J-S65020-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

CHRIS ALAN NEIL

Appellant No. 1970 MDA 2017

Appeal from the Judgment of Sentence imposed November 21, 2017

In the Court of Common Pleas of Cumberland County

Criminal Division at No: CP-21-CR-0001847-2017 

BEFORE: SHOGAN, and STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.: FILED FEBRUARY 15, 2019

Appellant, Chris Alan Neil, appeals from his judgment of sentence of 

31⁄2-7 years’ imprisonment for carrying a firearm without a license in violation 

of 18 Pa.C.S.A. § 6106. We affirm.

The trial court accurately summarized the evidence adduced during trial 

as follows:

On May 23, 2017, [Appellant] left a threatening voicemail for his 

estranged wife. He indicated that when he saw her the next day 

that he would have a “gun waiting for [her].” On May 24, 2017, 

he saw his estranged wife as she approached the county 

courthouse in her car. He immediately jumped on his motorcycle 

and followed. When she pulled over to park near the courthouse, 

[Appellant] ran up to her vehicle and began banging on the 

window while screaming at her. Afraid of what might happen, she 

blew her car horn steadily until county sheriffs and local police 

responded. As the officers approached, [Appellant] jumped back 

onto his motorcycle and fled.
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The estranged wife recounted the threatening voicemail and her 

fear that [Appellant] might be armed. Officers quickly followed in 

his direction. They found his motorcycle parked around the block 

from the courthouse[.] Pursuant to a search of the motorcycle’s 

saddlebag, officers found a revolver inside a men’s motorcycle 

vest. As a result, the Commonwealth charged [Appellant] with 

one count of firearms not to be carried without a license for the 

revolver recovered from the motorcycle.

At trial, the defense stipulated that [Appellant] did not have a 

license to conceal-carry the revolver because he was ineligible for 

such a license. The Commonwealth presented a firearms expert 

who opined that the revolver recovered from the motorcycle was 

capable of firing projectiles. Another Commonwealth witness and 

long-time friend of the former couple testified that [Appellant] had 

possessed a revolver like that found on the motorcycle prior to the 

May incident. He believed that the revolver in evidence was the 

very same revolver that he had seen in [Appellant]’s possession. 

He also testified to what he witnessed as he followed [Appellant]’s

estranged wife on the day of the incident.

Trial Ct. Op., 4/5/18, at 1-2. 

The jury found Appellant guilty of the aforementioned firearms offense. 

On November 21, 2017, the trial court imposed sentence. Appellant timely 

appealed to this Court, and both Appellant and the trial court complied with 

Pa.R.A.P. 1925.

Appellant raises two issues in this appeal:

I. Did the trial court err when it concluded that the evidence 

provided by the Commonwealth was sufficient to find [Appellant] 

guilty of possessing a firearm without a license?

II. Did the trial court err when it allowed the Commonwealth to 

present prejudicial testimony through a late-provided witness not

previously mentioned in discovery?

Appellant’s Brief at 5.
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In his first argument, Appellant contends that the evidence was 

insufficient to sustain his conviction for carrying a firearm without a license. 

Our Supreme Court has explained:

A claim challenging the sufficiency of the evidence is a question of 

law. Evidence will be deemed sufficient to support the verdict 

when it establishes each material element of the crime charged 

and the commission thereof by the accused, beyond a reasonable 

doubt. Where the evidence offered to support the verdict is in 

contradiction to the physical facts, in contravention to human 

experience and the laws of nature, then the evidence is insufficient 

as a matter of law. When reviewing a sufficiency claim the court 

is required to view the evidence in the light most favorable to the 

verdict winner giving the prosecution the benefit of all reasonable 

inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). Further:

The evidence established at trial need not preclude every 

possibility of innocence and the fact-finder is free to believe all, 

part, or none of the evidence presented. It is not within the 

province of this Court to re-weigh the evidence and substitute our 

judgment for that of the fact-finder. The Commonwealth’s burden 

may be met by wholly circumstantial evidence and any doubt 

about the defendant’s guilt is to be resolved by the fact finder 

unless the evidence is so weak and inconclusive that, as a matter 

of law, no probability of fact can be drawn from the combined 

circumstances. Additionally, in applying the above test, the entire 

record must be evaluated and all evidence actually received must 

be considered.

Commonwealth v. Feliciano, 67 A.3d 19, 23-24 (Pa. Super. 2013) (en 

banc).

Section 6106 provides in relevant part: “Any 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 
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of the third degree.” 18 Pa.C.S.A. § 6106(a)(1). Appellant argues that the 

Commonwealth failed to prove that he carried a firearm in a vehicle.1 We 

conclude that the Commonwealth satisfied this element by introducing 

evidence that Appellant was in constructive possession of the firearm in the 

motorcycle that he was operating. 

