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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    ALLEN F. WATSON                            :
                                               :
                       Appellant               :   No. 362 EDA 2018

           Appeal from the Judgment of Sentence November 14, 2014
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0015007-2013


BEFORE:      LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                           FILED MARCH 25, 2019

       Allen F. Watson appeals from the judgment of sentence entered

following his bench trial convictions for possession of a controlled substance

with the intent to deliver (“PWID”), possession of a controlled substance,

possession of drug paraphernalia, possession of an instrument of crime

(“PIC”), and possession of a firearm by a prohibited person.1 Watson contends

the Commonwealth failed to present sufficient evidence to support a finding

that he constructively possessed the controlled substances, paraphernalia, or

firearm, or that he intended to distribute the narcotics. We affirm.

       At Watson’s bench trial, Officer Jeffrey Galazka testified that be began

a narcotics investigation of a house on West Tioga Street in Philadelphia
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*    Former Justice specially assigned to the Superior Court.

135 P.S. §§ 780-113(a)(30), 780-113(a)(16), 780-113(a)(32); 18 Pa.C.S.A.
§§ 907(a), and 6105(a)(1), respectively.
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(“Tioga Street house”) based on information he received from a neighboring

jurisdiction. N.T., 9/12/14, at 11. He said he gave a confidential informant

(“CI”) $100 of prerecorded money and instructed the CI to purchase

marijuana from the Tioga Street house. Id. at 11, 13. Officer Galazka testified

that the CI knocked on the front door of the house, Watson answered, and

Watson and the CI proceeded into the house. Id. at 13. The CI emerged a

short time later with a bag of marijuana. Id. at 13-14.

      Galazka obtained a search warrant for the Tioga Street house, and

executed the warranted that same day. Id. at 14-15. Officer Galazka testified

that as he approached the front bedroom, he observed a man later identified

as Watson lifting a mattress off of a box spring and dropping it back down on

top of the box spring. Id. at 15-16. The police officers arrested Watson, who

was alone in the bedroom. Id. He had $134 on his person. Id. at 15.

      Officer Galazka then searched the bedroom, where he found the

following between the mattress and box spring: two clear zip lock bags

containing marijuana, an amber pill bottle containing 18 pills of Alprazolam

with the name “David Biaz” on the label, and a Bursa .380 caliber

semiautomatic firearm, loaded with seven live rounds. Id. at 15-16. Police

officers also found a .22 caliber rifle in the closet of the front bedroom. Id. at

16. In the living room, the officers found three letters from PNC Bank

addressed to Watson at the Tioga Street house; a letter from Child Support

court, also addressed to Watson at the Tioga Street house; Watson’s probation




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card; a large bag of marijuana; a digital scale; a box containing sandwich

bags; and $177 in cash. Id. at 17-18.

       Shawanda Liles testified for the defense. She stated that she, her young

son, and a third individual were also present when the officers executed the

search warrant. Id. at 40-41. Ms. Liles referred to the Tioga Street house as

“[Watson]’s house,” id. at 40, but later testified that someone else owned the

house and Watson was there to make repairs. Id. at 43-44.

       Laura Ann Carter Hampton testified that Watson did not own the Tioga

Street house. Id. at 55. She, however, also testified that the house was being

renovated and the owner did not live at the property. Id. at 58-59.

       The trial court found Watson guilty of the above-listed crimes. On

November 11, 2014, the trial court sentenced Watson to five to ten years’

incarceration.

       On September 10, 2015, Watson filed a petition under the Post

Conviction Relief Act (“PCRA”), and, on November 4, 2016, counsel filed an

amended petition. On January 11, 2018, the PCRA court reinstated Watson’s

direct appeal rights nunc pro tunc. On January 26, 2018, Watson filed a timely

notice of appeal.

       Watson raises the following issue: “Whether the verdicts were contrary

to law?” Watson’s Br. at 8.2 Watson maintains the Commonwealth failed to

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2His statement of questions also raises the following question: “Whether the
court erred in denying the [m]otion to reconsider sentence?” Watson’s Br. at



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present sufficient evidence to establish constructive possession of the drugs

and drug paraphernalia to support the PWID, possession of a controlled

substance, and possession of drug paraphernalia convictions and claims the

Commonwealth failed to establish any intent to deliver, and therefore failed

to   present    sufficient   evidence     of   PWID.   He   further   maintains   the

Commonwealth failed to establish constructive possession of the firearm.

       When reviewing a sufficiency of the evidence claim, we must determine

whether, when viewed in the light most favorable to the verdict winner, the

evidence at trial and all reasonable inferences therefrom are sufficient for the

trier of fact to find that each element of the crime charged is established

beyond a reasonable doubt. See Commonwealth v. Brown, 23 A.3d 544,

559 (Pa.Super. 2011) (en banc). “The Commonwealth may sustain its burden

of proving every element of the crime beyond a reasonable doubt by means

of wholly circumstantial         evidence.”    Id. (quoting   Commonwealth v.

Hutchinson, 947 A.2d 800, 806 (Pa.Super. 2008)).

       To sustain a conviction for possession of a controlled substance, the

Commonwealth must establish the defendant knowingly or intentionally

possessed a controlled substance without being properly registered to do so.

See 35 P.S. § 780–113(a)(16); Commonwealth v. Brown, 48 A.3d 426,

430 (Pa.Super. 2012).

____________________________________________


8. However, he states he will not be presenting argument on that issue on
appeal, as he agrees with the trial court that he failed to preserve the issue
because he did not file a timely post-sentence motion. Id.

