J-S22042-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                 Appellee               :
                                        :
         v.                             :
                                        :
KEVIN NATHANIEL WILLIAMS,               :
                                        :
                 Appellant              :    No. 818 MDA 2015

              Appeal from the Judgment of Sentence April 1, 2015
               in the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0004592-2013

BEFORE: MUNDY, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                     FILED APRIL 13, 2016

     Kevin Nathaniel Williams (Appellant) appeals from the judgment of

sentence entered April 1, 2015, after he was found guilty of persons not to

possess a firearm. We affirm.

     Shortly before 2:00 a.m. on July 5, 2013, the East Lampeter Police

Department was dispatched to an apartment complex at 2 Foal Court after a

call was received reporting a suspicious person trying to enter someone’s

apartment. N.T., 2/9/2015, at 57-58. A responding officer, Michael Redden

(Officer Redden), testified that when he arrived to the scene, he observed

another officer, Bryan Kondras (Officer Kondras) had already made contact

with the suspect referred to in the phone call. Officer Redden testified that

he served as a “cover officer.” Id. at 60. Specifically, he testified that he

“stood back and simply provided cover, kept an eye on things, ma[d]e sure



* Retired Senior Judge assigned to the Superior Court
J-S22042-16


that no one approached that shouldn’t be approaching.” Id. The suspect, a

juvenile, was highly intoxicated and Officer Redden was requested by Officer

Kondras to conduct a search of the building and surrounding outside areas

for any evidence “of a party” or “something going on.”1           Id. at 60-61.

Officer Redden found some beer bottles and food in the area, but no

firearms. Id. at 60-62.

      Officer Redden continued to assist Officer Kondras with the juvenile

suspect, and was standing outside the building with a clear view of the front

door when he saw a man, later identified as Appellant, exit the building. 2

Id. at 65-67.   After determining Appellant did not appear to be exhibiting

any suspicious behavior, Officer Redden turned back to the two individuals

he was standing next to. Id. at 67-68. It was then he heard the sound of

something drop to the ground, hitting the sidewalk. Officer Redden “turned

quickly using [his] flashlight to look at the [Appellant] again or the individual

walking down the sidewalk and then turned the flashlight to [Appellant’s]




1
 Officer Redden testified that he had searched the stairs and hallways inside
the building. N.T., 2/9/2015, at 61.
2
  Officer Redden testified that approximately five to eight minutes had
passed since he had last exited the apartment building to when he saw
Appellant leaving. He testified that, during that time, he did not recall
seeing any one else leave. N.T., 2/9/2015 at 72-73.



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feet, and at his feet, just as [the Officer’s] light hit it, [the Officer] saw

[Appellant’s] foot kick a handgun.”3 Id. at 68.

      Officer Redden approached Appellant and asked Appellant if the gun

was his.   Officer Redden then asked if Appellant had a permit for the

firearm. Officer Redden testified that Appellant’s response was “something

to the effect of oh, shit, yeah, it’s in my car.” Id. at 70-71. Throughout this

interaction, Appellant was continually moving, walking off to the side as the

Officer moved closer to pick up the firearm.      After retrieving the firearm,

Officer Redden announced “gun” to alert the other officers, used his

flashlight to point to the Appellant, and, indicated that Appellant dropped the

gun. Id. at 71. At this point, Appellant began to run, and Officer Kondras

and Officer Jonathan Werner (Officer Werner) gave chase. Officer Redden

stayed at the scene and secured the firearm.          Id. at 71-72.    Officers

Kondras and Werner apprehended Appellant.         Officer Kondras recovered a

Georgia driver’s license that identified Appellant.       Appellant was then

transported back to the station, where they ran a criminal background

check. Id. at 103-104. Officer Kondras testified that the background check

revealed a prior conviction which made Appellant ineligible to carry a

firearm. Id. at 105-106. Appellant was subsequently charged with person

not to possess a firearm.



3
 Appellant’s kicking of the gun appeared to be accidental, in that “it was just
incidental to the next step [Appellant] took.” N.T., 2/9/2015, at 70.


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        Appellant was found guilty of the aforementioned crime following a

jury trial on February 9, 2015.       On April 1, 2015, Appellant received a

sentence of four to ten years’ incarceration.      Appellant timely filed post-

sentence motions, which the trial court denied. Appellant then timely filed a

notice of appeal. 4

        Appellant raises the following issue on appeal: “Whether the evidence

presented by the Commonwealth was insufficient as a matter of law to

support the jury verdict of guilty for persons not to possess, use,

manufacture, control, sell or transfer firearm?”        Appellant’s Brief at 4

(unnecessary capitalization omitted).

        We address Appellant’s argument mindful of the following standard of

review.

        [O]ur standard of review of sufficiency claims requires that we
        evaluate the record in the light most favorable to the verdict
        winner giving the prosecution the benefit of all reasonable
        inferences to be drawn from the evidence. Evidence will be
        deemed sufficient to support the verdict when it establishes each
        material element of the crime charged and the commission
        thereof by the accused, beyond a reasonable doubt.
        Nevertheless, the Commonwealth need not establish guilt to a
        mathematical certainty. Any doubt about the defendant’s guilt is
        to be resolved by the fact finder unless the evidence is so weak
        and inconclusive that, as a matter of law, no probability of fact
        can be drawn from the combined circumstances.

Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013)

(internal citations and quotations omitted). The Commonwealth may sustain


4
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.



