Com. v. Cristea, F. ( 2016 )

J-S69013-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FRANK RAPHIEK CRISTEA
Appellant No. 940 EDA 2015
Appeal from the Judgment of Sentence December 4, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0006967-2013
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 04, 2016
Appellant, Frank Raphiek Cristea, appeals from the judgment of
sentence entered in the Montgomery County Court of Common Pleas,
following his convictions for two counts of possession of a controlled
substance with intent to deliver (“PWID”), and one count each of possession
of a controlled substance and possession of drug paraphernalia. 1 We affirm
and grant counsel’s petition to withdraw.
In its findings of facts and conclusions of law, the trial court set forth
the relevant facts of this case as follows:
On Friday, April 12th, 2013, Detective Bruckner received a
report from a woman and her juvenile daughter
____________________________________________
1
35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32), respectively.
J-S69013-15
[(“Victim”)], that [Victim] had been sexually assaulted by
[Appellant’s] juvenile son on Wednesday, April 10th, 2013.
As per the policy of the Montgomery County District
Attorney’s Office, Detective Bruckner was not permitted to
interview the [Victim] without first arranging for her to be
interviewed by Mission Kids. A Mission Kids interview of
[Victim] took place on Tuesday, April 16th, 2013, or
Monday, April 15th, 2013, which apparently was the first
available slot following the weekend.
On Friday, April 19th, 2013, Detective Bruckner applied for
a search warrant for the residence of [Appellant’s] son….
[Appellant] himself also resided in this apartment. A
search warrant was issued…that same date….
[The first search warrant] provided on its face that the
police were authorized to search the residence for physical
evidence relating to the alleged sexual assault, including
but not limited to bedding and clothing.
Detective Bruckner and several other officers arrived at the
apartment at approximately 12:55 p.m., on April 19th, []
2013. The officers repeatedly knocked and announced
their presence and purpose but received no response. The
officers then discovered that the door to the apartment
was unlocked and the officers entered the apartment
continuing to announce their presence and purpose.
As soon as the officers entered the apartment[,] Detective
Bruckner became aware of an odor of marijuana. The
officers then performed a protective sweep of the
apartment for officer safety to ascertain that no one was
hiding inside.
The officers did not make forcible entry into any area of
the apartment to perform their protective sweep but
simply moved from room to room checking the rooms and
closets to make sure no one was inside.
Upon entering the master bedroom, during the course of
the protective sweep, Detective Bruckner observed a pipe
of the sort commonly used for smoking marijuana in plain
view on a dresser. At this point the officers stopped their
-2-
J-S69013-15
search of the master bedroom and Detective Nicholas
Oropeza left the apartment to seek a second [search]
warrant to search for controlled substances and drug
paraphernalia.
The requested second [search] warrant was issued, that
same date at approximately 2:15 p.m., following which, a
search of the master bedroom for narcotics and drug-
related paraphernalia was conducted resulting in the
discovery and the seizure of [certain] items….
(N.T. Suppression, 8/27/14, at 59-61). Specifically, the search pursuant to
the second search warrant led to the discovery of: (1) a Reddi-Wip can with
a false bottom that contained seven grams of cocaine, four Xanax pills in a
cellophane wrapper, and marijuana; (2) two glass marijuana pipes; (3)
numerous plastic baggies regularly used in the sale of narcotics; (4) two
scales; (5) one thousand four hundred and sixty dollars ($1,460.00) in U.S.
currency; and (6) three glass vials with a liquid believed to be PCP inside.
Police also found items that connected Appellant to the master bedroom
where police found the contraband, including a court order addressed to
Appellant, a PECO Energy bill addressed to Appellant, a debit card in
Appellant’s name, a prescription pill bottle in Appellant’s name, and adult
male clothing.
Procedurally, the Commonwealth charged Appellant with three counts
each of PWID and possession of a controlled substance, and four counts of
possession of drug paraphernalia. On November 27, 2013, Appellant filed
an omnibus pre-trial motion, in which he sought the suppression of the
items seized during the execution of the second search warrant. After a
-3-
J-S69013-15
hearing on August 27, 2014, the court denied Appellant’s motion.
That same day, Appellant proceeded to a bench trial. Prior to trial, the
Commonwealth withdrew one count of PWID, two counts of possession of a
controlled substance, and three counts of possession of drug paraphernalia.
