Commonwealth v. Irvin

J-S06039-16
2016 Pa. Super. 27
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID SCOTT IRVIN,
Appellant No. 726 MDA 2015
Appeal from the Judgment of Sentence March 31, 2015
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0001258-2013
BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED FEBRUARY 08, 2016
David Scott Irvin (“Appellant”) appeals from the judgment of sentence
entered after a jury convicted him of possession with intent to deliver
(“PWID”),1 possession of drug paraphernalia,2 criminal conspiracy to
3
unlawful delivery of a controlled substance, and tampering with evidence.4
Sentenced to an aggregate of 25 months’ to 12 years’ imprisonment,5
____________________________________________
1
35 P.S. § 780-113(a)(30).
2
35 P.S. § 780-113(a)(32).
3
18 Pa.C.S. § 306.
4
18 Pa.C.S. § 4910(1)
5
By its Order of March 31, 2015, the trial court ran the Tampering with
Evidence sentence of four months’ to two years’ incarceration consecutively
to the concurrently-run sentences of twenty-one months’ to ten years’
(Footnote Continued Next Page)
*Former Justice specially assigned to the Superior Court.
J-S06039-16
Appellant challenges the denial of his motion to suppress and the sufficiency
of the evidence offered at trial. We affirm.
Appellant’s arrest and convictions stem from evidence obtained during
both a warrantless search of trashcans placed behind the residence of
Appellant’s co-defendant (“Co-Defendant”) and the subsequent execution of
search warrants relating to the residence. According to the affidavit of
probable cause prepared in support of the first residential search warrant,
Detective Rodney Temple of the Mechanicsburg Police
Department/Cumberland County Criminal Investigation Division, Drug Task
Force received multiple visitors to the police station complaining of apparent
drug activity at the residence. Appl. for Search Warrant/Aff. of Probable
Cause at 2, March 14, 2013. These neighbors specifically complained of the
tenant, a white male in his 40s, and a tall, thin black male who they said
frequently stayed at the residence for long periods. Id. at 3. The detective’s
own research confirmed he had recently encountered the tenant, Co-
Defendant, as part of an emergency dispatch to the residence on reports of
a man brandishing a rifle while standing on the back porch. Id. at 2. A
criminal history check of Co-Defendant revealed three prior drug
paraphernalia convictions.
_______________________
(Footnote Continued)
incarceration for PWID and Conspiracy, respectively. The sentence for
Possession of Drug Paraphernalia consisted of payment of the costs of
prosecution.
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Prompted by this information, Detective Temple went to the residence
on the morning of a regularly scheduled trash pick-up day and conducted a
trash pull from trashcans placed alongside an alleyway directly behind Co-
Defendant’s back yard. Id. at 3. Found among the trash were two partial
marijuana cigarettes rolled with cigar papers, a tied sandwich bag consistent
with packaging for marijuana distribution, and three discarded receipts from
the U.S. Post Office, Sprint, and Patient First in Mechanicsburg, respectively,
each bearing Appellant’s name. Id. at 2.
Detective Temple applied for a warrant to search Co-Defendant’s
residence on probable cause of possession of drug paraphernalia. On the
application’s line for “owner, occupant, or possessor of said premises,” the
detective correctly entered Co-Defendant’s name but misidentified Appellant
as “Benjamin Irvin.” Id. at 1. Next to this name, however, the application
correctly listed Appellant’s date of birth, and the attached affidavit correctly
referred to Appellant as “David Irvin” and indicated that a computer search
of his Pennsylvania drivers’ license revealed a photograph of what appeared
to be a tall, thin black male consistent with the description given by one of
the neighbor complainants. Id. at 3. On March 14, 2013, a magistrate
issued a search warrant.
On March 15, 2013, police executed the search warrant and detained
Appellant after he ran into a bathroom in a failed attempt to flush two bags
of heroin down the toilet. Trial Tr. at 26, 78, December 4-5, 2013. A search
of Appellant’s person uncovered $2,570 in cash, $2,500 of which was bound
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with the same type of small, black rubber bands that were used to tie the
bags of heroin. Id. at 91. In addition to discovering the heroin, Detective
Temple detected the smell of burnt marijuana, viewed drug paraphernalia
during a protective sweep of the residence, and noticed that Appellant’s cell
phone was continuously ringing. Detective Temple, therefore, applied for a
second search warrant on probable cause of PWID, which the issuing
authority granted that same day.
