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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DEWANE B. JOLLY, : No. 61 WDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, September 5, 2014,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0016851-2013
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND SHOGAN, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 23, 2016
Dewane B. Jolly appeals the judgment of sentence in which the Court
of Common Pleas of Allegheny County sentenced him to serve a term of
three to six years’ imprisonment followed by four years’ probation for
possession of a firearm prohibited.1 He was also sentenced to serve
five years’ probation for possession of a firearm with the manufacturer
number altered and five years’ probation for firearms not to be carried
without a license.2 The three probation sentences were concurrent with one
another and consecutive to the imprisonment. Appellant received a
determination of guilty without further penalty for driving without a license,
1
18 Pa.C.S.A. § 6105(a)(1).
2
18 Pa.C.S.A. § 6110.2(a) and 18 Pa.C.S.A. § 6106(a)(1), respectively.
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driving while his operating privilege was suspended or revoked, failing to
stop at a stop sign, and failing to stop at a red light.3
On November 4, 2013, Detective Daniel Zeltner (“Detective Zeltner”)
of the City of Pittsburgh Police Department was working with two other
plainclothes police officers in an unmarked Chevrolet Impala.
Detective Zeltner observed a maroon Lincoln (“Vehicle”) traveling at a high
rate of speed on Paulsen Avenue. Officer Andrew Miller (“Officer Miller”) was
driving the Impala. The police car followed the Vehicle and observed that it
failed to stop for a stop sign and then failed to stop at a red light at
Lincoln Avenue and Lemington Avenue. The lights and sirens for the Impala
were activated, and the Vehicle pulled over to the right to Lincoln and Lore
Way at approximately 3:48 p.m. After the Vehicle pulled over, the
passenger door opened, and the passenger, John Richardson4
(“Richardson”), fled the vehicle. (Notes of testimony, 6/30/14 at 10-13.)
The third officer in the unmarked car, Detective Disanti, caught Richardson,
and Detective Zeltner handcuffed him. (Id. at 13.) Detective Zeltner
determined that appellant’s driver’s license was suspended. Officer Miller
found a gun in the Vehicle. When questioned about the gun, appellant told
the officers that he was not aware that it was there. The gun was a
3
75 Pa.C.S.A. § 1501(a), 75 Pa.C.S.A. § 1543(a), 75 Pa.C.S.A. § 3323(b),
and 75 Pa.C.S.A. § 3112(a)(3)(i), respectively.
4
Richardson was tried at the same time as appellant.
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.45 caliber semi-automatic pistol. Someone had attempted to scratch out or
obliterate the serial numbers, but they were still visible. (Id. at 15-16, 23.)
Appellant told Detective Zeltner that he was a jitney5 driver and Richardson
was a jitney passenger who fled because he had an outstanding warrant for
his arrest. It turned out that Richardson did not have a warrant. Richardson
also proclaimed that he had no knowledge about the firearm. (Id. at 17.)
Once back-up arrived, Officer Miller walked around to the open
passenger side front door and observed the loaded firearm in plain view.
(Id. at 28, 36.) It was “[l]eaning up against the center console on the front
passenger side floor with the magazine facing the ceiling and barrel facing
the rear of the vehicle.” (Id. at 28.)
During a non-jury trial, the parties stipulated that appellant had a
previous conviction for robbery of a motor vehicle. The parties also
stipulated that, based on DNA testing, appellant was excluded as a
contributor to the DNA found on the trigger, trigger guard, and slider of the
firearm. The DNA testing was inconclusive as to Richardson. (Id. at 8-9.)
The trial court convicted appellant and sentenced him.6 Richardson was
found guilty of the firearms charges and escape. With respect to appellant,
the trial court reasoned:
5
A jitney is an unlicensed taxi service.
6
The trial court acquitted appellant of the charge of receiving stolen
property.18 Pa.C.S.A. § 3925(a).
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Neither of the Officers who testified at the time of
trial saw either Jolly or Richardson with the firearm
and, accordingly, the Commonwealth’s case was
predicated upon the theory of constructive
possession. . . . In taking a pragmatic approach to
the review of the record in this case, it is clear that
based on the totality of circumstances, the
Commonwealth had established constructive
possession of the firearm by [appellant] despite the
DNA tests which excluded him as a contributor.
