Com. v. Johnson, M.

J-S33020-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MUTATIE JOHNSON :
:
Appellant : No. 598 EDA 2022
Appeal from the Judgment of Sentence Entered January 5, 2022
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002682-2020
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY KING, J.: FILED APRIL 06, 2023
Appellant, Mutatie Johnson, appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas, following his jury
trial convictions for possession of a controlled substance, possession of a
controlled substance with intent to deliver (“PWID”), possession of drug
paraphernalia, carrying a firearm without a license, and persons not to possess
a firearm.1 We affirm.
The trial court set forth the relevant facts and procedural history of this
case as follows:
On May 29, 2019, Mr. Steve McWilliams, a private
individual, called 911 to report a domestic dispute at 831
Rose Avenue in Morton, Delaware County. [Mr. McWilliams
testified that a black male drove into the driveway in a
____________________________________________
1 35 P.S. § 780-113(a)(16), (30), (32); 18 Pa.C.S.A. §§ 6106(a)(1),
6105(a)(1), respectively.
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vehicle, hit the horn for several minutes and went into the
house. Mr. McWilliams heard a loud bang, similar to a
gunshot, coming from the house and saw the driver walk
back to the vehicle shortly thereafter.]
Officer Joseph Spence … was dispatched to 831 Rose Avenue
in Morton, Delaware County, for the report of a domestic
dispute and possible shot fired. Upon arrival, he observed
a black car in the driveway that was running. He also
observed [Appellant] sitting in the front passenger seat of
the car. Officer Spence made an in-court identification of
[Appellant]. [Appellant] was looking back in Officer
Spence’s direction. When [Appellant] saw Officer Spence,
he started making movements towards the floor of the car
in between the seat and the passenger side door. As Officer
Spence approached the vehicle the window was down, and
he could smell an odor of raw marijuana emanating from
inside the vehicle. At that time, [Appellant]’s wife came out
of the house. She became extremely irate. She was yelling
and screaming at Officer Spence. Officer Spence was trying
to separate them to take control of the scene and
investigate the incident. Officer Spence observed
[Appellant]’s wife had a swollen left eye, indicating that she
had just been in a physical altercation.
Officer Spence explained to them why the police were there
and asked if there was a gun in the car or house. Both were
uncooperative and didn’t want to answer any questions.
[Appellant]’s wife continued to scream and tried to get to
the car. At that point, she was restrained. Officer Spence
then walked to the car and looked down into the open
window. On the floor of the car, he saw four glassine Ziploc
bags with a white powdery substance that he believed to be
cocaine. During the commotion of trying to restrain
[Appellant]’s wife and with neighbors coming out of their
houses to see what was going on, [Appellant ran away from
the scene. Appellant was apprehended ten months later in
March 2020].
… Officer Spence then searched the vehicle. After he
initially saw the four bags of cocaine in plain view, he
opened the door and saw a man’s Gucci watch in between
the seat and the door on the floor where the defendant was
sitting. Officer Spence also located a THC vape pen and a
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bag of suspected marijuana under the seat. He also found
two zipper pouch bags, one blue and one red. In the blue
zipper pouch there was suspected marijuana with a rolled
up $5 bill. In the red zipper pouch there was a chunky white
substance. Officer Spence also found dozens of unused
bags underneath the seat. In the cupholder, directly next
to where [Appellant] was sitting, Officer Spence located an
iPhone and the keys to the vehicle. Officer Spence used the
key to unlock the glove compartment. In the glove
compartment he located a Smith & Wesson handgun with
10 live rounds of ammunition in the clip and one round in
the chamber.
[Appellant]’s certified driving record was admitted into
evidence which listed his address as 813 5th Avenue,
Altoona, Pennsylvania. [Appellant] did not have a license to
carry a firearm. A certified record from the Pennsylvania
State Police stating that [Appellant] does not have a license
to carry a firearm was admitted into evidence. The
registered owner of the firearm that was recovered from the
car was a man who lived in Altoona, Pennsylvania.
Detective David Taylor testified the gun belonged to Steven
Patrick O'Connor, 2028 12th Avenue in Altoona,
Pennsylvania and that the owner did not give anyone else
permission to possess it.
