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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                          :
BRIAN D. LACHMAN,                         :         No. 1578 MDA 2017
                                          :
                          Appellant       :


          Appeal from the Judgment of Sentence, September 19, 2017,
                 in the Court of Common Pleas of Berks County
               Criminal Division at No. CP-06-CR-0003799-2016


BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED APRIL 03, 2018

        Brian D. Lachman appeals from the September 19, 2017 judgment of

sentence in which the Court of Common Pleas of Berks County sentenced

appellant to serve 5 to 10 years1 for his conviction of persons not to

possess, use, manufacture, control, sell, or transfer firearms.2 After careful

review, we affirm.

        The trial court summarized the relevant facts, as follows:

              On June 17, 2016, Berks County police officers
              executed a search warrant at 1315 Green Hills Road,
              Birdsboro, Berks County, Pennsylvania (hereinafter
              referred to as “the Residence”). Entry was made
              into the Residence and [a]ppellant was located in the
              first floor bathroom. Appellant and his wife were
              taken into the kitchen area on the first floor of the

1   Appellant received credit for 444 days of time served.

2   18 Pa.C.S.A. § 6105(a)(1).
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              Residence. They were both read their Miranda[3]
              rights and waived those rights. Officers entered and
              searched the second floor bedroom of the Residence
              belonging to [a]ppellant and his wife. As a result of
              the search, officers located a loaded Jiminez nine
              millimeter pistol on [a]ppellant’s side of the
              bedroom. A .22 caliber rifle was also located within
              the bedroom. Police officers proceeded to search an
              additional room on the second floor and located a
              loaded H & R single shot twelve gauge shotgun
              between the outside wall and inner wall of the closet.
              Shotgun shells were also located inside of the
              additional room.      Appellant admitted that the
              Jimenez pistol belonged to him and that he was
              going to obtain money in exchange for the pistol.
              Appellant has a prior conviction for delivery of a
              controlled substance from August 13, 2004.
              Appellant was not permitted to possess, own or be in
              control of a firearm.

Trial court opinion, 11/20/17 at 2-3 (citations to record omitted).

        On September 27, 2017, appellant filed a post-sentence motion for a

new trial. The trial court denied the motion on September 29, 2017. On

October 13, 2017, appellant filed a notice of appeal. On October 18, 2017,

the trial court ordered appellant to file a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b).          On October 19,

2017, appellant complied with the order. On November 20, 2017, the trial

court filed its opinion pursuant to Pa.R.A.P. 1925(a).

        Appellant raises the following issue for this court’s review:

              Did the trial court err when it failed to instruct the
              jury as to Standard Jury Charge (Crim) 16.02(b)(A)
              Controlled Substance, “Possession” [d]efined as
              requested by [appellant] and instead relying on a

3   Miranda v. Arizona, 384 U.S. 436 (1966).


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            one sentence instruction as part of a larger
            instruction as to the enumerated offense in Standard
            Jury Charge 15.6105 (Crim), despite the fact that
            the definition of possession is not crime specific and
            was therefore a correct statement of the law and the
            main factual issue at hand for the jury to determine
            was whether [appellant] was in possession of the
            weapons found in a home where he was arrested but
            denied residency as opposed to being found on his
            person[?]

Appellant’s brief at 4 (footnotes omitted).

            We review a challenge to a jury instruction for an
            abuse of discretion or an error of law.
            Commonwealth v. Brown, 911 A.2d 576, 582-83
            (Pa.Super. 2006). We must consider the charge as a
            whole, rather than isolated fragments.            See
            [Commonwealth v.] Lesko, 15 A.3d [345], 397
            [Pa. 2011]; Commonwealth v. Simpson, 620 Pa.
            60, 66 A.3d 253, 274 (2013). We examine the
            entire instruction “against the background of all
            evidence presented, to determine whether error was
            committed.” Commonwealth v. Grimes, 982 A.2d
            559, 564 (Pa.Super. 2009) (quoting Buckley v.
            Exodus Transit & Storage Corp., 744 A.2d 298,
            305 (Pa.Super. 1999)). “A jury charge is erroneous
            if the charge as a whole is inadequate, unclear, or
            has a tendency to mislead or confuse the jury rather
            than clarify a material issue.” Id. (quoting Buckley,
            744 A.2d at 305). “Therefore, a charge will be found
            adequate unless the issues are not made clear to the
            jury or the jury was palpably misled by what the trial
            judge said.” Id. (quoting Buckley, 744 A.2d at
            305-06).      Furthermore, “[o]ur trial courts are
            invested with broad discretion in crafting jury
            instructions, and such instructions will be upheld so
            long as they clearly and accurately present the law
            to the jury for its consideration.” Simpson, 66 A.3d
            at 274. “The trial court is not required to give every
            charge that is requested by the parties and its
            refusal to give a requested charge does not require
            reversal unless the [a]ppellant was prejudiced by



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              that refusal.” Commonwealth v. Thomas, 904
              A.2d 964, 970 (Pa.Super. 2006).

