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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JAMES REID, :
:
Appellant : No. 977 EDA 2013
Appeal from the Judgment of Sentence Entered March 27, 2013,
In the Court of Common Pleas of Philadelphia County,
Criminal Division, at No. CP-51-CR-0006081-2012.
BEFORE: FORD ELLIOTT, P.J.E., BOWES and SHOGAN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 25, 2014
Appellant, James Reid, appeals from the judgment of sentence entered
March 27, 2013, following his conviction of one misdemeanor count of
possession of a controlled substance. We are constrained to reverse.
The trial court summarized the facts of the case as follows:
At the trial for Appellant, Police Officer Stephen Ratka
testified that on August 4, 2011, at approximately 10:50 p.m.,
his tour of duty took him to the area of 1700 Ridge Avenue in
the city and county of Philadelphia. Officer Ratka testified that
he and his partner Officer Long, who were assigned to the
Narcotics Strike Force, went to the 7900 block of Ridge Avenue
to set up surveillance for illegal sales of narcotics. At that time,
Officer Ratka stated that he observed the Appellant, wearing
long jeans and a black t-shirt with some sort of white design on
the front, standing inside of the Chinese take-out store at the
corner of Ridge, Cambridge, and 18th where they all meet. The
entire inside of the store was in the officer’s direct view as there
is a joint plate glass window that covers the whole side of the
store, approximately two feet off the ground and the rest is all
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glass maybe 10 to 12 feet wide. The inside of the store was well
lit by the street lights[1] and the officer was using binoculars with
nothing blocking his view. When Appellant was inside the store
he was approached by a black female, later identified as Lorraine
Harris, who was wearing red shorts and a white top. The
Appellant and Ms. Harris had a conversation inside the store and
then at approximately 10:53 p.m. they exited the store. Ms.
Harris came out first and stood in front of the store while
Appellant followed behind her. Officer Ratka testified at that
point he witnessed Appellant drop an object in front of Ms. Harris
and then walk slowly northbound up 18th Street. Officer Ratka
testified that he then witnessed Ms. Harris, a few seconds later,
bend down, pick up the object that Appellant dropped, and then
also walk northbound up 18th Street while looking at the object
in her right hand. Officer Ratka testified that he believed he had
witnessed an illegal narcotics transaction between Appellant and
Ms. Harris.
After witnessing that transaction, Officer Ratka radioed a
description and direction of both Appellant and Ms. Harris to
backup officers. Officer Taven Washington testified that while
working as a backup officer to Officer Ratka under narcotics
surveillance on that same date and time, he received information
from Officer Ratka. Acting on that information, Officer
Washington stopped and investigated Ms. Lorraine Harris at the
1600 block of Ridge Street. As of result of the investigation,
Officer Washington testified that he recovered from Ms. Harris’
coin pocket of her shorts, one clear Ziploc packet containing
alleged crack cocaine. It was stipulated at trial that Officer
Taylor, another backup officer, had stopped Appellant on the
1600 block of Ridge Avenue and recovered $10 from him.
Trial Court Opinion, 10/9/13, at 2–3 (internal citations to record omitted).
1
There was no testimony that the inside of the store was “well lit by the
street lights.” The only evidence regarding street lights was Officer Ratka’s
testimony that “it was dark out, but there’s street lights directly on the
corner of the Chinese store where I was sitting.” N.T., 2/12/13, at 13
(emphasis added). While the officer never identified where his vehicle was
parked, it was obviously far enough away so that he was not observed while
utilizing binoculars. Id. at 9, 13.
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Police arrested both Appellant and Ms. Harris. Appellant was charged
with one misdemeanor count of possession of a controlled substance. On
May 16, 2012, Appellant proceeded to trial in the Philadelphia Municipal
Court, where he was found guilty and sentenced to twelve months of
probation. Appellant then filed a de novo appeal to the Philadelphia Court of
Common Pleas.
