J-A08037-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
IN THE INTEREST OF: R.F., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF R.F., A MINOR : No. 1498 EDA 2015
Appeal from the Dispositional Order May 1, 2015
in the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-JV-0000670-2015
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY: STRASSBURGER, J.: FILED JUNE 07, 2016
R.F. (Appellant) appeals from the dispositional order entered on May 1,
2015, following his adjudication for possession of a firearm by a minor, 18
Pa.C.S. § 6110.1. We affirm.
The juvenile court summarized the relevant factual history of this case
as follows.
On March 28, 2015 at approximately 4:00 AM, Philadelphia
Police Sergeant Daniel Ayres, Badge #8556, assigned to the 19 th
Police District, was parked in a patrol vehicle near 1 South 53rd
Street in Philadelphia County. Sergeant Ayres observed a 2008
black Chevy Malibu, bearing a Pennsylvania license plate, JPW-
7057, with tinted windows throughout the vehicle. The vehicle
drove past Sergeant Ayres. Sergeant Ayres performed a DMV
check of the license plate, and learned that the license plate was
in suspended status, “registration suspended for Type A, return
check.” Sergeant Ayres followed the vehicle and the vehicle
went around the block. Sergeant Ayres activated his lights,
stopped the vehicle, and performed a vehicle investigation at
53rd Street and Chestnut Street, which was at an approximate
distance of two blocks from the location of initial observation.
The vehicle pulled over immediately after the officer activated
his lights.
Sergeant Ayres observed five males inside of the vehicle
and activated his spotlight to illuminate the vehicle. [Appellant]
*Retired Senior Judge assigned to the Superior Court.
J-A08037-16
was the rear, passenger-side passenger. Sergeant Ayres noticed
that [Appellant] and the middle-rear passenger, Dawon Mack
[(Mack)], immediately began looking towards one another,
huddling towards one another, and looking back at the police
vehicle. The two passengers kept moving around for
approximately five to ten seconds, and then the middle-
passenger put his arm around [Appellant]. As Sergeant Ayres
approached the vehicle, he ordered all of the males in the
vehicle to keep their hands visible.
The front passenger was nervous and handed a handful of
paperwork, rather than just handing over the registration. The
front passenger, Courtland Gilliam, was the vehicle owner, but
he was unsure of what he was handing the officer. Officer Denia
Starks, Badge #3726, and her partner, Officer Adams, Badge
#4421, then arrived to provide backup. Based on the vehicle
owner’s nervousness and the movement of the rear passengers,
Sergeant Ayres advised Officer Starks to remove everyone from
the vehicle, beginning with the rear passengers.
Officer Starks first removed [Appellant], patted him down
for safety, and placed him toward the back of her vehicle. As
soon as she returned to the subject vehicle, Officer Starks
immediately yelled “gun.” At that point, the police officers
removed and secured all of the individuals in the vehicle.
Sergeant Ayres observed other officers recover a black 9-
millimeter Taurus PT111, loaded with nine rounds in the
magazine and one in the chamber, from the rear floorboard of
the vehicle. The gun was recovered from the floorboard to the
right of where Mr. Mack had been sitting and directly in front of
where [Appellant] had been sitting. After the two front-seat
occupants were removed, Sergeant Ayres observed on the front
floorboard a clear container, similar to a pill bottle, containing
marihuana, as well as a yellow container containing four packets
of crack [] cocaine. Police recovered the narcotics, live-stopped
the vehicle, towed the vehicle to the Parking Authority, and later
recovered twenty-two additional empty containers, identical to
the container containing the crack [] cocaine. Police also seized
$2,414 [in United States currency] from the vehicle’s owner.
Police released the driver of the car and the driver’s side-
rear passenger, while police arrested the other three passengers.
The two individuals that were cleared by investigation did not
make furtive movements and had been completely cooperative
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throughout the investigation. The vehicle’s owner was also
transported to the emergency room for anxiety medication and
treatment.
Officer Starks had removed [Appellant] from the vehicle,
took his name and information, and told Officer Adams to hold
onto him. Before Officer Starks could remove Dawon Mack, she
noticed the gun where [Appellant] had been sitting and where
his feet would have been located. Before removing anyone from
the vehicle, Officer Starks also noticed furtive movements
between [Mack and Appellant], and Officer Starks again
instructed everyone to keep still and keep their hands “up
higher”. Their hands had been lap-level, and Officer Starks
wanted the hands to be more elevated to be better visible.
The firearm was operable, and the barrel length was three
and one-quarter inches. [Appellant] did not possess a license to
carry a firearm.
Juvenile Court Opinion, 8/13/2015, at 1-3 (unpaginated) (footnotes and
citations to notes of testimony omitted).
