J-A30014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TIMOTHY DUPRIEST

                            Appellant                 No. 2121 EDA 2014


              Appeal from the Judgment of Sentence July 15, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001721-2014


BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                         FILED NOVEMBER 06, 2015

        Appellant, Timothy Dupriest, appeals from the July 15, 2014 aggregate

judgment of sentence of three to six years of incarceration, with boot camp

eligibility, imposed by the trial court following Appellant’s convictions of

persons not to possess a firearm, firearms not to be carried without a

license, and carrying firearms in public in Philadelphia.1 After careful review,

we affirm.

        The trial court summarized the factual background of this case as

follows.

                    On January 11, 2014 at around 9:30 P.M.
              Philadelphia Police Officer Charles Courtney along
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1) and 6108, respectively.
J-A30014-15


           with his partner Officer John Crewer were on patrol
           in the area of 58th St. and Kingsessing Ave. in
           Philadelphia. There they observed a silver Buick
           Century going eastbound on Kingsessing Ave. with
           its high beam lights on. Officer Courtney made a U-
           turn and attempted to stop the vehicle. The vehicle
           did not immediately stop and continued driving for a
           half block until it finally did stop in the middle of the
           road.    As the officers exited their vehicle they
           observed the two occupants in the front seat, the
           Appellant in the driver seat and his brother
           Christopher Dupriest in the front passenger seat,
           moving side to side while the other occupant in the
           back seat was not.          Officer Crewer ordered the
           Appellant to place the car in park which was initially
           ignored as the car continued to slowly roll down the
           street.

                 Officer Courtney approached the passenger
           side of the vehicle while Officer Crewer approached
           the driver side. Officer Courtney testified that he
           observed a large open bottle of Barcardi rum
           underneath the armrest of the front bench seat
           between the passenger, Christopher Dupriest, and
           the driver, the Appellant. Officer Courtney asked
           Christopher Dupriest to hand him the bottle of rum,
           which he did. After he did so, Officer Courtney
           observed the brown butt of a handgun protruding
           from under the armrest on the driver’s side. Officer
           Courtney testified that the gun was within arm’s
           reach and accessible to both Appellant and
           Christopher   Dupriest.       Both   Appellant  and
           Christopher Dupriest were then removed from the
           vehicle and placed under arrest. A loaded 9mm
           Faburique handgun with a silver slide and wooden
           handle was recovered from the vehicle.

Trial Court Opinion, 12/16/14, at 2-3 (citations and footnotes omitted).

     As a result of the above events, Appellant was charged with the three

firearms violations. The trial court convened a one-day bench trial on May

20, 2014, at the conclusion of which it rendered its guilty verdicts. On July


                                     -2-
J-A30014-15



15, 2014, the trial court sentenced Appellant to three to six years of

incarceration, with eligibility for boot camp.      Appellant did not file post-

sentence motions.        Appellant filed a timely notice of appeal on July 17,

2014.2

       On appeal, Appellant presents the following issue.

                    Was not the evidence insufficient for conviction
              on all three of the firearms charges here, insofar as
              the evidence was insufficient to prove [Appellant]
              possessed     a    firearm,    either   actually    or
              constructively?

Appellant’s Brief at 3.

       Appellant challenges the sufficiency of the Commonwealth’s evidence

for his firearms convictions.        We begin with our well-settled standard of

review. “In reviewing the sufficiency of the evidence, we consider whether

the evidence presented at trial, and all reasonable inferences drawn

therefrom, viewed in a light most favorable to the Commonwealth as the

verdict winner, support the [fact-finder’s] verdict beyond a reasonable

doubt.” Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation

omitted), cert. denied, Patterson v. Pennsylvania, 135 S. Ct. 1400

(2015). “The Commonwealth can meet its burden by wholly circumstantial

evidence and 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
____________________________________________


2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



                                           -3-
J-A30014-15



of   law,   no   probability   of   fact   can   be   drawn   from    the   combined

circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super.

2013) (en banc) (internal quotation marks and citation omitted), appeal

denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must review “the

entire record … and all evidence actually received[.]” Id. (internal quotation

marks and citation omitted).        “[T]he 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.” Id. (citation omitted). “Because

evidentiary sufficiency is a question of law, our standard of review is de novo

and our scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d

119, 126     (Pa. 2013) (citation omitted),           cert. denied,    Diamond v.

Pennsylvania, 135 S. Ct. 145 (2014).

      Mindful of the foregoing precepts, we examine Appellant’s challenge to

the sufficiency of the evidence supporting his convictions for persons not to

possess firearms, firearms not to be carried without a license, and carrying

firearms in public in Philadelphia.          The governing statutes provide, in

relevant part, as follows.

             § 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,

                                           -4-
J-A30014-15


           control, sell, transfer or manufacture a firearm in this
           Commonwealth.

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

                                      …

           § 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; or

           (2) such person is exempt from licensing under
           section 6106(b) of this title (relating to firearms not
           to be carried without a license).


18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 6108.

     With regard to all three of his firearms convictions, Appellant

summarized the factual basis of his argument as follows.

                  [Appellant] was driving a car owned by his
           brother when they were stopped for a traffic
           violation. Christopher Dupriest, the owner of the
           car, was the front seat passenger. Christopher had
           an open bottle of rum in the car, next to his armrest.
           When the police had Christopher move the bottle,


                                    -5-
J-A30014-15


            they saw a handgun protruding out from under
            Christopher’s armrest.       There is no evidence
            whatsoever that [Appellant] knew about the gun,
            saw the gun, or touched the gun, yet he was
            convicted (along with Christopher) of possessing the
            gun. As [Appellant] did not actually possess the
            gun, and as the Commonwealth presented no
            evidence sufficient to prove constructive possession,
            [Appellant’s] convictions cannot stand.

