J-S04030-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
BRAEMAR PARRISH :
: No. 175 MDA 2017
Appellant
Appeal from the Judgment of Sentence March 22, 2016
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0003237-2014
BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED MAY 09, 2018
Appellant, Braemar Parrish, appeals from the Judgment of Sentence
imposed following his convictions of two counts each of Possession with Intent
to Deliver (“PWID”) (heroin and methamphetamines), Conspiracy, and
Possession of a Controlled Substance, and one count each of Possession of
Drug Paraphernalia and Firearms Not to be Carried Without a License.1
The charges in this case stem from the police search of a vehicle driven
by Pernell Riddick. When the police pulled the vehicle over, they observed
Appellant seated in the back seat. The police found in the front seat a black
bag that contained drugs, drug paraphernalia, and a gun. The police also
found a gun under the front passenger seat and marijuana in a cup holder on
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135 P.S. § 780-113(a)(30); 18 Pa.C.S. § 903, 35 P.S. §780-113(a)(16); 35
PS. § 780-113(a)(32); and 18 Pa.C.S. §6106(a)(1), respectively.
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the front passenger-side door. Appellant contends, inter alia, that the
evidence was insufficient to establish that the he even knew about the
contraband, let alone exercised dominion and control over it. We agree and,
accordingly, reverse Appellant’s Judgment of Sentence.
The facts and procedural history most relevant to this appeal are as
follows. On August 7, 2014, after observing a tinted-windows violation,
Kingston Police Officer John Bevilaqua and Sergeant Height2 conducted a
traffic stop of a Lincoln MKZ four-door sedan. The officers followed the vehicle
without lights or sirens for several blocks, and then indicated to the driver of
the vehicle, Mr. Riddick, that he should pull the vehicle over. After Mr. Riddick
pulled over, the officers immediately approached the vehicle and while doing
so noticed it rocking back and forth.
Mr. Riddick rolled down the window, and the police officers smelled
marijuana and observed a plastic baggie containing marijuana in plain view.
They also observed Mr. Riddick straddling the center console between the two
front seats and the grip of a silver handgun protruding from under the front
passenger seat. The officers further observed Appellant seated behind the
driver’s seat with his hands on the headrest of the driver’s seat.
The officers arrested Mr. Riddick and Appellant and subsequently
searched the entire vehicle. On the floor on the passenger side of the front
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2 Sergeant Height’s first name does not appear in the Notes of Testimony.
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of the vehicle, the officers found a black bag. In the bag was a loaded .45
caliber handgun,3 250 wax paper packets of heroin packaged into bundles, 12
individual packets of methamphetamines, a baggie of loose heroin, two scales,
packaging material, and unknown powder substance, a spoon, and a magazine
containing .40 caliber ammunition. The officers also found in the front of the
passenger cabin of the vehicle, marijuana on the passenger-side door and a
.40 caliber handgun protruding from under the passenger-side seat.
In the glove compartment, the officers found an extra magazine of
bullets, and in the trunk, they found a bulletproof vest. The officers also found
$1,335 in cash on Appellant and $2,168 on Riddick. During his arrest,
Appellant cooperated with the police, correctly identified himself, and did not
attempt to flee.
Police charged Appellant with the above crimes,4 as well as one
additional count of Possession of a Controlled Substance and one count each
of Receiving Stolen Property and Person Not to Possess Firearm.5 Before trial,
the court severed the Person Not to Possess Firearm offense from Appellant’s
other offenses.
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3 Police later identified this handgun as having been stolen.
4Police also charged Mr. Riddick, and on December 5, 2014, the court severed
Appellant’s case from Mr. Riddick’s.
5 35 P.S. § 780-113(a)(16); 18 Pa.C.S. § 3925(a); and 18 Pa.C.S. §
6105(a)(1), respectively.
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At Appellant’s jury trial, Officer Bevilaqua testified regarding the above
details of the stop and search of the vehicle. In addition, he stated that he
observed the vehicle “rocking back and forth in a violent manner.” N.T.,
1/19/16, at 60. Because of the heavy window tint, however, he “could not
see inside the vehicle to see any furtive movement being conducted.” Id. He
testified that when he was finally able to see into the car, he observed Mr.
