J-A25033-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MERLE KENDRICK 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 247 WDA 2021

Appeal from the Judgment of Sentence Entered January 20, 2021

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0005025-2019

BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.

MEMORANDUM BY COLINS, J.: FILED: MARCH 11, 2022

Merle Kendrick appeals the judgment of sentence entered following a 

non-jury trial wherein Kendrick was found guilty of: (1) possessing a firearm 

without a license; (2) persons not to possess a firearm; and (3) possession of 

heroin, a controlled substance.1 On appeal, Kendrick challenges the sufficiency 

of the evidence utilized in both of his firearm convictions as well as his drugrelated conviction. Furthermore, Kendrick presents a Pennsylvania Rule of 

Criminal Procedure 600 argument, contending that the Commonwealth 

delayed his trial beyond the date as defined by that Rule. We agree that the 

evidence used to convict Kendrick was insufficient on all three counts. 

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 Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S.A. § 6106(a)(1); 18 Pa.C.S.A. § 6105(a)(1); and 35 Pa.C.S.A. 

§ 780-113(a)(16), respectively.
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Accordingly, we reverse Kendrick’s judgment of sentence.

In summary, a police officer initiated a traffic stop on a vehicle with an 

inoperable taillight. Kendrick, one of the vehicle’s four occupants, was seated 

in the row behind the driver.2

Upon approaching the heavily-tinted automobile, the officer who pulled 

over the vehicle requested the driver to put his window down. After the driver 

complied, the officer noticed the smell of marijuana. Following some level of 

questioning, the driver and another passenger, sitting rear driver’s side, 

admitted to having smoked that substance. The same passenger then handed 

a second officer a bag that was purported to contain marijuana. 

After this bag transfer, the officers ordered all of the occupants out of 

the vehicle and proceeded to frisk their persons. The first officer then went 

back to the vehicle and observed an AK-47 firearm lying across the middle of 

the floor in the back-seating area. This finding prompted the officer to take 

possession of the weapon and handcuff the vehicle’s former occupants. 

The second officer then conducted a full search of the vehicle. This 

search led to the discovery of two additional firearms as well as a substance 

appearing to be heroin.3 The one firearm, a Glock 23, was found “just under” 

the seat on which Kendrick had been sitting. N.T., 12/7/20, at 26. In order to 

uncover this weapon, however, that police officer had to “ben[d] down a little 

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2 Specifically, Kendrick was situated in the rear and on the passenger’s side 

of the vehicle. 

3 No laboratory testing was ever conducted to identify the substance.
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bit inside the rear passenger side of the vehicle” and “look down under the 

seat[.]” Id., at 27. 

Between the Commonwealth’s initial charging of Kendrick and his 

eventual trial, Kendrick filed a motion to dismiss pursuant to Rule 600, 

asserting that the Commonwealth’s refusal to sever his case from a codefendant who postponed Kendrick’s trial past its mechanical run date was 

tantamount to it failing to exercise due diligence in getting him to trial in a 

timely manner. The court denied his motion, but Kendrick was ultimately tried 

separately from his co-defendant.

At trial, testimony established that: (1) no fingerprints or DNA were 

recovered from the Glock 23; (2) none of the vehicle’s occupants made any 

statements acknowledging or accepting responsibility for any of the firearms; 

(3) the vehicle’s driver possessed a license to carry a concealed firearm; (4) 

the police officers could not remember the orientation and/or positioning of 

the Glock 23, as it was found; and (5) the officers were unable to ascertain 

when and where the passengers of the vehicle had entered that vehicle prior 

to the traffic stop. See id., 19-21, 28. It was also adduced that Kendrick 

remained compliant throughout the entire interaction with both police officers 

and did not make any noticeably furtive movements.

Sitting as factfinder, the court convicted Kendrick of two firearmsrelated offenses stemming specifically from Kendrick’s constructive possession 

of the Glock 23. The court likewise found Kendrick guilty of one drug-related 

offense predicated on the recovery of what was purported to be heroin.
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Although he was, too, charged with a marijuana-related offense, the court 

found him not guilty on that count. Subsequently, Kendrick was sentenced to 

nine to twenty-three months of incarceration4to be followed by several years 

of probation. 

After sentencing, Kendrick filed a timely notice of appeal. 

Correspondingly, the relevant parties have complied with their respective 

dictates under Pennsylvania Rule of Appellate Procedure 1925. As such, this 

appeal is ripe for evaluation.

On appeal, Kendrick presents three issues for review:

1. Did the Commonwealth present sufficient evidence to prove 

beyond a reasonable doubt that ... Kendrick exercised 

conscious dominion or control over a firearm recovered from 

under a seat in a car whose driver possessed a license to carry 

a concealed firearm and of which ... Kendrick was one of four 

occupants?

