J-S08024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                               Appellee

                         v.

SAMUEL GREENNAGH

                               Appellant                    No. 1795 EDA 2014


           Appeal from the Judgment of Sentence of May 27, 2014
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0006689-2012


BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                                FILED FEBRUARY 03, 2015

      Samuel Greennagh challenges his May 27, 2014 judgment of sentence.

Herein, Greennagh contends that the evidence was insufficient to support

the   guilty   verdict    of    persons    not   to   possess   firearms,   18   Pa.C.S.

§ 6105(a)(1). We affirm.

      The trial court set forth the factual history of this case as follows:

      On February 10, 2012, at approximately 4:00 p.m., Philadelphia
      Police Officer Leonard Boston was beginning his shift at the 16th
      district when complaining witness Randy Merriman approached
      him on foot. Notes of Testimony [“N.T”], 3/31/14 at 32-33, 39.
      According to Officer Boston’s testimony, Merriman complained
      that [Greennagh] had threatened to shoot him with a black
      handgun and punched him in the face when he attempted to visit
      his friend Sheree Morgan at 4030 Green Street. [N.T.] at 34-36.
      Officer Boston observed a reddish bruise on Merriman’s right
      cheek. [N.T.] at 48. [Greennagh] was then taken into custody.
      [N.T.] at 49.

      Philadelphia Detective John Leinmiller took Merriman’s statement
      at 9:20 p.m. that same day. [N.T.] at 57. According to the
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       interview record, Merriman informed Detective Leinmiller that
       Sheree Morgan was [Greennagh’s] tenant at 4030 Green Street;
       Morgan rented a third floor apartment and [Greennagh] lived on
       the second. [N.T.] at 59. Real estate property information
       recovered by the police confirmed that [Greennagh] owned the
       building. [N.T.] at 67. Detective Leinmiller served a search and
       seizure warrant at that address. [N.T.] at 66. He conducted a
       search in the front bedroom on the second floor and found a
       silver pistol loaded with four live rounds under a mattress.
       [N.T.] at 67. He also discovered a white letter from Philadelphia
       Gas Works (“PGW”) addressed to Samuel Greennagh at 4030
       Green Street on top of the television as well as male clothing on
       the floor. [N.T.] at 71-72.

Trial Court Opinion (“T.C.O.”), 8/20/2014, at 1-2.

       On February 10, 2012, Greennagh was charged with persons not to

possess firearms, 18 Pa.C.S. § 6105(a)(1); terroristic threats with intent to

terrorize another, 18 Pa.C.S. § 2706(a)(1); simple assault, 18 Pa.C.S.

§ 2701(a); recklessly endangering another person, 18 Pa.C.S. § 2705; and

intimidation of witness, 18 Pa.C.S. § 4952(a)(1).

       Following a bench trial on March 31, 2014, Greennagh was found

guilty of persons not to possess firearms.1 The trial court found Greennagh

not guilty of terroristic threats, simple assault, recklessly endangering

another person, and intimidation of witnesses or victims. On May 27, 2014,

Greennagh was sentenced to five to ten years’ incarceration, and was given

credit for time served. T.C.O. at 1.
____________________________________________


1
      At trial, the parties stipulated that Greennagh is prohibited from
carrying a firearm in the Commonwealth of Pennsylvania. T.C.O. at 1.




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      On June 11, 2014, Greennagh filed a timely notice of appeal. On July

31, 2014, Greennagh submitted a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b).       On August 20, 2014, the trial

court issued a Pa.R.A.P. 1925(a) opinion.

      Greennagh raises one question for this Court’s consideration: “Did the

[t]rial [c]ourt error [sic] when it found that the Commonwealth presented

sufficient evidence to find [Greennagh] guilty beyond a reasonable doubt?”

Brief for Greennagh at 3.

      A claim challenging the sufficiency of the evidence presents a question

of law. Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). Our

standard of review for a sufficiency of the evidence claim is well established:

      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 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.




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Commonwealth v. Estepp, 17 A.3d 939, 943-44 (Pa. Super. 2011) (citing

Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa. Super. 2010)).

