J-S59010-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                        Appellee         :
                                         :
              v.                         :
                                         :
MARLON BROWN,                            :
                                         :
                        Appellant        :    No. 2562 EDA 2013


       Appeal from the Judgment of Sentence Entered May 31, 2012,
          In the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No. CP-51-CR-0011141-2008.


BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                      FILED OCTOBER 21, 2014

     Appellant, Marlon Brown, appeals nunc pro tunc from the judgment of

sentence entered following his conviction for a violation of the Uniform

Firearms Act, 18 Pa.C.S. § 6105(a)(1), persons prohibited from possessing

firearms. We affirm.

     On June 26, 2008, Appellant was arrested and charged with the

aforementioned firearms offense, possession with intent to deliver, and

conspiracy.    Appellant’s first jury trial commenced on November 16, 2010

and Appellant was found not guilty of possession with intent to deliver and

conspiracy. The jury could not agree on the firearms charge, and a motion

for a mistrial was granted on that charge.


 ______________________________
*Retired Senior Judge assigned to the Superior Court.
J-S59010-14



      Appellant’s second trial on the firearms violation was held on March

20–21, 2012. The trial court summarized the facts adduced at that trial as

follows:

            Detective Andrew Callaghan of the Philadelphia Narcotics
      Unit testified that in 2008 he was on loan to the FBI Violent
      Crime and Gang Task Force. Notes of Testimony from March 20,
      2012 (Hereinafter, N.T. 3/20/12), p. 64–65.              Detective
      Callaghan received information that marijuana was being sold by
      a male known as Peanut at 1902 South 23rd Street in
      Philadelphia. Id., at p. 67. Detective Callaghan testified that he
      worked with Officer Reginald Graham of the Philadelphia police,
      who sent a confidential informant to that location on June 23,
      2008. Id., at p. 67-68. The confidential informant purchased
      two packets of marijuana from Eloise Brown. Id. On June 24,
      2008, Detective Callaghan conducted a surveillance of the
      property and observed Eloise Brown sitting on a plastic lawn
      chair in front of the house. Id., at p[.] 72-73. Ms. Brown
      engaged in two transactions wherein she was observed accepting
      a small item from an individual, entering the house briefly, and
      emerging from the house to hand a small item to them. Id., at
      73–74. Detective Callaghan then prepared a search and seizure
      warrant for the property at 1902 South 23rd Street. Id., at p.
      78.

             On June 26, 2008, Detective Callaghan and several backup
      officers arrived at the property to conduct the search pursuant to
      the warrant. Id., at p. 88. As the officers approached the
      screen door of the property, Detective Callaghan observed Ms.
      Eloise Brown, inside of the door, look up and yell “Police, clean
      up.” Id. Detective Callaghan and other officers moved to the
      second floor of the home and encountered Appellant and another
      male, identified as Matthew Love, emerging from the second
      floor rear bedroom. Id., at p. 89-90. Appellant stated that he
      lived at the location, and Mr. Love stated that he did not. Id., at
      p. 91. Detective Callaghan brought Appellant to the dining room
      table to elicit his biographical information.      Id., at p. 92.
      Appellant reiterated that he lived at 1902 South 23rd Street
      while giving Detective Callaghan biographical information. Id.,
      at p. 97.


                                      -2-
J-S59010-14



           Officer Marilyn Brown asked Detective Callaghan to join
     her in the kitchen, which she was searching while Detective
     Callaghan questioned Appellant. Id., at p. 100. Officer Brown
     drew Detective Callaghan’s attention to a blue soft cooler in a
     kitchen cabinet. Id. Inside the cooler was a Smith & Wesson
     Model 629 .44 caliber revolver loaded with six live rounds. Id.,
     at p. 100–101, 108. Detective Callaghan told Officer Brown not
     to touch the revolver and that it should be guarded for
     fingerprints. Id., at p. 101. Detective Callaghan testified that
     when Officer Brown called him over to the kitchen, Appellant
     “kind of slouched clown in his chair, like this, and his shoulders
     went down.”       Id., at p. 103.   Based on his observations,
     Detective Callaghan decided to read [A]ppellant his Miranda
     warnings at that time. Id., at p. 103-104. Appellant agreed to
     answer Detective Callaghan’s questions.          Id., at p. 105.
     Appellant said that he knew about the firearm and that he was
     “holding it for a guy named Rob,” but that he did not know Rob’s
     last name.      Id., at p. 105-106.     Detective Callaghan told
     Appellant that he would be submitting the firearm for
     fingerprints and asked Appellant if he had touched it.         Id.
     Appellant responded that he had touched the firearm. Id. The
     firearm was placed on a property receipt and submitted to the
     Firearm Identification Unit of the Philadelphia Police. Id., at p.
     111–113.

