J-S59010-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MARLON BROWN, :
:
Appellant : No. 2562 EDA 2013
Appeal from the Judgment of Sentence Entered May 31, 2012,
In the Court of Common Pleas of Philadelphia County,
Criminal Division, at No. CP-51-CR-0011141-2008.
BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 21, 2014
Appellant, Marlon Brown, appeals nunc pro tunc from the judgment of
sentence entered following his conviction for a violation of the Uniform
Firearms Act, 18 Pa.C.S. § 6105(a)(1), persons prohibited from possessing
firearms. We affirm.
On June 26, 2008, Appellant was arrested and charged with the
aforementioned firearms offense, possession with intent to deliver, and
conspiracy. Appellant’s first jury trial commenced on November 16, 2010
and Appellant was found not guilty of possession with intent to deliver and
conspiracy. The jury could not agree on the firearms charge, and a motion
for a mistrial was granted on that charge.
______________________________
*Retired Senior Judge assigned to the Superior Court.
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Appellant’s second trial on the firearms violation was held on March
20–21, 2012. The trial court summarized the facts adduced at that trial as
follows:
Detective Andrew Callaghan of the Philadelphia Narcotics
Unit testified that in 2008 he was on loan to the FBI Violent
Crime and Gang Task Force. Notes of Testimony from March 20,
2012 (Hereinafter, N.T. 3/20/12), p. 64–65. Detective
Callaghan received information that marijuana was being sold by
a male known as Peanut at 1902 South 23rd Street in
Philadelphia. Id., at p. 67. Detective Callaghan testified that he
worked with Officer Reginald Graham of the Philadelphia police,
who sent a confidential informant to that location on June 23,
2008. Id., at p. 67-68. The confidential informant purchased
two packets of marijuana from Eloise Brown. Id. On June 24,
2008, Detective Callaghan conducted a surveillance of the
property and observed Eloise Brown sitting on a plastic lawn
chair in front of the house. Id., at p[.] 72-73. Ms. Brown
engaged in two transactions wherein she was observed accepting
a small item from an individual, entering the house briefly, and
emerging from the house to hand a small item to them. Id., at
73–74. Detective Callaghan then prepared a search and seizure
warrant for the property at 1902 South 23rd Street. Id., at p.
78.
On June 26, 2008, Detective Callaghan and several backup
officers arrived at the property to conduct the search pursuant to
the warrant. Id., at p. 88. As the officers approached the
screen door of the property, Detective Callaghan observed Ms.
Eloise Brown, inside of the door, look up and yell “Police, clean
up.” Id. Detective Callaghan and other officers moved to the
second floor of the home and encountered Appellant and another
male, identified as Matthew Love, emerging from the second
floor rear bedroom. Id., at p. 89-90. Appellant stated that he
lived at the location, and Mr. Love stated that he did not. Id., at
p. 91. Detective Callaghan brought Appellant to the dining room
table to elicit his biographical information. Id., at p. 92.
Appellant reiterated that he lived at 1902 South 23rd Street
while giving Detective Callaghan biographical information. Id.,
at p. 97.
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Officer Marilyn Brown asked Detective Callaghan to join
her in the kitchen, which she was searching while Detective
Callaghan questioned Appellant. Id., at p. 100. Officer Brown
drew Detective Callaghan’s attention to a blue soft cooler in a
kitchen cabinet. Id. Inside the cooler was a Smith & Wesson
Model 629 .44 caliber revolver loaded with six live rounds. Id.,
at p. 100–101, 108. Detective Callaghan told Officer Brown not
to touch the revolver and that it should be guarded for
fingerprints. Id., at p. 101. Detective Callaghan testified that
when Officer Brown called him over to the kitchen, Appellant
“kind of slouched clown in his chair, like this, and his shoulders
went down.” Id., at p. 103. Based on his observations,
Detective Callaghan decided to read [A]ppellant his Miranda
warnings at that time. Id., at p. 103-104. Appellant agreed to
answer Detective Callaghan’s questions. Id., at p. 105.
