J-S43006-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES BROWN,
Appellant No. 3529 EDA 2013
Appeal from the Judgment of Sentence of October 24, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001988-2012
BEFORE: GANTMAN, P.J., PANELLA AND OLSON, JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 19, 2015
Appellant, James Brown, appeals from the judgment of sentence
entered on October 24, 2013, as made final by the denial of Appellant’s
post-sentence motion on November 12, 2013. We affirm.
The trial court ably and thoroughly summarized the factual and
procedural posture of this case. As the trial court explained:
On June 3, 2011, police arrested and charged Appellant with
possession of a controlled substance with intent to deliver
[(“PWID”)], conspiracy to commit PWID, possession of an
instrument of crime [(“PIC”)],[1] and other related charges.
On June 25, 2013, Appellant proceeded to a jury trial on the
charges of PWID, conspiracy to commit PWID, and PIC.
...
____________________________________________
1
35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903(c), and 18 Pa.C.S.A.
§ 907(a), respectively.
J-S43006-15
[During Appellant’s trial], Police Officer Gary Francis
testified that[,] on May 24, 2011, in the late afternoon, he
[and] his partner[,] Police Officer Bradford Mitchell[, were]
conducting surveillance on the 5500 block of Crowson
Street[, in Philadelphia]. Officer Francis testified that he
was at that area with his partner based on information from
a confidential informant [(“CI”),] regarding alleged narcotics
sales on the 5500 block of Crowson Street. . . .
Officer Francis testified that they first drove by the area that
day looking specifically for the addresses of 5542 and 5534
Crowson Street, and when they did, they saw [Appellant]
and another male[, named] Darnell Cooper[,] standing on
the front porch [of] 5542 Crowson Street. The officers met
the CI and gave him/her pre-recorded buy money and
directed the CI to the location of 5542 Crowson Street.
Officer Francis testified that he observed the CI approach
[Appellant] and Mr. Cooper [and begin] a conversation with
the two men. The officer testified that[,] after [] the brief
conversation, Appellant left 5542 Crowson Street and
walked down [the street] to [] go inside [of] 5534 Crowson
Street. Then Appellant came back to 5542 Crowson and
approached the CI. The CI handed [Appellant] the pre-
recorded buy money in exchange for small objects which
[Appellant gave] him. The CI left the area and met with
Officer Mitchell and gave the officer three vials containing []
crack cocaine and one packet of [] crack cocaine which was
placed on [a] property receipt.
. . . Officer Francis testified [that, on the next day, he and
Officer Mitchell] went back to the same area at around the
same time, to continue [their] investigation of [Appellant].
Officer Francis testified that . . . they again saw [Appellant]
and Mr. Cooper standing on the front porch of 5542
Crowson Street. They then went and met with the same CI
and performed the same procedure as the day before,
where the CI was given pre-recorded buy money and
directed to the same area. Officer Francis testified that he
observed the CI again approach [Appellant] and[,] after a
brief conversation, Appellant left 5542 Crowson Street,
walked down to and went inside 5534 Crowson Street[, and
came] back to 5542 Crowson[, where Appellant] accept[ed]
the pre-recorded buy money from the CI in exchange for
-2-
J-S43006-15
small objects[,] which Appellant [gave] to the CI. The CI
then left and met again with Officer Mitchell, this time
giving him two clear packets of [] crack cocaine, which
again was place[d] on [a] property receipt.
On May 31, 2011, Officer Francis testified[,] he and Officer
Mitchell went back to that same location around the same
time and again observed Appellant and Mr. Cooper standing
on the front porch of 5542 Crowson Street. Officer Francis
testified that they set up surveillance and observed two
different females approach [Appellant] at two different
times and engage in the same type of activity that the
officers had witnessed the CI had with Appellant on the two
other days. Officer Francis also testified that he contacted a
uniformed police officer to stop and [ask Appellant] and Mr.
Cooper for identification. [Appellant] was not arrested at
that time as the officers were trying to further their
investigation and to see whether there were any other
locations involved besides 5542 and 5534 Crowson Street. .
. . [Officer Francis also testified that, following the
interaction between the uniformed police officer and
Appellant and Mr. Cooper, Appellant and Mr. Cooper
retreated inside of 5542 Crowson Street. N.T. Trial,
6/26/13, at 86-90 and 107.]
On June 2, 2011, Officer Mitchell went back to the same
area himself with the same CI and performed the same
procedure as the [prior two buys], where the CI was given
pre-recorded buy money and directed to [5542 Crowson
Street]. Officer Mitchell testified that both Appellant and
Mr. Cooper were again in front of 5542 Crowson Street and
this time Mr. Cooper approached the CI and after a short
conversation with the CI, Mr. Cooper went and entered []
5534 Crowson Street. After about a minute, Mr. Cooper
exited 5534 Crowson Street[,] went back to the CI[,] and
handed [the CI] something in exchange for the pre-
recorded buy money. The CI [] left the area and Officer
Mitchell [started to follow the CI]. . . . Mr. Cooper [then]
went back [and walked inside of] 5542 Crowson Street.
