J-S16023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    MARK CHADRELLE SCOTT                       :
                                               :   No. 1727 MDA 2017
                       Appellant               :

           Appeal from the Judgment of Sentence October 20, 2017
      In the Court of Common Pleas of Berks County Criminal Division at
                       No(s): CP-06-CR-0003202-2016

BEFORE:       BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY MURRAY, J.:                                 FILED APRIL 16, 2018

       Mark Chadrelle Scott (Appellant) appeals from the judgment of

sentence1 imposed after the trial court convicted him of possession of a

controlled substance, possession with the intent to deliver a controlled

substance, and possession of drug paraphernalia.2 We affirm.

       The trial court summarized the pertinent facts of this case as follow:


____________________________________________


* Retired Senior Judge assigned to the Superior Court.

1 We note that in his notice of appeal, Appellant purports to appeal from the
October 31, 2017 order denying his post-sentence motion. “An appeal from
an order denying a post-trial motion is procedurally improper because a direct
appeal in a criminal proceeding lies from the judgment of sentence.”
Commonwealth v. W.H.M., Jr., 932 A.2d 155, 158 n.1 (Pa. Super. 2007).
Accordingly, the caption appropriately reflects an appeal from Appellant’s
judgment of sentence. See id.

2   35 P.S. § 780-113(a)(16), (30), (32).
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        On the morning of June 25, 2016, [Carlo DeAngelo, Marlena
     Ohlinger, and Benjamin Castiglioni were] assigned by the Adult
     Probation and Parole Office to execute a warrant to detain
     [Appellant].1 Officer DeAngelo executed the warrant and entered
     Appellant’s residence on 1516 Union Street. On the second floor
     of the residence, Officer DeAngelo encountered Appellant. At the
     same time, Officer DeAngelo perceived the distinctive odor of
     unburnt marijuana. Officer DeAngelo asked Appellant about the
     marijuana odor. Appellant responded that he smoked, but did not
     possess any marijuana. Reporting these observations to his
     superior, Officer DeAngelo requested permission to search the
     residence. His request was approved.

        During the search of the residence, Officer DeAngelo located
     “about a gallon-sized bag of marijuana in the second floor front
     bedroom directly at the base of the closet.” Additionally, in the
     bedroom, Officer DeAngelo found Appellant’s mail, other “living
     items,” and sneakers for resale that belonged to Appellant. Officer
     Castiglioni, who was assisting in the search of the bedroom, also
     found a shoebox containing $339.00 in cash.

         Officer Ohlinger was assigned to search a secondary bedroom
     and the attic. In the secondary bedroom, she found $2,039.00, a
     box of ammunition, a small amount of marijuana, cell phones, and
     surveillance equipment to monitor the rear and front of the
     residence. In the attic, she found wrapping material that smelled
     like marijuana and contained remnants of a green leafy substance.
     Relying on the evidence collected and his experience, Criminal
     Investigator Haser concluded that the marijuana found at the
     house was for distribution, not personal use.

         The theory of Appellant’s case was that the material found
     belonged to another alleged resident, Appellant’s late uncle. No
     physical evidence was presented that Appellant’s late uncle ever
     resided in the residence. In an attempt to validate this argument,
     Appellant, his girlfriend, and his two brothers testified that they
     lived in the residence at the time of the search and observed that
     the marijuana belonged to the uncle. However, other than the
     residency of his girlfriend and children, Officer DeAngelo found no
     evidence of other residents.


     1 The basis for the warrant was failure to report, new arrests, and
     other technical violations. N.T. at 8.

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Trial Court Opinion, 12/21/17, at 2-3 (record citations and footnote omitted).

      The trial court summarized the procedural history as follows:

         Following a bench trial held [on] October 18, 2017, the [c]ourt
      found [Appellant] guilty of Possession with intent to Deliver a
      Controlled Substance (“PWID”), Possession of a Controlled
      Substance, and Possession of Drug Paraphernalia. On October 20,
      2017, [the trial court] sentenced Appellant to one to four years of
      incarceration on the charge of PWID and one year [of] probation
      on the charge of Possession of Drug Paraphernalia.

