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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

BRIAN LOCH

                        Appellant                  No. 177 EDA 2015


          Appeal from the Judgment of Sentence October 2, 2014
           In the Court of Common Pleas of Philadelphia County
         Criminal Division at No(s): No. CP-51-CR-00013812-2012

BEFORE: PANELLA, J., MUNDY J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                       FILED OCTOBER 08, 2015

     Appellant, Brian Loch, appeals from the judgement of sentence

entered October 2, 2014, by the Honorable Judge Thomas-Street, Court of

Common Pleas of Philadelphia County. We affirm.

     In the early morning of July 21, 2012, Ted Bowne reported a theft at

The Blockley, a bar and concert venue. Bowne reported stolen his backpack

containing his iPhone, MacBook Pro laptop computer, wallet containing his

driver’s license and credit cards, two computer hard drives, headphones, and

other computer accessories.        When Bowne first noticed the theft, he

immediately spoke to the general manager and unsuccessfully attempted to

watch the bar’s surveillance video. Bowne then began tracking his iPhone

using the Find iPhone application, a GPS locator system, on the general




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manager’s computer. Bowne tracked the iPhone to the 500 block of Fernon

Street.

      Bowne drove to the 500 block of Fernon Street and observed several

males in front of 520 Fernon Street who had been at The Blockley during the

time of the theft.    Bowne then saw a man he recognized leaving that

residence. Bowne asked if he could enter the premises, and upon entering,

explained the situation to several of the occupants. One of the occupants

attempted to call the cell phone, at which time the phone turned off and

stopped tracking. Bowne searched the residence, but did not find any of the

stolen items. Three days later a man called Bowne, stating he had found the

his iPhone‘s outer case in the toilet tank at 520 Fernon Street.

      The general manager provided a statement to the police concerning

the theft on August 2, 2012.    Bowne provided a statement on August 13,

2012, because he resides out of state and was not immediately available. A

search warrant for 520 Fernon Street was issued on August 25, 2012.

      Detective Campbell and other detectives executed the search warrant.

As Detective Campbell knocked and announced the search warrant, he

observed through a first floor window a man, later identified as Loch,

shoving a clear plastic bag into a book bag. After entering the premises,

Detective Campbell searched the backpack and found,

      Defendant’s wallet, one (1) clear plastic bag containing
      mushrooms, and one (1) clear container with a black lid
      containing five (5) Ziploc bags holding mushroom-type objects
      from the book bag. … On the floor, next to the book bag, was

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       an iPhone, digital scale, and blue Nicorette container holding one
       (1) clear Ziploc packet with brown chunks, alleged Hash and two
       (2) capsules with alleged Hash inside. [1]

Trial Court Opinion, 2/24/15, at 2.       Detective Campbell also discovered a

digital scale in the living room desk drawer. Detective Daugherty “recovered

[the   Defendant’s]    identification   card,    narcotics   [mushrooms],      digital

computer hard drive, and several pieces of U.S. mail in the Defendant’s

name from the second floor middle bedroom.” Id., at 3 (citations omitted).

The detectives also recovered $249 from Loch upon a search incident to

arrest.

       After the denial of a motion to suppress evidence, the matter

proceeded to a bench trial where the court found Loch guilty of possession of

a controlled substance and possession with intent to deliver a controlled

substance.     The trial court sentenced him to three to 12 months’

imprisonment, with immediate parole, followed by 36 months’ reporting

probation    under    the   Mental   Health     Unit   and   completion   of   anger

management classes. This timely appeal followed.

       Loch first argues the information contained in the affidavit of probable

cause was stale and that therefore the search warrant was not supported by

probable cause.      The standard of review where an appellant appeals the

denial of a suppression motion as follows.


1
  Upon testing, the brown chunks were found to contain brown chunks of
Hash and powder methylenedioxyametamine (MDMA) and the alleged
capsules of Hash was determined to be MDMA.
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         [W]e are limited to determining whether the factual findings are
         supported by the record and whether the legal conclusions
         drawn from those facts are correct. We may consider the
         evidence of the witnesses offered by the prosecution, as verdict
         winner, and only so much of the defense evidence that remains
         uncontradicted when read in the context of the record as a
         whole. We are bound by facts supported by the record and may
         reverse only if the legal conclusions reached by the court below
         were erroneous.

Commonwealth v. Scott, 878 A.2d 874, 877 (Pa. Super. 2005) (citations

omitted).

         A search warrant must be supported by probable cause.              See

Commonwealth v. Caple, ___ A.3d ___, ___, 2015 WL 4497915 at *7 (Pa.

Super., filed July 24, 2015). Probable cause does not exist if the evidence is

stale at the time a search warrant is issued. See Commonwealth v. Nycz,

418 A.2d 418, 420 (Pa. Super. 1980).          “There is no hard and fast rule

regarding what constitutes stale information; such determinations must be

made on a case-by-case basis.”        Commonwealth v. Vergotz, 616 A.2d

1379, 1382 (Pa. Super. 1992) (citation omitted). “Mere passage of time is

itself    not   sufficient   to   determine   the   question   of   staleness.”

Commonwealth v. Klimkowicz, 479 A.2d 1086, 1089 (Pa. Super. 1984)

(citations omitted). Factors to consider in determining whether a search

warrant is stale include, “(1) The nature and quality of items to be seized;

(2) time lapse; and (3) ease with which items may be disposed.”

