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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                                 IN THE SUPERIOR COURT
                                                                               OF
                                                                        PENNSYLVANIA
                                 Appellee

                        v.

    ANTHONY NGUYEN

                                 Appellant                         No. 2517 EDA 2018


              Appeal from the Judgment of Sentence May 25, 2018
              In the Court of Common Pleas of Philadelphia County
                  Criminal Division at No(s): CP-0003926-2015

BEFORE:      PANELLA, P.J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:                                      FILED AUGUST 12, 2019

        Anthony Nguyen appeals from the judgment of sentence imposed

following his convictions of possession of marijuana with intent to distribute

("PWID"), intentional possession of marijuana, carrying                    a   firearm without   a


license, and carrying       a   firearm   in public. We   affirm the judgment of sentence

as to all convictions except the firearms convictions, which we reverse.

        In   its Opinion,       the trial court set forth        the    relevant factual     and

procedural       history,       which     we    adopt      for     the      purpose     of   this

appeal. See Trial Court Opinion, 11/28/18, at 1-4.

        On appeal, Williams raises the following issues                for our review, which we

renumber and clarify:
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        1.   Whether the Trial Court erred by denying the pre-trial suppression

        motion?

        2. Whether the evidence was       sufficient to prove Nguyen's guilt beyond

        a    reasonable doubt on the drug possession charges especially whether

        he constructively possessed the backpack also found in the vehicle?

         3. Whether the evidence was       sufficient to prove beyond       a   reasonable

        doubt that Nguyen constructively possessed the firearm found under the

        seat of the vehicle in which he was        a   passenger?

        In his first issue, Williams contends that he was questioned without

having been provided his          Miranda' warnings,         and that the questioning

occurred while he was in     a   custodial setting. In his second, he argues that the

evidence failed to prove that he constructively possessed the backpack which

was located in the backseat of the vehicle.

        In its Opinion, the trial court addressed these issues, set forth the

relevant        law,   and   determined       that       these      two   issues    lacked

merit. See Trial Court Opinion, 11/280/18, at 4-13. We agree with the

reasoning of the trial court, and affirm on this basis as to Nguyen's first two

issues. See id.

        In his last issue, Nguyen contends that there was insufficient evidence

to prove that he constructively possessed the firearm which was located




1   Miranda v. Arizona, 384 U.S. 436 (1966).
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beneath the passenger seat in the car. He proffers that the evidence failed to

show that he was even aware that     a   firearm was    in   the car.

        Although the trial court submitted       a   convincing argument that the

evidence was sufficient to sustain the firearms charges, id. at 13-14, the

Commonwealth has notified us that, on appeal, the Commonwealth "does not

oppose vacating the judgments of sentence for the gun charges." Appellee's

Brief, at 2, 15. In its brief, the Commonwealth explains:

        However, under the specific circumstances of this case, the
        Commonwealth does not oppose vacating defendant's judgments
        of sentence for the firearms convictions. Mere presence in a car
        with contraband alone is not sufficient to find that defendant
        constructively possessed it. Commonwealth v Armstead, 305
        a.2d 1, 2 (Pa. 1973). Instead, evidence must suggest that
        defendant knew of the contraband. Id. Here, there was no
        evidence that defendant knew of the gun underneath his seat.
        Unlike the drug possession charge, where the bag of marijuana
        was in plain view and the odor of marijuana was apparent to police
        (and presumably also to defendant), the gun was not in plain view.
        Moreover, unlike the drug possession offense, where police also
        recovered packets of marijuana and a large amount of cash from
        defendant's person, police did not recover any ballistics evidence
        from defendant's person. That police recovered a hidden gun from
        a car in which defendant was seated, where another individual
        was present and defendant did not own the car, does not
        necessarily demonstrate that defendant knew of the gun.
        Therefore, under the particular facts of this case, the
        Commonwealth does not oppose reversing defendant's judgments
        of sentence on the gun charges. Since defendant received the
        same, current sentence for both the PWID and firearms
        convictions, vacating the firearms conviction will not affect the
        sentencing scheme.

Id. at 15-16.
        We consider the Commonwealth's position to be akin to a stipulation,

albeit reached post -trial and upon appellate review. However, we strive to

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honor stipulations which act as agreements between opposing parties to

resolve factual issues in   a   case. See   1   West's Pa. Prac., Evidence    §   127 (4th

ed.). "Because the parties are in agreement as to [the] facts contained in the

stipulation, they are controlling." Fa/clone v. Cornell School Dist., 557 A.2d

425, 428 (Pa. Super. 1989). Therefore, we will honor the parties' stipulation

as to the possession of the firearms,             without suggesting any negative

comments on the discussion of the trial court.

        Judgment of sentence as to possession of marijuana with intent to

distribute and intentional possession of marijuana, affirmed. Convictions for

carrying    a   firearm without   a   license and carrying   a   firearm   in public are

reversed.



Judgment Entered.



    seph D. Seletyn, E
Prothonotary


Date: 8/12/2019




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