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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRANCE EDWIN PRATT :
:
Appellant : No. 644 WDA 2017
Appeal from the Judgment of Sentence April 18, 2017
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000937-2016
BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED FEBRUARY 14, 2018
Terrance Edwin Pratt appeals from the judgment of sentence imposed
on April 18, 2017, in the Court of Common Pleas of Fayette County, following
his conviction on charges of possession with intent to deliver a controlled
substance and possession of a controlled substance by a person not
registered.1 Pratt was sentenced to a term of one to three years’
incarceration. In this timely appeal, Pratt argues the trial court erred in failing
to grant his omnibus pretrial motion to suppress the physical evidence and in
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1 35 P.S. § 780-113(a)(30) and (a)(16), respectively. The controlled
substances were pills of alprazolam and diazepam. Alprazolam and diazepam
are commonly known by their trade names, Xanax and Valium. Specifically,
the police confiscated one round blue tablet marked Mylan A1, 32 round
orange tablets marked R029, and one round yellow tablet marked TEVA 3926.
The first two types of pill are alprazolam, the last pill is diazepam. See N.T.
Trial, 4/3/2017 at 71-72.
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denying his motion for judgment of acquittal.2 After a thorough review of the
submissions by the parties, relevant law, and the certified record, we affirm.
The underlying facts of this matter may be summarized as follows:
After Pennsylvania State Trooper Jeffrey Tihey witnessed two controlled
purchases of crack cocaine, a search warrant was obtained for the site of those
transactions, the residence and property at 12 Collins Avenue, Uniontown,
Pennsylvania. The items to be searched for were “controlled substances,” “in
particular heroin[3] and related contraband,” as well as “any and all items used
in the manufacture, sale or consumption of controlled substances, and fruits
of the crime, any other item criminally possessed and any person located
within.”4
Pratt was outside the house when the police arrived to execute the
warrant. Upon seeing the police, he went inside. The police entered the home
and secured the premises. Upon going upstairs to the third floor, the police
saw pills on the steps. Some of the pills were loose and on the steps, others
in a pill bottle. These pills were seized and were later determined to be
alprazolam and diazepam, both controlled substances. A gun, $665.00 in cash
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2 Specifically, Pratt claims there was insufficient evidence to prove he
constructively possessed the contraband.
3Trooper Tihey testified “heroin” was listed in error. Cocaine was the specific
drug in question, having been purchased twice at that location. This error is
not at issue in this appeal. At the suppression hearing, Trooper Tihey also
misidentified the single diazepam/Valium tablet as being Klonopin.
4 See Application for Search Warrant, 4/19/2016, at 1.
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tucked under a mattress, a cell phone, and various documents with Pratt’s
name on them, including a driver’s license, were located on the third floor.
At the suppression hearing, Trooper Tihey testified that in addition to
the controlled buys that were mentioned in the search warrant, a confidential
informant had also purchased three alprazolam pills from Pratt. Trooper Tihey
testified that Pratt was not charged regarding the sales of the pills because
that information might have helped identify the confidential informant. N.T.
Suppression Hearing, 9/22/2016, at 17.
Based upon the foregoing, Pratt now raises two challenges to the search
warrant and a claim the Commonwealth failed to prove he possessed the
controlled substances. We will begin with the challenges to the search
warrant.
Pratt’s first argument is that the search warrant is invalid because it is
missing a signature of the issuing judge, the Honorable Linda R. Cordaro.
Judge Cordaro signed the search warrant, as required, multiple times.
However, the issuing authority is required to sign the application for a search
warrant in two places on the first page; once to signify that probable cause
has been established, once to signify the warrant may be served. See
Application for Search Warrant and Authorization, at 1. The signature
verifying probable cause had been established is missing. The judge presiding
over the suppression hearing initially pointed out this fact. Although Pratt has
mentioned the missing signature in his Appellant’s brief, he has not developed
the claim. He has failed to set forth any specific argument regarding the issue
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and has cited no case law to support the claim. Accordingly, this portion of
Pratt’s challenge to the search warrant has been waived. 5 See
Commonwealth v. Cole, 167 A.3d 49, 73 (Pa. Super. 2017) (Appellant's
failure to adequately develop his argument results in waiver of this issue.);
Pa.R.A.P. 2119.
Next, Pratt claims the search warrant was invalid because it was based
upon faulty information. This is a novel argument in that the information Pratt
claims was lacking from the search warrant, was the fact that the pills had
also been purchased during one of the controlled buys. However, those pills
were never tested to confirm that they were contraband. Pratt is correct that
no information regarding the purchase of pills is to be found in the four corners
of the search warrant. However, Pratt fails to explain how this lack of
information caused him prejudice. The search warrant was issued based upon
the probable cause of two controlled purchases of crack cocaine at the address
listed on the search warrant. Whether additional controlled substances or
sugar pills were purchased there as well does nothing to affect the probable
cause established by the purchase of cocaine. We note that Pratt has not
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5 As noted above, the issuing authority for the search warrant was Judge Linda
R. Cordaro, who was also the trial judge. In her Pa.R.A.P. 1925(a) opinion,
she recognizes that a signature is missing from one location, but avers that
her signature in all other required places indicates proof that she accepted the
fact that probable cause had been established, and, therefore, the warrant
was not invalid for lack of signature. See Trial Court Opinion, at 2-5,
6/13/2017.
