Com. v. Barnes, G.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

GEORGE LEE BARNES Appellant No. 1104 MDA 2013

Appeal from the Judgment of Sentence May 13, 2013 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000826-2012

BEFORE: OTT, J., STABILE, J., and MUSMANNO, J. MEMORANDUM BY OTT, J.: FILED AUGUST 22, 2014 George Lee Barnes appeals from the judgment of sentence entered May 13, 2013, in the Luzerne County Court of Common Pleas. Barnes was

jury found him guilty of carrying a firearm without a license, resisting arrest, possession with intent to deliver (PWID) cocaine, and possession of cocaine.1 On appeal, Barnes challenges the sufficiency of the evidence supporting his conviction of possession of a firearm. For the reasons set forth below, we affirm.

The evidence presented at trial was as follows. Officer John Sosnoski

of the Kingston Borough Police Department was on routine patrol on

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1 18 Pa.C.S. §§ 6106(a)(1) and 5104, and 35 P.S. §§ 780-113(a)(30) and 780-113(a)(16), respectively.

December 23, 2011, when, at approximately 7:44 p.m., he observed a dark colored sedan driving southbound on Route 11 with the lights off. The sedan matched the description of a vehicle that had been stolen at gunpoint the previous night.2 Officer Sosnoski, who was traveling northbound on Route 11, made a U-turn and activated his lights so that he could stop the vehicle to investigate. However, when he began following the vehicle, the vehicle took off at a high rate of speed, swerving in and out of the north and southbound lanes. Officer Sosnoski lost sight of the vehicle for a brief period, but then saw that the car had crashed into a telephone pole. N.T., 3/11/2013, at 52-53.

were pinned in the crash. Officer Sosnoski also observed that the front seat passenger, later identified as Barnes, was uninjured, and another passenger, who was sitting in the backseat behind the driver, suffered a minor injury. Id. at 54. The officer approached the vehicle and asked the occupants to show their hands, which they refused to do. Because the driver was injured, Officer Sosnoski approached the passenger side where Barnes was sitting. At this point, additional officers had arrived to assist Officer Sosnoski. When

Officer Sosnoski attempted to escort Barnes out of the vehicle, Barnes

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2 Officer Sosnoski testified that, the night before, the Wilkes-Barre police

stolen outside of Wilkes-

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officers. Id. at 56-57. He struck one officer, causing her to fall to the ground. As the other officers struggled to contain Barnes, they all fell to the

subdue him. Id. at 58.

During the scuffle, Officer Sosnoski noticed a cigarette packet fall to the ground. Afterwards, the officers opened it and discovered what appeared to be crack cocaine. Furthermore, inside the vehicle, Officer Sosnoski observed a .40 caliber handgun protruding from underneath the front passenger seat, with the grip facing the front of the vehicle.3 Id. at 60. He explained that the gun wa Id. at 88-89.

Barnes was arrested and charged with carrying a firearm without a license, resisting arrest, PWID and possession of cocaine. On March 12, 2013, a jury returned a verdict of guilty on all charges. Barnes was

imprisonment for

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3 grip and the back butt of

3/11/2013, at 87.

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PWID,4 timely appeal followed.5 The sole issue raised on appeal challenges the sufficiency of the

the Commonwealth failed to prove that he had either actual or constructive possession of the firearm recovered from the stolen vehicle.

Our review of a challenge to the sufficiency of the evidence is well-

settled:

A claim challenging the sufficiency of the evidence presents a question of law. Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 (2000). We must d evidence is sufficient to prove every element of the crime Commonwealth v. Hughes, 521

in the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence and all reasonable inferences therefrom upon which, if believed, the fact finder Id.

Our Supreme Court has instructed:

[T]he facts and circumstances established by the Commonwealth need not preclude every possibility of innocence.

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4 His possession charge merged for sentencing purposes.

5 On June 11, 2013, the trial court ordered Barnes to file a concise statement of matters complained of on appeal. Thereafter, trial counsel was granted permission to withdraw and present counsel was appointed. On July 3, 2013, present counsel filed a motion seeking an extension of time to file a concise statement since the trial transcript had not yet been transcribed.

filed a concise statement.

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be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Ratsamy, 594 Pa. 176, 934 A.2d 1233, 1236 n. 2 (2007).

Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa. Super. 2013).

The crime of carrying a firearm without a license is defined in Section 6106 of the Crimes Code as follows:

[A]ny 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.

18 Pa.C.S. § 6106(a)(1). Therefore, in order to secure a conviction under the facts of the present case, the Commonwealth was required to prove that Barnes was in possession of the firearm recovered from the stolen vehicle, without a valid license to carry a firearm. Here, Barnes does not challenge the fact that he had no license to carry a firearm, but rather, contends the Commonwealth failed to prove he had constructive possession of the firearm recovered from the vehicle.

When a firearm or other prohibited item is not discovered on a

prove the defendant had constructive possession of the item.

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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. Brown, 48 A.3d 426, 430 (Pa.

