Com. v. Porter, A. ( 2022 )

J-A09009-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ABDUL PORTER :
:
Appellant : No. 1729 EDA 2021
Appeal from the Judgment of Sentence Entered July 19, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005535-2019
BEFORE: NICHOLS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED JUNE 7, 2022
Appellant Abdul Porter appeals from the judgment of sentence imposed
following his convictions for illegally possessing a firearm, carrying a firearm
without a license, and carrying a firearm on public streets in Philadelphia.1
Appellant argues that there was insufficient evidence to prove that he
possessed a firearm. We affirm.
The trial court set forth the facts underlying this matter as follows:
Officer [Joshua] Brooks testified that on May 21, 2019, at
approximately 1:00 pm, he was patrolling the area of 2100 North
Woodstock Street in Philadelphia, Pennsylvania, to execute an
arrest warrant on Appellant for attempted murder and aggravated
assault. In that area, Officer Brooks encountered Appellant, who
immediately ran upon seeing the officer’s patrol car. Officer
Brooks gave chase and saw Appellant holding his cell phone in his
left hand, while holding another object in his waistband with his
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.
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right hand. During the pursuit, Officer Brooks’ attention was
diverted for a split second when his partner tripped over a branch,
but he eventually apprehended Appellant behind a vehicle on the
ground of Woodstock Street.
Officer Brooks searched Appellant’s body for a firearm, but he was
unable to immediately search the surrounding area because a man
began screaming at him and his partner. Officer Brooks therefore
placed Appellant in his patrol car and awaited the arrival of
additional officers. After backup officers arrived, Officer Brooks
and Officer [Curtis] Hill found the firearm laying on the ground
where Appellant was arrested. The vehicle that was parked where
Appellant was arrested was no longer there, making the firearm
clearly visible.
The Commonwealth also presented the testimony of Officer Hill,
who assisted Officer Brooks in searching the area of Appellant’s
apprehension. Upon arriving on the scene, Officer Hill parked his
vehicle and went to discuss with the other officers the plan for
executing the search. When he returned to his vehicle, Officer Hill
noticed that the car parked in front of him was no longer there
and that a gun was laying in the middle of the street. Officer Hill
called over Officer Brooks to recover the firearm and place it on a
Philadelphia property receipt.
Trial Ct. Op., 9/28/21, at 2-3 (citations omitted).
Following a bench trial on May 13, 2021, the court found Appellant guilty
of illegally possessing a firearm, carrying a firearm without a license, and
carrying a firearm on public streets in Philadelphia. The court acquitted
Appellant of possession of a firearm with an altered serial number. 2 On July
19, 2021, the court sentenced Appellant to an aggregate term of three and a
half to seven years of incarceration, followed by three years of reporting
probation.
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2 18 Pa.C.S. § 6110.2(a).
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Appellant timely filed a notice of appeal and a court-ordered Pa.R.A.P.
1925(b) statement. The trial court issued a Rule 1925(a) opinion addressing
Appellant’s claims.
On appeal, Appellant presents a single issue for our review:
Did not the trial court convict [A]ppellant of three firearms
offenses on insufficient evidence where the Commonwealth’s case
was based entirely on circumstantial evidence that was merely
consistent with guilt, and [the court] disregarded undisputed
Commonwealth evidence that gave rise to reasonable inferences
of innocence?
Appellant’s Brief at 3.
Appellant argues that the Commonwealth failed to prove that he
constructively possessed the firearm recovered by police. Appellant’s Brief at
11. In support, Appellant argues that there were alternative explanations for
the facts that were used to establish constructive possession. Id. at 13. For
example, he argues that he ran from police due to outstanding warrants, not
because he had a firearm. Id. at 13-14. Second, Appellant claims that he
grabbed his waistband solely to prevent his pants falling as he ran. Id. at 10-
11. Third, Appellant argues that he did not have sufficient time to discard the
firearm. Id. at 13-14. Finally, Appellant contends that in the forty-five
minutes it took officers to recover the firearm, an unknown person could have
placed the gun beneath the car where it was found. Id. Therefore, Appellant
argues that because the evidence gives rise to reasonable inferences of both
guilt and innocence, the Commonwealth did not meet its burden of proving
him guilty beyond a reasonable doubt. Id. at 14 (citing Commonwealth v.
