J-S38043-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                       Appellee          :
                                         :
           v.                            :
                                         :
JAMES REID,                              :
                                         :
                       Appellant         :     No. 977 EDA 2013


      Appeal from the Judgment of Sentence Entered March 27, 2013,
          In the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No. CP-51-CR-0006081-2012.


BEFORE: FORD ELLIOTT, P.J.E., BOWES and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED NOVEMBER 25, 2014

     Appellant, James Reid, appeals from the judgment of sentence entered

March 27, 2013, following his conviction of one misdemeanor count of

possession of a controlled substance. We are constrained to reverse.

     The trial court summarized the facts of the case as follows:

            At the trial for Appellant, Police Officer Stephen Ratka
     testified that on August 4, 2011, at approximately 10:50 p.m.,
     his tour of duty took him to the area of 1700 Ridge Avenue in
     the city and county of Philadelphia. Officer Ratka testified that
     he and his partner Officer Long, who were assigned to the
     Narcotics Strike Force, went to the 7900 block of Ridge Avenue
     to set up surveillance for illegal sales of narcotics. At that time,
     Officer Ratka stated that he observed the Appellant, wearing
     long jeans and a black t-shirt with some sort of white design on
     the front, standing inside of the Chinese take-out store at the
     corner of Ridge, Cambridge, and 18th where they all meet. The
     entire inside of the store was in the officer’s direct view as there
     is a joint plate glass window that covers the whole side of the
     store, approximately two feet off the ground and the rest is all
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      glass maybe 10 to 12 feet wide. The inside of the store was well
      lit by the street lights[1] and the officer was using binoculars with
      nothing blocking his view. When Appellant was inside the store
      he was approached by a black female, later identified as Lorraine
      Harris, who was wearing red shorts and a white top. The
      Appellant and Ms. Harris had a conversation inside the store and
      then at approximately 10:53 p.m. they exited the store. Ms.
      Harris came out first and stood in front of the store while
      Appellant followed behind her. Officer Ratka testified at that
      point he witnessed Appellant drop an object in front of Ms. Harris
      and then walk slowly northbound up 18th Street. Officer Ratka
      testified that he then witnessed Ms. Harris, a few seconds later,
      bend down, pick up the object that Appellant dropped, and then
      also walk northbound up 18th Street while looking at the object
      in her right hand. Officer Ratka testified that he believed he had
      witnessed an illegal narcotics transaction between Appellant and
      Ms. Harris.

            After witnessing that transaction, Officer Ratka radioed a
      description and direction of both Appellant and Ms. Harris to
      backup officers. Officer Taven Washington testified that while
      working as a backup officer to Officer Ratka under narcotics
      surveillance on that same date and time, he received information
      from Officer Ratka.       Acting on that information, Officer
      Washington stopped and investigated Ms. Lorraine Harris at the
      1600 block of Ridge Street. As of result of the investigation,
      Officer Washington testified that he recovered from Ms. Harris’
      coin pocket of her shorts, one clear Ziploc packet containing
      alleged crack cocaine. It was stipulated at trial that Officer
      Taylor, another backup officer, had stopped Appellant on the
      1600 block of Ridge Avenue and recovered $10 from him.

Trial Court Opinion, 10/9/13, at 2–3 (internal citations to record omitted).



1
   There was no testimony that the inside of the store was “well lit by the
street lights.” The only evidence regarding street lights was Officer Ratka’s
testimony that “it was dark out, but there’s street lights directly on the
corner of the Chinese store where I was sitting.” N.T., 2/12/13, at 13
(emphasis added). While the officer never identified where his vehicle was
parked, it was obviously far enough away so that he was not observed while
utilizing binoculars. Id. at 9, 13.

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      Police arrested both Appellant and Ms. Harris. Appellant was charged

with one misdemeanor count of possession of a controlled substance.         On

May 16, 2012, Appellant proceeded to trial in the Philadelphia Municipal

Court, where he was found guilty and sentenced to twelve months of

probation. Appellant then filed a de novo appeal to the Philadelphia Court of

Common Pleas.