On February 12, 2013,2 Appellant proceeded to a bench trial and was
found guilty of possession of cocaine, a controlled substance. The trial court
sentenced Appellant on March 27, 2013, to three years of probation and
ordered drug treatment. On April 2, 2013, Appellant filed a timely notice of
appeal. Both the trial court and Appellant complied with Pa.R.A.P. 1925(b). 3
2
The notes of testimony for Appellant’s bench trial on February 12, 2013,
are incorrectly captioned, “Preliminary Hearing Volume I.” The cover page
and the captioned headings on each page also are incorrectly dated
“February 12, 2012.” The correct date is listed on page one as February 12,
2013. We also note with disapproval that Appellant failed to ensure the
completion of the record with the inclusion of the notes of testimony for that
hearing, compelling this Court and our Prothonotary to search for the trial
transcript. “It is the responsibility of an appellant to ensure that the record
certified on appeal is complete in the sense that it contains all of the
materials necessary for the reviewing court to perform its duty.”
Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa. Super. 2013). While we
could have found the issue waived, we have located the missing materials
and will address Appellant’s claim.
3
Appellant filed a timely Rule 1925(b) statement on April 30, 2013, and
concurrently filed a request to file a supplemental statement. The trial court
granted the request and directed counsel to file a supplemental statement
within twenty-one days of receipt of the notes of testimony. Appellant
timely filed a supplemental statement on September 27, 2013.
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Appellant raises the following single issue for our review:
Was not the evidence insufficient to find appellant James
Reid guilty of possession of a controlled substance because it
cannot be found beyond a reasonable doubt the packet of
cocaine recovered from Lorraine Harris was the item dropped
earlier by appellant Reid, especially in light of all the other
circumstances equally consistent with innocence?
Appellant’s Brief at 3.
In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial and all reasonable inferences drawn
therefrom, viewed in the light most favorable to the Commonwealth as
verdict winner, were sufficient to prove every element of the offense beyond
a reasonable doubt. Commonwealth v. Diamond, 83 A.3d 119 (Pa.
2013). It is within the province of the fact-finder to determine the weight to
be accorded to each witness’s testimony and to believe all, part, or none of
the evidence. Commonwealth v. James, 46 A.3d 776 (Pa. Super. 2012).
The Commonwealth may sustain its burden of proving every element of the
crime by means of wholly circumstantial evidence. Commonwealth v.
Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014). “[I]n applying the above
test, the entire record must be evaluated and all evidence actually received
must be considered.” Commonwealth v. Estepp, 17 A.3d 939, 944 (Pa.
Super. 2011). Moreover, as an appellate court, we may not re-weigh the
evidence and substitute our judgment for that of the fact-finder.
Commonwealth v. Ratsamy, 934 A.2d 1233 (Pa. 2007).
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Appellant was convicted of possession of a controlled substance
(cocaine) pursuant to 35 P.S. § 780-113(a)(16), which prohibits
“[k]nowingly or intentionally possessing a controlled or counterfeit substance
by a person not registered under this act . . . .” Possession of cocaine, a
schedule II drug, is proscribed. 35 P.S. § 780-104 (2)(i)(4).
Our Supreme Court has said repeatedly that “illegal possession
of narcotic drugs is a crime which ‘by its very nature is unique to
the individual. By definition, the possessor is the only person
who could commit the crime. Guilt by association . . . is
unacceptable.’” Accordingly, if the Commonwealth is unable to
prove the defendant’s actual possession of the drugs, it must
prove constructive possession. To prove constructive possession
the Commonwealth must prove that the defendant had both the
power to control the contraband and the intent to exercise that
control.
Commonwealth v. Luddy, 422 A.2d 601, 605 (Pa. Super. 1980) (internal
citations omitted).
Thus, possession may be proven by actual or constructive possession,
Commonwealth v. Johnson, 26 A.3d 1078, 1093–1094 (Pa. 2011). Since
there were no drugs found on Appellant’s person, the Commonwealth clearly
“could not show actual possession of the contraband.” Commonwealth v.
Mudrick, 507 A.2d 1212, 1213 (Pa. 1986). We have defined constructive
possession as conscious dominion. Johnson, 26 A.3d at 1094. “We
subsequently defined conscious dominion as the power to control the
contraband and the intent to exercise that control.” Commonwealth v.
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Brown, 48 A.3d 426, 430 (Pa. Super. 2012), appeal denied, 63 A.3d 1243
(Pa. 2013) (internal quotation marks and citation omitted).
