J-A13005-16




NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAJA NEVELS,

                            Appellant                 No. 949 WDA 2015


            Appeal from the Judgment of Sentence of May 18, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0015604-2014


BEFORE: OLSON, STABILE AND MUSMANNO, JJ.:

MEMORANDUM BY OLSON, J.:                               FILED JUNE 30, 2016

       Appellant, Jaja Nevels, appeals from the judgment of sentence entered

on May 18, 2015, following his bench trial convictions for carrying a firearm

without a license, persons not to a possess a firearm, and possession of a

small amount of marijuana.1 We affirm.

       The able trial court summarized the facts of this case as follows:

         Officer Joseph Barna, of the City of Pittsburgh Police
         Department […] was patrolling the North Side of the City of
         Pittsburgh in a marked patrol unit on October 24, 2014,
         when he came into contact with [Appellant]. He identified
         [Appellant at trial].


____________________________________________


1
  18 Pa.C.S.A. § 6106, 18 Pa.C.S.A. § 6105, and 35 P.S. § 780-113(a)(31),
respectively.
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       While patrolling on said date, Officer Barna viewed a black
       Pontiac with no headlights [] at the intersection of Concord
       and Chestnut Streets at 1:50 a.m. He pulled behind the
       vehicle, made a left hand turn onto Concord Street and
       initiated his vehicle’s lights and siren. The officer observed
       the passenger in the vehicle, who turned out to be
       [Appellant], immediately dip in an attempt to conceal
       something under the passenger seat of the vehicle. At the
       time of his observation, the officer was a few feet behind
       the vehicle with his headlights, audible lights and siren all
       on. According to Officer Barna, [Appellant] was in the
       passenger seat and Ms. Jackson Manley was in the driver
       seat.

       Officer Barna [] observed [Appellant’s] front body move
       forward and a shoulder dip. Through his training and
       experience, the officer said it was like someone attempting
       to conceal something. After he saw this movement, the
       driver pulled off to the right-hand side of the roadway very
       close to a wall in front of 834 Concord Street. As Officer
       Barna was exiting his vehicle, [Appellant] exited the Pontiac
       and started to try to walk away, but because the vehicle
       was parked too close to the wall the door could only open 1
       to 1½ feet and [Appellant] had to come back towards the
       officer. At that time, Officer Barna told him to get back in
       the car, which he eventually did.

       Officer Barna[’s] car did not have a computer inside, so he
       could not run the plates, but a neighboring zone officer told
       him it was a stolen vehicle. When asking the driver for her
       license and registration, he observed that [Appellant] was
       extremely nervous. He was visibly shaking. He was moving
       about [] and would not make eye contact[.] [Officer Barna]
       requested him multiple times to stop moving, at which point
       he picked up an iPad and started playing with that. [Officer
       Barna] asked him to put the iPad back down as well. Officer
       Barna believed the iPad was in the passenger’s side door
       pocket.

       At some point, backup arrived. Officer Barna thought the
       driver was under the influence of drugs or alcohol, as she
       smelled of an alcoholic beverage, so he detained her since it
       was also a stolen vehicle.


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       […O]fficer Barna [] testified that the movement he observed
       [Appellant] make while he was behind the vehicle was
       different from the movement [Appellant] made when he
       took the iPad from the door panel.          When [Appellant]
       grabbed the iPad, he was still sitting back in his seat and
       just reached over and grabbed it.            When he placed
       whatever he concealed under the seat, he actually had to
       lean physically forward. As such, the officer [] observed
       [Appellant’s] body, and right shoulder in particular, move in
       the forward and down direction.         Finally, Officer Barna
       testified the lights on his vehicle adequately allowed him to
       see inside the vehicle in front of him.

