Com. v. Brooks, I.

J-S04008-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ISAIAH BROOKS :
:
Appellant : No. 897 EDA 2020
Appeal from the Judgment of Sentence Entered February 24, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000979-2019
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 2, 2022
Appellant, Isaiah Brooks, appeals from the judgment of sentence of an
aggregate term of two to four years’ incarceration, imposed after he was
convicted, following a non-jury trial, of possession of a firearm by a person
prohibited,1 possession of a firearm without a license,2 and carrying a firearm
in public in Philadelphia.3 On appeal, Appellant challenges the sufficiency of
the evidence to support his convictions, arguing that the Commonwealth failed
to prove that he possessed a firearm. After careful review, we affirm.
The trial court summarized the facts of this case, as follows:
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 6105(a)(1).
2 18 Pa.C.S. § 6106(a)(1).
3 18 Pa.C.S. § 6108.
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At Appellant’s trial, Sergeant Joseph Rauch testified on behalf of
the Commonwealth. The sergeant testified that, on January 22,
2019, at approximately 11:00 p.m., he was on duty as a
Philadelphia [p]olice officer. []Notes of Testimony (“N.T.”),
12/20/19, at 8[]. On that date and time, he and Officer Nicoletti,
Sergeant Rauch’s partner, stopped a black Nissan in the 300 block
of Sedgley Avenue because the vehicle was traveling westbound
on Sedgley without headlights. Id. at 9-10.
Sergeant Rauch observed Appellant, who was in the Nissan’s back
seat, reach “behind the passenger[’s] seat.” Id. at 10. Appellant
“[q]uickly started bouncing ... from the middle of the back seat to
behind the driver’s seat.” Id. As he was doing this, Appellant
looked back at the sergeant and his partner[] “four or five times.”
Id.
The sergeant then approached the Nissan’s passenger side and
saw three people in the automobile—a driver, a front-seat
passenger, and Appellant in the back seat. Id. at 10-11. While
Sergeant Rauch spoke with the individual in the front passenger’s
seat, the sergeant shined his flashlight into the Nissan and
observed “a ton of trash on the floor.” Id. at 11, 24. Amongst
the trash on the floor in the vehicle’s back seat area, Sergeant
Rauch saw the handle of a black handgun. Id. The gun was
located behind the passenger’s seat, i.e., where the sergeant
[had] observed Appellant reaching. Id. Sergeant Rauch notified
his partner of the gun, and Officer Nicoletti removed Appellant
from the vehicle. Id. Then, the sergeant recovered the weapon
and went to his police vehicle. Id. at 12.
When he was back at his police vehicle, Sergeant Rauch noticed
that Appellant “broke free from [Officer Nicoletti] and started
fleeing westbound on Sedgley Avenue.” Id. at 12-13. Thus, the
sergeant drove to the intersection of Lawrence and Venango
Streets, where Officer Nicoletti caught Appellant. Id. at 13.
Appellant was subsequently handcuffed and arrested. Id. at 14.
When Sergeant Rauch returned to the 300 block of Sedgley
Avenue, he discovered that the black Nissan was gone. Id.
On the night of the incident, Sergeant Rauch and Officer Nicoletti
were wearing body cameras. Id. at 14-15. The Commonwealth
played the body camera video footage, which was entered into
evidence as C1 and C2, respectively. Id. at 14-16. The video
[footage] corroborated Sergeant Rauch’s testimony.
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At the conclusion of the testimony, the parties stipulated that: …
Appellant was prohibited from possessing a firearm, [i]d. at 29;
… Appellant did not have a license to carry a firearm. [i]d.; … [and
that] the Philadelphia Police Department’s Firearms Operation Unit
tested the firearm, which Sergeant Rauch recovered, and
determined it was operable. Id. at 30.
Trial Court Opinion (TCO), 10/26/20, at 1-3.
Based on this evidence, the court convicted Appellant of the above-
stated crimes. On February 24, 2020, the court sentenced him to the
aggregate term stated supra. Appellant filed a timely notice of appeal, and
he also complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. The court filed its Rule 1925(a)
opinion on October 26, 2020. Herein, Appellant states the following issue for
our review: “Was the evidence insufficient to prove [Appellant] guilty of … [the
f]irearm … charges[,] as the Commonwealth failed to prove that he possessed
a firearm?” Appellant’s Brief at 4.
Initially, we note that,
[w]e review claims regarding the sufficiency of the evidence by
considering 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.”
Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014)
(citation and quotation omitted). Further, a conviction may be
sustained wholly on circumstantial evidence, and the trier of fact—
while passing on the credibility of the witnesses and the weight of
the evidence—is free to believe all, part, or none of the evidence.
