J-S43008-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.H. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: M.H. :
:
:
:
:
: No. 39 WDA 2020
Appeal from the Order Entered December 10, 2019
In the Court of Common Pleas of Allegheny County Juvenile Division at
No(s): CP-02-JV-0000282-2019
BEFORE: SHOGAN, J., STABILE, J., and KING, J.
MEMORANDUM BY SHOGAN, J.: FILED: MARCH 5, 2021
Appellant, M.H., a minor, appeals from the dispositional order entered
after he was adjudicated delinquent on charges of possession of a firearm by
a minor and carrying a firearm without a license.1 We affirm.
The juvenile court summarized the factual history of this case as follows:
At the time of the adjudication hearing on this matter the
only witnesses to testify were employed by the City of Pittsburgh
Police Department. One of these witnesses was called on behalf
of [Appellant], Detective Sheila Ladner. Detective Ladner testified
that she had been employed in the Narcotics Division with the City
of Pittsburgh for approximately 11 years. On February 13, 2019
she was engaged in a Narcotic Suppression detail within the City
of Pittsburgh. Her duties were to attempt to buy drugs from
potential drug dealers. At that time, she was flagged down by
someone driving an SUV at which time she approached the
driver’s window. She was able to purchase from the driver 4
bundles of suspected heroin. This [c]ourt takes judicial notice that
heroin is sold in stamp bags, with 10 individual stamp bags
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1 18 Pa.C.S. §§ 6110.1(a) and 6106(a)(1), respectively.
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constituting what is known as a bundle. The detective was asked
whether she saw [Appellant] in the backseat on the phone at the
time of the sale, however she stated that she could not recall.
The Commonwealth presented in its case in chief, City of
Pittsburgh Detective Michael Lafferty. Detective Lafferty was
working in his capacity on February 13, 2019 as a City of
Pittsburgh Detective as a member of what is known as a takedown
vehicle. Once a pre-determined signal was provided by Detective
Ladner, Detective Lafferty would immediately drive his vehicle and
stop the suspect vehicle. He would then exit his vehicle and
approach the occupants of the suspect car. Detective Ladner gave
the signal that the sale of narcotics had occurred at which time
Detective Lafferty, activated his emergency lights and stopped the
vehicle parking directly behind it. As he exited his vehicle he
observed a person through the rear window. He saw the rear seat
passenger bend down toward the floor behind the driver’s seat.
Upon seeing this he began to shout “he’s moving, he’s moving.”
The person he observed in the rear passenger seat moving was
later determined to be [Appellant]. A different detective began to
remove the driver, and [Appellant] heard this detective shout
upon opening the rear door “gun, gun.” Detective Lafferty
testified that he was able to observe, after the removal of
[Appellant] from the vehicle, a pistol in plain view on the floor
behind the driver’s seat.
Also testifying [was] City of Pittsburgh Detective Andrew
Shipp. Detective Shipp, was also working in the area and he as
well would be operating in the takedown vehicle. Again, based
upon the pre-determined signal, he exited his vehicle and
approached the suspect vehicle on the driver[’s] side. As he
approached the vehicle, he observed through the driver[’s] side
rear passenger window [Appellant]. He saw him bend his body
over, reaching down from his position in the rear passenger seat
toward the floor behind the driver[’s] seat. At no time did
Detective Shipp see the driver reach toward the back seat of the
vehicle. Upon opening the rear driver's side door, a firearm was
seen, in plain view, on the rear driver[’s] side floor where
[Appellant] had been seen reaching. A crime lab report was
submitted into evidence verifying that the firearm was a Glock
pistol with a loaded clip, and in operable condition. Further, the
Commonwealth presented evidence that [Appellant] was under
the age of 18 at the time of the stop.
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Juvenile Court Opinion, 5/27/20, at 2-3.
