J-S35009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JONATHAN WILLIAMS                        :
                                          :
                    Appellant             :   No. 414 EDA 2018

          Appeal from the Judgment of Sentence January 12, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0003649-2017


BEFORE:    OLSON, J., STABILE, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                               FILED JULY 12, 2019

      Appellant, Jonathan Williams, appeals from the judgment of sentence

entered on January 12, 2018. We affirm.

      The trial court ably summarized the underlying facts of this case. As

the trial court explained:

        At trial, the Commonwealth presented the testimony of
        Philadelphia Police Officer Sharrod Davis. Officer Davis
        testified that on December 10, 2016, at approximately 12:50
        a.m., he and his partner, who were assigned to the Highway
        Division, were on patrol in the vicinity of 11th and Norris
        Streets in Philadelphia.     At that time and location, he
        observed Appellant, who was driving a blue Jaguar XF,
        disregard a stop sign at 11th and Norris Streets. Officer Davis
        activated his overhead lights and stopped Appellant; three
        male passengers were in the car. Upon approaching the
        vehicle, Officer Davis observed Appellant making furtive
        movements on his right side. Officer Davis testified that none
        of the passengers made any movements. When he arrived
        at the driver’s side window, he observed in plain view a bag
        of marijuana on the right side of Appellant’s seat; he also
        smelled burnt marijuana emanating from the vehicle. At that

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       point, Officer Davis advised Appellant that the vehicle was
       going to be searched.[fn.1]

          [fn.1] Appellant was the registered owner of the vehicle.

       Officer Davis testified that, as his partner kept watch over the
       males, he searched the cabin of the vehicle. In addition to
       the seating, flooring[,] and consoles, he searched the rear,
       pull-down armrest, and opened its latch to the trunk, all of
       which yielded negative results. With Appellant’s key, he then
       opened the trunk, which was filled with clothing. There was
       a pair of pants sitting at the opening of the trunk, i.e., the
       rearmost part of the vehicle. Beneath the pants, he found a
       black plastic bag containing a firearm, two large white pill
       bottles, and a purple jar of marijuana.[fn.2] Upon seeing the
       firearm, Officer Davis yelled “gun.” Appellant did not have
       any reaction at all. Officer Davis ran Appellant’s information
       through the NCIC/PCIC database to determine if he had a
       permit to carry the firearm. Upon discerning that Appellant
       had no permit, Officer Davis placed him under arrest.

          [fn.2] Officer Davis’ testimony established that there was
          no way for one of the passengers to secrete the
          contraband in the trunk because: (a) it was located too
          far from the latch; (b) [it was] blocked by a large amount
          of clothing; [] (c) both the latch and the armrest were
          shut[;] and[, (d)] none of the passengers had made any
          movements.

       The Commonwealth next introduced by stipulation evidence
       establishing that: (a) the white pill bottles recovered from
       Appellant’s trunk contained in excess of 800 pills of Xanax, a
       schedule IV narcotic, and that “[w]hoever possessed them,
       possessed them with an intent to deliver;” (b) Appellant has
       a prior conviction for [possession of a controlled substance
       with the intent to deliver (“PWID”)], which rendered him
       ineligible to possess a firearm; (c) the handgun recovered
       from the trunk was test-fired by the Firearms Investigation
       Unit and deemed operational; (d) the marijuana recovered
       from the trunk weighed 3.323 grams; and[, (f)] the
       marijuana recovered from Appellant’s driver’s seat weighed
       6.332 grams.




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         Finally, in addition to the above evidence, the Commonwealth
         presented audio transcripts of prison phone calls made by
         Appellant, in which, among other things, Appellant discussed
         trying to have one of the passengers without a prior record
         to “take the hit for [him],” as it would only result in probation
         for the passenger. In another conversation, he used the
         thinly-veiled code word “cologne” for items he needed
         promptly removed from the trunk of his car:

                                           ...