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Davis, 458 A.2d 248, 250 (Pa. Super. 1983) (concluding that there was
insufficient evidence to establish that the defendant participated in a
conspiracy because “the evidence and reasonable inferences [were] equally
consistent with innocence”)).
In reviewing a challenge to the sufficiency of the evidence, our standard
of review is as follows:
Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder.
Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation
omitted).
Appellant was charged with a number of VUFA offenses, all of which
required the Commonwealth to prove that he possessed a firearm. See 18
Pa.C.S. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively. Possession can
be established “by proving actual possession, constructive possession, or joint
constructive possession.” Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa.
Super. 2018) (citation omitted). “Constructive possession is an inference
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arising from a set of facts that possession of the contraband was more likely
than not.” Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super.
2018) (citation omitted).
This Court has explained:
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, 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 (citations omitted and formatting altered).
Here, the trial court addressed Appellant’s claim as follows:
[T]he testimony of both Officer Brooks and Officer Hill established
that Appellant possessed the firearm recovered at the scene of his
arrest. Considering the totality of the circumstances, it can be
inferred that Appellant had the requisite intent and ability to
exercise control over the firearm before he discarded it. Officer
Brooks testified that Appellant immediately ran after seeing his
police vehicle. During the subsequent pursuit, Officer Brooks
observed Appellant holding his waistband with his right hand and
grabbing on to something. Officer Brooks testified that his
attention was diverted from Appellant when his partner tripped,
giving Appellant a reasonable time to discard his firearm under
the vehicle before he was apprehended. Police officers were then
stationed in the surrounding area where Appellant fled and was
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arrested to conduct a search for a firearm. Thereafter, a firearm
was recovered on the street where Appellant was arrested after a
vehicle that was parked there moved.
Trial Ct. Op. at 5 (citations omitted).
Based on our review of the record, and viewing the evidence in the light
most favorable to the Commonwealth as verdict winner, we find no error in
the trial court’s conclusions. See Palmer, 192 A.3d at 89.
As noted by the trial court, Officer Brooks testified that he saw Appellant
flee from police while “holding something in [his waistband]” and that, based
on “the way the way [Appellant] was running [and] holding his waistband,”
Officer Brooks believed that Appellant had a gun. N.T. Trial, 5/13/21, at 11,
16. See, e.g., Commonwealth v. Hudson, 955 A.2d 1031, 1036-37 (Pa.
Super. 2008) (finding that flight or concealment is admissible to show
consciousness of guilt). Further, it is reasonable to infer that Appellant
discarded the weapon when Officer Brooks looked away from Appellant during
the pursuit. N.T. Trial, 5/13/21, at 13. Although Officer Brooks did not block
off the street to prevent people from entering the search area, there were
police officers “up and down the street” during the search. Id. at 17. Finally,
the firearm was “recovered on the street where Appellant was arrested.” Trial
Ct. Op. at 5.
When viewed together, these factors are sufficient to establish that
Appellant constructively possessed the firearm that was recovered from the
scene following his arrest. See Parrish, 191 A.3d at 36-37; McClellan, 178
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A.3d at 878. Therefore, Appellant is not entitled to relief. Accordingly, we
affirm.
Moreover, to the extent that Appellant attempts to argue an alternate
theory of the facts presented at trial, his claim goes to the weight, rather than
the sufficiency, of the evidence. See, e.g., Commonwealth v. Widmer, 744
A.2d 745, 751-52 (Pa. 2000). Appellant did not challenge the weight of the
evidence at sentencing or in a post sentence motion, and he did not include
this issue in his Rule 1925(b) statement. Therefore, Appellant waived any
challenge to the weight of the evidence. See Commonwealth v. Griffin, 65
A.3d 932, 938 (Pa. Super. 2013) (stating that weight of the evidence claim
was “waived for failure to present claim in the lower court, either orally or in
writing before sentencing or in a post-sentence motion, and failure to present
argument in court-ordered statement, pursuant to Pa.R.Crim.P. 607;
Pa.R.A.P. 1925(b)(4)(vii)” (citation omitted)). Therefore, Appellant is not
entitled to relief on that claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2022
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