J-A10032-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARVIN WILSON : : Appellant : No. 972 EDA 2023
Appeal from the Judgment of Sentence Entered November 15, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002759-2022
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.
MEMORANDUM BY BECK, J.: FILED JULY 12, 2024
Marvin Wilson (“Wilson”) appeals from the judgment of sentence
imposed by the Philadelphia County Court of Common Pleas (“trial court”)
following his conviction of possession of a firearm by a prohibited person. 1
Upon review, we affirm Wilson’s conviction, but vacate Wilson’s sentence, and
remand this matter to the trial court for resentencing.
The record reflects that on December 28, 2021, City of Philadelphia
police officers responded to a report of a person firing a gun from the porch
or steps of 5827 Windsor Avenue (the “House”), arriving at approximately
5:30 p.m. that day. N.T., 8/15/2022, at 8-9. Police Officer Kristin Stocker
(“Officer Stocker”) found two .40 caliber fired cartridge casings (“FCCs”)
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1 18 Pa.C.S. § 6105(a)(1). J-A10032-24
outside the House: one on a step and the other on the porch. Id. at 9-10;
Exs. C-1 (Officer Stocker’s incident report), C-2-C-7 (photographs of FCCs on
porch and steps of the House), C-22 (video of Officer Stocker’s body worn
camera video). Police Officer Brian Solomon (“Officer Solomon”) and other
police officers knocked on the door; Wilson answered, came outside, and told
officers that someone had been firing shots across the street and that no one
else was inside the House. N.T., 8/15/2022, at 9; Exs. C-22, D-3 (video of
Officer Solomon’s body worn camera). Police officers detained Wilson and
while detained, he told officers that his girlfriend was sleeping inside the
House. Exs. C-22, D-3. An unidentified male then exited the House; police
officers directed him to remain on the porch and he complied. Ex. D-3. Officer
Solomon, Officer Stocker, and other officers entered the House without a
warrant over the objection of a third male, identified as Wilson’s uncle, who
had come to the front door of the House. Exs. C-22, D-3. The officers directed
the uncle to sit on one of two couches in the first floor living room, which he
did. Ex. D-3. Once inside, police conducted a protective sweep of the House,
located Wilson’s girlfriend in a second-floor bedroom, and secured the House.
N.T., 8/15/22, at 16-17; Exs. C-22; D-3. During his protective sweep of the
living room and kitchen, Officer Solomon observed a firearm under one of the
living room couches located immediately adjacent to the front door where no
one was seated. Ex. D-3. After the officers completed the protective sweep
of the House, Detective Allan Relova (“Detective Relova”) obtained a search
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warrant to search the House for firearms, ballistics, and proof of residence.
N.T., 8/15/2022, at 24-25. Detective Relova and his partner executed the
search warrant at the House shortly before 10:00 p.m. that night, recovering
from under the same living room couch, a Smith & Wesson .40 caliber firearm
with three bullets in the magazine and one in the chamber; the two .40 caliber
FCCs from the porch and steps; and mail in a second-floor bedroom addressed
to Wilson at 5827 Windsor Avenue. Id. at 21-26; Exs. C-8-C-10 (photographs
of living room couch with firearm visible underneath), C-11 (property receipt
of two .40 caliber FCCs), C-12 (property receipt of firearm), C-13 (photograph
of mail addressed to Wilson at the House), C-14 (photograph of firearm with
magazine and ammunition).
Thereafter, Wilson was charged with possession of a firearm by a
prohibited person, possession of an instrument of a crime (“PIC”), 2 and
recklessly endangering another person (“REAP”).3 Wilson filed a motion to
suppress any statements made by him, and physical evidence found and
seized from the House—i.e., the gun, ammunition, ammunition clips, and mail.
N.T., 8/15/2022, at 5; Omnibus Motion, 4/29/2022; Supplemental Omnibus
Motion, 7/19/2022. Following a suppression hearing on August 15, 2022, the
trial court denied the motion and the parties proceeded immediately to a non-
2 18 Pa.C.S. § 907(a).