Here, the trial court concluded that the evidence was sufficient,
holding as follows:
[T]he Court reasonably concluded that Appellant had the ability
and intent to exercise conscious control and dominion over the
contraband that was later recovered on Ms. Harris when only
Appellant had access to the same at the relevant time on the
evening in question. And based on the totality of the
circumstances, the Court found that the object containing the
contraband found on Ms. Harris was the object that Appellant
dropped and Ms. Harris immediately picked up outside the
Chinese store. Therefore, there was sufficient evidence to
convict Appellant of possession of a controlled substance.
Trial Court Opinion, 10/9/13, at 6. We disagree.
Appellant argues that his conviction “is premised on the trial court’s
incorrect belief” that the packet of crack cocaine found in Ms. Harris’s pocket
is the same item Appellant dropped in front of her. Appellant’s Brief at 11.
He maintains that such a conclusion is “[n]othing more than forced and
speculative assumptions about the chain of events . . . .” Id. Appellant
suggests that this case:
is not really one about constructive possession. It is, instead, a
case of permitting circumstances to connect two events without
an evidentiary basis to do so, merely because the possibility
exists that the events are related. . . . The court misapplied a
constructive possession theory not only because there was little
evidence supporting any theory of guilt, but more importantly,
by giving weight to undeveloped facts, especially in light of the
fact that the Commonwealth chose not to charge [Appellant]
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with delivery of a controlled substance (and never actually made
such an argument at trial)(N.T., at 17–20).
Appellant’s Brief at 13.
The Commonwealth counters that Appellant asks this Court to
“second-guess” the trial court’s evaluation of the evidence and to make
assumptions that are not supported by the testimony. It maintains that the
evidence “clearly supports the conclusion that an illegal narcotics transaction
occurred between Appellant and Ms. Harris.” Commonwealth’s Brief at 5.
We cannot agree that the Commonwealth proved each element of the
offense beyond a reasonable doubt. The record does not conclusively
establish that Appellant was in actual or constructive possession of a
controlled substance, based on the totality of the circumstances.
The record reveals that Officer Ratka, a member of the Narcotics
Strike Force, was conducting surveillance “for illegal sales of narcotics” on
the 79004 block of Ridge Avenue in Philadelphia. N.T., 2/12/13, at 9. There
was no testimony at trial regarding the extent of Officer Ratka’s experience
either as a police officer, in general, or the length of time he has been an
officer for the Philadelphia Police Department or a member of the Narcotics
4
The parties refer to the location as the 1700 block of Ridge Avenue
without acknowledging the discrepancy with the trial transcript; thus, we are
uncertain if it is merely a typographical error. The parties and the notes of
testimony are in agreement that the crime scene was located where
eighteenth, Cambridge and Ridge Streets “all sort of come together . . . .”
N.T., 2/12/13, at 9.
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Strike Force. Utilizing ten-by-fifty binoculars, he observed Appellant
standing inside a Chinese food take-out store. Id. at 9, 13. The store had a
“plate glass window that covers almost the whole side of the store,
approximately two feet up off the” ground and ten-to-twelve feet wide. Id.
at 12.
An African-American female “wearing red shorts and a white top,” who
was later identified as Lorraine Harris, approached Appellant in the store.
N.T., 2/12/13, at 9. After a short conversation, Ms. Harris left the store, and
stood outside in front of the store. Id. at 9–10. Appellant then exited the
store and “dropped an object in front of” Ms. Harris and “started to walk
slowly up 18th Street northbound.” Id. at 10. “Ms. Harris bent down,
picked the object up and turned and walked northbound also on 18 th Street
looking at it in her right hand until I lost sight of her . . . .” Id. at 10.
When Appellant and Ms. Harris were out of sight, the officer radioed a
description of Appellant and Ms. Harris and their location. N.T., 2/12/13, at
11. Philadelphia Police Officer Taven Washington of the Narcotics Strike
Force received this report and stopped Ms. Harris on the 1600 block of Ridge
Avenue. Id. at 15. Officer Washington found one clear Ziploc packet
containing seventy-one milligrams of crack cocaine in the coin pocket of Ms.