Appellant was arrested and charged with criminal conspiracy and
multiple violations of the Uniform Firearms Act, including the above-
referenced offense. On April 10, 2015, following a hearing, Appellant was
adjudicated delinquent of possession of a firearm by a minor. Appellant
timely filed a motion to reconsider. On May 1, 2015, Appellant’s motion was
denied and, following a dispositional hearing, he was placed at Glen Mills
Schools for Boys. This timely appeal followed. Both Appellant and the
juvenile court complied with Pa.R.A.P. 1925.
On appeal, Appellant asks this Court to consider whether the evidence
was sufficient to support the juvenile court’s determination that Appellant
had constructive possession of the recovered firearm. Appellant’s Brief at 3.
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We examine Appellant’s issue mindful of the following. Our standard of
review of dispositional orders in juvenile proceedings is well-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).
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
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) (citation and quotation
marks omitted). The finder of fact is free to believe some, all, or none of the
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evidence presented. Commonwealth v. Gainer, 7 A.3d 291, 292 (Pa.
Super. 2010).
In order to allow the juvenile court to adjudicate Appellant delinquent
of possession of a firearm by a minor, the Commonwealth was required to
prove that (1) the weapon was a firearm as defined by the statute, (2) that
Appellant was in possession of the firearm, and (3) that Appellant was under
the age of 18 at the time of the offense. 18 Pa.C.S. § 6110.1(a). It is
undisputed that the weapon recovered herein meets the statutory definition
of a firearm and that Appellant was 17 years old at the time of the offense.
However, because the firearm was not found on Appellant’s person, the
Commonwealth was required to prove constructive possession to establish
the final element of the offense.
Constructive possession is a legal fiction, a pragmatic construct
to deal with the realities of criminal law enforcement. … 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
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) (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, 820–21 (Pa. Super. 2013).
Appellant argues that he was merely present in the vehicle, which was
occupied by four adults, including the owner-driver. Appellant’s Brief at 10.
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He concedes that the officers observed furtive movements but contends that
“most were made, not by Appellant, who was compliant and cooperative
with police, but by the other adult [Mack] seated next to him.” Id.
Additionally, he maintains that the juvenile court overlooked other
“reasonable possibilities,” namely that Mack placed the firearm at Appellant’s
feet “before or after” Appellant was removed from the vehicle, and under
such circumstances, the Commonwealth’s evidence was insufficient to prove
constrictive possession. Id.
We disagree. The facts presented herein are sufficient to establish
that Appellant knew of and intentionally exercised control over the firearm.
Sergeant Ayres testified that he pulled over the subject vehicle and its five
occupants at approximately 4:00 in the morning. N.T., 4/10/2015, at 5.
Upon shining his spotlight on the stopped vehicle, he observed Appellant and
Mack, the two passengers in closest proximity to the recovered firearm,
“looking towards each other, huddling towards each other, looking back at
[his] vehicle, [and] moving around” for approximately five to ten seconds
before Mack placed his arm around Appellant. Id. at 6, 10. He ordered the
five men to keep their hands visible. Id. at 7. Officer Starks testified that
she also saw movement between Appellant and Mack when the vehicle was
stopped and, upon her approach to back up Sergeant Ayres, she ordered the
occupants of the vehicle to remain still with their hands where she could see
them. Id. at 22. She then removed Appellant from the vehicle and
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performed a pat down. Thereafter, she observed the firearm on the rear
floorboard where Appellant had been seated. Id. at 8.
Viewing the evidence in the light most favorable to the
Commonwealth, it can be inferred Appellant and Mack attempted to conceal
the firearm after the vehicle was stopped, which raises a clear inference of
constructive possession. Commonwealth v. Johnson, 26 A.3d 1078,
1093–1094 (Pa. 2011) (holding that intent to maintain conscious dominion
may be inferred from totality of the circumstances). The juvenile court,
sitting as factfinder was free to believe any or all of the Commonwealth’s
evidence. Moreover, it is well-established that, in evaluating a sufficiency of
the evidence challenge, “[t]his Court may not weigh the evidence or
substitute its judgment or that of the factfinder.” Commonwealth v.
Hacker, 959 A.2d 380, 388–89 (Pa. Super. 2008) (internal citations
omitted). Thus, we decline Appellant’s invitation to overturn the juvenile
court’s credibility determinations.1
Accordingly, we affirm the juvenile court’s dispositional order.
Dispositional order affirmed.
1
Additionally we note that Mack’s alleged involvement in this matter is
immaterial. The law is clear that multiple actors may be in joint constructive
possession of contraband, Hopkins, 67 A.3d at 820–821.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2016
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