J-S89042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
TYLEESIA KITCHEN
Appellant No. 148 EDA 2016
Appeal from the Judgment of Sentence December 9, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0006204-2015
BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED January 12, 2017
Appellant, Tyleesia Kitchen, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas. She contends
the evidence was insufficient to convict her of false identification to a law
enforcement officer1 and possession with intent to deliver.2 We affirm.
We adopt the facts and procedural history set forth by the trial court’s
opinion. See Trial Ct. Op., 6/15/16, at 1-8. Appellant argues that the
evidence was insufficient to convict her of false identification to law
enforcement because the police officers did not inform her that she was the
subject of an official investigation. She avers that “because she did not
know she was the subject of an official investigation, it was not illegal for her
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 4914(a).
2
35 P.S. § 780-113(a)(30).
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to provide the officer with a fake name when she did.” Appellant’s Brief at
13. Appellant also claims “the evidence was not sufficient to prove beyond a
reasonable doubt that [she] constructively possessed the drugs hidden in
the car, and the trial court erred in convicting her of these possessory drug
offenses.”3 Id. at 18.
3
We note that Appellant raised the following issues in her Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, reproduced verbatim:
a. The trial court erred in convicting [A]ppellant of false
identification to law enforcement as the Commonwealth
introduced no evidence that the police informed
[A]ppellant she was the suspect of an official investigation
and the Commonwealth neglected, at trial, to introduce
evidence that [A]ppellant presented false identification to
police.
b. The trial court erred in convicting [A]ppellant of
possession with intent to deliver as the Commonwealth
failed to demonstrate that [A]ppellant had constructive
possession over the packets of crack cocaine in the trunk
of the car and in the enclosed soda can.
c. The trial court erred in convicting [A]ppellant of knowing
and intentional possession of crack cocaine where the
Commonwealth failed to demonstrate that [A]ppellant
knowingly and intentionally possessed the packets of crack
cocaine found in the car.
Statement of Errors Complained of on Appeal, Appellant’s Brief at Ex. “A.”
Appellant did not raise issue “c” in her brief and therefore it is
abandoned on appeal. See Commonwealth v. Dunphy, 20 A.3d 1215,
1218 n. 2 (Pa. Super. 2011) (holding claims raised in Rule 1925(b)
statement but not identified in statement of questions presented or
developed in argument section of brief are abandoned on appeal).
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“A claim challenging the sufficiency of the evidence is a question of
law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
As this case involves a question of law, our scope of
review is plenary. Our standard of review is de novo.
* * *
[T]he critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction . . . does not
require a court to ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt. Instead, it must determine simply whether the
evidence believed by the fact-finder was sufficient to
support the verdict. . . .
* * *
When reviewing the sufficiency of the evidence, an
appellate court must determine whether the evidence, and
all reasonable inferences deducible from that, viewed in
the light most favorable to the Commonwealth as verdict
winner, are sufficient to establish all of the elements of the
offense beyond a reasonable doubt.
Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-1237 (Pa. 2007).
(citations and quotation marks omitted). “The Commonwealth may sustain
its burden of proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence.” Commonwealth v. Caban,
60 A.3d 120, 132 (Pa. Super. 2012) (citation omitted).
This Court has stated that
[c]onstructive 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
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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.
Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (citations
omitted). “[C]ircumstantial evidence may be used to establish constructive
possession of the illegal substance.” Commonwealth v. Johnson, 26 A.3d
1078, 1094 (Pa. 2011) (citation omitted).
After careful review of the record, the parties’ briefs, and the decision
by the Honorable Sierra Thomas Street, we affirm on the basis of the trial
court’s opinion. See Trial Ct. Op. at 8-15. Accordingly, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2017
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