J-S76037-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PAUL FAVERS,

                            Appellant                No. 1227 WDA 2014


            Appeal from the Judgment of Sentence of July 16, 2014
               In the Court of Common Pleas of Fayette County
             Criminal Division at No(s): CP-26-CR-0000168-2014


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.

MEMORANDUM BY OLSON, J.:                         FILED FEBRUARY 19, 2015

       Appellant, Paul Favers, appeals from the judgment of sentence entered

on July 16, 2014, following his jury trial convictions for possession of a

controlled substance (PWID) and possession of a controlled substance by a

person not registered.1 Upon review, we affirm.

       The trial court aptly summarized the facts of this case as follows:

             On November 26, 2013, the Connellsville Police
         Department (“CPD”) received a specific tip concerning a
         vehicle that was transporting a large amount of heroin
         through the City of Connellsville. Officers Bryan Kendi and
         Ryan Reese, both of the CPD, took up a position in a
         marked patrol car at the intersection of York Avenue and SR
         119. Around 9:00 p.m., the vehicle described by the tip
         was seen heading south on SR 119.          At that time, the
         officers also noticed the driver of the vehicle, Todd Favers,
____________________________________________


1
    35 P.S. §§ 780-113(a)(30) and 780-113(a)(16), respectively.
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        Appellant’s brother, whom they knew to have a suspended
        license.

           Following a routine traffic stop, the officers approached
        both sides of the vehicle. Officer Kendi informed Todd
        Favers that he was not to be driving and immediately took
        him into custody. Both [o]fficers then observed Appellant in
        the passenger seat, making a motion as though pushing
        something toward the center console of the vehicle. In
        particular, Officer Reese, who was positioned outside the
        passenger side of the vehicle, could see Appellant’s hands
        entering and exiting his pockets and then pushing toward a
        blue plastic shopping bag underneath the center console.

            Concerned that Appellant might possess a weapon,
        Officer Reese instructed Appellant several times to stop
        placing his hands into his pockets. In response, Appellant
        became      increasingly   agitated,     began    cursing  and
        questioning the officers’ right to pull over the vehicle. When
        the officers removed Appellant from the vehicle, both
        testified to noticing a stamp bag of heroin protruding from
        the same blue bag to which Appellant had previously
        directed his hands.

            The officers detained Appellant and Todd Favers and the
        vehicle was moved to the CPD. Prior to the blue bag being
        removed, the CPD sent in a canine unit to search for
        narcotics. The Canine Handler, Detective Jason Hayes,
        testified that his K-9 alerted only in the passenger side of
        the vehicle and upon the blue bag under the center console.
        At that point, the officers decided to remove the blue bag.
        Inside, they found three-hundred forty-two (342)
        individually stamped bags[, that later tested positive,] of
        heroin, with a street value of approximately eight thousand
        ($8,000[.00]) dollars.

Trial Court Opinion, 9/2/2014, at 2-3 (record citations and footnote

omitted).

     The    Commonwealth charged Appellant with the           aforementioned

offenses.   A two-day jury trial commenced on July 9, 2014.              At the



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conclusion of trial, the jury convicted Appellant of both crimes. On July 16,

2014, the trial court sentenced Appellant to an aggregate term of three to

nine years of imprisonment. This timely appeal followed.2

       On appeal, Appellant presents the following issues3 for our review:

          1. Did the [trial] court err in denying Appellant’s omnibus
             pre-trial motion to suppress the evidence in that []
             Appellant was specifically targeted?

          2. Did the Commonwealth fail to prove that [] Appellant
             ever possessed the controlled substance in the vehicle?

          3. Did the [trial] court err in denying Appellant the right to
             call a witness that would have testified that the driver of
             the vehicle had sold the witness drugs on a prior
             occasion?


Appellant’s Brief at 7 (complete capitalization omitted).

       In his first issue presented, Appellant claims that the trial court erred

in failing to grant relief on his request to suppress evidence as set forth in

his omnibus pre-trial motion. Id. at 10. He claims that he “was specifically

targeted, and that the officers had no basis to stop the vehicle.” Id. at 11.

