J-A12018-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    BRANDON MCCOY                              :
                                               :
                       Appellant               :      No. 976 WDA 2019

           Appeal from the Judgment of Sentence Entered May 30, 2019
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0014245-2017


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

MEMORANDUM BY KING, J.:                                    FILED JULY 24, 2020

        Appellant, Brandon McCoy, appeals from the judgment of sentence

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

trial conviction for persons not to possess firearms.1 After careful review, we

reverse Appellant’s conviction, vacate the judgment of sentence, and remand

for resentencing.

        The trial court opinion summarized the relevant facts of this case as

follows.

            On August 15, 2017, City of Pittsburgh Detectives were in
            the area of 255 East Ohio Street as part of a buy-bust, drug
            delivery operation wherein Appellant was the target. During
            the course of the operation, the facts of which are irrelevant
            to the matters on appeal, Appellant was arrested in a
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 6105(a)(1).
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          parking lot near a housing complex. After the arrest, police
          came in contact with Appellant’s mother, a resident of the
          adjacent housing complex. Although Detectives did not
          observe Appellant either enter or exit the housing complex
          on August 15, 2017, they did ask Appellant’s mother for
          permission to search her residence, having information that
          Appellant had previously listed this as his residence. Upon
          receiving consent, police conducted a search and located a
          shoebox outside of a second floor bedroom that contained
          indicia for Appellant and a .380 caliber pistol. The indicia
          included bank statements, greeting cards and court
          documents all in [Appellant’s name], along with
          photographs of Appellant. This firearm was subsequently
          examined by the County Crime Lab and was deemed
          inoperable in the submitted condition.          At trial, the
          Commonwealth also presented a recording of a call made by
          Appellant from the Allegheny County Jail, wherein he speaks
          about a pistol, referencing that it is from high school and
          doesn’t work.[2] The Commonwealth submitted a certified
          copy of a felony conviction of Appellant’s as evidence of him
          being a person not to possess a firearm.

          The defense called Appellant’s mother, Bonitta Wilmore, as
          a witness. Ms. Wilmore testified that she has lived at the
          apartment for eighteen (18) years, but that Appellant has
          not lived there since 2012. Although his mother attempted
          to minimize the amount of time she sees Appellant at her
          residence, [the trial court concluded] that she serves as a
          primary caregiver for his four (4) year old son, her
          grandson, and therefore, has fairly regular contact with
          Appellant. In fact, this child was present at the apartment
          on the day of Appellant’s arrest and search of the residence.

          The second and last witness called by the defense was
          Appellant’s father, Raymond McCoy, who claimed
____________________________________________


2 At trial, the Commonwealth submitted the recordings, as well as a transcript,
into evidence. (See N.T. Trial, 9/26/18, at 30-31). Although these exhibits
are not included in the certified record on appeal, Appellant included a copy
of the relevant portion of the transcript in his appellate brief. (See Appellant’s
Brief at Appendix D). The Commonwealth does not dispute the accuracy of
this copy, wherein Appellant referenced the firearm by saying, “Dat shit don’t
work, that shit was from … high school.” (Id.)

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           responsibility for the gun. Mr. McCoy, who has not resided
           in that apartment for … at least sixteen (16) years, testified
           that he brought the gun into the residence about fifteen (15)
           years earlier.

(Trial Court Opinion, filed October 28, 2019, at 2-4) (internal footnotes

omitted).

        The Commonwealth charged Appellant with persons not to possess

firearms, possession of a controlled substance,3 possession of a controlled

substance with intent to deliver (“PWID”),4 and conspiracy.5           The court

severed the firearms charge, and Appellant entered a negotiated guilty plea

for the remaining offenses.         Appellant proceeded to a bench trial for the

firearms offense, and the court found him guilty.          The court conducted

Appellant’s sentencing hearing on January 3, 2019. At that time, the court

sentenced Appellant to forty-five (45) to ninety (90) months’ incarceration for

the firearms offense.         The court also imposed a consecutive term of

imprisonment for Appellant’s drug offenses. (See N.T. Sentencing, 1/3/19,

at 26). Appellant did not file post-sentence motions.

        On January 23, 2019, Appellant filed a motion for reinstatement of his

right to file post-sentence motions and a direct appeal nunc pro tunc. The

____________________________________________


3   35 P.S. § 780-113(a)(16).

4   35 P.S. § 780-113(a)(30).

