Opinion
210 MDA 2022
09-12-2022
COMMONWEALTH OF PENNSYLVANIA v. TAYLOR MCCOY WIKE, III
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered December 16, 2021 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0000609-2021
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM
OLSON, J.:
Appellant, Taylor McCoy Wike, III, appeals from his judgment of sentence entered on December 16, 2021, as made final by the denial of his post-sentence motion on January 3, 2022. We affirm.
In its opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court provided a thorough summary of the historical facts established at trial in this case. See Trial Court Opinion, 4/18/22, at 1-6. We adopt the trial court's recitation of these facts and incorporate it herein as if set forth at length.
At the conclusion of trial on September 16, 2021, a jury found Appellant guilty of persons not to possess, use, manufacture, control, sell or trade firearms and firearms not to be carried without a license. On December 16, 2021, Appellant was sentenced to an aggregate term of five and one-half to 11 years' incarceration. Sentencing Order, 12/16/21. The trial court denied Appellant's post-sentence motion on January 3, 2022. This appeal followed.
18 Pa.C.S.A §§ 6105(a)(1), 6106(a)(1), respectively.
The trial court imposed a sentence of five and one-half to 11 years' incarceration for person not to possess and a concurrent term of three and one-half to seven years' incarceration for firearms not to be carried without a license.
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following issue for review:
Was the evidence presented by the Commonwealth insufficient to prove beyond a reasonable doubt that [Appellant] was guilty of [ ] [persons not to possess] and firearms not to be carried without a license [ ] where there was insufficient evidence that [Appellant] knowingly possessed the firearm or had the intent and power to control the firearm found?Appellant's Brief at 4.
Appellant concedes that his prior criminal record disqualifies him from possessing a firearm. Id. at 11 n.1. Appellant argues instead that the Commonwealth failed to prove beyond a reasonable doubt that he constructively possessed the firearm at issue. Id. at 11-12. He claims the circumstantial evidence presented at trial failed to establish his knowledge of, or intent to control, the recovered firearm, which was registered to his girlfriend and found under a blanket in the rear hatch compartment of the vehicle he was driving. Id. at 13-14. Instead, he maintains that he first learned of the weapon when his girlfriend telephoned and asked him to retrieve her personal property from the rear of the vehicle before it was towed at the direction of the police. Id. at 15. Appellant maintains that a change in his demeanor, to one of "shock" and "nervousness" upon discovery of the firearm, supports his claim that he did not know that the firearm was present in the vehicle. Id. at 15-16. This claim is unavailing.
Constructive possession is "an inference arising from a set of facts that possession of the contraband was more likely than not." Commonwealth v. McClellan, 178 A.3d 874 (Pa. Super. 2018). It is a legal fiction which is defined as "conscious dominion, meaning that the defendant has the power to control the contraband and the intent to exercise that control." Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018), appeal
We have carefully reviewed the certified record, the submissions of the parties, and the thorough opinion of the trial court filed pursuant to Pa.R.A.P. 1925(a). We are satisfied that the trial court adequately and accurately addressed the issue raised by Appellant on appeal. It is our conclusion that the trial court correctly stated the applicable standards of review, thoroughly addressed the issue presented, and aptly determined Appellant's claim is meritless. Accordingly, we affirm the judgment of sentence based on the trial court's opinion, and we adopt its analysis and reasoning as our own. The parties are directed to attach a copy of the April 18, 2022 trial court opinion to all future filings pertaining to the disposition of this appeal.
Judgment of sentence affirmed.
Judgment Entered.
CP-36-CR-0609-2021
PA.R A.P. § 1925(A) OPINIONSPONAUGLE, J.
April 18, 2022
In the matter before the Superior Court of Pennsylvania, Appellant Michael Wike appeals the Sentencing Order of December 16,2021. Appellant filed Notice of Appeal on February 2, 2022, and his Concise Statement Complained on Appeal on March 7, 2022. Thorough review of the record and applicable law demonstrates that the Defendant's claim lacks merit and for the reasons stated herein, the appeal should be denied .
I. RELEVANT PROCEDURAL &FACTUAL HISTORY
On September 16, 2021, a jury found Appellant guilty on the following charges: Count I: Possession of Firearm Prohibited (F1): and Count II: Firearms Not to Be Carried Without License (F3). Sentencing Order, 12/16/2021. Following trial, Appellant pied guilty to two additional charges: Count III: Driving While Operating Privilege Suspended or Revoked; and Count IV: Display Plate Card in Improper Vehicle. Id.