3 18 Pa.C.S. § 2705.
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jury trial.4 The trial court found Wilson guilty of possession of a firearm by a
prohibited person, and not guilty of PIC and REAP. The trial court ordered a
mental health evaluation and pre-sentence investigation (“PSI”) report and on
November 15, 2022, sentenced Wilson to six to twelve years of imprisonment.
Wilson filed a timely post-sentence motion seeking reconsideration of his
sentence, which the trial court denied by operation of law.
Wilson timely appealed to this Court and now presents the following
issues for our review:
A. Was it an error of law for the trial court to deny the motion to suppress physical evidence where, after an initial warrantless entry of a home that exceeded the scope of a permissible protective sweep, a warrant was obtained to seize items seen but that warrant was never produced at the suppression hearing and there was no proof that it was based upon probable cause and not a fruit of the initial entry?
B. Was the evidence insufficient to prove ineligible possession of a firearm, [18 Pa.C.S.] § 6105, where there was no proof of actual, constructive or joint constructive possession of the weapon?
Wilson’s Brief at 6 (reordered for ease of disposition).
Wilson’s suppression argument is twofold: first, that police officers’
initial search of the House was illegal because it exceeded the permissible
scope of a protective sweep, and second, the trial court should have
4 The Commonwealth presented the testimony of Officer Stocker and Detective Revola at the suppression hearing. At trial, the Commonwealth moved to incorporate all non-hearsay testimony from the suppression hearing into its case-in-chief, which the trial court granted. N.T., 8/15/2022, at 41.
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suppressed evidence of the firearm because it was seized pursuant to a
warrant that was the fruit of an illegal search of the House. Id. at 12-13, 19-
24.
The trial court found Wilson waived his suppression claim because it was
“confusing and very poorly written.” Trial Court Opinion, 6/6/2023, at 4
(citing Wilson’s Rule 1925(b) Statement, 5/2/2023, ¶ 4).5 Nonetheless, the
trial court addressed Wilson’s claim and found it meritless. Id. at 5-7.
Specifically, the trial court found that the police officers were justified in
5 Wilson’s statement of this claim in his Rule 1925(b) statement provided as follows:
The Court erred as a matter of law, violated petitioner’s rights under the U.S. and Pennsylvania constitutions, and abused its discretion by denying defendant’s motion to suppress any and all physical evidence recovered from petitioner’s home, as police conducted a warrantless search of the premises without consent, exigency or other constitutional basis, not ameliorated by the subsequent search with a warrant, nor was the seizure of the weapon lawful, consistent with plain view principles.
Rule 1925(b) Statement, 5/2/2023, ¶ 4(a). The Commonwealth likewise argues that Wilson waived his suppression claim based on an insufficient Rule 1925(b) statement. See Commonwealth’s Brief at 12-13. We decline to find waiver. Wilson’s 1925(b) statement clearly raises the issue of whether the warrantless search was unconstitutional and thus whether the seized firearm and other items must be suppressed as fruit of an initial illegal search. However, Wilson also seemingly argues in his brief that there was lack of probable cause for the search warrant because the Commonwealth failed to introduce the warrant and affidavit of probable cause into evidence. See Wilson’s Brief at 23-24; Wilson’s Reply Brief at 3-4. This argument is waived for failing to raise it in his concise statement. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.”).
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entering the House without a warrant “to perform a safety check” given the
report of a person shooting a gun on the steps of the House, their observation
of FCCs on the porch, Wilson’s detention at the front door, and officers’ later
observation through the open front door of other persons inside the House.
Id. at 6-7. Once inside, the trial court found that one of the officers observed,
in plain view, a firearm protruding beneath a couch in the front living room.
Id. at 6. The trial court thus found probable cause existed for the search
warrant subsequently obtained because police officers’ initial entry into the
House was permissible and the firearm was observed in plain view. Id. at 7.