      On February 12, 2013,2 Appellant proceeded to a bench trial and was

found guilty of possession of cocaine, a controlled substance. The trial court

sentenced Appellant on March 27, 2013, to three years of probation and

ordered drug treatment. On April 2, 2013, Appellant filed a timely notice of

appeal. Both the trial court and Appellant complied with Pa.R.A.P. 1925(b). 3



2
   The notes of testimony for Appellant’s bench trial on February 12, 2013,
are incorrectly captioned, “Preliminary Hearing Volume I.” The cover page
and the captioned headings on each page also are incorrectly dated
“February 12, 2012.” The correct date is listed on page one as February 12,
2013. We also note with disapproval that Appellant failed to ensure the
completion of the record with the inclusion of the notes of testimony for that
hearing, compelling this Court and our Prothonotary to search for the trial
transcript. “It is the responsibility of an appellant to ensure that the record
certified on appeal is complete in the sense that it contains all of the
materials necessary for the reviewing court to perform its duty.”
Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa. Super. 2013). While we
could have found the issue waived, we have located the missing materials
and will address Appellant’s claim.
3
   Appellant filed a timely Rule 1925(b) statement on April 30, 2013, and
concurrently filed a request to file a supplemental statement. The trial court
granted the request and directed counsel to file a supplemental statement
within twenty-one days of receipt of the notes of testimony. Appellant
timely filed a supplemental statement on September 27, 2013.

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      Appellant raises the following single issue for our review:

             Was not the evidence insufficient to find appellant James
      Reid guilty of possession of a controlled substance because it
      cannot be found beyond a reasonable doubt the packet of
      cocaine recovered from Lorraine Harris was the item dropped
      earlier by appellant Reid, especially in light of all the other
      circumstances equally consistent with innocence?

Appellant’s Brief at 3.

      In reviewing the sufficiency of the evidence, we must determine

whether the evidence admitted at trial and all reasonable inferences drawn

therefrom, viewed in the light most favorable to the Commonwealth as

verdict winner, were sufficient to prove every element of the offense beyond

a reasonable doubt.       Commonwealth v. Diamond, 83 A.3d 119 (Pa.

2013). It is within the province of the fact-finder to determine the weight to

be accorded to each witness’s testimony and to believe all, part, or none of

the evidence. Commonwealth v. James, 46 A.3d 776 (Pa. Super. 2012).

The Commonwealth may sustain its burden of proving every element of the

crime by means of wholly circumstantial evidence.           Commonwealth v.

Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014). “[I]n applying the above

test, the entire record must be evaluated and all evidence actually received

must be considered.” Commonwealth v. Estepp, 17 A.3d 939, 944 (Pa.

Super. 2011).    Moreover, as an appellate court, we may not re-weigh the

evidence   and   substitute   our   judgment   for   that   of   the   fact-finder.

Commonwealth v. Ratsamy, 934 A.2d 1233 (Pa. 2007).


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      Appellant was convicted of possession of a controlled substance

(cocaine)   pursuant   to   35   P.S.   §     780-113(a)(16),   which   prohibits

“[k]nowingly or intentionally possessing a controlled or counterfeit substance

by a person not registered under this act . . . .” Possession of cocaine, a

schedule II drug, is proscribed. 35 P.S. § 780-104 (2)(i)(4).

      Our Supreme Court has said repeatedly that “illegal possession
      of narcotic drugs is a crime which ‘by its very nature is unique to
      the individual. By definition, the possessor is the only person
      who could commit the crime. Guilt by association . . . is
      unacceptable.’” Accordingly, if the Commonwealth is unable to
      prove the defendant’s actual possession of the drugs, it must
      prove constructive possession. To prove constructive possession
      the Commonwealth must prove that the defendant had both the
      power to control the contraband and the intent to exercise that
      control.

Commonwealth v. Luddy, 422 A.2d 601, 605 (Pa. Super. 1980) (internal

citations omitted).

      Thus, possession may be proven by actual or constructive possession,

Commonwealth v. Johnson, 26 A.3d 1078, 1093–1094 (Pa. 2011). Since

there were no drugs found on Appellant’s person, the Commonwealth clearly

“could not show actual possession of the contraband.” Commonwealth v.

Mudrick, 507 A.2d 1212, 1213 (Pa. 1986). We have defined constructive

possession as conscious dominion.           Johnson, 26 A.3d at 1094.       “We

subsequently defined conscious dominion as the power to control the

contraband and the intent to exercise that control.”       Commonwealth v.




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Brown, 48 A.3d 426, 430 (Pa. Super. 2012), appeal denied, 63 A.3d 1243

(Pa. 2013) (internal quotation marks and citation omitted).