Harris’s shorts. Id. at 15–16. The parties stipulated that Appellant was
stopped on the 1600 Block of Ridge Avenue by Philadelphia Police Officer
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Wayne Taylor, who recovered ten dollars from Appellant’s person. Id. at 14.
Officer Ratka testified, “I believe it was an illegal narcotics transaction taking
place.” Id. at 11.
Based on this evidence, it was unreasonable for the trial court to
conclude that Appellant possessed the crack cocaine that was found on
Lorraine Harris. Moreover, it was not reasonable or prudent for Officer
Ratka to conclude that the item he observed Appellant drop was the same
item found in Ms. Harris’s pocket. Officer Ratka’s failure to testify that the
object dropped was similar or identical to the one he had observed in the
transaction prevents a reasonable inference that it was.
Commonwealth v. Thompson, 93 A.3d 478, 486 (Pa. Super. 2014),
presents pertinent reasoning to this issue and is also instructive regarding
Appellant’s claim assailing proof of possession herein.5 In that case, police
engaged in surveillance of a 7–Eleven after receiving complaints of
concerned citizens. During surveillance, police observed the appellant
approach a white SUV that appeared to be waiting for him and, after a brief
conversation, he received cash and began to count it. The appellant then
retrieved a plastic baggy from a hiding place next to a fence located nearby
and tossed it into the white SUV. The officer testified that he had twenty-
5
While the discussion in Thompson initially related to whether police
therein had probable cause to arrest the appellant, the sufficiency of the
evidence was in question, and the logic is pertinent to the sufficiency of facts
leading to a conclusion that a drug transaction is occurring, herein.
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three years of experience as a police officer including ten years in narcotics
interdiction and had received specialized narcotics training. He further
testified that he had been involved in seventy-five to 100 drug arrests within
two blocks of the 7–Eleven parking lot, and his observations were consistent
with prior narcotics transactions he observed in that area. Thompson, 93
A.3d at 485.
In stark contrast, there was no similar testimony in the present case.
Officer Ratka never testified regarding either the length or breadth of his
experience as a police officer, let alone whether he had any specialized
training or experience in narcotics interdiction. There was not an iota of
testimony relating either to the choice of location of the surveillance or
mention of any concerned citizen complaints in that locale. There was
absolutely no testimony that the particular area Officer Ratka was surveilling
was a high crime area or that the officer had previous experience in that
area. Indeed, Commonwealth v. Walton, 63 A.3d 253 (Pa. Super. 2013),
a case dismissed as distinguishable in Thompson, is factually similar to the
case sub judice. Distinguishing Walton, we stated in Thompson: “In that
case, the police were not acting on any tip, they could not describe what was
exchanged in the transaction, and the events did not transpire in a high
crime area.” Thompson, 93 A.3d at 485. The same is true here, as well.
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In Thompson, the appellant argued that the jury could not have
reasonably inferred that a plastic baggie found in a co-defendant’s
possession was the same baggie that the appellant therein tossed into the
co-defendant’s vehicle. In detailing the facts that supported the sufficiency
of the evidence in Thompson, this Court explained:
The circumstances of this case bear all the hallmarks of a
narcotics transaction. After receiving an unknown amount of
currency from [co-actor] Furentino, Appellant got out of the
vehicle and walked to the fence to retrieve a hidden baggie, and
then returned to Furentino’s vehicle and gave him the baggie.
All of these activities were observed following [the] Officer[’s]
receipt of “numerous complaints of suspected narcotics activity”
in the area from “non-anonymous sources.” TCO at 1–2
(emphasis added). [The] Officer . . . had significant experience
in narcotics interdiction and testified that his observations were
consistent with narcotics trafficking. Finally, [the] Appellant was
found in possession of a large amount of cash immediately
following the observed transaction, and the recipient of the
baggie was found in possession of a significant number of
prescription pills. Given all these coinciding circumstances, there
was more than sufficient evidence from which the jury could
reasonably infer that the bag of pills found on [the co-actor] had
been delivered moments before by [the] Appellant. This
inference was not, in any sense, “in contradiction to the physical
facts, in contravention to human experience or the laws of
nature.” [Commonwealth v.] Widmer, 744 A.2d [745] at 751
[Pa. 2000].
Thompson, 93 A.3d at 489–490.
