J-S41039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JASON SIMMONS,
Appellant No. 1519 EDA 2015
Appeal from the Judgment of Sentence April 2, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005926-2011
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 18, 2016
This is an appeal from the judgment of sentence entered by the Court
of Common Pleas of Philadelphia County after the trial court convicted
Appellant Jason Simmons of possession of a controlled substance with intent
to deliver (PWID), possession of an instrument of crime, and possession of a
firearm prohibited.1 Appellant claims the evidence was insufficient to
support his convictions. We affirm.
On April 19, 2011, Philadelphia police officers conducted surveillance
on the 2500 block of North Chadwick Street. The officers were assisted by a
____________________________________________
1
35 P.S. §780-113(a)(30), 18 Pa.C.S.A. §907(a), §6105(a)(1) (“Persons not
to possess, use, manufacture, control, sell or transfer firearms”).
*Former Justice specially assigned to the Superior Court.
J-S41039-16
confidential informant (CI) who was given prerecorded buy money and
searched for contraband or currency before he was released. The CI
approached a nearby residence on Cumberland Street and yelled up to a
second floor window. Appellant looked out of the window to see the CI and
exited the home shortly thereafter. Officers observed Appellant give the CI
two small, red plastic packets in exchange for $20 of the buy money. The
officers later determined that the packets contained cocaine.
Subsequently, on two other occasions, the officers used the same CI to
buy more controlled substances from Appellant. On May 3, 2011, the
officers watched as Appellant handed the CI two small, pink plastic packets
in exchange for money. On May 4, 2011, the officers observed Appellant
give two small, yellow plastic packets to an unidentified individual who
passed them to the CI and took money from the CI. All of the packets
subsequently tested positive for cocaine.
Once the officers had observed the three separate transactions, they
obtained a search warrant for the Cumberland Street residence. On May 5,
2011, the officers executed the warrant and arrested Appellant. Officers
recovered $184 in U.S. currency and the keys to the Cumberland Street
residence from Appellant’s person. After entering the home’s first floor,
officers confiscated one small blue packet of cocaine found on a table and a
9 mm handgun from an unlocked tool box. The cocaine packet matched the
-2-
J-S41039-16
packaging, size, and the weight of the drug packets that the CI purchased
from Appellant.
Appellant waived his right to a jury trial and proceeded to a bench
trial. On February 1, 2012, the trial court convicted Appellant of all the
aforementioned offenses. On April 2, 2012, Appellant was sentenced to five
to ten years imprisonment to be followed by five years probation. No direct
appeal was filed.
On April 2, 2013, Appellant filed a pro se petition under the Post
Conviction Relief Act (PCRA). The lower court appointed counsel, who filed
an amended petition on Appellant’s behalf, claiming trial counsel was
ineffective in failing to pursue appellate relief. On May 12, 2015, the PCRA
court granted Appellant the right to file a direct appeal nunc pro tunc.
Appellant filed a timely notice of appeal and complied with the trial court’s
direction to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
Appellant claims that there was insufficient evidence to prove that he
possessed the cocaine packets or the firearm.2 In reviewing a sufficiency
claim, we must review the evidence in the light most favorable to the
Commonwealth as verdict winner according to the following standard:
____________________________________________
2
The parties stipulated that Appellant had a prior conviction that prevented
him from possessing a firearm. N.T. Trial, 2/1/12, at 70.
-3-
J-S41039-16
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. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (quoting
Commonwealth v. Mobley, 14 A.3d 887, 889–90 (Pa. Super. 2011)
(citation omitted)).
Appellant claims that the Commonwealth failed to prove he possessed
a controlled substance or a firearm as the officers did not find any such
contraband on his person upon his arrest. Appellant denies being in
possession of any of the drugs recovered from the CI and alleges that he
cannot deemed to have possessed the blue packet of cocaine or the firearm
found on the first floor of his home as his bedroom is on the second floor.
It is well established that “[p]ossession can be found by proving actual
possession, constructive possession or joint constructive possession.”
Commonwealth v. Gutierrez, 969 A.2d 584, 590 (Pa. Super. 2009)
(citation omitted).
-4-
J-S41039-16
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. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (citation
omitted)). Our courts have held that “[the] intent to maintain a conscious
dominion may be inferred from the totality of the circumstances, and
circumstantial evidence may be used to establish a defendant's possession
of drugs or contraband.” Gutierrez, 969 A.2d at 590 (citing
Commonwealth v. Valette, 531 Pa. 384, 613 A.2d 548, 550 (1992)
(citation omitted)).
The evidence presented at trial was more than sufficient to establish
that Appellant constructively possessed the cocaine packets and the firearm.
First, on three separate occasions, the officers observed Appellant exchange
packets of cocaine for U.S. currency. Second, officers discovered in
Appellant’s home a 9 mm handgun and another bag of cocaine of the same
size, weight, and packaging as those purchased by the CI. Even though the
drugs and the weapon were not recovered from Appellant’s bedroom, they
were seized from an area on the first floor that was equally accessible to
him. Lastly, there was no evidence that anyone besides Appellant resided in
the home or had access to the area where the drugs were found.
-5-
J-S41039-16
We reject Appellant’s suggestion that he could not be found in
constructive possession of items found on the first floor on the home. The
trial court found that the although the first floor did not consist of livable
space, Appellant exercised dominion and control of the both floors of the
residence, as he utilized both floors, and was the sole recorded occupant of
the property.” Trial Court Op., 12/31/15, at 7. Even if there were evidence
that another individual had access to the Cumberland Street home, our
courts have repeatedly held that “[p]ossession of [contraband] need not be
exclusive; two or more [individuals] can possess the same [contraband] at
the same time.” Commonwealth v. Macolino, 503 Pa. 201, 208, 469 A.2d
132, 135 (1983). More than one actor may constructively possess
contraband that is located in an area of joint control and access.
Commonwealth v. Sanes, 955 A.2d 369, 373 (Pa. Super. 2008).
Appellant also contends that his convictions cannot stand as 1) the
officers did not observe a transaction on the day of his arrest, 2) Appellant
did not have any of the prerecorded buy money on his person when he was
arrested the day after the last exchange and 3) the packets recovered from
the CI were not the same color as the packets confiscated from Appellant’s
home. As all the aforementioned facts are inconsequential, we find these
arguments to be unpersuasive. After viewing the evidence in this case in
the light most favorable to the Commonwealth, we find the trial court could
reasonably conclude that Appellant had the power and intent to exercise
-6-
J-S41039-16
conscious dominion over the cocaine packets and the firearm. In light of the
aforementioned evidence and all the reasonable inferences that can be made
therefrom, we find the Commonwealth presented sufficient evidence to
support Appellant’s conviction of PWID, possession of an instrument of
crime, and possession of a firearm prohibited.
For the foregoing reasons, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2016
-7-
Com. v. Simmons, J.
Combined Opinion