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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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).
J-S89042-16
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).
-2-
J-S89042-16
“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
-3-
J-S89042-16
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
-4-
Circulated 12/16/2016 03:48 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-Sl-CR-0006204-2015
v. Comm v Kitchen, Ty:eesia
CP-51-CR-0006204-2015
Opinion
FILED
SUPERIOR COURT
JUN 1 5 2016
TYLEESIA KITCHEN
II 11111111111111111111111 No. 148 EDA 2016 Criminal Appeals Unit
7460289201 f'i~stJbldiGiQ\ Oistrict of PA
OPINION
THOMAS STREET, J. June 15, 2016
I. OVERVIEW AND PROCEDURAL HISTORY
The Defendant, Tyleesia Kitchen, was arrested and charged with inter alia Manufacture,
Delivery, or Possession with Intent to Manufacture or Deliver (F);1 Intentional Possession of a
Controlled Substance by a Person Not Regulated (M);2 and False Identification to a Law
Enforcement Officer (M3).3 On August 4, 2015, the Defendant filed an omnibus pre-trial
motion. On October 7, 2015, this court denied the Defendant's Motion to Suppress physical
evidence. On the same day, a non-jury trial4 was held at which the Defendant was found guilty
of the above charges. A pre-sentence investigation was ordered.
On December 9, 2015, this court denied the Defendant's oral Motion for Extraordinary
Relief. On the same day, the Defendant was sentenced to six (6) to twenty-three (23) months of
incarceration with twenty-four (24) months of reporting probation. Mandatory court costs were
also imposed.
1
35 Pa.c.s. § 780-113 §§ A30
2
35 Pa.C.S. § 780-113 §§ AJ6
3
18 Pa.c.s. § 4914 §§ A
4
Following the suppression hearing, all relevant non-hearsay testimony was incorporated into the record.
1
On January 5, 2016, the Defendant filed a Notice of Appeal. On February 5, 2016, after
notes of testimony became available, this court ordered the Defendant to file a Concise
Statement of Matters Complained of on Appeal within twenty-one (21) days pursuant to Pa.
R.A.P. 1925(b). A Concise Statement of Matters Complained of on Appeal was filed on
February 25, 2016.
II. FACTUAL HISTORY
Philadelphia Police Officer Thomas Dempsey, assigned to the 35111 District, testified that
on June 2, 2015, at approximately 3:00 a.m., he performed his tour of duty in the 5531 North 5th
Street area of the city of Philadelphia. (N. T. 10/7/15 p. 6). 5 Officer Dempsey stated that he was
traveling northbound on 5th Street in a patrol car with his partner, Officer Hanton, approaching
Duncannon when he came into contact with the Defendant operating a white Nissan Altima with
New York tag GSD4632. (N.T. 10/7/15 p. 7). He observed the Defendant head westbound on
Duncannon at 5111 Street and then make a right-hand turn onto 5111 Street, heading northbound,
without using a tum signal. kl Officer Dempsey activated his lights and sirens and pulled the
Defendant over approximately three to four (3-4) blocks up at 5531 North 5111 Street for failing to
signal on the turn. Id. Officer Dempsey stated that he then approached the driver's side of the
vehicle and that the Defendant was the only person in the vehicle. (N.T. 10/7/15 pp. 7-8).
Officer Dempsey testified that he asked the Defendant for her license, registration, and
insurance. (N. T. 10/7 /15 p. 8). The Defendant was unable to provide any form of identification
and notified Officer Dempsey that the car was rented. Id. The Defendant could not produce any
documents to prove a rental agreement. Id. Subsequent to failing to give Officer Dempsey any
of the requested identification, the Defendant gave him the name of "Chelsea Thomas" with a
5
References to the record refer to the suppression hearing and non-jury trial recorded on October 7, 2015.