The court convicted Appellant of two counts of PWID, and one count each of
possession of a controlled substance and possession of drug paraphernalia.
The court deferred sentencing pending the preparation of a pre-sentence
investigation (“PSI”) report.
On December 4, 2014, the court sentenced Appellant to an aggregate
term of two and one-half (2½) to five (5) years’ imprisonment, followed by
one year of probation. On December 12, 2014, Appellant timely filed a post-
sentence motion and an amended post-sentence motion on January 27,
2015. On March 24, 2015, the court denied Appellant’s post-sentence
motion. Appellant timely filed a notice of appeal on April 1, 2015. On April
15, 2015, the court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). After the court
granted several extensions of time, Appellant’s counsel filed a statement of
intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4) on June 11,
2015. On July 28, 2015, counsel filed an Anders brief and a petition for
leave to withdraw as counsel.
As a preliminarily matter, counsel seeks to withdraw his representation
pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d
-4-
J-S69013-15
493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349
(2009). Anders and Santiago require counsel to: 1) petition the Court for
leave to withdraw, certifying that after a thorough review of the record,
counsel has concluded the issues to be raised are wholly frivolous; 2) file a
brief referring to anything in the record that might arguably support the
appeal; and 3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor McClendon[2] requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
____________________________________________
2
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
-5-
J-S69013-15
counsel’s references to anything in the record that
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (1) provide a
summary of the procedural history and facts, with citations
to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set
forth counsel’s conclusion that the appeal is frivolous; and
(4) state counsel’s reasons for concluding that the appeal
is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Id. at 178-79, 978 A.2d at 361.
Instantly, counsel filed a petition to withdraw. The petition states
counsel conducted a conscientious review of the record and determined the
appeal is wholly frivolous. Counsel also supplied Appellant with a copy of
the brief and a letter explaining Appellant’s right to retain new counsel or to
proceed pro se to raise any additional issues Appellant deems worthy of this
Court’s attention. (See Letter to Appellant, dated 6/11/15, attached to
Petition for Leave to Withdraw as Counsel.) In the Anders brief, counsel
provides a summary of the facts and procedural history of the case.
Counsel’s argument refers to relevant law that might arguably support
Appellant’s issues. Counsel further states the reasons for his conclusion that
the appeal is wholly frivolous. Therefore, counsel has substantially complied
with the requirements of Anders and Santiago.
Counsel raises the following issues on Appellant’s behalf:
-6-
J-S69013-15
DID THE TRIAL [COURT] ABUSE [ITS] DISCRETION AND
ERR AS A MATTER OF LAW BY FAILING TO SUPPRESS
PHYSICAL EVIDENCE FOUND PURSUANT TO A SEARCH
WARRANT ISSUED UPON FINDINGS MADE PURSUANT TO
A PREVIOUS SEARCH WARRANT THAT CONTAINED STALE
INFORMATION AND WAS OTHERWISE NOT SUPPORTED BY
FACTS THAT ESTABLISHED PROBABLE CAUSE FOR THE
INITIAL SEARCH?
DID THE TRIAL [COURT] ABUSE [ITS] DISCRETION AND
ERR AS A MATTER OF LAW BY FAILING TO SUPPRESS
PHYSICAL EVIDENCE FOUND PURSUANT TO A SEARCH
WARRANT WHEN THE SEARCH WARRANT WAS ISSUED
UPON OBSERVATIONS MADE IN LOCATION THAT
EXCEEDED THE LAWFUL SCOPE OF THE PREVIOUSLY
ISSUED SEARCH WARRANT?
DID THE TRIAL [COURT] ABUSE [ITS] DISCRETION AND
ERR AS A MATTER OF LAW BY FAILING TO SUPPRESS
PHYSICAL EVIDENCE FOUND PURSUANT TO A SEARCH
WARRANT THAT WAS NOT SUPPORTED BY PROBABLE
CAUSE DUE TO A LACK OF INDICIA THAT ANY DRUGS OR
DRUG PARAPHERNALIA WOULD BE FOUND PURSUANT TO
A SEARCH?
DID THE TRIAL [COURT] ERR AS A MATTER OF LAW BY
FINDING THAT THE EVIDENCE PRESENTED AT TRIAL WAS
LEGALLY SUFFICIENT TO SUPPORT GUILTY VERDICTS ON
ALL CHARGES?