We have held that 

possession can be found by proving actual possession, 

constructive possession, or joint constructive possession. 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, [a]s 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. See, e.g., Commonwealth v. Davis, 743 A.2d 946, 953–

54 (Pa. Super. 1999) (holding that evidence was sufficient to 

prove constructive possession over drugs found in common areas 

of an apartment where the defendant entered the apartment using 

his own key, and possessed $800 in cash on his person, and police 

recovered defendant's identification badge, size-appropriate 

clothing, and firearms from a bedroom).

[A] defendant’s mere presence at a place where contraband is 

found or secreted is insufficient, standing alone, to prove that he 

____________________________________________

1 Appellant does not claim that the Commonwealth failed to prove the other 

elements of Section 6106(a)(1).
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exercised dominion and control over those items. Thus, the 

location and proximity of an actor to the contraband alone is not 

conclusive of guilt. Rather, knowledge of the existence and 

location of the contraband is a necessary prerequisite to proving 

the defendant’s intent to control, and, thus, his constructive 

possession. 

If the only inference that the fact finder can make from the facts 

is a suspicion of possession, the Commonwealth has failed to 

prove constructive possession. It is well settled that facts giving 

rise to mere association, suspicion or conjecture, will not make 

out a case of constructive possession.

Commonwealth v. Parrish, 191 A.3d 31, 36-37 (Pa. Super. 2018) (several 

citations and quotation marks omitted).

Here, one day before the incident, Appellant threatened to shoot his 

wife. The next morning, May 23, 2017, while on a motorcycle, Appellant 

approached his wife’s car outside a courthouse and banged on her window. 

Although Appellant’s wife was the registered owner of the motorcycle, she 

testified that he was the only person who ever operated it, and that he was 

the sole operator on the date of the incident. As Appellant confronted her, 

she blew her car horn until law enforcement officers approached. Appellant

fled on the motorcycle, which the police found around the block from the 

courthouse. The officers found a loaded firearm inside the motorcycle’s 

saddlebag. Both Appellant’s wife and David Downs, an eyewitness to the 

encounter outside the courthouse, testified that they previously had seen this 

firearm in Appellant’s possession. Viewed collectively, this evidence gave rise 

to more than “mere association, suspicion or conjecture.” Id. at 37. The 
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totality of the evidence demonstrates that Appellant exercised dominion and 

control over the firearm. 

Appellant argues that his case is analogous to Parrish, in which we held 

that the evidence was insufficient to prove constructive possession. We find 

Parrish distinguishable. There, the police discovered guns and drugs in the 

front row of a vehicle, but the defendant was seated in the back row. The 

defendant was not carrying any type of bag when he entered the car. He did 

not have keys to the car and was not its owner or operator. There was no 

evidence that he had ever been seated in either of the front seats. Neither of 

the recovered firearms was registered to him, and there was no fingerprint 

evidence for either weapon. We held that the jury could not reasonably infer 

that the defendant knew about the contraband in the front row, let alone 

exercise dominion and control over these items. Id. at 37-38. In contrast, 

there is abundant evidence in the present case that Appellant knew about the 

firearm in the motorcycle saddlebag and exercised both dominion and control 

over it. 

Accordingly, the evidence was sufficient to sustain Appellant’s conviction 

under Section 6106.

In his second argument, Appellant contends that the trial court abused 

its discretion by failing to preclude Downs’ testimony that he had previously 

seen Appellant in possession of the firearm recovered in the saddlebag. We 

review the trial court’s decision to admit or deny evidence for abuse of 
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discretion or error of law. Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. 

Super. 2012). “Thus our standard of review is very narrow. To constitute 

reversible error, an evidentiary ruling must not only be erroneous, but also 

harmful or prejudicial to the complaining party.” Id.

The trial court cogently discussed this issue as follows:

Regarding the challenge to Mr. Downs, defense counsel claimed 

that he was only objecting to Mr. Downs’ statement that he had 

seen [Appellant] with a revolver prior to the incident. However, 

counsel conceded that he could not articulate any prejudice aside 

from the fact that the statement was damaging. Nor did he claim 

that the statement was known to and purposely withheld by the 

Commonwealth to gain an advantage.

Given [the] defense’s concession to the absence of unfair 

prejudice, we allowed Mr. Downs to testify to having seen 

[Appellant] with a similar revolver prior to the May incident. The 

testimony went to [Appellant’s] identity and his knowledge of, or 

lack of mistake concerning, his carrying of the firearm on the 

motorcycle. The revolver itself was antique in nature and not like 

revolvers commonly seen today. Considering the unique 

characteristics of the revolver, Mr. Downs’ testimony tended to 

establish that [Appellant] was the person on the motorcycle, and 

that he possessed and, therefore, was the one who carried the 

revolver found on that motorcycle. It completed the 

Commonwealth’s story in these respects.

Trial Ct. Op. at 4-5. Based on our review of the record, we agree with this 

analysis and hold that the trial court acted within its discretion by permitting 

Downs’ testimony. 

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/15/2019