J-S45039-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

v.

JUSTIN BUCHANAN,

 Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1901 EDA 2016

Appeal from the Judgment of Sentence April 19, 2016

in the Court of Common Pleas of Delaware County 

Criminal Division at No(s): CP-23-CR-0004562-2015

BEFORE: GANTMAN, P.J., PANELLA, and STRASSBURGER,

*

JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 11, 2017

Justin Buchanan (Appellant) appeals from the judgment of sentence 

imposed following his conviction for carrying a firearm without a license. We 

affirm.

The trial court aptly summarized the relevant factual and procedural 

history of this matter as follows.

At the preliminary hearing held on July 30, 2015, and at 

the non-jury trial held on April 19, 2016, Officer Jennifer Cocco, 

Officer Thomas J. Schreiber, and Officer Jon Jagodinski of the 

Radnor Township Police Department, testified on behalf of the 

Commonwealth. Officer John Valvardi of the Haverford Police K[-

]9 unit also testified on behalf of the Commonwealth during the 

non[-]jury trial.

On September 12, 2014 at approximately 11:30 p.m., 

while conducting a DUI checkpoint, Officer Cocco made contact 

with the driver of an SUV[.] [In addition to the driver and 

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* Retired Senior Judge assigned to the Superior Court.
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Appellant, there was a female front seat passenger, a female 

backseat passenger, and two children in the vehicle. Appellant] 

was a passenger seated in the rear driver’s side of the SUV, 

directly next to a child car seat. 

When speaking with the driver of the vehicle, Officer Cocco 

smelled a strong odor of raw marijuana and requested consent 

to search the vehicle. The driver provided consent and all 

occupants were asked to exit the vehicle. During the search of 

the area behind the driver’s seat, Officer Cocco asked the driver 

whether the rear passenger seat on the driver’s side lifts up, as 

it would be easier to see underneath the seat by lifting it than it 

would be to crouch down to try to look underneath. The driver 

confirmed that the seat does lift up, and assisted the officer in 

lifting the seat. As soon as the driver lifted the seat, a firearm 

was visible underneath, although was not necessary to lift the 

seat up to access the firearm.

Officer Cocco testified that from the onset of this 

encounter, the driver of the vehicle appeared calm and 

cooperative, and upon lifting the seat and seeing the firearm, the 

driver appeared surprised. The firearm was a loaded .22 caliber 

pistol, discovered under the seat where [Appellant] was seated, 

and was within his reach. The driver gave a written statement to 

police indicating that he did not own the gun that was found in 

his car.

Following the observation of the firearm, all occupants of 

the vehicle were searched for officer safety. Currency in the 

amount of $787 was found on [Appellant’s] person. The odor of 

raw marijuana remained, but [the marijuana itself] was not 

readily visible, and a K-9 unit was requested. The K-9 unit “hit” 

in a location in the very rear of the SUV, in the vicinity of a 

wheel well tire jack storage area. Upon opening the storage 

compartment, officers discovered several plastic bags containing 

vegetable matter, later determined to be a total of 114.47 grams 

of marijuana. All other items in the back of the SUV, with the 

exception of a large TV, were baby-related.

Mrs. Hernandez, the passenger seated in the front right 

passenger seat during this encounter, testified that she and the 

driver, Felix Santiago, left York, PA to go to Philadelphia to pick 

up her daughter and grandchildren. At that time, there were no 

other passengers in the car, there was nothing in the rear of the 
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vehicle, and the car seats were not in the back seat. Upon their 

arrival, and at the last moment, they were informed that 

[Appellant] wanted to go with them. The driver helped 

[Appellant] put a big TV in the very back of the SUV, and 

[Appellant] and Mrs. Hernandez’s daughter loaded [the] 

remaining items.

[Appellant] wanted to stop at his mother’s house in West 

Philadelphia, so they drove to [Appellant’s] mother’s 

neighborhood and waited for [Appellant], who returned a few 

hours later. During these few hours, the driver remained in the 

vehicle, and the passengers only left the vehicle briefly to go to 

the store around the corner, then returned. [Appellant] returned 

to the rear driver’s side seat and they left the neighborhood 

around 9:00 p.m.

