Com. v. Lisby, D. ( 2018 )

J-S14022-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
DORMEN LISBY :
: No. 1042 EDA 2017
Appellant :
Appeal from the Judgment of Sentence Entered February 22, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012318-2015
BEFORE: OTT, J., McLAUGHLIN, J., and RANSOM*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 11, 2018
Appellant Dormen Lisby appeals from the judgment of sentence imposed
on February 22, 2017, for his convictions of possession of a firearm by a
prohibited person, carrying a firearm without a license, carrying a firearm on
a public street in Philadelphia, and possession of a firearm with an altered
manufacturer’s number.1 He challenges the sufficiency of the evidence. We
affirm on the basis of the trial court opinion.
Lisby was tried without a jury on November 22, 2016. The trial court
recounted the facts established at trial as follows:
On November 17, 2015, at about 11:00 p.m., Philadelphia
Police Officer Timothy Stephen and his partner Keith White were
on routine patrol in the 3600 block of Germantown Avenue in
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6105, 6106, 6108, and 6110.2, respectively.
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Philadelphia when Officer Stephen observed a [D]odge Caravan
with Delaware plates, the windows of which were heavily tinted
making it impossible to see inside the vehicle. When the Caravan
pulled to the curb without the driver using his turn signal the
officers activated the emergency lights on their police car and
pulled up behind it. Officer White activated the spot light[] on top
of the police car and directed it at the Caravan. However, because
of the tint, the officers could only see the silhouettes of the three
individuals inside it, two of whom were sitting in the front driver
and passenger seats and the third male, identified as Jafiq Barnes,
was sitting in the rear of the Caravan. From his patrol car, Officer
Stephen observed the vehicle rock and saw the silhouettes of the
two persons in the front seat moving about in their seats. He did
not see the silhouette of the person in the rear of the Caravan
move at all.
Upon observing the foregoing, Officers Ste[ph]en and White
exited their patrol car; Officer Stephen walked up to the front
passenger side window of the Caravan and Officer White went to
the driver’s side window and began speaking to the vehicle’s
driver[.] Officer Stephen opened the front passenger door so that
he could hear the conversation between the driver and Officer
White for his and Officer White’s safety. When he did so, Officer
Stephen observed [Lisby] sitting in the front passenger seat with
a cigar and green leafy material in his lap and a jar in the door
pocket, which the officer knew, based on his experience, is used
to hold marijuana. He also saw a third male sitting on a bench in
the rear of the vehicle, the middle seat of which was missing.
Upon making these observations, Officer Stephen asked
[Lisby] if he had identification and he said he did not. During the
conversation, [Lisby] moved, which caused the cigar to fall onto
the floor of the Caravan. [Lisby] also appeared to become very
nervous; his hands began shaking, he started breathing very
heavily, and he repeatedly asked Officer Stephen if he was in
trouble. As he was speaking to [Lisby], Officer Stephen noticed a
half[-]burned marijuana cigarette in a cup holder in the center
console and also detected a strong odor of marijuana inside the
vehicle.
Based on their observations, the officers concluded that they
had enough information to remove the occupants from the
Caravan and placed them in the backseat of their patrol car so
that they could search the vehicle. Once the three occupants were
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secured, the officers returned to the Caravan and began searching
it for contraband. In the pocket of a jacket on the seat on which
[Lisby] was sitting, Officer Stephen recovered a .45 caliber FEG
hand gun loaded with four or five rounds, one of which was in the
chamber. After recovering the firearm, both [Lisby] and the driver
of the vehicle were taken into custody and the handgun was
placed on a property receipt.
Jafiq Barnes, who was seventeen years old at the time,
spoke to Officer Stephen that evening and told him that he owned
both gun[s] found inside the Caravan[2] and that he put one of the
guns [] under the front passenger seat and the other one under
the driver’s seat as the officers were approaching the Caravan.
An examination of the .45 caliber handgun revealed that it
was operable and that its serial number had been obliterated.
In his defense, [Lisby] called Robert Rachlin as a witness.
In the course of working in a law office as an intern, Mr. Rachlin
interviewed Jafiq Barnes, who told him that he was sitting in the
rear of the Caravan when the police commenced their
investigation. Mr. Barnes related that when he first got into the
Caravan he got into its front passenger seat because [Lisby] had
yet to be picked up and that after [Lisby] got into the vehicle, he
placed a Colt .45 handgun under the front passenger seat and
went to the rear of the Caravan. Finally, Barnes stated to Mr.
