Com. v. Bryant, D. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DELORES ELLEN BRYANT
Appellant No. 592 MDA 2014
Appeal from the Judgment of Sentence May 8, 2012
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000300-2010
BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY LAZARUS, J. FILED SEPTEMBER 26, 2014
Delores Ellen Bryant appeals the judgment of sentence entered in the
Court of Common Pleas of Lycoming County following a nonjury trial, after
which Bryant was convicted of two counts of possession with intent to
1
possession of a controlled substance cocaine,2
possession of a controlled substance marijuana,3 and possession of drug
paraphernalia.4 Upon review, we affirm.
The trial court summarized the facts of this matter as follows:
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1
35 P.S. § 780-113(a)(30).
2
35 P.S. § 780-113(a)(16).
3
Id.
4
35 P.S. § 780-113(a)(32).
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On the afternoon of October 21, 2009, Tyson Havens,
Pennsylvania State Trooper, observed a white Nissan Maxima in
the area of the Penn Vale Housing Development in Williamsport,
Lycoming County, Pennsylvania. Prior to October 21, 2009,
Trooper Havens had spoken with Christy [Leinbach], manager of
the Penn Vale Housing Development, regarding a suspicious
white Nissan Maxima which she had observed frequenting the
housing development. On the day in question, the driver of the
Nissan parked and exited the vehicle. Trooper Havens
proceeded to drive past the driver and greet him. A
conversation ensued [during] which Trooper Havens became
At that point, Trooper Havens initiated a traffic stop. The
individual identified himself as Izone Jackson and indicated that
he was going to visit his girlfriend, Dolores Bryant, at her place
of residence, 1814 Hazel Drive. Jackson further indicated that
his girlfriend was not home and that he did not have a key to her
residence, but a friend of his, Raymond Jones, was inside the
residence. Trooper Havens gave Jackson a verbal warning and
indicated that Jackson was free to leave.
Jackson proceeded to walk away heading in the direction of
then veered south away from the
was not going to 1814, [but] that he was going to pick up his
son from daycare. Jackson then walked around the back of the
building and out of sight.
Trooper Havens proceeded to 1814 Hazel Drive and knocked on
the door. The door was opened approximately six inches and
then slammed closed. Trooper Havens stayed at the door
announcing himself and asking for someone to come outside or
indicate that they were alright for approximately ten minutes.
After his attempts proved unsuccessful, Trooper Havens
contacted [Leinbach]. [Leinbach] arrived, and [. . .] requested
Trooper Havens [enter] the residence due to the fact that she
was concerned that someone inside was injured or that there
was a burglary in progress.
Trooper Havens [entered the residence with Leinbach]. [. . . ]
After the downstairs portion of the residence was cleared, the
officers proceeded upstairs. Trooper Havens entered the master
bedroom and observed in plain view a pair of black Timberland
boots. Inside one of the boots was a plastic bag. The bag
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contained nineteen (19) smaller ziplock bags, which contained
crack cocaine. A second bag, also in the boot, contained four
smaller ziplock bags that contained crack cocaine. By the
window in the master bedroom, Trooper Havens observed a
stack of approximately fifteen (15) shoe boxes. The top shoebox
was open and contained money. It was later determined that it
contained $130. The shoebox directly below the top shoebox
had holes in the side of the box. Through the holes, a stack of
money was evident. It was later determined that it was the sum
of $700. The officers continued to clear the residence to make
sure that there was no one else present. After the residence
was secured, Trooper Havens left and proceeded to apply for a
search warrant.
After the search warrant was obtained, the following evidence
residence:
Kitchen
In the kitchen drawer there was a plastic bag with
marijuana dime bags and a grocery bag containing
marijuana dime bags.
In the kitchen cabinet there was a paper bag that
contained a plastic bag containing marijuana and
between 1,000-2,000 little plastic ziplock bags
commonly used for distributing crack cocaine and
marijuana.
In the trash box there were four clear yellow bags
containing crack cocaine.
Living Room
One hundred and thirty-one dollars ($131) in a pair of
white Adidas sneakers.
A silver Page Plus cell phone.
A blue Virgin Mobile cell phone.
Dining Room
On the dining room table was a wallet that contained
identification for Izone Jackson.
Master Bedroom
Astra A-100 9mm handgun.
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Black wallet containing two forms of identification for
Delores Bryant.
Additionally, the master bedroom showed signs of use. It
contained a dresser; ironing board; and a photo of Bryant and
Jackson. Bryant and her minor child, who was approximately
five or six years of age at the time, were the only individuals
listed on the lease. During an interview with Trooper Havens,
Bryant stated that the items found in the residence belonged to
her boyfriend, Earnest Jackson.
Trial Court Opinion, 5/28/14, at 1-5.
On May 8, 2012, the trial court sentenced Bryant to an aggregate term
-sentence motion on
May 25, 2012, which the court denied on August 2, 2012. Bryant filed the
instant appeal on April 3, 2014, following reinstatement of her appellate
rights nunc pro tunc.
On appeal, Bryant presents the following issues for review:
1.
when the police entered her residence allegedly with the
permission of the housing authority manager and then
under the guise of a protective sweep.
2. The evidence presented at trial was insufficient to prove
Bryant constructively possessed the controlled substance
found in her residence when she was not present at the time
police entered and searched.
Brief of Appellant, at 5.
