Commonwealth v. Alston

1

COMMONWEALTH OF PENNSYLVANIA v. DAVID ALSTON Appellant

No. 3060 EDA 2022

No. J-S36030-23

Superior Court of Pennsylvania

January 18, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered July 22, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007105-2019.

Benjamin D. Kohler, Esq.

BEFORE: BOWES, J., NICHOLS, J., and KING, J.

MEMORANDUM

NICHOLS, J.

Appellant David Alston appeals from the judgment of sentence imposed following his convictions for possession of firearm prohibited, firearms not to be carried without a license carrying firearms in public in Philadelphia, and possession of a firearm with the manufacturer number altered.^[1] Appellant raises challenges to the sufficiency of the evidence, the weight of the evidence, and the discretionary aspects of sentence. We affirm.

The trial court summarized the underlying facts of this matter as follows:

[T]estimonial evidence was presented to the jurors tending to establish [Appellant's] constructive possession of [a] firearm. Specifically, responding officers testified that they received reports that three men were in a specific area of the [City of Philadelphia], all were armed, and reporters heard about 30 gunshots. When police responded to the area roughly three minutes later, they found three men who matched the physical descriptions contained in the reports. Police approached the three men and found [Appellant] pushing the wheelchair of one of the other men. A black [bag] was hanging on the back of the wheelchair directly in front of [Appellant], within which was an operable and loaded nine-millimeter firearm with its handle pointed upwards towards [Appellant]. Additionally, the t-shirt recovered from [Appellant's] person underwent forensic testing and was found to be carrying gunshot residue. . . . The jury received an instruction regarding constructive possession and returned guilty verdicts on each of the challenged offenses.

Trial Ct. Ltr., 12/15/22, at 1 (unpaginated).

At sentencing, the trial court imposed an aggregate sentence of seven to fourteen years' incarceration. Appellant timely filed post-sentence motions, which the trial court denied by operation of law on December 2, 2022.

Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) statement. In lieu of a Rule 1925(a) opinion, the trial court wrote a letter to this Court addressing Appellant's sufficiency claim.^[2]

On appeal, Appellant raises the following claims for review:

1. The jury's verdict of guilty on the charges of carrying a firearm without a license, pursuant to 18 Pa.C.S. § 6106, carrying a firearm on the streets of Philadelphia, 18 Pa.C.S. § 6108, carrying a firearm with an altered serial number, 18 Pa.C.S. § 6110.2, was insufficient as a matter of law as there was no testimony that defendant: (a) was in actual possession of a firearm, (b) the firearm was concealed or (c) that defendant was in constructive possession of the firearm on the date of the alleged offense.

2. The jury's verdict of guilty on the charges of carrying a firearm without a license, pursuant to 18 Pa.C.S. § 6106, carrying a firearm on the streets of Philadelphia, 18 Pa.C.S. § 6108, carrying a firearm with an altered serial number, 18 Pa.C.S. § 6110.2 and possession of a firearm prohibited, was against the weight of the evidence as there was no evidence presented to the jury that [Appellant] committed the possessory offense of being in possession of a firearm on the date of the alleged offense as [Appellant] was pushing a wheelchair which ostensibly had a shopping bag on the back which was never produced at trial.

3. The trial court abused its discretion in sentencing [Appellant] in the aggravated range to outside of the guideline range of the Pennsylvania Sentencing Guidelines by sentencing [Appellant] to seven (7) to fourteen (14) years of state incarceration on the lead charge of possession of a firearm prohibited, pursuant to 18 Pa.C.S. [§] 6105 and failed to articulate the reasons necessitating the sentence which was ultimately imposed.

Appellant's Brief at 6-7 (some formatting altered).

Sufficiency of the Evidence

In his first claim, Appellant challenges the sufficiency of the evidence supporting his convictions for violations of the Uniform Firearms Act (VUFA). Appellant's Brief at 15-26. Specifically, Appellant argues that the Commonwealth failed to demonstrate that he possessed the firearm in question. Id. at 18-19. In support, Appellant contends that there was no witness testimony establishing that Appellant "ever touched the firearm or was in actual possession of the firearm." Id. at 19. Further, Appellant contends that there was insufficient evidence of constructive possession because "the firearm was in a bag in which it was never testified that he had access to[]." Id.

In reviewing a challenge to the sufficiency of the evidence, our standard of review is as follows:

Because a determination of evidentiary sufficiency presents a question of law, our standard of review is de novo and our scope of review is plenary. In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, were sufficient to prove every element of the offense beyond a reasonable doubt. The facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. It is within the province of the fact-finder to determine the weight to be accorded to each witness's testimony and to believe all, part, or none of the evidence. The Commonwealth may sustain its burden of proving every element of the crime by means of wholly circumstantial evidence. Moreover, as an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the factfinder.

Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation omitted and some formatting altered).

As noted previously, Appellant was charged with three VUFA offenses, all of which required the Commonwealth to prove that he possessed a firearm. See 18 Pa.C.S. §§ 6106(a)(1), 6108, and 6110.2, respectively. Possession can be established "by proving actual possession, constructive possession, or joint constructive possession." Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018) (citation omitted). "Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not." Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super. 2018) (citation omitted).

This Court has explained:

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. Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement. 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. To aid application, we have held that constructive possession may be established by the totality of the circumstances.

It is well established that, as with any other element of a crime, constructive possession may be proven by circumstantial evidence. 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.

Parrish, 191 A.3d at 36-37 (citations omitted and formatting altered).

Here, the trial court addressed Appellant's claims as follows:

At trial, extensive testimonial evidence was presented to the jurors tending to establish [Appellant's] constructive possession of the firearm. Specifically, responding officers testified that they received reports that three men were in a specific area of the city, all were armed, and reporters heard about 30 gunshots. When police responded to the area roughly three minutes later, they found three men who matched the physical descriptions contained in the reports. Police approached the three men and found [Appellant] pushing the wheelchair of one of the other men. A black [bag] was hanging on the back of the wheelchair directly in front of [Appellant], within which was an operable and loaded nine-millimeter firearm with its handle pointed upwards towards [Appellant]. Additionally, the t-shirt recovered from [Appellant's] person underwent forensic testing and was found to be carrying gunshot residue.

Trial Ct. Ltr. at 1.

Following our review of the record, and in viewing this evidence in the light most favorable to the Commonwealth, we conclude that there was sufficient evidence demonstrating that Appellant possessed the firearm. See Palmer, 192 A.3d at 89. The evidence reflects that the firearm at issue was located in such a location where Appellant had the ability and intent to exercise dominion and control over the firearm, which is sufficient to prove constructive possession. See Commonwealth v. Peters, 218 A.3d 1206, 1209 (Pa. 2019) (stating that "[d]ominion 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" (citations omitted)); Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa. Super. 2014) (en banc) (providing that "intent to maintain a conscious dominion may be inferred from the totality of the circumstances[.]" (citation omitted)). Accordingly, Appellant is not entitled to relief on this claim.

Appellant also challenges the sufficiency...