Com. v. Chamberlain, M. ( 2014 )

J-A17038-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARK CHAMBERLAIN
Appellant No. 2368 EDA 2013
Appeal from the Judgment of Sentence entered August 2, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0004307-2012
BEFORE: GANTMAN, P.J., PANELLA, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 01, 2014
Appellant, Mark Chamberlain, appeals from the judgment of sentence
the Court of Common Pleas of Delaware County entered August 2, 2013.1
Upon review, we affirm.
The trial court summarized the facts and the procedural history as
follows:
On the evening of May 31, 2012, at approximately 8:21 P.M.,
Lieutenant Michael Boudwin was working undercover in the city
of Upper Darby, Pennsylvania within the vicinity of 69th Street
terminal. Boudwin, who has worked with the Delaware County
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1
The determination properly being appealed here is the judgment of
sentence, not the Trial Court Court’s Rule 1925(a) opinion. See, e.g.,
Commonwealth v. Swartz, 579 A.2d 978, 980 (Pa. Super. 1990)
(“Generally, in criminal matters, a . . . defendant may appeal only from the
judgment of sentence.”) (internal quotation marks and citation omitted);
see also Pa.R.A.P. 2115.
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Criminal Investigation’s Narcotics Unit for 28 years, had called a
woman named Tonya Myers earlier that day to arrange for the
purchase of crack cocaine. That evening, at the aforementioned
time, Boudwin met with Meyers and told her that he wanted $20
bags of crack cocaine. Meyers told Boudwin that he would have
to “front the money” and then she would . . . get the drugs.
Boudwin agreed, and gave Meyers two marked $50 bills. Myers
then walked away and made a phone call. Shortly thereafter, a
Pontiac Grand Prix pulled up to the area and Meyers entered the
front passenger seat. [Appellant] was later identified as the
driver of the vehicle.
Boudwin testified at Appellant’s trial and explained to the jury
that it is common practice for drug dealers and suppliers to use
middle men. Boudwin explained that once the Pontiac
proceeded down the street, he advised back up officers to box in
the vehicle. As the officers moved their vehicle in around the
Pontiac, Appellant accelerated in reverse and then forward
striking the police vehicles. Appellant then veered to the left,
and after his vehicle became wedged on a retaining wall and
chain[-]linked fence, he exited the vehicle and began running
down the street. Appellant was apprehended by officers a few
minutes later. Two marked $50 bills were found in Appellant’s
right hand.
The Pontiac was searched and police recovered one (1) rose
colored bag of cocaine on the floor of the vehicle in front of the
passenger seat, and four (4) orange and twelve (12) rose
colored bags of cocaine and a sandwich bag of marijuana on the
gearshift lever in the center console of the vehicle. Four (4)
additional rose colored bags were found in Meyers’ purse.
Based upon Boudwin’s training and experience, he estimated
that the individual bags of cocaine would sell for $20 on the
street. Boudwin explained that he believed the bags of cocaine
were consistent with distribution. He explained that while 16
bags is not a tremendous quantity of crack cocaine, it is more
than an average user would have.
Following a trial, a jury found Appellant guilty of fleeing or
attempting to elude a police officer, delivery of a controlled
substance, and possession of a controlled substance with the
intent to deliver. On August 2, 2013, this court sentenced
Appellant as follows: (a) on Count 11, the charge of possession
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with the intent to deliver 2.3 grams of cocaine, Appellant was
sentenced to 36 months to 72 months in a state correctional
facility; (b) on Count 10, delivery of cocaine, Appellant was
sentenced to 24 months to 48 months of incarceration, to run
concurrently to the sentence imposed on Count 11; and (c) on
Count 9, the charge of fleeing or attempting to elude an officer,
Appellant was sentenced to 9 months to 24 months of
incarceration, to run consecutively to the sentence imposed on
Count 11.
Trial Court Opinion, 1/15/14, at 1-3 (citations to record, and footnote
omitted).
On appeal, Appellant raises the following issues for our review:
(I)
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Appellant’s first two issues concern the denial of Appellant’s motion to
suppress. As articulated in the argument section,2 according to Appellant,
the trial court should have granted his motion to suppress because (i) the
officers did not have reasonable suspicion Appellant violated the Motor
Vehicle Code, (ii) the officers could not search the vehicle he was driving
because they did not have a warrant and no exigent circumstances existed,
and (iii) officers did not have probable cause to arrest him. Appellant’s
Brief, at 20-30.
