J-A05045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                          :    IN THE SUPERIOR COURT OF
 PENNSYLVANIA                             :         PENNSYLVANIA
                                          :
                                          :
               v.                         :
                                          :
                                          :
 TAYVON EURE                              :
                                          :    No. 2431 EDA 2016
                    Appellant

           Appeal from the Judgment of Sentence March 4, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0011327-2014


BEFORE:      DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                           FILED MAY 09, 2018

      Appellant, Tayvon Eure, appeals from the judgment of sentence entered

in the Court of Common Pleas of Philadelphia County, which sitting as finder

of fact in Appellant’s non-jury trial found him guilty of, inter alia, persons not

to possess firearms, 18 Pa.C.S.A. § 6105(a)(1), and carrying firearms on

public streets or public property in Philadelphia, 18 Pa.C.S.A. § 6108.

Appellant contends the evidence was insufficient to sustain his convictions.

We affirm.

      The trial court sets forth the pertinent facts and procedural history as

follows:

      On September 21, 2014, at approximately 3:00 a.m., Officer Amir
      Watson (“Officer Watson”) and his partner Officer Dickson were
      on routine patrol in the area of 2602 Berbru Street in Philadelphia,
      Pennsylvania. N.T., 1/4/16, at 9-12. During this time, Officer
      Watson was on his normal patrol when he observed the defendant

____________________________________
* Former Justice specially assigned to the Superior Court.
J-A05045-18


     [hereinafter “Appellant”]. Id. Traveling eastbound on the 7300
     block of Buist Avenue, Officer Watson first observed Appellant wen
     turning onto the 2600 [block] of Berbru Street, at which time
     Appellant looked towards his direction. Id. A moment later,
     Officer Watson observed Appellant walk over to a 2003 white
     Chevrolet Trailer [sic] Blazer and bend down to discard an object.
     Id. At the time, Officer Watson heard a “clinking” sound of metal
     and saw Appellant run inside 2602 Berbru Street. Id. at 13.

     Officer Watson exited the vehicle to inspect the scene while his
     partner activated the police vehicle’s lights. Id. Officer Watson
     shined his flashlight at the location where he heard the object and
     discovered a silver firearm. Id. At that point, Officer Watson
     yelled to his partner that Appellant threw a gun. Id. He then
     attempted to chase Appellant inside the property of 2602 Berbru
     Street, but never made direct contact. Id. at 13-14. Upon arriving
     at the back of the entrance of the property, [Officer Watson] finds
     Appellant apprehended by his partner, Officer Dickson. Id. at 14.

     On September 21, 2014, Appellant was arrested and charged with
     Possession of a Prohibited Firearm, 18 Pa.C.S.A. § 6105(a)(1),
     Intentionally Possessing a Controlled Substance by a Person Not
     Registered, 35 Pa.C.S.A. § 780-113(a)(16), Possession of
     Marijuana, 35 Pa.C.S.A. § 780-113(a)(31), Carrying Firearms in
     Public, 18 Pa.C.S.A. § 6108, Criminal Trespass, 18 Pa.C.S.A. §
     3503(a)(1), and Carrying a Firearm Without a License, 18
     Pa.C.S.A. § 6106(a)(1). On October 6, 2014, the lower court
     dismissed charges for criminal trespass and carrying a firearm
     without a license. On [January] 4, 2016, Appellant requested and
     was granted a [waiver trial] before the Honorable Sean F.
     Kennedy. N.T. at 5-8. Based on the testimony presented at trial,
     Appellant was found guilty on the remaining charges at the
     conclusion of trial. Id. at 44. Appellant was then sentenced to 5-
     10 years of state incarceration with the court permitting credit for
     time already served. N.T., 3/4/16, at 15.

     On March 7, 2016, Appellant moved for Reconsideration of
     Sentence. On July 5, 2016, said motion was denied by operation
     of law. On July 20, 2016, a Notice of Appeal to the Superior Court
     was filed on behalf of Appellant. On September 19, 2016, [trial
     counsel] moved to withdraw as defense counsel and [Appellant]
     sought trial court appointment of new counsel. On January 24,
     2017, the trial court appointed [new counsel] to represent
     Appellant in his appeal. Under these circumstances, the newly

                                    -2-
J-A05045-18


      appointed counsel filed a timely Notice of Appeal on behalf of
      Appellant with the Superior Court of Pennsylvania.

