J-A18002-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MARIE CONTOSTA                           :
                                          :
                   Appellant              :   No. 538 WDA 2019

       Appeal from the Judgment of Sentence Entered March 14, 2019
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0007227-2018

BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED AUGUST 13, 2020

     Appellant, Marie Contosta, appeals from the judgment of sentence of a

one-year term of probation, imposed after she was convicted, following a non-

jury trial, of carrying a firearm without a license and other offenses.      On

appeal, Appellant solely challenges the sufficiency of the evidence to sustain

her firearm conviction. We affirm.

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

            On June 4, 2018, Officer Kevin Early of the North Fayette
     Township Police Department conducted a stop of a vehicle being
     operated by [Appellant,] due to the fact that the license plate light
     for the vehicle was malfunctioning. Upon approaching the driver’s
     side of [Appellant’s] vehicle, Officer Early requested [Appellant’s]
     driver’s license, vehicle registration and proof of insurance.
     [Appellant] opened the glove box to obtain some of the
     information and Officer Early observed a loaded gun magazine in
     the glove box. He then asked [Appellant] if a firearm was also
     located in the vehicle. [Appellant] initially advised that there was
     no firearm in the vehicle. Officer Early asked [Appellant] whether
     there was a firearm in the console of the vehicle. [Appellant]
     replied that she was not sure. After a few moments, [Appellant]
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        admitted that there was a firearm in the console of the vehicle.
        Officer Early’s partner recovered the firearm. Officer Early also
        recovered marijuana and a pipe from the console area.
        [Appellant] informed Officer Early that she had just been target
        shooting and was on her way home.

              [Appellant] was placed under arrest and was transported to
        the police department. While there, she was Mirandized[1] and
        she admitted to Officer Early that she had not been target shooting
        prior to the vehicle stop.       Officer Early also learned that
        [Appellant] was not licensed to carry a firearm.

               At trial, [Appellant’s] boyfriend testified. He testified that
        he was at a farm, target shooting with [Appellant] prior to the
        vehicle stop.      He testifed [sic] that he had been following
        [Appellant] home from the farm and he pulled over ahead of her
        after she was stopped by the police. He admitted that the firearm
        was registered to him and that he put the firearm in [Appellant’s]
        vehicle without her knowledge prior to leaving the farm.

Trial Court Opinion (TCO), 10/28/19, at 1-2.

        Based on these facts, the court convicted Appellant of carrying a firearm

without a license, 18 Pa.C.S. § 6106(a)(2); possessing a small amount of

marijuana, 18 Pa.C.S. § 780-113(a)(31); possessing drug paraphernalia, 18

Pa.C.S. § 780-113(a)(32); and driving without rear lights, 75 Pa.C.S. §

4303(b). That same day, the court sentenced Appellant to an aggregate term

of one-year probation. She filed a timely post-sentence motion, which the

court denied.     Appellant then filed a timely notice of appeal, and she also

complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Herein, Appellant states one

issue for our review:



____________________________________________


1   Miranda v. Arizona, 384 U.S. 436 (1966).

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     I. Whether [Appellant’s] conviction for [carrying a firearm
     w]ithout a [l]icense must be reversed, and the judgment of
     sentence in that regard must be vacated, where the
     Commonwealth failed to prove, beyond a reasonable doubt, that
     [Appellant] had constructive possession over the firearm in
     question while it was in her vehicle?

Appellant’s Brief at 5 (bold emphasis omitted).

     Appellant contends that the Commonwealth’s evidence did not prove

that she constructively possessed the firearm found in her vehicle. Initially,

this Court has explained:

            Our standard of review in a sufficiency of the evidence
     challenge is to determine if the Commonwealth established
     beyond a reasonable doubt each of the elements of the offense,
     considering all the evidence admitted at trial, and drawing all
     reasonable inferences therefrom in favor of the Commonwealth as
     the verdict-winner. The trier of fact bears the responsibility of
     assessing the credibility of the witnesses and weighing the
     evidence presented. In doing so, the trier of fact is free to believe
     all, part, or none of the evidence.

           The Commonwealth may sustain its burden by means of
     wholly circumstantial evidence, and we must evaluate the entire
     trial record and consider all evidence received against the
     defendant.

                                     ***

           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. Hopkins, 67 A.3d 817, 820–21 (Pa. Super. 2013)

(cleaned up).


