Com. v. McCoy, B.

J-A12018-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRANDON MCCOY :
:
Appellant : No. 976 WDA 2019
Appeal from the Judgment of Sentence Entered May 30, 2019
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0014245-2017
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED JULY 24, 2020
Appellant, Brandon McCoy, appeals from the judgment of sentence
entered in the Allegheny County Court of Common Pleas, following his bench
trial conviction for persons not to possess firearms.1 After careful review, we
reverse Appellant’s conviction, vacate the judgment of sentence, and remand
for resentencing.
The trial court opinion summarized the relevant facts of this case as
follows.
On August 15, 2017, City of Pittsburgh Detectives were in
the area of 255 East Ohio Street as part of a buy-bust, drug
delivery operation wherein Appellant was the target. During
the course of the operation, the facts of which are irrelevant
to the matters on appeal, Appellant was arrested in a
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 6105(a)(1).
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parking lot near a housing complex. After the arrest, police
came in contact with Appellant’s mother, a resident of the
adjacent housing complex. Although Detectives did not
observe Appellant either enter or exit the housing complex
on August 15, 2017, they did ask Appellant’s mother for
permission to search her residence, having information that
Appellant had previously listed this as his residence. Upon
receiving consent, police conducted a search and located a
shoebox outside of a second floor bedroom that contained
indicia for Appellant and a .380 caliber pistol. The indicia
included bank statements, greeting cards and court
documents all in [Appellant’s name], along with
photographs of Appellant. This firearm was subsequently
examined by the County Crime Lab and was deemed
inoperable in the submitted condition. At trial, the
Commonwealth also presented a recording of a call made by
Appellant from the Allegheny County Jail, wherein he speaks
about a pistol, referencing that it is from high school and
doesn’t work.[2] The Commonwealth submitted a certified
copy of a felony conviction of Appellant’s as evidence of him
being a person not to possess a firearm.
The defense called Appellant’s mother, Bonitta Wilmore, as
a witness. Ms. Wilmore testified that she has lived at the
apartment for eighteen (18) years, but that Appellant has
not lived there since 2012. Although his mother attempted
to minimize the amount of time she sees Appellant at her
residence, [the trial court concluded] that she serves as a
primary caregiver for his four (4) year old son, her
grandson, and therefore, has fairly regular contact with
Appellant. In fact, this child was present at the apartment
on the day of Appellant’s arrest and search of the residence.
The second and last witness called by the defense was
Appellant’s father, Raymond McCoy, who claimed
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2 At trial, the Commonwealth submitted the recordings, as well as a transcript,
into evidence. (See N.T. Trial, 9/26/18, at 30-31). Although these exhibits
are not included in the certified record on appeal, Appellant included a copy
of the relevant portion of the transcript in his appellate brief. (See Appellant’s
Brief at Appendix D). The Commonwealth does not dispute the accuracy of
this copy, wherein Appellant referenced the firearm by saying, “Dat shit don’t
work, that shit was from … high school.” (Id.)
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responsibility for the gun. Mr. McCoy, who has not resided
in that apartment for … at least sixteen (16) years, testified
that he brought the gun into the residence about fifteen (15)
years earlier.
(Trial Court Opinion, filed October 28, 2019, at 2-4) (internal footnotes
omitted).
The Commonwealth charged Appellant with persons not to possess
firearms, possession of a controlled substance,3 possession of a controlled
substance with intent to deliver (“PWID”),4 and conspiracy.5 The court
severed the firearms charge, and Appellant entered a negotiated guilty plea
for the remaining offenses. Appellant proceeded to a bench trial for the
firearms offense, and the court found him guilty. The court conducted
Appellant’s sentencing hearing on January 3, 2019. At that time, the court
sentenced Appellant to forty-five (45) to ninety (90) months’ incarceration for
the firearms offense. The court also imposed a consecutive term of
imprisonment for Appellant’s drug offenses. (See N.T. Sentencing, 1/3/19,
at 26). Appellant did not file post-sentence motions.
On January 23, 2019, Appellant filed a motion for reinstatement of his
right to file post-sentence motions and a direct appeal nunc pro tunc. The
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3 35 P.S. § 780-113(a)(16).
4 35 P.S. § 780-113(a)(30).
5 18 Pa.C.S.A. § 903.