Here, Officer Ratka testified as follows:
[Appellant] was standing on the side of the Chinese take-out
store at the corner of Cambridge, Ridge, and 18th where [they]
all meet[].
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Your Honor, he was inside this store. He was approached
by a black female who was wearing red shorts and a white top.
They had a conversation inside the store.
At approximately 10:53 [p.m.], they exited the store. Ms.
Harris came out. Stood in front of the store. [Appellant]
followed behind her, dropped an object in front of her and then
he started to walk slowly up 18th Street northbound.
* * *
[Appellant] continued to walk northbound on 18th Street
towards Girard at a slow pace. Ms. Harris bent down, picked the
object up and turned and walked northbound also on 18 th Street
looking at it in her right hand until I lost sight of her until they
went eastbound on Girard Avenue.
N.T., 2/12/13, at 9–10. At that point Officer Ratka radioed the description
and direction of both Ms. Harris and [Appellant] to backup officers Id. at
11.
Officer Ratka also testified that it was approximately 10:50 p.m. and
“[i]t was dark out . . . .” N.T., 2/12/13, at 12. On cross-examination, he
admitted that he never observed Ms. Harris give Appellant any money. Id.
at 14. Officer Ratka never described the size or shape of the item Appellant
dropped other than terming it “small objects.” Id. at 13.
We have a number of observations about this testimony. It was nearly
11:00 at night, it was dark out, and the observing officer was in his vehicle
using binoculars. While he saw Appellant drop an object, the officer could
not describe its size or shape. Ms. Harris picked up the object and stared at
it while holding it in her hand. Then the officer lost sight of both Appellant
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and Ms. Harris. He never observed an exchange of money and never saw
Ms. Harris put the object in her pocket. Appellant was found in possession
of merely $10.00.
Moreover, Ms. Harris’s action of walking and looking at the object in
her hand does not support a conclusion that the object was drugs. One
might suspect that the knowing possession of a packet of cocaine would spur
the possessor to secrete the item away from observation. Moreover, such
action is equally consistent with the conclusion that the possessor was
unsure what she held in her hand and was attempting to identify it. More
significantly, the fact that Officer Ratka lost sight of Ms. Harris is problematic
to showing a chain of command of the item.
The lack of other indicia of a drug deal in the instant case undermines
the verdict. There was no expert testimony describing Appellant’s actions as
resembling known drug behavior. Ms. Harris was not observed handing
Appellant money despite Officer Ratka’s use of binoculars with no described
visual obstructions. Appellant and Ms. Harris did not attempt to conceal
themselves in any way. No other drugs were recovered, either from a stash
spot or on Appellant’s person. The officers never saw Appellant take any
money nor did they observe him remove the item he allegedly dropped. Ms.
Harris was not seen placing any item in her pocket. Both Appellant and Ms.
Harris were out of the officers’ sight for an unidentified period. Finally,
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police recovered only $10 on Appellant’s person. Cf., Commonwealth v.
Jones, 874 A.2d 108 (Pa. Super. 2005) (the defendant possessed $481 in
small bills and a large amount of cocaine was found in a rental car in which
the defendant was riding); Commonwealth v. Thompson, 985 A.2d 928,
930 (Pa. 2009) (police recovered one packet of heroin from the alleged
buyer and sixteen similar packets of heroin from the defendant);
Commonwealth v. Smith, 979 A.2d 913 (Pa. Super. 2009) (officers, who
observed the defendant remove items from a sock in exchange for money,
recovered nineteen packets of crack cocaine from the defendant’s sock,
marijuana in his pocket, and $303).
A finding that Appellant exercised dominion and control over the drugs
in this case would be a conviction based on pure speculation and conjecture.
“It is well settled that facts giving rise to mere ‘association,’ ‘suspicion’ or
‘conjecture,’ will not make out a case of constructive possession.”
Commonwealth v. Valette, 613 A.2d 548, 551 (Pa. 1992). Accordingly,
because we find the evidence insufficient to establish Appellant’s possession
of the cocaine, we must reverse the judgment of sentence and discharge
Appellant.
Judgment of sentence reversed. Appellant is discharged.
President Judge Emeritus Ford Elliott has joined this Memorandum.
Judge Bowes files a Dissenting Memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2014
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