J-S50038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

DEQUAN FELTON

                            Appellant                No. 3085 EDA 2016


          Appeal from the Judgment of Sentence September 6, 2016
            in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0002577-2015


BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                       FILED SEPTEMBER 08, 2017

       Appellant, Dequan Felton, appeals from the judgment of sentence of

eleven and one-half to twenty-three months of incarceration followed by four

years of probation, imposed September 6, 2016, following a bench trial

resulting in his conviction for violations of the Uniform Firearms Act and

simple possession.1 We affirm.

       We adopt the following statement of facts from the trial court opinion,

which in turn is supported by the record.      See Trial Court Opinion (TCO),

1/24/17, at 1-4.       On February 6, 2015, Philadelphia Police Officer Chris

Ozorowski was on patrol near the 1400 block of North 12th Street in

Philadelphia, Pennsylvania. At approximately 1:30 a.m., Officer Ozorowski
____________________________________________


1
  See 18 Pa.C.S. §§ 6106, 6108, and 6110.2, and 35 P.S. § 780-
113(a)(31)).
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observed a black Lincoln Navigator with tinted windows drive through a stop

sign. He effectuated a traffic stop and called for backup. Officer Ozorowski

approached the driver’s side of the vehicle, and a second officer approached

the passenger’s side. The occupants voluntarily rolled down the windows to

reveal five passengers in three rows of seats. Appellant was seated in the

center row behind the front passenger.

     Officer Ozorowski informed the driver that he smelled marijuana, and

the driver admitted that they had smoked marijuana earlier in the vehicle.

The driver gave consent to search, and the occupants were removed. In the

center console, Officer Ozorowski discovered a white bag filled with empty

vials, common packaging for marijuana. An examination of the center row

showed “the slide” of a handgun visible in the map pocket attached to the

rear of the front passenger seat. The gun was visible looking directly down

into the pocket.   The handgun, with obliterated serial number, was within

half an arm’s length from Appellant’s seat.   Officer Ozorowski recovered a

pill bottle containing suspected marijuana from the same compartment.

Appellant was placed under arrest.

     The parties made a number of stipulations at trial: 1) Appellant lacked

a valid license to possess a firearm; 2) the firearm was operable and had

obliterated serial numbers; 3) the pill bottle contained marijuana; 4) DNA

swabs were obtained from the firearm and from Appellant. Additionally, the

Commonwealth presented expert testimony that DNA test results were

inconclusive, i.e., there was insufficient data to determine that Appellant’s

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DNA either did or did not match the DNA on the firearm.                   The

Commonwealth also presented transcripts from phone calls Appellant had

made during his pretrial incarceration, indicating he felt he could beat the

firearms charges and that he had “flushed” an item, potentially drugs, at the

police station while handcuffed.

      Appellant was convicted on all charges and sentenced to an aggregate

of eleven to twenty-three months of incarceration followed by four years of

probation.   Appellant filed a motion seeking reconsideration of sentence,

which the court denied.

      Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The trial court issued a responsive opinion.

      On appeal, Appellant raises the following issues for our review:

      [1.] Is the evidence sufficient as a matter of law to sustain
      [Appellant’s] conviction for the crimes of 18 Pa.C.S.A. §§ 6106,
      6108, and 6110.2 where the evidence does not establish that
      [Appellant] constructively possessed a firearm recovered from a
      vehicle and: (i) the firearm was recovered in the opaque map
      pocket located in the back of the front passenger seat of a
      vehicle in which he was merely present; (ii) the vehicle was not
      owned or operated by [Appellant]; (iii) four other individuals
      were also present in the vehicle; (iv) DNA testing on the gun
      revealed “inconclusive” results as to whether [Appellant ever
      handled the gun; and (v) the DNA of the other occupants of the
      car was never tested?

      [2.] Is the verdict for the crimes of 18 Pa.C.S.A. §§ 6106, 6108,
      and 6110.2 against the weight of the evidence and so contrary
      to the evidence that it shocks one’s sense of justice as the
      evidence does not establish that [Appellant] constructively
      possessed a firearm recovered from a vehicle and: (i) the
      firearm was recovered in the opaque map pocket located in the
      back of the front passenger seat of a vehicle in which he was

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       merely present; (ii) the vehicle was not owned or operated by
       [Appellant]; (iii) four other individuals were also present in the
       vehicle; (iv) DNA testing on the gun revealed “inconclusive”
       results as to whether [Appellant ever handled the gun; and (v)
       the DNA of the other occupants of the car was never tested?

Appellant’s Brief at 7-8.

