J-S05022-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KEVIN DOUGLAS MCGEE,

Appellant No. 73 MDA 2015

Appeal from the Judgment of Sentence November 24, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0003738-2013

BEFORE: BENDER, P.J.E., SHOGAN, and PLATT,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED JANUARY 29, 2016

Kevin Douglas McGee (“Appellant”) appeals from the judgment of 

sentence imposed on November 24, 2014, after a jury found him guilty of 

multiple drug and firearm offenses. We affirm.

The case arises out of a shooting incident in Reading, Pennsylvania, at 

2:40 a.m. on February 21, 2013. In response to a report of shots fired, 

Reading Police Officer Christopher Dinger proceeded to the Queen City 

Diner. There, witnesses told the officer about a black man with dreadlocks 

in a grey hoodie who ran into the diner claiming he had been shot, then left 

the diner and drove off in a black SUV. Officer Dinger was then dispatched 

to Reading Hospital where a man fitting the victim’s description was being 

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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treated for gunshot wounds. Officer Dinger identified the victim as 

Appellant, who informed the officer that he had been shot near Topher’s bar 

in Reading, and that his address was 536 Fern Avenue, Reading, 

Pennsylvania. Officer Dinger and several other officers proceeded to 536 

Fern Avenue. While checking the area around the house, Officer Dinger 

observed a white Lincoln Navigator parked in an alley behind the residence 

and a black Cadillac Escalade parked inside an open garage. The officer 

observed what he believed to be blood on the console of the Navigator. He 

also observed a flat tire on the Escalade and bullet holes in the front driver’s 

side panels. Inside the Escalade, Officer Dinger saw a black book bag on the 

floor of the passenger side front seat. Both vehicles were towed to a local 

garage while the police applied for a search warrant.

Inside 536 Fern Avenue, Reading Police Officer Kyle Kunkle 

encountered co-defendants Vanessa Moore and Erica Henderson, Ms. 

Henderson’s two young daughters, and Veronica Ortega. He also found a 

loaded .380 Bersa handgun on the living room sofa that was registered to 

Ms. Moore. Ms. Moore told Officer Kunkle that Appellant used the residence 

for mail but he had not lived there for a long time. On the first floor, the

police found mail addressed to Appellant at 536 Fern Avenue, and Criminal 

Investigator Michael Perkins found a Bersa gun box in the kitchen pantry. In 

the basement, the police found, inter alia, various types of ammunition in a 

refrigerator, a safe containing drugs and pills, and a plastic tote marked 
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“Kev’s sneakers.” Detective Perkins found Appellant’s 2012 Pennsylvania 

identification card with an address of 536 Fern Avenue in a man’s wallet. 

Criminal Investigator Joseph Snell searched the second floor front bedroom, 

where he found a photograph of Appellant on a nightstand, men’s socks and 

ammunition in the nightstand drawer, men’s clothing, men’s body wash in 

the shower, and a loaded Winchester twelve gauge shotgun and handcuffs in 

a silver gun case under the bed.

Investigator Snell assisted in executing the search warrant for the 

Escalade, which revealed documents addressed to Appellant at 536 Fern 

Avenue. Additionally, Investigator Snell recovered a black book bag, which 

he admittedly opened, observing inside what he believed to be drugs and 

drug paraphernalia. He returned the bag to the vehicle until an additional 

search warrant could be secured. With a second search warrant, Criminal 

Investigator Kevin Haser recovered the black book bag, which contained 

multiple baggies of crack cocaine and powder cocaine, four handguns, a 

scale, spoons, plates, razor blades, “Black Molly” pills, empty blue and green 

baggies, and ammunition. 

The Navigator was registered to Ms. Moore, and the Escalade was 

registered to Ms. Moore’s mother, Rosalie Moore. None of the guns was 

registered to Appellant, and fingerprints recovered from the black bag and 

its contents belonged to Ms. Henderson. Appellant was ineligible to possess 

a firearm due to a prior felony conviction.
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Following his jury trial and conviction, the trial court sentenced 

Appellant to incarceration for an aggregate term of ten to twenty years, 

followed by ten years of probation. Defense counsel withdrew with the trial 

court’s permission, and appellate counsel was appointed. This appeal 

followed. Appellant and the trial court have complied with Pa.R.A.P. 1925.

On appeal, Appellant presents the following questions for our review:

1. Whether the trial court erred in excusing sua sponte Juror 

#1 prior to deliberations over the objection of counsel and 

without good cause?

2. Whether there was insufficient evidence to support the 

jury’s verdict as the Commonwealth failed to establish 

Appellant’s intent to exercise control over the drugs and 

guns found inside the black book bag located inside the 

black Cadillac Escalade?

