J-S63040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KHALIL SMITH
Appellant No. 1881 EDA 2015
Appeal from the Judgment of Sentence June 4, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0011567-2013
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 19, 2016
Appellant, Khalil Smith, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following a jury
trial and conviction for three violations of the Uniform Firearm Act (“VUFA”):
persons not to possess firearms,1 firearms not to be carried without a
license,2 and carrying firearms on public streets or property in Philadelphia.3
Appellant challenges the sufficiency of the evidence. We affirm.
We adopt the facts set forth in the trial court’s opinion. See Trial Ct.
Op., 11/05/15, at 1-3. Following a jury conviction, the court sentenced
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 6105.
2
18 Pa.C.S. § 6106.
3
18 Pa.C.S. § 6108.
J-S63040-16
Appellant on June 4, 2015, to an aggregate term of eight-and-one-half to
seventeen years’ imprisonment. Appellant filed a timely post-sentence
motion, which the court denied on June 16, 2015. Appellant filed a timely
appeal and a court-ordered Pa.R.A.P. 1925(b) statement. The court filed a
responsive Pa.R.A.P. 1925(a) opinion.
On appeal, Appellant raises the following issue for review:
Did the trial court err when it found that there was
sufficient evidence to prove, beyond a reasonable doubt,
the crimes of persons not to possess firearms, firearms not
to be carried without a license and carrying firearms on
public streets or public property in Philadelphia?
Appellant’s Brief at 2.
Appellant argues that the evidence was insufficient to support any of
his VUFA convictions because the testimony presented at trial did not
establish that he either possessed or constructively possessed the firearm
found in the vehicle he was driving. Instead, Appellant contends that
because the gun was recovered in the backseat of the car, it must have been
in the possession of a passenger in the vehicle and not Appellant, who was
the driver. We conclude that no relief is due.
The standard of review for a challenge to the sufficiency of the
evidence is de novo, as it is a question of law. Commonwealth v.
Ratsamy, 934 A.2d 1233, 1235 (Pa. 2007). As our Supreme Court has
explained:
[T]he critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction . . . does not
-2-
J-S63040-16
require a court to ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt. Instead, it must determine simply whether the
evidence believed by the fact-finder was sufficient to
support the verdict.
* * *
When reviewing the sufficiency of the evidence, an
appellate court must determine whether the evidence, and
all reasonable inferences deducible from that, viewed in
the light most favorable to the Commonwealth as verdict
winner, are sufficient to establish all of the elements of the
offense beyond a reasonable doubt.
Id. at 1235-37 (citations and quotation marks omitted).
The doctrine of constructive possession provides:
[i]n 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 drugs or
contraband.
Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa. Super. 2013)
(quotation marks and citations omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Daniel J.
Anders, we conclude Appellant’s issue merits no relief. The trial court
opinion comprehensively discusses and properly disposes of the question
presented. See Trial Ct. Op. at 3-6 (finding evidence sufficient to support
Appellant’s VUFA convictions because Appellant had both possessed and
-3-
J-S63040-16
constructively possessed the weapon in question where trial testimony
established that a police officer had observed the firearm in the hands of
Appellant, saw Appellant place the firearm in the waistband of his pants, and
had thereafter watched Appellant and a passenger engage in furtive
movements towards the center console of the car). Accordingly, we affirm
on the basis of the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2016
-4-
J-S63040-16
-5-
Circulated 09/19/2016 04:27 PM
\ -
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CRIMINAL
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-001156\=iLED
vs. 1881 EDA 2015
NOV 06- 2015
. ':
KHALIL SMITH
Criminal Appeals Unit
OPINION first Judicial District of PA
Following a jury trial, Defendant Khalil Smith was convicted of three violations of the
Uniform Firearms Act ("VUFA"). The trial court sentenced Defendant to 8.5 to 17 years of
incarceration. Defendant filed a timely appeal in which he argues that the evidence was
CP-51-CR-0011567-2013 Comm. v. Smrth, Khalil
Opinion
insufficient to support the verdict.
FACTUAL BACKGROUND
II
II II I I 11111111111111111
7366610801
On August 6, 2013, at approximately 11:00pm, Philadelphia Police Officers Robert
McCuen, John Terry, and Anthony Mooney were in plain clothes and traveling in an unmarked
vehicle on the 3500 block of North 18th Street when they observed a silver Nissan Altima that
was double-parked in the only lane of travel. Officer McCuen, who was driving the unmarked
police vehicle, stopped his vehicle approximately one car length behind the Altima. Another
vehicle was stopped in front of the Altima at the comer of the block. N.T 09/23/2014 at 33-38,
133-34.