2
date of birth of 12/21/90. Id. The Defendant provided Officer Dempsey with a TD Bank credit
card with the name "Chelsea Thomas" and a social security number. (N.T. 10/7/15 p. 8).
Officer Dempsey stated that from his investigation, the name "Chelsea Thomas" came back with
a suspended license. Id Officer Dempsey stated that he and his partner then decided to live stop
the vehicle for the suspended license. Id. Officer Dempsey testified that he and his partner
followed procedure: they notified the Parking Authority, removed the Defendant from the
vehicle, and performed a search incident to the live stop of the vehicle to "make sure there was
[sic] no dangerous things in the vehicle and to inventory anything of the driver, money that was
there, whatever was valuable, just to cover all of my bases." (N.T. 10/7/15 pp. 8-9).
Officer Dempsey testified that upon searching the vehicle pursuant to the live stop, he
noticed a 12-ounce green can of Mountain Dew in the driver's seat cup holder, which he testified
caught his eye because it was larger than usual, looked swollen, and there was no condensation.
(N.T. 10/7/15 pp. 9, 16). Officer Dempsey testified that he possesses ample experience
discovering narcotics hidden inside soda cans; during his years on the force, he has uncovered
approximately fifteen (15) to twenty (20) false cans, most of them soda cans, and only one of
them was empty and did not contain narcotics. (N.T. 10/7/15 pp. 9, 15-16). From this
experience, Officer Dempsey stated that he has made several narcotics arrests where narcotics
were hidden in false cans. (N.T. 10/7/15 p. 9).
Officer Dempsey testified that he touched the can and felt that it was rock hard which
further indicated from his experience that this was a false can. Id. Officer Dempsey proceeded
to pick up the can and to unscrew the top, which revealed that the can was indeed false; inside
the can were seventy-six (76) small baggies with an off-white chunky substance, crack cocaine.
(N.T. 10/7/15 p. 9). Officer Dempsey stated that he arrested the Defendant and placed her in the
3
back of his vehicle. Id He continued his search of the vehicle pursuant to live stop procedure
and discovered a driver's license with a different name under the brake pedal on the driver's side
floor area. (N.T. 10/7/15 pp. 9-11). Officer Dempsey ran the discovered driver's license through
the system to find that name also had a suspended license. (N.T. 10/7/15 p. 11).
Officer Dempsey testified that he continued with the live stop and completing paperwork
when Officer Snell arrived as backup. (N.T. 10/7/15 p. 11). Officer Snell completed an
inventory search of the trunk of the Defendant's vehicle in Officer Dempsey's presence. Id
Upon opening the trunk, Officer Dempsey observed a clear sandwich bag with eight-four (84)
zip tie baggies with crack cocaine, an off -white chunky substance inside them. Id Officer
Dempsey stated that in total he recovered one hundred and sixty ( 160) baggies of crack cocaine
later placed on Property Receipt No. 31976333. Id. The false Mountain Dew can was placed on
Property Receipt No. 3197634. (N.T. 10/7/15 p. 12). A search incident to arrest recovered one
hundred and forty-five dollars ($145) in US currency from the Defendant's front pants pocket
later placed on Property Receipt No. 3197635. Id. Officer Dempsey stated that the vehicle was
live stopped and the Defendant transported to the 35th District for processing. Id.
Officer Dempsey testified that the identification was found on the driver's side floor area
under the brake pedal. (N.T. 10/7/15 p. 12). Officer Dempsey stated that the name of the
driver's license was the Defendant's, Tyleesia Kitchen, and had a date of birth of 7/10/90 with a
picture matching what the Defendant looked like on the day in question. (N.T. 10/17/15 p. 14).
Officer Dempsey stated that this information was inconsistent with the information provided by
the Defendant when he first asked her for her identification. Id. He explained that the Defendant
first gave him the name "Chelsea Thomas" which, through further investigation, he believed to
4
be the Defendant's girlfriend. Id. Officer Dempsey restated that he determined that both
"Tyleesia Kitchen" and "Chelsea Thomas" did not have valid licenses. (N.T. 10/7/15 pp. 14-15).