• On January 5, 2021, Appellant drove his girlfriend, Ms. Caroline Torres, to work Notes of Testimony ("NT") at 85. When they arrived, Ms. Torres testified that she realized her legally owed firearm was on her person, in her bag. NT at 85. Ms. Torres stated she was distracted because Appellant was late picking her up for work, and did not tell him that she had her firearm on her or that she placed it in an enclosed compartment in the trunk. NT at 85. "1 wrapped it up, put it in the trunk of the car, and just left it like that. I didn't tell him anything, I just went right to work.'' NT at 85.
Commonwealth. You didn't tell him, I got to put this back there?
Torres: I was putting my belongings back there.
Commonwealth: And you say you knew he wasn't allowed to possess a firearm. That is why you don't live together?
Torres: Yes.
Commonwealth: So, you thought it would be smart to leave it in the back of the car?
Torres: That part didn't cross my mind at that moment. I was trying to get to work.
Commonwealth: Now. I want to go to the gun itself. Is there anything added onto the gun at all?
Torres: No.
Commonwealth: Nothing added on, no laser sight?
Torres: No.
Commonwealth: And how many - what caliber gun is it, the Glock
Torres: I'm not too familiar with the Glock 19. I'm not familiar with guns.
Commonwealth: You're not familiar with guns?
Torres: No.
Commonwealth; Did you purchase an extra magazine for it?
Torres: No.
Commonwealth: You never purchased another magazine for it?
Torres: No, I didn't
Commonwealth: Now, how large of a purse did you have that day that you said you contained it in?
Torres: I usually carry big, large purses.
Commonwealth: So how many magazines did you own for the gun?
Torres: I just had one full clip.
Commonwealth: You had just one full clip. And was that an extended magazine?
Torres: No, the one that comes with it.NT at 92-93.
After dropping her off, Appellant drove to Sheetz located at 1158 River Road in East Donegal Township, Lancaster County, Pennsylvania. NT at 42. When Appellant was in the store. Officer Siegel of the Susquehanna Regional Police Department pulled in behind the 2003 GMC Yukon that Appellant had parked at a gas pump, and ran the license plate through Mobile Cop software. NT at 43. The results of the Mobile Cop search showed the plate was registered to a Ford vehicle at one point, but at the time of the incident, the tags were dead, . which means the tag is not valid and cannot be used on a motor vehicle in Pennsylvania." NT at 43. When Appellant returned to the gas pump, Officer Siegel called him over to the police vehicle to advise him of the results of the Mobile Cop search. NT at 44. Appellant told Officer Siegel that his employer purchased the vehicle in Maryland and put a dealer plate on it. NT at 45. The Officer found that the plate on the vehicle was not a dealer plate, and that Appellant's license was suspended, and as such he determined it was necessary to have a tow truck remove the vehicle from Sheetz. NT at 45-46. A tow truck was dispatched, and Officer Siegel waited with Appellant until the it arrived, and told him he would be receiving traffic citations in the mail, and then left the scene. NT at 47
After Officer Siegel departed the Scene, the tow truck operator, Mr. Theodore Moyer, testified that Appellant told him he was on the phone with his girlfriend who asked him to get her belongings out of the back of the vehicle, NT at 53 Because the vehicle was already partially on the bed of the tow truck, Mr, Moyer stated he could not allow Appellant to access the vehicle on the bed, but that he would retrieve the belongings for him. NT at 53-54. Appellant stated he was told her belongings were tn the rear hatch compartment of the trunk, but Mr. Moyer told him that the only thing in the compartment he could see was a blue blanket, NT at 54, Appellant said the belongings were probably under the blanket, and when Mr. Moyer moved the blanket, he found .. a fully loaded weapon with two extended mags.' NT at 54. Mr. Moyer testified to the following:
Moyer I turned back, looked at him, and said that I'm sorry, I can't give this to you. This is unacceptable and I closed the back window and got down off the bed. At that point in time, he said, please do not - well, I was going to have to contact the officer back to retrieve this item. He begged and begged, crossing his hands, asking me not to call the officer back.
Commonwealth: What was his demeanor like?
Moyer: He pretty much looked like he was going to cry.NT at 56. He left the scene and met Officer Siegel at the 700 block of East Market Street in Marietta Borough, and explained the situation. NT at 56. Mr. Moyer directed Officer Siegel to where the weapon was located, and Officer Siegel seized the items. NT at 57. 63, "He showed me a black Glock 9-millimeter Model 19 semi-automatic weapon that had an extended magazine in it There were also two separate magazines with that weapon." NT at 63.
