Com. v. Drayton, R.

J-S35041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RASSON DRAYTON, :
:
Appellant : No. 2214 EDA 2015

Appeal from the Judgment of Sentence August 4, 2011
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0008430-2010

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E. and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED JUNE 08, 2016

Rasson Drayton (“Drayton”), appeals from the judgment of sentence

imposed after a jury found him guilty of possession with intent to deliver a

controlled substance (“PWID”), possession of an instrument of crime (“PIC”),

and criminal conspiracy.1 We affirm in part, and vacate and remand in part.

The trial court set forth the relevant factual and procedural history in

its Opinion, which we incorporate herein by reference. See Trial Court

Opinion, 11/18/15, at 1-4.2

On appeal, Drayton presents the following issues for our review:

1
See 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 907(a), 903(a).
2
As an addendum, we observe that, concerning Drayton’s PWID conviction,
the sentencing court imposed a mandatory minimum sentence of five to ten
years, pursuant to 42 Pa.C.S.A. § 9712.1 (sentences for certain drug
offenses committed with firearms), based on the close proximity of the
drugs found in the front bedroom to the firearms. See N.T., 8/4/11, at 5-6,
14.
J-S35041-16

1. Did the trial court err in denying [Drayton’s] post-
sentence [M]otion because [Drayton’s] conviction is
against the weight of the evidence in that [Drayton] was
with another individual[,] who had a firearm[,] and
[Drayton] then entered a house containing narcotics and
firearms[,] and that other individual closed the door to
th[e] house so that police could not enter?

2. Is [Drayton’s] mandatory sentence unconstitutional and
should the matter be remanded for resentencing?

Brief for Appellant at 4.

Drayton first argues that his convictions are “against the weight of the

evidence because [he] was never seen with any firearms, was not seen

selling any narcotics, and multiple people had access to the house wherein

[Drayton] was arrested.” Id. at 8. Drayton’s purported weight of the

evidence claim challenges the jury’s finding that he constructively possessed

the contraband police discovered inside 946 N. Farson Street (hereinafter

“the Property”). See id. at 11 (asserting that “[t]here is no evidence to

suggest that [Drayton] was in constructive possession of any of the

contraband that was recovered[,]” and he “had only a tangential connection

to the house that was raided[,] wherein there were others with actual

possession of firearms ….”).

Drayton’s claim challenges the sufficiency, not the weight, of the

evidence. See, e.g., Commonwealth v. Vargas, 108 A.3d 858, 867-68

(Pa. Super. 2014) (en banc) (stating that a challenge to constructive

possession of contraband implicates the sufficiency of the evidence);

Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013) (same).

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J-S35041-16

It is axiomatic that sufficiency and weight of the evidence are separate and

distinct claims, as an argument that the jury’s verdict was against the

weight of the evidence concedes that the evidence was sufficient to sustain

the convictions. Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa.

2013); see also Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.

2000) (discussing the distinctions between challenges to the weight and

sufficiency of the evidence); Commonwealth v. Charlton, 902 A.2d 554,

561 (Pa. Super. 2006) (explaining that a challenge to the weight of the

evidence questions which evidence is to be believed). 3 Despite Drayton’s

confusion, and his failure to raise a sufficiency challenge, by name, in his

court-ordered Pa.R.A.P. 1925(b) Concise Statement, we decline to find

waiver and will address his claim as a sufficiency challenge.

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. … Finally, the

3
We observe that failure to recognize the distinction between the two
separate claims may result in waiver. See, e.g., Commonwealth v.
Sullivan, 864 A.2d 1246, 1248-49 (Pa. Super. 2004); Commonwealth v.
Birdseye, 637 A.2d 1036, 1039-40 (Pa. Super. 1994).

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J-S35041-16

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. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

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.” Commonwealth v. Mudrick, 507 A.2d 1212,

1213 (Pa. 1986). Constructive possession entails the power to control the

contraband and the intent to exercise that control. Commonwealth v.

