J-S06021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KEVIN KIMBLE

                            Appellant                  No. 152 EDA 2014


             Appeal from the Judgment of Sentence June 23, 2009
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011107-2008


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED FEBRUARY 02, 2015

        Kevin Kimble appeals from his judgment of sentence imposed in the

Court of Common Pleas of Philadelphia County after he was convicted,

following a nonjury trial, of one count each of possession with intent to

deliver1 (“PWID”) and knowing and intentional possession.2       After careful

review, we affirm.

        On the evening of April 17, 2008, Philadelphia Police Officer Patrick

Banning was conducting surveillance on the 300 block of Wilton Street in the

City and County of Philadelphia. During the span of approximately one half

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(16).
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hour, Officer Banning witnessed Kimble engage in five separate, yet similar,

exchanges in which one or more individuals would approach him, speak

briefly with him, and hand him money.            Kimble would then bend down

behind a white Saturn automobile parked directly in front of Officer Kimble’s

car, reach under the bumper and reemerge with a plastic bag in his hand.

He would then hand the plastic bag to the other individual(s).       Two of

Kimble’s “customers,” fitting descriptions provided by Officer Banning, were

subsequently apprehended and found to possess “small orange-tinted zip-

lock packets containing an off-white, chunky substance that later tested

positive for the presence of cocaine.” Trial Court Opinion, 7/30/14, at 4. At

the direction of Officer Banning, Officer Duane Watson arrested Kimble and

recovered from his person $189 in U.S. currency. Also at Officer Banning’s

direction, Officer Michael Waters recovered from the rear bumper of the

Saturn a plastic bag containing sixty-six orange-tinted Ziploc packets, each

containing an off-white chunky substance that later tested positive for the

presence of cocaine.

        Kimble was tried before the Honorable Charles J. Cunningham, III, on

June 23, 2009, and found guilty of PWID and possession. At the conclusion

of trial, Kimble was sentenced to one to five years’ imprisonment.      After

filing a petition under the Post Conviction Relief Act,3 Kimble’s direct


____________________________________________


3
    42 Pa.C.S.A. §§ 9541-9546.



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appellate rights were reinstated, nunc pro tunc. This timely appeal follows,

in which Kimble challenges the sufficiency of the evidence to prove that he

possessed the narcotics in question.

      Whether sufficient evidence exists to support the verdict is a question

of law; our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Murray, 83 A.3d 137, 151 (Pa. 2013). We review the

evidence in the light most favorable to the verdict winner to determine

whether there is sufficient evidence to allow the jury to find every element of

a crime beyond a reasonable doubt.       Commonwealth v. Cahill, 95 A.3d

298, 300 (Pa. Super. 2014).

      In applying the above test, we may not weigh the evidence and
      substitute our judgment for the factfinder. 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 finder 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.

Id.

      A person is guilty of PWID when he possesses a controlled substance

with the intent to deliver it. 35 P.S. § 780-113(a)(30). Possession can be

found by proving actual possession, constructive possession or joint



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constructive possession. Commonwealth v. Gutierrez, 969 A.2d 584, 590

(Pa. Super. 2009), citing Commonwealth v. Heidler, 741 A.2d 213, 215

(Pa. Super. 1999).       Constructive possession is the ability to exercise

conscious control or dominion over the illegal substance and the intent to

exercise that control.   Commonwealth v. Kirkland, 831 A.2d 607, 610

(Pa. Super. 2003) (citation omitted).     The intent to exercise conscious

dominion can be inferred from the totality of the circumstances. Id.

     Here, Kimble argues that the Commonwealth failed to prove that he

possessed the narcotics because he did not have drugs on his person and

the Commonwealth did not show any connection between Kimble and the

Saturn automobile. Kimble’s argument misses the mark.

     In order to establish constructive possession, the Commonwealth was

not required to prove that Kimble owned the Saturn or even knew who did.

Repeatedly, Officer Banning witnessed Kimble retrieve plastic baggies from

the bumper of the car and deliver them to his customers. Moreover, Officer

Banning did not witness anyone else approach the bumper or handle the

drugs during the relevant period.    Two of Kimble’s customers were later

apprehended and found to be in possession of the same orange-colored

baggies Kimble retrieved from the Saturn’s bumper. The Commonwealth’s

evidence established Kimble’s actual and repeated connection to the drugs

hidden in the vehicle’s bumper.

     The facts of this case are nearly identical to Commonwealth v. Lee,

956 A.2d 1024 (Pa. Super. 2008). There,

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          Philadelphia police officers observed Lee engage in two hand-to-
          hand drug transactions in which money was exchanged for small
          items retrieved from a stash in a nearby vacant lot. Subsequent
          to the first transaction, Police recovered a pink-tinted Ziploc
          packet containing crack cocaine from the first buyer. When
          police arrested Lee following the second transaction, they
          recovered $40.00 from his person.            Additionally, police
          discovered 49 pink-tinted Ziploc packets containing crack
          cocaine from the vacant lot adjacent to the location at which the
          hand-to-hand transactions had taken place. The secreted Ziploc
          packets of cocaine were identical to the pink-tinted packet police
          recovered from the first buyer. Additionally, Lee did not possess
          any drug paraphernalia that would indicate personal use of the
          drugs recovered.

Id. at 1028.

          Based on Lee, and the ample evidence adduced at trial demonstrating

Kimble’s constructive possession of the cocaine, Kimble is entitled to no

relief.

          Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2015




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