J-A08037-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN THE INTEREST OF: R.F., A MINOR          :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
APPEAL OF R.F., A MINOR                    :   No. 1498 EDA 2015

                Appeal from the Dispositional Order May 1, 2015
              in the Court of Common Pleas of Philadelphia County
               Juvenile Division at No(s): CP-51-JV-0000670-2015

BEFORE:       BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY: STRASSBURGER, J.:                      FILED JUNE 07, 2016

      R.F. (Appellant) appeals from the dispositional order entered on May 1,

2015, following his adjudication for possession of a firearm by a minor, 18

Pa.C.S. § 6110.1. We affirm.

      The juvenile court summarized the relevant factual history of this case

as follows.

             On March 28, 2015 at approximately 4:00 AM, Philadelphia
      Police Sergeant Daniel Ayres, Badge #8556, assigned to the 19 th
      Police District, was parked in a patrol vehicle near 1 South 53rd
      Street in Philadelphia County. Sergeant Ayres observed a 2008
      black Chevy Malibu, bearing a Pennsylvania license plate, JPW-
      7057, with tinted windows throughout the vehicle. The vehicle
      drove past Sergeant Ayres. Sergeant Ayres performed a DMV
      check of the license plate, and learned that the license plate was
      in suspended status, “registration suspended for Type A, return
      check.” Sergeant Ayres followed the vehicle and the vehicle
      went around the block. Sergeant Ayres activated his lights,
      stopped the vehicle, and performed a vehicle investigation at
      53rd Street and Chestnut Street, which was at an approximate
      distance of two blocks from the location of initial observation.
      The vehicle pulled over immediately after the officer activated
      his lights.

           Sergeant Ayres observed five males inside of the vehicle
      and activated his spotlight to illuminate the vehicle. [Appellant]

*Retired Senior Judge assigned to the Superior Court.
J-A08037-16


     was the rear, passenger-side passenger. Sergeant Ayres noticed
     that [Appellant] and the middle-rear passenger, Dawon Mack
     [(Mack)], immediately began looking towards one another,
     huddling towards one another, and looking back at the police
     vehicle. The two passengers kept moving around for
     approximately five to ten seconds, and then the middle-
     passenger put his arm around [Appellant]. As Sergeant Ayres
     approached the vehicle, he ordered all of the males in the
     vehicle to keep their hands visible.

           The front passenger was nervous and handed a handful of
     paperwork, rather than just handing over the registration. The
     front passenger, Courtland Gilliam, was the vehicle owner, but
     he was unsure of what he was handing the officer. Officer Denia
     Starks, Badge #3726, and her partner, Officer Adams, Badge
     #4421, then arrived to provide backup. Based on the vehicle
     owner’s nervousness and the movement of the rear passengers,
     Sergeant Ayres advised Officer Starks to remove everyone from
     the vehicle, beginning with the rear passengers.

           Officer Starks first removed [Appellant], patted him down
     for safety, and placed him toward the back of her vehicle. As
     soon as she returned to the subject vehicle, Officer Starks
     immediately yelled “gun.” At that point, the police officers
     removed and secured all of the individuals in the vehicle.
     Sergeant Ayres observed other officers recover a black 9-
     millimeter Taurus PT111, loaded with nine rounds in the
     magazine and one in the chamber, from the rear floorboard of
     the vehicle. The gun was recovered from the floorboard to the
     right of where Mr. Mack had been sitting and directly in front of
     where [Appellant] had been sitting. After the two front-seat
     occupants were removed, Sergeant Ayres observed on the front
     floorboard a clear container, similar to a pill bottle, containing
     marihuana, as well as a yellow container containing four packets
     of crack [] cocaine. Police recovered the narcotics, live-stopped
     the vehicle, towed the vehicle to the Parking Authority, and later
     recovered twenty-two additional empty containers, identical to
     the container containing the crack [] cocaine. Police also seized
     $2,414 [in United States currency] from the vehicle’s owner.

           Police released the driver of the car and the driver’s side-
     rear passenger, while police arrested the other three passengers.
     The two individuals that were cleared by investigation did not
     make furtive movements and had been completely cooperative

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      throughout the investigation. The vehicle’s owner was also
      transported to the emergency room for anxiety medication and
      treatment.

            Officer Starks had removed [Appellant] from the vehicle,
      took his name and information, and told Officer Adams to hold
      onto him. Before Officer Starks could remove Dawon Mack, she
      noticed the gun where [Appellant] had been sitting and where
      his feet would have been located. Before removing anyone from
      the vehicle, Officer Starks also noticed furtive movements
      between [Mack and Appellant], and Officer Starks again
      instructed everyone to keep still and keep their hands “up
      higher”. Their hands had been lap-level, and Officer Starks
      wanted the hands to be more elevated to be better visible.

            The firearm was operable, and the barrel length was three
      and one-quarter inches. [Appellant] did not possess a license to
      carry a firearm.

Juvenile Court Opinion, 8/13/2015, at 1-3 (unpaginated) (footnotes and

citations to notes of testimony omitted).

      Appellant was arrested and charged with criminal conspiracy and

multiple violations of the Uniform Firearms Act, including the above-

referenced offense. On April 10, 2015, following a hearing, Appellant was

adjudicated delinquent of possession of a firearm by a minor.       Appellant

timely filed a motion to reconsider. On May 1, 2015, Appellant’s motion was

denied and, following a dispositional hearing, he was placed at Glen Mills

Schools for Boys.    This timely appeal followed.    Both Appellant and the

juvenile court complied with Pa.R.A.P. 1925.

      On appeal, Appellant asks this Court to consider whether the evidence

was sufficient to support the juvenile court’s determination that Appellant

had constructive possession of the recovered firearm. Appellant’s Brief at 3.