We first note none of these issues were raised in Appellant’s 1925(b)
statement. Appellant’s 1925(a) statement pertaining to the suppression
issue states as follows: “Did the lower [c]ourt error [sic] in not granting
suppression over evidence and testimony at the preliminary hearing and
suppression hearing?” Appellant’s Concise Statement of Matters Complained
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2
Appellant is reminded of the necessity to pay close attention to Pa.R.A.P.
2116(a), and Pa.R.A.P. 2119(a). Rule 2116(a), in relevant part, provides:
“[T]he statement will be deemed to include every subsidiary question fairly
comprised therein. No question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.” Pa.R.A.P.
2116(a).
Rule 2119(a), in relevant part, provides that “[t]he argument shall be
divided into as many parts as there are questions to be argued.” Pa.R.A.P.
2119(a). Here, the questions addressed in the argument section do not
match the questions raised in the statement of questions involved.
Additionally, the questions for our review differ depending on what section of
the brief one considers. Compare the questions raised on appeal as
articulated in the “Statement of Questions Involved,” Appellant’s Brief at 13,
the “Summary of Argument,” id. at 18, and the “Argument” sections. Id. at
19-30.
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of on Appeal, 8/27/13, at 1. Nowhere does Appellant explain why the trial
court erred. Not surprisingly, the trial court was left to guess what issue or
issues Appellant was raising, and it was only able to discern one of the
multiple issues Appellant attempts to raise on appeal (i.e., whether the
officers had probable cause to arrest Appellant). Generally, concise
statements that are as vague as the one at issue here result in a waiver of
the issue raised therein.
“[W]hen the appellant provides a concise statement which is too
vague to allow the trial court an opportunity to identify the
issues raised on appeal, he/she has provided ‘the functional
equivalent of no Concise Statement at all.’” Ferris v. Harkins,
940 A.2d 388, 397 (Pa. Super. 2007) citing Commonwealth v.
Dowling, 778 A.2d 683, 686 (Pa. Super. 2001). “Where an
appellant fails to identify the issues sought to be pursued on
appeal in a concise manner, ‘the trial court is impeded in its
preparation of a legal analysis which is pertinent to those
issues.’” Id., citing In re Estate of Daubert, 757 A.2d 962,
963 (Pa. Super. 2000). “Essentially, when the trial court has to
guess what issues an appellant is appealing, that is not enough
for meaningful review.” Id., citing Dowling, 778 A.2d at 686.
“Even if the trial court correctly guessed the issues Appellant
brings before this Court, the vagueness of Appellant’s Concise
Statement renders all issues raised therein waived.”
Commonwealth v. McCree, 857 A.2d 188, 192 (Pa. Super.
2004), affirmed Commonwealth v. McCree, 592 Pa. 238, 924
A.2d 621 (2007).
Commonwealth v. Cannon, 954 A.2d 1222, 1228 (Pa. Super. 2008).
In light of the foregoing, we are compelled to conclude the issues are,
therefore, waived. Even if we were to consider their merits, we would
nonetheless conclude the suppression issues have no merit.
[I]n addressing a challenge to a trial court’s denial of a
suppression motion [we are] limited to determining whether the
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factual findings are supported by the record and whether the
legal conclusions drawn from those facts are correct. Since the
[Commonwealth] prevailed in 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 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.
Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa. Super. 2010) (quotation
omitted). Additionally, we note, “the forcible stop of a vehicle constitutes an
investigative detention such that there must be reasonable suspicion that
illegal activity is occurring.” Commonwealth v. Washington, 63 A.3d
797, 802 (Pa. Super. 2013) (citing Commonwealth v. Cruz, 21 A.3d 1247,
1250 (Pa. Super. 2011)).
Reasonable suspicion is a less stringent standard than probable
cause necessary to effectuate a warrantless arrest, and depends
on the information possessed by police and its degree of
reliability in the totality of the circumstances. In order to justify
the seizure, a police officer must be able to point to specific and
articulable facts leading him to suspect criminal activity is afoot.
In assessing the totality of the circumstances, courts must also
afford due weight to the specific, reasonable inferences drawn
from the facts in light of the officer’s experience and
acknowledge that innocent facts, when considered collectively,
may permit the investigative detention.
Commonwealth v. Holmes, 14 A.3d 89, 95 (Pa. 2011) (citations,
quotation marks, and emphasis omitted).
