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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                        :
WILLIAM RUSH,                           :        No. 1375 WDA 2013
                                        :
                       Appellant        :


          Appeal from the Judgment of Sentence, April 18, 2013,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0005136-2012


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 27, 2015

      Appellant appeals from the judgment of sentence following his

conviction for drug and firearm offenses.    Finding no merit in the issue

raised on appeal, we affirm.

      The trial court accurately summarized the events leading to appellant’s

arrest:

                 The evidence presented at trial established
           that on December 12, 2011, Pittsburgh Police
           Officers Santino Achille and Joshua Whaley were on
           patrol at approximately 9:00 p.m. in the Spring
           Garden Avenue area on the North Side of Pittsburgh.
           (N.T. 44).        They were in an unmarked
           car,[Footnote 1] conducting surveillance in a high
           crime, high drug trafficking area. (N.T. 44-45). As
           the officers approached Ryan Place, a housing
           development, Officer Achille observed a black
           Oldsmobile Bravada stopped in front of the building
           and two (2) individuals approach the vehicle,
           including the Defendant, William Rush, whom the
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          officer recognized. (N.T. 48-49). He also recognized
          the other person, Shawn Pruitt. (N.T. 49-50).

                [Footnote 1] Though the vehicle was
                unmarked, Officer Achille testified that
                is [sic] was regularly recognized as a
                police vehicle because it had been used
                in that area for several years. (N.T. 51).

                 As the Defendant reached the passenger side
          of the vehicle, Officer Achille saw him look in the
          direction of the police vehicle and “. . . . appear very
          alarmed, wide-eyed, stopped in his track for no
          apparent reason.”        (N.T. 51).       According to
          Officer Achille, after the Defendant noticed their
          vehicle, “. . . he then bladed his body, turned in a
          position where he hid the front of his waistband,
          would be facing away from our vehicle.” (N.T. 51-
          52). The Defendant then reached across his body
          with his right hand, keeping his left hand at his
          waistband, opened the rear passenger door and got
          in.[Footnote 2] Pruitt entered the front passenger
          side. (N.T. 52).

                [Footnote 2] Officer Whaley testified
                that, in his experience in making over a
                hundred arrests for persons possessing
                firearms, it is common for such persons,
                when they see law enforcement, to “. . .
                grab their waist or touch their waist to
                make sure the object, the firearm, is
                secure where it is at.” (N.T. 82).

                 The Bravada pulled away from the curb, into
          traffic. The driver did not use the turn signal. Upon
          observing this traffic violation, Officer Achille decided
          to stop the vehicle. (N.T. 53). He activated the
          vehicle’s lights and siren, and the vehicle pulled
          over, still near the Ryan Place development and in an
          area with substantial overhead lighting. (N.T. 53-
          54).

               Officer Achille approached the driver’s side of
          the vehicle while Officer Whaley approached the


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          passenger side. They both used their flashlights to
          illuminate the interior of the vehicle. (N.T. 54).
          Officer Achille asked the driver to lower the windows
          in the vehicle, and he complied. (N.T. 69-70). In
          speaking to the driver, Officer Achille determined
          that he was a jitney driver.          The driver was
          cooperative. There was no passenger in the rear on
          the driver’s side. While speaking with the jitney
          driver, he observed Officer Whaley on the other side
          of the vehicle make a hand gesture over the top of
          the vehicle that he knew was intended to indicate
          that there was a firearm in the vehicle. (N.T. 55-
          57).

                 Before making that gesture, Officer Whaley, as
          he approached the rear of the vehicle, “. . . observed
          the rear right passenger kind of lift up off his seat
          and turn, and he had an object in his left hand.”
          (N.T. 83). Officer Whaley believed that object “. . .
          to be a large silver revolver.” (N.T. 83). He saw the
          Defendant throw the object with his left hand into
          the cargo area of the Bravada. (N.T. 83). He shined
          his light in that area and saw a large, silver revolver
          laying [sic] there. He then gestured to Officer Achille
          to alert him to the presence of a weapon and then
          radioed for backup, using “Code 2”, indicating that a
          quick back-up response with lights and sirens is
          necessary. (N.T. 84).