“Our standard of review on appeal of the denial of a motion to suppress
is limited to determining whether the record supports the suppression court’s
factual findings and the legitimacy of the inferences and legal conclusions
drawn from those findings.” Commonwealth v. Hall, 199 A.3d 954, 959
(Pa. Super. 2018) (quotation marks, footnote, and citations omitted). “If the
record supports the factual findings of the trial court, we reverse only if there
is an error in the legal conclusions drawn from those factual findings.” Id.
(quotation marks and citations omitted).
“Both the Fourth Amendment to the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution protect individuals, their
homes, their papers, and their effects and possessions from unreasonable
searches and seizures.” Commonwealth v. Valdivia, 195 A.3d 855, 861
(Pa. 2018) (quotation marks omitted) (citing U.S. Const. amend. IV; Pa.
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Const. art. I, § 8). A search conducted without a warrant is unreasonable and
therefore constitutionally impermissible unless an established exception to the
warrant requirement applies. Id. “‘[G]enerally speaking, the exclusionary
rule applies to evidence that was obtained from a search or seizure in violation
of the Fourth Amendment. The fruit of the poisonous tree doctrine extends
the exclusionary rule to render evidence inadmissible which was derived from
the initially illegally obtained evidence.’” Commonwealth v. Ani, 293 A.3d
704, 731 (Pa. Super. 2023) (quoting Commonwealth v. Santiago, 209 A.3d
912, 916 n.4 (Pa. 2019)).
A protective sweep is an exception to the warrant requirement.
Commonwealth v. Taylor, 771 A.2d 1261, 1267 (Pa. 2001). “A protective
sweep is a quick and limited search of premises, incident to an arrest and
conducted to protect the safety of police officers or others.” Id. (quotation
marks and citation omitted). In the first level of a protective sweep, police
officers do not need reasonable suspicion to conduct a cursory visual
inspection of spaces immediately adjacent to the arrest scene that could
conceal a person. Id. In the second level of a protective sweep, police officers
may search “further away from the place of arrest” where the officers who
conducted the sweep can articulate specific facts to justify a reasonable fear
for their safety or the safety of others. Id. In deciding whether the facts
justified a protective sweep, we “must consider all of the facts objectively and
from the position of the reasonably prudent police officer.” Id. (citation
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omitted). A protective sweep “cannot be used as a pretext for an evidentiary
search” and “must be swift and target only those areas where a person could
reasonably be expected to hide.” Commonwealth v. Crouse, 729 A.2d 588,
598 (Pa. Super. 1999). All evidence observed in plain view during a protective
sweep is admissible. Commonwealth v. Witman, 750 A.2d 327, 336 (Pa.
Super. 2000); see also Commonwealth v. Smith, 285 A.3d 328, 332 (Pa.
Super. 2022) (“There can be no reasonable expectation of privacy in an object
that is in plain view.”) (quotation marks and citation omitted).
We first address the police officers’ initial entry into the House. Wilson
does not dispute exigent circumstances existed to permit police officers to
enter without a warrant and conduct a protective sweep to ensure no one had
suffered a serious injury.6 Wilson’s Brief at 19. Rather, he focuses on the
police officers’ conduct once they had entered the House, taking issue with
police officers “lifting up and looking under the cushions on the couch where
no one could have been,” officers’ flashlights “scanning the living room and
6 Regarding the initial entry into the House, Wilson challenges the trial court’s reliance on the police officers’ “need to conduct a safety check to protect themselves” when there was “no testimony regarding fear for their safety.” Wilson’s Brief at 19; see also Wilson’s Reply Brief at 5. Because Wilson does not challenge the exigency exception and officers’ need to check whether anyone was seriously injured, we need not address this argument. In any event, as the officers observed FCCs outside the House, had not yet located the firearm, and knew others were inside the House, their protective sweep was supported by articulable facts and inferences which gave them reasonable concern for their safety and the safety of others. See Taylor, 771 A.2d at 1267.
