Com. v. Nash, K. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KARL NASH, JR. :
:
Appellant : No. 539 WDA 2019
Appeal from the Judgment of Sentence Entered March 15, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0014128-2018
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED MAY 11, 2020
Appellant Karl Nash appeals from the judgment of sentence imposed
following his non-jury trial and conviction for possession of a firearm by a
prohibited person.1 Appellant challenges the sufficiency of the evidence that
he possessed a firearm. We affirm.
The trial court aptly summarized the trial testimony as follows:
On September 1, 2018, Officer Matthew McDanel[, a 24-year
police veteran,] was on patrol in the borough of Glassport,
Pennsylvania. At approximately 12:35 a.m., he received a
dispatch call about an armed male at [a local bar]. [Appellant]
was identified by name in the dispatch as being in the parking lot
and threatening other people with a firearm. As Officer McDanel
arrived on the scene, he observed [Appellant] walk toward him.
Officer McDanel exited his vehicle, drew his firearm and ordered
[Appellant] to place his hands in the air. [Appellant] partially
complied by holding his hands at waist level. Officer McDanel
ordered [Appellant] to move toward the right front area of his
police vehicle. [Appellant] then slightly faced away from Officer
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1 18 Pa.C.S. § 6105 (a)(1).
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McDanel and threw what Officer McDanel believed to [be] a
firearm. [Appellant] then turned away from Officer McDanel and
ran away from him. Officer McDanel gave chase for about
[twenty] feet but abandoned the chase so he could attempt to
recover and secure the firearm. Officer McDanel did, in fact,
recover a firearm from the area where [Appellant] discarded it.
The firearm, a Smith & Wesson SC .40, was loaded. [Appellant]
was later arrested.
Trial Ct. Op., 6/25/19, 1-2.
The Commonwealth charged Appellant with one count of possession of
a firearm by a person prohibited (count 1) and one count of carrying a firearm
without a license (count 2). 2 The trial court heard the case in a non-jury trial
on March 13, 2019. At trial, Officer McDanel was the only witness to testify.
The parties stipulated that Appellant is a person not to possess a firearm and
that the firearm Officer McDanel recovered was operable.3 N.T. Trial, 3/13/19,
at 23. The trial court found Appellant guilty of count 1 and not guilty of count
2. Id. at 41. That same day, the trial court sentenced Appellant to a term of
seven to sixteen years’ imprisonment. Id. at 51.
Appellant filed a timely post-sentence motion on March 14, 2019, which
the trial court denied the following day. Appellant timely filed a notice of
appeal and filed a court-ordered Pa.R.A.P. 1925(b) statement challenging the
sufficiency of the evidence that he possessed the firearm. The trial court
issued a responsive Pa.R.A.P. 1925(a) opinion.
On appeal, Appellant raises the following issue for our review:
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2 18 Pa.C.S. § 6106.
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Was the evidence insufficient to sustain the conviction at count 1
because the Commonwealth did not prove, beyond a reasonable
doubt, that [Appellant] had actual or constructive possession of
the gun?
Appellant’s Brief at 4.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). Therefore, our
standard of review is de novo, and the scope of our review is plenary.
Commonwealth v. Brooker, 103 A.3d 325, 330 (Pa. Super. 2014).
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may 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. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder 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. Roberts, 133 A.3d 759, 767 (Pa. Super. 2016) (citation
omitted). This Court has stated that “[e]vidence is weak and inconclusive
‘[w]hen two equally reasonable and mutually inconsistent inferences can be
drawn from the same set of circumstances . . . .’” Commonwealth v.
Akhmedov, 216 A.3d 307, 322 (Pa. Super. 2019) (en banc) (quoting
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Commonwealth v. Woong Knee New, 47 A.2d 450, 468 (Pa. 1946)),
appeal denied, 224 A.3d 364 (Pa. 2020).
Appellant challenges the lack of evidence supporting the possession
element of count 1. Appellant argues that the evidence presented at trial
“only established that [he] threw an unknown object into a yard near where
a group . . . was congregating, and that [Officer McDanel], after searching in
the dark with a flashlight for a few minutes, found a gun in that yard.”
Appellant’s Brief at 11. Appellant points out that Officer McDanel testified that
he did not know what object Appellant had thrown until the officer recovered
a gun from the yard. Id. at 11-12. Appellant asserts that the Commonwealth
only established his mere presence near the area where Officer McDanel
recovered the gun. Id. at 14-15 (citing Commonwealth v. Boatwright, 453
A.2d 1058 (Pa. Super. 1982) (per curiam)).
Appellant further contends that the evidence was too weak and
inconclusive to support his conviction. In support, Appellant argues that it is
equally reasonable to infer that the gun may have been abandoned in the yard
or discarded by one of the other people in the parking lot. Id. at 12. Similarly,
Appellant suggests that his flight from the scene was not indicative of guilt,
but the result of prior negative interactions with Officer McDanel. Id. at 14.
Additionally, Appellant argues that the Commonwealth failed to prove that the
item Appellant threw was a gun, nor did the Commonwealth establish that
Appellant had the power to control the contraband, or the intent to control it.
Id. at 8. Therefore, Appellant argues that the Commonwealth failed to set
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forth sufficient circumstantial evidence to prove constructive possession of the
gun and requests that his conviction be reversed. Id. at 15.
In response, the Commonwealth states that it was required to prove
constructive possession because the gun was not found on Appellant’s person.
