J-S05009-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,         : IN THE SUPERIOR COURT OF
                                      :      PENNSYLVANIA
                Appellee              :
                                      :
           v.                         :
                                      :
ARRIENNE BATCHER,                     :
                                      :
                Appellant             : No. 2022 WDA 2013

        Appeal from the Judgment of Sentence November 21, 2013,
                 Court of Common Pleas, Allegheny County,
           Criminal Division at No(s): CP-02-CR-0015016-2012
                             and 2013-09464

COMMONWEALTH OF PENNSYLVANIA,         : IN THE SUPERIOR COURT OF
                                      :      PENNSYLVANIA
                Appellee              :
                                      :
           v.                         :
                                      :
ARRIENNE BATCHER,                     :
                                      :
                Appellant             : No. 1996 WDA 2014

        Appeal from the Judgment of Sentence November 21, 2013,
                 Court of Common Pleas, Allegheny County,
           Criminal Division at No(s): CP-02-CR-0009464-2013

BEFORE: DONOHUE, SHOGAN and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                   FILED FEBRUARY 4, 2015

     Arrienne Batcher (“Batcher”) appeals from the judgments of sentence

entered following his convictions of persons not to possess firearms,

18 Pa.C.S.A. § 6105, and firearms not to be carried without a license,

18 Pa.C.S.A. 6106.1 We affirm.


1
  Batcher’s appeals from these separate judgments of sentence have been
consolidated.
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      The trial court summarized the factual background in this case as

follows:

           On October 24, 2012, Detectives Matthew Turko,
           Justin Simoni and Higgins were patrolling the
           Homewood neighborhood of Pittsburgh in an
           unmarked police car. They were patrolling the area
           due to recent shootings in an effort to develop
           information about the shootings, provide a
           reassuring police presence in the community and be
           a visible deterrent to other criminals. To this end,
           they had spoken with several residents in an attempt
           to make their presence known and develop
           information.. One such person that they spoke with,
           at approximately 8:30 p.m., was [Batcher], who was
           standing around with several other people. The
           detectives asked him for his ID, spoke briefly to him
           and then allowed him to leave the area.

           Approximately fifteen (15) minutes later, as the
           police vehicle traveled on Brushton Avenue where a
           recent shooting had occurred, the detectives
           observed three (3) males standing in the shadows
           next to a garage used to repair vehicles. Detective
           Higgins illuminated the men with a flashlight. Two
           (2) of the men did not react to the vehicle or the
           flashlight, but [Batcher], who was standing between
           the two (2) men, appeared to be surprised or
           shocked, as described by Detectives Turko and
           Simoni.. As Detective Higgins stopped the car,
           [Batcher] reached into his waistband with his right
           hand, turned around and walked into the garage,
           away from the detectives. Detective Turko testified
           that, based on his experience as a narcotics
           detective, guns generally are carried in the
           waistband, and he believed that [Batcher] was either
           retrieving a firearm or hiding a firearm in his
           waistband at that time.

           The three (3) detectives got out of the vehicle and
           followed [Batcher] into the nearby garage, which had
           a concrete floor. The detectives observed [Batcher]



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          ducking into the right front corner of the garage
          pulling an object from his waistband.       Detective
          Turko then observed [Batcher] frantically moving his
          right hand as if there was something in his hand that
          he needed to get rid of quickly. As [Batcher] moved
          his arm in a tossing motion, Detectives Turko and
          Simoni heard the sound of a metallic object clanking
          on the concrete floor. Detective Turko described the
          sound as the metallic slide of a gun hitting a
          concrete floor. Detective Turko had previously
          accidentally dropped a gun on concrete, and it had
          made a similar sound.

          After hearing the noise of metal impacting on
          concrete, Detective Turko entered the garage and
          detained [Batcher], while Detective Simoni went into
          the garage to look for the firearm. The garage was
          fairly well-lit, with two fluorescent lights in the center
          of the garage. The only item in the immediate
          vicinity of [Batcher] was a bench seat from a pick-up
          truck, which Detective Turko would have been able
          to see him move. Deyective [sic] Turko was
          confident that the sound of metal hitting or
          impacting concrete did not come from any
          movement of the bench seat. As Detective Turko
          arrested him, [Batcher] asked the detective why
          they were stopping him and stated that he was going
          into the garage to retrieve his cell phone. A cell
          phone was found on [Batcher] at the time of his
          arrest.

