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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
DESMUND DATRE RAND FORD,                 :          No. 29 WDA 2019
                                         :
                         Appellant       :


       Appeal from the Judgment of Sentence Entered December 4, 2018,
               in the Court of Common Pleas of Allegheny County
                Criminal Division at No. CP-02-CR-0002131-2018


BEFORE: SHOGAN, J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MARCH 10, 2020

        Desmund Datre Rand Ford appeals from the December 4, 2018

judgment of sentence entered in the Court of Common Pleas of Allegheny

County after a jury convicted him of carrying a firearm without a license and

possession of a small amount of marijuana.1        The trial court sentenced

appellant to a term of incarceration of not less than three nor more than

six years for carrying a firearm without a license.    No further penalty was

imposed on the possession of a small amount of marijuana conviction. We

affirm.

        The trial judge, the Honorable Donna Jo McDaniel, retired and the case

was assigned to the Honorable Edward J. Borkowski, who authored the




1   18 Pa.C.S.A. §6106(a)(1) and 35 Pa.C.S.A. §780-113(a)(31), respectively.
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Pa.R.A.P. 1925(a) opinion. We adopt the following statement of facts from

that opinion:

          On January 30, 2018, Officer Keith McGann was working
          in the McKeesport area when he attempted to initiate a
          traffic stop on a tan Ford Taurus with an inoperable
          taillight and expired inspection stickers. Officer McGann
          activated his lights and sirens, but the Ford Taurus did
          not immediately come to a stop. When the vehicle
          eventually stopped, Officer McGann and his partner
          approached the driver and passenger side doors and
          observed the occupants of the vehicle. They observed
          the driver lean over the passenger and then the
          passenger lean forward as if he had been handed
          something. The driver of the vehicle identified himself
          as Desmund Ford (hereinafter “Appellant”). Appellant
          appeared nervous, was stuttering, and was unable to
          provide identification. Officers noticed a strong odor of
          marijuana coming from the vehicle.

          Appellant was removed from the vehicle and a pat down
          was conducted for officer safety, wherein marijuana
          buds were discovered in Appellant’s pocket.       The
          marijuana was subsequently packaged for evidence. An
          empty gun holster clipped on the inside of Appellant’s
          waistband was also recovered. Appellant was then
          placed in handcuffs. Officer McGann then noticed an
          extended magazine with 15-17 rounds of ammunition in
          the pocket of the driver’s side door.

          Officer McGann’s partners removed the passenger from
          the vehicle and conducted a search of that area of the
          vehicle. A loaded handgun was subsequently recovered
          from the glove compartment of the vehicle. Appellant
          stated that he was at the gun range earlier that day and
          acknowledged the presence of the firearm in the vehicle.
          Appellant did not possess a license to carry a firearm.
          Detective Shannon Hasek verified that the handgun
          recovered from the glove compartment fit perfectly
          inside the holster discovered on Appellant’s belt when
          they were logged into evidence.

Trial court opinion, 6/27/19 at 4-5 (citations to notes of testimony omitted).


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     Following the imposition of sentence, appellant filed post-sentence

motions, which were denied.2 Appellant filed a timely notice of appeal. On

January 7, 2019, Judge McDaniel directed appellant to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).3         Counsel

for appellant filed a Rule 1925(b)         statement on February 6, 2019.

Judge Borkowski then filed a Rule 1925(a) opinion.

     Appellant raises the following issues for our review:

           [1.]   To    prove     constructive    possession,      the
                  Commonwealth must prove beyond a reasonable
                  doubt [appellant] had the power and intention to
                  control the item in question. The Commonwealth
                  presented evidence that [appellant], while
                  wearing an empty BB gun holster, made a
                  non-descript movement towards the passenger
                  while the vehicle was stopping and was nervous
                  while being questioned in front of multiple officers.
                  Accordingly:

                  Did the Commonwealth present insufficient
                  evidence to convict [appellant] of firearms not to
                  be carried without a license?

           [2.]   Whether the trial court abused its discretion by
                  failing to grant a new trial where the
                  uncontested evidence showed that [appellant’s]
                  friend, the lawful owner of the firearm, had
                  misplaced the firearm inside [appellant’s]
                  vehicle, which established that [appellant’s]

2 Post-sentence motions were ruled on by the Judge McDaniel prior to her
retirement on January 31, 2019. Judge Borkowski’s Rule 1925(a) opinion
addressed appellant’s claims and concluded the record supported the trial
judge’s denial of appellant’s post-sentence motions. (Trial court opinion,
6/27/19 at 7-9.)

3 The order gave appellant until February 6, 2010, to file a Rule 1925(b)
statement.


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                  conviction for firearms not to be carried without
                  a license was against [the] weight of the
                  evidence[?]

Appellant’s brief at 5 (extraneous capitalization omitted).

      Appellant first complains the Commonwealth failed to produce sufficient

evidence to support his conviction because it failed to establish beyond a

reasonable doubt that appellant constructively possessed the firearm

recovered from the glove compartment with the intent to control it.

            Our standard of review for a challenge to the
            sufficiency of the evidence is well settled. We must
            view all the evidence in the light most favorable to the
            verdict winner, giving that party the benefit of all
            reasonable inferences to be drawn therefrom.
            Additionally, it is not the role of an appellate court to
            weigh the evidence or to substitute our judgment for
            that of the fact-finder.

