J-S68026-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARKQUIS LATEE PETERSON

Appellant No. 101 WDA 2016

Appeal from the Judgment of Sentence dated December 2, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0011663-2015

BEFORE: SHOGAN, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 22, 2016

Appellant, Markquis Latee Peterson, appeals from the judgment of 

sentence imposed after the trial court convicted him of unlawful possession 

of a firearm.1 We affirm.

On May 19, 2015, Corporal Jeffrey Luptak of the Homestead Police 

Department was on patrol in the 100 block of 16th Avenue in Homestead 

Borough, Allegheny County, when he noticed Appellant walking down the 

street. N.T., 9/28/15, at 50-52, 62. Corporal Luptak knew that an arrest 

warrant had been issued for Appellant due to a probation violation on an 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 6105.
J-S68026-16

- 2 -

unrelated case. Id. at 52. 2 Corporal Luptak drove by Appellant and radioed 

other units that he had observed Appellant. Id. Corporal Luptak then 

exited his police vehicle and “called for” Appellant, who immediately ran 

across the street and into the front yard of an abandoned and boarded-up 

residence. Id. at 53, 57, 74. Corporal Luptak chased Appellant, who ran 

along the right side of the yard and behind a bush. Id. at 57, 72. A chain 

link fence separated the residence from the neighboring property. Id. As 

Appellant disappeared behind the bush, Corporal Luptak heard a sound that 

he described as similar to an “aluminum bat against the fence, that metallic 

type sound on the fence.” Id. at 58. Appellant then emerged from behind 

the bush and went to the front porch of the residence. Id. At that time, 

Appellant was taken into custody without further incident. Id.

Shortly after Appellant’s arrest, Corporal Luptak went to the area 

where he had heard the “metallic type sound” and recovered a firearm from 

behind the bush near the metal fence where Appellant had attempted to 

hide. N.T., 9/28/15, at 58-60, 65, 74. The firearm had no rust and was 

dry, fully operational, loaded, and leaning against the chain link fence. Id.

at 45, 60, 74; Commonwealth’s Exhibit 1. According to Corporal Luptak, 

____________________________________________

2 There is no dispute that based on this warrant, Appellant was a fugitive at 

the time of his arrest. See N.T., 9/28/15, at 52; Appellant’s Brief at 7. 

Appellant does not contest the authenticity of this warrant or his fugitive 

status. See Appellant’s Brief at 4, 7. 
J-S68026-16

- 3 -

there “[d]idn’t seem to be any attempt to conceal [the firearm] in any way.” 

Id. at 74.

Appellant was charged with unlawful possession of a firearm, and 

following a bench trial, was sentenced to 111⁄2 to 23 months’ incarceration. 

Appellant filed this appeal, in which he presents the following issue for our 

review:

DID THE COMMONWEALTH PRESENT INSUFFICIENT EVIDENCE 

TO PROVE THAT [APPELLANT] HAD ACTUAL, OR CONSTRUCTIVE 

POSSESSION OF THE FIREARM FOUND ON THE GROUND ON 

ABANDONED PROPERTY?

Appellant’s Brief at 4.

The standard this Court applies in reviewing the sufficiency of the 

evidence is whether, viewing all of the evidence admitted at trial in a 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 implementing this test, this Court may not weigh the evidence 

and substitute its judgment for that of the fact-finder. Commonwealth v. 

Rahman, 75 A.3d 497, 501 (Pa. Super. 2013). “[W]e note that the facts 

and circumstances established by the Commonwealth need not preclude 

every possibility of innocence.” Commonwealth v. DiStefano, 782 A.2d 

574, 582 (Pa. Super. 2001). 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 
J-S68026-16

- 4 -

from the combined circumstances. Commonwealth v. Lehman, 820 A.2d 

766, 772 (Pa. Super. 2003). “The Commonwealth may sustain its burden of 

proof or 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.” Id. “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.” Commonwealth v. Schoff, 911 

A.2d 147, 159 (Pa. Super. 2006).

