Com. v. Miller, W.

J-S44019-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

WENDELL MILLER :

:

Appellant : No. 2798 EDA 2023

Appeal from the Judgment of Sentence Entered October 4, 2023

In the Court of Common Pleas of Delaware County Criminal Division at

No(s): CP-23-CR-0001379-2021

BEFORE: NICHOLS, J., MURRAY, J., and LANE, J.

MEMORANDUM BY MURRAY, J.: FILED DECEMBER 30, 2024

Wendell Miller (Appellant) appeals from the judgment of sentence

imposed following his convictions by a jury of one count each of person not to

possess firearms (firearms prohibited), firearms not to be carried without a

license (unlicensed firearm possession), receiving stolen property (RSP),

fleeing or attempting to elude police, and driving under the influence of

controlled substances.1 Appellant raises a sole challenge to the evidentiary

sufficiency to sustain his convictions of RSP, firearms prohibited, and

unlicensed firearm possession. We determine the evidence was sufficient to

sustain Appellant’s convictions, and, thus, affirm.

On November 3, 2020, Yeadon Borough Police Officer Elijah Brown

(Officer Brown), while on routine traffic patrol and parked in his marked police

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1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 3925(a); 75 Pa.C.S.A. §§ 3733(a),

3802(d)(1).

J-S44019-24

cruiser, observed a vehicle operated by Appellant 2 commit Motor Vehicle Code

violations. See N.T. (jury trial), 7/19/23, at 7-9. The trial court detailed the

relevant factual history:

[The vehicle] was being operated with only one headlight[. Also,

Appellant] disregarded a stop sign and then exchanged looks with

… [Officer] Brown from only fifteen (15) feet away. N.T., 7/19/23,

at 9. Resultantly, Officer Brown activated his emergency lights

and siren [] to conduct a routine vehicle stop. Id. at 11.

[Appellant] very oddly stopped his car in the middle of the street,

turned his head, and used the rear-view mirrors to visually

monitor the officer’s activities[. Appellant] noticeably moved

about inside the automobile. When [Officer Brown] opened his

police car’s door to disembark, [Appellant] immediately resumed

driving, initially fleeing through a residential neighborhood and

narrowly missing an arriving, unmarked police vehicle. Id. at 12-

13. Officer Brown, keeping his eye on [Appellant’s vehicle and]

now with four (4) additional police cars chasing, watched as

[Appellant] drove through the wooden barricades of a … manned

road work zone at between sixty (60) to seventy (70) miles per

hour. After a four (4) mile pursuit[,] and just as Officer Brown

was discontinuing the chase for safety reasons, he … continued to

observe [Appellant’s] vehicle as it passed over … an inclined

roadway and went airborne. [Appellant’s] automobile landed in

the opposing traffic lane of the street [and] then crashed into a

light pole on the sidewalk…. Id. at 16-19, 209-14. [Appellant]

and his passenger[, A.F. (the passenger),] immediately made

their way out of the disabled car and ran in different directions.

Officer Brown[,] in the course of literal seconds, apprehended the

passenger, a seventeen (17) year-old female, and saw as he was

returning on foot to the very nearby crash scene, [Appellant]

“fighting multiple policemen.” Id. at 23-26, 35-38. [Police

subdued Appellant and placed him in custody.]

Officer Mazen Malak [(Officer Malak)], … just after arriving

on scene, approached [Appellant’s] crashed [vehicle] and saw,

plainly observable on the car’s driver’s seat, a nine (9) millimeter

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2 Appellant was not the vehicle’s registered owner. N.T., 7/19/23, at 30.

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handgun[,3] which [he] … secured. Id. at 28-29, 136-41, 144-

46, 167.

Officer Malak … [drove] to Lankenau Medical Center [(the

hospital)], … to which [Appellant] and [the passenger] had been

custodially transported by emergency medical personnel. Id. at

148. Officer Malak remained in [Appellant’s] immediate presence

during his … [treatment] by medical staff. Id. at 149-50. …

[W]hile at the [hospital, Officer Malak] verbally advised

[Appellant] of his Miranda4 warnings, which [Appellant] waived,

agreeing to speak with Officer Malak.5 Id. at 164-65, 168. …

[Appellant,] in conversation with Officer Malak [at the hospital,]

as captured on [the officer’s] body camera footage, referenced

the seized firearm [] as being [black] in color…. Id. at 156, 160-

61, 165-66, 168.6

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3 The parties stipulated the firearm was stolen. See N.T., 7/19/23, at 39, 72.

