J-A06036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                         Appellee

                    v.

DANEEN SANDS,

                         Appellant                        No. 1902 EDA 2015


            Appeal from the Judgment of Sentence May 28, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0010798-2014


BEFORE: PANELLA, SHOGAN, and RANSOM, JJ.

DISSENTING MEMORANDUM BY SHOGAN, J.:                       FILED JULY 11, 2017

      Because I conclude that the record supports the trial court’s finding of

constructive   possession,     I   would   affirm   the   judgment   of   sentence.

Accordingly, I respectfully dissent.

      Possession of contraband may be proven by constructive possession,

which is defined as follows:

             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
      possession may be established by the totality of the
      circumstances.
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Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (citations

omitted).

       The Majority takes the position that “the Commonwealth presented no

evidence of Appellant’s connection to the room where the firearms were

stored.” Majority Memorandum at 5. However, the record reveals that the

guns were located in a common area of the home, i.e., an area to which all

occupants of the house had access. Officer Lance Cannon testified that the

closet, the hidden compartment in the closet where the guns were hidden,

and the switch used to operate the compartment were located in the living

room of the house.    N.T., 2/13/15, at 20.   Thus, the Commonwealth did

establish that Appellant had access to and a connection with this common

room in the house.

       Moreover, Commonwealth v. Wisor, 353 A.2d 817 (Pa. 1976), and

Commonwealth v. Harlow, 408 A.2d 479 (Pa. Super. 1979), the cases

upon which the Majority relies, are readily distinguishable. Wisor involved a

marijuana pipe that was discovered under the passenger seat of a car with

multiple occupants. However, the appellant, who was the owner of the car,

never admitted knowing the pipe was present in the vehicle.      In Harlow,

marijuana and a shotgun were found in a home the appellant shared with

others. When officers asked the appellant about the firearm, the appellant

said, “Well, you’re arresting me for marijuana that you found in a woman’s

pocketbook, so I guess anything you find in the house it must belong to

me.”   Id. at 480.   This Court concluded that the appellant’s “wise toned”

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remark was not an admission and did not show the appellant possessed the

gun. Id. at 480-481. Thus, Wisor and Harlow are distinguishable because

the appellants made no admissions with respect to any relevant facts.

     Conversely, in the case at bar, Appellant made detailed admissions.

Appellant admitted to precise and particularized knowledge of the secret

compartment in the victim’s house, where it was located, how it operated,

and its contents.     Officer Mark Schmidheiser testified that when he

questioned Appellant about the theft of the guns, Appellant admitted that

she knew the victim owned handguns, that there was a secret compartment,

and that the victim kept guns in that compartment. N.T., 2/13/15, at 74.

Appellant further admitted knowing details about the compartment and its

operating mechanism. Id. at 74-76. Appellant had this information despite

the victim testifying that he never showed anyone the hidden compartment

and kept it secret.   Id. at 33-35.   Appellant stated that she told no one

about the compartment, id. at 76, and the victim testified that he did not

even show his brother when he came to live there because he wanted the

compartment to be a secret. Id. at 38.

     In sum, the evidence reveals that the house had three occupants:

Appellant, the victim, and the victim’s brother.   Only Appellant and the

victim were aware of the hidden compartment containing the handguns, and

those handguns were removed.      After reviewing the evidence in the light

most favorable to the Commonwealth, I cannot agree that the trial court

erred.   I conclude that, under the totality of the circumstances, the

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J-A06036-17



evidence, both direct and circumstantial, was sufficient to establish that

Appellant had constructive possession of the firearms. Accordingly, I would

affirm Appellant’s judgment of sentence.




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