J-A13026-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUSTIN GRANDISON,
Appellant No. 331 WDA 2014
Appeal from the Judgment of Sentence January 22, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0006600-2013
BEFORE: PANELLA, SHOGAN, and OTT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 24, 2015
Appellant, Justin Grandison, appeals from the judgment of sentence
entered on January 22, 2014, in the Allegheny County Court of Common
Pleas. After careful review, we affirm in part, reverse in part, and remand
with instructions.
The record reveals that on March 15, 2013, Assistant Duquesne Police
Chief Scott Adams obtained and executed a search warrant for 637 South
Fifth Street. N.T., Trial, 10/22-23/13, at 13. Assistant Chief Adams,
accompanied by Detective Scott Klobchar, Detective Jonathan Love, and
Detective Tom DeFelice of the Allegheny County Police Department knocked
on the front door of 637 South Fifth Street, where they were met by Ms.
Chandrea Buefort. Id. at 13-14. Assistant Chief Adams informed Buefort
that they were investigating Appellant. Id. at 14. Buefort told the officers
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that Appellant and his girlfriend, Ms. Javonna Gibson, were staying in a
bedroom on the second floor to the right of the stairs (“the bedroom on the
right”). Id. at 14-15, 50. Detective Klobchar searched the bedroom on the
right and found a juice can containing baggy diapers,1 two sifters, a hot
plate, baking soda, .20 grams of crack cocaine, a digital scale, and a box of
baggies. Id. at 32. The detectives also found an envelope addressed to
“Javonna Gibson, 637 South Fifth Street, Duquesne, Pennsylvania.” Id. at
40. This envelope contained two photographs of Appellant with unknown
individuals. Id. at 39.
The police also searched the other upstairs bedroom (“the bedroom on
the left”), which was occupied by Buefort and her boyfriend, who was
Appellant’s co-defendant, Kelly Parker. N.T., Trial, 10/22-23/13, at 50.
Buefort testified that the bedroom on the left was like a living room because
it is where the television and DVD player were located. Id. at 51. In the
bedroom on the left, the officers found a cigar box containing a burnt metal
spoon that appeared to have cocaine residue on it, baggy diapers, and torn
plastic bags. Id. at 16-17. Inside a nightstand drawer, the officers
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1
Baggy diapers are sandwich baggies with the corners torn off of them.
Commonwealth v. James, 69 A.3d 180, 181 (Pa. 2013). The corners of
the bag may be used as smaller bags to package controlled substances, and
the remnants of the bag itself, which has no corners, resembles a diaper,
hence the name.
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discovered a bag that contained nineteen individually wrapped pieces of
crack cocaine and Parker’s Pennsylvania identification card. Id.
Appellant was not in the house when police executed the search
warrant. When Detective Love and Detective DeFelice saw Appellant driving
away from 637 South Fifth Street, they conducted a traffic stop. N.T., Trial,
10/22-23/13, at 41. The occupants of the vehicle were Appellant and
Gibson. Id. The detectives removed Appellant from the car and searched
his person. Id. at 41-42. Detective Love took a mobile telephone from
Appellant’s hand. Id. at 44. Police did not recover money or drugs from
Appellant’s person or from the vehicle. Id. at 46. The police subsequently
conducted a search of activity on the telephone recovered from Appellant.
N.T., Trial, 10/22-23/13, at 61. Chief Adams testified that some of the text
messages on the phone revealed evidence of what he considered “street-
level drug dealing.” Id. at 62.
Appellant was charged with possession of a controlled substance with
intent to deliver (“PWID”), possession of a controlled substance, possession
of drug paraphernalia, and criminal conspiracy. Following a bench trial that
was held on October 22, 2013 through October 23, 2013, Appellant was
acquitted of conspiracy, but the trial court convicted him on the other
charges. The trial court sentenced Appellant to a term of one and one-half
to five years of incarceration on the PWID conviction, and imposed no
further penalty on the other two counts. Appellant filed a timely post-
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sentence motion that was denied on January 31, 2014, and this timely
appeal followed.