              [Appellant:] This is what I need you to do. I need you to
              call my mom . . . tell my mom [to] get that cologne and
              sh*t out the trunk. Tell her get the cologne and all that
              out the trunk you know what [I’m] saying . . . I got a sacs
              bag in the trunk and a plastic bag in there with a top can
              in there like top paper. . . . It’s a can in the trunk . . .
              you know what I’m saying. . . . Get that out and uh . . .
              and I got some more cologne in the door and the title to
              my car is in the glove box. . . .

Trial Court Opinion, 9/24/18, at 2-4 (citations and some capitalization

omitted).

       Following a bench trial, the trial court found Appellant guilty of PWID,

persons not to possess firearms, firearms not to be carried without a license,

and carrying firearms on the public streets of Philadelphia.1 On January 12,

2018, the trial court sentenced Appellant to serve an aggregate term of

three-and-a-half to seven years in prison for his convictions.

       Appellant filed a timely notice of appeal. He lists the following claims in

his statement of questions involved:



____________________________________________


135 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and
6108, respectively.


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        [1.] The evidence was insufficient to support the verdicts for
        carrying a firearm in Philadelphia [], carrying a firearm
        without a license [], carrying firearms in public in Philadelphia
        [], and [PWID,] for the following reasons:

            [(a)] The evidence was insufficient to prove Appellant
            possessed, either actually or constructively, the firearm
            or controlled substances as they were recovered inside a
            bag in the trunk of a vehicle with three other passengers.

            [(b)] The evidence was insufficient to prove Appellant had
            conscious dominion or control over the firearm and
            controlled substances recovered from the trunk.

        [2.] The evidence was insufficient to support the    verdict for
        [PWID] when the weight of the marijuana               found in
        Appellant’s actual possession was insufficient        to prove
        Appellant possessed that marijuana with the           intent to
        distribute it.

        [3.] The evidence was against the weight of the verdict as
        the evidence presented does not sustain the verdicts of guilty
        for carrying a firearm in Philadelphia [], carrying a firearm
        without a license [], carrying firearms in public in Philadelphia
        [], and [PWID,] as the evidence does not prove beyond a
        reasonable doubt:

            [(a)]   Appellant   possessed,    either actually or
            constructively, the firearm or controlled substances
            recovered from the trunk of the vehicle.

            [(b)] Appellant had conscious dominion or control over
            the firearm or the controlled substances recovered from
            the trunk of the vehicle which contained [three] other
            people.

Appellant’s Brief at 2-3 (some capitalization omitted).

      Although Appellant lists three claims in his statement of questions

involved, he has chosen to argue only his first numbered claim on appeal.

Specifically, Appellant devotes his appellate argument to discussing his



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contention that the evidence was insufficient to support his convictions, as the

Commonwealth did not prove, beyond a reasonable doubt, that he

constructively possessed the contraband found in the trunk. See id. at 15-

28. Therefore, we will confine our discussion to this claim.

      We review Appellant's sufficiency of the evidence challenge under the

following standard:

        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. Brown, 23 A.3d 544, 559–560 (Pa. Super. 2011) (en

banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805–806 (Pa.

Super. 2008).

      “In [] possession cases, the Commonwealth may meet its burden by

showing actual, constructive, or joint constructive possession of the



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contraband.” Commonwealth v. Thompson, 428 A.2d 223, 224 (Pa. Super.

1981). Actual possession is proven “by showing . . . [that the contraband

was] found on the [defendant’s] person.” Commonwealth v. Macolino, 469

A.2d 132, 134 (Pa. 1983).        If the contraband is not discovered on the

defendant’s person, the Commonwealth may satisfy its evidentiary burden by

proving that the defendant had constructive possession of the contraband.

Id.

        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. Kinard, 95 A.3d 279, 292 (Pa. Super. 2014) (quotations

and citations omitted); see also Macolino, 469 A.2d at 134 (“[c]onstructive

possession has been defined as the ability to exercise a conscious dominion

over the illegal [contraband]: the power to control the contraband and the

intent to exercise that control”).