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the kitchen, looking into all corners, where it was not possible for a person to
have been hiding,” and Detective Revola’s testimony that he “crouch[ed]
down” to look under the couch. Id. at 20-21.
We begin by noting that the footage from Officer Solomon’s body-worn
camera shows that the “cushions” to which Wilson refers were actually small
throw pillows on top of the couch. Ex. D-3. Officers directed the man
identified as Wilson’s uncle to sit on one of the living room couches, which had
four throw pillows on it. Id. As the man was about to sit down, two officers—
one on each side—briefly moved the throw pillows as he sat. Id. The record
does not reflect, and Wilson does not argue, that the officers’ actions yielded
any evidence or contraband. Thus, this argument does not entitle him to relief
on his suppression claim.
With respect to the officers’ use of flashlights, we observe that the
incident occurred on a late December evening, when it was already dark
outside; the inside of the House was not well lit; and the flashlights were
necessary to aid the officers’ visibility. Exs. C-22, D-3. Using flashlights to
illuminate the inside of the House during the officers’ protective sweep was
not an unconstitutional intrusion. See Commonwealth v. Jones, 978 A.2d
1000, 1005 (Pa. Super. 2009) (holding use of police vehicle’s spotlight to
illuminate porch of suspected drug house at night did not infringe on
reasonable expectations of privacy).
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Finally, regarding Detective Revola’s “crouching” testimony, 7 the record
reflects that Officer Solomon was the first to observe the firearm during his
protective sweep; Detective Revola did not enter the House until later that
night, after he had obtained a search warrant. N.T., 8/15/2022, at 21; Ex. D-
3. The footage from Officer Solomon’s camera clearly shows that he spotted
the firearm in plain view under the couch immediately adjacent to the front
door without crouching or bending down. N.T., 8/15/2022, at 22; Ex. D-3.
Officer Solomon entered the House, walked through the living room to the
kitchen, turned around, and walked back into the living room. Ex. D-3. From
a normal standing position, the firearm was visible under the couch as Officer
Solomon walked back into the living room from the kitchen. Id. at 14:53.
Because Officer Solomon observed the firearm in plain view during a
protective sweep, it was admissible evidence. See Witman, 750 A.2d at 336;
Smith, 285 A.3d at 332. Accordingly, the trial court did not err in denying
7 On direct examination, Detective Revola’s testimony was as follows:
Q. What is [Exhibit C-]9?
A. No. 9 is a photo of under the couch. You could see the butt of the gun when you crouch down, when I crouch down.
N.T., 8/15/2022, at 22.
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Wilson’s motion to suppress and such claim is without merit.8 Hall, 199 A.3d
at 959.
Wilson next challenges the sufficiency of the evidence to support his
conviction of possession of a firearm by a prohibited person. Wilson’s Brief at
11-12, 14-18. According to Wilson, there was no evidence of his actual
possession of the firearm and the trial court therefore erred in identifying him
as the shooter. Id. at 11-12, 16-17 (citing Trial Court Opinion, 6/6/2023, at
2 (stating “[Wilson] was identified as the shooter”), 8 (stating the evidence
confirmed “[Wilson] was in physical possession of the firearm”)). Wilson
further argues there was no evidence of his intent or ability to exercise
dominion or control over the firearm. Id. at 11, 14-15, 17. Wilson contends
his presence or proximity to the firearm is not enough to prove constructive
possession. Id. at 11-12, 17. Because other individuals were present and
had equal access to the firearm, the firearm was not found in a room used
exclusively by Wilson, the firearm was not “patently visible” in the living room,
and no DNA evidence tied Wilson to the firearm, Wilson maintains it is mere
conjecture to conclude he constructively possessed it. Id. at 12, 14-15, 18.
