J-S55006-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JABREE COOPER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3026 EDA 2017

Appeal from the Judgment of Sentence August 22, 2017

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-CR-0000942-2017

BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.: FILED DECEMBER 04, 2018

Appellant, Jabree Cooper, appeals from the judgment of sentence 

entered on August 22, 2017. We affirm.

The trial court ably summarized the evidence presented during 

Appellant’s June 14, 2017 jury trial:

On [the evening of] October [21,] 2016, . . . Officer Matthew 

Goldschmidt of the Chester City Police Department was 

working with the Pennsylvania State Police as part of a special 

task force patrolling the high-crime areas of the city. He was 

partnered that evening with Trooper Salerno of the 

Pennsylvania State Police. They were in a marked State 

Police cruiser[;] Trooper Salerno was driving and Officer 

Goldschmidt was in the front passenger seat. . . .

[At approximately 10:40] that night, [the officers were 

traveling] north in the 700 block of Pennell Street [when]

they observed a blue Kia Optima approaching them with its 

high beams on. As the Kia approached 8th Street, it made a 

left onto West 8th Street without using a turn signal. As the 

vehicle turned, the passenger looked at them, and Officer 
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Goldschmidt could smell a very strong odor of burnt 

marijuana. . . .

As a result of their observations, the officers decided to 

conduct a traffic stop. They activated the lights and the siren 

on the patrol vehicle. The Kia stopped for a second as it 

approached Pusey Street and then fled. The driver 

accelerated the vehicle and made a left onto Pusey Street. 

The officers pursued. [Traveling at high speeds, t]he Kia 

went north to 9th Street, made a left onto 9th, went west on 

9

th to Tilghman, south on Tilghman Street to 4th Street, 

proceeded on 4th Street to Jeffrey Street, then south on 

Jeffrey, made a right onto 2nd Street, went down 2nd Street

to Highland Avenue, then north on Highland Avenue, where 

[it] smashed into several vehicles and then crashed on the 

front lawn of a house prior to 10th Street. There, the pursuit 

stopped and the two occupants were taken into custody. The 

driver was identified as [Appellant].

The entire incident was video recorded by the State Police 

cruiser’s [mobile video recorder (“MVR”)] system. The 

Commonwealth published the video to the jury with Officer 

Goldschmidt pausing the video at points during the pursuit 

and commenting []. One of the pauses was to show the jury 

a weapon being discarded out of the passenger window in the 

area of 2nd and Palmer Streets.

[Officer Goldschmidt searched Appellant incident to the 

arrest; the officer discovered “a clear sandwich bag 

containing six clear zip-top bags of crack cocaine down 

[Appellant’s] pants[,] between his [] legs.” N.T. Trial, 

6/14/17, at 46. The officers also searched the automobile 

Appellant was driving. The officers] . . . recovered a spent 

[cartridge] casing from a .40 caliber handgun [] on the floor 

of the rear seat area. . . .

Early the next morning, [police officers] went to the area of 

2

nd and Palmer Streets, the location [that the] MVR recording 

showed the gun being thrown from the vehicle, and retrieved 

a black firearm from the gutter. The weapon was identified 

as a .40 caliber Smith & Wesson M&P Shield. Upon 

examination, it was discovered the weapon was loaded with 

live ammunition. [Appellant] stipulated that the recovered 

weapon was functional and capable of discharging the type 
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of ammunition for which it was manufactured, as indicated in 

the ballistics report entered into evidence. [Appellant] also 

stipulated the “spent cartridge” recovered from the vehicle 

was discharged from that same handgun. [Appellant] further 

stipulated the firearm was reported stolen, as run through 

NCIC[] and, also, that he was not licensed to carry a firearm. 

. . .

Detective Louis Grandizio is employed by the Delaware 

County Criminal Investigation Division of the District 

Attorney’s Office and was qualified as an expert firearms 

examiner. He opined that the spent casing recovered from 

[Appellant’s] vehicle was consistent with the firearm being 

discharged from inside that vehicle. . . .

[Appellant] did not testify at trial and presented no evidence 

in rebuttal.