Execution of the second search warrant included the discovery of a
safe located in the closet of an upstairs bedroom. Appellant and Co-
Defendant heard the noise as police worked to open the safe, prompting
Appellant to advise a detective he could give them the combination although
there was nothing inside the safe. Id.at 102. The safe, in fact, contained six
bundles—consisting of 60 bags—of heroin. Id. at 96.
The bedroom in which the safe was located lacked a bed, 6 but it
contained articles belonging to Appellant, including his medical cards,
driver’s license, and identification cards. Id. at 93. A good deal of clothing
was in the room, and the closet was “filled with dry cleaning” bearing a dry
cleaning tag with Appellant’s name and phone number written on it. Id. at
93-94. The safe containing heroin sat directly underneath Appellant’s stack
of clothes from the dry cleaners. Id.
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6
A different bedroom contained the only bed in the house, and Appellant’s
shoes were located on the floor alongside the head of this bed. Id. at 97.
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During the second search, a detective noticed Appellant sitting on a
cell phone and its memory card that were both broken in half. Id. at 102.
The detective who initially Terry7 frisked Appellant had felt what he believed
to be an intact cell phone in Appellant’s pocket, but he left it in place
pursuant to orders to remove only suspected weapons. Id. at 87-88. A
lieutenant at the search testified he had heard a crackling noise emanating
from the room holding Appellant and Co-Defendant and attributed it to the
destruction of the phone and card. Id. at 179, 181-82. Appellant also
possessed a white cell phone in his front pocket that another officer had
removed and place on a window sill. Id. at 90-91.
Charged with various counts of drug-related offenses and tampering
with evidence, Appellant filed an omnibus pre-trial motion to suppress
evidence obtained from the warrantless search of trash and the execution of
warrants to search the residence for paraphernalia and evidence relating to
PWID. The court denied the motion after a joint hearing on Appellant’s and
Co-Defendant’s respective motions8 and scheduled the case for jury trial.
On December 5, 2013, a jury convicted Appellant as noted supra, and the
court imposed an aggregate sentence of 28 months’ to 12 years’
imprisonment. A successful collateral challenge to Appellant’s sentence,
however, required the PCRA court to vacate and remand for resentencing.
____________________________________________
7
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
8
Different counsel represented Appellant and Co-Defendant, respectively.
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On March 31, 2015, the court resentenced Appellant to 25 months’ to 12
years’ imprisonment. This timely direct appeal followed.
Appellant raises the following issues for our review:
I. WHETHER THE PRETRIAL COURT ERRED IN DENYING
APPELLANTS’ OMNIBUS PRETRIAL MOTION TO
SUPPRESS.
II. WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS
SUFFICIENT TO CONVICT APPELLANT OF
POSSESSION WITH INTENT TO DELIVER A
CONTROLLED SUBSTANCE.
III. WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS
SUFFICIENT TO CONVICT APPELLANT OF CRIMINAL
CONSPIRACY.
Appellant’s Br. at 5.
In reviewing a ruling on a suppression motion, our standard of review
is whether the factual findings and the legal conclusions drawn therefrom
are supported by the evidence. Commonwealth v. Lagenella, 83 A.3d 94,
98 (Pa. 2013). We are bound by the factual findings of the suppression
court supported by the record, but we are not bound by the suppression
court's legal rulings, which we review de novo. Commonwealth v. James,
69 A.3d 180, 186 (Pa. 2013). Further, the reviewing court may consider
only the Commonwealth's evidence and so much of the evidence for the
defense as remains uncontradicted when read in the context of the entire
record. Lagenalla, supra (citing Commonwealth v. Russo, 934 A.2d
1199, 1203 (Pa. 2007)).
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Appellant’s appeal from the suppression order centers on three points.
First, he contends the inclusion of erroneous information in the search
warrant and affidavit of probable cause—specifically, entries misidentifying
him as “Benjamin” instead of “David” Irvin on the face sheet and listing the
wrong day of the week on which Detective Temple conducted the trash
pull—invalidated the warrants issued in his case. Second, he claims the
warrantless search of trashcans outside of Co-Defendant’s residence violated
his privacy rights under the Fourth Amendment.9 Third, he asserts the
second search warrant failed to authorize a search of the safe. We address
these points out of turn, reviewing the second point first, as the trash pull
occurred first chronologically and provided critical evidence upon which the
issuing authority relied in making its probable cause determination.
