COMMONWEALTH of Pennsylvania, Appellee, v. John Joseph HEIDLER, III, Appellant.
Superior Court of Pennsylvania.
Nov. 9, 1999.
741 A.2d 213
Argued Sept. 8, 1999.
(v) physically takes or removes property from the person of another by force however slight.
(2) An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.
(B) GRADING. — Robbery under subsection (a)(1)(iv) is a felony of the second degree; robbery under subsection (a)(1)(v) is a felony of the third degree; otherwise, it is a felony of the first degree.
¶ 26 After a thorough review of the record, the briefs of the parties, the applicable law, and the very well-reasoned opinion of the Trial Court, we are satisfied that the opinion of the learned and eminent Trial Judge, the Honorable David W. Heckler, fully and correctly addresses this issue and we see no need to duplicate his fine efforts. Accordingly, we affirm on the basis of that opinion with respect to this issue.1
¶ 27 Judgment of Sentence affirmed.
¶ 28 President Judge McEWEN concurs in the result.
Jaime M. Keating, Asst. Dist. Atty., Carlisle, for Com., appellee.
Before McEWEN, President Judge, and DEL SOLE, KELLY, POPOVICH, JOHNSON, FORD ELLIOTT, EAKIN, JOYCE and STEVENS, JJ.
POPOVICH, J.:
¶ 1 Appellant, John Joseph Heidler, III, appeals from the judgment of sentence dated October 14, 1997, in the Court of Common Pleas of Cumberland County. Appellant questions: “Whether the [Appellant] had constructive possession of a firearm when the firearm was placed in his companion‘s purse prior to arriving at the school?” Appellant‘s brief, p. 1. Upon consideration of appellant‘s claim, we reverse Appellant‘s conviction.
FACTS:
¶ 2 On October 4, 1996, Appellant and his girlfriend left their home in Columbia County to pick up Appellant‘s son from the Lamberton Middle School in Carlisle for a scheduled weekend visitation. After leaving his residence, Appellant gave his girlfriend his handgun, which she put in her purse. Both Appellant and his girlfriend carried valid licenses to carry a concealed firearm. Appellant parked his vehicle in the school parking lot and went into the
¶ 3 The police arrived at the school and served a copy of the PFA petition and the temporary order on Appellant. Upon talking to Appellant‘s girlfriend, who still remained in the car, they learned that she had Appellant‘s handgun in her purse. The police confiscated the handgun, and Appellant was charged with possession of a weapon on school property.2 A bench trial was held, and on September 15, 1997, the trial judge found Appellant guilty. On October 14, 1997, the trial judge sentenced Appellant to a six-month term of unsupervised county probation, required him to pay the costs of prosecution and ordered destruction of the firearm in question pending appeal. It is from this judgment of sentence that Appellant appeals.3
DISCUSSION:
¶ 4 We now address Appellant‘s claim that there was insufficient evidence for the trial court to find that he possessed the firearm on school property because the firearm was placed in his companion‘s purse prior to arriving at school. Our standard of review when there is a challenge to the sufficiency of the evidence is well established: “In reviewing the sufficiency of the evidence to support a conviction, the evidence must be viewed in the light most favorable to the Commonwealth, and the Commonwealth is entitled to all favorable inferences which may be drawn from the evidence.” Commonwealth v. Hanes, 361 Pa.Super. 357, 522 A.2d 622, 623-24 (1987). Moreover, if a fact finder reasonably determines from the evidence “that all of the necessary elements of the crime were established, then the evidence will be deemed sufficient to support the verdict.” Commonwealth v. Baer, 452 Pa.Super. 547, 682 A.2d 802, 805 (1996).
¶ 5 Herein, Appellant was charged with possession of a weapon on school property which occurs when a person “possesses a weapon ... on the grounds of ... any elementary or secondary publicly-funded educational institution....”
¶ 6 The Commonwealth argued that Appellant had constructive possession. “Constructive possession” is found where the individual does not have actual posses-
¶ 7 Pennsylvania courts have held that where another person has equal access to the area where illegal contraband or weapon is found, the defendant cannot be said to have either the power to control or the intent to control such contraband or a weapon per se. See Commonwealth v. Chenet, 473 Pa. 181, 373 A.2d 1107 (1977) (finding no constructive possession because the contraband was found in an area equally accessible to a third party); Commonwealth v. Juliano, 340 Pa.Super. 501, 490 A.2d 891 (1985) (finding the evidence insufficient to conclude that appellant constructively possessed contraband when three other people had equal access to the area in which the contraband was found); Commonwealth v. Smith, 258 Pa.Super. 148, 392 A.2d 727 (1978) (finding constructive possession because no person, other than appellant, had equal access to a bag in which a firearm and contraband were located); see also Commonwealth v. Wisor, 466 Pa. 527, 353 A.2d 817 (1976) (stating “the fact of possession loses all persuasiveness if persons other than the accused had equal access with him to the place in which the property was discovered“).