(Anders Brief at 4).
For purposes of disposition, we combine Appellant’s first three issues
on appeal. Appellant argues police used the search warrant related to the
sexual assault investigation regarding Appellant’s son to gain access to
Appellant’s apartment to look for narcotics. Appellant claims probable cause
did not exist for the first search warrant because it was based on stale
information, and the lack of probable cause for the first search warrant
-7-
J-S69013-15
rendered the police entry into Appellant’s apartment unlawful. Alternatively,
Appellant complains the police obtained the evidence used to establish
probable cause for the second search warrant while outside the lawful scope
of the first search warrant. Appellant also asserts the evidence obtained
during the execution of the first search warrant was insufficient to establish
the requisite probable cause for the second search warrant. For all of these
reasons, Appellant concludes the trial court should have suppressed the
evidence seized during the execution of the second search warrant, and this
Court should vacate Appellant’s judgment of sentence. We disagree.
Our standard of review of the denial of a motion to suppress evidence
is as follows:
[An appellate court’s] standard of review in addressing a
challenge to the denial of a suppression motion is limited
to determining whether the suppression court’s factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. Because
the Commonwealth prevailed before the suppression court,
we may consider only the evidence of the Commonwealth
and so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the suppression court’s factual findings are
supported by the record, [the appellate court is] bound by
[those] findings and may reverse only if the court’s legal
conclusions are erroneous. Where…the appeal of the
determination of the suppression court turns on allegations
of legal error, the suppression court’s legal conclusions are
not binding on [the] appellate court, whose duty it is to
determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the [trial court
are] subject to plenary review.
Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa.Super. 2012),
-8-
J-S69013-15
appeal denied, 618 Pa. 684, 57 A.3d 68 (2012). For a valid search warrant:
Article I, Section 8 [of the Pennsylvania Constitution] and
the Fourth Amendment [to the United States
Constitution]…require that search warrants be supported
by probable cause. The [linchpin] that has been developed
to determine whether it is appropriate to issue a search
warrant is the test of probable cause. Probable cause
exists where the facts and circumstances within the
affiant’s knowledge and of which he has reasonable
trustworthy information are sufficient in themselves to
warrant a man of reasonable caution in the belief that a
search should be conducted.
In Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76
L. Ed. 2d 527 (1983), the United States Supreme Court
established the totality of the circumstances test for
determining whether a request for a search warrant under
the Fourth Amendment is supported by probable cause.
…[The Pennsylvania Supreme] Court [has] adopted the
totality of the circumstance test for purposes of making
and reviewing probable cause determinations under Article
I, Section 8. In describing this test, [our Supreme Court]
stated:
Pursuant to the “totality of the circumstances” test
set forth by the United States Supreme Court in
[Gates, supra], the task of an issuing authority is
simply to make a practical, common-sense decision
whether, given all of the circumstances set forth in
the affidavit before him, including the veracity and
basis of knowledge of persons supplying hearsay
information, there is a fair probability that
contraband or evidence of a crime will be found in a
particular place…. It is the duty of a court reviewing
an issuing authority’s probable cause determination
to ensure that the magistrate had a substantial basis
for concluding that probable cause existed. In so
doing, the reviewing court must accord deference to
the issuing authority’s probable cause determination,
and must view the information offered to establish
probable cause in a common-sense, non-technical
manner.
-9-
J-S69013-15
* * *
Further, a reviewing court is not to conduct a de
novo review of the issuing authority’s probable cause
determination, but is simply to determine whether or
not there is substantial evidence in the record
supporting the decision to issue the warrant.
Commonwealth v. Torres, 564 Pa. 86, 96-97, 101, 764
A.2d 532, 537-38, 540 (2001).
… A grudging or negative attitude by reviewing courts
toward warrants…is inconsistent with the Fourth
Amendment’s strong preference for searches conducted
pursuant to a warrant; courts should not invalidate
warrants by interpreting affidavits in a hypertechnical,
rather than a commonsense, manner.
Commonwealth v. C. Jones, 605 Pa. 188, 199-200, 988 A.2d 649, 655
(2010), cert. denied, 562 U.S. 832, 131 S. Ct. 110, 178 L. Ed. 2d 32 (2010)
(some quotations and internal citations omitted).
