J-A21008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BENJAMIN A. BREWER                         :
                                               :
                       Appellant               :   No. 1030 EDA 2017

           Appeal from the Judgment of Sentence February 28, 2017
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0002532-2016


BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

JUDGMENT ORDER BY PANELLA, J.                           FILED MARCH 08, 2019

       Benjamin A. Brewer appeals from the judgment of sentence entered in

the Philadelphia County Court of Common Pleas following his conviction of

carrying a firearm on the streets of Philadelphia.1 Brewer attacks the

sufficiency of the evidence underlying this conviction. We affirm.

       The trial court accurately summarized the history of this case. See Trial

Court Opinion, filed May 25, 2017, at 1-3. Therefore a detailed recitation of

the factual and procedural history is unnecessary.

       Our standard of review for a challenge to the sufficiency of the evidence

is to determine whether, when viewed in a light most favorable to the verdict

winner, the evidence at trial and all reasonable inferences therefrom are

____________________________________________


118 Pa.C.S.A. § 6106(a)(1). Brewer was also convicted of carrying a firearm
without a license, 18 Pa.C.S.A. § 6108; however, he does not challenge this
conviction in the instant appeal.
J-A21008-18



sufficient for the trier of fact to find each element of the crimes charges is

established beyond a reasonable doubt. See Commonwealth v. Dale, 836

A.2d 150, 152 (Pa. Super. 2003).

      On appeal, Brewer contends that the Commonwealth presented

insufficient evidence to support his conviction for carrying a firearm on the

streets of Philadelphia. Specifically, Brewer contends the Commonwealth

failed to prove Brewer was “carrying” the firearm “upon the public streets or

upon any public property” as contemplated by the statute. The trial court, in

its May 24, 2017 opinion, methodically reviewed this claim and disposed of

Brewer’s sufficiency argument on the merits. We have reviewed the parties’

briefs, the relevant law, the certified record, and the well-written opinion of

the Honorable Stella Tsai. Judge Tsai’s opinion comprehensively disposes of

Brewer’s challenge with appropriate reference to the record and without legal

error. Accordingly, we affirm the trial court’s judgment of sentence based on

Judge Tsai’s opinion. See Trial Court Opinion, filed 5/4/17 (concluding

evidence was sufficient to support a finding that Brewer constructively

possessed the firearm due to his statements to officers, location of the firearm

in the vehicle, and the matching, loaded magazine found on Brewer).

      Judgment of sentence affirmed.




                                     -2-
J-A21008-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/8/19




                          -3-
0039_Opinion
                                                                                                       Circulated 02/21/2019 10:49 AM



                                                                                                                              FILED
                    IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY MAY 2 4 2017
                                    FIRST JUDICIAL DISTRICT
                              TRIAL DIVISION - CRIMINAL SECTION       Office of Judicial Records
                                                                       Appeals/Post Trial
               COMMONWEALTH OF                                        CP-51-CR-0002532-2016
               PENNSYLVANIA,
                   Appellee

                            v.
               BENJAMIN BREWER,                                       1030 EDA2017
                   Defendant-Appellant
                                                                        CP-51-CR..0002532-2016 Comm. v Brewer, Benjamin A.
                                                                                             Opinion           ·
                                                      OPINION

               Tsai, J.
                                                    Introduction
                                                                                           IIII I II I II II II Ill
                                                                              II I I IIII7952030871
                     Appellant Benjamin Brewer (hereafter "Appellant" or "Brewer") appeals from the

               judgment of sentence entered on February 28, 2017. Mr. Brewer was found guilty of

               Carrying a Firearm without a License and Carrying a Firearm on the Streets of

               Philadelphia and was sentenced to a term of incarceration of eleven months and fifteen
                                                                                                           ;



               days to twenty three months, with immediate parole to house arrest to be followed by

               three years of probation.

                                           Factual and Procedural History

                     On the evening of January 15, 2016, at approximately 10:45 p.m., Officers

               Reinaldo Agront and Travis Washington were on plain clothes patrol in an unmarked

               car on the 3100 block of North Carlisle Street in Philadelphia. N.T. (Trial) 10/12/2016

               at 9-10, 26. They observed a white Lincoln sedan- illegally parked with two wheels on



               1Officer Agront stated that the vehicle was a "Lincoln Continental," but Officer
               Washington referred to it as a "Lincoln Town" [sic]. N.T. (Trial) 10/12/2016 at 10, 26.
               In the statement Appellant Brewer gave to Detective Timothy Mayer, the vehicle is
               referred to as a Lincoln Town Car. Exhibit C-3. For the sake of simplicity, we refer to
               the vehicle simply as "the Lincoln" or "the vehicle."

