J-S04030-18

                                   2018 PA Super 167

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    BRAEMAR PARRISH                            :
                                               :   No. 175 MDA 2017
                       Appellant

            Appeal from the Judgment of Sentence March 22, 2016
     In the Court of Common Pleas of Luzerne County Criminal Division at
                       No(s): CP-40-CR-0003237-2014


BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

OPINION BY DUBOW, J.:                                     FILED JUNE 15, 2018

       Appellant, Braemar Parrish, appeals from the Judgment of Sentence

imposed following his convictions of two counts each of Possession with Intent

to Deliver (“PWID”) (heroin and methamphetamines), Conspiracy, and

Possession of a Controlled Substance, and one count each of Possession of

Drug Paraphernalia and Firearms Not to be Carried Without a License.1

       The charges in this case stem from the police search of a vehicle driven

by Pernell Riddick. When the police pulled the vehicle over, they observed

Appellant seated in the back seat. The police found in the front seat a black

bag that contained drugs, drug paraphernalia, and a gun.          The police also

found a gun under the front passenger seat and marijuana in a cup holder on

the front passenger-side door.           Appellant contends, inter alia, that the

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135 P.S. § 780-113(a)(30); 18 Pa.C.S. § 903, 35 P.S. §780-113(a)(16); 35
PS. § 780-113(a)(32); and 18 Pa.C.S. §6106(a)(1), respectively.
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evidence was insufficient to establish that the he even knew about the

contraband, let alone exercised dominion and control over it. We agree and,

accordingly, reverse Appellant’s Judgment of Sentence.

        The facts and procedural history most relevant to this appeal are as

follows.    On August 7, 2014, after observing a tinted-windows violation,

Kingston Police Officer John Bevilaqua and Sergeant Height2 conducted a

traffic stop of a Lincoln MKZ four-door sedan. The officers followed the vehicle

without lights or sirens for several blocks, and then indicated to the driver of

the vehicle, Mr. Riddick, that he should pull the vehicle over. After Mr. Riddick

pulled over, the officers immediately approached the vehicle and while doing

so noticed it rocking back and forth.

        Mr. Riddick rolled down the window, and the police officers smelled

marijuana and observed a plastic baggie containing marijuana in plain view.

They also observed Mr. Riddick straddling the center console between the two

front seats and the grip of a silver handgun protruding from under the front

passenger seat. The officers further observed Appellant seated behind the

driver’s seat with his hands on the headrest of the driver’s seat.

        The officers arrested Mr. Riddick and Appellant and subsequently

searched the entire vehicle. On the floor on the passenger side of the front

of the vehicle, the officers found a black bag. In the bag was a loaded .45


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2   Sergeant Height’s first name does not appear in the Notes of Testimony.



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caliber handgun,3 250 wax paper packets of heroin packaged into bundles, 12

individual packets of methamphetamines, a baggie of loose heroin, two scales,

packaging material, and unknown powder substance, a spoon, and a magazine

containing .40 caliber ammunition. The officers also found in the front of the

passenger cabin of the vehicle, marijuana on the passenger-side door and a

.40 caliber handgun protruding from under the passenger-side seat.

        In the glove compartment, the officers found an extra magazine of

bullets, and in the trunk, they found a bulletproof vest. The officers also found

$1,335 in cash on Appellant and $2,168 on Riddick.            During his arrest,

Appellant cooperated with the police, correctly identified himself, and did not

attempt to flee.

        Police charged Appellant with the above crimes,4 as well as one

additional count of Possession of a Controlled Substance and one count each

of Receiving Stolen Property and Person Not to Possess Firearm.5 Before trial,

the court severed the Person Not to Possess Firearm offense from Appellant’s

other offenses.

        At Appellant’s jury trial, Officer Bevilaqua testified regarding the above

details of the stop and search of the vehicle. In addition, he stated that he

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3   Police later identified this handgun as having been stolen.

4Police also charged Mr. Riddick, and on December 5, 2014, the court severed
Appellant’s case from Mr. Riddick’s.

