Com. v. Brewer, B. ( 2019 )

J-A21008-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BENJAMIN A. BREWER :
:
Appellant : No. 1030 EDA 2017
Appeal from the Judgment of Sentence February 28, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002532-2016
BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.
JUDGMENT ORDER BY PANELLA, J. FILED MARCH 08, 2019
Benjamin A. Brewer appeals from the judgment of sentence entered in
the Philadelphia County Court of Common Pleas following his conviction of
carrying a firearm on the streets of Philadelphia.1 Brewer attacks the
sufficiency of the evidence underlying this conviction. We affirm.
The trial court accurately summarized the history of this case. See Trial
Court Opinion, filed May 25, 2017, at 1-3. Therefore a detailed recitation of
the factual and procedural history is unnecessary.
Our standard of review for a challenge to the sufficiency of the evidence
is to determine whether, when viewed in a light most favorable to the verdict
winner, the evidence at trial and all reasonable inferences therefrom are
____________________________________________
118 Pa.C.S.A. § 6106(a)(1). Brewer was also convicted of carrying a firearm
without a license, 18 Pa.C.S.A. § 6108; however, he does not challenge this
conviction in the instant appeal.
J-A21008-18
sufficient for the trier of fact to find each element of the crimes charges is
established beyond a reasonable doubt. See Commonwealth v. Dale, 836
A.2d 150, 152 (Pa. Super. 2003).
On appeal, Brewer contends that the Commonwealth presented
insufficient evidence to support his conviction for carrying a firearm on the
streets of Philadelphia. Specifically, Brewer contends the Commonwealth
failed to prove Brewer was “carrying” the firearm “upon the public streets or
upon any public property” as contemplated by the statute. The trial court, in
its May 24, 2017 opinion, methodically reviewed this claim and disposed of
Brewer’s sufficiency argument on the merits. We have reviewed the parties’
briefs, the relevant law, the certified record, and the well-written opinion of
the Honorable Stella Tsai. Judge Tsai’s opinion comprehensively disposes of
Brewer’s challenge with appropriate reference to the record and without legal
error. Accordingly, we affirm the trial court’s judgment of sentence based on
Judge Tsai’s opinion. See Trial Court Opinion, filed 5/4/17 (concluding
evidence was sufficient to support a finding that Brewer constructively
possessed the firearm due to his statements to officers, location of the firearm
in the vehicle, and the matching, loaded magazine found on Brewer).
Judgment of sentence affirmed.
-2-
J-A21008-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/19
-3-
0039_Opinion
Circulated 02/21/2019 10:49 AM
FILED
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY MAY 2 4 2017
FIRST JUDICIAL DISTRICT
TRIAL DIVISION - CRIMINAL SECTION Office of Judicial Records
Appeals/Post Trial
COMMONWEALTH OF CP-51-CR-0002532-2016
PENNSYLVANIA,
Appellee
v.
BENJAMIN BREWER, 1030 EDA2017
Defendant-Appellant
CP-51-CR..0002532-2016 Comm. v Brewer, Benjamin A.
Opinion ·
OPINION
Tsai, J.
Introduction
IIII I II I II II II Ill
II I I IIII7952030871
Appellant Benjamin Brewer (hereafter "Appellant" or "Brewer") appeals from the
judgment of sentence entered on February 28, 2017. Mr. Brewer was found guilty of
Carrying a Firearm without a License and Carrying a Firearm on the Streets of
Philadelphia and was sentenced to a term of incarceration of eleven months and fifteen
;
days to twenty three months, with immediate parole to house arrest to be followed by
three years of probation.
Factual and Procedural History
On the evening of January 15, 2016, at approximately 10:45 p.m., Officers
Reinaldo Agront and Travis Washington were on plain clothes patrol in an unmarked
car on the 3100 block of North Carlisle Street in Philadelphia. N.T. (Trial) 10/12/2016
at 9-10, 26. They observed a white Lincoln sedan- illegally parked with two wheels on
1Officer Agront stated that the vehicle was a "Lincoln Continental," but Officer
Washington referred to it as a "Lincoln Town" [sic]. N.T. (Trial) 10/12/2016 at 10, 26.
In the statement Appellant Brewer gave to Detective Timothy Mayer, the vehicle is
referred to as a Lincoln Town Car. Exhibit C-3. For the sake of simplicity, we refer to
the vehicle simply as "the Lincoln" or "the vehicle."
