J-A05005-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN DOUGHERTY
Appellant No. 3584 EDA 2013
Appeal from the Judgment of Sentence November 1, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000984-2013
BEFORE: GANTMAN, P.J., SHOGAN, J., and ALLEN, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 16, 2015
Appellant, John Dougherty, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
bench trial convictions for persons not to possess firearms, carrying a
firearm without a license, and carrying a firearm on public streets in
Philadelphia.1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
[O]n January 4, 2013, at 10:55 p.m., police officer Michael
Szelagowski received a report of gunshots and a man with
a gun located on the 3500 block of Emerald Street in the
Kensington section of Philadelphia. The suspect was
described as a tall, African American male. He was heavy-
set and reported to be wearing a red shirt. The area is
primarily residential, with a bar on the [northwest] corner
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1
18 Pa.C.S.A. §§ 6105, 6106, 6108, respectively.
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of the street named Shawn’s Bar and Grill. Officer
Szelagowski was in full uniform, in a marked police cruiser.
A few seconds after arriving on scene, Officer Szelagowski
observed [Appellant] wearing a red sweatshirt and a black
jacket. The officer observed [Appellant] look in his
direction and tense his right hand near his right hip.
Immediately thereafter, [Appellant] turned and made a
quick dash into the bar. Officer Szelagowski was
approximately four car-lengths away from [Appellant]
when he made these observations. Officer Szelagowski
went to the front door as his partner, Officer Patrick
Gereaghty, followed [Appellant] into the side door of the
bar. From the front of the bar, Officer Szelagowski could
see his partner chasing [Appellant] through the bar, but he
could not gain entry through the locked door. He then ran
along the outside of the bar to the side entrance and
continued pursuit. Officer Szelagowski saw [Appellant] for
a second as he turned a corner and entered the bathroom.
[Appellant] slammed the door in Officer Gereaghty’s face.
The officers gave several verbal commands for [Appellant]
to open the door. After about 15-20 seconds, Officer
Szelagowski heard something “clinging around” the
porcelain of the toilet. When the officers kicked open the
door, [Appellant] was in a crouched position, “hovering”
over the toilet.[2] Officer Szelagowski ordered [Appellant]
to put his hands on the wall and frisked him for weapons
to ensure the safety of himself and his partner.
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2
At trial, Officer Szelagowski elaborated Appellant’s positioning as follows:
[COMMONWEALTH]: And where are his hands, if you
can tell?
[OFFICER]: Out in front of him. Not
stretched out in front of him, but out in front of him almost
halfway stretched out. It appeared to me he was standing
back up from being bent over.
(N.T. Trial, 7/23/13, at 17). Officer Gereaghty added that Appellant was
facing the toilet seat “bent forward,” and Appellant’s pants were “zipped up.”
(N.T. Trial, 7/24/13, at 8). Additionally, there were no other patrons inside
the bathroom. (N.T. Trial, 7/23/13, at 34).
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[Appellant] had no weapon on his person and was escorted
out of the bathroom. Officer Szelagowski then lifted the
toilet tank lid and removed a silver revolver that was
submerged in the water. The revolver was loaded with six
live rounds. The bathroom was small in size, measuring
approximately four to five feet wide and ten feet in length.
There was only room for a sink and a toilet; there were no
stalls or partitions.
(Trial Court Opinion, filed June 16, 2014, at 2-3) (internal citations to the
record omitted).
Following a bench trial, the court found Appellant guilty of persons not
to possess firearms, carrying a firearm without a license, and carrying a
firearm on public streets in Philadelphia. On November 1, 2013, the court
sentenced Appellant to an aggregate term of eleven and one-half (11½) to
twenty-three (23) months’ incarceration, followed by eight (8) years’
probation. Appellant did not file post-sentence motions.
Appellant timely filed a notice of appeal on November 27, 2013. On
December 18, 2013, the court ordered Appellant to file a concise statement
of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant
subsequently complied with the court’s order.
