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March 2, 2026 Get Citation Alerts Download PDF Add Note

Com. v. Abdul-Malik, A.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 366 EDA 2025
• Precedential Status: Non-Precedential

• Judges: Dubow

• Opinion

• Authorities (5)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Combined Opinion

                        by Dubow

J-A01013-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALI ABDUL-MALIK :
:
Appellant : No. 366 EDA 2025

Appeal from the Judgment of Sentence Entered September 10, 2024
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0003260-2023

BEFORE: DUBOW, J., KUNSELMAN, J., and SULLIVAN, J.

MEMORANDUM BY DUBOW, J.: FILED MARCH 2, 2026

Appellant, Ali Abdul-Malik, appeals from the September 10, 2024

judgment of sentence of three to seven years of incarceration entered in the

Delaware County Court of Common Pleas following his jury conviction of

Possession of a Firearm Without a License.1 Appellant challenges the

sufficiency of the Commonwealth’s evidence underlying his conviction. After

careful review, we affirm.

The relevant facts and procedural history are as follows. On April 11,

2023, at 2:40 AM, Pennsylvania State Police (“PSP”) Trooper Thomas Platt

and his partner observed a vehicle exceeding the speed limit on Route 95.

Trooper Platt initiated a traffic stop; Mr. Ridge Tow was the driver of the

vehicle; Appellant was the front seat passenger, and Mr. Antarrios J. Flythe

---

1 18 Pa.C.S. § 6106(a)(1).
J-A01013-26

was seated in the right rear passenger seat.2 While speaking with Mr. Tow,

Trooper Platt detected a strong aroma of burnt marijuana emanating from the

vehicle. Mr. Tow presented a driver’s license but was not able to produce a

registration or insurance card for the vehicle. Trooper Platt then asked Mr.

Tow to step out of the vehicle to speak with him. After Trooper Platt

commented on the odor of burnt marijuana emanating from the vehicle, Mr.

Tow admitted that they had previously been smoking marijuana before getting

into the car. Trooper Platt asked if there were any contraband or firearms in

the vehicle, to which Appellant responded “no.” Trooper Platt then asked for

Mr. Tow’s consent to search the vehicle, which Mr. Tow denied. Based on the

smell of marijuana, Mr. Tow’s responses to the trooper’s questions—which

Trooper Platt perceived as “deceitful” and incongruous with the location and

time of the stop—and Mr. Tow’s denial of consent to search the vehicle,

Trooper Platt called for the K-9 team. Trooper Evan Worth and his canine

partner arrived, and while the troopers conducted a preliminary walk around

the vehicle to ensure the canine’s safety, each trooper saw the butt of a gun

sticking out from under the driver’s seat. After the canine searched around

the vehicle and indicated for contraband inside the vehicle, the troopers placed

all three men under arrest, and transported them to the Media State Trooper

barracks to await a search warrant for the car.

---

2 Mr. Flythe’s appeal is pending at Docket No. 3139 EDA 2024.

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J-A01013-26

Upon execution of the search warrant, state troopers recovered a

second gun—a Smith & Wesson—in the glove compartment of the vehicle;

DNA swab testing later revealed the presence of Appellant’s DNA on the gun.

A third firearm was found between the cargo area and the back seat where

Mr. Flythe had been sitting. The DNA swab sample from that firearm matched

Mr. Flythe’s DNA.3

Following this incident, the Commonwealth charged Appellant with, inter

alia, Possession of a Firearm Prohibited and Firearms not to be Carried Without

a License.4

Appellant and Mr. Flythe proceeded to a two-day jury trial at which the

Commonwealth presented the testimony of the troopers involved in the traffic

stop and recovery of the firearms, who testified consistently with the above

facts. Trooper Platt also testified that during his encounter with police,

Appellant was compliant and did not seem nervous or evasive, or act

suspiciously.