Officer Dempsey further testified that in his nine years on the job he has seen fifteen to
twenty (15-20) false cans. (N.T. 10/7/15 p. 15). Officer Dempsey stated that most of these cans
are soda cans and that he has also observed "Fix-A-Flat cans, a Pringles can, but the majority are
soda cans." (N.T. 10/7/15 pp. 15-16). Officer Dempsey stated that he has found narcotics in
these false cans fourteen (14) out of fifteen (15) times, specifying only one occasion where a
false can was empty. (N.T. 10/7/15 p. 16). Officer Dempsey testified that the can in the instant
case caught his eye before he touched it. Id. He stated, "[i]t looked like it was swelled up.
There was no water dripping off of it as if it was cold. It was swelled-up looking and that caught
my eye and that's why I touched it. I immediately felt it was rock hard." (N.T. 10/7/15 p. 16).
When asked to describe the area where the Defendant's vehicle was stopped, Officer
Dempsey testified that it was at 5111 and Olney where the Defendant pulled over to the right,
placing her vehicle only partially in a parking spot. (N.T. 10/7/15 p. 16). Officer Dempsey
stated that the Defendant's vehicle was interfering with traffic as half of the Defendant's vehicle
was sticking out in the north bound lane causing cars to have to go partly in the southbound lane
to get past her. (N.T. 10/7/15 p. 17). Officer Dempsey described the area as heavily populated
and busy. Id. Officer Dempsey stated that this area is well-known by police to be a common site
for loud music, narcotics calls and arrests. (N.T. 10/7/15 p. 17).
On cross-examination, Officer Dempsey affirmed that the Defendant's car had New York
plates and that it was rented. (N.T. 10/7/15 p. 18). The Defendant told Officer Dempsey that
"Chelsea rented it." (N.T. 10/7/15 p. 18). Because the Defendant did not refer to herself in the
first person, Officer Dempsey stated "that was one of the things that stuck out because either she
5
was talking about herself in the third person or she just messed up." Id. When asked to review
the notes of testimony from the preliminary hearing, marked as Defense Exhibit 1 (D-1), Officer
Dempsey affirmed that he stated that there were no cars parked on 5111 Street, there were plenty of
spots, and that the Defendant had pulled over in a legal parking spot. (N.T. 10/7/15 p. 21).
Officer Dempsey further affirmed that he answered in the affirmative at the preliminary hearing
when asked if it was not until he had removed the Defendant from the vehicle and actually
picked up the can that he realized it was a false can. (N.T. 10/7/15 p. 22).
Officer Dempsey testified that after he determined that Chelsea Thomas had a suspended
license, he removed the Defendant from the car and placed her in the police car, un-handcuffed
and shut the police car door. (N.T. 10/7/15 p. 23). Officer Dempsey affirmed that he began the
inventory search of the vehicle once he verified that the Defendant had a suspended license.
(N.T. 10/7/15 p. 24). Officer Dempsey explained that he believed the Defendant to be "Chelsea
Thomas" because she provided that name and the social security number. Id
On redirect examination, Officer Dempsey testified that he suspected that the can
contained narcotics, but was not certain until he physically opened it. (N.T. 10/7/15 p. 25).
Philadelphia Police Officer James Trappler, assigned to the Narcotics Field Unit, testified
that he reviewed the file in the present case and had the opportunity to hear the testimony. (N.T.
10/7/15 p. 50). Officer Trappler testified that based on his experience there was intent to deliver
in the present case. (N.T. 10/7/15 pp. 50-51). Officer Trappler explained that the one-hundred
and sixty ( 160) packets of cocaine base, with a weight of 9. 971 grams would total a street value
of $800. (N.T. 10/7/15 p. 51). Additionally, in relation to the recovered $145 US currency,
Officer Trappler stated, "the reason you have drugs to sell is to make money so at some point
there will be US currency. Id.