1
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the sidewalk and with heavily tinted windows. Id. at 10, 26. As the officers approached
to investigate these violations of the Vehicle Code, they observed Appellant Brewer exit
the rear passenger side door of the Lincoln and start walking away from it. Id. at 10-11,
16, 27, 30.
Officer Agront stopped Mr. Brewer, and when asked ifhe had anything that
officer needed to know about, Mr. Brewer told the officer that he had a gun in the
Lincoln. N;T. (Trial) 10/12/2016 at 10, 32, 33. Officer Agront informed Officer
Washington of the presence of the gun. Officer Washington then reached into the open
rear passenger door of the car and retrieved from its floor an unloaded, black
semiautomatic .40 caliber Smith and Wesson handgun (hereafter "handgun"). Id. at 11,
27, 33. There were three other persons in the Lincoln at the time, none of whom made
any movements toward the handgun. Id. at 28. None of the other occupants of the
vehicle claimed ownership of the handgun or seemed to know anything about its
presence before the police recovered it. Id. at 21-23. Officer Washington concluded that
none of the other occupants owned the handgun after speaking with them. Id. at 32.
Appellant Brewer was placed under arrest and during a search incident to arrest,
a magazine loaded with 12 bullets was recovered from his pants pocket. Id. at 12, 27.
Several hours later, during an interview with Detective Timothy Mayer, Appellant
waived his Miranda rights and confessed that the handgun was his, he did not have a
permit to carry a concealed firearm, and that he left it on the floor of the car when he
stepped out to smoke a cigarette. Id. at 35; Exhibit C-3 at 4-5.
On October 12, 2016, Mr. Brewer waived his right to a jury trial and was tried
before the undersigned. N.T. (Trial) 10/12/2016 at 4-7. In addition to the facts set forth
supra, the parties stipulated that the firearm was operable and Mr. Brewer did not have
2
a valid license to carry a concealed firearm. Id. at 34-35; Exhibits C-1, C-2. When
Commonwealth rested, defense counsel orally moved for a judgment of acquittal on the
charge of Carrying a Firearm on the Public Streets of Philadelphia.2 Id. at 36-38. This
motion was denied. Id. at 40. Appellant did not testify in his own defense. Id. at 42-43.
The undersigned found Appellant guilty of Carrying a Firearm without a Licensee and
Carrying a Firearm on the Streets of Philadelphia. Sentencing was deferred to
December 19, 2016 so that a Pre-Sentence Investigation Report could be prepared.
On the date of his sentencing, Mr. Brewer terminated his relationship with his
trial counsel. We immediately appointed the Defender Association of Philadelphia to
represent Mr. Brewer in any further proceedings. We continued the sentencing date so
that the new counsel could prepare. On February 28, 2017, we sentenced Appellant to a
term of incarceration of eleven months and fifteen days to twenty three months, with
immediate parole to house arrest to be followed by three years of probation on both
counts, with those sentences running concurrently. No post-sentence motions were
filed.
Mr. Brewer filed a timely notice of appeal on March 21, 2017. By order dated
March 24, 2017, we directed the Defendant to file a Statement of the Matters
Complained of on Appeal pursuant to Pa.R.A.P. 1925 within twenty-one days of that
order's date of entry.
Appellant filed his Statement on April 17, 2017. Appellant presents a single claim
in his Statement of Errors Complained of on Appeal:
Where appellant was convicted of 18 Pa.C.S. § 6108 based on a
firearm seized from a vehicle, the evidence was insufficient to prove
2 18 Pa.C.S. § 6108.
3 18 Pa.C.S. § 6106(a)(1).
3
beyond a reasonable doubt that he "carried" the firearm and that he
did so "upon the public streets or upon any public property."
Discussion
Appellant's sole claim of error challenges the sufficiency of the evidence for his
conviction under 18 Pa.C.S. § 6108. The standard for reviewing the sufficiency of
evidence on appeal is well-settled:
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 .... In addition ... the facts and circumstances established by
the Commonwealth need not preclude every possibility of innocence.
Any doubts regarding a defendant's guilt may be resolved by the fact-
finder unless the evidence is so weak and inconclusive that as a
matter oflaw no probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence.
Commonwealth v. Brown, 23 A.3d 544, 559 (Pa. Super. 2011) (citation omitted). "If the
record contains support for the verdict, it may not be disturbed." Commonwealth v.
