J-S72025-17

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES GEATHERS,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1519 EDA 2016

Appeal from the Judgment of Sentence May 5, 2016

in the Court of Common Pleas of Philadelphia County, 

Criminal Division at No(s): CP-51-CR-0001906-2015

BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 29, 2017

James Geathers (“Geathers”) appeals from the judgment of sentence 

imposed following his convictions of persons not to possess firearms, 

firearms not to be carried without a license, and carrying firearms on public 

streets of Philadelphia. See 18 Pa.C.S.A. §§ 6105(a)(1); 6106(a)(1); 6108. 

We affirm.

The trial court set forth the relevant underlying facts as follows:

On July [1], 2014, at approximately 1:10 a[.]m[.], Officer Dat 

Nguyen (“Officer Nguyen”) and his partner, Officer Acevedo 

(“Officer Acevedo”)[,] were on patrol at the 1300 block of 52nd

Street in Philadelphia, Pennsylvania. N.T.[,] 7/27/15[,] at 10. 

At that time, Officer Nguyen observed a gray 2001 Mercury 

Grand Marquis exiting a parking spot. Id. After the driver failed 

to use a left-turn signal, the officers conducted a lawful traffic 

stop for [a] violation of the Motor Vehicle Code. Id. 

When Officer Nguyen approached the vehicle, he observed four 

individuals: co-defendant Kyle Bess [(“Bess”)] (seated in the 

driver’s seat), [Geathers] (seated in the front passenger seat), 

and two other males (both of whom were in the rear passenger 
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seats). Id. at 12. At this time, Officer Nguyen asked Bess for 

his license, registration, and insurance; however, Bess only

provided his identification. Id. at 10. During the exchange, 

Officer Nguyen noticed that Bess was shaking and that he 

appeared very nervous, asking the officer several questions in a 

nervous manner. Id. 

At that time, Officer Nguyen returned to his vehicle, where 

Officer Acevedo proceeded to process Bess’[s] information. Id.

at 11. Because Officer Acevedo was acting as the recorder,

Officer Nguyen continued to observe the vehicle occupied by 

[Geathers]. Id. at 10. During this time, Officer Nguyen saw 

multiple movements inside the front area between Bess (the 

driver) and [Geathers] (the front passenger). Id. at 12. The 

officer specifically saw both Bess and [Geathers] reaching toward 

the area around the center console. Id.

After making these observations, Officer Nguyen returned to the 

car occupied by Bess and [Geathers], this time opening the 

driver’s side door and ordering Bess to exit the vehicle. Id. 

After the officers conducted a pat-down, Bess was placed inside 

the patrol vehicle. Id. The officers then removed [Geathers]

from the car, followed by each of the two rear passengers. Id. 

All three men were frisked, then ordered to stand against a wall 

located roughly four or five feet away from the vehicle. Id. at 

34-35. With all three men outside of the vehicle, Officer Nguyen

shined his flashlight through a window to the interior of the 

vehicle. Id. at 13-14. At this time, he observed what appeared 

to be the magazine of a gun sticking out from a black and grey 

Nike bag that was situated between the armrest and the front 

passenger’s seat of the vehicle. Id. at 14. This was the same 

area where both [Geathers] and Bess had previously been 

reaching. Id. After making this observation, Officer Nguyen 

turned around and looked at [Geathers], who immediately fled 

northbound on 52nd Street. Id. at 14. At trial, Officer Nguyen 

testified that ultimately, they did not give chase to [Geathers], 

as they were concerned with the two unsecured passengers[,]

who were still outside of the vehicle. Id. However, even after 

[Geathers] fled, the two rear passengers stayed at the scene. 

Id. at 26. 

After retrieving the bag from the vehicle, Officer Nguyen found a 

black Intratec .9mm semi-automatic handgun loaded with 24 live 

rounds. Id. at 15. At trial, counsel stipulated to the contents of 
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the bag, as well as both [Geathers’s] ineligibility to possess the 

firearm, and the firearm’s operability.

Trial Court Opinion, 1/4/17, at 1-3 (unnumbered).

Geathers was able to elude the authorities for seven months, and was 

arrested on February 2, 2015. Geathers and Bess waived their right to a 

jury trial and were tried together before the Honorable Sean F. Kennedy. 

Judge Kennedy found Geathers guilty of the above-mentioned charges and 

acquitted Bess on all charges. Judge Kennedy sentenced Geathers to an 

aggregate term of six to twelve years in prison, followed by five years of 

probation. 

Geathers filed a timely Notice of Appeal and a court-ordered 

Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.

On appeal, Geathers raises the following question for our review: 

“Whether the trial court erred in finding that the Commonwealth produced 

sufficient evidence to prove beyond a reasonable doubt that [Geathers] 

constructively possessed a firearm in violation of 18 Pa.C.S.[A.] 