5 35 P.S. § 780-113(a)(16); 18 Pa.C.S. § 3925(a); and 18 Pa.C.S. §
6105(a)(1), respectively.

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observed the vehicle “rocking back and forth in a violent manner.”        N.T.,

1/19/16, at 60. Because of the heavy window tint, however, he “could not

see inside the vehicle to see any furtive movement being conducted.” Id. He

testified that when he was finally able to see into the car, he observed Mr.

Riddick straddled over the center console of the vehicle, half on the passenger

side and half on the driver’s side. He saw Appellant, who was between 5’11”

and 6’ tall and weighed 270 lbs., seated in the back seat on the driver’s side

with his hands resting on the headrest in front of him. Id. at 60-62, 76-77.

Officer Bevilaqua also testified that he smelled marijuana emanating from the

vehicle. Id. at 60-61.

      Officer Bevilaqua further testified that, after Sergeant Height observed

a small bag of marijuana in plain view in the front of the car in the passenger

side door, Mr. Riddick admitted that it was his. As the officers removed Mr.

Riddick from the car, Sergeant Height observed a .40 caliber Smith and

Wesson under the front passenger seat. Id. at 63, 78.

      On cross-examination, Officer Bevilaqua testified that Appellant was not

the registered owner of the vehicle and Appellant did not have a key to the

car’s glove compartment or trunk.      Id. at 77, 85-86.    Moreover, Officer

Bevilaqua stated that, because he first saw Appellant in the back seat, he

inferred that Appellant was not the vehicle’s operator.     Id. at 86. Officer

Bevilaqua confirmed that Appellant correctly identified himself, cooperated

with him and Sergeant Height, and did not attempt to flee. Id. at 88.




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       Officer Bevilaqua also testified that police did not test any of the items

found in Mr. Riddick’s vehicle for fingerprints. Id. at 86-87.

       Kingston Police Detective Edward Palka testified for the Commonwealth

as an expert in street-level drug interdiction. Id. at 112. He reviewed the

evidence, prepared an expert report, and concluded that Appellant possessed

the controlled substances not for personal use, but to sell to others. Id. at

113-116.

       Detective Palka also concluded that the presence of loaded handguns

and a bulletproof vest reflected the inherent dangerousness of drug dealing.

Id. at 126.

       In concluding that Appellant “constructively possessed” the handguns,

Detective Palka testified that the “fact that there was [sic] two handguns

present[,] not just one[,] to me shows that both individuals possessed a

handgun. And in all the investigations that I have done, I don’t remember

ever coming – having more than one handgun.” Id. He reiterated that he

does not generally come across one person carrying more than one gun in a

car. Id. at 130.6



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6 Immediately following this testimony, Appellant’s counsel objected to
Detective Palka offering the opinion that “one person doesn’t possess two
handguns.” Id. at 127. Counsel asserted that Detective Palka’s testimony
was inappropriate because the question of whether Appellant possessed a
handgun is an issue of fact for the jury to resolve. Id. The court overruled
Appellant’s objection. Id.


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       Timothy Evans testified on Appellant’s behalf. Mr. Evans testified that

Appellant had been at a party hosted by Mr. Evans all afternoon on the day of

Appellant’s arrest and stayed until approximately 2:00 AM. Id. at 151-52.

Mr. Evans testified that he asked Mr. Riddick to drive Appellant home at the

end of the party. Id. at 152. Mr. Evans further testified that, when Appellant

left the party in Mr. Riddick’s car, Appellant was not carrying a satchel or any

kind of bag. Id. at 153. He also stated that he saw Appellant lay down in the

back seat when Appellant got in the car. Id.

       On January 20, 2016, the jury convicted Appellant of the above

charges.7 The court sentenced Appellant on March 22, 2016, to an aggregate

term of 88 to 176 months’ incarceration and ordered Appellant to pay $356 in

restitution to the Pennsylvania State Police Lab for crime lab processing fees.8

       On March 30, 2016, Appellant filed a Motion for Modification of Sentence

and Motion for New Trial.          Two days later, he filed a Motion to Compel

Discovery. On April 4, 2016, Appellant filed a Motion to Vacate Sentence on

Firearms Not to be Carried Without a License and to Prohibit Trial on Person

Not to Possess Firearm.          On April 27, 2016, the Commonwealth filed a

Response in Opposition to Appellant’s Motion to Vacate and Prohibit Trial.