       The Commonwealth next called [O]fficer Jenny Monteleone
       to testify. […] On October 24, 2014, Officer Monteleone
       was on patrol in a marked vehicle in full uniform. Officer
       Barna had called out that he had conducted a traffic stop
       and right before she arrived at the scene, a Zone 2 officer
       called out that the vehicle may have been stolen. Once she
       arrived on scene, Officer Barna informed her that he had
       spoken to the driver and told her of the movements the
       passenger ([Appellant]) had made.        Officer Monteleone
       stated she as able to observe the passenger in the vehicle
       and she identified him in the courtroom as [Appellant].

       According to Officer Monteleone, Officer Barna had the
       driver of the vehicle step out of the car and she was
       detained. After a few more units arrived on the scene, she
       was able to get over to the passenger side and get
       [Appellant] out of the car. Once [Appellant] complied, he
       was detained, and based upon the information she received,
       the vehicle was searched. Officer Monteleone recovered
       under the passenger seat, a .357 Magnum.             Upon
       questioning, [Appellant] stated to Officer Monteleone that
       he did not have a license to carry a firearm.

       [The Commonwealth provided further evidence] from the
       State Police stating that [Appellant] does not have a valid
       license to carry a firearm[.]

       [Appellant] was searched and [police] recovered a pack of
       cigarettes from [Appellant’s] right pocket and a small
       baggie of marijuana inside. Officer Monteleone was present
       when the search was conducted. [There was] a stipulation

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         relative to the crime lab report that indicated the substance
         was tested and found to be positive for Schedule I
         marijuana.

         Officer Monteleone next testified the gun was loaded, had a
         round in the chamber, and was submitted to the Allegheny
         County Office of Medical Examiner.         [There] was a
         stipulation relative to the .357 Magnum indicating it was in
         good operating condition and met the requirements of
         barrel length eligible to be a revolver.

         Finally, Officer Monteleone stated that she determined that
         [Appellant] was not a person eligible to possess a firearm as
         he had a prior conviction with a felony drug charge in
         August of 2012. The certified conviction was admitted into
         evidence.

Trial Court Opinion, 12/21/2015, at 3-7 (quotations and record citations

omitted).

       The trial court held a bench trial on May 18, 2015. At its conclusion,

the trial court found Appellant guilty of the aforementioned crimes.       This

timely appeal resulted.2

       On appeal, Appellant presents the following issue for our review:

         I.     Was the evidence sufficient to prove beyond a
                reasonable doubt that [Appellant] actively or
                constructively possessed a firearm in order to uphold
                convictions of person not to possess a firearm and
                carrying a firearm without a license?

Appellant’s Brief at 4 (complete capitalization omitted).
____________________________________________


2
  On June 17, 2015, Appellant filed a notice of appeal. On July 6, 2015, the
trial court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). After receiving an extension of
time from the trial court, Appellant complied timely. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on December 21, 2015.



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      Appellant contends the Commonwealth failed to produce sufficient

evidence that he possessed the gun at issue because police did not recover

it from his person and the Commonwealth failed to prove he constructively

possessed it. He claims the only evidence presented connecting him to the

gun was his position “in the car where the gun was present under the seat”

and his movement wherein “his right shoulder dipped down and to the side

where he had an iPad stored.” Id. at 14. Appellant claims that “[i]t was

just as likely that [his] right shoulder dipped because he reached for the iPad

or for the marijuana in his pocket, as it was that he was hiding a firearm.”

Id. at 16. Appellant asserts there was no physical evidence recovered by

police linking him to the firearm, such as his DNA or fingerprints. Id. at 15.

Further, Appellant “never confessed to owning the gun or possessing it.” Id.

Finally, he claims the trial court erred in relying upon police testimony that

Appellant appeared nervous at the scene to indicate consciousness of guilt,

because:

        Traffic stops are stressful situations that make people
        nervous. Additionally, considering that the driver of the
        vehicle smelled of alcohol, she drove a stolen vehicle, and
        [Appellant] had marijuana on him, it was not surprising that
        [Appellant] appeared nervous. He probably had serious
        concerns about being arrested with the drugs on his person.
        [Appellant’s] nervousness simply does not equate to
        [Appellant] knowing about a gun hidden under the seat.

