Com. v. Mulholland, C. ( 2015 )

J-S58042-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHAD MULHOLLAND
Appellant No. 746 MDA 2015
Appeal from the Judgment of Sentence March 2, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002537-2014
BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 02, 2015
Appellant, Chad Mulholland, appeals from the judgment of sentence
entered in the Berks County Court of Common Pleas, following his jury trial
convictions for the offenses of possession of drug paraphernalia and
possession of a small amount of marijuana.1
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellant raises the following issues for our review:
WHETHER THE EVIDENCE WAS INSUFFICIENT TO
____________________________________________
1
35 P.S. §§ 780-113(a)(32) and (31)(i), respectively.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S58042-15
SUPPORT THE GUILTY VERDICTS SINCE THE
COMMONWEALTH FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT [APPELLANT] WAS IN ACTUAL
OR CONSTRUCTIVE POSSESSION OF MARIJUANA OR
DRUG PARAPHERNALIA.
WHETHER THE GUILTY VERDICTS WERE AGAINST THE
WEIGHT OF THE EVIDENCE WHERE THE BASIS OF
[APPELLANT’S] CONVICTION WAS THE TESTIMONY OF A
WOMAN WHO WAS NOT CREDIBLE, GIVEN THAT THE JURY
HAD FOUND [APPELLANT] NOT GUILTY OF OTHER COUNTS
BASED ON THE SAME TESTIMONY.
(Appellant’s Brief at 5).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Thomas G.
Parisi, we conclude Appellant’s issues merit no relief. The trial court opinion
comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed June 11, 2015, at 2-8) (finding:
(1) Appellant’s girlfriend testified that she argued with Appellant because he
was using drugs and she was pregnant; Appellant’s girlfriend testified that
pipe and marijuana belonged to Appellant; Appellant confirmed he shared
with his girlfriend bedroom where marijuana was found; Appellant’s
girlfriend testified she found pipe in apartment she shared with Appellant;
jury could reasonably infer Appellant had equal access to, and ability and
intent to exercise conscious dominion over, marijuana and paraphernalia
found in residence; under theory of constructive possession, evidence was
sufficient to support Appellant’s convictions; (2) evidence presented at trial
was not contrary to jury verdict; jury was free to weigh testimony of each
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J-S58042-15
witness and determine which evidence it found credible; verdict did not
shock court’s conscience). Accordingly, we affirm on the basis of the trial
court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2015
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COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
BERKS COUNTY, PA
v. CRIMINAL DIVISION
l(l NO. CP-06-CR-2537-2014
T'"
(~'I) CHAD MULHOLLAND,
~J
\ Defendant JUDGE THOMAS G. PARISI
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(o Christopher M. Price, Esquire, Appeal Attorney for the Defendant
Alisa R. Hobart, Esquire, Appeal Attorney for the Commonwealth
MEMORANDUM OPINION, Thomas G. Parisi -rl;-f June 10, 2015
On June 12, 2014, the Defendant was charged by Criminal Information with Simple
Assault, Recklessly Endangering Another Person, Possession of a Small Amount of Marijuana,
Possession of Drug Paraphernalia, and the summary charge of Harassment. The charge of
Recklessly Endanginer Another Person was dismissed on September 19, 2014. On March 2,
2015, trial was held on the four remaining counts of the information.
On March 2, 2015, the jury acquitted Defendant of Simple Assault and convicted him of
Possession of Drug Paraphernalia. This Court convicted the Defendant of Possession of a Small
Amount of Marijuana and acquitted him of harassment.
On March 2, 2015, Defendant was sentenced to six (6) months probation for Possession
of Drug Paraphernalia and fined $200 in connection with the conviction of Possession of a Small
Amount of Marijuana.
On March 11, 2015, Defendant filed a Post-Sentence Motion seeking a new trial of the
charges of Possession of Drug Paraphernalia and Possession of a Small Amount of Marijuana.
On April 16, 2015, this Court denied Defendant's Post-Sentence motion .
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On May 1, 2015, the Defendant filed a Notice of Appeal with the Pennsylvania Superior
Court and raised the following issues in his Concise Statement of Matters Complained on Appeal
pursuant to 1925(b):
1. The trial court erred in finding Defendant guilty of Possession of Drug
Paraphernalia, 35 P.S. Sec. 780-l 13(a)(32), and Possession of a Small Amount
of Marijuana, 35 P.S. Sec. 780-113(a)(31)(i), where the evidence presented at
trial was insufficient to prove beyond a reasonable doubt that Defendant had
actual or constructive possession of the marijuana or drug paraphernalia.
2. The trial court erred in denying the Defendant's Motion for a New Trial since
the verdict of guilty against Defendant for Possession of Drug Paraphernalia,
35 P.S. Sec. 780-113(a)(32), and Possession of a Small Amount of Marijuana,
35 P.S. Sec. 780-l 13(a)(3 l)(i) is contrary to the weight of evidence presented
at trial.
Concise Statement of Matters Complained on Appeal, 5/15/15.