Adams, 882 A.2d 496, 499 (Pa. Super. 2005) (quoting Commonwealth v. Burns, 765
A.2d 1144, 1148 (Pa. Super. 2000)).
Turning to the specifics of Mr. Brewer's claim, we first examine 18 Pa.C.S. § 6108,
which provides:
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 classl-l
unless:
4 Section 6108 requires the offense to occur on a public street or upon any public
property in a city of the first class. There is no dispute that this offense occurred on the
3100 block of North Carlisle Street in the City of Philadelphia, which is the only city of
the first class in this Commonwealth. N.T. (Trial) 10/12/2016 at 9-10, 26. See Holt's
Cigar Co. v. City ofPhiladelphia, 10 A.3d 902, 906 (Pa. 2011); Spahn v. Zoning Bd. of
Adjustment, 977 A.2d 1132, 1143 (Pa. 2009); 53 P.S. § 1016.
4
(1) such person is licensed to carry a firearm; or
(2) such person is exempt from licensing under section
6106(b) of this title (relating to firearms not to be
carried without a license).
The Commonwealth must establish that Mr. Brewer was carrying a firearm either
on the public streets or public property of Philadelphia and that he was neither licensed
to do so nor exempt from the licensing requirements. Mr. Brewer argues that because
the firearm was seized from a vehicle, the evidence was insufficient to prove beyond a
reasonable doubt that he "carried" the firearm within the meaning of the statute. The
facts and circumstances presented in the record establish, however, that the
Commonwealth sustained its burden of proof.
Under Pennsylvania law, to prove that a defendant "carried" a firearm, the
Commonwealth must establish that an individual either had actual physical possession
of the weapon or had constructive possession of the weapon. See Commonwealth v.
Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013). As Mr. Brewer did not physically have the
handgun on his person, the Commonwealth was required to establish constructive
possession of the handgun to convict. Id.; Commonwealth v. Sanes, 955 A.2d 369, 373
(Pa. Super. 2008), disapproved of on other grounds by Commonwealth v. Hanson, 82
A.3d 1023, 1038 (Pa. 2013); Carter, supra.
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.
5
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012) (citation omitted),
appeal denied, 63 A.3d 1243 (Pa. 2013). See also Commonwealth v. Parker, 847 A.2d
745, 750 (Pa. Super. 2004); Commonwealth v. Magwood, 538 A.2d 908, 909 (Pa.
Super. 1988). "Constructive possession" means that an individual has power of control
over the weapon with the intention to exercise that control and may be proven by
circumstantial evidence. In re R.N., 951 A.2d 363, 369-70 (Pa. Super. 2008) (citing
Commonwealth v. Carter, 450 A.2d 142, 144 (Pa. Super. 1982)). "[M]ere presence at
the scene is insufficient to prove constructive possession of contraband." Sanes, 955
A.2d at 374 (citing Commonwealth v. Valette, 613 A.2d 548, 551 (Pa. 1992)).
To illustrate, in Commonwealth v. Ford, the Superior Court concluded that
evidence was sufficient to convict defendant of Carrying a Firearm on the Streets of
Philadelphia where defendant Ford walked with the victim on a public street, went
inside a building with victim and co-defendant, and Ford removed a concealed firearm
from the back of his pants and passed it to the co-defendant in the presence of
witnesses. Although defendant Ford no longer "carried" the weapon in a technical
sense, it was reasonable for the factfinder to infer that Mr. Ford had possessed the
firearm while outside on a public street. Commonwealth v. Ford, 461 A.2d 1281, 1283,
1287 (Pa. Super. 1983).
In the matter before us, it is evident from the record that Appellant did not carry
the firearm in sight of the police officers. The evidence does establish, however, that
while seated in the vehicle, Mr. Brewer had the power to control the handgun and the
intent to exercise that control:
6
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• First, Mr. Brewer acknowledged ownership of the firearm and admitted
that he left it behind inside the Lincoln when he exited the car to smoke a
cigarette. N.T. (Trial) 10/12/2016 at 10, 32, 33; Exhibit C-3 at 4-5.s
• The handgun was recovered from the floor of the car near the rear
passenger seat, the same seat Mr. Brewer had recently vacated. Id. at 11,
27, 33.
• At the time he was arrested, Mr. Brewer had a loaded magazine in his
pants pocket that was compatible with the handgun. Id. at 12, 27.
