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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: T.W., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: T.W., A MINOR,
Appellant No. 733 WDA 2014
Appeal from the Dispositional Order April 7, 2014
In the Court of Common Pleas of Allegheny County
Juvenile Division at No(s): 1409-98
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MAY 1, 2015
Appellant, T.W., appeals from the April 7, 2014 dispositional order
entered by the Allegheny County Court of Common Pleas. Although we find
Appellant’s challenge to the sufficiency of the evidence lacking in merit, we
remand to give Appellant the opportunity to file a post-dispositional motion
nunc pro tunc challenging the weight of the evidence.
The juvenile court summarized the facts of the case, as follows:
Homestead Police Officers were conducting surveillance of a
house known to be the sales location for a specific brand of
stamped heroin called AR15. Trial Transcript 04/01/2014 pp.
10-11. The officers obtained information from two separate
sources that an individual by the name of Dorian Richardson
Serrano, the subject of an eventual search warrant, was selling
heroin out of that same house. Id. at 10, 35. The officers
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*
Former Justice specially assigned to the Superior Court.
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obtained a search warrant and executed said warrant on
February 10, 2014 at approximately 4:00 p.m. at the known
heroin location. Id. at 12. Several officers knocked and
announced their presence at the house. When there was no
response, one officer breached the door with the batting [sic]
ram. Id. at 13, 74. The officers went into the house and began
questioning the female sitting in the living room. They then
began to search the house while calling out “police” and “search
warrant.” From the search, it was unclear who lived in the
house. Id. at 43. Officer Matt Fusco was the first or second
officer into the house where Appellant was located while Officer
Ronald DePelligrin was behind Officer Fusco when entering the
house and subsequently the back bedroom. Both officers saw
four male juveniles in the back bedroom of the house, one being
Appellant. Id. at 14-16, 47. Officer Fusco saw what was later
determined to be a replica or BB gun lying on the floor in the
middle of the room, thus he did not enter the room right away,
but remained in the doorway. When Officer Fusco looked into
the room one individual was sitting in the middle of the bed, one
individual was sitting in the corner of the room, both with their
hands raised upon seeing Officer Fusco and Appellant and his co-
defendant were sitting on the edge of the bed leaning into the
closet, both with at least one hand in the closet. Both Appellant
and his co-defendant were bending down near the bottom of the
closet moving their arms back and forth in a motion consistent
with moving items. Id. at 52, 54-56, 79. Officer Fusco ordered
Appellant and his co-defendant to put their hands up and they
complied. The officers secured or detained the males in the
room and then they were handcuffed and moved from the
bedroom one by one. Officer DePelligrin searched the closet and
Officer Fusco searched the other side of the small bedroom. Id.
at 16, 49, 64. Officer DePelligrin found 6.21 grams of heroin
and drug paraphernalia on the bottom of the closet, towards the
top of the items in the closet, but settled down a bit. Id. at 21-
23, 27, 70. A .38 Special caliber Ruger revolver, a .380 auto
caliber Bersa pistol and a “magazine,” and four .380 caliber
cartridges were also found in the bottom of the closet and were
in plain view to Officer Fusco. The firearms were both found to
be in good operating condition. Id. at 60, 67-68.
Juvenile Court Opinion, 9/19/14, at 2–4.
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A juvenile petition filed on February 13, 2014, charged Appellant with
one count of receiving stolen property, two counts of carrying a firearm
without a license, one count of possession of heroin, one count of possession
with intent to deliver heroin, and three counts of criminal conspiracy. The
juvenile court held a delinquency hearing for Appellant and his co-defendant,
R.P., on April 1, 2014. Appellant was adjudicated delinquent of one count of
carrying a firearm without a license and one count of possession of heroin,
and disposition was deferred.
On April 7, 2014, the juvenile court held a dispositional hearing
following which Appellant was ordered to remain committed to the
McKeesport Community Intensive Supervision Program (“CISP”).1 That
same day, privately retained counsel withdrew. The juvenile court appointed
new counsel, who filed a timely notice of appeal to this Court on May 7,
2014. Both Appellant and the juvenile court complied with Pa.R.A.P. 1925.
Appellant presents two issues for our review:
I. Whether the evidence presented at trial by the
Commonwealth was insufficient to establish, beyond a
reasonable doubt that the Appellant was delinquent of
Carrying a Firearm with [sic] a License and Possession of a
Controlled substance?
