J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENN SYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

WILLIAM COLON,

Appellant No. 1642 EDA 2014

Appeal from the Judgment of Sentence May 30 , 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0007696

- 2012

BEFORE: SHOGAN, MUNDY, and FITZGERALD, * JJ.

MEMORANDUM BY SHOGAN, J.: FILED AUGUST 27, 2015

Appellant, William Colon, appeals from the judgment of sentence

entered on May 30, 2014, in the Court of Common Pleas of Philadelphia

County. We affirm.

The trial court summarized the procedural history o f this case as

follows:

On April 1, 2014, following a waiver trial, [Appellant] was found guilty of Possession of a Firearm Prohibited, 18 Pa.C.S. §6105, Firearms not to be Carried Without a License, 18 Pa.C.S. §6106, Carrying a Firearm in Public, 18 Pa. C.S. §6108, and Possession Of Marijuana, 35 [P.S.] §780

- 113(A)(31). Sentencing was deferred until May 30, 2014, on which date [the trial court] sentenced Appellant to a term of two (2) to four (4) years of incarceration at a State Correctional Institution . On June 4, 2014, Appellant timely filed this appeal.

____________________________________________

* Former Justice specially assigned to the Superior Court.J

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Trial Court Order, 1/6/15, at 1 (footnote omitted). Appellant complied with

the trial court’s order to file a Pa.R.A.P. 1925(b) statement. The trial court

issued an opinion pursuant to Pa.R.A.P. 1 925(a).

The trial court summarized the testimony presented at trial as follows:

On June 16, 2009, around 10:28 p.m., Philadelphia Police Officer Thomas Schaffer, and his partner, Philadelphia Police Officer Brian Boyd, were on duty in the area of East R oosevelt Boulevard, Philadelphia, PA. While driving southbound on Roosevelt Boulevard, Officers Schaffer and Boyd observed a white Chevy Suburban, with a PA tag of FVZ8933, “driving at a high speed and swerving in and out of traffic without turn signals.” The Police Officers proceeded to pull the vehicle over near the 6500 block of the Boulevard and called for a marked back

- up unit. 2 There were three (3) persons present in the vehicle, Appellant in the driver’s seat, and two (2) other passengers, one in the front passenger seat, and the other in the backseat.

2 At the time of this incident both Officers Schaffer and Boyd were dressed in plain clothes and driving an unmarked vehicle.

As Officer Schaffer approached the car, Appellant rolled down the window, and Officer Schaffer noticed a strong odor of marijuana coming from inside the vehicle. Officer Schaffer then observed a clear baggie with a green

- leafy substance in the vehicle’s c enter console cup

- holder. At this moment, Officer Schaffer notified Officer Boyd to come join him by the vehicle. The officers asked Appellant to exit the vehicle, at which time Officer Schaffer entered the vehicle to retrieve the baggie from the cup

- hol der. As Officer Schaffer pulled the baggie out, the cup holder came out of the console, revealing a silver .44 caliber Ruger handgun with a black handle. Officer Schaffer recovered the handgun immediately, rendered it safe, and determined that it was loa ded with six live rounds. Appellant was arrested and the officers filled out the requisite paperwork.
Trial Court Opinion, 1/6/15, at 2 (internal citations omitted).J

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Appellant presents the following issues for our review:

1. Did the court commit error by convicting Appellant of possessing a firearm where the evidence at trial was insufficient to establish that Appellant possessed a firearm?

2. Did the court commit error by convicting Appellant of firearms not to be carried where the evidence at trial was insufficient to establish that Appellant possessed a firearm?

3. Did the court commit error by convicting Appellant of carrying a firearm in public where the evidence at trial was insufficient to support said conviction?

4. Did the court commit error by convic ting Appellant of possession of marijuana w[h]ere the evidence at trial was insufficient to establish that Appellant possessed marijuana?

Appellant’s Brief at 6 (full capitalization omitted).

Appellant’s four issues consist of claims that the evidence a t trial was

insufficient to establish that Appellant possessed the firearm and the

marijuana. Appellant contends that because the evidence fails to establish

that Appellant possessed the firearm or the marijuana, his convictions

should be reversed. Appel lant’s Brief at 11

- 14. In support of his position,

Appellant argues that he was one of three individuals in the vehicle, and that

all individuals in the vehicle had access to the center console where the gun

and marijuana were discovered. Id. at 11. Appellant asserts that he did not

own the vehicle, and further maintains that the Commonwealth presented no

evidence indicating that Appellant exercised control over the firearm, made

physical contact with the firearm, or was aware of the existence of th e

firearm. Id. Appellant contends that the Commonwealth presented “noJ

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other evidence at trial linking Appellant to the firearm.” Id. With regard to

the marijuana, Appellant argues that the Commonwealth presented no

evidence that Appellant possessed mar ijuana “beyond Appellant’s mere

presence in a vehicle which contained . . . marijuana.” Id. at 14. Appellant

asserts that the trial court erred by convicting Appellant of possession of

marijuana “where the evidence presented at trial shows that Appellant never
physically or constructively possessed marijuana.” Id.