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challenged the alleged purchases of cocaine. Pratt has provided no case law
in support of his apparent position that ALL information, no matter how
irrelevant, must be included in the affidavit of probable cause seeking the
search warrant. In this regard, Pratt’s argument is undeveloped and the
argument is waived.6
Pratt’s final claim is that the Commonwealth failed to prove he
possessed the contraband. Our standard of review for a challenge to the
sufficiency of the evidence is well settled.
The standard of review for a challenge to the sufficiency of the
evidence is to determine whether, when viewed in a light most
favorable to the verdict winner, the evidence at trial and all
reasonable inferences therefrom is sufficient for the trier of fact to
find that each element of the crimes charged is established beyond
a reasonable doubt. See Commonwealth v. Dale, 836 A.2d 150,
152, (Pa. Super. 2003). The Commonwealth may sustain its
burden of proving every element beyond a reasonable doubt by
means of wholly circumstantial evidence. See Commonwealth
v. Bruce, 207 Pa.Super. 4, 916 A.2d 657, 661 (2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007).
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. See id. Any
doubt raised as to the accused’s guilt is to be resolved by the fact-
finder. See id. As an appellate court, we do not assess credibility
nor do we assign weight to any of the testimony of record. See
Commonwealth v. Kinney, 863 A.2d 581, 584 (P. Super. 2004),
appeal denied, 584 Pa. 685, 881 A.2d 819 (2005). Therefore, we
will not disturb the verdict “unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
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6 Pratt has not argued that this aspect of his claim is a new approach to an
established issue or is an issue of first impression, thereby making it
impossible to provide case law in support of the claim. Even had he presented
this aspect of his argument in such light, we would deny relief on the basis
that the argument, as presented, is simply illogical.
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drawn from the combined circumstances.” Bruce, 916 A.2d at 662
(citation omitted).
Commonwealth v. Vogelsong, 90 A.3d 717, 718 (Pa. Super. 2014).
Additionally, possession of contraband may be proven constructively.
The standards for constructive possession are as follows:
To sustain a conviction for PWID, “the Commonwealth must prove
both the possession of the controlled substance and the intent to
deliver the controlled substance.” Commonwealth v. Lee, 956
A.2d 1024, 1028 (Pa. Super. 2008) (citations omitted). It is well
settled that “[i]n narcotics possession cases, the Commonwealth
may meet its burden by showing actual, constructive, or joint
constructive possession of the contraband.” Commonwealth v.
Vargas, 108 A.3d 858, 868 (en banc) (quotation and quotation
marks omitted). Here, the police did not discover the controlled
substances on Appellant’s person, and thus, we must determine
whether the Commonwealth sufficiently established that Appellant
had constructive possession of the controlled substances.
This Court has defined constructive possession as follows:
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.
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012)
(quotation omitted). “The Commonwealth may sustain its burden
by means of wholly circumstantial evidence, and we must evaluate
the entire trial record and consider all evidence received against
the defendant.” Id. (citation omitted).
Commonwealth v. Roberts, 133 A.3d 759, 767-68 (Pa. Super. 2016).
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The evidence presented at trial was sufficient to support the conviction
for possession of a controlled substance with intent to deliver and possession
of a controlled substance by a person not registered. We reiterate that Pratt
only challenges the possession aspect of these charges; he does not challenge
‘intent to deliver’ or being non-registered to possess controlled substances.
At trial, Trooper Tihey testified as they approached Pratt’s residence he
saw Pratt on the back porch, but then Pratt went out of sight as they neared.
After the police entered the home, Pratt’s father (the actual homeowner) and
sister were located in the kitchen. Both were detained. The police then
searched the three-story home, room-by-room and floor by floor. No drugs
or drug paraphernalia were discovered on the first or second floors.
As the police ascended the stairs to the third floor, they found the drugs
at issue herein. A loose pill and an unmarked pill bottle were in plain view on
one of the steps leading to the third floor. The pills were seized. Police found
Pratt, with “a deer in the headlights look”7 in the third floor bedroom. Clothes
and a bed indicated the room was occupied. In addition to Pratt, the police
found money hidden under a mattress, a gun stored in a cubbyhole in the wall
and a cell phone. Additionally, many documents, including Pratt’s driver’s
license and mail, were in the bedroom, indicating Pratt was the room’s
occupant.
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7 N.T. Trial, 4/3/2017, at 20.
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Based upon the totality of the evidence, particularly the facts that the
drugs were found on the stairway to Pratt’s room, Pratt’s room was the only
room at the top of the staircase, Pratt was found in his room, no one else was
near the contraband, there was no other contraband found in the house, and
Pratt’s demeanor when the police found him, there is sufficient evidence to
prove beyond a reasonable doubt that Pratt constructively possessed the
contraband.
Based on the foregoing, Pratt is not entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2018
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