J-S27024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JAMIL SMITH

                            Appellant                 No. 1449 EDA 2014


          Appeal from the Judgment of Sentence Entered April 3, 2014
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0010074-2011


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                              FILED JULY 20, 2015

        Appellant, Jamil Smith, appeals from the April 3, 2014 judgment of

sentence imposing an aggregate seven to fourteen years of incarceration

followed by five years of probation for possession with intent to deliver a

controlled substance (“PWID”), unlawful possession of a firearm, and

possession of an instrument of crime.1 We affirm.

        The transcript for Appellant’s pre-trial motion to suppress2 reveals

that, on February 26, 2011 at 2:45 a.m., Officers Timothy Straus (“Officer

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 6105 and 907, respectively.
2
   The first of Appellant’s three assertions of error is that the trial court
wrongly denied his motion to suppress evidence.           In analyzing that
(Footnote Continued Next Page)
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Straus”) and his partner were on patrol in the 35th police district of

Philadelphia when they received a report of three armed males breaking into

a home.     N.T. Hearing, 7/18/12, at 14-15.            The armed men entered the

home from an alleyway north of Spencer Street. Id. The officers arrived at

the location in less than one minute and observed two men jumping over a

fence from the backyard of a home located at 253 West Spencer Street. Id.

at 16, 31. The officers stopped these two men and did a pat down search

for safety. Id. The pat-down search revealed rolls of duct tape and packing

tape. Id. One suspect had a single glove on him. Id. The matching glove

and a second pair of gloves were in the back yard.                Id.    Officer Straus

observed a shotgun and handgun laying on a mattress in the backyard the

two detainees just departed.           Id.       The home had a broken window and

broken glass and a screwdriver were visible on the mattress next to the

guns. Id. at 16-17. The officers knocked on the back door and received no

answer, then entered the home to search for potential victims and/or the

third armed male referenced in the report.              Id. at 18, 25.   They entered

through the broken window because they could not get in through the door.

Id. at 18, 43.

      A black female came downstairs and met the officers. Id. They briefly

detained her and then proceeded upstairs to secure bedrooms. Id. In one
                       _______________________
(Footnote Continued)

argument, we confine our review to the transcript of the suppression
hearing. In re L.J., 79 A.3d 1073, 1082-85 (Pa. 2014).



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of the upstairs bedrooms the officers found Appellant in bed with a black

female.   Id. at 18-19.    Also on the bed was a dinner plate with apparent

narcotics and packaging material on it. Id. at 19. When asked, Appellant

acknowledged that two guns were underneath the mattress. Id. at 21. The

officers took Appellant into custody and secured the house as a crime scene

and obtained a search warrant. Id. at 22, 31.

      Officer Anthony Parrotti (“Officer Parrotti”) executed the search

warrant. Id. at 31. During the search, Officer Parrotti discovered suspected

marijuana, crack cocaine, Xanax, Percocet and methadone in the dining

room. Id. at 32. In the second floor bedroom, where police apprehended

Appellant, Officer Parrotti discovered more suspected marijuana and crack

cocaine and paraphernalia, including a digital scale and drug packaging

materials.    Id. at 33.   Officer Parrotti also recovered two revolvers from

underneath the bed, a .38 caliber and a .32 caliber, each with five live

rounds.      Id. at 33-34.    The second floor bedroom also had a small

refrigerator in which Officer Parrotti found suspected PCP. Id. at 34. Officer

Parrotti found more than $1,200.00 in cash on a dresser.      Id. Field tests

confirmed the presence of marijuana and cocaine base, and Officer Parrotti

submitted the pills for laboratory sampling. Id.

      Yasmine Strong (“Strong”), the female who met police at the bottom

of the steps, testified for the defense.   She stated police knocked at the

house’s front gate, which she did not have a key to unlock.        Id. at 58.


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Police asked her to squeeze through a space in the gate and then handcuffed

her before they entered the home by breaking the front door.      Id. at 59.

When she returned to the home the next day, she did not observe any of the

bedroom doors to be broken. Id. at 60.

