J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ISAIAH BROOKS

Appellant :

:

:

:

:

:

:

:

: 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 FEBR UARY 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 possessi on 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, argui ng 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:

_________________ __________ ______ ____ _______

* 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.J

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At Appellant ’ s trial, Sergeant Joseph Rauch testified on behalf of

the Commonwealth. T he 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 passenge r[’ 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. ”

I d.

The sergeant then a pproached the Nissan ’ s passenger side and

saw three people in the automobile

— a driver, a front

- seat

passenger, and Appellant in the back seat. I d. 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 t he 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 p olice 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 gon e. 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.J

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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 firear m. [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), 1 0 / 26 /20, at 1

- 3.

Based on this evidence, the co urt convicted Appellant of the above

stated crimes. On February 24, 2020, t he 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 a nd 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).J

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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

actua l 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 controlJ

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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 Appell ant’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 policem en.

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 eviden ce, 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 wellJ

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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 Su preme 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 wh ich 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 lac ks 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 indicatin g 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 gunJ

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was recovered , and his repeatedly looking at the officers as they approached

the vehicle

.

Moreo ver, we reject Appellant’s argument that this case mirrors

Commonwealth v. Boat w right

, 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

R oebuck 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 [ Boat wright] , who was seated in the front

pas senger 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 wa s 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 poss essed 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 [Boatwrig ht] 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 theJ

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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 firear m.” 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 le ft 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

towar d 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

circumstanti al 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 fromJ

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police after the weapon was discovered, wa s sufficient to prove that he

constructively possessed the gun.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/02/2022