DISCUSSION
The Defendant's first claim on appeal is that there is insufficient evidence in the record to
sustain his conviction for Possession of Drug Paraphernalia, 35 P.S. Sec. 780-113(a)(32), and
Possession of a Small Amount of Marijuana, 35 P.S. Sec. 780-113(a)(3l)(i). The standard of
review of a sufficiency of the evidence challenge is as follows:
In reviewing a challenge to the sufficiency of the evidence, we must determine
whether, viewing all the evidence admitted at trial, together with all reasonable
inferences therefrom, in the light most favorable to the Commonwealth, the trier
of fact could have found that each element of the offense charged was supported
by evidence and inferences sufficient in law to prove guilt beyond a reasonable
doubt.
Commonwealth v. Jones, 636 A.2d 1184, 1189 (Pa. Super. 1994).
When drugs and/or paraphernalia are not found on a defendant's person, the
Commonwealth must: esta:blish··cons:ttu.ctivepossession. See Commonwealth v. Bricker,
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882 A.2d 1008,z``~lf (Pl'.l. SuperJ12'008). Constructive possession requires proof of the
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~1;1 ability to exercise conscious dominion over the substance, the power to control it, and the
intent to exercise such control. Id. All of the facts and circumstances must be examined
when determining constructive possession, as the Commonwealth may establish
constructive possession wholly by circumstantial evidence. Id. at 1015. To establish
\
'-'' constructive possession when more than one person has equal access to the drugs, the
Commonwealth must demonstrate either the defendant's participation in the drug related
activity or evidence connecting the defendant to the specific room or areas where the
drugs were kept. Id., at 1016. Two actors may have joint control and equal access and
thus both may constructively possess the contraband. Commonwealth v. Jones, 874 A.2d
108 (Pa. Super. 2005); Haskins, 677 A.2d at 328.
In this matter, Officer Ryan Smith testified at trial that on May 4, 2014, he and Officer
Jake Stefani reported to 540 Walnut Street for a "security check." Notes of Testimony
[hereinafter "N.T."], 3/2/15, at 11-12. Once Officer Smith entered the building he was able to
determine an active domestic involving Defendant and a female, later identified as Rogmarie
Sanchez-Figueroa. N.T., 3/2/15, at 13. Officer Smith encountered Defendant who told Officer
Smith that he was having an argument with his girlfriend, Sanchez-Figueroa. Officer Stefani
stayed with Defendant while Officer Smith checked on Sanchez-Figueroa. N.T., 3/2/15, at 14.
Officer Smith encountered Sanchez-Figueroa on the landing of the fourth floor stairs. Id
Officer Smith testified that he asked her what was going on and she stated she was having an
argument with her boyfriend, Defendant. Id Officer Smith stated that Sanchez-Figueroa then
handed him a blue glass smoking pipe commonly used for marijuana. Id. Officer Smith went
back down the stairs and turned the glass pipe over to Officer Stefani. N.T., 3/2/15 at 16.
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Officer Stefani switched positions with Officer Smith and went upstairs to speak with
Sanchez-Figueroa. N.T., 3/2/15, at 21. Officer Stefani testified that he asked Sanchez-Figueroa if
there was any other marijuana in the residence. N.T., 3/2/15, at 21. Sanchez-Figueroa took
Officer Stefani back to the bedroom and proceeded to sort through different drawers in the
bedroom dresser. N.T., 3/2/15, at 21. Officer Stefani testified that Sanchez-Figueroa eventually
pulled out a "little nick bag of marijuana." N.T., 3/2/15, at 21. Officer Stefani confirmed the
following:
COMMONWEALTH: At some point she gave you a bag you said?
OFFICER STEFANI: Yes, sir.
COMMONWEALTH: You also said something about multiple drawers?
OFFICER STEFANI: Yeah, she was - it wasn't like she went right to the one
drawer, opened the drawer, and knew exactly where it was.
She went through several different drawers before she
found it.
N.T., 3/2/15, at 22.
At trial, Sanchez-Figueroa testified to the following concerning her argument with
Defendant on May 4, 2014:
COMMONWEALTH: And why is it that you were arguing with Chad?
SANCHEZ-FIGUEROA: Because I was pregnant and he was using drugs.
COMMONWEAL TH: Why would that be something that would cause an
argument?
SANCHEZ-FIGUEROA: Well, the reason being that I'm pregnant and I don't want
that around me.
N.T., 3/2/15, at 29-30.
Sanchez-Figueroa continued to testify concerning Defendant's drug use:
COMMONWEALTH: Is that the pipe that you gave to the police officers?
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SANCHEZ-FIGUEROA: Yes.
COMMONWEALTH: Now, where did you get that pipe from before you gave it
to the police officers?
SANCHEZ-FIGUEROA: I found it in the apartment, and that's why I ask him about
it. And he was constantly using it, and I told him I did not
want him there. Then he tried to turn it around and put what
the drug that was inside the pipe in my hand and then
laughing he said that me and my child were going to jail.