Macolino, 469 A.2d 132, 134 (Pa. 1983). “To find constructive possession,

the power and intent to control the contraband does not need to be

exclusive to the defendant.” Vargas, 108 A.3d at 868. Constructive

possession may be inferred from the totality of the circumstances using

circumstantial evidence. Macolino, 469 A.2d at 134.

Here, the trial court set forth in its Opinion the relevant law concerning

the offenses of which Drayton was convicted, and determined that the jury’s

verdict and finding of constructive possession was supported by

overwhelming evidence. See Trial Court Opinion, 11/18/15, at 5-7. We

incorporate the trial court’s analysis herein, as it is supported by the record

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J-S35041-16

and the law. See id.4 We conclude that the evidence set forth in the trial

court’s Opinion, viewed in the light most favorable to the Commonwealth as

verdict winner, was sufficient for the jury to find constructive possession;

therefore, Drayton’s first issue fails. See id.; see also Vargas, 108 A.3d at

869 (stating that “although ‘mere presence’ at a crime scene cannot alone

sustain a conviction for possession of contraband[,] ‘a jury need not ignore

presence, proximity and association when presented in conjunction with

other evidence of guilt.’”) (citation omitted); Commonwealth v.

Markovitch, 565 A.2d 468, 471 (Pa. Super. 1989) (holding that the totality

of the circumstances established the defendant’s constructive possession of

cocaine and paraphernalia that police seized from a glass table in the

basement of a house the defendant occupied where (1) an officer observed

the defendant coming up the stairs to the basement; (2) the presence of the

defendant’s jacket at the glass table and other evidence tied her to the drug

packaging operation; and (3) the police stopped the defendant as she was

attempting to flee the house); Commonwealth v. Keefer, 487 A.2d 915,

918 (Pa. Super. 1985) (holding that that Western Union receipts bearing the

defendant’s name found in a bedroom were sufficient indicia of ownership to

support an inference of constructive possession of drugs also found within

the bedroom).

4
We overlook any reference by the trial court concerning the weight of the
evidence, in light of our above discussion.

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J-S35041-16

Next, Drayton argues that the mandatory sentence imposed on him

under 42 Pa.C.S.A. § 9712.15 is illegal pursuant to Alleyne v. United

States, 133 S. Ct. 2151 (2013), and its progeny. Brief for Appellant at 12-

13; see also Alleyne, 133 S. Ct. at 2163 (holding that “facts that increase

mandatory minimum sentences must be submitted to the jury” and must be

found beyond a reasonable doubt. We agree.

Drayton’s claim implicates the legality of his sentence, and therefore,

cannot be waived. See Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.

Super. 2014) (en banc) (stating that “a challenge to a sentence premised

upon Alleyne [] implicates the legality of the sentence and cannot be

waived on appeal.”).6

5
Relevantly, 42 Pa.C.S.A. § 9712.1 provides that “[p]rovisions of this
section shall not be an element of the crime[,]” and that in order for the
five-year mandatory minimum sentence under subsection 9712.1(a) to
apply, the court must determine at sentencing, by a preponderance of the
evidence, that the requirements were met. Id. § 9712.1(c).
6
We note that the Pennsylvania Supreme Court, by accepting review of two
of this Court’s prior decisions, appears poised to address whether an
Alleyne claim constitutes a non-waivable challenge to the legality of a
sentence. See Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014),
appeal granted, 121 A.3d 433 (Pa. 2015) (granting appeal to consider
whether the Superior Court erred as a matter of law when it determined, sua
sponte, that the defendant’s mandatory minimum sentence was
unconstitutional under Alleyne ); Commonwealth v. Barnes, 105 A.3d 47
(Pa. Super. 2014) (unpublished memorandum), appeal granted, 122 A.3d
1034 (Pa. 2015) (granting appeal to consider, inter alia, whether an Alleyne
claim raises a challenge to the legality of sentencing). At this time,
however, the holding of our en banc panel in Newman is binding precedent.
Accordingly, we decline the Commonwealth’s invitation in the instant case to
withhold our ruling pending the Supreme Court’s decisions on Wolfe and
Barnes. See Brief for the Commonwealth at 9-10.

