J. S09003/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
WILLIAM RUSH, : No. 1375 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, April 18, 2013,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0005136-2012
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 27, 2015
Appellant appeals from the judgment of sentence following his
conviction for drug and firearm offenses. Finding no merit in the issue
raised on appeal, we affirm.
The trial court accurately summarized the events leading to appellant’s
arrest:
The evidence presented at trial established
that on December 12, 2011, Pittsburgh Police
Officers Santino Achille and Joshua Whaley were on
patrol at approximately 9:00 p.m. in the Spring
Garden Avenue area on the North Side of Pittsburgh.
(N.T. 44). They were in an unmarked
car,[Footnote 1] conducting surveillance in a high
crime, high drug trafficking area. (N.T. 44-45). As
the officers approached Ryan Place, a housing
development, Officer Achille observed a black
Oldsmobile Bravada stopped in front of the building
and two (2) individuals approach the vehicle,
including the Defendant, William Rush, whom the
J. S09003/15
officer recognized. (N.T. 48-49). He also recognized
the other person, Shawn Pruitt. (N.T. 49-50).
[Footnote 1] Though the vehicle was
unmarked, Officer Achille testified that
is [sic] was regularly recognized as a
police vehicle because it had been used
in that area for several years. (N.T. 51).
As the Defendant reached the passenger side
of the vehicle, Officer Achille saw him look in the
direction of the police vehicle and “. . . . appear very
alarmed, wide-eyed, stopped in his track for no
apparent reason.” (N.T. 51). According to
Officer Achille, after the Defendant noticed their
vehicle, “. . . he then bladed his body, turned in a
position where he hid the front of his waistband,
would be facing away from our vehicle.” (N.T. 51-
52). The Defendant then reached across his body
with his right hand, keeping his left hand at his
waistband, opened the rear passenger door and got
in.[Footnote 2] Pruitt entered the front passenger
side. (N.T. 52).
[Footnote 2] Officer Whaley testified
that, in his experience in making over a
hundred arrests for persons possessing
firearms, it is common for such persons,
when they see law enforcement, to “. . .
grab their waist or touch their waist to
make sure the object, the firearm, is
secure where it is at.” (N.T. 82).
The Bravada pulled away from the curb, into
traffic. The driver did not use the turn signal. Upon
observing this traffic violation, Officer Achille decided
to stop the vehicle. (N.T. 53). He activated the
vehicle’s lights and siren, and the vehicle pulled
over, still near the Ryan Place development and in an
area with substantial overhead lighting. (N.T. 53-
54).
Officer Achille approached the driver’s side of
the vehicle while Officer Whaley approached the
-2-
J. S09003/15
passenger side. They both used their flashlights to
illuminate the interior of the vehicle. (N.T. 54).
Officer Achille asked the driver to lower the windows
in the vehicle, and he complied. (N.T. 69-70). In
speaking to the driver, Officer Achille determined
that he was a jitney driver. The driver was
cooperative. There was no passenger in the rear on
the driver’s side. While speaking with the jitney
driver, he observed Officer Whaley on the other side
of the vehicle make a hand gesture over the top of
the vehicle that he knew was intended to indicate
that there was a firearm in the vehicle. (N.T. 55-
57).
Before making that gesture, Officer Whaley, as
he approached the rear of the vehicle, “. . . observed
the rear right passenger kind of lift up off his seat
and turn, and he had an object in his left hand.”
(N.T. 83). Officer Whaley believed that object “. . .
to be a large silver revolver.” (N.T. 83). He saw the
Defendant throw the object with his left hand into
the cargo area of the Bravada. (N.T. 83). He shined
his light in that area and saw a large, silver revolver
laying [sic] there. He then gestured to Officer Achille
to alert him to the presence of a weapon and then
radioed for backup, using “Code 2”, indicating that a
quick back-up response with lights and sirens is
necessary. (N.T. 84).