On appeal, Appellant raises the following issues for this Court’s
consideration:
I. Whether the evidence was sufficient to convict [Appellant]
at Count 1—Possession of a Controlled Substance With Intent to
Deliver, Count 2—Possession of a Controlled Substance, and
Count 3—Possession of Drug Paraphernalia when the
Commonwealth failed to prove, beyond a reasonable doubt, that
he was in constructive possession of the drugs and drug
paraphernalia?1
1
In his Concise Statement, [Appellant] individually
raised a failure-to-prove-constructive-possession
challenge as to each conviction. (Docket Entry 25).
For purposes of convenience and ease of the reader,
[Appellant] has combined these three identical issues
into one argument in his Brief for Appellant.
II. Assuming, arguendo, that [Appellant] constructively
possessed the drugs, whether the evidence was sufficient to
sustain his conviction at Count 1—Possession of a Controlled
Substance With Intent to Deliver when the Commonwealth failed
to prove, beyond a reasonable doubt, that he possessed the
drugs with the intent to deliver them?
Appellant’s Brief at 5 (footnote in original). Because these issues are
interrelated, we address them concurrently.
In reviewing challenges to the sufficiency of the evidence, “our
standard of review is de novo, however, our scope of review is limited to
considering the evidence of record, and all reasonable inferences arising
therefrom, viewed in the light most favorable to the Commonwealth as the
verdict winner.” Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa. Super.
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2015) (citation omitted). “Evidence is sufficient if it can support every
element of the crime charged beyond a reasonable doubt.” Id. (citation
omitted). The evidence does not need to disprove every possibility of
innocence, and doubts as to guilt, the credibility of witnesses, and the
weight of the evidence are left to the finder of fact. Id. (citation omitted).
We will not disturb the verdict “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.” Id. (citation omitted). Moreover, the
Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
evidence. Commonwealth v. Orr, 38 A.3d 868, 873 (Pa. Super. 2011)
(citation omitted). In applying the above test, the entire record must be
evaluated and all evidence actually received must be considered. Id.
Finally, the trier of fact while passing upon the credibility of witnesses is free
to believe all, part, or none of the evidence. Id.
As noted above, Appellant was convicted of possession of a controlled
substance, PWID, and possession of drug paraphernalia. To prove a
defendant guilty of possession of a controlled substance, the Commonwealth
must prove beyond a reasonable doubt that Appellant possessed a controlled
substance. 35 P.S. § 780-113(a)(16). In order to uphold a conviction for
PWID pursuant to 35 P.S. § 780-113(a)(30), the Commonwealth must prove
beyond a reasonable doubt that the defendant possessed a controlled
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substance and did so with the intent to deliver it. Commonwealth v.
Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000) (en banc). “The intent to
deliver may be inferred from an examination of the facts and circumstances
surrounding the case.” Commonwealth v. Conaway, 791 A.2d 359, 362-
363 (Pa. Super. 2002). “[P]ossession with intent to deliver can be inferred
from the quantity of the drugs possessed and other surrounding
circumstances, such as lack of paraphernalia for consumption.”
Commonwealth v. Jones, 874 A.2d 108, 121 (Pa. Super. 2005). Expert
opinion testimony is also admissible “to aid in determining whether the facts
surrounding the possession of controlled substances are consistent with
intent to deliver.” Commonwealth v. Ratsamy, 934 A.2d 1233, 1237 (Pa.
2007).
When the contraband is not found on the defendant’s person, the
Commonwealth must prove that the defendant had constructive possession
of the contraband, or that the individual had the ability and intent to
exercise control or dominion over the contraband. Commonwealth v.
Dargan, 897 A.2d 496, 503 (Pa. Super. 2006). In a situation where more
than one person has access to the contraband, presence alone will not prove
conscious dominion over the contraband. Commonwealth v. Bricker, 882
A.2d 1008, 1016 (Pa. Super. 2005) (citation omitted). “Rather, the
Commonwealth must introduce evidence demonstrating either Appellant’s
participation in the drug-related activity or evidence connecting Appellant to
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the specific room or areas where the drugs were kept.” Id. (citation
omitted).
Finally, the crime of possession of drug paraphernalia is defined as:
(32) The use of, or possession with intent to use, drug
paraphernalia for the purpose of planting, propagating,
cultivating, growing, harvesting, manufacturing, compounding,
converting, producing, processing, preparing, testing, analyzing,
packing, repacking, storing, containing, concealing, injecting,
ingesting, inhaling or otherwise introducing into the human body
a controlled substance in violation of this act.