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                              the sidewalk and with heavily tinted windows. Id. at 10,                                                                                                     26.       As the officers approached

                              to investigate these violations of the Vehicle Code, they observed Appellant Brewer exit

                              the rear passenger side door of the Lincoln and start walking away from it. Id. at 10-11,

                               16, 27, 30.

                                                  Officer Agront stopped Mr. Brewer, and when asked ifhe had anything that

                              officer needed to know about, Mr. Brewer told the officer that he had a gun in the

                              Lincoln. N;T. (Trial)                                         10/12/2016                         at 10, 32, 33. Officer Agront informed Officer

                              Washington of the presence of the gun. Officer Washington then reached into the open

                              rear passenger door of the car and retrieved from its floor an unloaded, black

                              semiautomatic .40 caliber Smith and Wesson handgun (hereafter "handgun"). Id. at 11,

                              27, 33.               There were three other persons in the Lincoln at the time, none of whom made

                              any movements toward the handgun. Id. at 28. None of the other occupants of the

                              vehicle claimed ownership of the handgun or seemed to know anything about its

                              presence before the police recovered it. Id. at 21-23. Officer Washington concluded that

                              none of the other occupants owned the handgun after speaking with them. Id. at 32.

                                                 Appellant Brewer was placed under arrest and during a search incident to arrest,

                              a magazine loaded with                                                12 bullets was                           recovered from his pants pocket. Id. at 12, 27.

                              Several hours later, during an interview with Detective Timothy Mayer, Appellant

                              waived his Miranda rights and confessed that the handgun was his, he did not have a

                              permit to carry a concealed firearm, and that he left it on the floor of the car when he

                              stepped out to smoke a cigarette. Id. at 35; Exhibit C-3 at 4-5.

                                                 On October 12,                               2016,             Mr. Brewer waived his right to a jury trial and was tried

                              before the undersigned. N.T. (Trial)                                                                       10/12/2016                         at 4-7. In addition to the facts set forth

                              supra, the parties stipulated that the firearm was operable and Mr. Brewer did not have


                                                                                                                                                                        2
a valid license to carry a concealed firearm. Id. at 34-35; Exhibits C-1, C-2. When

Commonwealth rested, defense counsel orally moved for a judgment of acquittal on the

charge of Carrying a Firearm on the Public Streets of Philadelphia.2 Id. at 36-38. This

motion was denied. Id. at 40. Appellant did not testify in his own defense. Id. at 42-43.

The undersigned found Appellant guilty of Carrying a Firearm without a Licensee and

Carrying a Firearm on the Streets of Philadelphia. Sentencing was deferred to

December 19, 2016 so that a Pre-Sentence Investigation Report could be prepared.

         On the date of his sentencing, Mr. Brewer terminated his relationship with his

trial counsel. We immediately appointed the Defender Association of Philadelphia to

represent Mr. Brewer in any further proceedings. We continued the sentencing date so

that the new counsel could prepare. On February 28, 2017, we sentenced Appellant to a

term of incarceration of eleven months and fifteen days to twenty three months, with

immediate parole to house arrest to be followed by three years of probation on both

counts, with those sentences running concurrently. No post-sentence motions were

filed.

         Mr. Brewer filed a timely notice of appeal on March 21, 2017. By order dated

March 24, 2017, we directed the Defendant to file a Statement of the Matters

Complained of on Appeal pursuant to Pa.R.A.P. 1925 within twenty-one days of that

order's date of entry.

         Appellant filed his Statement on April 17, 2017. Appellant presents a single claim

in his Statement of Errors Complained of on Appeal:

               Where appellant was convicted of 18 Pa.C.S. § 6108 based on a
               firearm seized from a vehicle, the evidence was insufficient to prove

2 18 Pa.C.S. § 6108.
3 18 Pa.C.S. § 6106(a)(1).



                                                 3
              beyond a reasonable doubt that he "carried" the firearm and that he
              did so "upon the public streets or upon any public property."


                                        Discussion

       Appellant's sole claim of error challenges the sufficiency of the evidence for his

conviction under 18 Pa.C.S. § 6108. The standard for reviewing the sufficiency of

evidence on appeal is well-settled:

              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 addition ... 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 oflaw 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.

Commonwealth v. Brown, 23 A.3d 544, 559 (Pa. Super. 2011) (citation omitted). "If the

record contains support for the verdict, it may not be disturbed." Commonwealth v.