Commonwealth: Is this the firearm you just described?
Officer Siegel: Correct. And the firearm had a red dot laser attached to it
Commonwealth; is that this item down here by the muzzle?
Officer Siegel: Correct.
Commonwealth: And you said there was an extended magazine, correct?
Officer Siegel: Yes. It was a 30-round- 3l-round extended magazine. I counted -1 took the magazine out of the magazine as well, I counted 24 rounds in that magazine, and then I pulled back the slide and there was a round in the chamber. It was ready to rock and roll.
Commonwealth: So, you said it was ready to rock and roll. Does that mean it was ready to fire?
Officer Siegel: Yes. That's a very bad situation, especially for law enforcement
Commonwealth: And you stated there were two other magazines there?
Officer Siegel: Correct. Fully loaded, 15-round magazines accompanied that weapon.
Commonwealth: And those were in the same location as the handgun? They weren't in like a different location?
Officer Siegel: Correct.
Commonwealth: Ultimately when you retrieved that gun, were you able to find a serial number for this gun?
Officer Siegel: I did.
Commonwealth: Were you able to eventually trace who that gun belonged to?
Officer Siegel: Yes,
Commonwealth: Do you know who it was registered to?
Officer Siegel: Yes.
Commonwealth: Who was that?
Officer Siegel; It was registered to the defendant's girlfriend.
Commonwealth. And was that Caroline Torres?
Officer Siegel: Correct.NT at 64-66. Officer Selgel contacted Appellant who later turned himself in at the police station and was placed under arrest. NT at 69. Ms. Torres admitted at trial that the firearm belonged to her, but that the extended magazine and scope found with it did not. NT at 92-93.
In transit to Lancaster County Prison, Appellant started crying and spontaneously admitted to police "... that he had purchased that vehicle at 1:00 or 2:00 a.m. the morning [of January 5, 2021J in Lancaster City from - couldn't remember if it was Jimmy or Spaz, far $500. He said that Jimmy or Spaz gave him a plate. He said it was a good plate." NT at 70. Appellant farther stated that he purchased the vehicle for his girlfriend to use because her current vehicle was not good in the snow, and he wanted to surprise her. NT at 70.
During the Commonwealth's case in chief, the following evidence was admitted: a vehicle record abstract, the firearm and magazines seized, a stipulation between the parties that Appellant was a person prohibited by law from possessing a firearm, and documentation from the Pennsylvania State Police concerning Appellant's rights to carry and/or possess firearms. NT at 2, 67-68. Alter the Commonwealth rested, the Defense moved for judgment of acquittal on the belief that the Commonwealth had not presented evidence sufficient to sustain a conviction of either charge, stating,
[specifically, there has been no evidence or testimony that has put the gun in Mr. Wife's hands. We have testimony that he was directed by someone else to find this item and we have his reaction to finding - shock, nervousness. We have no DNA, fingerprints, nothing tying Mr Wike to the gun, but for the mere presence with the tow truck driver to get stuff out of the back underneath a blanket. He didn't know what he was getting. The facts show Mr. Wike had no knowledge of the presence of a firearmNT at 81-82 The Commonwealth disagreed, arguing that it had presented sufficient evidence for the case to be decided by the jury. and this court agreed, denying the motion for acquittal. NT at 82. On December 16, 2021, Appellant was sentenced to five and a half to eleven years' incarceration. Sentencing Order 12/16/2021. This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.
II. DISCUSSION
"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." Commonwealth v. Rivera, 238 A.3d 482, 495 (Pa. Super. 2020) (quoting Common wealth v. Widmer, 744A.2d 745, 751-52, 560 Pa. 308 (2000)). "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.'' Id.
Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. [T]he facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence. Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.Commonwealth v. Lynch, 242 A,3d 339, 352 (Pa. Super. 2020) (citations omitted). Moreover, "[t]he trier of fact bears the responsibility of assessing the credibility of the witnesses and weighing the evidence presented. In doing so, the trier of fact is free to believe all, part, or none of the evidence." Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013).
Appellant was convicted under the following statutes:
Pa. C.S.A. 18 § 6105(a)(1): 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 of obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth; and
Pa. C.S.A.18 $ 6106(a)(1): . . any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.
