J-A25005-17

2018 PA Super 14

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* Former Justice specially assigned to the Superior Court.

COMMONWEALTH OF 

PENNSYLVANIA

v.

ERIC MCCLELLAN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2014 EDA 2016

Appeal from the Judgment of Sentence March 1, 2016

In the Court of Common Pleas of Montgomery County Criminal Division 

at No(s): CP-46-CR-0004322-2015, 

CP-46-CR-0008053-2015

BEFORE: OTT, J., STABILE, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.: FILED JANUARY 26, 2018

Appellant, Eric McClellan, appeals from the judgment of sentence 

entered in the Court of Common Pleas of Montgomery County, which, sitting 

as finder of fact in Appellant’s bench trial, convicted him of Persons Not To 

Possess, Manufacture, Control or Transfer Firearms.1 Herein, Appellant 

challenges the order denying his suppression motion and contends evidence 

at trial failed to prove he constructively possessed a handgun recovered from 

the basement of his family home. We affirm. 

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1 18 Pa.C.S.A. § 6105(a)(1). The trial court also convicted Appellant on two 

additional charges, one for Possession of a Controlled Substance, 35 P.S. § 

780-113(a)(16) and the other for Possession of Drug Paraphernalia, 35 P.S. 

§780-113(a)(32), but the Commonwealth subsequently nol prossed the drug

offense convictions prior to sentencing.
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On April 24, 2014, Agent Scott Dominick of the Pennsylvania Board of 

Parole was participating in a LCB/Norristown Police Department sweep of local 

bars in search of noncompliant and/or absconder parolees, when he saw one 

of his state parolees, Appellant, exiting a bar at 11:30 p.m. Agent Dominick 

stopped Appellant for violating two conditions of his parole, one imposing an 

8:00 p.m. curfew and the other prohibiting his presence in a drinking 

establishment. N.T. 11/30/15 at 12-13. Appellant displayed no outward signs 

of alcohol consumption, but a frisk of his person produced $320 in cash, two 

cell phones, and a house key. N.T. at 19-20.

On suspicion that Appellant was engaging in other violations at the bar

consistent with his history of drug dealing, Agent Dominick obtained 

permission to search Appellant’s approved residence, his grandmother’s 

home, from his supervisor, who was on the scene at the time. N.T. at 20. 

Appellant had, at the outset of his parole, also signed a parole agreement form 

consenting to warrantless searches of his residence. N.T. at 14-15.

Parole agents searched Appellant’s grandmother’s home while 

Norristown Police maintained a security presence inside without otherwise 

participating in or directing the search. N.T. at 21-22. Agent Dominick was 

familiar with the home, having previously conducted numerous routine field 

visits there, and he knew Appellant lived with his grandmother, father, and 

adult sister.2 The parole officer went straight to Appellant’s bedroom and 

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2 Appellant’s father testified that he was no longer living at the home in 

question on the night of the search. See infra. 
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uncovered from underneath his mattress a clear sandwich bag containing a 

trace amount of cocaine. N.T. at 22-23. A different parole officer went down 

to the finished basement and discovered a loaded firearm. N.T. at 61-63. 

Charges were filed.

On November 30, 2015, Appellant filed motion to suppress, which, after 

a hearing, the court denied. Appellant’s bench trial ensued on the same day, 

ending with the court convicting Appellant on the above-mentioned charges. 

On March 1, 2016, the court imposed a standard range sentence of five to ten 

years’ incarceration on the charge of persons not to possess. N.T., 3/1/16, 

34-35. After the denial of post-sentence motions, this timely appeal followed.

Appellant presents the following questions for our review:

I. WAS THE EVIDENCE INSUFFICIENT TO ESTABLISH 

BEYOND A REASONABLE DOUBT THAT APPELLANT HAD 

THE POWER TO CONTROL THE FIREARM AND THE 

INTENT TO EXERCISE THAT CONTROL, WHERE THE 

FIREARM WAS RECOVERED IN THE BASEMENT OF 

APPELLANT’S GRANDMOTHER’S HOME AND WHERE DNA 

TESTING REVEALED THAT MORE THAN ONE PERSON HAD 

HANDLED THE FIREARM?

