Com. v. Santiago-Torres, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARIT A. SANTIAGO-TORRES :
:
Appellant : No. 2792 EDA 2018
Appeal from the Judgment of Sentence Entered August 17, 2018
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0003488-2017
BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY OTT, J.: FILED DECEMBER 05, 2019
Darit A. Santiago-Torres appeals from the judgment of sentence
imposed on August 17, 2018, in the Court of Common Pleas of Montgomery
County, after a non-jury trial. The judge sentenced Santiago-Torres to a term
of 4 years’ probation, after she convicted him of one count each of possession
of a controlled substance with intent to deliver (PWID), possession of a small
amount of marijuana, possession of drug paraphernalia, and turning
movements and required signals.1 On appeal, Santiago-Torres argues the
evidence was insufficient to sustain the verdict. For the reasons discussed
below, we affirm.
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1 35 P.S. § 780-113(a)(30), (31), (32), and 75 Pa.C.S.A. § 3334(a),
respectively.
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The trial judge summarized the facts underlying Santiago-Torres’
conviction as follows:
On February 24, 2017, Abington Police Officer Dustin Wittmer
observed [Santiago-Torres’] vehicle illegally parked in front of a
residence at 1305 Thompson Road. As the officer approached the
vehicle, he observed it pull away from the residence. The officer
subsequently observed the vehicle perform two right hand turns
without using a turn signal. Following the second right hand turn,
the officer activated his emergency lights and siren and
effectuated a traffic stop. When the officer first approached the
vehicle, he detected a strong odor of raw marijuana. The officer
asked [Santiago-Torres] for his license, registration and proof of
insurance and observed that [Santiago-Torres] was extremely
nervous and hesitant to answer questions. While waiting for
[Santiago-Torres] to produce the requested documentation, the
officer observed a piece of paper in plain view containing the
address of 1305 Thompson Road. Upon observing this paper, the
officer asked about this address and [Santiago-Torres] responded
that this was his friend’s home but stated that he did not know his
friend’s name. [Santiago-Torres] also mentioned that he was
performing electrical work, but the officer did not observe any
evidence of electrical equipment in the vehicle.
The officer requested [Santiago-Torres] to exit the vehicle and
asked whether he could perform a pat down of [Santiago-Torres’]
person. [Santiago-Torres] provided the officer with permission,
and during the pat down he felt large folded papers in [Santiago-
Torres’] pocket which had the feel of money. Following the pat
down, the officer asked [Santiago-Torres] if he could search his
vehicle. [Santiago-Torres] displayed some hesitation, upon which
the officer stated that he would obtain a search warrant if
[Santiago-Torres] did not provide consent. [Santiago-Torres]
subsequently provided verbal consent to search the vehicle.
During the search of [Santiago-Torres’] vehicle, the officer found
two marijuana bags under the driver’s seat, several pieces of
paper with addresses and dollar amounts, ledgers containing
addresses from surrounding counties and $4,280 from the rear
tire well of the vehicle. The officer also found $5,035 on
[Santiago-Torres’] person. The officer subsequently placed [him]
under arrest.
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On April 25, 2018, [Santiago-Torres] filed a motion to suppress
the evidence seized from [his] person and his vehicle. On May
24, 2018, the [trial] court denied [his] motion to suppress
following a hearing. That same date, the [trial] court held a bench
trial and found [Santiago-Torres] guilty of the charges referenced
above. On August 17, 2018, the [trial] court imposed an
aggregate sentence of four (4) years of probation.
On September 17, 2018, [Santiago-Torres] filed a timely notice of
appeal. On September 20, 2018, the [trial] court issued an
[o]rder directing [Santiago-Torres] to file a concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)
(the “Concise Statement”) within twenty-one (21) days. On
October 9, 2018, [Santiago-Torres] requested an extension to file
his Concise Statement until fourteen (14) days after he received
the requested notes of testimony, which the [trial] court granted.
On October 25, 2018, [Santiago-Torres] filed a timely Concise
Statement. [On January 16, 2019, the trial court filed an opinion.]
Trial Court Opinion, 1/16/2019, at 1-3 (footnotes omitted).
