J-S26040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    LEAVEIL ABDUL SWEENEY                      :
                                               :
                      Appellant                :   No. 1614 MDA 2016

          Appeal from the Judgment of Sentence September 19, 2016
                 In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0000504-2016


BEFORE: BOWES, DUBOW, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                              FILED MAY 22, 2017

        Appellant, Leaveil Abdul Sweeney, appeals from the judgment of

sentence of nine to sixteen months’ imprisonment entered in the York

County Court of Common Pleas following his bench trial convictions of

driving under the influence of alcohol (“DUI”),1 possession of a small amount

of marijuana,2 possession of drug paraphernalia,3 and driving under

suspension, DUI related.4           Appellant challenges the sufficiency of the

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 3802(a)(1).
2
    35 P.S. § 780-113(a)(31).
3
    35 P.S. § 780-113(a)(32).
4
    75 Pa.C.S. § 1543(b).
J-S26040-17


evidence for his possession of a small amount of marijuana and drug

paraphernalia convictions. We affirm.

      We adopt the facts and procedural history set forth by the trial court’s

opinion.    See Trial Ct. Op., 1/10/17, at 2, 5-8.         In this timely appeal,

Appellant    raises   the   following   issue   for   review:   “[w]hether   the

Commonwealth presented sufficient         evidence    to   support [Appellant’s]

possession of a small amount of marijuana and possession of drug

paraphernalia convictions?” Appellant’s Brief at 5.

      Appellant argues that the evidence was insufficient because the

Commonwealth failed to establish he constructively possessed the marijuana

or drug paraphernalia found in the vehicle he was driving.              Appellant

contends that the evidence did not prove that he either knew the drugs or

drug paraphernalia were in the vehicle, or that he intended to possess or

exercise dominion over the same.          He emphasizes that the vehicle in

question belonged to his wife, Jean Sweeney, and, as a passenger at the

time in question, Mrs. Sweeney was within arm’s reach of the contraband.

Therefore, Appellant avers the evidence failed to establish that Appellant,

and not Mrs. Sweeney alone, was responsible for the drugs and drug

paraphernalia in the car.      Thus, Appellant claims that this Court should

vacate his judgment of sentence. We conclude no relief is due.

      Our review is governed by the following principles:

           The standard we apply in reviewing the sufficiency of
           evidence is whether, viewing all the evidence admitted at

                                        -2-
J-S26040-17


        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. Ratsamy, 934 A.2d 1233, 1236 n.2 (Pa. 2007) (citation

omitted). Furthermore,

        [T]he critical inquiry on review of the sufficiency of the
        evidence to support a criminal conviction . . . does not
        require a court to ask itself whether it believes that the
        evidence at the trial established guilt beyond a reasonable
        doubt. Instead, it must determine simply whether the
        evidence believed by the fact-finder was sufficient to
        support the verdict.

Id. at 1235-36 (quotation marks and citation omitted).

     The doctrine of constructive possession provides:

        [i]n order to prove that a defendant had constructive
        possession of a prohibited item, the Commonwealth must
        establish that the defendant had both the ability to
        consciously exercise control over it as well as the intent to
        exercise such control. An intent to maintain a conscious
        dominion may be inferred from the totality of the
        circumstances, and circumstantial evidence may be used

                                    -3-
J-S26040-17


           to establish   a   defendant’s   possession   of   drugs   or
           contraband.

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

(quotation marks and citations omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the trial court’s opinion, we conclude the trial court’s

opinion properly disposes of Appellant’s argument regarding constructive

possession.     See Trial Ct. Op. at 3-10 (finding the totality of the

circumstances supported the conclusion that Appellant was in constructive

possession of the drugs and drug paraphernalia, where (1) the responding

officer testified that he detected a strong odor of freshly burnt marijuana

upon stopping the car and that Appellant’s demeanor was, in his experience,

consistent with an individual who was under the influence of marijuana, (2)

the burnt ends of two marijuana “blunts” were recovered from beneath the

visor on the passenger’s side of the car, an area easily accessible by

Appellant, (3) that contraband indicated, circumstantially, that two people

were likely smoking, and (4) Appellant had time to attempt to conceal the

contraband because he failed to stop for a half mile after the responding

officer signaled him). Accordingly, we affirm on the basis of the trial court’s

opinion.

      Judgment of sentence affirmed.




