J-S30031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TEKEESHA L. LOVELACE

                            Appellant                  No. 3240 EDA 2014


             Appeal from the Judgment of Sentence July 18, 2014
               In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0000458-2014
                                         CP-15-CR-0001478-2014



BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                               FILED JULY 14, 2015

       Appellant Tekeesha Lovelace appeals from the judgment of sentence

entered in the Chester County Court of Common Pleas following her jury trial

conviction for possession of a controlled substance.1 We affirm.

       The trial court sets forth the relevant facts of this appeal as follows:

             On November 29, 2013 at approximately 2:45 p.m.,
       Officer Marquette and Officer Corcoran of the Coatesville City
____________________________________________


1
  35 P.S. § 780-113(a)(16). In addition to possession of a controlled
substance, Appellant was convicted of driving under the influence of a
controlled substance (“DUI”) (75 Pa.C.S. § 3802(d)(2)), endangering welfare
of children (18 Pa.C.S. § 4304(a)(1)), possession of drug paraphernalia (35
P.S. § 780-113(a)(32)), and recklessly endangering another person (18
Pa.C.S. § 2705). Appellant challenges only her possession of a controlled
substance conviction in the instant appeal.
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     Police Department were on duty in full uniform in a marked
     patrol vehicle. They were travelling in the area of South 6 th
     Avenue and Olive Street in Coatesville, Chester County,
     Pennsylvania, when they observed a dark colored SUV with dark
     tinting on the front driver’s side and front passenger’s side
     windows. Due to the level of tinting, neither Officer was able to
     see into the vehicle through the front passenger’s side window.
     The SUV began to move, and Officer Marquette was able to see
     the driver through the vehicle’s front windshield, which was not
     tinted. He immediately recognized the driver as [Appellant].
     Based upon prior contacts with [Appellant], Officer Marquette
     believed her driving privileges were suspended. He radioed into
     dispatch, and Corporal Ingemie of the Coatesville City Police
     Department confirmed that [Appellant’s] license was, in fact,
     suspended.      Based upon this information, Officer Marquette
     initiated a traffic stop.

            Officer Marquette approached [Appellant] and requested
     her license, registration and insurance information. [Appellant]
     told him that she had no license to provide. While speaking with
     [Appellant], Officer Marquette noticed a chemical smell
     emanating from the vehicle. He also observed that [Appellant]
     was swaying, her eyes were wandering, and she could not
     formulate complete sentences. He also observed three small
     children, ages eight (8), four (4) and one (1) years old, in the
     back seat of the vehicle, some of whom were not properly
     restrained.

           Corporal Ingemie and Officer Galletta of the Coatesville
     City Police Department arrived on the scene while the traffic stop
     was taking place. Officer Galletta then conducted field sobriety
     tests (hereinafter “FSTs”) on [Appellant]. At one point, he had
     to support [Appellant] to keep her from falling.         At first,
     [Appellant] was fairly lethargic, but she became more aggressive
     and combative while the FSTs were being administered.

           Based on the foregoing, [Appellant] was charged with
     [DUI], [d]riving while [o]perating [p]rivilege is [s]uspended or
     [r]evoked, [r]ecklessly [e]ndangering [a]nother [p]erson,
     [e]ndangering [w]elfare of [c]hildren, and related offenses. She
     was placed under arrest and asked to submit to a blood test, but
     she refused.

           During the stop, a “dipper” was found in plain view in the
     center console of the vehicle by Corporal Ingemie. A “dipper” is


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      a cigarette that is dipped into a chemical such as PCP and then
      smoked. The “dipper” was bagged and sent to the lab for
      analysis. It tested positive for PCP. After the police received the
      lab report confirming the presence of PCP, [Appellant] was also
      charged with Possession of a Controlled Substance.

Trial Court Opinion, filed July 1, 2014, at 1-3.