Trial Court Opinion, filed May 22, 2017, at 1-3.

      Appellant presents one question for our review:

      WHETHER THE TRIAL COURT ERRED IN FINDING
      APPELLANT GUILTY OF THE FIREARMS OFFENSES BECAUSE
      THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE
      VERDICT?

Appellant’s brief at vi.

      Appellant’s claim centers on the argument that evidence failed to

demonstrate he possessed the firearm recovered alongside the SUV where he

briefly hid before fleeing the scene. Three other people were standing within

fifteen feet of him at the time, he maintains, and Officer Watson never saw a

gun in his hand.     Given such uncertain circumstances, the court erred in

finding the Commonwealth proved beyond a reasonable doubt his constructive

possession of the gun, Appellant posits. We disagree.

      Our well-settled standard of review regarding sufficiency of the evidence

claims is as follows:

      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

                                     -3-
J-A05045-18


      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. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014)

(citation omitted).

      The crime of persons not to possess firearms is defined, in

pertinent part, as follows:

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

18 Pa.C.S.A. § 6105(a)(1).

      Carrying a firearm in public in Philadelphia is defined as follows:

      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. § 6108.

      When a prohibited item is not discovered on a defendant's person, or in

his actual possession, as is the case here, the Commonwealth may prove the

defendant had constructive possession of the item.




                                      -4-
J-A05045-18


            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. Brown, 48 A.3d 426, 430 (Pa. Super. 2012),
      appeal denied, [ ] 63 A.3d 1243 (2013) (internal quotation marks
      and citation omitted).

Commonwealth v. Hopkins, 67 A.3d 817, 820-821 (Pa. Super. 2013).

      Viewing the evidence in a light most favorable to Commonwealth as

verdict winner, we find there was sufficient circumstantial evidence to prove

Appellant knowingly possessed the firearm found at the base of an SUV. One

of four persons standing near a street corner, Appellant alone acted furtively

upon seeing police, and he ducked quickly behind the SUV at precisely the

same time Officer Watson heard emanate from that location a “clinking” noise

consistent with a gun or other metal object of similar weight falling to the

pavement. Appellant immediately ran, and Officer Watson alighted from the

patrol car and observed a gun lying on the ground where Appellant had just

been. When police apprehended Appellant and escorted him back to the patrol

car, the by-standers were still at the scene.

      Based on Officer Watson’s unrebutted testimony, a reasonable finder of

fact could conclude that Appellant discarded the handgun at the location where

he momentarily hid from police before taking flight. Appellant’s furtive action


                                     -5-
J-A05045-18



and his subsequent flight were probative of guilt. See Commonwealth v.

Dent, 837 A.2d 571, 576 (Pa. Super. 2003) (flight indicates consciousness of

guilt, and court may consider this as evidence along with other proof from

which guilt may be inferred). Moreover, the evidence showed there was no

other reasonable explanation for the “clinking” sound Officer Watson heard as

Appellant ducked behind the SUV, as only the gun lay in that spot.

      Finally, contrary to Appellant’s argument, that bystanders may have had

access to the gun when it was on the ground does not undermine the

sufficiency of the evidence offered against Appellant. See In Re R.N., 951

A.2d 363, 369-70 (Pa. Super. 2008) (Commonwealth need show only knowing

possession of gun, not exclusive access or control); Commonwealth v.

Carter, 450 A.2d 142 (Pa. Super. 1982) (constructive possession shown

where only driver, in car with multiple passengers, had opportunity to hide

gun and was seen reaching down where gun was later found). In any event,

at the critical time when Officer Watson observed Appellant hide behind the

SUV and heard the distinctive sound in question, Appellant exercised exclusive

control over this immediate area.

      Accordingly, because the Commonwealth introduced circumstantial

evidence proving the element of possession beyond a reasonable doubt, we

reject Appellant’s sufficiency challenge.




                                      -6-
J-A05045-18



     Judgment of sentence is AFFIRMED.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/18




                                -7-
