J-S04008-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ISAIAH BROOKS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 897 EDA 2020

Appeal from the Judgment of Sentence Entered February 24, 2020

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

No(s): CP-51-CR-0000979-2019

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 2, 2022

Appellant, Isaiah Brooks, appeals from the judgment of sentence of an 

aggregate term of two to four years’ incarceration, imposed after he was 

convicted, following a non-jury trial, of possession of a firearm by a person 

prohibited,1 possession of a firearm without a license,2 and carrying a firearm 

in public in Philadelphia.3 On appeal, Appellant challenges the sufficiency of 

the evidence to support his convictions, arguing that the Commonwealth failed 

to prove that he possessed a firearm. After careful review, we affirm.

The trial court summarized the facts of this case, as follows:

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 6105(a)(1).

2 18 Pa.C.S. § 6106(a)(1).

3 18 Pa.C.S. § 6108.
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At Appellant’s trial, Sergeant Joseph Rauch testified on behalf of 

the Commonwealth. The sergeant testified that, on January 22, 

2019, at approximately 11:00 p.m., he was on duty as a

Philadelphia [p]olice officer. []Notes of Testimony (“N.T.”), 

12/20/19, at 8[]. On that date and time, he and Officer Nicoletti, 

Sergeant Rauch’s partner, stopped a black Nissan in the 300 block 

of Sedgley Avenue because the vehicle was traveling westbound 

on Sedgley without headlights. Id. at 9-10.

Sergeant Rauch observed Appellant, who was in the Nissan’s back 

seat, reach “behind the passenger[’s] seat.” Id. at 10. Appellant 

“[q]uickly started bouncing ... from the middle of the back seat to 

behind the driver’s seat.” Id. As he was doing this, Appellant 

looked back at the sergeant and his partner[] “four or five times.”

Id.

The sergeant then approached the Nissan’s passenger side and 

saw three people in the automobile—a driver, a front-seat 

passenger, and Appellant in the back seat. Id. at 10-11. While

Sergeant Rauch spoke with the individual in the front passenger’s 

seat, the sergeant shined his flashlight into the Nissan and 

observed “a ton of trash on the floor.” Id. at 11, 24. Amongst 

the trash on the floor in the vehicle’s back seat area, Sergeant 

Rauch saw the handle of a black handgun. Id. The gun was 

located behind the passenger’s seat, i.e., where the sergeant 

[had] observed Appellant reaching. Id. Sergeant Rauch notified 

his partner of the gun, and Officer Nicoletti removed Appellant 

from the vehicle. Id. Then, the sergeant recovered the weapon 

and went to his police vehicle. Id. at 12.

When he was back at his police vehicle, Sergeant Rauch noticed 

that Appellant “broke free from [Officer Nicoletti] and started 

fleeing westbound on Sedgley Avenue.” Id. at 12-13. Thus, the 

sergeant drove to the intersection of Lawrence and Venango 

Streets, where Officer Nicoletti caught Appellant. Id. at 13. 

Appellant was subsequently handcuffed and arrested. Id. at 14. 

When Sergeant Rauch returned to the 300 block of Sedgley 

Avenue, he discovered that the black Nissan was gone. Id.

On the night of the incident, Sergeant Rauch and Officer Nicoletti 

were wearing body cameras. Id. at 14-15. The Commonwealth 

played the body camera video footage, which was entered into 

evidence as C1 and C2, respectively. Id. at 14-16. The video 

[footage] corroborated Sergeant Rauch’s testimony.
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At the conclusion of the testimony, the parties stipulated that: ...

Appellant was prohibited from possessing a firearm, [i]d. at 29; 

... Appellant did not have a license to carry a firearm. [i]d.; ... [and 

that] the Philadelphia Police Department’s Firearms Operation Unit 

tested the firearm, which Sergeant Rauch recovered, and 

determined it was operable. Id. at 30.

Trial Court Opinion (TCO), 10/26/20, at 1-3.

Based on this evidence, the court convicted Appellant of the abovestated crimes. On February 24, 2020, the court sentenced him to the 

aggregate term stated supra. Appellant filed a timely notice of appeal, and 

he also complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. The court filed its Rule 1925(a) 

opinion on October 26, 2020. Herein, Appellant states the following issue for 

our review: “Was the evidence insufficient to prove [Appellant] guilty of ... [the 

f]irearm ... charges[,] as the Commonwealth failed to prove that he possessed 

a firearm?” Appellant’s Brief at 4.

Initially, we note that,

[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.” 

Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014)

(citation and quotation omitted). 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.

Id. at 40 (citation and quotation omitted). “Because evidentiary

sufficiency is a matter of law, our standard of review is de novo

and our scope of review is plenary.” Commonwealth v.

