Com. v. Mount, W.

J. S21035/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
WILLIAM MOUNT, : No. 761 EDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, September 29, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0004411-2014
BEFORE: STABILE, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 19, 2019
William Mount appeals from the September 29, 2016 judgment of
sentence entered in the Court of Common Pleas of Philadelphia County
following his conviction in a waiver trial of manufacture, delivery, or
possession with intent to manufacture or deliver a controlled substance;
possession of a controlled substance; possession of drug paraphernalia; and
possession of a small amount of marijuana.1 The trial court imposed a
sentence of 11½ to 23 months’ incarceration with immediate parole and
4 years’ reporting probation on the possession with the intent to deliver
conviction and no further penalty on the remaining convictions. We affirm.
The trial court set forth the following factual history:
1 35 P.S. §§ 780-113(a)(30), (16), (32), and (31), respectively.
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On February 11, 2014, a report was filed by the victim
of a robbery stating that William Mount Jr.[2] had
taken from the victim a Samsung Galaxy cellular
phone and SEPTA TransPass at 58th Street and
Woodland Avenue in the city and county of
Philadelphia. The victim identified William Mount, Jr.
as the perpetrator having known Mount, Jr. from
school and from an alleged previous robbery. On
February 15, 2014, at approximately 6:05 p.m.,
detectives from the Southwest Detectives Division of
the Philadelphia Police Department executed a search
warrant on 5944 Cobbs Creek Parkway in connection
to the February 11[,] 2014 robbery. Upon entrance,
officers determined that only one female friend of the
suspect’s father, [appellant], was present in the
home.
Detectives began to search the home and entered the
basement area of 5944 Cobbs Creek Parkway. In the
middle of the basement, officers encountered a
windowless room with one single locked door that
appeared to be recently constructed. The room was
constructed with sheetrock and had both a heating
and ventilation system. The design of this particular
room is consistent with others that are used for the
exclusive purpose of growing marijuana. The
detectives gained entry into the room and discovered
a large quantity of marijuana which then prompted a
call for officers from the Narcotics Field Unit.
Responding officers from the Narcotics Field Unit
arrived to 5944 Cobbs Creek Parkway and began to
inventory the contents of the windowless room in the
basement. Within this room, officers from the
Narcotics Field Unit catalogued: six freezer bags filled
with approximately one pound each of marijuana; one
trash bag filled with loose marijuana; one postal letter
addressed to William Mount; one large clear bag that
contained multiple smaller unused bags that are
consistently used for the packaging of narcotics; one
2 We note that appellant is William Mount, Sr. The alleged robbery suspect,
who was the subject of the search warrant, was William Mount, Jr., appellant’s
son.
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scale with a power plug; one box, with a shipping label
addressed to 428 West Wayne Avenue, containing
drug paraphernalia, marijuana and a white digital
scale; one handheld scale; and high powered lights
consistent with marijuana growing operations. The
Narcotics Field Unit, in total, recovered 8.8 pounds of
marijuana with an approximate street value of
between $39,000 and $78,000 dependent upon the
quantities in which the marijuana is sold.
As officers from the Narcotics Field Unit prepared to
leave 5944 Cobbs Creek Parkway, [appellant] arrived
at the location. [Appellant] identified himself to
Officer Burgess of the Narcotics Field Unit and agreed
to answer questions posed by the officer. [Appellant]
denied any knowledge of the windowless room in the
basement despite having stated he lived there for
approximately one to [two] years. Officer Burgess
stated to [appellant] that the room had been recently
constructed and [appellant] continued to deny any
knowledge of the room altogether. Officer Burgess
then placed [appellant] under arrest because he found
the story of [appellant] not credible.
Trial court opinion, 8/16/17 at 1-3 (citations to notes of testimony omitted).
The record reflects that following appellant’s sentencing, appellant filed
a timely post-sentence motion on October 8, 2016. This motion was denied
by operation of law on February 8, 2017. See Pa.R.Crim.P. 720(B)(3)(a). On
February 18, 2017, appellant filed a timely notice of appeal. The trial court
ordered appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. The trial court
subsequently filed its Rule 1925(a) opinion.
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Appellant raises the following issue for our review:3
Whether the trial court erred in finding that the
Commonwealth produced sufficient evidence to prove
beyond a reasonable doubt that [a]ppellant
constructively possessed the marijuana and
marijuana paraphernalia found in the locked room in
the basement of a home in which multiple people lived
or were present at the time of the search[?]
