Com. v. Sweeney, L. ( 2017 )

J-S26040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEAVEIL ABDUL SWEENEY :
:
Appellant : No. 1614 MDA 2016
Appeal from the Judgment of Sentence September 19, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000504-2016
BEFORE: BOWES, DUBOW, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 22, 2017
Appellant, Leaveil Abdul Sweeney, appeals from the judgment of
sentence of nine to sixteen months’ imprisonment entered in the York
County Court of Common Pleas following his bench trial convictions of
driving under the influence of alcohol (“DUI”),1 possession of a small amount
of marijuana,2 possession of drug paraphernalia,3 and driving under
suspension, DUI related.4 Appellant challenges the sufficiency of the
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S. § 3802(a)(1).
2
35 P.S. § 780-113(a)(31).
3
35 P.S. § 780-113(a)(32).
4
75 Pa.C.S. § 1543(b).
J-S26040-17
evidence for his possession of a small amount of marijuana and drug
paraphernalia convictions. We affirm.
We adopt the facts and procedural history set forth by the trial court’s
opinion. See Trial Ct. Op., 1/10/17, at 2, 5-8. In this timely appeal,
Appellant raises the following issue for review: “[w]hether the
Commonwealth presented sufficient evidence to support [Appellant’s]
possession of a small amount of marijuana and possession of drug
paraphernalia convictions?” Appellant’s Brief at 5.
Appellant argues that the evidence was insufficient because the
Commonwealth failed to establish he constructively possessed the marijuana
or drug paraphernalia found in the vehicle he was driving. Appellant
contends that the evidence did not prove that he either knew the drugs or
drug paraphernalia were in the vehicle, or that he intended to possess or
exercise dominion over the same. He emphasizes that the vehicle in
question belonged to his wife, Jean Sweeney, and, as a passenger at the
time in question, Mrs. Sweeney was within arm’s reach of the contraband.
Therefore, Appellant avers the evidence failed to establish that Appellant,
and not Mrs. Sweeney alone, was responsible for the drugs and drug
paraphernalia in the car. Thus, Appellant claims that this Court should
vacate his judgment of sentence. We conclude no relief is due.
Our review is governed by the following principles:
The standard we apply in reviewing the sufficiency of
evidence is whether, viewing all the evidence admitted at
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J-S26040-17
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 that of 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 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. Ratsamy, 934 A.2d 1233, 1236 n.2 (Pa. 2007) (citation
omitted). Furthermore,
[T]he critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction . . . does not
require a court to ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt. Instead, it must determine simply whether the
evidence believed by the fact-finder was sufficient to
support the verdict.
Id. at 1235-36 (quotation marks and citation omitted).
The doctrine of constructive possession provides:
[i]n order to prove that a defendant had constructive
possession of a prohibited item, the Commonwealth must
establish that the defendant had both the ability to
consciously exercise control over it as well as the intent to
exercise such control. An intent to maintain a conscious
dominion may be inferred from the totality of the
circumstances, and circumstantial evidence may be used
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J-S26040-17
to establish a defendant’s possession of drugs or
contraband.
Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa. Super. 2013)
(quotation marks and citations omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the trial court’s opinion, we conclude the trial court’s
opinion properly disposes of Appellant’s argument regarding constructive
possession. See Trial Ct. Op. at 3-10 (finding the totality of the
circumstances supported the conclusion that Appellant was in constructive
possession of the drugs and drug paraphernalia, where (1) the responding
officer testified that he detected a strong odor of freshly burnt marijuana
upon stopping the car and that Appellant’s demeanor was, in his experience,
consistent with an individual who was under the influence of marijuana, (2)
the burnt ends of two marijuana “blunts” were recovered from beneath the
visor on the passenger’s side of the car, an area easily accessible by
Appellant, (3) that contraband indicated, circumstantially, that two people
were likely smoking, and (4) Appellant had time to attempt to conceal the
contraband because he failed to stop for a half mile after the responding
officer signaled him). Accordingly, we affirm on the basis of the trial court’s
opinion.
Judgment of sentence affirmed.
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J-S26040-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2017
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Circulated 04/25/2017 04:18 PM
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* B A T C H *
Defendant-Name:
Leaveil Abdul Sweeney
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*A P P E A L *
Case Number
OTN:
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L1
541881 Tuesday, January 10, 2017 09:36:17 AM
IN THE COURT OF COMMON PLEAS
OF YORK COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF No. CP-67-CR-0000504·2016
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OPINION IN SUPPORT OF ORDER
PURSUANT TO Pa.R.A.P. 1925(a)
Appellant Leaveil A. Sweeney appeals to the Superior Court of
Pennsylvania from the Judgment of Sentence issued on August 19,
2016. On October 4, 2016, and pursuant to Pa. R.A.P. 1925(b), the trial
court directed Appellant to file a Concise Statement of Matters
Complained of on Appeal. Appellant filed a motion to enlarge the time
within which to file his Concise Statement of Matters Complained of on
Appeal, which motion was granted by the trial court. On December 5,
2016, Appellant filed the statement. The trial court now issues this
1925(a) Opinion.
