J-S39022-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NAFIS ANTUAN FAISON,
Appellant No. 2037 MDA 2015
Appeal from the Judgment of Sentence March 25, 2015
in the Court of Common Pleas of Lycoming County
Criminal Division at No.: CP-41-CR-0000126-2014
BEFORE: STABILE, J., PLATT, J.*, and STRASSBURGER, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 17, 2016
Appellant, Nafis Antuan Faison, appeals nunc pro tunc from the
judgment of sentence1 imposed following his jury conviction of possession
with intent to deliver a controlled substance (PWID)2 and related charges.
On appeal, Appellant challenges the sufficiency and weight of the evidence
supporting his PWID conviction. We affirm.
The trial court aptly summarized the factual history of this case as
follows:
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*
Retired Senior Judge assigned to the Superior Court.
1
Appellant purports to appeal from the order denying his post-sentence
motion; we have corrected the caption to reflect that his direct appeal
properly lies from the judgment of sentence. See Commonwealth v.
W.H.M., Jr., 932 A.2d 155, 158 n.1 (Pa. Super. 2007).
2
35 P.S. § 780-113(a)(30).
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This matter arises from police recovery of about 500
grams of cocaine in apartment #2 (Apartment) at 2017 W. 4 th
Street in Williamsport (Property) on December 12, 2013. The
evidence at trial established the following. The Apartment
belonged to Demetrius Simpson ([Simpson]) who resided there
with his [nine] year old son. Simpson’s one[-]year[-]old
daughter stayed with him about three days per week. . . . On
December 12, 2013, upon request, Simpson allowed [Appellant]
to spend the night at his apartment. When at his apartment,
[Appellant] typically stayed in the dining room and usually slept
on the couch.
On December 12, 2013, [Appellant] was the subject of a
police investigation.[3] Police learned that the Property was a
possible location for [Appellant]. Police surveilled the Property.
Police observed individuals going in and out of the Apartment.
They appeared to stay only a few minutes. According to
Simpson, [Appellant] had four visitors at the [A]partment on
that date, two of whom Simpson knew; one stayed for [twenty]-
[thirty] minutes, and another, [Joshua] Colley (Colley), stayed
for only [ten]-[fifteen] minutes. After observing Colley leave the
Apartment, [p]olice performed a traffic stop and a “[T]erry
frisk”[4] on Colley. This revealed a clear plastic baggy containing
cocaine in Colley’s left front pocket and one Alprazolam pill in his
front pocket of his jeans. [After police placed Colley in
handcuffs, he admitted that Appellant was at the Apartment].
[At approximately 8:45 p.m.,] [u]pon believing that
[Appellant] was in the Apartment, [p]olice decided to make
contact with the occupants of the second floor of the residence.
Police knocked and banged loudly on the door of the Apartment,
and announced their presence. “[C]haos erupted as [Appellant]
jumped out a second floor window.” A loud crash or bang-like
crash noise sounded from the front of the house.
____________________________________________
3
The investigation was based on a fugitive warrant for Appellant. (See N.T.
Trial, 1/21/15, at 70).
4
Terry v. Ohio, 392 U.S. 1 (1968).
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[Appellant] jumped out of the second floor bedroom
window and fled the Apartment. The only remaining individuals
police found in the [A]partment were Simpson and his [nine]
year old son. Trooper Lancer Thomas heard police yell that
there was a runner. The runner was [Appellant]. No other
runners were observed. Tpr. Thomas chased [Appellant]. After
a foot chase, police apprehended [Appellant]. Police conducted
a search of [Appellant] incident to arrest and found $3,879.00
on [Appellant’s] person, a small plastic pill type bottle containing
three oxycodone pills and a small bag of marijuana. Police
recovered $3,879.00 in his front left pocket in the following
denominations: eleven one[-]hundred dollar bills, nine fifty dollar
bills, [and 116] twenty dollar bills. In the right pocket there was
one five dollar bill and four one dollar bills.