As other officers arrived, Officer Whaley asked
the Defendant to exit the vehicle. He did, was
handcuffed and placed in the rear of a police vehicle.
Officer Whaley returned to the rear of the vehicle
and retrieved the weapon, a loaded, .44 caliber
Smith and Wesson revolver, found later to be in
good working order. (N.T. 88, 91). Officer Whaley
then retrieved, from the floor where the defendant
was seated, a quantity of prepackaged stamp bags
of heroin that he had noticed as he removed the
Defendant from the vehicle.[Footnote 3] (N.T. 91-
92). A search of the vehicle and of the Defendant’s
person revealed that he had no money, nor did he
possess any paraphernalia that could have been
used to ingest the heroin. (N.T. 96-97). The
-3-
J. S09003/15
Defendant also did not exhibit any of the physical
characteristics that people who regularly use heroin
generally possess. He did not seem under the
influence and had no apparent needle marks. (N.T.
95-97).[Footnote 4]
[Footnote 3] The Allegheny County Crime
Lab found the substance in the
44 packages to indeed be heroin, with a
weight of 2.03 grams. (N.T. 95).
[Footnote 4] The other occupants,
Shawn Pruitt and the jitney driver, were
released after the defendant’s arrest.
(N.T. 74).
Trial court opinion, 9/19/14 at 4-7.
On January 24, 2013, a jury convicted appellant of possession of a
controlled substance, possession of a controlled substance with intent to
deliver, firearms not to be carried without a license, and false identification
to a law enforcement officer.1 On April 18, 2014, appellant was sentenced
to an aggregate term of 7 to 14 years’ imprisonment. This timely appeal
followed.
Appellant raises a single issue on appeal, contending that the evidence
of his constructive possession of the heroin found in the jitney taxicab was
insufficient to support his drug-related convictions. We disagree.
We note our standard of review:
As a general matter, our standard of review of
sufficiency claims requires that we evaluate the
record “in the light most favorable to the verdict
1
35 P.S. §§ 780-113(a)(16), (a)(30), 18 Pa.C.S.A. §§ 6106(a)(1), and
4914(a), respectively.
-4-
J. S09003/15
winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the
evidence.” Commonwealth v. Widmer, 560 Pa.
308, 744 A.2d 745, 751 (2000). “Evidence will be
deemed sufficient to support the verdict when it
establishes each material element of the crime
charged and the commission thereof by the accused,
beyond a reasonable doubt.” Commonwealth v.
Brewer, 876 A.2d 1029, 1032 (Pa.Super.2005).
Nevertheless, “the Commonwealth need not
establish guilt to a mathematical certainty.” Id.;
see also [Aguado, 760 A.2d at 1185] (“[T]he facts
and circumstances established by the
Commonwealth need not be absolutely incompatible
with the defendant’s innocence.”). “[W]here no
single bit of evidence will by itself conclusively
establish guilt, the verdict will be sustained where
the totality of the evidence supports the finding of
guilt.” Commonwealth v. Thomas, 522 Pa. 256,
561 A.2d 699, 704 (1989).
Thus, our Courts have recognized that proof of
guilt may be inferred entirely from evidence of
circumstances that attended the commission of the
crime. See Brewer, 876 A.2d at 1032. “The fact
that the evidence establishing a defendant’s
participation in a crime is circumstantial does not
preclude a conviction where the evidence coupled
with the reasonable inferences drawn therefrom
overcomes the presumption of innocence.” Id.
(quoting Commonwealth v. Murphy, 795 A.2d
1025, 1038-39 (Pa.Super.2002)). Nevertheless,
“[t]he requirement of the law [remains] that in order
to warrant a conviction[,] the facts and
circumstances proved must be of such character as
to produce a moral certainty of the guilt of the
accused beyond any reasonable doubt.”
