J. S03004/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KEVIN DOUGLAS BROWN, : No. 527 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, February 6, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0009758-2013
BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 03, 2016
Kevin Douglas Brown appeals from the judgment of sentence of
February 6, 2015. We affirm.
The trial court convicted appellant of possession of a controlled
substance with intent to deliver, criminal conspiracy, and a violation of the
Uniform Firearms Act1 on July 23, 2014. On February 6, 2015, the trial
court sentenced appellant to an aggregate term of five to ten years’
imprisonment. Appellant filed post-sentence motions, which the trial court
denied on February 18, 2015. This timely appeal followed.
Appellant raises the following issues for our review:
1. Was the evidence insufficient as a matter of
law such that no reasonable factfinder could
1
35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 903(c) and 6105(a)(1),
respectively.
J. S03004/16
have found Mr. Brown guilty of Possession with
Intent to Deliver beyond a reasonable doubt
where there was no evidence of record that
Kevin Brown was involved in any narcotics
transaction nor were any narcotics recovered
from him[?]
2. Was the evidence insufficient as a matter of
law such that no reasonable factfinder could
have found Mr. Brown guilty of Possession of a
Firearm beyond a reasonable doubt when the
only evidence presented on the record was
that Kevin Brown went into a room of a house
where a firearm was ultimately recovered[?]
3. Was the verdict of guilty against the weight of
the evidence because there was uncontradicted
testimony from defense witness Dawn Stinger
that Kevin Brown did not live in the front room
of the residence where the firearm and drug
paraphernalia were found[?]
Appellant’s brief at 9.
Having determined, after careful review, that the Honorable Daniel J.
Anders, in his Rule 1925(a) opinion of June 17, 2015, ably and
comprehensively disposes of appellant’s issues on appeal, with appropriate
reference to the record and without legal error, we will affirm on the basis of
that opinion.
Judgment of sentence affirmed.
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J. S03004/16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/3/2016
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Circulated 02/16/2016 03:12 PM
fN THE COURT OF COMMON PLEAS F PHILADELPHIA COUNTY
FTRST JUDlCIAL DlSTRJCT F PENNSYLVANIA
TRIAL DJVISION - RIMINAL
COMMONWEALTH OF PENNSY L V ANlA CP-5 l-CR-0009758-2013
vs. 527 EDA 2015 FILED
JUN 1 7 2015
KEVTN BROWN
Criminal Appeals Unit
OPINIO First Judicial District of PJ
Following a waiver trial, Defendant Kevin Br wn was convicted of possession of a
controlled substance with the intent to deliver ("PW "), criminal conspiracy, and one violation
of the Uniform Firearms Act. The trial court imposed guideline sentence of 5 to IO years of
incarceration for the convictions. On appeal, Defend· t argues that: (I) the evidence was
insufficient to support the convictions; and (2) the ver ict was against the weight of the evidence.
For the reasons stated below, the Superior Court shoul affirm the judgment of sentence.
FACTUAL BACKGROUND
On July 9, 2013, Philadelphia Police Officer R nald McCutcheon conducted a drug
surveillance of 1457 West Chew Street in Philadelphia Officer McCutcheon gave a confidential
mformant (·'Cl'') $20 in pre-recorded buy money and i istructed tbe CI to attempt to make a
narcotics purchase from a house located at 1457 West hew Street. Officer McCutcheon
observed the Cf knock on the door. engage in a brief c nvcrsation with an unidentified person,
enter the property and then exit the property two rninut ·s later. The CJ returned to Officer
McCutcheon and provided him with two clear Ziploc p ckets containing crack cocaine. N.T.
07/11/2014 at 9-10.
On July I 0, 20 J 3, Officer McCutcheon gave th CI $20 in pre-recorded buy money and
instructed the Cl to attempt to make a narcoucs purchas from the same house. Office,
McCutcheon observed the Cl knock on the front door, igage in a brief conversation with a
black female, enter the property and then exit the pro eny two minutes later. The Cl returned to
Officer McCutcheon and provided him with two or e-tinted Ziploc packets containing crack
cocaine Id. al I I -12.
