Constructive Possession of Instrument of a Crime

Commonwealth v. Peters, 2018 WL 617947 (Pa. Super 2018) (unreported), allocatur granted Aug. 30, 2018, appeal docket 29 EAP 2018

Peters was in a relationship with the victim, Jessie Hicks.  On the night of August 17, 2011, in Hicks’ apartment, Peters and Hicks argued over Peters’ communications and relationships with other men.  After the argument, Peters told Hicks that his friend was at the apartment door.  When Hicks approached the door, it was open, and two men had entered the apartment.  The men had a gun.  They robbed Hicks of his money and clothing, beat him, and shot him in the mouth.  While the men were robbing Hicks, Peters told them that there was cash in Hicks’ pocket.

Peters admitted in a statement to the police and during testimony at trial that she had allowed the men to enter the apartment by unlocking and opening the front door.  Hicks testified that Peters was the only person he told that he was keeping large amounts of cash in his home.  Peters also admitted to the police that she knew the men intended to rob Hicks and that she and one of the men were texting the night of the robbery.

The trial court found Peters guilty of a host of crimes, including attempted murder, armed robbery, and carrying a firearm without a license, and sentenced her to 20-50 years imprisonment.

Superior Court upheld the convictions.  The court’s discussion relevant to the issue on appeal to the Supreme Court relates to carrying a firearm without a license.  Peters contended there was insufficient evidence to convict her of carrying a firearm without a license because there was no proof that the person who shot Hicks did not have a firearms license.  Superior Court dismissed this argument as a misunderstanding of the theory of Peters’ guilt.  Peters’ was found guilty of carrying a firearm without a license not under accomplice liability (which would have required the shooter to have committed the crime, of which there was no proof at trial because there was no evidence concerning whether shooter had a firearms license), but instead under constructive possession.  Constructive possession means that Peters was found guilty of constructively possessing a firearm without a license.  Peters stipulated at trial that she did not have a firearms license. Superior Court characterized this conviction as constructive “possession of an instrument of crime” (PIC).

The court explained the constructive possession theory:

A person commits PIC “if he possesses any instrument of crime with intent to employ it criminally.” 18 Pa. C.S. § 907(a).

Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement. Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not. We have defined constructive possession as “conscious dominion.” We subsequently defined “conscious dominion” as “the power to control the contraband and the intent to exercise that control.” To aid application, we have held that constructive possession may be established by the totality of the circumstances.

Commonwealth v. Walker, 874 A.2d 667, 667-668 (Pa. Super. 2005).  The court reasoned evidence of the totality of the circumstances supported that Peters constructively possessed the gun because she allowed the shooter into Hicks’ apartment, was present during the robbery, and instructed the men on where to find Hicks’ money (in his pocket) after the shooting had occurred.  The court therefore found that Peters had constructively possessed the firearm, and used that finding to justify the conviction for carrying a firearm without a license:

With respect to her conviction for carrying an unlicensed firearm in violation of Section 6106(a), because the totality of the circumstances established that appellant constructively possessed the firearm and because the parties stipulated at trial that appellant did not have a license to possess a firearm (notes of testimony, 3/11/15 at 63-64.), this evidence, viewed in the light most favorable to the Commonwealth as verdict winner, was sufficient to enable the jury to conclude that appellant carried an unlicensed firearm.

The Supreme Court granted allocatur limited to the following issue:

Whether the Superior Court erred in rejecting, under a constructive possession theory, Petitioner’s challenge to the sufficiency of the evidence to support her conviction for carrying a firearm without a license?

For more information, contact Kevin McKeon or Dennis Whitaker