2. Did the Commonwealth present sufficient evidence to prove 

beyond a reasonable doubt that ... Kendrick exercised 

conscious dominion or control over a controlled substance 

where it introduced no evidence whatsoever that the substance 

in question was in fact a controlled substance?

3. Did the trial court err in failing to grant ... Kendrick’s [m]otion 

to [d]ismiss [p]ursuant to Pa.[]R.Crim.P.[ ]600 where the 

Commonwealth delayed his trial past its amended run[]date in 

order to avoid severing his case from another defendant who 

was ultimately tried separately?

Appellant’s Brief, at 5.

Kendrick’s first and second assertions challenge whether the evidence 

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4 Two of Kendrick’s three convictions received terms of incarceration. 

However, those terms were ordered concurrent to one another. 
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was sufficient to convict him. Our standard of review employed in such claims 

is well-settled:

[O]ur standard of review of sufficiency claims requires that we 

evaluate the record in the light most favorable to the verdict 

winner giving the prosecution the benefit of all reasonable 

inferences to be drawn from the evidence. 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. Nevertheless, the 

Commonwealth need not establish guilt to a mathematical 

certainty. [T]he facts and circumstances established by the 

Commonwealth need not be absolutely incompatible with the 

defendant's innocence. 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.

Commonwealth v. Lynch, 242 A.3d 339, 352 (Pa. Super. 2020) (citation 

omitted) (alterations in original). To demonstrate a material element of a 

crime, the Commonwealth is permitted to “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. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013) (citation omitted). Moreover, 

“[t]he trier of fact bears the responsibility of assessing the credibility of the 

witnesses and weighing the evidence presented. In doing so, the trier of fact 

is free to believe all, part, or none of the evidence.” Id. (citation omitted). 

Kendrick avers that the Commonwealth did not present enough 

evidence to demonstrate the possession or carrying element of his two 

firearms convictions. See 18 Pa.C.S.A. § 6105(a)(1) (prohibiting possession 
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of a weapon following conviction of an enumerated offense) and 18 Pa.C.S.A. 

§ 6106(a)(1) (prohibiting the carrying of a weapon without a license). 

Specifically, Kendrick identifies that, inter alia, he “was one of four occupants 

of the vehicle in which the firearm was found, and he did not evince any 

suspicious behavior at any point during his interactions with police officers.” 

Appellant’s Brief, at 13.

Given that he was not in actual possession of the firearm, the trial court 

determined that Kendrick constructively possessed the Glock 23 found 

underneath his rear passenger-side car seat. See Trial Court Opinion, 5/3/21, 

at 10-11.

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.

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

(citations, brackets, and internal quotation marks omitted). Furthermore, 

“[t]he 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.” Commonwealth v. Peters, 218 A.3d 1206, 
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1209 (Pa. 2019) (citation omitted). “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.” Id. (citations omitted). 

Importantly, however, “[m]ere presence or proximity to the contraband 

is not enough.” Id. (citations omitted) (emphasis added); see also Parrish, 

191 A.3d at 37 (identifying that “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”) 

(citations omitted). To elaborate further, “[i]f 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.” Parrish, 191 

A.3d at 37 (citation omitted). Stated differently, facts that merely rise to the 

level of demonstrating association, suspicion, or conjecture between the 

accused and the contraband are insufficient to prove constructive possession. 

See id. “At the least, the evidence must show that the defendant knew of the 

existence of the item.” Commonwealth v. Hamm, 447 A.2d 960, 962 (Pa. 

Super. 1982) (citations omitted). 

In its opinion, the trial court relied exclusively on the location of the 

Glock 23 vis-à-vis where Kendrick had been sitting to establish constructive 

possession as to both firearms offenses. See Trial Court Opinion, 5/3/21, at 
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9. The court further emphasized one of the officers’ testimonies, which 

indicated that based on that officer’s training and experience, Kendrick’s 

location meant that “the weapon was readily accessible to [him].” Id. The 

court then concluded that

[v]iewing all the evidence admitted at trial in the light most 

favorable to the Commonwealth, there was sufficient evidence to 

prove the elements of carrying a firearm without a license as it is 

clear [Kendrick] was in constructive possession of the Glock 23 

found at his feet when seated in the vehicle.

Id.

While Kendrick may have had the power to control the weapon found 

underneath the place he had been sitting given his proximity to the firearm, 

there is absolutely no evidence of record tending to demonstrate that he had 

any attendant intent to control that weapon or even knew of its existence. To 

the extent that the weapon was, in fact, hidden from plain view, “it is settled 

that we may not infer that [a defendant] knew of [a] weapon’s existence 

simply from the fact that it was hidden in [an] automobile.” Hamm, 447 A.2d 

at 962. Although the Commonwealth is permitted to demonstrate constructive 

possession through circumstantial evidence and the trial court may find 

constructive possession by analyzing the totality of the circumstances, our 

precedent is clear that there must be some additional piece of evidence 

proffered to demonstrate intent beyond that of spatial juxtaposition.

