J-S06011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DARRYL JOHNSON,

                            Appellant                 No. 1564 EDA 2014


         Appeal from the Judgment of Sentence Entered April 24, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0000835-2013


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED FEBRUARY 02, 2015

        Appellant, Darryl Johnson, appeals from the judgment of sentence of

an aggregate term of 54 to 120 months’ incarceration, followed by 10 years’

probation, imposed after he was convicted of persons not to possess a

firearm, carrying a firearm without a license, and conspiracy to commit

robbery. Appellant challenges the sufficiency of the evidence to sustain his

convictions. After careful review, we affirm.

        Appellant and his co-defendant, Phillip Freeman, were arrested on

October 19, 2012. Appellant was charged with the above-stated offenses,




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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and he and Freeman proceeded to a jury trial on February 4, 2014.1            The

trial court summarized the facts established at trial as follows:

              On October 19, 2012, at 2:00 A.M., David Davis
       (hereinafter referred to as “Mr. Davis” or “Victim”) was returning
       to his residence after leaving the Harrah’s Casino in the City of
       Chester. Mr. Davis was coming home via a bus that dropped
       him off at the corner of Third and Kerlin Streets, City of Chester.
       After he exited the bus, Mr. Davis proceeded north on Kerlin
       Street. Mr. Davis was enroute [sic] to West Tenth Street. As
       Mr. Davis was proceeding north on Kerlin Street, a silver Sports
       Utility Vehicle (hereinafter referred to as “SUV”) turned onto
       Kerlin Street from Fifth Street. While Mr. Davis crossed this
       intersection, this motor vehicle stopped, and one of the
       individuals inside the SUV called out to him. Mr. Davis turned to
       face the vehicle and was instructed by the unknown voice from
       within the motor vehicle to come over to the silver SUV. Mr.
       Davis informed the occupants of the motor vehicle that he did
       not have time to come over to the silver SUV, and that at that
       early hour of the morning he did not wish to speak to anyone.
       The driver then brandished a firearm and held it outside the
       window[,] forcing Mr. Davis at gunpoint to approach the motor
       vehicle. During this initial interaction, Mr. Davis was about
       fifteen (15) to twenty (20) feet from the SUV.

              As Mr. Davis approached the motor vehicle, he observed a
       young black male with a medium complexion sitting in the
       driver’s seat of the silver SUV continuing to aim a firearm at him.
       Mr. Davis determined that the individual in the driver’s seat of
       the motor vehicle was the same person who had previously
       demanded he come over to the SUV. Mr. Davis believed the
       driver was in some way intoxicated based upon a chemical odor
       emanating from him[,] and [based upon] the driver’s demeanor.
       At trial, Mr. Davis identified the gun wielding driver of the silver
       SUV as co-Defendant Freeman.


____________________________________________


1
  Appellant waived his right to a jury trial for the charge of persons not to
possess a firearm.     The nonjury trial for that charge was conducted
contemporaneously with Appellant’s jury trial on the remaining charges.



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           Mr. Davis also observed an individual in the front
     passenger seat of the motor vehicle. The passenger of the silver
     SUV was also a young black male who was wearing a red
     baseball cap, dressed in dark clothing, and had a beard. Mr.
     Davis at trial identified this occupant of the motor vehicle as
     [Appellant]. Mr. Davis advised the court that [Appellant] never
     spoke during the course of the robbery. There were two (2)
     additional voices23 coming from the backseat of the silver SUV[.]
     Mr. Davis described these two (2) voices as sounding as though
     they were the orchestrators of the robbery.
        23
          At the time of their arrest, [Appellant and Freeman]
        were the only two (2) individuals inside the motor vehicle.

        Mr. Davis quickly surrendered forty-one dollars ($41.00) to
     the driver of the motor vehicle, co-Defendant Freeman. Mr.
     Davis testified that the denomination of the forty-one dollars
     ($41.00) was two (2) twenty dollar ($20.00) bills and a single
     one dollar ($1.00) bill. On Mr. Davis[’] turning over his cash to
     the driver, the silver SUV pulled away and traveled south on
     Kerlin Street. Mr. Davis continued north on Kerlin Street and
     contacted the police.

