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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
PAUL FAVERS,
Appellant No. 1227 WDA 2014
Appeal from the Judgment of Sentence of July 16, 2014
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000168-2014
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 19, 2015
Appellant, Paul Favers, appeals from the judgment of sentence entered
on July 16, 2014, following his jury trial convictions for possession of a
controlled substance (PWID) and possession of a controlled substance by a
person not registered.1 Upon review, we affirm.
The trial court aptly summarized the facts of this case as follows:
On November 26, 2013, the Connellsville Police
Department (“CPD”) received a specific tip concerning a
vehicle that was transporting a large amount of heroin
through the City of Connellsville. Officers Bryan Kendi and
Ryan Reese, both of the CPD, took up a position in a
marked patrol car at the intersection of York Avenue and SR
119. Around 9:00 p.m., the vehicle described by the tip
was seen heading south on SR 119. At that time, the
officers also noticed the driver of the vehicle, Todd Favers,
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1
35 P.S. §§ 780-113(a)(30) and 780-113(a)(16), respectively.
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Appellant’s brother, whom they knew to have a suspended
license.
Following a routine traffic stop, the officers approached
both sides of the vehicle. Officer Kendi informed Todd
Favers that he was not to be driving and immediately took
him into custody. Both [o]fficers then observed Appellant in
the passenger seat, making a motion as though pushing
something toward the center console of the vehicle. In
particular, Officer Reese, who was positioned outside the
passenger side of the vehicle, could see Appellant’s hands
entering and exiting his pockets and then pushing toward a
blue plastic shopping bag underneath the center console.
Concerned that Appellant might possess a weapon,
Officer Reese instructed Appellant several times to stop
placing his hands into his pockets. In response, Appellant
became increasingly agitated, began cursing and
questioning the officers’ right to pull over the vehicle. When
the officers removed Appellant from the vehicle, both
testified to noticing a stamp bag of heroin protruding from
the same blue bag to which Appellant had previously
directed his hands.
The officers detained Appellant and Todd Favers and the
vehicle was moved to the CPD. Prior to the blue bag being
removed, the CPD sent in a canine unit to search for
narcotics. The Canine Handler, Detective Jason Hayes,
testified that his K-9 alerted only in the passenger side of
the vehicle and upon the blue bag under the center console.
At that point, the officers decided to remove the blue bag.
Inside, they found three-hundred forty-two (342)
individually stamped bags[, that later tested positive,] of
heroin, with a street value of approximately eight thousand
($8,000[.00]) dollars.
Trial Court Opinion, 9/2/2014, at 2-3 (record citations and footnote
omitted).
The Commonwealth charged Appellant with the aforementioned
offenses. A two-day jury trial commenced on July 9, 2014. At the
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conclusion of trial, the jury convicted Appellant of both crimes. On July 16,
2014, the trial court sentenced Appellant to an aggregate term of three to
nine years of imprisonment. This timely appeal followed.2
On appeal, Appellant presents the following issues3 for our review:
1. Did the [trial] court err in denying Appellant’s omnibus
pre-trial motion to suppress the evidence in that []
Appellant was specifically targeted?
2. Did the Commonwealth fail to prove that [] Appellant
ever possessed the controlled substance in the vehicle?
3. Did the [trial] court err in denying Appellant the right to
call a witness that would have testified that the driver of
the vehicle had sold the witness drugs on a prior
occasion?
Appellant’s Brief at 7 (complete capitalization omitted).
In his first issue presented, Appellant claims that the trial court erred
in failing to grant relief on his request to suppress evidence as set forth in
his omnibus pre-trial motion. Id. at 10. He claims that he “was specifically
targeted, and that the officers had no basis to stop the vehicle.” Id. at 11.
Appellant points to alleged inconsistencies in the investigating officers’
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2
Appellant filed a notice of appeal on July 28, 2014. On July 29, 2014, the
trial court directed Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied on July 31,
2014. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
September 2, 2014.
3
We have reordered Appellant’s issues for ease of discussion.
