J-A05005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOHN DOUGHERTY

                            Appellant                  No. 3584 EDA 2013


           Appeal from the Judgment of Sentence November 1, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0000984-2013


BEFORE: GANTMAN, P.J., SHOGAN, J., and ALLEN, J.

MEMORANDUM BY GANTMAN, P.J.:                          FILED MARCH 16, 2015

        Appellant, John Dougherty, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

bench trial convictions for persons not to possess firearms, carrying a

firearm without a license, and carrying a firearm on public streets in

Philadelphia.1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

           [O]n January 4, 2013, at 10:55 p.m., police officer Michael
           Szelagowski received a report of gunshots and a man with
           a gun located on the 3500 block of Emerald Street in the
           Kensington section of Philadelphia.       The suspect was
           described as a tall, African American male. He was heavy-
           set and reported to be wearing a red shirt. The area is
           primarily residential, with a bar on the [northwest] corner
____________________________________________


1
    18 Pa.C.S.A. §§ 6105, 6106, 6108, respectively.
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           of the street named Shawn’s Bar and Grill.           Officer
           Szelagowski was in full uniform, in a marked police cruiser.
           A few seconds after arriving on scene, Officer Szelagowski
           observed [Appellant] wearing a red sweatshirt and a black
           jacket.   The officer observed [Appellant] look in his
           direction and tense his right hand near his right hip.
           Immediately thereafter, [Appellant] turned and made a
           quick dash into the bar.          Officer Szelagowski was
           approximately four car-lengths away from [Appellant]
           when he made these observations. Officer Szelagowski
           went to the front door as his partner, Officer Patrick
           Gereaghty, followed [Appellant] into the side door of the
           bar. From the front of the bar, Officer Szelagowski could
           see his partner chasing [Appellant] through the bar, but he
           could not gain entry through the locked door. He then ran
           along the outside of the bar to the side entrance and
           continued pursuit. Officer Szelagowski saw [Appellant] for
           a second as he turned a corner and entered the bathroom.
           [Appellant] slammed the door in Officer Gereaghty’s face.
           The officers gave several verbal commands for [Appellant]
           to open the door. After about 15-20 seconds, Officer
           Szelagowski heard something “clinging around” the
           porcelain of the toilet. When the officers kicked open the
           door, [Appellant] was in a crouched position, “hovering”
           over the toilet.[2] Officer Szelagowski ordered [Appellant]
           to put his hands on the wall and frisked him for weapons
           to ensure the safety of himself and his partner.
____________________________________________


2
    At trial, Officer Szelagowski elaborated Appellant’s positioning as follows:

           [COMMONWEALTH]:                And where are his hands, if you
           can tell?

           [OFFICER]:                  Out in front of him.          Not
           stretched out in front of him, but out in front of him almost
           halfway stretched out. It appeared to me he was standing
           back up from being bent over.

(N.T. Trial, 7/23/13, at 17). Officer Gereaghty added that Appellant was
facing the toilet seat “bent forward,” and Appellant’s pants were “zipped up.”
(N.T. Trial, 7/24/13, at 8). Additionally, there were no other patrons inside
the bathroom. (N.T. Trial, 7/23/13, at 34).



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        [Appellant] had no weapon on his person and was escorted
        out of the bathroom. Officer Szelagowski then lifted the
        toilet tank lid and removed a silver revolver that was
        submerged in the water. The revolver was loaded with six
        live rounds. The bathroom was small in size, measuring
        approximately four to five feet wide and ten feet in length.
        There was only room for a sink and a toilet; there were no
        stalls or partitions.

(Trial Court Opinion, filed June 16, 2014, at 2-3) (internal citations to the

record omitted).

     Following a bench trial, the court found Appellant guilty of persons not

to possess firearms, carrying a firearm without a license, and carrying a

firearm on public streets in Philadelphia. On November 1, 2013, the court

sentenced Appellant to an aggregate term of eleven and one-half (11½) to

twenty-three (23) months’ incarceration, followed by eight (8) years’

probation. Appellant did not file post-sentence motions.

     Appellant timely filed a notice of appeal on November 27, 2013. On

December 18, 2013, the court ordered Appellant to file a concise statement

of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant

subsequently complied with the court’s order.