Police searched the Apartment and found large quantities
of drugs. In the dining room/living room area, police found a
black backpack sitting on the couch. Inside the black backpack,
police discovered a grocery bag with 179.16 grams of cocaine,
another package with 319.86 grams of cocaine and a scale
containing cocaine residue. Police also found a tan jacket
hanging on the dining room table which contained 13.65 grams
of cocaine in the front right pocket of the jacket. [Appellant]
had been staying in the dining room area and typically slept on
the [couch] where the backpack was found. Police found the
backpack on the same couch where an iPhone was charging.
The telephone number for the iPhone was the same number
listed as a contact for “Nore New” on Simpson’s phone. Simpson
identified [Appellant] as “Nore.” Simpson testified that the
backpack, jacket and iPhone did not belong to him or his
children. Simpson allowed others to stay at his Apartment on
other occasions, and those people would usually sleep on the
couch. However, there was no testimony that anyone other than
[Appellant] was staying the night on December 12, 2013.
(Trial Court Opinion, 7/13/15, at 2-4) (record citations, footnotes and some
quotation marks omitted).
On January 21, 2015, the jury found Appellant guilty of the above-
mentioned offenses. On March 25, 2015, the trial court sentenced Appellant
to an aggregate term of not less than five nor more than ten years’
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incarceration. It entered an opinion and order denying Appellant’s timely
post-sentence motion on July 13, 2015. On November 17, 2015, in
response to Appellant’s petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, the court entered an order
reinstating his direct appeal rights nunc pro tunc. This timely appeal
followed.5
Appellant raises two issues for our review:
I. Whether the Commonwealth failed to introduce sufficient
evidence that [Appellant] constructively possessed the
cocaine found in another’s residence[?]
II. Whether the verdict rendered by the jury was contrary
to the weight of the evidence presented at trial[?]
(Appellant’s Brief, at 7) (unnecessary capitalization omitted).6
In his first issue, Appellant challenges the sufficiency of the evidence
supporting his PWID conviction. (See id. at 12-16). Specifically, he argues
the Commonwealth failed to establish his constructive possession of the
cocaine found in the backpack and tan jacket at the Apartment. (See id.).
This issue does not merit relief.
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5
Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on January 25, 2016. The
court issued an opinion on January 28, 2016, in which it relied on its
previous opinion entered July 13, 2015. See Pa.R.A.P. 1925.
6
The Commonwealth filed a letter advising that it would not be filing a brief
and that it relies on the opinion and order of the trial court. (See
Commonwealth’s Letter, 3/16/16).
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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
finder 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. Giordano, 121 A.3d 998, 1002-03 (Pa. Super. 2015),
appeal denied, 131 A.3d 490 (Pa. 2016) (citations omitted).
The Controlled Substance, Drug, Device and Cosmetic Act defines the
crime of PWID as follows:
(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:
* * *
(30) Except as authorized by this act, the manufacture,
delivery, or possession with intent to manufacture or deliver, a
controlled substance by a person not registered under this act,
or a practitioner not registered or licensed by the appropriate
State board, or knowingly creating, delivering or possessing with
intent to deliver, a counterfeit controlled substance.
35 P.S. § 780-113(a)(30).
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“To convict a person of PWID, the Commonwealth must prove beyond
a reasonable doubt that the defendant possessed a controlled substance and
did so with the intent to deliver it.” Commonwealth v. Bricker, 882 A.2d
1008, 1015 (Pa. Super. 2005) (citation omitted). Where a defendant was
not in actual physical possession of the drugs recovered, the Commonwealth
is required to establish that he had constructive possession of them. See
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012), appeal
denied, 63 A.3d 1243 (Pa. 2013).
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.
Id. (citation omitted). “For the Commonwealth to prove constructive
possession where more than one person has access to the contraband, the
Commonwealth must introduce evidence demonstrating either [the
defendant’s] participation in the drug related activity or evidence connecting
[the defendant] to the specific room or areas where the drugs were kept.”
Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa. Super. 2014) (en
banc), appeal denied, 121 A.3d 496 (Pa. 2015) (citation and internal
quotation mark omitted).
