J-S73007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES JOSEPH DICKSON, JR.                  :
                                               :
                       Appellant               :   No. 1099 MDA 2019

         Appeal from the Judgment of Sentence Entered June 27, 2019
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0003918-2018


BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                               FILED MARCH 17, 2020

        Appellant, James Joseph Dickson, Jr., appeals from the judgment of

sentence entered following his conviction of person not to possess, use,

control, sell, transfer, or manufacture a firearm.1 We affirm.

        The trial court summarized the factual history of this case as follows:

              On April 26, 2018, the York County Drug Task Force utilized
        a Confidential Informant “CI.” Based on information the CI
        provided, the Drug Task Force believed that a transaction for the
        sale of a firearm was going to take place in York City.[2] The CI
        was given $500 as buy money.4 Detective [Adam] Bruckhart of
        the York County Drug Task Force set up several surveillance units
        along West Philadelphia Street, where they believed the
        transaction was going to take place. Detective [Russell] Schauer
____________________________________________


1   18 Pa.C.S. § 6105(a)(1).

2The officers were working with the CI and prior to the anticipated transaction,
had the CI call an individual to arrange for the transaction. N.T., 5/16/19, at
74-76. Detective Bruckhart was present when the CI made the call and heard
both sides of the conversation. Id. at 74.
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       of the York County Drug Task Force was with the CI as an
       undercover officer.

              4 Buy money is money that comes from York County;
              the serial numbers of the money are recorded. The
              money is used to purchase contraband or illegal items.

             Detective Schauer[3] and the CI arrived in a parking lot on
       West Philadelphia Street. Detective Bruckhart saw [Appellant]
       exit 719 West Philadelphia Street and walk through a breezeway.
       Detective Matthew [Irvin] of the York County Drug Task Force was
       also present doing surveillance of the transaction. Both Detective
       [Irvin] and Detective Schauer saw [Appellant] walk through a
       breezeway and meet with the CI.[4] [Appellant] then returned to
       719 West Philadelphia Street and subsequently reemerged with a
       blue duffle bag on rollers with a trash bag protruding from the top.
       Both Detective [Irvin] and Detective Schauer saw [Appellant] walk
       back through the breezeway carrying a bag. Both Detectives saw
       [Appellant] give the CI the bag. Detective [Irvin] attempted to
       photograph the exchange; however, because he was attempting
       to remain inconspicuous he was unable to capture a photograph
       of [Appellant] with the bag. Detective Schauer inspected the
       contents of the bag and then gave the CI the buy money.
       Detective Schauer then watched the CI give [Appellant] the buy
       money. When Detective Bruckhart saw [Appellant] emerge from
       the breezeway the second time he no longer had the rolling duffle
       bag in his possession.

             When Detective Bruckhart returned to the Drug Task Force
       Office he met with the CI. The CI no longer had the buy money
       [but had the rolling duffle bag and its contents]. Detective
       Schauer turned over [to Detective Bruckhart the rolling duffle bag]
       that was previously in the possession of [Appellant]. The bag
       contained a black, soft rifle case, a Mossberg AR .22 rifle, and a
____________________________________________


3Detective Schauer remained with the CI throughout the transaction in an
undercover capacity. N.T., 5/16/19, at 81, 115.

4 Detective Bruckhart was conducting surveillance and had a clear and
unobstructed view of 719 West Philadelphia Street. N.T., 5/16/19, at 81.
When Appellant exited 719 West Philadelphia Street, walked through the
breezeway, and first met with the CI, Appellant had nothing in his hands. Id.
at 82-83.

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       magazine for the rifle. Detective Bruckhart did not dust any of
       the items for fingerprints because Detective [Irvin] and Detective
       Schauer observed [Appellant] carrying them. At the time of trial,
       Detective Bruckhart, Detective Schauer, and Detective [Irvin] all
       identified [Appellant] as the person who had possession of the bag
       that contained the rifle and who had exchanged the bag for the
       buy money from the Confidential Informant.

Trial Court Opinion, 8/5/19, at 1-4 (internal citations and some footnotes

omitted).

       As a result of these events, Appellant was arrested and charged with

one count of person not to possess, use, manufacture, control, sell or transfer

firearms. A jury trial was held on May 16, 2019, and at the conclusion of trial,

Appellant was convicted of the single charge. On June 27, 2019, Appellant

was sentenced to five to ten years of imprisonment. Appellant filed a notice

of appeal on July 3, 2019.           Appellant and the trial court complied with

Pa.R.A.P. 1925.

       Appellant presents the following issue for our review:          “Whether the

evidence was sufficient to convict the Appellant of 18 Pa.C.S.A. §6105(A)(1)

in that there was no photographic evidence, DNA or fingerprint connecting the

Appellant to the alleged offense.”         Appellant’s Brief at 4 (full capitalization

omitted). Specifically, Appellant argues that the Commonwealth did not prove

beyond a reasonable doubt that Appellant possessed the firearm.5 Id. at 10.

       The standard for evaluating sufficiency claims is as follows:


____________________________________________


5Appellant stipulated to the fact that he was a person not to possess a firearm
due to his criminal history. N.T., 5/16/19, at 11.

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             As a general matter, our standard of review of sufficiency
       claims requires that we evaluate the record in the light most
       favorable to the verdict winner giving the prosecution the benefit
       of all reasonable inferences to be drawn from the evidence.
       Evidence will be deemed sufficient to support the verdict when it
       establishes each material element of the crime charged and the
       commission thereof by the accused, beyond a reasonable doubt.
       Nevertheless, the Commonwealth need not establish guilt to a
       mathematical certainty. Any doubt about the defendant’s guilt is
       to be resolved by the fact finder unless the evidence is so weak
       and inconclusive that, as a matter of law, no probability of fact
       can be drawn from the combined circumstances.

