Opinion
No. 319 C.D. 2013
11-12-2013
Bryan J. Sims, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Bryan J. Sims (Sims) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board). The Board denied Sims' appeal of the Board's November 14, 2012 order, recommitting Sims as a technical violator to serve twelve months backtime. We affirm the Board's order.
In April 2009, Sims pleaded guilty to a single criminal charge involving the manufacture/sale/delivery of a drug, and Sims was sentenced to a term of three-to-six years. The Board granted Sims parole to an approved plan on or around January 10, 2012, with a release date of April 9, 2012. On August 2, 2012, following Sims' release, the Board declared Sims delinquent as of July 18, 2012. On August 22, 2012, the Board issued a warrant to commit and detain Sims.
On or about August 28, 2012, the Board issued a notice of charges and hearing, which Sims signed on August 31, 2012. The Board charged Sims with the following technical violations: (1) Condition 1 ("[D]o not leave . . . district without prior written permission of the parole staff"); (2) Condition 3A ("Maintain regular contact with the parole supervision staff by reporting regularly as instructed and follow[] any written instructions of the Board or the parole supervision staff"); and (3) Condition 5B ("[R]efrain from owning or possessing any firearms or other weapons"). (Certified Record (C.R.) at 16.)
The Board also charged Sims with violating Condition 2 (relating to changing residence without written permission from parole supervision staff), but ultimately dropped that charge.
Sims waived a preliminary hearing, and the Board conducted a parole hearing on November 5, 2012. During the hearing, Supervisory Special Agent James Henwood (Agent Henwood), who works for the Pennsylvania Attorney General's gun violence task force in Philadelphia, testified. As an agent in the gun violence task force, Agent Henwood investigates gun trafficking in Philadelphia, and, as part of that function, Agent Henwood investigates suspicious gun sales immediately after a sale or sales occur. During the hearing, Agent Henwood indicated that he recognized Sims. During the course of investigating the sale of a gun to Ms. Khalilah Skipworth, Agent Henwood sought to investigate Sims. Because Agent Henwood knew that there was an outstanding warrant for Sims' arrest, Agent Henwood arrested Sims and transported him to 5510 Pine Street in Philadelphia, where he interviewed Sims regarding the investigation of the gun sale to Ms. Skipworth. Agent Henwood testified that, after he read Miranda warnings to Sims, Sims waived his rights, and Sims produced a six-page "statement" for Agent Henwood.
Because the primary issue Sims raises in this appeal involves the Board's charge under Condition 5B (owning or possessing a firearm or other weapon), we will focus our review on the evidence that is pertinent to that parole condition.
Miranda v. Arizona, 384 U.S. 436 (1966).
The "statement" consists of questions posed by Agent Henwood to Sims and Sims' responses to the questions.
In his statement to Agent Henwood, Sims made the following representations: (1) Ms. Skipworth is his fiancée and Sims resides with her; (2) Sims accompanied Ms. Skipworth to Delia's Gun Store on June 26, 2012; (3) Sims went to the gun store with Ms. Skipworth because she wanted a gun; (4) Sims' supervising parole agent told him he could not have guns in the house; (5) after Ms. Skipworth selected a gun, Sims picked up the gun and looked at it; and (6) Sims did not give Ms. Skipworth verbal permission to keep the gun at the house, but he "understood she felt unsafe being home alone while [he] worked 12 hour days." (C.R. at 80-84.) Sims denied providing Ms. Skipworth with money to buy the gun, ever buying ammunition for the gun, and ever using or discharging the gun.
Agent Henwood testified regarding Ms. Skipworth, noting that he understood that she does not have the use of her left hand. Based upon this understanding, he believed that she would not be able to load, ready, and use the gun for self-protection, because he believed that she would need two hands to fully operate the gun. Agent Henwood also testified regarding a video that was admitted into the record. The video depicts the gun shop where Ms. Skipworth purchased the gun. Agent Henwood testified that he believes the video shows Ms. Skipworth and Sims entering the shop, viewing various guns, Ms. Skipworth purchasing the gun, and the two leaving the shop. Agent Henwood identified Ms. Skipworth with a degree of certainty, but acknowledged that identifying Sims was more difficult. Sims testified that Ms. Skipworth wanted a gun for protection and that she would have purchased a gun with or without his help.
The Board found that violations of Conditions 1, 3A, and 5B were established. Sims, acting pro se, filed a petition for administrative review. With respect to the violation of Condition 5B, Sims asserted that the only evidence of possession of the gun was his touching the gun at the shop and that the Board's decision was not supported by substantial evidence. Sims, without addressing the evidence indicating that the gun was located in his residence, asserted that such contact with the gun was insufficient to establish his ownership or possession. The Board denied Sims' petition, concluding that the testimony of Agent Henwood and documentary evidence (presumably the statement) was sufficient to establish the violation of Condition 5B.