     Appellant raises two issues for our review:

        WHETHER…AN ANONYMOUS REPORT OF GUNSHOTS AND
        APPELLANT’S ALLEGED FLIGHT FROM POLICE ARE FACTS
        RATIONALLY RELATED TO PROVE POWER TO CONTROL
        REQUIRED FOR CONSTRUCTIVE POSSESSION?

        WHETHER…THE TRIAL COURT ERRED WHEN IT FOUND
        APPELLANT…GUILTY OF VIOLATIONS OF THE UNIFORM
        FIREARMS ACT WHEN THE EVIDENCE WAS INSUFFICIENT
        AS A MATTER OF LAW TO ESTABLISH APPELLANT WAS

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         EVER IN CONSTRUCTIVE POSSESSION OF A FIREARM?

(Appellant’s Brief at 7).

      When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying [the above] test, we may not weigh the evidence
         and substitute our judgment for the fact-finder.            In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.        Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder unless
         the evidence is so weak and inconclusive that as a matter
         of law no probability of fact may be drawn from the
         combined circumstances. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, 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. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.

Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).

      On appeal, Appellant asserts that various circumstances evaluated by

the trial court, including the anonymous report over police radio and

Appellant’s flight from the officers, did not demonstrate his constructive

possession of the firearm. Further, Appellant contends the Commonwealth

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failed to establish that Appellant brought the firearm into the bathroom at

the bar. Appellant insists “any of the twenty other persons inside the bar

could have secretly placed the firearm inside the toilet of the public

bathroom without [Appellant’s] knowledge.”        (Appellant’s Brief at 19).

Absent more, Appellant argues the evidence did not support the court’s

finding of constructive possession. Appellant concludes the Commonwealth

presented insufficient evidence to support his convictions. We disagree.

      Section 6105 of the Crimes Code provides:

         § 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)(1).

      Section 6106 defines in pertinent part the offense of carrying a firearm

without a license:

         § 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 concealed on or about his person,
            except in his place of abode or fixed place of business,

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             without a valid and lawfully issued license under this
             chapter commits a felony of the third degree.

18 Pa.C.S.A. § 6106(a)(1).      Section 6108 defines the offense of carrying

firearms on public streets in Philadelphia:

           § 6108. Carrying firearms on public streets or public
                property in Philadelphia

              No person shall carry a firearm, rifle or shotgun at any
           time upon the public streets or upon any public property in
           a city of the first class unless:

             (1)   such person is licensed to carry a firearm;

                                   *    *     *

18 Pa.C.S.A. § 6108(1).

      “When contraband is not found on the defendant’s person, the

Commonwealth must establish constructive possession….” Jones, supra at

121 (quoting Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa.Super.

1996), appeal denied, 547 Pa. 751, 692 A.2d 563 (1997)).         “Constructive

possession is the ability to exercise conscious control or dominion over the

illegal substance and the intent to exercise that control.” Jones, supra at

121 (quoting Commonwealth v. Kirkland, 831 A.2d 607, 610 (Pa.Super.

2003), appeal denied, 577 Pa. 712, 847 A.2d 1280 (2004)). “The intent to

exercise conscious dominion can be inferred from the totality of the

circumstances.” Jones, supra at 121 (quoting Kirkland, supra at 610).

      Instantly, the trial court evaluated the Commonwealth’s evidence as

follows:


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         Officers received a report of gunshots and a man with a
         gun. [Appellant] fled from police, ignoring their calls to
         stop. He was the only person in the small bathroom.
         While the officers attempted to gain entry, they could hear
         porcelain clanging in the bathroom, indicative of the tank
         lid being moved. Then, after forcing themselves into the
         bathroom, the officers discovered [Appellant] hunched
         over the toilet with his arms outstretched. Upon removing
         the tank lid, the revolver was recovered. The inferences
         are clear.    [Appellant]―after fleeing from police―was
         attempting to [hide] the firearm he had illegally possessed
         on his person.

         The record reflects that [A]ppellant had access to the
         firearm, the power to control it, and the requisite intent to
         exercise control over it.

(See Trial Court Opinion at 6) (internal citations omitted). Under the totality

of these circumstances, sufficient evidence demonstrated Appellant’s ability

to exercise conscious dominion over the firearm. Thus, the Commonwealth

established each element of the offenses at issue. See Hansley, supra; 18

Pa.C.S.A. §§ 6105, 6106, 6108.      Accordingly, we affirm the judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/2015




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