Com. v. Dillion, M.

J-S16006-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW DILLION :
:
Appellant : No. 1357 EDA 2019
Appeal from the Judgment of Sentence Entered May 2, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006855-2018
BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED APRIL 21, 2020
Appellant, Matthew Dillon, appeals from the May 2, 2019 Judgment of
Sentence entered in the Philadelphia County Court of Common Pleas following
his conviction after a bench trial of Possessing a Firearm Prohibited, Carrying
a Firearm Without a License, Carrying a Loaded Weapon, Carrying a Firearm
on a Public Street, and Knowing and Intentional Possession of a Controlled
Substance.1 After careful review, we affirm.
The charges in this case stem from the police search of a parked vehicle
in which Appellant was sitting in the driver’s seat. The facts most relevant to
this appeal, as gleaned from the Notes of Testimony, are as follows. On
January 9, 2018, Philadelphia Police Officers Connor Dooley and John Teetz
were in their patrol vehicle when they observed a white Nissan parallel-parked
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118 Pa.C.S. §§ 6105, 6106, 6106.1, and 6108, and 35 P.S. § 780-113(a)(16),
respectively.
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legally on the side of the road with its engine running. As they approached
the Nissan, still in their patrol vehicle, the officers observed the windows roll
up quickly and noticed the engine shut off. The Nissan’s heavily-tinted
windows obscured the officers’ view into the car and they initially could not
tell if there were any passengers inside.
The officers stopped their vehicle parallel to the parked Nissan. From
this vantage point, Officer Dooley observed two men sitting in the front of the
Nissan: Appellant in the driver’s seat, David Lerma (“Lerma”) in the front
passenger seat, and Mr. Daut in the back seat.2 Officer Teetz directed the
car’s passengers to roll down the windows. The men inside the car complied,
and the officers immediately smelled a strong odor of fresh marijuana.3
Upon detecting the odor of marijuana, Officer Teetz put their police
vehicle into park. Officer Dooley began to exit the police vehicle, whereupon
Appellant exited the Nissan and fled.4 Officer Dooley unsuccessfully gave
chase. He returned to the police vehicle where he saw that Officer Teetz had
drawn his gun and was pointing it at Lerma and Mr. Daut. The officers
instructed the men to exit the Nissan and placed them in handcuffs. A frisk
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2 The Notes of Testimony do not provide Mr. Daut’s first name, and the
stenographer noted in the transcript her uncertainty about the spelling of Mr.
Daut’s name.
3 This is in contrast to the odor of burnt, or smoked, marijuana, which the
officers did not smell emanating from the vehicle.
4 Officer Dooley described the man who fled from the driver’s side of the
Nissan as a white male with a red beard.
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of Lerma resulted in the discovery and seizure of thirteen clear packets filled
with marijuana from his right sweatshirt pocket.
Officer Dooley then conducted a search of the Nissan. During the
search, he observed in plain view under the driver’s seat the butt of a
handgun. The handgun was operable, had a bullet in the chamber, and had
six live rounds in the magazine. Officer Dooley also found a bundle of 25
plastic containers containing crack cocaine in a pocket on the passenger door,
and, in the glove compartment, 12 clear plastic containers with a green leafy
substance consistent with what he found on Lerma’s person. In the center
console, he found 2 medium-sized clear plastic bags and 17 clear containers
also filled with the same green leafy substance. In between the front
passenger seat and the center console, Officer Dooley discovered a .22 caliber
handgun. In the back seat, he found numerous empty containers and a scale.
Officer Dooley did not see Appellant operate the vehicle or make any
moves inside the vehicle before Appellant fled. He likewise did not see
Appellant with anything in his hands or jettison anything from his person as
he ran away. He did see Mr. Daut make furtive movements in the back seat.
Officer Dooley’s investigation revealed that Appellant was not the owner of
the white Nissan.
The next day, Officer Dooley participated in a photographic identification
session. He identified a photograph depicting Appellant, and he later testified
that he was seventy percent sure that the person in the photograph is the
person who fled from the Nissan. Officer Dooley noted that Appellant’s red
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beard specifically stood out to him. Officer Teetz also identified Appellant as
the person he spoke with, and who ran from the car.
Police arrested Appellant, and the Commonwealth charged him with
Possessing a Firearm Prohibited, Carrying a Firearm Without a License,
Carrying a Loaded Weapon, Carrying a Firearm on a Public Street, Knowing
and Intentional Possession of a Controlled Substance, and Possessing a
Controlled Substance With Intent to Deliver.