35 P.S. § 780–113(a)(32). Drug paraphernalia is defined as: “all
equipment, products and materials of any kind which are used, intended for
use or designed for use in ... storing, containing, concealing ... a controlled
substance in violation of [the Controlled Substance, Drug, Device and
Cosmetic Act, 35 P.S. § 780-101 et seq. (“the Act”)].” Commonwealth v.
Coleman, 984 A.2d 998, 1001 (Pa. Super. 2009). In determining whether
an object is drug paraphernalia, a court should consider, in addition to all
other logically relevant factors, statements by an owner or by anyone in
control of the object concerning its use, the proximity of the object, in time
and space, to a direct violation of the Act, the proximity of the object to
controlled substances, the existence of any residue of controlled substances
on the object, direct or circumstantial evidence of the intent of an owner, or
of anyone in control of the object, to deliver it to persons who he knows, or
should reasonably know, intend to use the object to facilitate a violation of
the Act, the existence and scope of legitimate uses for the object in the
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community, and expert testimony concerning its use. Id. “To sustain a
conviction for possession of drug paraphernalia[,] the Commonwealth must
establish that items possessed by defendant were used or intended to be
used with a controlled substance so as to constitute drug paraphernalia and
this burden may be met by [the] Commonwealth through circumstantial
evidence.” Id. (citation omitted).
As discussed above, Buefort testified that Appellant shared the
bedroom on the right with his girlfriend, Javonna Gibson. N.T., Trial, 10/22-
23/13, at 50. In this bedroom, the police found baggy diapers, two sifters, a
hot plate, baking soda, a digital scale, baggies, and a single piece of crack
cocaine. Id. at 32. This evidence, which was accepted by the fact finder,
proved that Appellant lived in the bedroom on the right, and it allowed the
factfinder to reasonably infer that Appellant had the ability and intent to
exercise control or dominion over the contraband found in his room.
Dargan, 897 A.2d at 503. Pursuant to our standard of review, this evidence
was sufficient to establish that Appellant constructively possessed the
cocaine and paraphernalia, or jointly possessed the cocaine and
paraphernalia. Bricker, 882 A.2d at 1016. We discern no error in the trial
court’s conclusion that this evidence was sufficient to prove Appellant
possessed both the crack cocaine and drug paraphernalia found in the
bedroom on the right.
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However, we are constrained to agree with Appellant that the evidence
was insufficient to prove that he was guilty of PWID. As noted, while
Appellant constructively possessed a single piece of crack cocaine, the
nineteen individually wrapped pieces of crack cocaine discovered in the
house were not in Appellant’s room, but in the room where Buefort and
Parker lived. N.T., Trial, 10/22-23/13, at 16-17. The Commonwealth’s
expert, who concluded that contraband found in the home was consistent
with the intent to deliver, combined the items found in the bedroom on the
right and the items found in the bedroom on the left. Id. at 74-76.
However, there is no evidence connecting Appellant to the bedroom on the
left. As stated, Buefort testified that the room on the left was her room and
that the bedroom on the right was Appellant’s room. Id. at 50. There is no
testimony from the Commonwealth’s expert, or any other witness, that the
small amount of crack cocaine found in Appellant’s room supported the
intent to deliver. Moreover, while there was paraphernalia and packaging
material in Appellant’s room, there is no evidence linking Appellant to
possession of an amount of crack cocaine indicating the intent to deliver.
Additionally, while the phone seized from Appellant contained activity
consistent with street level drug dealing, the record contains no evidence
that Appellant owned the phone or communicated on that phone.
Accordingly, we conclude that the evidence was insufficient to prove PWID,
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and therefore, we reverse Appellant’s conviction and the judgment of
sentence on PWID.
For the reasons set forth above, we affirm Appellant’s judgment of
sentence with respect to possession of a controlled substance and
possession of drug paraphernalia. However, we reverse the guilty verdict
and Appellant’s judgment of sentence on PWID and remand for resentencing
on the remaining counts. 2
Judgment affirmed in part and reversed in part. Case remanded for
resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2015
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2
Because our disposition disturbs the trial court’s overall sentencing
scheme, we remand for resentencing. See Commonwealth v. Tanner, 61
A.3d 1043, 1048 (Pa. Super. 2013) (stating that where this Court upsets the
sentencing scheme envisioned by the trial court, the better practice is to
remand for resentencing).
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