Brooker, 103 A.3d 325, 330 (Pa. Super. 2014).

Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018).
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In the instant case, Appellant challenges each of his firearm convictions 

on the ground that the Commonwealth failed to prove that he possessed the 

firearm recovered from the vehicle in which he was riding.

This Court has held that “[p]ossession can be found by proving

actual possession, constructive possession, or joint constructive

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

(Pa. Super. 1999). Where a defendant is not in actual possession

of the prohibited items, the Commonwealth must establish that

the defendant had constructive possession to support the

conviction. Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.

Super. 2013) (conviction under 18 Pa.C.S. § 6106(a) supported

by a finding of constructive possession). See also

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

(same). “Constructive possession is a legal fiction, a pragmatic

construct to deal with the realities of criminal law enforcement.”

Hopkins, supra at 820 (citation and quotation omitted). “We

have defined constructive possession as conscious dominion,”

meaning that the defendant has “the power to control the

contraband and the intent to exercise that control.” Id. (citation

and quotation omitted). “To aid application, we have held that

constructive possession may be established by the totality of the

circumstances.” Id. (citation and quotation omitted).

It is well established that, “[a]s with any other element of a crime,

constructive possession may be proven by circumstantial

evidence.” Commonwealth v. Haskins, ... 677 A.2d 328, 330

([Pa. Super.] 1996) (citation omitted). In other words, the

Commonwealth must establish facts from which the trier of fact

can reasonably infer that the defendant exercised dominion and

control over the contraband at issue. See, e.g., Commonwealth

v. Davis, 743 A.2d 946, 953–54 (Pa. Super. 1999) (holding that

evidence was sufficient to prove constructive possession over

drugs found in common areas of an apartment where the

defendant entered the apartment using his own key, and

possessed $800 in cash on his person, and police recovered

defendant’s identification badge, size-appropriate clothing, and

firearms from a bedroom).

Significant to the instant appeal, a defendant’s mere presence at

a place where contraband is found or secreted is insufficient,

standing alone, to prove that he exercised dominion and control
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over those items. Commonwealth v. Valette, ... 613 A.2d 548,

551 ([Pa.] 1992). Thus, the location and proximity of an actor to

the contraband alone is not conclusive of guilt. Commonwealth

v. Juliano, ... 490 A.2d 891, 893 ([Pa. Super.] 1985). Rather,

knowledge of the existence and location of the contraband is a

necessary prerequisite to proving the defendant’s intent to

control, and, thus, his constructive possession. Id. [(]citing

Commonwealth v. Thompson, ... 428 A.2d 223, 224 ([Pa. 

Super.] 1981)[)].

If the only inference that the fact finder can make from the facts

is a suspicion of possession, the Commonwealth has failed to

prove constructive possession. Valette, supra at 551. “It is well

settled that facts giving rise to mere ‘association,’ ‘suspicion’ or

‘conjecture,’ will not make out a case of constructive possession.”

Id.

Parrish, 191 A.3d at 36-37.

Here, the trial court concluded that, “[u]nder the totality of 

circumstances, the evidence presented by the Commonwealth proved beyond 

a reasonable doubt that Appellant constructively possessed the firearm 

recovered on the floor of the vehicle where Appellant was seated.” TCO at 5-

6. The court explained:

Sergeant Rauch’s testimony, much of which was corroborated by 

body cam video, was credible. The sergeant offered specific 

testimony about Appellant’s movements prior to the sergeant’s 

discovery of the firearm.

Sergeant Rauch testified that he observed Appellant reach down 

to his right while sitting in the middle of the Nissan’s back seat. 

Appellant repeatedly turned and looked back at the policemen. 

Then, when Sergeant Rauch looked into the Nissan, he saw the 

handle of a firearm, protruding from trash and debris on the floor 

behind the passenger’s seat. The gun was located in the same 

place where the sergeant saw Appellant reaching. 

This evidence, which included the sergeant’s description of the 

firearm’s location and position[,] as well as Appellant’s suspicious 

movements prior to discovery of the gun, demonstrated 

Appellant’s “knowledge of the existence of the firearm[,]” as well 
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as his intent and power to control it. Parrish, 191 A.3d at 37; 

see Commonwealth v. Cruz Ortega, 539 A.2d 849, 851 (Pa. 

Super. [] 1988) (holding [that the] appellant had constructive 

possession of cocaine recovered from vehicle of which [the] 

appellant was a passenger; officer saw [the] appellant lean over 

seat before stop and cocaine was found under [the] appellant’s 

seat).