“The requisite probable cause [for a search warrant] must exist at the
time the warrant is issued and be based on facts closely related in time to
the date of issuance.” Commonwealth v. T. Jones, 506 Pa. 262, 269, 484
A.2d 1383, 1387 (1984). “Settled Pennsylvania law establishes that stale
information cannot provide probable cause in support of a warrant.”
Commonwealth v. Janda, 14 A.3d 147, 158 (Pa.Super. 2011). “There is
no hard and fast rule regarding what constitutes stale information; such
determinations must be made on a case-by-case basis.” Commonwealth
v. Vergotz, 616 A.2d 1379, 1382 (Pa.Super. 1992), appeal denied, 534 Pa.
648, 627 A.2d 179 (1993). This Court applies a reasonableness standard
- 10 -
J-S69013-15
when it determines the time limits to be placed on search warrants. Id.
Importantly,
[A]ge of the information supporting a warrant application
is a factor in determining probable cause. If too old, the
information is stale, and probable cause may no longer
exist. Age alone, however, does not determine staleness.
The determination of probable cause is not merely an
exercise in counting the days or even months between the
facts relied on and the issuance of the warrant. Rather,
we must also examine the nature of the crime and the
type of evidence.
Janda, supra, at 158-59 (internal citations omitted). “Mere lapse of time
between discovery of criminal activity and issuance of the warrant will not
necessarily dissipate probable cause.” Commonwealth v. Dennis, 618
A.2d 972, 981 (Pa.Super. 1992), appeal denied, 535 Pa. 654, 634 A.2d 218
(1993).
“The scope of a lawful search pursuant to a warrant is defined by the
object of the search and the places in which there is probable cause to
believe that it may be found.” Commonwealth v. Taylor, 565 Pa. 140,
148, 771 A.2d 1261, 1265-66 (2001), cert. denied, 534 U.S. 994, 122 S. Ct.
462, 151 L.Ed.2d. 380 (2001). “[T]he search may not go beyond the scope
of the warrant.” Commonwealth v. Eichelberger, 508 A.2d 589, 592
(Pa.Super. 1986), appeal denied, 515 Pa. 619, 531 A.2d 427 (1987).
Importantly, police may perform a protective sweep for officer safety without
violating the search warrant requirement of the Fourth Amendment, and
Article I, Section 8. Taylor, supra. “A protective sweep is a quick and
- 11 -
J-S69013-15
limited search of premises…conducted to protect the safety of police officers
or others.” Id. at 150, 771 A.2d at 1267. There are two levels of protective
sweeps, which may be executed as follows:
Pursuant to the first level of a protective sweep, without a
showing of even reasonable suspicion, police officers may
make cursory visual inspections of spaces immediately
[adjacent to the area to be searched], which could conceal
an assailant. The scope of the second level permits a
search for attackers further away from the [area to be
searched], provided that the officer who conducted the
sweep can articulate specific facts to justify a reasonable
fear for the safety of himself and others.
Id. A protective sweep should not last any longer than is necessary to
dispel the fear of danger. Id. at 152, 771 A.2d at 1268.
Where an officer is lawfully present at a particular location, detection
of an odor of marijuana constitutes sufficient probable cause to obtain a
search warrant. Commonwealth v. Johnson, 68 A.3d 930, 936 (Pa.Super.
2013). See also Commonwealth v. Waddell, 61 A.3d 198, 215
(Pa.Super. 2012) (stating: “Once the odor of marijuana was detected
emanating from the residence, the threshold necessary to establish probable
cause to obtain a search warrant was met…”).
Instantly, on April 12, 2013, Victim contacted police to report a sexual
assault allegedly perpetrated by Appellant’s juvenile son on April 10, 2013.
Per Montgomery County District Attorney’s Office policy, police had to
schedule a Mission Kids interview for Victim prior to obtaining additional
information about the alleged sexual assault. Police scheduled the next
- 12 -
J-S69013-15
available Mission Kids interview, which occurred on either April 15, 2013 or
April 16, 2013. After Mission Kids interviewed Victim, police obtained a
search warrant for Appellant’s apartment on April 19, 2013. Police executed
the search warrant that same day. Between April 12, 2013 and April 19,
2013, police also contacted Appellant to arrange an interview with
Appellant’s juvenile son. The total passage of time between Victim’s report
of the alleged sexual assault and the execution of the search warrant was
one week. During this time, the police made consistent efforts to further
their investigation into the alleged sexual assault. Under these
circumstances, the information in the affidavit of probable cause was not
stale. See Janda, supra; Vergotz, supra. Thus, the first search warrant,
which authorized a search of Appellant’s residence for evidence related to
the sexual assault investigation, gave police lawful access to Appellant’s
apartment.