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testimony to support his claim. Id. at 10-11. More specifically, Appellant
argues:
At the time of the omnibus hearing the officers both
identified [] [A]ppellant as the operator of the vehicle, but
later identified the operator of the vehicle as Todd Favers[,
Appellant’s brother]. Based upon this misidentification
which became clear at the time of trial, it is obvious that
there was not probable cause to stop the vehicle as [one of
the investigating officers] testified that there were no traffic
violations that would have caused initiation of the stop. It
seems clear that [] [A]ppellant was specifically targeted,
and that the officers had no valid basis to stop the vehicle.
Id. at 11.
Initially, we note that Appellant failed to support this issue with
citation to legal authority and, therefore, has waived the issue. See
Commonwealth v. Knox, 50 A.3d 732, 748 (Pa. Super. 2012); see also
Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as
there are questions to be argued […] followed by such discussion and
citation of authorities as are deemed pertinent.”).
Regardless, the issue is without merit. “Our standard of review in
addressing a challenge to the denial of a suppression motion is limited to
determining whether the suppression court's factual findings are supported
by the record and whether the legal conclusions drawn from those facts are
correct.” Commonwealth v. McAdoo, 46 A.3d 781, 783 (Pa. Super.
2012). “[T]he reviewing court may consider only the Commonwealth's
evidence and so much of the evidence for the defense as remains
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uncontradicted when read in the context of the of the entire record.”
Commonwealth v. Lagenella, 83 A.3d 94, 98 (Pa. 2013)
A police officer has the authority to stop a vehicle when he or she has
reasonable suspicion that a violation of the motor vehicle code has taken
place, for the purpose of obtaining necessary information to enforce the
provisions of the code. Commonwealth v. Brown, 64 A.3d 1101, 1105
(Pa. 2013), citing 75 Pa.C.S.A. § 6308(b). “However, if the violation is such
that it requires no additional investigation, the officer must have probable
cause to initiate the stop.” Id. (citation omitted; original emphasis omitted).
Upon review of the testimony from the suppression hearing, both
officers testified that they stopped the vehicle at issue because they
recognized the driver, Appellant’s brother, and knew he was driving without
a license. N.T., 4/14/14, at 6, 19. Although, at the suppression hearing,
both officers identified the driver as “Paul Favers,” they also unequivocally
identified Appellant at the suppression hearing, who was not known to police
at the time of the stop, as the passenger. Id. at 6-7, 19; 8-10, 20-23.
Certainly, Appellant could not have been both the driver and the passenger
of the car and the suppression court was permitted to make factual
determinations. Here, the suppression court determined that the police
“stated that they identified the driver of the vehicle as [the individual] that
they knew had a suspended license.” Id. at 30. Viewing the evidence from
the suppression hearing in the light most favorable to the Commonwealth,
we discern no error in the trial court’s determination that police had probable
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cause to believe that a motor vehicle code violation had transpired prior to
stopping the vehicle.4 Finally, we note, in support of his third appellate issue
as discussed infra, Appellant tangentially concedes that “a potential witness
[would have testified that he..] had purchased heroin […] from the driver
of the vehicle, Todd Favers.” Id. at 13 (emphasis added). Thus, for all of
the foregoing reasons, Appellant’s first claim fails.
In the next issue for our review, Appellant claims the Commonwealth
rested its entire case against him on constructive possession. Appellant’s
Brief at 15. Appellant then argues, “[i]t is undisputed that there were in fact
two occupants of the vehicle at the time of the stop, and that the heroin was
found in the center console area between both occupants inside the vehicle.”
Id. He claims the trial court erred by focusing on evidence of Appellant’s
movements at the time of the stop and there was no evidence that he ever
handled the bag containing the heroin or he “was more than just the
passenger in the vehicle.” Id. at 15-16.
