Commonwealth v. McClellan

• Citation: 178 A.3d 874
• Decision Date: 26 January 2018
• Docket Number: No. 2014 EDA 2016,2014 EDA 2016
• Parties: COMMONWEALTH of Pennsylvania v. Eric MCCLELLAN, Appellant
• Court: Superior Court of Pennsylvania

178 A.3d 874

COMMONWEALTH of Pennsylvania

v.Eric MCCLELLAN, Appellant

No. 2014 EDA 2016

Superior Court of Pennsylvania.

Argued October 10, 2017

Filed January 26, 2018

Paul M. George, Norristown, for appellant.

Daniel C. Bardo, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: OTT, J., STABILE, J., and STEVENS^* , P.J.E.

OPINION BY STEVENS, P.J.E.:

Appellant, Eric McClellan, appeals from the judgment of sentence entered in the Court of Common Pleas of Montgomery County, which, sitting as finder of fact in Appellant's bench trial, convicted him of Persons Not To Possess, Manufacture, Control or Transfer Firearms.¹ Herein, Appellant challenges the order denying his suppression motion and contends evidence at trial failed to prove he constructively possessed a handgun recovered from the basement of his family home. We affirm.

On April 24, 2014, Agent Scott Dominick of the Pennsylvania Board of Parole was participating in a LCB/Norristown Police Department sweep of local bars in search of noncompliant and/or absconder parolees, when he saw one of his state parolees, Appellant, exiting a bar at 11:30 p.m. Agent Dominick stopped Appellant for violating two conditions of his parole, one imposing an 8:00 p.m. curfew and the other prohibiting his presence in a drinking establishment. N.T. 11/30/15 at 12–13. Appellant displayed no outward signs of alcohol consumption, but a frisk of his person produced $320 in cash, two cell phones, and a house key. N.T. at 19–20.

On suspicion that Appellant was engaging in other violations at the bar consistent with his history of drug dealing, Agent Dominick obtained permission to search Appellant's approved residence, his grandmother's home, from his supervisor, who was on the scene at the time. N.T. at 20. Appellant had, at the outset of his parole, also signed a parole agreement form consenting to warrantless searches of his residence. N.T. at 14–15.

Parole agents searched Appellant's grandmother's home while Norristown Police maintained a security presence inside without otherwise participating in or directing the search. N.T. at 21–22. Agent Dominick was familiar with the home, having previously conducted numerous routine field visits there, and he knew Appellant lived with his grandmother, father, and adult sister.² The parole officer went straight to Appellant's bedroom and uncovered from underneath his mattress a clear sandwich bag containing a trace amount of cocaine. N.T. at 22–23. A different parole officer went down to the finished basement and discovered a loaded firearm. N.T. at 61–63. Charges were filed.

On November 30, 2015, Appellant filed motion to suppress, which, after a hearing, the court denied. Appellant's bench trial ensued on the same day, ending with the court convicting Appellant on the above-mentioned charges. On March 1, 2016, the court imposed a standard range sentence of five to ten years' incarceration on the charge of persons not to possess. N.T., 3/1/16, 34–35. After the denial of post-sentence motions, this timely appeal followed.

Appellant presents the following questions for our review:

I. WAS THE EVIDENCE INSUFFICIENT TO ESTABLISH BEYOND A REASONABLE DOUBT THAT APPELLANT HAD THE POWER TO CONTROL THE FIREARM AND THE INTENT TO EXERCISE THAT CONTROL, WHERE THE FIREARM WAS RECOVERED IN THE BASEMENT OF APPELLANT'S GRANDMOTHER'S HOME AND WHERE DNA TESTING REVEALED THAT MORE THAN ONE PERSON HAD HANDLED THE FIREARM?

II. DID THE SUPPRESSION COURT ERRONEOUSLY DENY APPELLANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE, WHERE THE FACTS AND CIRCUMSTANCES KNOWN TO THE PAROLE AGENT PRIOR TO THE SEARCH DID NOT ESTABLISH REASONABLE SUSPICION TO

BELIEVE THAT THERE WAS CONTRABAND OR OTHER EVIDENCE OF VIOLATIONS OF THE CONDITIONS OF SUPERVISION INSIDE APPELLANT'S RESIDENCE?

