J-A11016-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DARRIUS DANIELS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 915 WDA 2022

Appeal from the Judgment of Sentence Entered May 26, 2022

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0007854-2021

BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED: July 25, 2023

Darrius Daniels, Appellant, appeals from the judgment of sentence of 

111⁄2 to 23 months of incarceration, imposed following his non-jury trial. He 

raises various challenges to the sufficiency of the evidence to convict him of 

unlawfully possessing a firearm in violation of 18 Pa.C.S. § 6106(a). We 

affirm.

On September 24, 2021, City of McKeesport Officers Sean Sluganski and 

Nicholas Probola investigated a report from a female that a male identified as 

“Country” hit her in the head with a firearm. Officer Sluganski knew Appellant 

as “Country” and visited Pazzo’s Bar, which he knew Appellant to frequent. 

Officer Sluganski entered the bar’s outdoor courtyard area upon arrival, where 

he observed Appellant “sitting at the first picnic bench” with his “back towards 

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* Retired Senior Judge assigned to the Superior Court.
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the picnic table[.]” N.T., 5/26/22, at 12, 13. An unidentified female was 

sitting at the same table, and the two “were having some kind of 

conversation.” Id. at 14. A black backpack “was in between his feet.” Id. 

The female was “[t]hree or four feet” from Appellant. Id. 

Officer Sluganski and Officer Gull1 approached Appellant and ordered 

him to keep his hands visible. Appellant’s dog “began to approach ... in an 

aggressive manner” and Appellant was ordered to restrain the dog. Id. at 15. 

The officers drew their firearms and Appellant “stood up and stepped 

backwards ... away from the backpack and placed his dog between us.” Id.

at 16. Officer Sluganski perceived that, due to the layout of the courtyard 

area, Appellant “was going to try to start running towards the other side of 

the courtyard and hope [sic] over the fence,” with the dog serving as an 

obstacle. Id. at 25. Appellant eventually leashed the dog after about fifteen 

seconds.

Meanwhile, Officer Probola and another officer initially went inside the 

bar to look for Appellant, and proceeded to the courtyard area after Officer 

Sluganski radioed that he had located Appellant. When he arrived, the officers 

were already giving Appellant orders to restrain his dog, “which [Appellant] 

was ignoring.” Id. at 29. Officer Probola observed Appellant “standing within 

six inches of a dark colored bookbag, which was at his feet....” Id. Appellant 

continued to back away from the officers and Officer Probola was able to see 

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1 The testimony did not include Officer Gull’s first name.
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that the bag “was completely unzipped” due to it being overstuffed. Id. at 

30. The officer pointed his flashlight at the bag and observed “a black handle 

of a firearm.” Id. at 31. Appellant was arrested and the firearm was 

recovered from the backpack. Like Officer Sluganski, Officer Probola testified 

that he was familiar with Appellant, stating that he has “dealt with [Appellant] 

on approximately three prior occasions, including approximately two or three 

days prior, in which he was at ... Pazzo’s.” Id. at 28. 

Based on this testimony, Appellant was convicted at a bench trial of one 

count of carrying a firearm without a license. Appellant waived his right to a 

pre-sentence report and was sentenced on May 26, 2022. On June 7, 2022, 

Appellant filed a petition requesting permission to file a post-sentence motion 

nunc pro tunc, explaining that his counsel had intended to file the motion but 

could not, due to an injury. Appellant also filed a copy of the post-sentence 

motion he wished to file. The trial court expressly granted permission to file 

the motion on June 13, 2022, accepting the June 7 filing as timely. See 

Commonwealth v. Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (en 

banc) (“If the trial court chooses to permit a defendant to file a post-sentence 

motion nunc pro tunc, the court must do so expressly.”).

The trial court denied the post-sentence motion on July 11, 2022, and 

Appellant timely filed a notice of appeal from that order. Appellant complied 

with the order to file a Pa.R.A.P. 1925(b) statement, and the trial court 

authored an opinion. We now review Appellant’s two issues presented on 

appeal:
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I. Whether the evidence [was] insufficient to convict [Appellant] 

of Firearms Not to be Carried Without a License, where the 

Commonwealth failed to prove, beyond a reasonable doubt, that 

he constructively possessed the firearm? 

II. Whether the evidence [was] insufficient to convict [Appellant] 

of Firearms Not to be Carried Without a License, where the 

Commonwealth failed to prove, beyond a reasonable doubt, that 

he was not at his fixed place of business at the time of the 

incident? 

Appellant’s Brief at 5.

Both claims concern the sufficiency of the evidence to convict. Our 

standard of review is well-settled. “When reviewing a challenge to the 

sufficiency of the evidence, we ‘view the evidence in the light most favorable 

to the Commonwealth as the verdict winner in order to determine whether the 

[fact-finder] could have found every element of the crime beyond a reasonable 

doubt.’” Commonwealth v. Santiago, 294 A.3d 482, 484 (Pa. Super. 2023)

(quoting Commonwealth v. Thomas, 215 A.3d 36, 40 (Pa. 2019)). The trial 

court as fact-finder was “free to believe, all, part, or none of the evidence 

presented when making credibility determinations.” Commonwealth v.