Riddick straddled over the center console of the vehicle, half on the passenger
side and half on the driver’s side. He saw Appellant, who was between 5’11”
and 6’ tall and weighed 270 lbs., seated in the back seat on the driver’s side
with his hands resting on the headrest in front of him. Id. at 60-62, 76-77.
Officer Bevilaqua also testified that he smelled marijuana emanating from the
vehicle. Id. at 60-61.
Officer Bevilaqua further testified that, after Sergeant Height observed
a small bag of marijuana in plain view in the front of the car in the passenger
side door, Mr. Riddick admitted that it was his. As the officers removed Mr.
Riddick from the car, Sergeant Height observed a .40 caliber Smith and
Wesson under the front passenger seat. Id. at 63, 78.
On cross-examination, Officer Bevilaqua testified that Appellant was not
the registered owner of the vehicle and Appellant did not have a key to the
car’s glove compartment or trunk. Id. at 77, 85-86. Moreover, Officer
Bevilaqua stated that, because he first saw Appellant in the back seat, he
inferred that Appellant was not the vehicle’s operator. Id. at 86. Officer
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Bevilaqua confirmed that Appellant correctly identified himself, cooperated
with him and Sergeant Height, and did not attempt to flee. Id. at 88.
Officer Bevilaqua also testified that police did not test any of the items
found in Mr. Riddick’s vehicle for fingerprints. Id. at 86-87.
Kingston Police Detective Edward Palka testified for the Commonwealth
as an expert in street-level drug interdiction. Id. at 112. He reviewed the
evidence, prepared an expert report, and concluded that Appellant possessed
the controlled substances not for personal use, but to sell to others. Id. at
113-116.
Detective Palka also concluded that the presence of loaded handguns
and a bulletproof vest reflected the inherent dangerousness of drug dealing.
Id. at 126.
In concluding that Appellant “constructively possessed” the handguns,
Detective Palka testified that the “fact that there was [sic] two handguns
present[,] not just one[,] to me shows that both individuals possessed a
handgun. And in all the investigations that I have done, I don’t remember
ever coming – having more than one handgun.” Id. He reiterated that he
does not generally come across one person carrying more than one gun in a
car. Id. at 130.6
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6 Immediately following this testimony, Appellant’s counsel objected to
Detective Palka offering the opinion that “one person doesn’t possess two
handguns.” Id. at 127. Counsel asserted that Detective Palka’s testimony
was inappropriate because the question of whether Appellant possessed a
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Timothy Evans testified on Appellant’s behalf. Mr. Evans testified that
Appellant had been at a party hosted by Mr. Evans all afternoon on the day of
Appellant’s arrest and stayed until approximately 2:00 AM. Id. at 151-52.
Mr. Evans testified that he asked Mr. Riddick to drive Appellant home at the
end of the party. Id. at 152. Mr. Evans further testified that, when Appellant
left the party in Mr. Riddick’s car, Appellant was not carrying a satchel or any
kind of bag. Id. at 153. He also stated that he saw Appellant lay down in the
back seat when Appellant got in the car. Id.
On January 20, 2016, the jury convicted Appellant of the above
charges.7 The court sentenced Appellant on March 22, 2016, to an aggregate
term of 88 to 176 months’ incarceration and ordered Appellant to pay $356 in
restitution to the Pennsylvania State Police Lab for crime lab processing fees.8
On March 30, 2016, Appellant filed a Motion for Modification of Sentence
and Motion for New Trial. Two days later, he filed a Motion to Compel
Discovery. On April 4, 2016, Appellant filed a Motion to Vacate Sentence on
Firearms Not to be Carried Without a License and to Prohibit Trial on Person
Not to Possess Firearm. On April 27, 2016, the Commonwealth filed a
Response in Opposition to Appellant’s Motion to Vacate and Prohibit Trial.
