J-S45039-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                 Appellee                      :
                                               :
                     v.                        :
                                               :
JUSTIN BUCHANAN,                               :
                                               :
                 Appellant                     :   No. 1901 EDA 2016

              Appeal from the Judgment of Sentence April 19, 2016
               in the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0004562-2015

BEFORE:      GANTMAN, P.J., PANELLA, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                     FILED SEPTEMBER 11, 2017

        Justin Buchanan (Appellant) appeals from the judgment of sentence

imposed following his conviction for carrying a firearm without a license. We

affirm.

        The trial court aptly summarized the relevant factual and procedural

history of this matter as follows.

              At the preliminary hearing held on July 30, 2015, and at
        the non-jury trial held on April 19, 2016, Officer Jennifer Cocco,
        Officer Thomas J. Schreiber, and Officer Jon Jagodinski of the
        Radnor Township Police Department, testified on behalf of the
        Commonwealth. Officer John Valvardi of the Haverford Police K[-
        ]9 unit also testified on behalf of the Commonwealth during the
        non[-]jury trial.

              On September 12, 2014 at approximately 11:30 p.m.,
        while conducting a DUI checkpoint, Officer Cocco made contact
        with the driver of an SUV[.] [In addition to the driver and
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*
    Retired Senior Judge assigned to the Superior Court.
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     Appellant, there was a female front seat passenger, a female
     backseat passenger, and two children in the vehicle. Appellant]
     was a passenger seated in the rear driver’s side of the SUV,
     directly next to a child car seat.

            When speaking with the driver of the vehicle, Officer Cocco
     smelled a strong odor of raw marijuana and requested consent
     to search the vehicle. The driver provided consent and all
     occupants were asked to exit the vehicle. During the search of
     the area behind the driver’s seat, Officer Cocco asked the driver
     whether the rear passenger seat on the driver’s side lifts up, as
     it would be easier to see underneath the seat by lifting it than it
     would be to crouch down to try to look underneath. The driver
     confirmed that the seat does lift up, and assisted the officer in
     lifting the seat. As soon as the driver lifted the seat, a firearm
     was visible underneath, although was not necessary to lift the
     seat up to access the firearm.

            Officer Cocco testified that from the onset of this
     encounter, the driver of the vehicle appeared calm and
     cooperative, and upon lifting the seat and seeing the firearm, the
     driver appeared surprised. The firearm was a loaded .22 caliber
     pistol, discovered under the seat where [Appellant] was seated,
     and was within his reach. The driver gave a written statement to
     police indicating that he did not own the gun that was found in
     his car.

           Following the observation of the firearm, all occupants of
     the vehicle were searched for officer safety. Currency in the
     amount of $787 was found on [Appellant’s] person. The odor of
     raw marijuana remained, but [the marijuana itself] was not
     readily visible, and a K-9 unit was requested. The K-9 unit “hit”
     in a location in the very rear of the SUV, in the vicinity of a
     wheel well tire jack storage area. Upon opening the storage
     compartment, officers discovered several plastic bags containing
     vegetable matter, later determined to be a total of 114.47 grams
     of marijuana. All other items in the back of the SUV, with the
     exception of a large TV, were baby-related.

           Mrs. Hernandez, the passenger seated in the front right
     passenger seat during this encounter, testified that she and the
     driver, Felix Santiago, left York, PA to go to Philadelphia to pick
     up her daughter and grandchildren. At that time, there were no
     other passengers in the car, there was nothing in the rear of the

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        vehicle, and the car seats were not in the back seat. Upon their
        arrival, and at the last moment, they were informed that
        [Appellant] wanted to go with them. The driver helped
        [Appellant] put a big TV in the very back of the SUV, and
        [Appellant] and Mrs. Hernandez’s daughter loaded [the]
        remaining items.

              [Appellant] wanted to stop at his mother’s house in West
        Philadelphia, so they drove to [Appellant’s] mother’s
        neighborhood and waited for [Appellant], who returned a few
        hours later. During these few hours, the driver remained in the
        vehicle, and the passengers only left the vehicle briefly to go to
        the store around the corner, then returned. [Appellant] returned
        to the rear driver’s side seat and they left the neighborhood
        around 9:00 p.m.