The Commonwealth also presented, relevant to the instant appeal, the

testimony of PSP Trooper Erin Achtel, a full-time member of the forensic

services unit; and Beverly Beshore-Strohm, Forensic Science Supervisor in the

---

3 Troopers also discovered drugs and drug paraphernalia during the search.

4 18 Pa.C.S. §§ 6105(a)(1) and 6106(a)(1). The Commonwealth also charged
Appellant with two counts of Possession of Drug Paraphernalia, which the court
quashed pre-trial.

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J-A01013-26

Serology Unit of the PSP Regional Laboratory; and Jared Hiester, a forensic

DNA scientist who worked in the Forensic DNA Division of the PSP.

Trooper Achtel testified that she obtained a DNA sample from Appellant,

Mr. Tow, and Mr. Flythe. She also testified that she swabbed for DNA the

triggers, handles, magazines, and magazine releases of each of the firearms

found in the vehicle using one swab per firearm and its corresponding

magazine.

Ms. Beshore-Strohm testified that she received three DNA samples, one

from each of the men present in the vehicle stopped by Trooper Platt. She

further testified that she also received three swabs, one from each of the

firearms found in the vehicle, which she repackaged and sent for DNA analysis.

Mr. Hiester testified that he received one DNA sample from each of the

occupants of the vehicle for testing. He testified that Appellant’s DNA was

present on the Smith & Wesson firearm found in the glove compartment and

that, although the DNA sample taken from that firearm was “consistent with

a mixture of four contributors[,]” testing excluded the other occupants as

potential contributors to the DNA found on that firearm. 5 He also testified that

he could not specifically determine in what order or when DNA is placed on an

object or the precise source of the DNA, meaning that DNA could have been

on the firearm from his sweat, a sneeze, or a cough.

---

5 N.T., 3/21/24, at 124-125.

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J-A01013-26

On March 21, 2024, the jury convicted Appellant of Firearms not to be

Carried Without a License. On September 10, 2024, the trial court sentenced

Appellant to a term of three to seven years of incarceration. Appellant filed a

timely post-sentence motion, which the trial court denied on January 8, 2025.

This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:

1. Can a person be found [g]uilty of Possession of a Firearm
   without a License just because he or she is seated in front of
   the common repository for items that the owner, the driver and
   other passengers use to hold items, a glove box?

2. Did the prosecution meet the burden of [p]roving that
   [Appellant] had the necessary intent at the present time to
   [p]ossess and [c]ontrol the firearm?

3. Was the DNA found on the firearm sufficient evidence to tie
   [Appellant] to a gun in the glove compartment when only the
   gun but not the magazine was tested, Appellant’s DNA was only
   one of four found on the weapon, the order the DNA was put
   on the weapon is unknown and it could have been from getting
   anything from the glove compartment for anyone in the car,
   and there is no evidence any DNA was placed on the gun at
   any time that could in any way be indicative of either dominion,
   control[,] or intent to control in the weapon in the present
   tense.

Appellant’s Brief at 5 (suggested answers omitted).

Each of Appellant’s interrelated issues challenge the sufficiency of the

evidence in support of his conviction. In particular, Appellant claims that the

Commonwealth’s evidence that Appellant’s DNA was present on the firearm

was insufficient to demonstrate he had present dominion and control over it

to prove constructive possession. Id. at 18. In support of this claim, he notes

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J-A01013-26

that he was merely seated in front of the glove compartment, he did not

attempt to hide the firearm, and he was not acting nervous during the police

encounter. Id. He admits that the presence of his DNA on the firearm

indicates that he “most likely had knowledge of it.” Id. at 19. He speculates,

however, that his DNA “easily have gotten there incidentally by touching [the

firearm] to get something from the glove compartment” or “from a sneeze or

perspiration.” Id.; see also id. at 21. Appellant also claims that the DNA

test results indicating the presence of his DNA on the firearm does not prove

dominion and control because, inter alia, “there is no evidence as to where on

the gun Appellant’s DNA was found,” “[t]he quantity of the DNA [was] never

stated[, w]e have no idea as to the chain of custody of the sample that was

tested[, and] no attempt to find the other two clear DNA samples was made.”