A petition alleging delinquency was filed charging Appellant with the
crimes stated above. On November 21, 2019, the juvenile court held an
adjudicatory hearing. At the conclusion of the hearing, Appellant was
adjudicated delinquent on both charges. On December 10, 2019, the juvenile
court entered a dispositional order, which committed Appellant to a juvenile
placement facility. This timely appeal followed. Both Appellant and the
juvenile court complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Whether the evidence presented by the Commonwealth was
sufficient to support the adjudication of [Appellant,] a minor, for
Possession of a Firearm by a Minor?
2. Whether the evidence presented by the Commonwealth was
sufficient to support the adjudication of [Appellant], a minor, for
Carrying a Firearm Without A license?
Appellant’s Brief at 3.
Appellant’s issues challenge the sufficiency of the evidence to support
each of his convictions. In each issue Appellant argues that the
Commonwealth failed to establish beyond a reasonable doubt that Appellant
was in possession of the firearm present in the vehicle. Appellant’s Brief at
11-14, 14-16. Specifically, Appellant asserts there was insufficient evidence
to allow the fact finder to conclude that Appellant had constructive possession
of the gun. Id. at 12-14, 15-16. We will address Appellant’s issues together.
In addressing these claims, we are mindful of the following:
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When a juvenile is charged with an act that would constitute a
crime if committed by an adult, the Commonwealth must establish
the elements of the crime by proof beyond a reasonable doubt.
When considering a challenge to the sufficiency of the evidence
following an adjudication of delinquency, we must review the
entire record and view the evidence in the light most favorable to
the Commonwealth.
In determining whether the Commonwealth presented sufficient
evidence to meet its burden of proof, the test to be applied is
whether, viewing the evidence in the light most favorable to the
Commonwealth and drawing all reasonable inferences therefrom,
there is sufficient evidence to find every element of the crime
charged. The Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable doubt by wholly
circumstantial evidence.
The facts and circumstances established by the Commonwealth
need not be absolutely incompatible with a defendant’s innocence.
Questions of doubt are for the hearing judge, unless the evidence
is so weak that, as a matter of law, no probability of fact can be
drawn from the combined circumstances established by the
Commonwealth.
In re V.C., 66 A.3d 341, 348-349 (Pa. Super. 2013) (citation and quotation
marks omitted).
In order to allow the juvenile court to adjudicate Appellant delinquent
of possession of a firearm by a minor, the Commonwealth was required to
prove that: (1) the weapon was a firearm as defined by the statute, (2)
Appellant was in possession of the firearm, and (3) Appellant was under the
age of 18 at the time of the offense. 18 Pa.C.S. § 6110.1(a).
Appellant also claims that the evidence presented by the Commonwealth
was insufficient to establish carrying a firearm without a license. The relevant
statute is 18 Pa.C.S. § 6106, which provides in pertinent part as follows:
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Except as [otherwise] provided … any person who carries a firearm
in any vehicle or any person who carries a firearm concealed on
or about his person, except in his place of abode or fixed place of
business, without a valid and lawfully issued license under this
chapter commits a felony of the third degree.
18 Pa.C.S. § 6106(a)(1).
Possession of a firearm is an essential element of Sections 6106 and
6110.1. To establish the element of possession, this Court has explained that
“[p]ossession can be found by proving actual possession, constructive
possession, or joint constructive possession.” Commonwealth v. Parrish,
191 A.3d 31, 36 (Pa. Super. 2018) (citation omitted). Because the firearm
was not found on Appellant’s person, the Commonwealth was required to
prove constructive possession to establish this element of the offenses. We
previously have determined:
Constructive possession is a legal fiction, a pragmatic construct to
deal with the realities of criminal law enforcement. We have
defined constructive possession as conscious dominion, meaning
that the defendant has 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.
It is well established that, as with any other element of a
crime, constructive possession may be proven by circumstantial
evidence. 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 contraband at
issue.
Parrish, 191 A.3d at 36–37 (internal citations and quotations omitted).
Additionally, we observe it is possible for two people to have joint constructive
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possession of an item of contraband. Commonwealth v. Hopkins, 67 A.3d
817, 820-821 (Pa. Super. 2013).