In his brief, Appellant argues “neither the averments contained in the
affidavit of probable cause nor the testimony presented at the omnibus
pretrial motion hearing supported a finding by the [suppression] court that
the trash was not within the curtilage of [Co-Defendant’s] residence.”
Appellant’s brief at 13.10 It is well established that “[a]bsent probable cause
____________________________________________
9
We assume, without deciding, that Appellant possessed standing to raise a
Fourth Amendment challenge to the search of trashcans belonging to the
residence.
10
The Pennsylvania Supreme Court has clarified
a magistrate need not “anticipate constitutional challenges to the
acquiring of the information in the affidavit,” as any legal
distinction between garbage from the porch versus the sidewalk
(Footnote Continued Next Page)
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and exigent circumstances, warrantless searches and seizures in a private
home violate both the Fourth Amendment and Article 1, [Section] 8 of the
Pennsylvania Constitution.” Commonwealth v. Gibbs, 981 A.2d 274, 279
(Pa.Super. 2009). Our courts have extended this constitutional protection to
the curtilage of a person's home. “Curtilage has been defined in
constitutional context as in ‘the common law, by reference to the factors
that determine whether an individual reasonably may expect that an area
immediately adjacent to the home will remain private.’” Commonwealth v.
Gibbs, 981 A.2d 274, 279 (Pa. Super. 2009).
In Gibbs, this Court found neither legal precedent nor evidence in the
record before it supporting the proposition that occupants of a home had a
_______________________
(Footnote Continued)
can be dealt with in a suppression motion, but the magistrate
does not err by failing to note an issue or quiz the affiant on the
matter. The magistrate is to evaluate probable cause, not
anticipate or rule pre-search on any conceivable suppression
issue counsel may later assert. Likewise, we find no authority
requiring an affiant to anticipate and defend against arguments
that the information in the affidavit was unconstitutionally
acquired.
James, 69 A.3d at 190. Accordingly, it was not necessary for Detective
Temple’s affidavit of probable cause to establish that the trashcans lay
beyond the curtilage of Co-Defendant’s residence, for the issuance of a
warrant depends not upon a showing that information was constitutionally
acquired but only upon evidence establishing probable cause to support its
issuance. This is not to say, however, that a suppression court addressing a
Fourth Amendment challenge to a warrantless trash search may consider
only extrinsic evidence offered to explain the circumstances surrounding the
search without considering, in addition, averments contained in the search
warrant application. We, therefore, discern nothing problematic with
Appellant’s reference to both the search warrant application and extrinsic
evidence in framing his present challenge.
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Fourth Amendment-based expectation of privacy in an empty, unenclosed
front porch abutting the sidewalk and otherwise devoid of any attribute
indicating an intent to deny access to the general public. Id. at 280.
Similarly, we identified no reasonable expectation of privacy in trash placed
in a trashcan located under the porch of a parsonage because the area was
publicly accessible and, hence, open to public inspection. Commonwealth
v. Perdue, 564 A.2d 489, 494 (Pa. Super. 1990); accord Commonwealth
v. Lawley, 741 A.2d 205, 211 (Pa. Super. 1999).
During the joint hearing on Co-Defendant’s and Appellant’s respective
motions to suppress, the suppression court identified the trash pull issue as
turning on “whether it was discarded trash. The Court will have to
determine where the trash was.” Suppression Hr’g Tr. at 19, November 8,
2013. Detective Temple, therefore, indicated on a drawing of the property
that he found the trashcans sitting where the rear of the property ends and
the alleyway begins, consistent with how neighboring residents also placed
their trashcans on garbage pickup day. Id. at 23. The court deemed
credible Detective Temple’s testimony as to the location of the trashcans,
and, given the obvious public access to the location, it relied on above-cited
precedent to reject Appellant’s Fourth Amendment claim and uphold the
detective’s warrantless search. We discern no error with the suppression
court’s conclusion in this regard.
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In Appellant’s next charge of suppression court error, he asserts the
warrant application contained defects pertaining to his first name and the
day of the trash pull that invalidated the first two search warrants and
rendered all subsequent searches and seizures in this case unconstitutional.