II. Whether the adjudication of delinquency was against the
weight of the evidence presented at trial?
Appellant’s Brief at 3.
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1
Appellant had been committed to CISP on March 17, 2014.
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Our standard of review of dispositional orders in juvenile proceedings
is settled. The Juvenile Act grants broad discretion to juvenile courts in
determining appropriate dispositions. In re C.A.G., 89 A.3d 704, 709 (Pa.
Super. 2014). Indeed, the Superior Court will not disturb the lower court’s
disposition absent a manifest abuse of discretion. In the Interest of J.D.,
798 A.2d 210, 213 (Pa. Super. 2002).
Appellant first argues that there was insufficient evidence to find that
he committed the delinquent acts of carrying a firearm without a license and
possession of heroin. Appellant’s Brief at 10. Specifically, Appellant alleges
that the Commonwealth failed to provide sufficient evidence that Appellant
carried an unlicensed firearm on his person and failed to establish that he
had dominion or control of the heroin to support a finding of constructive
possession. Id. at 9.2 We will address these arguments in reverse order.
In evaluating a challenge to the sufficiency of the evidence supporting
an adjudication of delinquency, our standard of review is as follows:
When a juvenile is charged with an act that would
constitute a crime if committed by an adult, the Commonwealth
must establish the elements of the crime by proof beyond a
reasonable doubt. When considering a challenge to the
sufficiency of the evidence following an adjudication of
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2
While the concise statement Appellant filed pursuant to Pa.R.A.P. 1925 is
lacking in particularity regarding the sufficiency of the evidence supporting
the conviction for possession of heroin, we conclude that the issue is
sufficiently suggested thereby, and we do not find the claim waived. Concise
Statement of Matters Complained of on Appeal Pursuant to Pa.R.[A.]P.
1925(b), 5/21/14, at 3.
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delinquency, we must review the entire record and view the
evidence in the light most favorable to the Commonwealth.
In determining whether the Commonwealth presented
sufficient evidence to meet its burden of proof, the test to be
applied is whether, viewing the evidence in the light most
favorable to the Commonwealth and drawing all reasonable
inferences therefrom, there is sufficient evidence to find every
element of the crime charged. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by wholly circumstantial evidence.
The facts and circumstances established by the
Commonwealth need not be absolutely incompatible with a
defendant’s innocence. Questions of doubt are for the hearing
judge, unless the evidence is so weak that, as a matter of law,
no probability of fact can be drawn from the combined
circumstances established by the Commonwealth.
In re V.C., 66 A.3d 341, 348-349 (Pa. Super. 2013) (quoting In re A.V., 48
A.3d 1251, 1252–1253 (Pa. Super. 2012)). The finder of fact is free to
believe some, all, or none of the evidence presented. Commonwealth v.
Gainer, 7 A.3d 291, 292 (Pa. Super. 2010).
We address Appellant’s contention that the evidence was insufficient to
support his conviction of possession of heroin. We note that because the
heroin was not found on Appellant’s person, the Commonwealth was
required to prove constructive possession to establish the offense.
Commonwealth v. Estepp, 17 A.3d 939, 944 (Pa. Super. 2011).
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.
We subsequently defined conscious dominion as the power to
control the contraband and the intent to exercise that control.
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To aid application, we have held that constructive possession
may be established by the totality of the circumstances.
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012) (internal
quotation marks and citation omitted). Additionally, it is possible for two
people to have joint constructive possession of an item of contraband.
Commonwealth v. Hopkins, 67 A.3d 817, 820–821 (Pa. Super. 2013).
Appellant posits that he did not have constructive possession of the heroin
found in the closet. For the reasons that follow, our review of the record
compels the contrary conclusion.
Appellant contends that the instant case is “factually more analogous”
to Commonwealth v. Valette, 613 A.2d 548 (Pa. 1992). Appellant’s Brief
at 15. In truth, Valette is factually dissimilar to the instant case. There,
the appellant was sitting in the living room when police entered to execute a
search warrant. In a second-floor bedroom of the two-floor apartment,
police discovered a closed briefcase hidden beneath floorboards containing
283 grams of cocaine, a sifter, plastic bags, and a cellular telephone. Police
found identification for other individuals in the apartment, but found none
for the appellant. Nothing incriminating was found within the room where
the appellant was situated at the time of the raid, and no contraband was
found on his person. Id. at 549. Thus, we reject Appellant’s suggestion
that Valette supports his position.
