that

Appellant had the intent to exercise control over the firearm. Appellant’s Brief

at 15.

         In finding record support that Appellant constructively possessed the

firearm, the trial court stated,


                                        -6-
J-S22001-20


      [t]he gun was found on the floor under the second-row bench
      seat, and was within [Appellant’s] reach from the driver’s seat.
      All [Appellant] had to do was reach back to retrieve the firearm.
      Therefore, it was shown beyond a reasonable doubt that
      [Appellant] had the power to control the gun. His intent to control
      the firearm was borne out by circumstantial evidence. There was
      testimony to suggest that [Appellant] was acting in a deliberate
      way to keep the police officer away from the [minivan], even going
      as far as to say that he was acting in an undercover capacity and
      that the officers were interfering with [his undercover operation].
      [Appellant’s] statement to [the] police that the gun was in a purse
      in the backseat was utterly false. Ms. Layton testified that she
      placed the firearm under the front passenger seat, and it was
      actually found under the backseat, and not under the front seat.
      The jury clearly believed that it was someone other than Ms.
      Layton who moved the firearm, namely, [Appellant]. The jury was
      free to believe all, part, or none of the evidence. Viewing the
      totality of the circumstances and circumstantial evidence, there is
      more than ample support for a determination that [Appellant] had
      the power to control the [firearm], and the intent to exercise that
      control.

Trial Court Opinion, 9/30/19, at 5-6.

      With regard to the element of possession, the record demonstrates the

police officers discovered the firearm underneath the middle of the second-row

bench seat in a vehicle of which Appellant was the driver and sole occupant at

the time the firearm was discovered. The location of the firearm was very

close to the driver’s seat that Appellant occupied just prior to exiting the

vehicle as the police approached. Officer McGowan testified that Appellant,

upon exiting the vehicle, attempted to dissuade the police officers’

involvement in the situation by stating that Appellant was currently involved

in an undercover operation. Appellant did not offer any evidence, other than

his own self-serving testimony, to discredit Officer McGowan’s testimony of



                                     -7-
J-S22001-20



the events. Officer McGowan stated the police had no knowledge of any active

undercover operations ongoing in the area at the time of the encounter with

Appellant. Appellant’s girlfriend testified that, earlier in the day, she placed

the firearm, of which she was the registered owner, under the front passenger

seat of the vehicle before going into the grocery store. Appellant’s girlfriend

further stated that upon arriving home from the grocery store, Appellant

unloaded the groceries and later left in the vehicle without her knowledge. It

was after Appellant left in the vehicle that his girlfriend realized her gun was

not in her purse, which was on top of the refrigerator in her kitchen.

      Based upon the totality of the circumstances, the jury could infer,

beyond a reasonable doubt, that Appellant constructively possessed the

firearm found underneath the middle of the second-row bench seat.           The

firearm was located in close proximity to the driver’s seat that Appellant

occupied just prior to exiting the vehicle.     Thus, the firearm was within

Appellant’s reach and control. In addition, Appellant’s girlfriend stated that

she placed the firearm under the front passenger seat before entering the

grocery store and forgot to remove the gun upon returning home. Appellant

had control of the vehicle after returning home from the grocery store and at

the time of the incident. The evidence was therefore sufficient to support a

finding that Appellant moved the firearm from underneath the front passenger

seat, where Appellant’s girlfriend placed it, to underneath the middle of the

second-row bench seat, where police officers recovered the gun. Therefore,

viewing all of the evidence and the inferences drawn from that evidence in the

                                     -8-
J-S22001-20



light most favorable to the Commonwealth, as the verdict winner, there was

sufficient evidence for the jury, as fact-finder, to find that Appellant had

control over the firearm and the intent to exercise that control. Additionally,

Appellant stipulated that in October 2008, he be convicted of a violation of

The Controlled Substance, Drug, Device and Cosmetic Act, namely a

conviction for manufacture, delivery, or possession with the intent to deliver

a controlled substance.        N.T., 4/10/19, at 69;        see also 35 P.S.

§ 780-113(a)(30).    Therefore, Appellant was convicted of an offense that

prohibited him from possessing, using, controlling, or transferring a firearm

pursuant to 18 Pa.C.S.A. § 6105(c)(2). Thus, Appellant’s sufficiency claim is

without merit.

      Appellant’s second issue raises a claim that the verdict was against the

weight of the evidence, for which our standard and scope of review is as

follows:

      Appellate review of a weight claim is a review of the exercise of
      discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge
      []had the opportunity to hear and see the evidence presented, an
      appellate court will give the gravest consideration to the findings
      and reasons advanced by the trial judge when reviewing a trial
      court’s determination that the verdict is [or is not] against the
      weight of the evidence. One of the least assailable reasons for
      granting or denying a new trial is the [trial] court’s conviction that
      the verdict was or was not against the weight of the evidence and
      that a new trial should be granted in the interest of justice.

Commonwealth v. Horne, 89 A.3d 277, 285 (Pa. Super. 2014), citing

Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000).                  The trial court


                                      -9-
J-S22001-20



abuses its discretion “where the course pursued represents not merely an

error of judgment, but where the judgment is manifestly unreasonable or

where the law is not applied or where the record shows that the action is a

result of partiality, prejudice, bias or ill-will.”   Horne, 89 A.3d at 285-286

(citation omitted).   In order for an appellant to prevail on a weight of the

evidence claim, “the evidence must be so tenuous, vague and uncertain that

the verdict shocks the conscience of the [trial] court.” Commonwealth v.

Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003) (citation and internal

quotation marks omitted), appeal denied, 833 A.2d 143 (Pa. 2003).

      Here, Appellant argues that the trial court erred in denying his

post-sentence motion challenging the weight of the evidence to support his

conviction. Appellant’s Brief at 16-20. Appellant contends that his testimony

and the testimony of his girlfriend support a finding that he had no knowledge

of the firearm in the vehicle and, therefore, could not have constructively

possessed the firearm for purposes of his conviction. Id. at 20. Appellant

avers that Officer McGowan falsely testified that Appellant told him the gun

was in the vehicle prior to the police officers’ search of the vehicle and

recovery of the firearm from underneath the middle of the second-row bench

seat. Id. at 19.

      Appellant’s argument invites this Court to do nothing more than

reassess the witnesses’ credibility and reweigh the evidence in an attempt to

convince us to reach a result different than the one reached by the jury, as

fact-finder. We decline Appellant’s invitation. Commonwealth v. Clay, 64

                                       - 10 -
J-S22001-20



A.3d 1049, 1056 (Pa. 2013) (holding role of appellate court when addressing

weight claim is to determine if trial court exceeded its limit of judicial discretion

or invaded province of jury). Based upon the record before us, we discern no

abuse of discretion on the part of the trial court in denying Appellant’s request

for a new trial based on his claim that the verdict was against the weight of

the evidence. Therefore, Appellant’s claim is without merit.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/22/2020




                                       - 11 -