Appellant first argues that the officers could have stopped the vehicle
he was in only if they had witnessed a violation of the Vehicle Code. In
support, Appellant cites several cases dealing with vehicular stops originated
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from a violation of the Vehicle Code. These cases, however, are inapposite
because the stop did not originate from a vehicular violation. Here, the
officers stopped the vehicle based on suspicion of criminal activity taking
place in the vehicle in question, which is proper a proper basis for stopping a
vehicle. See Washington, supra; Cruz, supra; see also
Commonwealth v. Murray, 331 A.2d 414, 416-17 (Pa. 1975);
Commonwealth v. Feczko, 10 A.3d 1285, 1288-91 (Pa. Super. 2010).
The officers needed only reasonable suspicion of criminal activity to stop the
vehicle, and they had it. To this end, the trial court, based upon Lieutenant
Boudwin’s testimony, as summarized above, noted Boudwin contacted
Meyers to purchase drugs from her. They met around the corner from her
residence. At the meeting, Meyer agreed to purchase five bags of crack
cocaine for $100 for Boudwin. Boudwin gave Meyers two marked $50 bills.
Meyers advised Boudwin she did not have the drugs and had to get them
from her supplier. Meyers walked away from the meeting point, toward her
residence, and placed a phone call. A few minutes later, a vehicle pulled
into the area. Appellant was observed in the driver’s seat of the vehicle.
Meyers entered into the vehicle, and the two drove away. “Boudwin . . .
believed that Meyers had called her supplier and that she and the driver,
who he believed was the supplier, were engaging in a drug transaction.”
Trial Court Opinion, 1/15/14, at 5. Based on these observations, the officers
initiated a stop of the vehicle. In light of these facts, and considering our
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standard of review, we conclude the police officers had reasonable suspicion
to believe that criminal activity took place or was taking place in the vehicle
sufficient to warrant the stopping of the vehicle to investigate the matter.
Appellant next argues the “contraband found in the vehicle, whether or
not in plain view,[3] must be suppressed,” Appellant’s Brief at 27 (emphasis
in original), because the vehicle was illegally stopped. As noted, however,
the stop was legal. Thus, the argument fails as a result, and we need not
address this argument any further.
Appellant next argues the officers could not have searched the vehicle
because they did not have a warrant and no exigent circumstances existed.
Appellant is not entitled to relief.
[W]e find that [A]ppellant cannot successfully challenge the
search of the vehicle because he has failed to demonstrate any
privacy interest in the vehicle. Appellant presented no evidence
he owned the vehicle, that it was registered in his name, or that
he was using it with permission of the registered owner. Thus,
[A]ppellant had no cognizable expectation of privacy and may
not challenge the search.
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3
The trial court, in a footnote, stated the seizure of the contraband was also
proper under the plain view doctrine. See Trial Court Opinion, 1/15/13, at 7
n.2 (citing Commonwealth v. Guzman, 44 A.3d 688, 695 (Pa. Super.
2012)) for the proposition that “[d]rugs in transparent bag on the floor of
vehicle observed by officer when defendant had left the door open and
voluntarily jumped out of the car, were immediately recognized as illegal
narcotics, and was justifiably seized under the plain view doctrine.” Id.).
We have no need to consider the plain view doctrine because we have
concluded Appellant has failed to show he had a privacy interest in the car
and its contents. See infra.
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Cruz, 21 A.3d 1251-52 (citation omitted); see also Commonwealth v.
Maldonado, 14 A.3d 907 (Pa. Super. 2011) (this Court reversed a trial
court’s grant of a motion to suppress when the defendant failed to offer any
evidence to demonstrate that he was authorized to use the vehicle.
Although the vehicle belonged to his girlfriend, no evidence established that
she had given him permission to use it on the day in question. Id. at
911.).4
Appellant next argues probable cause was lacking for his arrest.
According to Appellant, it was “glaring improper,” Appellant’s Brief at 27, for
the trial court to consider the following circumstances for purposes of
establishing the legality of the stop: 1) Appellant’s flight after the vehicle
had been stopped; 2) Appellant’s non-compliance with police order to turn
off the vehicle, and, 3) the two $50 bills found on Appellant.
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4
Appellant relies on Commonwealth v. Haskins, 677 A.2d 328 (Pa. Super.