6
Officer Trappler testified that, in regards to the lack of use paraphernalia, in his
experience "when somebody is heavily addicted to crack cocaine, they tend to get it and smoke it
right away." (N.T. 10/7/15 p. 52). He stated that he has not heard of a user who personally uses
such a large quantity of cocaine. Id. He explained that when there is such a large amount
recovered, the user is always a seller as well. Id Officer Trappler additionally noted that
individuals who are just users virtually always buy just enough so that they can smoke it
immediately. Id.
Furthermore, Officer Trappler testified that in his experience the Mountain Dew can with
the false bottom was indicative of a seller: that the can's purpose is to conceal narcotics and also
to hold cash from narcotic sale transactions. (N.T. 10/7/15 p. 53). Officer Trappler testified that
if a person were just a user, it would be non-sensible and uneconomical to purchase one-hundred
and sixty (160) packets. Id. In other words, if someone is a heavy user, it would be much more
practical to buy in bulk and double the product for the same amount of money spent instead of
purchasing one-hundred and sixty (160) individual packets. Id.
Moreover, Officer Trappler testified that because seventy-six (76) packets of cocaine
were recovered from the front of the vehicle and eighty-four (84) packets from the back, it is
indicative of a person who is attempting to reduce the severity of their guilty conduct by
separating the product; users and sellers oftentimes believe that if the drugs are not near them,
they will not be found guilty. (N.T. 10/7/15 pp. 53-54).
On cross-examination, Officer Trappler testified that finding one-hundred and forty-five
($145) dollars on the Defendant is consistent with a drug sale or purchase for when there is a
transaction, it follows there will be currency. (N.T. 10/7/15 p. 54). Officer Trappler concluded
7
based on his expert opinion that whoever possessed such a quantity of cocaine possessed them
with the intent to deliver. Id.
III. ISSUES
In the Pa. R.A.P. 1925(b) Statement of Matters Complained of on Appeal, the Defendant
identifies the following issues:
1. The trial court erred in convicting appellant of false
identification to law enforcement as the Commonwealth
introduced no evidence that the police informed appellant
she was the suspect of an official investigation and the
Commonwealth neglected, at trial, to introduce evidence
that appellant presented false identification to police.
2. The trial court erred in convicting appellant of possession
with intent to deliver as the Commonwealth failed to
demonstrate that appellant had constructive possession over
the packets of crack cocaine in the trunk of the car and in
the enclosed soda can.
3. The trial court erred in convicting appellant of knowing and
intentional possession of crack cocaine where the
Commonwealth failed to demonstrate that appellant
knowingly and intentionally possessed the packets of crack
cocaine found in the car.
IV. STANDARD OF REVIEW
A challenge to the sufficiency of evidence is a question of law. Commonwealth v.
Heater, 2006 PA Super 86, 11, 899 A.2d 1126, 1131 (2006) (citing Commonwealth v. Widmer,
560 Pa. 308, 319, 744 A.2d 745, 751 (2000). The role of an appellate court in reviewing the
weight of the evidence is very limited. Commonwealth v. Holmes, 444 Pa. Super. 257, 264, 663
A.2d 771, 774 (1995). When reviewing a sufficiency of the evidence claim, a court must review
the evidence and all reasonable inferences in the light most favorable to the Commonwealth as
the verdict winner, and must determine if the evidence, thus viewed, is sufficient to enable the
fact-finder to find every element of the offense beyond a reasonable doubt. Commonwealth v.
8
Valette, 531 Pa. 384, 388, 613 A.2d 548, 549 (1992); Commonwealth v. Marks, 704 A.2d 1095
(Pa. Super. 1997).
A reviewing court may not weigh the evidence or substitute its own judgment for that of
the fact-finder, who is free to believe all, part, or none of the evidence. Commonwealth v.