Appellant points to alleged inconsistencies in the investigating officers’


____________________________________________


2
   Appellant filed a notice of appeal on July 28, 2014. On July 29, 2014, the
trial court directed Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied on July 31,
2014. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
September 2, 2014.
3
    We have reordered Appellant’s issues for ease of discussion.



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testimony to support his claim. Id. at 10-11. More specifically, Appellant

argues:
              At the time of the omnibus hearing the officers both
          identified [] [A]ppellant as the operator of the vehicle, but
          later identified the operator of the vehicle as Todd Favers[,
          Appellant’s brother].     Based upon this misidentification
          which became clear at the time of trial, it is obvious that
          there was not probable cause to stop the vehicle as [one of
          the investigating officers] testified that there were no traffic
          violations that would have caused initiation of the stop. It
          seems clear that [] [A]ppellant was specifically targeted,
          and that the officers had no valid basis to stop the vehicle.

Id. at 11.

      Initially, we note that Appellant failed to support this issue with

citation to legal authority and, therefore, has waived the issue.            See

Commonwealth v. Knox, 50 A.3d 732, 748 (Pa. Super. 2012); see also

Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as

there are questions to be argued […] followed by such discussion and

citation of authorities as are deemed pertinent.”).

      Regardless, the issue is without merit.       “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.”    Commonwealth v. McAdoo, 46 A.3d 781, 783 (Pa. Super.

2012).      “[T]he reviewing court may consider only the Commonwealth's

evidence and so much of the evidence for the defense as remains




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uncontradicted when read in the context of the of the entire record.”

Commonwealth v. Lagenella, 83 A.3d 94, 98 (Pa. 2013)

      A police officer has the authority to stop a vehicle when he or she has

reasonable suspicion that a violation of the motor vehicle code has taken

place, for the purpose of obtaining necessary information to enforce the

provisions of the code.   Commonwealth v. Brown, 64 A.3d 1101, 1105

(Pa. 2013), citing 75 Pa.C.S.A. § 6308(b). “However, if the violation is such

that it requires no additional investigation, the officer must have probable

cause to initiate the stop.” Id. (citation omitted; original emphasis omitted).

      Upon review of the testimony from the suppression hearing, both

officers testified that they stopped the vehicle at issue because they

recognized the driver, Appellant’s brother, and knew he was driving without

a license. N.T., 4/14/14, at 6, 19. Although, at the suppression hearing,

both officers identified the driver as “Paul Favers,” they also unequivocally

identified Appellant at the suppression hearing, who was not known to police

at the time of the stop, as the passenger.      Id. at 6-7, 19; 8-10, 20-23.

Certainly, Appellant could not have been both the driver and the passenger

of the car and the suppression court was permitted to make factual

determinations.   Here, the suppression court determined that the police

“stated that they identified the driver of the vehicle as [the individual] that

they knew had a suspended license.” Id. at 30. Viewing the evidence from

the suppression hearing in the light most favorable to the Commonwealth,

we discern no error in the trial court’s determination that police had probable

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cause to believe that a motor vehicle code violation had transpired prior to

stopping the vehicle.4 Finally, we note, in support of his third appellate issue

as discussed infra, Appellant tangentially concedes that “a potential witness

[would have testified that he..] had purchased heroin […] from the driver

of the vehicle, Todd Favers.” Id. at 13 (emphasis added). Thus, for all of

the foregoing reasons, Appellant’s first claim fails.

       In the next issue for our review, Appellant claims the Commonwealth

rested its entire case against him on constructive possession.      Appellant’s

Brief at 15. Appellant then argues, “[i]t is undisputed that there were in fact

two occupants of the vehicle at the time of the stop, and that the heroin was

found in the center console area between both occupants inside the vehicle.”

Id. He claims the trial court erred by focusing on evidence of Appellant’s

movements at the time of the stop and there was no evidence that he ever

handled the bag containing the heroin or he “was more than just the

passenger in the vehicle.” Id. at 15-16.

