J-S19025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID BARRETT,                             :
                                               :
                       Appellant.              :   No. 1570 EDA 2018


             Appeal from the Judgment of Sentence, May 14, 2018,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0000014-2016.


BEFORE:      LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY KUNSELMAN, J.:                              FILED JUNE 07, 2019

        David Barrett appeals from the judgment of sentence entered after the

trial court found him guilty of knowingly and intentionally possessing a

controlled substance by person not registered.1 Upon review, we affirm.

        The facts are fully set forth in the trial court’s opinion. Briefly, we note

that Barrett’s conviction arose out of an undercover investigation for the sale

of narcotics at an abandoned house on 839 Hutton Street, Philadelphia,

Pennsylvania. After a confidential informant acquired drugs at the subject

property, and the police conducted additional surveillance of activity at the

house, a search warrant was executed. Upon entering the house, Barrett and

a woman were found in the living/dining room. Near Barrett’s feet, the police

found a plastic container with three bags of crack cocaine.            Barrett was
____________________________________________


1   35 P.S. § 780-113(a)(16).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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arrested and charged with manufacture, delivery or possession with the intent

to manufacture or deliver, intentional possession of a controlled substance by

person not registered, and use/possession of drug paraphernalia.

      Following a bench trial, the court found Barrett guilty of knowingly and

intentionally possessing a controlled substance by person not registered; he

was found not guilty of the remaining charges. Barrett was sentenced to one

(1) year reporting probation.

      Barrett timely appealed. The trial court and Barrett complied with

Pa.R.A.P. 1925.

      On appeal, Barrett raises a single issue:

      I. Whether there was sufficient evidence to convict Barrett of
      actual or constructive possession of a controlled substance where
      the substance was not found on Barrett’s person, where Barrett
      was a guest in the house, where Barrett did not have dominion or
      control of the property and where at least one other person was
      found in the immediate area where the substance was found on
      the floor.

See Barrett’s Brief at 6.

      In reviewing a claim based upon the sufficiency of evidence, this Court:

      must determine whether the evidence admitted at trial, as well as
      all reasonable inferences drawn therefrom when viewed in the
      light most favorable to the verdict winner, are sufficient to support
      all elements of the offense. Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations

omitted). However, “the inferences must flow from facts and circumstances


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proven in the record, and must be of such volume and quality as to overcome

the presumption of innocence and satisfy the jury of an accused's guilt beyond

a reasonable doubt.” Commonwealth v. Scott, 597 A.2d 1220, 1221 (Pa.

Super. 1991). “The trier of fact cannot base a conviction on conjecture and

speculation and a verdict which is premised on suspicion will fail even under

the limited scrutiny of appellate review.” Id.   “Because evidentiary sufficiency

is a question of law, our standard of review is de novo and our scope of review

is plenary.” Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013).

      Barrett was convicted under 35. P.S. § 780-113(a)(16), which prohibits:

      (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.

35 P.S. § 780-113. Barrett claims there was insufficient evidence to establish

that he possessed, either actually or constructively, the crack cocaine found

near his feet. In support of this, Barrett argues that he did not have requisite

control over the crack cocaine; he was only a guest at the house; and there

was another person in the room where the substance was found. As a result,

there was insufficient evidence to support his conviction for intentional

possession of a controlled substance.

      Possession of a controlled substance can be found by “proving actual

possession, constructive possession, or joint constructive possession.”

Commonwealth v. Parrish, 191 A.3d 31, 26 (Pa. Super. 2018) (citation

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omitted) appeal denied, 202 A.3d 42 (Pa. 2019). Where contraband is not

found on a defendant’s person, the Commonwealth is required to establish

that the defendant had constructive possession of the seized items to support

his convictions. See Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.

Super. 2012).

      Considering the totality of the circumstances, the trial court concluded

that “the facts of this case support a finding of constructive possession.” Trial

Court Opinion, 8/13/18, at 4. Upon our review of the record, the briefs of the

parties, the applicable law, and the well-reasoned opinion of the trial court,

we agree the evidence was sufficient to convict Barrett.