       First, Appellant claims that the evidence was insufficient to sustain his

convictions for firearms not to be carried without a license, carrying firearms

on public streets of Philadelphia, and possession of a firearm with altered

manufacturer’s number. See Appellant’s Brief at 18. Essentially, Appellant

contends that the evidence fails to show he constructively possessed the

firearm recovered from the vehicle.2 Id. at 19.

       We review a challenge to the sufficiency of the evidence as follows.

       In determining whether there was sufficient evidentiary support
       for a jury’s finding [], the reviewing court inquires whether the
       proofs, considered in the light most favorable to the
       Commonwealth as a verdict winner, are sufficient to enable a
       reasonable jury to find every element of the crime beyond a
       reasonable doubt.        The court bears in mind that: the
       Commonwealth may sustain its burden by means of wholly
       circumstantial evidence; the entire trial record should be
       evaluated and all evidence received considered, whether or not
       the trial court’s rulings thereon were correct; and the trier of
       fact, while passing upon the credibility of witnesses and the
       weight of the evidence, is free to believe all, part, or none of the
       evidence.
____________________________________________


2
  Appellant does not identify the elements of the crimes for which he was
convicted, and accordingly risks waiver. See, e.g., Commonwealth v.
Williams, 959 A.2d 1252, 1257-58 (Pa. Super. 2008). However, as all of
the offenses were possessory firearms offenses, and Appellant challenges
possession, we decline to find waiver in this instance.




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Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008) (citations

omitted). Here, Appellant was convicted of three violations of the Uniform

Firearms Act. First, he was convicted for possession of a firearm without a

license, which is defined as follows:

      . . . 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.

      Appellant was also convicted of carrying a firearm on public streets of

Philadelphia, which is defined as follows:

      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:

      (1) such person is licensed to carry a firearm; or

      (2) such person is exempt from licensing under section 6106(b)
      of this title (relating to firearms not to be carried without a
      license).

18 Pa.C.S. § 6108.

      Finally, Appellant was convicted of possession of a firearm with an

altered manufacturer’s number, which is defined as follows:

      No person shall possess a firearm which has had the
      manufacturer's number integral to the frame or receiver altered,
      changed, removed or obliterated.

18 Pa.C.S. § 6110.2.




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         The only element of these charges which Appellant challenges is

possession.     As the firearm was not located on Appellant’s person, the

Commonwealth was required to prove constructive possession, an “inference

arising from a set of facts that possession of the contraband was more likely

than not.” See Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super.

2004).      In order to establish constructive possession of a firearm, the

Commonwealth must establish that Appellant had “the power to control the

[weapon] and the intention to exercise that control.”   Commonwealth v.

Cruz, 21 A.3d 1247, 1253 (Pa. Super 2011) (citing Commonwealth v.

Townsend, 237 A.2d 192 (Pa. 1968)). Constructive possession may be

established by the totality of the circumstances. Id.

         Appellant’s main argument centers around a number of cases which

state that mere presence is not sufficient to establish constructive

possession.       See Townsend, 237 A.2d at 192; Commonwealth v.

Armstead, 305 A.2d 1 (Pa. 1973); Commonwealth v. Hamm, 447 A.2d

960 (Pa. Super. 1982); Commonwealth v. Boatwright, 453 A.2d 1058

(Pa. Super. 1982); Commonwealth v. Duffy, 340 A.2d 869 (Pa. Super.

1975); see also Appellant’s Brief at 18-34.     He avers that there was no

physical or documentary evidence linking him to the firearm and that,

accordingly, the Commonwealth has not met its burden.        See Appellant’s

Brief at 32-33.

         The cases upon which Appellant relies are distinguishable on their

facts.     Appellant first cites Armstead, where Armstead, a front seat

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passenger, was charged with unlawful possession of a firearm. Armstead,

305 A.2d at 2. A firearm was recovered from the middle of the front seat of

the vehicle. Id. Our Supreme Court reversed and vacated the judgment of

sentence, noting that the officers’ testimony established that they did not

observe the weapon when they initially stopped the automobile, and that it

was equally as likely that the driver had discarded the weapon as it was that

Armstead had control of it. Id. In the instant case officers stopped the car,

removed the passengers, and searched the car. The gun was found in the

pocket closest to Appellant, behind the front passenger’s seat, well within

arm’s reach. An inference that the driver had discarded the firearm was not

appropriate in this case.

      Appellant next cites Townsend, where police stopped a car after

seeing a man with a gun.         Townsend, 237 A.2d at 193.          A gun was

subsequently found partially concealed under the front seat.        Id. at 194.

Our Supreme Court reversed, finding that there was no evidence of record

as to where in the car Townsend was sitting: instead, the arresting officer

stated he could not recall Townsend’s position. Id. In the instant case, the

arresting officer testified that the gun was found in the pocket attached to

the rear of the front passenger seat and that Appellant was sitting in the

middle row of the vehicle, behind the front passenger seat.