          Detective Callaghan searched the second floor rear
     bedroom where Appellant was first encountered. Id., at p. 116–
     117. Detective Callaghan observed male clothing in the room
     and recovered one packet of marijuana, numerous unused
     packets, bags with marijuana residue, and $268 in United States
     Currency. Id.

            Officer Joanne Gain of the Philadelphia Police Crime Scene
     Unit testified that she swabbed the .44 caliber revolver and the
     live and spent rounds for DNA. Id., at p. 193-194.

           Counsel stipulated that an oral swab was taken from
     [Appellant] and submitted to the Philadelphia Police criminalistics
     lab for comparison with the firearm.        Id., at p. 207–208.
     Counsel also stipulated that the .44 caliber revolver was
     examined by the Firearms Identification Unit, was found to be
     operable, and had a barrel length of six inches. Id.


                                     -3-
J-S59010-14



            Forensic Investigator Benjamin Levin testified that he was
      a DNA Analyst employed by the Philadelphia Police Department,
      and was admitted as an expert in DNA analysis. Id., at p. 210–
      213. Mr. Levin testified that he performed the DNA analysis
      from the samples taken from Marlon Brown and the revolver.
      Id., at p. 219. Mr. Levin’s scientific conclusion based on the
      analysis was that Marlon Brown was included as a contributor to
      the DNA sample detected on a swab from the firearm, and that
      the probability of randomly selecting an unrelated individual who
      could be included as a contributor to the DNA was approximately
      1 in 50,610 in the African American population, 1 in 545,900 in
      the Caucasian population, and 1 in 281,500 in the Hispanic
      population. Id., at p. 227.

Trial Court Opinion, 11/4/13, at 2–5.

      The jury found Appellant guilty of violating the Uniform Firearms Act,

and on May 31, 2012, he was sentenced to a five–to–ten year term of

incarceration.   Appellant filed a motion for extraordinary relief on June 6,

2012. The trial court never ruled on the motion nor does the record indicate

that it was denied by operation of law.

      On April 9, 2013, Appellant filed a notice of appeal. The post–trial unit

of the First Judicial District informed Appellant’s counsel that the notice was

untimely and suggested filing a petition under the Post Conviction Relief Act

requesting that Appellant’s appellate rights be reinstated.    On August 30,

2013, the court granted Appellant’s motion to reinstate his appellate rights.

The instant appeal was filed on September 4, 2013.

      Appellant raises the following issues for review:




                                        -4-
J-S59010-14



      A. WAS THE EVIDENCE PRESENTED INSUFFICIENT TO SUPPORT
      THE VERDICT WHERE IT FAILED TO SHOW THAT THE
      APPELLANT WAS IN POSSESSION OF THE FIREARM?

      B. DID THE PROSECUTION COMMIT MISCONDUCT WHEN IT
      INFORMED APPELLANT ON THE DAY THAT THE JURY TRIAL WAS
      SET TO BEGIN THAT IF THE APPELLANT'S MOTHER TESTIFIED
      SHE WOULD FACE PROSECUTION ON RELATED CHARGES THAT
      HAD ALREADY BEEN DISMISSED WITHOUT PREJUDICE?

Appellant’s Brief at 6.

      We first consider Appellant’s claim regarding the sufficiency of the

evidence   supporting     his   conviction.    Appellant   contends   that   the

Commonwealth failed to prove that he possessed the firearm that was

discovered in the kitchen at 1902 South 23rd Street.

      When examining a challenge to the sufficiency of the evidence:

      The standard we apply . . . 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 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.




                                         -5-
J-S59010-14




Commonwealth v. Orr, 38 A.3d 868, 873 (Pa. Super. 2011) (quoting

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011)). This

standard is similarly applicable in cases where the evidence is circumstantial

rather than direct, “so long as the combination of the evidence links the

accused to the crime beyond a reasonable doubt.”         Commonwealth v.

