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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                         :
DEWANE B. JOLLY,                         :           No. 61 WDA 2015
                                         :
                         Appellant       :


          Appeal from the Judgment of Sentence, September 5, 2014,
              in the Court of Common Pleas of Allegheny County
               Criminal Division at No. CP-02-CR-0016851-2013


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND SHOGAN, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED AUGUST 23, 2016

        Dewane B. Jolly appeals the judgment of sentence in which the Court

of Common Pleas of Allegheny County sentenced him to serve a term of

three to six years’ imprisonment followed by four years’ probation for

possession of a firearm prohibited.1         He was also sentenced to serve

five years’ probation for possession of a firearm with the manufacturer

number altered and five years’ probation for firearms not to be carried

without a license.2 The three probation sentences were concurrent with one

another and consecutive to the imprisonment.            Appellant received a

determination of guilty without further penalty for driving without a license,



1
    18 Pa.C.S.A. § 6105(a)(1).
2
    18 Pa.C.S.A. § 6110.2(a) and 18 Pa.C.S.A. § 6106(a)(1), respectively.
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driving while his operating privilege was suspended or revoked, failing to

stop at a stop sign, and failing to stop at a red light.3

        On November 4, 2013, Detective Daniel Zeltner (“Detective Zeltner”)

of the City of Pittsburgh Police Department was working with two other

plainclothes    police   officers    in      an   unmarked       Chevrolet   Impala.

Detective Zeltner observed a maroon Lincoln (“Vehicle”) traveling at a high

rate of speed on Paulsen Avenue. Officer Andrew Miller (“Officer Miller”) was

driving the Impala. The police car followed the Vehicle and observed that it

failed to stop for a stop sign and then failed to stop at a red light at

Lincoln Avenue and Lemington Avenue. The lights and sirens for the Impala

were activated, and the Vehicle pulled over to the right to Lincoln and Lore

Way at approximately 3:48 p.m.               After the Vehicle pulled over, the

passenger      door   opened,       and     the   passenger,     John    Richardson4

(“Richardson”), fled the vehicle.         (Notes of testimony, 6/30/14 at 10-13.)

The third officer in the unmarked car, Detective Disanti, caught Richardson,

and Detective Zeltner handcuffed him.             (Id. at 13.)     Detective Zeltner

determined that appellant’s driver’s license was suspended.             Officer Miller

found a gun in the Vehicle. When questioned about the gun, appellant told

the officers that he was not aware that it was there.               The gun was a


3
 75 Pa.C.S.A. § 1501(a), 75 Pa.C.S.A. § 1543(a), 75 Pa.C.S.A. § 3323(b),
and 75 Pa.C.S.A. § 3112(a)(3)(i), respectively.
4
    Richardson was tried at the same time as appellant.



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.45 caliber semi-automatic pistol. Someone had attempted to scratch out or

obliterate the serial numbers, but they were still visible. (Id. at 15-16, 23.)

Appellant told Detective Zeltner that he was a jitney5 driver and Richardson

was a jitney passenger who fled because he had an outstanding warrant for

his arrest. It turned out that Richardson did not have a warrant. Richardson

also proclaimed that he had no knowledge about the firearm. (Id. at 17.)

        Once back-up arrived, Officer Miller walked around to the open

passenger side front door and observed the loaded firearm in plain view.

(Id. at 28, 36.) It was “[l]eaning up against the center console on the front

passenger side floor with the magazine facing the ceiling and barrel facing

the rear of the vehicle.” (Id. at 28.)

        During a non-jury trial, the parties stipulated that appellant had a

previous conviction for robbery of a motor vehicle.          The parties also

stipulated that, based on DNA testing, appellant was excluded as a

contributor to the DNA found on the trigger, trigger guard, and slider of the

firearm. The DNA testing was inconclusive as to Richardson. (Id. at 8-9.)

The trial court convicted appellant and sentenced him.6       Richardson was

found guilty of the firearms charges and escape. With respect to appellant,

the trial court reasoned:



5
    A jitney is an unlicensed taxi service.
6
  The trial court acquitted appellant of the charge of receiving stolen
property.18 Pa.C.S.A. § 3925(a).