While waiting for the Altima to proceed, Officer McCuen saw Defendant walking on the
driver's side of the street and facing his direction. Defendant was walking back from the vehicle
that was stopped in front of the Altima. As Defendant approached the driver's side door of the
Altima, he was still facing the direction of the police officers. Defendant then looked toward the
unmarked police vehicle. At this point, Officer McCuen observed a black handgun in
Defendant's right hand. Officer McCuen then observed Defendant place the handgun into the
waistband of his gray sweatpants at his mid-abdomen. Defendant then opened the door and
entered the Altima. Id. at 132-38, 158-63, 179.
When he was making these observations, Officer McCuen testified that the area where
the vehicles were stopped was well-lit and that the police vehicle's high-beam headlights were
on. He was also approximately 15 feet away from Defendant when he observed Defendant with
the firearm. Office Mooney, who was seated in the rear of the police vehicle, testified that he
heard both Officers McCuen and Terry say that they observed Defendant place a gun in his
waistband. Id. at 133-38, 158-62, 179.
After following the Altima for one-and-a-half blocks, the officers stopped the Altima for
investigation. Three males were inside the vehicle, and Defendant was in the driver's seat. As
Officer McCuen approached the Altima from the driver's side, he observed Defendant making
movements. Specifically, Officer Mc Cuen observed Defendant lean toward the middle of the
vehicle. As Defendant leaned toward the middle, the back-seat passenger leaned forward
between the two front seats. When Officer Mooney approached the Altima, he had a clear view
of the occupants through the rear window. Officer Mooney observed Defendant lean right toward
the center of the vehicle. At the same moment, the back-seat passenger leaned forward toward
the center console. Id. at 40-42, 69-71, 142.
During the vehicle stop, Officer Mooney searched the vehicle and recovered a black,
loaded .32-caliber revolver underneath an article of clothing that was located between the middle
seat and the seat behind the driver. The gun was located to the immediate left of the rear passenger.
Officer McCuen testified that the gun recovered from the rear of the vehicle was the same gun that
he observed in Defendant's right hand prior to entering the Altima. Id. at 42-53, 143-54.
Defendant called Brian Bosket as a defense witness. Bosket was the passenger in the
front seat of the Altima. At trial, Bosket testified that he was aware that a gun was recovered
-2-
from the Altima but denied that he saw the Defendant with the gun. Bosket testified that the
back-seat passenger was in possession of the gun. On cross-examination, Bosket acknowledged
that he uses several aliases. Id. at 201-22.
DISCUSSION
Defendant asserts that the evidence was insufficient to support the VUF A convictions
because there was no evidence that Defendant actually possessed or constructively possessed the
firearm. Appellate courts review claims regarding the sufficiency of the evidence by considering
whether, viewing all the evidence admitted at trial in the light most favorable to the verdict-
winner, there is sufficient evidence to enable the fact-finder to find every element of the crime
beyond a reasonable doubt. Commonwealth v. Bradley, 69 A.3d 253, 255 (Pa. Super. Ct. 2013).
The appellate court must evaluate the entire record and consider all evidence actually received.
Id. Further, a conviction may be sustained wholly on circumstantial evidence, and the trier of
fact-while passing on the credibility of the witnesses and the weight of the evidence-is free to
believe all, part, or none of the evidence. Id. In conducting this review, the appellate court may
not weigh the evidence and substitute its judgment for the fact-finder. Id.
l. There Is Sufficient Evidence To Support The Conviction Under 18 Pa.C.S. § 6105
To sustain a conviction under Section 6105, there must be sufficient evidence to prove
beyond a reasonable doubt that Defendant possessed a firearm and that he was convicted of an
enumerated offense that prohibited him from possessing, using, controlling, or transferring a
firearm. Section 6105 defines "firearm" as any weapon that is "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. § 6105; Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa. Super. Ct. 2009).
Possession includes both actual possession and constructive possession. Constrnctive
possession is defined as "conscious dominion," i.e., the power to control the contraband and the
-3-
intent to exercise that control over the contraband. Commonwealth v. Mudrick, 507 A.2d 1212,
1213 (Pa. 1986). Constructive possession may be established by the totality of the circumstances.
Id. "Individually, the circumstances may not be decisive; but in combination, they may justify an
inference that the accused had both the power to control and the intent to exercise that control ...
. " Commonwealth v. DeCampli, 364 A.2d 454, 456 (Pa. Super. Ct. 1976). Constrnctive possession
can be established based upon a defendant's furtive movements and if the contraband was found
within the area of the defendant's immediate control. Commonwealth v. Stembridge, 579 A.2d 901,
903 (Pa. Super. Ct. 1990) (upholding a conviction for constrnctive possession of narcotics based
upon defendant's seating location inside the car and his furtive movements).