Bryant first argues that the trial court erred when it denied her motion
to suppress because the Lycoming Housing Authority manager, Leinbach,
lacked the proper legal authority to consent to the police entering her
apartment. At the outset, we observe:
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determining whether the factual findings are supported by the
record and whether the legal conclusions drawn from those facts
are correct. [Because] the prosecution prevailed in the
suppression court, we may consider only the evidence of the
prosecution 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 record supports the factual findings of
the trial court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
The suppression court has sole authority to assess the credibility
of the witnesses and is entitled to believe all, part or none of the
evidence presented. Warrantless searches and seizures are
considered to be unreasonable and therefore, prohibited, except
for a few established exceptions pursuant to both the Fourth
Amendment to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution. Both the federal and
Pennsylvania constitutions permit third party consent to a
search. When police officers obtain the voluntary consent of a
third party who has the authority to give consent, they are not
required to obtain a search warrant based upon probable cause.
The third-party consent to search is an exception to the
exclusionary rule.
Commonwealth v. Reese, 31 A.3s 708, 721-22 (Pa. Super. 2010)
(citations omitted).
Here, Leinbach had the legal authority to give consent. When Bryant
signed the lease for her apartment, she was also required to sign a written
Authorization Disclosure as part of her lease obligation with Penn Vale
Housing Development. This document, also signed by a representative of
the Lycoming County Housing Authority, granted the Authority permission to
believe an emergency exists or at the request of law enforcement officials.
N.T. Pretrial Motion Hearing, 6/2/10, at 6-9.
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At trial, Leinbach, Trooper Havens, and Corporal Mike Simpler 5 all
testified that, given the circumstances, there was reasonable cause to
believe an emergency existed. Trooper Havens also noted that Leinbach
gave specific consent to enter the residence and that he opened the door
exception to the warrant requirement existed is supported by the record, we
conclude that the trial court properly denied
In her second issue, Bryant argues that the evidence presented by the
Commonwealth was insufficient to prove, beyond a reasonable doubt, that
Bryant was guilty of constructively possessing the controlled substances
found in her apartment.
When reviewing challenges to the sufficiency of the evidence, we
evaluate the record in the light most favorable to the Commonwealth as the
verdict winner, giving the prosecution the benefit of all reasonable inferences
to be drawn from the evidence. Commonwealth v. Duncan, 932 A.2d
sufficient to support the verdict when it establishes each material element of
the crime charged and the commission thereof by the accused, beyond a
Id. (quoting Commonwealth v. Brewer, 876 A.2d
1029, 1032 (Pa. Super. 2005). However, the Commonwealth need not
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5
the date in question as back up.
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establish guilt to a mathematical certainty, and it may sustain its burden by
means of wholly circumstantial evidence. Id. Moreover, this Court may not
substitute its judgment for that of the factfinder, and where the record
contains support for the convictions, they may not be disturbed. Id. Lastly,
we note that the finder of fact is free to believe some, all, or none of the
evidence presented. Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa.
Super. 2006).
Possession of a controlled substance is defined as follows:
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 authorized by this act.
35 P.S. § 780-113(a)(16).
Where the contraband a person is charged with possessing is not
found on the person of the defendant, the Commonwealth is required to
prove constructive possession. Commonwealth v. Kirkland, 831 A.2d
607, 611 (Pa. Super. 2003). Constructive possession is an inference arising
from a set of facts that possession of the contraband was more likely than
not. Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004).
Our courts have held that constructive possession requires proof of the
ability to exercise conscious dominion over the substance, the power to
control the contraband and the intent to exercise such control.
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Commonwealth v. Johnson, 920 A.2d 873, 882 (Pa. Super. 2007) (citing
Commonwealth v. Valette, 613 A.2d 548, 550 (Pa. 1992)).
We are mindful that constructive possession can be proven by
Commonwealth v. Clark, 746 A.2d 1128, 1136 (Pa. Super. 2000) (quoting
Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996)).
Moreover, we have held that circumstantial evidence is reviewed by the
same standard as direct evidence--that is, a decision by the trial court will
the evidence links the accused to
Commonwealth v. Johnson, 818
A.2d 514, 516 (Pa. Super. 2003) (citations omitted).
follows:
When analyzing the evidence and the totality of the
circumstances it is evident that the Commonwealth met its
burden beyond a reasonable doubt that [Bryant] constructively
possessed the drugs and drug paraphernalia. All of the evidence
retrieved was from common areas in the home and the master
cocaine and shoeboxes containing money. Inside the kitchen
drawer, right on top was a plastic bag containing marijuana dime
bags and a grocery bag containing marijuana dime bags. In the
kitchen cabinet there was a paper bag containing marijuana and
little drug packaging bags. These are all areas that as the lease
holder, [Bryant] would have access to and would be under her
control. These items were not hidden, the contraband in the
kitchen drawer [was] on top mixed in with the other items; the
contraband in the kitchen cabinet was in the top left of the
cabinet; and the contraband in the bedroom was in plain view.
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Trial Court Opinion, 5/28/14, at 9-10 (citations omitted).
Our review of the record leads us to agree with the conclusion reached
by the trial court. Under the totality of the circumstances, the circumstantial
evidence presented by the Commonwealth was sufficient to establish,
beyond a reasonable doubt, that Bryant had the ability to exercise conscious
dominion over the illegal substances found in her apartment. See Johnson,
920 A.2d at 882. Accordingly, Bryant is not entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2014
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