Opinion
J-A02014-19 No. 818 MDA 2018
03-08-2019
COMMONWEALTH OF PENNSYLVANIA v. ALEXANDER BERRIOS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 17, 2018
In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0004298-2017 BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J. MEMORANDUM BY DUBOW, J.:
Appellant, Alexander Berrios, appeals from the Judgment of Sentence entered in the Berks County Court of Common Pleas on April 17, 2018, following his conviction of Persons Not to Possess Firearms. On appeal, Appellant challenges the trial court's denial of his Motion to Suppress, as well as the sufficiency of the evidence in support of his conviction. After careful review, we affirm.
The facts and procedural history are as follows. On August 10, 2017, police charged Appellant with Persons Not to Possess Firearms, Tampering with or Fabricating Physical Evidence, Possession of a Controlled Substance, and Possession of Drug Paraphernalia, after Pennsylvania Board of Probation and Parole Officer Christopher Hall and Reading Police Officer Vincent Leazier visited Appellant's apartment for a probation "home check" and found, inter alia, a loaded firearm. Appellant also admitted to having ingested a large quantity of illegal drugs just prior to inviting the officers into his Apartment.
18 Pa.C.S. §§ 6105(a)(1) and 4910(1); and 35 P.S. §§ 780-113(a)(16) and 780-113(a)(32), respectively.
On November 8, 2017, Appellant filed an Omnibus Pretrial Motion seeking the suppression of evidence and Appellant's statement to Officers Hall and Leazier. In particular, and relevant to the instant appeal, Appellant alleged that his heroin overdose immediately before Officers Hall and Leazier interrogated him rendered his statement to them involuntary. He, thus, sought the suppression of the statement that "I didn't pay anything, I traded for it," in response to Officer Leazier asking him how much he paid for the firearm. Motion, 11/8/17, at ¶ 6(g).
The court held a hearing on Appellant's Motion, at which only Officers Hall and Leazier testified. Following the hearing, the trial court granted in part and denied in part Appellant's Motion. Relevantly, the court denied Appellant's Motion to Suppress Appellant's statement to the officers.
At the commencement of the hearing, Appellant informed the court that he no longer sought to suppress the physical evidence seized by police.
The court did, however, dismiss the charge of Tampering with or Fabricating Physical Evidence.
Appellant's one-day jury trial commenced on April 17, 2018. Officers Hall's and Leazier's testimony established the following facts. When the officers arrived at Appellant's apartment building, Officer Hall called Appellant on the phone, but Appellant did not initially respond. As Officers Hall and Leazier started to leave the premises, Appellant called out from a second-floor window and announced that he was home. Appellant then proceeded to open the front door and let the officers into the apartment building. The three men ascended to the second floor and entered Apartment 2F. There were no other people in Apartment 2F at this time.
Appellant showed Officers Hall and Leazier his bedroom, which was in the middle of the apartment. Officer Leazier described Appellant as being "calm, cooperative, friendly, [and] talkative." N.T. Trial, 4/17/18, at 75.
As the officers spoke with Appellant inside his bedroom, they noticed a bullet sitting atop a mini-fridge. Officer Leazier informed Appellant that he had seen the bullet, and that the possession of which was a violation of Appellant's parole. At that point, Officer Hall asked Appellant for permission to search, and Appellant consented, stating "you're going to do what you have to do anyway." N.T. Trial at 77. See also N.T. Suppression, 12/18/17, at 9.
Appellant then became defensive, uncooperative, and verbally combative, and informed Officer Leazier that he no longer wanted to speak with him. Appellant also became pale, and began sweating and rocking back and forth in his chair. Appellant's face was flushed and he was talking loudly. Notwithstanding, Officer Leazier testified that Appellant answered the officers' questions clearly and without difficulty, and the officers were able to converse with Appellant. See N.T. Trial at 54-85.
Appellant then informed Officer Leazier that he felt sick, and the officer escorted Appellant to the bathroom. In the bathroom, Appellant dry heaved and reiterated that he continued to feel ill. While Appellant and Officer Leazier were in the bathroom, Officer Hall continued to search the premises. Officer Hall found a loaded Smith & Wesson firearm inside of a box in Appellant's bedroom closet. He told Officer Leazier that he had found a firearm, which prompted Officer Leazier to handcuff Appellant and read him his Miranda rights.
Just prior to receiving his Miranda warning, Appellant informed the officers that he was sick to his stomach because he had overdosed by swallowing drugs before the officers entered his apartment.