Appellant’s brief at 4.
Appellant claims that the Commonwealth failed to present sufficient
evidence to establish constructive possession of the controlled substance –
marijuana – and of drug paraphernalia beyond a reasonable doubt to support
appellant’s convictions. (Id. at 10.) Specifically, appellant argues:
Notably, the room in the basement was locked and the
police never found the key. Had something connected
[appellant] to that basement room such as the key or
mail which was definitively addressed to him, the
evidence may have been sufficient. But here, the
Commonwealth showed only that he shared a house
which was found to have marijuana and other grow
equipment in the basement. The Commonwealth did
not even establish that [appellant] had access to the
marijuana because the room was locked and he did
not have the key.
Id. at 13 (citation omitted).
3 We note that after filing the Rule 1925(b) statement, appellant’s counsel,
Mark A. Hinrichs, Esq., accepted new employment and on October 27, 2017,
filed a petition to withdraw with this court. In a per curiam order dated
December 5, 2017, this court granted counsel’s request to withdraw and
directed the trial court to determine appellant’s eligibility for court-appointed
counsel and appoint new counsel, if required. On August 16, 2018, Zak
Goldstein, Esq., was appointed new counsel and subsequently filed a brief on
behalf of appellant.
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Our standard and scope of review for a sufficiency of the evidence claim
is well settled.
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 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 proof or 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 the 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. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)
(citation omitted).
“‘[I]n narcotics possession cases, the Commonwealth may meet its
burden by showing actual, constructive, or joint constructive possession of the
contraband.’” Commonwealth v. Roberts, 133 A.3d 759, 767 (Pa.Super.
2016), appeal denied, 145 A.3d 725 (Pa. 2016); quoting Commonwealth
v. Vargas, 108 A.3d 858, 868 (Pa.Super. 2014) (en banc), appeal denied,
121 A.3d 496 (Pa. 2015). When the contraband is not found on the appellant,
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the Commonwealth must establish that appellant had constructive possession
of the seized items to support the conviction. See Commonwealth v.
Brown, 48 A.3d 426, 430 (Pa.Super. 2012), appeal denied, 63 A.3d 1243(Pa. 2013).
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.
Roberts, 133 A.3d at 767-768, quoting Brown, 48 A.2d at 430.
Here, appellant argues that the Commonwealth failed to show that the
letter and the box label were “definitely addressed to” appellant. (Appellant’s
brief at 13.) It is, however, the totality of the circumstances that the
trier-of-fact must consider to determine if constructive possession existed.
See Roberts, 133 A.3d at 768.
The trial court found that “[t]he presence of [appellant’s] mail in the
room make[s] it likely that [appellant] had access to [the room] and had the
power to exercise control over its contents.” (Trial court opinion, 8/16/17
at 6.) The trial transcript reflects that the narcotics detective testified that
appellant’s name was on both the letter and the label on the box containing
the marijuana and drug paraphernalia and the items were found in the locked
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room in the basement of appellant’s house, as reflected on the police property
receipts. (Notes of testimony, 7/18/16 at 19-20, 27; see also
Commonwealth Exhibits C-2 and C-3.) Appellant testified that he was aware
of the room in his basement and that the room existed prior to the other
residents moving into the house. (Notes of testimony, 7/18/16 at 38-39,
42-43.) Appellant claimed, however, that he did not know the contents of the
room but offered no explanation as to how or why his mail was found in the
room. (Id. at 38-46.) Additionally, appellant was responsible for the electric
bill, and the cost of the power to operate the large high-powered lamps used
in the “grow house” would have been reflected in those bills. (Id. at 41-42.)
Based upon the totality of the circumstances, it was more likely than not
that appellant constructively possessed the marijuana and drug paraphernalia
found in the locked room in his basement. See Commonwealth v. Walker,
874 A.2d 667 (Pa.Super. 2005) (holding that the presence of mail with
defendant’s name on it in a room that also contained drugs and drug
paraphernalia established constructive possession). Therefore, in viewing all
of the evidence and the inferences drawn from that evidence in the light most
favorable to the Commonwealth, as the verdict winner, there was sufficient
evidence for the trial court, as trier-of-fact, to find that appellant possessed
marijuana with the intent to deliver and that he possessed drug paraphernalia.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/19
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