Com. v. Neil, C. ( 2019 )

J-S65020-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
CHRIS ALAN NEIL
Appellant No. 1970 MDA 2017
Appeal from the Judgment of Sentence imposed November 21, 2017
In the Court of Common Pleas of Cumberland County
Criminal Division at No: CP-21-CR-0001847-2017
BEFORE: SHOGAN, and STABILE, and McLAUGHLIN, JJ.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 15, 2019
Appellant, Chris Alan Neil, appeals from his judgment of sentence of
3½-7 years’ imprisonment for carrying a firearm without a license in violation
of 18 Pa.C.S.A. § 6106. We affirm.
The trial court accurately summarized the evidence adduced during trial
as follows:
On May 23, 2017, [Appellant] left a threatening voicemail for his
estranged wife. He indicated that when he saw her the next day
that he would have a “gun waiting for [her].” On May 24, 2017,
he saw his estranged wife as she approached the county
courthouse in her car. He immediately jumped on his motorcycle
and followed. When she pulled over to park near the courthouse,
[Appellant] ran up to her vehicle and began banging on the
window while screaming at her. Afraid of what might happen, she
blew her car horn steadily until county sheriffs and local police
responded. As the officers approached, [Appellant] jumped back
onto his motorcycle and fled.
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The estranged wife recounted the threatening voicemail and her
fear that [Appellant] might be armed. Officers quickly followed in
his direction. They found his motorcycle parked around the block
from the courthouse[.] Pursuant to a search of the motorcycle’s
saddlebag, officers found a revolver inside a men’s motorcycle
vest. As a result, the Commonwealth charged [Appellant] with
one count of firearms not to be carried without a license for the
revolver recovered from the motorcycle.
At trial, the defense stipulated that [Appellant] did not have a
license to conceal-carry the revolver because he was ineligible for
such a license. The Commonwealth presented a firearms expert
who opined that the revolver recovered from the motorcycle was
capable of firing projectiles. Another Commonwealth witness and
long-time friend of the former couple testified that [Appellant] had
possessed a revolver like that found on the motorcycle prior to the
May incident. He believed that the revolver in evidence was the
very same revolver that he had seen in [Appellant]’s possession.
He also testified to what he witnessed as he followed [Appellant]’s
estranged wife on the day of the incident.
Trial Ct. Op., 4/5/18, at 1-2.
The jury found Appellant guilty of the aforementioned firearms offense.
On November 21, 2017, the trial court imposed sentence. Appellant timely
appealed to this Court, and both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant raises two issues in this appeal:
I. Did the trial court err when it concluded that the evidence
provided by the Commonwealth was sufficient to find [Appellant]
guilty of possessing a firearm without a license?
II. Did the trial court err when it allowed the Commonwealth to
present prejudicial testimony through a late-provided witness not
previously mentioned in discovery?
Appellant’s Brief at 5.
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In his first argument, Appellant contends that the evidence was
insufficient to sustain his conviction for carrying a firearm without a license.
Our Supreme Court has explained:
A claim challenging the sufficiency of the evidence is a question of
law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable
doubt. Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. When reviewing a sufficiency claim the court
is required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). Further:
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute our
judgment for that of the fact-finder. The Commonwealth’s burden
may be met by wholly circumstantial evidence and any doubt
about the defendant’s guilt is to be resolved by the fact finder
unless the evidence is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the combined
circumstances. Additionally, in applying the above test, the entire
record must be evaluated and all evidence actually received must
be considered.
Commonwealth v. Feliciano, 67 A.3d 19, 23-24 (Pa. Super. 2013) (en
banc).
Section 6106 provides in relevant part: “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
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of the third degree.” 18 Pa.C.S.A. § 6106(a)(1). Appellant argues that the
Commonwealth failed to prove that he carried a firearm in a vehicle. 1 We
conclude that the Commonwealth satisfied this element by introducing
evidence that Appellant was in constructive possession of the firearm in the
motorcycle that he was operating.
We have held that
possession can be found by proving actual possession,
constructive possession, or joint constructive possession. Where
a defendant is not in actual possession of the prohibited items, 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, 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, [a]s 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. See, e.g., Commonwealth v. Davis, 743 A.2d 946, 953–
54 (Pa. Super. 1999) (holding that evidence was sufficient to
prove constructive possession over drugs found in common areas
of an apartment where the defendant entered the apartment using
his own key, and possessed $800 in cash on his person, and police
recovered defendant's identification badge, size-appropriate
clothing, and firearms from a bedroom).