1n criminal docket CP-36CR-5114-2009, Appellant was convicted until the following statutes following a guilty plea: Pa. C S.A. 18 § 3701<aH1)(iv). Pa. C.S.A. 18 § 903(a)(1), Pa. C.S.A. 18 § 3921(a), and Pa. C S.A IB 52701(a)(1), making Appellant a person unable to possess firearms. Appellant was on supervision stemming from this docket, and Others, due to numerous violations, including conviction of additional crimes. NT at 68.
Here, Appellant argues that the Commonwealth's evidence was insufficient to demonstrate that Appellant knowingly possessed the firearm or had the intent to, and to show that Appellant had the power to control the firearm Statement of Errors Complained of on Appeal, 3/7/2022. Both charges require the Commonwealth to prove that Appellant "possessed" the firearm. 18 Pa.C.S.A. § 6105-6106. As possession is the only statutory element challenged, we will accordingly only address this element
In Pennsylvania, courts have held that [p]ossession can be found by proving actual possession, constructive possession, or joint constructive possession,'' Commonwealth y. Panish, 191 A.3d 31, 36 (Pa. Super. 2018). "Where a defendant is not in actual possession of (he prohibited items, the Commonwealth must establish that the defendant had constructive possession to support the conviction.'' Hopkins, 67 A.3d at 820. "As with any other element of a crime, constructive possession may be proven by circumstantial evidence.” Commonwealth v. Peters, 218 A.3d 1206, 1209, 655 Pa. 601 (2019) (citing Commonwealth v. Macolino, 469 A.2d 132, 503 Pa. 201 (1983)}.
"The concept of constructive possession is a legal fiction used to prove the element although the individual was not in physical possession of the prohibited item." Peters, 218 A.3d at 1209 (citations omitted). "To establish constructive possession Of contraband, the Commonwealth must show that the defendant has conscious dominion' over the contraband, that is, the power to control the contraband arid the intent to exercise that control." Commonwealth y. Dix,2ST A.3d 383 (Pa. Super. 2019) (quoting Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012)). The "... intent to maintain a conscious dominion may be inferred from the totality of the circumstances . .Dix, 207A.3d at 383 (quoting Commonwealth v. Johnson, 26 A.3d 1078, 1094, 611 Pa. 381 (2011)). Further, "[t]he fact that the contraband is located in an area usually accessible only to the defendant may lead to an inference that he placed it there or knew of its presence." Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996) (citing Commonwealth v. Thompson, 428 A.2d 233,286 Pa Super. 31 (1981)).
[A] defendant's mere presence at a place where contraband is found or secreted is insufficient, standing alone, to prove that he exercised dominion and control over those items. Rather, knowledge 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.Parrish, 191 A.3d at 37 (citations omitted).
In the instant matter, there is no evidence to suggest that the firearm found in Appellant's vehicle was ever physically on his person, However, it is undisputed that Appellant is a person who cannot possess a firearm. It is also undisputed that Appellant exclusively operated the GMC Yukon on January 5, 2021, that he was the only occupant during the police interaction, and that he had full access to the passenger and trunk compartments of the vehicle at all times. Ms. Torres testified that she carried the firearm on her person that morning when she entered vehicle, when they arrived at her work, she removed the firearm from her bag, wrapped it in a blanket, and stored it in the trunk, all in Appellant's presence. Moreover, she asserted that when she put the firearm in the trunk that morning there was only the firearm itself and the standard clip, she did not have extended magazines, or a scope attached. Ms. Torres did not have access to the vehicle after she was dropped off at work. The only person who had access to the vehicle, and therefore the firearm, from the time it was left by Ms. Torres to when it was discovered by Mr. Moyer, was the Appellant, Mr. Moyer and Officer Siegel both assert that the extra magazines and scope were immediately visually apparent in the compartment with the firearm The firearm was stored in an enclosed compartment in the trunk, which is an area of a vehicle that is usually considered to be In the control of the operator, lending addition credence to the jury's inference that Appellant knowingly, constructively possessed the firearm.
When the totality of the circumstances are viewed in the light most favorable to the Commonwealth, it makes credible the jury's inference that Appellant not only had the knowledge that the firearm was in his vehicle, but knowledge of its precise location within the vehicle, proving his intent to control the firearm. Therefore, the evidence presented at trial is sufficient to prove the material element of constructive possession has been met, satisfying all material elements in controversy. As such this appeal should be denied, III. CONCLUSION
Based on a thorough review of the record and corresponding law, the errors Appellant complains of on appeal are without merit. Accordingly, the court's sentence should be upheld,