Com. v. Batcher, A. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ARRIENNE BATCHER, :
:
Appellant : No. 2022 WDA 2013
Appeal from the Judgment of Sentence November 21, 2013,
Court of Common Pleas, Allegheny County,
Criminal Division at No(s): CP-02-CR-0015016-2012
and 2013-09464
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ARRIENNE BATCHER, :
:
Appellant : No. 1996 WDA 2014
Appeal from the Judgment of Sentence November 21, 2013,
Court of Common Pleas, Allegheny County,
Criminal Division at No(s): CP-02-CR-0009464-2013
BEFORE: DONOHUE, SHOGAN and STABILE, JJ.
MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 4, 2015
Arrienne Batcher (“Batcher”) appeals from the judgments of sentence
entered following his convictions of persons not to possess firearms,
18 Pa.C.S.A. § 6105, and firearms not to be carried without a license,
18 Pa.C.S.A. 6106.1 We affirm.
1
Batcher’s appeals from these separate judgments of sentence have been
consolidated.
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The trial court summarized the factual background in this case as
follows:
On October 24, 2012, Detectives Matthew Turko,
Justin Simoni and Higgins were patrolling the
Homewood neighborhood of Pittsburgh in an
unmarked police car. They were patrolling the area
due to recent shootings in an effort to develop
information about the shootings, provide a
reassuring police presence in the community and be
a visible deterrent to other criminals. To this end,
they had spoken with several residents in an attempt
to make their presence known and develop
information.. One such person that they spoke with,
at approximately 8:30 p.m., was [Batcher], who was
standing around with several other people. The
detectives asked him for his ID, spoke briefly to him
and then allowed him to leave the area.
Approximately fifteen (15) minutes later, as the
police vehicle traveled on Brushton Avenue where a
recent shooting had occurred, the detectives
observed three (3) males standing in the shadows
next to a garage used to repair vehicles. Detective
Higgins illuminated the men with a flashlight. Two
(2) of the men did not react to the vehicle or the
flashlight, but [Batcher], who was standing between
the two (2) men, appeared to be surprised or
shocked, as described by Detectives Turko and
Simoni.. As Detective Higgins stopped the car,
[Batcher] reached into his waistband with his right
hand, turned around and walked into the garage,
away from the detectives. Detective Turko testified
that, based on his experience as a narcotics
detective, guns generally are carried in the
waistband, and he believed that [Batcher] was either
retrieving a firearm or hiding a firearm in his
waistband at that time.
The three (3) detectives got out of the vehicle and
followed [Batcher] into the nearby garage, which had
a concrete floor. The detectives observed [Batcher]
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ducking into the right front corner of the garage
pulling an object from his waistband. Detective
Turko then observed [Batcher] frantically moving his
right hand as if there was something in his hand that
he needed to get rid of quickly. As [Batcher] moved
his arm in a tossing motion, Detectives Turko and
Simoni heard the sound of a metallic object clanking
on the concrete floor. Detective Turko described the
sound as the metallic slide of a gun hitting a
concrete floor. Detective Turko had previously
accidentally dropped a gun on concrete, and it had
made a similar sound.
After hearing the noise of metal impacting on
concrete, Detective Turko entered the garage and
detained [Batcher], while Detective Simoni went into
the garage to look for the firearm. The garage was
fairly well-lit, with two fluorescent lights in the center
of the garage. The only item in the immediate
vicinity of [Batcher] was a bench seat from a pick-up
truck, which Detective Turko would have been able
to see him move. Deyective [sic] Turko was
confident that the sound of metal hitting or
impacting concrete did not come from any
movement of the bench seat. As Detective Turko
arrested him, [Batcher] asked the detective why
they were stopping him and stated that he was going
into the garage to retrieve his cell phone. A cell
phone was found on [Batcher] at the time of his
arrest.
A firearm, a .380 caliber Kel-Tec pistol with a barrel
of 2 ¾ inches, was found approximately two (2) feet
from the area where [Batcher] had stood in the
garage and was seen motioning with his arm. The
gun was located behind the bench seat of the pick-
up truck. The firearm was loaded, containing six (6)
rounds of ammunition. The gun was taken to the
Allegheny County Medical Examiner's Office crime lab
and found to be operable and in good working
condition.