Id. at 14-15.   Thus, Appellant contends the trial court based his firearm

convictions on speculation and conjecture. Id. at 18.

      Our standard of review is well-settled:


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        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 that of 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 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.

Commonwealth v. Irvin, 134 A.3d 67, 75-76 (Pa. Super. 2016) (internal

citation and brackets omitted).

      Appellant challenges the trial court’s determination that he possessed,

or maintained control over, the firearm found under the passenger’s seat in

order to support his firearm convictions for persons not to possess a firearm

and carrying a firearm without a license. As Appellant was not in physical

possession of the firearm, the Commonwealth was required to establish that

he had constructive possession of it to support his convictions:

        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

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        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. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013) (internal

citation omitted).

      Here, the trial court determined:

        In the present case, [Appellant] was a passenger in the
        front seat of the vehicle and the weapon was found under
        his seat. Officer Barna clearly testified when his vehicle was
        a few feet behind the possibly stolen vehicle, with full lights
        and siren on, he observed the passenger’s body move
        forward and shoulder dip in an attempt to conceal
        something under the passenger seat of the vehicle. On
        redirect [examination], Officer Barna again clearly testified
        he observed [Appellant’s] body and, right shoulder in
        particular, move in the forward and down direction. Thus,
        [Appellant] had the ability to control the weapon.

        In addition, [Appellant] was observed by Officer Barna and
        displayed behavior indicating consciousness of guilt,
        specifically, extreme nervousness and visibl[e] shaking.

        Hence, the evidence was sufficient to show that [Appellant]
        had both the ability and intent to exercise control over the
        firearm located in the vehicle. [The trial court] conclude[d]
        that in viewing the totality of evidence presented at trial,
        there was sufficient evidence to determine [Appellant]
        constructively possessed the firearm.

Trial Court Opinion, 12/21/2015, at 9-10 (record and legal citations

omitted).

      Upon review of the certified record and applicable law, we agree that

the Commonwealth established Appellant constructively possessed the gun

to support his firearm convictions.       Officer Barna testified that when he


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pulled the car over in which Appellant was a passenger, he could see

Appellant “attempt to conceal something under the passenger’s seat of the

vehicle.” N.T., 5/18/2015, at 10. Officer Barna was able to see Appellant

clearly, because the police car’s headlights and overhead lights illuminated

the vehicle in which he was riding. Id. Appellant tried to exit the vehicle,

but police directed him to get back into the car. Id. at 13-14. Appellant

“was extremely nervous[,]” “visibly shaking[,]” moving around the car and

“would not make eye contact” with Officer Barna.      Id. at 14-15.   Officer

Barna requested “multiple times” that Appellant stop moving.      Id. at 14.

Appellant nervously “picked up an iPad and started playing with that.” Id.

In total, Appellant displayed behavior indicating consciousness of guilt,

specifically, trying to exit the car, moving around in the passenger seat,

failing to make eye contact with police, and fidgeting with an iPad. See

Commonwealth v. Micking, 17 A.3d 924, 926 (Pa. Super. 2011), citing

Commonwealth v. Hughes, 865 A.2d 761, 792 (Pa. 2004) (“The conduct

of an accused following a crime, including ‘manifestations of mental

distress,’ is admissible as tending to show guilt.”). Moreover, Officer Barna

was able to differentiate the motions Appellant made with regard to picking

up the iPad located in the passenger door pocket, in contrast with

movements consistent with bending over and secreting something under the

seat. Id. at 23-24. The trial court credited Officer Barna’s testimony and

we will not usurp that determination. Accordingly, we conclude the evidence




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was sufficient to show that Appellant had both the ability and intent to

exercise control of the firearm recovered directly under him.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2016




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