J-S85004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BEENIE JAMES THORNTON, JR. :
:
Appellant : No. 1770 WDA 2016
Appeal from the Judgment of Sentence October 11, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007538-2015
BEFORE: BOWES, J., PANELLA, J., and STABILE, J.
MEMORANDUM BY BOWES, J.: FILED MAY 21, 2018
Beenie1 James Thornton, Jr. appeals from the judgment of sentence of
six to twelve months incarceration and one year probation imposed following
his non-jury trial convictions for, inter alia, possession of a controlled
substance (heroin), possession of marijuana, and fleeing and eluding a
police officer. We affirm.
On April 8, 2015, at 8:20 a.m., Officer Brian Meals of the Homestead
Police Department observed a blue Ford Explorer, driven by Appellant, with
an expired validation sticker. A license plate check revealed that the plate
____________________________________________
1 The docket for this case lists Appellant’s name as Beenie James Thornton,
Jr. while the plea transcripts and parties’ briefs refer to Appellant’s name as
Bennie. Additionally, Appellant’s brief lists the last name as “Thorton.” Pre-
trial motions filed by Appellant in this case have used both first name
designations.
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was registered to a different vehicle, causing Officer Meals to activate his
lights and sirens for a traffic stop. Appellant did not obey, but instead
weaved through oncoming traffic and went through several red lights.
Officer Meals followed the vehicle, which eventually went over a bridge.
While on the bridge, Officer Meals observed the passenger extend her hand
outside her window and throw out a number of items. Officer Meals, who
was in contact with other officers via radio, informed them of the location of
the items while he continued pursuit. Corporal Steven Adams proceeded to
the area identified by Officer Meals and recovered 191 individual stamp bags
of heroin, some packaging material, and a small amount of marijuana.
Some of these items were discovered on the bridge itself, while others were
retrieved from the ground below.
The pursuit ended approximately four minutes after its initiation, as
traffic impeded the Explorer, enabling police to surround the vehicle. Officer
Meals made contact with the occupants. Appellant and his girlfriend, located
in the passenger seat, were removed from the vehicle and arrested.2
Approximately five hours later, Officer Meals transported Appellant to
arraignment in his police vehicle. Unprompted, Appellant asked if his
girlfriend would also be charged. He stated that the drugs were his and
____________________________________________
2 The passenger was charged and tried jointly with Appellant; she was
acquitted of all counts.
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expressed regret for getting his girlfriend involved. He further indicated that
he had recently purchased the heroin.
Based on the foregoing, Appellant was charged with possession with
intent to deliver (“PWID”), possession of heroin, possession of marijuana,
possession of drug paraphernalia, fleeing or attempting to elude a police
officer, and various summary vehicular offenses. Following a bench trial, the
court acquitted Appellant of PWID and two of the summary offenses; he was
convicted of all other charges. Appellant was sentenced as previously
indicated, and filed a timely notice of appeal. Appellant complied with the
order to file a Pa.R.A.P. 1925(b) statement, and the trial court issued its
opinion in response. We now address the two claims raised on appeal.
I. Was the evidence insufficient to sustain the convictions for
possession of a controlled substance, possession of
marijuana, and possession of drug paraphernalia, in that
the Commonwealth failed to prove beyond a reasonable
doubt that [Appellant] was in actual or constructive
possession of the marijuana or heroin that a passenger
threw out the window of a vehicle which [Appellant] was
driving?
II. Was the evidence insufficient to sustain the conviction for
fleeing or attempting to elude a police officer in that the
Commonwealth failed to prove beyond a reasonable doubt
that [Appellant] knew that a police officer was trying to
pull him over, and that he purposefully failed to bring his
vehicle to a stop when the officer activated the police car's
lights and siren?
Appellant’s brief at 5.
Both of Appellant’s claims challenge the sufficiency of the evidence
supporting the verdicts. Our standard of review is well-settled.
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We must determine whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom, when viewed in a
light most favorable to the Commonwealth as verdict winner,
support the conviction beyond a reasonable doubt. Where there
is sufficient evidence to enable the trier of fact to find every
element of the crime has been established beyond a reasonable
doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute
our judgment for that of the fact-finder. The Commonwealth's
burden may be met by wholly circumstantial evidence and any
doubt about the defendant's guilt is to be resolved by the fact[-
]finder unless the evidence is so weak and inconclusive that, as
a matter of law, no probability of fact can be drawn from the
combined circumstances.
Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)
(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).
The first claim challenges the evidence that Appellant possessed the
contraband discarded by the passenger; i.e., the heroin packets, the
marijuana, and associated paraphernalia. Appellant challenges the common
element of possession for all of those counts. The Commonwealth could
satisfy its burden through evidence that Appellant either physically
possessed the items, or that he constructively possessed them.
Constructive possession has been described as
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
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application, we have held that constructive possession may be
established by the totality of the circumstances.
Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.Super. 2013) (citation
omitted).