Appellant was convicted pursuant to 18 Pa.C.S. § 6105:

(a) Offense defined.--

(1) A person who has been convicted of an offense 

enumerated in subsection (b), within or without this 

Commonwealth, regardless of the length of sentence 

or whose conduct meets the criteria in subsection (c) 

shall not possess, use, control, sell, transfer or 

manufacture or obtain a license to possess, use, 

control, sell, transfer or manufacture a firearm in this 

Commonwealth.

Appellant qualified as a person not permitted to possess firearms because 

his conduct met the following criteria in subsection (c) of Section 6105:

(1) A person who is a fugitive from justice. This paragraph does 

not apply to an individual whose fugitive status is based upon a 

nonmoving or moving summary offense under Title 75 (relating 

to vehicles).

When, as here, contraband (in this case the firearm) is not found on 

the defendant’s person, the Commonwealth must establish “constructive 
J-S68026-16

- 5 -

possession” — that is, the power to control the contraband and the intent to 

exercise that control. Commonwealth v. Johnson, 26 A.3d 1078, 1093 

(Pa. 2011). Constructive possession may be proven by circumstantial 

evidence. See Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa. 

1983) (circumstantial evidence may be used to establish a defendant’s 

possession of drugs or contraband). The purpose of the constructive 

possession doctrine is to expand the scope of possession statutes to 

encompass those cases where actual possession at the time of arrest cannot 

be shown, but the inference that there has been actual possession 

nevertheless is strong. Commonwealth v. Carroll, 507 A.2d 819, 821 (Pa. 

1986). Constructive possession “may be inferred from the totality of the 

circumstances.” Commonwealth v. Hanson, 82 A.3d 1023, 1029 (Pa. 

2013).

Instantly, the Commonwealth’s theory of constructive possession was 

supported by the uncontradicted testimony of the only witness, Corporal 

Luptak, who the trial court, as fact-finder, found credible. Trial Court 

Opinion, 4/19/16, at 5. Specifically, Corporal Luptak’s credible testimony 

established that he observed Appellant walking down the street in 

Homestead Borough and approached Appellant to address an existing 

warrant. N.T., 9/28/15, at 50-52, 62. As soon as Corporal Luptak called to 

him, Appellant fled to an area enclosed by a chain link fence. Id. at 53, 57, 

72, 74. As Appellant attempted to hide behind a bush, Corporal Luptak 
J-S68026-16

- 6 -

heard a sound similar to metal scraping against metal in the area of the 

bush. Id. at 58. Shortly thereafter, in the immediate area, Appellant was 

taken into custody. Id. Then Corporal Luptak found the firearm at issue in 

the area behind the bush near the metal fence where the corporal had heard 

the scraping sound. Id. at 58-60, 65, 74.

Relying upon Commonwealth v. Ford, 715 A.2d 1141, 1144 (Pa. 

Super. 1998) (the fact-finder can consider flight indicative of a defendant’s 

consciousness of guilt), the trial court “believe[d] that [Appellant’s] flight 

from the scene was probative of the fact that [he] wanted to discard the 

loaded firearm.” Trial Court Opinion, 4/19/16, at 6. The trial court also 

found that Appellant’s submission to an arrest was consistent with the fact 

that he had discarded the firearm immediately prior to that submission. Id. 

The porch area where Appellant was arrested “was in close proximity to 

where the firearm was recovered.” Id. The trial court, as fact-finder, 

further explained:

The firearm was recovered from the precise area that [Appellant] 

occupied just prior to his arrest. The metallic sound was heard 

by Corporal Luptak at the time [Appellant] ran to that area. This 

Court also notes that the residence was vacant and that the 

firearm's condition was consistent with the firearm being 

recently left in the area where it was recovered.

Id. Accordingly, the trial court concluded that the Appellant possessed the 

firearm in question.

We conclude that this record contains sufficient evidence to support 

the trial court’s determination, beyond a reasonable doubt, that Appellant, a 
J-S68026-16

- 7 -

fugitive from justice, illegally possessed the firearm, and therefore violated 

18 Pa.C.S. § 6105(a). 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2016