      Here, the trial court concluded that the evidence was sufficient,

holding as follows:

      [T]he Court reasonably concluded that Appellant had the ability
      and intent to exercise conscious control and dominion over the
      contraband that was later recovered on Ms. Harris when only
      Appellant had access to the same at the relevant time on the
      evening in question.       And based on the totality of the
      circumstances, the Court found that the object containing the
      contraband found on Ms. Harris was the object that Appellant
      dropped and Ms. Harris immediately picked up outside the
      Chinese store.     Therefore, there was sufficient evidence to
      convict Appellant of possession of a controlled substance.

Trial Court Opinion, 10/9/13, at 6. We disagree.

      Appellant argues that his conviction “is premised on the trial court’s

incorrect belief” that the packet of crack cocaine found in Ms. Harris’s pocket

is the same item Appellant dropped in front of her. Appellant’s Brief at 11.

He maintains that such a conclusion is “[n]othing more than forced and

speculative assumptions about the chain of events . . . .”      Id.   Appellant

suggests that this case:

      is not really one about constructive possession. It is, instead, a
      case of permitting circumstances to connect two events without
      an evidentiary basis to do so, merely because the possibility
      exists that the events are related. . . . The court misapplied a
      constructive possession theory not only because there was little
      evidence supporting any theory of guilt, but more importantly,
      by giving weight to undeveloped facts, especially in light of the
      fact that the Commonwealth chose not to charge [Appellant]




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      with delivery of a controlled substance (and never actually made
      such an argument at trial)(N.T., at 17–20).

Appellant’s Brief at 13.

      The Commonwealth counters that Appellant asks this Court to

“second-guess” the trial court’s evaluation of the evidence and to make

assumptions that are not supported by the testimony. It maintains that the

evidence “clearly supports the conclusion that an illegal narcotics transaction

occurred between Appellant and Ms. Harris.” Commonwealth’s Brief at 5.

      We cannot agree that the Commonwealth proved each element of the

offense beyond a reasonable doubt.          The record does not conclusively

establish that Appellant was in actual or constructive possession of a

controlled substance, based on the totality of the circumstances.

      The record reveals that Officer Ratka, a member of the Narcotics

Strike Force, was conducting surveillance “for illegal sales of narcotics” on

the 79004 block of Ridge Avenue in Philadelphia. N.T., 2/12/13, at 9. There

was no testimony at trial regarding the extent of Officer Ratka’s experience

either as a police officer, in general, or the length of time he has been an

officer for the Philadelphia Police Department or a member of the Narcotics



4
   The parties refer to the location as the 1700 block of Ridge Avenue
without acknowledging the discrepancy with the trial transcript; thus, we are
uncertain if it is merely a typographical error. The parties and the notes of
testimony are in agreement that the crime scene was located where
eighteenth, Cambridge and Ridge Streets “all sort of come together . . . .”
N.T., 2/12/13, at 9.

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Strike Force.       Utilizing ten-by-fifty binoculars, he observed Appellant

standing inside a Chinese food take-out store. Id. at 9, 13. The store had a

“plate glass window that covers almost the whole side of the store,

approximately two feet up off the” ground and ten-to-twelve feet wide. Id.

at 12.

         An African-American female “wearing red shorts and a white top,” who

was later identified as Lorraine Harris, approached Appellant in the store.

N.T., 2/12/13, at 9. After a short conversation, Ms. Harris left the store, and

stood outside in front of the store. Id. at 9–10. Appellant then exited the

store and “dropped an object in front of” Ms. Harris and “started to walk

slowly up 18th Street northbound.”         Id. at 10.     “Ms. Harris bent down,

picked the object up and turned and walked northbound also on 18 th Street

looking at it in her right hand until I lost sight of her . . . .” Id. at 10.

         When Appellant and Ms. Harris were out of sight, the officer radioed a

description of Appellant and Ms. Harris and their location. N.T., 2/12/13, at

11.   Philadelphia Police Officer Taven Washington of the Narcotics Strike

Force received this report and stopped Ms. Harris on the 1600 block of Ridge

Avenue.      Id. at 15.    Officer Washington found one clear Ziploc packet

containing seventy-one milligrams of crack cocaine in the coin pocket of Ms.