On appeal, Santiago-Torres challenges the sufficiency of the evidence
supporting his conviction for PWID.2 Santiago-Torres argues the
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2 While Santiago-Torres purports to challenge “all of the charges”, see
Santiago-Torres’ Brief, at 8, he waived any challenge to his conviction for
possession of drug paraphernalia, possession of a small amount of marijuana,
and turning movements and required signals. In his Pa.R.A.P. 1925(b)
statement, he only challenged his conviction for PWID. See Statement of
Matters to be Complained of on Appeal, 10/25/2018, at unnumbered page 1.
As amended in 2007, Pennsylvania Rule of Appellate Procedure 1925 provides
issues that are not included in the Rule 1925(b) statement or raised in
accordance with Rule 1925(b)(4) are waived. See Pa.R.A.P. 1925(b)(4)(vii);
see also Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa. Super. 2011),
appeal denied, 827 A.2d 430 (Pa. 2003) (“[A Rule 1925(b)] [s]tatement which
is too vague to allow the court to identify the issues raised on appeal is the
functional equivalent to no [c]oncise [s]tatement at all.”); Commonwealth
v. Lord, 719 A.2d 306, 308 (Pa. 1998), superseded by rule on other grounds
as stated in Commonwealth v. Burton, 973 A.2d 428, 431 (Pa. Super.
2009).
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Commonwealth failed to prove he constructively possessed the contraband
inside the vehicle. See Santiago-Torres’ Brief at 8-13. Santiago-Torres
contends there was another individual in the vehicle when the police pulled it
over, and he was not the owner of the car. See id. He asserts there was
insufficient evidence that he actually knew of the existence of the contraband,
despite the fact he was the driver and the police located the marijuana under
the driver’s seat. See id.
He also maintains the Commonwealth only presented “ambiguous proof”
in support of its assertion he possessed the drugs with the intent to deliver.
Id. at 14. He notes the quantity of the drugs found in and of itself was
insufficient to prove intent to deliver; the packaging was consistent with both
personal use and drug dealing; his possession of drug paraphernalia; and the
absence of a weapon. See id. at 15, 17-18.
Our standard of review for a challenge to the sufficiency of the evidence
is well settled:
Whether sufficient evidence exists to support the verdict is a
question of law; our standard of review is de novo and our scope
of review is plenary. When reviewing the sufficiency of the
evidence, this Court is tasked with determining whether the
evidence at trial, and all reasonable inferences derived therefrom,
are sufficient to establish all elements of the offense beyond a
reasonable doubt when viewed in the light most favorable to
the Commonwealth[.] The evidence need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented.
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Commonwealth v. Walls, 144 A.3d 926, 931 (Pa. Super. 2016) (internal
citations and quotation marks omitted, emphasis added), appeal denied, 167
A.3d 698 (Pa. 2017).
Section 780–113 of The Controlled Substance, Drug, Device and
Cosmetic Act provides in relevant part:
(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.
35 P.S. §§ 780–113(a)(30).
The following principles govern the Commonwealth’s burden of proof in
drug possession cases:
In narcotics possession cases, the Commonwealth may meet its
burden by showing actual, constructive, or joint constructive
possession of the contraband. Actual possession is proven by
showing . . . [the] controlled substance [was] found on the
[defendant’s] person. If the contraband is not discovered on the
defendant’s person, the Commonwealth may satisfy its
evidentiary burden by proving that the defendant had constructive
possession of the drug.
Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa. Super. 2014) (en banc)
(internal citations and quotation marks omitted), appeal denied, 121 A.3d 496
(Pa. 2015).
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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.
Commonwealth v. Hopkins, 67 A.3d 817, 820–821 (Pa. Super. 2013)
(citations omitted), appeal denied, 78 A.3d 1090 (Pa. 2013). “An intent to
maintain a conscious dominion may be inferred from the totality of the
circumstances, and circumstantial evidence may be used to establish a
defendant’s possession of drugs or contraband.” Commonwealth v.
Harvard, 64 A.3d 690, 699 (Pa. Super. 2013) (citation omitted), appeal
denied, 77 A.3d 636 (Pa. 2013).
In determining whether the Commonwealth proved the delivery element
of PWID, this Court has stated:
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[.] 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. [We
have held] that such expert testimony, coupled with the presence
of drug paraphernalia, is sufficient to establish intent to deliver.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations
and quotation marks omitted), affirmed, 106 A.3d 705 (Pa. 2014).