The officers then questioned Appellant about the firearm. Although he initially denied owning it, Appellant ultimately admitted that he "had traded for it." N.T. Trial at 80, 92, 132. The officers testified that Appellant was still coherent and able to converse with them and answer their questions. Id. at 109, 133. Officer Leazier testified that, at the time, he did not believe Appellant was overdosing, but rather that Appellant's behavior and demeanor were consistent with being angry, scared, and nervous. Id. at 96.
Officer Leazier called an ambulance, which transported Appellant to the hospital. Doctors there provided Appellant with treatment to counteract the drugs he had ingested and informed Officer Leazier that Appellant exhibited symptoms of an acute overdose consistent with heroin.
Appellant and the Commonwealth stipulated that Appellant has a prior Possession With Intent to Deliver conviction that prohibits him from possessing a firearm in Pennsylvania. Appellant did not present any witnesses or testify in his own defense.
Following Appellant's trial, a jury convicted him of Persons Not to Possess Firearms. The Commonwealth withdrew the remaining charges. That same day, the trial court sentenced Appellant to serve a term of two to five years' incarceration.
On April 27, 2018, Appellant filed a Post-Sentence Motion in which he challenged the denial of his Motion to Suppress, and the weight and sufficiency of the Commonwealth's evidence in support of his conviction. The trial court denied Appellant's Motion without a hearing on May 1, 2018.
This timely appeal followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following three issues on appeal:
1. Whether the trial court erred in denying Appellant's Omnibus Pre-trial Motion to Suppress incriminating statements made after Appellant was [ M ] irandized even though the waiver was involuntary due to an acute drug overdose.Appellant's Brief at 8-9.
2. Whether [the] Commonwealth presented sufficient evidence to establish beyond a reasonable doubt that Appellant knowingly possessed the firearm found in his apartment.
3. Whether the trial court abused its discretion when it permitted a guilty verdict that was against the weight of the evidence, especially since the prosecution never pursued investigatory leads.
Appellant has acknowledged abandoning this issue by not addressing it in the argument section of his Brief. See Appellant's Brief at 9 n.1.
In his first issue, Appellant challenges the trial court's pre-trial Order denying his Motion to Suppress.
In reviewing the denial of a Motion to Suppress, we are limited to considering only the Commonwealth's evidence and "so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole." Commonwealth v. McCoy , 154 A.3d 813, 815-16 (Pa. Super. 2017). Where the testimony and other evidence supports the suppression court's findings of fact, we are bound by them and "may reverse only if the court erred in reaching its legal conclusions based upon the facts." Id. at 816. It is within the exclusive province of the suppression court to "pass on the credibility of witnesses and determine the weight to be given to their testimony." Id.
"The scope of review from a suppression ruling is limited to the evidentiary record created at the suppression hearing." Commonwealth v. Neal , 151 A.3d 1068, 1071 (Pa. Super. 2016) (citing In re L.J., 79 A.3d 1073, 1087 (Pa. 2013)). This Court will not disturb a suppression court's credibility determination absent a clear and manifest error. Commonwealth v. Camacho , 625 A.2d 1242, 1245 (Pa. Super. 1993).
Appellant claims that the court erred in not suppressing his admission to Officers Hall and Leazier that he had traded for the firearm the officers found in his bedroom. He avers that the court should have suppressed this statement because his Miranda waiver to the officers "was not voluntary because he was under the heavy influence of heroin, nor was his waiver knowing because he could not comprehend his legal rights or consequences." Appellant's Brief at 19; see also id. at 24-27. In support of his claim that the trial court erred, Appellant argues that: (1) the court failed to consider that the officers deprived Appellant of medical attention; (2) his "panic for his life . . . drained him of his ability to resist police interrogation;" (3) the court failed to consider the totality of the circumstances; (4) the court held Appellant's self-induced overdose against him; and (5) the court did not give enough weight to Appellant's intoxication when considering whether he was capable of waiving his rights. See id. at 28-41.
The Honorable M. Theresa Johnson, sitting as the trial court, has authored a comprehensive, thorough, and well-reasoned Opinion, citing to the record and relevant case law in addressing Appellant's challenge to the court's denial of his Motion to Suppress. The trial court also addressed this issue in its January 19, 2018 Findings of Fact and Conclusions of Law ("FFCL"). After a careful review of the parties' arguments and the record, we affirm on the basis of the trial court's Opinion and its FFCL. See FFCL, 1/19/18, at 1-6 (concluding that the totality of the circumstances indicate that Appellant's statement was voluntary and free from coercion, including, inter alia, (1) the brief duration of the interrogation; (2) the officers did not physically abuse or threaten Appellant; (3) the officers did not detain Appellant prior to his confession; (4) there is no evidence that the officers were anything other than polite and respectful to Appellant; (5) the officers assisted Appellant when he was ill, called an ambulance for him, and accompanied him to the hospital; and (6) there is no evidence that Appellant did not understand his Miranda warnings). See also Trial. Ct. Op., 7/20/18, at 4-7 (concluding that the Commonwealth established by a preponderance of the evidence that Appellant had "sufficient cognitive awareness" to understand the Miranda rights and voluntarily chose to waive them because (1) Appellant communicated clearly before and after the officers administered the Miranda warnings; and (2) the officers credibly testified that Appellant did not exhibit any signs that he did not understand the Miranda warnings.).
