Com. v. McGee, K.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

KEVIN DOUGLAS MCGEE, Appellant No. 73 MDA 2015

Appeal from the Judgment of Sentence November 24, 2014 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0003738-2013

BEFORE: BENDER, P.J.E., SHOGAN, and PLATT,* JJ. MEMORANDUM BY SHOGAN, J.: FILED JANUARY 29, 2016 Kevin Douglas McGee (“Appellant”) appeals from the judgment of sentence imposed on November 24, 2014, after a jury found him guilty of multiple drug and firearm offenses. We affirm.

The case arises out of a shooting incident in Reading, Pennsylvania, at 2:40 a.m. on February 21, 2013. In response to a report of shots fired, Reading Police Officer Christopher Dinger proceeded to the Queen City Diner. There, witnesses told the officer about a black man with dreadlocks in a grey hoodie who ran into the diner claiming he had been shot, then left the diner and drove off in a black SUV. Officer Dinger was then dispatched

to Reading Hospital where a man fitting the victim’s description was being

____________________________________________

*

Retired Senior Judge assigned to the Superior Court.

treated for gunshot wounds. Officer Dinger identified the victim as Appellant, who informed the officer that he had been shot near Topher’s bar in Reading, and that his address was 536 Fern Avenue, Reading, Pennsylvania. Officer Dinger and several other officers proceeded to 536 Fern Avenue. While checking the area around the house, Officer Dinger observed a white Lincoln Navigator parked in an alley behind the residence and a black Cadillac Escalade parked inside an open garage. The officer observed what he believed to be blood on the console of the Navigator. He also observed a flat tire on the Escalade and bullet holes in the front driver’s side panels. Inside the Escalade, Officer Dinger saw a black book bag on the floor of the passenger side front seat. Both vehicles were towed to a local garage while the police applied for a search warrant.

Inside 536 Fern Avenue, Reading Police Officer Kyle Kunkle encountered co-defendants Vanessa Moore and Erica Henderson, Ms. Henderson’s two young daughters, and Veronica Ortega. He also found a loaded .380 Bersa handgun on the living room sofa that was registered to Ms. Moore. Ms. Moore told Officer Kunkle that Appellant used the residence for mail but he had not lived there for a long time. On the first floor, the police found mail addressed to Appellant at 536 Fern Avenue, and Criminal Investigator Michael Perkins found a Bersa gun box in the kitchen pantry. In the basement, the police found, inter alia, various types of ammunition in a refrigerator, a safe containing drugs and pills, and a plastic tote marked

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“Kev’s sneakers.” Detective Perkins found Appellant’s 2012 Pennsylvania identification card with an address of 536 Fern Avenue in a man’s wallet. Criminal Investigator Joseph Snell searched the second floor front bedroom, where he found a photograph of Appellant on a nightstand, men’s socks and ammunition in the nightstand drawer, men’s clothing, men’s body wash in the shower, and a loaded Winchester twelve gauge shotgun and handcuffs in a silver gun case under the bed.

Investigator Snell assisted in executing the search warrant for the Escalade, which revealed documents addressed to Appellant at 536 Fern Avenue. Additionally, Investigator Snell recovered a black book bag, which he admittedly opened, observing inside what he believed to be drugs and drug paraphernalia. He returned the bag to the vehicle until an additional search warrant could be secured. With a second search warrant, Criminal Investigator Kevin Haser recovered the black book bag, which contained multiple baggies of crack cocaine and powder cocaine, four handguns, a scale, spoons, plates, razor blades, “Black Molly” pills, empty blue and green baggies, and ammunition.

The Navigator was registered to Ms. Moore, and the Escalade was registered to Ms. Moore’s mother, Rosalie Moore. None of the guns was registered to Appellant, and fingerprints recovered from the black bag and its contents belonged to Ms. Henderson. Appellant was ineligible to possess a firearm due to a prior felony conviction.

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Following his jury trial and conviction, the trial court sentenced Appellant to incarceration for an aggregate term of ten to twenty years, followed by ten years of probation. Defense counsel withdrew with the trial court’s permission, and appellate counsel was appointed. This appeal followed. Appellant and the trial court have complied with Pa.R.A.P. 1925.