Commonwealth v. Yocum, 418 A.2d 534, 536 (Pa. Super. 1980). Further,

the amount of time considered acceptable is dependent upon consideration


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of all factors; “[t]he determination of probable cause is not merely an

exercise in counting the days or even months between the facts relied on

and the issuance of the warrant. Rather, we must also examine the nature

of the crime and the type of evidence.” Commonwealth v. Janda, 14 A.3d

147, 158-159 (Pa. Super. 2011) (quoting United States v. Harvey, 2 F.3d

1318, 1322 (3d Cir. 1993)).

     In considering staleness, courts have focused on whether the items

sought in the warrant are often disposed of after coming into someone’s

possession. For instance, in Janda, a search warrant was issued to search

for shoes that matched shoe prints found at the scene of a seven-month-old

burglary.   See 14 A.3d at 158.   The panel held “that shoes … are not an

item commonly disposed of soon after they come into their owner’s

possession. … [W]e cannot conclude that the issuing authority was

unreasonable in authorizing a search of Defendant’s residence for footwear

seven months after the Berks County Burglary.” Id., at 159.

     Drugs held for sale have been considered readily disposable because

the desire to sell them for profit provides a compelling reason for disposing

of the drugs quickly. See Commonwealth v. Novak, 335 A.2d 773, 776

(Pa. Super. 1975).

     Here, the stolen iPhone, MacBook Pro laptop computer, two computer

hard drives, headphones, and other computer accessories are expensive

items.   And they are items that are normally kept and used for years.


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Further, these electronic items are generally expensive and can easily be

converted to one’s use.      This provides a strong incentive to keep the

electronics for oneself or hold the electronics for an extended time before

selling them.

      Loch contends that the iPhone was probably destroyed based on the

fact that the iPhone’s case was found in 520 Fernon Street’s toilet. That is

mere conjecture. There are obviously many reasons why the case would be

removed and discarded, but not the iPhone. This argument also does not

account for the rest of the stolen property, which are considerably more

valuable and less disposable than the iPhone.

      He also points to the fact that the residents were alerted to the theft

and location of the iPhone, but that also does not clearly prove that the thief

would have quickly disposed of all the stolen property. The thief was clearly

made aware that Bowne knew the iPhone had been taken to 520 Fernon

Street because the iPhone shut off as soon as Bowne explained the situation.

However, Bowne’s ability to continue tracking the iPhone ended when the

phone’s tracker was shut off.

      We find that the suppression court committed no error in determining

that the lapse of thirty days between Bowne’s report to police and the search

of the residence was not too remote to support a finding of probable cause

for a search of the residence. In other words, the information contained in




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the affidavit of probable cause was not stale. Thus, the search warrant was

not stale and the denial of the Motion to Suppress is affirmed.

      Loch’s second issue on appeal is that no intent was proven to find him

guilty of possession with intent to deliver a Controlled Substance, is denied.

This is a challenge to the sufficiency of the evidence.

      The standard we apply in reviewing the sufficiency of evidence is
      whether, viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact[-]finder to find every element of the crime
      beyond a reasonable doubt. In applying the above test, we may
      not weigh the evidence and substitute our judgment for that of
      the fact-finder.     In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.          Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      trier of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Helsel, 53 A.3d 906, 917, 917-918 (Pa. Super. 2012)

(citation omitted).

A defendant is guilty of possession with intent to deliver a controlled

substance if the Commonwealth proves beyond a reasonable doubt that the

Defendant possessed the controlled substance and intended to deliver or sell

it. See 35 P.S. § 780-113(a)(30); Commonwealth v. Kirkland, 831 A.2d

607, 611 (Pa.Super. 2003).      To sustain a conviction for possession with

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intent to deliver a controlled substance “all of the facts and circumstances

surrounding the possession are relevant and the elements of the crime may

be established by circumstantial evidence.” Commonwealth v. Little, 879

A.2d 293, 297 (Pa. Super. 2005). “In certain circumstances, the possession

of large quantities of a controlled substance may justifiably suggest an

inference of an intent to deliver.”   Commonwealth v. Gill, 490 Pa. 1, 6,

415 A.2d 2, 4 (1980).

      The quantity alone in this case is dispositive as to the intent to deliver.

Over $7,000.00 worth of different types of narcotics were found at 520

Fernon Street.   Furthermore, the Commonwealths’ expert witness, Officer

Cleaver, provided testimony explaining that some of the narcotics were

stored in bulk and some were packaged and weighed exactly as those sold

on the street, and that mushrooms and MDMA are rarely bought in bulk

unless the buyer is a dealer.

      We note that in the present case the police did not recover the

narcotics from Loch’s person, thus the Commonwealth must establish

constructive possession. “Constructive possession is a legal fiction, which is

invoked when actual possession at the time of arrest cannot be shown, but

there is a strong inference of possession from the facts surrounding the

case.”   Commonwealth v. Battle, 883 A.2d 641, 644 (Pa. Super. 2005)

(citation omitted). Constructive possession has been defined as “conscious

dominion,” which has subsequently been defined as “the power to control


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

Walker,    874    A.2d   667,   678   (Pa.   Super.   2005)   (citation   omitted).

“[C]onstructive possession may be established by the totality of the

circumstances.” Id. (citation omitted).

      A detective observed Loch stuffing a bag into a backpack. When the

detectives searched the bag it contained narcotics.       Loch testified that he

“panicked” when the police arrived and that he “tried to just … basically take

everything that was illegal and move it into my bag as quickly as possible.”

N.T., Waiver Trial, 4/1/14, at 45.     The detectives also found narcotics all

over the residence, including in a bedroom containing his work identification

card and mail. This evidence shows that Loch had conscious dominion over

the contraband.

      The Commonwealth presented sufficient evidence to sustain the

conviction for possession with intent to deliver.

      Judgement of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/8/2015




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