Our application of the legal fiction of constructive possession
occasionally arises when, as here, contraband is found in a common area
where others have access. In these situations, all of the attendant facts and
circumstances are weighed to determine whether the Commonwealth proved
the defendant’s ability and intent to exercise control over the item in question.
Commonwealth v. Miking, 17 A.3d 924, 926 (Pa. Super. 2011).
In addressing whether there was sufficient evidence to establish
Appellant had constructive possession of the firearm located in the SUV, the
juvenile court offered the following analysis:
In the present case, police on a Drug Suppression detail,
purchased heroin from the driver of an SUV. Thereafter, back up
police detectives activated their takedown lights, stopping the
vehicle. Upon exiting their vehicles the detectives observed
[Appellant] bend down from the rear passenger seat to the area
directly behind the driver seat. This behavior occurred after the
vehicle had been stopped by use of the police vehicle emergency
lights. Upon removing the occupants, it was found that there was
one person in the driver seat, and the only other person present
was [Appellant] who was located in the rear passenger seat. This
[c]ourt finds that the detectives were credible in their testimony
that they were able to see [Appellant] in the furtive act of bending
over toward the area where the firearm was found. Further, the
[c]ourt notes that the firearm was in plain view to any person that
would be seated in the backseat. Finally, at no time, was any
evidence presented that the driver made any movement toward
the rear seat. Therefore, based upon the totality of the
circumstances, this [c]ourt found beyond a reasonable doubt a
factual basis for the adjudication.
Juvenile Court Opinion, 5/27/20, at 5. We agree.
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Upon review of the record in the light most favorable to the
Commonwealth, we are likewise convinced that the juvenile court judge,
sitting as the finder of fact, could conclude properly that Appellant
constructively possessed the firearm beyond a reasonable doubt. The record
reflects Detective Lafferty testified that he and a team of detectives
approached an SUV that had just been involved in a drug transaction and
Appellant was the sole passenger and seated in the rear passenger seat. N.T.,
11/12/19, at 13, 22. The detective stated that as he approached the vehicle
he witnessed Appellant lean his body totally down from the rear passenger
seat towards the floor behind the driver’s seat. Id. at 13. Detective Lafferty
then called out to the other detectives, “He’s moving, He’s moving.” Id. at
14. Detective Lafferty testified that as Appellant was being removed from the
rear passenger seat, another detective announced, “Gun gun,” to notify
everyone present that a firearm was in the vehicle. Id. at 22. The detective
stated that he “observed the firearm on the driver’s side rear floorboard area.”
Id. Detective Lafferty further explained the location of the firearm as follows:
“So like the rear seat, but on the driver’s side. ... It was right in the area
[Appellant] was leaning down towards.” Id. at 23.
In addition, Detective Shipp testified that he approached the SUV from
the driver’s side of the vehicle. N.T., 11/12/19, at 37. The detective explained
that he saw Appellant, seated in the rear of the vehicle, “reaching from the
passenger side of the vehicle towards [the space] behind the driver’s seat area
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of the vehicle.” Id. at 37-38. In describing Appellant’s actions,
Detective Shipp noted, “[Appellant] quickly ducked to his left towards the
driver’s -- behind the rear driver’s seat area and then popped back up in a
seated position.” Id. at 38. Further, the detective testified that there were
only two occupants in the vehicle and that he did not see the driver make any
movement into the rear compartment area. Id. Detective Shipp stated that
he observed the firearm in the rear of the vehicle and recovered the gun. Id.
at 39-40.
This testimony from Detective Lafferty and Detective Shipp permits the
finder of fact to determine that Appellant had constructive possession of the
firearm. This evidence, viewed in the light most favorable to the
Commonwealth as verdict winner, is sufficient to establish that Appellant
committed the acts which constituted both firearm offenses. Hence,
Appellant’s contrary claim lacks merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/5/2021
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