J-A30014-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TIMOTHY DUPRIEST
Appellant No. 2121 EDA 2014
Appeal from the Judgment of Sentence July 15, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001721-2014
BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 06, 2015
Appellant, Timothy Dupriest, appeals from the July 15, 2014 aggregate
judgment of sentence of three to six years of incarceration, with boot camp
eligibility, imposed by the trial court following Appellant’s convictions of
persons not to possess a firearm, firearms not to be carried without a
license, and carrying firearms in public in Philadelphia.1 After careful review,
we affirm.
The trial court summarized the factual background of this case as
follows.
On January 11, 2014 at around 9:30 P.M.
Philadelphia Police Officer Charles Courtney along
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1) and 6108, respectively.
J-A30014-15
with his partner Officer John Crewer were on patrol
in the area of 58th St. and Kingsessing Ave. in
Philadelphia. There they observed a silver Buick
Century going eastbound on Kingsessing Ave. with
its high beam lights on. Officer Courtney made a U-
turn and attempted to stop the vehicle. The vehicle
did not immediately stop and continued driving for a
half block until it finally did stop in the middle of the
road. As the officers exited their vehicle they
observed the two occupants in the front seat, the
Appellant in the driver seat and his brother
Christopher Dupriest in the front passenger seat,
moving side to side while the other occupant in the
back seat was not. Officer Crewer ordered the
Appellant to place the car in park which was initially
ignored as the car continued to slowly roll down the
street.
Officer Courtney approached the passenger
side of the vehicle while Officer Crewer approached
the driver side. Officer Courtney testified that he
observed a large open bottle of Barcardi rum
underneath the armrest of the front bench seat
between the passenger, Christopher Dupriest, and
the driver, the Appellant. Officer Courtney asked
Christopher Dupriest to hand him the bottle of rum,
which he did. After he did so, Officer Courtney
observed the brown butt of a handgun protruding
from under the armrest on the driver’s side. Officer
Courtney testified that the gun was within arm’s
reach and accessible to both Appellant and
Christopher Dupriest. Both Appellant and
Christopher Dupriest were then removed from the
vehicle and placed under arrest. A loaded 9mm
Faburique handgun with a silver slide and wooden
handle was recovered from the vehicle.
Trial Court Opinion, 12/16/14, at 2-3 (citations and footnotes omitted).
As a result of the above events, Appellant was charged with the three
firearms violations. The trial court convened a one-day bench trial on May
20, 2014, at the conclusion of which it rendered its guilty verdicts. On July
-2-
J-A30014-15
15, 2014, the trial court sentenced Appellant to three to six years of
incarceration, with eligibility for boot camp. Appellant did not file post-
sentence motions. Appellant filed a timely notice of appeal on July 17,
2014.2
On appeal, Appellant presents the following issue.
Was not the evidence insufficient for conviction
on all three of the firearms charges here, insofar as
the evidence was insufficient to prove [Appellant]
possessed a firearm, either actually or
constructively?
Appellant’s Brief at 3.
Appellant challenges the sufficiency of the Commonwealth’s evidence
for his firearms convictions. We begin with our well-settled standard of
review. “In reviewing the sufficiency of the evidence, we consider whether
the evidence presented at trial, and all reasonable inferences drawn
therefrom, viewed in a light most favorable to the Commonwealth as the
verdict winner, support the [fact-finder’s] verdict beyond a reasonable
doubt.” Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation
omitted), cert. denied, Patterson v. Pennsylvania, 135 S. Ct. 1400
(2015). “The Commonwealth can meet its burden by wholly circumstantial
evidence and any doubt about the defendant’s guilt is to be resolved by the
fact finder unless the evidence is so weak and inconclusive that, as a matter
____________________________________________
2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
-3-
J-A30014-15
of law, no probability of fact can be drawn from the combined
circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super.
2013) (en banc) (internal quotation marks and citation omitted), appeal
denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must review “the
entire record … and all evidence actually received[.]” Id. (internal quotation
marks and citation omitted). “[T]he 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.” Id. (citation omitted). “Because
evidentiary sufficiency is a question of law, our standard of review is de novo
and our scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d
119, 126 (Pa. 2013) (citation omitted), cert. denied, Diamond v.
Pennsylvania, 135 S. Ct. 145 (2014).
Mindful of the foregoing precepts, we examine Appellant’s challenge to
the sufficiency of the evidence supporting his convictions for persons not to
possess firearms, firearms not to be carried without a license, and carrying
firearms in public in Philadelphia. The governing statutes provide, in
relevant part, as follows.
§ 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,
-4-
J-A30014-15
control, sell, transfer or manufacture a firearm in this
Commonwealth.
§ 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, without a valid and lawfully issued license
under this chapter commits a felony of the third
degree.
…
§ 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.A. §§ 6105(a)(1), 6106(a)(1), 6108.
With regard to all three of his firearms convictions, Appellant
summarized the factual basis of his argument as follows.
[Appellant] was driving a car owned by his
brother when they were stopped for a traffic
violation. Christopher Dupriest, the owner of the
car, was the front seat passenger. Christopher had
an open bottle of rum in the car, next to his armrest.
When the police had Christopher move the bottle,
-5-
J-A30014-15
they saw a handgun protruding out from under
Christopher’s armrest. There is no evidence
whatsoever that [Appellant] knew about the gun,
saw the gun, or touched the gun, yet he was
convicted (along with Christopher) of possessing the
gun. As [Appellant] did not actually possess the
gun, and as the Commonwealth presented no
evidence sufficient to prove constructive possession,
[Appellant’s] convictions cannot stand.