Here, the evidence at trial was sufficient to prove beyond a reasonable doubt that
Defendant actually possessed the firearm, Officer McCuen testified that he observed Defendant
holding a black, .32-caliber revolver in his right hand while his unmarked police vehicle was
stopped directly behind Defendant's vehicle. As Defendant approached the driver's side door,
Officer McCuen observed Defendant place the gun in the waistband of his gray sweatpants while
he was looking directly at the undercover officers. Officer McCuen was only 15 feet from
Defendant when he made these observations, and the area was well-lit, including from the front
high beams of the unmarked police vehicle.
There is also sufficient evidence to prove beyond a reasonable doubt that Defendant
constructively possessed the firearm. Officer McCuen and Officer Mooney both testified that
Defendant and the rear passenger made leaning movements toward each other while inside the
Altima. The furtive movements observed by Officer Mooney-Defendant leaning to the right
and the back-seat passenger leaning toward the center console-are consistent with a transfer of
the weapon from Defendant to the back-seat passenger. The recovery of the revolver underneath
an article of clothing that was located between the middle seat and the seat behind the driver
-4-
'•'.
provides circumstantial evidence that Defendant transferred the firearm to the rear passenger
after he entered the vehicle.
This direct and circumstantial evidence, viewed in the light most favorable to the
Commonwealth as the verdict winner', is sufficient to prove beyond a reasonable doubt that
Defendant possessed a firearm and that he was convicted of an enumerated offense that
prohibited him from possessing the fireann.2
2. There Is Sufficient Evidence To Suppo11
The Convictions Under 18 Pa.C.S. § 6106 And 6108
To sustain a conviction under Section 6106, there must be sufficient evidence to prove
beyond a reasonable doubt that: (1) Defendant possessed a firearm, (2) the firearm was
unlicensed, and (3) the firearm was concealed on or about Defendant's person. 18 Pa.C.S. §
6106(a); Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. Ct. 2004). Section 6106
defines "firearm" as any pistol or revolver with a barrel length less than 15 inches, or any pistol,
revolver, rifle, or shotgun with an overall length ofless than 26 inches. 18 Pa.C.S. § 6102.
To sustain a conviction under Section 6108, there must be sufficient evidence to prove
beyond a reasonable doubt that Defendant carried a firearm at any time upon the public street or
upon public property in the city of Philadelphia and that Defendant was not licensed to carry a
firearm or exempt from licensing. 18 Pa.C.S. § 6108; Commonwealth v. Mendozajr, 71 A.3d
1023, 1026 (Pa. Super. Ct. 2013).
For the reasons stated supra at 3-5, there is sufficient evidence to support the convictions
under Sections 6106 and 6108.
1
Based on the evidence presented and the demeanor of the witnesses at trial, the fact-finder's credibility
determinations=-including its apparent disbelief of the defense witness' testimony based in part on his
demeanor and use of several aliases-should stand because there is no basis to disturb them on appeal.
2
Defendant conceded that he was prohibited from possessing a firearm under Section 6105 due to a prior
drug conviction, and Detective Andrejczak test-fired the weapon and testified that it was operable. N.T.
09/23/2014 at 53, 90, 101, 198.
-5-
CONCLUSION
Based on the foregoing, the judgment of sentence should be affirmed.
,,.,.,, . • , ,- -.,... , ·, /~·-,-.,""-.
l
y THE CO, 1':
~-- ---'
\
E S,JlJDGE
Dated: November 5, 2015
-6-
' I
Commonwealth v. Khalil Smith
CP-51-CR-0011567-2013
1881 EDA 2015
PROOF OF SERVICE
I herby certify that I am this day serving the foregoing Court Order upon the persons, and in the
manner indicated below, which service satisfies the requirements of Pa.R.Ctim.P. 114:
Attorney for the Commonwealth:
Hugh Bums, Esq.
Assistant District Attorney
Office of the District Attorney
Three South Penn Square
Comer of Juniper and S. Penn Square
Philadelphia, PA 19107-3499
Hugh.Burns@phila.gov
Type of Service: ( ) Personal (X) Regular mail () CJC mailbox (X) Email
Defendant's Counsel:
David Barrish, Esq.
1333 Race Street
Philadelphia, PA 19107-1556
(215) 557-6710
dwbarrish@hotmail.com
Type of Service: ( ) Personal (X) Regular mail () CJC mailbox (X) Email
Defendant/Petitioner:
Khalil Smith
1422 W. Lenox Street
Philadelphia, PA 19140
Type of Service: ( ) Personal (X) Regular mail O CJC mailbox() Email
DATED:
Law Clerk to Hon. Daniel J. Anders