Super.2012), appeal denied, [] 63 A.3d 1243 (2013) (internal quotation marks and citation omitted). Additionally, it is possible for two people to have joint constructive possession of an item of contraband. Commonwealth v. Sanes, 955 A.2d 369, 373 (Pa. Super. 2008), appeal denied, 601 Pa. 696, 972 A.2d 521 (2009).

Commonwealth v. Hopkins, 67 A.3d 817, 820-821 (Pa. Super. 2013), appeal denied dominion may be inferred from the totality of the circumstances, and circumstantial evidence may be used to establish a defendant's possession Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa. Super. 2013) (citation omitted), appeal denied, 77 A.3d 636 (Pa. 2013).

Here, the evidence presented at trial established that Barnes was a passenger in a vehicle that fled from police. Once the vehicle was stopped, as a result of a crash, Barnes was uncooperative and physically assaulted the police officers as they tried to extract him from the vehicle.

seat, with the grip and bottom of the butt protruding in plain view. In fact,

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Officer Sosnoski explained that the gun was placed in a position as to allow the passenger easy access. N.T., 3/11/2013, at 89.

Barnes argues, however, that the Commonwealth failed to prove his possession of the firearm because there were two other occupants in the vehicle who had access to the gun. Barnes emphasizes that one officer

refusing to show his hands before he was extracted from the vehicle. N.T., 3/11/2013, at 111. Moreover, Barnes asserts the Commonwealth presented no evidence to establish that he even knew the gun was in the vehicle. In support, he relies on two appellate decisions, which he claims contain similar circumstances: Commonwealth v. Armstead, 305 A.2d 1 (Pa. 1973) and Commonwealth v. Duffy, 340 A.2d 869 (Pa. Super. 1975). We conclude Barnes is entitled to no relief.

First, the cases Barnes cites for support are readily distinguishable. In Armstead, supra, police officers conducted a traffic stop, and ordered the driver and the passenger, Armstead, out of the vehicle. The officers who conducted the stop did not see a weapon on the front seat. However, when additional officers arrived as backup, they observed a .38 caliber pistol lying

unlawful possession of a firearm, the Supreme Court held that the

that the weapon was on the person of the driver during the time appellant

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was a passenger, and that the driver discarded the weapon as he got out of Armstead, supra, 305 A.2d at 2.6 Here, however, the officers

to do so.

In Duffy, supra, the defendant was also a passenger in a car stopped by police for a routine traffic stop. The driver was not the registered owner of the vehicle, and, after he was unable to produce identification, the officer asked him to proceed to the station. Once there, the driver gave police consent to search the vehicle. During the search, they recovered a pistol

Duffy, supra,

340 A.2d at 870. Although Duffy was convicted of possession of the weapon and instruments of crime, this Court reversed that conviction on appeal. In a one- that appellant knew of Id., citing

Armstead, supra. Conversely, in the present case, the firearm was not er, protruding from

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6 It merits mention the Armstead Court also noted that the Commonwealth had doubts as to the sufficiency of the evidence in that case, and even filed with defense counsel a joint petition for reconsideration when the case was before this Court. However, this Court denied that request. Armstead, supra, 305 A.2d at 2, n.1.

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underneath his seat in plain view of the officers once Barnes was removed from the car.

Moreover, while it is true there were other occupants in the vehicle, the evidence established that Officer Sosnoski observed the firearm protruding front of the vehicle. As the gun was visible to the officers, it was reasonable for the jury to conclude that the gun was also visible to Barnes. Furthermore, the way it was secreted under the seat allowed for easy access by Barnes, and the evidence did not establish that the firearm was easily accessible to either the driver or the back seat passenger, who was sitting behind the driver. Therefore, the totality of the circumstances surrounding the discovery of the firearm provided sufficient circumstantial evidence for the jury to find that Barnes had constructive possession of the weapon.

Therefore, viewing the evidence in the light most favorable to the Commonwealth, we conclude that B

the evidence must fail. Accordingly, we affirm the judgment of sentence.7

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.

§ 9712.1. However, on November 25, 2013, an en banc panel of this Court in Commonwealth v. Watley, 81 A.3d 108 (Pa. Super. 2013) (en banc), held that the mandatory minimum sentencing provision in Section 9712.1 was unconstitutional in light of the Unite Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013). Id. at 112, n.2.

(Footnote Continued Next Page)

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/22/2014

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(Footnote Continued)

In Alleyne ted to

Alleyne, 133 S.Ct. at

2155. The Court expanded upon its holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), which applied only to facts that increased the statutory maximum for a crime, to include facts which increase the mandatory minimum sentence. Id. Accordingly, under the holding of Alleyne

Here, however, the jury found Barnes guilty of both PWID, for the drugs recovered after the struggle just outside the car, and carrying a firearm without a license, for the gun recovered under his seat in the car. Accordingly, the fact that Barnes sold drugs while in possession or control of a firearm was determined by the jury as evident from its verdict. Moreover, because Barnes was sentenced prior to the decision in Alleyne, we find that imposition of the mandatory minimum sentence set forth in Section 9712.1 was proper.