Our Court’s standard of review for a challenge to the sufficiency of the
evidence is well settled:
8 In light of our conclusion, we need not address Wilson’s secondary argument that the firearm was seized pursuant to a warrant that was the fruit of an illegal search.
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In reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense. Additionally, we may not reweigh the evidence or substitute our own judgment for that of the fact finder. The evidence may be entirely circumstantial as long as it links the accused to the crime beyond a reasonable doubt.
Commonwealth v. Juray, 275 A.3d 1037, 1042 (Pa. Super. 2022)
(quotation marks and citations omitted). The jury, sitting as factfinder at trial,
“is free to believe all, part, or none of the evidence presented.”
Commonwealth v. Williams, 302 A.3d 117, 120 (Pa. Super. 2023)
(quotation marks and citation omitted).
The Pennsylvania Crimes Code defines persons not to possess firearms,
in pertinent part, as follows:
A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.
18 Pa.C.S. § 6105(a)(1).9 Possession of a firearm is an essential element of
the offense of possession of a firearm by a prohibited person. Id.;
Commonwealth v. Antidormi, 84 A.3d 736, 757 (Pa. Super. 2014). The
Commonwealth may prove possession by actual, constructive, or joint
9 Wilson does not contest that he was statutorily ineligible to possess a firearm. See Wilson’s Brief at 11-12, 14-18; see also Exs. 20 (Wilson’s certificate of non-licensure to carry firearms), 21 (Wilson’s Pennsylvania Court Summary depicting his criminal history).
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constructive possession. Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa.
Super. 2018) (citation omitted). .
Where possession is an element of the offense, the concept of constructive possession is a legal fiction used to prove the element although the individual was not in physical possession of the prohibited item. The evidence must show a nexus between the accused and the item sufficient to infer that the accused had the power and intent to exercise dominion and control over it. Dominion and control means the defendant had the ability to reduce the item to actual possession immediately or was otherwise able to govern its use or disposition as if in physical possession. Mere presence or proximity to the contraband is not enough. Constructive possession can be established by inferences derived from the totality of the circumstances.
Commonwealth v. Peters, 218 A.3d 1206, 1209 (Pa. 2019) (citations
omitted). Constructive possession may be proven by circumstantial evidence.
Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super. 2018)
“[C]onstructive possession may be found in either or both actors if contraband
is found in an area of joint control and equal access.” Commonwealth v.
Mudrick, 507 A.2d 1212, 1214 (Pa. 1986). Facts that only support an
association, suspicion, or conjecture that the defendant knew of the item and
its location are not sufficient to prove constructive possession. Parrish, 191
A.3d at 37.
In analyzing the sufficiency of the evidence, the trial court here
explained:
The combined testimony with the body worn camera [] video and the FCCs confirmed [Wilson] was in physical possession of the firearm. The [trial] court found Detective Relova’s testimony credible in providing a nexus to items identified at the scene. The
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recovered FCCs found on the step and porch of [Wilson’s] residence proved a gun was recently fired. Additionally, the firearm was discovered protruding under the couch in the area immediately near the front door within immediate proximity to [Wilson]. The search warrant revealed recent mail at the residence addressed to [Wilson]. Further, the Commonwealth presented evidence by stipulation of [Wilson’s] Certificate of Non[]Licensure proving he was not licensed to carry a firearm and a copy of [Wilson’s] First Judicial District of Pennsylvania Secure Court Summary demonstrating a prior conviction prohibiting him from possession of a firearm.
Despite this clear and convincing evidence,[10] [Wilson] asserts [the] Commonwealth failed to prove his § 6105 conviction, contesting his possession of a firearm. This claim is specious and wholly without merit. Pennsylvania law defines “firearms” as any weapons which are designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any such weapon. § 6105(i). The accumulation of the above evidence convincingly demonstrates [Wilson’s] possession of a firearm, as defined by statute. The [trial] court determined these facts were sufficient to support a finding of [Wilson’s] guilt for possession of a firearm prohibited and other related charges for which he was convicted.