Appellant’s Brief at 6.

      Appellant correctly asserts that because the evidence does not

demonstrate his actual possession of the firearm, the Commonwealth had

the burden of establishing that Appellant constructively possessed the

weapon. See Appellant’s Brief at 7-8. We have explained the concept of

constructive possession 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 in
            application, we have held that constructive
            possession may be established by the totality of the
            circumstances.

Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013), appeal

denied, 78 A.3d 1090 (Pa. 2013) (citation omitted).

      Appellant cites Commonwealth v. Hamm, 447 A.2d 960 (Pa. Super.

1982), stating that his case is “indistinguishable” from Hamm, where this

Court determined that constructive possession of a firearm could not be


                                      -6-
J-A30014-15


attributed to the appellant, who was the driver of an automobile with one

passenger in the front seat and one passenger in the back seat, when police

observed a firearm on the floor of the front, passenger side of the car.

Appellant’s Brief at 11; Hamm at 961-962.           A second weapon was

uncovered underneath the front seat in Hamm. Id. Concluding there was

insufficient evidence to prove constructive possession of the firearm

discovered under the seat, this Court stated, “we may not infer that

appellant knew of the weapon’s existence simply from the fact that it was

hidden in the automobile.”     Id. (citations omitted).   The Hamm Court

similarly concluded there was insufficient evidence of the appellant’s

constructive possession of the firearm found on the floor, noting, “[t]he

analysis is the same whether a weapon is hidden in an automobile … or

hidden on someone’s person[.]” Id.

     In the present case, Philadelphia Police Officer Charles Courtney was

the only witness to testify at Appellant’s trial, and the testimony was such

that the trial court, as the fact-finder, could conclude that Appellant

exercised “conscious dominion” over the firearm. Officer Courtney testified

to observing Appellant’s vehicle with its high beams on. N.T., 5/20/14, at 8.

Officer Courtney and his partner attempted to stop the vehicle, but “the

vehicle didn’t initially stop. It continued for about a half a block and then

the vehicle abruptly stopped in the middle of the road.” Id. at 9. As Officer

Courtney approached the vehicle, it was “slowly moving forward,” and as a


                                    -7-
J-A30014-15


result, Officer Courtney had to instruct Appellant to put the vehicle in park.

Id. at 9-10. Officer Courtney testified that Appellant and his brother “were

moving side to side.”    Id. at 9, 12.   Officer Courtney observed an open

bottle of Bacardi rum, asked for the bottle, and as Officer Courtney was

taking the bottle he “observed what [he] immediately knew to be the butt of

a handgun protruding from under the armrest; around four inches under the

armrest. … it really stood out.    It was a stark contrast.”    Id. at 12-14.

Officer Courtney explained that he “recognized it to be a handgun, and I

didn’t want to alert anybody in the vehicle that I had observed that for

officer’s safety.” Id. at 14. Officer Courtney described the vehicle as having

“a bench seat,” with the armrest “for both the passenger and the driver.”

Id. at 15.

      At the conclusion of testimony, in closing arguments, Appellant’s

counsel cited Hamm, supra, for the proposition that Appellant lacked

constructive possession of the firearm. The Commonwealth responded that

unlike Hamm, the firearm in this case was “sitting there … in plain view,

which is why Officer Courtney grabbed the gun as soon as he could, and

didn’t want to alert any of the passengers who were still in the car that there

was a gun because he could see it immediately.” Id. at 50. With regard to

“the knowledge component,” the Commonwealth argued, “because we have

the failure to pull over, the failure to pull over to the side of the road, the

failure to put the car in park, not even stopping immediately. … [Appellant


                                     -8-
J-A30014-15


and Christopher Dupriest] are related. … That is another factor to consider

because I think if they were complete strangers to one another and, … one

of them just happened to be a passenger in the other guy’s car, no.” Id. at

54.

      Thereafter, the trial court rendered its verdicts, stating, “After careful

review of the case law presented by all counsel, and careful review of the

facts, I find [Appellant] guilty as charged.               Id. at 55.   The trial court

explained its reasoning as follows.

                    In the present case, the gun was discovered
             directly between the Appellant and the front seat
             passenger, Christopher Dupriest, on the front bench
             seat.    The gun was within arm’s reach of the
             Appellant.        Based on the totality of the
             circumstances including the location of the weapon,
             the movements of both the Appellant and the front
             seat passenger and the failing to initially stop the
             vehicle, it is proper to conclude that Appellant was in
             constructive possession of the firearm.

Trial Court Opinion, 12/16/14, at 4.

      Viewing the evidence of record, together with all reasonable inferences

in a light most favorable to the Commonwealth, we conclude that there was

sufficient   evidence   for   the   trial    court    to    determine   that   Appellant

constructively possessed the firearm.             See Patterson, supra.        Appellant

argues that because he “was not in physical possession of the gun at issue,

and as there was no evidence that he was even aware of the gun, let alone

in constructive possession of it, his convictions for possessing the gun

cannot stand.”    Appellant’s Brief at 12.           This argument fails because, as


                                            -9-
J-A30014-15


discussed above, Appellant’s characterization of the evidence is not

consonant with our standard of review, applicable case law, and the totality

of the evidence presented at trial. See Hopkins, supra at 820.

     Based on the foregoing, we reject Appellant’s sufficiency claim and

affirm his judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2015




                                   - 10 -
