Com. v. Daniels, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARRIUS DANIELS :
:
Appellant : No. 915 WDA 2022
Appeal from the Judgment of Sentence Entered May 26, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007854-2021
BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: July 25, 2023
Darrius Daniels, Appellant, appeals from the judgment of sentence of
11½ to 23 months of incarceration, imposed following his non-jury trial. He
raises various challenges to the sufficiency of the evidence to convict him of
unlawfully possessing a firearm in violation of 18 Pa.C.S. § 6106(a). We
affirm.
On September 24, 2021, City of McKeesport Officers Sean Sluganski and
Nicholas Probola investigated a report from a female that a male identified as
“Country” hit her in the head with a firearm. Officer Sluganski knew Appellant
as “Country” and visited Pazzo’s Bar, which he knew Appellant to frequent.
Officer Sluganski entered the bar’s outdoor courtyard area upon arrival, where
he observed Appellant “sitting at the first picnic bench” with his “back towards
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* Retired Senior Judge assigned to the Superior Court.
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the picnic table[.]” N.T., 5/26/22, at 12, 13. An unidentified female was
sitting at the same table, and the two “were having some kind of
conversation.” Id. at 14. A black backpack “was in between his feet.” Id.
The female was “[t]hree or four feet” from Appellant. Id.
Officer Sluganski and Officer Gull1 approached Appellant and ordered
him to keep his hands visible. Appellant’s dog “began to approach … in an
aggressive manner” and Appellant was ordered to restrain the dog. Id. at 15.
The officers drew their firearms and Appellant “stood up and stepped
backwards … away from the backpack and placed his dog between us.” Id.
at 16. Officer Sluganski perceived that, due to the layout of the courtyard
area, Appellant “was going to try to start running towards the other side of
the courtyard and hope [sic] over the fence,” with the dog serving as an
obstacle. Id. at 25. Appellant eventually leashed the dog after about fifteen
seconds.
Meanwhile, Officer Probola and another officer initially went inside the
bar to look for Appellant, and proceeded to the courtyard area after Officer
Sluganski radioed that he had located Appellant. When he arrived, the officers
were already giving Appellant orders to restrain his dog, “which [Appellant]
was ignoring.” Id. at 29. Officer Probola observed Appellant “standing within
six inches of a dark colored bookbag, which was at his feet….” Id. Appellant
continued to back away from the officers and Officer Probola was able to see
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1 The testimony did not include Officer Gull’s first name.
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that the bag “was completely unzipped” due to it being overstuffed. Id. at
30. The officer pointed his flashlight at the bag and observed “a black handle
of a firearm.” Id. at 31. Appellant was arrested and the firearm was
recovered from the backpack. Like Officer Sluganski, Officer Probola testified
that he was familiar with Appellant, stating that he has “dealt with [Appellant]
on approximately three prior occasions, including approximately two or three
days prior, in which he was at … Pazzo’s.” Id. at 28.
Based on this testimony, Appellant was convicted at a bench trial of one
count of carrying a firearm without a license. Appellant waived his right to a
pre-sentence report and was sentenced on May 26, 2022. On June 7, 2022,
Appellant filed a petition requesting permission to file a post-sentence motion
nunc pro tunc, explaining that his counsel had intended to file the motion but
could not, due to an injury. Appellant also filed a copy of the post-sentence
motion he wished to file. The trial court expressly granted permission to file
the motion on June 13, 2022, accepting the June 7 filing as timely. See
Commonwealth v. Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (en
banc) (“If the trial court chooses to permit a defendant to file a post-sentence
motion nunc pro tunc, the court must do so expressly.”).
The trial court denied the post-sentence motion on July 11, 2022, and
Appellant timely filed a notice of appeal from that order. Appellant complied
with the order to file a Pa.R.A.P. 1925(b) statement, and the trial court
authored an opinion. We now review Appellant’s two issues presented on
appeal:
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I. Whether the evidence [was] insufficient to convict [Appellant]
of Firearms Not to be Carried Without a License, where the
Commonwealth failed to prove, beyond a reasonable doubt, that
he constructively possessed the firearm?
II. Whether the evidence [was] insufficient to convict [Appellant]
of Firearms Not to be Carried Without a License, where the
Commonwealth failed to prove, beyond a reasonable doubt, that
he was not at his fixed place of business at the time of the
incident?
Appellant’s Brief at 5.
Both claims concern the sufficiency of the evidence to convict. Our
standard of review is well-settled. “When reviewing a challenge to the
sufficiency of the evidence, we ‘view the evidence in the light most favorable
to the Commonwealth as the verdict winner in order to determine whether the
[fact-finder] could have found every element of the crime beyond a reasonable
doubt.’” Commonwealth v. Santiago, 294 A.3d 482, 484 (Pa. Super. 2023)
(quoting Commonwealth v. Thomas, 215 A.3d 36, 40 (Pa. 2019)). The trial
court as fact-finder was “free to believe, all, part, or none of the evidence
presented when making credibility determinations.” Commonwealth v.
