J-S57004-14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRYAN JOHNS, :
:
Appellant : No. 1470 EDA 2013
Appeal from the Judgment of Sentence April 25, 2013,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0004774-2011
BEFORE: DONOHUE, MUNDY and STABILE, JJ.
MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 06, 2014
sentence entered by the Philadelphia County Court of Common Pleas
following his convictions of possession of a controlled substance with intent
to deliver and possession of drug paraphernalia.1 We affirm.
The testimony adduced at trial reveals the following relevant facts. At
approximately 9:00 p.m. on February 10, 2011, Officer Jeffrey Middleton, a
Enforcement Team, set up surveillance in the 1300 block of East Price
Street. N.T., 2/26/13, at 32, 35. He was in plain clothes and on foot,
approximately 50 to 60 feet from the house located at 1351 East Price
Street. Id. at 35. In the one hour and twenty minutes he conducted
1
35 P.S. § 780-113(a)(30), (32).
J-S57004-14
surveillance, he observed on three occasions people come onto the porch at
1351 East Price Street, engage in a brief conversation with Johns and hand
Johns an unknown amount of money. Id. at 41, 49-50, 52. On all three
occasions, Johns thereafter walked inside the house, returned two-to-three
eton
could not see from a distance. Id. at 41-43, 49-50, 52. Officer Middleton
radioed his backup officers each time the purchasers left the porch of 1351
East Price Street, and Officer Jennifer Skrocki effectuated the arrest of the
second purchaser, Gal Id. at 44-45, 50, 52-53,
101. Officer Skrocki recovered two clear vials with clear lids containing
crack cocaine from Whitaker. Id. at 100.
After the third transaction, Johns left the porch of 1351 East Price
Street. Id. at 54. Officer Middleton radioed to his backup officers to stop
Johns, which was done by Officer Seante Warren. Id. at 55. He recovered
at 11. No narcotics were recovered from Johns. N.T., 2/26/11, at 89.
When police filled out the biographical report, Johns provided 1351 East
Price Street as his address. Id. at 104.
that no one was inside. Id. at 56. Believing there would be evidence and
contraband inside, the police then obtained a search warrant for 1351 East
Price Street. Id. at 57-58. From a bedroom on the third floor of the house
-2-
J-S57004-14
Pennsylvania identification card; a scale; eight clear baggies with an apple
logo; numerous new, unused red-tinted baggies; a box of sandwich bags; a
clear bag with new, unused clear vials with clear lids; and a gray box with
two sandwich bags, one containing 103 clear glass vials with plastic lids that
were filled with crack cocaine and the other containing 26 red-tinted packets
filled with marijuana. Id. at 59-60. According to Officer Middleton, the vials
containing the narcotics recovered from Whitaker were identical to the vials
recovered from the search of the house. Id. at 61.
and stated that Johns did not live at 1351 East Price Street in February of
2011. N.T., 2/27/13, at 94. He testified that he returned home from a
meeting at approximately 8:15 p.m., at which time Johns was helping his
grandmother unload groceries. Id. at 95-96. According to Johns Sr., no
more than six minutes later, the police came and placed him and other
friends and family members who were at the house in handcuffs. Id. at 97-
98. He did not observe Johns selling drugs. Id. at 100. Johns Sr. was
unaware that there were drugs in a third-floor bedroom in his house. Id. at
102. He testified that there were two bedrooms located on the third floor of
needed a place to stay. Id.
-3-
J-S57004-14
house sometimes, Johns Sr. testified that Johns never slept on the third
floor. Id. at 112.
After two days of testimony, the jury convicted Johns of the
aforementioned offenses. On April 25, 2013, the trial court sentenced Johns
to two to four years of incarceration followed by six years of probation.
Johns did not file any post-sentence motions. He filed a timely notice of
appeal on May 23, 2013, followed by a court-ordered concise statement of
errors complained of on appeal. He raises two issues for our review:
1. Whether the evidence was sufficient to support a
conviction for possession with intent to deliver [a]
controlled substance and related offenses?
2. Whether [the] verdict was against the weight of the
evidence?
Whether sufficient evidence exists to support the verdict is a question of
law; our standard of review is de novo
Commonwealth v. Murray, 83 A.3d 137, 151 (Pa. 2013). We review the
evidence in the light most favorable to the verdict winner to determine
whether there is sufficient evidence to allow the jury to find every element of
a crime beyond a reasonable doubt. Commonwealth v. Cahill, 95 A.3d
298, 300 (Pa. Super. 2014).
In applying the above test, we may not weigh the
evidence and substitute our judgment for the fact-
-4-
J-S57004-14
finder. In addition, we note that the facts and
circumstances established by the Commonwealth
need not preclude every possibility of innocence. Any
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 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 finder 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.
Id. (citation omitted).
Johns asserts that the evidence presented was insufficient to prove
at
9-12. The trial court found that the Commonwealth presented adequate
evidence that Johns constructively possessed the contraband, warranting his
convictions. Trial Court Opinion, 11/21/13, at 7-8.
The trial court is correct in finding that because Johns was not in
actual physical possession of the drugs seized from the residence, the
Commonwealth had to prove constructive possession. Commonwealth v.
Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013), appeal denied, 78 A.3d 1090
(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
-5-
J-S57004-14
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.
Id. at 820-21 (citation omitted).
The evidence presented reveals that police observed Johns selling
drugs from the porch of 1351 East Price Street. N.T., 2/26/13, at 41-43,
49-50, 52. Police recovered the drugs Johns sold to Whitaker, which were
packaged identically to drugs found on the third floor of 1351 East Price
Street. Id. at 61, 100. In a drawer located in the same bedroom, police
tification card and a piece of mail bearing
his name. Id. at 59-60. Although the identification card did not list 1351
there. Id. at 104. This evidence sufficiently proves that Johns
constructively possessed the drugs in question. See Commonwealth v.
Walker, 874 A.2d 667, 678 (Pa. Super. 2005) (constructive possession of
drugs found in a basement office where the defendant was present at the
home when police conducted the search; the defendant told police he lived
Johns states that it is his belief that police planted the Pennsylvania
identification card and mail bearing his name in the third floor bedroom. He
-6-
J-S57004-14
asserts that this belief is supported by the fact that the police included
Johns supposedly did not have his identification card on him, and the fact
that the police did not take any photographs of the mail allegedly found on
-11. We disagree. First, viewing the
evidence in the light most favorable to the Commonwealth, as our standard
of review requires, the record does not support a finding that the police
planted the items. Second, this challenge implicates the weight of the
evidence, not its sufficiency, and thus entitles him to no relief on his
challenge to the sufficiency of the evidence. As the evidence of record
supports the verdict
As his second issue on appeal, Johns asserts that the weight of the
-13. This issue
is waived, as Johns failed to raise it either at sentencing or in a post-
sentence motion. Pa.R.Crim.P. 607(A); Commonwealth v. Thompson,
93 A.3d 478, 490 (Pa. Super. 2014).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2014
-7-