The opinion
J-S11011-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
LAMAR PENNY
Appellant No. 531 WDA 2020
Appeal from the Judgment of Sentence Entered July 11, 2019
In the Court of Common Pleas of Fayette County
Criminal Division at No: CP-26-CR-0000471-2018
BEFORE: STABILE, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED: October 5, 2021
Appellant, Lamar Penny, appeals from the July 11, 2019 judgment of
sentence imposing an aggregate seven to fourteen years of incarceration for
unlawful possession of a firearm (18 Pa.C.S.A. § 6105), possession of and
possession with intent to deliver (“PWID”) controlled substances (35 P.S.
§ 780-113(a)(16) and (30), and related offenses. We affirm.
The trial court recited the pertinent facts in its Pa.R.A.P. 1925(a)
opinion:
On [August 3, 2017], at approximately 7:30 a.m., Corporal
Wesley Wilson of the Pennsylvania State Police responded to a call
from the Fugitive Task Force which had apprehended Appellant in
a residence located at 230 South Eighth Street, Apartment
Number 2, Connellsville, Fayette County, Pennsylvania. Corporal
Wilson was advised by Sergeant [Michael] Irwin that a substance
suspected to be crack cocaine along with drug paraphernalia had
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* Retired Senior Judge assigned to the Superior Court.
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been observed in plain view in a bedroom during the protective
sweep of the residence. A search warrant was obtained for the
premises based on these observations.
The fruit of the execution of this search warrant included
one knotted baggie containing suspected crack cocaine, a small
amount of marijuana, a digital scale, a digital camera, a Ruger P-
94 handgun, a Cobra .38 Special handgun, a diploma belonging
to Appellant, a green Crown Royal bag containing assorted pills
and suspected crack cocaine, and a box of sandwich baggies. All
these items were found in a bedroom occupied by Appellant.
Additionally, a substantial amount of U.S. currency, an Alcatel
cellular telephone, and black iPhone, oxycodone pills, a Nike hat
and shoes, a baggie containing marijuana residue, burnt
marijuana cigarettes, a metal grinder, and a silver-colored Mac
Book computer were also found in the same room.
The firearms found in the room occupied by Appellant were
determined to be stolen. After this information was discovered,
Corporal Wilson conducted a criminal history check on Appellant
and determined that Appellant was not a person who is permitted
to possess firearms.
The lab report received by Corporal Wilson confirmed that
the materials gathered from the room occupied by Appellant were
controlled substances including cocaine, marijuana, oxycodone,
and morphine.
A DNA analysis test was conducted on the firearms
recovered from the room. Appellant and paternal members of his
family cannot be excluded as possible contributors of the DNA.
Corporal Wilson testified that the home located at 230 South
Eighth Street, Apartment Number 2, Connellsville, Fayette
County, Pennsylvania was occupied by three residents, two
females and a male. Corporal Wilson identified the male as
Appellant. The DNA contained on the firearms retrieved from the
residence contained a “Y” chromosome, which is only present in
males. Appellant was the sole male occupant of the home.
Corporal Wilson testified that he read Miranda[1] warnings
to Appellant at the Uniontown barracks of the Pennsylvania State
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1 Miranda v. Arizona, 384 U.S. 436 (1966).
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Police. As evidenced by a custodial written statement form,
Appellant waived his Miranda right to self-incrimination, and
subsequently made statements to Corporal Wilson. When asked
about the firearms recovered from a box containing the high
school diploma of Appellant in his room, Appellant responded that
he was using the firearms to protect himself. Additionally,
Corporal Wilson stated that based upon his training and
experience the paraphernalia, large sums of money, firearms is
[sic] indicative of drug trafficking.
Trial Court Opinion, 7/8/20, at 3-5.
This case proceeded to a July 10, 2019 jury trial, at the conclusion of
which the jury found Appellant guilty of the aforementioned offenses and, on
July 11, 2019, the trial court-imposed sentence as set forth above. Appellant
filed this appeal raising two assertions of error:
1. Whether the suppression court erred in denying
[Appellant’s] motion to suppress statements where the
Commonwealth failed to present specific evidence of the
content of the Miranda warnings allegedly given to
[Appellant] and failed to meet its burden of proving that
[Appellant] made a knowing, voluntary and intelligent
waiver of his right to counsel, right to remain silent and
other rights guaranteed by the Fifth Amendment to the
United States Constitution.
2. Whether the evidenced presented at trial was
sufficient to sustain jury verdicts that [Appellant] was in
possession of a firearm or a controlled substance?
Appellant’s Brief at 6.
We will review Appellant’s arguments in turn. We review the challenge
to the trial court’s suppression ruling as follows:
[An appellate court’s] standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions drawn
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from those facts are correct. Because the Commonwealth
prevailed before the suppression court, we may consider only the
evidence of the Commonwealth and so much of the evidence for
the defense as remains uncontradicted when read in the context
of the record as a whole. Where the suppression court's factual
findings are supported by the record, [the appellate court is]
bound by [those] findings and may reverse only if the court’s legal
conclusions are erroneous. Where...the appeal of the
determination of the suppression court turns on allegations of
legal error, the suppression court’s legal conclusions are not
binding on [the] appellate court, whose duty it is to determine if
the suppression court properly applied the law to the facts. Thus,
the conclusions of law of the [trial court are] subject to plenary
review.
Commonwealth v. Wright, 224 A.3d 1104, 1108 (Pa. Super. 2019), appeal
denied, 237 A.3d 393 (Pa. 2020). Our review is limited in scope to the
evidence produced during the suppression hearing. Id. The trial court
determines the credibility of witnesses testifying at a suppression hearing. Id.