Commonwealth’s Brief at 9. The Commonwealth argues that “[w]hile it is true
[that] there was no direct evidence of his possession, compelling
circumstantial evidence, viewed in the light most favorable to the
Commonwealth with its concomitant inferences, allowed for the finding that
[Appellant] had discarded the recovered weapon.” Id. at 10. Although Officer
McDanel could not definitively identify the object Appellant pulled from his
waistband, the Commonwealth “submits that a reasonable inference could
have been drawn that a veteran officer would be aware that the waistband is
an area in which a gun is usually carried.” Id. at 11, n.7. Additionally, the
Commonwealth asserts that “evidence of [A]ppellant’s guilt can also be
inferred from the fact that he fled the scene. . . .” Id. at 12.
The Commonwealth asserts that although mere presence at a place with
contraband is insufficient to prove dominion and control over those items,
such possession may be proven by circumstantial evidence, and the intent and
power to control can be inferred from reviewing the totality of the
circumstances. Id. at 9.
As to Appellant’s arguments that the evidence was too inconclusive to
sustain the conviction because one of the people in the parking lot could have
abandoned the gun, the Commonwealth notes that Officer McDanel testified
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that the other people in the parking lot were thirty feet or more away from
where the officer encountered Appellant and observed Appellant throw the
object into the yard. Id. at 11-12. Therefore, the Commonwealth requests
that Appellant’s conviction be upheld. Id. at 13.
In its Rule 1925(a) opinion, the trial court concluded that there was
sufficient evidence that Appellant possessed the gun. The trial court
explained:
The most compelling evidence that [Appellant] possessed the
firearm is Officer McDanel’s personal observation that he saw
[Appellant] reach into his waistband and throw what appeared to
be a firearm and then Officer McDanel found a firearm in the
precise area where [Appellant] had discarded it. Moreover,
[Appellant] fled the scene after making the throwing motion. [The
trial court] believes that [Appellant’s] flight was evidence that
[Appellant] knew he had committed a crime and he did not want
to be arrested. The firearm was also loaded. In [the trial court’s]
view, a loaded firearm is not something that is commonly
abandoned by people, such as a soda can or a cigarette butt.
Trial Ct. Op. at 5.
The Uniform Firearms Act defines the crime of possession of a firearm
by a person prohibited 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.
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18 Pa.C.S. § 6105(a)(1).
Here, there is no dispute that Appellant was previously convicted of an
offense listed in Section 6105(b) and that the gun recovered by Officer
McDanel was a firearm within the meaning of the statute. The central dispute
in this appeal is whether Appellant possessed the firearm that Officer McDanel
recovered from the yard.
It is well settled that the element of “[p]ossession can be found by
proving actual possession, constructive possession, or joint constructive
possession. 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.” Commonwealth v. Parrish, 191 A.3d
31, 36 (Pa. Super. 2018) (citations omitted), appeal denied, 202 A.3d 42 (Pa.
2019). This Court has “defined constructive possession as conscious dominion,
meaning that the defendant has the power to control the contraband and the
intent to exercise that control.” Id. (citation and quotation omitted). We
have held that “knowledge of the existence and location” of contraband is a
“necessary prerequisite of intent to control.” Commonwealth v. Juliano,
490 A.2d 891, 893 (Pa. Super. 1985) (citation omitted).
“To aid application, we have held that constructive possession may be
established by a totality of the circumstances.” Parrish, 191 A.3d at 36.
(citation and quotation omitted). Evidence showing constructive possession
may be entirely circumstantial meaning “the Commonwealth must establish
facts from which the trier of fact can reasonably infer that the defendant
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exercised dominion and control over the contraband at issue.” Id. at 37
(citations omitted).
Instantly, we conclude that based on a review of the totality of the
circumstances, there was sufficient circumstantial evidence to prove that
Appellant constructively possessed the gun and had the power to control the
firearm, and the intent to exercise that control. See Commonwealth v.
Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011). Officer McDanel testified that in
his twenty-four years as a police officer he has responded to a “few hundred
or more” calls involving individuals with firearms. See N.T. Trial at 10. Officer
McDanel testified that he observed Appellant reach into his waistband, throw
an object that the officer believed to be a weapon, and then flee the scene.
See id. at 14. The officer started to pursue Appellant but stopped to recover
the object. See id. at 15. A few minutes later, Officer McDanel recovered the
gun in the same area where he saw Appellant throw the object.
The facts presented at trial, when read in a light most favorable to the
Commonwealth as verdict winner, established that Appellant had conscious
dominion over the firearm and had the requisite knowledge of its existence
and location. See Parrish, 191 A.3d at 36; Juliano, 490 A.2d at 893.
Moreover, the trial court was entitled to weigh Appellant’s flight after
discarding the gun as consciousness of guilt. See Commonwealth v.
Hudson, 955 A.2d 1031, 1036-37 (Pa. Super. 2008) (finding that flight or
concealment is admissible to show consciousness of guilt).
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Appellant’s assertions that someone other than Appellant could have
discarded or abandoned the gun in the yard is not an inference supported by
the record. Significantly, as the trial court noted, a loaded weapon is not an
item likely to be discarded. Trial Ct. Op. at 5. Moreover, the other people in
the parking lot were more than thirty feet from the area where Appellant was
seen throwing the object.
For the reasons herein, we conclude that the Commonwealth presented
legally sufficient circumstantial evidence inferred from the totality of the
circumstances that established Appellant’s constructive possession of the
recovered firearm which amply supported the trial court’s finding of guilt. See
Roberts, 133 A.3d at 767.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2020
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