Com. v. Cooper, J. ( 2018 )

J-S55006-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JABREE COOPER :
:
Appellant : No. 3026 EDA 2017
Appeal from the Judgment of Sentence August 22, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0000942-2017
BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 04, 2018
Appellant, Jabree Cooper, appeals from the judgment of sentence
entered on August 22, 2017. We affirm.
The trial court ably summarized the evidence presented during
Appellant’s June 14, 2017 jury trial:
On [the evening of] October [21,] 2016, . . . Officer Matthew
Goldschmidt of the Chester City Police Department was
working with the Pennsylvania State Police as part of a special
task force patrolling the high-crime areas of the city. He was
partnered that evening with Trooper Salerno of the
Pennsylvania State Police. They were in a marked State
Police cruiser[;] Trooper Salerno was driving and Officer
Goldschmidt was in the front passenger seat. . . .
[At approximately 10:40] that night, [the officers were
traveling] north in the 700 block of Pennell Street [when]
they observed a blue Kia Optima approaching them with its
high beams on. As the Kia approached 8th Street, it made a
left onto West 8th Street without using a turn signal. As the
vehicle turned, the passenger looked at them, and Officer
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Goldschmidt could smell a very strong odor of burnt
marijuana. . . .
As a result of their observations, the officers decided to
conduct a traffic stop. They activated the lights and the siren
on the patrol vehicle. The Kia stopped for a second as it
approached Pusey Street and then fled. The driver
accelerated the vehicle and made a left onto Pusey Street.
The officers pursued. [Traveling at high speeds, t]he Kia
went north to 9th Street, made a left onto 9th, went west on
9th to Tilghman, south on Tilghman Street to 4th Street,
proceeded on 4th Street to Jeffrey Street, then south on
Jeffrey, made a right onto 2nd Street, went down 2nd Street
to Highland Avenue, then north on Highland Avenue, where
[it] smashed into several vehicles and then crashed on the
front lawn of a house prior to 10th Street. There, the pursuit
stopped and the two occupants were taken into custody. The
driver was identified as [Appellant].
The entire incident was video recorded by the State Police
cruiser’s [mobile video recorder (“MVR”)] system. The
Commonwealth published the video to the jury with Officer
Goldschmidt pausing the video at points during the pursuit
and commenting []. One of the pauses was to show the jury
a weapon being discarded out of the passenger window in the
area of 2nd and Palmer Streets.
[Officer Goldschmidt searched Appellant incident to the
arrest; the officer discovered “a clear sandwich bag
containing six clear zip-top bags of crack cocaine down
[Appellant’s] pants[,] between his [] legs.” N.T. Trial,
6/14/17, at 46. The officers also searched the automobile
Appellant was driving. The officers] . . . recovered a spent
[cartridge] casing from a .40 caliber handgun [] on the floor
of the rear seat area. . . .
Early the next morning, [police officers] went to the area of
2nd and Palmer Streets, the location [that the] MVR recording
showed the gun being thrown from the vehicle, and retrieved
a black firearm from the gutter. The weapon was identified
as a .40 caliber Smith & Wesson M&P Shield. Upon
examination, it was discovered the weapon was loaded with
live ammunition. [Appellant] stipulated that the recovered
weapon was functional and capable of discharging the type
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of ammunition for which it was manufactured, as indicated in
the ballistics report entered into evidence. [Appellant] also
stipulated the “spent cartridge” recovered from the vehicle
was discharged from that same handgun. [Appellant] further
stipulated the firearm was reported stolen, as run through
NCIC[] and, also, that he was not licensed to carry a firearm.
...
Detective Louis Grandizio is employed by the Delaware
County Criminal Investigation Division of the District
Attorney’s Office and was qualified as an expert firearms
examiner. He opined that the spent casing recovered from
[Appellant’s] vehicle was consistent with the firearm being
discharged from inside that vehicle. . . .
[Appellant] did not testify at trial and presented no evidence
in rebuttal.
Trial Court Opinion, 11/20/17, at 2-4 (internal citations and some internal
capitalization omitted).
The jury found Appellant guilty of possession of a controlled substance,
possession of drug paraphernalia, fleeing or attempting to elude a police
officer, criminal conspiracy to possess a firearm without a license, criminal
conspiracy to receive stolen property, possession of a firearm without a
license, and receiving stolen property.1 On August 22, 2017, the trial court
sentenced Appellant to serve an aggregate term of four-and-a-half to nine
years in prison, followed by five years of probation, for his convictions. See
N.T. Sentencing, 8/22/17, at 18.
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1 35 P.S. §§ 780-113(a)(16) and (32), 75 Pa.C.S.A. § 3733(a), and 18
Pa.C.S.A. §§ 903, 6106(a)(1), and 3925(a), respectively.
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Appellant filed a timely notice of appeal. Appellant raises one claim to
this Court:
Whether the evidence was insufficient to find [Appellant]
guilty of firearms not to be carried without a license,
conspiracy to firearms not to be carried without a license,
receiving stolen property[,] and conspiracy to receiving
stolen property arising from a vehicle stop in which a firearm
was discarded by the [passenger] from the passenger side
door during pursuit by the local and State Police[?]
Appellant’s Brief at 7 (some internal capitalization omitted).
We review Appellant’s sufficiency of the evidence challenges under the
following standard:
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 [that of] 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
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.
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Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en
banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806 (Pa.
Super. 2008).