So ambiguous were the warrants because of these two errors, Appellant
argues, that the issuing authority could not have discerned probable cause
to believe authorities would find contraband at Co-Defendant’s residence.
We disagree.
This Court has addressed the particularity requirements of a search
warrant application.
The Rules of Criminal Procedure include a particularity
requirement: “Each search warrant shall be signed by the
issuing authority and shall: ... (c) name or describe with
particularity the person or place to be searched.” Pa.R.Crim.P.
[205]. The Comment to Rule 2005 explains: “Paragraphs (b)
and (c) are intended to proscribe general or exploratory searches
by requiring that searches be directed only towards the specific
items, persons, or places set forth in the warrant. Such
warrants should, however, be read in a common sense fashion
and should not be invalidated by hypertechnical interpretations.”
Similarly, the Supreme Court has held a “practical, common-
sense” approach should be taken in determining whether the
place to be searched is specified with sufficient particularity.
Commonwealth v. Carlisle, 517 Pa. 36, 534 A.2d 469, 472
(1987).
The Pennsylvania Supreme Court has concluded Article 1,
Section 8 of the Pennsylvania Constitution affords greater
protection than the Fourth Amendment, Edmunds, supra,
including a more demanding particularity requirement; the
description must be as particular as reasonably possible.
Commonwealth v. Grossman, 521 Pa. 290, 555 A.2d 896,
899 (1989). “The twin aims of Article 1, Section 8 are the
safeguarding of privacy and the fundamental requirement that
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warrants shall only be issued upon probable cause.”
Commonwealth v. Waltson, 555 Pa. 223, 724 A.2d 289, 292
(1998).
In order to protect these twin aims, a warrant must
describe the place to be searched and the items to
be seized with specificity, and the warrant must be
supported by probable cause. The place to be
searched must be described “precise enough to
enable the executing officer to ascertain and identify,
with reasonable effort, the place intended, and
where probable cause exists to support the search of
the area so designated, a warrant will not fail for lack
of particularity.”
Id., at 292 (quoting In re Search Warrant B-21778, 341
Pa.Super. 350, 491 A.2d 851, 856 (1985), aff'd, 513 Pa. 429,
521 A.2d 422 (1987)).
Commonwealth v. Belenky, 777 A.2d 483, 485-86 (Pa. Super. 2001)
(footnote omitted).
Initially, we note Appellant’s brief fails to explain with detailed
discussion and citation to authority how the application’s allegedly defective
account of which day of the week Detective Temple conducted the trash pull
impaired the magistrate’s ability to ascertain either the place to be searched
or whether probable cause supported the search. He, therefore, may obtain
no relief on this claim. Commonwealth v. Johnson, 985 A.2d 915, 924
(Pa. 2009) (deeming waived issue unsupported by pertinent discussion and
citation to authority). See also Pa.R.A.P. 2119(a) (an appellate brief shall
consist of an argument section providing discussion of the particular point
raised followed by a discussion and citation of pertinent authorities).
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Even if Appellant had developed this point, we would deem the
question of whether the trash pull occurred on the Wednesday or Thursday
of the week irrelevant to the magistrate’s task of determining whether the
four corners of the application described a sufficient nexus between the
trashcans and Co-Defendant’s residence to establish probable cause to issue
the first search warrant. In this regard, the application sufficiently
connected the trashcans to Co-Defendant’s residence when it indicated they
sat “next to the alley way directly behind the [Co-Defendant’s] home in front
of a shed that was on the property. This was consistant [sic] with other
residents in the area who had their trash out on the regularly scheduled
trash day.” Appl. for Search Warrant/Aff. of Probable Cause at 3, March 14,
2013. The warrant application, therefore, specified a proper basis upon
which to form probable cause to suspect possession of drug paraphernalia
inside Co-Defendant’s residence, and the issuing authority tailored the
warrant to the application.
Nor does the provision of an incorrect first name in this case provide a
basis upon which to reverse the suppression court’s order denying relief.