       When reviewing challenges to the sufficiency of the evidence, our

standard of review is as follows:
____________________________________________


4
   We also note that Officer Bryan Kendi testified at trial that he “recognized
the driver” as “Todd Favers.” N.T., 7/9/2014, at 31-33, 55. He further
stated that he misspoke at the suppression hearing when he said it was
Appellant driving the vehicle. Id. at 56. Moreover, Officer Ryan Reese
identified Appellant in court as the passenger. Id. at 114. Appellant
testified in his own defense at trial and likewise stated he was a passenger in
his sister-in-law’s car and his brother was driving at the time of the police
stop. Id. at 134-135.



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        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
        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.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014)

(citations and brackets omitted).    “Further, in viewing the evidence in the

light most favorable to the Commonwealth as the verdict winner, the court

must give the prosecution the benefit of all reasonable inferences to be

drawn from the evidence.” Id. (citation omitted).

      As Appellant was not in physical possession of the contraband, the

Commonwealth     was   required     to    establish   that   he   had   constructive

possession of the seized items to support his convictions:

        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

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        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.

        Additionally, it is possible for two people to have joint
        constructive possession of an item of contraband.

Commonwealth v. Kinard, 95 A.3d 279, 292 (Pa. Super. 2014) (citations

omitted).

      In this case, viewing the totality of the circumstances, the trial court

determined    the   Commonwealth      established   Appellant’s   constructive

possession, based upon the following facts:

        The totality of the following circumstances in this case
        support the jury’s conclusion that Appellant possessed the
        heroin to deliver the same: (1) the substantial volume of
        the heroin; (2) the officer’s observation of Appellant
        repeatedly placing and removing his hands into his pockets
        and then pushing toward [that part of] the vehicle where
        the heroin was found; (3) Appellant’s demeanor; (4) that
        the K-9 [narcotics canine] alerted only upon Appellant’s
        side of the vehicle; and (5) the readily apparent presence of
        both the bag and the heroin when Appellant exited the
        vehicle, which conflicts with his earlier testimony that he
        saw neither.

Trial Court Opinion, 9/2/2014, at 8-9 (emphasis in original).

      Upon review, we agree. First, and foremost, Appellant fails to address

the fact that two people may be in joint constructive possession of narcotics.

Therefore, the mere fact that there were two occupants of the car simply

does not support Appellant’s claim. Moreover, the facts presented showed

that Appellant exercised a conscious dominion over the narcotics.




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      Officer Kendi testified that, after stopping the vehicle, he observed

Appellant “making a pushing motion away from his body towards the center

of the vehicle” with his left hand. N.T., 7/9/2014, at 33-34. Officer Kendi

testified that Appellant “appeared to be pushing an object underneath […] an

armrest that would move up and down.”         Id. at 35.   Officer Kendi stated

Appellant’s demeanor was extremely agitated and his voice was boisterous.

Id. at 35.   Appellant started yelling and questioning the police as to why

they stopped the vehicle and why he had to get out.         Id. at 36.   When

Appellant exited the vehicle, Officer Kendi saw a translucent, blue shopping

bag protruding from underneath the center armrest and “immediately

recognized at least one stamp bag [of heroin] in it.[]” Id. at 36-37. From

outside the vehicle, Officer Kendi took a photograph of the bag as he found

it and the Commonwealth presented the photograph at trial and it was

circulated to the jury. Id. at 37-43.    Moreover, Officer Kendi testified that

he summoned a canine unit to the scene and a drug-sniffing dog alerted

police “[t]o the passenger door of the vehicle as well as the passenger

compartment of the front part of the vehicle.” Id. at 45. The police officer

with the canine unit testified similarly. Id. at 89-91.

      Officer Reese testified that upon approaching the vehicle, Appellant

“kept pushing a blue plastic bag underneath the center console and placing

his hand in his front pocket.”   Id. at 114. Officer Reese told him to stop

“three or four times” while Appellant “became more agitated, [saying,] you

have no right to stop us, why’d you stop us, why’d you pull us over, this is

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bullshit[.]”   Id. at 114-115.    When Appellant exited the vehicle, Officer

Reese could see the blue plastic bag and could see through the bag, what he

described as a “readily apparent” bundle of heroin.       Id. at 116.    He also

testified that the drug dog “sat down on the passenger side and then when

the door was opened he went and sat on the center console.” Id. at 118.