          A firearm, a .380 caliber Kel-Tec pistol with a barrel
          of 2 ¾ inches, was found approximately two (2) feet
          from the area where [Batcher] had stood in the
          garage and was seen motioning with his arm. The
          gun was located behind the bench seat of the pick-
          up truck. The firearm was loaded, containing six (6)
          rounds of ammunition. The gun was taken to the
          Allegheny County Medical Examiner's Office crime lab
          and found to be operable and in good working
          condition.




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Trial Court Opinion, 7/22/14, at 2-5 (footnote and citations to notes of

testimony omitted).

     Batcher was arrested and charged with the aforementioned crimes.

Prior to trial, the Commonwealth severed the charges. A jury trial on the

firearms not to be carried without a license charge (“§ 6106 charge”)

commenced in July 2013, but ended in a mistrial during jury deliberations.

A second jury trial on the § 6106 charge occurred on August 20-21, 2013, at

the conclusion of which he was found guilty.         Subsequently, on November

21, 2103, Batcher appeared for a bench trial on the persons not to possess

firearms charge (“§ 6105 charge”).             The parties stipulated to the

introduction of the testimony from both the July and August trials, and the

Commonwealth      offered   additional    evidence   in   the   form   of   certified

convictions that would make Batcher a person prohibited from possessing a

firearm.   The trial court convicted Batcher of the § 6105 charge.          It later

sentenced him to three to six years of incarceration on the § 6106 conviction

and four to eight years of incarceration on the § 6105 conviction, order to

run concurrently. This timely appeal follows.

     On appeal, Batcher argues only that the evidence was insufficient to

establish that he possessed the firearm recovered from the garage, and

therefore that neither of his convictions can stand.       Batcher’s Brief at 19.

When reviewing a sufficiency of the evidence claim, “we must determine

whether the evidence admitted at trial, as well as all reasonable inferences



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drawn therefrom, when viewed in the light most favorable to the verdict

winner,   are   sufficient   to   support   all   elements   of   the   offense.”

Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super. 2013) (quoting

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011)).                When

performing this review, “we may not reweigh the evidence or substitute our

own judgment for that of the fact finder.” Id. The Commonwealth may rely

solely on circumstantial evidence to support a conviction, and 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. Hutchinson, 947 A.2d 800, 806 (Pa. Super. 2008).

     The crimes of which Batcher was convicted are defined as follows:

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

           (a) Offense defined.-- (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).

           § 6106. Firearms not to be carried without a
           license

           (a) Offense defined.— (1) Except as provided in
           paragraph (2), any person who carries a firearm in
           any vehicle or any person who carries a firearm



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            concealed 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.A. § 6106(a).

      Thus, to be convicted of either crime, the Commonwealth was required

to prove that Batcher possessed a firearm.          The Commonwealth could

establish this element of the offenses by proving either actual possession or

constructive possession of a firearm.

            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.”

Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (citation

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). (quoting Commonwealth v. Gutierrez, 969 A.2d 584, 590

(Pa. Super. 2009)).    “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 of drugs or contraband.”

Id.




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      The evidence and all reasonable inferences therefrom, when viewed in

the light most favorable to the Commonwealth, establishes that as three

undercover detectives drove down Brushton Avenue at approximately 8:45

in the evening on October 24, 2012, they saw three men standing just in

front of a garage.   N.T., 7/18/13, at 42-43; N.T., 8/20/13, at 38, 74-75.

From a distance of approximately ten feet, one detective illuminated the

men with a flashlight. N.T., 7/18/13, at 42-43, 68; N.T., 8/20/13, at 38, 75.

Two of the men exhibited no response to the light while the third, Batcher,

displayed a look of panic. N.T., 7/18/13, at 43; N.T., 8/20/13, at 40, 75.

Batcher immediately reached into his waistband, turned around and entered

the garage. N.T., 7/18/13, at 40, 43; N.T., 8/20/13, at 75. As Batcher did

this, the detectives pulled over in front of the garage and exited the vehicle.