On July 12, 2013, Officer McCutcheon gave t e CI $20 in pre-recorded buy money and
instructed the Cl lo attempt to make a narcotics purch e from the same house. Officer
McCutcheon observed the CI engage in a brief conve ation with a black male later identified as
Charles Graves, who was sining on the front steps of e house. The Cl gave Graves the $20 in
pre-recorded buy money. Graves entered the property d then exited the property two minutes
later. Graves provided the CI with small objects in ah d-to-hand transaction. The Cl returned
10 Officer McCutcheon and provided him with one p le-tinted Ziploc packet containing crack
cocaine. Id. at 14-17.
Approximately ten to fifteen minutes later, Of cer McCutcheon executed a search
warrant that they had obtained earlier in the day based pon the July 9th and July l 0th narcotics
transactions. Upon entering the house, officers stopped Charles Graves in the kitchen and
arrested rum. Two or three females were on the first f1 r, but were not arrested. Id. at 13, 20-21.
Officer Weaver participated in the execution of he search warrant of 1457 Chew
Avenue. She was the first police officer to go to the sec nd floor. When she arrived on the
second floor, she observed Defendant coming out of a athroom either wearing a towel or
completely naked. Defendant asked Officer Weaver if could get dressed, to which she said he
could. Defendant then walked into the front bedroom. fficer Weaver followed him into the
front bedroom and allowed him lo get dressed. Defend rt dressed himself with clothes from the
front bedroom Officer Weaver did not take or bring De endant to the front bedroom; rather, she
followed him into the bedroom that he chose to enter. I. at 32-JJ, 37-40, 46.
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Police recovered $1,587 from this front bedr m, including the $20 in pre-recorded buy
money that was used by the CJ less than 15 minutes arlier to purchase narcotics. The$ J ,587
was in the following denominations: one $50 bill, tw Ive $20 bills, fourteen $10 bills, 14 $5 bills
and 947 $1 bills. Police also recovered the following terns from the front bedroom where
Defendant was arrested: two bags containing new an used narcotics packaging, a digital scale, a
letter addressed to Defendant, and a .25 caliber Titan erniautornatic firearm loaded with two live
rounds. The letter was recovered from on top of the dresser; the packaging, scale. and firearm
were recovered from mside a closet located in the bed oom; and the firearm was recovered from
inside a shoebox that was one of several shoeboxes st eked in the closet. The front bedroom
contained men's clothing and toiletries; there was no male clothing in the bedroom. N.T.
07/11/2014 al 24-27, 40-44, 48; N.T. 07/18/2014 at 6-
After he was arrested, Defendant told police of icers that he resided al 1457 Chew
Avenue. Defendant was never observed engaging in y narcotics transactions on July 9, 2013,
July 10, 2013, or July 12, 2013 N.T 07/11/2014 at 28 29, 35.
Defense counsel presented the testimony of Da Stinger, who testified that Defendant
had Just returned from work and was taking a shower u stairs when police executed the search
warrant. According to Stinger, Graves used the front b room and Defendant used the rear
bedroom. Id. at 59-60.
The trial court chose to credit the testimony of lice Officer Weaver based upon her
demeanor and manner of testifying. N.T. 07/23/2014 at . The trial court did not automatically
credit her testimony based upon her status as a police o cer, but chose to credit her testimony in
light of the totality of circumstances See Commonwealt v. Harrison, 323 A.2d 72 (Pa. Super.
Ct. 1974) (holding that to presume that any police office called by the Commonwealth is
truthful constitutes "such a display of partiality as to con titute basic and fundamental error").
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DISCUSSION
There Is Sufficient Evidence To Su rt The Convictions
Defendant asserts that the evidence was insuf icient to support the PWID and VUF A
convictions. Appellate courts review claims regardi the sufficiency of the evidence by
considenng whether, viewing all the evidence admitt d at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable e fact-finder lo find every element of the
crime beyond a reasonable doubt. Commonwealth v. radley, 69 A.3d 253, 255 (Pa. Super. Ct.
