Com. v. Ford, D. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DESMUND DATRE RAND FORD, : No. 29 WDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered December 4, 2018,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0002131-2018
BEFORE: SHOGAN, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 10, 2020
Desmund Datre Rand Ford appeals from the December 4, 2018
judgment of sentence entered in the Court of Common Pleas of Allegheny
County after a jury convicted him of carrying a firearm without a license and
possession of a small amount of marijuana.1 The trial court sentenced
appellant to a term of incarceration of not less than three nor more than
six years for carrying a firearm without a license. No further penalty was
imposed on the possession of a small amount of marijuana conviction. We
affirm.
The trial judge, the Honorable Donna Jo McDaniel, retired and the case
was assigned to the Honorable Edward J. Borkowski, who authored the
1 18 Pa.C.S.A. §6106(a)(1) and 35 Pa.C.S.A. §780-113(a)(31), respectively.
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Pa.R.A.P. 1925(a) opinion. We adopt the following statement of facts from
that opinion:
On January 30, 2018, Officer Keith McGann was working
in the McKeesport area when he attempted to initiate a
traffic stop on a tan Ford Taurus with an inoperable
taillight and expired inspection stickers. Officer McGann
activated his lights and sirens, but the Ford Taurus did
not immediately come to a stop. When the vehicle
eventually stopped, Officer McGann and his partner
approached the driver and passenger side doors and
observed the occupants of the vehicle. They observed
the driver lean over the passenger and then the
passenger lean forward as if he had been handed
something. The driver of the vehicle identified himself
as Desmund Ford (hereinafter “Appellant”). Appellant
appeared nervous, was stuttering, and was unable to
provide identification. Officers noticed a strong odor of
marijuana coming from the vehicle.
Appellant was removed from the vehicle and a pat down
was conducted for officer safety, wherein marijuana
buds were discovered in Appellant’s pocket. The
marijuana was subsequently packaged for evidence. An
empty gun holster clipped on the inside of Appellant’s
waistband was also recovered. Appellant was then
placed in handcuffs. Officer McGann then noticed an
extended magazine with 15-17 rounds of ammunition in
the pocket of the driver’s side door.
Officer McGann’s partners removed the passenger from
the vehicle and conducted a search of that area of the
vehicle. A loaded handgun was subsequently recovered
from the glove compartment of the vehicle. Appellant
stated that he was at the gun range earlier that day and
acknowledged the presence of the firearm in the vehicle.
Appellant did not possess a license to carry a firearm.
Detective Shannon Hasek verified that the handgun
recovered from the glove compartment fit perfectly
inside the holster discovered on Appellant’s belt when
they were logged into evidence.
Trial court opinion, 6/27/19 at 4-5 (citations to notes of testimony omitted).
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Following the imposition of sentence, appellant filed post-sentence
motions, which were denied.2 Appellant filed a timely notice of appeal. On
January 7, 2019, Judge McDaniel directed appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).3 Counsel
for appellant filed a Rule 1925(b) statement on February 6, 2019.
Judge Borkowski then filed a Rule 1925(a) opinion.
Appellant raises the following issues for our review:
[1.] To prove constructive possession, the
Commonwealth must prove beyond a reasonable
doubt [appellant] had the power and intention to
control the item in question. The Commonwealth
presented evidence that [appellant], while
wearing an empty BB gun holster, made a
non-descript movement towards the passenger
while the vehicle was stopping and was nervous
while being questioned in front of multiple officers.
Accordingly:
Did the Commonwealth present insufficient
evidence to convict [appellant] of firearms not to
be carried without a license?
[2.] Whether the trial court abused its discretion by
failing to grant a new trial where the
uncontested evidence showed that [appellant’s]
friend, the lawful owner of the firearm, had
misplaced the firearm inside [appellant’s]
vehicle, which established that [appellant’s]
2 Post-sentence motions were ruled on by the Judge McDaniel prior to her
retirement on January 31, 2019. Judge Borkowski’s Rule 1925(a) opinion
addressed appellant’s claims and concluded the record supported the trial
judge’s denial of appellant’s post-sentence motions. (Trial court opinion,
6/27/19 at 7-9.)
3 The order gave appellant until February 6, 2010, to file a Rule 1925(b)
statement.
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conviction for firearms not to be carried without
a license was against [the] weight of the
evidence[?]
Appellant’s brief at 5 (extraneous capitalization omitted).
Appellant first complains the Commonwealth failed to produce sufficient
evidence to support his conviction because it failed to establish beyond a
reasonable doubt that appellant constructively possessed the firearm
recovered from the glove compartment with the intent to control it.
Our standard of review for a challenge to the
sufficiency of the evidence is well settled. We must
view all the evidence in the light most favorable to the
verdict winner, giving that party the benefit of all
reasonable inferences to be drawn therefrom.
Additionally, it is not the role of an appellate court to
weigh the evidence or to substitute our judgment for
that of the fact-finder.
Commonwealth v. Alford, 880 A.2d 666, 669-670 (Pa.Super. 2005),
appeal denied, 890 A.2d 1055 (Pa. 2005), quoting Commonwealth v.
