J-S44029-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

OBIE DAVIS,

Appellant No. 1442 EDA 2016

Appeal from the Judgment of Sentence April 28, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0000152-2015, CP-51-CR-0010915-

2014

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 01, 2017

Appellant, Obie Davis, appeals from the judgment of sentence entered 

on April 28, 2016, in the Philadelphia County Court of Common Pleas. We 

affirm.

The factual background in this matter was set forth by the trial court 

as follows:

Police Officer Michael Robertson testified that on December 

22, 2014, at approximately 8:15 PM, he was the driver of a 

marked patrol car, accompanied by his partner, [Officer Daniel 

Levitt,] in the vicinity of Broad and Belfield in Philadelphia. N.T. 

2/5/16, p. 11. Officer Robertson observed a blue minivan 

travelling at a high rate of speed, disregard a no-turn-on-red 

sign and continue south on Broad Street. N.T. 2/5/16, p. 11. The 

officer followed the vehicle for approximately two long blocks, 

activating his lights and siren. N.T. 2/5/16, p. 12. The mini-van 

attempted to turn right and crashed into a pole. The back of the 

vehicle became airborne. N.T. 2/5/16, pp. 13, 41.
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[Appellant] exited the driver’s side of the backwards rolling 

vehicle, running west on Cayuga Street. As [Appellant] ran 

between a church and an abandoned house. Officer Robertson 

observed that [Appellant] was holding a black handgun in his 

right hand. N.T. 2/5/16. pp. 13, 17-18, 25. Officer Robertson 

made his observation of the gun in [Appellant’s] hand from 

about 15 feet behind [Appellant], while the vehicle’s headlights 

were “illuminated right at him.” N.T. 2/5/16, pp. 26-27, 30. As 

Officer Levitt started to chase [Appellant] on foot, Officer 

Robertson was simultaneously on police radio shouting “Gun, 

gun. He’s got a gun.” N.T. 2/5/16, pp. 36, 48; Police Radio 

recording.

[Appellant] tossed the gun over a fence, then proceeded to 

climb over a fence topped with barbed wire. N.T. 2/5/16, pp. 13, 

17, 18, 42, 49; C-8. There was a light illuminating the area 

where the gun was thrown over the fence. N.T. 2/5/16, pp. 18-

19, 54; C-9. Officer Levitt confronted [Appellant] through the 

fence, face to face. [Appellant] then turned, picked up a gun that

was on the ground about 5 feet from him and ran off. [N.T.] 

2/5/16, pp. 42. 44, 44-45. The gun picked up by [Appellant] 

appeared to be a small black semi-automatic. [N.T.] 2/5/16. p. 

45.

Officer Robertson drove around the block trying to cut off 

[Appellant], while his partner, Officer Levitt, ran along the fence. 

Officer Robertson put out a description of [Appellant] on police 

radio. [Appellant] was stopped at 16th and Wingohocking by 

other officers. He was identified at that location by Officer Levitt. 

N.T. 2/5/16, pp. 13-14. 36-38, 43. [Appellant] was wearing the 

same jacket and clothes Officer Levitt had observed him wearing 

during their confrontation through the fence, and [Appellant] had 

bloody hands due to cuts from the barbed wire at the top of the

fence. [N.T.] 2/5/16, p. 43.

Officer Robertson and his partner searched the debris filled 

area where [Appellant] climbed the fence and the alley way, but 

did not find the gun. N.T. 2/5/16, pp. 22, 32-33. Controlled 

substances were recovered near the path [Appellant] had run 

and in the vehicle. N.T. 2/5/16, pp. 21, 46.

Officer Robertson was a 6-year veteran of the force, who 

had made approximately 40 arrests involving firearms. N.T. 

2/5116. pp. 9-11. Officer Levitt was also a 6-year veteran of the
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force, who had made approximately 20 arrests involving 

firearms. N.T. 2/5/16, p. 40.

Trial Court Opinion, 10/12/16, at unnumbered 2-3. The trial court provided 

the following procedural history:

On February 5, 2016, [Appellant] proceeded to trial before 

this Court, sitting without a jury. [Appellant] was charged with 

Possession of a firearm by a prohibited person (18 Pa. C.S. § 

6105), Firearms not to be carried without a license (18 Pa. C.S. 