Adams, 2005 Pa. Super. 296, 882 A.2d. 496, 498-99 (Pa. Super. 2005). An appellate court may
reverse a lower court's verdict only in the instance that it is so contrary to the evidence as to
shock one's sense of justice. See Commonwealth v. Hunzer, 868 A.2d 498, 506-507
(Pa.Super.2005), appeal denied, 584 Pa. 673, 880 A.2d 1237 (2005). Whether a new trial should
be granted on the ground that a conviction was against the weight of the evidence is addressed to
the sound discretion of the trial judge, and that decision will not be reversed on appeal absent a
showing of abuse of discretion. Commonwealth v. Petteway, 847 A.2d 713, 716 (Pa. Super.
2004) (citing Commonwealth v. Davis, 799 A.2d 860, 865 (Pa. Super. 2002)).
Additionally, the Commonwealth may satisfy its burden of proof entirely by
circumstantial evidence. See Commonwealth v. Adams, 2005 Pa. Super 296, 882 A.2d. 496, 499
(Pa. Super 2005); see also Commonwealth v. Murphy, 2002 PA Super 84, 795 A.2d 1025, 1038-
39 (Pa. Super. 2002) (''The fact that the evidence establishing a defendant's participation in a
crime is circumstantial does not preclude a conviction where the evidence coupled with the
reasonable inferences drawn therefrom overcomes the presumption of innocence."). "If the
record contains support for the verdict, it may not be disturbed." Adams, 882 A.2d. at 499.
V. DISCUSSION
In her first issue on appeal, the Defendant argues that this court erred in convicting her of
false identification because the Commonwealth failed to introduce evidence that police informed
9
the Defendant she was the suspect of an official investigation and failed to introduce evidence
that she presented false identification to police. This court disagrees.
A person commits false identification if he furnishes law enforcement authorities with
false information about his identity after being informed by a law enforcement officer who is in
uniform or who has identified himself as a law enforcement officer that the person is the subject
of an official investigation of a violation of law. 18 Pa.C.S.A. § 4914 (2001 ). Three conditions
must be satisfied before a defendant can be convicted of presenting false identification to law
enforcement. Id. First, if the law enforcement officer is not in uniform, the officer must identify
himself as a law enforcement officer; second, the individual must be informed by the law
enforcement officer that he is the subject of an official investigation of a violation of law; and
third, the individual must have furnished law enforcement authorities with false information after
being informed by the law enforcement officer that he was the subject of an official investigation
of a violation oflaw. In re D.S., 39 A.3d 968, 974 (Pa. 2012). Moreover, it can be inferred from
the surrounding circumstances of a traffic stop that an official investigation is underway.
Commonwealth v. Barnes, 14 A.3d 128, 131 (Pa. Super. 2011).
In Commonwealth v. Barnes, police initiated a traffic stop of the defendant's car because
the vehicle had multiple air fresheners hanging from the rear view mirror, in violation of 75 Pa.
C.S.A. § 4524(c). Barnes, 14 A.3d at 129. Because the defendant was in a high crime
neighborhood and for safety purposes, the officer asked the defendant for identification, to which
the defendant responded by giving a name and date of birth. Id. After the officer completed a
computer check of the name and date of birth, no record was found. Id. The defendant's hue
identity was inconsistent with the information provided; the defendant was charged with
presenting false identification to law enforcement. Id. The Pennsylvania Superior Court held
10
that while the first condition of false identification was satisfied because the officer was in
uniform, the second and third conditions were not. Id. Because the officer stated his official
investigation of a violation of law started after false identification was provided, the defendant
cannot be convicted of the presentment of false identification. Id. at 132. The Court reasoned
that while the defendant was not found guilty of presenting false identification, the surrounding
circumstances of a traffic stop, such as a traffic violation, coupled with being in a high crime
area can be sufficient grounds to demonstrate that the defendant knew it was an official stop and
an investigation of a violation of law. Id. at 131.
