J-S49003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LARRY E. SMITH, :
:
Appellant : No. 549 WDA 2016
Appeal from the Judgment of Sentence March 18, 2016
In the Court of Common Pleas of Blair County
Criminal Division at No.: CP-07-CR-0001415-2014
BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD J.*
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 12, 2017
Appellant, Larry E. Smith, appeals from the Judgment of Sentence
entered in the Blair County Court of Common Pleas, following his conviction
after a jury trial for Persons Not to Possess Firearms.1 He challenges the
sufficiency of the evidence. After careful review, we affirm.
The relevant facts, as gleaned from the certified record, are as follows.
The instant charges stemmed from the Pennsylvania State Police’s seven-
month investigation into Appellant’s suspected drug activity with co-
conspirator Gary Williams. Police used a confidential informant (“CI”) to
conduct several controlled buys of narcotics from Appellant and Williams.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 6105.
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On May 8, 2014, police conducted a final controlled buy of narcotics at
the CI’s residence. Before the controlled buy of narcotics with the CI, police
observed Appellant and Williams exit 1818 15th Avenue in Altoona,
Pennsylvania, as they had on numerous prior occasions. Police arrested
Appellant and Williams after the controlled buy with the CI. Police recovered
$500 of prerecorded buy money from Appellant and a key to the second-
floor apartment at 1818 15th Avenue.
Police obtained and executed a search warrant for Appellant’s
apartment at 1818 15th Avenue. Police found marijuana packaged in the
same manner as marijuana obtained during all of the previous controlled
buys, codeine-laced cough syrup, cocaine, heroin, unused baggies for
packaging, a digital scale, “a fake can” for hiding items, $1990 in U.S.
currency, and a Sig Sauer 9mm pistol. Police recovered all of the drugs,
distribution paraphernalia, and the firearm from common areas of the
apartment.
Pennsylvania State Trooper Steven Peterson testified that he
participated in executing the search warrant at Appellant’s apartment and
found the 9mm Sig Sauer pistol in the pocket of Lucky brand blue jeans in a
large pile of clothing bags located in a common hallway area in the
apartment. Police also discovered mail addressed to both Appellant and
Williams within the apartment.
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The Commonwealth charged Appellant with numerous drug-related
offenses, as well as Persons Not to Possess Firearms. Appellant litigated a
Motion to Suppress the evidence recovered during the May 8, 2014 search of
the apartment, which the suppression court denied. On July 29, 2015, the
trial court granted Appellant’s Motion to Sever the instant firearm charge
from the drug-related offenses.2
Appellant proceeded to a jury trial. Appellant filed a Motion for
Judgment of Acquittal after the Commonwealth rested its case-in-chief, and
renewed the Motion after the close of evidence, which the trial court denied.
On December 18, 2015, a jury convicted Appellant of Persons Not to Possess
Firearms following a two-day jury trial. The trial court imposed a term of
four to ten years’ imprisonment for Appellant’s firearm conviction.
Appellant filed a timely Notice of Appeal on April 15, 2016. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
Whether the [t]rial [c]ourt erred by denying Appellant’s Motion
for Judgment of Acquittal because the testimony and evidence
presented during the two (2) day criminal trial was insufficient to
establish each material element of the crime charged and the
commission thereof by [Appellant] beyond a reasonable doubt.
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2
A jury convicted Appellant of the drug-related offenses, and the trial court
imposed a term of 9½ to 19 years’ imprisonment. This Court affirmed
Appellant’s Judgment of Sentence on December 9, 2016. Commonwealth
v. Smith, No. 1802 WDA 2015 (Pa. Super. filed Dec. 9, 2016) (unpublished
memorandum).
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Appellant’s Brief at 4.
“A motion for judgment of acquittal challenges the sufficiency of the
evidence to sustain a conviction on a particular charge, and is granted only
in cases in which the Commonwealth has failed to carry its burden regarding
that charge.” Commonwealth v. Abed, 989 A.2d 23, 26 (Pa. Super. 2010)
(citations omitted). Appellant challenges the sufficiency of the evidence
supporting his firearm conviction.
We 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. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014)
(citation and quotation omitted). 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. at 40 (citation and quotation
omitted). In conducting this review, the appellate court may not weigh the
evidence and substitute its judgment for the fact-finder. Id. at 39-40
(citation and quotation omitted).
The trial court found Appellant guilty of the firearms offense codified at
18 Pa.C.S. § 6105(a)(1). Section 6105, Persons Not to Possess Firearms
provides, in relevant part, that “[a] person who has been convicted of an
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offense enumerated in subsection (b) . . . 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.” 18 Pa.C.S. §
6105(a)(1).