Sims, still acting pro se, filed a petition for review with this Court, in which he again asserted that his mere touching of the gun in the shop is insufficient evidence to establish his possession of the gun. Thereafter, Sims became represented by an attorney, who filed an amended petition for review, in which he argues that substantial evidence does not support the Board's revocation decision and that the Board relied upon hearsay and other inadmissible evidence to support its determination.
Our standard of review of a Board order denying administrative relief from a Board order finding that a parolee committed technical parole violations is limited to considering whether necessary factual findings are supported by substantial evidence, whether the Board erred as a matter of law, and whether constitutional rights were violated. 2 Pa. C.S. § 704.
We note that, in this case, Sims minimally raises not only a substantial evidence question, but also suggests that the Board's findings are insufficient as a matter of law to support the legal conclusion that he was in possession of the gun. Neither party, however, has briefed the issue of what constitutes "possession" for the purposes of alleged violations of Condition 5B.
We begin by noting that the Board bears the burden of proving technical violation by a preponderance of the evidence. Chapman v. Pa. Bd. of Prob. and Parole, 484 A.2d 413, 416 (Pa. Cmwlth. 1984). The Board, as fact finder, resolves conflicts in evidence, determines witness credibility, and decides the weight to be afforded particular evidence. Id. In exercising our powers of appellate review, we may not second guess the Board's decisions in such matters. Id. Nevertheless, as noted above, in accordance with our standard of review, we may consider whether substantial evidence supports necessary factual findings and whether those findings are sufficient to support the Board's ultimate legal conclusions.
In Knuckles v. Pennsylvania Board of Probation and Parole, 533 A.2d 1156 (Pa. Cmwlth. 1987), this Court held that the Board does not need to prove that a parolee owns a weapon in order to find that a parolee violated Condition 5B. Knuckles, 533 A.2d at 1158. Rather, evidence that a parolee possesses a weapon is sufficient. Id. Moreover, in Knuckles, the parolee asserted that although he knew a firearm was in the house, he did not have "possession" of the firearm. The parolee asserted that he was residing in his deceased father's house and that the firearm had belonged to his father. We concluded that such factors "did not negate the fact that [the parolee] had constructive possession of" the weapon. Id. Rather, "[c]onstructive possession occurs when one does not have actual possession but rather has the intent and power at a given time to exercise control and dominion over the object either directly or through another person." Id. Unlike Knuckles, however, where the parolee's father apparently did not live in the house, in this case there is evidence indicating that another person residing in the house, Ms. Skipworth, actually purchased the gun.
The Court in Knuckles also referenced another decision from this Court, Seifrit v. Pennsylvania Board of Probation and Parole, 514 A.2d 654 (Pa. Cmwlth. 1986), which it found analogous to the case before it:
[The parolee] argued that marijuana found in his residence belonged to his girlfriend. Relying upon the facts that the drug was in plain view, that it was in [the parolee]'s residence, and that [the parolee]'s girlfriend had moved out, we held that the Board had met its burden by demonstrating constructive possession of the marijuana. We believe that on the facts of this case the same result is compelled. Additionally, we noted that the Board, as fact-finder, is free to reject any explanation offered by the [parolee].Knuckles, 533 A.2d at 1158.
The Court in Knuckles also cited Nickens v. Pennsylvania Board of Probation and Parole, 502 A.2d 277 (Pa. Cmwlth. 1985), a case in which the Board presented evidence that the parolee had a gun-related tattoo and a sign in his leather shop, depicting a revolver with language suggesting that the owner of the shop possessed a gun, which created a suspicion in the mind of the parole agent. Based upon that suspicion, the parole agent searched the parolee's residence and found a sawed-off shotgun in the parolee's bedroom closet. In Nickens, the parolee suggested that the gun may have belonged to his business partner, who had access to the parolee's living area. This Court concluded that the Board did not err in finding that the parolee had constructive possession of the gun:
The circumstances present here are sufficient to support a finding that [the parolee] constructively possessed the sawed-off shotgun found in his bedroom closet. The Board, as the ultimate fact-finder, was free to accept or reject his denial of any knowledge of the presence of the weapon or his explanation of his business partner's accessibility to his living area.Nickens, 502 A.2d at 281.
In this case, the evidence indicates that Sims went to a gun shop with Ms. Skipworth. Although Sims testified that Ms. Skipworth purchased the gun for her own use, the Board was free to reject that testimony. Thus, while the Board could have reviewed that evidence and determined that Ms. Skipworth wanted to own and possess the gun for her own protection, and that Sims had no intent to possess a weapon, it elected not to reach that conclusion. The remaining evidence of Sims' constructive possession is the fact that the gun was in his residence. Agent Henwood testified that upon his request, Ms. Skipworth brought the gun to the door. Again, while that evidence facially appears only to support the fact that a gun was in Sims' residence, the question is whether, given the Board's rejection of Sims' testimony that Ms. Skipworth purchased the gun for self-protection, the fact that the gun was in Sims' residence is sufficient to establish by a preponderance of the evidence that Sims was in constructive possession of the gun.