5   18 Pa.C.S.A. § 903.




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court granted Appellant’s motion on January 29, 2019, permitting Appellant

to file post-sentence motions nunc pro tunc within 30 days of receipt of the

trial and sentencing transcripts. On March 12, 2019, Appellant filed a nunc

pro tunc post-sentence motion,6 challenging the sufficiency of the evidence

and the sentence imposed. On May 30, 2019, the court granted relief in part.

Specifically, the court resentenced Appellant to thirty-three (33) to sixty-six

(66) months’ incarceration. Again, the court ordered the sentence for the

firearms conviction to run consecutive to the sentence for the PWID

conviction. (See Order, dated 5/30/19, at 1). On June 20, 2019, the court

denied Appellant’s remaining sufficiency claims.

        Appellant filed a timely notice of appeal on July 1, 2019. On July 11,

2019, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Appellant timely filed his Rule

1925(b) statement on July 31, 2019.

        Appellant now raises two issues on appeal:

           Is the evidence insufficient to show that Appellant had
           knowledge of the presence and location of the firearm or
           that Appellant had the intent and power to control the
           firearm?

           Is the evidence insufficient because the Commonwealth
           failed to present sufficient evidence that Appellant
           possessed the firearm on August 15, 2017, the date alleged
           in the criminal information, or any other fixed date within
           the statutory period?


____________________________________________


6   Appellant stated he received the sentencing transcript on February 14, 2019.

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(Appellant’s Brief at 4).

      In his two issues, Appellant contends the trial court based its verdict on

speculation, theorizing that Appellant would use the firearm to collect money

from drug customers who did not provide prompt payment.                 Appellant

emphasizes the Commonwealth presented no evidence of such a scenario, as

the police witnesses’ testimony was limited to one transaction where Appellant

facilitated the delivery of drugs to an undercover officer.             Appellant

acknowledges the statements he made on the recorded prison calls, but he

maintains the statements are circumstantial evidence limited to his knowledge

of the firearm’s existence. Appellant insists there is no circumstantial or direct

evidence to prove his intent to control the firearm. Absent more, Appellant

concludes the Commonwealth presented insufficient evidence to support his

firearms conviction. We agree.

      Our standard of review for sufficiency claims is as follows:

         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
         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

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         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. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal

denied, 641 Pa. 63, 165 A.3d 895 (2017) (quoting Commonwealth v.

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

      “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.” Commonwealth v. Rahman, 75 A.3d 497, 500

(Pa.Super. 2013) (quoting Commonwealth v. Pettyjohn, 64 A.3d 1072,

1074 (Pa.Super. 2013)).

         However, the inferences must flow from facts and
         circumstances proven in the record, and must be of such
         volume and quality as to overcome the presumption of
         innocence and satisfy the [factfinder] of an accused’s guilt
         beyond a reasonable doubt. The trier of fact cannot base a
         conviction on conjecture and speculation and a verdict which
         is premised on suspicion will fail even under the limited
         scrutiny of appellate review.

Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa.Super. 2014) (quoting

Commonwealth v. Slocum, 86 A.3d 272, 275-76 (Pa.Super. 2014)).

      The Uniform Firearms Act provides, in relevant part, as follows:

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

            (a)   Offense defined.—


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                  (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). The Commonwealth is not required to prove the

firearm was “operable” to convict a defendant under Section 6105(a)(1).

Commonwealth v. Batty, 169 A.3d 70, 77 (Pa.Super. 2017), appeal denied,

645 Pa. 701, 182 A.3d 434 (2018).

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

Commonwealth must establish constructive possession….” Commonwealth

v. Jones, 874 A.2d 108, 121 (Pa.Super. 2005). “Constructive possession is

the ability to exercise conscious control or dominion over the illegal substance

and the intent to exercise that control.” Id.

         Dominion and control means the defendant had the ability
         to reduce the item to actual possession immediately,
         accord State v. Jones, 146 Wash.2d 328, 45 P.3d 1062,
         1064-65 (2002) (en banc), or was otherwise able to govern
         its use or disposition as if in physical possession. See, e.g.,
         People v. Sinclair, 129 Cal.App. 320, 19 P.2d 23 (1933)
         (finding constructive possession where the defendant was
         driving an automobile and, upon being stopped by the
         police, directed his passenger to throw illegal drugs out of
         the window). Mere presence or proximity to the contraband
         is not enough. Constructive possession can be established
         by inferences derived from the totality of the circumstances.