Id. at 40 (citation and quotation omitted). “Because evidentiary
sufficiency is a matter of law, our standard of review is de novo
and our scope of review is plenary.” Commonwealth v.
Brooker, 103 A.3d 325, 330 (Pa. Super. 2014).
Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018).
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In the instant case, Appellant challenges each of his firearm convictions
on the ground that the Commonwealth failed to prove that he possessed the
firearm recovered from the vehicle in which he was riding.
This Court has held that “[p]ossession can be found by proving
actual possession, constructive possession, or joint constructive
possession.” Commonwealth v. Heidler, 741 A.2d 213, 215
(Pa. Super. 1999). 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. Hopkins, 67 A.3d 817, 820 (Pa.
Super. 2013) (conviction under 18 Pa.C.S. § 6106(a) supported
by a finding of constructive possession). See also
Commonwealth v. Parker, 847 A.2d 745 (Pa. Super. 2004)
(same). “Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law enforcement.”
Hopkins, supra at 820 (citation and quotation omitted). “We
have 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). “To aid application, we have held that
constructive possession may be established by the totality of the
circumstances.” Id. (citation and quotation omitted).
It is well established that, “[a]s with any other element of a crime,
constructive possession may be proven by circumstantial
evidence.” Commonwealth v. Haskins, … 677 A.2d 328, 330
([Pa. Super.] 1996) (citation omitted). In other words, the
Commonwealth must establish facts from which the trier of fact
can reasonably infer that the defendant exercised dominion and
control over the contraband at issue. See, e.g., Commonwealth
v. Davis, 743 A.2d 946, 953–54 (Pa. Super. 1999) (holding that
evidence was sufficient to prove constructive possession over
drugs found in common areas of an apartment where the
defendant entered the apartment using his own key, and
possessed $800 in cash on his person, and police recovered
defendant’s identification badge, size-appropriate clothing, and
firearms from a bedroom).
Significant to the instant appeal, a defendant’s mere presence at
a place where contraband is found or secreted is insufficient,
standing alone, to prove that he exercised dominion and control
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over those items. Commonwealth v. Valette, … 613 A.2d 548,
551 ([Pa.] 1992). Thus, the location and proximity of an actor to
the contraband alone is not conclusive of guilt. Commonwealth
v. Juliano, … 490 A.2d 891, 893 ([Pa. Super.] 1985). Rather,
knowledge of the existence and location of the contraband is a
necessary prerequisite to proving the defendant’s intent to
control, and, thus, his constructive possession. Id. [(]citing
Commonwealth v. Thompson, … 428 A.2d 223, 224 ([Pa.
Super.] 1981)[)].
If the only inference that the fact finder can make from the facts
is a suspicion of possession, the Commonwealth has failed to
prove constructive possession. Valette, supra at 551. “It is well
settled that facts giving rise to mere ‘association,’ ‘suspicion’ or
‘conjecture,’ will not make out a case of constructive possession.”
Id.
Parrish, 191 A.3d at 36-37.
Here, the trial court concluded that, “[u]nder the totality of
circumstances, the evidence presented by the Commonwealth proved beyond
a reasonable doubt that Appellant constructively possessed the firearm
recovered on the floor of the vehicle where Appellant was seated.” TCO at 5-
6. The court explained:
Sergeant Rauch’s testimony, much of which was corroborated by
body cam video, was credible. The sergeant offered specific
testimony about Appellant’s movements prior to the sergeant’s
discovery of the firearm.
Sergeant Rauch testified that he observed Appellant reach down
to his right while sitting in the middle of the Nissan’s back seat.
Appellant repeatedly turned and looked back at the policemen.
Then, when Sergeant Rauch looked into the Nissan, he saw the
handle of a firearm, protruding from trash and debris on the floor
behind the passenger’s seat. The gun was located in the same
place where the sergeant saw Appellant reaching.
This evidence, which included the sergeant’s description of the
firearm’s location and position[,] as well as Appellant’s suspicious
movements prior to discovery of the gun, demonstrated
Appellant’s “knowledge of the existence of the firearm[,]” as well
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as his intent and power to control it. Parrish, 191 A.3d at 37;
see Commonwealth v. Cruz Ortega, 539 A.2d 849, 851 (Pa.
Super. [] 1988) (holding [that the] appellant had constructive
possession of cocaine recovered from vehicle of which [the]
appellant was a passenger; officer saw [the] appellant lean over
seat before stop and cocaine was found under [the] appellant’s
seat).