Trial Court Opinion, 6/6/2023, at 8 (citations to the record and unnecessary
capitalization omitted).
We agree with Wilson that the record evidence was insufficient to prove
Wilson’s actual possession of the firearm. In finding Wilson was in actual
physical possession of the firearm, the trial court stated that it relied on the
10 To the extent the trial court used the “clear and convincing evidence” standard in this criminal trial, this was error; the correct standard is beyond a reasonable doubt. “An appellate court is not bound by the rationale of the trial court and may affirm on any basis if the record supports it.” Commonwealth v. Martin, 205 A.3d 1247, 1248 (Pa. Super. 2019) (citation, quotation marks, and brackets omitted).
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testimony of Officer Stocker and Detective Revola, their body worn camera
videos, and the FCCs. See id. at 8. It is unclear, however, what specific
testimony or which portion of the video evidence the trial court relied on to
find actual possession. The notes of testimony do not support a finding of
physical possession—neither witness testified to Wilson’s possession, and
there is no dispute the firearm was found under the living room couch, not on
Wilson’s person. Nor is it clear how the FCCs are, as the trial court found,
evidence of Wilson’s actual possession of the firearm; the record does not
reveal any evidence linking the FCCs to Wilson.
At the suppression hearing, the Commonwealth introduced Officer
Stocker’s incident report, which identified a witness who saw an individual
shooting a firearm from the steps or porch of the House. Ex. C-1 (Officer
Stocker’s incident report). In addition, video from Officer Stocker’s body worn
camera showed Officer Stocker’s interview of this eyewitness. Ex. C-22. She
identified Wilson as the shooter. Id. As noted, the Commonwealth
incorporated all non-hearsay testimony from the suppression hearing into its
case-in-chief. N.T., 8/15/2022, at 41. Because this eyewitness did not testify
at trial, to the extent the trial court relied on any of the statements made by
her to Officer Stocker to establish actual possession, this was error as it was
hearsay and thus was not admitted at trial. See generally Pa.R.E. 801
(defining hearsay as a statement made outside of court that is offered by a
party to prove the truth of the matter asserted in the statement), 802 (stating
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that hearsay is generally inadmissible). Accordingly, the record does not
support the trial court’s finding that Wilson was in actual possession of the
firearm.
This does not end our inquiry, however, because, as noted above,
Wilson could be found guilty of the crime charged if the evidence supports a
finding that he was in constructive possession of the firearm. The record
reflects that Wilson lived at the House. N.T., 8/15/2022, at 21, 23; Ex. C-13.
Upon responding to a report of gunshots fired from the House, police officers
saw two FCCs outside the front door. N.T., 8/15/2022, at 8-10. Wilson
answered the front door immediately after the officers knocked, indicating that
he was very close to the front door at that time. See Ex. C-22. While
performing a protective sweep of the House, a firearm was observed by Officer
Solomon, plainly visible under the couch immediately adjacent to the front
door. See Ex. D-3; see also N.T., 8/15/2022, at 22. The caliber of the
firearm matched that of the FCCs. N.T., 8/15/2022, at 21.
Viewing the totality of the evidence in the light most favorable to the
Commonwealth established Wilson’s constructive possession of the firearm.
The fact that other persons were inside did not render the evidence insufficient
to prove his constructive possession because more than one person may have
constructive possession of an item at the same time. See Commonwealth
v. Aviles, 615 A.2d 398, 403 (Pa. Super. 1992) (en banc) (holding evidence
was sufficient to show appellant constructively possessed contraband
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accessible to her in two bedrooms she rented to her sister and brother-in-law
where appellant had access to the unlocked bedrooms and there was no
evidence she was denied entry to these rooms in her home); Hall, 199 A.3d
at 961-62 (holding evidence was sufficient to prove appellant constructively
possessed drugs and packing materials found in his apartment where the
contraband was found both in plain view and hidden in living room); Mudrick,
507 A.2d at 1214 (holding evidence was sufficient to establish appellant
constructively possessed marijuana found in the living room where he lived in
the house with his girlfriend and they both had equal access to entire
residence). As the firearm was located in the living room of Wilson’s home—
a room to which he clearly had access—we conclude the evidence at trial, as
well as all reasonable inferences drawn therefrom sufficiently proved his
conviction of possession of a firearm by a prohibited person. Wilson’s claim
merits no relief.
