Com. v. Sands, D.

J-A06036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANEEN SANDS,
Appellant No. 1902 EDA 2015
Appeal from the Judgment of Sentence May 28, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010798-2014
BEFORE: PANELLA, SHOGAN, and RANSOM, JJ.
DISSENTING MEMORANDUM BY SHOGAN, J.: FILED JULY 11, 2017
Because I conclude that the record supports the trial court’s finding of
constructive possession, I would affirm the judgment of sentence.
Accordingly, I respectfully dissent.
Possession of contraband may be proven by constructive possession,
which is defined as follows:
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.
J-A06036-17
Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (citations
omitted).
The Majority takes the position that “the Commonwealth presented no
evidence of Appellant’s connection to the room where the firearms were
stored.” Majority Memorandum at 5. However, the record reveals that the
guns were located in a common area of the home, i.e., an area to which all
occupants of the house had access. Officer Lance Cannon testified that the
closet, the hidden compartment in the closet where the guns were hidden,
and the switch used to operate the compartment were located in the living
room of the house. N.T., 2/13/15, at 20. Thus, the Commonwealth did
establish that Appellant had access to and a connection with this common
room in the house.
Moreover, Commonwealth v. Wisor, 353 A.2d 817 (Pa. 1976), and
Commonwealth v. Harlow, 408 A.2d 479 (Pa. Super. 1979), the cases
upon which the Majority relies, are readily distinguishable. Wisor involved a
marijuana pipe that was discovered under the passenger seat of a car with
multiple occupants. However, the appellant, who was the owner of the car,
never admitted knowing the pipe was present in the vehicle. In Harlow,
marijuana and a shotgun were found in a home the appellant shared with
others. When officers asked the appellant about the firearm, the appellant
said, “Well, you’re arresting me for marijuana that you found in a woman’s
pocketbook, so I guess anything you find in the house it must belong to
me.” Id. at 480. This Court concluded that the appellant’s “wise toned”
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remark was not an admission and did not show the appellant possessed the
gun. Id. at 480-481. Thus, Wisor and Harlow are distinguishable because
the appellants made no admissions with respect to any relevant facts.
Conversely, in the case at bar, Appellant made detailed admissions.
Appellant admitted to precise and particularized knowledge of the secret
compartment in the victim’s house, where it was located, how it operated,
and its contents. Officer Mark Schmidheiser testified that when he
questioned Appellant about the theft of the guns, Appellant admitted that
she knew the victim owned handguns, that there was a secret compartment,
and that the victim kept guns in that compartment. N.T., 2/13/15, at 74.
Appellant further admitted knowing details about the compartment and its
operating mechanism. Id. at 74-76. Appellant had this information despite
the victim testifying that he never showed anyone the hidden compartment
and kept it secret. Id. at 33-35. Appellant stated that she told no one
about the compartment, id. at 76, and the victim testified that he did not
even show his brother when he came to live there because he wanted the
compartment to be a secret. Id. at 38.
In sum, the evidence reveals that the house had three occupants:
Appellant, the victim, and the victim’s brother. Only Appellant and the
victim were aware of the hidden compartment containing the handguns, and
those handguns were removed. After reviewing the evidence in the light
most favorable to the Commonwealth, I cannot agree that the trial court
erred. I conclude that, under the totality of the circumstances, the
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evidence, both direct and circumstantial, was sufficient to establish that
Appellant had constructive possession of the firearms. Accordingly, I would
affirm Appellant’s judgment of sentence.
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