J-S68026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARKQUIS LATEE PETERSON

                            Appellant                 No. 101 WDA 2016


        Appeal from the Judgment of Sentence dated December 2, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0011663-2015


BEFORE: SHOGAN, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.:                       FILED NOVEMBER 22, 2016

        Appellant, Markquis Latee Peterson, appeals from the judgment of

sentence imposed after the trial court convicted him of unlawful possession

of a firearm.1 We affirm.

        On May 19, 2015, Corporal Jeffrey Luptak of the Homestead Police

Department was on patrol in the 100 block of 16th Avenue in Homestead

Borough, Allegheny County, when he noticed Appellant walking down the

street. N.T., 9/28/15, at 50-52, 62. Corporal Luptak knew that an arrest

warrant had been issued for Appellant due to a probation violation on an



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 6105.
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unrelated case. Id. at 52. 2 Corporal Luptak drove by Appellant and radioed

other units that he had observed Appellant.           Id.   Corporal Luptak then

exited his police vehicle and “called for” Appellant, who immediately ran

across the street and into the front yard of an abandoned and boarded-up

residence. Id. at 53, 57, 74. Corporal Luptak chased Appellant, who ran

along the right side of the yard and behind a bush. Id. at 57, 72. A chain

link fence separated the residence from the neighboring property. Id. As

Appellant disappeared behind the bush, Corporal Luptak heard a sound that

he described as similar to an “aluminum bat against the fence, that metallic

type sound on the fence.” Id. at 58. Appellant then emerged from behind

the bush and went to the front porch of the residence. Id. At that time,

Appellant was taken into custody without further incident. Id.

        Shortly after Appellant’s arrest, Corporal Luptak went to the area

where he had heard the “metallic type sound” and recovered a firearm from

behind the bush near the metal fence where Appellant had attempted to

hide.   N.T., 9/28/15, at 58-60, 65, 74.         The firearm had no rust and was

dry, fully operational, loaded, and leaning against the chain link fence. Id.

at 45, 60, 74; Commonwealth’s Exhibit 1.            According to Corporal Luptak,



____________________________________________


2
  There is no dispute that based on this warrant, Appellant was a fugitive at
the time of his arrest. See N.T., 9/28/15, at 52; Appellant’s Brief at 7.
Appellant does not contest the authenticity of this warrant or his fugitive
status. See Appellant’s Brief at 4, 7.



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there “[d]idn’t seem to be any attempt to conceal [the firearm] in any way.”

Id. at 74.

      Appellant was charged with unlawful possession of a firearm, and

following a bench trial, was sentenced to 11½ to 23 months’ incarceration.

Appellant filed this appeal, in which he presents the following issue for our

review:

      DID THE COMMONWEALTH PRESENT INSUFFICIENT EVIDENCE
      TO PROVE THAT [APPELLANT] HAD ACTUAL, OR CONSTRUCTIVE
      POSSESSION OF THE FIREARM FOUND ON THE GROUND ON
      ABANDONED PROPERTY?

Appellant’s Brief at 4.

      The standard this Court applies in reviewing the sufficiency of the

evidence is whether, viewing all of the evidence admitted at trial in a 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 implementing this test, this Court may not weigh the evidence

and substitute its judgment for that of the fact-finder. Commonwealth v.

Rahman, 75 A.3d 497, 501 (Pa. Super. 2013). “[W]e note that the facts

and circumstances established by the Commonwealth need not preclude

every possibility of innocence.”   Commonwealth v. DiStefano, 782 A.2d

574, 582 (Pa. Super. 2001). 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



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from the combined circumstances. Commonwealth v. Lehman, 820 A.2d

766, 772 (Pa. Super. 2003). “The Commonwealth may sustain its burden of

proof or 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.” Id. “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. Schoff, 911

A.2d 147, 159 (Pa. Super. 2006).

      Appellant was convicted pursuant to 18 Pa.C.S. § 6105:

      (a) Offense defined.--

            (1) 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.

Appellant qualified as a person not permitted to possess firearms because

his conduct met the following criteria in subsection (c) of Section 6105:

      (1) A person who is a fugitive from justice. This paragraph does
      not apply to an individual whose fugitive status is based upon a
      nonmoving or moving summary offense under Title 75 (relating
      to vehicles).

      When, as here, contraband (in this case the firearm) is not found on

the defendant’s person, the Commonwealth must establish “constructive


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possession” — that is, the power to control the contraband and the intent to

exercise that control.   Commonwealth v. Johnson, 26 A.3d 1078, 1093

(Pa. 2011).     Constructive possession may be proven by circumstantial

evidence.    See Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa.

1983) (circumstantial evidence may be used to establish a defendant’s

possession of drugs or contraband).       The purpose of the constructive

possession doctrine is to expand the scope of possession statutes to

encompass those cases where actual possession at the time of arrest cannot

be shown, but the inference that there has been actual possession

nevertheless is strong. Commonwealth v. Carroll, 507 A.2d 819, 821 (Pa.

1986).    Constructive possession “may be inferred from the totality of the

circumstances.”    Commonwealth v. Hanson, 82 A.3d 1023, 1029 (Pa.

2013).

     Instantly, the Commonwealth’s theory of constructive possession was

supported by the uncontradicted testimony of the only witness, Corporal

Luptak, who the trial court, as fact-finder, found credible.     Trial Court

Opinion, 4/19/16, at 5.    Specifically, Corporal Luptak’s credible testimony

established that he observed Appellant walking down the street in

Homestead Borough and approached Appellant to address an existing

warrant. N.T., 9/28/15, at 50-52, 62. As soon as Corporal Luptak called to

him, Appellant fled to an area enclosed by a chain link fence. Id. at 53, 57,

72, 74.     As Appellant attempted to hide behind a bush, Corporal Luptak


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heard a sound similar to metal scraping against metal in the area of the

bush. Id. at 58. Shortly thereafter, in the immediate area, Appellant was

taken into custody. Id. Then Corporal Luptak found the firearm at issue in

the area behind the bush near the metal fence where the corporal had heard

the scraping sound. Id. at 58-60, 65, 74.

      Relying upon Commonwealth v. Ford, 715 A.2d 1141, 1144 (Pa.

Super. 1998) (the fact-finder can consider flight indicative of a defendant’s

consciousness of guilt), the trial court “believe[d] that [Appellant’s] flight

from the scene was probative of the fact that [he] wanted to discard the

loaded firearm.”     Trial Court Opinion, 4/19/16, at 6.   The trial court also

found that Appellant’s submission to an arrest was consistent with the fact

that he had discarded the firearm immediately prior to that submission. Id.

The porch area where Appellant was arrested “was in close proximity to

where the firearm was recovered.”        Id.   The trial court, as fact-finder,

further explained:

      The firearm was recovered from the precise area that [Appellant]
      occupied just prior to his arrest. The metallic sound was heard
      by Corporal Luptak at the time [Appellant] ran to that area. This
      Court also notes that the residence was vacant and that the
      firearm's condition was consistent with the firearm being
      recently left in the area where it was recovered.

Id. Accordingly, the trial court concluded that the Appellant possessed the

firearm in question.

      We conclude that this record contains sufficient evidence to support

the trial court’s determination, beyond a reasonable doubt, that Appellant, a

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fugitive from justice, illegally possessed the firearm, and therefore violated

18 Pa.C.S. § 6105(a).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/22/2016




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