3. Whether the[re] was insufficient evidence to support the 

jury’s verdict as the Commonwealth failed to establish 

Appellant’s knowledge that he was aware there were drugs 

and guns inside the black book bag located inside the black 

Cadillac Escalade?

4. Whether there was insufficient evidence to support the 

jury’s verdict as to the gun charges pertaining to firearms 

located inside 536 Fern Avenue as the Commonwealth 

failed to establish Appellant’s intent to exercise control 

over the firearms?

5. Whether there was insufficient evidence to support the 

jury’s verdict as to the gun charges pertaining to firearms 

located inside 536 Fern Avenue as the Commonwealth 

failed to establish Appellant’s knowledge that firearms 

were located inside the residence?

Appellant’s Brief at 4.
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Appellant first challenges the trial court’s decision to remove Juror 

Number One and replace her with an alternate juror. Appellant’s Brief at 9. 

“Pursuant to Pa.R.Crim.P. [645(a)], a trial court may seat an alternate juror 

whenever a principal juror becomes unable or disqualified to perform his 

duties.” Commonwealth v. Williams, 720 A.2d 679, 684 (Pa. 1998). 

“This discretion exists even after the jury has been impaneled and the juror

sworn.” Commonwealth v. Carter, 643 A.2d 61, 70 (Pa. 1994) (citation 

omitted). The trial court’s discretion in this regard must be based upon a 

sufficient record of competent evidence to sustain removal. Id. at 70 

(citation omitted). The trial court’s decision to discharge a juror will not be 

reversed absent a palpable abuse of discretion. Commonwealth v. 

Treiber, 874 A.2d 26, 31 (Pa. 2005).

Appellant’s remaining challenges are to the sufficiency of the evidence 

sustaining his drug and firearm convictions. Specifically, Appellant argues 

that the Commonwealth failed to establish his intent to exercise control over 

the drugs and firearms in the book bag or his knowledge of the firearms in 

the book bag and inside 536 Fern Avenue. Appellant’s Brief at 10.

Our standard of review in a sufficiency of the 

evidence challenge is to determine if the 

Commonwealth established beyond a reasonable 

doubt each of the elements of the offense, 

considering all the evidence admitted at trial, and 

drawing all reasonable inferences therefrom in favor 

of the Commonwealth as the verdict-winner. The 

trier of fact bears the responsibility of assessing the 

credibility of the witnesses and weighing the 
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evidence presented. In doing so, the trier of fact is 

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

Commonwealth v. Newton, 994 A.2d 1127, 1131 

(Pa.Super.2010), appeal denied, 608 Pa. 630, 8 A.3d 898 

(2010), quoting Commonwealth v. Pruitt, 597 Pa. 307, 318, 

951 A.2d 307, 313 (2008) (citations omitted). The 

Commonwealth may sustain its burden by means of wholly 

circumstantial evidence, and we must evaluate the entire trial 

record and consider all evidence received against the defendant. 

Commonwealth v. Markman, 591 Pa. 249, 270, 916 A.2d 586, 

598 (2007). 

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

Appellant was not in physical possession of the contraband; therefore, 

the Commonwealth was required to establish that he had constructive 

possession of the seized items to support his convictions.

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. Brown, 48 A.3d 426, 430 (Pa.Super.2012), 

appeal denied, ––– Pa. ––––, 63 A.3d 1243 (2013) (internal 

quotation marks and citation omitted). Additionally, it is possible 

for two people to have joint constructive possession of an item of 

contraband. Commonwealth v. Sanes, 955 A.2d 369, 373 

(Pa.Super.2008), appeal denied, 601 Pa. 696, 972 A.2d 521 

(2009).

Hopkins, 67 A.3d at 820–821.
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Upon review of the parties’ briefs, the certified record, and the 

applicable law, we conclude that the trial court adequately and correctly 

disposed of Appellant’s issues in its Pa.R.A.P. 1925(a) opinion. Therein, the 

trial court determined that excusing Juror Number One was not an abuse of 

its discretion and that the evidence was sufficient to sustain Appellant’s 

convictions for possession of the drugs and firearms in the book bag and the 

firearms in the residence. Trial Court Opinion, 2/26/15, at 12, 18, 19, 25, 

26. We find support in the record for the trial court’s findings of fact and no 

error in its conclusions of law. Therefore, we affirm the judgment of 

sentence on the basis of the trial court’s February 26, 2015 Rule 1925(a) 

opinion. The parties are directed to attach a copy of the trial court’s opinion 

to this memorandum in the event of future proceedings.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/29/2016
Circulated 01/21/2016 10:52 AM