      In totality, the Commonwealth presented substantial evidence to rebut

Appellant’s claim that he was a mere passenger in the vehicle and unaware

that narcotics were present. Police saw Appellant making pushing motions

toward the center console of the vehicle. Appellant acted belligerently when

the police stopped the vehicle and asked him to exit.                Further, the

investigating officers were able to see the blue plastic bag in plain view and

discerned that drugs were inside.       Moreover, police utilized a narcotics

canine and the dog only alerted police to the presence of drugs on the

passenger side of the vehicle. Taken together, the facts show that the

narcotics were known to Appellant and under his control while in the vehicle.

Hence, we conclude that there was sufficient evidence that Appellant

constructively possessed the heroin with the intent to deliver it.

      Lastly, Appellant claims the trial court erred in precluding him from

calling a witness at trial. Appellant’s Brief at 13. More specifically, he claims

that “he had encountered a potential witness[, named Robert Nicholson,]

during his incarceration, that had purchased heroin on a prior occasion near

the time of [A]ppellant’s arrest from the driver of the vehicle, Todd Favers.”

Id.   Thus, Appellant contends that such evidence would have shown “that

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Todd Favers was the actual possessor of the controlled substance and not []

[A]ppellant.” Id. at 14.

     We review Appellant’s claim under the following standard:

        In reviewing a trial court's ruling on the admissibility of
        evidence, our standard of review is one of deference. It is
        firmly established, [that] questions concerning the
        admissibility of evidence lie within the sound discretion of
        the trial court, and a reviewing court will not reverse the
        court's decision on such a question absent a clear abuse of
        discretion. An abuse of discretion requires:

           not merely an error of judgment, but where the
           judgment is manifestly unreasonable or where the
           law is not applied or where the record shows that the
           action is a result of partiality, prejudice, bias or ill
           will.

Commonwealth v. Hunzer, 868 A.2d 498, 510 (Pa. Super. 2005) (internal

citations, quotations and brackets omitted).

     Here, in deciding to preclude the proffered witness, the trial court

relied upon our Supreme Court’s decision in Commonwealth v. Baez, 720

A.2d 711 (Pa. 1998) wherein the Court stated:

        A trial judge should take care that nothing relevant is
        excluded, so long as its admission will not unduly distract
        the attention of the jury from its main inquiry. A trial judge
        must determine whether evidence which, though logically
        relevant on the ultimate issue, may nevertheless be
        excluded because its general effect on the trial will be to
        confuse the jury by distracting its attention away from the
        jury's primary concern to the collateral issues. Because of
        the often difficult nature of this task, the judge's conclusion
        or decision on such points will not be interfered with on
        appeal save for abuse of discretion.

Commonwealth v. Baez, 720 A.2d at 724 (internal citation omitted).


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      In assessing the proffered witness testimony, the trial court ultimately

determined:

          In this case, we agree that the proposed testimony of a
         heroin sale by Appellant’s brother at an unspecified time
         was of minimal relevance to Appellant’s possession of
         heroin. Like the court in Baez, we also note that the jury
         could have believed or completely ignored Mr. Nicholson’s
         testimony and been justified in finding Appellant guilty of
         the charged offenses.       [The trial court, therefore,]
         concluded that the only reasonable effect of Mr. Nicholson’s
         testimony would have been the undue distraction of the
         jury.

Trial Court Opinion, 9/2/2014, at 6-7 (footnotes omitted).         Moreover, the

trial court noted that its determination that there was sufficient evidence

that “supports a finding that Appellant possessed the heroin with the intent

to distribute, only strengthens this conclusion.” Id. at 6, n.5.

      We agree. Evidence that the proposed witness may or may not have

purchased heroin from Appellant’s brother at some other time does not go

directly to the charges at issue or somehow prove that Appellant’s brother

exclusively possessed the heroin. As previously stated, “it is possible for two

people to have joint constructive possession of an item of contraband.”

Kinard, 95 A.3d at 292.      The proffered testimony that the driver of the

vehicle had previously sold heroin was entirely collateral and potentially

misleading for the jury.    Therefore, we discern no abuse of discretion in

precluding Mr. Nicholson from testifying at trial.    Accordingly, Appellant’s

third issue fails.

      Judgment of sentence affirmed

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2015




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