McClellan, 178 A.3d 874, 878 (Pa. Super. 2018). 

Appellant’s first issue challenges the element of possession. “Possession 

can be found by proving actual possession, constructive possession or joint 

constructive possession.” Commonwealth v. Heidler, 741 A.2d 213, 215 

(Pa. Super. 1999) (en banc). As Appellant was not observed handling the 

backpack or a firearm, and the Commonwealth does not allege that the 

unknown female jointly possessed the firearm, the Commonwealth’s theory of 

possession rested on constructive possession, which “is a legal fiction, a 
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pragmatic construct to deal with the realities of criminal law enforcement.” 

Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (quoting 

Commonwealth v. Thompson, 779 A.2d 1195, 1199 (Pa. Super. 2001)). 

Constructive possession requires that the Commonwealth establish “conscious 

dominion” over the item, which consists of “the power to control the 

contraband and the intent to exercise that control.” Commonwealth v. 

Macolino, 469 A.2d 132, 134 (Pa. 1983). As with any sufficiency challenge, 

the Commonwealth may meet its burden through circumstantial evidence. Id. 

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

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

Mudrick, 507 A.2d 1212, 1213 (Pa. 1986). 

Appellant cites Commonwealth v. Parrish, 191 A.3d 31 (Pa. Super. 

2018), in support of his argument. There, the police pulled over a vehicle in 

which Parrish was sitting in the back seat. In the front seat, police found 

drugs, guns, and paraphernalia. Parrish was charged with possessory offenses 

for those items, and we discharged due to inadequate proof of constructive 

possession. The evidence established only that Parrish “was merely present 

on the driver’s side of the back seat” of the vehicle, which is not sufficient 

under the law to establish constructive possession. Id. at 38. Appellant 

maintains that the same logic applies here. In his view, all that the 

Commonwealth established was that he was in mere proximity to the 

backpack, as the officers all testified that Appellant was not seen physically 

touching the bag and nothing in the backpack itself was linked to Appellant. 
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It is true that, where the evidence indicates only “mere presence,” the 

Commonwealth tends to face an uphill battle. The most common scenario is 

a case like Parrish, where items are found in a vehicle with multiple 

occupants. See also Commonwealth v. Spencer, 621 A.2d 153, 155 (Pa. 

Super. 1993) (finding the Commonwealth failed to establish constructive 

possession by the passenger, who was charged with possession of cocaine 

protruding from the armrest of driver’s side door); Commonwealth v. 

Juliano, 490 A.2d 891, 894 (Pa. Super. 1985) (discharging the conviction 

where the evidence established only that the appellant “knew of the existence 

and location of the green satchel which had been sitting at his feet,” which 

does not by itself establish “knowledge of the contents”) (emphasis omitted); 

Commonwealth v. Boatwright, 453 A.2d 1058, 1058-59 (Pa. Super. 1982) 

(finding that evidence was insufficient where a firearm was discovered in left 

rear seat and the appellant, seated in the passenger seat, moved “towards his 

left rear”; this evidence established only “mere presence”).

However, this is not a case where the evidence established only that 

Appellant was merely present and in proximity to the backpack and its 

contents. The trial court made a specific finding of fact concerning the 

backpack’s location when rendering its verdict. The trial court found Appellant 

guilty “based on the fact that the bag was between his feet. It was not just 

next to him.” N.T. at 62. Appellant’s argument downplays this finding. He 

maintains that “the backpack was located on the ground between the seats of 

a picnic table where both [Appellant] and a woman were seated.” Appellant’s 
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Brief at 17. To the extent this assertion posits that the backpack was under 

the table, roughly equidistant from Appellant and the other person, the trial 

court found otherwise, and its finding is supported by the record.

The facts here are analogous to Commonwealth v. Stembridge, 579 

A.2d 901 (Pa. Super. 1990), where Stembridge was one of three passengers 

in a vehicle parked in front of a convenience store. Police officers approached 

the driver, as one had observed the vehicle driving with inoperative rear lights. 

The officers asked the driver and Stembridge, seated in the right front 

passenger seat, to step outside. Stembridge began fidgeting and putting his 

hands in his pockets; thus, he was patted down and drugs were recovered. 

“At some point in the sequence of events, [the remaining occupant — who 

had been seated in the front of the car between the driver’s seat and the 

passenger’s seat —] was ordered to get out of the vehicle on the driver’s 

side.” Id. at 902. Shortly thereafter, one of the officers noticed something 

underneath the passenger side, which turned out to be drugs and 

paraphernalia. Stembridge was charged with possessing those items, and he 

argued that the Commonwealth could not establish constructive possession as 

he was merely present in the vehicle, and one of the other occupants may 

have thrown or kicked the items under the vehicle after he was ordered out 

of the vehicle. We disagreed, reasoning:

[Stembridge]’s access to and control over the area in which the 

contraband was found was greater than that of the driver and the 

other passenger, inasmuch as [he] was the only one of the three 

to exit the vehicle on the passenger side. In addition, only 

[Stembridge] was observed walking back and forth near the car 
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and “fidgeting around.” Furthermore, any uncertainty as to 

whether the female passenger moved from between the front 

seats into the right passenger seat, while it could have formed the 

foundation of a reasonable doubt on the part of the factfinder, 

does not as a matter of law create a reasonable doubt which 

requires us to overturn the factfinder’s verdict. 

