J-S39022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALHT OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    JAHIMEL WILLIAMS

                             Appellant                 No. 955 EDA 2018


       Appeal from the Judgment of Sentence Entered February 15, 2018
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0001329-2016


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

MEMORANDUM BY STABILE, J.:                         FILED OCTOBER 22, 2019

        Appellant, Jahimel Williams, appeals from the February 15, 2018

judgment of sentence imposing an aggregate five to ten years of incarceration

followed by five years of probation for possession of a controlled substance,

possession with intent to deliver a controlled substance (“PWID”), and several

violations of the Uniform Firearms Act.1 We affirm.

        The trial court recited the pertinent facts in its Pa.R.A.P. 1925(a)

opinion:

              On October 31, 2015, shortly after 9:00 p.m., Sergeant
        Matthew White and his partner were traveling northbound on 23rd
        Street at the 2400 block of Tasker Street when he noticed a white
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*   Former Justice specially assigned to the Superior Court.

1 35 P.S. § 780-113(a)(16) and (30); 18 Pa.C.S.A. §§ 6105, 6106, 6106.1,
and 6108.
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     2016 Jeep Grand Cherokee traveling westbound on Tasker Street
     across 23rd Street. Sgt. White testified that the vehicle had
     ‘extremely dark’ tint on the side window and rear windows. An
     MDT scan of the vehicle’s license plates returned that it was a
     rental vehicle. The officers attempted to stop the vehicle at the
     2500 block of Tasker Street, but the vehicle did not immediately
     stop despite several opportunities to do so. Sgt. White testified
     that this ‘heightened his suspicion.’ The officers eventually
     effected the stopped vehicle on 26th Street and Dickinson Street.

            Sgt. White and his partner approached the driver’s side and
     front passenger side windows, respectively. Robert McCrae (Co-
     defendant) was the driver, [Appellant] was seated behind the
     driver’s seat, and an unidentified third passenger was seated in
     the front passenger seat. Sgt. White then obtained the driver’s
     information. Sgt. White testified that he had intended to remove
     and frisk the occupants of the vehicle due to the totality of events
     that led to the stop, citing several reasons: 1) the 2400 block is
     a high crime area; 2) the vehicle had an excessive amount of tint;
     3) the ‘long delay’ between the his [sic] first attempt to stop the
     vehicle and when it finally did stop; and 4) the fact that it was a
     rental vehicle with excessive tint. Specifically, Sgt. White testified
     that due to the excessive tint on the vehicle, he would not be able
     to maintain observation of the occupants should he return to his
     vehicle to check the driver’s information.

            As Sgt. White removed the co-defendant from the car, he
     observed a small, translucent container fall from the co-
     defendant’s lap and land on the floorboard. Sgt. White testified
     that its contents appeared to be marijuana. He immediately
     placed the co-defendant under arrest and summoned additional
     police units to assist with the removal of Appellant and the third
     passenger. Once the driver was secured in the back of the police
     vehicle, Sgt. White returned to inspect the container that had
     fallen from the driver’s lap and verified that it did, in fact, contain
     marijuana. [Appellant] and third passenger were removed from
     the vehicle and placed in separate police cars. Sgt. White then
     proceeded to inspect the car and noticed some loose paneling on
     the center console. He knew from his training and experience that
     natural voids frequently exist within this area of the vehicle where
     firearms and narcotics are often hidden. As Sgt. White further
     inspected the area, he felt a thick cloth beneath the paneling that
     was not part of the vehicle. He removed a sock with a single bullet
     wrapped inside of it.


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             Sgt. White testified that the bullet ‘heightened [his]
      suspicion’ that a firearm was in the vehicle. He proceeded to
      inspect an air vent with a loose panel, misaligned grates, and an
      attached air freshener. He recovered a plastic bag containing 133
      clear bags of heroin stamped ‘Monroe,’ a loaded firearm, and a
      torn piece of black cloth. He also recovered six cell phones from
      inside the vehicle and a car rental agreement in Appellant’s name.
      Finally, the officers searched the all [sic] of the passengers and
      recovered a cell phone and $202 from the co-defendant, a cell
      phone (but no money) from Appellant, and $544 from the third
      passenger.

Trial Court Opinion, 8/15/18, at 2-4.

      On December 13, 2017, the trial court conducted a hearing on

Appellant’s pretrial motion to suppress the evidence recovered from the

vehicle search. After the trial court denied relief, the parties proceeded to a

bench trial the following day.    The trial court found Appellant guilty and

imposed the sentence as set forth above. This timely appeal followed.