When reviewing challenges to the sufficiency of the evidence, our
standard of review is as follows:
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4
We also note that Officer Bryan Kendi testified at trial that he “recognized
the driver” as “Todd Favers.” N.T., 7/9/2014, at 31-33, 55. He further
stated that he misspoke at the suppression hearing when he said it was
Appellant driving the vehicle. Id. at 56. Moreover, Officer Ryan Reese
identified Appellant in court as the passenger. Id. at 114. Appellant
testified in his own defense at trial and likewise stated he was a passenger in
his sister-in-law’s car and his brother was driving at the time of the police
stop. Id. at 134-135.
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The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for the fact-finder. 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.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014)
(citations and brackets omitted). “Further, in viewing the evidence in the
light most favorable to the Commonwealth as the verdict winner, the court
must give the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.” Id. (citation omitted).
As Appellant was not in physical possession of the contraband, the
Commonwealth was required to establish that he had constructive
possession of the seized items to support his convictions:
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
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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.
Additionally, it is possible for two people to have joint
constructive possession of an item of contraband.
Commonwealth v. Kinard, 95 A.3d 279, 292 (Pa. Super. 2014) (citations
omitted).
In this case, viewing the totality of the circumstances, the trial court
determined the Commonwealth established Appellant’s constructive
possession, based upon the following facts:
The totality of the following circumstances in this case
support the jury’s conclusion that Appellant possessed the
heroin to deliver the same: (1) the substantial volume of
the heroin; (2) the officer’s observation of Appellant
repeatedly placing and removing his hands into his pockets
and then pushing toward [that part of] the vehicle where
the heroin was found; (3) Appellant’s demeanor; (4) that
the K-9 [narcotics canine] alerted only upon Appellant’s
side of the vehicle; and (5) the readily apparent presence of
both the bag and the heroin when Appellant exited the
vehicle, which conflicts with his earlier testimony that he
saw neither.
Trial Court Opinion, 9/2/2014, at 8-9 (emphasis in original).
Upon review, we agree. First, and foremost, Appellant fails to address
the fact that two people may be in joint constructive possession of narcotics.
Therefore, the mere fact that there were two occupants of the car simply
does not support Appellant’s claim. Moreover, the facts presented showed
that Appellant exercised a conscious dominion over the narcotics.
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Officer Kendi testified that, after stopping the vehicle, he observed
Appellant “making a pushing motion away from his body towards the center
of the vehicle” with his left hand. N.T., 7/9/2014, at 33-34. Officer Kendi
testified that Appellant “appeared to be pushing an object underneath […] an
armrest that would move up and down.” Id. at 35. Officer Kendi stated
Appellant’s demeanor was extremely agitated and his voice was boisterous.
Id. at 35. Appellant started yelling and questioning the police as to why
they stopped the vehicle and why he had to get out. Id. at 36. When
Appellant exited the vehicle, Officer Kendi saw a translucent, blue shopping
bag protruding from underneath the center armrest and “immediately
recognized at least one stamp bag [of heroin] in it.[]” Id. at 36-37. From
outside the vehicle, Officer Kendi took a photograph of the bag as he found
it and the Commonwealth presented the photograph at trial and it was
circulated to the jury. Id. at 37-43. Moreover, Officer Kendi testified that
he summoned a canine unit to the scene and a drug-sniffing dog alerted
police “[t]o the passenger door of the vehicle as well as the passenger
compartment of the front part of the vehicle.” Id. at 45. The police officer
with the canine unit testified similarly. Id. at 89-91.
Officer Reese testified that upon approaching the vehicle, Appellant
“kept pushing a blue plastic bag underneath the center console and placing
his hand in his front pocket.” Id. at 114. Officer Reese told him to stop
“three or four times” while Appellant “became more agitated, [saying,] you
have no right to stop us, why’d you stop us, why’d you pull us over, this is
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bullshit[.]” Id. at 114-115. When Appellant exited the vehicle, Officer
Reese could see the blue plastic bag and could see through the bag, what he
described as a “readily apparent” bundle of heroin. Id. at 116. He also
testified that the drug dog “sat down on the passenger side and then when
the door was opened he went and sat on the center console.” Id. at 118.