     Appellant argues the police had no probable cause and exigent

circumstances to support the initial warrantless entry into the home.     He

argues the trial court erred in denying his motion to suppress the evidence

garnered during the initial entry of the home and during the execution of the

search warrant. We conduct our review as follows:

           Our standard of review in addressing a challenge to the
     denial of a suppression motion is limited to determining whether
     the suppression court’s factual findings are supported by the
     record and whether the legal conclusions drawn from those facts
     are correct. Because the Commonwealth prevailed before the
     suppression court, we may consider only the evidence of the
     Commonwealth and so much of the evidence for the defense as
     remains uncontradicted when read in the context of the record
     as a whole. Where the suppression court’s factual findings are
     supported by the record, we are bound by these findings and
     may reverse only if the court’s legal conclusions are erroneous.
     Where, as here, the appeal of the determination of the
     suppression court turns on allegations of legal error, the
     suppression court’s legal conclusions are not binding on an
     appellate court, whose duty it is to determine if the suppression
     court properly applied the law to the facts.           Thus, the
     conclusions of law of the courts below are subject to our plenary
     review.

Com. v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012), appeal denied,

65 A.3d 413 (Pa. 2013).

     The Fourth Amendment to the United States Constitution and Article 1,

§ 8 of the Pennsylvania Constitution protect citizens against unreasonable

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searches and seizures.   Both constitutions forbid police to enter a private

home without a warrant absent probable cause and an exception to the

warrant   requirement,   such    as   consent    or   exigent   circumstances.

Commonwealth v. Johnson, 68 A.3d 930, 935 (Pa. Super. 2013).

Probable cause exists where “the facts and circumstances which are within

the knowledge of the officer at the time of the arrest, and of which he has

reasonably trustworthy information, are sufficient to warrant a man of

reasonable caution in the belief that the suspect has committed or is

committing a crime.” Commonwealth. v. Thompson, 985 A.2d 928, 931

(Pa. 2009). We need not discern whether the officer’s belief was more likely

correct than incorrect. Id. A probability of criminal activity, rather than a

prima facie showing thereof, is sufficient. Id. To answer the question, we

examine the totality of the circumstances. Id.

      Here, police received a radio report of a possible armed robbery. We

can assess the reliability of information known to the police in various ways,

including the extent to which police are able verify it. Commonwealth v.

Santiago, 736 A.2d 624, 630 (Pa. Super. 1999), appeal denied, 736 A.2d

624 (Pa. 2000). Officer Straus and his partner responded to the scene in

less than one minute. Officer Straus observed two men leap over a fence

from a yard into an alley. Firearms were visible on a mattress in the yard,

as was broken glass, a broken window and a screwdriver. Thus, the record




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indicates police responded quickly to the report and upon arrival at the

scene observed circumstances consistent with the report.

      The trial court found that the screwdriver, the tape and the gloves

were consistent with burglary tools. Trial Court Opinion, 8/26/14, at 4. The

trial court also relied on the quick response time, the presence of firearms in

the backyard, and the broken window to conclude that probable cause

existed.   Id.     Appellant’s argument to the contrary is that the police

gathered no evidence to support their theory that a third individual was

inside the home.      Appellant also argues that the police made insufficient

efforts to make contact with someone inside the home before they entered.

      Given the totality of the circumstances, we find no error in the trial

court’s legal conclusion.   Police arrived at the scene of an alleged armed

home invasion less than sixty seconds after receiving the report, and

observed circumstances consistent with the report. The absence of a third

armed suspect upon the arrival of the police does not support a contrary

conclusion.      Rather, police could reasonably believe the third suspect

remained inside the home or that victims inside the home were in need of

assistance. Considering the totality of the circumstances, the record of the

suppression hearing supports at least a reasonable probability that criminal

activity was afoot inside the home.

      Next, we examine the trial court’s finding that exigent circumstances

existed.


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             [V]arious factors need to be taken into account to assess
      the presence of exigent circumstances; for example: (1) the
      gravity of the offense; (2) whether the suspect is reasonably
      believed to be armed; (3) whether there is a clear showing of
      probable cause; (4) whether there is a strong reason to believe
      that the suspect is within the premises being entered; (5)
      whether there is a likelihood that the suspect will escape if not
      swiftly apprehended; (6) whether the entry is peaceable; (7) the
      timing of the entry; (8) whether there is hot pursuit of a fleeing
      felon; (9) whether there is a likelihood that evidence will be
      destroyed if police take the time to obtain a warrant; and (10)
      whether there is a danger to police or other persons inside or
      outside of the dwelling to require immediate and swift action.

