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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: A.D.H., A            :   IN THE SUPERIOR COURT OF
 MINOR                                    :        PENNSYLVANIA
                                          :
                                          :
 APPEAL OF: A.D.H., A MINOR               :
                                          :
                                          :
                                          :
                                          :   No. 1448 WDA 2018

               Appeal from the Order Dated August 30, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-JV-0000563-2018


BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                  FILED SEPTEMBER 12, 2019

      A.H. appeals from the dispositional order entered following his

adjudication of delinquency for possession of a small amount of marijuana. 35

P.S. § 780-113(a)(31). He argues the Commonwealth failed to establish he

constructively possessed marijuana. We affirm.

      A.H. was charged with possession of a small amount of marijuana. At

an adjudicatory hearing, Officer Roger Krawchyk testified that in March 2018,

he received a call from dispatch that juveniles were smoking marijuana in a

vehicle parked at a specific intersection. N.T., 8/30/18, at 5. Officer Krawchyk

and his partner went to the location and found the vehicle. Id. The officers

walked to the car, and both the driver and passenger opened their doors. Id.

Officer Krawchyk could smell marijuana coming from the vehicle. Id.
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      When asked, the driver told the officers he did not know who owned the

vehicle. Id. Officer Krawchyk’s partner ran the vehicle’s license plate and

learned the vehicle was stolen. Id. at 5-6. The officers then called for backup.

      When additional officers arrived, the officers asked the vehicle

occupants to exit. Id. at 6. When the driver got out, a blunt fell from his lap

onto the driver-side floorboard. Id. at 7, 14. The officers searched the car and

found another blunt on the passenger-side floorboard. Id. at 7-8. A.H. had

been sitting in the front passenger seat. Id. at 8-9. The officers also found a

blue plastic container that looked “like a pop can” in the front passenger-side

door. Id. at 8. The container had two sealed baggies of marijuana, and one

opened bag of marijuana. Id. The container was opaque, but in plain view and

only accessible from the passenger seat. Id. at 9. Officer Krawchyk testified

that “anybody in the backseat would have had to reach over [A.H.] to get to

the door.” Id. The marijuana found in the car, including the blunts, had not

been smoked. Id. at 8.

      A.H. gave his correct name and date of birth to Officer Krawchyk, and

informed the officers he had absconded. Id. at 12.

      The trial court adjudicated A.H. delinquent of possession of a small

amount of marijuana. Id. at 21. A.H. filed a Post-Dispositional Motion, which

the trial court denied. A.H. filed a timely Notice of Appeal.

      A.H. raises the following issue on appeal:

         Whether the evidence was insufficient to prove that A.H.
         constructively  possessed    marijuana      where    the
         Commonwealth established only that A.H. was sitting in a

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         car with multiple other people,        and   marijuana    was
         eventually discovered in the car?

A.H.’s Br. at 5.

      We review a challenge to the sufficiency of the evidence de novo.

Commonwealth v. Chambers, 188 A.3d 400, 409 (Pa. 2018). “To determine

if the evidence was sufficient to support a guilty verdict, we view the evidence

in the light most favorable to the Commonwealth, as verdict-winner, and draw

all reasonable inferences in the Commonwealth’s favor.” Commonwealth v.

Hall, 199 A.3d 954, 960 (Pa.Super. 2018). “We then ask whether the evidence

was sufficient to permit a jury to find each and every element of the crimes

charged beyond a reasonable doubt.” Id. (citing Commonwealth v.

Hoffman, 198 A.3d 1112, 1118 (Pa.Super. 2018)). The Commonwealth may

sustain its burden with wholly circumstantial evidence, and we defer to the

finder of fact in matters of credibility. Id. (citing Commonwealth v. Hewlett,

189 A.3d 1004, 1008 (Pa.Super. 2018)).

      To sustain an adjudication for possession of a small amount of

marijuana, the Commonwealth must establish the defendant knowingly or

intentionally possessed marijuana. See 35 P.S. § 780–113(a)(31).