Appellant’s Brief at 6.
Appellant correctly asserts that because the evidence does not
demonstrate his actual possession of the firearm, the Commonwealth had
the burden of establishing that Appellant constructively possessed the
weapon. See Appellant’s Brief at 7-8. We have explained the concept of
constructive possession as follows.
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. To aid in
application, we have held that constructive
possession may be established by the totality of the
circumstances.
Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013), appeal
denied, 78 A.3d 1090 (Pa. 2013) (citation omitted).
Appellant cites Commonwealth v. Hamm, 447 A.2d 960 (Pa. Super.
1982), stating that his case is “indistinguishable” from Hamm, where this
Court determined that constructive possession of a firearm could not be
-6-
J-A30014-15
attributed to the appellant, who was the driver of an automobile with one
passenger in the front seat and one passenger in the back seat, when police
observed a firearm on the floor of the front, passenger side of the car.
Appellant’s Brief at 11; Hamm at 961-962. A second weapon was
uncovered underneath the front seat in Hamm. Id. Concluding there was
insufficient evidence to prove constructive possession of the firearm
discovered under the seat, this Court stated, “we may not infer that
appellant knew of the weapon’s existence simply from the fact that it was
hidden in the automobile.” Id. (citations omitted). The Hamm Court
similarly concluded there was insufficient evidence of the appellant’s
constructive possession of the firearm found on the floor, noting, “[t]he
analysis is the same whether a weapon is hidden in an automobile … or
hidden on someone’s person[.]” Id.
In the present case, Philadelphia Police Officer Charles Courtney was
the only witness to testify at Appellant’s trial, and the testimony was such
that the trial court, as the fact-finder, could conclude that Appellant
exercised “conscious dominion” over the firearm. Officer Courtney testified
to observing Appellant’s vehicle with its high beams on. N.T., 5/20/14, at 8.
Officer Courtney and his partner attempted to stop the vehicle, but “the
vehicle didn’t initially stop. It continued for about a half a block and then
the vehicle abruptly stopped in the middle of the road.” Id. at 9. As Officer
Courtney approached the vehicle, it was “slowly moving forward,” and as a
-7-
J-A30014-15
result, Officer Courtney had to instruct Appellant to put the vehicle in park.
Id. at 9-10. Officer Courtney testified that Appellant and his brother “were
moving side to side.” Id. at 9, 12. Officer Courtney observed an open
bottle of Bacardi rum, asked for the bottle, and as Officer Courtney was
taking the bottle he “observed what [he] immediately knew to be the butt of
a handgun protruding from under the armrest; around four inches under the
armrest. … it really stood out. It was a stark contrast.” Id. at 12-14.
Officer Courtney explained that he “recognized it to be a handgun, and I
didn’t want to alert anybody in the vehicle that I had observed that for
officer’s safety.” Id. at 14. Officer Courtney described the vehicle as having
“a bench seat,” with the armrest “for both the passenger and the driver.”
Id. at 15.
At the conclusion of testimony, in closing arguments, Appellant’s
counsel cited Hamm, supra, for the proposition that Appellant lacked
constructive possession of the firearm. The Commonwealth responded that
unlike Hamm, the firearm in this case was “sitting there … in plain view,
which is why Officer Courtney grabbed the gun as soon as he could, and
didn’t want to alert any of the passengers who were still in the car that there
was a gun because he could see it immediately.” Id. at 50. With regard to
“the knowledge component,” the Commonwealth argued, “because we have
the failure to pull over, the failure to pull over to the side of the road, the
failure to put the car in park, not even stopping immediately. … [Appellant
-8-
J-A30014-15
and Christopher Dupriest] are related. … That is another factor to consider
because I think if they were complete strangers to one another and, … one
of them just happened to be a passenger in the other guy’s car, no.” Id. at
54.
Thereafter, the trial court rendered its verdicts, stating, “After careful
review of the case law presented by all counsel, and careful review of the
facts, I find [Appellant] guilty as charged. Id. at 55. The trial court
explained its reasoning as follows.
In the present case, the gun was discovered
directly between the Appellant and the front seat
passenger, Christopher Dupriest, on the front bench
seat. The gun was within arm’s reach of the
Appellant. Based on the totality of the
circumstances including the location of the weapon,
the movements of both the Appellant and the front
seat passenger and the failing to initially stop the
vehicle, it is proper to conclude that Appellant was in
constructive possession of the firearm.
Trial Court Opinion, 12/16/14, at 4.
Viewing the evidence of record, together with all reasonable inferences
in a light most favorable to the Commonwealth, we conclude that there was
sufficient evidence for the trial court to determine that Appellant
constructively possessed the firearm. See Patterson, supra. Appellant
argues that because he “was not in physical possession of the gun at issue,
and as there was no evidence that he was even aware of the gun, let alone
in constructive possession of it, his convictions for possessing the gun
cannot stand.” Appellant’s Brief at 12. This argument fails because, as
-9-
J-A30014-15
discussed above, Appellant’s characterization of the evidence is not
consonant with our standard of review, applicable case law, and the totality
of the evidence presented at trial. See Hopkins, supra at 820.
Based on the foregoing, we reject Appellant’s sufficiency claim and
affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2015
- 10 -