4 Miranda v. Arizona, 384 U.S. 436 (1966).

5 Officer Malak testified he also interviewed the passenger at the hospital.

Officer Malak stated the passenger “was extremely calm and cooperative with

me. [The passenger a]nswered all my questions, no belligerent behavior at

all.” N.T., 7/19/23, at 155. Cf. id. at 152, 155-56 (Officer Malak testifying

Appellant behaved belligerently and uncooperatively at the hospital). The

record does not indicate whether the passenger discussed the firearm during

her police interview. The passenger did not testify at Appellant’s trial.

6 The following exchange occurred during the prosecutor’s direct examination

of Officer Malak, with respect to Appellant’s interview at the hospital:

Q. [(Commonwealth):] Did [Appellant] speak about the firearm at

all?

A. [(Officer Malak):] He did.

Q. What did he say?

A. … [T]here was a point in the conversation [that Appellant]

mentioned that the gun was black.

Q. Did you tell [Appellant] the gun was black?

(Footnote Continued Next Page)

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The [firearm] …, along with [] a known [saliva] sample

obtained from [Appellant], was subsequently submitted for DNA

comparative analysis to the Pennsylvania State Police’s Bureau of

Forensic Services. See id. at 196-97. See also Commonwealth

Exhibits C-12 — Pennsylvania State Police Forensic Bureau DNA

Report and C-13 — Pennsylvania State Police Forensic DNA

Report. The result of this testing was as follows: “No interpretable

results were obtained from the firearm … due to the complexity of

the mixtures. Therefore, no comparison could be made to the

DNA profile obtained from the known reference[d] sample from

[Appellant]….” Id. at 198.

Trial Court Opinion, 1/18/24, at 13-15 (footnotes added; some citations

omitted; citations and punctuation modified).

After Appellant’s arrest, the Commonwealth charged him with the

above-mentioned offenses, as well as aggravated assault. 7 The matter

proceeded to a jury trial on July 19, 2023. The Commonwealth presented

several witnesses, including Officers Brown and Malak. Appellant elected not

to testify and presented no witnesses.

On July 20, 2023, the jury found Appellant guilty of the above-

mentioned offenses, and not guilty of aggravated assault. The trial court

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A. No, I did not.

N.T., 7/19/23, at 156; see also id. at 165 (Officer Malak confirming Appellant

“was asking [Officer Malak] questions … about the firearm that was recovered”

at the hospital). It is undisputed the firearm police found on Appellant’s

driver’s seat was black in color.

7 18 Pa.C.S.A. § 2702(a)(3).

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deferred sentencing for the preparation of a presentence investigation report

and a drug/alcohol evaluation.

On October 4, 2023, the trial court sentenced Appellant to an aggregate

7 to 15 years in prison. Appellant did not file post-sentence motions.

Appellant timely filed a notice of appeal on October 27, 2023. Appellant and

the trial court have complied with Pa.R.A.P. 1925.

Appellant presents a single issue for review:

Was the evidence sufficient to convict [Appellant] of possessory

offenses, where the evidence did not prove beyond a reasonable

doubt that he could immediately reduce the [firearm] to actual

possession or otherwise govern its use or disposition as if in

physical possession?

Appellant’s Brief at 2-3.

A sufficiency claim “presents a question of law, for which our standard

of review is de novo and our scope of review is plenary.” Commonwealth v.

Packer, 168 A.3d 161, 166 (Pa. 2017). “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. Peters, 320 A.3d 1231,

1236 (Pa. Super. 2024) (en banc) (citation and brackets omitted).

In applying the above test, we may not weigh the evidence and

substitute our judgment for that of 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.

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Id. (citation omitted); see also Commonwealth v. Risoldi, 238 A.3d 434,

454 (Pa. Super. 2020) (“On appeal, this court evaluates the full record to

determine whether sufficien[t] evidence was presented to support each

element of the crime charged; however, we do not second-guess the jury’s

factual determinations.”).