On appeal, Appellant presents the following questions for our review:

1. Whether the trial court erred in excusing sua sponte Juror #1 prior to deliberations over the objection of counsel and without good cause?

2. Whether there was insufficient evidence to support the jury’s verdict as the Commonwealth failed to establish Appellant’s intent to exercise control over the drugs and guns found inside the black book bag located inside the black Cadillac Escalade?

3. Whether the[re] was insufficient evidence to support the jury’s verdict as the Commonwealth failed to establish Appellant’s knowledge that he was aware there were drugs and guns inside the black book bag located inside the black Cadillac Escalade?

4. Whether there was insufficient evidence to support the jury’s verdict as to the gun charges pertaining to firearms located inside 536 Fern Avenue as the Commonwealth failed to establish Appellant’s intent to exercise control over the firearms?

5. Whether there was insufficient evidence to support the jury’s verdict as to the gun charges pertaining to firearms located inside 536 Fern Avenue as the Commonwealth failed to establish Appellant’s knowledge that firearms were located inside the residence?

Appellant’s Brief at 4.

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Appellant first challenges the trial court’s decision to remove Juror Number One and replace her with an alternate juror. Appellant’s Brief at 9. “Pursuant to Pa.R.Crim.P. [645(a)], a trial court may seat an alternate juror whenever a principal juror becomes unable or disqualified to perform his duties.” Commonwealth v. Williams, 720 A.2d 679, 684 (Pa. 1998). “This discretion exists even after the jury has been impaneled and the juror sworn.” Commonwealth v. Carter, 643 A.2d 61, 70 (Pa. 1994) (citation omitted). The trial court’s discretion in this regard must be based upon a sufficient record of competent evidence to sustain removal. Id. at 70 (citation omitted). The trial court’s decision to discharge a juror will not be reversed absent a palpable abuse of discretion. Commonwealth v. Treiber, 874 A.2d 26, 31 (Pa. 2005).

Appellant’s remaining challenges are to the sufficiency of the evidence sustaining his drug and firearm convictions. Specifically, Appellant argues that the Commonwealth failed to establish his intent to exercise control over the drugs and firearms in the book bag or his knowledge of the firearms in the book bag and inside 536 Fern Avenue. Appellant’s Brief at 10.

Our standard of review in a sufficiency of the evidence challenge is to determine if the Commonwealth established beyond a reasonable doubt each of the elements of the offense, considering all the evidence admitted at trial, and drawing all reasonable inferences therefrom in favor of the Commonwealth as the verdict-winner. The trier of fact bears the responsibility of assessing the credibility of the witnesses and weighing the

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evidence presented. In doing so, the trier of fact is free to believe all, part, or none of the evidence.

Commonwealth v. Newton, 994 A.2d 1127, 1131 (Pa.Super.2010), appeal denied, 608 Pa. 630, 8 A.3d 898 (2010), quoting Commonwealth v. Pruitt, 597 Pa. 307, 318, 951 A.2d 307, 313 (2008) (citations omitted). The Commonwealth may sustain its burden by means of wholly circumstantial evidence, and we must evaluate the entire trial record and consider all evidence received against the defendant.

Commonwealth v. Markman, 591 Pa. 249, 270, 916 A.2d 586, 598 (2007).

Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013).

Appellant was not in physical possession of the contraband; therefore, the Commonwealth was required to establish that he had constructive possession of the seized items to support his convictions.

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, ––– Pa. ––––, 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).

Hopkins, 67 A.3d at 820–821.

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Upon review of the parties’ briefs, the certified record, and the applicable law, we conclude that the trial court adequately and correctly disposed of Appellant’s issues in its Pa.R.A.P. 1925(a) opinion. Therein, the trial court determined that excusing Juror Number One was not an abuse of its discretion and that the evidence was sufficient to sustain Appellant’s convictions for possession of the drugs and firearms in the book bag and the firearms in the residence. Trial Court Opinion, 2/26/15, at 12, 18, 19, 25, 26. We find support in the record for the trial court’s findings of fact and no error in its conclusions of law. Therefore, we affirm the judgment of sentence on the basis of the trial court’s February 26, 2015 Rule 1925(a) opinion. The parties are directed to attach a copy of the trial court’s opinion to this memorandum in the event of future proceedings.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/29/2016

Circulated 01/21/2016 10:52 AM