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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ISIAH WILLIAMS, : No. 2643 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, July 15, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0003519-2014
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 19, 2017
Isiah Williams appeals from the judgment of sentence entered in the
Court of Common Pleas of Philadelphia County following his conviction in a
waiver trial of unlawful possession of a firearm, firearm not to be carried
without a license, and carrying a firearm on a public street in Philadelphia.1
The trial court sentenced appellant to 5 to 10 years’ incarceration on the
unlawful possession of a firearm count and 5 years of consecutive probation
for carrying a firearm without a license. The trial court imposed no further
penalty on the remaining count. We affirm.
The trial court set forth the following:
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 6105(a)(1), 18 Pa.C.S.A. § 6106(a)(1), and 18 Pa.C.S.A.
§ 6108, respectively.
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On March 10, 2014, at approximately
8:35 p.m., Officer Antoine Wesley and his partner,
Officer Colon, stopped a black Hyundai Sonata driven
by [appellant] in the area of 2900 N. 2nd Street.
Officer Wesley observed [appellant] driving the
vehicle “at a high rate of speed.” He and his partner
activated their lights and sirens and pulled over
[appellant’s] vehicle. [Appellant] was the only
occupant. Officer Wesley smelled a strong odor of
burnt marijuana coming from the vehicle and asked
for license and registration. [Appellant] failed to
produce a driver’s license and could only produce a
Budget rental agreement, which alerted
Officer Wesley to conduct a live stop of the vehicle.
At that time, [appellant] was operating the vehicle
with keys in the ignition that could also open the
trunk. A subsequent inventory search of the trunk
revealed a black and red book bag containing a
handgun and a plastic sandwich bag.[Footnote 1]
Police found six .32 caliber rounds inside the gun and
22 different caliber rounds inside the plastic bag.
[Appellant] did not possess a valid permit to carry
such a handgun.[Footnote 2] Officer Wesley then
arrested [appellant] for firearm violations.
[Footnote 1] Both counsels stipulated
that analysts at the ballistics lab had
tested the hand[gun], finding it to be
operable.
[Footnote 2] Both counsels stipulated
that [appellant] was prohibited from
possessing a firearm under
18 Pa.C.S.[A.] § 6105.
Brittney Boyd and Akeem Williams testified as
defense witnesses. Ms. Boyd, [appellant’s] wife,
testified that the Budget rental agreement was under
her name. She rented the car for a month, but only
drove it for two weeks before she lent the car to
[appellant’s] brother, Akeem Williams. She was not
present in the vehicle on [the] day in question.
Mr. Williams testified that on that day, [appellant]
picked up the rental car from him in the morning.
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He had no intentions to borrow the car from
Ms. Boyd after that day. He testified that before
[appellant] was arrested, he had used the rental car
to help a friend move, and his friend placed bags in
the trunk. Both Ms. Boyd and Mr. Williams testified
that on that day, [appellant] was supposed to pick
up his children from school before returning the
rental car.
As a result of this stop, Officer Wesley cited
[appellant] for two summary offenses under the
Motor Vehicle Code: failure to drive at a safe speed
pursuant to 75 Pa.C.S.[A.] § 3361 and operating a
vehicle without a license pursuant to 75 Pa.C.S.[A.]
§ 1501(a). On May 14, 2014, a Municipal Court
Judge found [appellant] guilty in absentia of these
two summary offenses. The Commonwealth also
charged [appellant] with three violations of the
Uniform Firearms Act pursuant to 18 Pa.C.S.[A.]
§[§] 6105, 6106, and 6108. On February 23, 2015,
the trial court found [appellant] guilty of all three
charges concerning a Violation of the Uniform
Firearms Act[].
Trial court opinion, 11/23/15 at 2-4 (citations to notes of testimony and trial
court record omitted).
Appellant raises the following issues for our review:
[1.] Was the evidence presented at trial sufficient
as a matter of law to support the conviction for
carrying a firearm without a license
(18 Pa.C.S.A. § 6106), persons not to possess
firearms (18 Pa.C.S.A. § 6105), and carrying a
firearm in Philadelphia (18 Pa.C.S.A. § 6108),
where the evidence of record did not establish
beyond a reasonable doubt that [appellant]
constructively possessed a firearm recovered
in the trunk of a rental car which was rented
by another person and used by several other
people?
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[2.] With respect to the charges of carrying a
firearm without a license (18 Pa.C.S.A.