Commonwealth v. Bybel, 531 Pa. 68, 611 A.2d
188, 189 (1992) (quoting Commonwealth v. New,
354 Pa. 188, 47 A.2d 450, 455 (1946)).
-5-
J. S09003/15
Commonwealth v. Kinard, 95 A.3d 279, 291-292 (Pa.Super. 2014)
(en banc), quoting Commonwealth v. Barker, 70 A.3d 849, 854
(Pa.Super. 2013) (en banc), appeal denied, 87 A.3d 814 (Pa. 2014).
Moreover, we note that appellant was not found with the heroin on his
person; in such circumstances, the Commonwealth must show constructive
possession:
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. To aid application,
we have held that constructive
possession may be established by the
totality of the circumstances.
Commonwealth v. Brown, 48 A.3d 426, 430
(Pa.Super.2012), appeal denied, 619 Pa. 697, 63
A.3d 1243 (2013) (internal quotation marks and
citation omitted). Additionally, it is possible for two
people to have joint constructive possession of an
item of contraband. Commonwealth v. Bricker,
882 A.2d 1008, 1016-1017 (Pa.Super.2005).
Kinard, 95 A.3d at 292.
We find that the evidence at trial sufficiently supports a finding that
appellant constructively possessed the heroin. The heroin packets were
found contained in a “brick wrapper,” which package was observed at
-6-
J. S09003/15
appellant’s feet as he was removed from the jitney. Police Officer
Joshua Whaley testified that after appellant threw his gun into the cargo
compartment of the Bravada, “he kind of sat forward.” (Notes of testimony,
1/23-24/14 at 84-85.) Such action would be consistent with appellant
placing the drugs on the floor of the jitney. Finally, appellant was the only
passenger in the rear seat of the jitney. We find these facts to be sufficient
for the jury to conclude that appellant constructively possessed the heroin.
Appellant offers several reasons why he should not be found to be in
constructive possession. First, appellant argues that a previous passenger of
the jitney could have left the drugs on board. However, we agree with the
Commonwealth that the high value of the heroin made it extremely unlikely
that a prior passenger left it in the jitney.
Second, appellant contends he must have been unaware of the heroin;
otherwise, he would have thrown it into the passenger compartment of the
Bravada as he did with his gun. This does not indicate that appellant was
unaware of the heroin. He may simply have concluded that the approaching
police officers were now too close to risk throwing the drugs into the cargo
compartment.
Third, appellant argues that awareness of the presence of contraband
is necessary to possession and that he could not know of the presence of the
heroin because it was contained in an opaque brick wrapper. We find this
suggestion to be specious. Merely because the heroin was in an opaque
-7-
J. S09003/15
container gives no indication that appellant was not aware of what was in
the container. Further, as the Commonwealth notes, a brick wrapper is
distinctive with the dealing of drugs.
Fourth, appellant argues that the other passenger was not searched to
determine whether he possessed similarly packaged heroin which would
indicate the heroin belonged to him. To this we respond that such a finding
would merely incriminate the other passenger, it would not exonerate
appellant. As we noted, joint constructive possession is possible and there
was sufficient evidence to find appellant constructively possessed the drugs
found in the rear passenger area.
Finally, appellant argues that no money or heroin was found on his
person and he did not show any signs of being a heroin user. The fact that
appellant had no heroin or money on him is not persuasive. Drug dealers
often have one party possess and manage the cash while another party
possesses and manages the drugs. Moreover, appellant’s argument here is
merely consistent with his being a drug dealer as opposed to a drug user. It
certainly does not indicate that he did not constructively possess the heroin.
Appellant also relies primarily on two cases which he contends support
a finding that the evidence was insufficient to support constructive
possession under the circumstances of this case. In Commonwealth v.