II. DID THE SUPPRESSION COURT ERRONEOUSLY DENY 

APPELLANT’S MOTION TO SUPPRESS PHYSICAL 

EVIDENCE, WHERE THE FACTS AND CIRCUMSTANCES 

KNOWN TO THE PAROLE AGENT PRIOR TO THE SEARCH 

DID NOT ESTABLISH REASONABLE SUSPICION TO 

BELIEVE THAT THERE WAS CONTRABAND OR OTHER 

EVIDENCE OF VIOLATIONS OF THE CONDITIONS OF 

SUPERVISION INSIDE APPELLANT’S RESIDENCE?

Appellant’s brief at 6.
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In his first issue, Appellant contends that DNA and circumstantial 

evidence offered to link him to the loaded handgun found in the basement was 

insufficient to prove beyond a reasonable doubt that he constructively 

possessed the gun, an element to the crime of Persons Not to Possess of which 

he was convicted. We disagree.

Our standard of review of sufficiency claims is well-settled:

A claim challenging the sufficiency of the evidence is a question of 

law. Evidence will be deemed sufficient to support the verdict 

when it establishes each material element of the crime charged 

and the commission thereof by the accused, beyond a reasonable 

doubt. Where the evidence offered to support the verdict is in 

contradiction to the physical facts, in contravention to human 

experience and the laws of nature, then the evidence is insufficient 

as a matter of law. When reviewing a sufficiency claim[,] the court

is required to view the evidence in the light most favorable to the 

verdict winner giving the prosecution the benefit of all reasonable 

inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal 

citations omitted). 

Furthermore, the trier of fact, in this case the trial court, is free to 

believe, all, part, or none of the evidence presented when making credibility

determinations. Commonwealth v. Beasley, 138 A.3d 39, 45 (Pa.Super. 

2016). In deciding a sufficiency of the evidence claim, this court may not 

reweigh the evidence and substitute our judgment for that of the fact-finder. 

Commonwealth v. Williams, 153 A.3d 372, 375 (Pa.Super. 2016). 
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Illegal possession of a firearm may be established by constructive 

possession. Commonwealth v. Parker, 847 A.2d 745, 750 (Pa.Super. 

2005). With respect to constructive possession, this Court has held:

When contraband is not found on the defendant's person, the 

Commonwealth must establish “constructive possession,” that is, 

the power to control the contraband and the intent to exercise 

that control. Commonwealth v. Valette, 531 Pa. 384, 613 A.2d 

548 (1992). The fact that another person may also have control 

and access does not eliminate the defendant's constructive

possession.... As with any other element of a crime, constructive

possession may be proven by circumstantial evidence. 

Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 

(1983). The requisite knowledge and intent may be inferred from 

the totality of the circumstances. Commonwealth v. 

Thompson, 286 Pa.Super. 31, 428 A.2d 223 (1981).

Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa.Super. 1996), appeal 

denied, 692 A.2d 563 (Pa. 1997). 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 (1986). 

To support his argument against constructive possession, Appellant 

points to evidence that the gun was found neither in his bedroom nor in a 

room containing any of his personal belongings, but, instead, in a basement 

used primarily by his father and otherwise accessible to the whole family.

The Commonwealth counters that DNA samples taken from the gun 

implicated Appellant and that the basement was furnished primarily as a 

common area, as evidenced by the presence of exercise equipment and a 

futon in the upright position with a TV opposite it on the day of the search. 
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With respect to DNA evidence adduced at trial,3the prosecution 

established that each of the four DNA swab samples taken from the gun 

produced a profile representing a mixture of at least three DNA contributors, 

from which group Appellant could not be excluded. N.T. 11/30/15 at 138. 

Because there existed the possibility that one or more members of Appellant’s 

family were among the three DNA contributors, however, additional DNA 

testing and analyses were undertaken to assess the relative probability that 

Appellant, rather than a family member, contributed to the DNA mixture. 

Of the four DNA samples taken from the gun in question, one yielded no 

conclusion and another, from the trigger, was more probable if it came from 

a relative of Appellant’s and two unknown, unrelated individuals than if it came 

from Appellant and two unknown, unrelated individuals.

However, the two other DNA swab samples pointed more heavily to 

Appellant. First, it was determined that the DNA sample taken from the gun’s 

grip was at least 384 times more probable if the sample originated from 

Appellant and two unknown, unrelated individuals than if it originated from a 

relative to Appellant and two unknown, unrelated individuals.4 Therefore, the 

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3 At trial, Appellant lodged no objection to the admissibility of the 

Commonwealth’s DNA evidence.

