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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                 :     IN THE SUPERIOR COURT OF
                                              :          PENNSYLVANIA
                          Appellee            :
                                              :
                    v.                        :
                                              :
ROLAND FRANCIS,                               :
                                              :
                          Appellant           :     No. 364 WDA 2015

            Appeal from the Judgment of Sentence January 28, 2015
                  In the Court of Common Pleas of Erie County
               Criminal Division No(s).: CP-25-CR-0000777-2014

BEFORE: BOWES, DONOHUE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED OCTOBER 15, 2015

        Appellant, Roland Francis, appeals from the judgment of sentence

entered in the Erie County Court of Common Pleas upon his conviction for

possessing     a   firearm     without   a   license.1      Appellant   claims   the

Commonwealth failed to establish his constructive possession of the subject

firearm. We affirm.

        The evidence from Appellant’s nonjury trial reveals the following. On

February 16, 2014, at 4:30 a.m., Erie Police Sergeant Edward A. Noble

responded to a report of “a man with a gun.” N.T., 12/3/14, at 4-5. The

officer arrived at the 1800 block of Buffalo Road, where “there was a female



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6106(a)(1).
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yelling . . . ‘He has a gun’ in a very excited manner.” Id. at 14. The female

was pointing at a vehicle.2 Id.

      Officer Noble immediately approached the passenger side of the

vehicle and ordered the three occupants to raise their hands. Id. at 5, 14.

The two individuals in the front seats—a male in the driver’s seat, Justin

Johnson, and a female in the passenger seat, Appellant’s sister, Mary

Elizabeth Powell—complied with the officer’s order. Id. at 6, 21. Appellant,

who was in the backseat behind the driver, “looked down and started

fumbling with something on his lap.”        Id. at 6.   The officer repeatedly

ordered Appellant to raise his hands.      Id.   Appellant complied five to ten

seconds after the officer’s first order. Id. at 15.

      Officer Noble then “went around to [Appellant’s] side of the vehicle[,]

opened the door[, and] ordered him out of the vehicle.”          Id. at 6.   As

Appellant was exiting the car, the officer saw “a handgun right where

[Appellant’s] feet [were inside the vehicle.]” Id. at 6-7. According to the

officer, the handgun “would have been under his feet, or in between his

feet.” Id. at 16. Johnson and Powell remained seated in the vehicle with

their hands raised. Id. at 7.

      Officer Noble retrieved the firearm from the vehicle. The weapon was

functional and loaded with one round in the chamber and one round in the

2
  We note Officer Noble testified at trial that the female at the scene pointed
“to the gun.” N.T. at 14. However, there was no evidence the officer saw a
weapon before he removed Appellant from the vehicle. Id. at 16.



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magazine.      Id. at 8, 12.      Later, the officer submitted a form to the

Pennsylvania State Police to determine Appellant’s licensing status. Id. at

9-10.     The officer misspelled Appellant’s first name as “Ronald” instead of

“Roland,” but included the social security number and date of birth Appellant

provided him.     Id. at 10-11.     The State Police returned a report stating,

“This subject . . .    did not have a license to carry firearms [or] a valid
                                      3
sportsman’s firearm permit . . . .”       Id. at 10. The handgun was tested for

fingerprints, but none were found. Id. at 12.

        Appellant exercised his right not to testify.    Id. at 18-19.   Powell,

however, testified for the defense as follows. She and Johnson owned the

vehicle. Id. at 21, 22-23. She was unaware that a firearm was inside the

vehicle that night, and she did not see Appellant or Johnson with the

firearm. Id. at 22. Neither she nor Johnson owned a firearm. Id. at 23-24.

Appellant was only inside the vehicle for five to eight minutes before his

arrest. Id. at 21.

        On cross-examination by the Commonwealth, Powell stated she,

Johnson, and Appellant went to the 1800 block of Buffalo Road to confront

another female, Quaisha Bolden. Id. at 25, 27. She “called out” Bolden and

argued with Bolden and Bolden’s cousins. Id. at 26. The dispute between

Powell and Bolden was about Johnson. Id. at 27.


3
  Appellant does not assert he was licensed to carry a firearm or challenge
the sufficiency of the Commonwealth’s proof that he did not have a license.



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     The trial court, on December 3, 2014, found Appellant guilty of

possessing a firearm without a license.4   The court, on January 28, 2015,

sentenced Appellant to two to four years’ imprisonment.        Appellant, on

February 27, 2015, timely filed a notice of appeal and a Pa.R.A.P. 1925(b)

statement.

     Appellant presents a single question for review. Appellant’s Brief at 3.

Relying on Commonwealth v. Boatwright, 453 A.2d 1058 (Pa. Super.