COMMONWEALTH: Now I want to be very clear with you. Did you ever use that
pipe?
SANCHEZ-FIGUEROA: No.
COMMONWEALTH: How do you know who owns the pipe?
SANCHEZ-FIGUEROA: Because he used it.
COMMONWEALTH: And did you see that?
SANCHEZ-FIGUEROA: I saw him, yes.
COMMONWEALTH: Now, do you remember when police officers came up into
the apartment with you?
SANCHEZ-FIGUEROA: Yes.
COMOWNEALTH: And did those police officers ask you about any marijuana
in the apartment?
SANCHEZ-FIGUEROA: Yes.
COMMONWEALTH: And did you show any officers where there was - if there
was any marijuana in the apartment?
SANCHEZ-FIGUEROA: In the middle of the search, yes, I allowed them to search
and because I didn't know where it was so we found it .
. COMMONWEALTH: Now, where was it that you found it in the apartment, the
marijuana I mean?
SANCHEZ-FIGUEROA: I don't know how to say the word in Spanish. On a dresser
when you put - where you put the clothing.
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COMMONWEALTH: Now, was that your dresser or was it Chad's dresser?
SANCHEZ-FIGUEROA: There was - there were some of my clothings there, yes. It
was mine. He put it in my clothing, but it is not mine.
COMMONWEALTH: And were you able to find it right away?
SANCHEZ-FIGUEROA: My bedroom doesn't have many things, yes.
COMMONWEAL TH: But you had to look through the dresser; is that correct?
SANCHEZ-FIGUEROA: Yes. Yes.
N.T., 3/2/15, at 35-37.
Sanchez-Figueroa testified that the residence had two bedrooms. N.T., 3/2/15, at 38. Sanchez-
Figueroa confirmed that she and Defendant stayed in the bedroom where she showed the police
officers the marijuana. N.T., 3/2/15, at 39.
Defendant testified at trial and stated that neither the pipe nor the marijuana was his.
N.T., 3/2/15, at 65-66. Defendant confirmed that he did sleep in the same bedroom as Sanchez-
Figueroa, but that the dresser where the marijuana was found contained nothing belonging to
Defendant. Id
A review of the record reflects the Commonwealth presented sufficient evidence that the
Defendant was in possession of the marijuana and paraphernalia found inside 540 Walnut Street.
Based on the facts presented, the trier of fact could have properly inferred that Appellant had the
ability to exercise conscious dominion over the marijuana and paraphernalia found inside the
residence. Although Defendant was not in actual possession of the marijuana and pipe at the
time of discovery, the Commonwealth properly established constructive possession through
circumstantial evidence. Based on witness and officer testimony, the Commonwealth presented
evidence that Defendant had equal access to the drugs and paraphernalia. Furthermore, the
Commonwealth demonstrated evidence connecting the Defendant to the specific room and area ·
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where the marijuana and pipe were discovered. The Commonwealth presented Appellant's
"" intent to exercise control over the marijuana and pipe by showing beyond Appellant's mere
presence inside the residence, but also the fact that the marijuana, was found inside a bedroom
dresser sitting in Defendant's bedroom. The fact that another person may also have control of
and access to drugs, however, does not eliminate the Defendant's constructive possession. See
Commonwealth v. Haskins, 677 A.2d 328 (Pa. Super. 1996). Therefore, the facts of record
sufficiently supported each element of the offenses charged and the inferences drawn by the jury
were sufficient in law to prove guilt beyond a reasonable doubt.
The Defendant's final claim on appeal is that the verdict of guilty against Defendant for
Possession of Drug Paraphernalia, 35 P.S. Sec. 780-113(a)(32), and Possession of a Small
Amount of Marijuana, 35 P.S. Sec. 780-l 13(a)(3l)(i) is contrary to the weight of evidence
presented at trial. An allegation that the verdict was against the weight of the evidence will be
reviewed on a basis of an abuse of discretion standard. Commonwealth v. Sullivan, 820 A.2d
795, 805-06 (Pa. Super. 2003). In determining whether the verdict is against the weight of the
evidence, the role of the trial court is to determine whether "notwithstanding all the facts, certain
facts are so clearly of greater weight to ignore them or to give them equal weight with all the
facts is to deny justice." Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000).
Thus, a new trial should be awarded only when the jury's verdict is so contrary to the evidence
as to shock one's sense of justice and the award of a new trial is imperative so that right may be
given another opportunity to prevail." Sullivan, 820 A.2d at. at 806.
After reviewing the record, the verdict of the jury does not come as a shock to this Court.
The evidence presented at trial was not contrary to the verdicts of the jury. The jury has the right.
to weigh the testimony of each witness and determine which evidence it finds credible.
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.
W! Commonwealth v. McCalman, 795 A.2d 412, 415 (Pa. Super. 2002). Therefore, the Defendant
e\'"' was not deprived of his rights.
For the foregoing reasons, this Court respectfully requests that the Defendant's appeal be
denied.
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