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J-S35041-16

Drayton is correct that Alleyne rendered section 9712.1

constitutionally infirm in its entirety because the statute allows the

sentencing court to determine, by only a preponderance of the evidence,

whether the mandatory minimum applies. See Newman, 99 A.3d at 98;

see also Commonwealth v. Watley, 81 A.3d 108, 112 n.2 (Pa. Super.

2013) (en banc); Commonwealth v. Munday, 78 A.3d 661, 666 (Pa.

Super. 2013). Moreover, the trial court correctly recommended in its

Opinion that Drayton’s mandatory minimum sentence is illegal and that the

case must be remanded for resentencing. See Trial Court Opinion,

11/18/15, at 8.

The mandatory minimum sentencing statute under which Drayton’s

sentences were imposed is unconstitutional in its entirety; accordingly, those

sentences are illegal and must be vacated. Because our decision upsets the

trial court’s overall sentencing scheme, we vacate Drayton’s judgment of

sentence in its entirety, and remand for resentencing, without consideration

of 42 Pa.C.S.A. § 9712.1. See Commonwealth v. Ferguson, 107 A.3d

206, 213-14, 216 (Pa. Super. 2015) (vacating entire sentence pursuant to

Alleyne and remanding for resentencing on all counts, where the sentence

encompassed both counts subject to mandatory minimum sentencing

provisions and counts not subject to mandatory minimum sentencing

provisions).

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J-S35041-16

Drayton’s convictions affirmed. Judgment of sentence vacated. Case

remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/8/2016

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 Circulated 05/12/2016 02:45 PM
I

IN THE COJ:; OF COMMONPLEAS
COUNT OF PHILADELPHIA
CRIMIN L TRIAL DIVISION

Commonwealth of Pennsylvania
Plaintiff

v. CP-51-CR-0008430-2010 Comm. v. Drayton, Rasson
2214 EDA 2015 Opinion

Rasson Drayton
Defendant
1111111111111111111111111
7371682021
OPINION

DJERASSI, J. November 13, 2015

Following reinstatement of his dir ct appellate rights nune pro tune, Appellant Rasson

Drayton now claims jury verdicts against im are against the weight of the evidence. He also

claims that a mandatory minimum senten e on his PWID conviction is unconstitutional under

Alleyne v. United States, 133 S. Ct. 2151 (2013) as applied in Commonwealth v. Newman, 99

AJd 86 (Pa. 2014), appeal denied, 121 .3d 496 (Pa. 2015).

Because Drayton' s convictions ar supported by overwhelming direct and circumstantial

evidence, there is nothing shocking about the jury's guilty verdicts on PWID, criminal

conspiracy and PIC. However, upon care 1 review of'Drayton's constitutionality argument

against his mandatory sentence under 42 a.C.S. § 9712.1, we agree with Appellant and request

remand for resentencing on the PWID ch rge only, pursuant to the en bane decision in

Newman.

I. STATEMENT OF FACTS

On April 29, 2010, at approximat ly 10: 15 p.m., Philadelphia Police Officers Alice,

Tinneny, Ruth, and Dunne were on bike pLol in West Philadelphia in uniform, wearing blue

and yellow reflective police jackets. Offic rs Tinneny and Alice were roughly ten feet in front of