¶ 8 Presently, the firearm at issue was found in the purse of a passenger in Appellant‘s vehicle. Appellant and his passenger did not have equal access to that purse. Under the facts before us, the only person that could be deemed to have access to the purse was its owner — the passenger in Appellant‘s vehicle. Following the rationale in our precedent, it is only logical that where Appellant did not have access to the area where the handgun was found, Appellant cannot be deemed to have the necessary power to control or intent to control the gun.
¶ 9 Even assuming Appellant had the power to access the firearm, we fail to see how the trial judge could have logically concluded, beyond a reasonable doubt, that Appellant intended to exercise control over his handgun upon arriving at the middle school. The record in this case is devoid of evidence to support such an inference. On the contrary, it is clear that Appellant‘s intent was to relinquish such control. Indeed, Appellant handed over his handgun to his girlfriend prior to entering school property. If it was his intention to retain control, he could have either kept the gun or put it in a place not under the control of a third party. The record does not, therefore, support a finding that Appellant intended to exercise control over his handgun.
¶ 10 In the alternative, the Commonwealth argues, and the trial judge agreed, that Appellant had joint constructive possession of the handgun. Trial Court Opinion, 9/17/97, at 2-3. In order to prove joint constructive possession, the Commonwealth again must prove that Appellant had both the power to control and the intent to control the firearm. Commonwealth v. Magwood, 371 Pa.Super. 620, 538 A.2d 908, 909-10 (1988). We have already concluded, however, that Appellant7
¶ 11 Viewing the evidence in the light most favorable to the Commonwealth, and giving the Commonwealth all the favorable inferences which may be drawn from the evidence, we conclude that the Commonwealth did not meet its burden in proving the necessary element of (constructive) possession. Consequently, the trial court erred as a matter of law in concluding that the element of “possession” had been established under
CONCLUSION:
¶ 12 Accordingly, we reverse Appellant‘s judgment of sentence dated October 14, 1997, and remand this case to the Court of Common Pleas of Cumberland County for entry of an order discharging Appellant. Jurisdiction relinquished.
¶ 13 EAKIN, J., files a Dissenting Opinion.
EAKIN, J., dissenting:
¶ 1 The majority bases its reversal on the fact appellant put his gun in his girlfriend‘s purse before entering the school; this is interpreted as displaying an effort to dispossess himself of the weapon, rather than an intent to conceal it. Remembering appellant was at the school to collect a child in the context of a custody dispute, and that police were called to serve a PFA petition on him, such concealment is not necessarily as pure and innocent as the majority assumes.
¶ 2 The legislature made this all but a strict liability crime, requiring no proof of purpose beyond the transport onto school property, for reasons as obvious as the nightly news. The one indisputable fact shown by his act is that he knew he shouldn‘t bring the gun to the school; he chose to do so anyhow, hidden in his companion‘s purse. Hiding that which is illegal does not make it legal.
¶ 3 The learned trial court was in much better position than we are to assess the true nature and purpose of concealing the gun in the purse, but did not find exculpation in that act. If putting the gun in the purse was at all commendable, it may mitigate the sentence, but does not excuse the bringing of a gun on school property. The purpose of this law is to keep guns away from schools. This gun was not kept away from the school; it was brought to school property by appellant, knowingly, concealed and readily available.
¶ 4 Putting the gun in the purse did not preclude a finding of constructive possession. Were these drugs, would appellant not possess them even though they temporarily reposed (at his instruction) in the
¶ 5 If this were a student concealing a handgun in a classmate‘s purse, we would not hesitate to affirm the finding of constructive possession. Why is a parent different? There is no realistic question but that appellant would retrieve his gun when he wanted, not when his girlfriend decided to return it. If he wished to retrieve the gun at any time before leaving the school, the gun was there for him to take.
¶ 6 You cannot escape responsibility for bringing a gun to school by putting the gun in the purse of your companion. Accordingly, I would affirm the conviction.