Appellant proceeded to a bench trial on February 11, 2019. At
Appellant’s trial, the Commonwealth presented the testimony of Officers
Dooley and Teetz. At the close of the Commonwealth’s case, Appellant moved
for a Judgment of Acquittal, which the trial court granted in part and denied
in part.5 Appellant did not testify or offer any evidence on his own behalf. 6
Following the trial, the court convicted Appellant of the above charges.
On May 2, 2019, the court sentenced Appellant to a term of two to five
years’ incarceration on his Possessing a Firearm Prohibited conviction,
followed by five years’ probation. The court also sentenced Appellant to two
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5 The court granted Appellant’s Motion for Judgment of Acquittal on charges
of Possessing a Controlled Substance With Intent to Deliver and Criminal
Conspiracy.
6Appellant and the Commonwealth stipulated that, for purposes of 18 Pa.C.S
§ 6105, Appellant is ineligible to possess a firearm based on a prior conviction.
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concurrent terms of five years’ probation on Appellant’s Carrying a Firearm
Without a License and Carrying a Firearm on a Public Street convictions.7
This timely appeal followed.8 Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following two issues on appeal:
[1.] Whether the [t]rial [c]ourt erred by denying the Motion for
Acquittal as to all charges?
[2.] Whether the [t]rial [c]ourt erred by finding [Appellant] guilty
of some of the charges?
Appellant’s Brief at xii.
In his first issue, Appellant purports to challenge the trial courts’ denial
of his Motion for Judgment of Acquittal as to “all charges.” Before we reach
the merits of this claim, we must consider whether Appellant has preserved
it.
Although Appellant asserts in his Brief that the Commonwealth’s
evidence was insufficient “to establish all of the elements for each offense[,]”
he has developed his sufficiency claim only as it pertains to his convictions of
Possession of Firearm Prohibited and Possession of a Controlled Substance.
Id. at 10-17. Because Appellant has not set forth any argument challenging
the sufficiency of the Commonwealth’s evidence in support of his Carrying a
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7 The court imposed no further penalty on Appellant’s Carrying a Loaded
Weapon and Knowing and Intentional Possession of a Controlled Substance
convictions.
8 Appellant did not file any post-trial motions.
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Firearm Without a License, Carrying a Loaded Weapon, or Carrying a Firearm
on a Public Street convictions, we find these claims waived. See Pa.R.A.P.
2119(a); Commonwealth v. Luktisch, 680 A.2d 877, 879 n.1 (Pa. 1996)
(holding that an issue is waived where the defendant failed to develop an
argument in his appellate brief and cited no authority).
Appellant’s Issues
We turn now to Appellant’s claims that the trial court erred in not
granting his Motion for Judgment of Acquittal on the Possession of Firearm
Prohibited and Knowing and Intentional Possession of a Controlled Substance
charges because the Commonwealth did not present evidence to prove each
element of the charges. Appellant’s Brief at 11-17. With respect to the
Possession of a Firearm Prohibited conviction, Appellant asserts that his mere
presence in the vehicle and his flight from the vehicle, absent other evidence,
were insufficient to prove that he constructively possessed the firearm found
by Officer Dooley found under the driver’s seat. Id. at 13. He further asserts
that the passenger sitting in the front passenger seat had greater access to
and control over the firearm. Id.
With respect to his Knowing and Intentional Possession of a Controlled
Substance conviction, Appellant argues that he could not have constructively
possessed the drugs since they were not on his person or accessible to him.9
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9 In support of this argument, Appellant has mischaracterized the location of
the drugs found in the car, claiming that “the center console only contained
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Id. at 17. To this end, Appellant has mischaracterized the location of the
drugs found in the car, erroneously claiming that “the center console only
contained drug paraphernalia, and the drugs were either found in the back
seat of the vehicle . . . or on Lerma’s person.”
Standard of Review
We review claims regarding the sufficiency of the evidence by
considering 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.”10
Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014) (citation
omitted). Further, a conviction may be sustained wholly on circumstantial
evidence, and the trier of fact—while passing on the credibility of the witnesses
and the weight of the evidence—is free to believe all, part, or none of the
evidence. Id. at 40 (citation omitted). “Because evidentiary sufficiency is a
matter of law, our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Brooker, 103 A.3d 325, 330 (Pa. Super.
2014).
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drug paraphernalia, and the drugs were either found in the back seat of the
vehicle . . . or on Lerma’s person.” Appellant’s Brief at 17. Officer Dooley’s
testimony, found credible by the trial court, that he found drugs in the pocket
in the passenger side door, in the glove compartment, and in the center
console belies this assertion. N.T. at 25.