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Ruth and Dunne as the four pedaled east In Wyalusmg Avenue toward Farson Street. As they

neared the intersection and prepared to turn right onto the 900 block of Farson, Officer Alice
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looked across a vacant corner lot and sawI a cream colored
,
Dodge Charger
,
parked on Farson

facing north toward Wyalusing.
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Standing outside the car's open rJar driver-side door were tJ.ro men, later identified as
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Appellant Drayton and Co-defendant Omar Reeve. Both men were leaning forward inside the
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car, but they immediately straightened when they noticed the bike patrol officers. According to
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Officer Alice, Reeve pulled his arms out 9fthe car, holding a silver handgun which he
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immediately tucked into his right-side w~istband.
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As the officers biked onto Farson [Street, both Drayton and Reeve started walking quickly
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across the street toward a house at 946 N.\ Farson Street. Officer Alice saw the gun Reeve was
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carrying, and he alerted the other officers.Officer Alice shouted at Drayton and Reeve to stop.
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He was ignored; Reeve and Drayton continued toward the house and entered. As Officer Alice
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approached the property, Reeve slammedlthe front door, locked it, and turned off all the lights.
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Standing on the building's front porch, Officers Alice and Tinneny heard footsteps going up and
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down an interior staircase. Officer Alice Rnocked on the door without results and then tried to
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gain entry by shattering a glass security dhor at the front. He was unsuccessful because the door

was fortified by solid metal bars.

While Officers Alice and Tinneny were trying to get in through the front, Officers Ruth

and Dunne went around to the back wher~,Pfficer Rut~,saw Co-defendant John Brown coming
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out of a back door carrying a revolver in his hand. Officer Ruth shined his flashlight on Brown

and ordered him to stop, but Brown stuck \the gun in his waistband arid returned inside the house.
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 Meanwhile, Officers Alice and T'nneny finally gained entrylinto 946 N. Farson through
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the front by breaking open a ground f1oot window. Knowing Reeveihad been armed and that
Ir·-· ·~·
there were other people inside the house (including potential innocents), and hearing Officer
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Ruth shouting at a suspect from the back] Officers Alice and Tinneny decided to enter the
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property by force. They accomplished t~is by throwing their bicycles through a front glass
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window. Using flashlights, they then looked into an unlit front room and spotted Co-defendant
1,.-,··· -· '"· i
Brown coming through a kitchentoward the front of the house. Officers Alice and Tinneny
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ordered Brown at gunpoint to open the frbnt door and he complied. Entering the house, the
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officers placed Brown under arrest. \

With all four policemen now inside the first floor, officers went upstairs to search for
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persons in the house. Reeve was immediately seen coming out of an upstairs bathroom and was
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arrested. He did not have a firearm on hislperson, but within seconds, a silver handgun was found

inside a partially open toilet tank in the same bathroom. Co-defendants Darren Brown, Shelly

Billups, and Carlton Roberts were also ar~sted inside 946 N. Farson as was Defendant Rasson
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l""''.c''"--
Drayton. \

Drayton was found hiding in the frontlbedroom of the house surrounded by narcotics, cash,
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and firearms. Executing an approved search
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warrant within an hour bf
.
arrest, police found
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marijuana, Xanax pills, cocaine, two hand guns, and $2,035.00 in the room where Drayton had
1

' ":•sw,,;-•.'~.
,\~;. "'~ :

been hiding. Police also found mail sent to Drayton at adifferent address. Drayton's mail was
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on a table in the living room. Two more firearms
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were discovered in , other rooms of this busted

drug house. \

\,.i ,...
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 II. PROCEDURAL HISTORY

Fallowing a long multi-defendan jury trial, Defendant was found guilty of possession
with intent to deliver controlled substancls ("PWID"), criminal conspiracy, and possession of an

instrument of crime ("PIC'') on February 28, 2011. On August 4, 2011, Defendant was sentenced

to the mandatory minimum of 5 to 10 years state incarceration on the PWID charge and to a
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concurrent term of 5 to 10 years for criminal conspiracy. He also received a concurrent term of

2Yz to 5 years for possession of an instrulent of crime (firearm).
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Defendant filed a timely PCRA petition, was appointed counsel, and argued that trial
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counsel was ineffective for failing to file post-sentence motions and a direct appeal. Following
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an evidentiary hearing on May 7, 2015, Drayton was granted the right to file a post-sentence
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motion and direct appeal nunc pro tune. \
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New counsel filed Drayton's postjtrial motion on May 9, 2015. Two issues were raised:
!
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1) the verdicts were against the weight of\the evidence and 2) the mandatory PWID sentence was
'
unconstitutional under Alleyne v. United $tdies, 133 S. Ct. 2151 (2013). Post-sentence motions

were denied on August 4, 2015. This tim1\ly appeal follows.

