J-S58042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

CHAD MULHOLLAND

                            Appellant                    No. 746 MDA 2015


             Appeal from the Judgment of Sentence March 2, 2015
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0002537-2014


BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                          FILED OCTOBER 02, 2015

        Appellant, Chad Mulholland, appeals from the judgment of sentence

entered in the Berks County Court of Common Pleas, following his jury trial

convictions for the offenses of possession of drug paraphernalia and

possession of a small amount of marijuana.1

        In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.


        Appellant raises the following issues for our review:

           WHETHER       THE     EVIDENCE      WAS   INSUFFICIENT     TO
____________________________________________


1
    35 P.S. §§ 780-113(a)(32) and (31)(i), respectively.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S58042-15


         SUPPORT   THE   GUILTY   VERDICTS   SINCE   THE
         COMMONWEALTH    FAILED  TO   PROVE   BEYOND   A
         REASONABLE DOUBT THAT [APPELLANT] WAS IN ACTUAL
         OR CONSTRUCTIVE POSSESSION OF MARIJUANA OR
         DRUG PARAPHERNALIA.

         WHETHER THE GUILTY VERDICTS WERE AGAINST THE
         WEIGHT OF THE EVIDENCE WHERE THE BASIS OF
         [APPELLANT’S] CONVICTION WAS THE TESTIMONY OF A
         WOMAN WHO WAS NOT CREDIBLE, GIVEN THAT THE JURY
         HAD FOUND [APPELLANT] NOT GUILTY OF OTHER COUNTS
         BASED ON THE SAME TESTIMONY.

(Appellant’s Brief at 5).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Thomas G.

Parisi, we conclude Appellant’s issues merit no relief. The trial court opinion

comprehensively     discusses   and   properly   disposes   of   the   questions

presented. (See Trial Court Opinion, filed June 11, 2015, at 2-8) (finding:

(1) Appellant’s girlfriend testified that she argued with Appellant because he

was using drugs and she was pregnant; Appellant’s girlfriend testified that

pipe and marijuana belonged to Appellant; Appellant confirmed he shared

with his girlfriend bedroom where marijuana was found; Appellant’s

girlfriend testified she found pipe in apartment she shared with Appellant;

jury could reasonably infer Appellant had equal access to, and ability and

intent to exercise conscious dominion over, marijuana and paraphernalia

found in residence; under theory of constructive possession, evidence was

sufficient to support Appellant’s convictions; (2) evidence presented at trial

was not contrary to jury verdict; jury was free to weigh testimony of each

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J-S58042-15


witness and determine which evidence it found credible; verdict did not

shock court’s conscience).   Accordingly, we affirm on the basis of the trial

court’s opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2015




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        COMMONWEALTH OF PENNSYLVANIA                                                  IN THE COURT OF COMMON PLEAS
                                                                                      BERKS COUNTY, PA
                                      v.                                              CRIMINAL DIVISION
l(l                                                                                   NO. CP-06-CR-2537-2014
T'"
(~'I)   CHAD MULHOLLAND,
~J
\                  Defendant                                                          JUDGE THOMAS G. PARISI
L~')
T'"
\,
(o      Christopher M. Price, Esquire, Appeal Attorney for the Defendant

        Alisa R. Hobart, Esquire, Appeal Attorney for the Commonwealth

        MEMORANDUM OPINION, Thomas G. Parisi                                     -rl;-f                     June 10, 2015

               On June 12, 2014, the Defendant was charged by Criminal Information with Simple

        Assault, Recklessly Endangering Another Person, Possession of a Small Amount of Marijuana,

        Possession of Drug Paraphernalia, and the summary charge of Harassment. The charge of

        Recklessly Endanginer Another Person was dismissed on September 19, 2014. On March 2,

        2015, trial was held on the four remaining counts of the information.

               On March 2, 2015, the jury acquitted Defendant of Simple Assault and convicted him of

        Possession of Drug Paraphernalia. This Court convicted the Defendant of Possession of a Small

        Amount of Marijuana and acquitted him of harassment.

