J-S12001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARQUIS JACKSON
Appellant No. 839 EDA 2015
Appeal from the Judgment of Sentence November 6, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005697-2014
BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J.*
MEMORANDUM BY MUNDY, J.: FILED FEBRUARY 12, 2016
Appellant, Marquis Jackson, appeals from the November 6, 2014
aggregate judgment of sentence of 18 to 36 months’ imprisonment, imposed
after the trial court convicted him of possession of a small amount of
marijuana and possession of contraband.1 After careful review, we affirm.
The trial court has set forth the factual history of this case as follows.
Correctional Officer Richardson, an employee
at the Curran-Fromhold Correctional Facility (CFCF)
was working there on February 15, 2014, at
approximately 9:45 p.m. Officer Richardson and
Sergeant Christian were in the process of locking
down their section for the evening when she noticed
Appellant was outside of his cell after all inmates
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*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(1) and 18 Pa.C.S.A. § 5123, respectively.
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were commanded to go to their cells. Appellant then
retrieved a magazine from underneath the door of
Cell # 16. Appellant began to walk towards Cell
# 12, when Sergeant Christian commanded
Appellant to put the magazine down. After
attempting to walk further, Appellant hesitantly
placed the magazine on a table, which the sergeant
retrieved. Sergeant Christian observed that the
magazine contained a piece of paper, which
contained a green leafy substance.
Officer Richardson transported the substance
to the Philadelphia Police 15th District headquarters.
The parties stipulated that the substance was tested
by the Philadelphia Police chemistry lab, and that the
substance was positive for marijuana, and weighed
0.179 grams.
Trial Court Opinion, 4/27/15, at 2 (citations omitted).
A bench trial was held on November 6, 2014, at the conclusion of
which Appellant was found guilty of the aforementioned offenses. Appellant
was sentenced to 18 to 36 months’ imprisonment, to run concurrent to any
other sentence he was serving. On November 17, 2014, Appellant filed a
timely post-sentence motion which was denied by operation of law on March
17, 2015. On March 23, 2015, Appellant filed a timely notice of appeal. 2
On appeal, Appellant raises the following issue for our review.
Was not the evidence insufficient to prove
[Appellant] guilty beyond a reasonable doubt of the
crimes of possession of contraband and possession
of a small amount of marijuana in that the evidence
was insufficient to prove that [Appellant]
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2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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intentionally, knowingly, or recklessly possessed a
controlled substance?
Appellant’s Brief at 3.
We begin by noting our well-settled standard of review. “In reviewing
the sufficiency of the evidence, we consider whether the evidence presented
at trial, and all reasonable inferences drawn therefrom, viewed in a light
most favorable to the Commonwealth as the verdict winner, support the
[finder-of-fact’s] verdict beyond a reasonable doubt.” Commonwealth v.
Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation omitted), cert. denied,
Patterson v. Pennsylvania, 135 S. Ct. 1400 (2015). “The Commonwealth
can meet its burden by wholly circumstantial evidence and any doubt about
the defendant’s guilt is to be resolved by the fact finder unless the evidence
is so weak and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.” Commonwealth v.
Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc) (internal quotation
marks and citation omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an
appellate court, we must review “the entire record … and all evidence
actually received[.]” Id. (internal quotation marks and citation omitted).
“[T]he 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.” Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super.
2011), appeal denied, 32 A.3d 1275 (Pa. 2011), quoting Commonwealth v.
Jones, 874 A.2d 108, 120–21 (Pa. Super. 2005). “Because evidentiary
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sufficiency is a question of law, our standard of review is de novo and our
scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d 119,
126 (Pa. 2013) (citation omitted), cert. denied, Diamond v. Pennsylvania,
135 S. Ct. 145 (2014).
The statutes prohibiting possession of a small amount of marijuana
and possession of contraband, provide in relevant part, as follows.
§ 780-113. Prohibited acts; penalties
(a) The following acts and the causing thereof within
the Commonwealth are hereby prohibited:
…
(31) Notwithstanding other subsections of this
section, (i) the possession of a small amount of
marihuana only for personal use; (ii) the possession
of a small amount of marihuana with the intent to
distribute it but not to sell it; or (iii) the distribution
of a small amount of marihuana but not for sale.
For purposes of this subsection, thirty (30) grams of
marihuana or eight (8) grams of hashish shall be
considered a small amount of marihuana.
