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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RENE VEGA, :
:
Appellant : No. 2053 EDA 2015
Appeal from the Judgment of Sentence May 18, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0010724-2012
BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 18, 2016
Appellant, Rene Vega, appeals from the Judgment of Sentence entered
in the Philadelphia County Court of Common Pleas following his convictions
after a bench trial of Persons Not to Possess Firearms, Carrying a Firearm
Without a License, and Carrying a Firearm in Public in Philadelphia.1
Appellant challenges the sufficiency of the evidence to support his
possession of the firearm in question. After careful review, we reverse.
The facts, as gleaned from the trial court’s Pa.R.A.P. 1925(a) Opinion
and the trial record, are as follows. On June 23, 2012, in response to a
radio call, Philadelphia Highway Patrol Officers Cedric Carter and Scott
Holmes arrived at the intersection of E Street and East Westmoreland Street
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1
18 Pa.C.S. § 6105; 18 Pa.C.S. § 6106; and 18 Pa.C.S. § 6108,
respectively.
*Former Justice specially assigned to the Superior Court.
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in Philadelphia. Officer Carter saw Appellant and another male leaving a
barbershop located near the corner. After exiting the police car, Officer
Holmes immediately detained the other male. Officer Carter followed
Appellant as he walked back into the barbershop, and Officer Carter saw
Appellant then enter the public bathroom and exit five to ten seconds later.
The public bathroom is open to anyone in the barbershop. According to
Officer Carter, Appellant was not adjusting his pants or drying his hands as
he was leaving the bathroom and he appeared nervous. After Officer Carter
asked Appellant what he was doing, Appellant “said he [had] had to use the
bathroom.” N.T. Trial, 2/27/15, at 9-11.
Officer Carter detained Appellant for investigation and entered the
bathroom, a five-by-five-foot room containing a toilet, sink, and a dropped
tile ceiling approximately nine feet high. Trial Court Opinion, filed 12/3/15,
at 2-3. Once in the bathroom, Officer Carter observed the butt of a revolver
sticking out from above a displaced ceiling tile. He recovered the revolver,
which was loaded with two live rounds and three spent casings. The gun
was not tested for fingerprints or DNA evidence. Officer Carter did not test
Appellant’s hands for gunshot residue or otherwise protect them for later
testing. See N.T. at 9-16, 22-25.
Appellant was arrested and charged with the above crimes. At
Appellant’s waiver trial on February 27, 2015, Officer Carter admitted on
cross-examination that he never saw a bulge in Appellant’s waistband or
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elsewhere on his body that would indicate that the Appellant had a firearm
on his person before he entered the public bathroom. Id. at 18. Officer
Carter also testified that approximately twenty seconds passed from the
time he exited his patrol car to when he saw the Appellant approach the
bathroom, and at no point did he see Appellant reach for his waistband or
otherwise make movements indicating Appellant was in possession of a
weapon. See id. at 9-11, 18, 22.
Officer Carter also testified that he did not know the number of people
in the barbershop when he pulled up or shortly before the radio call. There
were, however, two or three people in the basement of the barbershop,
which was accessible from an outside door. Id. at 16, 27-28. See also
Trial Court Opinion at 2. The officer further testified that he did not hear any
ceiling tiles moving, and did not know if any other ceiling tiles were removed
or out of place. N.T. at 22-23. He also did not check the toilet for urine. Id.
at 24-25.
Counsel stipulated that: (1) Appellant is 5’9” tall; (2) the firearm
Officer Carter recovered from the ceiling was operable and loaded; and (3)
Appellant is prohibited from possessing a firearm under Section 6105. Id. at
33; Trial Court Opinion at 3.
The trial court found Appellant guilty of all charges and on May 18,
2015, sentenced him to an aggregate term of incarceration of time served to
23 months, followed by 5 years’ probation.
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Appellant filed a timely Notice of Appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
Did the Court err by finding [Appellant] guilty of Possession of
Firearm (18 § 6105), Firearms not to be carried W/O License (18
§ 6106), and carrying Firearms in Public (18 § 6108)? Was the
evidence insufficient? Officer Carter never secured the weapon
for fingerprints or any DNA analysis, or tested the [Appellant’s]
hands for gunshot residue.
Appellant’s Brief at 3 (capitalization omitted).2
Appellant challenges the sufficiency of the evidence supporting each of
his firearms convictions. We review claims challenging 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).
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2
The Commonwealth argues that Appellant’s Rule 1925(b) Statement failed
to preserve his sufficiency challenge because it did not specify the elements
upon which the evidence was insufficient. Commonwealth’s Brief at 5-7.
We decline to find Appellant’s claim waived because the issue is relatively
straightforward and obvious from the record, the certified record is short,
and the trial court’s Rule 1925(a) Opinion accurately identifies and addresses
the pertinent issue. See Commonwealth v. Laboy, 936 A.2d 1058, 1060
(Pa. 2007) (issues raised in a vague Rule 1925(b) statement may
nonetheless be preserved for appellate review if: (1) the case is relatively
straightforward; (2) the certified record is short; (3) it is obvious from the
record what the pertinent issues are; and (4) the trial court accurately
identifies and addresses the pertinent issues in a Rule 1925(a) Opinion.).
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The trial court found Appellant guilty of the firearms offenses codified
at 18 Pa.C.S. §§ 6105(a)(1) 6106(a)(1) and 6108. These statutes provide:
§ 6105. Persons not to possess, use manufacture,
control, sell or transfer firearms
(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. § 6105(a)(1).
§ 6106. Firearms not to be carried without a license
(a) Offense defined.—
(1) Except as provided in paragraph (2), any person who
carries a firearm in any vehicle or any person who carries a
firearm concealed on or about his person, … without a valid
and lawfully issued license under this chapter commits a
felony of the third degree.
