J-S06034-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DYSHA WRIGHT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 389 EDA 2023

Appeal from the Judgment of Sentence Entered October 14, 2022

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0010170-2021

BEFORE: DUBOW, J., McLAUGHLIN, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED APRIL 18, 2024

Dysha Wright (“Wright”) appeals from the judgment of sentence 

following his conviction for one count of persons not to possess firearms.

1

 We 

affirm.

The trial court recounted the underlying facts and procedural history as 

follows:

At trial, the Commonwealth presented the testimony of 

Philadelphia Police Officer Joshua Rubin [(“Officer Rubin”)]. 

Officer Rubin testified that[,] on January 30, 2021, at 

approximately 6:40 p.m., he and his partner, Officer Vazquez,[2]

responded to a radio call for “person with a gun.” As a result of 

the call, the officers arrived at a grocery store located at 6900 

Woodland Avenue in Philadelphia. They went inside the store and 

encountered [Wright], who was standing in the back aisle of the 

store. Officer Rubin walked to the end of the aisle and, from a 

shelf located precisely where [Wright] was standing, recovered a 

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1 18 Pa.C.S.A. § 6105.

2 Officer Vazquez’s first name is not included in the certified record.
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silver and black .38 caliber handgun. Officer Rubin placed the 

firearm on a property receipt, and [Wright] was taken into 

custody. 

Although Officer Rubin candidly admitted that he never saw 

[Wright] holding the firearm, the Commonwealth played video 

surveillance from the store, which was introduced into evidence 

as Exhibit “C-1”. The surveillance video showed an unknown male 

in all black clothing looking back shortly before police entered the 

store. That male alerted [Wright] that police were coming, at 

which point the video depicted [Wright] retrieving an object from 

his jacket and placing it on the shelf in the back aisle of the store. 

The video depicted no other persons approaching that shelf in the 

brief period prior to Officer Rubin’s recovery of the firearm. 

Finally, prior to resting, the Commonwealth introduced 

stipulated evidence that [Wright] had a prior conviction that 

prohibited him from possessing a firearm. 

Trial Court Opinion, 3/17/23, at 2-3 (footnote added, record citations 

omitted).

The trial court convicted Wright of persons not to possess firearms. 

After receipt of a Pre-Sentence Investigation Report, the trial court sentenced 

Wright to four to ten years in prison. Wright filed a motion for reconsideration 

of sentence, which the trial court denied. This timely appeal followed.3

Wright raises a single issue on appeal:

Was the evidence insufficient to adjudicate Wright guilty of 

[persons not to possess firearms]?

Wright’s Brief at 4.

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3 Wright and the trial court complied with Pa.R.A.P. 1925.
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Wright’s issue implicates the sufficiency of the evidence underlying his 

conviction for persons not to possess firearms. See Wright’s Brief at 8-9. 

Pertinently:

[w]e review claims regarding the sufficiency of the evidence by 

considering whether, viewing all the evidence admitted at trial in 

the 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. Further, a conviction may be 

sustained wholly on circumstantial evidence, and the trier of fact—

while passing on the credibility of the witnesses and the weight of 

the evidence—is free to believe all, part, or none of the evidence. 

In conducting this review, the appellate court may not weigh the 

evidence and substitute its judgment for the fact[]finder.

Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal 

citations and quotation marks omitted).

The Crimes Code defines persons not to possess firearms as follows:

(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.

18 Pa.C.S.A. § 6105(a)(1).4

“Illegal possession of a firearm may be shown by constructive 

possession.” Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 

2011). “[C]onstructive possession is a legal fiction, a pragmatic construct to 

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4 Wright does not dispute he was statutorily ineligible to possess a firearm. 

See Wright’s Brief at 8-9.
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deal with the realities of criminal law enforcement.” Commonwealth v. 

Johnson, 26 A.3d 1078, 1093 (Pa. 2011) (citation omitted). “Constructive 

possession has been defined as the ability to exercise a conscious dominion 

over the [contraband]: the power to control the contraband and the intent to 

exercise that control.” Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa. 