1996) for the proposition that search of the vehicle was unconstitutional
because there was no show of probable cause and exigent circumstances.
Haskins is inapposite because it does not excuse Appellant from meeting
the threshold requirement as part of his case for suppression of
“demonstrat[ing] the existence of a privacy interest in the place searched
that is actual, societally sanctioned as reasonable, and justifiable . . . .”
Commonwealth v. Strickland, 707 A.2d 531, 534 (Pa. Super. 1998)
(citing Commonwealth v. Peterson, 636 A.2d 615, 617 (Pa. 1993)). In
passing, Appellant states the search of the vehicle violated Appellant’s
expectation of privacy, without providing any further explanation.
Appellant’s Brief at 28.
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Interactions with police may be classified as mere encounters,
investigative detentions, or formal arrests.
“[M]ere encounter” (or request for information) . . . . need not
be supported by any level of suspicion, but carries no official
compulsion to stop or to respond. . . . “[I]nvestigative
detention” must be supported by a reasonable suspicion; it
subjects a suspect to a stop and a period of detention, but does
not involve such coercive conditions as to constitute the
functional equivalent of an arrest. . . . [A]n arrest or “custodial
detention” must be supported by probable cause.
Commonwealth v. Pakacki, 901 A.2d 983, 988 (Pa. 2006) (citations
omitted).
What starts out as a lawful investigatory detention may escalate
to a full blown arrest which must be supported by probable
cause. . . . Probable cause to arrest exists where the facts at the
time of arrest would warrant a prudent person in believing that
an offense had been committed, and that the suspect was the
perpetrator of the offense.
Commonwealth v. Elliott, 546 A.2d 654, 661 (Pa. Super. 1988) (citation
omitted).
This Court has noted that:
Questions of probable cause do not entail certainties.
Indeed, probable cause exists when criminality is
one reasonable inference; it need not be the only, or
even the most likely, inference. . . . It is important to
view all of the facts and the totality of the
circumstances in order to avoid rendering a decision
that is totally devoid of [the] commonsensical
inferences [that are] drawn by trained police officers
with regard to drug activity.
Commonwealth v. El, 933 A.2d 657, 661 (Pa. Super. 2007)
(citations and internal quotation marks omitted), appeal granted,
per curiam (on issues of pro se representation only), 598 Pa.
207, 955 A.2d 1012 (Pa. 2008). We also note the observation
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that “[t]he question whether probable cause exists in a given
circumstance is so fact-intensive that well-settled legal principles
in themselves offer cold comfort.” [Commonwealth v.]
Dunlap, 846 A.2d [674, 678 (Pa. Super. 2004)] (Johnson, J.,
dissenting).
Commonwealth v. Smith, 979 A.2d 913, 917 (Pa. Super. 2009).
“Flight, in and of itself, cannot constitute probable cause to arrest. It
is equally true, however, that flight, coupled with additional facts which point
to a suspect’s guilt may establish probable cause to arrest.”
Commonwealth v. Frank, 595 A.2d 1258, 1262 (Pa. Super. 1991)
(citations omitted).
Despite some inconsistencies, Appellant misreads the trial court’s
opinion.5 The trial court addressed the legality of Appellant’s arrest, not the
legality of the stop. Specifically, regarding the facts supporting the arrest,
the trial court found the following.
After the Appellant picked up Myers in front of her house, they
proceeded in the vehicle down the street. Boudwin called for back-up.
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5
In its opinion, the trial court lays out the standard for warrantless arrests,
see Trial Court Opinion, 1/15/14, at 4, states the officers had probable
cause to arrest Appellant, id., addresses facts supporting the same, id. at 5-
6, and then concludes the stop of the vehicle was lawful. Id. at 7. Despite
the conclusion, it would appear the trial court addressed the legality of the
arrest. However, even if the trial court intended to address the stop as
opposed to the arrest, and considered facts not relevant for purposes of the
legality of the stop, and even if the trial court did not apply the proper
standard (reasonable suspicion/probable cause), the outcome was correct
and we can affirm on any ground without regard to the ground relied upon
by the lower court itself. Commonwealth v. Singletary, 803 A.2d 769,
772-73 (Pa. Super. 2002).
