Com. v. Grabowski, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DANIEL GRABOWSKI :
:
Appellant : No. 539 EDA 2022
Appeal from the Judgment of Sentence Entered January 19, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0004661-2021
BEFORE: KUNSELMAN, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY MURRAY, J.: FILED DECEMBER 22, 2022
Daniel Grabowski (Appellant) appeals from the judgment of sentence
imposed after the trial court convicted him of possession of a firearm with
altered manufacturer’s number, possession of a firearm by a prohibited
person, possession of a firearm without a license, and possession of a firearm
on the public streets of Philadelphia.1 We affirm.
On April 1, 2021, Philadelphia Highway Patrol Officer Michael Chichearo
attempted to stop a Chevy Trailblazer for having illegally tinted windows. The
Trailblazer fled but was forced to stop when it encountered traffic at the
intersection of Wakeling Street and Aramingo Avenue. The Trailblazer
unsuccessfully attempted to push vehicles out of the way. When that failed,
one man fled on foot from the driver side, while two others ran from the front
____________________________________________
1 See 18 Pa.C.S.A. §§ 6110.2, 6105, 6106, 6108.
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and rear passenger sides. Officer Chichearo engaged in a foot chase and
apprehended Appellant, who had exited from the rear passenger side. As
Officer Chichearo escorted Appellant back to the police vehicle, he saw that
the rear passenger side door of the Trailblazer was open and observed a
firearm on the floor of the rear passenger side. Police arrested Appellant and
the Commonwealth charged him with various firearms offenses.
The trial court held a non-jury trial and convicted Appellant of the four
firearms offenses enumerated above. On January 19, 2022, the trial court
sentenced Appellant to an aggregate 3 - 6 years in prison. Appellant timely
appealed. Both Appellant and the trial court have complied with Pa.R.A.P.
1925.
Appellant presents the following questions for review:
[1.] Is the evidence sufficient as a matter of law to sustain
[Appellant’s] convictions of the Uniform Firearms Act, 18
Pa.C.S.A. §§ 6105, 6106 and 6108[,] where the competent
evidence of record did not establish beyond a reasonable doubt
that [Appellant] constructively possessed the handgun recovered
in the vehicle in which [Appellant] was merely a passenger?
[2.] Is the evidence sufficient as a matter of law to sustain
[Appellant’s] convictions of the Uniform Firearms Act, 18
Pa.C.S.A. §§ 6106 and 6108[,] where the competent evidence of
record did not establish beyond a reasonable doubt that the
alleged firearm was operable or capable of being converted into
an object that could fire a shot?
[3.] Is the evidence sufficient as a matter of law to sustain
[Appellant’s] convictions of the Uniform Firearms Act, 18
Pa.C.S.A. § 6105[,] where the competent evidence of record did
not establish beyond a reasonable doubt that the alleged firearm
was designed to or may readily be converted to expel any
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projectile by the action of an explosive or the frame or receiver of
any such weapon?
Appellant’s Brief at 4-5 (some capitalization changed).
Appellant challenges the sufficiency of the evidence. As an appellate
court, we examine whether the evidence and all reasonable inferences, viewed
in the light most favorable to the Commonwealth as verdict winner, were
sufficient for the trial court to conclude that the Commonwealth established
the challenged element of the offense beyond a reasonable doubt.
Commonwealth v. Yandamuri, 159 A.3d 503, 514 (Pa. 2017). “It is well-
established that the Commonwealth may sustain its burden of proof by means
of wholly circumstantial evidence and the [fact-finder], while passing upon the
credibility of witnesses and the weight of the evidence, is free to believe all,
part, or none of the evidence.” Id. Only “where the evidence offered to
support the verdict is in contradiction to the physical facts, in contravention
to human experience and the laws of nature, [is] the evidence … insufficient
as a matter of law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.
2000).
Appellant first challenges the trial court’s determination that he
constructively possessed the firearm recovered on the rear floor of the
Trailblazer. Appellant’s Brief at 17. Appellant emphasizes that two other men
were in the Trailblazer. Id. at 18. According to Appellant, Officer Chichearo
recovered the firearm from under the front passenger seat, with only half of
the weapon sticking out in the backseat area. Id. at 19. Appellant also directs
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our attention to evidence that Officer Chichearo could not see where Appellant
had been seated before exiting the vehicle, and the fact that the vehicle was
not registered to Appellant. Id. Appellant further emphasizes that the firearm
was not tested for DNA evidence or submitted for fingerprint analysis. Id.
Appellant analogizes the facts in this case to the facts in
Commonwealth v. Armstead, 305 A.2d 1 (Pa. 1973), where the
Pennsylvania Supreme Court found the evidence insufficient to support a
finding of the passenger’s constructive possession of a firearm recovered from
“the middle of the front seat of the automobile.” Id. at 2. Appellant asserts:
It was equally logical to infer that the driver [of the Trailblazer] –
who fled from police in a vehicle and then on foot – or the front
seat passenger seated directly on top of the gun, were the
individual(s) who had knowledge of, and control over, the gun
found in the [Trailblazer]. Applying our Supreme Court’s holding
in Armstead, the evidence of record … is legally insufficient to
sustain [Appellant’s] conviction under the Uniform Firearms Act.