1983). “Dominion and control means the defendant had the ability to reduce 

the item to actual possession immediately or was otherwise able to govern its 

use or disposition as if in physical possession.” Commonwealth v. Peters, 

218 A.3d 1206, 1209 (Pa. 2019) (internal citation omitted). The intent to 

maintain a conscious dominion may be inferred from the totality of the 

circumstances. See id. “[A]lthough mere presence at a crime scene cannot 

alone sustain a conviction for possession of contraband[,] a [fact finder] need 

not ignore presence, proximity and association when presented in conjunction 

with other evidence of guilt.” Commonwealth v. Vargas, 108 A.3d 858, 869 

(Pa. Super. 2014) (internal quotation marks and citation omitted). “[A]s with 

any other element of a crime, constructive possession may be proven by 

circumstantial evidence.” Commonwealth v. Parrish, 191 A.3d 31, 36-37

(Pa. Super. 2018).

Wright maintains:

The Commonwealth failed to prove that Wright possessed 

the firearm. He was never seen possessing the gun, and it was 

recovered on the shelf of a store that was open to the public with 

multiple other people present.
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Wright’s Brief at 7.

The trial court disagreed, explaining:

The direct and circumstantial evidence, along with all 

reasonable inferences viewed in light most favorable to the 

Commonwealth, established that [Wright] constructively 

possessed the firearm seized in this case. Officer Rubin testified 

that when he entered the grocery store, he encountered [Wright], 

who was standing in the back aisle of the store. Officer Rubin 

walked over to the end of the aisle and, from a shelf located 

precisely where [Wright] was standing, recovered a silver and 

black .38 caliber handgun. While the officer acknowledged that 

he never saw [Wright] holding the firearm, the Commonwealth 

introduced video evidence depicting [Wright] retrieving an object 

from his jacket and placing it on the shelf -- i.e., precisely where 

the firearm was recovered just a few moments later. Moreover, 

the video demonstrated that no other persons approached that 

area of the store prior to recovery of the firearm by Officer Rubin. 

All told, the above evidence and all reasonable inferences 

deducible therefrom, amply established that [Wright] 

constructively possessed the firearm. Cf. Commonwealth v. 

Muhammad, [289] A.3d [1078, 1091] (Pa. Super. 2023) 

(evidence was sufficient to establish that defendant constructively 

possessed unlicensed handgun found in center console of rental 

vehicle he was driving, where [police] recovered handgun from 

center console of vehicle, right next to where defendant had been 

sitting, defendant was the only occupant in the car at the time of 

the stop, and furtive movements and awkward positioning of his 

body indicated that he was aware of the gun and attempting to 

conceal it). . . . 

Additionally, [Wright] stipulated to the fact that he had been 

convicted of an offense that prohibited him from possessing a 

firearm. Accordingly, the evidence adduced at trial clearly 

supported [Wright’s] conviction for persons not to possess 

firearms.

Trial Court Opinion, 3/17/23, at 7-8 (italics added).

We affirm based on the trial court’s reasoning. The trial court, sitting 

as the factfinder, viewed the video of the incident, saw Officer Rubin enter the 
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story, and saw an unknown male signal to Wright, who removed an object 

from his jacket, and place it on the shelf, precisely where Officer Rubin 

recovered the gun a few moments later. See id. at 2-3, 7. This is sufficient 

to sustain a conviction for persons not to possess firearms. See 

Commonwealth v. Brown, 186 A.3d 985, 992 (Pa. Super. 2018) (holding 

evidence sufficient to prove persons not to possess firearms where defendant 

was a passenger in taxi cab, the driver felt defendant tugging at the jacket 

where the driver kept a firearm, immediately after defendant left the cab, the 

driver discovered the gun was missing, and the gun was later found in the 

possession of a relative of defendant); Commonwealth v. Hopkins, 2023 

WL 8183707, at *4 (Pa. Super., 11/27/23) (unpublished memorandum) 

(holding the evidence prove persons not to possess firearms, where a police 

officer chasing a suspect saw the suspect throw an object from his waistband 

and later recovered a firearm from that location).5

For the reasons discussed above, we conclude Wright’s claim is lacking 

in merit. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

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5 See Pa.R.A.P. 126(b) (unpublished non-precedential memoranda decision of 

Superior Court filed after May 1, 2019, may be cited for persuasive value).
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Date: 4/18/2024