Com. v. Thomas, R.

J-S03039-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD JAMES THOMAS, JR. :
:
Appellant : No. 891 WDA 2021
Appeal from the Judgment of Sentence Entered June 25, 2021
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0001305-2019
BEFORE: LAZARUS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: FEBRUARY 14, 2022
Ronald James Thomas, Jr. (Thomas) appeals from the judgment of
sentence imposed by the Court of Common Pleas of Washington County (trial
court) after a jury convicted him of possession with intent to deliver (PWID),
simple possession and possession of drug paraphernalia.1 We affirm.
On June 6, 2019, the Washington County Drug Task force (Task Force)
executed a search warrant on Thomas’s residence. When they entered, the
Task Force found Thomas in the kitchen. There were also several other people
in the residence. One of the persons was Jessica Hall (Hall), who was in the
residence’s bedroom.
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. §§ 780-113(a)(30), (16) and (32).
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After clearing the residence, a canine officer and his partner searched
the residence. During that search, the canine alerted on a safe in the
residence’s bedroom. After opening the safe, the Task Force found, among
other things, 55 stamps bags of suspected heroin; a scouring pad; a plastic
case; and two digital scales. The Task Force also found suboxone strips on a
nightstand in the bedroom. Forensic testing later confirmed that the stamp
bags contained heroin and fentanyl while the suboxone strips were confirmed
to be buprenorphine. Thomas was charged with (1) PWID—heroin/fentanyl;
(2) simple possession—heroin/fentanyl; (3) simple possession—suboxone;
and (4) possession of drug paraphernalia.
At trial, the Commonwealth sought to prove that the bedroom safe
belonged to Thomas. A Task Force detective testified that the residence had
only one bedroom, and that it had a handwritten note on its door stating, “no
one goes in this room, no one. RT.” According to the detective, “RT” referred
to Thomas. Additionally, besides finding mail addressed to Thomas in the
residence, Thomas’s driver’s license listed the address for the residence.
The Commonwealth also called Hall as a witness. She testified that the
safe belonged to Thomas and that he gave her the key to the safe. While she
did not go into the safe, she knew from her past experiences that it was where
Thomas kept his drugs to sell to people who came to the residence.
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The jury found Thomas guilty of all charges, after which the trial court
imposed an aggregate sentence of 6 to 12 years’ imprisonment.2 Thomas did
not file post-sentence motions but did file this appeal to challenge the
sufficiency of the evidence for his convictions.3
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2 The trial court sentenced Thomas to serve 66 to 132 months for PWID (count
one); a consecutive 6 to 12 months for simple possession—suboxone (count
three); and a concurrent 1 to 3 months for possession of drug paraphernalia
(count four). The trial court merged simple possession—heroin/fentanyl
(count two) with PWID.
3 Our standard of review for sufficiency challenges is well-established:
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 a 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 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. Williams, 255 A.3d 565, 578-79 (Pa. Super. 2021)
(citation omitted).
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On appeal, Thomas contends that the evidence was insufficient because
the Commonwealth did not establish that he was in “possession” of the illegal
drugs. In this regard, he highlights that the Task Force found him in the
kitchen and not in the bedroom. Furthermore, while there was evidence of
him living in the residence, he stresses that the Task Force found Hall in the
bedroom and that she had a key to the safe. In his view then, the
Commonwealth failed to establish that he had constructive possession over
the safe and its contents.
Regarding the element of constructive possession, our Supreme Court
has explained:
Where possession is an element of the offense, the concept of
constructive possession is a legal fiction used to prove the element
although the individual was not in physical possession of the
prohibited item. The evidence must show a nexus between the
accused and the item sufficient to infer that the accused had the
power and intent to exercise dominion and control over it.
Dominion and control means the defendant had the ability to
reduce the item to actual possession immediately, or was
otherwise able to govern its use or disposition as if in physical
possession. Mere presence or proximity to the contraband is not
enough. Constructive possession can be established by inferences
derived from the totality of the circumstances.