Appellant argues that the Commonwealth failed to establish that
Appellant was informed of and waived his Miranda rights before he made an
incriminating statement. The Commonwealth bears the burden of proving that
it gave proper warnings that the defendant understood. Commonwealth v.
Cohen, 53 A.3d 882, 886 (Pa. Super. 2012). The waiver must be explicit,
such that the defendant gave “an outward manifestation of a waiver such as
an oral, written or physical manifestation.” Id. “To determine whether the
waiver was knowing and intelligent, we focus upon the defendant’s cognitive
processes, i.e., whether the defendant was aware of the nature of the choice
that he made in relinquishing his Miranda rights.” Commonwealth v.
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DiStefano, 782 A.2d 574, 581 n.2 (Pa. Super. 2001), appeal denied, 806
A.2d 858 (Pa. 2002).
As set forth above, Corporal Wilson testified that he read Appellant his
Miranda rights and that he verbally acknowledged them before making a
statement. N.T. Hearing, 8/22/18, at 27-28. Wilson read the rights from a
Pennsylvania State Police custodial written statement form. Id. at 31.
Corporal Wilson had Appellant sign the form, but he did not retain the form
because Appellant ultimately did not give a written statement. Id. at 32-33.
Reading the record in a light most favorable to the Commonwealth, this
testimony supports the trial court’s finding that Appellant made an intelligent
waiver. That is, the record is an explicit manifestation of Appellant’s
understanding and waiver of his rights. Appellant argues the evidence is not
sufficient because Corporal Wilson did not testify in detail to the language of
the warning and did not produce a copy of the form from which he read the
rights. None of the caselaw Appellant cites supports a conclusion that a police
officer testifying at a suppression hearing must describe, word-for-word, the
language of the Miranda warnings he gave. Moreover, Appellant provides no
reason why the trial court could not credit Corporal Wilson’s testimony that
Appellant was informed of his Miranda rights, signed a form, and then
consented to give an oral rather than written statement. Appellant’s first
argument does not merit relief.
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Next, Appellant argues the Commonwealth failed to produce sufficient
evidence of his constructive possession of firearms and controlled substances.
In reviewing this argument, our standard of review is de novo, and our scope
of review is limited to the evidence of record, and all reasonable inferences
arising therefrom, viewed in the light most favorable to the Commonwealth
as verdict winner. Commonwealth v. Rushing, 99 A.3d 416, 420-21 (Pa.
2014). We do not weigh the evidence or make credibility determinations.
Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010), appeal
denied, 29 A.3d 796 (Pa. 2011).
Police did not recover any firearms2 or controlled substances3 from
Appellant’s person. Instead, the items were in what the Commonwealth
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2 Appellant was convicted under 18 Pa.C.S.A. § 6105, which provides:
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).
3 Possession with intent to deliver is:
[T]he manufacture, delivery, or possession with intent to
manufacture or deliver, a controlled substance by a person not
registered under this act, or a practitioner not registered or
licensed by the appropriate State board, or knowingly creating,
(Footnote Continued Next Page)
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argues was Appellant’s room in the house where he was staying. Thus,
Appellant’s conviction was based on his constructive possession of the
unlawful items.
This Court has held that [p]ossession can be found by
proving actual possession, constructive possession, or joint
constructive possession. 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. Constructive possession is a legal fiction,
a pragmatic construct to deal with the realities of criminal law
enforcement. 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. To
aid application, we have held that constructive possession may be
established by the totality of the circumstances.
It is well established that, [a]s with any other element of a
crime, constructive possession may be proven by circumstantial
evidence. In other words, the Commonwealth must establish
facts from which the trier of fact can reasonably infer that the
defendant exercised dominion and control over the contraband at
issue.
Commonwealth v. Parrish, 191 A.3d 31, 36–37 (Pa. Super. 2018), appeal
denied, 202 A.3d 42 (Pa. 2019).
Appellant argues that the Commonwealth failed to produce evidence
that he occupied the bedroom from where the police recovered the firearms
and controlled substances. He notes that he was sharing the apartment with
two women, and he implies that the items could have been theirs. Appellant
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delivering or possessing with intent to deliver, a counterfeit
controlled substance.
35 P.S. § 780-113(a)(30).
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also notes that the DNA evidence retrieved from one of the firearms did not
conclusively implicate him.
By and large, Appellant invites this Court to draw inferences in his favor
rather than draw reasonable inferences in favor of the Commonwealth as per
the standard of review. Police retrieved—from the same brown box— a green
Crown Royal bag with crack cocaine, a Ruger P-94, a Cobra .38 Special, and
Appellant’s high school diploma. N.T. Trial, 7/10/19, at 27. The brown box
was in the same bedroom with various other controlled substances and
paraphernalia.
The DNA retrieved from one of the firearms was male DNA, and it did
not exclude Appellant or any paternal member of his family. Id. at 40.
Appellant was the only male staying in the apartment. While not conclusive,
the DNA evidence, considered along with the other evidence in the case,
supports a reasonable inference that the Ruger from which it was taken
belonged to Appellant.
The male DNA retrieved from the gun links Appellant to the bedroom in
which it was found. The guns were in the same box with Appellant’s high
school diploma, which also links Appellant to that bedroom. All the items
retrieved from the bedroom were consistent with illegal drug trafficking, as
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was a large amount of cash retrieved from Appellant’s person.4 Considering
all this evidence in light of the applicable standard of review, we conclude that
the Commonwealth produced sufficient evidence of Appellant’s constructive
possession of controlled substances and firearms.
For the foregoing reasons, we find no merit in Appellant’s assertions of
error.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/5/2021
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4 Appellant also argues that some of the post-Miranda statements he made
about protecting himself led the jury to conclude the firearms were his. We
have already addressed Appellant’s suppression argument and concluded the
trial court did not err in admitting Appellant’s statements into evidence.
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