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court granted Appellant’s motion on January 29, 2019, permitting Appellant
to file post-sentence motions nunc pro tunc within 30 days of receipt of the
trial and sentencing transcripts. On March 12, 2019, Appellant filed a nunc
pro tunc post-sentence motion,6 challenging the sufficiency of the evidence
and the sentence imposed. On May 30, 2019, the court granted relief in part.
Specifically, the court resentenced Appellant to thirty-three (33) to sixty-six
(66) months’ incarceration. Again, the court ordered the sentence for the
firearms conviction to run consecutive to the sentence for the PWID
conviction. (See Order, dated 5/30/19, at 1). On June 20, 2019, the court
denied Appellant’s remaining sufficiency claims.
Appellant filed a timely notice of appeal on July 1, 2019. On July 11,
2019, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Appellant timely filed his Rule
1925(b) statement on July 31, 2019.
Appellant now raises two issues on appeal:
Is the evidence insufficient to show that Appellant had
knowledge of the presence and location of the firearm or
that Appellant had the intent and power to control the
firearm?
Is the evidence insufficient because the Commonwealth
failed to present sufficient evidence that Appellant
possessed the firearm on August 15, 2017, the date alleged
in the criminal information, or any other fixed date within
the statutory period?
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6 Appellant stated he received the sentencing transcript on February 14, 2019.
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(Appellant’s Brief at 4).
In his two issues, Appellant contends the trial court based its verdict on
speculation, theorizing that Appellant would use the firearm to collect money
from drug customers who did not provide prompt payment. Appellant
emphasizes the Commonwealth presented no evidence of such a scenario, as
the police witnesses’ testimony was limited to one transaction where Appellant
facilitated the delivery of drugs to an undercover officer. Appellant
acknowledges the statements he made on the recorded prison calls, but he
maintains the statements are circumstantial evidence limited to his knowledge
of the firearm’s existence. Appellant insists there is no circumstantial or direct
evidence to prove his intent to control the firearm. Absent more, Appellant
concludes the Commonwealth presented insufficient evidence to support his
firearms conviction. We agree.
Our standard of review for sufficiency claims is as follows:
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. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may
be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
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above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
[trier] of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe
all, part or none of the evidence.
Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal
denied, 641 Pa. 63, 165 A.3d 895 (2017) (quoting Commonwealth v.
Hansley, 24 A.3d 410, 416 (Pa.Super. 2011)).
“As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.” Commonwealth v. Rahman, 75 A.3d 497, 500
(Pa.Super. 2013) (quoting Commonwealth v. Pettyjohn, 64 A.3d 1072,
1074 (Pa.Super. 2013)).
However, the inferences must flow from facts and
circumstances proven in the record, and must be of such
volume and quality as to overcome the presumption of
innocence and satisfy the [factfinder] of an accused’s guilt
beyond a reasonable doubt. The trier of fact cannot base a
conviction on conjecture and speculation and a verdict which
is premised on suspicion will fail even under the limited
scrutiny of appellate review.
Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa.Super. 2014) (quoting
Commonwealth v. Slocum, 86 A.3d 272, 275-76 (Pa.Super. 2014)).
The Uniform Firearms Act provides, in relevant part, as follows:
§ 6105. Persons not to possess, use, manufacture,
control, sell or transfer firearms
(a) Offense defined.—
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(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.A. § 6105(a)(1). The Commonwealth is not required to prove the
firearm was “operable” to convict a defendant under Section 6105(a)(1).
Commonwealth v. Batty, 169 A.3d 70, 77 (Pa.Super. 2017), appeal denied,
645 Pa. 701, 182 A.3d 434 (2018).
“When contraband is not found on the defendant’s person, the
Commonwealth must establish constructive possession….” Commonwealth
v. Jones, 874 A.2d 108, 121 (Pa.Super. 2005). “Constructive possession is
the ability to exercise conscious control or dominion over the illegal substance
and the intent to exercise that control.” Id.
Dominion and control means the defendant had the ability
to reduce the item to actual possession immediately,
accord State v. Jones, 146 Wash. 2d 328, 45 P.3d 1062,
1064-65 (2002) (en banc), or was otherwise able to govern
its use or disposition as if in physical possession. See, e.g.,
People v. Sinclair, 129 Cal. App. 320, 19 P.2d 23 (1933)
(finding constructive possession where the defendant was
driving an automobile and, upon being stopped by the
police, directed his passenger to throw illegal drugs out of
the window). Mere presence or proximity to the contraband
is not enough. Constructive possession can be established
by inferences derived from the totality of the circumstances.