            Responding to his emergency call, Officer Kyle Battinieri
     arrived and met with Mr. Davis somewhere between Seventh
     and Ninth Streets. As Mr. Davis was explaining the robbery to
     Officer Battinieri, the officer was dispatched to another incident.
     Officer Battinieri instructed Mr. Davis to proceed northbound to
     Ninth and Kerlin Streets to a Sunoco gas station where he would
     rendezvous with him. Shortly after this first interaction, Officer
     Battinieri again met with Mr. Davis at the nearby Sunoco station,
     [at] Ninth and Kerlin Streets. Officer William Dowd soon also
     arrived. While Mr. Davis was explaining the robbery to the
     responding officers, Officer Dowd pointed to a vehicle in the gas
     station parking lot that matched the description of the involved
     motor vehicle Mr. Davis was then relaying to the two (2) officers.
     Mr. Davis confirmed that the vehicle observed by Officer Dowd
     was the SUV used during the robbery. Mr. Davis then saw an
     individual walking to the vehicle that was dressed in a similar
     manner to the firearm brandishing driver.           This individual
     entered the SUV’s driver [side] door.         Officer Dowd in his
     marked police car began to drive over to the silver SUV. When
     Officer Dowd approached this vehicle, it left the gas station,
     prompting Officer Dowd to proceed after the SUV.


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           Officer Dowd pursued the motor vehicle and conducted a
     stop at Tenth and Butler Streets.           On Officer Dowd[’s]
     approaching from the rear [] driver’s side of the silver SUV, he
     observed the front passenger side door open and the passenger
     begin to exit the vehicle. With his firearm drawn[,] Officer Dowd
     ordered the passenger to reenter the motor vehicle.           The
     passenger followed this instruction and returned within the SUV.
     At trial, Officer Dowd identified the driver as co-Defendant
     Freeman and the sole passenger as [Appellant]. After additional
     police personnel arrived on the scene, Officer Mark Barag
     instructed [Appellant] to step out of the motor vehicle. A pat-
     down or frisk of [Appellant] was done. There were no weapons
     found on [Appellant’s] person.

           The driver of the vehicle, co-Defendant Freeman,
     necessitated police removal from the silver SUV due to his failure
     to comply with the officer[s’] directives of exiting the motor
     vehicle and making visible to the officers his hands.          Co-
     Defendant Freeman was unable to stand on his own when he
     was finally outside the silver SUV. Because of co-Defendant
     Freeman[’s] constantly moving and continuing to hide his hands
     from officers’ view, a canine unit was released to subdue him.
     Eventually, with the help of the police canine the officers were
     able to control co-Defendant Freeman.         A pat-down was
     conducted of the co-Defendant that did not reveal any firearms.
     At no point during the struggle with co-Defendant Freeman did
     Officer Barag observe co-Defendant Freeman remove a weapon
     and/or slide anything under the vehicle to the passenger side of
     the SUV.

           After helping secure the co-Defendant, Officer Barag
     returned to the passenger side of the vehicle and proceeded to
     look underneath the silver SUV. It was then that he observed a
     firearm on the pavement located directly beneath the passenger
     seat, about six (6) inches to one (1) foot underneath the motor
     vehicle on the front passenger side. Officer Barag informed
     Officer Johnathan Ross of the firearm. Officer Ross retrieved the
     firearm from under the motor vehicle.           After securing the
     firearm, Officer Ross determined that the handgun was loaded
     and a bullet was in the chamber of the firearm. Officer Ross
     found the firearm completely dry, despite it having been raining
     previous[ly] that night[,] as well as at the time of the stop.

          [Appellant and Freeman] were arrested and subsequently
     processed at the Chester police station by … Officer Roosevelt

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      Turner. The property that was found on [Appellant’s] person
      during a search at the police station included: A baseball cap;
      [a] blue coat; [s]hoelaces; [a] belt[;] [f]orty-six dollars ($46.00)
      in cash; and [t]welve cents (12¢) in change. The Chester Police
      Department Property Record recounted the denomination of the
      currency retrieved from [Appellant] as two (2) twenty dollar
      ($20.00) bills and six (6) one dollar ($1.00) bills. Officer Turner
      additionally recovered three (3) bullets from [Appellant’s] coat
      pocket.