Id. at 23. Appellant concludes, therefore, that “the whole investigation was

aimed at finding a specific result, and not who might have placed the firearm

in the glove box.” Id.

We review claims regarding the sufficiency of the evidence by

considering whether, “viewing all the evidence admitted at trial in the light

most favorable to the verdict winner, there is sufficient evidence to enable the

fact-finder to find every element of the crime beyond a reasonable doubt.”

Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014) (citation

omitted). Further, a conviction may be sustained wholly on circumstantial

evidence, and the trier of fact—while passing on the credibility of the witnesses

and the weight of the evidence—“is free to believe all, part, or none of the

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J-A01013-26

evidence.” Id. at 40 (citation quotation omitted). “Because evidentiary

sufficiency is a matter of law, our standard of review is de novo[,] and our

scope of review is plenary.” Commonwealth v. Brooker, 103 A.3d 325, 330

(Pa. Super. 2014) (citation omitted).

A person has committed the offense of Firearms not to be Carried

without a License when he “carries a firearm in any vehicle . . . without a valid

and lawfully issued license[.]” 18 Pa.C.S. § 6106(a)(1).

With respect to the possession element of the offense, a jury may find

that a defendant actually possessed contraband or did so constructively.

Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018). “Where a

defendant is not in actual possession of the prohibited items, the

Commonwealth must establish that the defendant had constructive possession

to support the conviction.” Id. (summarizing Commonwealth v. Hopkins,

67 A.3d 817, 820 (Pa. Super. 2013) as “holding that a conviction under 18

Pa.C.S. § 6106(a) was supported by a finding of constructive possession”).

“Constructive possession is a legal fiction, a pragmatic construct to deal with

the realities of criminal law enforcement.” Parrish, 191 A.3d at 36 (citation

omitted). “We have defined constructive possession as conscious dominion,

meaning that the defendant has the power to control the contraband and the

intent to exercise that control.” Id. (citation and quotation marks omitted).

“[A]s with any other element of a crime, constructive possession may

be proven by circumstantial evidence.” Id. at 36-37 (citation omitted). “In

other words, the Commonwealth must establish facts from which the trier of

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J-A01013-26

fact can reasonably infer that the defendant exercised dominion and control

over the contraband at issue.” Id. at 37 (citing Commonwealth v. Davis,

743 A.2d 946, 953–54 (Pa. Super. 1999) (holding that evidence was sufficient

to prove constructive possession over drugs found in common areas of an

apartment where the defendant entered the apartment using his own key, and

possessed $800 in cash on his person, and police recovered defendant’s

identification badge, size-appropriate clothing, and firearms from a

bedroom)).

Following our review, we conclude that Appellant’s claim that the

Commonwealth did not present sufficient evidence to prove that he

constructively possessed the firearm is unavailing. The evidence and all

reasonable inferences therefrom viewed in the light most favorable to the

Commonwealth as verdict winner showed that: (1) the troopers found a

firearm in a glove compartment in front of where Appellant was seated and

(2) investigators found DNA matching Appellant’s DNA on that firearm and did

not find the DNA of any of the car’s other passengers on it. Contrary to

Appellant’s claim, that investigators did not identify the other people whose

DNA was present on the Smith & Wesson found in the glove compartment and

could not determine whether Appellant’s DNA came from his sweat or a cough

or sneeze is irrelevant and does not negate that he constructively possessed

the firearm. From the evidence of Appellant’s proximity to the gun and the

presence of his DNA on it, it is reasonable for the jury to infer that Appellant

had immediate access to it and, thus, the present intent to exercise control.

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J-A01013-26

Accordingly, we conclude that the Commonwealth presented sufficient

evidence, from which the jury could find Appellant constructively possessed

the firearm and convict him of the offense of Firearms not to be Carried

without a License.

Judgment of sentence affirmed.

Date: 3/2/2026

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