* * *
Detective Michael Skahill is currently employed with the
Delaware County District Attorney’s Office in the Criminal
Investigation Division assigned to the Narcotics Unit. He
was qualified as an expert in the field of illegal drugs and
drug distribution. He opined that the drugs found in the
vehicle near [Appellant] were possessed with the intent to
deliver.
Detective Louis Grandizio is employed by the Delaware
County Criminal Investigation Division as a firearms
examiner. He was qualified as an expert in the field of
firearms and ballistics. He examined the firearm recovered
in this case and opined the firearm was fully functional and
capable of firing.
(Trial Court Opinion, filed 4/21/22, at 1-5).
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On July 28, 2021, a jury convicted Appellant of possession of a
controlled substance, PWID, possession of drug paraphernalia, and carrying a
firearm without a license. In a bifurcated trial, the trial court found Appellant
guilty of persons not to possess a firearm. On January 5, 2022, the court
sentenced Appellant to an aggregate of eight to twenty years of incarceration,
followed by two years of probation. Appellant filed a timely post-sentence
motion on January 18, 2022, which the court denied on January 31, 2022.
Appellant filed a timely notice of appeal on February 25, 2022. On March 2,
2022, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, and Appellant complied on March
16, 2022.
Appellant raises the following issue for our review:
Whether the evidence introduced at trial was insufficient as
a matter of law to convict [Appellant] of the charges of
possession of a controlled substance, [PWID], possession of
drug paraphernalia, and firearms not to be carried without
a license, persons not to possess firearms, in which the
firearm and controlled substances were found, did not
belong to Appellant, the firearm was found inside a locked
glovebox within the vehicle and no evidence was introduced
to demonstrate that Appellant placed the firearm in the
glovebox or that he was even aware of its presence; where
the heroin and methamphetamine were not found on
Appellant’s person, and evidence failed to demonstrate that
Appellant knew that said controlled substances were within
the vehicle, or that Appellant exercised conscious dominion
or control over the said drugs, necessary to find constructive
possession on the part of Appellant.
(Appellant’s Brief at 4).
On appeal, Appellant asserts that police did not recover the drugs,
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paraphernalia, or firearm from Appellant’s person, and the Commonwealth
presented no evidence to demonstrate that Appellant owned the vehicle where
they were discovered. Appellant contends that Ms. Jackie Grueler, who was
identified by Officer Spence as Appellant’s wife, had equal, if not greater,
access to the vehicle and the items located inside. Appellant argues that his
mere presence in the passenger seat of the vehicle is insufficient to
demonstrate that Appellant had a connection to the drugs that were found
under the seat. Additionally, Appellant asserts that the firearm was found in
the locked glovebox, and the Commonwealth presented no evidence to
demonstrate that Appellant accessed the glovebox or its contents. Appellant
concludes that the Commonwealth failed to present sufficient evidence to
demonstrate that he constructively possessed the drugs or firearm found in
the vehicle, and this Court should vacate the judgment of sentence. We
disagree.
Our standard of review for sufficiency claims is as follows:
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 proving every
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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. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal
denied, 641 Pa. 63, 165 A.3d 895 (2017) (quoting Commonwealth v.
Hansley, 24 A.3d 410, 416 (Pa.Super. 2011)).
The Controlled Substance, Drug, Device and Cosmetic Act defines the
offenses of possession of a controlled substance, PWID, and possession of
drug paraphernalia as follows:
§ 780-113. Prohibited acts; penalties
(a) The following acts and the causing thereof within
the Commonwealth are hereby prohibited:
* * *
(16) Knowingly or intentionally possessing a
controlled or counterfeit substance by a person not
registered under this act, or a practitioner not registered
or licensed by the appropriate State board, unless the
substance was obtained directly from, or pursuant to, a
valid prescription order or order of a practitioner, or
except as otherwise authorized by this act.