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            Neither of the Officers who testified at the time of
            trial saw either Jolly or Richardson with the firearm
            and, accordingly, the Commonwealth’s case was
            predicated upon the theory of constructive
            possession. . . . In taking a pragmatic approach to
            the review of the record in this case, it is clear that
            based on the totality of circumstances, the
            Commonwealth        had    established    constructive
            possession of the firearm by [appellant] despite the
            DNA tests which excluded him as a contributor.

            Jolly was operating as a jitney driver in a high crime
            area and his passenger had recently been beat [sic]
            up in an attempted robbery attempt. The passenger
            fled from the vehicle which he knew possessed a
            firearm since it was opening [sic] visible to anyone
            who looked in the car and his explanation for his
            flight was the fact that he believed that there was an
            outstanding warrant for his arrest.           Although
            [appellant] allowed the Officers to conduct a pat
            down search on him and a search of the vehicle, this
            did not disprove his possession of the firearm. The
            firearm was placed in a unique possession [sic] in
            that it was upside down with the barrel pointing
            toward the rear of the car and it was noted that
            Richardson was right-handed which would have
            made it difficult for him to place the gun in that
            position prior to him running from the vehicle. It
            was also noted that the gun was visible to everyone
            who approached that particular car from both the
            driver’s side and the passenger’s seat side. It is
            clear that [appellant] had the ability to control the
            firearm, as he was aware of its existence since the
            firearm was visible to everyone. In light of the
            totality of the circumstances, it is clear that the
            Commonwealth put forward more than sufficient
            evidence to establish beyond a reasonable doubt its
            theory of constructive possession.

Trial court opinion, 6/2/15 at 7-9.

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

the evidence was insufficient to convict [appellant] at Counts 1, 2, and 4


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because the Commonwealth failed to prove, beyond a reasonable doubt, that

[appellant] possessed the firearm?”      (Appellant’s brief at 5 (capitalization

omitted).)

     With respect to the sufficiency of the evidence, we observe:

             In reviewing the sufficiency of the evidence, we view
             all the evidence admitted at trial in the light most
             favorable to the Commonwealth, as verdict winner,
             to determine whether there is sufficient evidence to
             enable the factfinder to find every element of the
             crime established beyond a reasonable doubt.
             Commonwealth v. Thomas, 867 A.2d 594
             (Pa.Super. 2005).        “This 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.” Id. at 597. And
             while a conviction must be based on more than mere
             suspicion or conjecture, the Commonwealth need not
             establish guilt to a mathematical certainty.       Id.
             quoting Commonwealth v. Coon, 695 A.2d 794,
             797 (Pa.Super. 1997). This Court is not free to
             substitute its judgment for that of the fact-finder; if
             the record contains support for the convictions they
             may not be disturbed. Id. citing Commonwealth v.
             Marks, 704 A.2d 1095, 1098 (Pa.Super. 1997) and
             Commonwealth v. Mudrick, 510 Pa. 305, 308, 507
             A.2d 1212, 1213 (1986). Lastly, the factfinder is
             free to believe some, all, or none of the evidence.
             Id.

Commonwealth v. Hartle, 894 A.2d 800, 803-804 (Pa.Super. 2006).

     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


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           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).

     Appellant asserts that the evidence was insufficient to prove beyond a

reasonable doubt that appellant possessed the firearm found in the Vehicle.

Appellant further asserts that the only evidence linking appellant to the

firearm was his presence in the Vehicle when it was found.     Although the

trial court found that appellant had constructive possession of the firearm,

appellant argues that the Commonwealth failed to prove that he had the

power to control the firearm and the intent to exercise that control over the

firearm.

     The trial court relied upon Commonwealth v. Hopkins, 67 A.3d 817

(Pa.Super. 2013), appeal denied, 78 A.3d 1090 (Pa. 2013), in making its

determination that appellant had constructive possession over the firearm.

In Hopkins, Detective Jason Moss (“Detective Moss”), a detective with the

City of Pittsburgh Police Department, observed an individual pacing around a

grocery store parking lot and making telephone calls on a cellular phone.