20 J 3). The appellate court must evaluate the entire re ord and consider all evidence actually
received. Id. Further, a conviction may be sustained holly on circumstantial evidence, and the
trier of fact-while passing on the credibility of thew tnesses and the weight of the evidence-is
free to believe all, part, or none of the evidence. Id. In conducting this review, the appellate court
may not weigh the evidence and substitute its judgme t for the fact-finder. Id.
a. There Ts Sufficient Evidence T Su ort The PWID Conviction
To support Defendant's PWlD conviction, the ommonwealth must have proved beyond
a reasonable doubt that: (1) Defendant possessed a co trolled substance; and (2) he possessed it
with the intent to deliver. Commonwealth v. Bricker, 8 2 A.2d l 008, l 015 (Pa. Super. Ct. 2005 ).
Possession with intent to deliver can be inferred from he quantity of the drugs possessed, the
manner in which they are individually packaged, the b havior of the defendant, and other
circumstances, such as a Jack of drug user paraphemal a and the reputation of the area for
narcotic sales activity /11 the Interest of Evans, 717 A .. d 542, 546 (Pa. Super. Ct. 1998);
Commonwealth v. Ratsamy, 934 A.2d 1233, 1239 (Pa. 007).
Here. there is sufficient evidence to establish b yond a reasonable doubt that Defendant
possessed the narcotics. Where, as here, the def end an is not found with contraband on his
person, the Commonwealth must show that he had co structive possession of the seized items,
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which has been defined as the "ability and intent to sxercise control over the substance."
Commonwealth v. Hutchinson. 947 A.2d 800, 806 ( a. Super. Ct. 2008). Constructive
possession is defined as "conscious dominion;" whi h itself is defined as, the power to control
the contraband and the intent to exercise that control Commonwealth v, Mudrick, 507 A.2d
1212, 1213 (Pa. 1986). Constructive possession may be established by the totality of the
circumstances. Id An inference of constructive poss ssion arises from a set of facts that
Defendant's possession was more likely than not. C imonwealth v. Macolino, 318 A.2d 132,
134 (Pa. l 983). "Individually, the circumstances ma not be decisive; but in combination, they
may justify an inference that the accused had both th power to control and the intent to exercise
that control. . " Commonwealth v. DeCampli, 364 .2d 454, 456 (Pa. Super. Ct. 1976). A
defendant's movement and behavior observed by pol ce, in addition to the fact that contraband
was found within the area of defendant's immediate ntrol, establishes constructive
possession. Commonwealth v, Stembridge, 579 A.2d 01, 903 (Pa. Super. CL 1990);
Commonwealth v. Ortega, 539 A.2d 849, 851 (Pa. Su er. Ct. 1988).
Here, there is sufficient evidence to prove beyo d a reasonable doubt that Defendant
constructively possessed the cocaine. The trial court er ·dited the testimony of Officer Weaver
that the cocaine was discovered in the front bedroom ere Defendant brought the officers and
where Defendant changed into his clothing. Defendant as the only occupant of the room at the
time of the search, and Defendant admitted that he live in the house. The room was a private
bedroom and was not a common area The letter recove ed from the same room addressed to
Defendant, along wuh the male cloth mg, male toi letrie and absence of female clothing, led the
fact-finder to believe beyond a reasonable doubt that th s was Defendant's room. Further, the
trial court discredited Stinger's testimony about which om belonged to Defendant because her
statements were inconsistent with the weight of the othe evidence produced at trial. See
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Commonwealth v Walker, 874 A.2d 667, 678 (Pa. S per. Ct. 2005) (finding that a defendant
constructively possessed drugs and guns found in bas ment of residence where: (1) the basement
contained three rooms: a bedroom with a closet, a bat oorn, and an office filled with drugs and
guns; (2) the bedroom closet contained men's clothin ; (3) mail addressed 10 the defendant was
found in the office; (4) after being arrested defendant equested to retrieve his shin and his shoes
from the bedroom; and (5) defendant adrrutled that he resided at residence).
