Com. v. Eure, T.

J-A05045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
TAYVON EURE :
: No. 2431 EDA 2016
Appellant
Appeal from the Judgment of Sentence March 4, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011327-2014
BEFORE: DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 09, 2018
Appellant, Tayvon Eure, appeals from the judgment of sentence entered
in the Court of Common Pleas of Philadelphia County, which sitting as finder
of fact in Appellant’s non-jury trial found him guilty of, inter alia, persons not
to possess firearms, 18 Pa.C.S.A. § 6105(a)(1), and carrying firearms on
public streets or public property in Philadelphia, 18 Pa.C.S.A. § 6108.
Appellant contends the evidence was insufficient to sustain his convictions.
We affirm.
The trial court sets forth the pertinent facts and procedural history as
follows:
On September 21, 2014, at approximately 3:00 a.m., Officer Amir
Watson (“Officer Watson”) and his partner Officer Dickson were
on routine patrol in the area of 2602 Berbru Street in Philadelphia,
Pennsylvania. N.T., 1/4/16, at 9-12. During this time, Officer
Watson was on his normal patrol when he observed the defendant
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A05045-18
[hereinafter “Appellant”]. Id. Traveling eastbound on the 7300
block of Buist Avenue, Officer Watson first observed Appellant wen
turning onto the 2600 [block] of Berbru Street, at which time
Appellant looked towards his direction. Id. A moment later,
Officer Watson observed Appellant walk over to a 2003 white
Chevrolet Trailer [sic] Blazer and bend down to discard an object.
Id. At the time, Officer Watson heard a “clinking” sound of metal
and saw Appellant run inside 2602 Berbru Street. Id. at 13.
Officer Watson exited the vehicle to inspect the scene while his
partner activated the police vehicle’s lights. Id. Officer Watson
shined his flashlight at the location where he heard the object and
discovered a silver firearm. Id. At that point, Officer Watson
yelled to his partner that Appellant threw a gun. Id. He then
attempted to chase Appellant inside the property of 2602 Berbru
Street, but never made direct contact. Id. at 13-14. Upon arriving
at the back of the entrance of the property, [Officer Watson] finds
Appellant apprehended by his partner, Officer Dickson. Id. at 14.
On September 21, 2014, Appellant was arrested and charged with
Possession of a Prohibited Firearm, 18 Pa.C.S.A. § 6105(a)(1),
Intentionally Possessing a Controlled Substance by a Person Not
Registered, 35 Pa.C.S.A. § 780-113(a)(16), Possession of
Marijuana, 35 Pa.C.S.A. § 780-113(a)(31), Carrying Firearms in
Public, 18 Pa.C.S.A. § 6108, Criminal Trespass, 18 Pa.C.S.A. §
3503(a)(1), and Carrying a Firearm Without a License, 18
Pa.C.S.A. § 6106(a)(1). On October 6, 2014, the lower court
dismissed charges for criminal trespass and carrying a firearm
without a license. On [January] 4, 2016, Appellant requested and
was granted a [waiver trial] before the Honorable Sean F.
Kennedy. N.T. at 5-8. Based on the testimony presented at trial,
Appellant was found guilty on the remaining charges at the
conclusion of trial. Id. at 44. Appellant was then sentenced to 5-
10 years of state incarceration with the court permitting credit for
time already served. N.T., 3/4/16, at 15.
On March 7, 2016, Appellant moved for Reconsideration of
Sentence. On July 5, 2016, said motion was denied by operation
of law. On July 20, 2016, a Notice of Appeal to the Superior Court
was filed on behalf of Appellant. On September 19, 2016, [trial
counsel] moved to withdraw as defense counsel and [Appellant]
sought trial court appointment of new counsel. On January 24,
2017, the trial court appointed [new counsel] to represent
Appellant in his appeal. Under these circumstances, the newly
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appointed counsel filed a timely Notice of Appeal on behalf of
Appellant with the Superior Court of Pennsylvania.