§ 6106), Carrying firearms in public in Philadelphia (18 Pa. C.S. 

§ 6108) and Possession of a Controlled Substance (35 [P.S.] § 

780-113 (A) (16)).

On April 26, 2016, [Appellant] was sentenced to 31⁄2 to 7 

years state incarceration on the convictions for Possession of a 

firearm by a prohibited person (18 Pa. C.S. § 6105) and 

Firearms not to be carried without a license (18 Pa. C.S. § 

6106), to be served concurrently, and a consecutive sentence of 

4 year[s of] probation on the conviction for Carrying firearms in 

public in Philadelphia (18 Pa. C.S. § 6108). No further penalty 

was imposed on the conviction for Possession of a Controlled 

Substance (35 [P.S.] § 780-113 (A) (16)).1

1 On that date [Appellant] also entered a plea of 

guilty and was sentenced on an unrelated case under 

CP-51-CR-0010915-2014. No appeal has been filed 

from that sentence.

New counsel was appointed to represent [Appellant] for 

post-sentence matters on April 28, 2016. 

On April 29, 2016, [Appellant] filed a pro se notice of 

appeal.

On May 6, 2016, counsel filed post-sentence motions. The 

post-sentence motions were denied on June 21, 2016.

On August 29, 2016, an order directing the filing of a 

Pa.R.A.P. 1925(b) statement was entered.

Trial Court Opinion, 10/12/16, at unnumbered 1-2.
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On September 9, 2016, Appellant complied with the trial court’s order 

and filed a timely Pa.R.A.P. 1925(b) statement of errors complained of on 

appeal. The trial court filed its Pa.R.A.P. 1925(a) opinion on October 12, 

2016. 

On appeal, Appellant presents the following questions for this Court’s 

consideration:

1. Did the lower court err when it found that the evidence was 

sufficient to support a conviction for possession of a firearm 

under 18 Pa.C.S. §§ 6106 and 6108, where the Commonwealth 

failed to prove an essential element of both offenses, namely, 

the required barrel length or overall length of the alleged 

firearm?

2. Did the lower court err when it found that the evidence was 

sufficient to support a conviction for possession of a firearm 

under 18 Pa.C.S. § 6105, where no firearm was recovered and 

the Commonwealth’s witnesses gave conflicting testimony as to 

whether Appellant possessed a firearm.

Appellant’s Brief at 2. 

In Appellant’s first issue, he presents a challenge to the sufficiency of 

the evidence. Our standard of review is well settled:

The standard we apply in reviewing the sufficiency of 

evidence is 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. In applying the above test, we 

may not weigh the evidence and substitute our judgment for 

that of the fact-finder. In addition, we note that the facts and 

circumstances established by the Commonwealth need not 

preclude every possibility of innocence. Any doubts regarding a 

[Appellant’s] guilt may be resolved by the fact-finder unless the 

evidence is so weak and inconclusive that as a matter of law no 

probability of fact may be drawn from the combined 

circumstances. The Commonwealth may sustain its burden of 
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proving every element of the crime beyond a reasonable doubt 

by means of wholly circumstantial evidence. Moreover, in 

applying the above test, the entire record must be evaluated and 

all evidence actually received must be considered. Finally, the 

trier of fact while passing upon the credibility of witnesses and 

the weight of the evidence produced, is free to believe all, part 

or none of the evidence.

Commonwealth v. Sauers, 159 A.3d 1, 11 (Pa. Super. 2017) (citations 

omitted). 

The statutes relevant to this issue provide, in pertinent part, as 

follows:

Firearms not to be carried without a license

(a) Offense defined.--

(1) Except as provided in paragraph (2), any person 

who carries a firearm in any vehicle or any person 

who carries a firearm concealed on or about his 

person, except in his place of abode or fixed place of 

business, without a valid and lawfully issued license 

under this chapter commits a felony of the third 

degree.

(2) A person who is otherwise eligible to possess a 

valid license under this chapter but carries a firearm 

in any vehicle or any person who carries a firearm 

concealed on or about his person, except in his place 

of abode or fixed place of business, without a valid 

and lawfully issued license and has not committed 

any other criminal violation commits a misdemeanor 

of the first degree.