McClellan, 178 A.3d 874, 878 (Pa. Super. 2018).
Appellant’s first issue challenges the element of possession. “Possession
can be found by proving actual possession, constructive possession or joint
constructive possession.” Commonwealth v. Heidler, 741 A.2d 213, 215
(Pa. Super. 1999) (en banc). As Appellant was not observed handling the
backpack or a firearm, and the Commonwealth does not allege that the
unknown female jointly possessed the firearm, the Commonwealth’s theory of
possession rested on constructive possession, which “is a legal fiction, a
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pragmatic construct to deal with the realities of criminal law enforcement.”
Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (quoting
Commonwealth v. Thompson, 779 A.2d 1195, 1199 (Pa. Super. 2001)).
Constructive possession requires that the Commonwealth establish “conscious
dominion” over the item, which consists of “the power to control the
contraband and the intent to exercise that control.” Commonwealth v.
Macolino, 469 A.2d 132, 134 (Pa. 1983). As with any sufficiency challenge,
the Commonwealth may meet its burden through circumstantial evidence. Id.“Constructive possession is an inference arising from a set of facts that
possession of the contraband was more likely than not.” Commonwealth v.
Mudrick, 507 A.2d 1212, 1213 (Pa. 1986).
Appellant cites Commonwealth v. Parrish, 191 A.3d 31 (Pa. Super.
2018), in support of his argument. There, the police pulled over a vehicle in
which Parrish was sitting in the back seat. In the front seat, police found
drugs, guns, and paraphernalia. Parrish was charged with possessory offenses
for those items, and we discharged due to inadequate proof of constructive
possession. The evidence established only that Parrish “was merely present
on the driver’s side of the back seat” of the vehicle, which is not sufficient
under the law to establish constructive possession. Id. at 38. Appellant
maintains that the same logic applies here. In his view, all that the
Commonwealth established was that he was in mere proximity to the
backpack, as the officers all testified that Appellant was not seen physically
touching the bag and nothing in the backpack itself was linked to Appellant.
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It is true that, where the evidence indicates only “mere presence,” the
Commonwealth tends to face an uphill battle. The most common scenario is
a case like Parrish, where items are found in a vehicle with multiple
occupants. See also Commonwealth v. Spencer, 621 A.2d 153, 155 (Pa.
Super. 1993) (finding the Commonwealth failed to establish constructive
possession by the passenger, who was charged with possession of cocaine
protruding from the armrest of driver’s side door); Commonwealth v.
Juliano, 490 A.2d 891, 894 (Pa. Super. 1985) (discharging the conviction
where the evidence established only that the appellant “knew of the existence
and location of the green satchel which had been sitting at his feet,” which
does not by itself establish “knowledge of the contents”) (emphasis omitted);
Commonwealth v. Boatwright, 453 A.2d 1058, 1058-59 (Pa. Super. 1982)
(finding that evidence was insufficient where a firearm was discovered in left
rear seat and the appellant, seated in the passenger seat, moved “towards his
left rear”; this evidence established only “mere presence”).
However, this is not a case where the evidence established only that
Appellant was merely present and in proximity to the backpack and its
contents. The trial court made a specific finding of fact concerning the
backpack’s location when rendering its verdict. The trial court found Appellant
guilty “based on the fact that the bag was between his feet. It was not just
next to him.” N.T. at 62. Appellant’s argument downplays this finding. He
maintains that “the backpack was located on the ground between the seats of
a picnic table where both [Appellant] and a woman were seated.” Appellant’s
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Brief at 17. To the extent this assertion posits that the backpack was under
the table, roughly equidistant from Appellant and the other person, the trial
court found otherwise, and its finding is supported by the record.
The facts here are analogous to Commonwealth v. Stembridge, 579
A.2d 901 (Pa. Super. 1990), where Stembridge was one of three passengers
in a vehicle parked in front of a convenience store. Police officers approached
the driver, as one had observed the vehicle driving with inoperative rear lights.
The officers asked the driver and Stembridge, seated in the right front
passenger seat, to step outside. Stembridge began fidgeting and putting his
hands in his pockets; thus, he was patted down and drugs were recovered.
“At some point in the sequence of events, [the remaining occupant — who
had been seated in the front of the car between the driver’s seat and the
passenger’s seat —] was ordered to get out of the vehicle on the driver’s
side.” Id. at 902. Shortly thereafter, one of the officers noticed something
underneath the passenger side, which turned out to be drugs and
paraphernalia. Stembridge was charged with possessing those items, and he
argued that the Commonwealth could not establish constructive possession as
he was merely present in the vehicle, and one of the other occupants may
have thrown or kicked the items under the vehicle after he was ordered out
of the vehicle. We disagreed, reasoning:
[Stembridge]’s access to and control over the area in which the
contraband was found was greater than that of the driver and the
other passenger, inasmuch as [he] was the only one of the three
to exit the vehicle on the passenger side. In addition, only
[Stembridge] was observed walking back and forth near the car
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and “fidgeting around.” Furthermore, any uncertainty as to
whether the female passenger moved from between the front
seats into the right passenger seat, while it could have formed the
foundation of a reasonable doubt on the part of the factfinder,
does not as a matter of law create a reasonable doubt which
requires us to overturn the factfinder’s verdict.
