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Commonwealth v. Peters

Supreme Court of Pennsylvania

October 31, 2019

ALANAH F. F. PETERS, Appellant

          SUBMITTED: May 10, 2019

          Appeal from the Judgment of Superior Court entered on 1/30/18 at No. 2176 EDA 2015 affirming the judgment of sentence entered on 6/2/15 in the Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-0001270-2012




         This appeal involves a challenge to the defendant's conviction, under a constructive-possession theory, of carrying a concealed firearm without a license. We assess whether Appellant's conviction can be sustained on such a theory where the gun was physically held and used by another person during the relevant time.

         Viewed favorably to the Commonwealth as verdict winner, see Commonwealth v. Pruitt, 597 Pa. 307, 318, 951 A.2d 307, 313 (2008), the facts are as follows. In August 2011, Appellant was involved in a relationship with the victim, Jesse Hicks. On the night in question, August 16 into the early morning hours of August 17, Appellant was visiting Hicks at his apartment. Appellant complained that her father lacked rent money and faced eviction. Hicks showed her $700 in cash and said he would give it to her father. He then put the money in his pocket. Later, after the two had argued, Hicks stated he was no longer willing to give the money to Appellant's father.

         Appellant exchanged text messages on her phone and told Hicks, "You're going to get it." Thereafter, two men arrived and Appellant let them in, although Hicks had not authorized her to do so. One was visibly holding a .22-caliber handgun, and the other had no weapon. Hicks came down from his bedroom after Appellant falsely told him a friend of his had arrived. When Hicks saw the men and the gun, he ran back upstairs. The men gave chase and forced their way into his bedroom. One ransacked the room, demanding money - which Hicks denied having - while the other trained his gun on Hicks. Unable to find any cash, the unarmed man told the other to "hit him one time." The latter fired a shot which pierced Hicks' jaw, tongue, and shoulder, and dislodged some of his teeth. The assailants kicked Hicks in the face and left the room. Appellant, who had remained outside the room, suggested they check Hicks' pockets. The men re-entered the room and, as Hicks lay bleeding on the floor, removed his pants, took his $700, and fled. They were never identified or apprehended. Hicks was taken to the hospital where he was treated and released several days later.

         Appellant was charged with numerous offenses including attempted murder, robbery, aggravated assault, and conspiracy. Most relevant to this appeal, she was charged with carrying a concealed firearm without a license per Section 6106 of the Crimes Code. Subject to exceptions not presently relevant, that provision states that

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 [i.e., Chapter 61, relating to "firearms and other dangerous articles"] commits a felony of the third degree.

18 Pa.C.S. §6106(a)(1).

         At trial, the parties stipulated that Appellant did not have a license to carry a firearm. The jury found her guilty on all charges. She was sentenced to an aggregate term of 13 to 30 years' imprisonment.

         Appellant appealed, questioning, inter alia, whether the evidence was sufficient to support her conviction under Section 6106(a)(1). The Superior Court affirmed in a non-precedential decision. See Commonwealth v. Peters, No. 2176 EDA 2015, slip op., 2018 WL 617947 (Pa. Super. Jan. 30, 2018). The court initially expressed that she had been convicted pursuant to a constructive-possession theory.[1] After reciting the standard for constructive possession and briefly reviewing the events as described above, the intermediate court summarily concluded that Appellant "had the power to control the firearm and the intent to exercise that control and, therefore, constructively possessed the firearm." Id. at *7. The court did not discuss concealment of the gun.

         We allowed further review, limited to the issue of whether the Superior Court erred in rejecting Appellant's sufficiency challenge in relation to her conviction, under a constructive theory, of carrying a concealed firearm without a license. See Commonwealth v. Peters, ___ Pa. ___, 192 A.3d 1112 (2018) (per curiam).[2]

         Where possession is an element of the offense, 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. The evidence must show a nexus between the accused and the item sufficient to infer that the accused had the power and intent to exercise dominion and control over it. See Commonwealth v. Mudrick, 510 Pa. 305, 308, 507 A.2d 1212, 1213 (1986). Dominion and control means the defendant had the ability to reduce the item to actual possession immediately, accord State v. Jones, 45 P.3d 1062, 1064-65 (Wash. 2002) (en banc), or was otherwise able to govern its use or disposition as if in physical possession. See, e.g., People v. Sinclair, 19 P.2d 23 (Cal.Ct.App. 1933) (finding constructive possession where the defendant was driving an automobile and, upon being stopped by the police, directed his passenger to throw illegal drugs out of the window). Mere presence or proximity to the contraband is not enough. Accord Rivas v. United States, 783 ...

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