J-S05022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                            IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

KEVIN DOUGLAS MCGEE,

                            Appellant                         No. 73 MDA 2015


          Appeal from the Judgment of Sentence November 24, 2014
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0003738-2013


BEFORE: BENDER, P.J.E., SHOGAN, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                                 FILED JANUARY 29, 2016

       Kevin Douglas McGee (“Appellant”) appeals from the judgment of

sentence imposed on November 24, 2014, after a jury found him guilty of

multiple drug and firearm offenses. We affirm.

       The case arises out of a shooting incident in Reading, Pennsylvania, at

2:40 a.m. on February 21, 2013.                In response to a report of shots fired,

Reading Police Officer Christopher Dinger proceeded to the Queen City

Diner. There, witnesses told the officer about a black man with dreadlocks

in a grey hoodie who ran into the diner claiming he had been shot, then left

the diner and drove off in a black SUV. Officer Dinger was then dispatched

to Reading Hospital where a man fitting the victim’s description was being
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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treated for gunshot wounds.         Officer Dinger identified the victim as

Appellant, who informed the officer that he had been shot near Topher’s bar

in Reading, and that his address was 536 Fern Avenue, Reading,

Pennsylvania.    Officer Dinger and several other officers proceeded to 536

Fern Avenue.     While checking the area around the house, Officer Dinger

observed a white Lincoln Navigator parked in an alley behind the residence

and a black Cadillac Escalade parked inside an open garage.           The officer

observed what he believed to be blood on the console of the Navigator. He

also observed a flat tire on the Escalade and bullet holes in the front driver’s

side panels. Inside the Escalade, Officer Dinger saw a black book bag on the

floor of the passenger side front seat. Both vehicles were towed to a local

garage while the police applied for a search warrant.

      Inside    536   Fern   Avenue,   Reading   Police   Officer   Kyle   Kunkle

encountered co-defendants Vanessa Moore and Erica Henderson, Ms.

Henderson’s two young daughters, and Veronica Ortega.          He also found a

loaded .380 Bersa handgun on the living room sofa that was registered to

Ms. Moore. Ms. Moore told Officer Kunkle that Appellant used the residence

for mail but he had not lived there for a long time. On the first floor, the

police found mail addressed to Appellant at 536 Fern Avenue, and Criminal

Investigator Michael Perkins found a Bersa gun box in the kitchen pantry. In

the basement, the police found, inter alia, various types of ammunition in a

refrigerator, a safe containing drugs and pills, and a plastic tote marked


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“Kev’s sneakers.”   Detective Perkins found Appellant’s 2012 Pennsylvania

identification card with an address of 536 Fern Avenue in a man’s wallet.

Criminal Investigator Joseph Snell searched the second floor front bedroom,

where he found a photograph of Appellant on a nightstand, men’s socks and

ammunition in the nightstand drawer, men’s clothing, men’s body wash in

the shower, and a loaded Winchester twelve gauge shotgun and handcuffs in

a silver gun case under the bed.

      Investigator Snell assisted in executing the search warrant for the

Escalade, which revealed documents addressed to Appellant at 536 Fern

Avenue. Additionally, Investigator Snell recovered a black book bag, which

he admittedly opened, observing inside what he believed to be drugs and

drug paraphernalia. He returned the bag to the vehicle until an additional

search warrant could be secured.     With a second search warrant, Criminal

Investigator Kevin Haser recovered the black book bag, which contained

multiple baggies of crack cocaine and powder cocaine, four handguns, a

scale, spoons, plates, razor blades, “Black Molly” pills, empty blue and green

baggies, and ammunition.

      The Navigator was registered to Ms. Moore, and the Escalade was

registered to Ms. Moore’s mother, Rosalie Moore.      None of the guns was

registered to Appellant, and fingerprints recovered from the black bag and

its contents belonged to Ms. Henderson. Appellant was ineligible to possess

a firearm due to a prior felony conviction.


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      Following his jury trial and conviction, the trial court sentenced

Appellant to incarceration for an aggregate term of ten to twenty years,

followed by ten years of probation. Defense counsel withdrew with the trial

court’s permission, and appellate counsel was appointed.        This appeal

followed. Appellant and the trial court have complied with Pa.R.A.P. 1925.

