J-S72025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
JAMES GEATHERS,                          :
                                         :
                   Appellant             :        No. 1519 EDA 2016

              Appeal from the Judgment of Sentence May 5, 2016
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0001906-2015

BEFORE:      BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY MUSMANNO, J.:                     FILED DECEMBER 29, 2017

     James Geathers (“Geathers”) appeals from the judgment of sentence

imposed following his convictions of persons not to possess firearms,

firearms not to be carried without a license, and carrying firearms on public

streets of Philadelphia. See 18 Pa.C.S.A. §§ 6105(a)(1); 6106(a)(1); 6108.

We affirm.

     The trial court set forth the relevant underlying facts as follows:

     On July [1], 2014, at approximately 1:10 a[.]m[.], Officer Dat
     Nguyen (“Officer Nguyen”) and his partner, Officer Acevedo
     (“Officer Acevedo”)[,] were on patrol at the 1300 block of 52nd
     Street in Philadelphia, Pennsylvania. N.T.[,] 7/27/15[,] at 10.
     At that time, Officer Nguyen observed a gray 2001 Mercury
     Grand Marquis exiting a parking spot. Id. After the driver failed
     to use a left-turn signal, the officers conducted a lawful traffic
     stop for [a] violation of the Motor Vehicle Code. Id.

     When Officer Nguyen approached the vehicle, he observed four
     individuals: co-defendant Kyle Bess [(“Bess”)] (seated in the
     driver’s seat), [Geathers] (seated in the front passenger seat),
     and two other males (both of whom were in the rear passenger
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S72025-17


     seats). Id. at 12. At this time, Officer Nguyen asked Bess for
     his license, registration, and insurance; however, Bess only
     provided his identification. Id. at 10. During the exchange,
     Officer Nguyen noticed that Bess was shaking and that he
     appeared very nervous, asking the officer several questions in a
     nervous manner. Id.

     At that time, Officer Nguyen returned to his vehicle, where
     Officer Acevedo proceeded to process Bess’[s] information. Id.
     at 11. Because Officer Acevedo was acting as the recorder,
     Officer Nguyen continued to observe the vehicle occupied by
     [Geathers]. Id. at 10. During this time, Officer Nguyen saw
     multiple movements inside the front area between Bess (the
     driver) and [Geathers] (the front passenger). Id. at 12. The
     officer specifically saw both Bess and [Geathers] reaching toward
     the area around the center console. Id.

     After making these observations, Officer Nguyen returned to the
     car occupied by Bess and [Geathers], this time opening the
     driver’s side door and ordering Bess to exit the vehicle. Id.
     After the officers conducted a pat-down, Bess was placed inside
     the patrol vehicle. Id. The officers then removed [Geathers]
     from the car, followed by each of the two rear passengers. Id.
     All three men were frisked, then ordered to stand against a wall
     located roughly four or five feet away from the vehicle. Id. at
     34-35. With all three men outside of the vehicle, Officer Nguyen
     shined his flashlight through a window to the interior of the
     vehicle. Id. at 13-14. At this time, he observed what appeared
     to be the magazine of a gun sticking out from a black and grey
     Nike bag that was situated between the armrest and the front
     passenger’s seat of the vehicle. Id. at 14. This was the same
     area where both [Geathers] and Bess had previously been
     reaching. Id. After making this observation, Officer Nguyen
     turned around and looked at [Geathers], who immediately fled
     northbound on 52nd Street. Id. at 14. At trial, Officer Nguyen
     testified that ultimately, they did not give chase to [Geathers],
     as they were concerned with the two unsecured passengers[,]
     who were still outside of the vehicle. Id. However, even after
     [Geathers] fled, the two rear passengers stayed at the scene.
     Id. at 26.

     After retrieving the bag from the vehicle, Officer Nguyen found a
     black Intratec .9mm semi-automatic handgun loaded with 24 live
     rounds. Id. at 15. At trial, counsel stipulated to the contents of

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      the bag, as well as both [Geathers’s] ineligibility to possess the
      firearm, and the firearm’s operability.

Trial Court Opinion, 1/4/17, at 1-3 (unnumbered).

      Geathers was able to elude the authorities for seven months, and was

arrested on February 2, 2015.     Geathers and Bess waived their right to a

jury trial and were tried together before the Honorable Sean F. Kennedy.

Judge Kennedy found Geathers guilty of the above-mentioned charges and

acquitted Bess on all charges.    Judge Kennedy sentenced Geathers to an

aggregate term of six to twelve years in prison, followed by five years of

probation.

      Geathers filed a timely Notice of Appeal and a court-ordered

Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.