         On October 20, 2017, Appellant filed a notice of appeal, but
      soon after withdrew this appeal. After withdrawing the first
      appeal, Appellant filed a Post-Sentence Motion challenging the
      weight of the evidence on October 30, 2017. [The trial court]
      denied this motion on October 31, 2017. Appellant then filed an
      appeal challenging our order denying his Post-Sentence Motion on
      November 6, 2017. After receiving notice, we requested that
      Appellant file a concise statement on November 9, 2017. A
      concise statement was filed on November 29, 2017.

Id. at 1.

      On appeal, Appellant presents the following issues for review:

      1.    Whether the [t]rial [c]ourt erred in denying Appellant’s
      Post[-]Sentence Motion as the verdicts issued were against the
      weight of the evidence where it is contrary to justice to believe
      that the bench found proof beyond a reasonable doubt that
      Appellant [] possessed the controlled substance in question where
      the Commonwealth failed to establish that Appellant [] was the
      only individual, of the numerous people living in the shared
      residence, with access to and/or control over the controlled
      substance?

      2.    Whether it was prosecutorial misconduct for the
      Commonwealth to improperly reference Appellant’s criminal
      history where it was not crimen falsi and where the reference was
      made over trial counsel’s objection?

Appellant’s Brief at 6.



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       First, Appellant argues that his verdict was against the weight of the

evidence. Appellant asserts that the weight of the evidence does not support

his convictions under a constructive possession theory.3 Appellant contends

that the evidence he presented, which revealed that nine people were living

in his home, outweighed the testimony of the probation officers, who merely

conducted a “haphazard” search of the home and reported that they only

found evidence of Appellant, his girlfriend, and their young children living in

the home. Appellant’s Brief at 16.

       Our standard of review for a claim that the verdict was against the

weight of the evidence is as follows:


____________________________________________


3  It is well settled that in drug possession cases, “the Commonwealth may
meet its burden by showing actual, constructive, or joint constructive
possession of the contraband.” Commonwealth v. Roberts, 133 A.3d 759,
767 (Pa. Super. 2016) (quotations and citation omitted), appeal denied, 145
A.3d 725 (Pa. 2016). This Court has defined constructive possession as
follows:

       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.

Id. at 767-68 (quoting Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.
Super. 2012)). “The Commonwealth may sustain its burden by means of
wholly circumstantial evidence, and we must evaluate the entire trial record
and consider all evidence received against the defendant.” Id. (quotations
and citation omitted).

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        A motion for a new trial based on a claim that the verdict is
     against the weight of the evidence is addressed to the discretion
     of the trial court. Commonwealth v. Widmer, [] 744 A.2d 745,
     751-52 ([Pa.] 2000); [Commonwealth v. Brown, 648 A.2d
     1177, 1189 (Pa. 1994)]. A new trial should not be granted
     because of a mere conflict in the testimony or because the judge
     on the same facts would have arrived at a different conclusion.
     Widmer, 744 A.2d at 752. Rather, “the role of the trial judge is
     to determine that ‘notwithstanding all the facts, certain facts are
     so clearly of greater weight that to ignore them or to give them
     equal weight with all the facts is to deny justice.’” [Id.] (citation
     omitted). It has often been stated that “a new trial should be
     awarded when the jury’s verdict is so contrary to the evidence as
     to shock one’s sense of justice and the award of a new trial is
     imperative so that right may be given another opportunity to
     prevail.” Brown, 648 A.2d at 1189.

       An appellate court’s standard of review when presented with a
     weight of the evidence claim is distinct from the standard of review
     applied by the trial court:

               Appellate review of a weight claim is a review of
           the exercise of discretion, not of the underlying
           question of whether the verdict is against the weight
           of the evidence. Brown, 648 A.2d at 1189. Because
           the trial judge has had the opportunity to hear and
           see the evidence presented, an appellate court will
           give the gravest consideration to the findings and
           reasons advanced by the trial judge when reviewing a
           trial court’s determination that the verdict is against
           the weight of the evidence. Commonwealth v.
           Farquharson, 354 A.2d 545 (Pa. 1976). One of the
           least assailable reasons for granting or denying a new
           trial is the lower court’s conviction that the verdict was
           or was not against the weight of the evidence and that
           a new trial should be granted in the interest of justice.

     Widmer, 744 A.2d at 753 (emphasis added).

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).