Trial Court Opinion, filed May 22, 2017, at 1-3.
Appellant presents one question for our review:
WHETHER THE TRIAL COURT ERRED IN FINDING
APPELLANT GUILTY OF THE FIREARMS OFFENSES BECAUSE
THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE
VERDICT?
Appellant’s brief at vi.
Appellant’s claim centers on the argument that evidence failed to
demonstrate he possessed the firearm recovered alongside the SUV where he
briefly hid before fleeing the scene. Three other people were standing within
fifteen feet of him at the time, he maintains, and Officer Watson never saw a
gun in his hand. Given such uncertain circumstances, the court erred in
finding the Commonwealth proved beyond a reasonable doubt his constructive
possession of the gun, Appellant posits. We disagree.
Our well-settled standard of review regarding sufficiency of the evidence
claims is as follows:
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
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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. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014)
(citation omitted).
The crime of persons not to possess firearms is defined, in
pertinent part, as follows:
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.
18 Pa.C.S.A. § 6105(a)(1).
Carrying a firearm in public in Philadelphia is defined as follows:
No person shall carry a firearm, rifle or shotgun at any time upon
the public streets or upon any public property in a city of the first
class unless:
(1) such person is licensed to carry a firearm; or
(2) such person is exempt from licensing under section 6106(b)
of this title (relating to firearms not to be carried without a
license).
18 Pa.C.S.A. § 6108.
When a prohibited item is not discovered on a defendant's person, or in
his actual possession, as is the case here, the Commonwealth may 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).
Commonwealth v. Hopkins, 67 A.3d 817, 820-821 (Pa. Super. 2013).
Viewing the evidence in a light most favorable to Commonwealth as
verdict winner, we find there was sufficient circumstantial evidence to prove
Appellant knowingly possessed the firearm found at the base of an SUV. One
of four persons standing near a street corner, Appellant alone acted furtively
upon seeing police, and he ducked quickly behind the SUV at precisely the
same time Officer Watson heard emanate from that location a “clinking” noise
consistent with a gun or other metal object of similar weight falling to the
pavement. Appellant immediately ran, and Officer Watson alighted from the
patrol car and observed a gun lying on the ground where Appellant had just
been. When police apprehended Appellant and escorted him back to the patrol
car, the by-standers were still at the scene.
Based on Officer Watson’s unrebutted testimony, a reasonable finder of
fact could conclude that Appellant discarded the handgun at the location where
he momentarily hid from police before taking flight. Appellant’s furtive action
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and his subsequent flight were probative of guilt. See Commonwealth v.
Dent, 837 A.2d 571, 576 (Pa. Super. 2003) (flight indicates consciousness of
guilt, and court may consider this as evidence along with other proof from
which guilt may be inferred). Moreover, the evidence showed there was no
other reasonable explanation for the “clinking” sound Officer Watson heard as
Appellant ducked behind the SUV, as only the gun lay in that spot.
Finally, contrary to Appellant’s argument, that bystanders may have had
access to the gun when it was on the ground does not undermine the
sufficiency of the evidence offered against Appellant. See In Re R.N., 951
A.2d 363, 369-70 (Pa. Super. 2008) (Commonwealth need show only knowing
possession of gun, not exclusive access or control); Commonwealth v.
Carter, 450 A.2d 142 (Pa. Super. 1982) (constructive possession shown
where only driver, in car with multiple passengers, had opportunity to hide
gun and was seen reaching down where gun was later found). In any event,
at the critical time when Officer Watson observed Appellant hide behind the
SUV and heard the distinctive sound in question, Appellant exercised exclusive
control over this immediate area.
Accordingly, because the Commonwealth introduced circumstantial
evidence proving the element of possession beyond a reasonable doubt, we
reject Appellant’s sufficiency challenge.
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Judgment of sentence is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/18
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