      Because A.H. was not in physical possession of the marijuana, the

Commonwealth was required to establish he had constructive possession.

Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.Super. 2013).

“‘Constructive possession’ is ‘the ability to exercise a conscious dominion over’

the contraband.” Hall, 199 A.3d at 961 (quoting Commonwealth v. Vargas,

108 A.3d 858, 868 (Pa.Super. 2014)). “Constructive possession requires proof

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that the defendant had knowledge of the existence and location of the item.”

Id. The Commonwealth may prove knowledge circumstantially, that is, “it

may prove that the defendant had knowledge of the existence and location of

the items at issue ‘from examination of the totality of the circumstances

surrounding the case,’ such as whether the contraband was located in an area

‘usually accessible only to the defendant.’” Id. (quoting Commonwealth v.

Thompson, 428 A.2d 223, 224 (Pa.Super. 1981)).

       A.H. argues that he was merely present at the scene, and mere presence

does   not      establish   constructive   possession.   He   contends   that   the

Commonwealth only established that he was in a car and seated near the

marijuana, and it did not prove A.H. knew the drugs were near him. He argues

he was cooperative with the police officers, and made no movements or

statements suggestive of knowledge. He further argues that there was no

evidence he knew of the container or its contents or knew that the blunt was

on the floor.

       A.H. relies on Commonwealth v. Chenet, 373 A.2d 1107 (Pa. 1977).

In Chenet, police obtained a search warrant to search Chenet’s trailer. No

one was home when the police arrived. Id. at 1108. After Chenet’s roommate

and his girlfriend arrived, the police searched the trailer, and found “a few

marijuana seeds on the kitchen floor, marijuana cigarette butts in an ashtray

in the living room[,] and a ‘baggie’ containing marijuana residue in the living

room.” Id. The officers also found 80 grams of marijuana in a milk delivery

box attached to the trailer hitch. Id. After the search, the officers remained

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at the trailer until Chenet arrived. Id. They obtained a second warrant to

search the car he was driving, which belonged to his attorney. Id. The officers

found two marijuana cigarettes in the console between the front seats. Id.

      The Pennsylvania Supreme Court found there was insufficient evidence

to support a finding that Chenet possessed the narcotics. It reasoned that the

narcotics found in the trailer were found in areas “equally accessible to

[Chenet’s] roommate and his girlfriend.” Id. at 1109. Further, the court

reasoned that the car did not belong to Chenet, and the Commonwealth failed

to prove Chenet knew about and was in possession of the marijuana found in

the car. Id.

      Here, unlike in Chenet, the adjudication was not based on A.H.’s mere

presence at the scene. Rather, the Commonwealth presented evidence that

A.H. was in the front passenger seat of a vehicle, and that Officer Krawchyk

could smell marijuana when the driver and passenger opened the car doors.

Further, the officers found a marijuana blunt on the front passenger-side

floorboard and a container that had two sealed bags of marijuana and one

open bag of marijuana in an area only accessible by the front-seat passenger,

that is, A.H. The container was opaque, but the Commonwealth was not

required to prove A.H. could see the marijuana to establish possession. See,

e.g. Commonwealth v. Stembridge, 579 A.2d 901, 905 (Pa.Super. 1990)

(concluding evidence sufficient to establish constructive possession of

contraband found under passenger seat). A.H.’s cooperation with police

officers does not require a finding of no knowledge. Rather, as with any

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possession case, the facts must be viewed in the totality of the circumstances.

See, e.g., Commonwealth v. Kirkland, 831 A.2d 607, 610 (Pa.Super.

2003) (stating “intent to exercise conscious dominion can be inferred from the

totality of the    circumstances”);   Hall, 199   A.3d at    961.   Here, the

Commonwealth established knowledge and control through the blunt on the

floor in front of A.H.’s seat, the smell of marijuana emanating from the car,

and the location of the container, which, at the relevant time, was readily

accessible only to A.H.

      We affirm.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2019




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