PROCEDURAL HISTORY
Following a bench trial before Honorable Christy H. Fawcett
("trial court") on July 21, 2016, Appellant was convicted of driving
under the influence of alcohol, general impairment, in violation of 75
Pa.C.S.A. § 3802(a)(l)(Count 1); possess_ionof a small amount of
marijuana, in violation of 35 Pa.C.S.A. § 780-113 (31) (Count 6);
possession of drug paraphernalia, in violation of 35 Pa.C.S.A. § 780-
113(32) (Count 7); and driving under suspension, DUI related, in
violation of 75 Pa.C.S.A. § 1543(b).
On August 19, 2016, the trial court sentenced Appellant to an
aggregate term of nine to 16 months' imprisonment.
On September 27, 2016, Appellant filed a Notice of Appeal with
this Court.
MATTER COMPLAINED OF ON APPEAL
Appellant raises a single ground for error:
2
Whether the Commonwealth presented sufficient evidence to
convict Appellant beyond a reasonable doubt of possession of a
small amount of marijuana and possession of drug paraphernalia
when the Commonwealth failed to prove Appellant's constructive
possession of marijuana and drug paraphernalia.
DISCUSSION
The Commonwealth presented sufficient evidence to establish the
defendant's constructive possession of the marijuana and drug
paraphernalia beyond a reasonable doubt.
Evidence is sufficient to support the verdict "when it establishes
each material element of the crime charged and the commission thereof
by the accused beyond a reasonable doubt." Commonwealth v. Widmer,
744 A.2d 745, 751 (Pa. 2000). In reviewing a sufficiency claim, this
Court "lvliewlsl the evidence in the light most favorable to the verdict
winner, giving the prosecution the benefit of all reasonable inferences to
be drawn from the evidence." Id.The Commonwealth "need not preclude every possibility of
innocence." Commonwealth v. Tejada, 107 A.3d 788, 792 (Pa. Super.
2015). Moreover, "doubts regarding the 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
3
from the combined circumstances." Commonwealth v. Lambert, 2002
Pa. Super. 82, 85.
Here, the Commonwealth established Appellant's possession of
the drugs and paraphernalia in question via the legal theory of
constructive possession. Constructive possession is "an inference
arising from a set of facts that possession of the contraband was more
likely than not." Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.
Super. 2013), appeal denied, 78 A.3d 1090 (Pa. 2013). The Superior
Court has defined constructive possession as "conscious dominion" or
the "power to control the contraband and the intent to control the
contraband." Id.Moreover, two or more people may jointly constructively possess
an item or items of contraband. Commonwealth v. Sanes, 955 A.2d 369(Pa. Super. 2008), appeal denied, 972 A.2d 521 (Pa. 2009).
The Commonwealth may sustain its burden of establishing proof
beyond a reasonable doubt by circumstantial evidence alone and
constructive possession may be established by the totality of the
4
circumstances. Commonwealth v. Markman, 916 A.2d 586, 598 (Pa.
2007).
As the trier of fact, the trial court was permitted to determine the
credibility of the witnesses and the weight of the evidence produced.
Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa. Super. 2014)(citation
omitted). It was "free to believe all, part or none of the evidence." Id.Here, veteran Police Officer Randy Wagner testified that while
patrolling at approximately 1:30 am, October 31, 2015, he saw a beige
Lexus sedan "cross over the double yellow lines three times and cross
over the fog line five times." (Notes of Testimony, Trial of July 21,
2016, 4-10.) 1 Suspecting that the driver was impaired, the officer
activated his lights and siren to make a stop. (N.T. 11-12.) The vehicle,
however, continued traveling for approximately a half mile, stopping
only after it failed to properly negotiate a turn and "nearly drove off the
road." (N.T. 12.)
As the officer approached the vehicle on foot, he "immediately
smelled the odor of burnt marijuana coming from the car." (N.T. 14.)
He observed that Appellant was driving the car and a woman who
1
Hereinafter"N.T._".
5
identified herself as Appellant's wife ("Mrs. Sweeney") occupied the
passenger seat. (N.T. 13, 34.)
In response to the officer's inquiry about the smell of burning
marijuana, Mrs. Sweeney pulled a cigar wrapper enveloping two
"roaches"2 containing marijuana from above the passenger-side visor
and gave them to the officer. (N.T. 14·15.) She told him she had been
smoking. (N.T. 15.) The marijuana "looked freshly burnt and smelled
freshly burnt." (Id.)