Here, the evidence is sufficient to find the Defendant guilty of false identification. First,
Officer Dempsey was in uniform when he approached the Defendant's car, so his identity as a
police officer was established. (N.T. 10/7/15 pp. 6-7). Second, from the surrounding
circumstances of the traffic stop it is inferred that an official investigation of a violation of law
was underway. Unlike Barnes, Officer Dempsey's official investigation of a violation of law
began before the Defendant provided a false name. (N.T. 10/7/15 p. 7). Similar to Barnes,
Officer Dempsey pulled the Defendant over because of a traffic violation; further, also similar to
Barnes, the neighborhood of 5111 and Olney where the Defendant was pulled over was a high
crime area. (N.T. 10/7/15 p. 17). Officer Dempsey stated that this area is well-known by police
to be a common site for loud music, narcotics calls and arrests. Id. Thus, Officer Dempsey's
traffic stop with its surrounding circumstances implied there was an official investigation of a
violation of law prior to the presentment of false identification. Third, the Defendant presented
false information by providing Chelsea Thomas' name, social security number, and credit card
during the course of a traffic stop. Hence, this court properly found that there was sufficient
evidence to find the Defendant guilty of presenting false identification to law enforcement.
11
In her second issue on appeal, the Defendant argues that this court erred in convicting the
Defendant of Possession with Intent to Deliver because the Commonwealth failed to demonstrate
that the Defendant had constructive possession over the packets of crack cocaine in the trunk of
the car and the enclosed soda can. This court disagrees.
Possession with Intent to Manufacture or Deliver a Controlled Substance is statutorily
defined as follows:
(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
***
(30) Except as authorized by this act, the manufacture, delivery, or
possession with intent to manufacture or deliver, a controlled
substance by a person not registered under this act, or a practitioner
not registered or licensed by the appropriate State board, or
knowingly creating, delivering or possessing with intent to deliver,
a counterfeit controlled substance.
35 Pa.C.S. § 780-1 l 3(a)(30).
To find the defendant guilty of Possession with Intent to Manufacture or Deliver a
Controlled Substance, the Commonwealth must prove beyond a reasonable doubt that the
defendant both possessed the controlled substance and that he had the intent to deliver.
Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa. Super. 2003) citing Commonwealth v.
Conaway, 791 A.2d 359 (Pa. Super. 2002); Commonwealth v. Aguado, 760 A.2d 1181 (Pa.
Super. 2000). The trier of fact may infer that the defendant intended to deliver a controlled
substance from an examination of the facts and circumstances surrounding the case. Id. Factors
to consider in determining whether the drugs were possessed with the intent to deliver include
the particular method of packaging, the form of the drug, and the behavior of the defendant. Id.
When the controlled substance is not discovered on the defendant's person, the
Commonwealth may satisfy its evidentiary burden by proving that the defendant had
12
constructive possession of the drug. Commonwealth v. Vargas, 108 A. 3d 858, 867 (Pa. Super.
2014) citing Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132, 134 (1983). Constructive
possession is demonstrated by "the ability to exercise a conscious dominion over the illegal
substance: the power to control the illegal substance and the intent to exercise that control. Id
An intent to maintain a conscious dominion may be inferred from the totality of the
circumstances. Id. Circumstantial evidence may be used to establish constructive possession of
the illegal substance. Id. Furthermore, although not dispositive, a defendant's presence at the
location where drugs are discovered is a factor in establishing knowledge that contraband is
present and her exercise of dominion and control over the same. Commonwealth v. Aviles, 615
A.2d 398, 403 (Pa. Super. 1992) citing Commonwealth v. Harris, 263 A.2d 397, 424 (Pa. Super.
1979). Moreover, when a police officer finds cocaine within the defendant's rental car, not on
his person, it is sufficient to establish constructive possession and find the defendant guilty of
Possession with the Intent to Deliver. Commonwealth v. Jones 874 A.2d 108, 122 (Pa. Super.
2005).
In Commonwealth v. Jones, the police found cocaine in the cabin of the defendant's
rental car after the defendant was removed from the car and a search ensued. Jones, 874 A.2d. at
122. The officer later discovered cocaine in the same area. Id. The officer also recovered four
hundred and eighty-one ($481) dollars in small denominations, which the court stated was
common for someone involved in a drug distribution scheme. Id. The court held that based on
the totality of the circumstances, the defendant had conscious dominion over the cocaine and that
constructive possession was present; thus, the defendant was found guilty of possession. Id. The
Court reasoned that the defendant's close proximity to the cocaine by driving the car and small
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denominations of money was enough evidence to establish constrnctive possession and find the
defendant guilty of Possession with the Intent to Deliver. Id.
Here, the evidence supports the Defendant's conviction of Possession with the Intent to
Deliver and to establish constructive possession of the narcotics in the trunk of the car and the
enclosed soda can because of the Defendant's close proximity to the cocaine and the presence of
US currency. Similar to Jones, the police found the cocaine within the Defendant's rental car
shortly after commencing a search. Similar to Jones, the Defendant was in close proximity to the
narcotics found because she drove the vehicle. Officer Dempsey decided to search the Mountain
Dew can based on his nine (9) years of experience on the job viewing fifteen to twenty (15-20)
false cans, a majority of which were soda cans. (N.T. 10/7/15 pp. 15-16). He stated further that
he has found narcotics in these false cans fourteen (14) out of fifteen (15) times, specifying only
one occasion where a false can was empty. (N.T. 10/7/15 p. 16). Also similar to Jones, Officer
Dempsey's search incident to the arrest revealed that the Defendant was in possession of a
relatively large sum of money, one hundred and forty-five dollars ($145) on her person. (N.T.
1017115 p. 12).
Moreover, this court also relied on the expert testimony of Philadelphia Police Officer
James Trappler, assigned to the Narcotics Field Unit. Officer Trappler testified that based on his
experience there was intent to deliver in the present case. (N.T. 10/7/15 pp. 50-51). Officer
Trappler explained that the one-hundred and sixty (160) packets of cocaine base, with a weight
of 9.971 grams would total a street value of $800. (N.T. 10/7/15 p. 51). He noted that the
Mountain Dew with a false bottom indicated an intent to perform a narcotics transaction because
the can's purpose is to conceal narcotics and cash. (N.T. 10/7/15 p. 53). Additionally, in
relation to the recovered one hundred and forty-five dollars ($145), Officer Trappler stated, "the
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reason you have drugs to sell is to make money so at some point there will be US currency.
(N.T. 10/7/15 p. 54). Further, Officer Trappler noted that because seventy-six (76) packets of
cocaine were recovered from the front of the vehicle and eighty-four (84) packets from the back,
it is indicative of a person who is attempting to reduce the severity of their guilty conduct by
separating the product; users and sellers oftentimes believe that if the drugs are not near them,
they will not be found guilty. (N.T. 10/7/15 pp. 53M54).
Based on the totality of these circumstances, circumstantial evidence demonstrates that
the Defendant had the power to control the illegal substance and the intent to exercise that
control. Therefore, this court properly found the Defendant guilty of Possession with Intent to
Deliver as she constructively possessed the packets of crack cocaine in the hunk of the vehicle
and in the enclosed soda can located due to her proximity to the narcotics and her position as the
operator of the vehicle.
In her third issue on appeal, the Defendant argues that this court erred in convicting her
of Knowing and Intentional Possession of crack cocaine because the Commonwealth failed to
demonstrate the Defendant knowingly and intentionally possessed the packets of crack cocaine
found in the car. This court disagrees.
