Commonwealth v. Blose

258 A.3d 551 (Table)

COMMONWEALTH of Pennsylvania

v.Nathan BLOSE, Appellant

No. 1391 MDA 2020

Superior Court of Pennsylvania.

Filed June 25, 2021

MEMORANDUM BY BOWES, J.:

Nathan Blose appeals from judgment of sentence of forty-two to eighty-four months of imprisonment, which was imposed following his conviction of person not to possess a firearm and firearms not to be carried without a license. We affirm.

On October 3, 2019, Appellant went to the Emergency Room at St. Luke's University Hospital Miners Campus in Coaldale for complaints of back and hip pain. As he was lying face up on the table, Dr. Adam Colombo began his physical examination. The physician was systematically touching Appellant's abdomen when he felt something hard under Appellant's clothing. He lifted Appellant's shirt to see what it was, and he observed the butt of a semiautomatic handgun with a pearlescent handle tucked into Appellant's waistband. See N.T., 9/3/20, at 30. Dr. Colombo removed the gun, and upon further examination, he noticed that it was loaded. Id . Appellant indicated that it was a family heirloom. Id . at 31. Dr. Colombo called Security and met Security Officer Corey Francis outside the treating room. Following treatment of Appellant, the physician discharged him from care.

After he was discharged, Appellant met with Security Officer Corey Francis. The security officer informed him of the hospital policy regarding firearms and asked him whether he had a license to carry and registration for the weapon. Id . at 38. Appellant did not produce the requested license. Officer Francis turned over the handgun to Officer Ryan Oldt of the Coaldale Police Department. Appellant provided his name and date of birth to the police officer, who in turn conveyed the information to the Schuylkill County Communications Center. When he was advised that there were no permits for Appellant to carry a firearm, he took Appellant into custody, retrieved the gun, and transported both to the police station. The gun's serial number was run through the JNET,¹ and no records on the gun were found.

Appellant became irate upon learning that charges would be filed against him for being a person not to carry a firearm. Following his arraignment, as Officer Oldt was handcuffing Appellant for transport, Appellant headbutted him in the forehead, causing him to fall backwards into cabinets. Officer Matthew Jungbaer, who was nearby, grabbed Appellant. They struggled, and the Officer pulled Appellant to the ground and subdued him. Id . at 57. Officer Oldt had pain in his shoulder from the altercation and was later examined and treated at the Coaldale Emergency Room.

Barbara Szczyglak of the Schuylkill County Sheriff's Office, responsible for the revocation, issuance, and oversight of licenses to carry loaded and concealed firearms in Schuylkill County, entered Appellant's name and birthdate into the system and confirmed that he did not have a license to carry a gun in that county. Id . at 41. Further investigation revealed that Appellant did not have a permit to carry in any county in the Commonwealth of Pennsylvania. Id . at 43. Corporal Jesse Oleksa of the Pennsylvania State Police, an expert in firearm and toolmark examination, conducted a function test on the semi-automatic handgun and determined that it was capable of functioning safely to discharge the appropriate type of ammunition. Id . at 80, 85. The parties stipulated that Appellant was a person prohibited from possessing a firearm. Id . at 94.

Appellant was charged with aggravated assault, simple assault, resisting arrest, person not to possess, and firearms not to be carried without a license. Following a jury trial on September 3, 2020, Appellant was acquitted of aggravated assault, simple assault, and resisting arrest, and convicted of the two firearms violations. Appellant was sentenced as aforesaid on October 14, 2020. He timely appealed and both Appellant and the trial court complied with Pa.R.A.P. 1925. Appellant presents two issues for our review:

A. Whether the jury verdict was entered in error as a matter of law, insufficient, and against the weight of the evidence regarding conviction under Count 2, Possession of Firearm Prohibited, in that the Commonwealth never established the [Appellant] knowingly, and unlawfully possess[ed] a firearm in that [Appellant] was in and emergency room seeking emergency medical care, and intent was never established.

B. Whether the jury verdict was entered in error as a matter of law, insufficient, and against the weight of evidence regarding conviction of Count 3, Firearms Not to Be Carried Without License in that the Commonwealth never established the [Appellant] was a Commonwealth resident or licensed to carry a firearm in another jurisdiction other than the Commonwealth.

Appellant's brief at 5.

Both of Appellant's issues present challenges to the sufficiency of the evidence supporting his convictions.² The following principles inform our review.

A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim[,] the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Donoughe , 243 A.3d 980, 985 (Pa.Super. 2020) (quoting Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000) (internal citations omitted)).

As to the person not to possess charge, Appellant contends that the Commonwealth failed to prove that he possessed the firearm, which is an essential element of the offense. See Commonwealth v. Antidormi , 95 A.3d 275 (Pa.Super. 2014). He argues that there was no proof that he intended to control the firearm and had knowledge of its presence, and relies upon Commonwealth v. Gladden , 311 A.2d 711 (Pa.Super. 1973), and Commonwealth v. Yaple , 273 A.2d 346 (Pa.Super. 1970), for the proposition that knowledge must be demonstrated. Appellant's claim lacks merit for the reasons that follow.

Appellant was convicted of violating 18 Pa.C.S. § 6105, "Person not to possess, use, manufacture control, sell or transfer firearms." That section provides in pertinent part:

(a) Offense defined

(1) 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). It was stipulated that he was a person not to possess a firearm because he had a conviction for an offense listed in subsection (b), and that more than sixty days had passed since that conviction. The only element requiring proof was that Appellant possessed a firearm.

Appellant's contention that the Commonwealth failed to prove possession is belied by the record. The law is well-settled that "possession can be found by proving actual possession, constructive possession, or joint constructive possession." Commonwealth v. Parrish , 191 A.3d 31, 36 (Pa.Super. 2018). It is only when a defendant is not in actual possession of the prohibited item that the Commonwealth must resort to proof of constructive possession to support the conviction. Commonwealth v. Hopkins , 67 A.3d 817, 820 (Pa.Super. 2013). 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," and it may be established by the totality of the circumstances." Id .

There was no need to resort to constructive possession in this case as Appellant had actual possession of the gun. As the trial court correctly noted, "[t]here was ample evidence for the jury to conclude that [Appellant] possessed a gun because a gun was found on his person, stuck in his waistband, underneath his clothing. The [Appellant] had actual possession of the gun." Trial Court Opinion, 12/21/20, at 5. We note further that defense counsel argued at trial that Appellant was in so much pain that he was unaware there was a gun on his person. The jury apparently rejected that scenario, and Appellant wisely does not reassert that argument on appeal. No relief is due.

Appellant's second...