Clearly, the Board could determine that Sims had knowledge that the gun was in his residence, such that he knew he could exert power and/or dominion over the weapon at any time. The test, however, also requires that a person "knowingly has the power and intention at a given time to exercise dominion and control over the object, either directly or through others." Nickens, 502 A.2d at 281. Drawing from criminal cases involving the standard applicable to the element of intent to possess for the purpose of considering whether a person has constructive possession, we note the following legal standards. Constructive possession may be proven by circumstantial evidence, and the necessary intent may be inferred from an examination of the totality of the circumstances. Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996), appeal denied, 547 Pa. 751, 692 A.2d 563 (1997). In cases where constructive possession is an issue, adjudicative bodies may draw inferences that the suspect placed a weapon or controlled substance in a particular location, when the evidence establishes that the suspect had sole access to or knowledge of the location of the weapon or controlled substance. Id. In Commonwealth v. Miley, 460 A.2d 778 (Pa. Super. 1983), the Superior Court held that the Commonwealth could establish a suspect's intent to control a controlled substance by demonstrating the suspect's knowledge of the substance's presence in a particular location. Miley, 460 A.2d at 784. In that case, however, the Court concluded that such an inference of intent was based upon the fact that the suspect was the only person who had access to the location where the controlled substance was located.
Here, the Board could have concluded that Sims had constructive possession if there is record evidence, even of a circumstantial nature, to show that Sims had the necessary intent to possess the gun. In this regard, the Board had the following evidence to consider: (1) the video tape (and Sims' admission) that he held the gun when Ms. Skipworth was shopping for the gun; (2) the location of the gun in his residence (based upon Agent Henwood's testimony that he went to Sims' address and spoke with Ms. Skipworth at the entrance to the apartment building in which they lived, and, that, upon his request, Ms. Skipworth retrieved the gun from the apartment building; and (3) the testimony of Agent Henwood that he understood that Ms. Skipworth did not have the use of one of her arms, and, thus, he did not believe that she would be able to use the gun.
Sims takes issue with some of the evidence submitted during the hearing, which he contends constituted hearsay to which he objected during the hearing. Sims objected to testimony offered by Agent Henwood relating information Ms. Skipworth and the owner of the gun shop provided to him. The Board did not propose and does not argue here that the testimony was offered to prove some issue other than the facts asserted, which means the testimony was classic hearsay. Pa. R.E. 802. We agree with Sims that the Board could not consider that hearsay evidence in reaching its factual determinations. The Board could only consider hearsay evidence if Sims failed to object and, then, only if the hearsay was corroborated elsewhere in the record by non-hearsay evidence. Benson v. Workmen's Comp. Appeal Bd. (Haverford State Hosp.), 668 A.2d 244, 248 n.8 (Pa. Cmwlth. 1995). Because the hearsay does not appear to be corroborated, we will review the record without reference to the hearsay testimony.
The question is whether this evidence is sufficient to support the Board's conclusion that Sims constructively possessed the gun. It is true that, unlike some of the decisions cited above, there is evidence that Ms. Skipworth purchased the gun for herself and, because she lived with Sims, he was not the only person in his home who had access to the gun. There is also evidence, however, that Sims was interested in the gun, because he admitted accompanying Ms. Skipworth to the gun shop and holding the gun before Ms. Skipworth completed the sale of the gun. Moreover, Agent Henwood testified that Ms. Skipworth did not have the use of one of her hands, a fact which, in his experience, indicated that she would not be able to prepare and/or use the gun for the self-protection, contrary to Sims' testimony. Thus, the Board, as fact-finder, and in accordance with its power to determine credibility and weigh the evidence, could reject Sims' self-serving testimony and draw the inferences suggested above, thereby reaching the conclusion that Sims had the intent to control the gun and, thus, had constructive possession of the gun.
Based upon the foregoing discussion, we conclude that the Board's necessary factual findings are supported by substantial evidence. Furthermore, we conclude as a matter of law that the Board did not err in determining that Sims had constructive possession of the gun, and, consequently, violated Condition 5B. Accordingly, we affirm the Board's order.
To a lesser degree, Sims asserts that the Board lacked sufficient evidence from which to conclude that he violated Condition 1 (prohibiting his leaving the district in which he resided without written permission of his parole supervisor). Based upon the evidence presented indicating that the gun shop is located outside the district in which he resides, and Sims' admission that he was in the gun shop, we conclude that there is sufficient evidence to support the Board's determination that Sims violated Condition 1. Although Sims apparently had permission to leave the district for the purpose of working, there is no evidence indicating his parole supervisor gave him written permission to leave the district for any other purpose. --------
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 12th day of November, 2013, the order of the Pennsylvania Board of Probation and Parole is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge