J-S30031-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TEKEESHA L. LOVELACE
Appellant No. 3240 EDA 2014
Appeal from the Judgment of Sentence July 18, 2014
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000458-2014
CP-15-CR-0001478-2014
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JULY 14, 2015
Appellant Tekeesha Lovelace appeals from the judgment of sentence
entered in the Chester County Court of Common Pleas following her jury trial
conviction for possession of a controlled substance.1 We affirm.
The trial court sets forth the relevant facts of this appeal as follows:
On November 29, 2013 at approximately 2:45 p.m.,
Officer Marquette and Officer Corcoran of the Coatesville City
____________________________________________
1
35 P.S. § 780-113(a)(16). In addition to possession of a controlled
substance, Appellant was convicted of driving under the influence of a
controlled substance (“DUI”) (75 Pa.C.S. § 3802(d)(2)), endangering welfare
of children (18 Pa.C.S. § 4304(a)(1)), possession of drug paraphernalia (35
P.S. § 780-113(a)(32)), and recklessly endangering another person (18
Pa.C.S. § 2705). Appellant challenges only her possession of a controlled
substance conviction in the instant appeal.
J-S30031-15
Police Department were on duty in full uniform in a marked
patrol vehicle. They were travelling in the area of South 6 th
Avenue and Olive Street in Coatesville, Chester County,
Pennsylvania, when they observed a dark colored SUV with dark
tinting on the front driver’s side and front passenger’s side
windows. Due to the level of tinting, neither Officer was able to
see into the vehicle through the front passenger’s side window.
The SUV began to move, and Officer Marquette was able to see
the driver through the vehicle’s front windshield, which was not
tinted. He immediately recognized the driver as [Appellant].
Based upon prior contacts with [Appellant], Officer Marquette
believed her driving privileges were suspended. He radioed into
dispatch, and Corporal Ingemie of the Coatesville City Police
Department confirmed that [Appellant’s] license was, in fact,
suspended. Based upon this information, Officer Marquette
initiated a traffic stop.
Officer Marquette approached [Appellant] and requested
her license, registration and insurance information. [Appellant]
told him that she had no license to provide. While speaking with
[Appellant], Officer Marquette noticed a chemical smell
emanating from the vehicle. He also observed that [Appellant]
was swaying, her eyes were wandering, and she could not
formulate complete sentences. He also observed three small
children, ages eight (8), four (4) and one (1) years old, in the
back seat of the vehicle, some of whom were not properly
restrained.
Corporal Ingemie and Officer Galletta of the Coatesville
City Police Department arrived on the scene while the traffic stop
was taking place. Officer Galletta then conducted field sobriety
tests (hereinafter “FSTs”) on [Appellant]. At one point, he had
to support [Appellant] to keep her from falling. At first,
[Appellant] was fairly lethargic, but she became more aggressive
and combative while the FSTs were being administered.
Based on the foregoing, [Appellant] was charged with
[DUI], [d]riving while [o]perating [p]rivilege is [s]uspended or
[r]evoked, [r]ecklessly [e]ndangering [a]nother [p]erson,
[e]ndangering [w]elfare of [c]hildren, and related offenses. She
was placed under arrest and asked to submit to a blood test, but
she refused.
During the stop, a “dipper” was found in plain view in the
center console of the vehicle by Corporal Ingemie. A “dipper” is
-2-
J-S30031-15
a cigarette that is dipped into a chemical such as PCP and then
smoked. The “dipper” was bagged and sent to the lab for
analysis. It tested positive for PCP. After the police received the
lab report confirming the presence of PCP, [Appellant] was also
charged with Possession of a Controlled Substance.
Trial Court Opinion, filed July 1, 2014, at 1-3.
After a three-day trial, a jury found Appellant guilty of DUI,
endangering welfare of children, possession of a controlled substance,
possession of drug paraphernalia, and recklessly endangering another
person. The trial court sentenced her to an aggregate of 8 to 23 months’
incarceration followed by 3 years’ probation. Appellant filed a post-sentence
motion seeking dismissal of all charges, reversal of all convictions, and/or a
new trial, which the court denied on October 20, 2014. Appellant timely
filed her notice of appeal on November 17, 2014. Both Appellant and the
trial court complied with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
[1.] The trial [court] erred when it failed to reverse the
verdict of guilty of the [p]ossession of a [c]ontrolled [s]ubstance
when the court in reviewing the sufficiency of the evidence found
that there is sufficient evidence to enable the fact-finder to find
every element of the crime beyond a reasonable doubt.
[2.] The Appellant is entitled to a new trial as facts
presented at trial indicated that the Appellant was not guilty
were so clearly of greater weight that to have ignored them or to
give them equal weight with all the facts was to deny Appellant
justice. Commonwealth v. Cesar, 911 A.2d 978
(Pa.Super.2006).
Appellant’s Brief, p. 4.
-3-
J-S30031-15
Appellant first claims that the Commonwealth adduced insufficient
evidence to support her conviction for possession of a controlled substance.
See Appellant’s Brief, pp. 12-19. Specifically, Appellant argues that the
Commonwealth failed to prove Appellant actually or constructively possessed
the PCP-laced cigarette found in her vehicle. See id. Her argument relies
solely on the fact that, at the time police pulled her over, there was an
individual in the passenger’s seat of her vehicle whom the police later
released. Id. Appellant contends that, because this passenger had equal
access to the PCP-laced cigarette, the Commonwealth failed to prove that
she herself possessed the PCP-laced cigarette. Id. This claim lacks merit.
When examining a challenge to the sufficiency of evidence, this Court’s
standard of review is as follows:
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
[trier] 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.
-4-
J-S30031-15
Commonwealth v. Smith, 97 A.3d 782, 790 (Pa.Super.2014).
The offense of possession of a controlled substance makes illegal:
Knowingly or intentionally possessing a controlled or counterfeit
substance by a person not registered under [The Controlled
Substance, Drug, Device and Cosmetic Act], or a practitioner not
registered or licensed by the appropriate State board, unless the
substance was obtained directly from, or pursuant to, a valid
prescription order or order of a practitioner, or except as
otherwise authorized by [The Controlled Substance, Drug,
Device and Cosmetic Act].
35 P.S. § 780-113(a)(16).
Possession of a controlled substance may be either actual or
constructive. Commonwealth v. Aviles, 615 A.2d 398, 401
(Pa.Super.1992). Where police do not find drugs on a defendant’s person,
the Commonwealth can only properly convict by proving constructive
possession. Id.
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. Parker, 847 A.2d 745, 750 (Pa.Super.2004). “As with
any other element of a crime, constructive possession may be proven by
circumstantial evidence.” Commonwealth v. Haskins, 677 A.2d 328, 330
(Pa.Super.1996). “The intent to exercise conscious dominion can be inferred
-5-
J-S30031-15
from the totality of the circumstances.” Commonwealth v. Kirkland, 831
A.2d 607, 610 (Pa.Super.2003). Further, “[c]onstructive possession may be
found in one or more actors where the item in issue is in an area of joint
control and equal access.” Commonwealth v. Valette, 613 A.2d 548, 550
(Pa.1992); see also Commonwealth v. Haskins, 677 A.2d 328, 330
(Pa.Super.1996) (multiple people may constructively possess the same
item).