      After a three-day trial, a jury found Appellant guilty of DUI,

endangering welfare of children, possession of a controlled substance,

possession of drug paraphernalia, and recklessly endangering another

person. The trial court sentenced her to an aggregate of 8 to 23 months’

incarceration followed by 3 years’ probation. Appellant filed a post-sentence

motion seeking dismissal of all charges, reversal of all convictions, and/or a

new trial, which the court denied on October 20, 2014.        Appellant timely

filed her notice of appeal on November 17, 2014. Both Appellant and the

trial court complied with Pa.R.A.P. 1925.

      Appellant raises the following issues for our review:

            [1.] The trial [court] erred when it failed to reverse the
      verdict of guilty of the [p]ossession of a [c]ontrolled [s]ubstance
      when the court in reviewing the sufficiency of the evidence found
      that there is sufficient evidence to enable the fact-finder to find
      every element of the crime beyond a reasonable doubt.

             [2.] The Appellant is entitled to a new trial as facts
      presented at trial indicated that the Appellant was not guilty
      were so clearly of greater weight that to have ignored them or to
      give them equal weight with all the facts was to deny Appellant
      justice.     Commonwealth v. Cesar, 911 A.2d 978
      (Pa.Super.2006).

Appellant’s Brief, p. 4.




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      Appellant first claims that the Commonwealth adduced insufficient

evidence to support her conviction for possession of a controlled substance.

See Appellant’s Brief, pp. 12-19.     Specifically, Appellant argues that the

Commonwealth failed to prove Appellant actually or constructively possessed

the PCP-laced cigarette found in her vehicle. See id. Her argument relies

solely on the fact that, at the time police pulled her over, there was an

individual in the passenger’s seat of her vehicle whom the police later

released. Id.   Appellant contends that, because this passenger had equal

access to the PCP-laced cigarette, the Commonwealth failed to prove that

she herself possessed the PCP-laced cigarette. Id. This claim lacks merit.

      When examining a challenge to the sufficiency of evidence, this Court’s

standard of review is as follows:

      The standard we apply in reviewing the sufficiency of the
      evidence is 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. In applying [the above] test,
      we may not weigh the evidence and substitute our judgment for
      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.

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Commonwealth v. Smith, 97 A.3d 782, 790 (Pa.Super.2014).

      The offense of possession of a controlled substance makes illegal:

      Knowingly or intentionally possessing a controlled or counterfeit
      substance by a person not registered under [The Controlled
      Substance, Drug, Device and Cosmetic 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 [The Controlled Substance, Drug,
      Device and Cosmetic Act].

35 P.S. § 780-113(a)(16).

      Possession of a controlled substance may be either actual or

constructive.     Commonwealth        v.   Aviles,   615   A.2d   398,     401

(Pa.Super.1992). Where police do not find drugs on a defendant’s person,

the Commonwealth can only properly convict by proving constructive

possession. Id.

      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. Parker, 847 A.2d 745, 750 (Pa.Super.2004). “As 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). “The intent to exercise conscious dominion can be inferred

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from the totality of the circumstances.” Commonwealth v. Kirkland, 831

A.2d 607, 610 (Pa.Super.2003). Further, “[c]onstructive possession may be

found in one or more actors where the item in issue is in an area of joint

control and equal access.” Commonwealth v. Valette, 613 A.2d 548, 550

(Pa.1992);     see also Commonwealth v. Haskins, 677 A.2d 328, 330

(Pa.Super.1996) (multiple people may constructively possess the same

item).

       The trial court summarized the trial evidence thusly:

       The record reflects that [Appellant] was the owner and driver of
       the vehicle in which the PCP[-]laced cigarette was found. When
       police approached [Appellant’s] vehicle for a window tinting
       violation, they noticed that [Appellant’s] eyes were bloodshot
       and moving erratically from side to side, her head was swaying
       and she had a hard time formulating sentences. She had a hard
       time keeping her balance and she used her arm to steady herself
       when she walked around the vehicle.            The officer saw a
       discolored cigarette filter in plain view in the center console[2]
       and could detect the smell of PCP (a distinctive sweet chemical
       smell) emanating from the car. While the front seat passenger
       of the vehicle was identified, she did not stagger, slur her words,
       or show any other sign of being intoxicated or impaired. Even
       though [Appellant] attempted to claim that the PCP[-]laced
       cigarette belonged to the passenger in her car, the jury did not
       believe her.