             When Officer Turner next approached co-Defendant
      Freeman to conduct his custodial search, Officer Turner saw
      what on first view appeared to be “trash” in the immediate
      vicinity of where co-Defendant Freeman was sitting. On closer
      inspection, this “trash” was a torn-up box of ammunition. The
      box was for twenty-two (.22) caliber bullets. Officer Turner also
      noticed bullets on the floor surrounding co-Defendant Freeman
      and in a trashcan located near the co-Defendant. These unspent
      projectiles matched the bullets seized from co-Defendant
      Freeman’s person. These bullets were as well identical to the
      bullets found on [Appellant] and those within the firearm
      recovered at the scene of [Appellant’s and Freeman’s] arrests.

Trial Court Opinion, 7/18/14, at 8-12 (citations to the record omitted).

      Appellant stipulated at trial that he did not have a license to carry a

firearm, and that he is a person who is prohibited from possessing a firearm

under 18 Pa.C.S. § 6105. Based on these stipulations and the above-stated

facts, Appellant was convicted of possessing a firearm without a license,

persons not to possess a firearm, and criminal conspiracy to commit

robbery. On April 24, 2014, Appellant was sentenced to a term of 54 to 120

months’ incarceration for persons not to possess a firearm, a concurrent

term of 42 to 84 months’ incarceration for possessing a firearm without a

license, and a consecutive term of 10 years’ probation for conspiracy to

commit robbery.



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      Appellant filed a timely notice of appeal, as well as a timely Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.        Herein, he

presents two questions for our review:

      1) Whether the evidence was insufficient to sustain the
      conviction for the charges of persons not to possess firearms and
      firearms not to be carried without a license since the
      Commonwealth failed to prove, beyond a reasonable doubt, that
      [Appellant] actually or constructively possessed the firearm at
      issue herein[?]

      2) Whether the evidence was insufficient to sustain the
      conviction for conspiracy to [commit] robbery since the
      Commonwealth failed to prove, beyond a reasonable doubt, that
      [Appellant], with the intent of promoting or facilitating the
      commission of a crime, agreed with other persons to commit a
      robbery or took an overt act in furtherance of that crime[?]

Appellant’s Brief at 5 (unnecessary italicization omitted).

      To begin, we note our standard of review of a challenge to the

sufficiency of the evidence:
            In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

      Appellant first challenges the sufficiency of the evidence to sustain his

two firearm offenses, arguing that the Commonwealth failed to prove that he

actually or constructively possessed a gun. Namely, Appellant argues that it

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was Freeman who possessed the gun during the robbery, and when the SUV

was stopped by police, Freeman struggled with the officers “on the ground

near the vehicle[,]” making it more likely that he discarded the firearm

under the vehicle. Appellant’s Brief at 15-16.

     We agree with Appellant that the evidence did not establish that he

actually possessed the firearm; however, we disagree with his assertion that

the evidence failed to prove he constructively possessed the gun discovered

under the SUV when it was stopped by police.

     Illegal possession of a firearm may be shown by constructive
     possession. Commonwealth v. Parker, 847 A.2d 745, 750 (Pa.
     Super. 2004).

         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.” (citation
         omitted). We subsequently defined “conscious dominion”
         as “the power to control the contraband and the intent to
         exercise that control.” (citation omitted). To aid
         application, we have held that constructive possession may
         be established by the totality of the circumstances.

     Id., quoting Commonwealth v. Thompson, 779 A.2d 1195,
     1199 (Pa. Super. 2001), appeal denied, 567 Pa. 760, 790 A.2d
     1016 (2001).

Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011).

     Here, there was sufficient evidence to prove, beyond a reasonable

doubt,   that   Appellant   constructively   possessed   the   weapon   found

underneath the vehicle.     Specifically, when the vehicle was stopped by

police, Appellant opened the door and partially exited the SUV, while

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Freeman did not exit the vehicle until the officers were present outside.

Additionally, while Freeman struggled with the officers, the police did not see

him discard anything underneath the vehicle. The gun was ultimately found

on the ground underneath the front passenger seat of the SUV where

Appellant had been sitting, and near to where Appellant had partially exited

the vehicle. The gun was dry, despite that it was raining, indicating that it

was placed there during the stop of the SUV. Finally, police discovered in

Appellant’s pocket three bullets matching those found loaded in the gun.