10We review the trial court’s denial of a motion for a judgment of acquittal
under the same standard. Commonwealth v. Emanuel, 86 A.3d 892, 894
(Pa. Super. 2014).
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The trial court convicted Appellant of both firearm charges and drug
charges. Appellant’s drug conviction was based upon the Controlled
Substance, Drug, Device & Cosmetic Act, 35 P.S. § 780-101, et seq. Section
780-113(a)(16) of the Controlled Substance, Drug, Device & Cosmetic Act
requires the Commonwealth to prove that a defendant “[k]nowingly or
intentionally possess[ed] a controlled or counterfeit substance.” 35 P.S. §§
780-113(a)(16) (emphasis added).
Appellant’s firearm conviction was based on Section 6105 of the Uniform
Firearms Act, which prohibits, in relevant part, a person convicted of an
enumerated offense from possessing a firearm.11 18 Pa.C.S § 6105(a)(1).
Both types of convictions require the Commonwealth to prove that
Appellant “possessed” the contraband. The Crimes Code defines the term
“possession” as “an act, within the meaning of this section, if the possessor
knowingly procured or received the thing possessed or was aware of his
control thereof for a sufficient period to have been able to terminate his
possession.” 18 Pa.C.S. § 301(c). Because possession is the only statutory
element Appellant challenges, we address his two issues together.
Constructive Possession
We have held that “[p]ossession 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
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11Appellant does not dispute that he is a person convicted of an offense
enumerated in Section 6105.
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omitted). Where a defendant is not in actual possession of the prohibited
items, the Commonwealth must establish that the defendant had constructive
possession to support the conviction. Commonwealth v. Hopkins, 67 A.3d
817, 820 (Pa. Super. 2013). “Constructive possession is a legal fiction, a
pragmatic construct to deal with the realities of criminal law enforcement.”
Id. at 820 (citation omitted). “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.” Id. (citation omitted).
“To aid application, we have held that constructive possession may be
established by the totality of the circumstances.” Id. (citation omitted).
It is well established that, “[a]s with any other element of a crime,
constructive possession may be proven by circumstantial evidence.”
Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996) (citation
omitted). See, e.g., Commonwealth v. Davis, 743 A.2d 946, 953-54 (Pa.
Super. 1999) (holding that evidence was sufficient to prove constructive
possession over drugs found in common areas of an apartment where the
defendant entered the apartment using his own key, possessed $800 in cash
on his person, and police recovered defendant’s identification badge, size-
appropriate clothing, and firearms from a bedroom). The Commonwealth can
prove constructive possession if the defendant shared with another actor or
actors equal access and joint control of an area where the drug or gun was
located. Commonwealth v. Mudrick, 507 A.2d 1212, 1214 (Pa. 1986).
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In addition, evidence of flight is admissible to establish an inference of
a defendant’s consciousness of guilt. Commonwealth v. Spotz, 870 A.2d
822, 825 n.10 (Pa. 2005). See also Commonwealth v. Johnson, 838 A.2d
663, 681 (Pa. 2003) (same).
In the instant case, the trial court, which sat as the finder of fact,
explained its verdict of guilt as follows:
The evidence, when viewed in the light most favorable to the
Commonwealth, clearly established that Appellant constructively
possessed the gun found under his seat and some of the drugs
secreted in various locations in the car, including the center
console. That is because a gun was found under the seat
Appellant was sitting in and some of the drugs were collected from
the center console, locations [to] which Appellant had easy access
[]. In addition, Appellant manifested consciousness of guilt by
fleeing the vehicle after the police began to get out of their vehicle.
Trial Ct. Op., 9/10/19, at 8 (citations omitted).
We agree with the trial court that in light of the controlling authority,
and viewing the circumstantial and direct evidence in the light most favorable
to the Commonwealth as verdict-winner as we must, the Commonwealth’s
evidence was sufficient to prove that Appellant constructively possessed the
gun and the drugs found by police in the Nissan. See, e.g., Commonwealth
v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996) (constructive possession
established where the appellant was the driver of the car and the contraband
was recovered from the glove compartment and trunk, which are “areas
usually only accessible to the operator of a vehicle”); Commonwealth v.
Bentley, 419 A.2d 85, 87 (Pa. Super. 1980) (constructive possession
established where the appellant was the driver because the gun was within
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the appellant’s easy reach, two bullets were near the driver’s door, and police
saw the appellant and a passenger locking the car’s doors after the police
responded to the scene where the car had been in an accident). Accordingly,
Appellant’s claim that the trial court erred in not granting his Motion for
Judgment of Acquittal of his two possessory offenses fails because the
Commonwealth’s evidence was sufficient.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/21/2020
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