During this time, Appellant "seemed very confused or distant" and
"really relaxed." (Id. ) This required the officer to "to repeat things to
get him to respond to me." (Id.) In the officer's experience, this
behavior was consistent with the behavior of a person who had been
smoking marijuana. (N.T. 27.) In addition, Appellant's eyes were
bloodshot and watery and the smell of an alcoholic beverage was coming
from his breath. (Id.)
Based on Appellant's driving, his interactions with the officer, and
the strong odor of burnt marijuana, Officer Wagner believed Appellant
2
As described by counsel and consistent with the Court's experience, "roaches" are the remains of a partially-
smoked marijuana cigarette. (See N.T. 50.)
6
"was under the influence of either alcohol or marijuana or a
combination of both of them." (N.T. 17.) Appellant, however, "denied
drinking anything or smoking any marijuana." (N.T. 16.)
Officer Wagner then administered a battery of standard field
sobriety tests on which Appellant delivered an unsatisfactory
performance. (N.T. 19-24.)
Called as a witness for Appellant, Mrs. Sweeney testified she was
asleep in the car when the police officer pulled it over. (N.T. 35.)
Earlier in the evening she met Appellant at the home of a relative.
(N.T. 37-38.) She claimed she was ill and "begged" Appellant to drive
her home. (N.T. 36.) She claimed ownership of the roaches contained
in the cigar wrapper and found under the passenger-side visor, a pill
bottle containing marijuana apparently retrieved from under her seat,
and a digital scale. (N.T. 38-39.)3 Mrs. Sweeney alleged that Appellant
did not know marijuana roaches were in the car but she did not know
whether he was aware of the presence of the scale. (Id.)
3
The exact location within the car of the digital scale and the pill bottle containing marijuana is not entirely clear.
Regardless,the undisputed evidence is that the cigar wrapper containing the roaches was recovered from behind
the front passenger seat visor. The cigar wrapper was charged as an item of drug paraphernalia. See N.T. 51 .
7
Mrs. Sweeney testified that she had smoked marijuana in the car
earlier that day and before she was with Appellant. (N.T. 40.) She
claimed that she purchased the marijuana for her father and had
acquired a scale because she "wanted to make sure [she] was getting
the right amount" for her father. (N.T. 38.) She pleaded guilty to
possession of a small amount of marijuana and possession of drug
paraphernalia in connection with the incident. (N.T. 41.)
The trial court based its verdict that Appellant was guilty of
jointly constructively possessing the marijuana and the drug
paraphernalia on a number of pieces of circumstantial evidence and
reasonable inferences derived from that circumstantial evidence. This
included the testimony of Officer Wagner, a trained and experienced
law enforcement officer whom the trial court found to be a credible
witness. Officer Wagner testified that immediately upon approaching
the car driven by Appellant, he noticed a strong odor of burnt
marijuana. He specified that the marijuana looked and smelled freshly
burnt. The marijuana was recovered from beneath the visor on the
passenger side of the car, an area easily accessible by Appellant who, as
the driver, had control of the car. The cigar wrapper contained two
8
roaches, circumstantially indicating that two people were smoking the
marijuana. In addition, the officer testified that Appellant's confused
and distant manner was consistent with behavior exhibited by a person
under the influence of marijuana. 4 In addition, the trial court notes
Appellant failed to stop for approximately a half mile after the officer
signaled him. This would provide a sufficient interval for Appellant and
his wife to both conceal the roaches and to fabricate a cover story.
The trial court specifically finds that Mrs. Sweeney's testimony
was not credible. Her assertion that she had purchased the marijuana
for her father was unbelievable. Ditto for her claim that she-
apparently by herself-smoked marijuana in the car at a time that was
never specified but that was apparently purportedly many hours prior
to the stop. This assertion is flatly contradicted by Officer Wagner's
testimony that he smelled the strong odor of freshly burnt marijuana as
he approached the car. The trial court also notes that Appellant's
statement to the officer that he ingested neither alcohol nor marijuana
is not credible given his abysmal driving and performance on the field
4
The trial court acknowledges that Appellant's behavior, standing alone, is
insufficient to establish his joint constructive possession of the marijuana and drug
paraphernalia. It is, however, one piece of circumstantial evidence that supports
this conclusion.
9
sobriety tests. The likelihood that he was untruthful about his alcohol
consumption also casts doubt on his representation that he did not
ingest marijuana.
The totality of the evidence recited above viewed in the light most
favorable to the Commonwealth but, most particularly, evidence of the
strong odor of freshly burnt marijuana and the presence of two roaches
dwrapped in drug paraphernalia in an area easily accessible by
Appellant, who was the driver of the car, circumstantially established
that Appellant jointly and constructively possessed the marijuana and
drug paraphernalia found in the car.
CONCLUSION
In conclusion, the trial court respectfully requests that the
Superior Court affirm the verdict of the trial court.
BY THE COURT:
Dated: January 9, 2017
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