Trial Court Pa.R.A.P. 1925(a) Opinion (“1925(a) Opinion)”, filed February 3,

2015, p. 4.      This evidence established the elements of possession of a

____________________________________________


2
 We note that the center console where police saw the “dipper” constitutes
an area of joint control and equal access to both Appellant and her
passenger.



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controlled substance beyond a reasonable doubt. The fact that police did not

charge the passenger with possession of a controlled substance does not

render Appellant innocent of the crime. Accordingly, Appellant’s sufficiency

of the evidence claim fails.

      Appellant next claims that the verdict was against the weight of the

evidence.    See Appellant’s Brief, p. 20-26.      Appellant bases this claim on

minor inconsistencies in the police officers’ testimony and an alleged custody

chain failure regarding the PCP-laced cigarette.          See id.   She is again

incorrect.

      The denial of a new trial based on a lower court’s determination that

the verdict was not against the weight of the evidence is one of the least

assailable   reasons   for     granting    or   denying   a   new   trial.   See

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.2013).                    This Court

reviews weight of the evidence claims pursuant to the following standard:

      A motion for new trial on the grounds that the verdict is contrary
      to the weight of the evidence, concedes that there is sufficient
      evidence to sustain the verdict. Thus, the trial court is under no
      obligation to view the evidence in the light most favorable to the
      verdict winner. An allegation that the verdict is against the
      weight of the evidence is addressed to the discretion of the trial
      court. 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. A trial judge must
      do more than reassess the credibility of the witnesses and allege
      that he would not have assented to the verdict if he were a
      juror. Trial judges, in reviewing a claim that the verdict is
      against the weight of the evidence do not sit as the thirteenth
      juror. Rather, the role of the trial judge is to determine that
      notwithstanding all the facts, certain facts are so clearly of



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       greater weight that to ignore them or to give them equal weight
       with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal

citations, quotations, and footnote omitted).

       Stated differently, a court may award a new trial because the verdict is

against the weight of the evidence only when the verdict is so contrary to

the evidence as to shock one’s sense of justice, 3 “such that right must be

given another opportunity to prevail.” Commonwealth v. Goodwine, 692

A.2d 233, 236 (Pa.Super.1997).            Moreover, appellate review of a weight

claim consists of a review of the trial court’s exercise of discretion, not a

review of the underlying question of whether the verdict is against the

weight of the evidence.        Widmer, 744 A.2d at 753.      When reviewing the

trial court’s determination, this Court gives the gravest deference to the

findings of the court below. We review the court’s actions for an abuse of

discretion. Id.

____________________________________________


3
 This Court has explained the notion of “shocking to one’s sense of justice”
as follows:

       When the figure of Justice totters on her pedestal, or when the
       jury’s verdict, at the time of its rendition, causes the trial judge
       to lose his breath, temporarily, and causes him to almost fall
       from the bench, then it is truly shocking to the judicial
       conscience.

Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.Super.2004)
(internal citations and quotations omitted).




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      Simply stated, the jury’s verdict in this matter illustrates that the jury

found the testimony of the Commonwealth’s witnesses credible, and

Appellant’s testimony incredible. This evidence, as discussed supra, proved

every element of the crime of possession of a controlled substance. The trial

court agreed with the jury’s assessment in denying Appellant’s post-

sentence motion for a new trial based on the weight of the evidence. As the

trial court noted, nothing about the verdict or the trial court’s reasoning

shocks the conscience. See 1925(a) Opinion, p. 5. Thus, Appellant’s weight

of the evidence claim warrants no relief.

      For the preceding reasons, we affirm Appellant’s judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2015




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