              [Appellant] occupied the rear driver’s side passenger seat
        with a child car seat directly next to him. The firearm was
        located directly under the seat [Appellant] was seated, and
        easily within reach. No other occupants in the vehicle would have
        been within reach of the firearm.

Trial   Court   Opinion,   1/6/2017,   at    1-2   (footnotes   and   unnecessary

capitalization omitted).

        Appellant was arrested and charged with, inter alia, possession of a

firearm without a license and, following a non-jury trial, he was convicted of

this offense. On April 19, 2016, Appellant was sentenced to an aggregate

term of 20 to 40 months’ incarceration.        This timely-filed appeal followed.

Both Appellant and the trial court complied with the mandates of Pa.R.A.P.

1925.

        On appeal, Appellant argues that the evidence was insufficient to

prove that he had the mens rea necessary for constructive possession of the

firearm recovered from the vehicle. Appellant’s Brief at 4.


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      We begin by reviewing the relevant legal principles.

      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 [Commonwealth as 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 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.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015)

(citation omitted).

      To sustain a conviction for the crime of possession of a firearm without

a license, the Commonwealth must prove that Appellant carried a firearm “in

any vehicle … without a valid and lawfully issued license.” 18 Pa.C.S § 6106

(a)(1).   Appellant does not dispute that he lacks a valid firearms license;

rather, he confines his argument to whether the Commonwealth carried its

burden of proof with respect to possession.

      Because the firearm was not found on Appellant’s person, the

Commonwealth was required to prove constructive possession.

      Constructive possession is a legal fiction, a pragmatic construct
      to deal with the realities of criminal law enforcement. … 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

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          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

marks and citation 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.”

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

omitted).

          Appellant contends that the Commonwealth improperly based its case

“on the fact that Appellant was the closest person in proximity to the

firearm” and relied on the “self-serving statements of a co-defendant” to

imply that since the driver … stated he did not own the firearm” it must have

been Appellant’s. Appellant’s Brief at 11-12. Additionally, Appellant argues

that the Commonwealth offered no testimony to prove that Appellant had

knowledge of the firearm or intended to exercise dominion and control over

it. Id.

          The trial court determined that the evidence was sufficient to support

Appellant’s conviction. Trial Court Opinion, 1/6/2016, at 3. Our review of the

record shows that it was reasonable for the trial court, sitting as factfinder,

to conclude from the evidence presented, giving credit to the officers’

testimony and that of the vehicle’s other occupants, that Appellant




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constructively possessed the firearm.1           The evidence demonstrated that

Appellant was a last minute addition to the trip.        Prior to their departure,

Appellant loaded a number of personal items into the vehicle.           When the

SUV was pulled over, Appellant was seated in the backseat, behind the

driver and next to a car seat. By virtue of his location, Appellant was the

only person with access to the firearm.             The driver, who was, by all

accounts, calm and collected during the search of his vehicle, expressed

surprise at the discovery of the firearm and explained to officers that it was

not his.

       “Constructive possession is an inference arising from a set of facts that

possession of the contraband was more likely than not.” Commonwealth

v. Jackson, 659 A.2d 549, 551 (Pa. 1995) (quoting Commonwealth v.

Mudrick, 507 A.2d 1212, 1213 (Pa. 1986)). It is well established that “the

evidence at trial need not preclude every possibility of innocence, and the

fact-finder is free to resolve any doubts regarding a defendant’s guilt 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.”

Commonwealth v. Hughes, 908 A.2d 924, 928 (Pa. Super. 2006). Here,

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1
  See, e.g., Commonwealth v. Love, 896 A.2d 1276, 1283 (Pa. Super.
2006) (“We may not weigh the evidence or substitute our judgment for that
of the fact-finder. … When evaluating the credibility and weight of the
evidence, the fact-finder is free to believe all, part, or none of the
evidence.”)



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the evidence was sufficient to permit the trial court to conclude that

Appellant constructively possessed the gun.   Accordingly, Appellant’s claim

fails.

         Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/2017




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