Commonwealth v. Peters, 218 A.3d 1206, 1209 (2019) (citations omitted).
Viewing the evidence in the light most favorable to the Commonwealth
as the verdict winner, we conclude there was sufficient evidence for the jury
to infer that Thomas had the power and intent to exercise dominion and
control over the safe in the bedroom. The trial court summarized the evidence
establishing constructive possession:
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…When the police searched the residence on June 6th, 2019,
various bills addressed to [Thomas] indicated this was his
residence, in addition to, [Thomas’s] driver’s license having the
residence as his address. Second, [Thomas] was present in the
residence at the time the search warrant was being executed.
According to Detective Joseph Fichter, [Thomas] was located in
the kitchen of the residence at the time the search warrant was
executed. The heroin/fentanyl, packaged in stamp bags, was
found in the safe located in [Thomas’s] bedroom, with the
handwritten note signed “RT” on the door. Although the drugs
were found in a room other than the kitchen in which [Thomas]
was present at the time of the search, the additional evidence
found within the room indicates it was [Thomas’s] bedroom. This
evidence establishes [Thomas] had the ability to control the
heroin/fentanyl located in his residence and his intent to exercise
such control.
Trial Court Opinion, 10/13/21, at 9-10 (footnote omitted).
We agree with this analysis and hold that this was sufficient evidence
for the jury to conclude that the bedroom belonged to Thomas. Hall testified
that Thomas controlled the safe in the bedroom and gave her the key to the
safe. As discussed, Thomas asserts that Hall’s presence in the bedroom and
possession of the key at the time of the search proves that there was
insufficient evidence for possession. Besides the fact that Hall’s presence in
the bedroom does not negate the evidence connecting Thomas to the bedroom
safe, any questions about Hall’s credibility were for the fact-finder to resolve,
a determination that we will not disturb.
Finally, Thomas argues this case is factually like Commonwealth v.
Vallette, 613 A.2d 548 (Pa. 1992). In that case, our Supreme Court found
there was insufficient evidence to find that the defendant constructively
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possessed drugs that were found during the search of an apartment in which
he was present. In so holding, our Supreme Court observed:
At trial the Commonwealth attempted to portray [the
defendant] as a participant involved in a large drug distribution
scheme. However, the only link to the narcotics confiscated from
the premises was his presence and apparent acquaintanceship
with the co-defendants. The record is clear that no contraband
was found in the room in which the [defendant] was sitting at the
time entry was made by law enforcement officers; and, although
$1500.00 in cash was found hidden on a shelf in a closet located
in the room, there was no evidence that [the defendant] knew of
its existence, or had access to it: nor is the possession of cash a
crime. Moreover, no personal property of [the defendant] was
located in the apartment. …
Id. at 550 (footnote omitted). The Court also observed that most of the drugs
were found “in a closed case located beneath floorboards” in a second-floor
room, while the defendant was found on the first floor when the police entered
the apartment. Id. at 551.
Unlike Vallette, the Commonwealth adduced evidence that Thomas not
only lived in the residence, but that it was his bedroom in which the Task Force
found the safe. The Commonwealth also adduced direct evidence that Thomas
controlled the safe and gave Hall the key to the safe. Thus, it is not as if
Thomas was merely present in the residence when the Task Force found the
drugs. Instead, the Commonwealth presented evidence directly connecting
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Thomas to the place where the drugs were found. Thus, we find no merit in
his challenge to the sufficiency of the evidence.4
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/14/2022
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4 In his statement of questions involved, Thomas includes a challenge to the
weight of the evidence. Yet as he later concedes in his brief, he did not raise
this issue in a timely post-sentence motion. Thus, the claim is waived. See
Commonwealth v. Giron, 155 A.3d 635, 638 (Pa. Super. 2017) (“A weight
of the evidence claim must be preserved either in a post-sentence motion, by
a written motion before sentencing, or orally prior to sentencing.”) (citation
omitted).
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