J-S12020-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TUFTON GREEN                               :
                                               :
                        Appellant              :   No. 24 EDA 2019

        Appeal from the Judgment of Sentence Entered November 8, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0003509-2017


BEFORE:      SHOGAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY McCAFFERY, J.:                             FILED APRIL 06, 2020

        Tufton Green (Appellant) appeals from the judgment of sentence

entered in the Philadelphia Court of Common Pleas, following his jury

conviction of persons not to possess firearms.1          Appellant contends the

evidence was insufficient to prove beyond a reasonable doubt that he

constructively possessed a firearm recovered from a vehicle in which he was

a passenger. For the reasons below, we affirm.

        On February 18, 2017, police stopped a vehicle in which Appellant was

a passenger.         During the ensuing investigation, the officers recovered a

sawed-off shotgun from the vehicle in the area where Appellant was seated.

Appellant was arrested and charged with several firearms offenses. The case

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 6105(a).
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proceeded to a jury trial in May of 2018, on one count of persons not to

possess firearms. The trial court summarized the evidence presented during

the trial as follows:

      Uniformed [Philadelphia] Police Officer Luis Cordero credibly
      testified that on February 18, 2017, at approximately 9:00 p.m.,
      he had been working solo and was finishing up his shift[.] At that
      time, he had been a patrol officer approximately fourteen years
      before starting his next tenure as instructor at the Police
      Academy.

            Officer Cordero started to drive his marked patrol vehicle
      eastbound on Unity Street[ in Philadelphia.] As he approached
      the intersection of Unity Street and Leiper Streets, he observed a
      gold four door Grand Marquis sedan driving at a high rate of speed
      southbound on the 4400 block of Leiper Street, disregarding a
      stop sign and turning eastbound on the 1400 block of Unity Street.
      Officer Cordero immediately activated his lights and pursued and
      pulled over the speeding vehicle.

             After stopping and tactically focusing his flood lights forward
      to reflect all four vehicle occupants, Officer Cordero observed
      unusual slouching movements of the two rear passengers, later
      identified as Tyree Pasture[,] positioned behind the driver, and
      Appellant, . . . positioned behind the front female passenger.
      Appellant[,] who was a person of large height and girth, was
      observed quickly leaning forward, and immediately sitting straight
      back upright. [Pasture made a similar movement.] Thereafter,
      Officer Cordero walked beside the Marquis to speak to the driver.
      He observed Appellant turn around abruptly and oddly change his
      body position to block the officer’s view of the rear seat passenger
      side area. Appellant moved his back up against the passenger
      side door, and rested against the front passenger seat and
      straddled the area to fully face in frontal fashion Officer Cordero.
      His right hand spanned the rear of the driver’s seat. He had
      purposefully blocked the officer’s opportunity to see the back of
      the front passenger seat and the floorboard area where
      Appellant’s legs and feet were and where the sawed off shotgun
      had been located shortly thereafter. Appellant remained in this
      contorted position during the officer’s entire inquiry of the driver.
      Officer Cordero demonstrated for the jury the positioning of
      Appellant . . . . The other rear passenger, . . . Pasture,

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     simultaneously, pulled out a cell phone and immediately slouched
     down on the seat and put his face away and pretended to speak
     on his cellular telephone.

            As Officer Cordero spoke to the driver, later identified as
     Ricardo Romero, he noticed that the driver trembled tremendously
     and did not respond coherently to the officer’s simple questions.
     The driver’s hands shook so much that Officer Cordero attempted
     unsuccessfully to verbally calm and assure him. Mr. Romero still
     could not provide his license, registration, and insurance
     identification card to Officer Cordero. The front female passenger,
     later identified as Desiree Huntzberger, abruptly answered the
     officer’s questions posed to . . . Romero, claimed the car to be
     owned by her relative, and physically handed Officer Cordero the
     paperwork requested.

            . . . Officer Cordero retreated with the vehicle information
     to his marked police vehicle and immediately called for back-up
     officers. Moments later, uniformed Philadelphia Police Officers
     John Lee and Robert Bakos from the same district arrived on the
     scene to assist. Officer Lee went immediately to the rear driver’s
     side passenger side and started to remove Mr. Pasture from the
     vehicle while Officer Cordero removed Appellant . . . from the
     vehicle.