In his second issue, Appellant claims that the Commonwealth's evidence was insufficient to prove that he knowingly possessed a firearm. Appellant's Brief at 41.
"A claim challenging the sufficiency of the evidence is a question of law." Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000). "We review claims regarding the sufficiency of the evidence by considering 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." Commonwealth v. Miller , 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation marks and citations omitted). "Further, a conviction may be sustained wholly on circumstantial evidence, and the trier of fact—while passing on the credibility of the witnesses and the weight of the evidence—is free to believe all, part, or none of the evidence." Id. "In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for the fact-finder." Id.
The jury convicted Appellant of the offense of Persons Not to Possess Firearms. Section 6105, Persons Not to Possess Firearms provides, in relevant part, that "[a] person who has been convicted of an offense enumerated in subsection (b) . . . 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. § 6105(a)(1).
Appellant specifically challenges the evidence supporting the possession element of this offense. Appellant argues that the Commonwealth failed to present sufficient circumstantial evidence to establish that Appellant constructively possessed the firearm. Appellant's Brief at 43. Thus, we limit our analysis to this element only.
This Court has held that "[p]ossession can be found by proving actual possession, constructive possession, or joint constructive possession." Commonwealth v. Heidler , 741 A.2d 213, 215 (Pa. Super. 1999). Where a defendant is not in actual possession of the recovered firearm, the Commonwealth must establish that the defendant had constructive possession to support the conviction. Commonwealth v. Hopkins , 67 A.3d 817, 820 (Pa. Super. 2013). "Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement." Id. (citation and quotation omitted). "We have defined constructive possession as conscious dominion." Id. (citation and quotation omitted). "We subsequently defined conscious dominion as the power to control the contraband and the intent to exercise that control." Id. (citation and quotation omitted). "To aid application, we have held that constructive possession may be established by the totality of the circumstances." Id. (citation and quotation omitted).
It is well established that, "[a]s with any other element of a crime, constructive possession may be proven by circumstantial evidence." Commonwealth v. Haskins , 677 A.2d 328, 330 (Pa. Super. 1996). 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 weapon. See , e.g., Commonwealth v. Davis , 743 A.2d 946, 953-54 (Pa. Super. 1999) (holding evidence was sufficient to prove constructive possession over drugs found in common areas of apartment where defendant entered apartment using his own key, possessed $800 in cash on his person, and police recovered defendant's identification badge, size-appropriate clothing, and firearms from a bedroom).
It is insufficient to infer "dominion and control" when the Commonwealth only provides evidence of the defendant's presence. See Commonwealth v. Valette , 613 A.2d 548, 551 (Pa. 1992) (holding mere presence at a place where contraband is found or secreted is insufficient standing alone to prove constructive possession). Moreover, if the only inference that the fact-finder can make from the facts is a suspicion of possession, the Commonwealth has failed to prove constructive possession. Id. "It is well settled that facts giving rise to mere 'association,' 'suspicion' or 'conjecture,' will not make out a case of constructive possession." Id.
Here, the trial court concluded that the evidence was sufficient to support Appellant's conviction for Persons Not to Possess Firearms. Trial Ct. Op. at 9. After reviewing the record and case law, we agree with the trial court's conclusion.
The Commonwealth presented uncontradicted testimony that Appellant escorted the officers to his apartment and identified to them the location of his bedroom and his belongings. The officers found the firearm, and a bullet of matching caliber, in the bedroom that Appellant indicated was his. Moreover, Appellant acknowledged that the firearm was his when he admitted to the officers that he had traded for it. Although Appellant argues in his brief that the firearm could have belonged to his cousin or his brother, both of whom he alleges lived, at one time or another, in the apartment with Appellant, there is no evidence in the record to support this contention.
See Appellant's Brief at 43.
From this evidence, it was reasonable for the jury to infer that Appellant exercised dominion and control over the firearm. Accordingly, we conclude that the Commonwealth presented sufficient circumstantial evidence to establish that Appellant constructively possessed the firearm. Appellant is not, therefore, entitled to relief on this claim.
Judgment of Sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 03/08/2019
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