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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
GILBERT BYRD,                               :
                                            :
                          Appellant         :
                                            :     No. 3742 EDA 2015

           Appeal from the Judgment of Sentence November 25, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008931-2015

BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.:                           FILED JANUARY 25, 2017

        Appellant, Gilbert Byrd, appeals from the Judgment of Sentence

entered by the Philadelphia County Court of Common Pleas following his

conviction after a bench trial of Possession with Intent to Deliver Controlled

Substances (“PWID”).1 After careful review, we conclude that (i) there was

sufficient evidence to support the trial court’s verdict; and (ii) the trial

court’s verdict was not against the weight of the evidence. Accordingly, we

affirm.

        Appellant was arrested and charged with, inter alia, PWID and

Conspiracy to Commit PWID. On November 25, 2015, Appellant proceeded



*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
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to a bench trial before the Honorable Giovanni O. Campbell.     At trial, the

parties stipulated that if Officer Wims were called, he would testify that in

July of 2015, he was conducting a narcotics investigation in the 1700 block

of North Hollywood Street.      As part of that investigation, Officer Wims

observed three controlled buys of marijuana between a Confidential

Informant and an individual identified as Jarrell Wilcombe.2    On all three

occasions, Officer Wims observed Wilcombe dealing narcotics out of a

residence located at 1712 North Hollywood Street. As a result, he obtained

a search warrant for the residence.

      The trial court summarized the testimonial evidence adduced at trial as

follows:

      Officer Robert Montague testified that he assisted Officer Wims
      in execut[ing] the search warrant at 1712 North Hollywood on
      July 23, 2015. After entry, Officer Montague knocked on the
      first door, which was the door to [Appellant’s] room[,] numerous
      times announcing that they were the police and that they had a
      search warrant. After hearing sounds and movement in the
      room, the officers breached the door, where they found
      [Appellant] on the bed, against the wall, unclothed. [Appellant]
      was removed from the bed and next to the mattress, within
      arm’s reach, was found a clear sandwich baggie containing two
      other sandwich baggies containing marijuana, along with three
      twisted bags with small amounts of marijuana. The room was a
      small bedroom, approximately 10 x 12 feet. A search of the
      room also produced a digital scale, new and unused sandwich
      baggies in a box, along with $188 in United States currency.

Trial Court Opinion, filed 2/22/16, at 1-3.

2
   The Commonwealth did not introduce evidence linking Appellant to
Wilcombe. Officer Wims’ testimony provided background on why and how
officers obtained a search warrant for 1712 North Hollywood Street.



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      The trial court found Appellant guilty of PWID and acquitted him on the

Conspiracy charge.        Immediately thereafter, the trial court sentenced

Appellant to two years of probation.

      On November 30, 2015, Appellant filed post-sentence motions, which

the trial court denied on December 1, 2015.

      Appellant timely appealed. Appellant and the trial court both complied

with Pa.R.A.P. 1925.

      On appeal, Appellant raises the following two issues:

      1. Was the evidence sufficient as a matter of law to convict
         [Appellant] of Possession with Intent to Deliver Controlled
         Substances[?]

      2. Was the verdict against the weight of the evidence?

Appellant’s Brief at 5.

                          Sufficiency of the Evidence

      Appellant first avers that the evidence was insufficient to support his

conviction. Evidentiary sufficiency is a question of law; thus, our standard of

review is de novo and our scope of review is plenary. Commonwealth v.

Diamond, 83 A.3d 119, 126 (Pa. 2013).

      In determining whether the evidence was sufficient to support a

verdict, we view the evidence and all reasonable inferences to be drawn

therefrom   in   the   light   most   favorable   to   the   verdict   winner,   the

Commonwealth herein. Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.

Super. 2013) (en banc). Furthermore:




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      Evidence will be deemed 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.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty, and may sustain its burden by means of
      wholly circumstantial evidence. Significantly, we may not
      substitute our judgment for that of the factfinder; if the record
      contains support for the convictions they may not be disturbed.

Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005)

(citations and internal quotations omitted).

      To convict a person of PWID, the Commonwealth must prove beyond a

reasonable doubt that the person possessed a controlled substance with the

intent to deliver it and without legal authorization to do so.            See

Commonwealth v. Bricker, 882 A.2d 1008, 1015 (Pa. Super. 2005); see

also 35 P.S. § 780-113(a)(30). “In determining whether there is sufficient

evidence to support a PWID conviction, all facts and circumstances

surrounding the possession are relevant, and the Commonwealth may

establish the essential elements of the crime wholly by circumstantial

evidence.” Bricker, 882 A.2d at 1015 (citation omitted).