Further, the first search warrant authorized a search of Appellant’s
residence for evidence in connection to the sexual assault investigation; it
did not limit the police search to a specific portion of the apartment. Upon
entry into Appellant’s residence, and per police protocol, police conducted a
protective sweep of the apartment. The officers did a visual inspection of
the whole residence to determine if anyone was hiding. During the
protective sweep, police saw drug paraphernalia in plain view on top of the
dresser in the master bedroom. Under these circumstances, police did not
- 13 -
J-S69013-15
exceed the scope of the first search warrant because the warrant gave police
permission to search the residence as a whole, and police were permitted to
perform a cursory protective sweep for officer safety upon entry to the
apartment. See Eichelberger, supra; Taylor, supra. Thus, the police
legally obtained the information used to support the second search warrant.
Finally, police smelled an odor of marijuana as soon as they entered
Appellant’s apartment to execute the first search warrant. Police also
observed drug paraphernalia on top of the dresser in the master bedroom
during the protective sweep. The odor of marijuana and the presence of
drug paraphernalia were sufficient to establish probable cause for the second
search warrant. See Johnson, supra; Waddell, supra. Therefore, the
court properly denied Appellant’s motion to suppress the evidence, and
Appellant’s first three issues on appeal warrant no relief.
In his fourth issue, Appellant argues the evidence introduced at trial
did not prove that the drugs and drug paraphernalia found in the master
bedroom belonged to Appellant. Appellant concludes the evidence at trial
was insufficient to support his possession of a controlled substance,
possession of drug paraphernalia, and PWID convictions, and this Court
should vacate his judgment of sentence. We disagree.
A challenge to the sufficiency of the evidence implicates the following
legal principles:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
- 14 -
J-S69013-15
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. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
The Crimes Code defines possession of a controlled substance as
follows:
§ 780-113. Prohibited acts; penalties
(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:
* * *
(a)(16) Knowingly or intentionally possessing a controlled
or counterfeit substance by a person not registered under
this act, or a practitioner not registered or licensed by the
appropriate State board, unless the substance was
obtained directly from, or pursuant to, a valid prescription
order or order of a practitioner, or except as otherwise
- 15 -
J-S69013-15
authorized by this act.
35 P.S. § 780-113(a)(16). When police do not find the drugs on the
defendant’s person, the Commonwealth is required to establish that the
defendant constructively possessed the drugs. Commonwealth v. Bricker,
882 A.2d 1008, 1014 (Pa.Super. 2005). “Constructive possession requires
proof of the ability to exercise conscious dominion over the [drugs], the
power to control the contraband and the intent to exercise such control.”
Commonwealth v. Petteway, 847 A.2d 713, 716 (Pa.Super. 2004).
“Constructive possession may be established by the totality of the
circumstances.” Bricker, supra, at 1014.
Possession of drug paraphernalia is defined as:
§ 780-113. Prohibited acts; penalties
* * *
(a)(32) The use of, or possession with intent to use, drug
paraphernalia for the purposes of planting, propagating,
cultivating, growing, harvesting, manufacturing,
compounding, converting, producing, processing,
preparing, testing, analyzing, packing, repacking, storing,
containing, concealing, injecting, ingesting, inhaling or
otherwise introducing into the human body a controlled
substance in violation of this act.
35 P.S. § 780-113(a)(32). Drug paraphernalia is defined in relevant part as:
§ 780-102. Definitions
* * *
“Drug paraphernalia” means all equipment, products
and materials of any kind which are used, intended for use
- 16 -
J-S69013-15
or designed for use in…packaging, repackaging, storing,
containing, concealing, injecting, ingesting, inhaling or
otherwise introducing into the human body a controlled
substance in violation of this act. …
* * *
In determining whether an object is drug paraphernalia, a
court or other authority should consider, in addition to all
other logically relevant factors, statements by an owner or
by anyone in control of the object concerning its use…the
proximity of the object, in time and space, to a direct
violation of this act, the proximity of the object to
controlled substances, the existence of any residue of
controlled substances on the object, direct or
circumstantial evidence of the intent of an owner, or of
anyone in control of the object, to deliver it to persons who
he knows, or should reasonably know, intend to use the
object to facilitate a violation of this act…the existence and
scope of legitimate uses for the object in the community,
and expert testimony concerning its use.