               On March 2, 2015, Defendant was sentenced to six (6) months probation for Possession

        of Drug Paraphernalia and fined $200 in connection with the conviction of Possession of a Small

        Amount of Marijuana.

               On March 11, 2015, Defendant filed a Post-Sentence Motion seeking a new trial of the

        charges of Possession of Drug Paraphernalia and Possession of a Small Amount of Marijuana.

        On April 16, 2015, this Court denied Defendant's Post-Sentence motion .
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       On May 1, 2015, the Defendant filed a Notice of Appeal with the Pennsylvania Superior

Court and raised the following issues in his Concise Statement of Matters Complained on Appeal

pursuant to 1925(b):

       1.        The trial court erred in finding Defendant guilty of Possession of Drug
                 Paraphernalia, 35 P.S. Sec. 780-l 13(a)(32), and Possession of a Small Amount
                 of Marijuana, 35 P.S. Sec. 780-113(a)(31)(i), where the evidence presented at
                 trial was insufficient to prove beyond a reasonable doubt that Defendant had
                 actual or constructive possession of the marijuana or drug paraphernalia.

       2.        The trial court erred in denying the Defendant's Motion for a New Trial since
                 the verdict of guilty against Defendant for Possession of Drug Paraphernalia,
                 35 P.S. Sec. 780-113(a)(32), and Possession of a Small Amount of Marijuana,
                 35 P.S. Sec. 780-l 13(a)(3 l)(i) is contrary to the weight of evidence presented
                 at trial.

Concise Statement of Matters Complained on Appeal, 5/15/15.


                                                                       DISCUSSION

       The Defendant's first claim on appeal is that there is insufficient evidence in the record to

sustain his conviction for Possession of Drug Paraphernalia, 35 P.S. Sec. 780-113(a)(32), and

Possession of a Small Amount of Marijuana, 35 P.S. Sec. 780-113(a)(3l)(i). The standard of

review of a sufficiency of the evidence challenge is as follows:

       In reviewing a challenge to the sufficiency of the evidence, we must determine
       whether, viewing all the evidence admitted at trial, together with all reasonable
       inferences therefrom, in the light most favorable to the Commonwealth, the trier
       of fact could have found that each element of the offense charged was supported
       by evidence and inferences sufficient in law to prove guilt beyond a reasonable
       doubt.

Commonwealth v. Jones, 636 A.2d 1184, 1189 (Pa. Super. 1994).

       When drugs and/or paraphernalia are not found on a defendant's person, the

Commonwealth must: esta:blish··cons:ttu.ctivepossession. See Commonwealth v. Bricker,
                              I   I   t-,, ,...   j°)
                                                        1
                                                            '",   'i
882 A.2d 1008,z~~~lf (Pl'.l. SuperJ12'008). Constructive possession requires proof of the



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 q"'
 ~1;1   ability to exercise conscious dominion over the substance, the power to control it, and the

        intent to exercise such control. Id. All of the facts and circumstances must be examined

        when determining constructive possession, as the Commonwealth may establish

        constructive possession wholly by circumstantial evidence. Id. at 1015. To establish
\
'-''    constructive possession when more than one person has equal access to the drugs, the

        Commonwealth must demonstrate either the defendant's participation in the drug related

        activity or evidence connecting the defendant to the specific room or areas where the

        drugs were kept. Id., at 1016. Two actors may have joint control and equal access and

        thus both may constructively possess the contraband. Commonwealth v. Jones, 874 A.2d

        108 (Pa. Super. 2005); Haskins, 677 A.2d at 328.

               In this matter, Officer Ryan Smith testified at trial that on May 4, 2014, he and Officer

        Jake Stefani reported to 540 Walnut Street for a "security check." Notes of Testimony

        [hereinafter "N.T."], 3/2/15, at 11-12. Once Officer Smith entered the building he was able to

        determine an active domestic involving Defendant and a female, later identified as Rogmarie

        Sanchez-Figueroa. N.T., 3/2/15, at 13. Officer Smith encountered Defendant who told Officer

        Smith that he was having an argument with his girlfriend, Sanchez-Figueroa. Officer Stefani

        stayed with Defendant while Officer Smith checked on Sanchez-Figueroa. N.T., 3/2/15, at 14.

