J-S42006-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, 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 of 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.
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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. 1925(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 Roosevelt 

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 center 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-holder. 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 loaded 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). 
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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 convicting 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 at 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. Appellant’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 the 

firearm. Id. Appellant contends that the Commonwealth presented “no 
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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 marijuana “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 

light 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, the 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 evidence 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 

Commonwealth.

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 vehicle 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 “carrying 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 of 
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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 distribution 

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 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. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013). 

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 evidence 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.
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First, Appellant had 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, because 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 joint 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 believed 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.
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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/27/2015