Id. at 905 (footnote omitted).
Similarly, Appellant’s access to the backpack and control over it was far
greater than that of the unidentified female. Appellant’s behavior was also
much more than “fidgeting,” as he ignored officer commands to restrain his
barking dog and deliberately placed his dog between himself and the officers.
Officer Sluganski speculated that Appellant may have been attempting to flee
or otherwise impede law enforcement, which is a factor a court may consider.
See Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011)
(concluding that the Commonwealth established constructive possession
based, in part, on the fact that the defendant gave a police officer “five or six
different names and multiple birthdates, thus exhibiting a consciousness of
guilt”). The unknown female, in contrast, immediately complied. N.T. at 22
(Officer Sluganski testifying: “After I instructed her to step back[,] … she was
pretty quick to step away….”). Thus, the finding of constructive possession
does not rest on Appellant’s mere presence and proximity to the backpack.
There is sufficient circumstantial evidence to conclude that “possession … was
more likely than not.” Mudrick, 507 A.2d at 1213.
Appellant’s second issue asserts that the Commonwealth failed to prove
beyond a reasonable doubt that he was not in his place of business. In
Commonwealth v. Lopez, 565 A.2d 437, 440 (Pa. 1989), our Supreme Court
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held that the clause, “except in his place of abode or fixed place of business[,]”
as codified in 18 Pa.C.S. § 6106(a), is an element of the crime and, thus, it
must be proven by the Commonwealth beyond a reasonable doubt. In
Commonwealth v. Carr, 483 A.2d 542 (Pa. Super. 1984), our Court
examined what the General Assembly meant by the phrase “fixed place of
business[.]” We held that it refers to one who has “ownership or control” over
the place of business, and thus its language does not extend to employees
who lack a “controlling, proprietary, or possessory interest” in the business.
Id. at 543.
Appellant claims that “the only reasonable inference to draw from the
testimony was that Pazzo’s Bar was [Appellant]’s fixed place of business.”
Appellant’s Brief at 20. Appellant portrays the testimony that he was known
to frequent Pazzo’s Bar as a point in his favor, because “proprietors must
regularly visit their businesses, oftentimes on a daily basis, to ensure that
everything is in order and to avoid collapse and ruination.” Id.The fact-finder could have accepted this chain of inferences, but our
standard of review requires this Court to view the evidence in the light most
favorable to the Commonwealth as verdict winner. We conclude that the
Commonwealth was entitled to an inference that Pazzo’s Bar was not
Appellant’s “fixed place of business.” “When reviewing sufficiency[,] … this
Court determines whether the evidence, viewed in the light most favorable to
the Commonwealth as verdict winner, is sufficient to enable a reasonable jury
to find every element of the crime beyond a reasonable doubt.”
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Commonwealth v. Reed, 990 A.2d 1158, 1161 (Pa. 2010). We agree that
the evidence on this element, while limited, is sufficient under the law. See
Coleman v. Johnson, 566 U.S. 650, 655 (2012) (“Jackson [v. Virginia,
443 U.S. 307 (1979),] leaves juries broad discretion in deciding what
inferences to draw from the evidence presented at trial, requiring only that
jurors ‘draw reasonable inferences from basic facts to ultimate facts.’”)
(citation omitted). We follow that approach. See Commonwealth v. Holt,
273 A.3d 514, 528 (Pa. 2022) (“Our standard of review follows …
Jackson[.]”). We agree with the trial judge that the basic facts offered by
the Commonwealth support the ultimate factual finding that Appellant did not
own or have a controlling ownership interest in the bar. The court cited the
testimony from the officers that “two or three days before the instant incident,
officers had interacted with [Appellant] and [Appellant] informed them that
he patronized Pazzo’s Bar on a daily basis.” Trial Court Opinion, 12/2/22, at
5. Additionally, “[Appellant] had a dog with him at the bar at the time of his
arrest.” Id. at 5-6.
We agree with the Commonwealth that Officer Sluganski’s testimony
that he knew Appellant to “frequent” Pazzo’s “connotes that [A]ppellant often
patronizes the bar as a customer.” Commonwealth’s Brief at 27. The fact
that Appellant described himself as a customer and not an owner warrants the
rational inference that he was a mere patron of the bar. Additionally,
Appellant was seated outside with his dog during normal operating hours,
further indicating that he was a visitor. Combined, these pieces of evidence
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all support the trial court’s rational inference that Appellant was a mere
customer. We therefore agree that the Commonwealth presented sufficient
evidence to establish that Pazzo’s Bar was not Appellant’s fixed place of
business.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2023
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