      Appellant   next   cites   Duffy,   where   Duffy,   a   passenger   in   an

automobile, was stopped as a result of a traffic violation. Duffy, 340 A.2d

at 870. A gun was found far underneath the passenger’s side front seat, a

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mask and gloves in a glove compartment, and burglary tools in the rear

seat. Id. On appeal, this Court reversed, finding that the Commonwealth

had not proven Duffy knew of the presence of contraband.           Duffy is

distinguishable on two grounds. First, there was no evidence that Duffy had

been engaged in criminal activity at the time the firearm was discovered. In

the instant case, officers smelled marijuana, and the driver admitted that

they had smoked marijuana earlier in the car. Second, in Duffy, the firearm

was “far underneath” the seat and out of reach; in the instant matter, the

firearm was only a few inches away from Appellant’s reach and visible from

above the “pocket.” It was, thus, reasonable to assume that Appellant was

aware of and had intent to control the firearm. Id.

     Appellant’s reliance on Hamm is equally misplaced.       In that case,

officers stopped a car after recognizing a passenger, for whom an arrest

warrant had been issued.        Hamm, 447 A.2d 960, 961-62.           While

effectuating the stop, officers saw that passenger pass an object to another

who was a passenger in the front seat. Id. Hamm was driving the car, and

pulled over when police signaled to him to do so. Id. This Court reversed,

noting that we may not infer that an appellant knew of the weapon’s

existence simply because it was hidden in the automobile.       Id. at 270.

Hamm testified before the jury that he was unaware of the presence of any

weapon.   Id.   In the instant case, there was evidence of criminal activity

occurring prior to the discovery of the weapon. Further, given Appellant’s

location and the fact that the gun was visible “looking down” into the map

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pocket, it was reasonable to assume he was aware of the gun and had intent

to control it.

      Finally, Appellant cites to Boatwright, where officers, responding to a

call regarding suspicious men, observed Boatwright in the front passenger’s

seat of the vehicle. Boatwright, 453 A.2d at 1058-59. Boatwright “moved

towards his left rear,” at which time officers ordered him out of the car. Id.

A gun was visible on the left rear floor of the vehicle. Id. at 1059. This

Court reversed, finding that Appellant’s mere presence at the scene and

“leftward” movement were insufficient to prove constructive possession. Id.

In the instant case, however, Appellant was involved in criminal activity at

the time the gun was discovered and the gun was located directly in front of

him, within easy reach.

      In short, the totality of the circumstances supports the contention that

Appellant was aware of the firearm and more likely than not that he had the

ability and intention to control it. See Parker, 847 A.2d at 750; Cruz, 21

A.3d at 1253. Thus, the evidence was sufficient to support his convictions.

Diggs, 949 A.2d at 877.

      Appellant next claims that his convictions for various violations of the

Uniform Firearms Act are against the weight of the evidence and so contrary

to the evidence that it shocks one’s sense of justice. See Appellant’s Brief

at 35.      Appellant again argues that the evidence did not establish

constructive possession of the firearm, that no forensic evidence linked him

to the gun, that the vehicle was not his, and that no officer observed him

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reach for the gun.    Id.   Appellant also contends that the court placed

improper weight on the inconclusive DNA test and Appellant’s recorded

phone calls. Id. at 37.

     The law regarding weight of the evidence claims is well-settled.

     A claim alleging the verdict was against the weight of the
     evidence is addressed to the discretion of the trial court.
     Accordingly, an appellate court reviews the exercise of the trial
     court's discretion; it does not answer for itself whether the
     verdict was against the weight of the evidence. It is well settled
     that the jury is free to believe all, part, or none of the evidence
     and to determine the credibility of the witnesses, and a new trial
     based on a weight of the evidence claim is only warranted where
     the jury’s verdict is so contrary to the evidence that it shocks
     one’s sense of justice. In determining whether this standard has
     been met, appellate review is limited to whether the trial judge’s
     discretion was properly exercised, and relief will only be granted
     where the facts and inferences of record disclose a palpable
     abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations

and internal quotation marks omitted).

     Here, the trial court concluded that Officer Ozorowski credibly testified

regarding the stop and his observations of the occupants in the vehicle, none

of whom claimed responsibility for the firearm.   See TCO at 8. The court

also noted that Appellant’s phone calls did not reflect the reactions of

someone wrongly arrested and prosecuted. Id. Finally, the court noted that

while the DNA test was inconclusive, it did not rule out Appellant as a

contributor. Id. Based on the above, we cannot conclude that the verdicts

were so against the weight of the evidence as to shock one’s sense of justice




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and accordingly, the court did not abuse its discretion. Houser, 18 A.3d at

1136.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2017




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