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Trial Court Opinion, 7/22/14, at 2-5 (footnote and citations to notes of
testimony omitted).
Batcher was arrested and charged with the aforementioned crimes.
Prior to trial, the Commonwealth severed the charges. A jury trial on the
firearms not to be carried without a license charge (“§ 6106 charge”)
commenced in July 2013, but ended in a mistrial during jury deliberations.
A second jury trial on the § 6106 charge occurred on August 20-21, 2013, at
the conclusion of which he was found guilty. Subsequently, on November
21, 2103, Batcher appeared for a bench trial on the persons not to possess
firearms charge (“§ 6105 charge”). The parties stipulated to the
introduction of the testimony from both the July and August trials, and the
Commonwealth offered additional evidence in the form of certified
convictions that would make Batcher a person prohibited from possessing a
firearm. The trial court convicted Batcher of the § 6105 charge. It later
sentenced him to three to six years of incarceration on the § 6106 conviction
and four to eight years of incarceration on the § 6105 conviction, order to
run concurrently. This timely appeal follows.
On appeal, Batcher argues only that the evidence was insufficient to
establish that he possessed the firearm recovered from the garage, and
therefore that neither of his convictions can stand. Batcher’s Brief at 19.
When reviewing a sufficiency of the evidence claim, “we must determine
whether the evidence admitted at trial, as well as all reasonable inferences
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drawn therefrom, when viewed in the light most favorable to the verdict
winner, are sufficient to support all elements of the offense.”
Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super. 2013) (quoting
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011)). When
performing this review, “we may not reweigh the evidence or substitute our
own judgment for that of the fact finder.” Id. The Commonwealth may rely
solely on circumstantial evidence to support a conviction, and 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. Hutchinson, 947 A.2d 800, 806 (Pa. Super. 2008).
The crimes of which Batcher was convicted are defined as follows:
§ 6105. Persons not to possess, use,
manufacture, control, sell or transfer firearms
(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.A. § 6105(a).
§ 6106. 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
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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.
18 Pa.C.S.A. § 6106(a).
Thus, to be convicted of either crime, the Commonwealth was required
to prove that Batcher possessed a firearm. The Commonwealth could
establish this element of the offenses by proving either actual possession or
constructive possession of a firearm.
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.”
Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (citation
omitted). “In order to prove that a defendant had constructive possession of
a prohibited item, the Commonwealth must establish that the defendant had
both the ability to consciously exercise control over it as well as the intent to
exercise such control.” Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa.
Super. 2013). (quoting Commonwealth v. Gutierrez, 969 A.2d 584, 590
(Pa. Super. 2009)). “An intent to maintain a conscious dominion may be
inferred from the totality of the circumstances, and circumstantial evidence
may be used to establish a defendant's possession of drugs or contraband.”
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The evidence and all reasonable inferences therefrom, when viewed in
the light most favorable to the Commonwealth, establishes that as three
undercover detectives drove down Brushton Avenue at approximately 8:45
in the evening on October 24, 2012, they saw three men standing just in
front of a garage. N.T., 7/18/13, at 42-43; N.T., 8/20/13, at 38, 74-75.
From a distance of approximately ten feet, one detective illuminated the
men with a flashlight. N.T., 7/18/13, at 42-43, 68; N.T., 8/20/13, at 38, 75.
Two of the men exhibited no response to the light while the third, Batcher,
displayed a look of panic. N.T., 7/18/13, at 43; N.T., 8/20/13, at 40, 75.
Batcher immediately reached into his waistband, turned around and entered
the garage. N.T., 7/18/13, at 40, 43; N.T., 8/20/13, at 75. As Batcher did
this, the detectives pulled over in front of the garage and exited the vehicle.