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      We examine Appellant’s issue mindful of the following. Our standard of

review of dispositional orders in juvenile proceedings is well-settled. The

Juvenile Act grants broad discretion to juvenile courts in determining

appropriate dispositions. In re C.A.G., 89 A.3d 704, 709 (Pa. Super. 2014).

Indeed, the Superior Court will not disturb the lower court’s disposition

absent a manifest abuse of discretion. In the Interest of J.D., 798 A.2d

210, 213 (Pa. Super. 2002).

             When a juvenile is charged with an act that would
      constitute a crime if committed by an adult, the Commonwealth
      must establish the elements of the crime by proof beyond a
      reasonable doubt. When considering a challenge to the
      sufficiency of the evidence following an adjudication of
      delinquency, we must review the entire record and view the
      evidence in the light most favorable to the Commonwealth.

             In determining whether the Commonwealth presented
      sufficient evidence to meet its burden of proof, the test to be
      applied is whether, viewing the evidence in the light most
      favorable to the Commonwealth and drawing all reasonable
      inferences therefrom, there is sufficient evidence to find every
      element of the crime charged. The Commonwealth may sustain
      its burden of proving every element of the crime beyond a
      reasonable doubt by wholly circumstantial evidence.

            The facts and circumstances established by the
      Commonwealth need not be absolutely incompatible with a
      defendant’s innocence. Questions of doubt are for the hearing
      judge, unless the evidence is so weak that, as a matter of law,
      no probability of fact can be drawn from the combined
      circumstances established by the Commonwealth.

In re V.C., 66 A.3d 341, 348–349 (Pa. Super. 2013) (citation and quotation

marks omitted). The finder of fact is free to believe some, all, or none of the




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J-A08037-16


evidence presented. Commonwealth v. Gainer, 7 A.3d 291, 292 (Pa.

Super. 2010).

       In order to allow the juvenile court to adjudicate Appellant delinquent

of possession of a firearm by a minor, the Commonwealth was required to

prove that (1) the weapon was a firearm as defined by the statute, (2) that

Appellant was in possession of the firearm, and (3) that Appellant was under

the age of 18 at the time of the offense. 18 Pa.C.S. § 6110.1(a). It is

undisputed that the weapon recovered herein meets the statutory definition

of a firearm and that Appellant was 17 years old at the time of the offense.

However, because the firearm was not found on Appellant’s person, the

Commonwealth was required to prove constructive possession to establish

the final element of the offense.

       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. 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. Brown, 48 A.3d 426, 430 (Pa. Super. 2012) (quotation

marks and citation omitted). Additionally, it is possible for two people to

have    joint   constructive   possession   of   an   item   of   contraband.

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

       Appellant argues that he was merely present in the vehicle, which was

occupied by four adults, including the owner-driver. Appellant’s Brief at 10.


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J-A08037-16


He concedes that the officers observed furtive movements but contends that

“most were made, not by Appellant, who was compliant and cooperative

with police, but by the other adult [Mack] seated next to him.” Id.

Additionally,   he   maintains   that   the   juvenile   court   overlooked   other

“reasonable possibilities,” namely that Mack placed the firearm at Appellant’s

feet “before or after” Appellant was removed from the vehicle, and under

such circumstances, the Commonwealth’s evidence was insufficient to prove

constrictive possession. Id.

      We disagree.     The facts presented herein are sufficient to establish

that Appellant knew of and intentionally exercised control over the firearm.

Sergeant Ayres testified that he pulled over the subject vehicle and its five

occupants at approximately 4:00 in the morning. N.T., 4/10/2015, at 5.

Upon shining his spotlight on the stopped vehicle, he observed Appellant and

Mack, the two passengers in closest proximity to the recovered firearm,

“looking towards each other, huddling towards each other, looking back at

[his] vehicle, [and] moving around” for approximately five to ten seconds

before Mack placed his arm around Appellant. Id. at 6, 10. He ordered the

five men to keep their hands visible. Id. at 7. Officer Starks testified that

she also saw movement between Appellant and Mack when the vehicle was

stopped and, upon her approach to back up Sergeant Ayres, she ordered the

occupants of the vehicle to remain still with their hands where she could see

them. Id. at 22. She then removed Appellant from the vehicle and


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J-A08037-16


performed a pat down.      Thereafter, she observed the firearm on the rear

floorboard where Appellant had been seated. Id. at 8.

      Viewing    the   evidence   in   the   light   most   favorable    to   the

Commonwealth, it can be inferred Appellant and Mack attempted to conceal

the firearm after the vehicle was stopped, which raises a clear inference of

constructive possession. Commonwealth v. Johnson, 26 A.3d 1078,

1093–1094 (Pa. 2011) (holding that intent to maintain conscious dominion

may be inferred from totality of the circumstances). The juvenile court,

sitting as factfinder was free to believe any or all of the Commonwealth’s

evidence. Moreover, it is well-established that, in evaluating a sufficiency of

the evidence challenge, “[t]his Court may not weigh the evidence or

substitute its judgment or that of the factfinder.” Commonwealth v.

Hacker, 959 A.2d 380, 388–89 (Pa. Super. 2008) (internal citations

omitted). Thus, we decline Appellant’s invitation to overturn the juvenile

court’s credibility determinations.1

      Accordingly, we affirm the juvenile court’s dispositional order.

      Dispositional order affirmed.




1
  Additionally we note that Mack’s alleged involvement in this matter is
immaterial. The law is clear that multiple actors may be in joint constructive
possession of contraband, Hopkins, 67 A.3d at 820–821.


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J-A08037-16


Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 6/7/2016




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