Our standard of review for a sufficiency claim is well settled:

We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a lig ht most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, th e sufficiency of the evidence claim must fail.

The evidence established at trial need not preclude every possibility of innocence and the fact

- finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re

- weigh the evidence and substitute our judgment for that of the fact

- finder. The Commonwealth’s burden may be met by wholly circumstantial evidence and any doubt about the defendant’s guilt is to be resolved by the fact finder unless the eviden ce is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.

Commonwealth v. Mobley , 14 A.3d 887, 889

- 890 (Pa. Super. 2011).

18 Pa.C.S. § 6105 provides, in relevant part, as follows:

§ 6105. Persons not to possess, use, manufacture, control, sell or transfer firearms

(a) Offense defined.

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- (1) A person who has been convicted of an offense enumerated in subsection (b) [enumerated offenses], within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) [other persons] 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 Common wealth.

18 Pa.C.S. § 6105(a)(1).

The offense of firearms not to be carried without a license is defined at

18 Pa.C.S. § 6106(a)(1), and provides as follows:

Except as provided in paragraph (2) [Exceptions], any person who carries a firearm in any veh icle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.

The offense of “carryi ng firearms on public streets or public property in

Philadelphia” states the following: “No person shall carry a firearm, rifle or

shotgun at any time upon the public streets or upon any public property in a

city of the first class” unless such person is licensed to carry a firearm or is

exempt from licensing requirements. 18 Pa.C.S. § 6108.

Furthermore, 35 P.S. § 780

- 113, provides, in pertinent part, as

follows:

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:

* * *

(31) Notwithstanding other subsections of this section, (i) the possession of a small amount ofJ

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- marihuana only for personal use; (ii) the possession of a small amount of marihuana with the intent to distribute it but not to sell it; or (iii) the di stribution of a small amount of marihuana but not for sale.

35 P.S. § 780

- 113(a)(31).

As noted, Appellant contests only the element of possession for each

crime. In this case, because the firearm and marijuana were not found on

Appellant’s person, the Commonwealth had the burden to show that

Appellant constructively possessed the contraband. Commonwealth v.

Jones , 874 A.2d 108, 121 (Pa. Super. 2005).

Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of crimina l 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 a s 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. Hopkins , 67 A.3d 817, 820 (Pa. Super. 201 3).

Additionally, we have held that “two actors may have joint control and equal

access and thus both may constructively possess the contraband.” Jones ,
874 A.2d at 121.

The trial court provided the following analysis regarding the sufficiency

of eviden ce supporting the conclusion that Appellant constructively

possessed the firearm and marijuana:

In the instant matter, there was sufficient evidence to show that Appellant constructively possessed both the handgun and the marijuana.J

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- First, Appellant ha d the ability to exercise conscious control or dominion over both the handgun and the marijuana as both were found in the center console of the vehicle[ ] Appellant was driving. This area was clearly within reaching distance of Appellant. Moreover, becau se Appellant was driving, this indicates that he was the one in control of the vehicle at the time. The fact that Appellant was in the car with more than one person “does not eliminate defendant’s constructive possession

. . .” as “two actors may have joi nt control and equal access. . .” . . . . While [the trial court] notes that there were two (2) other individuals in the car that could have exercised control, this does not affect Appellant’s possession because Appellant also had the ability to exercise control.

Second, Appellant had the intent to exercise that control, evidenced by the close proximity of both the handgun and marijuana to Appellant. Moreover, besides the fact that [the] gun and the marijuana were within reaching distance of Appellant, the close proximity of the marijuana and gun to each other also speaks to Appellant’s intent to exercise his control over the weapon and the drugs.

Trial Court Opinion, 1/6/15, at 4

- 5.

We agree. Given the totality of circumstances, the trial court’s

conclusion that Appellant constructively possessed the contraband was

supported by evidence of record. As our Supreme Court has stated:

[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction . . . does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” . . . Instead, it must determine simply whether the evidence be lieved by the fact

- finder was sufficient to support the verdict.

Commonwealth v. Ratsamy , 934 A.2d 1233, 1235

- 1236 (Pa. 2007)

(internal citations and some quotation marks omitted). Moreover, because

the Commonwealth’s evidence was sufficient to support Appellant’s

convictions, we affirm Appellant’s judgment of sentence.J

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/27/2015