Adams, 882 A.2d 496, 499 (Pa. Super. 2005) (quoting Commonwealth v. Burns, 765

A.2d 1144, 1148 (Pa. Super. 2000)).

       Turning to the specifics of Mr. Brewer's claim, we first examine 18 Pa.C.S. § 6108,

which provides:

              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 classl-l
              unless:



4 Section 6108 requires the offense to occur on a public street or upon any public
property in a city of the first class. There is no dispute that this offense occurred on the
3100 block of North Carlisle Street in the City of Philadelphia, which is the only city of
the first class in this Commonwealth. N.T. (Trial) 10/12/2016 at 9-10, 26. See Holt's
Cigar Co. v. City ofPhiladelphia, 10 A.3d 902, 906 (Pa. 2011); Spahn v. Zoning Bd. of
Adjustment, 977 A.2d 1132, 1143 (Pa. 2009); 53 P.S. § 1016.

                                                  4
                    (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).

      The Commonwealth must establish that Mr. Brewer was carrying a firearm either

on the public streets or public property of Philadelphia and that he was neither licensed

to do so nor exempt from the licensing requirements. Mr. Brewer argues that because

the firearm was seized from a vehicle, the evidence was insufficient to prove beyond a

reasonable doubt that he "carried" the firearm within the meaning of the statute. The

facts and circumstances presented in the record establish, however, that the

Commonwealth sustained its burden of proof.

      Under Pennsylvania law, to prove that a defendant "carried" a firearm, the

Commonwealth must establish that an individual either had actual physical possession

of the weapon or had constructive possession of the weapon. See Commonwealth v.

Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013). As Mr. Brewer did not physically have the

handgun on his person, the Commonwealth was required to establish constructive

possession of the handgun to convict. Id.; Commonwealth v. Sanes, 955 A.2d 369, 373

(Pa. Super. 2008), disapproved of on other grounds by Commonwealth v. Hanson, 82

A.3d 1023, 1038 (Pa. 2013); Carter, supra.

             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
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012) (citation omitted),

appeal denied, 63 A.3d 1243 (Pa. 2013). See also Commonwealth v. Parker, 847 A.2d

745, 750 (Pa. Super. 2004); Commonwealth v. Magwood, 538 A.2d 908, 909 (Pa.

Super. 1988). "Constructive possession" means that an individual has power of control

over the weapon with the intention to exercise that control and may be proven by

circumstantial evidence. In re R.N., 951 A.2d 363, 369-70 (Pa. Super. 2008) (citing

Commonwealth v. Carter, 450 A.2d 142, 144 (Pa. Super. 1982)). "[M]ere presence at

the scene is insufficient to prove constructive possession of contraband." Sanes, 955

A.2d at 374 (citing Commonwealth v. Valette, 613 A.2d 548, 551 (Pa. 1992)).

       To illustrate, in Commonwealth v. Ford, the Superior Court concluded that

evidence was sufficient to convict defendant of Carrying a Firearm on the Streets of

Philadelphia where defendant Ford walked with the victim on a public street, went

inside a building with victim and co-defendant, and Ford removed a concealed firearm

from the back of his pants and passed it to the co-defendant in the presence of

witnesses. Although defendant Ford no longer "carried" the weapon in a technical

sense, it was reasonable for the factfinder to infer that Mr. Ford had possessed the

firearm while outside on a public street. Commonwealth v. Ford, 461 A.2d 1281, 1283,

1287 (Pa. Super. 1983).

       In the matter before us, it is evident from the record that Appellant did not carry

the firearm in sight of the police officers. The evidence does establish, however, that

while seated in the vehicle, Mr. Brewer had the power to control the handgun and the

intent to exercise that control:




                                                6
....... ·• ••• - ..... __ .•••.   ·-···   .• ·--�.   ··,•••· ••   ·.-...··.   ·.d




                                                                          •         First, Mr. Brewer acknowledged ownership of the firearm and admitted
                                                                                    that he left it behind inside the Lincoln when he exited the car to smoke a
                                                                                    cigarette. N.T. (Trial) 10/12/2016 at 10, 32, 33; Exhibit C-3 at 4-5.s

                                                                         •          The handgun was recovered from the floor of the car near the rear
                                                                                    passenger seat, the same seat Mr. Brewer had recently vacated. Id. at 11,
                                                                                    27, 33.

                                                                         • At the time he was arrested, Mr. Brewer had a loaded magazine in his
                                                                           pants pocket that was compatible with the handgun. Id. at 12, 27.