Here, Appellant contends the evidence is insufficient to sustain his

convictions of firearms prohibited, unlicensed firearm possession, and RSP,

because it failed to prove he actually or constructively possessed the firearm. 8

See Appellant’s Brief at 11-21. Appellant claims “the evidence failed to

demonstrate beyond a reasonable doubt that [he] knew of the presence of the

gun, let alone had the power or intent to control it.” Id. at 19-20. According

to Appellant,

[t]he circumstantial evidence did not prove beyond a reasonable

doubt [that Appellant] knew there was a weapon in the car. There

was no evidence that [Appellant] ever touched or reached for the

gun. Police officers found the weapon in a vehicle that [Appellant]

drove but did not belong to him.

Id. at 15.

Appellant contends the evidence establishes the passenger’s

constructive possession of the firearm:

The passenger had the opportunity to put the weapon in the

driver’s seat when she got out and ran from the vehicle.

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8 Appellant challenges only the element of possession as to each offense.

See

Commonwealth v. Parker, 847 A.2d 745, 750-51 (Pa. Super. 2004)

(detailing the required elements of RSP and unlicensed firearm possession).

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Moreover, the passenger exposed her consciousness of guilt by

fleeing from the vehicle … after the accident[,] and resisting

Officer Brown when he tried to place her into custody.

Id. at 16; see also id. (“The prosecution did nothing to dispel the plausible

and probable proposition that the passenger possessed the gun. The

Commonwealth did not introduce any evidence about the passenger.”);

Appellant’s Reply Brief at 1 (“[T]he Commonwealth’s decision not to call the

passenger as a witness was fatal to the attempt to prove [Appellant’s] guilt

beyond a reasonable doubt.”).

The Commonwealth counters the circumstantial evidence, viewed in a

light most favorable to it as verdict-winner, was sufficient to prove Appellant’s

constructive possession of the firearm beyond a reasonable doubt. See

Commonwealth Brief at 6-14. The Commonwealth emphasizes “the evidence

here showed that the gun would have been directly under [Appellant’s] body

(on the driver’s seat) while he was driving and remained there when he fled

from the car.” Id. at 7. The Commonwealth further argues, “[Appellant’s]

conduct fully demonstrated his knowledge of and intent to exercise control of

the gun.” Id. at 8. The Commonwealth points out Appellant 1) “led police on

a miles[-]long chase, which resulted in him crashing his car,” id.; 2) fled on

foot, further “evidencing [his] guilt,” id.; and 3) “violently fought off police

when they attempted to apprehend him.” Id.; see also id. (“When asked

about the gun at the hospital, [Appellant] did not exhibit any surprise and

understood immediately what the police were referring to.”). According to the

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Commonwealth, “[t]his evidence readily allowed the jury to infer that

[Appellant] constructively possessed the gun.” Id.

“Possession can be found by proving actual possession, constructive

possession, or joint constructive possession.” Commonwealth v. Rojas-

Rolon, 256 A.3d 432, 437 (Pa. Super. 2021) (citation and brackets omitted).

Here, it is undisputed Appellant did not have actual possession of the stolen

firearm; thus, the Commonwealth had the burden of proving Appellant’s

constructive possession or joint constructive possession. Id.;

Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super. 2018) (“Illegal

possession of a firearm may be established by constructive possession.”).

This Court has explained,

[c]onstructive possession is a legal fiction, a pragmatic construct

to deal with the realities of criminal law enforcement.

Constructive possession is an inference arising from a set of facts

that possession of the contraband was more likely than not. We

have defined constructive possession as conscious dominion. …

We [have] defined conscious dominion as 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.

Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (emphasis

added; citation and quotation marks omitted); see also Commonwealth v.

Wright, 255 A.3d 542, 553 (Pa. Super. 2021) (“[K]nowledge of the existence

and location of the contraband is a necessary prerequisite to proving the

defendant’s intent to control, and, thus, his constructive possession.”

(citations omitted)).

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Significantly, the Commonwealth can sustain its burden of proving

constructive possession “by means of wholly circumstantial evidence[.]”

Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013); Rojas-

Rolon, 256 A.3d at 437-38 (“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.”

(citation omitted)); see also Commonwealth v. Arrington, 86 A.3d 831,

840 (Pa. 2014) (“The Commonwealth may sustain its burden of proof by

means of wholly circumstantial evidence, and the [fact-finder], in passing

upon the weight and credibility of each witness’s testimony, is free to believe

all, part, or none of the evidence.”). A defendant’s mere presence at the

scene, however, does not establish constructive possession.

Commonwealth v. Vargas, 108 A.3d 858, 869 (Pa. Super. 2014) (en banc);

see also Commonwealth v. Parrish, 191 A.3d 31, 37 (Pa. Super. 2018)

(stating that the location and proximity of an actor to the contraband alone is

not conclusive of guilt).

It is possible for two people to have joint constructive possession of

contraband. Commonwealth v. Sanes, 955 A.2d 369, 373 (Pa. Super.

2008).

To find constructive possession, the power and intent to control

the contraband does not need to be exclusive to the appellant.

Our Supreme Court has recognized that “constructive possession

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

an area of joint control and equal access.” [Commonwealth v.

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Johnson, 26 A.3d [1078,] 1094 [(Pa. 2011)] (internal citation

omitted).

Rojas-Rolon, 256 A.3d at 438 (citation modified).

Here, the evidence, properly viewed in the light most favorable to the

Commonwealth as verdict winner, see Peters, 320 A.3d at 1236, sufficiently

establishes Appellant’s constructive possession of the firearm. As the trial

court stated in its Pa.R.A.P. 1925(a) opinion:

[A] review of the trial record [established that] … at all

material times, [Appellant was] the operator of the … [vehicle]. …

After [Officer Brown stopped the vehicle, Appellant] lur[ed] the

officer out of his police vehicle[; Appellant then] sped away from

… Officer Brown. N.T., 7/19/23, at 11-13. Despite the best efforts

of Officer Brown and at least three (3) other pursuing police

vehicles, [Appellant] fled from law enforcement at the rate of sixty

(60) to seventy (70) miles per hour. … [T]he high[-]speed pursuit

ended …. after a four (4) mile chase to elude police[, when

Appellant] lost control of the [vehicle] and crashed…. Id. at 16-

19, 210-11. [Appellant] … fle[d] on foot to evade law

enforcement. Id. at 23-26, 35-38, 211. [Appellant] … still

continued in his efforts to avoid apprehension by hiding in

shrubbery, ignoring the verbal commands of participating police,

and requiring involved law enforcement to physically intervene….

Id. at 211, 216-19.

The stolen [firearm] was recovered by [] police officials

from atop the [vehicle’s] driver’s seat, from which

[Appellant] had just seconds earlier … fled. Id. at 28-29,

136-41, 144-46, 167.

Trial Court Opinion, 1/18/24, at 16-17 (emphasis added; some citations and

punctuation modified).

The trial court additionally emphasized that while Appellant was at the

hospital, he “volunteered to Officer Malak that the recovered firearm was …

black [in color], although the officer had not” made that information known to

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Appellant. Id. at 17; id. at 20 (pointing out that Appellant’s “admission as to

the … [firearm] being black in color [was] captured on [Officer Brown’s] body

camera”); see also N.T., 7/19/23, at 156, 165. The trial court further

rejected Appellant’s claim that “the mere presence in the front passenger seat

of the teenage female [passenger] renders as a matter of law [Appellant’s]

challenged convictions legally infirm….” Trial Court Opinion, 1/18/24, at 20-

21 (citing Sanes, 955 A.2d at 373 (stating it is possible for two people to have

joint constructive possession of contraband)). Finally, the trial court

emphasized that “the trial record … is simply replete with consciousness of

guilt evidence.” Id. at 18; see also id. (pointing out Appellant’s “chaotic

high[-]speed flight” from Officer Brown in Appellant’s vehicle, crashing the

vehicle, and his flight on foot).