Appellant said that he knew about the firearm and that he was
“holding it for a guy named Rob,” but that he did not know Rob’s
last name. Id., at p. 105-106. Detective Callaghan told
Appellant that he would be submitting the firearm for
fingerprints and asked Appellant if he had touched it. Id.
Appellant responded that he had touched the firearm. Id. The
firearm was placed on a property receipt and submitted to the
Firearm Identification Unit of the Philadelphia Police. Id., at p.
111–113.
Detective Callaghan searched the second floor rear
bedroom where Appellant was first encountered. Id., at p. 116–
117. Detective Callaghan observed male clothing in the room
and recovered one packet of marijuana, numerous unused
packets, bags with marijuana residue, and $268 in United States
Currency. Id.
Officer Joanne Gain of the Philadelphia Police Crime Scene
Unit testified that she swabbed the .44 caliber revolver and the
live and spent rounds for DNA. Id., at p. 193-194.
Counsel stipulated that an oral swab was taken from
[Appellant] and submitted to the Philadelphia Police criminalistics
lab for comparison with the firearm. Id., at p. 207–208.
Counsel also stipulated that the .44 caliber revolver was
examined by the Firearms Identification Unit, was found to be
operable, and had a barrel length of six inches. Id.
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Forensic Investigator Benjamin Levin testified that he was
a DNA Analyst employed by the Philadelphia Police Department,
and was admitted as an expert in DNA analysis. Id., at p. 210–
213. Mr. Levin testified that he performed the DNA analysis
from the samples taken from Marlon Brown and the revolver.
Id., at p. 219. Mr. Levin’s scientific conclusion based on the
analysis was that Marlon Brown was included as a contributor to
the DNA sample detected on a swab from the firearm, and that
the probability of randomly selecting an unrelated individual who
could be included as a contributor to the DNA was approximately
1 in 50,610 in the African American population, 1 in 545,900 in
the Caucasian population, and 1 in 281,500 in the Hispanic
population. Id., at p. 227.
Trial Court Opinion, 11/4/13, at 2–5.
The jury found Appellant guilty of violating the Uniform Firearms Act,
and on May 31, 2012, he was sentenced to a five–to–ten year term of
incarceration. Appellant filed a motion for extraordinary relief on June 6,
2012. The trial court never ruled on the motion nor does the record indicate
that it was denied by operation of law.
On April 9, 2013, Appellant filed a notice of appeal. The post–trial unit
of the First Judicial District informed Appellant’s counsel that the notice was
untimely and suggested filing a petition under the Post Conviction Relief Act
requesting that Appellant’s appellate rights be reinstated. On August 30,
2013, the court granted Appellant’s motion to reinstate his appellate rights.
The instant appeal was filed on September 4, 2013.
Appellant raises the following issues for review:
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A. WAS THE EVIDENCE PRESENTED INSUFFICIENT TO SUPPORT
THE VERDICT WHERE IT FAILED TO SHOW THAT THE
APPELLANT WAS IN POSSESSION OF THE FIREARM?
B. DID THE PROSECUTION COMMIT MISCONDUCT WHEN IT
INFORMED APPELLANT ON THE DAY THAT THE JURY TRIAL WAS
SET TO BEGIN THAT IF THE APPELLANT'S MOTHER TESTIFIED
SHE WOULD FACE PROSECUTION ON RELATED CHARGES THAT
HAD ALREADY BEEN DISMISSED WITHOUT PREJUDICE?
Appellant’s Brief at 6.
We first consider Appellant’s claim regarding the sufficiency of the
evidence supporting his conviction. Appellant contends that the
Commonwealth failed to prove that he possessed the firearm that was
discovered in the kitchen at 1902 South 23rd Street.
When examining a challenge to the sufficiency of the evidence:
The standard we apply . . . 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
[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.
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Commonwealth v. Orr, 38 A.3d 868, 873 (Pa. Super. 2011) (quoting
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011)). This
standard is similarly applicable in cases where the evidence is circumstantial
rather than direct, “so long as the combination of the evidence links the
accused to the crime beyond a reasonable doubt.” Commonwealth v.