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its burden by means of wholly circumstantial evidence, and we must

evaluate the entire trial record and consider all evidence received against the

defendant. Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007).

      To sustain a conviction for the crime of persons not to possess a

firearm, the Commonwealth must prove that “[Appellant] possessed a

firearm and that he was convicted of an enumerated offense that prohibits

him   from   possessing,   using,   controlling,   or   transferring   a   firearm.”

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa. Super. 2009).5

      Because Appellant was not found with the firearm on his person, the

Commonwealth was required to establish that Appellant had constructive

possession of the firearm.    Commonwealth v. Kirkland, 831 A.2d 607,

611 (Pa. Super. 2003).

      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.

5
   Appellant acknowledges he is a person who is not permitted to possess a
firearm, based on a drug conviction in Georgia. See Appellant’s Brief at 9
(“The Appellant concedes that the Commonwealth has met its burden as to
the first element of the offense when the Appellant was previously convicted
in 1994 in Georgia for delivery and possession with intent to deliver
controlled substance.”). As such, Appellant’s argument is limited to whether
there was sufficient evidence presented to prove that Appellant possessed
the firearm.



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Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (internal

citations omitted).

      Appellant contends that “[u]nder [the] doctrine of constructive

possession, the Commonwealth did not produce evidence to establish

Appellant’s control [or] dominion of the handgun.”     Appellant’s Brief at 7.

Appellant argues that he “did not have the ability [to] exercise control of the

handgun when it was not located in his hands nor [on] his person. Further,

the Commonwealth failed to produce physical evidence linking the Appellant

to the handgun.”      Id. at 11.     Additionally, Appellant avers that the

Commonwealth failed to “produce any evidence establishing Appellant’s

intent to possess the firearm.” Id. at 12.

      In support, Appellant points to various circumstances, including Officer

Redden admitting at trial that he did not see Appellant with the gun in his

hands or on his person, the lack of DNA or any additional physical evidence

linking the gun to the Appellant, and the fact that Officer Redden testified

that it appeared the kicking of the firearm was done inadvertently.

Appellant also notes that his testimony contradicted the officer’s assertion

that Appellant was the only individual in the area when the firearm hit the

sidewalk and therefore directly disputes the Commonwealth’s theory that it




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had to have been Appellant because “no other individuals could have

dropped the handgun.”6 Id. at 10.

      Considering all of the evidence, the trial court offered the following

analysis:

             There was sufficient evidence from the Officers on the
      scene that provided evidence that [Appellant] possessed the
      gun. Officer [Redden] provided testimony that he was at the
      scene where the incident occurred, observed the area before
      [Appellant] exited the building, and observed no other
      individuals exit the building or see a gun lying on the sidewalk.
      He also testified he watched [Appellant] exit the building and
      had not seen anyone else leave the building, hearing two distinct
      sounds of a gun hitting concrete or asphalt, and observed a
      handgun on the ground. Officer Redden also testified to seeing
      [Appellant] kick or strike the gun with his foot on the sidewalk,
      and after the Officer asked [Appellant] if it was his gun and if he
      had a permit, [Appellant] responded that his permit was in his
      car and began to walk away. Once Officer Redden picked up the
      gun and announced “gun” to alert the other Officers, [Appellant]
      took off running and a chase ensued. Two other officers, Officer
      [Kondras] and Officer [Werner], provided corroborating
      testimony regarding their observations of [Appellant] and the
      chase.

             The Commonwealth also provided testimony from
      Detective Scott Eelman that he was able to search the Bureau of
      Alcohol, Tobacco [and] Firearms tracing system using the gun’s
      serial number which was registered with the dealer who sold the
      firearm.   The search produced a report that the gun was
      purchased by Tracy Lee Olmstead of Kennesaw, Georgia on
      October 27, 2006 and the Detective stated that he was aware
      that [Appellant] was also a resident of Georgia.

           Here, viewing the evidence in the light most favorable to
      the Commonwealth, it is reasonable that the jury could have
      determined all elements of the crime at issue were established
      beyond a reasonable doubt.

6
  See Appellant’s Brief at 11 (noting that Appellant testified that he saw
three to four other individuals outside the building when he exited).


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Trial Court Opinion, 7/9/2015, at 3-4. (citations omitted).

      Based on the foregoing, it was reasonable for the jury to conclude

from the evidence presented, giving credit to the officers’ testimony, that

Appellant constructively possessed the firearm.7 “Constructive possession is

an inference arising from a set of facts that possession of the contraband

was more likely than not.”    Commonwealth v. Jackson, 659 A.2d 549,

551 (Pa. 1995) (quoting Commonwealth v. Mudrick, 507 A.2d 1212, 1213

(Pa. 1986)).    It is well established that “the evidence at trial need not

preclude every possibility of innocence, and the fact-finder is free to resolve

any doubts regarding a defendant’s guilt 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.” Commonwealth v. Hughes, 908 A.2d

924, 928 (Pa. Super. 2006).

      Thus, the evidence was more than sufficient to permit the jury to

conclude that Appellant constructively possessed the gun.         Accordingly,

Appellant’s claim fails.

      Judgment of sentence affirmed.




7
  See, e.g., Commonwealth v. Love, 896 A.2d 1276, 1283 (Pa. Super.
2006) (“We may not weigh the evidence or substitute our judgment for that
of the fact-finder. … When evaluating the credibility and weight of the
evidence, the fact-finder is free to believe all, part, or none of the
evidence.”)



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2016




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