Here, Detective Temple initially presented the issuing authority with a search
warrant application and accompanying affidavit setting forth, with specificity,
evidence supplying probable cause to believe Co-Defendant and Appellant
possessed drug paraphernalia in the residence they occupied. Although the
face sheet of the application misidentified Appellant as “Benjamin” in a single
instance, his correct date of birth appeared immediately afterward on the
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same line. Consistent with the correct date of birth, moreover, the affidavit
accurately listed Appellant’s name, referred to three receipts recovered from
the residential trash bearing his name, and indicated that Detective Temple
used Appellant’s driver’s license photograph and description to connect
Appellant with eyewitness accounts describing the physical features of Co-
Defendant’s frequent guest at the residence.11
____________________________________________
11
Even if we were to assume arguendo that the warrant application
inadequately identified Appellant as an occupant or possessor of the
residence to be searched, such a deficiency would not have required
suppression of evidence in the case against him. Independent of the
erroneous first name given to Appellant on the warrant application’s face
sheet, the application otherwise specified neighbors’ eyewitness accounts
that the residence received frequent visits of short duration throughout the
night, explained a search of abandoned trash outside the residence yielded
materials used as drug paraphernalia, and included Co-Defendant’s history
of three arrests and a guilty plea to possession of drug paraphernalia. The
application, therefore, supplied probable cause to support the issuance of a
warrant to search Co-Defendant’s residence for drug paraphernalia.
It was during lawful execution of the search warrant that officers
observed Appellant flee to a bathroom in an attempt to destroy heroin in his
possession. Officers immediately arrested Appellant, therefore, not for his
status as an occupant of the residence but for the criminal act he had
committed in their presence, and they discovered the large amount of cash
and his constantly ringing cell phone on his person during a lawful search
incident to his arrest. Consequently, the second application for a search
warrant related these lawful observations of Appellant’s criminal conduct
and, in large part, relied upon them to request a second warrant to search
the entire residence for heroin and funds derived from its sale. The issuance
of a warrant to search the entire residence for heroin and funds deriving
from its sale was, thus, proper, and Appellant advances no credible position
that the search of a safe located among his possessions was outside the
reasonable scope of the warrant.
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Viewing the totality of information contained in both search warrant
applications and their corresponding warrants, therefore, we have no
concern that the errors complained of hampered the issuing authority’s
assessment of probable cause with respect to either the proper venue or
persons named. See Belenky, supra at 486 (holding search warrant errors
necessitating relief are those hampering issuing authority’s assessment of
probable cause in person or place to be searched); Commonwealth v.
Carlisle, 534 A.2d 469, 472 (Pa. 1987) (holding affidavit’s listing of correct
information as to apartment number to be searched cured error of omitting
apartment number on face sheet of warrant application).
Addressing Appellant’s final suppression claim, we discern in neither
Appellant’s omnibus pretrial motion nor his presentation at the suppression
hearing a claim that the search of the safe exceeded the scope of the second
search warrant.12 Instead, he sought to suppress the contents of the safe
____________________________________________
12
At the hearing, only counsel for Co-Defendant addressed the search of the
safe, and his truncated argument on the issue consisted of nothing more
than the following:
“With regard to the safe issue, I believe the only evidence that
we heard was that they had the second search warrant in hand.
That would be a valid search if the safe — contents in the safe
are considered to be within the four corners by Your Honor.”
Suppression Hr’g Tr. at 19. Counsel for Appellant neither concurred nor
requested to join in this argument, which was also absent from Appellant’s
omnibus pretrial motion. We, therefore, conclude Appellant has waived this
issue. Cf. Commonwealth v. Woods, 418 A.2d 1346, 1352 (Pa. Super.
2008) (holding when a co-defendant preserves an issue by objecting, the
defendant waives the issue unless he joins the objection); Commonwealth
v. Cannady, 590 A.2d 356, 362 (Pa. Super. 1991) (holding an appellant
(Footnote Continued Next Page)
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only as the derivative of both an unconstitutional warrantless trash search
and a fatally defective search warrant application. Having rejected both
predicate claims, this derivative claim, too, must fail.
Even if Appellant preserved this issue, it would entitle him to no relief.
“Where a search warrant adequately describes the place to be searched and
the items to be seized the scope of the search ‘extends to the entire area in
which the object of the search may be found and properly includes the
opening and inspection of containers and other receptacles where the object
may be secreted.’” Commonwealth v. Waltson, 724 A.2d 289, 292 (Pa.
1998). Here, based on an affidavit describing Appellant’s possession of
and/or dominion over heroin, cash, and cell phones in Co-Defendant’s
residence, the second warrant authorized a search of the residence for, inter
alia, marijuana, heroin, funds derived from their sale, and documents
relating to their sale. Within the fair scope of this warrant, therefore, was a
search of a safe located among Appellant’s belongings in the residence, as it
represented a container in which money and contraband may have been
secreted.