Appellant claims that the evidence was insufficient to support the
convictions that arose out of his possession of the firearm, as there was
insufficient evidence to prove that he possessed the firearm. Further, on
appeal, Appellant echoes the argument he made at trial and claims that his
flight only demonstrated his consciousness of guilt as to the cocaine that was
later found on his person. See Appellant’s Brief at 14. Appellant’s claims fail.
“In [] possession cases, the Commonwealth may meet its burden by
showing actual, constructive, or joint constructive possession of the
contraband.” Commonwealth v. Thompson, 428 A.2d 223, 224 (Pa. Super.
1981). Actual possession is proven “by showing . . . [that the contraband
was] found on the [defendant’s] person.” Commonwealth v. Macolino, 469
A.2d 132, 134 (Pa. 1983). If the contraband is not discovered on the
defendant’s person, the Commonwealth may satisfy its evidentiary burden by
proving that the defendant had constructive possession of the contraband.
Id.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
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have held that constructive possession may be established
by the totality of the circumstances.
Commonwealth v. Kinard, 95 A.3d 279, 292 (Pa. Super. 2014) (internal
quotations and citations omitted); see also Macolino, 469 A.2d at 134
(“[c]onstructive possession has been defined as the ability to exercise a
conscious dominion over the illegal [contraband]: the power to control the
contraband and the intent to exercise that control”).
With respect to the element of “knowledge” in possessory offenses, this
Court held:
an awareness of the presence of the items which [the
defendant] was accused of having [is] an essential element
of his supposed intent to control. But this knowledge need
not be proven by his admission of such knowledge, or by
testimony of his associates that he saw these articles. The
defendant’s knowledge of the presence of these articles may
be inferred from all the surrounding circumstances.
Commonwealth v. Gladden, 311 A.2d 711, 712 (Pa. Super. 1973) (en banc)
(internal quotations and citations omitted) (some internal capitalization
omitted). “Mere ‘association,’ ‘suspicion’ or ‘conjecture,’ will not make out a
case of constructive possession.” Commonwealth v. Valette, 613 A.2d 548,
551 (Pa. 1992). However, “circumstantial evidence may be used to establish
constructive possession of the [contraband].” Commonwealth v. Johnson,
26 A.3d 1078, 1094 (Pa. 2011). Moreover, “[t]wo actors may have joint
control and equal access and thus both may constructively possess the
contraband.” Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super.
1996).
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Viewed in the light most favorable to the Commonwealth, the totality of
the circumstances in this case is sufficient to establish that Appellant
constructively possessed the firearm. Indeed, the Commonwealth introduced
evidence demonstrating that: Appellant operated the vehicle on the night in
question; the illegal, stolen firearm had been fired from within the same
vehicle that Appellant was operating; when the officers initiated a traffic stop
of Appellant’s vehicle, Appellant fled and drove his vehicle recklessly and at
high speeds through the City of Chester, in an attempt to elude the officers
and avoid capture – thus demonstrating Appellant’s consciousness of guilt with
respect to his illegal possession of the stolen firearm;2, 3 and, during the
high-speed chase, the firearm was thrown out of the passenger-side window.
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2It is a “settled rule of law that when a defendant has reason to know that he
may be suspected in connection with a crime, the jury may infer a
consciousness of guilt from that person's flight or other evasive conduct.”
Commonwealth v. Jones, 570 A.2d 1338, 1349 (Pa. Super. 1990); see also
Commonwealth v. Spotz, 870 A.2d 822, 825 n.10 (Pa. 2005) (“[e]vidence
of a defendant's flight and/or concealment following a crime is admissible to
establish an inference of consciousness of guilt”).
3 During trial, Appellant’s counsel argued that Appellant’s flight only
demonstrated his consciousness of guilt as to the cocaine that was later found
on his person. See N.T. Trial, 6/14/17, at 108-113. Nevertheless, in finding
Appellant guilty of the firearm offenses, the jury apparently rejected this
argument, as was its province. See Commonwealth v. Shaver, 460 A.2d
742, 745 (Pa. 1983) (“[i]t is solely the province of the trier of fact to pass
upon the credibility of witnesses and to give it such weight as may be accorded
to the evidence therein produced. The factfinder is free to believe all, part or
none of the evidence”).
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Contrary to Appellant’s argument during trial and on appeal, this
evidence is sufficient to prove far more than Appellant’s “association” with the
firearm. Indeed, the evidence is sufficient to prove that Appellant: knew the
firearm was present in the vehicle; had the power and the intent to control
the firearm while it was in the vehicle; and, acted in concert with his passenger
to dispose of the firearm during the high-speed chase. See Commonwealth
v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (holding that the evidence
was sufficient to establish that the defendant constructively possessed the
firearm where: “[defendant] was the only person found in the vehicle[; t]he
gun in question was found in a compartment on the passenger side of the
vehicle[; the defendant] . . . mov[ed] sideways toward the passenger side of
the vehicle immediately after [the officer] turned on his lights and siren[; and,
the defendant] . . . exhibit[ed] a consciousness of guilt”).
Moreover, the fact that Appellant’s attempt to elude capture might
possibly be consistent with his cocaine possession – and not his possession of
the illegal, stolen firearm – “entirely neglects to consider the evidence in the
light most favorable to the Commonwealth.” Commonwealth v. Watley, 81
A.3d 108, 115 (Pa. Super. 2013). “This case is simply not one where the
evidence is so weak and inconclusive that there is no probability of fact that
Appellant” had the power to control the contraband and the intent to exercise
that control. See id. The evidence is thus sufficient to prove that Appellant
constructively possessed the firearm. Appellant’s sufficiency of the evidence
claims fail.
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Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/18
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