[Appellant] occupied the rear driver’s side passenger seat 

with a child car seat directly next to him. The firearm was 

located directly under the seat [Appellant] was seated, and 

easily within reach. No other occupants in the vehicle would have 

been within reach of the firearm.

Trial Court Opinion, 1/6/2017, at 1-2 (footnotes and unnecessary 

capitalization omitted).

Appellant was arrested and charged with, inter alia, possession of a 

firearm without a license and, following a non-jury trial, he was convicted of 

this offense. On April 19, 2016, Appellant was sentenced to an aggregate 

term of 20 to 40 months’ incarceration. This timely-filed appeal followed. 

Both Appellant and the trial court complied with the mandates of Pa.R.A.P. 

1925.

On appeal, Appellant argues that the evidence was insufficient to 

prove that he had the mens rea necessary for constructive possession of the 

firearm recovered from the vehicle. Appellant’s Brief at 4.
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We begin by reviewing the relevant legal principles.

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 [Commonwealth as 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 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.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015) 

(citation omitted). 

To sustain a conviction for the crime of possession of a firearm without 

a license, the Commonwealth must prove that Appellant carried a firearm “in 

any vehicle ... without a valid and lawfully issued license.” 18 Pa.C.S § 6106 

(a)(1). Appellant does not dispute that he lacks a valid firearms license; 

rather, he confines his argument to whether the Commonwealth carried its 

burden of proof with respect to possession. 

Because the firearm was not found on Appellant’s person, the 

Commonwealth was required to prove constructive possession.

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. We 

subsequently defined conscious dominion as the power to control 

the contraband and the intent to exercise that control. To aid 
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application, we have held that constructive possession may be 

established by the totality of the circumstances.

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012) (quotation 

marks and citation omitted). “The Commonwealth may 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). 

Appellant contends that the Commonwealth improperly based its case 

“on the fact that Appellant was the closest person in proximity to the 

firearm” and relied on the “self-serving statements of a co-defendant” to 

imply that since the driver ... stated he did not own the firearm” it must have 

been Appellant’s. Appellant’s Brief at 11-12. Additionally, Appellant argues 

that the Commonwealth offered no testimony to prove that Appellant had 

knowledge of the firearm or intended to exercise dominion and control over 

it. Id.

The trial court determined that the evidence was sufficient to support 

Appellant’s conviction. Trial Court Opinion, 1/6/2016, at 3. Our review of the 

record shows that it was reasonable for the trial court, sitting as factfinder, 

to conclude from the evidence presented, giving credit to the officers’ 

testimony and that of the vehicle’s other occupants, that Appellant 
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constructively possessed the firearm.1 The evidence demonstrated that 

Appellant was a last minute addition to the trip. Prior to their departure, 

Appellant loaded a number of personal items into the vehicle. When the 

SUV was pulled over, Appellant was seated in the backseat, behind the 

driver and next to a car seat. By virtue of his location, Appellant was the 

only person with access to the firearm. The driver, who was, by all 

accounts, calm and collected during the search of his vehicle, expressed 

surprise at the discovery of the firearm and explained to officers that it was 

not his. 

“Constructive possession is an inference arising from a set of facts that 

possession of the contraband was more likely than not.” Commonwealth 

v. Jackson, 659 A.2d 549, 551 (Pa. 1995) (quoting Commonwealth v. 

Mudrick, 507 A.2d 1212, 1213 (Pa. 1986)). It is well established that “the 

evidence at trial need not preclude every possibility of innocence, and the 

fact-finder is free to resolve any doubts regarding a defendant’s guilt 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.” 

Commonwealth v. Hughes, 908 A.2d 924, 928 (Pa. Super. 2006). Here, 

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1 See, e.g., Commonwealth v. Love, 896 A.2d 1276, 1283 (Pa. Super. 

2006) (“We may not weigh the evidence or substitute our judgment for that 

of the fact-finder. ... When evaluating the credibility and weight of the 

evidence, the fact-finder is free to believe all, part, or none of the 

evidence.”)
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the evidence was sufficient to permit the trial court to conclude that 

Appellant constructively possessed the gun. Accordingly, Appellant’s claim 

fails. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/11/2017