4 Hence, the record belies Appellant’s contention that DNA evidence failed to 

address the probability that a relative of Appellant’s and two unknown, 

unrelated individuals had contributed to the mix. See Appellant’s brief, at 29.
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laboratory concluded there was “strong support” that Appellant contributed to 

this mixture.5 

Testing of the DNA sample retrieved from the gun’s magazine also 

yielded the conclusion that the DNA sample was at least 29 times more 

probable if the sample originated from Appellant and two unknown, unrelated 

individuals than if it originated from a relative to Appellant and two unknown, 

unrelated individuals. 

Thus, we agree with the trial court that the DNA evidence strongly 

implicated Appellant as a possessor of the gun found in the basement of his 

approved residence. In this regard, the fact that other family members may 

have also handled the gun does not preclude Appellant’s constructive 

possession of it, as the constructive possession concept allows for more than 

one possessor. Id. See also Commonwealth v. Macolino, 469 A.2d 132, 

136 (Pa. 1983) (overturning ruling that would “provide a privileged sanctuary 

for the storage of illegal contraband. Simply by storing contraband in a place 

controlled by more than one party, a spouse, roommate, partner would render 

all impervious to prosecution”).

As such, evidence establishing that Appellant was dealing drugs that he 

kept hidden in his bedroom of his approved home, had handled a gun 

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5 This same analysis also concluded that it was 1,000,000 times more likely 

that the DNA on the gun’s grip belonged to Appellant and two unknown, 

unrelated individuals than if it originated from three unknown, unrelated 

individuals, thus lending “very strong support” that Appellant and two 

unknown, unrelated individuals contributed to this mixture rather than three 

unknown, unrelated individuals.
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discovered in the basement of that home, and had unrestricted access to the 

basement was sufficient to prove the element of possession necessary to his 

conviction for Persons Not to Possess. Viewed in a light most favorable to the 

Commonwealth as verdict winner, such evidence went beyond showing he 

merely resided in a home where a gun was stored and knew of the gun’s 

location; it established, instead, both his control and his intent to exercise 

control of the gun. 

Appellant assails the Commonwealth’s proffer in this regard by alluding 

to defense evidence offered to show that Appellant had no interest in the 

basement of his approved home. Such an argument goes not to the 

sufficiency of the evidence, however, but to the weight of the evidence, a 

claim that Appellant has raised in neither his Pa.R.A.P. 1925(b) statement nor 

his statement of questions presented. Accordingly, he has waived his weight 

of the evidence claim.

Even if he had preserved the claim, it would afford him no relief. The 

court, sitting as finder of fact at Appellant’s bench trial, found the testimony 

of Appellant’s father (“Father”) incredible to the extent he attempted to 

disassociate his son completely from the basement where the gun was 

recovered. Specifically, Father claimed exclusive control of everything in the 

basement except the gun, which he attributed to his incarcerated cousin, 

Manuel McClellan. N.T. at 170-72. He did this by testifying that the basement 

was “my area,” even though he no longer resided in the home, because he 

stored some personal items there. Id. When asked specifically about the 
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futon, however, under which the handgun was hidden, Father said only that 

his cousin Manuel slept there until his arrest, the obvious implication being 

that the gun found underneath the futon belonged to Manuel. 

In arguing that the trial court erroneously rejected defense evidence 

that Appellant had no interest in the basement space that was essentially 

within the dominion of his father, Appellant asks us to do what we may not 

do, i.e., disturb the credibility determinations of the finder of fact. See 

Beasley, supra; Williams, supra. For that reason, we would discern no 

abuse of discretion with the trial court’s denial of Appellant’s weight claim 

raised in his post-trial motion even if Appellant properly raised it for our 

review.

Here, the totality of evidence comprising DNA analysis of the gun and 

Appellant’s access to the gun in a common area of his grandmother’s home 

supported a finding of fact that he constructively possessed the gun. 

Discerning no error with the court’s determination on this point, we conclude 

Appellant’s sufficiency claim affords him no relief.