             The Commonwealth may sustain its burden by means of
       wholly circumstantial evidence. Accordingly, the fact that the
       evidence establishing a defendant’s participation in a crime is
       circumstantial does not preclude a conviction where the evidence
       coupled with the reasonable inferences drawn therefrom
       overcomes the presumption of innocence. Significantly, we may
       not substitute our judgment for that of the fact finder; thus, so
       long as the evidence adduced, accepted in the light most favorable
       to the Commonwealth, demonstrates the respective elements of
       a defendant’s crimes beyond a reasonable doubt, the appellant’s
       convictions will be upheld.

Commonwealth v. Norley, 55 A.3d 526, 531 (Pa. Super. 2012) (internal

citations and quotation marks omitted).

       To sustain a conviction for the crime of persons not to possess a firearm,

the Commonwealth must prove that “[the a]ppellant possessed a firearm and

that he was convicted of an enumerated offense that prohibits him from

possessing, using, controlling, or transferring a firearm.”6 Commonwealth

____________________________________________


6We note that the trial court erroneously stated that establishing the firearm
was in operable condition was an element of this crime. Trial Court Opinion,
8/5/19, at 7. This Court has stated this is not an element necessary for
conviction of this offense. See Commonwealth v. Batty, 169 A.3d 70, 77



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v. Miklos, 159 A.3d 962, 967 (Pa. Super. 2017) (quoting Commonwealth

v. Thomas, 988 A.2d 669, 670 (Pa. Super. 2009)). The term “firearm” is

defined in that section as any weapon that is “designed to or may readily be

converted to expel any projectile by the action of an explosive or the frame or

receiver of any such weapon.” 18 Pa.C.S. § 6105(i).

              This Court has held that possession can be found by proving
       actual possession, constructive possession, or joint constructive
       possession. Where a defendant is not in actual possession of the
       prohibited items, the Commonwealth must establish that the
       defendant had constructive possession to support the conviction.
       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, meaning
       that the defendant has 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.

              It is well established that, as with any other element of a
       crime, constructive possession may be proven by circumstantial
       evidence. In other words, the Commonwealth must establish
       facts from which the trier of fact can reasonably infer that the
       defendant exercised dominion and control over the contraband at
       issue.

Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018) (internal

citations and quotation marks omitted).



____________________________________________


(Pa. Super. 2017) (the Commonwealth is not required to prove that the
firearm was “operable” in order to convict a defendant of possession of a
firearm prohibited.) Despite this misstatement, the trial court’s analysis
appropriately and accurately addresses Appellant’s claim.            Moreover,
Appellant did not challenge his conviction on the basis of the weapon not being
operable, but even if he had done so, as noted, such element is not necessary
to the conviction.

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      In the case sub judice, the trial court provided the following analysis in

addressing Appellant’s claim:

             When viewed in the light most favorable to the
      Commonwealth as the verdict winner, this [c]ourt finds there was
      sufficient evidence for the jury to find Appellant guilty of Person
      Not to Possess beyond a reasonable doubt. . . .

            Both the Commonwealth and the Defense stipulated to the
      fact that Appellant is prohibited from possessing, using,
      controlling, selling, transferring, or manufacturing a firearm. Both
      the Commonwealth and the Defense stipulated to the fact that the
      firearm is in operable condition. Based on the evidence and
      testimony, there was sufficient evidence for the jury to conclude
      that Appellant did possess, use, control, sell, transfer, or
      manufacture a firearm.

             A person possesses a firearm when they have the intent to
      control and the power to control the firearm. As the Factual
      Background in this opinion shows, Detectives Bruckhart, Schauer,
      and [Irvin] saw [Appellant] in possession of a bag that contained
      an AR .22 rifle. There was sufficient evidence to find that
      [Appellant] possessed a firearm. A person sells a firearm when
      they exchange the firearm for something of value. Detective
      Bruckhart gave the CI $500. The CI gave [Appellant] $500 in
      exchange for the firearm. There was sufficient evidence to find
      that [Appellant] sold the firearm to the CI. The jury was free to
      determine the credibility of the witnesses, including the testimony
      from all three of the Detectives. There is no law that says that
      there must be photographic evidence, DNA or fingerprints in order
      to find a person guilty of a crime. We find that there was sufficient
      evidence for the jury to find Appellant guilty of Person Not to
      Possess, Use, Control, Sell, Transfer, or Manufacture a Firearm.

Trial Court Opinion, 8/5/19, at 6-8 (internal footnotes omitted).

      We agree.    Viewing the totality of circumstances in the light most

favorable to the Commonwealth, the evidence was more than sufficient to

support the conclusion that Appellant possessed and then sold the firearm to

the   CI.   Detective    Schauer   observed    the   entire   transaction     while

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accompanying the CI. N.T., 5/16/19, at 81, 115. Detectives Bruckhart and

Irvin also observed Appellant in possession of the firearm prior to the sale to

the CI. Id. at 84-85, 103. As the trial court noted, and contrary to Appellant’s

assertions, there was no requirement that there be DNA or photographic

evidence identifying Appellant as having possessed the firearm.          As our

Supreme Court has stated:

      The critical inquiry on review of the sufficiency of the evidence to
      support a criminal conviction . . . does not require a court to “ask
      itself whether it believes that the evidence at the trial established
      guilt beyond a reasonable doubt.” Instead, it must determine
      simply whether the evidence believed by the fact-finder was
      sufficient to support the verdict.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-1236 (Pa. 2007)

(internal citations and some quotation marks omitted).              Herein, the

Commonwealth’s evidence was sufficient to support Appellant’s conviction.

Thus, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/17/2020




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