Com. v. Lachman, B.

J. S12032/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BRIAN D. LACHMAN, : No. 1578 MDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, September 19, 2017,
in the Court of Common Pleas of Berks County
Criminal Division at No. CP-06-CR-0003799-2016
BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 03, 2018
Brian D. Lachman appeals from the September 19, 2017 judgment of
sentence in which the Court of Common Pleas of Berks County sentenced
appellant to serve 5 to 10 years1 for his conviction of persons not to
possess, use, manufacture, control, sell, or transfer firearms.2 After careful
review, we affirm.
The trial court summarized the relevant facts, as follows:
On June 17, 2016, Berks County police officers
executed a search warrant at 1315 Green Hills Road,
Birdsboro, Berks County, Pennsylvania (hereinafter
referred to as “the Residence”). Entry was made
into the Residence and [a]ppellant was located in the
first floor bathroom. Appellant and his wife were
taken into the kitchen area on the first floor of the
1 Appellant received credit for 444 days of time served.
2 18 Pa.C.S.A. § 6105(a)(1).
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Residence. They were both read their Miranda[3]
rights and waived those rights. Officers entered and
searched the second floor bedroom of the Residence
belonging to [a]ppellant and his wife. As a result of
the search, officers located a loaded Jiminez nine
millimeter pistol on [a]ppellant’s side of the
bedroom. A .22 caliber rifle was also located within
the bedroom. Police officers proceeded to search an
additional room on the second floor and located a
loaded H & R single shot twelve gauge shotgun
between the outside wall and inner wall of the closet.
Shotgun shells were also located inside of the
additional room. Appellant admitted that the
Jimenez pistol belonged to him and that he was
going to obtain money in exchange for the pistol.
Appellant has a prior conviction for delivery of a
controlled substance from August 13, 2004.
Appellant was not permitted to possess, own or be in
control of a firearm.
Trial court opinion, 11/20/17 at 2-3 (citations to record omitted).
On September 27, 2017, appellant filed a post-sentence motion for a
new trial. The trial court denied the motion on September 29, 2017. On
October 13, 2017, appellant filed a notice of appeal. On October 18, 2017,
the trial court ordered appellant to file a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b). On October 19,
2017, appellant complied with the order. On November 20, 2017, the trial
court filed its opinion pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issue for this court’s review:
Did the trial court err when it failed to instruct the
jury as to Standard Jury Charge (Crim) 16.02(b)(A)
Controlled Substance, “Possession” [d]efined as
requested by [appellant] and instead relying on a
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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one sentence instruction as part of a larger
instruction as to the enumerated offense in Standard
Jury Charge 15.6105 (Crim), despite the fact that
the definition of possession is not crime specific and
was therefore a correct statement of the law and the
main factual issue at hand for the jury to determine
was whether [appellant] was in possession of the
weapons found in a home where he was arrested but
denied residency as opposed to being found on his
person[?]
Appellant’s brief at 4 (footnotes omitted).
We review a challenge to a jury instruction for an
abuse of discretion or an error of law.
Commonwealth v. Brown, 911 A.2d 576, 582-83
(Pa.Super. 2006). We must consider the charge as a
whole, rather than isolated fragments. See
[Commonwealth v.] Lesko, 15 A.3d [345], 397
[Pa. 2011]; Commonwealth v. Simpson, 620 Pa.
60, 66 A.3d 253, 274 (2013). We examine the
entire instruction “against the background of all
evidence presented, to determine whether error was
committed.” Commonwealth v. Grimes, 982 A.2d
559, 564 (Pa.Super. 2009) (quoting Buckley v.
Exodus Transit & Storage Corp., 744 A.2d 298,
305 (Pa.Super. 1999)). “A jury charge is erroneous
if the charge as a whole is inadequate, unclear, or
has a tendency to mislead or confuse the jury rather
than clarify a material issue.” Id. (quoting Buckley,
744 A.2d at 305). “Therefore, a charge will be found
adequate unless the issues are not made clear to the
jury or the jury was palpably misled by what the trial
judge said.” Id. (quoting Buckley, 744 A.2d at
305-06). Furthermore, “[o]ur trial courts are
invested with broad discretion in crafting jury
instructions, and such instructions will be upheld so
long as they clearly and accurately present the law
to the jury for its consideration.” Simpson, 66 A.3d
at 274. “The trial court is not required to give every
charge that is requested by the parties and its
refusal to give a requested charge does not require
reversal unless the [a]ppellant was prejudiced by
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that refusal.” Commonwealth v. Thomas, 904
A.2d 964, 970 (Pa.Super. 2006).