Here, there is sufficient evidence to prove bey nd a reasonable doubt that Defendant
possessed the cocaine, and that he possessed it with t e intent to deliver based on; ( 1) the large
amount of money-$1,587 in cash, including the pre recorded buy money recovered from the
front bedroom; (2) the denominations of the recovere money: one $50 bill, twelve $20 bills,
fourteen $IO bills, 14 $5 bills, and 947 $1 bills; (3) t at Defendant voluntarily and freely led
police into the front bedroom where the money, the g n, and the scale were found; (4) the scale
recovered along with the new and used packaging; (5 the buy money from that same day was
recovered in Defendant's room; (6) Defendant told th officers that he resided at the house, and
(7) the letter addressed lo Defendant recovered from n top of the dresser. Expert testimony
about the denominations of the recovered money was unnecessary in this case because the fact-
finder could use common sense to determine whether the substantial amount cash recovered
was circumstantial evidence of Defendant's intent 10 eliver. See Commonwealth v. Baker, 72
A.3d 652 (Pa. Super Ct 2013) (concluding that expe t testimony was unnecessary because of
the other evidence in the case. including baggies, ove $2,300 in cash recovered with the drugs,
and pre-recorded buy money).
Based on the foregoing, there was sufficient e idence at trial to support the PWID
convicuon
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b.
Defendant asserts that the evidence was msuf icient to support the VVF A convrcuon
under J 8 Pa C S § 6105 To sustain a conviction und r Section 6105, there must be sufficient
evidence to prove beyond a reasonable doubt that De endant possessed a firearm and that he was
convicted of an enumerated offense that prohibited h · from possessing, using, controlling, or
transferring a firearm Secuon 6105 defines "firearm' as any weapon that rs "designed 10 or may
readily be converted to expel any projectile by the ac ion of an explosive or the frame or receiver
of any such weapon " I 8 Pa C. S § 6 I 05; Commonw /ch v. Thomas, 988 A.2d 669, 670 (Pa.
Super. Ct 2009)
Here, because Defendant did not pliystcallv p ssess the firearm, the Commonwealth must
have proven beyond a reasonable doubt that Defend t constructively possessed the firearm. For
the same reasons discussed supra at 4-6, there is suffi rent evidence lo prove beyond a
reasonable doubt that Defendant constructively posse sed the firearm. See Walker, 874 A.2d al
678
Based on the foregoing, it was reasonable for he trial court to conclude that Defendant
construcnvely possessed the firearm, i.e.. he had the power and intent to exercise control over 1L
Also, Defendant stipulated that he was prohibited fr m possessing a firearm under Section 6105
and that the firearm w as operable. N.T. 07/1112014 l 52-53 Viewing this evidence in a light
most favorable to the Commonwealth, there rs suffi icnt direct and circumstantial evidence to
support the VUFA conviction.
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2. The Verdict Was Not A ainst The We ht Of The Evidence
Defendant asserts that the verdict was against he weight of the evidence as to the PWID
conviction. When evaluating the weight of the evide ce, the standard of review is as follows:
The weight of the evidence rs exclusiv ly for the finder of fact who
JS free lo believe all, part, or none oft e evidence and to determine
the credibi lity of the witnesses. appellate court cannot
substitute rts judgment for that of t e finder of fact. Thus [the
Superior Court] may only reverse the lower court's verdict if it is
so contrary to the evidence as to sh ck one's sense of justice.
Moreover, where the trial court has ruled on the weight claim
below, an appellate court's role is no to consider the underlying
question of whether the verdict is against the weight of the
evidence, Rather, appellate review is limited lo whether the trial
court palpably abused its discretion in uling on the weight claim.
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003).
1n light of the overwhelming evidence as sun arized above, the verdict is not contrary to
the evidence and does not shock one's sense of justice
CONCLUSION
Based on the foregoing, the judgment of sente ce should be affirmed .
'>.
T
RS, JUDGE
Dated. June 17, 2015
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