J-S90023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

WILLIAM DOUGHLAS

                        Appellant                    No. 697 EDA 2016


      Appeal from the Judgment of Sentence Dated February 22, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0003070-2015


BEFORE: OTT, J., SOLANO, J., and JENKINS, J.

MEMORANDUM BY SOLANO, J.:                      FILED DECEMBER 05, 2016

      Appellant, William Doughlas, appeals from the judgment of sentence

imposed by the trial court after it convicted Appellant of violating three

sections of the Uniform Firearms Act — 18 Pa.C.S. §§ 6105 (persons not to

possess firearms), 6106 (firearms not to be carried without a license), and

6108 (carrying firearms on the public streets of Philadelphia) — for

possessing a firearm under the seat of a vehicle in which he was riding as a

passenger. We affirm.

      The trial court summarized the procedural and factual history of this

case as follows:

            On October 14, 2015, Appellant unsuccessfully litigated a
      Motion to Suppress Physical Evidence.        On the same date,
      following a bench trial before this Court, Appellant was convicted
      of Persons Not to Possess Firearms, Firearms Not to Be Carried
      without a License, and Carrying Firearms on Public Streets in

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     Philadelphia. On February 22, 2016, upon review of the pre-
     sentence investigation report and consideration of all relevant
     facts and circumstances of this case, this Court sentenced
     Appellant to three (3) to seven (7) years’ incarceration for
     Persons Not to Possess Firearms, and imposed no further penalty
     on his remaining convictions. Appellant filed a timely Motion for
     Arrest of Judgment and/or New Trial, which this Court denied on
     February 29, 2016.

                                 *    *    *

            At the suppression hearing, Appellant contended that the
     police lacked probable cause to search the vehicle in which he
     was a passenger. The Commonwealth presented the testimony
     of Philadelphia Police Officer Vincent Visco. Officer Visco testified
     that on March 7, 2015, at approximately 10:00 p.m., he was on
     patrol with his partner, Officer Martin, in the vicinity of 2100
     North Marsden Street, a high crime area in Philadelphia. At said
     time and location, Officer Visco observed a red Ford Expedition
     driving eastbound on Diamond Street without any rear lights
     illuminated. Given that it was nighttime, the officers activated
     their lights and sirens to stop the vehicle, which came to a stop
     after traveling four (4) car lengths. As Officer Visco approached
     the passenger side of the vehicle with his flash light illuminated,
     Appellant quickly leaned toward the floor and then immediately
     sat back upward with nothing in his hands.            Officer Visco
     testified that he had encountered that precise type of furtive
     movement dozens of times before, and it often yielded a firearm
     on the floor or under the seat.         Additionally, he observed
     Appellant breathing heavily and shaking uncontrollably; when he
     asked him for identification, Appellant began stuttering and was
     unable to produce same. At that time, fearing for his and his
     partner’s safety, Officer Visco asked Appellant to step outside
     the vehicle, and placed him in the back of his squad car without
     handcuffs. He returned to the vehicle, shone his flashlight under
     the passenger seat, and observed a black semiautomatic
     handgun.

           Officer Visco testified that the driver of the vehicle was
     asked for his license, registration and insurance paperwork; in
     return, he produced a non-driver’s license ID card and a vehicle
     rental agreement. Officer Visco ran the ID through his computer
     (MDT), which revealed that the male was, in fact, an unlicensed
     driver. Accordingly, he radioed for a “Live Stop” of the vehicle.

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      Significantly, neither the driver nor Appellant was listed in the
      rental agreement as an authorized user.

            Appellant did not testify at the suppression hearing; nor
      did he proffer any information establishing his connection to, let
      alone authorization to use, the vehicle at issue. Based on the
      foregoing evidence, this Court denied Appellant’s motion to
      suppress, principally on the basis that he had no reasonable
      expectation of privacy in the area searched.

             At the ensuing bench trial, after moving for incorporation
      of the above into evidence, the Commonwealth briefly re-called
      Officer Visco to the stand. He testified that when he and his
      partner activated their emergency lights, they used their
      spotlight to illuminate the stopped vehicle.        Officer Visco
      additionally testified that the driver of the vehicle remained
      seated and did not move at any point; further, the vehicle’s front
      seats were “captain’s seats” separated by a large center console.

            The Commonwealth thereafter introduced a certificate of
      non-licensure establishing that Appellant did not have a license
      to possess a firearm.      Finally, by way of stipulation, the
      Commonwealth established that Appellant was ineligible to
      possess a firearm, having previously been convicted of a felony.

