Com. v. Hamilton, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL HAMILTON
Appellant No. 560 WDA 2015
Appeal from the Judgment of Sentence March 3, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0014737-2013
BEFORE: LAZARUS, J., STABILE, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 23, 2016
Michael Hamilton appeals from the judgment of sentence, entered in
the Court of Common Pleas of Allegheny County, following his conviction for
possession of a firearm by a person prohibited.1 After careful review, we
affirm.2
At trial, the Commonwealth presented evidence that Hamilton and
Daniel Nelson were involved in selling heroin. Hamilton and Nelson shared
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 6105(a)(1).
2
Hamilton was also convicted of several offenses related to the possession
and distribution of drugs. He does not appeal from the judgments of
sentence imposed for those convictions.
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an apartment in a four-unit building located at 620 North Sheridan Avenue in
Pittsburgh.
On July 25, 2013, Detective Shiela Ladner purchased heroin from
Nelson. On August 22, 2013, Detective Ladner arranged to meet Nelson at
the same location to purchase thirty stamp bags of heroin for $240.00. As
part of this operation, Detective Daniel Zeltner was conducting surveillance
outside 620 North Sheridan Avenue when he observed Nelson leave the
building. Shortly thereafter, he received notification that Nelson had been
arrested for selling heroin to the detective. As the trial court noted:
Soon thereafter, [Hamilton] left the apartment building and
began walking toward the area where Detective Ladner was
located. As soon as he left the front entrance of the building,
the [Hamilton] stopped and turned back. He reached back
toward the threshold of the common doorway and reached down
to his right. [Hamilton] then stood up and walked outside onto
the street.
At that point, [Hamilton] began walking down the street. Police
officers pulled up beside him in unmarked vehicles. As Officer
Derbish exited his police vehicle in full uniform, [Hamilton]
began to flee the area. Officer Derbish yelled, “Stop, police!”
and, “You’re under arrest.”
...
A Glock .40 caliber pistol was recovered in a common hallway
just to the right of the common entranceway of the apartment
building. It was the precise area where [Hamilton] was
observed leaning and reaching toward as he exited the
apartment building. It was wrapped in a large pair of shorts.
...
After [Hamilton] was arrested, Officer Zeltner did a search on
Facebook and located [Hamilton’s] profile. Officer Zeltner
located a photograph of [Hamilton] in which [he] is holding a
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Glock firearm. From this [c]ourt’s perspective, the firearm in the
Facebook photograph is very similar, if not identical, to the
firearm seized in this case.
Trial Court Opinion, 5/14/15, at 3-5.
On September 28, 2014, at the conclusion of a nonjury trial, the court
convicted Hamilton of several offenses. On March 3, 2015, the court
sentenced Hamilton to three to six years of incarceration for firearms
possession plus five years’ probation for possession with intent to deliver.
Hamilton then filed this timely appeal in which he challenges the sufficiency
of the evidence to support a conviction for persons not to possess a firearm.
Our standard of review in assessing a challenge to the sufficiency of
the evidence is well-settled. “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.” Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.
Super. 2013). “Any doubts concerning an appellant’s guilt [are] to be
resolved by the trier of fact unless the evidence was so weak and
inconclusive that no probability of fact could be drawn therefrom.”
Commonwealth v. West, 937 A.2d 516, 523 (Pa. Super. 2007). “[T]he
Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
evidence.” Commonwealth v. Perez, 931 A.2d 703, 707 (Pa. Super.
2007).
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Possession of a firearm by a prohibited person is defined, in relevant
part, as follows:
§ 6105. Persons not to possess, use, manufacture,
control, sell, or transfer firearms
(a) Offense defined
(1) 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. § 6105(a)(1).
Hamilton had been previously convicted of robbery, an enumerated
offense under section 6105(b). Hamilton does not contest this. However,
Hamilton argues that the evidence was insufficient to prove constructive
possession. We disagree.
Because there was no evidence that the Hamilton was in actual
possession of the firearm at the time it was recovered, the Commonwealth
must rely on constructive possession. Commonwealth v. Sanes, 955 A.2d
369, 373 (Pa. Super. 2008). Constructive possession is “the ability to
exercise a conscious dominion over the illegal substance, the power to
control the contraband and the intent to exercise that control.”
Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa. 1983). Possession
can be proved by circumstantial evidence. Commonwealth v. Bentley,
419 A.2d 85, 87 (Pa. Super. 1980). Constructive possession is proven when
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contraband is discovered in an area of joint control and joint access, given
“the totality of the circumstances.” Commonwealth v. Mudrick, 507 A.2d
1212, 1214 (Pa. 1986).
In Mudrick, police arrived at the home of Sandra Dietz to serve a New
Jersey warrant upon her. The defendant answered the door and told police
he lived there. Police, upon entering the home, saw marijuana on the coffee
table in the living room. After obtaining a search warrant for the rest of the
home, they found cocaine in the only bedroom in the house. The defendant
was found guilty of possession, but this Court reversed. Our Supreme
Court, in reversing this Court, stated that “[g]iven the totality of the
circumstances, joint control, equal access, and evidence that the cocaine
was found in plain view, the jury could have found constructive possession.”
Id.
As in Mudrick, Hamilton’s weapon was found in an area of joint
control and equal access. Moreover, the evidence showed that police saw
Hamilton exit his apartment building, turn back through the doorway of the
common entrance, and reach down to his right. This was the exact location
where the weapon was found. Furthermore, Hamilton’s Facebook photo
showed a weapon, “which exactly matched the firearm recovered in the
incident.” N.T. Trial, 9/28/14, at 10. Accordingly, the evidence is sufficient
to show the ability to exercise conscious dominion over the weapon, the
power to control it and the intent to exercise that control.
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Hamilton relies on Commonwealth v. Burkley, 443 A.2d 1182 (Pa.
Super. 1982,) to support his position that constructive possession was not
established in this case. We find that case inapposite. In Burkley, the trial
court determined that a prisoner constructively possessed a sharpened
screwdriver that was found in his cell. On appeal, this Court reversed
because all sixty-four cells within the cellblock were left open during the day,
and inmates were free to leave their cells unattended. “The mere fact of
appellant’s residency in the cell is insufficient to raise the inference that he
exercised the requisite intent to control the screwdriver when guards and
other inmates had and exercised access to the cell.” Id. at 1184. Here, in
contrast, police were monitoring Hamilton’s actions and saw him reach into
the common hallway where soon thereafter they found a gun wrapped in a
large pair of undershorts. While Detective Zeltner had the building under
surveillance, the only people he saw enter and exit were Nelson and
Hamilton. N.T. Trial, 9/28/14, at 50. Accordingly, Hamilton’s reliance on
Burkley is misplaced.
Because the Commonwealth presented sufficient evidence to establish
constructive possession, Hamilton is not entitled to relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2016
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