Com. v. Reives, M. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL REIVES
Appellant No. 1317 EDA 2015
Appeal from the Order April 16, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-002431-2014
BEFORE: OTT, J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED FEBRUARY 09, 2016
Michael Reives (“Appellant”) appeals from the order entered in the
Philadelphia County Court of Common Pleas, which denied his petition for
writ of certiorari, following his municipal court conviction and judgment of
sentence for possession of a small amount of marijuana.1 We affirm.
Officer James Conway of the Philadelphia Police Department testified
that on July 19, 2014, at 12:25 a.m., while he was in his patrol vehicle with
Officer Ernest Powell, he observed Appellant and a few other people sitting
on a bench waiting for a bus. N.T., 12/29/2014, at 8-9, 12. Officer Conway
detected the odor of marijuana and observed Appellant smoking what he
believed to be a brown marijuana cigarette. Id. at 9. Officer Conway and
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1
35 Pa.C.S. § 780-113(a)(31).
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Officer Powell approached Appellant. Id. After investigating Appellant,
Officer Powell recovered a brown marijuana cigarette. Id.2
On December 29, 2014, the municipal court heard and denied
Appellant’s motion to suppress physical evidence, found Appellant guilty of
possession of marijuana, and ordered him to pay $623.00 for court costs,
fines, and lab fees. On January 28, 2015, Appellant filed a writ of certiorari
requesting the Philadelphia County Court of Common Pleas grant his motion
for suppression of physical evidence or reverse his guilty verdict. On April
16, 2015, the trial court denied Appellant’s writ of certiorari. On April 30,
2015, Appellant filed a notice of appeal. On May 21, 2015, the court
ordered Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b), and he timely complied on June 2,
2015.
Appellant raises the following issue for our review.
WAS NOT THE EVIDENCE INSUFFICIENT AS A MATTER OF
LAW TO ESTABLISH THAT [APPELLANT] WAS GUILTY
BEYOND A REASONABLE DOUBT OF THE CRIME OF
POSSESSION OF A SMALL AMOUNT OF MARIJUANA, IN
THAT THERE WAS NO EVIDENCE THAT HE EVER
POSSESSED THE MARIJUANA OR THAT THERE WAS A
NEXUS BETWEEN THE RECOVERED MARIJUANA AND
[APPELLANT]?
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2
Officer Powell did not testify. Officer Conway did not see Officer Powell
recover the brown marijuana cigarette from Appellant. He testified only that
Officer Powell “investigated” Appellant and recovered a brown marijuana
cigarette.
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Appellant’s Brief at 4.
Appellant argues his conviction was the result of conjecture and
suspicion and that the Commonwealth did not present sufficient evidence to
prove the elements of his crime of possession beyond a reasonable doubt.
We disagree.
A trial court’s decision on the issuance of a writ of certiorari will not be
disturbed absent an abuse of discretion. Commonwealth v. Elisco, 666
A.2d 739, 740 (Pa.Super.1995). “Certiorari provides a narrow scope of
review in a summary criminal matter and allows review solely for questions
of law.” Id. (citing Commonwealth v. Cook, 308 A.2d 151
(Pa.Super.1973); Commonwealth v. Reese, 528 A.2d 647
(Pa.Super.1987)). An appellant can raise a sufficiency of the evidence claim
for the first time in a petition for a writ of certiorari. Commonwealth v.
Coleman, 19 A.3d 1111, 1119 (Pa.Super.2011).
The standard we apply in reviewing the sufficiency of the
evidence is 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. 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
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evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [trier] 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. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal
denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874
A.2d 108, 120-21 (Pa.Super.2005)).
Appellant was convicted under the following statute:
§ 780-113. Prohibited acts; penalties
(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:
* * *
(31) Notwithstanding other subsections of this
section, (i) the possession of a small amount of
marihuana only for personal use; (ii) the possession
of a small amount of marihuana with the intent to
distribute it but not to sell it; or (iii) the distribution
of a small amount of marihuana but not for sale.
For purposes of this subsection, thirty (30) grams of
marihuana or eight (8) grams of hashish shall be
considered a small amount of marihuana.
35 Pa.C.S. § 780-113(a)(31).
In possession cases, the Commonwealth “may meet its burden by
showing actual, constructive, or joint constructive possession of the
contraband.” Commonwealth v. Vargas, 108 A.3d 858, 868
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(Pa.Super.2014) (en banc), appeal denied, 121 A.3d 496 (Pa.2015) (citing
Commonwealth v. Thompson, 428 A.2d 223, 224 (Pa.Super.1981)). “If
the contraband is not discovered on the defendant’s person, the
Commonwealth may satisfy its evidentiary burden by proving that the
defendant had constructive possession of the drug.” Id.
[C]onstructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law
enforcement. The existence of constructive possession of
a controlled substance is demonstrated by the ability to
exercise a conscious dominion over the illegal substance:
the power to control the illegal substance and the intent to
exercise that control. An intent to maintain a conscious
dominion may be inferred from the totality of the
circumstances. Thus, circumstantial evidence may be used
to establish constructive possession of the illegal
substance. Additionally, our [Supreme] Court has
recognized that constructive possession may be found in
one or more actors where the item in issue is in an area of
joint control and equal access.
Commonwealth v. Johnson, 26 A.3d 1078, 1093-94 (Pa.2011) (internal
quotations and citations removed).
Here, the trial court reasoned:
In this case, Officer Conway smelled a strong odor of
marijuana coming from the bus bench where Appellant
was sitting. He then observed Appellant smoking what
looked like a brown marijuana cigarette. Within moments,
Officer Powell investigated Appellant and recovered a
brown marijuana cigarette. These facts provide both direct
and circumstantial evidence sufficient to find Appellant
guilty beyond a reasonable doubt.
Trial Court Pa.R.A.P. 1925(a) Opinion, filed July 30, 2015, at 4.
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The trial court did not abuse its discretion in determining there was
sufficient evidence to enable the court to find every element of possession
beyond a reasonable doubt.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2016
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