• None of the other occupants of the Lincoln claimed ownership of the
firearm nor did any of them make any gestures or movements towards the
handgun indicating that they intended to exercise control over it. Id. at 21-
23, 28.
In total, this evidence establishes that Mr. Brewer constructively possessed the
handgun while inside the Lincoln and that he did not abandon the handgun upon
exiting that vehicle. As it is undisputed that the white Lincoln was on a public street, it
was reasonable to infer that Appellant carried a firearm on a public street. See Ford,
supra. Therefore, the evidence is sufficient to establish the element of section 6108 that
Mr. Brewer carried a firearm on a public street.
Lastly, Mr. Brewer may also argue, as his trial counsel argued in support of his
motion for judgment of acquittal, that Section 6108 is inapplicable to the facts of this
case because the statute does not explicitly penalize the carrying of a firearm "in any
vehicle" in contrast to Section 6106(a)(1), which does.6 We declined to adopt Mr.
s The Commonwealth also presented evidence that Mr. Brewer had legally acquired the
firearm at Delaware Valley Sports Center. Exhibit C-3 at 4.
6 18 Pa.C.S. § 6106(a)(1), which is not the subject of this appeal, states:
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, 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. ( emphasis added).
7
Brewer's interpretation of Section 6108 because to do so would require the court to
ignore the plain text of Section 6108. Under Section 6108 an individual may not carry a
firearm on the public streets or public property of Philadelphia, subject to only two
exceptions:
(1) such person is licensed to carry a firearm;
(2) such person is exempt from licensing under section 6106(b) of
this title (relating to firearms not to be carried without a license).
Mr. Brewer neither possessed a license to carry nor did the facts of his case fall within
any of the exemptions listed in Section 6106(b). In fact, Section 6106 (b)(8) enumerates
specific circumstances, not applicable here, when a person may carry an unloaded
firearm in a secure wrapper in a vehicle without a license. They are:
• when the person is transporting the firearm from the place of purchase to his
home or place of business;
• when the person is transporting the firearm to a place of repair, sale or appraisal
or back to his home or place of business, or in moving from one place of abode or
business to another or from his home to a vacation or recreational home or
dwelling or back";
• when the person is transporting a firearm that has been returned to him or her
under 18 Pa.C.S. § 6111.1(b)(4); or
• when the person is transporting the firearm to a place of instruction intended to
teach the safe handling, use or maintenance of firearms.?
7 Section 6106 (b )(8) also allows transport of unlicensed firearms "back or to a location
to which the person has been directed to relinquish firearms under 23 Pa.C.S. § 6108 or
back upon return of the relinquished firearm or to a licensed dealer's place of business
for relinquishment pursuant to 23 Pa.C.S. § 6108.2 or back upon return of the
relinquished firearm or to a location for safekeeping pursuant to 23 Pa.C.S. § 6108.3, all
of which relate to the temporary relinquishing of firearms under the Protection from
Abuse Act.
8
Our plain reading of the statute is supported by appellate decisions upholding
convictions or sentences under section 6108 of a defendant like Brewer who lacked a
lawfully issued license to carry a concealed firearm and was an occupant of a vehicle.
See, e.g., Commonwealth v. Walton, 529 A.2d 15 (Pa. Super. 1987) (affirming the
conviction of a taxi driver who carried a firearm in his taxi cab). See also
Commonwealth v. Baldwin, 985 A.2d 830, 832 (Pa. 2009) (holding that Sections 6106
and 6108 do not merge for sentencing purposes). Neither of these cases, nor any others
we have located in our research, contemplate adopting the type of carrying "in any
vehicle" exception to section 6108 argued by Appellant at trial, nor could we presume
the authority to do so. See Commonwealth v. Webbs Super Gro Products, Inc., 2 A.3d
591, 595 (Pa. Super. 2015) (courts do not "have the authority to insert a word or
additional requirement into a statutory provision where the legislature has failed to
supply it") (quoting In re Jacobs, 936 A.2d 1156, 1163 (Pa. Super. 2007)). Therefore, we
find that the evidence is sufficient to establish the offense occurred "on a public street"
in Philadelphia as required by 18 Pa.C.S. § 6108.
Conclusion
For the reasons discussed supra, we conclude the Commonwealth established all
of the elements of 18 Pa.C.S. §6108 beyond a reasonable doubt. We respectfully request
that Appellant's judgment of sentence be affirmed.
BY THE COURT:
Stella Tsai, J.
May 24, 2017
9