J-S01014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                :       IN THE SUPERIOR COURT OF
                                             :             PENNSYLVANIA
              v.                             :
                                             :
KHALIL J. MADISON,                           :
                                             :
                    Appellant                :            No. 3264 EDA 2014

            Appeal from the Judgment of Sentence October 10, 2014
             in the Court of Common Pleas of Philadelphia County,
                 Criminal Division, No. CP-51-CR-0007307-2012

BEFORE: GANTMAN, P.J., MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED JANUARY 28, 2016

        Khalil J. Madison (“Madison”) appeals from the judgment of sentence

imposed following his convictions of possession of a controlled substance,

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

possession of drug paraphernalia.1 We affirm.

        The trial court set forth the underlying relevant facts as follows:

               At trial, Philadelphia Police Officers Gary Francis
        [(“Francis”)] and Bradford Mitchell [(“Mitchell”)] testified credibly
        that on April 17, 2012, and again on April 24, 2012, they
        observed [Madison] involved in illegal drug transactions with
        their confidential informant. On each occasion, [] Francis and
        Mitchell met with the confidential informant, [and] searched him
        for drugs, money and contraband. Both times the search was
        negative. The informant was given prerecorded buy money and
        proceeded to 5626 Bloyd Street with Mitchell, while [] Francis
        set up surveillance. Before each transaction, [Madison] would
        leave 5626 Bloyd Street and return to that residence after each
        transaction.    When [Madison] left the property, [] Francis
        radioed [] Mitchell with a description of [Madison] and his
        direction of travel.

1
    35 P.S. § 780-113(a)(16), (30), (32).
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             Specifically[,] [] Mitchell testified that on April 17, 2012,
      he observed [Madison] and the informant meet on the 5600 []
      block of Bloyd Street.        [] Mitchell watched the informant
      approach and hand money to [Madison], who, in return[,]
      passed objects to the informant. [] Mitchell testified that he
      observed the informant the entire time, and met up with him
      after the exchange, at which time the informant turned over four
      clear packets, each containing crack cocaine. The informant was
      again searched for any drugs or money, which proved negative.

            On April 24, 2012, Officers Francis and Mitchell, along with
      the same confidential informant[,] followed the identical
      procedure in again setting up surveillance of [Madison]. On that
      date, two green tinted packets of crack cocaine were recovered
      from the transaction between [Madison] and the informant.

            On April 25, 2012, [] Francis and Mitchell returned to 5626
      Bloyd Street to execute a search warrant for that location, at
      which time [Madison] was arrested in the second floor front
      bedroom. A key[,] which fit the front door of 5626 Bloyd
      Street[,] was recovered from [Madison’s] person. In the same
      bedroom[,] $394 was recovered from the floor. Lying on top of
      the bed were five clear and two green tinted packets of crack
      cocaine, along with a TD bank card in [Madion’s] name. A
      loaded .357 revolver was found under the mattress in that room.
      Inside the pocket of a suit found in the closet was a clear packet
      with green and red markings on it[,] and inside that clear packet
      was a chunk of approximately 1.7 grams of alleged crack
      cocaine.     There was a knotted clear bag, which had
      approximately 5.3 grams of crack cocaine. Thousands of new
      and unused packaging paraphernalia, some the colors consistent
      with the packaging of the crack cocaine that [the informant] had
      purchased from [Madison], were found in the top of a dresser
      located in that same bedroom.

Trial Court Opinion, 2/26/15, at 2 (internal citations omitted).

      After a bench trial, the trial court found Madison guilty of the above-

mentioned crimes based upon the drugs and paraphernalia found at 5626

Bloyd Street.   The trial court sentenced Madison to two to four years in




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prison, followed by three years of probation. Madison filed a timely Notice of

Appeal and a timely court-ordered Pennsylvania Rule of Appellate Procedure

1925(b) Concise Statement of Matters Complained of on Appeal.

      On appeal, Madison raises the following question for our review: “Was

the evidence [insufficient] to support [Madison’s] conviction[s] of [PWID],

possession    of   a   controlled   substance[,]   and   possession   of   drug

paraphernalia?” Brief for Appellant at 3 (capitalization omitted).

      Madison argues that the evidence was insufficient to support his

convictions. Id. at 8. He asserts that neither Francis nor Mitchell viewed

any transaction between Madison and the informant. Id. at 8, 9. Madison

also argues that although he was in the room with the illegal substances, he

did not have any drugs or money on him, but only had in his possession a

key to the front door of 5626 Bloyd Street. Id. at 8. Madison additionally

contends that the recorded buy money was never recovered.             Id. at 9.