Officer Mitchell [] met with the CI[,] who turned over to him
two clear packets [] containing [] crack cocaine.
Based on this information[,] the officers obtained a search
and seizure warrant for 5542 and 5534 Crowson Street. On
-3-
J-S43006-15
June 3, 2011, the officers went back to the location with the
search and seizure warrant. Officer Mitchell testified that
they first executed the search warrant on the property of
5542 Crowson Street. [“Darnell Cooper” was identified as
the resident of 5542 Crowson Street. N.T. Trial, 6/26/13, at
126-127 and 167.] . . .
After being let in by Mr. Cooper’s mother, Officer Mitchell
testified that he confiscated a .38 revolver loaded with five
live rounds of ammunition from the dining room area on top
of a [china] cabinet. Also confiscated from that same
[china] cabinet[] was a clear plastic bag with 26 purple
packets each containing . . . crack cocaine, other unused
purple packets, as well as a scale. Officer Mitchell testified
that based on his years of experience [the paraphernalia]
recovered [was] used specifically for packaging and
weighing narcotics. . . .
All the items recovered were placed on [a] property receipt.
Officer Mitchell then testified that they [] executed the
search warrant on 5534 Crowson Street. The officers had
to make a forced entry because no one answered the door.
There was nothing recovered from that location as it was
empty other than some work tools, as it looked like the
house was being renovated. [Appellant and] Mr. Cooper
were placed under arrest outside of 5542 Crowson Street.
[During trial, the parties stipulated that all of the alleged
crack cocaine that was either purchased by the CI or found
at 5542 Crowson Street tested positive for cocaine. N.T.
Trial, 6/26/13, at 155-157.]
...
On June 27, 2013, the jury found Appellant guilty of PWID,
conspiracy to commit PWID, and PIC. On October 24, 2013,
[the trial court] sentenced Appellant [to serve an aggregate
term of three-and-a-half to nine years in prison for his
convictions].
Trial Court Opinion, 9/5/14, at 1-5 (internal citations omitted and some
internal capitalization omitted).
-4-
J-S43006-15
On November 12, 2013, the trial court denied Appellant’s timely post-
sentence motion. Appellant filed a timely notice of appeal and Appellant
now raises one claim on appeal:
Whether the evidence was insufficient to support the verdict
of guilty on the charge of possession of an instrument of
crime (gun)?
Appellant’s Brief at 4.
Appellant claims that the evidence was insufficient to support his PIC
conviction. We review Appellant’s sufficiency of the evidence challenge
under the following standard:
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 [that of] 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.
-5-
J-S43006-15
Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en
banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806
(Pa. Super. 2008).
According to Appellant, the evidence was insufficient to support his PIC
conviction because there was no evidence that he possessed the firearm.
Specifically, Appellant claims that the Commonwealth failed to demonstrate
“that [Appellant] knew that the gun was atop the china cabinet in [Darnell
Cooper’s] residence[, at 5542 Crowson Street].” Appellant’s Brief at 14
(emphasis in original). This claim fails.2
“In [] possession cases, the Commonwealth may meet its burden by
showing actual, constructive, or joint constructive possession of the
contraband.” Commonwealth v. Thompson, 428 A.2d 223, 224 (Pa.
____________________________________________
2
As we have summarized:
To prove PIC, the Commonwealth must demonstrate that
the defendant “possesses any instrument of crime with
intent to employ it criminally.” 18 Pa.C.S.A. § 907. An
instrument of crime is defined as “[a]nything specially made
or specially adapted for criminal use” or “[a]nything used
for criminal purposes and possessed by the actor under
circumstances not manifestly appropriate for lawful uses it
may have.” 18 Pa.C.S.A. § 907(d). It is undisputed that a
gun can be an instrument of crime.
Commonwealth v. Stokes, 38 A.3d 846, 854 (Pa. Super. 2011). On
appeal, Appellant claims only that the Commonwealth failed to prove “that
[Appellant] knew that the gun was atop the china cabinet in [Darnell
Cooper’s] residence[, at 5542 Crowson Street].” Appellant’s Brief at 14
(emphasis in original). Our review is thus limited to the specific claim
Appellant raises on appeal.
-6-
J-S43006-15
Super. 1981). Actual possession is proven “by showing . . . [that the
contraband was] found on the [defendant’s] person.” Commonwealth v.
Macolino, 469 A.2d 132, 134 (Pa. 1983). If the contraband is not
discovered on the defendant’s person, the Commonwealth may satisfy its
evidentiary burden by proving that the defendant had constructive
possession of the contraband. Id. “Constructive possession has been
defined as the ability to exercise a conscious dominion over the illegal
[contraband]: the power to control the contraband and the intent to
exercise that control.” Id.