III. ISSUES ON APPEAL

On appeal, Defendant raises the sdme issues: (1) all Defendant's judgments of sentence

should be vacated because the verdicts arta:gainstthe weight of the ;evidence, and (2)

Defendant's 5-10 year mandatory minimjm sentence for the PWID charge is unconstitutional.

A. The Verdicts Are Supported By f
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he Evidence.

First, Defendant claims that his cohvictions were against the weight of the evidence,
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because he was not holding any of the fireaniis or selling narcotics himself and because other
I arrested.
people had access to the house where he was
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To sustain a claim\fat a terdict is against the weight of the evidence, a defendant must

show that the verdict was !Jo contrary to the evidence that it shocks one's sense of justice. Com.
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v. Gonzalez, 109 A.3d 71 i( 723 QPa. Super. 2015), reargument denied (Mar. 24, 2015). The
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question ultimately is whether denial of post-sentence motions on grounds of weight of evidence
, . . I

is an abuse of discretion. \ \ • ,
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1. Possession with Intent to Deliver
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To convict on pos~~ssion ~ith intent to deliver controlled substances, the Commonwealth

must prove actual or cons~tjuctive\possession:·Com. v. Little,879 A.2d 293, 297 (Pa. Super.
'\ j

2005), appeal denied, 8901 J\.2d 1\057 (Pa. 2005). A jury may infer either type of possession
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based on circumstances frofu
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whibh
.
possession may be constructively
.
inferred. The test is

whether a person has the p~wer ahd ability to exercise control over the illegal substance. Com. v.

Valette, 613 A.2d 548, 550\(Pa. 1\992) .
. l ,

Drayton does not di~pute
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that
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the large supply of narcotics and related paraphernalia
!I . .
recovered from the house i{probcl.tiveof a drug-dealing operation. He argues instead the
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Commonwealth failed to p~ove tKat he himself was in actual or constructive possession of
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narcotics and firearms. 'I
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Drayton appears toi ~eliev~
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that he was convicted on the basis of mere presence, but the
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circumstantial evidence ag~inst hfm was actually overwhelming. Officer Alice testified that
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seconds after seeing Draytb~ accompany an armed Reeve into the house together, he heard the
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front door lock, and saw th~Jight~ inside thehouse go qark. Minutes later1after an exigent
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circumstance entry, there 'Y~s Drayton in the front bedroom surrounded by pounds of narcotics
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and paraphernalia, two fire'.~rms, Jnd over $2,000 in cash. Critically, two pieces of mail

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addressed to Drayton we),~found inside the building's living room, establishing Drayton's
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presence there was not rari(iom ahd fleeting.
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The jury found be)'iond
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a lreasonable
I
doubt that Drayton had constructive possession of
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this contraband since he clearly had the power and ability to control all or part of what was a
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huge drug stash. \ \•
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2. Criminal Conspiddy i
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To convict a defendant of conspiracy, the Commonwealth must prove ( 1) an intent to
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commit or aid the commission ot an unlawful act, (2) an agreementwith a co-conspirator, and
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(3) an overt act in furtherance of the conspiracy. Com. v. Galindes, 786 A.2d 1004, 1010 (Pa.
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Super. 2001), appeal denied, 8031 A.2d 733 (Pa. 2002). With respect to the overt act requirement,

"[a]l co-conspirators are re~pons~ble for actions undertaken in furtherance of the conspiracy

regardless of their individu~l kno~ledge of such actions and regardless of which member of the
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conspiracy undertook the a~tion.'1 Com. v. Hannibal, 753 A.2d 1265, 1274 (Pa. 2000).
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Additionally, the Common~ealt~ may prove an agreement by circumstantial evidence. Galindes,
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786 A.2d at 1010. • I
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Drayton argues thatlthere \was a lack of direct evidence proving his intent to deal
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narcotics, but the overwherring iircumstantial evidence discussed ~uprawas very persuasive.