Commonwealth v. Rush, 162 A.3d 530, 540 (Pa.Super. 2017), appeal

denied, 170 A.3d 1049 (Pa. 2017).

        Appellant contends that because he denied that he was a resident of

1315 Green Hills Road, his presence in the downstairs bathroom at the time

of police entry did not show that he had the intent and power to control the

weapons found on the second floor.       He argues that the trial court should

have instructed the jury fully on the issue of constructive possession and

what it means to have intent and power to control.         (Appellant’s brief at

8-9.)

        With respect to constructive possession, this court has held:

                    When contraband is not found on the
              defendant’s person, the Commonwealth must
              establish “constructive possession,” that is, the
              power to control the contraband and the intent to
              exercise that control. Commonwealth v. Valette,
              531 Pa. 384, 613 A.2d 548 (1992). The fact that
              another person may also have control and access
              does not eliminate the defendant’s constructive
              possession . . . . As with any other element of a
              crime, constructive possession may be proven by
              circumstantial evidence.       Commonwealth v.
              Macolino, 503 Pa. 201, 469 A.2d 132 (1983). The
              requisite knowledge and intent may be inferred from
              the totality of the circumstances. Commonwealth
              v. Thompson, 286 Pa.Super. 31, 428 A.2d 223
              (1981).

Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa.Super. 1996), appeal

denied, 692 A.2d 563 (Pa. 1997).



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        Here, the trial court explained that the parties stipulated that appellant

had a prior conviction that prevented him from possessing a firearm. The

trial    court     read   from    Pennsylvania    Suggested     Standard     Jury

Instruction 15.6105, “For a person to possess a firearm, he or she must

have the intent to control and the power to control the firearm.” (Notes of

testimony, 9/19/17 at 144.) This language closely mirrors the definition of

constructive possession.

        Appellant requested at the start of the jury trial that the trial court

instruct the jury under Pennsylvania Suggested Standard Jury Instruction

(Crim) 16.02(b)(A).       (Notes of testimony, 9/19/17 at 4-7.)         Appellant

focused on paragraphs 4-64 that provide:

              4.     A person can be guilty of possessing an item
                     even when he or she is not holding it, touching
                     it, or in the same area as the item. That type
                     of possession is what the law calls constructive
                     possession.     For there to be constructive
                     possession, it must be proved beyond a
                     reasonable doubt that the individual had both
                     the intent to control the item and the power to
                     control the item.

              5.     In determining whether or not the defendant
                     had possession of a controlled substance, you
                     should consider evidence of all facts and
                     circumstances that may shed light on the
                     question of whether the defendant had the
                     intent to control and the power to control that
                     substance.

4  Although this instruction pertains to drug possession, the Commonwealth
conceded that possession was the same whether it was possession of a
firearm or a controlled substance. (Id. at 147.) Appellant planned for the
trial court to substitute “firearm” for “substance.”


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               6.      Two or more persons may have joint
                       possession of a controlled substance and that
                       each has the power to control it. Each of the
                       joint possessors is regarded as having
                       possession of the substance for purposes of
                       the criminal law.

Pennsylvania Suggested Standard Jury Instruction (Crim) 16.02(b)(A).

      While Instruction 16.02(b)(A) has a more detailed explanation of

constructive possession, both instructions focus on the intent to control and

the power to control. Although appellant asserts that the jury instruction he

requested would have clarified the meaning of and requirements for

constructive possession, the charge the trial court gave was not inadequate,

unclear, or did not have a tendency to mislead the jury. Further, because

Officer Matthew Smith of the Robeson Township Police Department testified

that appellant admitted to him that the pistol found at the residence

belonged to him (id. at 99), and the jury was read a clear instruction

regarding constructive possession, appellant failed to establish that he

suffered any prejudice from the trial court’s failure to read the requested

instruction.        Consequently, the charge did not constitute an abuse of

discretion or an error of law.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/3/2018




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