Santiago, 980 A.2d 659, 662 (Pa. Super. 2009) (quoting Commonwealth

v. Johnson, 818 A.2d 514, 516 (Pa. Super. 2003)).

      Section 6105(a) of the Uniform Firearms Act, 18 Pa.C.S. § 6105(a),

prohibits a person convicted of any of thirty–eight specified offenses

enumerated in section 6105(b) from possessing, using, or controlling a

firearm.   The parties stipulated that Appellant had a prior conviction for

murder, one of those defined offenses, and the jury was advised that the

prohibited person element of the offense had been satisfied. N.T., 3/21/12,

at 25. Thus, the sole challenge to the sufficiency of the evidence supporting

Appellant’s conviction is whether the Commonwealth proved that he

possessed the firearm.

      In the instant matter, because the subject firearm was not found on

Appellant's person, the Commonwealth was required to establish that

Appellant constructively possessed the gun. Commonwealth v. Gutierrez,

969 A.2d 584, 590 (Pa. Super. 2009) (“Possession can be found by proving

actual possession, constructive possession or joint constructive possession”)

(quoting Commonwealth v. Heidler, 741 A.2d 213, 215 (Pa. Super.

1999)); see also Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa.



                                      -6-
J-S59010-14



1983); Commonwealth v. Micking, 17 A.3d 924, 926 (Pa. Super. 2011).

“Constructive possession is an inference arising from a set of facts that

establishes that possession of the contraband was more likely than not.”

Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (quoting

Commonwealth v. Thompson, 779 A.2d 1195, 1199 (Pa. Super. 2001)

(internal citations omitted)).

      Constructive possession is defined as “conscious dominion” which in

turn, is defined as “the power to control the contraband and the intent to

exercise that control.”   Commonwealth v. Hopkins, 67 A.3d 817, 820–

821 (Pa. Super. 2013). Constructive possession may be established by the

totality of the circumstances, Commonwealth v. Brown, 48 A.3d 426, 430

(Pa. Super. 2012), and can be          proven by circumstantial evidence.

Commonwealth v. Valette, 613 A.2d 548, 550 (Pa. 1992) (quoting

Macolino, 469 A.2d at 134).      Furthermore, the fact that another person

might have equal access and control to an object does not exclude a

defendant’s constructive possession.     Commonwealth v. Haskins, 677

A.2d 328, 330 (Pa. Super. 1996).

      Appellant challenges the sufficiency of the evidence supporting the

jury’s constructive–possession finding for three reasons:   1) there were

other people living at the house and present when the search warrant was

executed; 2) the gun was recovered from a common area, the kitchen,




                                       -7-
J-S59010-14



which was accessible by anyone in the house; and 3) the DNA evidence

linking the gun to Appellant was suspect because its presence could be

explained by Appellant’s sweat inadvertently dripping on the weapon.

     Our   application   of   the   legal   fiction   of   constructive   possession

occasionally arises when, as here, contraband is found in a common area

where others have access. In these situations, all the attendant facts and

circumstances are weighed to determine whether the Commonwealth proved

the defendant’s ability and intent to exercise control over the item in

question. Miking, 17 A.3d at 926.

     In the present case, Appellant, Appellant’s mother, Eloise Brown, and

a third person, Matt Love, were present at 1902 South 23rd Street when the

search warrant was executed.        Appellant told Detective Callaghan that he

lived in the house with his mother.            Matt Love, on the other hand,

represented that he did not live in the house.             While the search of the

premises was being conducted, Appellant displayed behavior that the

investigating detective construed as indicative of guilt. When Officer Brown

summoned Detective Callaghan to the kitchen, Appellant reacted physically

by hunching his shoulders and slouching in his chair. Appellant then told

Detective Callaghan that he knew about the gun, stated that he was holding

it for “Rob,” and admitted touching the gun.