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One officer pulled behind the Pontiac’s rear bumpe[r] and
another pulled up ‘nose-to-nose’ with the front of Pontiac. One
of officers ordered Appellant to shut off the engine and exit the
vehicle. However, as the officers exited their vehicles and began
to approach the Pontiac, Appellant ignored the officer’s
command and drove his car backwards and then forwards,
slamming into both of the police vehicles that had blocked him
in. Appellant then attempted to veer to the left and trapped the
Pontiac in between a chain[-]link fence and retaining wall.
Appellant then exited the Pontiac and fled the scene on foot. He
was apprehended three to four blocks away from the scene.
Trial Court Opinion, 1/15/14, at 5-6 (citations to notes of testimony
omitted).
As in Frank, “[h]ere, the officers observed a potential drug transaction
and attempted to investigate further. However, in exacting the Terry[6]
stop, they were met with appellant’s attempt to abscond. Such conduct was
sufficient to find probable cause to arrest.” Frank, 595 A.2d at 1262.
Next Appellant challenges the possession with intent to deliver
conviction was against the weight and sufficiency of evidence. In the
Statement of Questions Involved, Appellant argues the challenges are based
on the fact “the charge of criminal conspiracy was withdrawn against
Appellant but not his co-Defendant who pleaded guilty to the same prior to
Appellant’s trial.” Appellant’s Brief at 13. In the argument section of the
brief, however, Appellant addresses the following reasons for challenging the
weight and the sufficiency of evidence: the Commonwealth has failed: (A) to
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6
Terry v. Ohio, 392 U.S. 1 (1968).
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prove (1) actual and constructive possession of contraband, and (2) he
accomplished or attempted to accomplish a delivery of a controlled
substance; and (B) the trial court improperly admitted evidence of two pre-
marked $50 bills.
None of the issues raised in the argument section can be construed as
included in the Statement of Questions Involved on Appeal.7 See R.A.P.
2116(a), R.A.P. 2119(a). The issues are, therefore, waived. 8 In any event,
we also find them to be meritless.
First we note, Appellant uses weight of the evidence and sufficiency of
the evidence interchangeably. They are not, and failure to recognize this
distinction may result in waiver. Commonwealth v. Widmer, 744 A.2d
745, 751-52 (Pa. 2000); Commonwealth v. Birdseye, 637 A.2d 1036,
1039-40 (Pa. Super. 1994). Because we are left to guess, we surmise
Appellant intended to challenge the sufficiency of the evidence.
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
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7
Similarly, none of these issues were raised in Appellant’s 1925(b)
statement.
8
We urge counsel to familiarize himself with Pa.R.A.P. 2116 and 2119, and
to be aware of the consequences resulting from failure to comply with these
rules. See, e.g., Commonwealth v. Fremd, 860 A.2d 515, 523-24 (Pa.
Super. 2004) (“In his brief, appellant also argues that the police conduct
was so outrageous as to bar conviction even if entrapment is not found.
Appellant failed to raise this issue in the ‘Statement of Questions Involved’
portion of his appellate brief and it is, therefore, waived.”).
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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
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. Brown, 23 A.3d 544, 559-60 (Pa. Super. 2011) (en
banc) (citations omitted).
Appellant essentially argues
the mere fact that the contraband was found in the car
[Appellant] was driving is not sufficient circumstantial evidence
of knowledge. An inference of innocence was just as reasonable
as an inference of guilt; that, since anyone (including Myers)
could have put the package there. Here, the jury should not
have been entitled to infer from the contraband’s presence in
their car, that Appellant had put it there.
Appellant’s Brief at 34.
Appellant also notes that the Commonwealth’s only witness’s
“testimony . . . leaves doubt of whether Appellant was in possession of any
contraband or if Ms. Meyers: (i) brought the contraband with her into the
car, and/or (ii) prior to police arrival, discharged the contraband from her
purse when Appellant exited the vehicle.” Id.- 14 -
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Appellant fails to recognize that the standard of review requires us to
review the evidence in the light most favorable of the verdict winner, the
Commonwealth here, and that the jury was free to believe all, part, or none
of the evidence. Brown, supra. Appellant also fails to recognize that the
“facts and circumstances established by the Commonwealth need not
preclude every possibility of innocence.” Commonwealth v. Ratsamy, 934
A.2d 1233, 1236 n.2 (Pa. 2007) (citation omitted). Additionally, “[a]ny
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.” Id.Finally, “[a]n appellate court may not substitute its judgment for that of the
fact-finder; the critical inquiry is not whether the court believes the evidence
established guilt beyond a reasonable doubt, but whether the evidence
believed by the fact-finder was sufficient to support the verdict.”