Intentional Possession of a Controlled Substance is statutorily defined as follows:
(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
***
( 16) Knowingly or intentionally possessing a controlled or
counterfeit substance by a person not registered under this act, or a
practitioner not registered or licensed by the appropriate State
board, unless the substance was obtained directly from, or pursuant
to, a valid prescription order or order of a practitioner, or except as
otherwise authorized by this act.
35 Pa.C.S. § 780-l 13(a)(l6).
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To find a defendant guilty of knowingly and intentionally possessing narcotics, there
must be proof that he or she had knowledge of the existence and location of the narcotics.
Commonwealth v. Thompson, 428 A.2d 223, 224 (Pa. Super. 1981) citing Commonwealth v.
Griffin, 326 A.2d 554 (Pa. Super. 1974). The requisite knowledge and intent may be inferred
from an examination of the totality of the circumstances surrounding the case. Id. citing
Commonwealth v. Cash, 367 A.2d 726 (Pa. Super. 1976); Commonwealth v. Hannan, 331 A.2d
503, 540 (Pa. Super 1974). Location of the contraband in an area usually accessible only to the
defendant may lead to the inference that he placed it there or knew if others did so. Id. citing
Commonwealth v. Ferguson, 331 A.2d 856 (Pa. Super. 1974); Commonwealth v. Cash, supra.
Here, the Defendant was found guilty of Intentional Possession of a Controlled Substance
because of the Defendant's close proximity to the large amount of crack cocaine located in the
vehicle she was driving when stopped by police. This court relied on several factors to find the
Defendant guilty of knowing and intentional possession of the crack cocaine found in the false
can of Mountain Dew located in the driver's seat cup holder and in the trunk of the car. First, the
Defendant was near the narcotics found in the Mountain Dew can and in the hunk of the car. At
the time Officer Dempsey came into contact with the Defendant, only the Defendant was in the
vehicle and had accessibility, as the driver or operator, inferring her knowledge to the contents of
the vehicle. (N.T. 10/7/15 p. 7). Moreover, the Mountain Dew can was well within the
Defendant's reach in the driver's seat cup holder. (N.T. 10/7/15 p. 9).
Second, Officer Dempsey's testimony revealed that narcotics hidden inside of soda cans
are a common tactic employed by users and sellers. (N.T. 10/7/ l 5 p. 15). Out of the fifteen (15)
false cans he has found in his experience, fourteen (14) cans contained narcotics and only one
false can was empty. (N.T. 10/7/15 p. 16). Lastly, there were eighty-four (84) zip tie baggies of
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crack cocaine in plain view in the trunk of the car, when the Defendant was stopped. (N.T.
10/7/15 pp. 7, 11).
Third, this court relied on the credible expert testimony of Officer Trappler. He noted
that the total sum of narcotics recovered from the vehicle, one hundred and sixty (160) packets of
crack cocaine, was a large amount. (N.T. 10/7/15 p. 52). Further, Officer Trappler testified that
because seventy-six (76) packets of cocaine were recovered from the front of the vehicle and
eighty-four (84) packets from the back, it is indicative of a person who is attempting to reduce
the severity of their guilty conduct by separating the product; users and sellers oftentimes believe
that if the drugs are not near them, they will not be found guilty. (N.T. 10/7/15 pp. 53-54).
Moreover, the Defendant showed a consciousness of guilt when she provided a false name and
other identifying information when stopped by Officer Dempsey.
Therefore, under the totality of the circumstances, in reviewing evidence that the
Defendant provided false identifying information to Officer Dempsey, was the sole person in the
vehicle, in control of the vehicle as the driver, in close proximity to the large sum of crack
cocaine located in the false soda can and in the trunk of the vehicle coupled with Officer
Trappler's expert testimony, this court properly found that the Defendant knowingly and
intentionally possessed the packets of crack cocaine found in the car.
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VI. CONCLUSION
For all of these reasons, this court's decision should be affirmed.
BY THE COURT:
Dated: June 15!}2016
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Com. v. Kitchen, T.
Combined Opinion