N.T., 7/18/13, at 69; N.T., 8/20/13, at 75. Detective Matthew Turko

followed Batcher into the garage, which was partially lit by two overhead

fluorescent lights. N.T., 7/18/13, at 45, 60; N.T., 8/20/13, at 42.         He

observed Batcher’s right arm move in a manner consistent with throwing

and then heard the sound of metal hitting the concrete floor. N.T., 7/18/13,

at 45, 47-48 N.T., 8/20/13, at 42-43. As he secured Batcher, Detective

Justin Simoni, who also heard the sound of metal hitting the concrete floor,

took two or three steps into the garage and found a gun in the area toward

which Batcher had made the throwing motion. N.T., 7/18/13, at 69; N.T.,

8/20/13, at 76. The gun was found approximately two to three feet from



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Batcher. N.T., 7/18/13, at 70; N.T., 8/20/13, at 76. There were no other

metal items in that portion of the garage except for a four to five foot long

bench seat from a truck, which had metal legs. N.T., 7/18/13, at 48; N.T.,

8/20/13, at 46. Detective Turko, who was the first detective to enter the

garage, testified that the metallic sound did not come from the bench seat,

as he was so close to Batcher entering the garage, in both time and space,

that he would have seen if Batcher moved the bench seat. N.T., 7/18/13, at

48; N.T., 8/20/13, at 46. We have no hesitancy in concluding that this

evidence, when viewed as our standard of review requires, establishes that

Batcher had both the ability to consciously exercise control over the gun as

well as the intent to exercise such control. See Harvard, 64 A.3d at 699.

Batcher was seen reaching into his waistband and then making a throwing

motion, and a gun was recovered from the area into which he made the

throwing motion.   He was apprehended immediately, within a few feet of

where the gun was found. There was no other item in the vicinity that could

have made the sound of metal on concrete the detectives heard.

     We note that Batcher takes the position that “this is not a case in

which the Commonwealth could establish guilt via proof of constructive, as

opposed to actual, possession. This is so because … [the gun] was not, at

the moment it was found, an object over which he either exercised control or

intended to exercise control. To the contrary, [Batcher] … plainly wanted no

part of the firearm found in the corner of the garage[.]” Batcher’s Brief at



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22 (citations omitted). Batcher seems to argue that because he discarded

the gun, or at least was not attempting to gain control of the gun at the time

it was discovered, he cannot be found to have constructively possessed it.

He is mistaken.     Dominion and control over an item, as required for

constructive possession, can be exhibited by the discarding of an item. See,

e.g., Commonwealth v. Mann, 820 A.2d 788, 793 (Pa. Super. 2003)

(holding evidence sufficient to establish defendant possessed firearm, where

he was observed throwing firearm in vacant lot). As the evidence here, and

all reasonable inferences therefrom, is sufficient to establish that Batcher

threw the firearm into the portion of the garage in which it was found, it

matters not that he was not attempting to gain control of it when the police

discovered it.

      The balance of Batcher’s brief is a recasting of the evidence in a light

that favors Batcher’s position. Doing so is but an attempt to have this Court

reweigh the evidence and make credibility determinations, which we cannot

do. Cox, 72 A.3d at 721. Batcher also attempts to analogize the facts of his

case to those in Commonwealth v. Boatwright, 4523 A.2d 1058 (Pa.

Super. 1982), in which this Court found the evidence insufficient to establish

constructive possession.   Batcher’s argument is unavailing, as this case is

readily distinguishable. In Boatwright, the police received a radio call

reporting three “suspicious” men sitting in a car at a particular location.

Officers responded and as they approached the vehicle, they observed



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Boatwright, who was seated in the front passenger’s seat, “moving towards

his left rear.   The officer could not see appellant's hand or arm, only a

movement of his body.”     Boatwright, 453 A.2d at 1058.     After removing

Boatwright from the vehicle, the officer observed a firearm on the left rear

floor of the vehicle. There were also men seated in the driver’s seat and the

left rear seat. The car was registered to the driver’s girlfriend and the

firearm was registered to a woman unknown to any of the men.             We

concluded that these facts could establish no more than Boatwright’s mere

presence at the scene where the gun was found, and that mere presence

was not sufficient to establish constructive possession. Id. at 1059. These

facts are markedly different from the facts of the present case, in which the

totality of the circumstances, as established by the evidence and viewed in

the light most favorable to the Commonwealth, tie Batcher to the firearm; in

other words, in this case, there is evidence beyond Batcher’s mere presence

at the scene where the firearm was discovered.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/4/2015




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