      Appellant raises two assertions of error: that the trial court erred in

denying his motion to suppress and that the evidence is insufficient as to all

charges. We will take these in turn.

            An appellate court’s 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, the appellate court is bound
      by those findings and may reverse only if the court’s legal
      conclusions are erroneous. Where 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

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      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 plenary review.

Commonwealth v. McClellan, 178 A.3d 874, 880–81 (Pa. Super. 2018)

(quoting Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super.

2015), appeal denied, 135 A.3d 584 (Pa. 2016)). Our scope of review is

limited to the suppression hearing transcript. In re L.J., 79 A.3d 1073 (Pa.

2013).

      Appellant argues the suppression court erred because police did not

have reasonable suspicion for the vehicle stop and because police had no

lawful basis for the vehicle search. Appellant’s brief contains no law in support

of his challenge to the vehicle stop, and we can deem that portion of the

argument waived for that reason.      Pa.R.A.P. 2119(f); Commonwealth v.

Hernandez, 39 A.3d 406, 412 (Pa. Super. 2112), appeal denied, 63 A.3d

1244 (Pa. 2013). In any event, the record reflects that, prior to the stop,

Sergeant White observed an “extremely dark tint” on vehicle’s rear windows.

N.T. Suppression, 12/13/17, at 12. The tint was so dark Sergeant White could

not see through the windows. Id. at 13, 24-25. Furthermore, a license plate

scan revealed that the vehicle was a rental, and Sergeant White knew that a

rental car would not have darkly tinted windows. Id. at 14, 18-19. Sergeant




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White therefore had reasonable suspicion2 to stop the vehicle for a violation

of the Motor Vehicle Code.3

       Appellant also argues that the vehicle search was unlawful.           In

Commonwealth v. Gary, 91 A.3d 102, 104 (Pa. 2014) (plurality),4 our

Supreme Court held, in accordance with federal law, that police may conduct

a warrantless search a stopped vehicle if they have probable cause to do so,

regardless of any exigency beyond the vehicle’s inherent mobility. In Gary,

as here, police stopped a vehicle for excessive window tint. Id. at 104. As

police approached the stopped vehicle, they notice an odor of marijuana

coming from the vehicle. Id. The driver acknowledged that there was some

“weed” in the car. Id. A search of the vehicle revealed a two-pound bag of

marijuana under the hood. Id. The Gary Court held that the vehicle search



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2 A police officer has authority to stop a vehicle upon reasonable suspicion of
a violation of the Motor Vehicle Code. 75 Pa.C.S.A. § 6308(b). Reasonable
suspicion exists where a police officer has a particularized and objective basis
for suspecting the violation. Commonwealth v. Reppert, 814 A.2d 1196,
1203-04 (Pa. Super. 2002).

3 75 Pa.C.S.A. § 4524(e)(1) (“No person shall drive any motor vehicle with
any sun screening device or other material which does not permit a person to
see or view the inside of the vehicle through the windshield, side wing or side
window of the vehicle.”).

4 Then-Justice Saylor joined the opinion announcing the judgment of the court
(authored by Justice McCaffery and joined by Chief Justice Castille and Justice
Eakin) subject to his observations about “inconsistency in the courts’ rejection
of bright-line rules restraining law enforcement as a means of protecting
individual rights, while simultaneously embracing such rules when they
facilitate law enforcement.” Gary, 91 A.3d at 138-39 (Saylor, J. concurring).

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was lawful, as there was not dispute that police had probable cause. Id. at

138.

       The facts of the instant case are very similar, in that police lawfully

stopped the vehicle for excessive window tint, and then Sergeant White

observed a packet of marijuana falling from the driver’s lap as he exited the

vehicle. Given Sergeant White’s direct observation of marijuana, he clearly

had probable cause for the vehicle search.

       Appellant acknowledges Gary, but argues that Commonwealth v.

Shiflet, 670 A.2d 128, (Pa. 1995) is “more on point” in this case. Appellant’s

Brief at 17. In Shiflet, the defendant was the passenger in a lawfully stopped

vehicle. Shiflet, 670 A.2d at 128-29. Police arrested the driver for DUI, and

another passenger for disorderly conduct, but did not arrest the defendant.

Id. Police offered the defendant a ride home, as she did not have a driver’s

license, but searched her purse without her consent before permitting her to

ride in a police cruiser. Id. at 129. The purse search revealed a small pouch

of marijuana, and the defendant was placed under arrest. Id. Our Supreme

Court held that the purse search was unlawful, because the defendant was

not under arrest at the time, and because the Commonwealth conceded that

police had no probable cause or reasonable suspicion that the defendant had

engaged in any illegal activity. Id. at 130-33.