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handgun is an issue of fact for the jury to resolve. Id. The court overruled
Appellant’s objection. Id.
7 The court continued the trial on Appellant’s Person Not to Possess Firearm
charge pending resolution of this appeal.
8 The court ordered the restitution amount split with Riddick. N.T., 3/22/16,
at 30.
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On July 28, 2016, Appellant’s Motion for Modification of Sentence and
Motion for a New Trial were deemed denied by operation of law; however, the
trial court clerk did not enter an order advising Appellant as required by
Pa.R.Crim.P. 720(B)(3)(c) and 720(B)(4). Instead, on December 20, 2016,
the trial court entered an Order denying Appellant’s Motion to Modify Sentence
and Motion to Vacate and Prohibit Trial. On January 18, 2017, the court
entered an Order finding Appellant’s Motion for a New Trial moot as having
been denied by operation of law pursuant to Pa.R.Crim.P. 720(B)(3)(a).9
On January 19, 2017, Appellant filed a Notice of Appeal from his
Judgment of Sentence. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant raises the following four issues on appeal:
1. Whether the Commonwealth presented legally insufficient
evidence that Appellant, beyond a reasonable doubt, actively
or constructively possessed the firearms, drugs, and drug
paraphernalia relating to the crimes charged?
2. Whether the trial court erred in denying a new trial based on
violations by the Commonwealth of discovery obligations under
the United States and Pennsylvania Constitutions, the
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9 Pa.R.Crim.P. 720(B)(3)(a) provides that “[i]f the judge fails to decide the
motion within 120 days, or to grant an extension as provided in paragraph
(B)(3)(b), the motion shall be deemed denied by operation of law.” This
Court has found that a court breakdown occurs when the clerk of court fails
to enter an order notifying the appellant that his post-sentence motion was
denied by operation of law. Commonwealth v. Patterson, 940 A.2d 493,
498-99 (Pa. Super. 2007). Because the trial court clerk of courts failed to
enter an order notifying Appellant that his Post-Sentence Motion was denied
by operation of law at the expiration of 120 days, and the court did not do so
until January 18, 2017, we conclude that Appellant’s January 19, 2017 Notice
of Appeal is timely.
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Pennsylvania Rules of Criminal Procedure[,] and the rule of
Brady v. Maryland and its progeny, and after-discovered
evidence concerning jail calls between the [c]o-defendant’s
mother and [Appellant]?
3. Did the trial court abuse its discretion in allowing the
Commonwealth to introduce testimony from the expert witness
to say that the presence of two handguns indicates that two
people possessed a handgun, thereby offering an opinion as to
guilt, over the objection by [Appellant’s] counsel?
4. Was Appellant subjected to an illegal sentence with the [c]ourt
ordered restitution to be paid when there was no victim as
defined by the holding in Commonwealth v. Veon[, 150 A.3d
435 (Pa. 2016)]?
Appellant’s Brief at 1.
Sufficiency of the Evidence
Appellant’s first issue, in which he challenges the sufficiency of the
Commonwealth’s evidence in support of his convictions, is dispositive of this
appeal. In this issue, Appellant argues that because Appellant was in the back
seat of the vehicle and the police found the contraband in the front seat of the
vehicle, the Commonwealth failed to prove that Appellant not only knew about
the contraband, but also exercised dominion and control over it.
We review claims regarding the sufficiency of the evidence by
considering 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.”
Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014) (citation and
quotation omitted). Further, a conviction may be sustained wholly on
circumstantial evidence, and the trier of fact—while passing on the credibility
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of the witnesses and the weight of the evidence—is free to believe all, part, or
none of the evidence. Id. at 40 (citation and quotation omitted). “Because
evidentiary sufficiency is a matter of law, our standard of review is de novo
and our scope of review is plenary.” Commonwealth v. Brooker, 103 A.3d
325, 330 (Pa. Super. 2014).
The jury convicted Appellant of both firearm charges and drug charges.