Commonwealth v. Peters, ___ Pa. ___, ___, 218 A.3d 1206, 1209 (2019)

(emphasis added) (some internal citations omitted). Further, “knowledge of


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the existence and location of the contraband is a necessary prerequisite to

proving the defendant’s intent to control, and, thus, his constructive

possession.” Commonwealth v. Parrish, 191 A.3d 31, 37 (Pa.Super. 2018),

appeal denied, ___ Pa. ___, 202 A.3d 42 (2019).

      Instantly, the trial court found Appellant constructively possessed the

firearm:

           In concluding that Appellant … had constructive possession
           of the firearm, the [c]ourt found it significant that the indicia
           for Appellant contained in the shoebox with the gun was
           dated as recently as 2014. This fact, in combination with
           the jail phone call, wherein Appellant references that the
           gun was found in his mother’s house; his knowledge that it
           was presently inoperable; and his close proximity to the
           residence to which he had access, was not only sufficient to
           establish his knowledge of the firearm, but his power and
           intent to control the same. It was clear from the trial
           testimony that Appellant was a frequent visitor to his
           mother’s residence and had unencumbered access to it, and
           that Appellant kept a “whole bunch” of items at his mother’s
           residence, including this box.

(Trial Court Opinion at 5-6).

      Although the trial court determined Appellant was in “close proximity”

to the firearm, the Commonwealth did not offer any evidence to support this

finding. Specifically, the testimony from the police witnesses established that

Appellant was arrested in a parking lot somewhere outside Ms. Wilmore’s

apartment complex. The police witnesses did not explain where the arrest

occurred in relation to the actual location of Ms. Wilmore’s apartment. On this

record, it is impossible to conclude that Appellant could reduce the firearm “to

actual possession immediately.” See Peters, supra.

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      Likewise, the evidence regarding Appellant’s intent to exercise control

over the firearm is dubious. Although Appellant’s statements from the jail

phone call supported the court’s finding that Appellant knew about the firearm,

we cannot agree that the statements proved the requisite intent. Importantly,

Appellant referenced the inoperability of the firearm, as well as the fact that

it dated back to his high school days. These statements, combined with the

storage of the contraband at Ms. Wilmore’s residence, actually demonstrated

Appellant’s relinquishment of control over the firearm. See Commonwealth

v. Heidler, 741 A.2d 213 (Pa.Super. 1999), appeal denied, 563 Pa. 627, 758

A.2d 660 (2000) (explaining defendant gave firearm to passenger before

exiting his vehicle, and passenger placed firearm in her purse and remained

in vehicle; even if defendant had power to access firearm, factfinder could not

logically conclude defendant intended to exercise control over firearm where

record demonstrated his intent was to relinquish such control; if defendant

intended to retain control of firearm, he would have kept it or not placed it

under control of third party).

      Moreover, the trial court attempted to justify its verdict by positing as

follows:

           Perhaps, and I don’t know, I don’t need to speculate, but if
           I had to, it’s possible that it was good to have that gun even
           if it didn’t fire just in case you needed it to back up your
           mule or in case somebody didn’t give your mule the money
           they were supposed to during the drug deal.




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(N.T. Trial at 74). In light of Appellant’s relinquishment of control, the court

was left to infer a reason for Appellant to retrieve the firearm. We cannot

agree that the facts adduced at trial were of such a “volume and quality” as

to allow this inference and overcome Appellant’s presumption of innocence.

See Kearney, supra.

      We conclude the Commonwealth did not meet its burden in proving

constructive possession. See Peters, supra; Parrish, supra. Viewing the

evidence in the light most favorable to the Commonwealth, and giving the

Commonwealth all the favorable inferences that may be drawn from the

evidence, the court erred in determining the Commonwealth established the

element of “possession” under Section 6105. See Tucker, supra; Kearney,

supra.   Accordingly, we reverse Appellant’s conviction for persons not to

possess firearms.     Because our disposition upsets the court’s sentencing

scheme, we also remand for resentencing.            See Commonwealth v.

Goldhammer, 512 Pa. 587, 517 A.2d 1280, (1986), cert. denied, 480 U.S.

950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987) (explaining remand for

resentencing is proper if appellate court alters overall sentencing scheme).

      Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction is relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2020




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