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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JASON MARASCO
Appellant No. 1535 WDA 2013
Appeal from the Judgment of Sentence of August 29, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0001939-2013
BEFORE: BENDER, P.J.E., WECHT, J., and PLATT, J.*
MEMORANDUM BY WECHT, J.: FILED AUGUST 13, 2014
Jason Marasco appeals his August 29, 2013 judgment of sentence for
contraband. We affirm.
The evidence, viewed in the light most favorable to the
Commonwealth, supports the following factual account:
[O]n November 23, [2012], [Marasco] was a resident of cell 220
on pod 4D in the Allegheny County Jail. On that day,
Corrections Officer Eric Gamboa observed five (5) to ten (10)
inmates going into [Marasco’s] cell, remaining in the cell for
three (3) to five (5) seconds and then leaving. Officer Gamboa
called [Marasco] out of his cell and reminded him that other
inmates were not permitted in his cell. [Marasco] stated he
understood. After approximately five (5) minutes, the parade of
inmates return[ed] to their respective cells to be counted, and
he and his partner, Officer Charles Claypoole went to [Marasco’s]
cell. During the search, Officer Claypoole discovered a sock
under [Marasco’s] bunk[,] which contained a baseball-sized
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*
Retired Senior Judge assigned to the Superior Court.
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amount of powder, which was later determined to be the drug
clonazepam.
Trial Court Opinion (“T.C.O.”), 1/13/2014, at 3.
Based upon this evidence, the trial court, following a bench trial, found
Marasco guilty of Contraband, which is defined, in relevant part, as follows:
(a) Controlled substance contraband to confined
persons prohibited.—A person commits a felony of the second
degree if he sells, gives, transmits or furnishes to any convict in
a prison, . . . or gives away in or brings into any prison . . . for
the use and benefit of the prisoners or inmates, or puts in any
place where it may be secured by a convict of a prison . . . any
controlled substance included in Schedules I through V of the act
of April 14, 1972 (P.L. 233, No. 64), known as The Controlled
Substance, Drug, Device and Cosmetic Act, . . . without a written
permit signed by the physician of such institution . . . .
18 Pa.C.S. § 5123(a). Pursuant to subsection 5123(a.1), an individual
convicted of a violation of subsection 5123(a) is subject to a mandatory
minimum sentence of at least two years of total confinement. Accordingly,
the trial court sentenced Marasco to the mandatory minimum sentence of
two to four years’ incarceration.
Marasco filed no post-sentence motions, but filed the instant appeal.
On December 6, 2013, the trial court directed Marasco to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On December 17, 2013, Marasco timely complied. Thereafter, the trial court
entered the above-excerpted Rule 1925(a) opinion.
Before this Court, Marasco raises the following issue:
The evidence was not sufficient to establish each element of
possession of contraband beyond a reasonable doubt because
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the Commonwealth failed to prove that [Marasco] was aware of
the contraband or would have had any opportunity to possess it
when he was only in the cell for a short time, others had access
to the cell, and he was strip searched before being placed in the
cell[,] whereas the cell was not searched before placing
[Marasco] in it.
Brief for Marasco at 9 (capitalization modified).
Our review of a challenge to the sufficiency of the evidence is
governed by the following standard:
We must determine whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom, when viewed in [the]
light most favorable to the Commonwealth as verdict winner,
support the conviction beyond a reasonable doubt. Where there
is sufficient evidence to enable the trier of fact to find [that]
every element of the crime has been established beyond a
reasonable doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute
our judgment for that of the fact-finder. The Commonwealth’s
burden may be met by wholly circumstantial evidence and any
doubt about the defendant’s guilt is to be resolved by the fact
finder unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
combined circumstances.
Commonwealth v. Mobley, 14 A.3d 887, 889-90 (Pa. Super. 2010)
(quoting Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa. Super. 2010));
see Commonwealth v. Auker, 681 A.2d 1305, 1314 (Pa. 1996).
In substance, Marasco’s challenge pertains only to the possession
element of contraband, leaving unchallenged the adequacy of the
Commonwealth’s proof of the other elements. Marasco correctly argues
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that, because the contraband was not found on his person, it was incumbent
upon the Commonwealth to prove beyond a reasonable doubt that Marasco
constructively possessed the controlled substance. Brief for Marasco at 9-10
(citing Commonwealth v. Kirkland, 831 A.2d 607, 611
(Pa. Super. 2003)). Marasco acknowledges our case law establishing that
“conscious dominion” may be established circumstantially when the item in
question is found in a place typically accessible only to the accused, but
notes that such an inference is not appropriate when the item in question is
found in a location to which others have a similar degree of access to the
accused. Id. at 11-12; see Commonwealth v. Stamps, 427 A.2d 141,
145 (Pa. 1981) (“We recognize that the fact of possession loses all
persuasiveness if persons other than the accused had equal access to the
place in which the property was discovered,” but “exclusive control over the
contents of a residence may properly be inferred from a showing that the
accused is the only occupant or tenant of that residence.”).
In applying these principles to the instant case, Marasco relies heavily
upon the assertions embedded in his statement of the issues: He contends
that he had been moved into the cell where the contraband was discovered
shortly before the correctional officers’ search; that he was strip searched
before he was moved into that cell; that the cell, itself, was not searched
before the move; and that numerous other inmates, including a cell mate,
had equal or superior access to the location where the contraband was
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found. Id. at 11-12.1 Thus, he contends, the Commonwealth failed to
prove beyond a reasonable doubt each element of the crime of contraband.