                                                                         • None of the other occupants of the Lincoln claimed ownership of the
                                                                           firearm nor did any of them make any gestures or movements towards the
                                                                           handgun indicating that they intended to exercise control over it. Id. at 21-
                                                                           23, 28.

                                                         In total, this evidence establishes that Mr. Brewer constructively possessed the

                              handgun while inside the Lincoln and that he did not abandon the handgun upon

                                  exiting that vehicle. As it is undisputed that the white Lincoln was on a public street, it

                                  was reasonable to infer that Appellant carried a firearm on a public street. See Ford,

                                  supra. Therefore, the evidence is sufficient to establish the element of section 6108 that

                                  Mr. Brewer carried a firearm on a public street.

                                                         Lastly, Mr. Brewer may also argue, as his trial counsel argued in support of his

                                  motion for judgment of acquittal, that Section 6108 is inapplicable to the facts of this

                                  case because the statute does not explicitly penalize the carrying of a firearm "in any

                              vehicle" in contrast to Section 6106(a)(1), which does.6 We declined to adopt Mr.



                              s The Commonwealth also presented evidence that Mr. Brewer had legally acquired the
                              firearm at Delaware Valley Sports Center. Exhibit C-3 at 4.
                              6 18 Pa.C.S. § 6106(a)(1), which is not the subject of this appeal, states:


                                                                                    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. ( emphasis added).

                                                                                                                      7
Brewer's interpretation of Section 6108 because to do so would require the court to

ignore the plain text of Section 6108. Under Section 6108 an individual may not carry a

firearm on the public streets or public property of Philadelphia, subject to only two

exceptions:

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

Mr. Brewer neither possessed a license to carry nor did the facts of his case fall within

any of the exemptions listed in Section 6106(b). In fact, Section 6106 (b)(8) enumerates

specific circumstances, not applicable here, when a person may carry an unloaded

firearm in a secure wrapper in a vehicle without a license. They are:

   •   when the person is transporting the firearm from the place of purchase to his
       home or place of business;

   •   when the person is transporting the firearm to a place of repair, sale or appraisal
       or back to his home or place of business, or in moving from one place of abode or
       business to another or from his home to a vacation or recreational home or
       dwelling or back";

   •   when the person is transporting a firearm that has been returned to him or her
       under 18 Pa.C.S. § 6111.1(b)(4); or

   •   when the person is transporting the firearm to a place of instruction intended to
       teach the safe handling, use or maintenance of firearms.?




7 Section 6106 (b )(8) also allows transport of unlicensed firearms "back or to a location
to which the person has been directed to relinquish firearms under 23 Pa.C.S. § 6108 or
back upon return of the relinquished firearm or to a licensed dealer's place of business
for relinquishment pursuant to 23 Pa.C.S. § 6108.2 or back upon return of the
relinquished firearm or to a location for safekeeping pursuant to 23 Pa.C.S. § 6108.3, all
of which relate to the temporary relinquishing of firearms under the Protection from
Abuse Act.


                                                 8
       Our plain reading of the statute is supported by appellate decisions upholding

convictions or sentences under section 6108 of a defendant like Brewer who lacked a

lawfully issued license to carry a concealed firearm and was an occupant of a vehicle.

See, e.g., Commonwealth v. Walton, 529 A.2d 15 (Pa. Super. 1987) (affirming the

conviction of a taxi driver who carried a firearm in his taxi cab). See also

Commonwealth v. Baldwin, 985 A.2d 830, 832 (Pa. 2009) (holding that Sections 6106

and 6108 do not merge for sentencing purposes). Neither of these cases, nor any others

we have located in our research, contemplate adopting the type of carrying "in any

vehicle" exception to section 6108 argued by Appellant at trial, nor could we presume

the authority to do so. See Commonwealth v. Webbs Super Gro Products, Inc., 2 A.3d

591, 595 (Pa. Super. 2015) (courts do not "have the authority to insert a word or

additional requirement into a statutory provision where the legislature has failed to

supply it") (quoting In re Jacobs, 936 A.2d 1156, 1163 (Pa. Super. 2007)). Therefore, we

find that the evidence is sufficient to establish the offense occurred "on a public street"

in Philadelphia as required by 18 Pa.C.S. § 6108.


                                       Conclusion

       For the reasons discussed supra, we conclude the Commonwealth established all

of the elements of 18 Pa.C.S. §6108 beyond a reasonable doubt. We respectfully request

that Appellant's judgment of sentence be affirmed.

                                           BY THE COURT:



                                                                               Stella Tsai, J.

                                                                               May 24, 2017



                                                 9