§ 6105(a)(1), 18 Pa.C.S.[A.] § 6106(a)(1), and 18 Pa.C.S.[A.] § 6108[?]” 

Brief for Appellant at vi.

We apply the following standard of review when considering a 

challenge to the sufficiency of the evidence:

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

our judgment for 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 

finder 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.

Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015) 

(citation omitted).

Geathers contends that the evidence was insufficient to establish that 

he constructively possessed the firearm found in the vehicle. Brief for 

Appellant at 1, 4, 6. Geathers argues that he was not alone in the vehicle 

and that all four men in the vehicle were making movements after the 

officers stopped the vehicle. Id. at 4, 6; see also id. at 4-5 (noting that 

Bess was making movements toward the center console and was extremely 

nervous when answering the officer’s questions). Geathers further points 

out that the officers did not observe the bag containing the firearm until 

both Bess and Geathers were removed from the vehicle. Id. at 5; see also 

id. at 5, 6 (noting that the two rear passengers were in the vehicle when he 

and Bess were removed from the vehicle and that they had ample 

opportunity to move the firearm during this time). Geathers asserts that 
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while his decision to flee the scene suggests a consciousness of guilt, the 

flight only occurred after the police found the firearm, and he realized either 

Bess or one of the rear passengers had thrown the firearm on his seat. Id.

at 5. Geathers claims that his flight was not dispositive of guilt, and that 

without any evidence, other than proximity to the firearm, the 

Commonwealth failed to meet its burden of constructive possession. Id. at 

6-7.

Where, as here, Geathers did not possess the firearm on his person, 

the Commonwealth was required to establish that Geathers constructively 

possessed the firearm. See, e.g., Commonwealth v. Heidler, 741 A.2d 

213, 215 (Pa. Super. 1999) (noting that in firearm possession cases, the 

Commonwealth may meet its burden by showing actual, constructive, or 

joint constructive possession). 

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 have held that constructive possession 

may be established by the totality of the circumstances.

Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (citation 

and quotation marks omitted). “[C]ircumstantial evidence may be used to 

establish constructive possession of the [contraband].” Commonwealth v. 

Johnson, 26 A.3d 1078, 1094 (Pa. 2011). However, a defendant’s mere 
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presence at the scene does not establish constructive possession of a 

weapon. Commonwealth v. Vargas, 108 A.3d 858, 869 (Pa. Super. 2014) 

(en banc).

The trial court addressed Geathers’s claims as follows:

In the instant case, [Geathers] was not only within the 

immediate proximity of the contraband, but he also made 

several furtive movements in the area where the contraband was 

found. The bag containing the gun was discovered between the 

center console and the passenger’s seat, which is where

[Geathers] was seated when the initial stop took place. 

[Geathers] was seen making movements in that area prior to the 

initial stop, as well as during the time that Officer Nguyen 

observed the vehicle[,] while his partner ran the driver’s 

information. Additionally, when Officer Nguyen discovered the 

firearm, [Geathers] fled from the scene. Although two other 

unsecured individuals were present at this time, [Geathers] was 

the only one who ran. This reaction demonstrates consciousness 

of guilt, which is also indicative of his knowledge of the firearm’s 

presence in the vehicle.

Given the totality of the circumstances, it is clear that [Geathers]

constructively possessed the firearm beyond a reasonable doubt. 

[Geathers] was more than merely present at the scene; rather, 

he was observed with the contraband in the area of his 

immediate control and, additionally, showed an apparent ability 

to exercise said control. This is supported by both direct and 

circumstantial evidence which, when viewed in the light most 

favorable to the Commonwealth as the verdict winner, it is 

sufficient to support [Geathers’s] conviction[s.]

Trial Court Opinion, 1/4/17, at 6 (unnumbered).

We agree with the sound reasoning of the trial court. See id. Thus, 

we conclude that under the totality of these circumstances, sufficient 

evidence demonstrated Geathers constructively possessed the firearm. See 

Commonwealth v. Smith, 146 A.3d 257, 263 (Pa. Super. 2016)
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(concluding that appellant constructively possessed the firearm based upon 

evidence that it was recovered from a dresser that included other items 

belonging to appellant and appellant fled from the scene, evidencing a 

consciousness of guilt); Cruz, 21 A.3d at 1253 (holding evidence was 

sufficient to establish that driver of car had constructive possession of a gun 

found in a compartment on the passenger side where the driver moved 

toward the passenger side of the vehicle when the officer turned on his 

lights and siren, and the driver gave the officer different names and 

birthdates, which exhibited a consciousness of guilt).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/29/2017