35 P.S. § 780-102. “To sustain a conviction for possession of drug
paraphernalia[,] the Commonwealth must establish that items possessed by
[the] defendant were used or intended to be used with a controlled
substance so as to constitute drug paraphernalia and this burden may be
met by the Commonwealth through circumstantial evidence.”
Commonwealth v. Coleman, 984 A.2d 998, 1001 (Pa.Super. 2009).
The Crimes Code defines PWID as:
§ 780-113. Prohibited acts; penalties
* * *
(a)(30) Except as authorized by this act, the
manufacture, delivery, or possession with intent to
manufacture or deliver, a controlled substance by a person
not registered under this act, or a practitioner not
- 17 -
J-S69013-15
registered or licensed by the appropriate State board, or
knowingly creating, delivering, or possessing with intent to
deliver, a counterfeit controlled substance.
35 P.S. § 780-113(a)(30). “To convict a person of PWID, the
Commonwealth must prove beyond a reasonable doubt that the defendant
possessed a controlled substance and did so with the intent to deliver it.”
Bricker, supra at 1015. When reviewing the sufficiency of the evidence to
support a PWID conviction, this Court considers “all facts and circumstances
surrounding the possession are relevant, and the Commonwealth may
establish the essential elements of the crime wholly by circumstantial
evidence.” Id. “Factors to consider in determining whether the drugs were
possessed with the intent to deliver include the particular method of
packaging, the form of the drug, and the behavior of the defendant.”
Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa.Super. 2003), appeal
denied, 577 Pa. 712, 847 A.2d 1280 (2004).
Instantly, Detective Bruckner testified at trial that police found various
drugs and drug paraphernalia in the master bedroom of Appellant’s
residence, including a Reddi-Wip can with a false bottom regularly used to
conceal drugs, seven grams of cocaine, four Xanax pills in a cellophane
wrapper, marijuana, two glass marijuana pipes, numerous plastic baggies
regularly used in the sale of narcotics, two scales, one thousand four
hundred and sixty dollars ($1,460.00) in U.S. currency, and three glass vials
with a liquid believed to be PCP inside. Detective Bruckner also testified that
- 18 -
J-S69013-15
police recovered the following items from the master bedroom where police
discovered the drugs and drug paraphernalia: (1) a court order addressed to
Appellant; (2) a PECO Energy bill addressed to Appellant; (3) a debit card in
Appellant’s name; (4) a prescription pill bottle in Appellant’s name; and (5)
adult male clothing. This testimony demonstrated that Appellant had the
ability to exercise conscious dominion over the contraband found in his
residence, the power to control the contraband, and the intent to exercise
such control. See 35 P.S. § 780-113(a)(16); Petteway, supra. Detective
Bruckner’s testimony also established Appellant’s intent to use the drug
paraphernalia with the controlled substances found in Appellant’s bedroom.
See 35 P.S. § 780-113(a)(32); Coleman, supra. Thus, sufficient evidence
supported Appellant’s convictions for possession of a controlled substance
and possession of drug paraphernalia.
Additionally, the Commonwealth presented the expert testimony of
Detective James Wood, who stated that the following evidence indicated
Appellant’s possession of the drugs with the intent to deliver: (1) the
quantity of the drugs; (2) the way the cocaine was packaged into smaller
packets; (3) the presence of baggies typically used in the sale of narcotics;
(4) the presence of scales; (5) the $1,460.00 in U.S. currency found in the
bedroom and the denominations of that currency; and (6) Appellant’s use of
the Reddi-Wip can to conceal the drugs. Detective Wood’s testimony
established Appellant possessed the drugs with the intent to deliver; thus,
- 19 -
J-S69013-15
sufficient evidence also supported Appellant’s conviction for PWID. See 35
P.S. § 780-113(a)(30); Bricker, supra. Therefore, Appellant’s fourth issue
on appeal has no merit. Accordingly, we affirm the judgment of sentence
and grant counsel’s petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/2016
- 20 -