Detective Moss recognized the individual as a drug user from a previous


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encounter approximately one month before.            Detective Moss saw the man

walk to the side of a building and then begin counting his money.             A car

pulled up on a side street and parked against traffic under a “No Parking”

sign.    Detective Moss contacted his partners.       When they approached the

vehicle, the known drug user turned away from the vehicle and fled.                A

juvenile inside the vehicle threw a brick of heroin to the floor of the car and

was arrested.       One of the detectives, Detective Higgins, approached the

vehicle and observed a loaded Smith & Wesson 0.38 caliber firearm between

the     front   console   and   the   seat   where    the   juvenile   was   sitting.

Detective Mark Goob (“Detective Goob”) approached the vehicle on the

driver’s side and saw William Hopkins (“Hopkins”), the driver, begin to reach

down between the console and the driver’s seat and push his hand down into

that area. Detective Goob ordered Hopkins out of the vehicle. Hopkins was

arrested and charged with person not to possess a firearm, 18 Pa.C.S.A.

§ 6105(a)(1), and carrying a firearm without a license, 18 Pa.C.S.A.

§ 6106(a)(1), as well as two drug charges and one summary traffic

violation. He was found guilty on all counts. Hopkins, 67 A.3d at 818-819.

        One of the issues raised on appeal to this court was whether there was

sufficient evidence to establish that he had constructive possession of the

heroin and the firearm. Id. at 820.

        This court determined there was sufficient evidence:

                When viewed in their totality, the facts and
                circumstances support the finding that [Hopkins] was


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              in constructive possession of the contraband and the
              weapon.     Minutes after a known drug user was
              observed making a cell phone call, pacing in a vacant
              lot, and counting money, [Hopkins] drove his vehicle
              the wrong way into a dark side street. As the police
              approached, the known drug user fled. When the
              transaction was thwarted, Detective Goob, a ten
              year veteran of the narcotics unit, observed
              [Hopkins] attempt to hide two bricks of heroin in the
              space between the driver’s seat and the center
              console of the vehicle he was driving. The detective
              also observed [the juvenile] throw a brick of heroin
              onto the floor of the vehicle. The firearm was found
              within arms-length of where [Hopkins] was seated.
              Additionally, upon arrest, [Hopkins] was found with
              two cell phones and $361 in cash; the juvenile had
              no money on his person. [Hopkins] is entitled to no
              relief.

Id. at 821.

      With respect to whether appellant constructively possessed the

firearm, this court must view the facts in the light most favorable to the

Commonwealth, the verdict winner. Thomas. Further, this court noted in

Commonwealth v. Flythe, 417 A.2d 633, 634 (Pa.Super. 1979), “[i]t

strains the imagination to believe that defendant innocently entered this

vehicle having no knowledge of the items found therein when, the pistol at

least, was within a few inches of him and a portion of it was in plain view.”

      Although the circumstances were somewhat different from Hopkins,

an examination of the totality of the circumstances as in Hopkins supports

the trial court’s determination that appellant had constructive possession of

the firearm. While he did not own the vehicle, he used it to operate a jitney.

The firearm was located in the vehicle next to the center console, very close


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to where appellant was sitting in the driver’s seat. The trial court found that

the firearm was situated in such a way that it would be easier for appellant

to reach than Richardson.    Also, it is well-settled law that more than one

person may have constructive possession over contraband.         The fact that

Richardson may also have had constructive possession over the firearm did

not mean that appellant could not also have constructive possession.        In

addition, as in Hopkins, the firearm was in plain view from outside the

vehicle.   Although the lack of DNA evidence did not support a finding of

possession, the fact-finder concluded that the other facts supported the

finding of constructive possession.    The trier-of-fact, the trial court here,

bears the responsibility of weighing the evidence presented and is free to

believe all, part, or none of the evidence. Commonwealth v. Newton, 994

A.2d 1127, 1131 (Pa.Super. 2010), appeal denied, 8 A.3d 898 (Pa. 2010).

This court finds no error.

      Judgment of sentence affirmed.



      Shogan, J. joins the Memorandum.

      Bender, P.J.E. files a Dissenting Memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/23/2016




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