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      Here, Appellant first avers that the Commonwealth failed to prove that

she knew the gun was in her car. She acknowledges that, at the close of trial,

the court stated that it did not believe her boyfriend’s testimony that he put

the gun in Appellant’s car without her knowledge. See Appellant’s Brief at 17

(citing N.T. Trial, 2/12/19, at 75 (the court’s stating that there was “no

explanation to suggest that she didn’t know that [her boyfriend] put the

firearm in the console” and that it did not “believe that he did not inform

[Appellant] that he put the gun in there”)). Appellant contends, however, that

the trial court essentially rescinded this credibility determination in its Rule

1925(a) opinion. In support, she points out that, at the outset of the court’s

factual summary, it declared that, “[t]he credible evidence presented at trial

established that the following events transpired[,]” after which the court

stated that Appellant’s boyfriend “admitted that the firearm was registered to

him and that he put the firearm in [Appellant’s] vehicle without her

knowledge….” TCO at 2. According to Appellant, the court’s wording indicated

that it found her boyfriend’s testimony credible, and she insists that “the

contradiction in the trial court’s on-the-record statements and the trial court’s

opinion is impossible to reconcile.” Appellant’s Brief at 18.

      Appellant’s argument is wholly without merit. The portion of the trial

court’s opinion relied upon by Appellant was simply a recitation of the

testimony presented at trial, not a determination regarding what testimony

the court believed. Indeed, when the court addressed Appellant’s sufficiency

argument in its opinion, it unequivocally declared that she “clearly had

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knowledge that the firearm was in her vehicle.” TCO at 5. This statement,

and the court’s credibility determinations at the close of trial, demonstrate

that the court did not believe Appellant’s boyfriend’s testimony that he put the

gun in her vehicle without her knowledge.

      Appellant next avers that, even if the evidence established her

knowledge of the firearm, the Commonwealth failed to prove that she had the

intent to exercise control over it. Appellant insists that the court erroneously

found that she intended to control the firearm simply because she was driving

the car in which it was found. See Appellant’s Brief at 19. She also argues

that her “case is manifestly distinguishable on its facts from” Commonwealth

v. Cruz, 21 A.3d 1247 (Pa. Super. 2011), where we found Cruz had

constructively possessed a gun found in his car for the following reasons:

      [Cruz] was the only person found in the vehicle. The gun in
      question was found in a compartment on the passenger side of
      the vehicle. [The officer who stopped Cruz’s car] testified that
      [Cruz] was observed moving sideways toward the passenger side
      of the vehicle immediately after [the o]fficer … turned on his lights
      and siren. During questioning, [Cruz] gave [the o]fficer … five or
      six different names and multiple birthdates, thus exhibiting a
      consciousness of guilt. Under these circumstances, we think the
      trial court was justified in concluding that [Cruz] had knowledge
      of the gun, had the power and intent to exercise control of the
      gun, and, therefore, had constructive possession of the gun.

Id. at 1253.

      Here, Appellant claims that, “unlike in Cruz, Officer Early had no pre-

stop information or reason to believe there was a firearm in [Appellant’s]

vehicle; he stopped her simply because of a malfunctioning license plate.



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Moreover, the Commonwealth introduced no evidence [that Appellant] was

nervous, disruptive, or anything other than cooperative during the traffic

stop.” Appellant’s Brief at 21. Appellant also notes that “the Commonwealth

presented no evidence that [Appellant] made any movements in the direction

of the center console where the firearm in question was found.” Id. at 22.

      We find Appellant’s attempt to distinguish Cruz unavailing. As in Cruz,

Appellant was alone in the vehicle, which was registered to her. While Officer

Early had no information that a gun might be in Appellant’s vehicle prior to

stopping her, when Appellant opened the glove box, the officer observed a

loaded gun magazine in plain view. Moreover, the fact that Appellant did not

make movements towards the gun in the center console is not dispositive, as

she admitted that she knew the gun was in the center console. Appellant also

told the officer that she had been target shooting with the weapon just prior

to the traffic stop.   These facts, viewed in the light most favorable to the

Commonwealth as the verdict winner, demonstrated Appellant’s intent to

control the weapon. See Commonwealth v. Parker, 847 A.2d 745, 751 (Pa.

Super. 2004) (finding Parker constructively possessed a gun found under the

passenger seat of the vehicle he was driving where he was the sole occupant

of the car, knew the gun was in the vehicle because it was visible, admitted

the gun was his, and stated that he had carried the gun at other times).

Accordingly, Appellant’s challenge to the sufficiency of the evidence to prove

that she constructively possessed the firearm in her vehicle is meritless.

      Judgment of sentence affirmed.

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J-A18002-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/2020




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