                                      -4-
J-S26040-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2017




                          -5-
                                                                                                               Circulated 04/25/2017 04:18 PM




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                                                            Defendant-Name:
                                                  Leaveil Abdul Sweeney



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                              Don O'Shell - York County Clerk of Courts
                                                                       L1
541881                                                                                                Tuesday, January 10, 2017 09:36:17 AM
                IN THE COURT OF COMMON PLEAS
                OF YORK COUNTY, PENNSYLVANIA
                         CRIMINAL DIVISION

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                   OPINION IN SUPPORT OF ORDER
                   PURSUANT TO Pa.R.A.P. 1925(a)


     Appellant Leaveil A. Sweeney appeals to the Superior Court of

Pennsylvania from the Judgment of Sentence issued on August 19,

2016. On October 4, 2016, and pursuant to Pa. R.A.P. 1925(b), the trial

court directed Appellant to file a Concise Statement of Matters

Complained of on Appeal. Appellant filed a motion to enlarge the time

within which to file his Concise Statement of Matters Complained of on

Appeal, which motion was granted by the trial court. On December 5,

2016, Appellant filed the statement. The trial court now issues this

1925(a) Opinion.
                       PROCEDURAL HISTORY

     Following a bench trial before Honorable Christy H. Fawcett

("trial court") on July 21, 2016, Appellant was convicted of driving

under the influence of alcohol, general impairment, in violation of 75

Pa.C.S.A. § 3802(a)(l)(Count 1); possess_ionof a small amount of

marijuana, in violation of 35 Pa.C.S.A. § 780-113 (31) (Count 6);

possession of drug paraphernalia, in violation of 35 Pa.C.S.A. § 780-

113(32) (Count 7); and driving under suspension, DUI related, in

violation of 75 Pa.C.S.A. § 1543(b).


     On August 19, 2016, the trial court sentenced Appellant to an

aggregate term of nine to 16 months' imprisonment.


     On September 27, 2016, Appellant filed a Notice of Appeal with

this Court.


               MATTER COMPLAINED OF ON APPEAL

     Appellant raises a single ground for error:




                                       2
        Whether the Commonwealth presented sufficient evidence to
        convict Appellant beyond a reasonable doubt of possession of a
        small amount of marijuana and possession of drug paraphernalia
        when the Commonwealth failed to prove Appellant's constructive
        possession of marijuana and drug paraphernalia.


                                DISCUSSION
        The Commonwealth presented sufficient evidence to establish the
        defendant's constructive possession of the marijuana and drug
        paraphernalia beyond a reasonable doubt.

        Evidence is sufficient to support the verdict "when it establishes

each material element of the crime charged and the commission thereof

by the accused beyond a reasonable doubt." Commonwealth v. Widmer,

744 A.2d 745, 751 (Pa. 2000). In reviewing a sufficiency claim, this

Court   "lvliewlsl the evidence in the light most favorable to the verdict
winner, giving the prosecution the benefit of all reasonable inferences to

be drawn from the evidence." Id.


        The Commonwealth "need not preclude every possibility of

innocence." Commonwealth v. Tejada, 107 A.3d 788, 792 (Pa. Super.

2015). Moreover, "doubts regarding the 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


                                       3
from the combined circumstances." Commonwealth v. Lambert, 2002

Pa. Super. 82, 85.


     Here, the Commonwealth established Appellant's possession of

the drugs and paraphernalia in question via the legal theory of

constructive possession. Constructive possession is "an inference

arising from a set of facts that possession of the contraband was more

likely than not." Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.

Super. 2013), appeal denied, 78 A.3d 1090 (Pa. 2013). The Superior

Court has defined constructive possession as "conscious dominion" or

the "power to control the contraband and the intent to control the

contraband." Id.


     Moreover, two or more people may jointly constructively possess

an item or items of contraband. Commonwealth v. Sanes, 955 A.2d 369

(Pa. Super. 2008), appeal denied, 972 A.2d 521 (Pa. 2009).


     The Commonwealth may sustain its burden of establishing proof

beyond a reasonable doubt by circumstantial evidence alone and

constructive possession may be established by the totality of the




                                    4
circumstances. Commonwealth v. Markman, 916 A.2d 586, 598 (Pa.

2007).


         As the trier of fact, the trial court was permitted to determine the

credibility of the witnesses and the weight of the evidence produced.

Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa. Super. 2014)(citation

omitted). It was "free to believe all, part or none of the evidence." Id.


         Here, veteran Police Officer Randy Wagner testified that while

patrolling at approximately 1:30 am, October 31, 2015, he saw a beige

Lexus sedan "cross over the double yellow lines three times and cross

over the fog line five times."      (Notes of Testimony, Trial of July 21,

2016, 4-10.)     1   Suspecting that the driver was impaired, the officer

activated his lights and siren to make a stop. (N.T. 11-12.) The vehicle,

however, continued traveling for approximately a half mile, stopping

only after it failed to properly negotiate a turn and "nearly drove off the

road." (N.T. 12.)


         As the officer approached the vehicle on foot, he "immediately

smelled the odor of burnt marijuana coming from the car." (N.T. 14.)

He observed that Appellant was driving the car and a woman who
1
    Hereinafter"N.T._".

                                          5
identified herself as Appellant's wife ("Mrs. Sweeney") occupied the

passenger seat. (N.T. 13, 34.)


         In response to the officer's inquiry about the smell of burning

marijuana, Mrs. Sweeney pulled a cigar wrapper enveloping two

"roaches"2 containing marijuana from above the passenger-side visor

and gave them to the officer. (N.T. 14·15.) She told him she had been

smoking. (N.T. 15.)                The marijuana "looked freshly burnt and smelled

freshly burnt." (Id.)