Juliano, 490 A.2d 891 (Pa.Super. 1985), an informant told police that
Edward Drueding agreed to meet Chris DiBona at Philadelphia International
-8-
J. S09003/15
Airport as DiBona was flying in with a shipment of counterfeit drugs. The
informant later told police that Drueding was proceeding to the airport with
Joseph Cobuccio. Police observed Drueding and Cobuccio meet with DiBona
and then proceed to the baggage claim area without DiBona. At the
baggage claim area, Drueding and Cobuccio retrieved a green satchel which
later was found to contain the counterfeit drugs. Drueding and Cobuccio
were then observed driving away from the airport and proceeding to the
Airport Sheraton Hotel where DiBona and the defendant joined them. When
stopped by police, Cobuccio was in the driver’s seat, Drueding was in the
front passenger seat, the defendant was in the left rear passenger seat, and
DiBona was in the right rear passenger seat. The informant had not
implicated the defendant in any way. The defendant made no furtive
movements toward the satchel when police stopped the vehicle. The green
satchel was ultimately found on the floor in front of the defendant’s seat,
and the defendant was convicted for the constructive possession of the
counterfeit drugs.
On appeal, this court reversed based upon the lack of evidence that
the defendant was aware as to the contents of the green satchel. The court
noted that the informant had not implicated the defendant, that the
defendant had not made furtive motions toward the satchel, that other
individuals in the car had equal access to the satchel, and that the defendant
-9-
J. S09003/15
had not attempted to escape. The court held that mere proximity to the
contraband was not conclusive of guilt.
Appellant attempts to liken Juliano to his situation, claiming that
there was no evidence that he was aware as to the contents of the brick
wrapper, that he made no motions toward it, that another individual had
equal access to it, and that he did not attempt to flee. We reject appellant’s
argument. Appellant’s argument ignores the fact that in Juliano, there was
overwhelming evidence that the other three individuals in the car not only
knew what the satchel contained, but each had been observed displaying a
conscious dominion and intent to control the satchel. The defendant, on the
other hand, may merely have unwittingly chosen the wrong place to sit.2
Instantly, there was no evidence that anyone other than appellant
manifested a conscious dominion or intent to control the brick wrapper. The
brick wrapper was found where appellant’s feet had been. Moreover, the
police testified that appellant “kind of sat forward” as they approached,
which, we have noted, is consistent with a display of conscious dominion
over the drugs. Thus, we find Juliano to be inapposite.
Next, appellant cites to Commonwealth v. Spencer, 621 A.2d 153
(Pa.Super. 1993). In Spencer, following a vehicle stop, cocaine was
discovered in the driver’s door storage compartment. Spencer, the front
2
The defendant testified that he had met DiBona by chance at the Sheraton
and accepted an offer of a ride to Atlantic City after his own ride failed to
appear. Juliano, 490 A.2d at 505 n.3.
- 10 -
J. S09003/15
seat passenger, was found guilty on a constructive possession theory. On
appeal, this court reversed, finding that there was no evidence that the
passenger even knew of the cocaine’s existence, let alone exercised
conscious dominion. Spencer reiterated Juliano’s admonitions that guilt by
association is unacceptable and that the mere presence of one person
among a group at a scene of contraband is not a strong factor indicative of
guilt.
Spencer is easily distinguished. The drugs there were found in much
greater proximity to the driver, and it was obvious that the driver possessed
the cocaine because he scuffled with the police, attempted to flee, and
attempted to throw the bag of cocaine away. There was no evidence that
the passenger ever exhibited conscious dominion over the cocaine or even
knew of its existence. Instantly, however, appellant was the person most
proximate to the contraband, which was sitting at his feet, and he was
observed to make a forward motion, which may have indicated that
appellant took the brick wrapper from his person and placed it on the floor of
the jitney. Spencer is likewise inapposite.
Appellant also cites other cases without discussion. We find these
other cases to be similarly distinguishable. In sum, we find the evidence in
this case to be sufficient to support a theory of constructive possession. The
drugs were found at appellant’s feet, he made a motion consistent with
conscious dominion, and no other person could reasonably have been
- 11 -
J. S09003/15
considered to be in possession of the drugs. Therefore, we will affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2015
- 12 -