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7 The court continued the trial on Appellant’s Person Not to Possess Firearm
charge pending resolution of this appeal.
8 The court ordered the restitution amount split with Riddick. N.T., 3/22/16,
at 30.

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       On July 28, 2016, Appellant’s Motion for Modification of Sentence and

Motion for a New Trial were deemed denied by operation of law; however, the

trial court clerk did not enter an order advising Appellant as required by

Pa.R.Crim.P. 720(B)(3)(c) and 720(B)(4). Instead, on December 20, 2016,

the trial court entered an Order denying Appellant’s Motion to Modify Sentence

and Motion to Vacate and Prohibit Trial.         On January 18, 2017, the court

entered an Order finding Appellant’s Motion for a New Trial moot as having

been denied by operation of law pursuant to Pa.R.Crim.P. 720(B)(3)(a).9

       On January 19, 2017, Appellant filed a Notice of Appeal from his

Judgment of Sentence.          Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

       Appellant raises the following four issues on appeal:

       1. Whether the Commonwealth presented legally insufficient
          evidence that Appellant, beyond a reasonable doubt, actively
          or constructively possessed the firearms, drugs, and drug
          paraphernalia relating to the crimes charged?

       2. Whether the trial court erred in denying a new trial based on
          violations by the Commonwealth of discovery obligations under
          the United States and Pennsylvania Constitutions, the
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9 Pa.R.Crim.P. 720(B)(3)(a) provides that “[i]f the judge fails to decide the
motion within 120 days, or to grant an extension as provided in paragraph
(B)(3)(b), the motion shall be deemed denied by operation of law.”        This
Court has found that a court breakdown occurs when the clerk of court fails
to enter an order notifying the appellant that his post-sentence motion was
denied by operation of law. Commonwealth v. Patterson, 940 A.2d 493,
498-99 (Pa. Super. 2007). Because the trial court clerk of courts failed to
enter an order notifying Appellant that his Post-Sentence Motion was denied
by operation of law at the expiration of 120 days, and the court did not do so
until January 18, 2017, we conclude that Appellant’s January 19, 2017 Notice
of Appeal is timely.

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         Pennsylvania Rules of Criminal Procedure[,] and the rule of
         Brady v. Maryland and its progeny, and after-discovered
         evidence concerning jail calls between the [c]o-defendant’s
         mother and [Appellant]?

      3. Did the trial court abuse its discretion in allowing the
         Commonwealth to introduce testimony from the expert witness
         to say that the presence of two handguns indicates that two
         people possessed a handgun, thereby offering an opinion as to
         guilt, over the objection by [Appellant’s] counsel?

      4. Was Appellant subjected to an illegal sentence with the [c]ourt
         ordered restitution to be paid when there was no victim as
         defined by the holding in Commonwealth v. Veon[, 150 A.3d
         435 (Pa. 2016)]?

Appellant’s Brief at 1.

                          Sufficiency of the Evidence

      Appellant’s first issue, in which he challenges the sufficiency of the

Commonwealth’s evidence in support of his convictions, is dispositive of this

appeal. In this issue, Appellant argues that because Appellant was in the back

seat of the vehicle and the police found the contraband in the front seat of the

vehicle, the Commonwealth failed to prove that Appellant not only knew about

the contraband, but also exercised dominion and control over it.

      We review claims regarding the sufficiency of the evidence by

considering 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.”

Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014) (citation and

quotation omitted).       Further, a conviction may be sustained wholly on

circumstantial evidence, and the trier of fact—while passing on the credibility


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J-S04030-18



of the witnesses and the weight of the evidence—is free to believe all, part, or

none of the evidence. Id. at 40 (citation and quotation omitted). “Because

evidentiary sufficiency is a matter of law, our standard of review is de novo

and our scope of review is plenary.” Commonwealth v. Brooker, 103 A.3d

325, 330 (Pa. Super. 2014).