Santiago, 980 A.2d 659, 662 (Pa. Super. 2009) (quoting Commonwealth
v. Johnson, 818 A.2d 514, 516 (Pa. Super. 2003)).
Section 6105(a) of the Uniform Firearms Act, 18 Pa.C.S. § 6105(a),
prohibits a person convicted of any of thirty–eight specified offenses
enumerated in section 6105(b) from possessing, using, or controlling a
firearm. The parties stipulated that Appellant had a prior conviction for
murder, one of those defined offenses, and the jury was advised that the
prohibited person element of the offense had been satisfied. N.T., 3/21/12,
at 25. Thus, the sole challenge to the sufficiency of the evidence supporting
Appellant’s conviction is whether the Commonwealth proved that he
possessed the firearm.
In the instant matter, because the subject firearm was not found on
Appellant's person, the Commonwealth was required to establish that
Appellant constructively possessed the gun. Commonwealth v. Gutierrez,
969 A.2d 584, 590 (Pa. Super. 2009) (“Possession can be found by proving
actual possession, constructive possession or joint constructive possession”)
(quoting Commonwealth v. Heidler, 741 A.2d 213, 215 (Pa. Super.
1999)); see also Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa.
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1983); Commonwealth v. Micking, 17 A.3d 924, 926 (Pa. Super. 2011).
“Constructive possession is an inference arising from a set of facts that
establishes that possession of the contraband was more likely than not.”
Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (quoting
Commonwealth v. Thompson, 779 A.2d 1195, 1199 (Pa. Super. 2001)
(internal citations omitted)).
Constructive possession is defined as “conscious dominion” which in
turn, is defined as “the power to control the contraband and the intent to
exercise that control.” Commonwealth v. Hopkins, 67 A.3d 817, 820–
821 (Pa. Super. 2013). Constructive possession may be established by the
totality of the circumstances, Commonwealth v. Brown, 48 A.3d 426, 430
(Pa. Super. 2012), and can be proven by circumstantial evidence.
Commonwealth v. Valette, 613 A.2d 548, 550 (Pa. 1992) (quoting
Macolino, 469 A.2d at 134). Furthermore, the fact that another person
might have equal access and control to an object does not exclude a
defendant’s constructive possession. Commonwealth v. Haskins, 677
A.2d 328, 330 (Pa. Super. 1996).
Appellant challenges the sufficiency of the evidence supporting the
jury’s constructive–possession finding for three reasons: 1) there were
other people living at the house and present when the search warrant was
executed; 2) the gun was recovered from a common area, the kitchen,
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which was accessible by anyone in the house; and 3) the DNA evidence
linking the gun to Appellant was suspect because its presence could be
explained by Appellant’s sweat inadvertently dripping on the weapon.
Our application of the legal fiction of constructive possession
occasionally arises when, as here, contraband is found in a common area
where others have access. In these situations, all the attendant facts and
circumstances are weighed to determine whether the Commonwealth proved
the defendant’s ability and intent to exercise control over the item in
question. Miking, 17 A.3d at 926.
In the present case, Appellant, Appellant’s mother, Eloise Brown, and
a third person, Matt Love, were present at 1902 South 23rd Street when the
search warrant was executed. Appellant told Detective Callaghan that he
lived in the house with his mother. Matt Love, on the other hand,
represented that he did not live in the house. While the search of the
premises was being conducted, Appellant displayed behavior that the
investigating detective construed as indicative of guilt. When Officer Brown
summoned Detective Callaghan to the kitchen, Appellant reacted physically
by hunching his shoulders and slouching in his chair. Appellant then told
Detective Callaghan that he knew about the gun, stated that he was holding
it for “Rob,” and admitted touching the gun.