Our review confirms that the trial court’s foregoing reasoning is

supported by the record and free of legal error. See id. at 16-18. Appellant’s

flight from police, both during the high-speed chase and after he crashed his

vehicle, supported an inference of his consciousness of guilt. 9 See

Commonwealth v. Laird, 988 A.2d 618, 627 (Pa. 2010) (recognizing that

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9 In the trial court’s final charge, it instructed the jury concerning

consciousness of guilt/flight and constructive possession. See N.T., 7/20/23,

at 66-67, 69-70. The trial court’s instructions are consistent with the

Pennsylvania Standard Criminal Jury Instructions. See SSJI (Crim) 3.14 and

16.02(b). The law presumes that the jury followed the trial court’s

instructions. See Commonwealth v. Speight, 854 A.2d 450, 458 (Pa. 2004)

(“It is presumed the jury follows [a trial] court’s instructions.”).

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flight from the scene of a crime, and concealment, can constitute

circumstantial proof of consciousness of guilt). Indeed, Appellant

acknowledges this principle. See Appellant’s Brief at 16.

Appellant’s contention that the Commonwealth cannot establish his

constructive possession of the firearm, because the vehicle had a passenger,

disregards the fact that Appellant had equal access to the firearm, which police

found on Appellant’s seat.10 See Hopkins, 67 A.3d at 820-21 (holding

evidence was sufficient to prove defendant’s constructive possession of a

firearm found in a vehicle he was driving, where the firearm was within arm’s-

reach of both where defendant was seated and his front-seat passenger, a

juvenile).11

Additionally, the fact that someone else owned the vehicle did not

preclude a finding that Appellant constructively possessed the firearm. See

Wright, 255 A.3d at 554 (“The fact that [a]ppellant was not the owner of the

vehicle, or the possibility that the firearm and narcotics may have been

primarily possessed by someone else, did not render the evidence insufficient

to prove [a]ppellant’s constructive possession, because more than one person

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10 We reiterate the evidence establishes that the passenger, unlike Appellant,

was cooperative during her police interview at the hospital, and never

physically resisted police. See N.T., 7/19/23, at 155-56.

11 The evidence of Appellant’s constructive possession of the firearm is even

stronger than that presented in Hopkins. In Hopkins, the defendant did not

flee police, and the juvenile passenger admitted to possessing the firearm.

See Hopkins, 67 A.3d at 821.

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may have constructive possession of an item at the same time.” (citations

omitted)).

Moreover, we are unpersuaded by Appellant’s claim that “[t]his case is

analogous to Commonwealth v. Armstead, 305 A.2d 1, 2 (Pa. 1973).”

Appellant’s Brief at 17. In Armstead, police conducted a traffic stop of a

vehicle in which defendant was a passenger, and ordered defendant and the

driver out of the vehicle. Armstead, 305 A.2d at 2. “The original arresting

officers did not observe any weapon” when removing defendant and the driver

from the vehicle. Id. However, when backup officers arrived, they observed

a handgun “lying in the middle of the front seat.” Id. At trial, the parties

entered into a stipulation that a witness “would have testified that it was she

who had originally notified the police on the day of the incident that her

husband … had a gun on his person and was driving a car with the license

number of the car in which [defendant] was a passenger.” Id.

The Supreme Court in Armstead held the evidence was insufficient to

establish defendant had constructive possession, or joint constructive

possession, of the gun. Id. The Court concluded:

The fact of the presence of the gun on the front seat during the

time when [defendant] was a passenger is not more likely to flow

from the fact that the gun was on the front seat when [defendant

and the driver] alighted from the car, than is the fact of its

absence. The Commonwealth has not proved that [defendant]

knew of the presence of the gun.

Id. (citations omitted).

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Here, unlike in Armstead, 1) there was no stipulation that the firearm

in Appellant’s vehicle belonged to another person; and 2) police found the

firearm on top of the driver’s seat, where Appellant was seated when he

crashed the vehicle and continued his flight from police. Thus, Armstead is

distinguishable and unavailing to Appellant.

Based on the foregoing, we conclude the Commonwealth presented

sufficient evidence for the jury to find, under the totality of the circumstances,

that Appellant constructively possessed the firearm. Accordingly, there is no

merit to Appellant’s sufficiency challenge to his convictions of RSP, firearms

prohibited, and unlicensed firearm possession.

Judgment of sentence affirmed.

Date: 12/30/2024

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