      The jury convicted Appellant of both firearm charges and drug charges.

Both types of convictions require the Commonwealth to prove that Appellant

“possessed” the contraband. In particular, the firearm convictions were based

upon Section 6106 of the Uniform Firearms Act, which provides in relevant

part, that “any person who carries a firearm in any vehicle . . . without a valid

and lawfully issued license under this chapter commits a felony of the third

degree.” 18 Pa.C.S. § 6106(a)(1)(emphasis added).

      The drug convictions were based upon the Controlled Substance, Drug,

Device & Cosmetic Act, 35 P.S. § 780-101, et seq. Each of the subsections

require the Commonwealth to prove Appellant’s possession of contraband.

See 35 P.S. §§ 780-113(a)(16), (30), (32).         For example, Section 780-

113(a)(16) of the Controlled Substance, Drug, Device & Cosmetic Act requires

the Commonwealth to prove that a defendant “[k]nowingly or intentionally

possess[ed] a controlled or counterfeit substance.”          35 P.S. §§ 780-

113(a)(16) (emphasis added).

      The Crimes Code defines the term “possession” as “an act, within the

meaning of this section, if the possessor knowingly procured or received the




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thing possessed or was aware of his control thereof for a sufficient period to

have been able to terminate his possession.” 18 Pa.C.S. § 301(c).

                          Constructive Possession

      This Court has held that “[p]ossession can be found by proving actual

possession, constructive possession, or joint constructive possession.”

Commonwealth v. Heidler, 741 A.2d 213, 215 (Pa. Super. 1999). Where a

defendant is not in actual possession of the             prohibited items, the

Commonwealth must establish that the defendant had constructive possession

to support the conviction. Commonwealth v. Hopkins, 67 A.3d 817, 820

(Pa. Super. 2013) (conviction under 18 Pa.C.S. § 6106(a) supported by a

finding of constructive possession). See also Commonwealth v. Parker,

847 A.2d 745 (Pa. Super. 2004) (same). “Constructive possession is a legal

fiction, a pragmatic construct to deal with the realities of criminal law

enforcement.” Hopkins, supra at 820 (citation and quotation omitted). “We

have defined constructive possession as conscious dominion,” meaning that

the defendant has “the power to control the contraband and the intent to

exercise that control.”     Id. (citation and quotation omitted).        “To aid

application, we have held that constructive possession may be established by

the totality of the circumstances.” Id. (citation and quotation omitted).

      It is well established that, “[a]s with any other element of a crime,

constructive   possession   may   be    proven   by   circumstantial   evidence.”

Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996) (citation

omitted). In other words, the Commonwealth must establish facts from which

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the trier of fact can reasonably infer that the defendant exercised dominion

and control over the contraband at issue.         See, e.g., Commonwealth v.

Davis, 743 A.2d 946, 953-54 (Pa. Super. 1999) (holding that evidence was

sufficient to prove constructive possession over drugs found in common areas

of an apartment where the defendant entered the apartment using his own

key, and possessed $800 in cash on his person, and police recovered

defendant’s identification badge, size-appropriate clothing, and firearms from

a bedroom).

      Significant to the instant appeal, a defendant’s mere presence at a place

where contraband is found or secreted is insufficient, standing alone, to prove

that he exercised dominion and control over those items. Commonwealth

v. Valette, 613 A.2d 548, 551 (Pa. 1992). Thus, the location and proximity

of   an   actor   to   the   contraband   alone   is   not   conclusive   of   guilt.

Commonwealth v. Juliano, 490 A.2d 891, 893 (Pa. Super. 1985). Rather,

knowledge 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.      Id., citing Commonwealth v. Thompson, 428

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

      If the only inference that the fact finder can make from the facts is a

suspicion of possession, the Commonwealth has failed to prove constructive

possession. Valette, supra at 551. “It is well settled that facts giving rise

to mere ‘association,’ ‘suspicion’ or ‘conjecture,’ will not make out a case of

constructive possession.” Id.