Both types of convictions require the Commonwealth to prove that Appellant
“possessed” the contraband. In particular, the firearm convictions were based
upon Section 6106 of the Uniform Firearms Act, which provides in relevant
part, that “any person who carries a firearm in any vehicle . . . without a valid
and lawfully issued license under this chapter commits a felony of the third
degree.” 18 Pa.C.S. § 6106(a)(1)(emphasis added).
The drug convictions were based upon the Controlled Substance, Drug,
Device & Cosmetic Act, 35 P.S. § 780-101, et seq. Each of the subsections
require the Commonwealth to prove Appellant’s possession of contraband.
See 35 P.S. §§ 780-113(a)(16), (30), (32). For example, Section 780-
113(a)(16) of the Controlled Substance, Drug, Device & Cosmetic Act requires
the Commonwealth to prove that a defendant “[k]nowingly or intentionally
possess[ed] a controlled or counterfeit substance.” 35 P.S. §§ 780-
113(a)(16) (emphasis added).
The Crimes Code defines the term “possession” as “an act, within the
meaning of this section, if the possessor knowingly procured or received the
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thing possessed or was aware of his control thereof for a sufficient period to
have been able to terminate his possession.” 18 Pa.C.S. § 301(c).
Constructive Possession
This Court has held that “[p]ossession can be found by proving actual
possession, constructive possession, or joint constructive possession.”
Commonwealth v. Heidler, 741 A.2d 213, 215 (Pa. Super. 1999). Where a
defendant is not in actual possession of the prohibited items, the
Commonwealth must establish that the defendant had constructive possession
to support the conviction. Commonwealth v. Hopkins, 67 A.3d 817, 820
(Pa. Super. 2013) (conviction under 18 Pa.C.S. § 6106(a) supported by a
finding of constructive possession). See also Commonwealth v. Parker,
847 A.2d 745 (Pa. Super. 2004) (same). “Constructive possession is a legal
fiction, a pragmatic construct to deal with the realities of criminal law
enforcement.” Hopkins, supra at 820 (citation and quotation omitted). “We
have defined constructive possession as conscious dominion,” meaning that
the defendant has “the power to control the contraband and the intent to
exercise that control.” Id. (citation and quotation omitted). “To aid
application, we have held that constructive possession may be established by
the totality of the circumstances.” Id. (citation and quotation omitted).
It is well established that, “[a]s with any other element of a crime,
constructive possession may be proven by circumstantial evidence.”
Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996) (citation
omitted). In other words, the Commonwealth must establish facts from which
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the trier of fact can reasonably infer that the defendant exercised dominion
and control over the contraband at issue. See, e.g., Commonwealth v.
Davis, 743 A.2d 946, 953-54 (Pa. Super. 1999) (holding that evidence was
sufficient to prove constructive possession over drugs found in common areas
of an apartment where the defendant entered the apartment using his own
key, and possessed $800 in cash on his person, and police recovered
defendant’s identification badge, size-appropriate clothing, and firearms from
a bedroom).
Significant to the instant appeal, a defendant’s mere presence at a place
where contraband is found or secreted is insufficient, standing alone, to prove
that he exercised dominion and control over those items. Commonwealth
v. Valette, 613 A.2d 548, 551 (Pa. 1992). Thus, the location and proximity
of an actor to the contraband alone is not conclusive of guilt.
Commonwealth v. Juliano, 490 A.2d 891, 893 (Pa. Super. 1985). Rather,
knowledge of the existence and location of the contraband is a necessary
prerequisite to proving the defendant’s intent to control, and, thus, his
constructive possession. Id., citing Commonwealth v. Thompson, 428
A.2d 223, 224 (Pa. Super. 1981).
If the only inference that the fact finder can make from the facts is a
suspicion of possession, the Commonwealth has failed to prove constructive
possession. Valette, supra at 551. “It is well settled that facts giving rise
to mere ‘association,’ ‘suspicion’ or ‘conjecture,’ will not make out a case of
constructive possession.” Id.