* * *
(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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* * *
(32) The use of, or possession with intent to use,
drug paraphernalia for the purpose of planting,
propagating, cultivating, growing, harvesting,
manufacturing, compounding, converting, producing,
processing, preparing, testing, analyzing, packing,
repacking, storing, containing, concealing, injecting,
ingesting, inhaling or otherwise introducing into the
human body a controlled substance in violation of this
act.
35 P.S. § 780-113(a)(16), (30), (32).
The Uniform Firearms Act provides, in relevant part:
§ 6105. Persons not to possess, use, manufacture,
control, sell or transfer firearms
(a) Offense defined.—
(1) A person who has been convicted of an
offense enumerated in subsection (b), within or without
this Commonwealth, regardless of the length of sentence
or whose conduct meets the criteria in subsection (c)
shall not possess, use, control, sell, transfer or
manufacture or obtain a license to possess, use, control,
sell, transfer or manufacture a firearm in this
Commonwealth.
18 Pa.C.S.A. § 6105(a)(1).
§ 6106. Firearms not to be carried without a license
(a) Offense defined.—
(1) Except as provided in paragraph (2), any
person who carries a firearm in any vehicle or any person
who carries a firearm concealed on or about his person,
except in his place of abode or fixed place of business,
without a valid and lawfully issued license under this
chapter commits a felony of the third degree.
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18 Pa.C.S.A. § 6106(a)(1).
“When contraband is not found on the defendant’s person, the
Commonwealth must establish constructive possession….” Commonwealth
v. Jones, 874 A.2d 108, 121 (Pa.Super. 2005). “Constructive possession is
the ability to exercise conscious control or dominion over the illegal substance
and the intent to exercise that control.” Id.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, 655 Pa. 601, 606, 218 A.3d 1206, 1209 (2019)
(internal citations omitted). Further, “knowledge of the existence and location
of the contraband is a necessary prerequisite to proving the defendant’s intent
to control, and, thus, his constructive possession.” Commonwealth v.
Parrish, 191 A.3d 31, 37 (Pa.Super. 2018), appeal denied, 651 Pa. 10, 202
A.3d 42 (2019).
Instantly, the trial court determined that the Commonwealth presented
sufficient evidence for the jury to find that Appellant constructively possessed
the drugs, paraphernalia, and firearm recovered from the vehicle. Appellant
was the sole occupant in the car when Officer Spence approached the vehicle.
Additionally, Mr. McWilliams testified that he saw a black male operating the
vehicle and sounding the horn for several minutes prior to Officer Spence’s
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arrival. Regarding the recovered narcotics and paraphernalia, Officer Spence
testified that when he approached the car, he saw Appellant making
movements toward the floor of the car. Officer Spence stated that some of
the recovered drugs were in plain view and the remaining drugs and
paraphernalia were found directly under where Appellant was sitting and
making movement towards. Taken in the light most favorable to the
Commonwealth as the verdict-winner, we agree with the trial court that the
evidence was sufficient for the jury to find that Appellant constructively
possessed the drugs and paraphernalia. See Tucker, supra. See also
Commonwealth v. Cruz Ortega, 539 A.2d 849 (Pa.Super. 1988) (holding
evidence was sufficient to establish constructive possession when appellant,
who was in passenger’s side seat of a car that he did not own, was observed
leaning over in his seat and drugs were found under passenger’s side seat of
car).
Regarding the firearm, the police recovered the handgun from a locked
glovebox located directly in front of the seat where Appellant was sitting. The
keys to the glovebox were found in the center console cup-holder which was
within reach of where Appellant was seated. Beyond Appellant’s proximity
and ability to access the gun, the jury also heard testimony from Mr.
McWilliams about the events that prompted him to call the police. Mr.
McWilliams testified that he saw the male driver of the vehicle enter the house
and heard a loud bang resembling a gunshot coming from the residence. Mr.
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McWilliams then saw the male leave the house, loudly arguing with a female
resident of the house, and get into the passenger seat of the car, where he
remained until Officer Spence arrived. Taking these facts together in the light
most favorable to the Commonwealth as the verdict-winner, the evidence was
sufficient for the fact-finder to decide that Appellant constructively possessed
the gun to sustain his firearms convictions. See Tucker, supra. Accordingly,
we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2023
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