Appellant raises two issues for our review:
WHETHER…AN ANONYMOUS REPORT OF GUNSHOTS AND
APPELLANT’S ALLEGED FLIGHT FROM POLICE ARE FACTS
RATIONALLY RELATED TO PROVE POWER TO CONTROL
REQUIRED FOR CONSTRUCTIVE POSSESSION?
WHETHER…THE TRIAL COURT ERRED WHEN IT FOUND
APPELLANT…GUILTY OF VIOLATIONS OF THE UNIFORM
FIREARMS ACT WHEN THE EVIDENCE WAS INSUFFICIENT
AS A MATTER OF LAW TO ESTABLISH APPELLANT WAS
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EVER IN CONSTRUCTIVE POSSESSION OF A FIREARM?
(Appellant’s Brief at 7).
When examining a challenge to the sufficiency of evidence, our
standard of review is as follows:
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 [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. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.
Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).
On appeal, Appellant asserts that various circumstances evaluated by
the trial court, including the anonymous report over police radio and
Appellant’s flight from the officers, did not demonstrate his constructive
possession of the firearm. Further, Appellant contends the Commonwealth
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failed to establish that Appellant brought the firearm into the bathroom at
the bar. Appellant insists “any of the twenty other persons inside the bar
could have secretly placed the firearm inside the toilet of the public
bathroom without [Appellant’s] knowledge.” (Appellant’s Brief at 19).
Absent more, Appellant argues the evidence did not support the court’s
finding of constructive possession. Appellant concludes the Commonwealth
presented insufficient evidence to support his convictions. We disagree.
Section 6105 of the Crimes Code provides:
§ 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.A. § 6105(a)(1).
Section 6106 defines in pertinent part the offense of carrying a firearm
without a license:
§ 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 concealed on or about his person,
except in his place of abode or fixed place of business,
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without a valid and lawfully issued license under this
chapter commits a felony of the third degree.
18 Pa.C.S.A. § 6106(a)(1). Section 6108 defines the offense of carrying
firearms on public streets in Philadelphia:
§ 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;
* * *
18 Pa.C.S.A. § 6108(1).
“When contraband is not found on the defendant’s person, the
Commonwealth must establish constructive possession….” Jones, supra at
121 (quoting Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa.Super.
1996), appeal denied, 547 Pa. 751, 692 A.2d 563 (1997)). “Constructive
possession is the ability to exercise conscious control or dominion over the
illegal substance and the intent to exercise that control.” Jones, supra at
121 (quoting Commonwealth v. Kirkland, 831 A.2d 607, 610 (Pa.Super.
2003), appeal denied, 577 Pa. 712, 847 A.2d 1280 (2004)). “The intent to
exercise conscious dominion can be inferred from the totality of the
circumstances.” Jones, supra at 121 (quoting Kirkland, supra at 610).
Instantly, the trial court evaluated the Commonwealth’s evidence as
follows:
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Officers received a report of gunshots and a man with a
gun. [Appellant] fled from police, ignoring their calls to
stop. He was the only person in the small bathroom.
While the officers attempted to gain entry, they could hear
porcelain clanging in the bathroom, indicative of the tank
lid being moved. Then, after forcing themselves into the
bathroom, the officers discovered [Appellant] hunched
over the toilet with his arms outstretched. Upon removing
the tank lid, the revolver was recovered. The inferences
are clear. [Appellant]―after fleeing from police―was
attempting to [hide] the firearm he had illegally possessed
on his person.
The record reflects that [A]ppellant had access to the
firearm, the power to control it, and the requisite intent to
exercise control over it.
(See Trial Court Opinion at 6) (internal citations omitted). Under the totality
of these circumstances, sufficient evidence demonstrated Appellant’s ability
to exercise conscious dominion over the firearm. Thus, the Commonwealth
established each element of the offenses at issue. See Hansley, supra; 18
Pa.C.S.A. §§ 6105, 6106, 6108. Accordingly, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2015
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