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Also relevant to Appellant’s sufficiency claim is the precept that
“evidence of flight is generally admissible to support an inference of
consciousness of guilt[.]” Commonwealth v. Johnson, 910 A.2d 60, 66
(Pa. Super. 2006), appeal denied, 923 A.2d 1173 (Pa. 2007) (citation
omitted).
Here, the record reflects that Appellant was one of two adults at the
Apartment where a large quantity of cocaine was found; that he was staying
at the residence as an overnight guest; and that a number of visitors,
including Joshua Colley who had cocaine on his person, left the residence
after staying only a brief period of time. (See N.T. Trial, 1/21/15, at 20-21,
31, 87, 90, 92-94). When police knocked and announced their presence at
the Apartment, Appellant jumped out of a second-story window and ran
away from the residence. (See id. at 73, 96, 102-03). Trooper Thomas
pursued him on foot, and when he advised that he was a member of law
enforcement, Appellant did not stop; he instead “ran very fast.” (Id. at
104; see id. at 103). Police apprehended him and found nearly $4,000.00
in various denominations of cash in his pants pocket, along with marijuana
and Oxycodone pills. (See id. at 132-34, 138).
In a search of the Apartment, police recovered a large amount of
cocaine from a partially open backpack on the sofa where Appellant slept,
and additional cocaine in the tan jacket he wore earlier that day. (See id. at
27, 29-30, 93-94, 108, 147). The backpack and jacket were located in the
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same area of the Apartment where Appellant’s iPhone was charging. (See
id. at 74-75, 155-56, 161).
Based on the totality of the circumstances, and viewing the evidence in
the light most favorable to the Commonwealth, we determine that there was
ample evidence indicating Appellant’s involvement in drug activity and
“connecting [him] to the specific room or areas where the drugs were kept.”
Vargas, supra at 868; see also Giordano, supra at 1002; Brown, supra
at 430. Thus, we conclude that the evidence fully supports the jury’s
determination that Appellant constructively possessed the cocaine found in
the Apartment. Accordingly, Appellant’s first issue does not merit relief.
In his second issue, Appellant challenges the weight of the evidence
supporting his PWID conviction,7 claiming that there was no evidence
connecting him to the backpack, and the only witness linking him to the tan
jacket, Simpson, had a vested interest in the outcome of the trial. (See
Appellant’s Brief, at 16-17). We disagree.
Our well-settled standard of review is as follows:
The finder of fact is the exclusive judge of the weight of
the evidence as the fact finder is free to believe all, part, or none
of the evidence presented and determines the credibility of the
witnesses.
As an appellate court, we cannot substitute our judgment
for that of the finder of fact. Therefore, we will reverse a jury’s
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7
Appellant preserved his weight claim by raising it in a post-sentence
motion. See Pa.R.Crim.P. 607(A)(3).
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verdict and grant a new trial only where the verdict is so
contrary to the evidence as to shock one’s sense of justice. A
verdict is said to be contrary to the evidence such that it shocks
one’s sense of justice 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.
Furthermore, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the weight
of the evidence. Rather, appellate review is limited to whether
the trial court palpably abused its discretion in ruling on the
weight claim.
Commonwealth v. Toritto, 67 A.3d 29, 35 (Pa. Super. 2013), appeal
denied, 80 A.3d 777 (Pa. 2013) (citation and quotations marks omitted).
“[T]he trial court’s denial of a motion for a new trial based on a weight of the
evidence claim is the least assailable of its rulings.” Commonwealth v.
Weathers, 95 A.3d 908, 911 (Pa. Super. 2014), appeal denied, 106 A.3d
726 (Pa. 2015) (citation omitted).
Here, the trial court found that the jury’s verdict was in full accord with
the evidence and with its sense of justice. (See Trial Ct. Op., at 11). The
evidence plainly reflected that the cocaine was in the area of the Apartment
where Appellant stayed, in and next to his personal possessions, and that he
fled from police with drugs and a significant amount of cash on his person.
(See id. at 10-11). After review of the record, we conclude that the trial
court did not palpably abuse its discretion by denying Appellant’s weight
claim. See Toritto, supra at 35. Therefore, Appellant’s second issue does
not merit relief. Accordingly, we affirm the judgment of sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2016
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