J-A09009-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ABDUL PORTER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 factfinder.

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