        Officer Smith encountered Sanchez-Figueroa on the landing of the fourth floor stairs. Id

        Officer Smith testified that he asked her what was going on and she stated she was having an

        argument with her boyfriend, Defendant. Id Officer Smith stated that Sanchez-Figueroa then

        handed him a blue glass smoking pipe commonly used for marijuana. Id. Officer Smith went

        back down the stairs and turned the glass pipe over to Officer Stefani. N.T., 3/2/15 at 16.




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        Officer Stefani switched positions with Officer Smith and went upstairs to speak with

Sanchez-Figueroa. N.T., 3/2/15, at 21. Officer Stefani testified that he asked Sanchez-Figueroa if

there was any other marijuana in the residence. N.T., 3/2/15, at 21. Sanchez-Figueroa took

Officer Stefani back to the bedroom and proceeded to sort through different drawers in the

bedroom dresser. N.T., 3/2/15, at 21. Officer Stefani testified that Sanchez-Figueroa eventually

pulled out a "little nick bag of marijuana." N.T., 3/2/15, at 21. Officer Stefani confirmed the

following:

        COMMONWEALTH:                At some point she gave you a bag you said?

        OFFICER STEFANI:             Yes, sir.

        COMMONWEALTH:                You also said something about multiple drawers?

        OFFICER STEFANI:             Yeah, she was - it wasn't like she went right to the one
                                     drawer, opened the drawer, and knew exactly where it was.
                                     She went through several different drawers before she
                                     found it.

N.T., 3/2/15, at 22.

       At trial, Sanchez-Figueroa   testified to the following concerning her argument with

Defendant on May 4, 2014:

        COMMONWEALTH:                And why is it that you were arguing with Chad?

        SANCHEZ-FIGUEROA:            Because I was pregnant and he was using drugs.

        COMMONWEAL TH:               Why would that be something           that would cause an
                                     argument?

        SANCHEZ-FIGUEROA:            Well, the reason being that I'm pregnant and I don't want
                                     that around me.

N.T., 3/2/15, at 29-30.

Sanchez-Figueroa continued to testify concerning Defendant's drug use:

        COMMONWEALTH:                Is that the pipe that you gave to the police officers?


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SANCHEZ-FIGUEROA:   Yes.

COMMONWEALTH:       Now, where did you get that pipe from before you gave it
                    to the police officers?

SANCHEZ-FIGUEROA:   I found it in the apartment, and that's why I ask him about
                    it. And he was constantly using it, and I told him I did not
                    want him there. Then he tried to turn it around and put what
                    the drug that was inside the pipe in my hand and then
                    laughing he said that me and my child were going to jail.


COMMONWEALTH:       Now I want to be very clear with you. Did you ever use that
                    pipe?

SANCHEZ-FIGUEROA:   No.

COMMONWEALTH:       How do you know who owns the pipe?

SANCHEZ-FIGUEROA:   Because he used it.

COMMONWEALTH:       And did you see that?

SANCHEZ-FIGUEROA:   I saw him, yes.

COMMONWEALTH:       Now, do you remember when police officers came up into
                    the apartment with you?

SANCHEZ-FIGUEROA:   Yes.

COMOWNEALTH:        And did those police officers ask you about any marijuana
                    in the apartment?

SANCHEZ-FIGUEROA:   Yes.

COMMONWEALTH:       And did you show any officers where there was - if there
                    was any marijuana in the apartment?

SANCHEZ-FIGUEROA:   In the middle of the search, yes, I allowed them to search
                    and because I didn't know where it was so we found it .

. COMMONWEALTH:     Now, where was it that you found it in the apartment, the
                    marijuana I mean?

SANCHEZ-FIGUEROA:   I don't know how to say the word in Spanish. On a dresser
                    when you put - where you put the clothing.