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In the present case, Santiago-Torres’ arguments with respect to both
the possession element and the delivery element suffer from a fatal flaw, he
views the evidence in the light most favorable to himself, not the
Commonwealth. See Santiago-Torres’ Brief, at 8-18. Viewing the evidence
in the light most favorable to the Commonwealth, there is sufficient evidence
to conclude Santiago-Torres constructively possessed the drugs found in the
vehicle and possessed them with the intent to deliver.
Santiago-Torres was the driver of the car; the police found the drugs
directly under Santiago-Torres’ seat, within his reach, and the odor of the
marijuana was so strong that police could smell it outside the car. N.T. Trial,
5/24/2018, at 11, 25, 125, 157, 162. While Santiago-Torres’ father was the
registered owner of the car, Santiago-Torres specifically told the police the car
was his. Id. at 157, 162. Viewing the evidence in the light most favorable to
the Commonwealth, the court, sitting as fact-finder, could reasonably
conclude the totality of the circumstances established Santiago-Torres had the
ability and intent to exercise control over the drugs.3 See Commonwealth
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3 Santiago-Torres’ reliance on Commonwealth v. Spencer, 621 A.2d 153
(Pa. Super. 1993), Commonwealth v. Boatwright, 453 A.2d 1058 (Pa.
Super. 1982); and Commonwealth v. Hamm, 447 A.2d 960 (Pa. Super.
1982) is misplaced. Both Spencer and Boatwright concerned situations
where the defendant was the passenger in the car, not the driver. See
Spencer, supra at 154; Boatwright, supra at 1058. Further, both Spencer
and Boatwright involved situations where the police found contraband in
close proximity to the driver but located remotely from the passenger.
Spencer, supra at 154; Boatwright, supra at 1058-1059. In Spencer, in
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v. Dix, 207 A.3d 383, 390-391 (Pa. Super. 2019), appeal denied, 2019 WL
4164778 (Pa. Sep. 3, 2019) (evidence sufficient to find constructive
possession of drugs where appellant was driver of car and police found drugs
on floor in front of driver’s seat); Spencer, supra at 155.
With respect to delivery, Santiago-Torres’ argument4 is based, in its
entirety, in viewing the evidence in the light most favorable to himself, rather
than to the Commonwealth. See Santiago-Torres’ Brief, at 13-18. Further,
after a thorough review of the trial transcript, we find the trial court, in its
opinion, thoroughly and accurately summarized the testimony of the
Commonwealth’s expert witness, Detective Michael Reynolds. See Trial Court
Opinion, 1/16/2019, at 11–12 (summarizing expert’s testimony that: (1) the
papers recovered from the car were drug tally worksheets; (2) the crossing
out of certain addresses on the papers is “indicative of a debt being paid in
the drug business[,]”; (3) the “acronyms listed on some of the paper slips
refer to different marijuana strains[,]”; (4) the separation of large sums of
money into bundles, one found on Santiago-Torres’ person and the other in
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fact, the Court specifically found the driver was the individual who
constructively possessed the drugs. See Spencer, supra at 155. In Hamm,
while the defendant was the driver, the police observed the backseat
passenger of the car pass a gun to the front-seat passenger, who put the gun
under his seat, a situation that has no bearing on the current matter. See
Hamm, supra at 961-962.
4 Throughout this section of Santiago-Torres’ Brief, defense counsel refers to
the appellant as “Carpenter”. See Santiago-Torres’ Brief, at 14-15.
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the wheel well of the car “is a common trait for drug traffickers to try to
separate money and not have everything all on them at one time”; (5) the
absence of any personal use paraphernalia on Santiago-Torres’ person or in
the vehicle; and (6) the presence of two marijuana bags; concluding none of
the above are typical for a user but is rather indicative of possession with
intent to deliver). Furthermore, we conclude the court provides a well-
reasoned basis for its determination that the Commonwealth presented
sufficient evidence to support the judge’s verdict of PWID. See id. at 12.
Therefore, we adopt the sound reasoning of the Honorable Wendy G. Rothstein
as dispositive of this issue.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/19
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