N.T., 7/18/13, at 69; N.T., 8/20/13, at 75. Detective Matthew Turko
followed Batcher into the garage, which was partially lit by two overhead
fluorescent lights. N.T., 7/18/13, at 45, 60; N.T., 8/20/13, at 42. He
observed Batcher’s right arm move in a manner consistent with throwing
and then heard the sound of metal hitting the concrete floor. N.T., 7/18/13,
at 45, 47-48 N.T., 8/20/13, at 42-43. As he secured Batcher, Detective
Justin Simoni, who also heard the sound of metal hitting the concrete floor,
took two or three steps into the garage and found a gun in the area toward
which Batcher had made the throwing motion. N.T., 7/18/13, at 69; N.T.,
8/20/13, at 76. The gun was found approximately two to three feet from
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Batcher. N.T., 7/18/13, at 70; N.T., 8/20/13, at 76. There were no other
metal items in that portion of the garage except for a four to five foot long
bench seat from a truck, which had metal legs. N.T., 7/18/13, at 48; N.T.,
8/20/13, at 46. Detective Turko, who was the first detective to enter the
garage, testified that the metallic sound did not come from the bench seat,
as he was so close to Batcher entering the garage, in both time and space,
that he would have seen if Batcher moved the bench seat. N.T., 7/18/13, at
48; N.T., 8/20/13, at 46. We have no hesitancy in concluding that this
evidence, when viewed as our standard of review requires, establishes that
Batcher had both the ability to consciously exercise control over the gun as
well as the intent to exercise such control. See Harvard, 64 A.3d at 699.
Batcher was seen reaching into his waistband and then making a throwing
motion, and a gun was recovered from the area into which he made the
throwing motion. He was apprehended immediately, within a few feet of
where the gun was found. There was no other item in the vicinity that could
have made the sound of metal on concrete the detectives heard.
We note that Batcher takes the position that “this is not a case in
which the Commonwealth could establish guilt via proof of constructive, as
opposed to actual, possession. This is so because … [the gun] was not, at
the moment it was found, an object over which he either exercised control or
intended to exercise control. To the contrary, [Batcher] … plainly wanted no
part of the firearm found in the corner of the garage[.]” Batcher’s Brief at
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22 (citations omitted). Batcher seems to argue that because he discarded
the gun, or at least was not attempting to gain control of the gun at the time
it was discovered, he cannot be found to have constructively possessed it.
He is mistaken. Dominion and control over an item, as required for
constructive possession, can be exhibited by the discarding of an item. See,
e.g., Commonwealth v. Mann, 820 A.2d 788, 793 (Pa. Super. 2003)
(holding evidence sufficient to establish defendant possessed firearm, where
he was observed throwing firearm in vacant lot). As the evidence here, and
all reasonable inferences therefrom, is sufficient to establish that Batcher
threw the firearm into the portion of the garage in which it was found, it
matters not that he was not attempting to gain control of it when the police
discovered it.
The balance of Batcher’s brief is a recasting of the evidence in a light
that favors Batcher’s position. Doing so is but an attempt to have this Court
reweigh the evidence and make credibility determinations, which we cannot
do. Cox, 72 A.3d at 721. Batcher also attempts to analogize the facts of his
case to those in Commonwealth v. Boatwright, 4523 A.2d 1058 (Pa.
Super. 1982), in which this Court found the evidence insufficient to establish
constructive possession. Batcher’s argument is unavailing, as this case is
readily distinguishable. In Boatwright, the police received a radio call
reporting three “suspicious” men sitting in a car at a particular location.
Officers responded and as they approached the vehicle, they observed
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Boatwright, who was seated in the front passenger’s seat, “moving towards
his left rear. The officer could not see appellant's hand or arm, only a
movement of his body.” Boatwright, 453 A.2d at 1058. After removing
Boatwright from the vehicle, the officer observed a firearm on the left rear
floor of the vehicle. There were also men seated in the driver’s seat and the
left rear seat. The car was registered to the driver’s girlfriend and the
firearm was registered to a woman unknown to any of the men. We
concluded that these facts could establish no more than Boatwright’s mere
presence at the scene where the gun was found, and that mere presence
was not sufficient to establish constructive possession. Id. at 1059. These
facts are markedly different from the facts of the present case, in which the
totality of the circumstances, as established by the evidence and viewed in
the light most favorable to the Commonwealth, tie Batcher to the firearm; in
other words, in this case, there is evidence beyond Batcher’s mere presence
at the scene where the firearm was discovered.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/2015
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