       Appellant’s reliance on Shiflet is entirely misplaced. Shiflet involved

the search of the defendant’s personal effects after she was ordered out of the


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vehicle.   The instant case involves a vehicle search after a police officer

observed marijuana falling from the driver’s lap as he exited the vehicle.

Appellant also states that the search of various compartments in the vehicle

was unlawful, but he cites no law in support of this argument. Appellant’s

Brief at 16-17.

      In short, Appellant has failed to articulate any basis upon which the

either the vehicle stop or the vehicle search was unlawful. We therefore reject

Appellant’s first argument.

      Next, Appellant claims the evidence was insufficient as to all of his

charges.   Appellant’s Pa.R.A.P. 1925(b) statement and his appellate brief

clarify his particular challenge—that the Commonwealth failed to prove

Appellant was in constructive possession of controlled substances or firearms.

Our standard of review is de novo, and “our scope of review is limited to

considering the evidence of record, and all reasonable inferences arising

therefrom, viewed in the light most favorable to the Commonwealth as the

verdict winner.”   Commonwealth v. Rushing, 99 A.3d 416, 420–21 (Pa.

2014).

            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.


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

denied, 78 A.3d 1090 (Pa. 2013). A defendant’s mere presence at a place

where contraband is found is not, without more, sufficient to prove conscious

dominion.   Commonwealth v. Parrish, 191 A.3d 31 (Pa. Super. 2018),

appeal denied, 202 A.3d 42 (Pa. 2019).             Additionally, our Court has

recognized that “[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. Johnson, 26 A.3d 1078, 1094 (Pa. 2011).

      Appellant notes that the firearm and the controlled substances were

retrieved from the front of the vehicle, and he was in the rear passenger seat.

He relies on Parrish, in which this Court vacated controlled substances,

paraphernalia, and firearms convictions of a backseat vehicle passenger. In

Parrish, police effected a vehicle stop for a window tint violation. Police, after

observing marijuana in plain view, searched the vehicle and located drugs and

a gun in a bag on the floor by the front passenger seat. Parrish, 191 A.3d at

at 32-33. Marijuana was in the cup holder of the front passenger side door

and another firearm was under the front passenger seat. Id. at 33. Police

found a magazine of bullets in the glove compartment and a bulletproof vest

in the trunk. Id. The defendant was not the registered owner of the vehicle

and did not have a key to the glove compartment or trunk. Id. at 34. Neither

firearm was registered to him. Id. at 38. The defendant was cooperative and

correctly identified himself. Id. at 34. The driver was straddling the console


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between the driver’s seat and front passenger seat when police approached

the vehicle. Id. at 33. A witness testified that the defendant was receiving a

ride home from a party, and that he did not have a bag with him when he

entered the car. Id.

      Thus, the defendant did not own or have a key to the car, and he was

seen getting into the car without the black bag. The evidence indicated that

he merely accepted a ride home from a party.        The driver was exhibiting

furtive movements in the front of the vehicle as police approached, whereas

the defendant was in the back and placed his hands on the headrest. Thus,

there was no positive connection between the defendant and the vehicle or

the contraband, and his connection to the contraband was a matter of

speculation. Under those circumstances, this Court concluded that evidence

of his constructive possession of the contraband was insufficient. Id. at 38.

      Several important pieces of evidence distinguish this case from Parrish.

First, the vehicle was rented in Appellant’s name. Second, the rental vehicle

had an obvious alteration—the side and rear windows were tinted so dark that

police could not see inside the vehicle.   Sargent White testified that in his

experience, a rental vehicle would not have an illegal tint. N.T. Suppression,

12/13/17, at 18-19. Thus, the trial court could reasonably infer that Appellant

was aware that his rental vehicle had been altered to conceal the vehicle’s

contents. Given this, the court also could reasonably infer that Appellant was

aware of other alterations—to the center console and air vent—done for the


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same purpose. The instant record, unlike that of Parrish, establishes much

more than Appellant’s mere presence in the vehicle. He was present in his

own rental vehicle, which was subsequently altered to conceal contraband.

The court was free to discredit Appellant’s claims that he re-rented the vehicle

to make money, and that he just happened to be in the vehicle when police

pulled it over.

      In summary, the evidence, construed in a light most favorable to the

Commonwealth, supports an inference that Appellant had knowledge of and

exercised conscious dominion over the controlled substances and firearm in

his altered rental vehicle.     We therefore reject Appellant’s claim that the

Commonwealth      failed   to   produce   sufficient   evidence   of   constructive

possession.

      In light of all of the foregoing, we reject Appellant’s assertions of error

and affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/19




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