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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
WILLIAM JAYUOW CLARK, :
:
Appellant : No. 137 WDA 2016
Appeal from the Judgment of Sentence July 30, 2015
in the Court of Common Pleas of Westmoreland County,
Criminal Division, No.(s): CP-65-CR-0004407-2014
BEFORE: BENDER, P.J.E., OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 08, 2016
William Jayuow Clark (“Clark”) appeals from the judgment of sentence
imposed following his conviction of Persons Not to Possess, Use,
Manufacture, Control, Sell or Transfer a Firearm (“Persons Not to Possess a
Firearm”).1 We affirm.
On June 17, 2013, Officer Dan Zilli (“Officer Zilli”) of the Mount
Pleasant Borough Police Department responded to a 911 call and found a
blue bag amongst some weeds containing, among other things, a
disassembled handgun, a magazine holding one live round, a knife, and a
time sheet and sweatshirt from Minniefield Construction Company
(“Minniefield Construction”). According to Officer Zilli, the disassembled
handgun was not operable in its current state, and the upper receiver was
not in the bag.
1
18 Pa.C.S.A. § 6105.
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After contacting Minniefield Construction, Officer Zilli discovered that
Clark was the owner of the bag. Clark came to the police station and
admitted to owning the bag and all of the contents except the gun. Clark
stated that he was cleaning the gun for his niece’s boyfriend, and that he
forgot that the gun was in the bag. Officer Zilli also discovered that Clark
had previously been adjudicated delinquent for the crime of minor not to
possess a firearm. Officer Zilli subsequently charged Clark with one count
each of Persons Not to Possess a Firearm and Carrying a Firearm Without a
License.2
After a non-jury trial, Clark was found guilty of Persons Not to Possess
a Firearm. Thereafter, the trial court sentenced Clark to two to five years in
prison. Clark filed a timely Post-Sentence Motion, which the trial court
denied. Clark filed a timely Notice of Appeal.
Clark raises the following questions for our review:
I. Whether the trial court erred by denying [Clark’s]
Post[-]Sentence Motion for judgment of acquittal, for the
reason that the non-jury guilty verdict for the offense of
Persons Not to Possess a Firearm was contrary to the
sufficiency of the evidence?
II. Whether the trial court erred by denying [Clark’s] Post-
Sentence Motion for new trial, for the reason that the
non-jury guilty verdict for the offense of Persons Not to
Posses [sic] a Firearm was contrary to the weight of the
evidence?
Brief for Appellant at 6.
2
18 Pa.C.S.A. § 6106(a)(1).
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In his first claim, Clark alleges that the evidence was insufficient to
prove he was in possession of a firearm. See Brief for Appellant at 9-12.
Clark claims that he did not possess the firearm, as the Commonwealth
failed to prove the requisite criminal intent beyond a reasonable doubt. Id.
at 11-12. Clark argues that his statements that the firearm did not belong
to him, and that he had only been cleaning the firearm, demonstrated a lack
of possession. Id.
The standard of review for a sufficiency of the evidence claim is as
follows:
When reviewing a sufficiency of the evidence claim, an appellate
court, viewing all of the evidence and reasonable inferences in
the light most favorable to the Commonwealth as the verdict
winner, must determine whether the evidence was sufficient to
enable the fact-finder to find that all elements of the offense
were established beyond a reasonable doubt.
Commonwealth v. Hawkins, 701 A.2d 492, 499 (Pa. 1997). “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.” Commonwealth
v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014).
Under 18 Pa.C.S.A. § 6105,
[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.
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18 Pa.C.S.A. § 6105(a)(1).
Possession of a firearm is an essential element of Section 6105.
Antidormi, 84 A.3d at 757. “Possession can be found by proving actual
possession, constructive possession or joint constructive possession.”
Commonwealth v. Heidler, 741 A.2d 213, 215 (Pa. Super. 1999).
Because the bag, and its contents, were not found on Clark’s person,
constructive possession must be demonstrated.
In order to prove that a defendant had constructive possession
of a prohibited item, the Commonwealth must establish that the
defendant had both the ability to consciously exercise control
over it as well as the intent to exercise such control. An intent
to maintain a conscious dominion may be inferred from the
totality of the circumstances, and circumstantial evidence may
be used to establish a defendant’s possession of [prohibited
items].
Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa. Super. 2013) (citation
and internal quotations omitted).
In the instant case, Officer Zilli testified that he responded to a call
about a blue JanSport bag lying in some weeds, found the described bag,
and took it to the police station. N.T., 5/6/15, at 14-15. Officer Zilli stated
that within the bag, he found “a large knife, a disassembled handgun, bolt
cutters, a magazine with one live round and there was also an empty casing,
there was a time sheet from Minniefield Construction Company and also a
sweatshirt that said Minnifield [sic] Construction and Demolition.” Id. at 15.
Odell Minniefield (“Odell”), one of the owners of Minniefield Construction,
testified that he took Clark to work two days prior to the discovery of the
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bag, and that Clark brought the bag with him that day. Id. at 31-32, 34.