18 Pa.C.S. § 6106(a)(1).
§ 6108. Carrying firearms on public streets or public
property in Philadelphia
No person shall carry a firearm, rifle or shotgun at any time
upon the public streets or upon any public property in a city of
the first class unless:
(1) such person is licensed to carry a firearm; or
(2) such person is exempt from licensing under section 6106
of this title (relating to firearms not to be carried without a
license).
18 Pa.C.S. § 6108.
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Appellant specifically challenges the evidence supporting the
possession element of these offenses. This Court has held that, “Possession
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:
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. 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. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013) (citations
omitted).
It is well established that, “As 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). 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.
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.
See generally Commonwealth v. Stanley, 309 A.2d 408 (Pa. 1973)
(stating that evidence that defendant was observed walking out of a
doorway near a bent window screen, which had been pried away, and
putting an unknown object into a nearby sand pile, which was later found to
be a screwdriver, was insufficient for possession of burglary tools); cf.
Commonwealth v. Davis, 480 A.2d 1035 (Pa. Super. 1984) (upholding
evidence as sufficient to support possession of heroin where police entered
second floor and observed defendant exit bathroom, police heard commode
flushing, and police recovered heroin from the commode).
Appellant argues that the Commonwealth failed to present sufficient
circumstantial evidence to establish that Appellant constructively possessed
the firearm.3 Specifically, he avers:
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3
We note that the Commonwealth did not argue that Appellant actually
possessed the firearm. N.T. Trial, 2/27/15, at 39 (prosecutor stating
“obviously, this is circumstantial evidence and this is a constructive
(Footnote Continued Next Page)
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Appellant Rene Vega made no movements to indicate to
Officer Carter that he has a weapon on him at any point. Officer
Carter does not see a bulge in the pants, shorts, or shirt of
Appellant Vega. Appellant Rene Vega then goes into the
bathroom. He is in the bathroom for what Officer Carter believes
is a brief period of time. Officer Carter hears nothing going on in
the bathroom. He does not hear a ceiling tile being pushed over.
Appellant Vega is five feet, nine inches tall. The ceiling is
at least nine feet high, according to Officer Carter. Appellant
Rene Vega would not have been able to reach up, secrete a gun
in the ceiling tile, move the tile, and come back out of the
bathroom in that short period of time.
The weapon was not secured for fingerprints, or any DNA
analysis. There was no testing of the hands of Appellant Vega
for gunshot residue. The bathroom was open to the public,
other people had access to it. There was insufficient evidence to
convict him. There is nothing to connect Appellant Rene Vega to
that gun. There is no nexus by physical evidence, by sight, or
by sound. There is just mere presence in a bathroom where a
gun is later recovered from.
Appellant’s Brief at 7.
The trial court concluded that the Commonwealth had presented
sufficient evidence to establish that Appellant had constructive possession of
the firearm. Trial Court Opinion, filed 12/3/15, at 4-7. The trial court
concluded that Appellant “displayed the power to control the firearm and the
intent to exercise that control [because h]e was the only one inside the
bathroom, which is a small 5x5 room with one toilet and sink, and the
_______________________
(Footnote Continued)
possession case. No one is denying that because no one sees the defendant
with a gun.”).
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location of the firearm is consistent with the [time frame] that [Appellant]
used to hide the firearm in the ceiling.” Id. at 6.
Contrary to the trial court’s conclusion, even when we view the
evidence in the light most favorable to the Commonwealth as verdict winner,
we cannot conclude that the evidence was sufficient to prove that Appellant
possessed, constructively or actually, the firearm.
The evidence did not prove Appellant actually possessed the firearm,
which the Commonwealth conceded. N.T. Trial, 2/27/15, at 39. Officer
Carter did not observe Appellant in possession of the firearm and he did not
observe any bulges or reaches to his waistband prior to Appellant’s entry
into the public bathroom. Id. at 18, 22, 25-27. Officer Carter did not
observe Appellant secrete the firearm; nor did he hear any sounds
consistent with Appellant standing on the toilet or sink, moving a ceiling tile,
or otherwise secreting the weapon. Id. at 22-23.4
The Commonwealth only established that police observed Appellant in
close proximity to a firearm recovered from a public bathroom. From this
fact, the trial court erroneously inferred that it was the Appellant who placed
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4
The Commonwealth includes two additional “facts” in its “Counter-
Statement of the Case” which are not part of the certified record. See
Commonwealth’s Brief at 2. During the trial, the Commonwealth attempted,
at least twice, to elicit testimony about these facts and the trial court
specifically struck from the record such testimony. See N.T., at 8-9. We,
thus, disregard the Commonwealth’s references to these excluded facts.
See Pa.R.A.P. 1921 (Note) (citing Commonwealth v. Young, 317 A.2d
258, 264 (Pa. 1974)).
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the firearm in the ceiling and thus exercised dominion. These facts
amounted to “mere association, suspicion, or conjecture.” Appellant’s mere
presence in a public bathroom where the police found a weapon after the
Appellant exited, without more, is insufficient to establish the element of
possession.
In light of the above facts, the Commonwealth’s circumstantial
evidence was insufficient to prove that Appellant constructively possessed
the firearm. Because the trial court’s conclusion was not supported by
sufficient evidence, even when viewing that evidence in the light most
favorable to the Commonwealth, we are constrained to reverse Appellant’s
Judgment of Sentence.
Judgment of Sentence reversed. Appellant discharged. Jurisdiction
relinquished.
Judge Lazarus joins the memorandum.
PJE Stevens files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/2016
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