In Appellant’s remaining two issues, he challenges the sufficiency of
evidence presented in support of PWID and conspiracy charges. We review
Appellant's sufficiency of the evidence claims under the following standard:
_______________________
(Footnote Continued)
may not rely on objection lodged by co-defendant to preserve claim for
appeal, even if objection was identical to appellate claim now raised).
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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
[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. Vargas, 108 A.3d 858, 867-68 (Pa. Super. 2014)
(citations omitted).
Specifically, Appellant assails his convictions on PWID and conspiracy
to commit PWID by pointing to evidence that he never enjoyed exclusive
access to the bedroom containing the safe or resided at the address in
question. Neither did authorities find heroin on his person or observe him
selling heroin at the time of his arrest, he claims. In essence, the crux of
Appellant’s sufficiency claims is that his ties to the residence and, in
particular, to the heroin in the safe were too tenuous to prove either
conspiracy or the constructive possession element to PWID.
Section 903 of the Pennsylvania Criminal Code provides:
§ 903. Criminal conspiracy
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(a) Definition of conspiracy.—A person is guilty of
conspiracy with another person or persons to commit a crime if
with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or
one of more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
18 Pa.C.S.A. § 903. As to the sufficiency of evidence offered to prove
conspiracy, this Court has observed:
[c]ircumstantial evidence may provide proof of the conspiracy.
The conduct of the parties and the circumstances surrounding
such conduct may create a “web of evidence” linking the accused
to the alleged conspiracy beyond a reasonable doubt.
Additionally:
An agreement can be inferred from a variety of
circumstances including, but not limited to, the
relation between the parties, knowledge of and
participation in the crime, and the circumstances and
conduct of the parties surrounding the criminal
episode. These factors may coalesce to establish a
conspiratorial agreement beyond a reasonable doubt
where one factor alone might fail.
Commonwealth v. Jones, 874 A.2d 108, 121–22 (Pa.Super.
2005) (quoting Commonwealth v. Greene, 702 A.2d 547, 554
(Pa.Super. 1997)) (internal citations omitted).
Commonwealth v. Perez, 931 A.2d 703, 708 (Pa. Super. 2007).
As noted supra, the Commonwealth sought to establish Appellant’s
connection to the heroin stored inside the safe through evidence that he and
he alone dealt heroin in Co-Defendant’s residence. Toward this end, trial
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testimony described how Appellant attempted to discard two bags of heroin
while fleeing from police, possessed over $2,500 in cash bound in rubber
bands identical to those used to secure the six bundles of heroin in the safe,
knew the combination of the safe, and destroyed a cell phone and its
memory card before police confiscated them. Moreover, Co-Defendant
testified he and Appellant were operating under an arrangement by which he
would receive free heroin from Appellant in exchange for allowing Appellant
to use his residence as a base for selling heroin to others. Co-Defendant
testified, further, that he never saw Appellant use heroin, and he indicated
the safe belonged to Appellant, an allegation corroborated by both the
location of the safe within a closet storing Appellant’s personal belongings
and Appellant’s claim of knowing the combination. Trial Tr. at 51-55, 93-94,
102. The Commonwealth also presented expert opinion that the large
amount of heroin located in the safe was consistent with the intent to
deliver. Id. at 168, 170.
Viewed in light of our governing standard of review, the sum of this
evidence sufficed to prove beyond a reasonable doubt the existence of an
agreement between Appellant and Co-Defendant permitting Appellant to
deal heroin from the residence. Accordingly, we find no merit to Appellant’s
sufficiency challenges. 13
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13
Successful proof of a conspiracy makes each co-conspirator fully liable for
all of the drugs recovered, without the necessity of proving constructive
(Footnote Continued Next Page)
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Judgment of sentence is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2016
_______________________
(Footnote Continued)
possession. See Id. at 709. Because sufficient evidence supported
Appellant’s conviction for conspiracy to deliver heroin, we need not address
whether sufficient proof that he constructively possessed heroin in the safe
supported his conviction for PWID. Nevertheless, were we required to
address Appellant’s constructive possession argument on its merits, it would
fail for the same reasons defeating his conspiracy argument.
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