Commonwealth v. Sinnot, 30 A.3d 1105, 1110 (Pa. 2011).
The crime of possession with the intent is defined as follows:
(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:
....
(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 registered or licensed by the
appropriate State board, or knowingly creating, delivering or
possessing with intent to deliver, a counterfeit controlled
substance.
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35 P.S. § 780–113(a)(30).
In order to convict an accused of [possession with intent to
deliver (PWID)] under 35 P.S. § 780–113(a)(30), the
Commonwealth must prove that he “both possessed the
controlled substance and had an intent to deliver that
substance.” Commonwealth v. Kirkland, 831 A.2d 607, 611
(Pa. Super. 2003). Pennsylvania courts interpreting § 780–
113(a)(30), as it applies to PWID, have concluded that the
Commonwealth must establish mens rea as to the possession
element. Commonwealth v. Mohamud, 15 A.3d 80 (Pa.
Super. 2010). When determining whether a defendant had the
requisite intent to deliver, relevant factors for consideration are
“the manner in which the controlled substance was packaged,
the behavior of the defendant, the presence of drug
paraphernalia, and large sums of cash[.]” [Ratsamy, 934 A.2d
at 1237-38]. Additionally, expert opinion testimony is also
admissible “concerning whether the facts surrounding the
possession of controlled substances are consistent with an intent
to deliver rather than with an intent to possess it for personal
use.” Id. at 1238.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011), appeal
granted on other grounds, 44 A.3d 1147 (Pa. 2012).
Because Appellant was not in physical possession of the contraband,
the Commonwealth was required to establish that he had constructive
possession of the seized items to support his convictions.
Constructive possession is a legal fiction, a pragmatic construct
to deal with the realities of criminal law enforcement.
Constructive possession is an inference arising from a set of
facts that possession of the contraband was more likely than not.
We have defined constructive possession as conscious dominion.
We subsequently defined conscious dominion as the power to
control the contraband and the intent to exercise that control.
To aid application, we have held that constructive possession
may be established by the totality of the circumstances.
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Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012), appeal
denied, 63 A.3d 1243 (Pa. 2013) (internal quotation marks and citation
omitted). Additionally, it is possible for two people to have joint constructive
possession of an item of contraband. Haskins, 677 A.2d at 544 (“The fact
that another person may also have control and access does not eliminate the
defendant’s constructive possession; two actors may have joint control and
equal access and thus both may constructively possess the contraband.”)
(citing Commonwealth v. Mudrick, 507 A.2d 1212 (Pa. 1986)).
The trial court addressed the sufficiency of the evidence claim as
follows:
The evidence presented at trial was sufficient to establish
Appellant’s constructive possession of the drugs recovered from
the vehicle. A search of the vehicle from which he fled resulted
in the recovery of one colored bag of cocaine on the floor of the
vehicle in front of the passenger seat, and sixteen colored bags
of cocaine on the gearshift lever on the center console of the
vehicle. Appellant was seen in the driver’s seat of the vehicle
where he had direct access to it. Moreover, the evidence was
clear that Detective Boudwin handed two marked $50 bills to
Tonya Meyers for the purchase of five bags of crack cocaine from
her supplier. Shortly after the purchase was arranged,
Appellant, the suspected supplier, arrived on the scene and
picked up Meyers in his vehicle. When officers attempted to stop
the vehicle Appellant was driving, Appellant erratically drove his
vehicle into several police vehicles and then fled from the scene
on foot. Based on the totality of the circumstances, there was
sufficient evidence presented for a jury to conclude that
Appellant constructively possessed the drugs found in the
vehicle. Moreover, there was sufficient evidence to believe that
the Appellant . . . possessed the drugs with the intent to deliver.
Detective Boudwin testified that while 16 bags is not a
tremendous quantity of crack cocaine, it is more than an average
user would have. He explained to the jury that over of his
career he had:
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posed as a buyer hundreds of times as a user, as a
junkie. You buy one or two bags at a time. Maybe
five at most. They’re color coded and normally that
means there’s different weights in the bags. This
way it’s a quick reference for the seller instead of
like him trying to eyeball or her trying to eyeball how
much is in each bag. They try to put like varying
amounts into different color bags . . . in this situation
with the other fact[s] on top of the 16 bags, it’s
definitely possession with the intent to deliver.