Based on the totality of these circumstances, it was reasonable for the jury

to conclude that Appellant had the power and intent to control the gun, and

that he in fact did so when he discarded it underneath the vehicle during the

traffic stop.   Consequently, his convictions for persons not to possess a

firearm and possessing a firearm without a license are supported by

sufficient evidence.

      Appellant next challenges the sufficiency of the evidence to sustain his

conspiracy conviction.

      To convict of criminal conspiracy, the evidence must establish
      that the defendant entered an agreement with another person to
      commit or aid in the commission of an unlawful act, that the
      conspirators acted with a shared criminal intent, and that an
      overt act was done in furtherance of the conspiracy. 18
      Pa.C.S.A. § 903; Commonwealth v. Johnson, 719 A.2d 778,
      784 (Pa. Super. 1998), allocatur denied, 559 Pa. 689, 739 A.2d
      1056 (1999). “An explicit or formal agreement to commit crimes
      can seldom, if ever, be proved and it need not be, for proof of a
      criminal partnership is almost invariably extracted from the
      circumstances that attend its activities.” Commonwealth v.
      Swerdlow, 431 Pa. Super. 453, 636 A.2d 1173, 1177 (1994).


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     “An agreement sufficient to establish a conspiracy can be
     inferred from a variety of circumstances including, but not
     limited to, the relation between the parties, knowledge of and
     participation in the crime, and the circumstances and conduct of
     the parties surrounding the criminal episode.” Commonwealth
     v. Rivera, 432 Pa. Super. 88, 637 A.2d 997, 998 (1994) (en
     banc).

Commonwealth v. Geiger, 944 A.2d 85, 90 (Pa. Super. 2008) (emphasis

added).

     In this case, Appellant avers that the Commonwealth failed to prove

that he entered into an agreement with Freeman to rob the victim.         He

maintains that, instead, the evidence established only his mere presence in

the vehicle when Freeman committed the robbery, which alone is insufficient

to support his conspiracy conviction. See Appellant’s Brief at 18-19 (citing,

inter alia, Commonwealth v. Goodyear, 344 A.2d 672 (Pa. Super. 1975)

(finding that minor victim’s testimony that Goodyear’s co-defendant offered

the victim marijuana while Goodyear was merely present was not enough to

support a conspiracy conviction); Commonwealth v. Mercado, 617 A.2d

342 (Pa. Super. 1992) (holding that Mercado’s mere presence in a house

when a controlled drug transaction was conducted, and when the house was

later searched and contraband was discovered, was not sufficient to prove

that he conspired to participate in the drug sale)).      Indeed, Appellant

contends that “[h]e was essentially trapped in the wrong vehicle at the

wrong time, with an armed assailant who was apparently high on [drugs].”

Id. at 20. He argues that his mere presence, even combined with the fact




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“he remained in the vehicle after the crime was completed[,] does not

indicate that he formed an agreement prior to the crime.” Id.

      Appellant disregards the totality of the other circumstances proven by

the Commonwealth, which make this case distinguishable from the ‘mere

presence’ cases of Goodyear and Mercado.          In addition to proving that

Appellant was present when Freeman robbed the victim at gunpoint, and

that he remained with Freeman after the crime when the other occupants of

Freeman’s SUV dispersed (thus belying Appellant’s claim that he was

‘trapped’ in the vehicle) , the Commonwealth also proved that: (1) Appellant

left with Freeman when the police approached the SUV at the gas station;

(2) when Freeman’s vehicle was ultimately stopped by the officers, Appellant

attempted to conceal the weapon used in the robbery by discarding it under

the vehicle; (3) at the time of his arrest, Appellant possessed several bullets

matching those found in the gun; and (4) Appellant possessed cash in the

same denominations as that taken from the victim, while Freeman had no

cash in his possession.

      Based on the totality of these circumstances, it was reasonable for the

jury to conclude, beyond a reasonable doubt, that Appellant conspired with

Freeman to rob the victim. While Appellant also avers that his conspiracy

conviction cannot stand because he did not commit an overt act in

furtherance of the robbery, it is obvious that Freeman did so by demanding

money from the victim at gun-point. Accordingly, the overt act element of

Appellant’s conspiracy conviction was also satisfied. See Commonwealth

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v. McCall, 911 A.2d 992, 996 (Pa. Super. 2006) (stating that the “overt act

need not be committed by the defendant; it need only be committed by a

co-conspirator”).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2015




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