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       COMMONWEALTH:                  Now, was that your dresser or was it Chad's dresser?

       SANCHEZ-FIGUEROA:               There was - there were some of my clothings there, yes. It
                                       was mine. He put it in my clothing, but it is not mine.
       COMMONWEALTH:                   And were you able to find it right away?

       SANCHEZ-FIGUEROA:               My bedroom doesn't have many things, yes.

       COMMONWEAL TH:                  But you had to look through the dresser; is that correct?

       SANCHEZ-FIGUEROA:               Yes. Yes.

N.T., 3/2/15, at 35-37.

Sanchez-Figueroa testified that the residence had two bedrooms. N.T., 3/2/15, at 38. Sanchez-

Figueroa confirmed that she and Defendant stayed in the bedroom where she showed the police

officers the marijuana. N.T., 3/2/15, at 39.

       Defendant testified at trial and stated that neither the pipe nor the marijuana was his.

N.T., 3/2/15, at 65-66. Defendant confirmed that he did sleep in the same bedroom as Sanchez-

Figueroa, but that the dresser where the marijuana was found contained nothing belonging to

Defendant. Id

       A review of the record reflects the Commonwealth presented sufficient evidence that the

Defendant was in possession of the marijuana and paraphernalia found inside 540 Walnut Street.

Based on the facts presented, the trier of fact could have properly inferred that Appellant had the

ability to exercise conscious dominion over the marijuana and paraphernalia found inside the

residence.   Although Defendant was not in actual possession of the marijuana and pipe at the

time of discovery, the Commonwealth properly established constructive possession through

circumstantial evidence. Based on witness and officer testimony, the Commonwealth presented

evidence that Defendant had equal access to the drugs and paraphernalia. Furthermore, the

Commonwealth demonstrated evidence connecting the Defendant to the specific room and area ·


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       where the marijuana and pipe were discovered. The Commonwealth presented Appellant's
"""    intent to exercise control over the marijuana and pipe by showing beyond Appellant's mere

       presence inside the residence, but also the fact that the marijuana, was found inside a bedroom

       dresser sitting in Defendant's bedroom. The fact that another person may also have control of

       and access to drugs, however, does not eliminate the Defendant's constructive possession. See

       Commonwealth v. Haskins, 677 A.2d 328 (Pa. Super. 1996).             Therefore, the facts of record

       sufficiently supported each element of the offenses charged and the inferences drawn by the jury

       were sufficient in law to prove guilt beyond a reasonable doubt.

              The Defendant's final claim on appeal is that the verdict of guilty against Defendant for

       Possession of Drug Paraphernalia, 35 P.S. Sec. 780-113(a)(32), and Possession of a Small

       Amount of Marijuana, 35 P.S. Sec. 780-l 13(a)(3l)(i) is contrary to the weight of evidence

       presented at trial. An allegation that the verdict was against the weight of the evidence will be

       reviewed on a basis of an abuse of discretion standard. Commonwealth v. Sullivan, 820 A.2d

       795, 805-06 (Pa. Super. 2003). In determining whether the verdict is against the weight of the

       evidence, the role of the trial court is to determine whether "notwithstanding all the facts, certain

       facts are so clearly of greater weight to ignore them or to give them equal weight with all the

       facts is to deny justice." Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000).

       Thus, a new trial should be awarded only when the jury's verdict is so contrary to the evidence

       as to shock one's sense of justice and the award of a new trial is imperative so that right may be

       given another opportunity to prevail." Sullivan, 820 A.2d at. at 806.

              After reviewing the record, the verdict of the jury does not come as a shock to this Court.

       The evidence presented at trial was not contrary to the verdicts of the jury. The jury has the right.

       to weigh the testimony of each witness and determine which evidence it finds credible.



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.
W!      Commonwealth v. McCalman, 795 A.2d 412, 415 (Pa. Super. 2002). Therefore, the Defendant
e\'"'   was not deprived of his rights.

                  For the foregoing reasons, this Court respectfully requests that the Defendant's appeal be

        denied.




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