Next, we consider whether the lower court erred in denying Appellant’s

motion to suppress evidence obtained during the parole agents’ search of his 

residence. We review the denial of a motion to suppress as follows:

An appellate court's standard of review in addressing a challenge 

to the denial of a suppression motion is limited to determining 

whether the suppression court's factual findings are supported by 

the record and whether the legal conclusions drawn from those 

facts are correct. Because the Commonwealth prevailed before 

the suppression court, we may consider only the evidence of the 
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Commonwealth and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the record as 

a whole. Where the suppression court's factual findings are 

supported by the record, the appellate court is bound by those 

findings and may reverse only if the court's legal conclusions are 

erroneous. Where the appeal of the determination of the 

suppression court turns on allegations of legal error, the 

suppression court's legal conclusions are not binding on an 

appellate court, whose duty it is to determine if the suppression 

court properly applied the law to the facts. Thus, the conclusions 

of law of the courts below are subject to plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015) (citation, 

alterations, and ellipsis omitted).

Appellant filed a motion to suppress evidence obtained from the search 

of his home, which, he maintained, was unsupported by reasonable suspicion 

that he possessed contraband or was otherwise in violation of parole 

conditions. During his nine months on parole, Appellant argued, he kept every 

appointment, committed no violations, and never failed a drug test. He 

stressed that there was no evidence as to whether either phone in his 

possession contained texts, emails, or messages suggesting illegal activity.

Appellant’s parole officer testified that Appellant’s presence at a bar, his 

possession of a large amount of cash and two working cell phones, and his 

underlying criminal record involving violations of the Drug Act created 

reasonable suspicion that he was dealing drugs at the bar, which justified a 

search of his residence for drug-related contraband. The suppression court 

agreed that parole agents had reasonable suspicion to support a search of his 

home, hence, it denied Appellant’s motion to suppress.
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A parolee has limited Fourth Amendment rights because of 

a diminished expectation of privacy. Commonwealth v. 

Williams, 692 A.2d 1031, 1035 (Pa. 1997). A “parolee's signing 

of a parole agreement giving his parole officer permission to 

conduct a warrantless search does not mean either that the parole 

officer can conduct a search at any time and for any reason or 

that the parolee relinquishes his Fourth Amendment right to be 

free from unreasonable searches.” Id. at 1036.

Commonwealth v. Coleman, 130 A.3d 38, 45 (Pa. Super. 2015).

However, under 42 Pa.C.S. § 6153, “Supervisory relationship to 

offenders,” an Agent of the Pennsylvania Board of Probation and Parole may 

conduct a warrantless property search “if there is reasonable suspicion to 

believe that the real or other property in the possession or under the control 

of the offender contains contraband or other evidence of violations of the 

conditions of supervision[,]” subsection 6153(d)(2), and where, in the 

absence of exigent circumstances, prior approval of a supervisor is obtained,

subsection 6153(d)(3). Subsection 6153(d)(6) also addresses the formulation 

of reasonable suspicion to support a property search without a warrant:

(6) The existence of reasonable suspicion to search shall be 

determined in accordance with constitutional search and seizure 

provisions as applied by judicial decision. In accordance with such 

case law, the following factors, where applicable, may be taken 

into account:

(i) The observations of officers.

(ii) Information provided by others.

(iii) The activities of the offender.

(iv) Information provided by the offender.

(v) The experience of the officers with the offender.

(vi) The experience of officers in similar 

circumstances.

(vii) The prior criminal and supervisory history of the 

offender.
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(viii) The need to verify compliance with the 

conditions of supervision.

42 Pa.C.S.A. § 6153(d)(6).

Here, the facts as they relate to subsections 9912(d)(6)(i), (iii), (vii), 

and (viii) created reasonable suspicion to believe Appellant possessed 

contraband in his home. Specifically, Appellant was present in a bar late at 

night in violation of his parole conditions. Notably, it appeared to Agent 

Dominick that Appellant had not been drinking while at the bar, and he was 

otherwise found to have two working cell phones and a large amount of cash 

on his person, items associated with the drug trade. Viewed in conjunction 

with Appellant’s prior history as a drug offender, Agent Dominick’s 

observations and search of Appellant’s person provided reason to suspect 

Appellant was dealing drugs in the bar, thus justifying the warrantless search 

for illicit drugs in his residence. Accordingly, we reject Appellant’s challenge 

to the suppression order in question as meritless.

Judgment of sentence is AFFIRMED.

Judge Stabile joins the Opinion.

Judge Ott files a Concurring Opinion. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/26/18