According to the officer who found the Glock 23, said weapon was not 

visible unless someone were to bend down and look underneath the seat. 
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Moreover, the officers noted Kendrick’s complete cooperation, his lack of 

nervousness, and were unable to recall him making any type of furtive 

movement throughout the entire encounter. Additionally, while it may not be 

a legally conclusive fact, it is worth noting that the driver of the vehicle in this 

matter had a license to carry a firearm. 

The Commonwealth attempts to demonstrate constructive possession 

by highlighting the one officer’s statement indicating that the firearm was “just 

under” the seat. Appellee’s Brief, at 17. That officer stated: “if you’re seated 

in the rear passenger seat where [he] located the gun, it would have been 

just hunching over and reaching under and grabbing it” in order to access the 

weapon. N.T., 12/7/20, at 29. In addition, the Commonwealth highlights that 

all three recovered weapons were from different manufacturers and located 

at different places in the vehicle. To elaborate further, the Commonwealth 

suggests that given the weapons’ locations, each firearm was only accessible 

to one or two people. That accessibility, states the Commonwealth, can allow 

for a finding of attributability and therefore constructive possession. 

Both the trial court and Commonwealth cite Commonwealth v. 

Hopkins, 67 A.3d 817 (Pa. Super. 2013), for the proposition that constructive 

possession may be found if the firearm is found within arms-length of where 

a defendant was seated. While it may be factually true that the weapon in 

Hopkins was located within reach of that appellant, there were many other 

pieces of information submitted to the court that allowed for a totality of the 
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circumstances finding of constructive possession:

When viewed in their totality, the facts and circumstances support 

the finding that appellant was in constructive possession of the 

contraband and the weapon. Minutes after a known drug user was 

observed making a cell phone call, pacing in a vacant lot, and 

counting money, appellant drove his vehicle the wrong way into a 

dark side street. As the police approached, the known drug user 

fled. When the transaction was thwarted, Detective Goob, a tenyear veteran of the narcotics unit, observed appellant attempt to 

hide two bricks of heroin in the space between the driver's seat 

and the center console of the vehicle he was driving. The detective 

also observed T.H. throw a brick of heroin onto the floor of the 

vehicle. The firearm was found within arms-length of where 

appellant was seated. Additionally, upon arrest, appellant was 

found with two cell phones and $361 in cash; the juvenile had no 

money on his person.

Id., at 821.

The Commonwealth additionally references Commonwealth v. 

Haskins, 677 A.2d 328 (Pa. Super. 1996), Commonwealth v. Bentley, 419 

A.2d 85 (Pa. Super. 1980), and Commonwealth v. Flythe, 417 A.2d 633

(Pa. Super. 1979). Haskins was cited for the distilled proposition that 

contraband in areas that are usually accessible to the driver of a vehicle allows 

for a finding of constructive possession. See Appellee’s Brief, at 22. Bentley

was cited for the notion that an appellant/driver’s easy reach to a weapon in 

a car registered to that appellant’s wife gave rise to an inference that the

appellant knew of its presence. See id., at 23. And Flythe was cited for the 

discussion that it was unbelievable for that appellant to innocently enter a 

vehicle and subsequently have no knowledge of a pistol that was in somewhat 

plain view and a mere inches away. See id. 
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Each case is distinguishable. In Haskins, the contraband was found “in 

the glove compartment ... and ... in the hatch area[, which] were ... areas 

usually accessible only to the operator of a vehicle [i.e., the appellant].” 677 

A.2d at 330. In Bentley, the appellant was the driver, the vehicle was 

registered in his wife’s name, and the weapon, which was “protruding from 

beneath a loose speaker on the floor in front of the driver’s seat” was located 

within easy reach. See 419 A.2d at 87. Furthermore, “live bullets were found 

on the ground immediately adjacent to the driver’s door.” Id. In Flythe, that 

appellant was the passenger of a vehicle. After being spotted carrying, inter 

alia, a tear gas gun with three others, the appellant ran to a vehicle and 

attempted to flee the scene. See Flythe, 417 A.2d at 634. At that point, 

officers saw the appellant “in the front seat of the vehicle leaning down as 

though placing something under the seat.” See id. The contraband was found 

in that position, at least somewhat in plain view, and correspondingly, 

constructive possession was found given that the appellant “had leaned down 

to push something under the seat,” establishing knowledge of its presence. 

Id. 