Trial Court Opinion, 11/20/17, at 2-4 (internal citations and some internal

capitalization omitted).

The jury found Appellant guilty of possession of a controlled substance, 

possession of drug paraphernalia, fleeing or attempting to elude a police 

officer, criminal conspiracy to possess a firearm without a license, criminal 

conspiracy to receive stolen property, possession of a firearm without a 

license, and receiving stolen property.1 On August 22, 2017, the trial court 

sentenced Appellant to serve an aggregate term of four-and-a-half to nine 

years in prison, followed by five years of probation, for his convictions. See

N.T. Sentencing, 8/22/17, at 18.

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1 35 P.S. §§ 780-113(a)(16) and (32), 75 Pa.C.S.A. § 3733(a), and 18 

Pa.C.S.A. §§ 903, 6106(a)(1), and 3925(a), respectively. 
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Appellant filed a timely notice of appeal. Appellant raises one claim to 

this Court:

Whether the evidence was insufficient to find [Appellant] 

guilty of firearms not to be carried without a license, 

conspiracy to firearms not to be carried without a license, 

receiving stolen property[,] and conspiracy to receiving 

stolen property arising from a vehicle stop in which a firearm 

was discarded by the [passenger] from the passenger side 

door during pursuit by the local and State Police[?]

Appellant’s Brief at 7 (some internal capitalization omitted).

We review Appellant’s sufficiency of the evidence challenges under the 

following standard:

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at trial 

in the light most favorable to the verdict winner, there is 

sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In applying 

the above test, we may not weigh the evidence and substitute 

our judgment for [that of] the fact-finder. In addition, we 

note that the facts and circumstances established by the 

Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant’s guilt may be 

resolved by the fact-finder unless the evidence is so weak 

and inconclusive that as a matter of law no probability of fact 

may be drawn from the combined circumstances. The 

Commonwealth may sustain its burden of proving every 

element of the crime beyond a reasonable doubt by means 

of wholly circumstantial evidence. Moreover, in applying the 

above test, the entire record must be evaluated and all 

evidence actually received must be considered. Finally, the 

trier of fact while passing upon the credibility of witnesses 

and the weight of the evidence produced, is free to believe 

all, part or none of the evidence. 
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Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en 

banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806 (Pa. 

Super. 2008). 

Appellant claims that the evidence was insufficient to support the

convictions that arose out of his possession of the firearm, as there was 

insufficient evidence to prove that he possessed the firearm. Further, on 

appeal, Appellant echoes the argument he made at trial and claims that his 

flight only demonstrated his consciousness of guilt as to the cocaine that was 

later found on his person. See Appellant’s Brief at 14. Appellant’s claims fail.

“In [] possession cases, the Commonwealth may meet its burden by 

showing actual, constructive, or joint constructive possession of the 

contraband.” Commonwealth v. Thompson, 428 A.2d 223, 224 (Pa. Super. 

1981). Actual possession is proven “by showing . . . [that the contraband 

was] found on the [defendant’s] person.” Commonwealth v. Macolino, 469 

A.2d 132, 134 (Pa. 1983). If the contraband is not discovered on the 

defendant’s person, the Commonwealth may satisfy its evidentiary burden by 

proving that the defendant had constructive possession of the contraband. 

Id. 

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 
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have held that constructive possession may be established 

by the totality of the circumstances.

Commonwealth v. Kinard, 95 A.3d 279, 292 (Pa. Super. 2014) (internal 

quotations and citations omitted); see also Macolino, 469 A.2d at 134 

(“[c]onstructive possession has been defined as the ability to exercise a 

conscious dominion over the illegal [contraband]: the power to control the 

contraband and the intent to exercise that control”).

With respect to the element of “knowledge” in possessory offenses, this 

Court held:

an awareness of the presence of the items which [the 

defendant] was accused of having [is] an essential element 

of his supposed intent to control. But this knowledge need 

not be proven by his admission of such knowledge, or by 

testimony of his associates that he saw these articles. The 

defendant’s knowledge of the presence of these articles may 

be inferred from all the surrounding circumstances.