      On appeal, Geathers raises the following question for our review:

“Whether the trial court erred in finding that the Commonwealth produced

sufficient evidence to prove beyond a reasonable doubt that [Geathers]

constructively   possessed   a   firearm   in   violation   of   18   Pa.C.S.[A.]

§ 6105(a)(1), 18 Pa.C.S.[A.] § 6106(a)(1), and 18 Pa.C.S.[A.] § 6108[?]”

Brief for Appellant at vi.

      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

      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

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      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
      finder 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. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)

(citation omitted).

      Geathers contends that the evidence was insufficient to establish that

he constructively possessed the firearm found in the vehicle.        Brief for

Appellant at 1, 4, 6. Geathers argues that he was not alone in the vehicle

and that all four men in the vehicle were making movements after the

officers stopped the vehicle. Id. at 4, 6; see also id. at 4-5 (noting that

Bess was making movements toward the center console and was extremely

nervous when answering the officer’s questions).     Geathers further points

out that the officers did not observe the bag containing the firearm until

both Bess and Geathers were removed from the vehicle. Id. at 5; see also

id. at 5, 6 (noting that the two rear passengers were in the vehicle when he

and Bess were removed from the vehicle and that they had ample

opportunity to move the firearm during this time).     Geathers asserts that


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while his decision to flee the scene suggests a consciousness of guilt, the

flight only occurred after the police found the firearm, and he realized either

Bess or one of the rear passengers had thrown the firearm on his seat. Id.

at 5.   Geathers claims that his flight was not dispositive of guilt, and that

without    any   evidence,    other   than   proximity   to   the   firearm,   the

Commonwealth failed to meet its burden of constructive possession. Id. at

6-7.

        Where, as here, Geathers did not possess the firearm on his person,

the Commonwealth was required to establish that Geathers constructively

possessed the firearm.       See, e.g., Commonwealth v. Heidler, 741 A.2d

213, 215 (Pa. Super. 1999) (noting that in firearm possession cases, the

Commonwealth may meet its burden by showing actual, constructive, or

joint constructive possession).

        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.

Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (citation

and quotation marks omitted). “[C]ircumstantial evidence may be used to

establish constructive possession of the [contraband].” Commonwealth v.

Johnson, 26 A.3d 1078, 1094 (Pa. 2011).          However, a defendant’s mere


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presence at the scene does not establish constructive possession of a

weapon. Commonwealth v. Vargas, 108 A.3d 858, 869 (Pa. Super. 2014)

(en banc).

     The trial court addressed Geathers’s claims as follows:

     In the instant case, [Geathers] was not only within the
     immediate proximity of the contraband, but he also made
     several furtive movements in the area where the contraband was
     found. The bag containing the gun was discovered between the
     center console and the passenger’s seat, which is where
     [Geathers] was seated when the initial stop took place.
     [Geathers] was seen making movements in that area prior to the
     initial stop, as well as during the time that Officer Nguyen
     observed the vehicle[,] while his partner ran the driver’s
     information. Additionally, when Officer Nguyen discovered the
     firearm, [Geathers] fled from the scene. Although two other
     unsecured individuals were present at this time, [Geathers] was
     the only one who ran. This reaction demonstrates consciousness
     of guilt, which is also indicative of his knowledge of the firearm’s
     presence in the vehicle.

     Given the totality of the circumstances, it is clear that [Geathers]
     constructively possessed the firearm beyond a reasonable doubt.
     [Geathers] was more than merely present at the scene; rather,
     he was observed with the contraband in the area of his
     immediate control and, additionally, showed an apparent ability
     to exercise said control. This is supported by both direct and
     circumstantial evidence which, when viewed in the light most
     favorable to the Commonwealth as the verdict winner, it is
     sufficient to support [Geathers’s] conviction[s.]

Trial Court Opinion, 1/4/17, at 6 (unnumbered).

     We agree with the sound reasoning of the trial court. See id. Thus,

we conclude that under the totality of these circumstances, sufficient

evidence demonstrated Geathers constructively possessed the firearm. See

Commonwealth v. Smith, 146 A.3d 257, 263 (Pa. Super. 2016)


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(concluding that appellant constructively possessed the firearm based upon

evidence that it was recovered from a dresser that included other items

belonging to appellant and appellant fled from the scene, evidencing a

consciousness of guilt); Cruz, 21 A.3d at 1253 (holding evidence was

sufficient to establish that driver of car had constructive possession of a gun

found in a compartment on the passenger side where the driver moved

toward the passenger side of the vehicle when the officer turned on his

lights and siren, and the driver gave the officer different names and

birthdates, which exhibited a consciousness of guilt).

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2017




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