                As other officers arrived, Officer Whaley asked
          the Defendant to exit the vehicle. He did, was
          handcuffed and placed in the rear of a police vehicle.
          Officer Whaley returned to the rear of the vehicle
          and retrieved the weapon, a loaded, .44 caliber
          Smith and Wesson revolver, found later to be in
          good working order. (N.T. 88, 91). Officer Whaley
          then retrieved, from the floor where the defendant
          was seated, a quantity of prepackaged stamp bags
          of heroin that he had noticed as he removed the
          Defendant from the vehicle.[Footnote 3] (N.T. 91-
          92). A search of the vehicle and of the Defendant’s
          person revealed that he had no money, nor did he
          possess any paraphernalia that could have been
          used to ingest the heroin.       (N.T. 96-97).    The


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            Defendant also did not exhibit any of the physical
            characteristics that people who regularly use heroin
            generally possess.     He did not seem under the
            influence and had no apparent needle marks. (N.T.
            95-97).[Footnote 4]

                  [Footnote 3] The Allegheny County Crime
                  Lab found the substance in the
                  44 packages to indeed be heroin, with a
                  weight of 2.03 grams. (N.T. 95).

                  [Footnote 4] The other occupants,
                  Shawn Pruitt and the jitney driver, were
                  released after the defendant’s arrest.
                  (N.T. 74).

Trial court opinion, 9/19/14 at 4-7.

      On January 24, 2013, a jury convicted appellant of possession of a

controlled substance, possession of a controlled substance with intent to

deliver, firearms not to be carried without a license, and false identification

to a law enforcement officer.1 On April 18, 2014, appellant was sentenced

to an aggregate term of 7 to 14 years’ imprisonment.       This timely appeal

followed.

      Appellant raises a single issue on appeal, contending that the evidence

of his constructive possession of the heroin found in the jitney taxicab was

insufficient to support his drug-related convictions. We disagree.

      We note our standard of review:

            As a general matter, our standard of review of
            sufficiency claims requires that we evaluate the
            record “in the light most favorable to the verdict

1
  35 P.S. §§ 780-113(a)(16), (a)(30), 18 Pa.C.S.A. §§ 6106(a)(1), and
4914(a), respectively.


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          winner giving the prosecution the benefit of all
          reasonable inferences to be drawn from the
          evidence.” Commonwealth v. Widmer, 560 Pa.
          308, 744 A.2d 745, 751 (2000). “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.” Commonwealth v.
          Brewer, 876 A.2d 1029, 1032 (Pa.Super.2005).
          Nevertheless,     “the  Commonwealth       need  not
          establish guilt to a mathematical certainty.” Id.;
          see also [Aguado, 760 A.2d at 1185] (“[T]he facts
          and      circumstances      established     by   the
          Commonwealth need not be absolutely incompatible
          with the defendant’s innocence.”).      “[W]here no
          single bit of evidence will by itself conclusively
          establish guilt, the verdict will be sustained where
          the totality of the evidence supports the finding of
          guilt.” Commonwealth v. Thomas, 522 Pa. 256,
          561 A.2d 699, 704 (1989).

                 Thus, our Courts have recognized that proof of
          guilt may be inferred entirely from evidence of
          circumstances that attended the commission of the
          crime. See Brewer, 876 A.2d at 1032. “The fact
          that the evidence establishing a defendant’s
          participation in a crime is circumstantial does not
          preclude a conviction where the evidence coupled
          with the reasonable inferences drawn therefrom
          overcomes the presumption of innocence.”          Id.
          (quoting Commonwealth v. Murphy, 795 A.2d
          1025, 1038-39 (Pa.Super.2002)).        Nevertheless,
          “[t]he requirement of the law [remains] that in order
          to   warrant    a   conviction[,]  the   facts   and
          circumstances proved must be of such character as
          to produce a moral certainty of the guilt of the
          accused      beyond     any    reasonable     doubt.”
          Commonwealth v. Bybel, 531 Pa. 68, 611 A.2d
          188, 189 (1992) (quoting Commonwealth v. New,
          354 Pa. 188, 47 A.2d 450, 455 (1946)).