Appellant's brief at 6.

In his first issue, Appellant contends that DNA and circumstantial evidence offered to link him to the loaded handgun found in the basement was insufficient to prove beyond a reasonable doubt that he constructively possessed the gun, an element to the crime of Persons Not to Possess of which he was convicted. We disagree.

Our standard of review of sufficiency claims is well-settled:

A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim[,] the court is required to view the evidence 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. Widmer , 560 Pa. 308, 744 A.2d 745, 751 (2000) (internal citations omitted).

Furthermore, the trier of fact, in this case the trial court, is free to believe, all, part, or none of the evidence presented when making credibility determinations. Commonwealth v. Beasley , 138 A.3d 39, 45 (Pa.Super. 2016). In deciding a sufficiency of the evidence claim, this court may not reweigh the evidence and substitute our judgment for that of the fact-finder. Commonwealth v. Williams , 153 A.3d 372, 375 (Pa.Super. 2016).

Illegal possession of a firearm may be established by constructive possession. Commonwealth v. Parker , 847 A.2d 745, 750 (Pa.Super. 2004). 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 , 450 Pa.Super. 540, 677 A.2d 328, 330 (1996), appeal denied , 547 Pa. 751, 692 A.2d 563 (Pa. 1997). Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not. Commonwealth v. Mudrick , 510 Pa. 305, 507 A.2d 1212, 1213 (1986).

To support his argument against constructive possession, Appellant points to evidence that the gun was found neither in his bedroom nor in a room containing any of his personal belongings, but, instead, in a basement used primarily by his father and otherwise accessible to the whole family.

The Commonwealth counters that DNA samples taken from the gun implicated Appellant and that the basement was furnished primarily as a common area, as evidenced by the presence of exercise equipment and a futon in the upright position with a TV opposite it on the day of the search.

With respect to DNA evidence adduced at trial,³ the prosecution established that each of the four DNA swab samples taken from the gun produced a profile representing a mixture of at least three DNA contributors, from which group Appellant could not be excluded. N.T. 11/30/15 at 138. Because there existed the possibility that one or more members of Appellant's family were among the three DNA contributors, however, additional DNA testing and analyses were undertaken to assess the relative probability that Appellant, rather than a family member, contributed to the DNA mixture.

Of the four DNA samples taken from the gun in question, one yielded no conclusion and another, from the trigger, was more probable if it came from a relative of Appellant's and two unknown, unrelated individuals than if it came from Appellant and two unknown, unrelated individuals.

However, the two other DNA swab samples pointed more heavily to Appellant. First, it was determined that the DNA sample taken from the gun's grip was at least 384 times more probable if the sample originated from Appellant and two unknown, unrelated individuals than if it originated from a relative to Appellant and two unknown, unrelated individuals.⁴ Therefore, the laboratory concluded there was "strong support" that Appellant contributed to this mixture.⁵

Testing of the DNA sample retrieved from the gun's magazine also yielded the conclusion that the DNA sample was at least 29 times more probable if the sample originated from Appellant and two unknown, unrelated individuals than if it originated from a relative to Appellant and two unknown, unrelated individuals.

Thus, we agree with the trial court that the DNA evidence strongly implicated Appellant as a possessor of the gun found in the basement of his approved residence. In this regard, the fact that other family members may have also handled the gun does not preclude Appellant's constructive possession of it, as the constructive possession concept allows for more than one possessor. Id. See also Commonwealth v. Macolino , 503 Pa. 201, 469 A.2d 132, 136 (1983) (overturning ruling that would "provide a privileged sanctuary for the storage of illegal contraband. Simply by storing contraband in a place controlled by more than one party, a spouse, roommate, partner would render all impervious to prosecution").

As such, evidence establishing that Appellant was dealing drugs that he kept hidden in his bedroom of his approved home, had handled a gun discovered in the basement of that home, and had unrestricted access to the basement was sufficient to prove the element of possession necessary to his conviction for Persons Not to Possess. Viewed in a light most favorable to the Commonwealth as verdict winner, such evidence went...