Of note, Flythe additionally featured a dissent, which, unlike those in 

the majority, sought more of a factual basis than simply observing an 

appellant leaning forward. Judge Spaeth indicated that the Commonwealth did 

not prove that the appellant intended to exercise the power to control the 

contraband. See id., at 635 (Spaeth, J., dissenting). Judge Spaeth continued 
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by identifying that: (1) the appellant did not own the automobile in which he 

was a passenger; (2) any other person, such as the owner of the vehicle or 

the driver, could have placed the contraband there; and (3) the officer’s view 

was obfuscated when he saw the appellant lean forward. See id. The Judge

concluded: “[a]t most the Commonwealth has presented evidence of the 

officer’s suspicions, which is not sufficient.” Id. While a dissenting opinion is 

not binding, it is illuminative of this Court’s precepts regarding constructive 

possession. Namely, there needs to be some threshold proffered by the 

Commonwealth tending to demonstrate an intent to exercise control over a 

contraband. 

At a minimum, Flythe featured a police officer testifying that he saw a 

movement related to where contraband would ultimately be found.

Conversely, we are unable to discern any factual nexus connecting Kendrick 

to a corresponding intention to control the firearm beyond that of his location. 

First, there is no evidence that the weapon was in plain view or able to be 

seen without manipulating one’s body in a way that would be distinct from 

simply being a vehicular passenger. Second, the orientation of the gun (such 

as the location of the trigger, etc.) as it lay underneath the seat was unable 

to be remembered and is therefore unknown. Third, Kendrick was a passenger 

in the vehicle which he did not own, and there is no evidence related to when 

or where he, or the other passengers, entered the vehicle. Fourth, the driver 

was licensed to carry a concealed firearm. Fifth, other than a demonstration 
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of its operability, no physical testing of the Glock 23 was performed, either 

DNA or fingerprint. Sixth, neither Kendrick, nor any of the vehicle’s other 

occupants, made any kind of contemporaneous or after-the-fact statement 

tying him or anyone else to the specific contraband. Seventh, Kendrick 

remained completely compliant and did not make any furtive movements at 

all relevant points. 

Looking at the totality of the circumstances, we are constrained by the 

lack of any additional factual basis tying Kendrick to the weapon.5 As stated 

prior, a hidden weapon, standing alone, cannot form the inference that an 

individual would have knowledge of its existence in an automobile. See 

Hamm, 447 A.2d at 962. Other than his location to the firearm, which, by 

itself, is insufficient to demonstrate constructive possession as a matter of 

law, there is simply no salient basis of record to conclude that Kendrick had 

an intent to exercise control over the weapon. 

Although we view all evidence in the light most favorable to the 

Commonwealth, proximity, by itself, is not enough to demonstrate

constructive possession, and nothing more has been offered that extends 

beyond that domain. As such, we find the evidence insufficient to convict 

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5 To the extent the Commonwealth suggests that the different weapons 

uncovered in this case make it more likely for them to be attributable to 

specific occupants, we are unable to find any related authority on this 

assertion. If anything, it would be equally, if not more, likely that a legal gun 

owner, such as the driver here, would opt to acquire distinct firearms rather 

than having three of the exact same type.
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Kendrick on his two firearms-related convictions. 

In his second argument, Kendrick asserts that the Commonwealth failed 

to present evidence beyond a reasonable doubt to establish that he possessed 

heroin or any other controlled substance. Kendrick bolsters this claim by 

stating that one of the officers testified that the recovered substance appeared 

to be heroin, but that nothing further was entered into evidence to 

conclusively demonstrate what that substance was. Absent information 

related to how the substance was packaged or any kind of laboratory report 

confirming its composition, Kendrick believes that the Commonwealth failed 

to meet its burden of proof. 

The Commonwealth and the trial court agree with Kendrick’s argument:

Upon a thorough review of the record, the [t]rial [c]ourt has 

determined that the Commonwealth failed to introduce a crime lab 

report at the time of trial to establish that the alleged controlled 

substance was heroin, or any controlled substance. Due to this 

oversight, the [t]rial [c]ourt acknowledges that [it] failed to 

provide sufficient evidence to prove beyond a reasonable doubt 

that [Kendrick] physically or constructively possessed a controlled 

substance. As such, [Kendrick’s] conviction and sentence for 

possession of a controlled substance should be vacated[.]

Trial Court Opinion, 5/3/21, at 11. “The Commonwealth has also reviewed the 

trial record thoroughly and concurs with [Kendrick] and with the court that 

there was insufficient evidence to sustain the conviction based on the failure 

to introduce laboratory report showing that the substance was heroin.” 

Appellee’s Brief, at 42.
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As we see no basis to depart from the agreed-upon rectification of 

Kendrick’s drug-related conviction, we agree that the evidence was insufficient 

to convict him and proceed accordingly.

Because all three of Kendrick’s convictions were predicated on 

insufficient evidence, we reverse his entire judgment of sentence.6

Judgment of sentence reversed. Appellant discharged. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/11/2022 

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6 Given our adjudication of Kendrick’s first two issues, it is unnecessary to 

discuss his third.