In totality, the Commonwealth presented substantial evidence to rebut
Appellant’s claim that he was a mere passenger in the vehicle and unaware
that narcotics were present. Police saw Appellant making pushing motions
toward the center console of the vehicle. Appellant acted belligerently when
the police stopped the vehicle and asked him to exit. Further, the
investigating officers were able to see the blue plastic bag in plain view and
discerned that drugs were inside. Moreover, police utilized a narcotics
canine and the dog only alerted police to the presence of drugs on the
passenger side of the vehicle. Taken together, the facts show that the
narcotics were known to Appellant and under his control while in the vehicle.
Hence, we conclude that there was sufficient evidence that Appellant
constructively possessed the heroin with the intent to deliver it.
Lastly, Appellant claims the trial court erred in precluding him from
calling a witness at trial. Appellant’s Brief at 13. More specifically, he claims
that “he had encountered a potential witness[, named Robert Nicholson,]
during his incarceration, that had purchased heroin on a prior occasion near
the time of [A]ppellant’s arrest from the driver of the vehicle, Todd Favers.”
Id. Thus, Appellant contends that such evidence would have shown “that
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Todd Favers was the actual possessor of the controlled substance and not []
[A]ppellant.” Id. at 14.
We review Appellant’s claim under the following standard:
In reviewing a trial court's ruling on the admissibility of
evidence, our standard of review is one of deference. It is
firmly established, [that] questions concerning the
admissibility of evidence lie within the sound discretion of
the trial court, and a reviewing court will not reverse the
court's decision on such a question absent a clear abuse of
discretion. An abuse of discretion requires:
not merely an error of judgment, but where the
judgment is manifestly unreasonable or where the
law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill
will.
Commonwealth v. Hunzer, 868 A.2d 498, 510 (Pa. Super. 2005) (internal
citations, quotations and brackets omitted).
Here, in deciding to preclude the proffered witness, the trial court
relied upon our Supreme Court’s decision in Commonwealth v. Baez, 720
A.2d 711 (Pa. 1998) wherein the Court stated:
A trial judge should take care that nothing relevant is
excluded, so long as its admission will not unduly distract
the attention of the jury from its main inquiry. A trial judge
must determine whether evidence which, though logically
relevant on the ultimate issue, may nevertheless be
excluded because its general effect on the trial will be to
confuse the jury by distracting its attention away from the
jury's primary concern to the collateral issues. Because of
the often difficult nature of this task, the judge's conclusion
or decision on such points will not be interfered with on
appeal save for abuse of discretion.
Commonwealth v. Baez, 720 A.2d at 724 (internal citation omitted).
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In assessing the proffered witness testimony, the trial court ultimately
determined:
In this case, we agree that the proposed testimony of a
heroin sale by Appellant’s brother at an unspecified time
was of minimal relevance to Appellant’s possession of
heroin. Like the court in Baez, we also note that the jury
could have believed or completely ignored Mr. Nicholson’s
testimony and been justified in finding Appellant guilty of
the charged offenses. [The trial court, therefore,]
concluded that the only reasonable effect of Mr. Nicholson’s
testimony would have been the undue distraction of the
jury.
Trial Court Opinion, 9/2/2014, at 6-7 (footnotes omitted). Moreover, the
trial court noted that its determination that there was sufficient evidence
that “supports a finding that Appellant possessed the heroin with the intent
to distribute, only strengthens this conclusion.” Id. at 6, n.5.
We agree. Evidence that the proposed witness may or may not have
purchased heroin from Appellant’s brother at some other time does not go
directly to the charges at issue or somehow prove that Appellant’s brother
exclusively possessed the heroin. As previously stated, “it is possible for two
people to have joint constructive possession of an item of contraband.”
Kinard, 95 A.3d at 292. The proffered testimony that the driver of the
vehicle had previously sold heroin was entirely collateral and potentially
misleading for the jury. Therefore, we discern no abuse of discretion in
precluding Mr. Nicholson from testifying at trial. Accordingly, Appellant’s
third issue fails.
Judgment of sentence affirmed
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2015
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