The home was loaded with \drugs \and distribution paraphernalia. There were guns, ammunition,
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and more than $2000 in d~h. Drayton and Reeve each had their mail in the house. Evidence was
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introduced that the gun recovered' in the upstairs toilet tank moments after Reeve was seen
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leaving the bathroom belo~~ed to\ Co-defendant Brown's wife. So did the car outside the house.
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A photo of Brown was in the kitchen. With these links and more in evidence, the jury's
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conspiracy verdict is no shock at ~11.

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3. Possession of an rhbtrumlnt of Crime
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To convict a defendant of possession of an instrument of crime, the Commonwealth must
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establish that the defendant' "possesses any instrument of crime with intent to employ it
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criminally." Com. v. Stoke~, 38 f,\..3d 846, 854 (Pa. Super. 2011). It\is undisputed that a gun can
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be an instrument of a crimi, so t4e Commonwealth's burden was to show that Drayton
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constructively possessed t}i.e gunland intended to employ it criminally. Id.
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Again, Drayton was fauna in the front bedroom with two handguns in easy reach.

Evidence showed Drayton ~as t~e only person in the front bedroom only seconds after he had
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entered the house with an armed Reeve, and together they locked the door, turned off the
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houselights and ignored poiice knocks for entry.
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These and nearly three weeks of other relevant evidence about the circumstance of the

drug house occupants and ¥eir r~lationship to each other led to clear inferences that Drayton was

part of a drug trafficking conspiracy with easy access and control to; many firearms including
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those only a few feet away 'I from him
i
when he was arrested. See Stokes, 38 A.3d at 854

(affirming PIC convictiorn{,here ~efendant found in same room as drugs, drug paraphernalia,
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and firearm); see also Com: v. Walker, 874 A.2d 667, 678 (Pa. Super. 2005) (affirming
''II :I
constructive possession fo:r\PIC conviction where defendant present in same house as guns,
•\ I ·"" ..,-·
drugs, and mail addressed t~ defepdant when police arrived at home). Again, no shock that the
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jury convicted Drayton onlthe PICC charge.
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B. Remand Is Requened F1r Resentencing On The PWID Charge.

Appellant claims lii\s mandatory 5 to 10 year sentence for PWID is unconstitutional
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under Alleyne v. United Stb~es, B3 S. Ct. 2151 (2013), and he seeks remand for resentencing. On
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review of the en bane holdi#g in Commonwealth v. Newman, 99 A.3d 86 (Pa. 2014), appeal

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denied, 121 A.3d 496 (Pa, 12015)~ and the esteemed panel's Opinion which followed in
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Commonwealth v. Valentine, 1q1 A.2d 801 (Pa. Super. 2014), we request remand for
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resentencing on the PWIO!i charge.i
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Drayton's PIC jurM conviction was based on constructive possession, and we applied this
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directly when imposing th~ mandatory sentence. We conclude Newman and Valentine bar the
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application of 42 Pa.C.S. \i 9712[1
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to Drayton. As the Newman Court put it referring to
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constructive possession ah~lysisJ "Again, we find if learned jurists can arrive at the meaning of
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possession or control of a\:firea~ as it is used in Section 9712.l(a) only after extensive analysis,
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there is no guarantee thata'lay jury will undoubtedly arrive at the same conclusion." Id. at 100.
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Since harmless errpr would not comply with Alleyne according to Newman and
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Valentine, we request remand for resentencing on the PWID charge.
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IV. CONCLUSION
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All judgments of s¢ntencb
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should respectfully be affirmed, with the exception of t

judgment of sentence on tJe PW~D charge, which should be vacated and remanded for
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resentencing without the Jandatbry minimum.
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BY THE COURT:
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I Ramy I.;~
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