The trial court summarized the trial evidence thusly:
The record reflects that [Appellant] was the owner and driver of
the vehicle in which the PCP[-]laced cigarette was found. When
police approached [Appellant’s] vehicle for a window tinting
violation, they noticed that [Appellant’s] eyes were bloodshot
and moving erratically from side to side, her head was swaying
and she had a hard time formulating sentences. She had a hard
time keeping her balance and she used her arm to steady herself
when she walked around the vehicle. The officer saw a
discolored cigarette filter in plain view in the center console[2]
and could detect the smell of PCP (a distinctive sweet chemical
smell) emanating from the car. While the front seat passenger
of the vehicle was identified, she did not stagger, slur her words,
or show any other sign of being intoxicated or impaired. Even
though [Appellant] attempted to claim that the PCP[-]laced
cigarette belonged to the passenger in her car, the jury did not
believe her.
Trial Court Pa.R.A.P. 1925(a) Opinion (“1925(a) Opinion)”, filed February 3,
2015, p. 4. This evidence established the elements of possession of a
____________________________________________
2
We note that the center console where police saw the “dipper” constitutes
an area of joint control and equal access to both Appellant and her
passenger.
-6-
J-S30031-15
controlled substance beyond a reasonable doubt. The fact that police did not
charge the passenger with possession of a controlled substance does not
render Appellant innocent of the crime. Accordingly, Appellant’s sufficiency
of the evidence claim fails.
Appellant next claims that the verdict was against the weight of the
evidence. See Appellant’s Brief, p. 20-26. Appellant bases this claim on
minor inconsistencies in the police officers’ testimony and an alleged custody
chain failure regarding the PCP-laced cigarette. See id. She is again
incorrect.
The denial of a new trial based on a lower court’s determination that
the verdict was not against the weight of the evidence is one of the least
assailable reasons for granting or denying a new trial. See
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.2013). This Court
reviews weight of the evidence claims pursuant to the following standard:
A motion for new trial on the grounds that the verdict is contrary
to the weight of the evidence, concedes that there is sufficient
evidence to sustain the verdict. Thus, the trial court is under no
obligation to view the evidence in the light most favorable to the
verdict winner. An allegation that the verdict is against the
weight of the evidence is addressed to the discretion of the trial
court. A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. A trial judge must
do more than reassess the credibility of the witnesses and allege
that he would not have assented to the verdict if he were a
juror. Trial judges, in reviewing a claim that the verdict is
against the weight of the evidence do not sit as the thirteenth
juror. Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of
-7-
J-S30031-15
greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal
citations, quotations, and footnote omitted).
Stated differently, a court may award a new trial because the verdict is
against the weight of the evidence only when the verdict is so contrary to
the evidence as to shock one’s sense of justice, 3 “such that right must be
given another opportunity to prevail.” Commonwealth v. Goodwine, 692
A.2d 233, 236 (Pa.Super.1997). Moreover, appellate review of a weight
claim consists of a review of the trial court’s exercise of discretion, not a
review of the underlying question of whether the verdict is against the
weight of the evidence. Widmer, 744 A.2d at 753. When reviewing the
trial court’s determination, this Court gives the gravest deference to the
findings of the court below. We review the court’s actions for an abuse of
discretion. Id.
____________________________________________
3
This Court has explained the notion of “shocking to one’s sense of justice”
as follows:
When the figure of Justice totters on her pedestal, or when the
jury’s verdict, at the time of its rendition, causes the trial judge
to lose his breath, temporarily, and causes him to almost fall
from the bench, then it is truly shocking to the judicial
conscience.
Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.Super.2004)
(internal citations and quotations omitted).
-8-
J-S30031-15
Simply stated, the jury’s verdict in this matter illustrates that the jury
found the testimony of the Commonwealth’s witnesses credible, and
Appellant’s testimony incredible. This evidence, as discussed supra, proved
every element of the crime of possession of a controlled substance. The trial
court agreed with the jury’s assessment in denying Appellant’s post-
sentence motion for a new trial based on the weight of the evidence. As the
trial court noted, nothing about the verdict or the trial court’s reasoning
shocks the conscience. See 1925(a) Opinion, p. 5. Thus, Appellant’s weight
of the evidence claim warrants no relief.
For the preceding reasons, we affirm Appellant’s judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2015
-9-