      Greennagh contends that the evidence relied upon by the trial court is

insufficient to prove beyond a reasonable doubt that he possessed the

firearm found on the second floor of his 4030 Green Street home.          We

disagree.   The Commonwealth can establish possession of a firearm by

proving either actual or constructive possession.        Commonwealth v.

Macolino, 469 A.2d 132, 134 (Pa. 1983). In this case, because the firearm

was not found on Greennagh’s person, the Commonwealth had to prove that

Greennagh had constructive possession of the firearm.           Constructive

possession is defined 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.” Commonwealth v. Davis, 280 A.2d 119, 121 (Pa.
      1971). We subsequently defined “conscious dominion” as “the
      power to control the contraband and the intent to exercise that
      control.” [Macolino, 469 A.2d at 134].

Commonwealth       v.   Mudrick,    507   A.2d   1212,   1213   (Pa.   1986).

“[C]onstructive possession may be established by the totality of the

circumstances.”   Id.   (citing Commonwealth v. Fortune, 318 A.2d 327

(Pa. 1974)).

      In Commonwealth v. Harvard, 64 A.3d 690 (Pa. Super. 2013), the

appellant was convicted of robbery, persons not to possess a firearm, and


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other related offenses.      Therein, police searched a home where the

appellant, a suspect in a home invasion, had lived for several months. As in

this case, a search of the home produced a firearm, and evidence that the

appellant received mail at the residence. Id. at 699. Police also recovered a

number of other items that had been reported stolen in the robbery.          Id.

The appellant argued that the Commonwealth failed to produce sufficient

evidence to prove that he constructively possessed the firearm seized from

the home.   As noted, the police found the firearm in the home where the

appellant had been residing for several months along with mail addressed to

the appellant at that address.   In addition, the only other occupant of the

home testified that she did not own the gun, nor was she aware of its

presence in the home. In light of the circumstances, this Court found that

“the trial court, sitting as finder of fact, could reasonably infer that [the

appellant] had the ability and intent to control the firearm.” Id. at 700.

      Greennagh’s principle contention is that the Commonwealth failed to

prove that he resided at 4030 Green Street, the location where the gun was

located. In support of his argument, Greennagh points to certain facts that

arguably militate in favor of his argument, including, inter alia, the fact that

he was not found to be in possession of a key to the apartment and the fact

that the address on his driver’s license is 3808 Mellon Street, not 4030

Green Street.    Brief for Greennagh at 14-15.      Greennagh’s argument is

unpersuasive. Here, the victim, Randy Merriman, went to visit a tenant of

Greennagh’s 4030 Green Street residence.            When Merriman arrived,

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Greennagh “came to the door with a gun in his right hand and said ‘what’s

your cracker ass doing here[?] I don’t want you in my house.’” N.T. at 59.

Greennagh assaulted Merriman, threatened to kill him if he reported the

incident to authorities, and ultimately was taken into custody. A search of

the property produced the firearm at issue. N.T. at 66.

         It is undisputed that Greennagh owns the home, and Merriman’s

statements to the detective indicate that Greennagh lives on the second

floor.    N.T. at 59, 66-67.     A search of the home produced a gas bill

addressed to Greennagh, found in the same bedroom as the firearm, and

men’s clothing was scattered on the floor of the room.        N.T. at 72.   The

presence of the gas bill addressed to Greennagh at 4030 Green Street

supports an inference that he lives in the home, and had been in the room.

The gas bill, along with male clothing on the floor of the bedroom indicates

that Greennagh at the very least exercised control over that room in a house

that he owned. Moreover, Greennagh exhibited control over the home when

he refused to allow Merriman to enter, and stated, “I don’t want you in my

house.” N.T. at 59.

         Based upon the foregoing evidence, viewed in the light most favorable

to the Commonwealth, and examining the totality of the circumstances, the

trial court reasonably could infer that Greennagh resided at the home on

4030 Green Street, and had the power to control the items therein, including

the firearm, or the intent to exercise that control. No more is required to

establish     constructive   possession   of   a   firearm.    Therefore,   the

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Commonwealth presented sufficient evidence to support the trial court’s

conclusion that Greennagh possessed the firearm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2015




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