Trial Ct. Op., 7/5/16, at 1-4 (footnotes and citations omitted).      The trial

court concluded that “the evidence plainly was sufficient to sustain

[Appellant’s] convictions,” and expressly found “the testimony of Officer

Visco entirely credible.” Id. at 10-11.

      The trial court rendered its guilty verdicts based on the foregoing facts

of record, and sentenced Appellant to an aggregate three to seven years’

incarceration.   Appellant filed a timely post-sentence motion challenging,

among other issues, the weight of the evidence, which the trial court denied.

This timely appeal followed.

      Appellant presents two issues for appellate review, stated as follows:

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      1. [The e]vidence presented at trial was insufficient as a matter
      of law to find [Appellant] guilty beyond a reasonable doubt.

      2. The verdict rendered was against the weight of the evidence
      presented at trial.

Appellant’s Brief at 7.

      The basis for both of Appellant’s evidentiary claims is that the trial

court “had to speculate whether Appellant constructively possessed the

firearm and could not have been convinced of guilt beyond a reasonable

doubt based on the trial record.” Id. at 11.

      Appellant was convicted of violating the following three provisions of

Pennsylvania’s Uniform Firearms Act:

      § 6105. Persons not to possess, use, manufacture,
      control, sell or transfer firearms

      (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.

18 Pa.C.S. § 6105(a)(1).1

      § 6106. Firearms not to be carried without a license

      (a) Offense defined.—

      (1) Except as provided in paragraph (2), any person who carries
      a firearm in any vehicle or any person who carries a firearm


1
   The parties stipulated that Appellant was previously convicted of a felony
listed in Section 6105(b), which made him ineligible to possess a firearm
under Section 6105(a)(1). N.T., 10/14/15, at 78-79.
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     concealed on or about his person, except in his place of abode or
     fixed place of business, without a valid and lawfully issued
     license under this chapter commits a felony of the third degree.

18 Pa.C.S. § 6106(a)(1).

     § 6108. Carrying firearms on public streets or public
     property in Philadelphia

     No person shall carry a firearm, rifle or shotgun at any time
     upon the public streets or upon any public property in a city of
     the first class unless:

     (1) such person is licensed to carry a firearm; or

     (2) such person is exempt from licensing under section 6106(b)
     of this title (relating to firearms not to be carried without a
     license).

18 Pa.C.S. § 6108.

     Possession of a firearm is an essential element of Sections 6105, 6106

and 6108.   See, e.g., Commonwealth v. Antidormi, 84 A.3d 736, 757

(Pa. Super. 2014); Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.

Super. 2013).    “Possession can be found by proving actual possession,

constructive possession or joint constructive possession.” Commonwealth

v. Heidler, 741 A.2d 213, 215 (Pa. Super. 1999). Constructive possession

is an inference arising from a set of facts that possession of the contraband

was more likely than not. Commonwealth v. Parker, 847 A.2d 745, 750

(Pa. Super. 2004).   In order to prove that a defendant had constructive

possession, “the Commonwealth must establish that the defendant had both

the ability to consciously exercise control over it as well as the intent to

exercise such control.” Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa.

Super. 2013). “An intent to maintain a conscious dominion may be inferred

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from the totality of the circumstances, and circumstantial evidence may be

used to establish a defendant’s possession.” Id. In the absence of direct

evidence in this case, the Commonwealth was required to establish that

Appellant had constructive possession of the firearm found underneath his

seat in the vehicle. See Commonwealth v. Kirkland, 831 A.2d 607, 610

(Pa. Super. 2003) (holding where contraband a person is charged with

possessing is not found on the person, the Commonwealth is required to

prove constructive possession).

     Regarding our standard of review as it pertains to Appellant’s

sufficiency argument, this Court recently explained:

     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
     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
     finder 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. Roberts, 133 A.3d 759, 767 (Pa. Super.) (citation

omitted), appeal denied, 145 A.3d 725 (Pa., Sep. 6, 2016).      We review a

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conviction based on circumstantial evidence under the same standard as one

based on direct evidence, that is, a decision by the trial court will be

affirmed “so long as the combination of the evidence links the accused to the

crime beyond a reasonable doubt.” Commonwealth v. Johnson, 818 A.2d

514, 516 (Pa. Super. 2003).

     Instantly, Officer Visco testified to initiating a traffic stop and

encountering Appellant in the City of Philadelphia.   N.T., 10/14/15, at 18.

Appellant was seated in the right front passenger seat.     Id. at 20.   The

officer “saw the front passenger, [Appellant], lean forward toward the floor

and sit back upward . . . in a hurried motion.”    Id. at 22.   He described

Appellant as “nervous [and] breathing heavily. His hands were shaking. . . .