Johnson, 68 A.3d at 937 (quoting Commonwealth v. Dean, 940 A.2d

514, 522 (Pa. Super. 2008)).       In analyzing exigent circumstances, courts

must balance the needs of law enforcement against the rights and liberties

of private citizens.   Id.   “The burden is on the Commonwealth to ‘present

clear and convincing evidence that the circumstances surrounding the

opportunity to search were truly exigent ... and that the exigency was in no

way attributable to the decision by the police to forego seeking a warrant.’”

Com. v. Bostick, 958 A.2d 543, 556-57 (Pa. Super. 2008) (quoting

Commonwealth v. English, 839 A.2d 1136, 1141 (Pa. Super. 2003)),

appeal denied, 987 A.2d 158 (Pa. 2009). “Moreover, ‘[a]ll decisions made

pursuant to the exigent circumstances exception must be made cautiously,

for it is an exception which by its nature can very easily swallow the rule

unless applied in only restricted circumstances.’” Id.

      We consider the ten factors described in Johnson in order.           First,

police acted on a report of three armed men burglarizing a home. Appellant



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does not deny that armed intrusion into a private home is a grave offense.

Second, police apprehended two of three suspects and observed two

firearms in the backyard upon their prompt arrival at the scene. Police could

reasonably believe that the third suspect remained armed.      Regarding the

third factor, we have already explained that police had probable cause to

believe a crime was committed in the home. Fourth, police arrived at the

home within a minute of the report and found two of the three suspects

described in the report.      Given the prompt response time, police could

reasonably believe that the third suspect was still present and potentially

inside the home. Fifth, two of the three suspects were leaving the premises

upon the arrival of police.   Police therefore had reason to believe that the

reported third suspect would escape if they did not promptly apprehend him.

Sixth, Officer Straus testified that he knocked and announced his presence,

received no answer, and then entered the home through the broken window

with another officer.   The trial court did not credit Strong’s testimony

regarding the forced entry through the front door.

     The seventh factor—timing—refers to the time of day of the search.

Commonwealth v. Waddell, 61 A.3d 198, 211 (Pa. Super. 2012).

Nighttime searches are “particularly suspect.” Commonwealth v. Roland,

637 A.2d 269, 271 (Pa. 1994). Here police entered the home in the early

morning hours of February 26, 2011. The timing, however, was dictated by

a report of a robbery or burglary in progress. Eighth, the record does not


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reflect hot pursuit of a fleeing felon. Nonetheless, the facts known to police

created a strong possibility that a third suspect was present and could

escape if not quickly apprehended.    Ninth, nothing in the record indicates

the police entered the home to prevent destruction of evidence. Tenth, an

invasion of a private home by three armed intruders created a danger to any

occupants of the home. Immediate entry gave the police the opportunity to

apprehend a third armed suspect and render assistance to any victims.

      In Commonwealth v. Griffin, 785 A.2d 501, 505-06 (Pa. Super.

2001), this Court held that police lawfully entered a home where they had

probable cause to believe felonious drug activity was occurring inside and

they observed an armed suspect retreat into the home.       The potential for

destruction of evidence combined with the danger presented by an armed

suspect under cover of nightfall justified immediate entry rather than

securing the home pending a warrant. Id. at 506.

      We believe the same result obtains here. Based on information known

to them at the time of warrantless entry, the police reasonably believed they

were at the scene of an armed home invasion possibly still in progress.

Apprehension of a third armed suspect would protect the police and any

lawful occupants of the home. In other words, the entry of the home was an

effort to protect rather than intrude upon the rights of lawful occupants. We

therefore believe the balance between the interests of law enforcement and

the rights of private citizens tips in favor of law enforcement in this case.


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The trial court did not err in finding that exigent circumstances justified

warrantless entry into the home. Appellant’s first argument lacks merit.

       In his remaining arguments, Appellant challenges the sufficiency and

weight of the evidence in support of each of his convictions.       We must

therefore review the record to determine:

              [W]hether the evidence admitted at trial, and all
       reasonable inferences drawn from that evidence, when viewed in
       the light most favorable to the Commonwealth as verdict winner,
       was sufficient to enable the factfinder to conclude that the
       Commonwealth established all of the elements of the offense
       beyond a reasonable doubt.        Additionally, when examining
       sufficiency issues, we bear in mind that: the Commonwealth’s
       burden may be sustained by means of wholly circumstantial
       evidence; the entire trial record is evaluated and all evidence
       received against the defendant considered; and the trier of fact
       is free to believe all, part, or none of the evidence when
       evaluating witness credibility.