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      To sustain a conviction for possession of drug paraphernalia, the

Commonwealth must establish the defendant possessed, with the intent to

use, “drug paraphernalia for the purpose of planting, propagating, cultivating,

growing, harvesting, manufacturing, compounding, converting, producing,

processing, preparing, testing, analyzing, packing, repacking, storing,

containing, concealing, injecting, ingesting, inhaling or otherwise introducing

into the human body a controlled substance.” 35 P.S. § 780-113(a)(32).

      To sustain a conviction for possession of a controlled substance with

intent to deliver, the Commonwealth must establish the defendant knowingly

or intentionally possessed a controlled substance without being properly

registered to do so, with the intent to manufacture, distribute, or deliver it.

See 35 P.S. § 780–113(a)(30); Brown, 48 A.3d at 430.

      Because Watson was not in physical possession of the drugs and drug

paraphernalia, the Commonwealth was required to establish he had

constructive possession. Commonwealth v. Hopkins, 67 A.3d 817, 820

(Pa.Super. 2013). To establish constructive possession of contraband, the

Commonwealth must show that the defendant had “conscious dominion” over

the contraband, that is, “the power to control the contraband and the intent

to exercise that control.” Brown, 48 A.3d at 430 (quoting Commonwealth

v. Parker, 847 A.2d 745, 750 (Pa.Super. 2004)). The “intent to maintain a

conscious dominion may be inferred from the totality of the circumstances,”

and “constructive possession may be found in one or more actors where the




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item in issue is in an area of joint control and equal access.” Commonwealth

v. Johnson, 26 A.3d 1078, 1094 (Pa. 2011) (citations and brackets omitted).

      Here, the Commonwealth presented sufficient evidence that Watson

possessed the narcotics and drug paraphernalia. The police officers recovered

pieces of mail addressed to Watson at the Tioga Street house, and Liles

testified that the Tioga Street address was Watson’s house. Watson was the

sole person found in the bedroom in which police officers recovered two clear

zip lock bags containing marijuana and a bottle containing 18 pills of

Alprazolam. Further, Officer Galazka observed Watson lifting the mattress,

under which Officer Galazka located the narcotics, and dropping it back down

prior to entering the room. In addition, the police officers discovered additional

marijuana, a digital scale, a box containing sandwich bags, and $177 in cash

in the living room. This evidence sufficiently establish constructive possession

of the drugs and drug paraphernalia located in the house. See Hopkins, 67

A.3d at 821 (finding Commonwealth established constructive possession

where appellant drove vehicle into side street after police observed known

drug user make call, police observed appellant attempt to hide heroin in space

between driver’s seat and center console, police located firearm within arms-

length of appellant, and found two cell phones and $361 in cash on appellant’s

person); Commonwealth v. Coleman, 130 A.3d 38, 41-42 (Pa.Super. 2015)

(finding sufficient evidence supported possession of drug paraphernalia where

police recovered cocaine and digital scale).




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        To support the PWID conviction, the Commonwealth also had to

establish Watson possessed the narcotics with an intent to deliver them. The

intent to deliver may be inferred from the behavior of the defendant, the

quantity of the substance, the packaging of the substance, or the lack of

paraphernalia for consumption. Commonwealth v. Jones, 874 A.2d 108,

121 (Pa.Super. 2005).

        Here, the officers conducted a controlled buy during which Watson sold

marijuana to a CI. Further, the officers confiscated a large quantity of

narcotics from the home, as well as $311 in cash,3 and the digital scale and

zip lock bags. This evidence supported a finding that Watson possessed the

narcotics with an intent to distribute them. See Commonwealth v.

Carpenter, 955 A.2d 411, 414-15 (Pa.Super. 2008) (finding evidence

sufficient to support intent to distribute where police located 21 glass vials

with marijuana, 260 empty glass vials, bulk marijuana, a digital scale, unused

plastic baggies, a cutting board and knife with marijuana residue).

        Watson also claims the Commonwealth failed to present sufficient

evidence that he possessed a firearm. He claims other individuals had access

to the house and there were no fingerprints recovered from the gun.

        To establish a conviction for persons not to possess firearms, the

Commonwealth must prove that the defendant had been convicted of an

enumerated offense and possessed a firearm. 18 Pa.C.S.A. § 6105(a)(1).

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3   The officers recovered $177 in the living room and $134 on Watson’s person.

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Watson concedes that he had a prior conviction that prohibited him from

possessing a firearm. He argues that the Commonwealth failed to establish he

possessed a firearm.

      Because the officers did not find Watson in actual possession of a

firearm, to support the possession of a firearm conviction, it was required to

establish Watson constructively possessed the firearms. As discussed above,

to establish constructive possession the Commonwealth must show that the

defendant has “conscious dominion” over the contraband, that is, “the power

to control the contraband and the intent to exercise that control.” Brown, 48

A.3d at 430 (quoting Parker, 847 A.2d at 750).

      Here, a firearm was located between a mattress and box spring in the

front bedroom, and Officer Galazka saw the mattress being lifted and dropped

back down before he entered that room. A second gun was located in the

closet of that same room. Watson was the only person located in the room

when the police executed the search warrant. Further, as noted above, the

police officers discovered mail, including bank statements, addressed to

Watson at the Tioga Street house. This evidence supported a finding beyond

a reasonable doubt that Watson constructively possessed the weapons, and

there is no requirement that the police conduct a fingerprint analysis to

establish possession.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/25/19




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