            As he was removing Appellant, Officer Cordero heard . . .
     Officer Bakos whisper, “Gun.” Officer Cordero looked down and
     saw the back portion of a sawed-off shotgun sticking out from
     underneath the front passenger seat out on the floorboard facing
     where Appellant had been seated and specifically where he had
     his feet positioned. This was also the direct area that Appellant
     had earlier attempted to block from the officer’s view after he had
     abruptly leaned over and sat back up in the upright position[]. At
     trial Officer Cordero demonstrated with precision and clarity for
     the jury using a chair in the courtroom the . . . position of the
     recovered shotgun as he had observed it on the date of arrest.

           Upon observation of the weapon, Officer Cordero
     immediately handcuffed [Appellant] and secured him in his patrol
     vehicle. Officer Cordero then went back to the Grand Marquis
     where [Appellant] had been sitting to recover the sawed off and
     tape[-]wrapped shotgun. There, he also found one (1) green
     shotgun shell that had been lying on the floorboard next to the
     gun[.] Three (3) additional green shotgun shells [were found]



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        inside the rear passenger pouch of the passenger seat that had
        been within Appellant’s immediate and closest reach . . . .

               Police Officer Robert Bakos testified that on February 18,
        2017, he had been working with his fifteenth district partner,
        Police Officer John Lee. At approximately 9:00 p.m., he received
        a radio call for backup for Police Officer Cordero, on the 1400 block
        of Unity Street. After he arrived, he was informed by Officer
        Cordero that he wanted to remove the suspiciously behaving
        people from the vehicle for safe investigation. As officers removed
        the occupants, Officer Bakos looked down at the floorboard of the
        vehicle and observed the stock end of a sawed-off shotgun
        sticking out from the underneath the front passenger seat with
        the back or handle half of the shotgun closest to where Appellant
        had been seated, and the one (1) green shotgun shell next to it.
        He immediately informed Officer Cordero of his observations. The
        confiscated items were properly assigned to a property receipt,
        catalogued and submitted for ballistics analysis.

Trial Ct. Op., 7/19/19, at 2-5 (record citations omitted).

        The parties also entered the following two stipulations into evidence:

(1) the recovered shotgun was tested and determined to be operable, and (2)

Appellant is prohibited from possessing a firearm based upon a prior conviction

of possession with intent to deliver controlled substances.2             N.T. Trial,

5/30/18, at 97-98.         Appellant did not testify or present any additional

evidence. See id. at 105-06, 109.

        On May 31, 2018, the jury returned a verdict of guilty on one count of

persons not to possess firearms.               On November 8, 2018, the trial court

sentenced Appellant to a term of five to 15 years’ imprisonment, followed by

five years’ probation.         Appellant filed a timely post-sentence motion,

challenging the sufficiency of the evidence and the discretionary aspects of his

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2   35 P.S. § 780-113(a)(30).

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sentence. Before the court ruled on the post-sentence motion, and while still

represented by counsel, Appellant filed a pro se notice of appeal on November

13, 2018.3 That same day, trial counsel, who was privately retained, sought

to withdraw from representation so that appellate counsel could be appointed.

The court granted trial counsel’s motion on November 14, 2018, and

appointed new counsel on November 19th.                 The trial court then denied

Appellant’s    post-sentence      motion       on   December   4,   2018.   Counsel

subsequently filed a timely notice of appeal and complied with the trial court’s

directive to file a Pa.R.A.P. 1925(b) statement of errors complained of on

appeal.

       In his sole issue on appeal, Appellant contends “[t]he evidence is

insufficient to establish that [he] constructively possessed the gun recovered

from inside the vehicle.”        Appellant’s Brief at 16.      Relying upon several

decisions of both the Pennsylvania Supreme Court and this Court, Appellant

argues he was merely present in a vehicle, to which he had no connection,

and where a firearm was recovered. Id. at 24, 29. He asserts the other

occupants of the car, unlike him, “exhibited extremely suspicious behavior.”

Id. at 29. Specifically, he notes the driver was “shaking uncontrollably and

refused to answer the police officer’s questions[,]” while the front seat

passenger, “whose family owned the vehicle [and who] was literally sitting on

____________________________________________


3 That appeal was later dismissed as duplicative after appellate counsel filed
the timely notice of appeal herein. See Commonwealth v. Green, 3325
EDA 2018 (docket) (Pa. Super. 2019).