Gruff, 822 A.2d 773, 775 (Pa.Super. 2003), appeal denied, 863 A.2d 1143(Pa. 2004) (citations omitted).
A person is guilty of a felony in the third degree if he carries a firearm
in a vehicle, or concealed on or about his person, without a valid and lawfully
issued license. 18 Pa.C.S.A. §6106(a)(1). The Commonwealth must establish
appellant acted intentionally, knowingly, or recklessly with respect to each
element of § 6106(a)(1). Commonwealth v. Johnson, 192 A.3d 1149,
1155 (Pa.Super. 2018), appeal denied, 200 A.3d 440 (Pa. 2019). Because
the firearm was not found on appellant’s person, the Commonwealth was also
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required to prove appellant constructively possessed the firearm. See
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super. 2012), appeal
denied, 63 A.3d 1243 (Pa. 2013).
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.
Commonwealth v. Parker, 847 A.2d 745, 750 (Pa.Super. 2004) (internal
citations and quotation marks omitted). “In order to prove that a defendant
had constructive possession of a prohibited item, the Commonwealth must
establish that the defendant had both the ability to consciously exercise
control over it as well as the intent to exercise such control.”
Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa. Super. 2013) (citation
omitted), appeal denied, 77 A.3d 636 (Pa. 2013). “An intent to maintain a
conscious dominion may be inferred from the totality of the circumstances,
and circumstantial evidence may be used to establish a defendant’s
possession.” Id. The only element of constructive possession appellant
challenges is the intent to control the firearm.
Here, Detective McGann testified he observed appellant operating a Ford
Taurus with expired inspection and emissions stickers and an inoperable
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taillight. (Notes of testimony, 9/5/18 at 29, 94.) The detective initiated a
traffic stop, but appellant did not stop until being blocked by a second police
vehicle. (Id. at 29-30.)
Approaching the vehicle, Detective McGann observed appellant lean
over with his arm as if handing something to the passenger who, in turn,
leaned forward. (Id. at 31.) There was a strong odor of marijuana emanating
from the vehicle. (Id. at 32.) A pat-down of appellant yielded marijuana
buds and a nylon gun holster found clipped inside appellant’s waistband. (Id.
at 33, 34.) Detective McGann also observed an extended magazine with 15 to
17 rounds of ammunition protruding from the driver’s side door pocket. (Id.
at 35.)
Detective Steven Sywyj testified he removed the passenger from the
vehicle. (Id. at 36, 61.) Detective Sywyj recovered a loaded black
nine millimeter Springfield XD9 from the glove compartment. (Id. at 37, 62,
63.) Appellant said, “That’s my -- we were at the range all day.” (Id. at 37.)
Detective Hasek testified the recovered firearm fit perfectly into the holster
found clipped inside appellant’s waistband. (Id. at 92.)
We are satisfied the totality of the circumstances warranted a finding of
constructive possession of a firearm without a license. The fact-finder
exclusively assesses witness credibility and may choose to believe all, part, or
none of the evidence. Commonwealth v. Sanchez, 36 A.3d 24, 39 (Pa.
2011). The jury, as fact-finder, could reasonably have inferred appellant had
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both the ability and intent to control the firearm because he exercised control
over the vehicle by driving the vehicle; had knowledge the firearm was in the
glove compartment, accessible and available to him; was wearing a holster
into which the gun fit perfectly; and had an extended magazine of ammunition
located in the pocket of the driver’s side door. Appellant’s sufficiency claim,
therefore, lacks merit.
As his final issue, appellant asserts the verdict was against the weight
of the evidence.
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination
that the verdict is against the weight of the evidence.
One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that
the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the
interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations omitted;
emphasis omitted).
The weight of the evidence is exclusively for the finder
of fact who is free to believe all, part, or none of the
evidence and to determine the credibility of the
witnesses. An appellate court cannot substitute its
judgment for that of the finder of fact. Thus, we may
only reverse the lower court’s verdict if it is so
contrary to the evidence as to shock one’s sense of
justice.
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Commonwealth v. Morgan, 913 A.2d 906, 909 (Pa.Super. 2006), appeal
denied, 927 A.2d 623 (Pa. 2007); Commonwealth v. Devine, 26 A.3d
1139, 1146 (Pa.Super. 2011), appeal denied, 42 A.3d 1059 (Pa. 2012).
Appellant specifically claims the verdict was against the weight of the
evidence because appellant “presented uncontested evidence that the
firearm’s registered owner placed the firearm in the passenger [side glove]
compartment” which would preclude a finding of constructive possession.
(Appellant’s brief at 20.) The testimony, however, does not preclude a finding
that appellant was in constructive possession of the firearm. Moreover, we
cannot substitute our judgment for that of the fact-finder. See Devine,
26 A.3d at 1146. The jury was free to believe or disbelieve appellant’s
witness. The trial court properly concluded the verdict was not against the
weight of the evidence and did not shock one’s sense of justice.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2020
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