Jolly was operating as a jitney driver in a high crime
area and his passenger had recently been beat [sic]
up in an attempted robbery attempt. The passenger
fled from the vehicle which he knew possessed a
firearm since it was opening [sic] visible to anyone
who looked in the car and his explanation for his
flight was the fact that he believed that there was an
outstanding warrant for his arrest. Although
[appellant] allowed the Officers to conduct a pat
down search on him and a search of the vehicle, this
did not disprove his possession of the firearm. The
firearm was placed in a unique possession [sic] in
that it was upside down with the barrel pointing
toward the rear of the car and it was noted that
Richardson was right-handed which would have
made it difficult for him to place the gun in that
position prior to him running from the vehicle. It
was also noted that the gun was visible to everyone
who approached that particular car from both the
driver’s side and the passenger’s seat side. It is
clear that [appellant] had the ability to control the
firearm, as he was aware of its existence since the
firearm was visible to everyone. In light of the
totality of the circumstances, it is clear that the
Commonwealth put forward more than sufficient
evidence to establish beyond a reasonable doubt its
theory of constructive possession.
Trial court opinion, 6/2/15 at 7-9.
Appellant raises the following issue for this court’s review: “Whether
the evidence was insufficient to convict [appellant] at Counts 1, 2, and 4
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because the Commonwealth failed to prove, beyond a reasonable doubt, that
[appellant] possessed the firearm?” (Appellant’s brief at 5 (capitalization
omitted).)
With respect to the sufficiency of the evidence, we observe:
In reviewing the sufficiency of the evidence, we view
all the evidence admitted at trial in the light most
favorable to the Commonwealth, as verdict winner,
to determine whether there is sufficient evidence to
enable the factfinder to find every element of the
crime established beyond a reasonable doubt.
Commonwealth v. Thomas, 867 A.2d 594
(Pa.Super. 2005). “This standard is equally
applicable to cases where the evidence is
circumstantial rather than direct so long as the
combination of the evidence links the accused to the
crime beyond a reasonable doubt.” Id. at 597. And
while a conviction must be based on more than mere
suspicion or conjecture, the Commonwealth need not
establish guilt to a mathematical certainty. Id.
quoting Commonwealth v. Coon, 695 A.2d 794,
797 (Pa.Super. 1997). This Court is not free to
substitute its judgment for that of the fact-finder; if
the record contains support for the convictions they
may not be disturbed. Id. citing Commonwealth v.
Marks, 704 A.2d 1095, 1098 (Pa.Super. 1997) and
Commonwealth v. Mudrick, 510 Pa. 305, 308, 507
A.2d 1212, 1213 (1986). Lastly, the factfinder is
free to believe some, all, or none of the evidence.
Id.
Commonwealth v. Hartle, 894 A.2d 800, 803-804 (Pa.Super. 2006).
With respect to constructive possession, this court has held:
When contraband is not found on the
defendant’s person, the Commonwealth must
establish “constructive possession,” that is, the
power to control the contraband and the intent to
exercise that control. Commonwealth v. Valette,
531 Pa. 384, 613 A.2d 548 (1992). The fact that
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another person may also have control and access
does not eliminate the defendant’s constructive
possession. . . As with any other element of a crime,
constructive possession may be proven by
circumstantial evidence. Commonwealth v.
Macolino, 503 Pa. 201, 469 A.2d 132 (1983). The
requisite knowledge and intent may be inferred from
the totality of the circumstances. Commonwealth
v. Thompson, 286 Pa.Super. 31, 428 A.2d 223
(1981).
Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa.Super. 1996), appeal
denied, 692 A.2d 563 (Pa. 1997).
Appellant asserts that the evidence was insufficient to prove beyond a
reasonable doubt that appellant possessed the firearm found in the Vehicle.
Appellant further asserts that the only evidence linking appellant to the
firearm was his presence in the Vehicle when it was found. Although the
trial court found that appellant had constructive possession of the firearm,
appellant argues that the Commonwealth failed to prove that he had the
power to control the firearm and the intent to exercise that control over the
firearm.
The trial court relied upon Commonwealth v. Hopkins, 67 A.3d 817
(Pa.Super. 2013), appeal denied, 78 A.3d 1090 (Pa. 2013), in making its
determination that appellant had constructive possession over the firearm.