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      In Juliano, supra, this Court reversed the defendant’s conviction of

Possession of a Counterfeit Controlled Substance where a satchel containing

the contraband was in the car before the defendant entered it. Following the

traffic stop that precipitated the defendant’s arrest, police observed the

satchel on the seat in which the defendant had been sitting. On appeal, this

Court found that even though the defendant knew of the existence and

location of a satchel, the Commonwealth failed to adduce sufficient evidence

from which the factfinder could reasonably infer that the defendant knew of

the contents of the satchel. Id. at 892-94.

      Similarly, in Commonwealth v. Duffy, 340 A.2d 869 (Pa. Super.

1975), this Court reversed the defendant’s conviction of Possession of

Burglary Tools and a violation of the Uniform Firearms Act.         There, the

defendant was a passenger in a car that police pulled over for an inoperative

taillight. A search of the vehicle revealed a pistol far beneath the passenger

front row seat, a mask and gloves in the glove compartment, and burglary

tools in the back seat. This Court found that the Commonwealth failed to

prove that the defendant knew of the presence of the burglary tools and the

firearm, and, thus, failed to prove that he had the requisite intent to exercise

control. Id. at 870.

      In the instant case, Appellant was sitting in the back the vehicle on the

driver’s side. The police located all of the contraband in the front of the car.

In particular, the police found the black satchel containing contraband on the




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passenger-side floor of the front of the vehicle, the gun under the front

passenger-side seat, and marijuana on the front passenger door.

      Moreover, the evidence also established that Appellant was not carrying

any type of bag when he entered the car; he did not have keys to the car, and

was not the owner or operator of it. There is no evidence that Appellant had

ever been seated in either of the car’s front seats. Neither of the recovered

firearms was registered to him and there was no fingerprint evidence for either

weapon.

      Following our review of the evidence, we fail to see how the jury could

reasonably infer that Appellant had knowledge of the contraband in the black

bag located in the front row of the vehicle, let alone exercise dominion and

control over its contents. The only evidence presented regarding the black

bag in the vehicle was its location and that Appellant did not carry a black bag

into the vehicle. From this, it is not reasonable for the jury to conclude that

Appellant knew about the contents of the black bag and exercised dominion

and control over it.

      Similarly, we fail to see how the jury could reasonably conclude that

Appellant, while sitting in the back seat of the vehicle, had dominion and

control over the gun under the passenger-side front seat and the marijuana

on front passenger-side door. Rather, the evidence reveals that Appellant was

merely present on the driver’s side of the back seat of Mr. Riddick’s car, while

police officers discovered the contraband on the passenger side of the front

row of the vehicle.

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      Simply stated, the Commonwealth did not present any evidence from

which it would be reasonable for the jury to infer that Appellant had knowledge

of or exercised dominion and control over the contraband.

      Moreover, to the extent that Officer Bevliaqua intended to attribute the

rocking of the vehicle that he observed following the commencement of the

traffic stop to Appellant jettisoning himself away from the contraband located

in the front seat, we conclude that, absent other evidence, it is equally

reasonable to infer that the rocking was caused by Riddick—who police

discovered   straddling   the   center   console—attempting        to   obscure   his

contraband from sight. In addition, given the evidence regarding Appellant’s

height and weight, and the size of the vehicle, it strains credulity to conclude

that Appellant was able to propel himself from the front seat to the back seat

in the short time it took for the officers to reach the vehicle.

      Notwithstanding Detective Palka’s opinion that, in his experience, the

presence of two firearms generally indicates that each occupant possessed a

gun, we cannot agree that this evidence is sufficient for a factfinder to

conclude that Appellant possessed the firearm in this case.

      Thus, the Commonwealth’s circumstantial evidence was insufficient to

prove that Appellant constructively possessed the contraband. Because the

trial court’s conclusion was not supported by sufficient evidence, even when




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viewing that evidence in the light most favorable to the Commonwealth, we

are constrained to reverse Appellant’s Judgment of Sentence.10

       Judgment of Sentence reversed.              Appellant discharged.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/15/2018




____________________________________________


10In light of this disposition, we need not address the merits of Appellant’s
remaining issues.

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