     With respect to Appellant’s weight of the evidence claim, the trial court

determined:

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         Instantly, the [c]ourt was the finder of fact in this matter. We
      weighted the testimony of all witnesses and found that the totality
      of the testimony supported Appellant’s convictions for [PWID],
      Possession of a Controlled, Substance, and Possession of Drug
      Paraphernalia.

          Specifically, the [c]ourt considered the testimony of the three
      probation officers when deciding whether Appellant was possessor
      of the marijuana. We considered that when they searched the
      residence only Appellant was found residing.           Additionally,
      Appellant’s mail, personal items, and his sneakers for resale were
      found in the same room as the large bag of marijuana. It strains
      credulity to believe that an individual would store their mail,
      personal property, and items they wish to sell in a room they did
      not inhabit and control. Finally, after observing Appellant, his
      girlfriend, and his two brothers and considering the lack of
      physical evidence, we found their testimony concerning the
      Appellant’s uncle’s culpability as mendacious and a fiction. It was
      a poor attempt to disguise Appellant’s own culpability.
      Considering this testimony, we concluded that Appellant
      possessed the marijuana for distribution.

Trial Court Opinion, 12/21/17, at 4 (quotations and citations omitted).

      Instantly, Appellant presented testimony that nine people were living in

his home: himself, his girlfriend Alyssa Rea (Rea), three children, his brothers

Dontel Scott (Dontel) and Michaux Scott (Michaux), his Uncle Albert (deceased

at the time of Appellant’s arrest), and Rea’s cousin Mariah Morales.         N.T.,

10/18/17, at 77-78, 87-88, 95-96. Rea testified that the extra people living

in the residence slept on pullout couches and air-mattresses. Id. at 79-82.

Rea and Dontel testified that Appellant’s late Uncle Albert, when he was still

living, had slept in the second floor bedroom where Officer DeAngelo found a

gallon-sized bag of marijuana. Id. at 81, 89-90.




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      The certified record, however, reflects that in the same second floor

bedroom where he located a gallon-sized bag of marijuana, Officer DeAngelo

observed mail addressed to Appellant and approximately 40 to 50 pairs of

shoes that belonged to Appellant. Id. at 11, 15, 17-18. In this same room,

Officer   Ohlinger   also   observed    surveillance   equipment,     ammunition,

cellphones, a small bag of marijuana, and a small amount of cash. Id. at 31-

37, 49. In the attic, the probation officers found packaging material containing

marijuana residue and in another bedroom, Officer Castiglioni discovered a

shoe box containing several rolls of cash. Id. at 15, 25-26, 28, 35. In the

basement, officers seized more packaging materials that also contained

marijuana residue. Id. at 66-67.

      Importantly, Officer DeAngelo testified that he walked through the

entire residence, and from what he observed, Appellant, his girlfriend, and

their children were the only people that lived in the home.         Id. at 20-21.

There was no evidence that anyone was sleeping on a pull out couch or air-

mattress. Id. Indeed, Officer DeAngelo testified that he only became aware

at the time of trial that Appellant’s brothers lived at the residence. Id. at 16.

      It is well settled that “the fact finder is free to believe all, part, or none

of the evidence presented and determines the credibility of the witnesses.”

Commonwealth v. Boyd, 73 A.3d 1269, 1274 (Pa. Super. 2013) (en banc)

(quotations and citations omitted). As the factfinder in this case, the trial

court had the responsibility of determining the credibility of the witnesses


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testifying on behalf of both the Commonwealth and Appellant. By convicting

Appellant, the trial court demonstrated that it believed the testimony of the

probation officers. Based upon our review of the record and the testimony

offered by the probation officers, we conclude that the trial court’s verdict

finding Appellant in construction possession of the drugs and drug

paraphernalia seized in this case does not shock one’s sense of justice.

Accordingly, the trial court did not abuse its discretion in finding that the

verdict was not against the weight of the evidence.

      Second, Appellant argues that he is entitled to a new trial because the

prosecutor committed prosecutorial misconduct by referencing his criminal

history on cross-examination of Appellant. Specifically, Appellant takes issue

with the following line of questioning:

      [Commonwealth]: And you didn’t smell it on any other room on
      the second floor? You didn’t smell any marijuana?

      [Appellant]: I mean, I smelt marijuana. On that morning, like I
      said, I was woken up to the officers being at the house.

      [Commonwealth]: You can’t recall.

