Com. v. Barnes, G. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
GEORGE LEE BARNES
Appellant No. 1104 MDA 2013
Appeal from the Judgment of Sentence May 13, 2013
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000826-2012
BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 22, 2014
George Lee Barnes appeals from the judgment of sentence entered
May 13, 2013, in the Luzerne County Court of Common Pleas. Barnes was
jury found him guilty of carrying a firearm without a license, resisting arrest,
possession with intent to deliver (PWID) cocaine, and possession of cocaine.1
On appeal, Barnes challenges the sufficiency of the evidence supporting his
conviction of possession of a firearm. For the reasons set forth below, we
affirm.
The evidence presented at trial was as follows. Officer John Sosnoski
of the Kingston Borough Police Department was on routine patrol on
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1
18 Pa.C.S. §§ 6106(a)(1) and 5104, and 35 P.S. §§ 780-113(a)(30) and
780-113(a)(16), respectively.
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December 23, 2011, when, at approximately 7:44 p.m., he observed a dark
colored sedan driving southbound on Route 11 with the lights off. The sedan
matched the description of a vehicle that had been stolen at gunpoint the
previous night.2 Officer Sosnoski, who was traveling northbound on Route
11, made a U-turn and activated his lights so that he could stop the vehicle
to investigate. However, when he began following the vehicle, the vehicle
took off at a high rate of speed, swerving in and out of the north and
southbound lanes. Officer Sosnoski lost sight of the vehicle for a brief
period, but then saw that the car had crashed into a telephone pole. N.T.,
3/11/2013, at 52-53.
were pinned in the crash. Officer Sosnoski also observed that the front seat
passenger, later identified as Barnes, was uninjured, and another passenger,
who was sitting in the backseat behind the driver, suffered a minor injury.
Id. at 54. The officer approached the vehicle and asked the occupants to
show their hands, which they refused to do. Because the driver was injured,
Officer Sosnoski approached the passenger side where Barnes was sitting.
At this point, additional officers had arrived to assist Officer Sosnoski. When
Officer Sosnoski attempted to escort Barnes out of the vehicle, Barnes
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2
Officer Sosnoski testified that, the night before, the Wilkes-Barre police
stolen outside of Wilkes-
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officers. Id. at 56-57. He struck one officer, causing her to fall to the
ground. As the other officers struggled to contain Barnes, they all fell to the
subdue him. Id. at 58.
During the scuffle, Officer Sosnoski noticed a cigarette packet fall to
the ground. Afterwards, the officers opened it and discovered what
appeared to be crack cocaine. Furthermore, inside the vehicle, Officer
Sosnoski observed a .40 caliber handgun protruding from underneath the
front passenger seat, with the grip facing the front of the vehicle.3 Id. at
60. He explained that the gun wa
Id. at 88-89.
Barnes was arrested and charged with carrying a firearm without a
license, resisting arrest, PWID and possession of cocaine. On March 12,
2013, a jury returned a verdict of guilty on all charges. Barnes was
imprisonment for
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3
grip and the back butt of
3/11/2013, at 87.
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PWID,4
timely appeal followed.5
The sole issue raised on appeal challenges the sufficiency of the
the Commonwealth failed to prove that he had either actual or constructive
possession of the firearm recovered from the stolen vehicle.
Our review of a challenge to the sufficiency of the evidence is well-
settled:
A claim challenging the sufficiency of the evidence presents a
question of law. Commonwealth v. Widmer, 560 Pa. 308, 744
A.2d 745, 751 (2000). We must d
evidence is sufficient to prove every element of the crime
Commonwealth v. Hughes, 521
in the light most favorable to the Commonwealth as the verdict
winner, and accept as true all evidence and all reasonable
inferences therefrom upon which, if believed, the fact finder
Id.Our Supreme Court has instructed:
[T]he facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence.
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4
His possession charge merged for sentencing purposes.
5
On June 11, 2013, the trial court ordered Barnes to file a concise
statement of matters complained of on appeal. Thereafter, trial counsel was
granted permission to withdraw and present counsel was appointed. On July
3, 2013, present counsel filed a motion seeking an extension of time to file a
concise statement since the trial transcript had not yet been transcribed.
filed a concise statement.
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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. 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. Ratsamy, 594 Pa. 176, 934 A.2d 1233,
1236 n. 2 (2007).
Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa. Super. 2013).
The crime of carrying a firearm without a license is defined in Section
6106 of the Crimes Code as follows:
[A]ny 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.
18 Pa.C.S. § 6106(a)(1). Therefore, in order to secure a conviction under
the facts of the present case, the Commonwealth was required to prove that
Barnes was in possession of the firearm recovered from the stolen vehicle,
without a valid license to carry a firearm. Here, Barnes does not challenge
the fact that he had no license to carry a firearm, but rather, contends the
Commonwealth failed to prove he had constructive possession of the firearm
recovered from the vehicle.
When a firearm or other prohibited item is not discovered on a
prove the defendant had constructive possession of the item.
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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.
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.
Super.2012), appeal denied, [] 63 A.3d 1243 (2013) (internal
quotation marks and citation omitted). Additionally, it is
possible for two people to have joint constructive possession of
an item of contraband. Commonwealth v. Sanes, 955 A.2d
369, 373 (Pa. Super. 2008), appeal denied, 601 Pa. 696, 972
A.2d 521 (2009).