§ 6106), persons not to possess firearms
(18 Pa.C.S.A. § 6105), and carrying a firearm
in Philadelphia (18 Pa.C.S.A. § 6108), was the
verdict against the weight of the evidence and
so contrary to the evidence that it shocks one’s
sense of justice where the Commonwealth’s
evidence at trial consisted of the fact that a
firearm was recovered from inside a back pack,
inside the trunk of a rental car which was
rented by a person other than [appellant] and
used by several other people?
[3.] Did the trial court erred [sic] when it denied
[appellant’s] motion seeking dismissal of the
charges against [appellant] based upon
18 Pa.C.S.A. § 110[, the compulsory joinder
statute]?
Appellant’s brief at 6-7.
Appellant first complains that the Commonwealth failed to produce
sufficient evidence to support his convictions because it failed to establish
beyond a reasonable doubt that appellant constructively possessed the
firearm that police recovered from the trunk of the rental car that appellant
was driving.
Our standard of review for a challenge to the
sufficiency of the evidence is well settled. We must
view all the evidence in the light most favorable to
the verdict winner, giving that party the benefit of all
reasonable inferences to be drawn therefrom.
Additionally, it is not the role of an appellate court to
weigh the evidence or to substitute our judgment for
that of the fact-finder.
Commonwealth v. Alford, 880 A.2d 666, 669-670 (Pa.Super. 2005),
appeal denied, 890 A.2d 1055 (Pa. 2005), quoting Commonwealth v.
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Gruff, 822 A.2d 773, 775 (Pa.Super. 2003), appeal denied, 863 A.2d 1143
(Pa. 2004) (citations omitted).
Because the firearm was not found on appellant’s person, the
Commonwealth was required to prove that appellant constructively
possessed the firearm. See Commonwealth v. Brown, 48 A.3d 426, 430
(Pa.Super. 2012).
Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law
enforcement. Constructive possession is an
inference arising from a set of facts that possession
of the contraband was more likely than not. 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. Parker, 847 A.2d 745, 750 (Pa.Super. 2004) (internal
citations and quotation marks omitted). “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.”
Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa. Super. 2013) (citation
omitted). “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.” Id.
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Here, Officer Wesley testified that he observed appellant driving at a
high rate of speed. (Notes of testimony, 2/23/15 at 9.) For that reason, he
and his partner pulled appellant over. (Id. at 9-10.) After pulling appellant
over, Officer Wesley smelled a strong odor of burnt marijuana coming from
the inside of the car. (Id. at 10.) Officer Wesley also observed that
appellant was the only person inside the vehicle. (Id. at 9.) At that point,
appellant could not produce a driver’s license or vehicle registration. (Id. at
10.) Officer Wesley then learned that appellant was driving a vehicle that
was rented to someone else and that appellant was driving that vehicle
without a valid driver’s license. (Id.)
Officer Wesley then conducted a vehicle inventory. (Id.) The officer
opened the trunk of the vehicle with the keys that appellant had in his
possession and which appellant also used to operate the vehicle. (Id. at
12-13.) Inside the trunk of the vehicle, Officer Wesley found a book bag
containing a gun loaded with 6 live rounds, together with a plastic bag
containing 22 different caliber rounds. (Id. at 10.)
At trial, appellant presented two defense witnesses in an attempt to
demonstrate that the gun may have belonged to someone else. Appellant’s
wife testified that she rented the vehicle, but that she loaned it to appellant’s
brother. (Id. at 25.) Appellant’s brother testified that he used the vehicle
to help his friend move and that his friend placed items in the trunk of the
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car shortly before he turned the car over to appellant. (Id. at 37-39.)
Appellant did not offer his brother’s friend as a witness.
Appellant’s brother further testified that shortly after his friend placed
the items in the car, he turned the car over to appellant on the morning of
March 10, 2014. (Id. at 42.) Appellant’s wife testified that appellant picked
up their children after school that day and was then to return the rental
vehicle. (Id. at 28.) Appellant was pulled over at approximately 8:35 p.m.
(Id. at 8.) Appellant offered no evidence to explain his whereabouts
between the time he allegedly picked up his children from school and the
time police pulled him over.
Therefore, under the totality of the circumstances, the evidence was
sufficient to establish constructive possession. The trial court, sitting as
fact-finder, could reasonably infer that appellant had both the ability and
intent to control the firearm because appellant exercised control over the
vehicle by driving the vehicle, being its only occupant, and possessing the
keys that operated the vehicle and that also opened the trunk where the gun
was stored. Moreover, the trial court found the defense witnesses’
testimony to be incredible for lack of common sense and failure to explain a
significant time gap. The fact-finder exclusively assesses witness credibility
and may choose to believe all, part, or none of the evidence.