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top of the gun[,]” repeatedly “interrupted the officer’s inquires” to the extent

the officer had to tell her to “shut up.” Id. Moreover, Appellant emphasizes:

      There was no scientific, physical, forensic or documentary
      evidence linking [him] to the gun recovered in the vehicle. . . .
      Finally, there was nothing found in the car that indicated
      [Appellant’s] knowledge of, or intent to control, the gun found
      under Ms. Huntzberger’s seat in her family member’s car.

Id. at 31. Consequently, Appellant insists the evidence was insufficient to

sustain his conviction.

      Our review of a claim challenging the sufficiency of the evidence is well-

established:

             We review claims regarding the sufficiency of the evidence
      by considering 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.” Further, a conviction may be
      sustained wholly on circumstantial evidence, and the trier of fact
      — while passing on the credibility of the witnesses and the weight
      of the evidence — is free to believe all, part, or none of the
      evidence. “Because evidentiary sufficiency is a matter of law, our
      standard of review is de novo and our scope of review is plenary.”

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

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

      Appellant was convicted of violating Section 6105 of the Uniform

Firearms Act, which provides, in relevant part:

         (a) Offense defined. —

            (1) A person . . . 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.
                                  *   *    *

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        (c) Other persons. — In addition to any person who has been
     convicted of any offense listed under subsection (b), the following
     persons shall be subject to the prohibition of subsection (a):

                                 *     *   *

           (2) A person who has been convicted of an offense under
        the act of April 14, 1972 (P.L. 233, No. 64), known as The
        Controlled Substance, Drug, Device and Cosmetic Act, or
        any equivalent Federal statute or equivalent statute of any
        other state, that may be punishable by a term of
        imprisonment exceeding two years.

See 18 Pa.C.S. § 6105(a)(1), (c)(2).

     When the possession of contraband is an element of an offense, the

Commonwealth may establish the defendant’s guilt by proving he had actual

possession, constructive possession, or joint constructive possession of the

contraband in question. Parrish, 191 A.3d at 36.

     [T]he concept of constructive possession is a legal fiction used to
     prove the element although the individual was not in physical
     possession of the prohibited item. The evidence must show a
     nexus between the accused and the item sufficient to infer that
     the accused had the power and intent to exercise dominion
     and control over it. Dominion and control means the defendant
     had the ability to reduce the item to actual possession
     immediately, . . . or was otherwise able to govern its use or
     disposition as if in physical possession.      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, 218 A.3d 1206, 1209 (Pa. 2019) (citations

omitted and emphasis added).     Indeed, “knowledge of the existence and

location of the contraband is a necessary prerequisite to proving the

defendant’s intent to control, and, thus, his constructive possession.”

Parrish, 191 A.3d at 37. Moreover, “[a]s with any other element of a crime,


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constructive possession may be proven by circumstantial evidence.” Id. at

36-37 (citation omitted).

      In its opinion, the trial court explained in detail the evidence that

supported the jury’s determination that Appellant constructively possessed

the firearm recovered from the vehicle. See Trial Ct. Op. at 8-11. The court

first emphasized the “location and position of the shotgun when observed by

the responding officers.” Id. at 9. The trial court noted the handle was visible

on the floorboard, “closest to where Appellant’s feet had been placed[,]” and

the barrel of the gun was “facing towards the front of the vehicle.” Id. The

court concluded the location of the firearm “logically pointed to knowledge,

dominion, and control, of the rear passenger[.]” Id.

      Second, the court cited the location of the shotguns shells recovered as

“equally relevant proof of Appellant’s constructive possession.” Trial Ct. Op.

at 10. One shell was found on the floorboard next to the firearm, and three

more were found in the “rear passenger pouch of the passenger’s seat.” Id.

The court summarized:       “The shotgun and all of its ammunition had been

located closet to Appellant’s wingspan thereby providing him with the naturally

most exclusive access for firing.” Id.

      Lastly, the trial court credited the testimony of Officer Cordero regarding

“Appellant’s highly stealthy movements . . . in the vehicle and the salient

position of the taped sawed off shotgun.” Trial Ct. Op. at 9. These movements

include “Appellant’s [initial] jerking movements forward and downward and

rising upright in the rear passenger seat[,]” — which the court found

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“circumstantially indicated” Appellant placed the shotgun under the seat in

front of him — as well as “Appellant’s subsequent blocking gestures” when the

officer approached the vehicle — which the court interpreted as Appellant’s

attempt to conceal the firearm from view.              Id. at 9-10.     The trial court

emphasized that Officer Cordero demonstrated Appellant’s movements in the

courtroom, which added credibility to his testimony. Id. at 10. Accordingly,

the court concluded the Commonwealth presented sufficient evidence for the

jury to determine beyond a reasonable doubt that Appellant constructively

possessed the firearm when he was statutorily prohibited from doing so. Id.

at 11.