N.T., 6/19/13, p. 67. Based upon his training and experience,
Boudwin believed the crack cocaine recovered from the vehicle
was possessed with the intent to deliver.[fn] This court finds
that the evidence was more than sufficient to support Appellant’s
possession with intent to deliver conviction.
___________________________________________________
[fn] Boudwin was qualified as an expert in the field of drugs,
drug distribution, and drug investigations at trial. N.T., 6/19/13,
p. 42.
Trial Court Opinion, 1/15/14, at 8-9.
Based on our review of the record, we agree with the trial court’s
reasoning, and conclude that the evidence was sufficient to support
Appellant’s conviction for possession with the intent to deliver.
Appellant also cites Commonwealth v. Fortune, 318 A.2d 327 (Pa.
1974), and Commonwealth v. Wisor, 353 A.2d 817 (Pa. 1976), for the
proposition that in these cases defendant was found not to have constructive
possession of drugs despite the fact the drugs were found in the dwelling
were defendant lived (Fortune), or in a pipe located in a space beneath
back of front right passenger’s seat in automobile owned by defendant and
occupied by defendant and others (Wisor). Appellant, however, fails to
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mention these cases pre-date Commonwealth v. Macolino, 469 A.2d 132(Pa. 1983) (two actors may have joint control and equal access and thus
both may constructively possess the contraband), and that their continued
validity is questionable. “In fact, the dissenting opinion in Mudrick
concluded that the pre-Macolino cases had been overruled [by Mudrick]
sub silentio. Mudrick, [507 A.2d at 1215.] Nothing in our exhaustive
review of the case law contradicts this conclusion.” Manley v. Fitzgerald,
997 A.2d 1235 (Pa. Cmwlth. 2010). See, e.g., Commonwealth v.
Thompson, 779 A.2d 1195 (Pa. Super. 2001) (evidence was sufficient to
prove constructive possession by defendant passenger of contraband found
in the vehicle despite the fact there were other occupants in the vehicle);
Commonwealth v. Stembridge, 579 A.2d 901 (Pa. Super. 1990) (same),
and Commonwealth v. Cruz-Ortega, 539 A.2d 849 (Pa. Super 1988)
(same).
Appellant next argues the trial court erred in admitting photocopies of
the $50 bills, as opposed to the originals, in violation of the best evidence
rule. The claim is waived and meritless.
It is waived because it was not raised in Appellant’s 1925(b)
statement. See Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011)
(“[A]ny issues not raised in a Rule 1925(b) statement will be deemed
waived.”) On the merits, the claim is without merit. The rule relied upon is
not applicable here because the writing, Boudwin’s initials, “M.B.”, see Trial
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Court Opinion, 1/15/14, at 1, was not at issue. See Commonwealth v.
Harris, 719 A.2d 1049, 1052 (Pa. Super. 1998). See also Pa.R.E. 1102.
Appellant next argues the Commonwealth’s withdrawal of the
conspiracy charge against Appellant “is a confession by the Commonwealth
that [Appellant] was not in possession of contraband with the intent to
deliver the same.” Appellant’s Brief at 37. Appellant concludes the
conviction is therefore against the weight of the evidence. 9 The argument is
waived and meritless.
Appellant failed to properly preserve and raise the weight of the
evidence issue. See Pa.R.Crim.P. 607. Appellant also failed to provide any
information on how and when the claim was preserved for our review. See
Pa.R.A.P. 2117(c), 2119(c). Additionally, it is waived because Appellant
failed to provide any authority for the proposition he advocates
(Commonwealth’s withdrawal of conspiracy charges against Appellant
operates as a “confession,” Appellant’s Brief at 37, or “admission and
stipulation,” id. at 38, he did not commit the crime of possession with the
intent to deliver contraband.). See Pa.R.A.P. 2119(a); see also
Commonwealth v. Charleston, --- A.3d ----, 2014 WL 2557575, *7 (Pa.
Super. June 6, 2014) (failure to offer pertinent authority in support of the
specific claim results in waiver).
____________________________________________
9
Nowhere did Appellant address or even mention the proper standard of
review for weight of the evidence challenges.
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The claim is also without merit. “Conspiracy to commit a crime and
the underlying crime itself are two entirely separate offenses with separate
elements required for each.” Commonwealth v. Johnson, 719 A.2d 778,
791 (Pa. Super. 1998). As such, withdrawal of the conspiracy charge has no
bearing on the underlying conviction of possession with intent to deliver.