Id. at 905 (footnote omitted).

Similarly, Appellant’s access to the backpack and control over it was far 

greater than that of the unidentified female. Appellant’s behavior was also 

much more than “fidgeting,” as he ignored officer commands to restrain his 

barking dog and deliberately placed his dog between himself and the officers. 

Officer Sluganski speculated that Appellant may have been attempting to flee 

or otherwise impede law enforcement, which is a factor a court may consider. 

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

(concluding that the Commonwealth established constructive possession 

based, in part, on the fact that the defendant gave a police officer “five or six 

different names and multiple birthdates, thus exhibiting a consciousness of 

guilt”). The unknown female, in contrast, immediately complied. N.T. at 22 

(Officer Sluganski testifying: “After I instructed her to step back[,] ... she was 

pretty quick to step away....”). Thus, the finding of constructive possession 

does not rest on Appellant’s mere presence and proximity to the backpack.

There is sufficient circumstantial evidence to conclude that “possession ... was 

more likely than not.” Mudrick, 507 A.2d at 1213. 

Appellant’s second issue asserts that the Commonwealth failed to prove 

beyond a reasonable doubt that he was not in his place of business. In 

Commonwealth v. Lopez, 565 A.2d 437, 440 (Pa. 1989), our Supreme Court 
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held that the clause, “except in his place of abode or fixed place of business[,]” 

as codified in 18 Pa.C.S. § 6106(a), is an element of the crime and, thus, it

must be proven by the Commonwealth beyond a reasonable doubt. In 

Commonwealth v. Carr, 483 A.2d 542 (Pa. Super. 1984), our Court 

examined what the General Assembly meant by the phrase “fixed place of 

business[.]” We held that it refers to one who has “ownership or control” over 

the place of business, and thus its language does not extend to employees 

who lack a “controlling, proprietary, or possessory interest” in the business. 

Id. at 543. 

Appellant claims that “the only reasonable inference to draw from the 

testimony was that Pazzo’s Bar was [Appellant]’s fixed place of business.” 

Appellant’s Brief at 20. Appellant portrays the testimony that he was known 

to frequent Pazzo’s Bar as a point in his favor, because “proprietors must 

regularly visit their businesses, oftentimes on a daily basis, to ensure that 

everything is in order and to avoid collapse and ruination.” Id. 

The fact-finder could have accepted this chain of inferences, but our 

standard of review requires this Court to view the evidence in the light most 

favorable to the Commonwealth as verdict winner. We conclude that the 

Commonwealth was entitled to an inference that Pazzo’s Bar was not 

Appellant’s “fixed place of business.” “When reviewing sufficiency[,] ... this 

Court determines whether the evidence, viewed in the light most favorable to 

the Commonwealth as verdict winner, is sufficient to enable a reasonable jury 

to find every element of the crime beyond a reasonable doubt.” 
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Commonwealth v. Reed, 990 A.2d 1158, 1161 (Pa. 2010). We agree that 

the evidence on this element, while limited, is sufficient under the law. See 

Coleman v. Johnson, 566 U.S. 650, 655 (2012) (“Jackson [v. Virginia, 

443 U.S. 307 (1979),] leaves juries broad discretion in deciding what 

inferences to draw from the evidence presented at trial, requiring only that 

jurors ‘draw reasonable inferences from basic facts to ultimate facts.’”)

(citation omitted). We follow that approach. See Commonwealth v. Holt,

273 A.3d 514, 528 (Pa. 2022) (“Our standard of review follows ... 

Jackson[.]”). We agree with the trial judge that the basic facts offered by 

the Commonwealth support the ultimate factual finding that Appellant did not 

own or have a controlling ownership interest in the bar. The court cited the 

testimony from the officers that “two or three days before the instant incident, 

officers had interacted with [Appellant] and [Appellant] informed them that 

he patronized Pazzo’s Bar on a daily basis.” Trial Court Opinion, 12/2/22, at 

5. Additionally, “[Appellant] had a dog with him at the bar at the time of his 

arrest.” Id. at 5-6. 

We agree with the Commonwealth that Officer Sluganski’s testimony 

that he knew Appellant to “frequent” Pazzo’s “connotes that [A]ppellant often 

patronizes the bar as a customer.” Commonwealth’s Brief at 27. The fact 

that Appellant described himself as a customer and not an owner warrants the

rational inference that he was a mere patron of the bar. Additionally, 

Appellant was seated outside with his dog during normal operating hours, 

further indicating that he was a visitor. Combined, these pieces of evidence 
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all support the trial court’s rational inference that Appellant was a mere 

customer. We therefore agree that the Commonwealth presented sufficient 

evidence to establish that Pazzo’s Bar was not Appellant’s fixed place of 

business. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/25/2023