With respect to the element of “knowledge” in a possessory offense,
this Court held:
an awareness of the presence of the items which [the
defendant] was accused of having [is] an essential element
of his supposed intent to control. But this knowledge need
not be proven by his admission of such knowledge, or by
testimony of his associates that he saw these articles. The
defendant’s knowledge of the presence of these
articles may be inferred from all the surrounding
circumstances.
Commonwealth v. Gladden, 311 A.2d 711, 712 (Pa. Super. 1973) (en
banc) (emphasis added) (internal quotations and citations omitted) (some
internal capitalization omitted).
On appeal, Appellant claims that the Commonwealth failed to prove
“that [Appellant] knew that the gun was atop the china cabinet in [Darnell
Cooper’s] residence[, at 5542 Crowson Street].” Appellant’s Brief at 14
(emphasis omitted). However, viewing the evidence in the light most
-7-
J-S43006-15
favorable to the Commonwealth, we conclude that the evidence was
sufficient to prove that Appellant knew that the gun was on top of the china
cabinet.
At trial, the Commonwealth proved that Appellant and Darnell Cooper
were involved in a conspiracy to sell crack cocaine and that they jointly
possessed the crack cocaine, the drug paraphernalia, and the firearm that
was found in or on the china cabinet inside of 5542 Crowson Street. To
summarize, viewing the evidence in the light most favorable to the
Commonwealth, the Commonwealth proved that: Appellant and Darnell
Cooper stationed themselves on the front porch of 5542 Crowson Street to
meet cocaine purchasers; 5542 Crowson Street was a furnished and
occupied house that the Commonwealth identified as belonging to “Darnell
Cooper;” the prospective cocaine purchasers would walk up to 5542 Crowson
Street and, from the sidewalk, would speak to Appellant and Mr. Cooper;
while Appellant and Mr. Cooper stood on the front porch of 5542 Crowson
Street, Appellant and Mr. Cooper would culminate their agreement with the
buyers to sell crack cocaine; after arriving at their agreement, either
Appellant or Mr. Cooper would enter the (otherwise empty and unfurnished)
house at 5534 Crowson Street and retrieve a specific amount of crack
cocaine; after retrieving the crack cocaine, Appellant or Mr. Cooper would
walk back to the sidewalk in front of 5542 Crowson Street and exchange the
crack cocaine with the purchaser for money; and, at the conclusion of the
sale, Appellant or Mr. Cooper would walk back up to the front porch of 5542
-8-
J-S43006-15
Crowson Street and stand ready to make another sale. Further, at trial, the
Commonwealth proved that Appellant was permitted entry into 5542
Crowson Street, as Officer Francis testified that Appellant and Mr. Cooper
retreated into 5542 Crowson Street on May 31, 2011, after being questioned
by the police. Finally, the Commonwealth proved at trial that, at the time of
the search: there was no crack cocaine inside of the empty house at 5534
Crowson Street; there was a substantial amount of crack cocaine inside of
the occupied house at 5542 Crowson Street; all of the cocaine found in 5542
Crowson Street was inside of a china cabinet and was individually packaged
in “purple packets;” also inside of the china cabinet were empty “purple
packets” and a scale that was used to weigh narcotics; and, on top of the
same china cabinet that contained all of the crack cocaine and drug-dealing
paraphernalia was a .38 caliber revolver.
We conclude that, viewing this evidence in the light most favorable to
the Commonwealth – and giving the Commonwealth every reasonable
inference from these facts – the evidence is clearly sufficient to prove that
Appellant “knew that the gun was atop the china cabinet.” Appellant’s Brief
at 14 (emphasis omitted). Certainly, the evidence demonstrates that
Appellant and Mr. Cooper used the otherwise empty and unfurnished house
at 5534 Crowson Street as their daily “stash house,” but used the occupied
and furnished home at 5542 Crowson Street as the base of their joint, illicit,
drug-dealing operation. Further, the evidence demonstrates that Appellant
and Mr. Cooper used the china cabinet inside of 5542 Crowson Street to
-9-
J-S43006-15
store all of their crack cocaine and related, drug-dealing paraphernalia and
instruments – including the firearm. Thus, a reasonable juror could conclude
that the firearm was jointly possessed by Appellant and Mr. Cooper to
protect their joint, illegal operation. The evidence was thus sufficient to
prove that Appellant knew the firearm was on top of the china cabinet. See
Gladden, 311 A.2d at 712-713 (holding that “[t]he defendant’s knowledge
of the presence of [the] articles may be inferred from all the surrounding
circumstances”); see also Stokes, 38 A.3d at 854 (holding that the totality
of the circumstances proved the defendant was aware of, and constructively
possessed, the firearm that was discovered in the home).
Appellant’s sufficiency of the evidence claim fails.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2015
- 10 -