      Appellant’s challenge to the sufficiency of the evidence presents two

distinct claims.   First, he challenges the evidence tying him to the area

searched and to the evidence recovered therein. Appellant’s Brief at 8, 10,

13-14.   Second, he argues that, in the absence of expert testimony, the

evidence recovered was insufficient to establish that Appellant possessed

marijuana with the intent to deliver and not merely for personal use.

Appellant’s Brief at 11-17. We address and reject each argument in turn.


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Constructive Possession

      Appellant correctly notes that no marijuana was recovered from his

unclothed person, and further avers that the Commonwealth failed to

establish that he had constructive possession of the marijuana because

“Officers did not recover anything that connected [Appellant] to the property

[that was searched.]” Appellant’s Brief at 13.

      It is well-settled that when an individual is found guilty of possessing

contraband which was not found on his person, as in the case at bar, the

Commonwealth is required to prove that he had constructive possession or

joint constructive possession of the contraband. See Commonwealth v.

Bricker, 882 A.2d 1008, 1014 (Pa. Super. 2005). Constructive possession

is a legal fiction; it is an inference from a set of facts that the defendant

more likely than not had control of contraband that was not found on his

person.   Commonwealth v. Mudrick, 507 A.2d 1212, 1213 (Pa. 1986).

The   Pennsylvania      Supreme       Court   defines    constructive    possession    as

“conscious dominion” which is “the power to control the [contraband] and

the intent to exercise that control.” Commonwealth v. Johnson, 26 A.3d

1078, 1093 (Pa. 2011) (citation and quotation omitted).                    Constructive

possession     is   inferred   from    the    totality   of   the   circumstances,    and

circumstantial evidence may be used to establish constructive possession.

Id. at 1094.




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     A person’s presence in a place where the drugs are found, standing

alone, will not establish constructive possession.   See Commonwealth v.

Thompson, 779 A.2d 1195, 1199 (Pa. Super. 2001). The Commonwealth

must prove some additional factor linking the defendant to the drugs. Other

factors to consider include finding the contraband in plain view, whether the

contraband was found within the defendant’s personal effects or in a place

where only the defendant had access, and whether the defendant acted

suspiciously before or during the arrest.   See, e.g., Commonwealth v.

Kirkland, 831 A.2d 607, 611 (Pa. Super. 2003) (finding that the appellant

had constructive possession of drugs which were found in plain view in the

back seat of a vehicle); Thompson, supra at 1203 (finding that the

appellant’s furtive movements, along with his proximity to the cocaine and

his admission that other drugs could be found in the location where the

cocaine was found, evidenced joint constructive possession).

     In the instant case, the marijuana was located within “[a]n arm’s

reach” of Appellant, in plain view, in a “small bedroom.” N.T., 11/25/15, at

14-15. Although Appellant claims that nothing was recovered linking him to

the residence, the record belies this claim. Officer Montague testified that

the officers announced themselves and knocked on the bedroom door

“numerous times.” Id. at 13. Rather than responding or opening the door

for the officers, Appellant stayed silent. Id. When Officers heard the sound

of someone moving around inside the room, they breached the door. Inside,



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Appellant was found lying alone and naked on the bed. Clothing belonging

to an adult male was located in the room, including the shirt, pants, and

shoes that Appellant put on before leaving the property with the officers.

Id. at 19-20.

      We agree with the trial court that the evidence presented shows more

than Appellant’s “mere presence” in a place where drugs were found. The

drugs were found within arm’s reach of Appellant, who was apparently at

home enough to be naked, and in bed.           He was also alone in the room.

Although Officer Montague “didn’t ask him what [sic] every piece of clothing

belonged to,” it is reasonable to infer from Appellant’s lying naked in bed

that the clothing items found in the bedroom belonged to him.              Finally,

Appellant’s failure to respond to the Officers’ knocking, together with the

Officers’ hearing movement behind the bedroom door, provided an additional

factor supporting the trial court’s finding that Appellant had constructive

possession   of     the   recovered   marijuana.   Collectively,   this   evidence

demonstrates Appellant’s “conscious dominion” over the marijuana, because

he had “the power to control the [contraband] and the intent to exercise

that control.”      Johnson, supra at 1093.            Accordingly, Appellant’s

argument is without merit.

Intent to Deliver




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      Having    concluded    that   Appellant   constructively   possessed    the

recovered evidence, we turn to the question of whether the evidence was

sufficient to establish that Appellant had the requisite intent to deliver.

      Appellant avers that the evidence adduced at trial, particularly in the

absence of expert testimony, merely proves that he possessed the

marijuana for personal consumption. We disagree.

