Com. v. Brown, C.

J-S01011-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CAITLYN N. BROWN : No. 798 WDA 2022
Appeal from the Order Entered June 15, 2022
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0001104-2020
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and COLINS, J.*
CONCURRING/DISSENTING STATEMENT BY COLINS, J.:
FILED: April 28, 2023
I agree with the learned majority’s conclusion that the Commonwealth
waived its appellate issue by failing to file a concise statement of errors
complained of on appeal. Therefore, I concur in the affirmance of the trial
court’s dismissal of the drug delivery resulting in death charge and the partial
dismissal of the possession with intent to deliver a controlled substance
(“PWID”) and conspiracy to commit PWID charges.
However, I do not agree with the majority’s analysis on the merits of
the Commonwealth’s appeal. The evidence before the trial court did not
support an inference that the victim had constructive possession of the heroin
at the moment of purchase, which occurred outside the victim’s presence and
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S01011-23
in an area as to which he had no access or control. See Commonwealth v.
Rojas-Rolon, 256 A.3d 432, 438 (Pa. Super. 2021) (joint constructive
possession “may be found in one or more actors where the item in issue is in
an area of joint control and equal access”) (quoting Commonwealth v.
Johnson, 26 A.3d 1078, 1094 (Pa. 2011)). Furthermore, the evidence
established a prima facie case that Appellee delivered the drugs to the victim,
based on her actual possession of the heroin which she physically conveyed
to the victim. See Commonwealth v. Ellison, 213 A.3d 312, 319 (Pa.
Super. 2019) (under PWID statute, delivery occurs where the defendant
“physically conveys drugs to another person” regardless of whether an
exchange of money takes place; “all that is necessary is that the transfer be
between two people”) (citations omitted); see also 18 Pa.C.S. § 2506(a)
(violation of PWID statute satisfies “delivery” element of drug delivery
resulting in death charge).
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