We find that the totality of the circumstances suffices to establish
constructive possession beyond a reasonable doubt. It is undisputed that
Officer Meals was not in a position to observe Appellant handle the items or
otherwise convey the items to his passenger, and that he saw only the
passenger actually possessing those items. However, several other
circumstances establish Appellant’s power and intent to control the
contraband. Significantly, Appellant made comments to Officer Meals on the
way to arraignment that he owned the drugs. Additionally, Appellant, as the
driver of the vehicle, did not stop when Officer Meals activated his lights and
sirens. Instead, he proceeded to drive across a bridge, at which time the
passenger attempted to jettison the contraband in an obvious attempt to
prevent its recovery. That event, when combined with Appellant’s
statement, circumstantially establishes that Appellant directed the passenger
to discard the items at his behest.
We acknowledge Appellant’s argument that these circumstances are
equally consistent with the notion that the passenger possessed the drugs
and sought to discard the evidence on her own initiative, without any
knowledge on his part of what she possessed. In other words, Appellant
claims that the evidence establishes, at most, that he was merely present
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and had equal access to the contraband, which cannot establish constructive
possession. See Commonwealth v. Davis, 480 A.2d 1035, 1045
(Pa.Super. 1984) (“[W]here more than one person has equal access to
where drugs are stored, presence alone in conjunction with such access will
not prove conscious dominion over the contraband.”) (emphasis omitted).
However, that argument requires this Court to remove Officer Meals’s
testimony regarding Appellant’s statements from the equation. Indeed,
Appellant’s argument relies in large part on his own testimony offered at
trial, in which he explained that the passenger offered him marijuana in
exchange for a ride to work. Appellant further testified that he did not know
she also had heroin, and was therefore merely referring to the marijuana
when he told Officer Meals that the drugs were his.
This argument ignores our standard of review and improperly views
the evidence in the light most favorable to Appellant, not the
Commonwealth. Officer Meals testified that Appellant referenced the heroin:
“He advised me that he had recently purchased the heroin, but when I
pressed him on where he purchased it, like an exact location, street or a
person’s name or nickname, then he said he was done talking.” N.T.,
9/29/16, at 28-29. The fact-finder was free to reject or accept this
testimony, whereas we cannot.
The evidence, viewed in the light most favorable to the Commonwealth
as verdict winner, therefore establishes that the drugs belonged to
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Appellant, establishing his intent and power to control. “[W]e have held that
circumstantial evidence is reviewed by the same standard as direct
evidence—that is, that a decision by the trial court will be affirmed ‘so long
as the combination of the evidence links the accused to the crime beyond a
reasonable doubt.’” Commonwealth v. Johnson, 818 A.2d 514, 516
(Pa.Super. 2003) (citations omitted). Appellant’s admission, combined with
the observations made by Officer Meals of the contraband being discarded,
links him to those items beyond a reasonable doubt. Hence, this challenge
fails.
Appellant’s second sufficiency claim fares no better, as it too
emphasizes a version of events considered in the light most favorable to
Appellant. The crime at issue is fleeing and eluding a police officer, which
states:
(a) Offense defined.--Any driver of a motor vehicle who
willfully fails or refuses to bring his vehicle to a stop, or who
otherwise flees or attempts to elude a pursuing police officer,
when given a visual and audible signal to bring the vehicle to a
stop, commits an offense[.]
75 Pa.C.S. § 3733. Appellant claims that his failure to bring his vehicle to a
stop was not willful. In support thereof, he cites his own testimony that he
did not realize Officer Meals was signaling for him to pull over, as opposed to
other drivers on the road. He also testified that his movement into
oncoming traffic was designed to create room for Officer Meals to pass his
vehicle.
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Appellant’s assertion that he was weaving and continued driving after
hearing and seeing the lights and sirens in an effort “to make room for the
other vehicles and police officer to pass,” Appellant’s brief at 19, is rather
implausible; even accepting this version of events, his behavior is illogical.
Appellant’s attempt to “make room” prevented Officer Meals from getting
around Appellant. Furthermore, that testimony fails to explain why
Appellant proceeded through three red lights, rather than pulling over and
letting Officer Meals pass as motorists are required to do. See 75 Pa.C.S. §
3325(a) (upon approach of emergency vehicle using lights and sirens, driver
shall yield and permit emergency vehicle to pass).
More importantly, we are not permitted to view the evidence in the
light most favorable to Appellant, and we firmly disagree that his version of
events is “just as consistent as those of a bad driver trying to get through
rush hour traffic and move out of the police vehicle’s way.” Id. The fact-
finder was entitled to find that Appellant’s actions were intended to evade a
traffic stop, and the discarded narcotics constitute circumstantial evidence
that Appellant failed to stop for the express purpose of getting rid of the
evidence. “As intent is a subjective frame of mind, it is of necessity difficult
of direct proof.” Commonwealth v. Miller, 172 A.3d 632, 641 (Pa.Super.
2017) (citing Commonwealth v. Matthews, 870 A.2d 924 (Pa. 2005)).
The circumstantial evidence establishes a willful failure to stop. Therefore,
this challenge fails.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/2018
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