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Commonwealth v. Kinard, 95 A.3d 279, 291-292 (Pa.Super. 2014)

(en banc), quoting Commonwealth v. Barker, 70                     A.3d 849, 854

(Pa.Super. 2013) (en banc), appeal denied, 87 A.3d 814 (Pa. 2014).

     Moreover, we note that appellant was not found with the heroin on his

person; in such circumstances, the Commonwealth must show constructive

possession:

                    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. Brown, 48 A.3d 426, 430
              (Pa.Super.2012), appeal denied, 619 Pa. 697, 63
              A.3d 1243 (2013) (internal quotation marks and
              citation omitted). Additionally, it is possible for two
              people to have joint constructive possession of an
              item of contraband. Commonwealth v. Bricker,
              882 A.2d 1008, 1016-1017 (Pa.Super.2005).

Kinard, 95 A.3d at 292.

     We find that the evidence at trial sufficiently supports a finding that

appellant constructively possessed the heroin.        The heroin packets were

found contained in a “brick wrapper,” which package was observed at



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appellant’s feet as he was removed from the jitney.             Police Officer

Joshua Whaley testified that after appellant threw his gun into the cargo

compartment of the Bravada, “he kind of sat forward.” (Notes of testimony,

1/23-24/14 at 84-85.)       Such action would be consistent with appellant

placing the drugs on the floor of the jitney. Finally, appellant was the only

passenger in the rear seat of the jitney. We find these facts to be sufficient

for the jury to conclude that appellant constructively possessed the heroin.

      Appellant offers several reasons why he should not be found to be in

constructive possession. First, appellant argues that a previous passenger of

the jitney could have left the drugs on board. However, we agree with the

Commonwealth that the high value of the heroin made it extremely unlikely

that a prior passenger left it in the jitney.

      Second, appellant contends he must have been unaware of the heroin;

otherwise, he would have thrown it into the passenger compartment of the

Bravada as he did with his gun. This does not indicate that appellant was

unaware of the heroin. He may simply have concluded that the approaching

police officers were now too close to risk throwing the drugs into the cargo

compartment.

      Third, appellant argues that awareness of the presence of contraband

is necessary to possession and that he could not know of the presence of the

heroin because it was contained in an opaque brick wrapper. We find this

suggestion to be specious.      Merely because the heroin was in an opaque



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container gives no indication that appellant was not aware of what was in

the container.   Further, as the Commonwealth notes, a brick wrapper is

distinctive with the dealing of drugs.

      Fourth, appellant argues that the other passenger was not searched to

determine whether he possessed similarly packaged heroin which would

indicate the heroin belonged to him. To this we respond that such a finding

would merely incriminate the other passenger, it would not exonerate

appellant. As we noted, joint constructive possession is possible and there

was sufficient evidence to find appellant constructively possessed the drugs

found in the rear passenger area.

      Finally, appellant argues that no money or heroin was found on his

person and he did not show any signs of being a heroin user. The fact that

appellant had no heroin or money on him is not persuasive. Drug dealers

often have one party possess and manage the cash while another party

possesses and manages the drugs. Moreover, appellant’s argument here is

merely consistent with his being a drug dealer as opposed to a drug user. It

certainly does not indicate that he did not constructively possess the heroin.

      Appellant also relies primarily on two cases which he contends support

a finding that the evidence was insufficient to support constructive

possession under the circumstances of this case.      In Commonwealth v.