Harris’s shorts.    Id. at 15–16.    The parties stipulated that Appellant was

stopped on the 1600 Block of Ridge Avenue by Philadelphia Police Officer




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Wayne Taylor, who recovered ten dollars from Appellant’s person. Id. at 14.

Officer Ratka testified, “I believe it was an illegal narcotics transaction taking

place.” Id. at 11.

      Based on this evidence, it was unreasonable for the trial court to

conclude that Appellant possessed the crack cocaine that was found on

Lorraine Harris.     Moreover, it was not reasonable or prudent for Officer

Ratka to conclude that the item he observed Appellant drop was the same

item found in Ms. Harris’s pocket. Officer Ratka’s failure to testify that the

object dropped was similar or identical to the one he had observed in the

transaction prevents a reasonable inference that it was.

      Commonwealth v. Thompson, 93 A.3d 478, 486 (Pa. Super. 2014),

presents pertinent reasoning to this issue and is also instructive regarding

Appellant’s claim assailing proof of possession herein.5 In that case, police

engaged in surveillance of a 7–Eleven after receiving complaints of

concerned citizens.      During surveillance, police observed the appellant

approach a white SUV that appeared to be waiting for him and, after a brief

conversation, he received cash and began to count it. The appellant then

retrieved a plastic baggy from a hiding place next to a fence located nearby

and tossed it into the white SUV. The officer testified that he had twenty-


5
   While the discussion in Thompson initially related to whether police
therein had probable cause to arrest the appellant, the sufficiency of the
evidence was in question, and the logic is pertinent to the sufficiency of facts
leading to a conclusion that a drug transaction is occurring, herein.

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three years of experience as a police officer including ten years in narcotics

interdiction and had received specialized narcotics training.     He further

testified that he had been involved in seventy-five to 100 drug arrests within

two blocks of the 7–Eleven parking lot, and his observations were consistent

with prior narcotics transactions he observed in that area. Thompson, 93

A.3d at 485.

      In stark contrast, there was no similar testimony in the present case.

Officer Ratka never testified regarding either the length or breadth of his

experience as a police officer, let alone whether he had any specialized

training or experience in narcotics interdiction.   There was not an iota of

testimony relating either to the choice of location of the surveillance or

mention of any concerned citizen complaints in that locale.        There was

absolutely no testimony that the particular area Officer Ratka was surveilling

was a high crime area or that the officer had previous experience in that

area. Indeed, Commonwealth v. Walton, 63 A.3d 253 (Pa. Super. 2013),

a case dismissed as distinguishable in Thompson, is factually similar to the

case sub judice. Distinguishing Walton, we stated in Thompson: “In that

case, the police were not acting on any tip, they could not describe what was

exchanged in the transaction, and the events did not transpire in a high

crime area.” Thompson, 93 A.3d at 485. The same is true here, as well.




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     In Thompson, the appellant argued that the jury could not have

reasonably inferred that a plastic baggie found in a co-defendant’s

possession was the same baggie that the appellant therein tossed into the

co-defendant’s vehicle. In detailing the facts that supported the sufficiency

of the evidence in Thompson, this Court explained:

     The circumstances of this case bear all the hallmarks of a
     narcotics transaction. After receiving an unknown amount of
     currency from [co-actor] Furentino, Appellant got out of the
     vehicle and walked to the fence to retrieve a hidden baggie, and
     then returned to Furentino’s vehicle and gave him the baggie.
     All of these activities were observed following [the] Officer[’s]
     receipt of “numerous complaints of suspected narcotics activity”
     in the area from “non-anonymous sources.”              TCO at 1–2
     (emphasis added). [The] Officer . . . had significant experience
     in narcotics interdiction and testified that his observations were
     consistent with narcotics trafficking. Finally, [the] Appellant was
     found in possession of a large amount of cash immediately
     following the observed transaction, and the recipient of the
     baggie was found in possession of a significant number of
     prescription pills. Given all these coinciding circumstances, there
     was more than sufficient evidence from which the jury could
     reasonably infer that the bag of pills found on [the co-actor] had
     been delivered moments before by [the] Appellant.               This
     inference was not, in any sense, “in contradiction to the physical
     facts, in contravention to human experience or the laws of
     nature.” [Commonwealth v.] Widmer, 744 A.2d [745] at 751
     [Pa. 2000].

Thompson, 93 A.3d at 489–490.