      To establish the offense of possession of a controlled substance
      with intent to deliver, the Commonwealth must prove beyond a
      reasonable doubt that the defendant possessed a controlled
      substance with the intent to deliver it. The trier of fact may infer
      that the defendant intended to deliver a controlled substance
      from an examination of the facts and circumstances surrounding
      the case. Factors to consider in determining whether the drugs
      were possessed with the intent to deliver include the particular
      method of packaging, the form of the drug, and the behavior of
      the defendant.

Kirkland, supra at 611 (citations omitted).

      In determining the sufficiency of evidence for the intent to deliver, the

court looks at the following factors: the quantity of the drugs, “the manner

in which the controlled substance was packaged, the behavior of the

defendant, the presence of drug paraphernalia, and large[ ] sums of cash

found in possession of the defendant.” Commonwealth v. Ratsamy, 934

A.2d 1233, 1237-38 (Pa. 2007) (citations omitted).         Another factor is the

lack of drug paraphernalia for personal consumption. Id. at 1238.

      Although the quantity of drugs recovered is relevant to our analysis, it

is not, in and of itself, “crucial to establish an inference of possession with

intent to deliver, if . . . other facts are present.” Id. at 1237 (citation and


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quotation marks omitted). But see Commonwealth v. Pagan, 461 A.2d

321, 322-23 (Pa. Super. 1983) (finding possession of “small amount” of

marijuana, 19.9 grams, and the lack of additional paraphernalia to indicate

preparation for sale or delivery, was insufficient to support PWID conviction).

      In the instant case, Officers recovered more than 9 grams of

marijuana, “packed in various baggies, with a scale, and additional unused

baggies in a box with $188 in cash[.]” Trial Court Opinion at 5. Officers did

not recover a pipe or other drug paraphernalia from which the factfinder

could infer personal consumption. See Ratsamy, supra at 1238. Although

the quantity of drugs is alone insufficient to support a finding of intent to

deliver, we agree with the trial court that the baggies, scale, and cash

“demonstrated that [Appellant] possessed the controlled substances with

intent to deliver.” Trial Court Opinion at 5. Accordingly, we conclude that

Appellant’s argument to the contrary is without merit.

                          Weight of the Evidence

      Appellant next avers that the jury’s verdict was against the weight of

the evidence “because the verdict was based on conjecture and speculation.”

Appellant’s Brief at 18. He catalogs the alleged lack of evidence linking him

to the narcotics sales between Wilcombe and the Confidential Informant, as

well as the alleged lack of evidence showing that Appellant owned, rented,

or lived in the property at 1712 North Hollywood Street.




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     When considering challenges to the weight of the evidence, we apply

the following precepts:

        The weight of the evidence is exclusively for the finder of
        fact, who is free to believe all, none or some of the
        evidence and to determine the credibility of the witnesses.

        Appellate review of a weight claim is a review of the
        exercise of discretion, not of the underlying question of
        whether the verdict is against the weight of the evidence.
        Because the trial judge has had the opportunity to hear
        and see the evidence presented, an appellate court will
        give the gravest consideration to the findings and reasons
        advanced by the trial judge when reviewing a trial court’s
        determination that the verdict is against the weight of the
        evidence. One of the least assailable reasons for granting
        or denying a new trial is the lower court’s conviction that
        the verdict was or was not against the weight of the
        evidence and that a new trial should be granted in the
        interest of justice.

Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015)

(internal quotation marks and citations omitted).

     “Resolving contradictory testimony and questions of credibility are

matters for the factfinder.”   Commonwealth v. Hopkins, 747 A.2d 910,

917 (Pa. Super. 2000). Further, “[i]n order for a defendant to prevail on a

challenge to the weight of the evidence, the evidence must be so tenuous,

vague and uncertain that the verdict shocks the conscience of the court.”

Talbert, supra at 546 (internal quotation marks and citation omitted). It is

well-settled that we cannot substitute our judgment for that of the trier of

fact. Id. at 545.




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        Appellant essentially asks us to reweigh the testimony and evidence

presented at trial. Appellant’s Brief at 17-18. We cannot and will not do so.

As discussed, supra, our reading of the record belies Appellant’s claim that

there was insufficient evidence linking him to the marijuana and packaging

materials recovered in the room where he was found alone and naked in

bed.3    This verdict was not so contrary to the evidence as to shock the

court’s conscience, and the trial court properly denied Appellant’s weight of

the evidence claim.

        Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/25/2017




3
  The lack of evidence linking him to drug sales conducted by Wilcombe is
immaterial.    Officer Wims’ testimony about Wilcombe’s sales to the
Confidential Informant provided background information as well as probable
cause for the search warrant on 1712 North Hollywood Street. Appellant
was not charged in connection with any of those sales, and the
Commonwealth was, therefore, not required to prove his involvement
therein. To the extent that the Conspiracy charge was based on the theory
that Appellant was somehow connected to Wilcombe, the trial court found
Appellant not guilty on that charge.



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