Appellant specifically challenges the evidence supporting the
possession element of this offense. Appellant argues that the
Commonwealth failed to present sufficient circumstantial evidence to
establish that Appellant constructively possessed the firearm.3 Appellant’s
Brief at 14-19. Thus, we limit our analysis to this element only.4
This Court has held that “[p]ossession can be found by proving actual
possession, constructive possession, or joint constructive possession.”
Commonwealth v. Heidler, 741 A.2d 213, 215 (Pa. Super. 1999). Where
a defendant is not in actual possession of the recovered firearm, the
Commonwealth must establish that the defendant had constructive
possession to support the conviction. Commonwealth v. Hopkins, 67
A.3d 817, 820 (Pa. Super. 2013). “Constructive possession is a legal fiction,
a pragmatic construct to deal with the realities of criminal law enforcement.”
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3
We note that the Commonwealth did not argue that Appellant actually
possessed the firearm. N.T. Trial, 12/18/15, at 17. Rather, the
Commonwealth relied on a theory of joint constructive possession. Id.
4
Appellant concedes that “[t]here was ample testimony proffered by the
Commonwealth to show that [Appellant] is in the class of individuals who is
not to own a firearm.” Appellant’s Brief at 14 (citing N.T. Trial, 12/17/15, at
37-39).
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Id. (citation and quotation omitted). “We have defined constructive
possession as conscious dominion.” Id. (citation and quotation omitted).
“We subsequently defined conscious dominion as the power to control the
contraband and the intent to exercise that control.” Id. (citation and
quotation omitted). “To aid application, we have held that constructive
possession may be established by the totality of the circumstances.” Id.
(citation and quotation omitted).
It is well established that, “[a]s with any other element of a crime,
constructive possession may be proven by circumstantial evidence.”
Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996) (citation
omitted).. In other words, the Commonwealth must establish facts from
which the trier of fact can reasonably infer that the defendant exercised
dominion and control over the weapon. See, e.g., Commonwealth v.
Davis, 743 A.2d 946, 953-54 (Pa. Super. 1999) (holding evidence was
sufficient to prove constructive possession over drugs found in common
areas of apartment where defendant entered apartment using his own key,
possessed $800 in cash on his person, and police recovered defendant’s
identification badge, size-appropriate clothing, and firearms from a
bedroom).
It is insufficient to infer “dominion and control” when the
Commonwealth only provides evidence of the defendant’s presence. See
Commonwealth v. Valette, 613 A.2d 548, 551 (Pa. 1992) (holding mere
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presence at a place where contraband is found or secreted is insufficient
standing alone to prove constructive possession). Moreover, if the only
inference that the fact finder can make from the facts is a suspicion of
possession, the Commonwealth has failed to prove constructive possession.
Id. “It is well settled that facts giving rise to mere ‘association,’ ‘suspicion’
or ‘conjecture,’ will not make out a case of constructive possession.” Id.
Here, the trial court summarily concluded that the evidence was
sufficient to support Appellant’s conviction for Persons Not to Possess
Firearms. Trial Court Opinion, filed 1/27/16, at 4-5. After reviewing the
record and case law, we agree with the trial court’s conclusion.
The extensive testimony about the lengthy investigation showed
Appellant and Williams were engaged in an ongoing drug distribution scheme
based out of their shared apartment at 1818 15th Avenue. The
Commonwealth established that Appellant frequently entered and exited this
apartment, that Appellant had his own key to the apartment, and that
Appellant had mail addressed to him at 1818 15th Avenue inside the
apartment. Appellant also had a cashable check inside the apartment.
From this evidence, it was reasonable for the jury to infer that
Appellant exercised dominion and control over the apartment itself, as well
as the numerous items in the common areas of the apartment. Since the
police found the firearm in the jeans lying in a pile of clothing bags in the
hallway of the apartment, the jury could reasonably infer that Appellant
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exercised dominion and control over the gun as well. See Davis, supra at
953-54. Accordingly, we conclude that the Commonwealth presented
sufficient circumstantial evidence to establish that Appellant constructively
possessed the firearm.
Appellant argues that the jury erroneously concluded that he exercised
dominion and control over the gun because the police recovered the gun in a
shared hallway closer to his co-conspirator’s room and the defense witness
testified that he brought the firearm into the apartment without Appellant’s
knowledge. This argument ignores our standard of review. We must view
all of the evidence in the light most favorable to the Commonwealth as
verdict winner and we may not reweigh the evidence and substitute our
judgment for that of the fact-finder. See Melvin, supra at 39-40.
Viewing the totality of the evidence in the light most favorable to the
Commonwealth as the verdict winner, it is clear that the Commonwealth
proved each element of Section 6105. Appellant’s sufficiency challenge,
thus, fails.
Judgment of Sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2017
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Com. v. Smith, L.
Combined Opinion