         Upon our review of the record, the parties’ briefs, and the relevant

statutory and case law, we agree.              Officer Cordero’s testimony detailed

Appellant’s    suspicious    movements         both   before   and   after   the   officer

approached the vehicle, including Appellant’s attempt to position his body to

conceal the rear passenger floorboard where the firearm was later recovered.4

N.T. Trial at 41-44. Furthermore, all of the ammunition for the firearm was

found within Appellant’s immediate control.             Id. at 52-54.    The fact that

Appellant was cooperative with police, and that the other passengers also

acted suspiciously, is not dispositive.

         The officer’s description of the location of the shotgun when it was

discovered, as well as Appellant’s movements prior to that discovery,
____________________________________________


4As noted by the trial court, Officer Cordero demonstrated Appellant’s
movements for the jury. Trial Ct. Op. at 10; N.T. Trial at 43-44.

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demonstrate Appellant had “knowledge of the existence and location of” the

firearm. See Parrish, 191 A.3d at 37. Furthermore, his attempts to conceal

the weapon, as well as the location of the ammunition, support the jury’s

determination that Appellant also had the intent to control to shotgun. See

Commonwealth v. Cruz Ortega, 539 A.2d 849, 851 (Pa. Super. 1988)

(holding appellant had constructive possession of cocaine recovered from

rented vehicle of which appellant was passenger; officer saw appellant lean

over seat before stop and cocaine was found under appellant’s seat).

      The cases upon which Appellant relies are all readily distinguishable on

their facts.   See Commonwealth v. Armstead, 305 A.2d 1, 51-52 (Pa.

1973) (weapon observed “lying in the middle of the front seat” of vehicle in

which appellant was passenger; officers did not observe weapon upon initial

stop, wife of car’s owner stipulated that gun belonged to her husband, and

“equally logical argument [could] be made that . . . driver discarded the

weapon as he got out of the car”); Commonwealth v. Townsend, 237 A.2d

192, 194-95 (Pa. 1968) (weapons secreted under front passenger seat and

hood of vehicle in which Appellant was passenger; “there [was] absolutely no

evidence of record indicating where [Appellant] was sitting” in vehicle, and no

testimony “he was in any way associated with the weapons found”);

Commonwealth v. Hamm, 447 A.2d 960, 961-62 (Pa. Super. 1982) (before

stop, officer saw back passenger pass object to front passenger, who then

placed it under seat where firearm was later discovered; “no evidence to

suggest that appellant[/driver] knew of the weapon’s existence before it was

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produced by” back passenger); Commonwealth v. Boatwright, 453 A.2d

1058, 1058-59 (Pa. Super. 1982) (gun found on rear left floor of vehicle in

which appellant was front seat passenger; officer’s testimony “that appellant

made a movement toward the left rear of the vehicle” before stop insufficient

to prove constructive possession when vehicle also occupied by driver and left

rear seat passenger); Commonwealth v. Duffy, 340 A.2d 869, 870 (Pa.

Super. 1975) (gun recovered “far underneath passenger’s side of front seat”

during   consent   search   of   vehicle;     evidence   failed   to   demonstrate

appellant/passenger “knew of presence of contraband” and Commonwealth

did not object to granting appellant relief).

      Indeed, Appellant’s argument does not view the evidence in the light

most favorable to the verdict winner. See Parrish, 191 A.3d at 36. Rather,

Appellant focuses on the behavior of the other occupants and the evidence

the Commonwealth did not present, i.e., DNA or fingerprint analysis.

However, Appellant ignores the fact that “it is possible for two or more

people to have joint constructive possession of an item of contraband.”

See Commonwealth v. Hopkins, 67 A.3d 817, 820-21 (Pa. Super. 2013)

(emphases added).      Moreover, Appellant cites no authority supporting his

assertion that forensic evidence is necessary to prove constructive possession.

      Because we conclude the evidence presented was sufficient to prove

beyond a reasonable doubt that Appellant constructively possessed the

shotgun recovered from the vehicle, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2020




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