      With respect to the element of “knowledge” in possessory offenses, this

Court held:

        an awareness of the presence of the items which [the
        defendant] was accused of having [is] an essential element
        of his supposed intent to control. But this knowledge need
        not be proven by his admission of such knowledge, or by
        testimony of his associates that he saw these articles. The

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           defendant’s knowledge of the presence of these articles may
           be inferred from all the surrounding circumstances.

Commonwealth v. Gladden, 311 A.2d 711, 712 (Pa. Super. 1973) (en banc)

(quotations, citations, and some capitalization omitted). “Mere ‘association,’

‘suspicion’ or ‘conjecture,’ will not make out a case of constructive

possession.” Commonwealth v. Valette, 613 A.2d 548, 551 (Pa. 1992).

However, “circumstantial evidence may be used to establish constructive

possession of the [contraband].”       Commonwealth v. Johnson, 26 A.3d

1078, 1094 (Pa. 2011).

         On appeal, Appellant claims that the evidence was insufficient to prove

he constructively possessed the contraband because “the Commonwealth was

unable to show [Appellant] knew of the existence or intended to control the

[contraband].”     Appellant’s Brief at 17-18. In particular, Appellant claims,

“there were three other people [in the vehicle] who had equal access [to the

trunk], [Appellant] was compliant with the officers, he pulled the car over

immediately, the marijuana found on his seat does not match the packaging

found in the trunk, and there was nothing more to show [that Appellant] had

any knowledge of the contraband in his vehicle.” Id. at 18-19.

         The trial court thoroughly explained why Appellant’s claim on appeal

fails:

           The direct and circumstantial evidence, along with all
           reasonable inferences viewed in the light most favorable to
           the Commonwealth, establishes that Appellant constructively
           possessed the contraband in the trunk of his car. When
           Appellant’s vehicle was stopped, he was the only occupant
           who made any furtive movements. Specifically, he made


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        movements to his right side, and consistent with that
        movement, a bag of marijuana was situated in plain view on
        the right side of his seat. A search of the inside of the car
        yielded no other contraband. . . .

        Moreover, Appellant not only was the driver, he was the
        owner of the vehicle . . . [and] Appellant’s car key was the
        sole means of accessing the contraband. [True,] . . . there
        was a latch to the trunk[.          However,] the evidence
        established that it was physically impossible for the
        passengers to have secreted the contraband through the
        latch given: (a) its location in the trunk; (b) a barrier of
        clothing between the back seat console and the trunk; (c) the
        fact that none of the passengers made any movements[;
        and, (d)] both the latch and armrest were shut. [Further],
        the gun was in a bag that was buried under a pile of clothing
        in the trunk, thus indicating that it wasn’t simply placed in
        the trunk, but intentionally hidden. . . .

        [Finally,] there were the prison tapes in which Appellant
        discussed having someone else take the blame for him[] and
        also manifested his exquisite knowledge of the contents of
        his vehicle, i.e., even if one construes Appellant’s references
        to “cologne” as actual cologne. While these tapes alone were
        not remotely dispositive, they nonetheless contributed to all
        the other evidence of Appellant’s guilt. In sum, considering
        the totality of the circumstances, the evidence was more than
        sufficient to sustain Appellant’s convictions.

Trial Court Opinion, 9/24/18, at 8-9 (footnote omitted).

      We agree with the trial court’s cogent analysis and add that further

evidence of Appellant’s guilt is contained in Officer Davis’ testimony that, when

Officer Davis discovered the firearm in Appellant’s trunk, Officer Davis

“screamed” the word “gun” – and Appellant did not “have any reaction.” N.T.

Trial, 10/10/17, at 18-19.      Viewed in the light most favorable to the

Commonwealth, Appellant’s non-reaction to the fact that the police discovered

a gun in his vehicle is additional evidence demonstrating that Appellant knew


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of and had the ability to exercise a conscious dominion over the contraband

found in his trunk.

      We thus conclude that the evidence was sufficient to establish that

Appellant constructively possessed the contraband in his trunk. Appellant’s

claim on appeal fails.

      Judgment of sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/12/19




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