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In Juliano, supra, this Court reversed the defendant’s conviction of
Possession of a Counterfeit Controlled Substance where a satchel containing
the contraband was in the car before the defendant entered it. Following the
traffic stop that precipitated the defendant’s arrest, police observed the
satchel on the seat in which the defendant had been sitting. On appeal, this
Court found that even though the defendant knew of the existence and
location of a satchel, the Commonwealth failed to adduce sufficient evidence
from which the factfinder could reasonably infer that the defendant knew of
the contents of the satchel. Id. at 892-94.
Similarly, in Commonwealth v. Duffy, 340 A.2d 869 (Pa. Super.
1975), this Court reversed the defendant’s conviction of Possession of
Burglary Tools and a violation of the Uniform Firearms Act. There, the
defendant was a passenger in a car that police pulled over for an inoperative
taillight. A search of the vehicle revealed a pistol far beneath the passenger
front row seat, a mask and gloves in the glove compartment, and burglary
tools in the back seat. This Court found that the Commonwealth failed to
prove that the defendant knew of the presence of the burglary tools and the
firearm, and, thus, failed to prove that he had the requisite intent to exercise
control. Id. at 870.
In the instant case, Appellant was sitting in the back the vehicle on the
driver’s side. The police located all of the contraband in the front of the car.
In particular, the police found the black satchel containing contraband on the
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passenger-side floor of the front of the vehicle, the gun under the front
passenger-side seat, and marijuana on the front passenger door.
Moreover, the evidence also established that Appellant was not carrying
any type of bag when he entered the car; he did not have keys to the car, and
was not the owner or operator of it. There is no evidence that Appellant had
ever been seated in either of the car’s front seats. Neither of the recovered
firearms was registered to him and there was no fingerprint evidence for either
weapon.
Following our review of the evidence, we fail to see how the jury could
reasonably infer that Appellant had knowledge of the contraband in the black
bag located in the front row of the vehicle, let alone exercise dominion and
control over its contents. The only evidence presented regarding the black
bag in the vehicle was its location and that Appellant did not carry a black bag
into the vehicle. From this, it is not reasonable for the jury to conclude that
Appellant knew about the contents of the black bag and exercised dominion
and control over it.
Similarly, we fail to see how the jury could reasonably conclude that
Appellant, while sitting in the back seat of the vehicle, had dominion and
control over the gun under the passenger-side front seat and the marijuana
on front passenger-side door. Rather, the evidence reveals that Appellant was
merely present on the driver’s side of the back seat of Mr. Riddick’s car, while
police officers discovered the contraband on the passenger side of the front
row of the vehicle.
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Simply stated, the Commonwealth did not present any evidence from
which it would be reasonable for the jury to infer that Appellant had knowledge
of or exercised dominion and control over the contraband.
Moreover, to the extent that Officer Bevliaqua intended to attribute the
rocking of the vehicle that he observed following the commencement of the
traffic stop to Appellant jettisoning himself away from the contraband located
in the front seat, we conclude that, absent other evidence, it is equally
reasonable to infer that the rocking was caused by Riddick—who police
discovered straddling the center console—attempting to obscure his
contraband from sight. In addition, given the evidence regarding Appellant’s
height and weight, and the size of the vehicle, it strains credulity to conclude
that Appellant was able to propel himself from the front seat to the back seat
in the short time it took for the officers to reach the vehicle.
Notwithstanding Detective Palka’s opinion that, in his experience, the
presence of two firearms generally indicates that each occupant possessed a
gun, we cannot agree that this evidence is sufficient for a factfinder to
conclude that Appellant possessed the firearm in this case.
Thus, the Commonwealth’s circumstantial evidence was insufficient to
prove that Appellant constructively possessed the contraband. Because the
trial court’s conclusion was not supported by sufficient evidence, even when
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viewing that evidence in the light most favorable to the Commonwealth, we
are constrained to reverse Appellant’s Judgment of Sentence.10
Judgment of Sentence reversed. Appellant discharged. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2018
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10In light of this disposition, we need not address the merits of Appellant’s
remaining issues.
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