Commonwealth v. Peters, ___ Pa. ___, ___, 218 A.3d 1206, 1209 (2019)
(emphasis added) (some internal citations omitted). Further, “knowledge of
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the existence and location of the contraband is a necessary prerequisite to
proving the defendant’s intent to control, and, thus, his constructive
possession.” Commonwealth v. Parrish, 191 A.3d 31, 37 (Pa.Super. 2018),
appeal denied, ___ Pa. ___, 202 A.3d 42 (2019).
Instantly, the trial court found Appellant constructively possessed the
firearm:
In concluding that Appellant … had constructive possession
of the firearm, the [c]ourt found it significant that the indicia
for Appellant contained in the shoebox with the gun was
dated as recently as 2014. This fact, in combination with
the jail phone call, wherein Appellant references that the
gun was found in his mother’s house; his knowledge that it
was presently inoperable; and his close proximity to the
residence to which he had access, was not only sufficient to
establish his knowledge of the firearm, but his power and
intent to control the same. It was clear from the trial
testimony that Appellant was a frequent visitor to his
mother’s residence and had unencumbered access to it, and
that Appellant kept a “whole bunch” of items at his mother’s
residence, including this box.
(Trial Court Opinion at 5-6).
Although the trial court determined Appellant was in “close proximity”
to the firearm, the Commonwealth did not offer any evidence to support this
finding. Specifically, the testimony from the police witnesses established that
Appellant was arrested in a parking lot somewhere outside Ms. Wilmore’s
apartment complex. The police witnesses did not explain where the arrest
occurred in relation to the actual location of Ms. Wilmore’s apartment. On this
record, it is impossible to conclude that Appellant could reduce the firearm “to
actual possession immediately.” See Peters, supra.
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Likewise, the evidence regarding Appellant’s intent to exercise control
over the firearm is dubious. Although Appellant’s statements from the jail
phone call supported the court’s finding that Appellant knew about the firearm,
we cannot agree that the statements proved the requisite intent. Importantly,
Appellant referenced the inoperability of the firearm, as well as the fact that
it dated back to his high school days. These statements, combined with the
storage of the contraband at Ms. Wilmore’s residence, actually demonstrated
Appellant’s relinquishment of control over the firearm. See Commonwealth
v. Heidler, 741 A.2d 213 (Pa.Super. 1999), appeal denied, 563 Pa. 627, 758
A.2d 660 (2000) (explaining defendant gave firearm to passenger before
exiting his vehicle, and passenger placed firearm in her purse and remained
in vehicle; even if defendant had power to access firearm, factfinder could not
logically conclude defendant intended to exercise control over firearm where
record demonstrated his intent was to relinquish such control; if defendant
intended to retain control of firearm, he would have kept it or not placed it
under control of third party).
Moreover, the trial court attempted to justify its verdict by positing as
follows:
Perhaps, and I don’t know, I don’t need to speculate, but if
I had to, it’s possible that it was good to have that gun even
if it didn’t fire just in case you needed it to back up your
mule or in case somebody didn’t give your mule the money
they were supposed to during the drug deal.
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(N.T. Trial at 74). In light of Appellant’s relinquishment of control, the court
was left to infer a reason for Appellant to retrieve the firearm. We cannot
agree that the facts adduced at trial were of such a “volume and quality” as
to allow this inference and overcome Appellant’s presumption of innocence.
See Kearney, supra.
We conclude the Commonwealth did not meet its burden in proving
constructive possession. See Peters, supra; Parrish, supra. Viewing the
evidence in the light most favorable to the Commonwealth, and giving the
Commonwealth all the favorable inferences that may be drawn from the
evidence, the court erred in determining the Commonwealth established the
element of “possession” under Section 6105. See Tucker, supra; Kearney,
supra. Accordingly, we reverse Appellant’s conviction for persons not to
possess firearms. Because our disposition upsets the court’s sentencing
scheme, we also remand for resentencing. See Commonwealth v.
Goldhammer, 512 Pa. 587, 517 A.2d 1280, (1986), cert. denied, 480 U.S.
950, 107 S. Ct. 1613, 94 L. Ed. 2d 798 (1987) (explaining remand for
resentencing is proper if appellate court alters overall sentencing scheme).
Judgment of sentence vacated; case remanded for resentencing.
Jurisdiction is relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2020
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