                                        -8-
J-S59010-14



      These uncontested facts refute each of Appellant’s challenges to the

sufficiency of the evidence. First, the testimony established that Appellant

and Eloise Brown were the only residents of the subject premises. Second,

the fact that Ms. Brown had equal access to the area where the firearm was

discovered does not diminish the extent of Appellant’s ability and intent to

exercise control over the gun. See Commonwealth v. Johnson, 26 A.3d

1078, 1094 (Pa. 2011) (quoting Valette, 613 A.2d at 550) (“constructive

possession may be found in one or more actors where item in issue is in

area of joint control and equal access”). Third, Appellant admitted that he

was holding the gun for a third person and, more significantly, admitted to

touching the firearm—an activity highly probative of his control over the

object. So, too, does this admission explain the presence of Appellant’s DNA

on the gun and defeat his assertion that its presence occurred by

inadvertent and unwitting contact with the weapon.

      Examining this evidence in its totality, and in a light favorable to the

Commonwealth, we find that the jury could reasonably conclude that

Appellant had both the ability and intent to exercise control of the firearm

located in the cooler in the kitchen. Accordingly, there is no basis to disturb

the jury’s verdict that Appellant constructively possessed a firearm in

violation of section 6105(a)(1) of the Firearms Act.




                                      -9-
J-S59010-14



      Appellant’s second    argument is that the       prosecutor   committed

misconduct when she informed Appellant’s counsel that Eloise Brown would

be prosecuted on previously–withdrawn charges if she testified in her son’s

behalf.    Appellant characterizes the prosecutor’s activity as bullying the

witness into not testifying. Appellant, however, has failed to preserve this

issue for meaningful appellate review.

      On the day before trial, the parties litigated a motion in limine. During

the hearing on the motion, Appellant’s counsel indicated that he would be

calling Eloise Brown as his sole defense witness. Motion in Limine, 3/19/12,

at 31. The following morning, additional in limine motions were presented to

the trial court, including whether certain defense–proffered documents were

admissible.   Defense counsel explained that he had intended to call Eloise

Brown to authenticate the documents, but that Ms. Brown recently had

decided against testifying.      N.T., 3/20/12, at 8.      This decision was

occasioned by the prosecutor’s representation to Ms. Brown’s attorney that

her client could be re–arrested on the dismissed charges if she opted to

testify.   When Ms. Brown’s counsel advised Ms. Brown of the possible

consequences of her testimony, she invoked her Fifth Amendment right and

elected not to testify. Id. at 38.

      Appellant orally motioned for a mistrial, which the trial court denied.

N.T., 3/20/12, at 27, 31. While the specific basis for the motion is muddled,




                                         -10-
J-S59010-14



it did implicate the evidentiary fallout resulting from Ms. Brown’s last-minute

decision not to testify.    Appellant complained that he was not given

adequate notice of Ms. Brown’s potential unavailability, id. at 27, and in the

absence of her testimony, he was now unable to authenticate documents

that might prove that Appellant did not live at 1902 South 23rd Street

during the relevant period. Id. at 31. At no point, however, did Appellant

allege that prosecutorial misconduct reasoned Ms. Brown’s choice to remain

silent. Consequently, his claim is waived for purposes of appeal. Pa.R.A.P.

302(a); Commonwealth v. Sanchez, 82 A.3d 943, 969 (Pa. 2013) (issues

not raised in lower court are waived).

      We make the additional observation that this Court rejected a similar

claim of prosecutorial misconduct in Commonwealth v. Smallhoover, 567

A.2d 1055 (Pa. Super. 1989). In Smallhoover, the defendant in a criminal

tax prosecution intended to call his father as a witness.        At a sidebar

conference, the prosecutor informed the court that the father’s proposed

testimony contradicted his prior statement to a revenue agent and could

subject him to criminal liability.   The prosecutor requested the court to

advise the father of his right against self-incrimination and to have the

father consult with his counsel. After conferring with his counsel, the father

declined to testify.




                                         -11-
J-S59010-14



       On appeal, this Court rejected the appellant’s argument that the

prosecutor’s statement to the court was improper and deprived him of a key

witness. The Smallhoover Court observed that the Commonwealth’s

recommendation to the trial court that the defendant should consult with

counsel about his privilege against self–incrimination could not be considered

coercive. Smallhoover, 576 A.2d at 1060. Additionally, the Court found it

“significant” that, as here, the witness decided not to testify only after

consultation       with   counsel   and   was   not   approached   directly   by   the

prosecutor. Id.

        Appellant’s waived and meritless claim of prosecutorial misconduct

does not provide a basis for appellate relief. Accordingly, the judgment of

sentence is affirmed.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/21/2014




                                           -12-
J-S59010-14




              -13-