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

      1.    Whether the trial court erred in excusing sua sponte Juror
            #1 prior to deliberations over the objection of counsel and
            without good cause?

      2.    Whether there was insufficient evidence to support the
            jury’s verdict as the Commonwealth failed to establish
            Appellant’s intent to exercise control over the drugs and
            guns found inside the black book bag located inside the
            black Cadillac Escalade?

      3.    Whether the[re] was insufficient evidence to support the
            jury’s verdict as the Commonwealth failed to establish
            Appellant’s knowledge that he was aware there were drugs
            and guns inside the black book bag located inside the black
            Cadillac Escalade?

      4.    Whether there was insufficient evidence to support the
            jury’s verdict as to the gun charges pertaining to firearms
            located inside 536 Fern Avenue as the Commonwealth
            failed to establish Appellant’s intent to exercise control
            over the firearms?

      5.    Whether there was insufficient evidence to support the
            jury’s verdict as to the gun charges pertaining to firearms
            located inside 536 Fern Avenue as the Commonwealth
            failed to establish Appellant’s knowledge that firearms
            were located inside the residence?

Appellant’s Brief at 4.




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      Appellant first challenges the trial court’s decision to remove Juror

Number One and replace her with an alternate juror. Appellant’s Brief at 9.

“Pursuant to Pa.R.Crim.P. [645(a)], a trial court may seat an alternate juror

whenever a principal juror becomes unable or disqualified to perform his

duties.”   Commonwealth v. Williams, 720 A.2d 679, 684 (Pa. 1998).

“This discretion exists even after the jury has been impaneled and the juror

sworn.” Commonwealth v. Carter, 643 A.2d 61, 70 (Pa. 1994) (citation

omitted). The trial court’s discretion in this regard must be based upon a

sufficient record of competent evidence to sustain removal.           Id. at 70

(citation omitted). The trial court’s decision to discharge a juror will not be

reversed absent a palpable abuse of discretion.          Commonwealth v.

Treiber, 874 A.2d 26, 31 (Pa. 2005).

      Appellant’s remaining challenges are to the sufficiency of the evidence

sustaining his drug and firearm convictions.    Specifically, Appellant argues

that the Commonwealth failed to establish his intent to exercise control over

the drugs and firearms in the book bag or his knowledge of the firearms in

the book bag and inside 536 Fern Avenue. Appellant’s Brief at 10.

            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


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            evidence presented. In doing so, the trier of fact is
            free to believe all, part, or none of the evidence.

      Commonwealth v. Newton, 994 A.2d 1127, 1131
      (Pa.Super.2010), appeal denied, 608 Pa. 630, 8 A.3d 898
      (2010), quoting Commonwealth v. Pruitt, 597 Pa. 307, 318,
      951 A.2d 307, 313 (2008) (citations omitted). 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.
      Commonwealth v. Markman, 591 Pa. 249, 270, 916 A.2d 586,
      598 (2007).

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

      Appellant was not in physical possession of the contraband; therefore,

the Commonwealth was required to establish that he had constructive

possession of the seized items 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 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, ––– Pa. ––––, 63 A.3d 1243 (2013) (internal
      quotation marks and citation omitted). Additionally, it is possible
      for two people to have joint constructive possession of an item of
      contraband. Commonwealth v. Sanes, 955 A.2d 369, 373
      (Pa.Super.2008), appeal denied, 601 Pa. 696, 972 A.2d 521
      (2009).

Hopkins, 67 A.3d at 820–821.




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      Upon review of the parties’ briefs, the certified record, and the

applicable law, we conclude that the trial court adequately and correctly

disposed of Appellant’s issues in its Pa.R.A.P. 1925(a) opinion. Therein, the

trial court determined that excusing Juror Number One was not an abuse of

its discretion and that the evidence was sufficient to sustain Appellant’s

convictions for possession of the drugs and firearms in the book bag and the

firearms in the residence. Trial Court Opinion, 2/26/15, at 12, 18, 19, 25,

26. We find support in the record for the trial court’s findings of fact and no

error in its conclusions of law.     Therefore, we affirm the judgment of

sentence on the basis of the trial court’s February 26, 2015 Rule 1925(a)

opinion. The parties are directed to attach a copy of the trial court’s opinion

to this memorandum in the event of future proceedings.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/29/2016




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