Rachlin that the .45 caliber handgun recovered by Officer Stephen
belonged to him and not [Lisby] and that the other gun discovered
inside the Caravan did not belong to him.
Trial Court Opinion, filed October 16, 2017, at 2-4 (citations to the notes of
testimony and footnote omitted). The court convicted Lisby of the above-listed
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2 A second gun was recovered from the “radio area of the vehicle.” See Motion
to Suppress Evidence, Ex. A (Philadelphia Police Department Investigation
Report); N.T., 11/22/16, at 24 (trial court sustaining objection to testimony
about “what was on the radio” because “Mr. Lisby is not charged with those”);
id. at 43 (Officer Stephen recounting that he told Jafiq Barnes that there was
a gun recovered from “by the radio”).
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offenses, and sentenced him to an aggregate of 4 to 10 years’ incarceration
followed by five years’ probation.
Lisby appealed, and raises the following issue:
Is the evidence sufficient as a matter of law to sustain [Lisby]’s
conviction for the crimes of violations of the uniform firearms act,
18 Pa.C.S.A. §§ 6105, 6106, 6108, and 6110.2, where the
competent evidence of record did not establish beyond a
reasonable doubt that [Lisby] constructively possessed the
firearm recovered in a vehicle in which [Lisby] was a passenger
where the evidence established the following:
(1) when [Lisby] was removed from the vehicle by police,
they did not immediately observe a gun on the seat that
[Lisby] had been seated in,
(2) another firearm was recovered hidden beneath the radio
in the dashboard of the vehicle,
(3) the driver of the vehicle was attempting to block the
police from viewing the radio area where the other gun was
hidden,
(4) there was a third passenger in that vehicle—Mr.
Barnes—who stated to police that both firearms belonged to
him, and
(5) the vehicle did not belong to [Lisby].
Lisby’s Br. at 4.
“Because evidentiary sufficiency is a question of law, our standard of
review is de novo and our scope of review is plenary.” Commonwealth v.
Ballard, 80 A.3d 380, 390 (Pa. 2013) (citation omitted). We must determine
whether, when viewed in a light most favorable to the verdict winner, the
evidence at trial and all reasonable inferences therefrom are sufficient for the
trier of fact to find that each element of the crime charged is established
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beyond a reasonable doubt. See Commonwealth v. Dale, 836 A.2d 150,
152 (Pa.Super. 2003). “The Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence.” Commonwealth v. Brown, 23 A.3d 544, 559
(Pa.Super. 2011) (en banc) (citation omitted).
Further, “[a]s an appellate court, we do not assess credibility nor do we
assign weight to any of the testimony of record.” Commonwealth v. Kinney,
863 A.2d 581, 584 (Pa.Super. 2004) (citation omitted). Therefore, we will not
disturb the verdict “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.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa.Super.
2007) (citation omitted).
To establish constructive possession of contraband, the Commonwealth
must show that the defendant has “the ability to exercise conscious dominion”
over the contraband; that is, “the power to control the contraband and the
intent to exercise that control.” Commonwealth v. Valette, 613 A.2d 548,
550 (Pa. 1992). The “intent to maintain a conscious dominion may be inferred
from the totality of the circumstances,” and “constructive possession may be
found in one or more actors where the item in issue is in an area of joint
control and equal access.” Commonwealth v. Johnson, 26 A.3d 1078, 1094
(Pa. 2011) (citations and brackets omitted).
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The trial court concluded that (1) the Commonwealth presented
sufficient evidence that Lisby constructively possessed the firearm found in a
jacket lying on the seat on which Lisby was sitting, because “[i]ts location
allowed [the court] to infer that [Lisby] not only was aware of the existence
of the firearm but also that he had the power to control it,” and Lisby’s “furtive
movements demonstrate[d] knowledge of guns or contraband located in close
proximity”; and (2) most of Lisby’s challenges went to the weight, and not the
sufficiency of the evidence. See Trial Ct. Op. at 6-7.
After a review of the record, the briefs of the parties, the applicable law,
and the well-reasoned opinion of the Honorable Daniel D. McCaffery, we hold
that there was sufficient evidence presented to establish beyond a reasonable
doubt that Lisby constructively possessed the firearm. Thus, we affirm on the
basis of the trial court’s opinion, which we adopt and incorporate herein.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/18
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Circulated 04/25/2018 03:56 PM