Although we conclude there was sufficient evidence to convict Wilson of
possession of a firearm by a prohibited person, our review of this matter
reveals that Wilson’s sentence is illegal. See Commonwealth v. Ramos,
197 A.3d 766, 768 (Pa. Super. 2018) (stating that this Court may raise and
review an illegal sentence claim sua sponte). “Because the legality of a
sentence presents a pure question of law, our scope of review is plenary, and
our standard of review is de novo.” Commonwealth v. Derrickson, 242
A.3d 667, 673 (Pa. Super. 2020) (citation omitted). “If no statutory
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authorization exists for a particular sentence, that sentence is illegal and must
be vacated.” Id. (citation omitted).
Wilson’s conviction of possession of a firearm by a prohibited person
was graded as a first-degree felony. See Order of Sentence, 11/15/2022;
Trial Disposition and Dismissal Form, 8/15/2022; see also 18 Pa.C.S.
§ 6105(a)(1), (a.1)(1.1)(i). For Wilson’s conviction to be graded as a first-
degree felony, the Commonwealth was required to prove that, at the time of
the commission of the firearm possession violation under section 6105(a),
Wilson had previously been convicted of an offense under section 6105(a), or
was in physical possession or control of a firearm. 18 Pa.C.S.
§ 6105(a.1)(1.1)(i)(A)-(B).11 Neither requirement was proven in this case:
11 The statute provides, in relevant part, as follows:
(1) Except as provided under paragraph (1.1), a person convicted of a felony enumerated under subsection (b) or a felony under the act of April 14, 1972 (P.L. 233, No. 64),1 known as The Controlled Substance, Drug, Device and Cosmetic Act, or any equivalent Federal statute or equivalent statute of any other state, who violates subsection (a) commits a felony of the second degree.
(1.1) The following shall apply:
(i) A person convicted of a felony enumerated under subsection (b) or a felony under The Controlled Substance, Drug, Device and Cosmetic Act, or any equivalent Federal statute or equivalent statute of any other state, who violates subsection (a) commits a felony of the first degree if: (Footnote Continued Next Page)
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there is nothing in the record to suggest that Wilson had been previously
convicted of a section 6105 offense, see Ex. C-21, and as discussed above,
the record does not support a finding that Wilson was in physical possession
or control of the firearm. Accordingly, Wilson’s conviction cannot be graded
as a first-degree felony and instead must be graded as a second-degree
felony. See 18 Pa.C.S. § 6105(a.1)(1). Because the maximum sentence
allowed by statute for a second-degree felony is ten years of imprisonment,
and Wilson’s sentence of six to twelve years exceeds such maximum, his
sentence is illegal and must be vacated. See 18 Pa.C.S. § 1103(2) (A person
who has been convicted of a felony of the second degree may be sentenced
to imprisonment “for a term which shall be fixed by the court at not more than
ten years.”); Order of Sentence, 11/15/2022 (trial court sentencing Wilson to
six to twelve years of imprisonment); Derrickson, 242 A.3d at 673.
(A) at the time of the commission of a violation of subsection (a), the person has previously been convicted of an offense under subsection (a); or
(B) at the time of the commission of a violation of subsection (a), the person was in physical possession or control of a firearm, whether visible, concealed about the person or within the person's reach.
18 Pa.C.S. § 6105(a.1)(1), (1.1).
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For the foregoing reasons, we affirm Wilson’s conviction, vacate his
judgment of sentence, and remand this matter to the trial court for
resentencing.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Date: 7/12/2024
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