     Here, Officer Ratka testified as follows:

     [Appellant] was standing on the side of the Chinese take-out
     store at the corner of Cambridge, Ridge, and 18th where [they]
     all meet[].




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           Your Honor, he was inside this store. He was approached
      by a black female who was wearing red shorts and a white top.
      They had a conversation inside the store.

            At approximately 10:53 [p.m.], they exited the store. Ms.
      Harris came out. Stood in front of the store. [Appellant]
      followed behind her, dropped an object in front of her and then
      he started to walk slowly up 18th Street northbound.

                                      * * *

            [Appellant] continued to walk northbound on 18th Street
      towards Girard at a slow pace. Ms. Harris bent down, picked the
      object up and turned and walked northbound also on 18 th Street
      looking at it in her right hand until I lost sight of her until they
      went eastbound on Girard Avenue.

N.T., 2/12/13, at 9–10. At that point Officer Ratka radioed the description

and direction of both Ms. Harris and [Appellant] to backup officers      Id. at

11.

      Officer Ratka also testified that it was approximately 10:50 p.m. and

“[i]t was dark out . . . .” N.T., 2/12/13, at 12. On cross-examination, he

admitted that he never observed Ms. Harris give Appellant any money. Id.

at 14. Officer Ratka never described the size or shape of the item Appellant

dropped other than terming it “small objects.” Id. at 13.

      We have a number of observations about this testimony. It was nearly

11:00 at night, it was dark out, and the observing officer was in his vehicle

using binoculars. While he saw Appellant drop an object, the officer could

not describe its size or shape. Ms. Harris picked up the object and stared at

it while holding it in her hand. Then the officer lost sight of both Appellant


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and Ms. Harris. He never observed an exchange of money and never saw

Ms. Harris put the object in her pocket. Appellant was found in possession

of merely $10.00.

      Moreover, Ms. Harris’s action of walking and looking at the object in

her hand does not support a conclusion that the object was drugs.            One

might suspect that the knowing possession of a packet of cocaine would spur

the possessor to secrete the item away from observation. Moreover, such

action is equally consistent with the conclusion that the possessor was

unsure what she held in her hand and was attempting to identify it. More

significantly, the fact that Officer Ratka lost sight of Ms. Harris is problematic

to showing a chain of command of the item.

      The lack of other indicia of a drug deal in the instant case undermines

the verdict. There was no expert testimony describing Appellant’s actions as

resembling known drug behavior.        Ms. Harris was not observed handing

Appellant money despite Officer Ratka’s use of binoculars with no described

visual obstructions.   Appellant and Ms. Harris did not attempt to conceal

themselves in any way. No other drugs were recovered, either from a stash

spot or on Appellant’s person. The officers never saw Appellant take any

money nor did they observe him remove the item he allegedly dropped. Ms.

Harris was not seen placing any item in her pocket. Both Appellant and Ms.

Harris were out of the officers’ sight for an unidentified period.        Finally,




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police recovered only $10 on Appellant’s person.              Cf., Commonwealth v.

Jones, 874 A.2d 108 (Pa. Super. 2005) (the defendant possessed $481 in

small bills and a large amount of cocaine was found in a rental car in which

the defendant was riding); Commonwealth v. Thompson, 985 A.2d 928,

930 (Pa. 2009) (police recovered one packet of heroin from the alleged

buyer    and    sixteen   similar   packets   of     heroin   from   the   defendant);

Commonwealth v. Smith, 979 A.2d 913 (Pa. Super. 2009) (officers, who

observed the defendant remove items from a sock in exchange for money,

recovered nineteen packets of crack cocaine from the defendant’s sock,

marijuana in his pocket, and $303).

        A finding that Appellant exercised dominion and control over the drugs

in this case would be a conviction based on pure speculation and conjecture.

“It is well settled that facts giving rise to mere ‘association,’ ‘suspicion’ or

‘conjecture,’   will   not make     out a     case    of constructive      possession.”

Commonwealth v. Valette, 613 A.2d 548, 551 (Pa. 1992). Accordingly,

because we find the evidence insufficient to establish Appellant’s possession

of the cocaine, we must reverse the judgment of sentence and discharge

Appellant.

        Judgment of sentence reversed. Appellant is discharged.

        President Judge Emeritus Ford Elliott has joined this Memorandum.

        Judge Bowes files a Dissenting Memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/25/2014




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