Further, Madison asserts that he did not have the power to control the

substances found in the bedroom, as there was no mail, bills, or lease in his

name retrieved from the house. Id. at 10, 11. Madison claims that the only

evidence tying him to the illegal drugs and paraphernalia was a TD bank

card on the bed where the drugs were retrieved, which could have fallen out

of his pocket. Id.

      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:



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     The standard we apply in reviewing the sufficiency of the
     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 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
     finder 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. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

     The crimes at issue are defined as follows:

     (a) The following acts and the causing thereof within the
     Commonwealth are hereby prohibited:

                                    ***

     (16) Knowingly or intentionally possessing a controlled or
     counterfeit substance by a person not registered under this act,
     or a practitioner not registered or licensed by the appropriate
     State board, unless the substance was obtained directly from, or
     pursuant to, a valid prescription order or order of a practitioner,
     or except as otherwise authorized by this act.

                                    ***

     (30)    Except as authorized by this act, the manufacture,
     delivery, or possession with intent to manufacture or deliver, a



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      controlled substance by a person not registered under this act,
      or a practitioner not registered or licensed by the appropriate
      State board, or knowingly creating, delivering or possessing with
      intent to deliver, a counterfeit controlled substance.

                                    ***

      (32)     The use of, or possession with 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 in violation of this act.

35 P.S. § 780-113(a)(16), (30), (32).

      “In narcotics possession cases, the Commonwealth may meet its

burden by showing actual, constructive, or joint constructive possession of

the contraband.” Commonwealth v. Thompson, 428 A.2d 223, 224 (Pa.

Super. 1981) (citation omitted). “Proof of constructive or joint constructive

possession of dangerous drugs requires evidence that the defendant, or in

joint constructive possession cases, the defendant and others, had both

power to control and the intent to exercise control over the narcotics.” Id.

“An 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.”

Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa. Super. 2013) (citation

omitted).




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         Here, both Francis and Mitchell testified that they had observed

transactions on two separate occasions between Madison and a confidential

informant, from which illegal drugs were recovered. N.T., 8/5/15, at 6-14,

22-25.     Francis testified that Madison was seen entering and exiting 5626

Bloyd Street before and after each transaction.         Id. at 7-11.    Further,

following the execution of a search warrant, Madison was arrested at 5626

Bloyd Street and was found in the same room as $394, packets of crack

cocaine, a revolver, a TD bank card with Madison’s name on it, a knotted

clear bag containing crack cocaine, and thousands of unused packaging

materials with colors consistent with the packaging purchased by the

confidential informant. Id. at 11-13, 25-26. Francis also testified that a key

to the front door of 5626 Bloyd Street was found on Madison’s person. Id.

at 12.

         The trial court, sitting as fact-finder, found the testimony of Francis

and Mitchell to be credible.     See Trial Court Opinion, 2/26/15, at 2; see

also Commonwealth v. Smith, 97 A.3d 782, 788 (Pa. Super. 2014)

(stating that the trial court was free to believe all, part or none of the

evidence presented at trial, and to reject the testimony of those witnesses it

determined were not credible). Here, the evidence, viewed in the light most

favorable to the Commonwealth as verdict winner, demonstrated that

Madison intended to exercise control over the drugs and paraphernalia at

5626 Bloyd Street. See Commonwealth v. Gutierrez, 969 A.2d 584, 590



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(Pa.   Super.    2009)    (determining     that       circumstantial       evidence      of    the

defendant’s receipt of mail to the residence, having the keys to the

residence, and allowing police to enter, was sufficient to establish the

defendant’s     ability   and   intent    to    control    an    illegal    gun    and        drug

paraphernalia); see also Commonwealth v. Estepp, 17 A.3d 939, 944

(Pa. Super. 2011) (stating that where a defendant possessed a key to the

front door of a residence, his personal identification listed the residence as

his address, and he was registered to vote there, it was reasonable to infer

the    defendant    exercised    control       over   illegal   drugs      under   his    bed).

Accordingly, we conclude that there was sufficient evidence for the trial court

to find, beyond a reasonable doubt, that Madison intended to deliver a

controlled substance, and that he possessed a controlled substance and drug

paraphernalia.     See, e.g., Commonwealth v. Ratsamy, 934 A.2d 1233,

1237-38 (Pa. 2007) (noting that factors to consider when determining

whether a defendant intended to deliver a controlled substance include, inter

alia, the manner in which the substance was packaged, the presence of drug

paraphernalia, large sums of cash found in the defendant’s possession, the

defendant’s possession of a gun, the defendant’s interactions during a

narcotics surveillance, and unused packaging).

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/28/2016




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