He was stuttering.” Id. at 23. Officer Visco explained:

            When [Appellant] bent forward and sat back up in a
     hurried motion, and then when I approached the passenger’s
     side and observed there was nothing in his hands, I didn’t feel
     comfortable due to the high crime area we were in and also due
     to him sitting – while [I was] walking up, [Appellant was]
     reaching forward, being out of sight and sitting back upward, I
     didn’t feel safe for me or my partner.

Id. at 24. Officer Visco continued:

           I had him step out of the vehicle. I did a pat down for
     weapons. Then I placed him back in my vehicle. Then I walked
     back up to the car. I used my flashlight to shine it underneath
     the seat, at which time I observed – looking at my notes, Your
     Honor – it was a High-Point black semiautomatic handgun, a []9
     millimeter with a serial number of 026313.

           It was loaded with six live rounds in the magazine and one
     additional chamber round, which I later placed on property
     receipt no. 3169685. The male did not have a permit to carry.

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Id.

      Despite Officer Visco’s testimony, Appellant maintains that the

evidence was insufficient to support his convictions because “there was a

lack of evidence concerning the possession of the firearm.” Appellant’s Brief

at 16. Citing Commonwealth v. Boatwright, 453 A.2d 1058 (Pa. Super.

1982) (per curiam), Appellant asserts that his case also warrants reversal

because there was no evidence presented about Appellant’s breathing and

stuttering, “exactly where the gun was actually found,” and “whether the

weapon was registered to an owner,” as well as “no investigation done to

see who the individual was that actually rented the vehicle,” and “no

testimony of an investigation of the driver of the vehicle.” Id. at 16-17.

      In Boatwright, the defendant was seated in the front passenger seat

of a vehicle in which two other people were riding. Boatwright, 453 A.2d

at 1058-59.    When the vehicle was stopped, police officers observed the

defendant move toward the left rear seat of the vehicle.        Id.   After the

occupants exited the vehicle, police officers found a gun on the left rear floor

of the vehicle. Id. The defendant was found guilty of possession, but on

appeal, this Court reversed, finding that the defendant’s mere presence in

the car with two other individuals, one of whom was sitting in the rear

passenger seat, was not enough to prove possession. Id.

      Boatwright is distinguishable because Appellant was sitting in the

passenger seat directly above where Officer Visco found the gun, was


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separated from the driver by the vehicle’s large center console, and was

hunched over the passenger seat while Officer Visco approached the vehicle.

Accordingly,   viewing   the   record   in    a   light   most   favorable   to   the

Commonwealth, we conclude there was sufficient evidence for the trial court,

as the finder of fact, to determine that Appellant had the intent and ability to

control the firearm that was found under the passenger seat, and thus to

establish that Appellant was in constructive possession of that firearm. That

is all that was necessary to prove the element of possession relative to

Appellant’s firearms convictions. See Harvard, 64 A.3d at 699; Johnson,

818 A.2d at 516.    Appellant’s first claim that the Commonwealth failed to

present sufficient evidence to prove his constructive possession of the

firearm therefore is without merit.

      Appellant’s second claim is that he is entitled to a new trial because

the verdict was against the weight of the evidence. We review such a claim

to determine whether the trial court abused its discretion when it determined

that the weight of the evidence was sufficient to support the conviction.

Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013). In order for

an appellant to prevail on a challenge to the weight of the evidence, “the

evidence must be so tenuous, vague and uncertain that the verdict shocks

the conscience of the court.” Commonwealth v. Sullivan, 820 A.2d 795,

806 (Pa. Super. 2003).




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     Appellant does not present a separate argument on this issue in his

brief. Instead, he states that his weight of the evidence “argument is very

similar to the above section on sufficiency, therefore it is not necessary to

repeat, and [Appellant] ask[s] that it be incorporated into this section’s

argument by reference.”      Appellant’s Brief at 18.     However, as the

Commonwealth notes, “when an appellant fails to distinguish between a

sufficiency and weight of the evidence claim, the weight claim is waived.”

Commonwealth Brief at 17-18 (citing Commonwealth v. Birdseye, 637

A.2d 1036, 1039-1040 (Pa. Super. 1994)).

     Even had Appellant not waived his weight claim, we would find no

support for Appellant’s contention that the Commonwealth failed to present

sufficient evidence of his constructive possession of the firearm.       The

evidence recounted in the preceding section of this brief provides a strong

nexus between Appellant and the firearm Officer Visco discovered under the

passenger seat of the vehicle where Appellant was seated. Nothing about

the evidence is “so tenuous and vague” as to “shock the conscience.”

Sullivan, 820 A.2d at 806.

     We therefore affirm Appellant’s judgment of sentence.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/2016




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