      With respect to constructive possession, this Court has noted:

      Constructive possession is a legal fiction, a pragmatic construct to
      deal with the realities of criminal law enforcement. Constructive
      possession is an inference arising from a set of facts that
      possession of the contraband was more likely than not. We have
      defined constructive possession as conscious dominion. We
      subsequently defined conscious dominion as the power to control
      the contraband and the intent to exercise that control. To aid
      application, we have held that constructive possession may be
      established by the totality of the circumstances.

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

omitted).   Here, there was sufficient evidence to show that Barrett had

conscious dominion, i.e., the ability and intent to control, the crack cocaine.

      In reaching its conclusion, the trial court explained:

      [Barrett] was in the house at the time the police searched the
      premises. After a brief knock and announce, the drugs were found
      a mere couple of inches away from [Barrett’s] feet. [Barrett], nor
      any other occupant of the house, would have time to move either

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      him/herself, or the drugs, given the short knock and announce.
      The drugs were solely accessible by [Barrett] given the close
      proximity to his feet. This [was sufficient] to establish control by
      [Barrett] over the drugs.

Trial Court Opinion, 8/13/18, at 5. Barrett argues proximity is not the sole

determinative factor. However, where contraband has been found within the

reach of a defendant, as it was here, our Court has concluded that there was

sufficient evidence to find constructive possession. See Commonwealth v.

Samuels, 340 A.2d 880 (Pa. Super. 1975); Commonwealth v. Santiago,

305 A.2d 378 (Pa. Super. 1973).

      The trial court further reasoned:

      Even though there was a female present in the room with [Barrett]
      at the time of search, the presence of another party does not
      negate [Barrett’s] constructive possession. The drugs were found
      in the living room where both [Barrett] and the female were
      found; however, the drugs were found next to [Barrett’s] feet and
      the female was on the other side of the living room . . . .”

Trial Court Opinion, 8/13/18, at 5 (additional emphasis added).        Barrett is

correct that, “[t]he fact of possession loses all persuasiveness if persons other

than the accused had equal access . . . to the place in which the property was

discovered . . . .” Commonwealth v. Davis, 280 A.2d 119, 121 (Pa. 1971)

(quoting 9 J. Wigmore, Evidence (3d ed.) § 2513 (1940)). However, here,

the female who was in the room with Barrett, was across the room from where

the crack cocaine was found.      Thus, she did not have equal access to it.

Moreover, Barrett presented no evidence to suggest that the female had more

immediate access to or dominion over the crack cocaine.



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      Furthermore, and importantly, evidence suggested that Barrett was

aware of the existence of the crack cocaine. “[K]nowledge of the existence

and location of the contraband is a necessary prerequisite to proving the

defendant's intent to control, and, thus, his constructive possession.”

Parrish, 191 A.3d at 37 (citations omitted). Here, the crack cocaine was in

plain sight near Barrett’s foot. Further, upon his arrest, Barrett stated, “those

aren’t mines” (sic) demonstrating that he was aware of the illegal, controlled

substance, and had the intent to control it.

      Contrary to Barrett’s argument, whether Barrett was a guest or resident

of the house, is not dispositive in this matter. Barrett’s behavior in relation to

the premises supports the conclusion that Barrett constructively possessed

the crack cocaine. On two separate occasions, the police observed Barrett

answer the door for multiple people, and decide whether to let them in. When

he answered the door, Barrett surveyed the neighborhood, and looked up and

down the street before shutting the door. He also locked the door right before

the police entered the house. From this evidence, the factfinder could infer

that Barrett exercised control over both the premises and its contents,

including the crack cocaine. Control of the premises like an owner or lessee

is indicative of possession. See Commonwealth. v. Samuels, 340 A.2d 880,

886 (Pa. Super. 1975).      This evidence also showed that Barrett sought to

protect   the   property.    This   too   is   indicative   of   possession.   See

Commonwealth v. Sweitzer, 177 A.3d 253, 259 (Pa. Super. 2017).




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     Considering all of the facts and circumstances in this case, and all

reasonable     inferences   derived   therefrom,   viewed   in   favor   of   the

Commonwealth as verdict winner, we conclude that the Commonwealth

presented sufficient evidence to establish that Barrett had constructive

possession of the crack cocaine.       Thus, the Commonwealth proved the

elements necessary to convict Barrett of knowingly and intentionally

possessing a controlled substance.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/19




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