J-S06021-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN KIMBLE
Appellant No. 152 EDA 2014
Appeal from the Judgment of Sentence June 23, 2009
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011107-2008
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 02, 2015
Kevin Kimble appeals from his judgment of sentence imposed in the
Court of Common Pleas of Philadelphia County after he was convicted,
following a nonjury trial, of one count each of possession with intent to
deliver1 (“PWID”) and knowing and intentional possession.2 After careful
review, we affirm.
On the evening of April 17, 2008, Philadelphia Police Officer Patrick
Banning was conducting surveillance on the 300 block of Wilton Street in the
City and County of Philadelphia. During the span of approximately one half
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
2
35 P.S. § 780-113(a)(16).
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hour, Officer Banning witnessed Kimble engage in five separate, yet similar,
exchanges in which one or more individuals would approach him, speak
briefly with him, and hand him money. Kimble would then bend down
behind a white Saturn automobile parked directly in front of Officer Kimble’s
car, reach under the bumper and reemerge with a plastic bag in his hand.
He would then hand the plastic bag to the other individual(s). Two of
Kimble’s “customers,” fitting descriptions provided by Officer Banning, were
subsequently apprehended and found to possess “small orange-tinted zip-
lock packets containing an off-white, chunky substance that later tested
positive for the presence of cocaine.” Trial Court Opinion, 7/30/14, at 4. At
the direction of Officer Banning, Officer Duane Watson arrested Kimble and
recovered from his person $189 in U.S. currency. Also at Officer Banning’s
direction, Officer Michael Waters recovered from the rear bumper of the
Saturn a plastic bag containing sixty-six orange-tinted Ziploc packets, each
containing an off-white chunky substance that later tested positive for the
presence of cocaine.
Kimble was tried before the Honorable Charles J. Cunningham, III, on
June 23, 2009, and found guilty of PWID and possession. At the conclusion
of trial, Kimble was sentenced to one to five years’ imprisonment. After
filing a petition under the Post Conviction Relief Act,3 Kimble’s direct
____________________________________________
3
42 Pa.C.S.A. §§ 9541-9546.
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appellate rights were reinstated, nunc pro tunc. This timely appeal follows,
in which Kimble challenges the sufficiency of the evidence to prove that he
possessed the narcotics in question.
Whether sufficient evidence exists to support the verdict is a question
of law; our standard of review is de novo and our scope of review is plenary.
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 factfinder. 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 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.
A person is guilty of PWID when he possesses a controlled substance
with the intent to deliver it. 35 P.S. § 780-113(a)(30). Possession can be
found by proving actual possession, constructive possession or joint
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constructive possession. Commonwealth v. Gutierrez, 969 A.2d 584, 590
(Pa. Super. 2009), citing Commonwealth v. Heidler, 741 A.2d 213, 215
(Pa. Super. 1999). Constructive possession is the ability to exercise
conscious control or dominion over the illegal substance and the intent to
exercise that control. Commonwealth v. Kirkland, 831 A.2d 607, 610
(Pa. Super. 2003) (citation omitted). The intent to exercise conscious
dominion can be inferred from the totality of the circumstances. Id.
Here, Kimble argues that the Commonwealth failed to prove that he
possessed the narcotics because he did not have drugs on his person and
the Commonwealth did not show any connection between Kimble and the
Saturn automobile. Kimble’s argument misses the mark.
In order to establish constructive possession, the Commonwealth was
not required to prove that Kimble owned the Saturn or even knew who did.
Repeatedly, Officer Banning witnessed Kimble retrieve plastic baggies from
the bumper of the car and deliver them to his customers. Moreover, Officer
Banning did not witness anyone else approach the bumper or handle the
drugs during the relevant period. Two of Kimble’s customers were later
apprehended and found to be in possession of the same orange-colored
baggies Kimble retrieved from the Saturn’s bumper. The Commonwealth’s
evidence established Kimble’s actual and repeated connection to the drugs
hidden in the vehicle’s bumper.
The facts of this case are nearly identical to Commonwealth v. Lee,
956 A.2d 1024 (Pa. Super. 2008). There,
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Philadelphia police officers observed Lee engage in two hand-to-
hand drug transactions in which money was exchanged for small
items retrieved from a stash in a nearby vacant lot. Subsequent
to the first transaction, Police recovered a pink-tinted Ziploc
packet containing crack cocaine from the first buyer. When
police arrested Lee following the second transaction, they
recovered $40.00 from his person. Additionally, police
discovered 49 pink-tinted Ziploc packets containing crack
cocaine from the vacant lot adjacent to the location at which the
hand-to-hand transactions had taken place. The secreted Ziploc
packets of cocaine were identical to the pink-tinted packet police
recovered from the first buyer. Additionally, Lee did not possess
any drug paraphernalia that would indicate personal use of the
drugs recovered.
Id. at 1028.
Based on Lee, and the ample evidence adduced at trial demonstrating
Kimble’s constructive possession of the cocaine, Kimble is entitled to no
relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/2/2015
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Com. v. Kimble, K.
Combined Opinion