      Now, again, just so we’re clear here, you’re well familiar with what
      the smell of marijuana is, right, - - -

      [Appellant]: Yes.

      [Commonwealth]: - - - both burnt and unburnt, based on your
      criminal history?

      [Appellant]: Yes.

      [Defense Counsel]: Objection to that, Your Honor.


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      The Court: Objection’s overruled.

N.T., 10/18/17, at 103.     Appellant asserts the prosecutor’s actions were

improper because by referencing his prior convictions “the clear implication

was that [Appellant] had a criminal record for the same offense for which he

was on trial and this undermined the presumption of innocence.” Appellant’s

Brief at 21.

      The standard of review for claims of prosecutorial misconduct is as

follows:

         Our standard of review for a claim of prosecutorial misconduct
      is limited to whether the trial court abused its discretion. In
      considering this claim, our attention is focused on whether the
      defendant was deprived of a fair trial, not a perfect one.

         [A] prosecutor’s arguments to the jury are [generally] not a
      basis for the granting of a new trial unless the unavoidable effect
      of such comments would be to prejudice the jury, forming in their
      minds fixed bias and hostility towards the accused which would
      prevent them from properly weighing the evidence and rendering
      a true verdict.

         A prosecutor must have reasonable latitude in fairly presenting
      a case to the jury and must be free to present [his or her]
      arguments with logical force and vigor. The prosecutor is also
      permitted to respond to defense arguments. Finally, in order to
      evaluate whether the comments were improper, we do not look at
      the comments in a vacuum; rather we must look at them in the
      context in which they were made.

Commonwealth v. Proctor, 156 A.3d 261, 271-72 (Pa. Super. 2017)

(quotations and citation omitted), appeal denied, 172 A.3d 592 (Pa. 2017).

      “[E]vidence of prior crimes and bad acts is generally inadmissible if

offered for the sole purpose of demonstrating the defendant’s bad character


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or criminal propensity[.]” Commonwealth v. Powell, 956 A.2d 406, 419

(Pa. 2008).     Evidence of prior crimes “may be admissible in certain

circumstances where it is relevant for some other legitimate purpose and not

utilized solely to blacken the defendant’s character.”     Commonwealth v.

Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (en banc) (quotations and

citation omitted). “Specifically, other crimes evidence is admissible if offered

for a non-propensity purpose, such as proof of an actor’s knowledge, plan,

motive, identity, or absence of mistake or accident.”      Id. (quotations and

citation omitted).

      In concluding that Appellant was not entitled to a new trial based on the

prosecutor’s reference to his criminal history, the trial court explained:

      Instantly, the statements made did not influence the [c]ourt.
      There was substantial evidence that Appellant possessed the
      drugs with the intent to distribute. Primarily[,] that marijuana
      was found in close proximity to his personal effects, mail, and
      sneakers.    Additionally, the [c]ourt was already aware that
      Appellant had a criminal record; the search was pursuant to a
      parole violation. Most critically, the [c]ourt did not engage in
      propensity reasoning. The fact that Appellant had been previously
      convicted of a drug offense had no bearing in the verdict. The
      evidence and testimony of all individuals involved was considered
      and independently evaluated. Therefore, we were not tainted by
      this impermissible statement and evidence supports our verdict.

Trial Court Opinion, 12/21/17, at 6.

      Assuming, arguendo, that the prosecutor’s conduct in eliciting testimony

relating to Appellant’s criminal history was improper, the prosecutor’s actions

nevertheless did not prejudice Appellant. “It is well settled that in a bench

trial[,] the admission of a defendant’s prior record is harmless error [because]

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the trial judge is presumed capable of disregarding inadmissible evidence.”

Commonwealth v. Galindes, 786 A.2d 1004, 1014 (Pa. Super. 2001) (citing

Commonwealth v. Davis, 421 A.2d 179, 183, n.6 (Pa. 1980) (“A judge, as

fact-finder, is presumed to disregard inadmissible evidence and consider only

competent evidence.”)). Moreover, as the trial court pointed out, it was well

aware of Appellant’s criminal history given that the charges at issue stemmed

from a probation violation.   Therefore, even if improper, we conclude that

Appellant was not prejudiced by the prosecutor’s conduct. Accordingly, the

trial court did not abuse its discretion in declining to award Appellant a new

trial on the basis that the prosecutor elicited testimony of his prior crimes.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/2018




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