Appellant’s Brief at 21.
Appellant also relies on Commonwealth v. Townsend, 237 A.2d 192(Pa. 1968), where the Pennsylvania Supreme Court reversed a conviction after
determining the evidence failed to establish constructive possession.
Appellant’s Brief at 22. In Townsend, officers saw a man exit a vehicle, drop
a firearm, pick it up, and then throw the firearm on the seat of the vehicle.
Id. Another firearm was inside the vehicle. Id. at 23. Our Supreme Court
reversed the firearm conviction of a passenger who had remained inside the
vehicle. Id. at 22. Appellant relies on the Townsend holding that an
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accused’s mere presence in a vehicle containing a weapon is not sufficient to
establish constructive possession. Id. at 22-23. Appellant claims he was
merely present in the Trailblazer. Id. at 23.
To convict Appellant of persons not to possess firearms, the
Commonwealth was required to show that Appellant: 1) was previously
convicted of an enumerated offense; and 2) possessed a firearm. 18 Pa.C.S.A.
§ 6105. “Possession can be found by proving actual possession, constructive
possession, or joint constructive possession.” Commonwealth v. Parrish,
191 A.3d 31, 36 (Pa. Super. 2018) (citation omitted).
Constructive possession is a legal fiction, a pragmatic construct to
deal with the realities of criminal law enforcement. 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. To aid application, we have
held that constructive possession may be established by the
totality of the circumstances.
It is well established that, as with any other element of a crime,
constructive possession may be proven by circumstantial
evidence. 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.
Id. at 36-37 (citations, brackets, and quotation marks omitted). “The
evidence must show a nexus between the accused and the item sufficient to
infer that the accused had the power and intent to exercise dominion and
control over it.” Commonwealth v. Peters, 218 A.3d 1206, 1209 (Pa. 2019)
(citation omitted). “Dominion and control means the defendant had the ability
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to reduce the item to actual possession immediately or was otherwise able to
govern its use or disposition as if in physical possession.” Id. (citations
omitted).
The power and intent to control does not need to be exclusive. The
Pennsylvania Supreme Court has recognized that “constructive possession
may be found in one or more actors where the item in issue is in an area of
joint control and equal access.” Commonwealth v. Johnson, 26 A.3d 1078,
1094 (Pa. 2011) (citation and brackets omitted). This Court has held that
evasive behavior during a traffic stop along with the discovery of a firearm
may support a conviction for firearms possession. See Commonwealth v.
Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (constructive
possession established where driver gave multiple false names to arresting
officer and gun was found in compartment of car); see also Commonwealth
v. Perez, 220 A.3d 1069, 1078 (Pa. Super. 2019) (en banc) (flight from crime
scene can constitute circumstantial evidence of consciousness of guilt);
Commonwealth v. Jones, 570 A.2d 1338, 1349 (Pa. Super. 1990) (holding
that fact finder may infer consciousness of guilt from person’s flight or other
evasive conduct during police presence).
At trial, the Commonwealth presented testimony from Officer Chichearo.
N.T., 10/15/21, at 8. Officer Chichearo testified that he was patrolling the
area of 5200 Harbison Avenue in Philadelphia when he saw the Trailblazer with
what appeared to be illegally tinted windows. Id. at 10. When Officer
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Chichearo attempted to stop the Trailblazer, it “fled southbound on Harbison
and then it continued over Bridge Street. Southbound on Aramingo, which I
believe is the 5000 block of Aramingo Avenue.” Id. at 10-11. Officer
Chichearo and his partner were pursuing the Trailblazer when it encountered
traffic at Wakeling Street and Aramingo Avenue. Id. at 12. Officer Chichearo
explained:
The vehicle was stuck in traffic. Actually tried making its way
through some traffic. Bumped a few cars out of the way.
….
[T]he vehicle came to a stop. My partner got out of the vehicle.
Ran up to the driver’s side of that vehicle. And that’s when I saw
two males run from the passenger’s side of the vehicle from it
[sic] would be the front passenger door. And then [Appellant]
r[a]n from the rear passenger door.
….
I pursued [Appellant] and another unknown male southbound on
Aramingo.
Id. at 11-12.
Officer Chichearo apprehended Appellant “on the 2200 block of
[Wakeling] in the rear yard which is a block, a block and a half from the vehicle
stop where they fled from.” Id. at 13. Officer Chichearo and Appellant walked
past the Trailblazer. Officer Chichearo stated:
As I returned to the vehicle, both the passenger side doors, the
front and back, that I observed the males flee from[,] were both
still open. And as I walked [Appellant] back to my police vehicle,
I could look in the open door in the rear passenger door. And
right there on the floorboard I could see a black semiautomatic
firearm with the barrel facing towards me which I immediately
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knew to be a firearm. And I placed [Appellant] in the back of our
car.
Id. at 14.
