J-S74009-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NICHOLAS DELGADO, :
:
Appellant : No. 3514 EDA 2017
Appeal from the Judgment of Sentence March 22, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014752-2013
BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY LAZARUS, J. Filed: January 2, 2019
Nicholas Delgado appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, following his conviction of
possession of a firearm prohibited.1 After our review, we affirm.
____________________________________________
1 18 Pa.C.S.A. § 6105.
(a) Offense defined.--
(1) 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.
18 Pa.C.S.A § 6105(a)(1) (emphasis added).
J-S74009-18
On October 18, 2013, Pennsylvania State Parole Agents John Collier and
Darren Baker, along with members of the Philadelphia Police Department,
went to Delgado’s residence at 6637 Oakland Street in Philadelphia after
receiving a tip2 that Delgado, a convicted felon currently on parole, was in
possession of firearms. N.T. Trial, 8/19/15, at 13. At the residence, Agent
Baker and a police officer proceeded to the basement. There, they
encountered Delgado and two other individuals. Id. at 14. Agent Baker
testified that he observed two handguns in plain view on top of the clothes
dryer, within arm’s reach of Delgado. Id. at 15. The agents also found an
SKS assault rifle in the garage of the home and a third handgun under
Delgado’s mattress in the master bedroom. Id. at 17-18.
Delgado waived a jury trial and was tried before the Honorable Carolyn
H. Nichols.3 At trial, Agent Collier testified that several weeks prior to the
search he had been informed that Delgado was moving to 6637 Oakland
Street. Id. at 56-58, 71. Agent Collier testified as follows:
Q: Okay. Prior to [the search on] October 18th of 2013, had you
met with Mr. Delgado?
____________________________________________
2 Agent Collier testified that the information he received from the Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF) “was that a confidential
informant had informed [ATF] that [Delgado] had firearms at the residence.
N.T. Trial, 8/19/15, at 74.
3Judge Nichols now sits on this Court. At the time of Delgado’s appeal, Judge
Nichols was no longer sitting as a judge in Philadelphia County and, therefore,
she did not file a trial court opinion in this case.
-2-
J-S74009-18
A: Yes. I met with him originally on October the 2nd, 2013. That
was when he had – he had a previous agent, Agent Ashton, at
that time. And when I met with him in the office on that day,
Agent Ashton had informed me that Nicholas Delgado had moved
to the area that I supervised, which was the area, you know, of
his residence at that time on Oakland Street. That was the area
that I supervised. You know, we go by census tracts at the Parole
Board. So he had moved into my area. She introduced me to him
and told him that he would be assigned to me now. At that point,
I gave him reporting instructions and told him I would be out to
the house to see him at some point.
Q Okay. And was the address given to you, 6637 Oakland Street?
A: Yes. Yes, it was.
Id. at 56. Additionally, Delgado’s name was on the lease for the property.
See Trial Exhibit D-5; N.T. Trial, supra at 58.
Following trial, the court convicted Delgado of possession of a firearm
prohibited and sentenced him to 3½ to 8 years’ incarceration. Delgado filed
a timely notice of appeal and Pa.R.A.P. 1925(b) statement of errors
complained of on appeal.
Delgado raises one issue for our review: “Did the court commit error
by convicting appellant of possession [of] a firearm prohibited when the
evidence at trial was insufficient to prove that appellant ever possessed a
firearm?” Appellant’s Brief, at 2.
The standard of review of a challenge to the sufficiency of the evidence
follows:
The standard we apply when reviewing the sufficiency
of the evidence is 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.
-3-
J-S74009-18
Commonwealth v. Gibbs, 981 A.2d 274, 280 (Pa. Super. 2009). “[T]his
Court may not substitute its judgment for that of the factfinder, and where
the record contains support for the convictions, they may not be disturbed.”
Commonwealth v. Smith, 146 A.2d 257, 261 (Pa. Super. 2016) (citations
omitted). The finder of fact is permitted to believe all, part, or none of the
evidence presented at trial. Id. at 262.
Even though a person does not physically possess contraband, the
Commonwealth may meet its burden by proving constructive possession.
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) (citations
omitted). See also Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.
Super. 2013). Further, we have held that circumstantial evidence is reviewed
by the same standard as direct evidence, and a decision by the trial court will
be affirmed “so long as the combination of the evidence links the accused to
the crime beyond a reasonable doubt.” Commonwealth v. Johnson, 818
A.2d 514, 516 (Pa. Super. 2003) (citations omitted).
While mere presence of contraband is insufficient to establish
constructive possession, this Court has held that constructive possession can
-4-
J-S74009-18
be found where a defendant, who lived in the house, had both access and
control of the area where the contraband was found. Commonwealth v.
Santiesteban, 552 A.2d 1072, 1075 (Pa. Super. 1988). Further, where a
defendant’s name is on the lease of the property where the contraband was
found, this Court has found constructive possession. Commonwealth v.
Parsons, 570 A.2d 1328, 1335 (Pa. Super. 1990). Finally, and notable here,
it is significant if contraband is found in a bedroom because a bedroom is a
“more private place with limited access and usually subject to the exclusive
control of the owner or lessee of the premises.” Commonwealth v.
Gilchrist, 386 A.2d 603, 605 (Pa. Super. 1978).
Viewing the totality of the circumstances, the evidence was sufficient to
establish constructive possession beyond a reasonable doubt. Delgado’s
name was on the lease of the residence, he had previously informed his parole
agent that he was moving to that address, and officers found a gun in the
master bedroom. Parsons, supra; Gilchrist, supra. See also
Commonwealth v. Nelson, 582 A.2d 1115, 1119 (Pa. Super. 1990) (holding
constructive possession may be found where no individual factor establishes
possession but totality of circumstances demonstrates such).
Judgment of sentence affirmed.
-5-
J-S74009-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/2/2019
-6-