Juliano, 490 A.2d 891 (Pa.Super. 1985), an informant told police that

Edward Drueding agreed to meet Chris DiBona at Philadelphia International



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Airport as DiBona was flying in with a shipment of counterfeit drugs. The

informant later told police that Drueding was proceeding to the airport with

Joseph Cobuccio. Police observed Drueding and Cobuccio meet with DiBona

and then proceed to the baggage claim area without DiBona.             At the

baggage claim area, Drueding and Cobuccio retrieved a green satchel which

later was found to contain the counterfeit drugs.    Drueding and Cobuccio

were then observed driving away from the airport and proceeding to the

Airport Sheraton Hotel where DiBona and the defendant joined them. When

stopped by police, Cobuccio was in the driver’s seat, Drueding was in the

front passenger seat, the defendant was in the left rear passenger seat, and

DiBona was in the right rear passenger seat.         The informant had not

implicated the defendant in any way.       The defendant made no furtive

movements toward the satchel when police stopped the vehicle. The green

satchel was ultimately found on the floor in front of the defendant’s seat,

and the defendant was convicted for the constructive possession of the

counterfeit drugs.

      On appeal, this court reversed based upon the lack of evidence that

the defendant was aware as to the contents of the green satchel. The court

noted that the informant had not implicated the defendant, that the

defendant had not made furtive motions toward the satchel, that other

individuals in the car had equal access to the satchel, and that the defendant




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had not attempted to escape.     The court held that mere proximity to the

contraband was not conclusive of guilt.

      Appellant attempts to liken Juliano to his situation, claiming that

there was no evidence that he was aware as to the contents of the brick

wrapper, that he made no motions toward it, that another individual had

equal access to it, and that he did not attempt to flee. We reject appellant’s

argument. Appellant’s argument ignores the fact that in Juliano, there was

overwhelming evidence that the other three individuals in the car not only

knew what the satchel contained, but each had been observed displaying a

conscious dominion and intent to control the satchel. The defendant, on the

other hand, may merely have unwittingly chosen the wrong place to sit.2

      Instantly, there was no evidence that anyone other than appellant

manifested a conscious dominion or intent to control the brick wrapper. The

brick wrapper was found where appellant’s feet had been.       Moreover, the

police testified that appellant “kind of sat forward” as they approached,

which, we have noted, is consistent with a display of conscious dominion

over the drugs. Thus, we find Juliano to be inapposite.

      Next, appellant cites to Commonwealth v. Spencer, 621 A.2d 153

(Pa.Super. 1993).    In Spencer, following a vehicle stop, cocaine was

discovered in the driver’s door storage compartment.      Spencer, the front


2
 The defendant testified that he had met DiBona by chance at the Sheraton
and accepted an offer of a ride to Atlantic City after his own ride failed to
appear. Juliano, 490 A.2d at 505 n.3.


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seat passenger, was found guilty on a constructive possession theory. On

appeal, this court reversed, finding that there was no evidence that the

passenger even knew of the cocaine’s existence, let alone exercised

conscious dominion. Spencer reiterated Juliano’s admonitions that guilt by

association is unacceptable and that the mere presence of one person

among a group at a scene of contraband is not a strong factor indicative of

guilt.

         Spencer is easily distinguished. The drugs there were found in much

greater proximity to the driver, and it was obvious that the driver possessed

the cocaine because he scuffled with the police, attempted to flee, and

attempted to throw the bag of cocaine away. There was no evidence that

the passenger ever exhibited conscious dominion over the cocaine or even

knew of its existence.    Instantly, however, appellant was the person most

proximate to the contraband, which was sitting at his feet, and he was

observed to make a forward motion, which may have indicated that

appellant took the brick wrapper from his person and placed it on the floor of

the jitney. Spencer is likewise inapposite.

         Appellant also cites other cases without discussion.   We find these

other cases to be similarly distinguishable. In sum, we find the evidence in

this case to be sufficient to support a theory of constructive possession. The

drugs were found at appellant’s feet, he made a motion consistent with

conscious dominion, and no other person could reasonably have been



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considered to be in possession of the drugs. Therefore, we will affirm the

judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/27/2015




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