Commonwealth v. Sanchez, 36 A.3d 24, 39 (Pa. 2011). Therefore,
appellant’s sufficiency claim lacks merit.
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Appellant next complains that the verdict was against the weight of
the evidence because the Commonwealth failed to prove constructive
possession of the firearm.
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination
that the verdict is against the weight of the
evidence. One of the least assailable reasons for
granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against
the weight of the evidence and that a new trial
should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations
omitted; emphasis omitted).
The weight of the evidence is exclusively for the
finder of fact who is free to believe all, part, or none
of the evidence and to determine the credibility of
the witnesses. An appellate court cannot substitute
its judgment for that of the finder of fact. Thus, we
may only reverse the . . . verdict if it is so contrary
to the evidence as to shock one’s sense of justice.
Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011).
Appellant specifically complains that the verdict was against the weight
of the evidence because “the only evidence linking [appellant] to the gun
was the fact that both he and the gun were located in the same vehicle.”
(Appellant’s brief at 33.) The Commonwealth, however, presented the
testimony of Officer Wesley which, if believed, established that appellant
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constructively possessed the firearm because he exercised control over the
vehicle and, therefore, the gun because he was the sole occupant of the
vehicle, and he possessed the keys necessary to operate the vehicle and
open the trunk where police found the gun. Although appellant presented
two defense witnesses, the trial court found their testimony wholly incredible
for lack of common sense and failure to explain a significant time gap. In its
opinion, the trial court also noted that both defense witnesses -- appellant’s
wife and his brother -- had a strong motive to lie and fabricate evidence.
(Trial court opinion, 11/23/15 at 9.) The trial court, sitting as fact-finder,
was free to determine witness credibility. See Devine, 26 A.3d at 1146.
We cannot substitute our judgment for that of the fact-finder. See id.
Therefore, the trial court properly concluded that the verdict was not against
the weight of the evidence and did not shock one’s sense of justice.
Finally, appellant complains that the trial court erred when it denied
his motion to dismiss under the compulsory joinder statute, 18 Pa.C.S.A.
§ 110. Specifically, appellant complains that because he was convicted of
the summary traffic offenses of failure to drive at a safe speed and operating
a vehicle without a license2 prior to being convicted of the firearms
violations, the compulsory joinder statute barred his subsequent prosecution
for the firearms violations. Preliminary, we note that appellant’s conviction
for possession of a firearm prohibited was graded as a second-degree felony,
2 75 Pa.C.S.A. § 3361 and 75 Pa.C.S.A. § 1501(a), respectively.
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his conviction for firearms not to be carried without a license was graded as
a third-degree felony, and his conviction for carrying firearms in public in
Philadelphia was graded as a first-degree misdemeanor.
The compulsory joinder rule bars a subsequent prosecution if each of
the following test prongs is met:
(1) the former prosecution resulted in an acquittal or
conviction; (2) the current prosecution was based on
the same criminal conduct or arose from the same
criminal episode; (3) the prosecutor in the
subsequent trial was aware of the charges before the
first trial; and (4) all charges [are] within the same
judicial district as the former prosecution.
Commonwealth v. Reid, 77 A.3d 579, 582 (Pa. 2013) (citation omitted;
bracket in original).
Here, no dispute exists that appellant’s prosecution on the summary
traffic offenses resulted in convictions, that his subsequent firearms
prosecutions were based on the same criminal conduct or arose from the
same criminal episode, and that the Commonwealth knew of the firearms
charges before the summary trial. In light of this court’s recent en banc
decision in Commonwealth v. Perfetto, A.3d , 2017 WL 3776631
(Pa.Super. 2017) (en banc), however, appellant fails to satisfy the fourth
Reid test prong.
In Perfetto, 2017 WL 3776631 at *11, this court held that where, as
here, a defendant’s summary traffic offense was to be heard solely in the
Philadelphia Municipal Court Traffic Division pursuant to its jurisdiction in
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accordance with Pa.C.S.A. § 1302(a.1)(1)(i), a prior disposition of that
summary traffic offense in traffic court does not bar a later prosecution of
other criminal charges that arose in the same judicial district and at the
same time as the summary traffic offense because Section 1302 carves out
an exception to compulsory joinder and directs that the summary traffic
offense is within the exclusive jurisdiction of the traffic court. Consequently,
appellant’s subsequent prosecution on the firearms violations was not barred
by compulsory joinder.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2017
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