Commonwealth v. Alford, 880 A.2d 666, 669-670 (Pa.Super. 2005),

appeal denied, 890 A.2d 1055 (Pa. 2005), quoting Commonwealth v.

Gruff, 822 A.2d 773, 775 (Pa.Super. 2003), appeal denied, 863 A.2d 1143

(Pa. 2004) (citations omitted).

      A person is guilty of a felony in the third degree if he carries a firearm

in a vehicle, or concealed on or about his person, without a valid and lawfully

issued license. 18 Pa.C.S.A. §6106(a)(1). The Commonwealth must establish

appellant acted intentionally, knowingly, or recklessly with respect to each

element of § 6106(a)(1).     Commonwealth v. Johnson, 192 A.3d 1149,

1155 (Pa.Super. 2018), appeal denied, 200 A.3d 440 (Pa. 2019). Because

the firearm was not found on appellant’s person, the Commonwealth was also


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required to prove appellant constructively possessed the firearm.                 See

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super. 2012), appeal

denied, 63 A.3d 1243 (Pa. 2013).

            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 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 application,
            we have held that constructive possession may be
            established by the totality of the circumstances.

Commonwealth v. Parker, 847 A.2d 745, 750 (Pa.Super. 2004) (internal

citations and quotation marks omitted). “In order to prove that a defendant

had constructive possession of a prohibited item, the Commonwealth must

establish that the defendant had both the ability to consciously exercise

control   over   it    as   well   as   the   intent   to   exercise   such   control.”

Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa. Super. 2013) (citation

omitted), appeal denied, 77 A.3d 636 (Pa. 2013). “An intent to maintain a

conscious dominion may be inferred from the totality of the circumstances,

and circumstantial evidence may be used to establish a defendant’s

possession.”     Id.    The only element of constructive possession appellant

challenges is the intent to control the firearm.

      Here, Detective McGann testified he observed appellant operating a Ford

Taurus with expired inspection and emissions stickers and an inoperable



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taillight. (Notes of testimony, 9/5/18 at 29, 94.) The detective initiated a

traffic stop, but appellant did not stop until being blocked by a second police

vehicle. (Id. at 29-30.)

      Approaching the vehicle, Detective McGann observed appellant lean

over with his arm as if handing something to the passenger who, in turn,

leaned forward. (Id. at 31.) There was a strong odor of marijuana emanating

from the vehicle. (Id. at 32.) A pat-down of appellant yielded marijuana

buds and a nylon gun holster found clipped inside appellant’s waistband. (Id.

at 33, 34.) Detective McGann also observed an extended magazine with 15 to

17 rounds of ammunition protruding from the driver’s side door pocket. (Id.

at 35.)

      Detective Steven Sywyj testified he removed the passenger from the

vehicle.   (Id. at 36, 61.)     Detective Sywyj recovered a loaded black

nine millimeter Springfield XD9 from the glove compartment. (Id. at 37, 62,

63.) Appellant said, “That’s my -- we were at the range all day.” (Id. at 37.)

Detective Hasek testified the recovered firearm fit perfectly into the holster

found clipped inside appellant’s waistband. (Id. at 92.)

      We are satisfied the totality of the circumstances warranted a finding of

constructive possession of a firearm without a license.         The fact-finder

exclusively assesses witness credibility and may choose to believe all, part, or

none of the evidence. Commonwealth v. Sanchez, 36 A.3d 24, 39 (Pa.

2011). The jury, as fact-finder, could reasonably have inferred appellant had



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both the ability and intent to control the firearm because he exercised control

over the vehicle by driving the vehicle; had knowledge the firearm was in the

glove compartment, accessible and available to him; was wearing a holster

into which the gun fit perfectly; and had an extended magazine of ammunition

located in the pocket of the driver’s side door. Appellant’s sufficiency claim,

therefore, lacks merit.

      As his final issue, appellant asserts the verdict was against the weight

of the evidence.

            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 has 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 against the weight of the evidence.
            One of the least assailable reasons for granting or
            denying a new trial is the lower 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. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations omitted;

emphasis omitted).

            The weight of the evidence is exclusively for the finder
            of fact who is free to believe all, part, or none of the
            evidence and to determine the credibility of the
            witnesses. An appellate court cannot substitute its
            judgment for that of the finder of fact. Thus, we may
            only reverse the lower court’s verdict if it is so
            contrary to the evidence as to shock one’s sense of
            justice.



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Commonwealth v. Morgan, 913 A.2d 906, 909 (Pa.Super. 2006), appeal

denied, 927 A.2d 623 (Pa. 2007); Commonwealth v. Devine, 26 A.3d

1139, 1146 (Pa.Super. 2011), appeal denied, 42 A.3d 1059 (Pa. 2012).

      Appellant specifically claims the verdict was against the weight of the

evidence because appellant “presented uncontested evidence that the

firearm’s registered owner placed the firearm in the passenger [side glove]

compartment” which would preclude a finding of constructive possession.

(Appellant’s brief at 20.) The testimony, however, does not preclude a finding

that appellant was in constructive possession of the firearm. Moreover, we

cannot substitute our judgment for that of the fact-finder.     See Devine,

26 A.3d at 1146.    The jury was free to believe or disbelieve appellant’s

witness. The trial court properly concluded the verdict was not against the

weight of the evidence and did not shock one’s sense of justice.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2020




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