Commonwealth v. Crabill, 926 A.2d 488, 490-91 (Pa. Super. 2007).

       Appellant argues the record lacks sufficient evidence of his possession

of the drugs and firearms present in the bedroom where police apprehended

him.   Appellant acknowledges that he was a resident of the home (mail

recovered during execution of the search warrant confirmed this fact), but

he argues the evidence is not sufficient to prove the contraband belonged to

him rather than one of the two females present at the time of his arrest.

Appellant’s Brief at 21. In other words, Appellant argues the Commonwealth

failed to prove beyond a reasonable doubt his constructive possession of the

drugs and firearms.




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             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. Hopkins, 67 A.3d 817, 820, (Pa. Super. 2013), appeal

denied, 78 A.3d 1090 (2013).       The factfinder can find the defendant in

constructive possession of contraband in a home where the defendant has

equal access and the items are in plain view. Commonwealth v. Mudrick,

507 A.2d 1212, 1214 (Pa. 1986). A defendant’s residence in and receipt of

mail at a home support a conclusion that he is in constructive possession of

contraband found therein. Commonwealth v. Harvard, 64 A.3d 690, 699-

700   (Pa.   Super.   2013),   appeal   denied,   77   A.3d   636   (Pa.   2013);

Commonwealth v. Guitierez, 969 A.2d 584, 590-91 (Pa. Super. 2009),

appeal denied, 983 A.2d 726 (Pa. 2009).

      In Commonwealth v. Santiesteban, 552 A.2d 1072, 1075 (Pa.

Super. 1988), the defendant was in bed with a female when police

apprehended him. Police found large amounts of cash in the bedroom and

other contraband on the first floor of the house. Citing Mudrick, this Court

found sufficient evidence of the defendant’s constructive possession of the

contraband.




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     The facts produced at trial were, in pertinent part, the same as those

produced during the suppression hearing.        That is, police apprehended

Appellant in a bedroom where they also found substantial quantities of

drugs, drug paraphernalia, cash and two firearms.         Two females were

present in the home with Appellant, including Strong, who claimed to live

there, and the woman in bed with Appellant. Since Appellant resided in the

home, received mail there, and had equal access to contraband found in

plain view and in his bedroom, we conclude the record contains sufficient

evidence of his constructive possession of the controlled substances and

firearms that formed the basis for all three of his conviction.    Appellant’s

argument to the contrary, which fails to cite any portion of the record in

violation of Pa.R.A.P. 2119(c), states in conclusory fashion that the illicit

items could have belonged to one of the two females present.                That

argument does not merit relief.

     Finally, Appellant argues the jury’s verdict is contrary to the weight of

the evidence.

            The weight given to trial evidence is a choice for the
     factfinder. If the factfinder returns a guilty verdict, and if a
     criminal defendant then files a motion for a new trial on the
     basis that the verdict was against the weight of the evidence, a
     trial court is not to grant relief unless the verdict is so contrary
     to the evidence as to shock one’s sense of justice.

           When a trial court denies a weight-of-the-evidence motion,
     and when an appellant then appeals that ruling to this Court, our
     review is limited. It is important to understand we do not reach
     the underlying question of whether the verdict was, in fact,
     against the weight of the evidence. We do not decide how we

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      would have ruled on the motion and then simply replace our own
      judgment for that of the trial court.     Instead, this Court
      determines whether the trial court abused its discretion in
      reaching whatever decision it made on the motion, whether or
      not that decision is the one we might have made in the first
      instance.

Commonwealth v. West, 937 A.2d 516, 521 (2007), appeal denied, 947

A.2d 737 (Pa. 2008).

      The entirety of Appellant’s argument—other than his recitation of the

standard of review—is that the jury’s verdict was incorrect because two

other people were in the house when police apprehended Appellant.

Appellant’s Brief at 23-24. As we discussed in connection with Appellant’s

sufficiency of the evidence argument, equal access to items in plain view can

establish constructive possession.   We discern nothing shocking about the

jury’s verdict.   The trial court did not abuse its discretion in declining to

award a new trial based on Appellant’s weight of the evidence challenge.

Appellant’s argument fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2015




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