The [c]ourt also duly considered the fact that Appellant fled from 

the police after Sergeant Rauch discovered the firearm. As the 

Pennsylvania Supreme Court has explained, “When a person 

commits a crime, knows that he is wanted therefore, and flees or 

conceals himself, such conduct is evidence of consciousness of 

guilt, and may form the basis [of a conviction] in connection with 

other proof from which guilt may be inferred.” Commonwealth 

v. Clark, 961 A.2d 80, 92 [(Pa. 2008)] (quoting Commonwealth 

v. Rios, 684 A.2d 1025, 1035 (Pa. 1996)) (alteration in original).

In summary, based on the location of the firearm, Appellant’s 

proximity to the gun, and Appellant’s flight, the evidence proved 

that Appellant constructively possessed the firearm, which 

Sergeant Rauch recovered. Accordingly, Appellant’s claim that 

the Commonwealth failed to present sufficient evidence to support 

his convictions lacks merit.

Id. at 6-7 (citations to the record omitted).

We discern no error in the court’s decision, and we are unconvinced by 

Appellant’s arguments on appeal. For instance, Appellant challenges the 

court’s reliance on his flight from police as indicating his guilty conscious. He 

stresses that the other two occupants of the vehicle also fled, thus indicating 

that they were guilty, too. However, the trial court did not rely on Appellant’s 

flight alone. Rather, it cited other factors, in addition to his flight, that 

established his constructive possession of the gun — namely, his close 

proximity to the weapon, his movements toward the location at which the gun 
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was recovered, and his repeatedly looking at the officers as they approached 

the vehicle.

Moreover, we reject Appellant’s argument that this case mirrors 

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

[t]he Commonwealth’s evidence disclosed that, shortly after 

10:00 p.m. on April 10, 1979, Officers Charles Roller and Annette 

Roebuck responded to a radio call concerning three “suspicious” 

men in an automobile parked in front of a residence in the 

Hazelwood section of Pittsburgh. Upon arriving at the location, 

Officer Roller observed [Boatwright], who was seated in the front 

passenger seat of the vehicle, “moving towards his left rear.” The 

officer could not see [Boatwright’s] hand or arm, only a movement 

of his body. Officer Roller then opened the door of the automobile 

and asked [Boatwright] to get out. He shined a light onto the left 

rear floor of the vehicle and saw a gun. In addition to

[Boatwright], the car was occupied by the driver and another 

passenger who was seated in the left rear seat. The car was 

registered to the driver’s girlfriend and the gun to one Darlene 

Simpson.

Id. at 1058-59 (citations to the record omitted). In deeming this evidence 

insufficient to prove that Boatwright had constructively possessed the gun, we 

stressed that “[t]he only evidence other than mere presence was Officer 

Roller’s testimony that [Boatwright] made a movement toward the left rear of 

the vehicle. This evidence cannot provide proof beyond a reasonable doubt 

that [Boatwright] possessed the firearm in question. Therefore, the conviction 

cannot be sustained.” Id. at 1059 (citation omitted).

Appellant contends that, as in Boatwright, the other occupants of the 

vehicle in this case also had access to the firearm. He further insists that, 

under our reasoning in Boatwright, his “reaching towards the area where the 
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gun was recovered” was insufficient proof that he constructively possessed 

the gun, where Sergeant Rauch “did not see his hands and never saw him 

touching the firearm.” Appellant’s Brief at 10.

Appellant’s argument is meritless. As the Commonwealth stresses, 

Boatwright was sitting in the front passenger seat and was reaching toward 

the left rear seat, where another passenger was sitting. See Commonwealth’s 

Brief at 11. To the contrary, here, Appellant 

was the sole occupant of the back seat where the gun was located. 

Sergeant Rauch[] saw [Appellant’s] shoulder movement and the 

direction [Appellant’s] shoulders were pointing, which were 

toward the area where the gun lay. Furthermore, [Appellant] 

reached toward the firearm and subsequently switched seats to 

move away from the firearm, looking back as he did so at the 

officers approaching. The firearm was in plain view, only partially 

obscured by trash – which, of course, a reasonable fact[-]finder

could conclude had been placed over the gun by [Appellant] in an

attempt to hide it when the officers saw him moving and reaching

toward that area. [Appellant] also fled the scene after he was

removed from the car, supporting a finding that he knew about

and controlled the illegal weapon. Therefore, Boatwright is not

analogous to this case.

Id. (citations to the record omitted; emphasis in original). We agree with the 

Commonwealth.

Accordingly, Appellant has failed to demonstrate that the evidence was 

insufficient to prove that he constructively possessed the firearm. Rather, the 

circumstantial evidence of his close proximity to the firearm, his furtive 

movements while glancing at the approaching officers, the fact he was the 

only individual in the backseat where the gun was found, and his flight from 
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police after the weapon was discovered, was sufficient to prove that he 

constructively possessed the gun.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/02/2022