Finally, Appellant alleges the sentence is illegal because the
Commonwealth did not prove Appellant committed two distinct crimes (i.e.,
possession with intent to deliver 2.3 grams of cocaine and delivery of five
bags of cocaine to Myers). Appellant’s Brief at 39. Specifically, Appellant
argues:
There were no eyewitnesses nor any testimony that [a
completed delivery of drugs occurred to Myers from Appellant].
The trial court makes a leap of logic commenting that this
second crime was based solely upon a single rose colored bag of
cocaine that was found in Myers’ purse. . . . It is entirely
possible that all of the rose colored bags containing drugs for
Myers personal use or were in her sole and exclusive possession,
at all times.
Id.The claim is without merit. Despite Appellant characterizing this issue
as a legality claim, Appellant is in fact challenging the sufficiency of the
evidence, again.10 And again, Appellant raises the same meritless argument
____________________________________________
10
Appellant misapprehends the meaning of “illegal sentence.” “‘[I]llegal
sentence’ is a term of art that our Courts apply narrowly, to a relatively
small class of cases.”). Commonwealth v. Foster, 17 A.3d 332, 344 (Pa.
(Footnote Continued Next Page)
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raised in connection with the previous challenge to the sufficiency evidence.
As noted above, Appellant fails to recognize that our standard of review
requires us to review the evidence in the light most favorable to the verdict
winner, the Commonwealth here, and that the jury was free to believe all,
part, or none of the evidence. Brown, 23 A.3d at 559-60. Appellant also
fails to recognize that the “facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence.”
Ratsamy, 934 A.2d at 1236 n.2.
In the Statement of Questions Involved on Appeal, Appellant argues
the sentence was illegal because he was convicted and sentenced twice for
the same charge (possession with intent to deliver contraband and delivery
of contraband). In the alternative, Appellant argues the two convictions
should have merged for sentencing purposes. Appellant’s Brief at 13. These
arguments were not addressed in the argument section, but only mentioned
in the Statement of Questions Involved on Appeal.
The trial court stated the claims were meritless. Regarding the first
issue, the trial court noted “Appellant was not convicted of and sentenced for
the same charge twice.” Trial Court Opinion, 1/15/14, at 10. Appellant in
fact was found guilty of fleeing or attempting to elude a police officer,
_______________________
(Footnote Continued)
2011) (citation omitted). Appellant provides no authority this challenge is in
fact a challenge to the legality of the sentence.
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possession with the intent to deliver cocaine, and deliver of cocaine. Id.
We agree with the trial court the claim is meritless.
Similarly meritless is the sentencing claim. Appellant argues the
sentences for possession with intent to deliver contraband and delivery of
contraband should have merged. The trial court rebutted the argument by
noting that when, as in the instant case, “a defendant commits multiple
distinct criminal acts, the concept of merger for sentencing purposes do not
apply.” Id. (citing Commonwealth v. Pettersen, 49 A.3d 903, 911-12
(Pa. Super. 2012)). The trial court identified the two distinct criminal acts as
follows:
Appellant’s conviction of possession with the intent to deliver
was based upon the drugs, namely, the sixteen (16) bags of
cocaine and the sandwich bag of marijuana, that were recovered
from the center console of the Pontiac that Appellant was
observed driving, as well as the expert opinion of Lieutenant
Boudwin, who testified that it was his professional opinion that
these drugs were possessed with the intent to deliver.
Trial Court Opinion, 1/15/14, at 11.
With regard to the delivery of contraband, the trial court noted:
Appellant’s conviction . . . was based upon his delivery of
cocaine to Tonya Meyers. This crime was based upon the single
rose colored bag of cocaine that was recovered from the
passenger floor of the Pontiac and the four rose colored bags of
cocaine that were found in Meyer’s purse, and was corroborated
by Appellant’s possession of the two marked $50 bills that
Lieutenant Boudwin had provided to Meyers prior to the sale.
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The trial court concluded that Appellant’s conviction for possession
with intent to deliver and delivery of cocaine constitute distinct criminal acts.
As such, the sentences do not merge. See Pettersen, 49 A.3d at 911-12
(“Our Courts have long held that where a defendant commits multiple
distinct criminal acts, concepts of merger do not apply.”) (quotation marks
and citation omitted)). We therefore agree with the trial court’s analysis and
conclusions.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/1/2014
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