The [c]ourt also duly considered the fact that Appellant fled from
the police after Sergeant Rauch discovered the firearm. As the
Pennsylvania Supreme Court has explained, “When a person
commits a crime, knows that he is wanted therefore, and flees or
conceals himself, such conduct is evidence of consciousness of
guilt, and may form the basis [of a conviction] in connection with
other proof from which guilt may be inferred.” Commonwealth
v. Clark, 961 A.2d 80, 92 [(Pa. 2008)] (quoting Commonwealth
v. Rios, 684 A.2d 1025, 1035 (Pa. 1996)) (alteration in original).
In summary, based on the location of the firearm, Appellant’s
proximity to the gun, and Appellant’s flight, the evidence proved
that Appellant constructively possessed the firearm, which
Sergeant Rauch recovered. Accordingly, Appellant’s claim that
the Commonwealth failed to present sufficient evidence to support
his convictions lacks merit.
Id. at 6-7 (citations to the record omitted).
We discern no error in the court’s decision, and we are unconvinced by
Appellant’s arguments on appeal. For instance, Appellant challenges the
court’s reliance on his flight from police as indicating his guilty conscious. He
stresses that the other two occupants of the vehicle also fled, thus indicating
that they were guilty, too. However, the trial court did not rely on Appellant’s
flight alone. Rather, it cited other factors, in addition to his flight, that
established his constructive possession of the gun — namely, his close
proximity to the weapon, his movements toward the location at which the gun
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was recovered, and his repeatedly looking at the officers as they approached
the vehicle.
Moreover, we reject Appellant’s argument that this case mirrors
Commonwealth v. Boatwright, 453 A.2d 1058 (Pa. Super. 1982). There,
[t]he Commonwealth’s evidence disclosed that, shortly after
10:00 p.m. on April 10, 1979, Officers Charles Roller and Annette
Roebuck responded to a radio call concerning three “suspicious”
men in an automobile parked in front of a residence in the
Hazelwood section of Pittsburgh. Upon arriving at the location,
Officer Roller observed [Boatwright], who was seated in the front
passenger seat of the vehicle, “moving towards his left rear.” The
officer could not see [Boatwright’s] hand or arm, only a movement
of his body. Officer Roller then opened the door of the automobile
and asked [Boatwright] to get out. He shined a light onto the left
rear floor of the vehicle and saw a gun. In addition to
[Boatwright], the car was occupied by the driver and another
passenger who was seated in the left rear seat. The car was
registered to the driver’s girlfriend and the gun to one Darlene
Simpson.
Id. at 1058-59 (citations to the record omitted). In deeming this evidence
insufficient to prove that Boatwright had constructively possessed the gun, we
stressed that “[t]he only evidence other than mere presence was Officer
Roller’s testimony that [Boatwright] made a movement toward the left rear of
the vehicle. This evidence cannot provide proof beyond a reasonable doubt
that [Boatwright] possessed the firearm in question. Therefore, the conviction
cannot be sustained.” Id. at 1059 (citation omitted).
Appellant contends that, as in Boatwright, the other occupants of the
vehicle in this case also had access to the firearm. He further insists that,
under our reasoning in Boatwright, his “reaching towards the area where the
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gun was recovered” was insufficient proof that he constructively possessed
the gun, where Sergeant Rauch “did not see his hands and never saw him
touching the firearm.” Appellant’s Brief at 10.
Appellant’s argument is meritless. As the Commonwealth stresses,
Boatwright was sitting in the front passenger seat and was reaching toward
the left rear seat, where another passenger was sitting. See Commonwealth’s
Brief at 11. To the contrary, here, Appellant
was the sole occupant of the back seat where the gun was located.
Sergeant Rauch[] saw [Appellant’s] shoulder movement and the
direction [Appellant’s] shoulders were pointing, which were
toward the area where the gun lay. Furthermore, [Appellant]
reached toward the firearm and subsequently switched seats to
move away from the firearm, looking back as he did so at the
officers approaching. The firearm was in plain view, only partially
obscured by trash – which, of course, a reasonable fact[-]finder
could conclude had been placed over the gun by [Appellant] in an
attempt to hide it when the officers saw him moving and reaching
toward that area. [Appellant] also fled the scene after he was
removed from the car, supporting a finding that he knew about
and controlled the illegal weapon. Therefore, Boatwright is not
analogous to this case.
Id. (citations to the record omitted; emphasis in original). We agree with the
Commonwealth.
Accordingly, Appellant has failed to demonstrate that the evidence was
insufficient to prove that he constructively possessed the firearm. Rather, the
circumstantial evidence of his close proximity to the firearm, his furtive
movements while glancing at the approaching officers, the fact he was the
only individual in the backseat where the gun was found, and his flight from
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police after the weapon was discovered, was sufficient to prove that he
constructively possessed the gun.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/02/2022
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