1982), he claims the evidence was insufficient to prove he possessed the

firearm. Appellant’s Brief at 11. He notes the arresting officer “never saw

him in physical possession of the firearm” and there was no evidence he

possessed a holster or ammunition. Id. at 9-10. Appellant emphasizes that

“he was not the owner or operator of the motor vehicle in which the gun was

found” and there were “two other people” in the vehicle.       Id.     He thus

asserts the evidence established only his mere presence in the vehicle. Id.

at 10. We disagree.

     Our standard of review is well settled:

           In evaluating a challenge to the sufficiency of the
        evidence, we must determine whether viewing the
        evidence in the light most favorable to the verdict winner,
        together with all reasonable inferences therefrom, the trier
        of fact could have found that each and every element of
        the crimes charged was established beyond a reasonable

4
  The trial court found Appellant not guilty of possessing an instrument of
crime, as well as terroristic threats, recklessly endangering another person,
and simple assault regarding another female at the 1800 block of Buffalo
Road.



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         doubt. The facts and circumstances established by the
         Commonwealth need not preclude every possibility of
         innocence. However, any questions or doubts are to be
         resolved by the factfinder, unless the evidence is so weak
         and inconclusive that as a matter of law, no probability of
         fact may be drawn from the circumstances. The trier of
         fact is free to believe all, part or none of the evidence.
         “The standard is equally applicable to cases where the
         evidence is circumstantial rather than direct so long as the
         combination of the evidence links the accused to the crime
         beyond a reasonable doubt.”

Commonwealth v. Thompson, 779 A.2d 1195, 1197 (Pa. Super. 2001)

(citations omitted).

      Section 6106 of the Crimes Code states,

         [A]ny person who carries a firearm in any vehicle or any
         person who carries a firearm on or about his person,
         except in his place of abode or fixed place of business,
         without a valid and lawfully issued license under this
         Chapter commits a felony of the third degree.

18 Pa.C.S. § 6106(a).

      Because there was no evidence that the firearm was on Appellant’s

person, the Commonwealth was required to demonstrate constructive

possession.   See Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.

Super.), appeal denied, 78 A.3d 1090 (Pa. 2013). As this Court noted:

         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



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         possession may be established by the totality of the
         circumstances.

Id. (citation omitted).

      In Boatwright,

         [t]he Commonwealth’s evidence disclosed that . . . Officers
         Charles Roller and Annette Roebuck responded to a radio
         call concerning three “suspicious” men in an automobile
         parked in front of a residence . . . . Upon arriving at the
         location, Officer Roller observed [the defendant], who was
         seated in the front passenger seat of the vehicle, “moving
         towards his left rear.” The officer could not see [the
         defendant’s] hand or arm, only a movement of his body.
         Officer Roller then opened the door of the automobile and
         asked [the defendant] to get out. He shined a light onto
         the left rear floor of the vehicle and saw a gun. In addition
         to [the defendant], the car was occupied by the driver and
         another passenger who was seated in the left rear seat.
         The car was registered to the driver’s girlfriend and the
         gun to one Darlene Simpson.

Boatwright, 453 A.2d at 1058-59 (record citations omitted).

      On appeal, the Boatwright Court reversed the defendant’s conviction

for possessing the firearm, concluding:

         The only evidence other than [the defendant’s] mere
         presence was Officer Roller’s testimony that [the
         defendant] made a movement toward the left rear of the
         vehicle. This evidence cannot provide proof beyond a
         reasonable doubt that [he] possessed the firearm in
         question.

Id. at 1059.

      Instantly, our review reveals significant differences between the facts

discussed in Boatwright and the evidence presented at Appellant’s trial.

Unlike the defendant’s body movement in Boatwright, Appellant’s furtive



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movements while failing to comply with the officer’s order to raise his hands

sustained a reasonable inference that he was attempting to conceal the

firearm.   Compare Boatwright, 453 A.2d at 1058, with N.T. at 6, 15.

Further, the officer in this case found the firearm in an area within

Appellant’s exclusive control.   Compare Boatwright, 453 A.2d at 1059,

with N.T. at 6-7. Lastly, the defense’s evidence negated the possibility that

another individual in the vehicle possessed the firearm or placed it in the

area by Appellant’s feet. See N.T. at 21-24.

      Consequently, we discern no merit to Appellant’s arguments based on

Boatwright.    We further conclude the instant record supported the trial

court’s finding that Appellant constructively possessed the firearm.     See

Hopkins, 67 A.3d at 820; Thompson, 779 A.2d at 1199. Accordingly, we

have no basis to disturb Appellant’s conviction.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/15/2015




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