In the present case, Appellant was with three other male juveniles in a
bedroom on the first floor of a converted house in Homestead, Pennsylvania,
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when police executed a search warrant based on drug activity previously
observed at the residence. N.T., 4/1/14, at 10–11. Homestead Police
Officer Ronald DePelligrin testified that he and six other police officers
executed the warrant on February 10, 2014. Id. at 6, 12. Homestead
Detective Matt Fusco testified that two of the juveniles were brothers who
resided at the house and were known to him. Id. at 50, 52. The other two
juveniles in the room were Appellant and R.P., Appellant’s co-defendant, and
they did not live at the house. Id. at 50–53. Appellant and R.P. were
leaning into the closet, bent down to the floor, with their heads, torsos, and
right arms in the closet. Id. at 55–58. Appellant’s right arm up “to his
bicep[]” was in the closet. Id. at 58. Their arms were moving back and
forth in the bottom of the closet making motions consistent with an attempt
to conceal items in the clothes and other objects strewn across the closet
floor. Id. at 18, 54, 59. In comparison, the other two males already had
their hands up when Officer Fusco entered the bedroom. Id. at 52.
Officer DePelligrin searched the left half of the room, which included
the closet, and Detective Fusco searched the right half, which included the
bed. N.T., 4/1/14, at 17, 60. Amidst the clutter on the closet floor, Officer
DePelligrin found two firearms on the left side and two bundles of heroin
toward the center. Id. at 18.
Viewing the evidence in the light most favorable to the Commonwealth
as verdict winner, it can be inferred that Appellant and his companions heard
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the commotion caused by the police breaking in the door and shouting that
they were executing a search warrant. It also can be reasonably inferred
that Appellant and R.P. were attempting to secrete the drugs when police
arrived at the bedroom door and observed them with their arms in the closet
making motions consistent with hiding something. This raises a clear
inference of constructive possession, as it demonstrated Appellant’s ability to
exercise conscious control or dominion over the illegal substance and the
intent to exercise that control. Commonwealth v. Johnson, 26 A.3d 381,
1093–1094 (Pa. 2011) (intent to maintain conscious dominion may be
inferred from totality of the circumstances).
The juvenile court analyzed the evidence and found that it supported
the conclusion “that Appellant and his co-defendant had equal access and
control over the contraband . . . .” Juvenile Court Opinion, 9/19/14 at 6.
The juvenile court continued, “The Commonwealth offered a lab report
identifying what was found in that closet as heroin. Further, the
Commonwealth proved Appellant’s constructive possession of the heroin
through his access and proximity to the heroin and his movements
demonstrating both intent and ability to assert control over the controlled
substance.” Id. We agree with the juvenile court and reject Appellant’s
claim.
We next address Appellant’s argument that there is insufficient
evidence of record to support his conviction of carrying a firearm without a
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license. The pertinent statutory provision of the Pennsylvania Uniform
Firearms Act provides, in relevant part, as follows:
§ 6106. Firearms not to be carried without a license
(a) Offense defined.--
(1) Except as provided in paragraph (2) [irrelevant to the
instant case], 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, without a valid and lawfully issued
license under this chapter commits a felony of the third
degree.
18 Pa.C.S. § 6106(a)(1).
Pursuant to 18 Pa.C.S. § 6106(a)(1), the Commonwealth was required
to establish that either Appellant carried a firearm in a vehicle; or carried a
firearm concealed on or about his person when he was not in his home or
place of business; and that he did not have a license to carry a firearm.
Appellant challenges only the Commonwealth’s alleged failure to prove “that
the firearm[] [was] concealed on or about his person.” Appellant’s Brief at
11–12.
Utilizing the same constructive-possession analysis it advanced in
support of Appellant’s claim that insufficient evidence supported his
conviction for possession of heroin, the juvenile court found as follows:
The Commonwealth proved, at trial, through the credible
testimony of the police officers and the admitted lab reports that
the weapons found in the closet of the bedroom were operable
firearms capable of firing the ammunition for which it was
manufactured. Trial testimony also supported that Appellant
was not the age of majority, and thus could not have a license to
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the firearms found in the bedroom closet. Further, it was
determined through testimony that at least one of the weapons
was stolen. Because the weapons were not found on the
Appellant’s person, the Commonwealth argued that there was
constructive possession, or that Appellant had both the intent
and ability to control the firearm.