Commonwealth v. Rush, 162 A.3d 530, 540 (Pa.Super. 2017), appeal
denied, 170 A.3d 1049 (Pa. 2017).
Appellant contends that because he denied that he was a resident of
1315 Green Hills Road, his presence in the downstairs bathroom at the time
of police entry did not show that he had the intent and power to control the
weapons found on the second floor. He argues that the trial court should
have instructed the jury fully on the issue of constructive possession and
what it means to have intent and power to control. (Appellant’s brief at
8-9.)
With respect to constructive possession, this court has held:
When contraband is not found on the
defendant’s person, the Commonwealth must
establish “constructive possession,” that is, the
power to control the contraband and the intent to
exercise that control. Commonwealth v. Valette,
531 Pa. 384, 613 A.2d 548 (1992). The fact that
another person may also have control and access
does not eliminate the defendant’s constructive
possession . . . . As with any other element of a
crime, constructive possession may be proven by
circumstantial evidence. Commonwealth v.
Macolino, 503 Pa. 201, 469 A.2d 132 (1983). The
requisite knowledge and intent may be inferred from
the totality of the circumstances. Commonwealth
v. Thompson, 286 Pa.Super. 31, 428 A.2d 223(1981).
Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa.Super. 1996), appeal
denied, 692 A.2d 563 (Pa. 1997).
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Here, the trial court explained that the parties stipulated that appellant
had a prior conviction that prevented him from possessing a firearm. The
trial court read from Pennsylvania Suggested Standard Jury
Instruction 15.6105, “For a person to possess a firearm, he or she must
have the intent to control and the power to control the firearm.” (Notes of
testimony, 9/19/17 at 144.) This language closely mirrors the definition of
constructive possession.
Appellant requested at the start of the jury trial that the trial court
instruct the jury under Pennsylvania Suggested Standard Jury Instruction
(Crim) 16.02(b)(A). (Notes of testimony, 9/19/17 at 4-7.) Appellant
focused on paragraphs 4-64 that provide:
4. A person can be guilty of possessing an item
even when he or she is not holding it, touching
it, or in the same area as the item. That type
of possession is what the law calls constructive
possession. For there to be constructive
possession, it must be proved beyond a
reasonable doubt that the individual had both
the intent to control the item and the power to
control the item.
5. In determining whether or not the defendant
had possession of a controlled substance, you
should consider evidence of all facts and
circumstances that may shed light on the
question of whether the defendant had the
intent to control and the power to control that
substance.
4 Although this instruction pertains to drug possession, the Commonwealth
conceded that possession was the same whether it was possession of a
firearm or a controlled substance. (Id. at 147.) Appellant planned for the
trial court to substitute “firearm” for “substance.”
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6. Two or more persons may have joint
possession of a controlled substance and that
each has the power to control it. Each of the
joint possessors is regarded as having
possession of the substance for purposes of
the criminal law.
Pennsylvania Suggested Standard Jury Instruction (Crim) 16.02(b)(A).
While Instruction 16.02(b)(A) has a more detailed explanation of
constructive possession, both instructions focus on the intent to control and
the power to control. Although appellant asserts that the jury instruction he
requested would have clarified the meaning of and requirements for
constructive possession, the charge the trial court gave was not inadequate,
unclear, or did not have a tendency to mislead the jury. Further, because
Officer Matthew Smith of the Robeson Township Police Department testified
that appellant admitted to him that the pistol found at the residence
belonged to him (id. at 99), and the jury was read a clear instruction
regarding constructive possession, appellant failed to establish that he
suffered any prejudice from the trial court’s failure to read the requested
instruction. Consequently, the charge did not constitute an abuse of
discretion or an error of law.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/3/2018
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