1013 MDA 2024
Pa. Super. Ct.Sep 2, 2025Background
- Undercover officers made controlled buys of heroin/fentanyl from Diego Plasencia on May 4 and May 12, 2021.
- On May 14, 2021 detectives executed a search warrant at Plasencia’s Reading residence; they found documents bearing his name/address.
- In the middle bedroom (connected by a door to a rear bedroom) officers found 104 grams of heroin/fentanyl, scales, packaging, men’s clothing, and a photo of Plasencia with the baby.
- A .22 handgun with the serial number scratched out was recovered between the mattress and box spring in the rear bedroom; Plasencia was not present at the house.
- At a separate Wyomissing apartment Plasencia consented to a search; officers found ~0.9 grams of heroin/fentanyl, ammunition, and his driver’s license listing the Reading address; he was arrested and charged.
- He was convicted at jury trial (he missed day two and was tried in absentia), later apprehended, sentenced to 9–18 years, and appealed claiming insufficiency of evidence (firearm possession) and prosecutorial misconduct in closing argument.
Issues
| Issue | Plaintiff's Argument (Plasencia) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Sufficiency to prove constructive possession of the hidden firearm | No fingerprints/DNA, not found in his bedroom, multiple adults lived there, no direct proof he exercised control | Totality of circumstances (residence link, access to rear bedroom through middle bedroom, drugs and paraphernalia nearby, personal items) supports inference of dominion and control | Affirmed: constructive possession established by circumstantial evidence and access to the room |
| Sufficiency to convict under §6110.2 (altered serial number) | Lack of proof he possessed the tampered firearm | Serial number alteration undisputed; possession element proven via constructive-possession analysis | Affirmed: element of altered serial satisfied and possession proven through constructive-possession findings |
| Prosecutorial misconduct — referencing other guns in closing | Statements inflamed the jury by suggesting ownership of other firearms beyond the charged gun | Statements were not objected to at trial; claim forfeited | Waived under Pa.R.A.P. 302(a); not reached on merits |
| Prosecutorial misconduct — urging jurors to “take the law into their own hands” | Comment was prejudicial and unsupported by evidence | No contemporaneous objection or motion for mistrial; claim waived | Waived under Pa.R.A.P. 302(a); not reached on merits |
Key Cases Cited
- Commonwealth v. Juray, 275 A.3d 1037 (Pa. Super. 2022) (standard of review for sufficiency claims)
- Commonwealth v. Parrish, 191 A.3d 31 (Pa. Super. 2018) (constructive possession defined as conscious dominion; may be proven circumstantially)
- Commonwealth v. Smith, 146 A.3d 257 (Pa. Super. 2016) (when contraband not on person, Commonwealth must prove constructive possession)
- Commonwealth v. Johnson, 26 A.3d 1078 (Pa. 2011) (one or more persons may have joint constructive possession in area of joint control)
- Commonwealth v. Walker, 874 A.2d 667 (Pa. Super. 2005) (constructive possession inferred from contraband among personal items in home)
- Commonwealth v. Hill, 210 A.3d 1104 (Pa. Super. 2019) (constructive possession of firearm with tampered serial when found among defendant’s personal effects)
- Commonwealth v. Wright, 255 A.3d 542 (Pa. Super. 2021) (joint possession and access support constructive-possession findings)
- Commonwealth v. Arrington, 86 A.3d 831 (Pa. 2014) (failure to object to prosecutor’s closing arguments waives claim on appeal)