Juvenile Court Opinion, 9/19/14, at 4–5. The juvenile court found that “the
surrounding facts strongly support[ed]” its conclusion that Appellant had
constructive possession of the firearm. Id. at 6.
The juvenile court relied on Commonwealth v. Smith, 392 A.2d 727
(Pa. Super. 1978), to support its constructive-possession conclusion.3 In
Smith, the defendant secreted a loaded pistol and drugs in a bag on a public
street. The paper bag was merely “in proximity” to the appellant, in that it
was on the pavement where the appellant was standing. The arresting
officer observed the appellant bend down near his left foot and then resume
a standing position. We concluded that this testimony “convincingly
demonstrated the requisite power and intent to control the contraband upon
which the convictions are based.” Id. at 729.
In the case sub judice, the firearm, without doubt, was not found in a
vehicle. It also is not disputed that the apartment was not Appellant’s place
of abode, the gun indeed was a firearm, and due to Appellant’s minority, he
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3
We acknowledge that the conviction in Smith was pursuant to the now-
repealed statute of carrying a firearm in public without a license.
Nevertheless, the court’s analysis in that case is relevant to demonstrate the
requisite power and intent to control the contraband upon which the
convictions were based. Id. at 729.
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could not possess a license for a firearm. Thus, the remaining words of the
statute required proof that Appellant concealed the firearm on or about his
person. 18 Pa.C.S. § 6106(a)(1)(emphasis added). Merriam–Webster’s
Dictionary defines “about” as “reasonably close to” and “in the vicinity.”
Merriam–Webster's Online Dictionary, http://www.merriam-
webster.com/dictionary/about. Webster’s New Universal Unabridged
Dictionary defines “about” as “near; close to.” Webster’s New Universal
Unabridged Dictionary 6 (1996). The Commonwealth’s demonstration that
Appellant constructively possessed the firearms by showing his ability to
exercise conscious control or dominion over them and the intent to exercise
that control is sufficient to prove the weapons were concealed “about the
person” as required by 18 Pa.C.S. § 6106.
In interpreting statutes, this Court has established, “When the
language of a statute is clear and unambiguous, it must be given effect in
accordance with its plain and common meaning.” Commonwealth v.
Ostrosky, 866 A.2d 423, 427 (Pa. Super. 2005) (citation omitted); 1
Pa.C.S. § 1903(a). In Commonwealth v. Lopez, 663 A.2d 746 (Pa. Super.
1995), we reiterated our Supreme Court’s admonition that the word “or”
occurring in a statute must be given its ordinary meaning unless such a
construction would give a result which is absurd, impossible of execution,
highly unreasonable, or tending to nullify the legislative intent. Id. at 749.
See also Commonwealth v. Diodoro, 970 A.2d 1100, 1107 (Pa. 2009)
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(statute utilizing disjunctive “or” was purposeful use by General Assembly,
and the terms so connected “were meant to have different applications.”).
Here, the Commonwealth presented evidence showing that Appellant
had both the power to control the firearm and intent to exercise that control
through the testimony of Officer DePelligrin and Detective Fusco. The
officers observed Appellant and R.P. with their arms in the closet making
motions consistent with hiding something. This raised a clear inference of
constructive possession, as it demonstrated Appellant’s ability to exercise
conscious control or dominion over the illegal substance and the intent to
exercise that control. Johnson, 26 A.3d at 1093–1094 (intent to maintain
conscious dominion may be inferred from totality of the circumstances).
Thus, we agree with the juvenile court that there was sufficient evidence to
support Appellant’s adjudication for carrying a firearm without a license.
Appellant’s final issue assails the weight of the evidence. He contends
that the trial court abused its discretion when it concluded that aspects of
Appellant’s testimony were not credible. This Court applies the same
standard for reviewing weight-of-the-evidence claims in juvenile cases as
those involving adults. In re R.N., 951 A.2d 363, 370 (Pa. Super. 2008),
called into question on other grounds, In re J.B., 106 A.3d 76 (Pa. 2014).
An allegation that the verdict is against the weight of the evidence is
addressed to the discretion of the trial court. Commonwealth v.
Ramtahal, 33 A.3d 602, 609 (Pa. 2011). “An appellate court, therefore,
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reviews the exercise of discretion, not the underlying question whether the
verdict is against the weight of the evidence.” Id. at 609. A weight-of-the-
evidence claim is waived for failure to raise the issue in the trial court.
Pa.R.Crim.P. 607(A); Commonwealth v. Thompson, 93 A.3d 478, 490
(Pa. Super. 2014) (quoting Commonwealth v. Lofton, 57 A.3d 1270, 1273
(Pa. Super. 2012)).
While Pa.R.Crim.P. 607(A) specifies that weight-of-the-evidence claims
in criminal proceedings are waived unless they are raised with the trial court
in a motion for a new trial, “the Pennsylvania Rules of Juvenile Procedure
have no counterpart requiring the same manner of preservation.” In re
J.B., 106 A.3d 76, 91 (Pa. 2014). Indeed, “the current Rules of Juvenile
Court Procedure—which ‘govern delinquency proceedings in all courts’—are
utterly silent as to how a weight of the evidence claim must be presented to
the juvenile court so that it may rule on the claim in the first instance, which
is . . . a necessary prerequisite for appellate review.” Id. at 98 (footnote
omitted). Pa.R.J.C.P. 620(A)(2), governs the filing of what it expressly
designates as an “optional post-dispositional motion.” See Pa.R.J.C.P.
620(A)(2) (“Issues raised before or during the adjudicatory hearing shall be
deemed preserved for appeal whether or not the party elects to file a post-
dispositional motion on those issues.”).
Similarly to the juvenile in In re J.B., Appellant in the case sub judice
“faced procedural rules that made optional the filing of a post-dispositional
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motion, and which did not otherwise specify how a weight of the evidence
claim was to be presented in the first instance to the juvenile court in order
to preserve it for appellate review.” In re J.B., 106 A.3d at 98. Also, as did
the juvenile in J.B., Appellant herein presented his weight-of-the-evidence
claim to the trial court by first raising it in his Pa.R.A.P. 1925(b) statement.
Id. Just as the juvenile court did in In re J.B., the instant juvenile court
considered Appellant’s weight-of-the-evidence claim and ruled on it in the
Pa.R.A.P. 1925(a) opinion. Trial Court Opinion, 9/19/14, at 7–8. However,
our Supreme Court held in In re J.B.:
In sum, because we conclude that finding J.B.’s weight of
the evidence claim to be waived under these circumstances
would be manifestly unjust—a state of affairs our Court
recognized in [Commonwealth v.] Widmer, [689 A.2d 211,
212 (1997)] was unacceptable—principles of fundamental justice
and sound reason counsel that our Court take the same prudent
path in the instant matter, and remand this matter to the
juvenile court to allow J.B. to file a post-dispositional motion
nunc pro tunc.
In re J.B., 106 A.3d at 99.
In the present case, Appellant did not file an optional post-disposition
motion pursuant to Pa.R.J.C.P. 620 alleging that the verdict was against the
weight of the evidence. Despite this omission, the juvenile court considered
the claim in its Pa.R.A.P. 1925(a) opinion. The Commonwealth, although
acknowledging the language and holding of In re J.B., suggests that since
the juvenile court herein addressed the issue, this Court should address it as
well. As noted above, however, our Supreme Court considered this very fact
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in In re J.B. but concluded that the matter must be remanded to the
juvenile court to allow the juvenile to file a post-dispositional motion nunc
pro tunc. In re J.B., 106 A.3d at 99. Although we recognize the inherent
redundancy of such an approach because the juvenile court has already
addressed the weight of the evidence in its Pa.R.A.P. 1925(a) opinion, we
are compelled by controlling precedent to do the same.
Therefore, we conclude the evidence of record was sufficient to
support Appellant’s adjudication of delinquency with regard to possession of
heroin and carrying a firearm without a license. We remand to the juvenile
court, however, to allow Appellant to file a post-dispositional motion nunc
pro tunc.
Case remanded for proceedings consistent with this Memorandum.
Jurisdiction is relinquished.
P.J. Gantman joins the memorandum.
Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2015
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