In Hopkins, Detective Jason Moss (“Detective Moss”), a detective with the
City of Pittsburgh Police Department, observed an individual pacing around a
grocery store parking lot and making telephone calls on a cellular phone.
Detective Moss recognized the individual as a drug user from a previous
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encounter approximately one month before. Detective Moss saw the man
walk to the side of a building and then begin counting his money. A car
pulled up on a side street and parked against traffic under a “No Parking”
sign. Detective Moss contacted his partners. When they approached the
vehicle, the known drug user turned away from the vehicle and fled. A
juvenile inside the vehicle threw a brick of heroin to the floor of the car and
was arrested. One of the detectives, Detective Higgins, approached the
vehicle and observed a loaded Smith & Wesson 0.38 caliber firearm between
the front console and the seat where the juvenile was sitting.
Detective Mark Goob (“Detective Goob”) approached the vehicle on the
driver’s side and saw William Hopkins (“Hopkins”), the driver, begin to reach
down between the console and the driver’s seat and push his hand down into
that area. Detective Goob ordered Hopkins out of the vehicle. Hopkins was
arrested and charged with person not to possess a firearm, 18 Pa.C.S.A.
§ 6105(a)(1), and carrying a firearm without a license, 18 Pa.C.S.A.
§ 6106(a)(1), as well as two drug charges and one summary traffic
violation. He was found guilty on all counts. Hopkins, 67 A.3d at 818-819.
One of the issues raised on appeal to this court was whether there was
sufficient evidence to establish that he had constructive possession of the
heroin and the firearm. Id. at 820.
This court determined there was sufficient evidence:
When viewed in their totality, the facts and
circumstances support the finding that [Hopkins] was
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in constructive possession of the contraband and the
weapon. Minutes after a known drug user was
observed making a cell phone call, pacing in a vacant
lot, and counting money, [Hopkins] drove his vehicle
the wrong way into a dark side street. As the police
approached, the known drug user fled. When the
transaction was thwarted, Detective Goob, a ten
year veteran of the narcotics unit, observed
[Hopkins] attempt to hide two bricks of heroin in the
space between the driver’s seat and the center
console of the vehicle he was driving. The detective
also observed [the juvenile] throw a brick of heroin
onto the floor of the vehicle. The firearm was found
within arms-length of where [Hopkins] was seated.
Additionally, upon arrest, [Hopkins] was found with
two cell phones and $361 in cash; the juvenile had
no money on his person. [Hopkins] is entitled to no
relief.
Id. at 821.
With respect to whether appellant constructively possessed the
firearm, this court must view the facts in the light most favorable to the
Commonwealth, the verdict winner. Thomas. Further, this court noted in
Commonwealth v. Flythe, 417 A.2d 633, 634 (Pa.Super. 1979), “[i]t
strains the imagination to believe that defendant innocently entered this
vehicle having no knowledge of the items found therein when, the pistol at
least, was within a few inches of him and a portion of it was in plain view.”
Although the circumstances were somewhat different from Hopkins,
an examination of the totality of the circumstances as in Hopkins supports
the trial court’s determination that appellant had constructive possession of
the firearm. While he did not own the vehicle, he used it to operate a jitney.
The firearm was located in the vehicle next to the center console, very close
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to where appellant was sitting in the driver’s seat. The trial court found that
the firearm was situated in such a way that it would be easier for appellant
to reach than Richardson. Also, it is well-settled law that more than one
person may have constructive possession over contraband. The fact that
Richardson may also have had constructive possession over the firearm did
not mean that appellant could not also have constructive possession. In
addition, as in Hopkins, the firearm was in plain view from outside the
vehicle. Although the lack of DNA evidence did not support a finding of
possession, the fact-finder concluded that the other facts supported the
finding of constructive possession. The trier-of-fact, the trial court here,
bears the responsibility of weighing the evidence presented and is free to
believe all, part, or none of the evidence. Commonwealth v. Newton, 994
A.2d 1127, 1131 (Pa.Super. 2010), appeal denied, 8 A.3d 898 (Pa. 2010).
This court finds no error.
Judgment of sentence affirmed.
Shogan, J. joins the Memorandum.
Bender, P.J.E. files a Dissenting Memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2016
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