18 Pa.C.S. § 6106(a).

Carrying firearms on public streets or public property in 

Philadelphia
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No person shall carry a firearm, rifle or shotgun at any time 

upon the public streets or upon any public property in a city of 

the first class unless:

(1) such person is licensed to carry a firearm; or

(2) such person is exempt from licensing under 

section 6106(b) of this title (relating to firearms not 

to be carried without a license).

18 Pa.C.S. § 6108.

A “firearm” is defined as: 

Any pistol or revolver with a barrel length less than 15 inches, 

any shotgun with a barrel length less than 18 inches or any rifle 

with a barrel length less than 16 inches, or any pistol, revolver, 

rifle or shotgun with an overall length of less than 26 inches. The 

barrel length of a firearm shall be determined by measuring from 

the muzzle of the barrel to the face of the closed action, bolt or 

cylinder, whichever is applicable.

18 Pa.C.S. § 6102.

Appellant points out that the gun he allegedly possessed was not 

recovered, and this prevented the factfinder from determining the length of 

the gun’s barrel. Appellant’s Brief at 7-8. Appellant avers that the barrel 

length is an essential element of the crimes of which he was convicted. Id. 

Therefore, Appellant claims that the evidence was insufficient to support his 

convictions. We disagree.

While Appellant is correct that the exact length of the barrel was not 

established, at trial, witnesses consistently described the firearm as a small 

handgun. Specifically, the record reflects that Officer Michael Robertson 

testified that Appellant possessed a black handgun, N.T., 2/5/16, at 13, 17, 
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and also referred to the firearm as “a small black handgun.” Id. at 31. 

Furthermore, Officer Daniel Levitt testified that Appellant’s gun was “a small 

black semi-automatic.” Id. at 45. Additionally, there was no indication that 

the gun had a long barrel. 

As noted above, we view the evidence in the light most favorable to 

the Commonwealth as verdict winner. Sauers, 159 A.3d at 11. After 

review, we conclude that the witnesses’ description of the firearm as a small 

handgun allowed the trial court, sitting as the finder of fact, reasonably to 

conclude that length of the barrel was less than fifteen inches. Accordingly, 

the evidence was sufficient to establish the elements of the crimes with 

which Appellant was charged.

In his second issue, Appellant argues that the Commonwealth failed to 

establish that Appellant actually possessed or constructively possessed a 

firearm in violation of 18 Pa.C.S. § 6105. Appellant’s Brief at 10. We 

disagree.

The statute provides, in pertinent part, as follows:

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. § 6105(a)(1). Appellant does not dispute that he was prohibited 

from possessing a firearm due to prior convictions for offenses enumerated 
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in the statute. Appellant’s Brief at 11. Appellant focusses only on the 

element of possession. 

When a criminal defendant is not found in actual possession of 

contraband, the Commonwealth may establish possession of the contraband 

through “constructive possession.” Commonwealth v. Hopkins, 67 A.3d 

817, 820 (Pa. Super. 2013). 

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.

Id. (citation omitted).

An analysis of constructive possession is unnecessary in the present 

case. Here, the testimonial evidence that the officers presented, and which 

the fact-finder chose to find credible, established that Appellant was in 

actual possession of the handgun. N.T., 2/5/16, at 13, 17, 31, and 45. 

Nevertheless, Appellant avers that this testimony was insufficient. 

Appellant’s Brief at 12. Appellant is mistaken. The officers’ testimony alone 

was sufficient to establish the elements of the crime. See Commonwealth 

v. Robinson, 817 A.2d 1153, 1161-1162 (Pa. Super. 2003) (holding that 

where the victim testified her attackers brandished handguns, but where no 

handgun was discovered on the appellant’s person thirty minutes after the 
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robbery, the victim’s testimony alone was sufficient to establish possession 

of a firearm because the “[a]ppellant could have easily discarded the gun 

immediately after the robbery had been effectuated”). As noted above, the 

trial court, sitting as the finder of fact, was free to believe all, part, or none 

of the evidence presented. Sauers, 159 A.3d at 11. The trial court found 

the testimony of the officers credible and concluded, as it was free to do, 

that Appellant possessed the firearm in violation of 18 Pa.C.S. § 6105. 

Accordingly, we conclude that this issue is meritless.

For the reasons set forth above, Appellant is entitled to no relief. 

Therefore, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/1/2017
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