The trial court rejected this argument. First, it noted that, “[a]lthough
numerous inmates had been in and out of [Marasco’s] cell prior to the
search, there is only one pocket in the jail uniforms – a chest pocket in the
shirt – and none of those inmates were seen with a baseball-sized item in
[his] chest pocket.” T.C.O. at 3. The court rejected the balance of
Marasco’s argument as follows:
[Marasco] presented no evidence in support of [the] argument
[that he had recently been moved into the cell] in the form of jail
logs, etc., and therefore [the trial court could not] consider it.
Rather, the drugs were found under [Marasco’s] mattress, in an
area not accessible to the lower-bunk inmate, and in an area
within [Marasco’s] control.
Id.
We have described the nature of “constructive” possession as follows:
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.
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1
In effect, Marasco attempts to exploit the very evidence that the court
found damning – the numerous brief visits of other inmates – as inculpating
evidence, by insisting that any of these visitors might, in fact, have
deposited or otherwise exercised dominion over the contraband found
hidden in Marasco’s bunk without his knowledge or complicity.
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To aid application, we have held that constructive possession
may be established by the totality of the circumstances.
Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (quoting
Commonwealth v. Thompson, 779 A.2d 1195, 1199 (Pa. Super. 2001))
(internal quotation marks omitted). While “[i]ndividually, the circumstances
may not be decisive[,] . . . in combination, they may justify an inference
that the accused had both the power to control and the intent to exercise
that control.” Commonwealth v. DeCampli, 364 A.2d 454, 457
(Pa. Super. 1976).
Marasco, indeed, testified that he had been moved recently and that
he had been strip searched in advance of that move. He further testified
that the cell was not searched before he was placed in it. However, the trial
court, as fact-finder, was free to disregard Marasco’s testimony as
incredible, especially in the absence of corroborating evidence. However,
the burden of proof beyond a reasonable doubt rests with the
Commonwealth. Thus, it was incumbent on the Commonwealth to establish
constructive possession beyond a reasonable doubt. As noted above, the
evidence at trial established that Marasco occupied a cell that was visited
ever so briefly by five to ten other inmates. After correctional officers
observed this pattern, they searched the cell, discovering a baseball-sized
bag of contraband lodged in Marasco’s mattress.
In light of the above evidence, a fact-finder reasonably could have
concluded that Marasco had the “power to control the contraband and the
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intent to exercise that control.” Not only was the contraband found in
Marasco’s bunk, over which a fact-finder could infer Marasco’s effectively
exclusive dominion, but the “parade” of visitors to his cell entered the cell
while Marasco was there, all but excluding any prospect that any one of
them deposited the contraband in Marasco’s bunk without his knowledge and
assent. That evidence was sufficient to satisfy the standard we have set
forth for constructive possession, and, therefore, sufficient to establish
beyond a reasonable doubt that Marasco committed the crime of
contraband.
The cases cited by Marasco are not to the contrary; indeed, we find
support for affirmance in the very same cases. In DeCampli, for example,
we reversed the defendant’s judgment of sentence not due to the
inadequacy of the proof of constructive possession but due to certain
prejudicial testimony presented by the Commonwealth. See 364 A.2d at
457-59. With respect to the constructive possession at issue in that case,
we found circumstantial evidence that the defendant was the sole occupant
of the dwelling sufficient to sustain the conviction notwithstanding that
visitors to the home could have brought the contraband, unbeknownst to the
defendant. Id. at 456-57. Our conclusion found additional support in the
fact that the contraband was found variously in a jewelry box and an
envelope on the defendant’s dresser in his bedroom. Id. at 457.
In Thompson, an inmate was found to be in constructive possession
of a bag of contraband. The defendant was observed in his cell with two
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other inmates; all three were seen to have packets containing a “brown,
grass substance.” A larger bag was observed on the inmate’s bunk.
Correctional officers secured the cell, and, in the search that followed, found
a large bag containing marijuana wedged in a table near the inmate’s bunk,
which we characterized as a “location to which [the inmate], in the future,
would have private access.” 428 A.2d at 225. While the initial observations
arguably were more incriminating than the initial observations in this case,
our conclusions regarding the location of, and present and future access to,
the contraband nonetheless were our primary basis for affirmance. Those
observations apply equally to this case, in which the contraband was found
secreted in Marasco’s bunk, to which he later would have access superior to
any other individual. The location of the contraband in Marasco’s cell,
viewed in tandem with the brief visits of five to ten other inmates in rapid
succession, constituted sufficient evidence to establish constructive
possession of the contraband.
We conclude by noting that Marasco arguably does not directly
challenge the adequacy of the Commonwealth’s evidence under the
applicable standard to establish an evidentiary basis for his conviction.
Instead, Marasco’s argument largely is based upon the proposition that the
trial court wrongfully disregarded his self-serving testimony in favor of the
Commonwealth’s circumstantial evidence. Thus, Marasco arguably presents
a challenge to the trial court’s weighing of the evidence rather than the
evidence’s sufficiency. No such challenge will lie in this case: We may
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consider a challenge to the weight of the evidence only if the appellant first
has challenged it in an oral or written post-trial motion that is presented to
the trial court. See Pa.R.Crim.P. 607(A); Commonwealth v. Mack, 850
A.2d 690, 693-94 (Pa. Super. 2004). Marasco made no such motion.
Consequently, any intended challenge to the weight of the evidence is
waived.
The Commonwealth’s evidence in this case was not “so weak and
inconclusive that, as a matter of law, no probability of fact [could] be drawn
from the combined circumstances.” See Mobley, supra. Thus, we find that
the Commonwealth presented sufficient evidence to support a finding
beyond a reasonable doubt of each element of the crime of contraband,
including the circumstantial evidence of constructive possession.
Consequently, Marasco’s challenge to the sufficiency of the evidence fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/2014
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