        During this time, Appellant "seemed very confused or distant" and

"really relaxed."            (Id. ) This required the officer to "to repeat things to

get him to respond to me." (Id.) In the officer's experience, this

behavior was consistent with the behavior of a person who had been

smoking marijuana.                (N.T. 27.) In addition, Appellant's eyes were

bloodshot and watery and the smell of an alcoholic beverage was coming

from his breath. (Id.)


        Based on Appellant's driving, his interactions with the officer, and

the strong odor of burnt marijuana, Officer Wagner believed Appellant


2
 As described by counsel and consistent with the Court's experience, "roaches" are the remains of a partially-
smoked marijuana cigarette. (See N.T. 50.)

                                                         6
"was under the influence of either alcohol or marijuana or a

combination of both of them." (N.T. 17.) Appellant, however, "denied

drinking anything or smoking any marijuana." (N.T. 16.)


         Officer Wagner then administered a battery of standard field

sobriety tests on which Appellant delivered an unsatisfactory

performance. (N.T. 19-24.)


         Called as a witness for Appellant, Mrs. Sweeney testified she was

asleep in the car when the police officer pulled it over. (N.T. 35.)

Earlier in the evening she met Appellant at the home of a relative.

(N.T. 37-38.) She claimed she was ill and "begged" Appellant to drive

her home. (N.T. 36.) She claimed ownership of the roaches contained

in the cigar wrapper and found under the passenger-side visor, a pill

bottle containing marijuana apparently retrieved from under her seat,

and a digital scale. (N.T. 38-39.)3 Mrs. Sweeney alleged that Appellant

did not know marijuana roaches were in the car but she did not know

whether he was aware of the presence of the scale. (Id.)




3
  The exact location within the car of the digital scale and the pill bottle containing marijuana is not entirely clear.
Regardless,the undisputed evidence is that the cigar wrapper containing the roaches was recovered from behind
the front passenger seat visor. The cigar wrapper was charged as an item of drug paraphernalia. See N.T. 51 .

                                                            7
     Mrs. Sweeney testified that she had smoked marijuana in the car

earlier that day and before she was with Appellant. (N.T. 40.) She

claimed that she purchased the marijuana for her father and had

acquired a scale because she "wanted to make sure [she] was getting

the right amount" for her father. (N.T. 38.) She pleaded guilty to

possession of a small amount of marijuana and possession of drug

paraphernalia in connection with the incident. (N.T. 41.)


     The trial court based its verdict that Appellant was guilty of

jointly constructively possessing the marijuana and the drug

paraphernalia on a number of pieces of circumstantial evidence and

reasonable inferences derived from that circumstantial evidence. This

included the testimony of Officer Wagner, a trained and experienced

law enforcement officer whom the trial court found to be a credible

witness. Officer Wagner testified that immediately upon approaching

the car driven by Appellant, he noticed a strong odor of burnt

marijuana. He specified that the marijuana looked and smelled freshly

burnt. The marijuana was recovered from beneath the visor on the

passenger side of the car, an area easily accessible by Appellant who, as

the driver, had control of the car. The cigar wrapper contained two

                                    8
roaches, circumstantially indicating that two people were smoking the

marijuana. In addition, the officer testified that Appellant's confused

and distant manner was consistent with behavior exhibited by a person

under the influence of marijuana.       4       In addition, the trial court notes

Appellant failed to stop for approximately a half mile after the officer

signaled him. This would provide a sufficient interval for Appellant and

his wife to both conceal the roaches and to fabricate a cover story.


      The trial court specifically finds that Mrs. Sweeney's testimony

was not credible. Her assertion that she had purchased the marijuana

for her father was unbelievable. Ditto for her claim that she-

apparently by herself-smoked          marijuana in the car at a time that was

never specified but that was apparently purportedly many hours prior

to the stop. This assertion is flatly contradicted by Officer Wagner's

testimony that he smelled the strong odor of freshly burnt marijuana as

he approached the car. The trial court also notes that Appellant's

statement to the officer that he ingested neither alcohol nor marijuana

is not credible given his abysmal driving and performance on the field

4
 The trial court acknowledges that Appellant's behavior, standing alone, is
insufficient to establish his joint constructive possession of the marijuana and drug
paraphernalia. It is, however, one piece of circumstantial evidence that supports
this conclusion.
                                            9
sobriety tests. The likelihood that he was untruthful about his alcohol

consumption also casts doubt on his representation that he did not

ingest marijuana.


     The totality of the evidence recited above viewed in the light most

favorable to the Commonwealth but, most particularly, evidence of the

strong odor of freshly burnt marijuana and the presence of two roaches

dwrapped in drug paraphernalia in an area easily accessible by

Appellant, who was the driver of the car, circumstantially established

that Appellant jointly and constructively possessed the marijuana and

drug paraphernalia found in the car.


                             CONCLUSION


     In conclusion, the trial court respectfully requests that the

Superior Court affirm the verdict of the trial court.


                                              BY THE COURT:




Dated: January 9, 2017




                                     10