Odell stated that Clark carried the bag every day, but could not find it when
they were leaving work. Id. Officer Zilli testified that Clark admitted to
owning the bag and all of its contents except the gun. Id. at 22. According
to Officer Zilli, Clark stated that he was cleaning the gun for his niece’s
boyfriend and had placed the gun in the bag. Id. at 22, 28. Officer Zilli also
testified that Clark admitted to carrying the bag with him to work, and Clark
believed the bag was stolen at some point, leading to it being found in the
weeds. Id. at 22-23.
Here, the trial court did not credit Clark’s statement that the firearm
did not belong to him. See Trial Court Opinion, 12/22/15, at 5. Because
Clark admitted to owning the bag, placing the gun in the bag, and carrying
the bag with him while it contained the gun, we conclude that the evidence
was sufficient to establish that Clark had constructive possession of the
gun.3
Next, Clark alleges that the Commonwealth did not prove beyond a
reasonable doubt that the disassembled gun qualified as a firearm. Brief for
3
Clark was subject to the penalties of this statute because of his prior
delinquent adjudication for a minor in possession of a firearm. N.T., 5/6/15,
at 23-25. Section 6105 states that a person is subject to the statute if he
“was adjudicated delinquent by a court pursuant to 42 Pa.C.S.[A.] § 6341 or
under any equivalent Federal statute or statute of any other state as a result
of conduct which if committed by an adult would constitute an offense
enumerated in subsection (b).” 18 Pa.C.S.A. § 6105(c)(8). In subsection
(b), one enumerated offense is Section 6110.1, “Possession of firearm by
minor.” Id. § 6105(b). Thus, the statute was properly applied.
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Appellant at 10-11. Clark claims that under 18 Pa.C.S.A. § 6102, the item
recovered from the bag would not be considered a firearm. Brief for
Appellant at 10. Clark also argues that the firearm was not operable, and
thus he could not violate Section 6105. Id. at 11.
Section 6105 provides, “the term ‘firearm’ shall include any weapons
which are designed to or may readily be converted to expel any projectile by
the action of an explosive or the frame or receiver of any such weapon.” 18
Pa.C.S.A. § 6105(i).
The statutory language is clear, and it does not require proof
that the weapon was capable of expelling a projectile when it
was seized; on the contrary, the fact that a person can be
prosecuted simply for possessing a semiautomatic pistol frame
refutes this notion because the frame requires additional parts,
e.g., a slide and barrel, in order to fire a bullet. Thus, the use of
the terms “frame” and “receiver” in section 6105(i)
demonstrates that the legislature sought to eliminate the
operability requirement … for purposes of [section 6105].
Commonwealth v. Thomas, 988 A.2d 669, 672 (Pa. Super. 2009)
(footnote omitted); see also Commonwealth v. Gainer, 7 A.3d 291, 298
n.4 (Pa. Super. 2010) (stating that “[s]ection 6105 includes a revised
definition of ‘firearm’ under which operability is not an element”).
Officer Zilli stated that the gun was disassembled, the upper receiver
was not in the bag, and the weapon would be inoperable without that piece.
N.T., 5/6/15, at 17-18. However, Officer Zilli also stated that it would be
relatively easy to make the gun operable since the majority of the gun was
in the bag, including a magazine with a live round and the spring that would
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go on the upper receiver. Id. Since the applicable definition refers to
something that “may readily be converted to expel any projectile by the
action of an explosive or the frame or receiver of any such weapon,” 18
Pa.C.S.A. § 6105(i), the contents of the bag qualify as a firearm for the
purposes of this crime. Further, Clark’s claim that the weapon was
inoperable at the time is irrelevant as operability is not a necessary element
of Section 6105. See Thomas, 988 A.2d at 672.
Viewing these facts in the light most favorable to the Commonwealth,
the evidence was sufficient to support Clark’s conviction.
In his second claim, Clark asserts that his conviction of Persons Not to
Possess a Firearm was against the weight of the evidence. Brief for
Appellant at 12. Clark argues that the evidence did not establish that he
possessed the gun or that the gun was operable. Id.
The standard of review for challenges to the weight of the evidence is
as follows:
A claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the trial
court’s discretion; it does not answer for itself whether the
verdict was against the weight of the evidence. It is
well[-]settled that the fact-finder is free to believe all, part, or
none of the evidence and to determine the credibility of the
witnesses, and a new trial based on a weight of the evidence
claim is only warranted where the fact-finder’s verdict is so
contrary to the evidence that it shocks one’s sense of justice. In
determining whether this standard has been met, appellate
review is limited to whether the trial judge’s discretion was
properly exercised, and relief will only be granted where the
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facts and inferences of record disclose a palpable abuse of
discretion.
Commonwealth v. Karns, 50 A.3d 158, 165 (Pa. Super. 2012) (citation
and brackets omitted).
Considering Clark’s arguments and the evidence of the case, it is
apparent that the trial court judge found the testimony of Officer Zilli and
other witnesses credible, and the evidence supports the verdict. Therefore,
we conclude that the trial court did not abuse its discretion in denying
Clark’s weight of the evidence claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2016
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Com. v. Clark, W.
Combined Opinion