…
35 P.S. § 780-113(a)(31).
§ 5123. Contraband
…
(a.2) Possession of controlled substance
contraband by inmate prohibited.--A prisoner or
inmate commits a felony of the second degree if he
unlawfully has in his possession or under his control
any controlled substance in violation of section
13(a)(16) of The Controlled Substance, Drug, Device
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and Cosmetic Act. For purposes of this subsection,
no amount shall be deemed de minimis.
…
18 Pa.C.S.A. § 5123 (footnote omitted).
Instantly, Appellant argues the Commonwealth did not prove beyond a
reasonable doubt that he “knew the magazine he retrieved possessed
marijuana.” Appellant’s Brief at 9. Appellant asserts that the “trial court
here inferred that [Appellant] knew he possessed the marijuana because
[Appellant] hesitated to put down the magazine he had retrieved, before
being locked in for the night.” Id. at 10. Appellant posits the following
argument as an explanation for his reluctance to obey Sergeant Christian.
However, an at least equally probable inference is
that [Appellant] retrieved the magazine despite the
rule requiring him to go directly to his cell at
lockdown and despite the rule against receiving an
item from another inmate at lockdown, and that he
may have been reluctant to give up the item for
which he risked breaking the rules, because he
wished to have reading material before being locked
in for the night.
Id. at 11 (citation omitted). Therefore, the only element Appellant is
challenging pertaining to both crimes is his knowledge that he was in
possession of the marijuana.
Our Supreme Court has held, “[a]n intent to maintain a conscious
dominion may be inferred from the totality of the circumstances.... [and],
circumstantial evidence may be used to establish a defendant’s possession
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of drugs or contraband.” Commonwealth v. Valette, 613 A.2d 548, 549-
550 (Pa. 1992), citing Commonwealth v. Macolino, 469 A.2d 132, 134
(Pa. 1983). At trial, Corrections Officer (C.O.) Richardson testified to the
events of February 15, 2014, as follows.
Q. Can you tell His Honor what you observed going
on on that date?
A. We were locking the pod down for the evening.
Me and my partner, my sergeant, I was locking down
the bottom tier where [Appellant] was being held at
that time. He walked over to 16 cell. After he was
told numerous times to go back to his cell, he
retrieved a magazine from underneath the door at
16 cell. He started to walk back over to 12 cell
where he was supposed to be staying at and my
sergeant told him to put the magazine down.
He tried to walk a little further. He then put
the magazine down on the table. She came down,
retrieved the magazine and opened the front cover
and found a leafy substance in the front rolled up in
a piece of paper in the front of the magazine.
N.T., 11/6/14, at 4-5. He further testified that protocol required he
personally deliver the substance to the Philadelphia 15th District Northeast
Detectives. Id. at 17. A stipulation was subsequently entered that the
substance was taken to Northeast Detectives, then to the Philadelphia Chem
Lab, where the substance tested positive as .179 grams of marijuana. Id. at
25.
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Sergeant Christian also testified to her recollection of the incident. 3
That night I went on the pod to observe the
officers put the pod down and to secure it for the
night, and this young man right here was in 11 cell
at the time. Instead of him going to 11 cell, he went
to 16 cell and after several - - telling him several
times to go to 11 cell where he belonged, he insisted
on getting his magazine that he said he left that one
of the inmates had in the cell. So instead of him
going to his cell, one of the inmates in 16 cell slid his
magazine underneath the door. So when he picked
it up, I advised him to put the magazine on his table
- - on the table and continue to go to his cell, which
was 11 cell.
Id. at 19.
Viewing the evidence in the light most favorable to the
Commonwealth, and bearing in mind that the Commonwealth can meet its
burden by wholly circumstantial evidence, we conclude the Commonwealth
proved Appellant knowingly possessed contraband, to wit, a small amount of
marijuana. See Watley, supra. As the finder of fact, the trial court was
free to make inferences from the testimony presented, and therefore we
conclude the Commonwealth produced sufficient evidence of intent to
sustain the possession of a small amount of marijuana and possession of
contraband convictions. See Diamond, supra.
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3
We note that C.O. Richardson testified that Appellant belonged in cell #12
and Sergeant Christian testified that he belonged in cell #11. This factual
discrepancy was not challenged at trial, nor is it material to the resolution of
the instant appeal.
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Based on the foregoing, we conclude Appellant’s issue is devoid of
merit. Accordingly, we affirm the trial court’s November 6, 2014 judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2016
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Com. v. Jackson, M.
Combined Opinion