Commonwealth v. Hopkins, 67 A.3d 817, 820-821 (Pa. Super. 2013),
appeal denied
dominion may be inferred from the totality of the circumstances, and
circumstantial evidence may be used to establish a defendant's possession
Commonwealth v. Harvard, 64 A.3d 690, 699
(Pa. Super. 2013) (citation omitted), appeal denied, 77 A.3d 636 (Pa. 2013).
Here, the evidence presented at trial established that Barnes was a
passenger in a vehicle that fled from police. Once the vehicle was stopped,
as a result of a crash, Barnes was uncooperative and physically assaulted
the police officers as they tried to extract him from the vehicle.
seat, with the grip and bottom of the butt protruding in plain view. In fact,
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Officer Sosnoski explained that the gun was placed in a position as to allow
the passenger easy access. N.T., 3/11/2013, at 89.
Barnes argues, however, that the Commonwealth failed to prove his
possession of the firearm because there were two other occupants in the
vehicle who had access to the gun. Barnes emphasizes that one officer
refusing to show his hands before he was extracted from the vehicle. N.T.,
3/11/2013, at 111. Moreover, Barnes asserts the Commonwealth presented
no evidence to establish that he even knew the gun was in the vehicle. In
support, he relies on two appellate decisions, which he claims contain similar
circumstances: Commonwealth v. Armstead, 305 A.2d 1 (Pa. 1973) and
Commonwealth v. Duffy, 340 A.2d 869 (Pa. Super. 1975). We conclude
Barnes is entitled to no relief.
First, the cases Barnes cites for support are readily distinguishable. In
Armstead, supra, police officers conducted a traffic stop, and ordered the
driver and the passenger, Armstead, out of the vehicle. The officers who
conducted the stop did not see a weapon on the front seat. However, when
additional officers arrived as backup, they observed a .38 caliber pistol lying
unlawful possession of a firearm, the Supreme Court held that the
that the weapon was on the person of the driver during the time appellant
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was a passenger, and that the driver discarded the weapon as he got out of
Armstead, supra, 305 A.2d at 2.6 Here, however, the officers
to do so.
In Duffy, supra, the defendant was also a passenger in a car stopped
by police for a routine traffic stop. The driver was not the registered owner
of the vehicle, and, after he was unable to produce identification, the officer
asked him to proceed to the station. Once there, the driver gave police
consent to search the vehicle. During the search, they recovered a pistol
Duffy, supra,
340 A.2d at 870. Although Duffy was convicted of possession of the weapon
and instruments of crime, this Court reversed that conviction on appeal. In
a one-
that appellant knew of
Id., citing
Armstead, supra. Conversely, in the present case, the firearm was not
er, protruding from
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It merits mention the Armstead Court also noted that the Commonwealth
had doubts as to the sufficiency of the evidence in that case, and even filed
with defense counsel a joint petition for reconsideration when the case was
before this Court. However, this Court denied that request. Armstead,
supra, 305 A.2d at 2, n.1.
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underneath his seat in plain view of the officers once Barnes was removed
from the car.
Moreover, while it is true there were other occupants in the vehicle,
the evidence established that Officer Sosnoski observed the firearm
protruding
front of the vehicle. As the gun was visible to the officers, it was reasonable
for the jury to conclude that the gun was also visible to Barnes.
Furthermore, the way it was secreted under the seat allowed for easy access
by Barnes, and the evidence did not establish that the firearm was easily
accessible to either the driver or the back seat passenger, who was sitting
behind the driver. Therefore, the totality of the circumstances surrounding
the discovery of the firearm provided sufficient circumstantial evidence for
the jury to find that Barnes had constructive possession of the weapon.
Therefore, viewing the evidence in the light most favorable to the
Commonwealth, we conclude that B
the evidence must fail. Accordingly, we affirm the judgment of sentence.7
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7
.
§ 9712.1. However, on November 25, 2013, an en banc panel of this Court
in Commonwealth v. Watley, 81 A.3d 108 (Pa. Super. 2013) (en banc),
held that the mandatory minimum sentencing provision in Section 9712.1
was unconstitutional in light of the Unite
Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013). Id. at
112, n.2.
(Footnote Continued Next Page)
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2014
_______________________
(Footnote Continued)
In Alleyne
ted to
Alleyne, 133 S.Ct. at
2155. The Court expanded upon its holding in Apprendi v. New Jersey,
530 U.S. 466 (2000), which applied only to facts that increased the
statutory maximum for a crime, to include facts which increase the
mandatory minimum sentence. Id. Accordingly, under the holding of
Alleyne
Here, however, the jury found Barnes guilty of both PWID, for the
drugs recovered after the struggle just outside the car, and carrying a
firearm without a license, for the gun recovered under his seat in the car.
Accordingly, the fact that Barnes sold drugs while in possession or control of
a firearm was determined by the jury as evident from its verdict. Moreover,
because Barnes was sentenced prior to the decision in Alleyne, we find that
imposition of the mandatory minimum sentence set forth in Section 9712.1
was proper.
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