Commonwealth v. Gladden, 311 A.2d 711, 712 (Pa. Super. 1973) (en banc) 

(internal quotations and citations omitted) (some internal capitalization 

omitted). “Mere ‘association,’ ‘suspicion’ or ‘conjecture,’ will not make out a 

case of constructive possession.” Commonwealth v. Valette, 613 A.2d 548, 

551 (Pa. 1992). However, “circumstantial evidence may be used to establish 

constructive possession of the [contraband].” Commonwealth v. Johnson, 

26 A.3d 1078, 1094 (Pa. 2011). Moreover, “[t]wo actors may have joint 

control and equal access and thus both may constructively possess the 

contraband.” Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 

1996). 
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Viewed in the light most favorable to the Commonwealth, the totality of 

the circumstances in this case is sufficient to establish that Appellant 

constructively possessed the firearm. Indeed, the Commonwealth introduced 

evidence demonstrating that: Appellant operated the vehicle on the night in 

question; the illegal, stolen firearm had been fired from within the same 

vehicle that Appellant was operating; when the officers initiated a traffic stop 

of Appellant’s vehicle, Appellant fled and drove his vehicle recklessly and at 

high speeds through the City of Chester, in an attempt to elude the officers

and avoid capture – thus demonstrating Appellant’s consciousness of guilt with 

respect to his illegal possession of the stolen firearm;

2, 3 and, during the 

high-speed chase, the firearm was thrown out of the passenger-side window.

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2

It is a “settled rule of law that when a defendant has reason to know that he 

may be suspected in connection with a crime, the jury may infer a 

consciousness of guilt from that person's flight or other evasive conduct.” 

Commonwealth v. Jones, 570 A.2d 1338, 1349 (Pa. Super. 1990); see also

Commonwealth v. Spotz, 870 A.2d 822, 825 n.10 (Pa. 2005) (“[e]vidence 

of a defendant's flight and/or concealment following a crime is admissible to 

establish an inference of consciousness of guilt”).

3 During trial, Appellant’s counsel argued that Appellant’s flight only 

demonstrated his consciousness of guilt as to the cocaine that was later found 

on his person. See N.T. Trial, 6/14/17, at 108-113. Nevertheless, in finding 

Appellant guilty of the firearm offenses, the jury apparently rejected this 

argument, as was its province. See Commonwealth v. Shaver, 460 A.2d 

742, 745 (Pa. 1983) (“[i]t is solely the province of the trier of fact to pass 

upon the credibility of witnesses and to give it such weight as may be accorded 

to the evidence therein produced. The factfinder is free to believe all, part or 

none of the evidence”).
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Contrary to Appellant’s argument during trial and on appeal, this 

evidence is sufficient to prove far more than Appellant’s “association” with the 

firearm. Indeed, the evidence is sufficient to prove that Appellant: knew the 

firearm was present in the vehicle; had the power and the intent to control 

the firearm while it was in the vehicle; and, acted in concert with his passenger

to dispose of the firearm during the high-speed chase. See Commonwealth 

v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (holding that the evidence 

was sufficient to establish that the defendant constructively possessed the 

firearm where: “[defendant] was the only person found in the vehicle[; t]he 

gun in question was found in a compartment on the passenger side of the 

vehicle[; the defendant] . . . mov[ed] sideways toward the passenger side of 

the vehicle immediately after [the officer] turned on his lights and siren[; and, 

the defendant] . . . exhibit[ed] a consciousness of guilt”). 

Moreover, the fact that Appellant’s attempt to elude capture might 

possibly be consistent with his cocaine possession – and not his possession of 

the illegal, stolen firearm – “entirely neglects to consider the evidence in the 

light most favorable to the Commonwealth.” Commonwealth v. Watley, 81 

A.3d 108, 115 (Pa. Super. 2013). “This case is simply not one where the 

evidence is so weak and inconclusive that there is no probability of fact that 

Appellant” had the power to control the contraband and the intent to exercise 

that control. See id. The evidence is thus sufficient to prove that Appellant

constructively possessed the firearm. Appellant’s sufficiency of the evidence 

claims fail.
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Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/4/18