[A] defendant’s mere presence at a place where contraband is
found or secreted is insufficient, standing alone, to prove that he
____________________________________________
1 Appellant does not claim that the Commonwealth failed to prove the other
elements of Section 6106(a)(1).
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exercised dominion and control over those items. Thus, the
location and proximity of an actor to the contraband alone is not
conclusive of guilt. Rather, knowledge of the existence and
location of the contraband is a necessary prerequisite to proving
the defendant’s intent to control, and, thus, his constructive
possession.
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. It is well settled that facts giving
rise to mere association, suspicion or conjecture, will not make
out a case of constructive possession.
Commonwealth v. Parrish, 191 A.3d 31, 36-37 (Pa. Super. 2018) (several
citations and quotation marks omitted).
Here, one day before the incident, Appellant threatened to shoot his
wife. The next morning, May 23, 2017, while on a motorcycle, Appellant
approached his wife’s car outside a courthouse and banged on her window.
Although Appellant’s wife was the registered owner of the motorcycle, she
testified that he was the only person who ever operated it, and that he was
the sole operator on the date of the incident. As Appellant confronted her,
she blew her car horn until law enforcement officers approached. Appellant
fled on the motorcycle, which the police found around the block from the
courthouse. The officers found a loaded firearm inside the motorcycle’s
saddlebag. Both Appellant’s wife and David Downs, an eyewitness to the
encounter outside the courthouse, testified that they previously had seen this
firearm in Appellant’s possession. Viewed collectively, this evidence gave rise
to more than “mere association, suspicion or conjecture.” Id. at 37. The
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totality of the evidence demonstrates that Appellant exercised dominion and
control over the firearm.
Appellant argues that his case is analogous to Parrish, in which we held
that the evidence was insufficient to prove constructive possession. We find
Parrish distinguishable. There, the police discovered guns and drugs in the
front row of a vehicle, but the defendant was seated in the back row. The
defendant was not carrying any type of bag when he entered the car. He did
not have keys to the car and was not its owner or operator. There was no
evidence that he had ever been seated in either of the front seats. Neither of
the recovered firearms was registered to him, and there was no fingerprint
evidence for either weapon. We held that the jury could not reasonably infer
that the defendant knew about the contraband in the front row, let alone
exercise dominion and control over these items. Id. at 37-38. In contrast,
there is abundant evidence in the present case that Appellant knew about the
firearm in the motorcycle saddlebag and exercised both dominion and control
over it.
Accordingly, the evidence was sufficient to sustain Appellant’s conviction
under Section 6106.
In his second argument, Appellant contends that the trial court abused
its discretion by failing to preclude Downs’ testimony that he had previously
seen Appellant in possession of the firearm recovered in the saddlebag. We
review the trial court’s decision to admit or deny evidence for abuse of
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discretion or error of law. Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.
Super. 2012). “Thus our standard of review is very narrow. To constitute
reversible error, an evidentiary ruling must not only be erroneous, but also
harmful or prejudicial to the complaining party.” Id.The trial court cogently discussed this issue as follows:
Regarding the challenge to Mr. Downs, defense counsel claimed
that he was only objecting to Mr. Downs’ statement that he had
seen [Appellant] with a revolver prior to the incident. However,
counsel conceded that he could not articulate any prejudice aside
from the fact that the statement was damaging. Nor did he claim
that the statement was known to and purposely withheld by the
Commonwealth to gain an advantage.
Given [the] defense’s concession to the absence of unfair
prejudice, we allowed Mr. Downs to testify to having seen
[Appellant] with a similar revolver prior to the May incident. The
testimony went to [Appellant’s] identity and his knowledge of, or
lack of mistake concerning, his carrying of the firearm on the
motorcycle. The revolver itself was antique in nature and not like
revolvers commonly seen today. Considering the unique
characteristics of the revolver, Mr. Downs’ testimony tended to
establish that [Appellant] was the person on the motorcycle, and
that he possessed and, therefore, was the one who carried the
revolver found on that motorcycle. It completed the
Commonwealth’s story in these respects.
Trial Ct. Op. at 4-5. Based on our review of the record, we agree with this
analysis and hold that the trial court acted within its discretion by permitting
Downs’ testimony.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/15/2019
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