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These uncontested facts refute each of Appellant’s challenges to the
sufficiency of the evidence. First, the testimony established that Appellant
and Eloise Brown were the only residents of the subject premises. Second,
the fact that Ms. Brown had equal access to the area where the firearm was
discovered does not diminish the extent of Appellant’s ability and intent to
exercise control over the gun. See Commonwealth v. Johnson, 26 A.3d
1078, 1094 (Pa. 2011) (quoting Valette, 613 A.2d at 550) (“constructive
possession may be found in one or more actors where item in issue is in
area of joint control and equal access”). Third, Appellant admitted that he
was holding the gun for a third person and, more significantly, admitted to
touching the firearm—an activity highly probative of his control over the
object. So, too, does this admission explain the presence of Appellant’s DNA
on the gun and defeat his assertion that its presence occurred by
inadvertent and unwitting contact with the weapon.
Examining this evidence in its totality, and in a light favorable to the
Commonwealth, we find that the jury could reasonably conclude that
Appellant had both the ability and intent to exercise control of the firearm
located in the cooler in the kitchen. Accordingly, there is no basis to disturb
the jury’s verdict that Appellant constructively possessed a firearm in
violation of section 6105(a)(1) of the Firearms Act.
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Appellant’s second argument is that the prosecutor committed
misconduct when she informed Appellant’s counsel that Eloise Brown would
be prosecuted on previously–withdrawn charges if she testified in her son’s
behalf. Appellant characterizes the prosecutor’s activity as bullying the
witness into not testifying. Appellant, however, has failed to preserve this
issue for meaningful appellate review.
On the day before trial, the parties litigated a motion in limine. During
the hearing on the motion, Appellant’s counsel indicated that he would be
calling Eloise Brown as his sole defense witness. Motion in Limine, 3/19/12,
at 31. The following morning, additional in limine motions were presented to
the trial court, including whether certain defense–proffered documents were
admissible. Defense counsel explained that he had intended to call Eloise
Brown to authenticate the documents, but that Ms. Brown recently had
decided against testifying. N.T., 3/20/12, at 8. This decision was
occasioned by the prosecutor’s representation to Ms. Brown’s attorney that
her client could be re–arrested on the dismissed charges if she opted to
testify. When Ms. Brown’s counsel advised Ms. Brown of the possible
consequences of her testimony, she invoked her Fifth Amendment right and
elected not to testify. Id. at 38.
Appellant orally motioned for a mistrial, which the trial court denied.
N.T., 3/20/12, at 27, 31. While the specific basis for the motion is muddled,
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it did implicate the evidentiary fallout resulting from Ms. Brown’s last-minute
decision not to testify. Appellant complained that he was not given
adequate notice of Ms. Brown’s potential unavailability, id. at 27, and in the
absence of her testimony, he was now unable to authenticate documents
that might prove that Appellant did not live at 1902 South 23rd Street
during the relevant period. Id. at 31. At no point, however, did Appellant
allege that prosecutorial misconduct reasoned Ms. Brown’s choice to remain
silent. Consequently, his claim is waived for purposes of appeal. Pa.R.A.P.
302(a); Commonwealth v. Sanchez, 82 A.3d 943, 969 (Pa. 2013) (issues
not raised in lower court are waived).
We make the additional observation that this Court rejected a similar
claim of prosecutorial misconduct in Commonwealth v. Smallhoover, 567
A.2d 1055 (Pa. Super. 1989). In Smallhoover, the defendant in a criminal
tax prosecution intended to call his father as a witness. At a sidebar
conference, the prosecutor informed the court that the father’s proposed
testimony contradicted his prior statement to a revenue agent and could
subject him to criminal liability. The prosecutor requested the court to
advise the father of his right against self-incrimination and to have the
father consult with his counsel. After conferring with his counsel, the father
declined to testify.
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On appeal, this Court rejected the appellant’s argument that the
prosecutor’s statement to the court was improper and deprived him of a key
witness. The Smallhoover Court observed that the Commonwealth’s
recommendation to the trial court that the defendant should consult with
counsel about his privilege against self–incrimination could not be considered
coercive. Smallhoover, 576 A.2d at 1060. Additionally, the Court found it
“significant” that, as here, the witness decided not to testify only after
consultation with counsel and was not approached directly by the
prosecutor. Id.
Appellant’s waived and meritless claim of prosecutorial misconduct
does not provide a basis for appellate relief. Accordingly, the judgment of
sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2014
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