Officer Chichearo identified Commonwealth’s Exhibit C-13 as the firearm
he saw on the floor of the Trailblazer. Id. at 16. Officer Chichearo described
the serial number of the firearm as “obliterated.” Id. Officer Chichearo
testified that he handles firearms daily as part of his job. Id. at 17. He further
explained that he is required to participate in firearms training and qualify at
a shooting range every year. Id. Officer Chichearo opined that the firearm
recovered from the Trailblazer was a functioning firearm. Id.
Officer Chichearo further described the firearm being “on the back
floorboard area on the passenger’s side partially sticking out.” Id. The officer
testified that approximately half of the firearm was “sticking out from the
floorboard towards the back.” Id. On cross-examination, Officer Chichearo
specified that the barrel was facing the back of the Trailblazer. Id. at 25.
When asked whether the Trailblazer had “slammed” into the back of another
vehicle, the officer stated:
I wouldn’t say slammed. It was more like trying to push it out of
the way. It was not enough damage. Where the other operator
was like, I don’t even want to make a report.
Id. Officer Chichearo explained the Trailblazer was not moving fast “because
we were literally stuck in heavy traffic. It was pretty heavy where they were.”
Id. at 26. Pertinently, Appellant stipulated that he did not have a license or
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permit to carry a firearm. Id. at 27. On these facts, we are not persuaded
by Appellant’s reliance on Armstead.
In Armstead, the firearm was recovered from the middle of the front
seat of the vehicle.
Philadelphia police officers … stopped an automobile in which
appellant was a passenger and requested that both the driver []
and appellant get out of the car. The original arresting officers did
not observe any weapon. However, while appellant was on the
sidewalk, next to the car, another police vehicle arrived on the
scene. One door of the car was open, and the interior lights were
on, enabling the police in the second vehicle to observe a .38
caliber automatic pistol lying in the middle of the front seat.
Armstead, 305 A.2d at 2. Our Supreme Court concluded there was
insufficient evidence of constructive possession by the appellant, who was the
passenger, because an “equally logical argument can be made that the
weapon was on the person of the driver during the time appellant was a
passenger ….” Id. Here, the facts are different and support the trial court’s
finding that Appellant constructively possessed the firearm recovered from the
rear of the Trailblazer.
Appellant was the sole occupant in the rear of the Trailblazer and Officer
Chichearo saw him exit from the rear of the passenger side where the firearm
was discovered. The firearm was accessible to Appellant and the barrel was
positioned toward the rear, i.e., toward Appellant, and partially under the front
passenger seat, when Appellant fled.
Appellant’s reliance on Townsend is also unavailing. In Townsend,
the police found a firearm partially concealed under the front passenger seat
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of a vehicle containing multiple occupants, but there was no evidence as to
where the defendant was seated. Townsend, 237 A.2d at 193-95. Here,
Appellant was the only person in the rear of the Trailblazer. N.T., 10/15/21,
at 11-12. Appellant’s first issues does not merit relief.
In his second issue, Appellant argues the evidence was insufficient to
sustain his conviction of carrying a firearm without a license and carrying a
firearm on the streets of Philadelphia. Appellant’s Brief at 33. Appellant
argues that the evidence did not establish beyond a reasonable doubt that the
firearm “was operable or capable of being converted into an object that could
fire a shot.” Id. Appellant asserts:
A determination that the gun recovered by Officer Chichearo was
operable or capable of being converted into an object that could
fire a shot can only be based upon conjecture, suspicion or
surmise in light of the evidence received at trial.
Id. at 35-36 (quotation marks and citation omitted).
The seminal case on firearm operability is Commonwealth v. Layton,
307 A.2d 843 (Pa. 1973). The Pennsylvania Supreme Court reversed a
conviction under the predecessor of 18 Pa.C.S.A. § 6105, where the record
demonstrated that the defendant’s firearm could not have been fired at the
time of his arrest. Layton, 307 A.2d at 845. Notably, our Supreme Court
stated: “A reasonable fact finder may, of course, infer operability from an
object which looks like, feels like, sounds like or is like, a firearm. Such an
inference would be reasonable without direct proof of operability.”
Id. at 844 (emphasis added).
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In Commonwealth v. Horshaw, 346 A.2d 340 (Pa. Super. 1975),
where an appellant claimed that the Commonwealth failed to present evidence
that a weapon was operable, we explained:
The Commonwealth need not show the weapon to have been
operable until evidence of its inoperability has been
introduced into evidence, and [b]ecause no evidence as to
inoperability was introduced into evidence, the appellant’s claim
is without merit.
Id. at 342 (emphasis added).
Instantly, Appellant presented no evidence that the firearm recovered
from the Trailblazer was inoperable. Thus, the Commonwealth was not
required to show the firearm was operable. See id.
In his third issue, Appellant argues the evidence was insufficient to
support his conviction of persons not to possess a firearm, as there was no
evidence the firearm was “designed to or may readily be converted to expel
any projectile by the action of an explosive or the frame or receiver of any
such weapon.” Appellant’s Brief at 38. Appellant is simply repeating his
challenge to the trial court’s “inference” that the weapon was capable of firing.
Id. As noted above, Appellant stipulated at trial that he did not have a license
or permit to carry a firearm. N.T., 10/15/21, at 27. This claim does not merit
relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2022
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