J-S45007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    WINSTON JOHNSON KING,

                             Appellant                No. 777 EDA 2019


        Appeal from the Judgment of Sentence Entered January 8, 2019
            In the Court of Common Pleas of Northampton County
             Criminal Division at No(s): CP-48-CR-0000448-2018


BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                   FILED NOVEMBER 05, 2019

        Appellant, Winston Johnson King, appeals from the judgment of

sentence of an aggregate term of 5 to 10 years’ imprisonment, imposed after

he was convicted by a jury of possession with intent to deliver (PWID) a

controlled substance, 35 P.S. § 780-113(a)(30), possession of a controlled

substance, 35 P.S. § 780-113(a)(16), possession of drug paraphernalia, 35

P.S. § 780-113(a)(32), and criminal conspiracy to commit PWID, 18 Pa.C.S.

§ 903. Herein, Appellant challenges the sufficiency and weight of the evidence

to sustain his convictions. After careful review, we agree with Appellant that

the evidence was insufficient. Therefore, we reverse his judgment of sentence

and order his immediate discharge.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S45007-19



       Appellant was arrested and charged with the above-stated offenses after

a vehicle driven by his co-defendant, Tynika Lataya Moses, in which Appellant

was a passenger, was stopped by Pennsylvania State Trooper John Stepanski.

After Moses consented to a search of the vehicle, Trooper Stepanski

discovered a large quantity of heroin hidden in a compartment in the trunk of

the car. Appellant’s and Moses’ cases were joined and they proceeded to a

jury trial on October 29, 2018.                On October 30, 2018, following the

Commonwealth’s case-in-chief, Appellant moved for judgment of acquittal on

all charges. The court denied that motion. At the close of trial on October 31,

2018, the jury convicted Appellant of PWID, possession of a controlled

substance, possession of drug paraphernalia, and conspiracy to commit

PWID.1 On January 8, 2019, Appellant was sentenced to the aggregate term

set forth supra.

       Appellant filed a timely post-sentence motion that was denied by the

court on February 14, 2019. He then filed a timely notice of appeal, and he

also complied with the court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Herein, Appellant states three

issues for our review:

       1. Did the trial court err when it denied [Appellant’s] motion for
       judgment of acquittal on all counts at the close of the
       Commonwealth’s case where the Commonwealth failed to present
       evidence of a criminal agreement between [Appellant] and Tynika

____________________________________________


1Moses was also convicted of these same offenses.           She filed an appeal that
was docketed by this Court at 453 EDA 2019.

                                           -2-
J-S45007-19


      Moses or that [Appellant] had any knowledge of the contraband
      in the trunk of Moses’ car?

      2. Was the evidence presented at trial legally sufficient to justify
      the jury’s verdict of guilty on all counts where the Commonwealth
      failed to present evidence of a criminal agreement between
      [Appellant] and Tynika Moses or that [Appellant] had any
      knowledge of the contraband in the trunk of Moses’ car?

      3. Did the trial court err in denying [Appellant’s] request for a
      new trial on the grounds that the verdict was against the weight
      of the evidence where the only evidence tending to show
      [Appellant’s] guilt was highly speculative and the scientific
      evidence presented tended to show that another individual placed
      the drugs into the car’s trunk?

Appellant’s Brief at 4.

      Appellant’s first two issues challenge the sufficiency of the evidence to

sustain his convictions. See Commonwealth v. Emanuel, 86 A.3d 892,

894 (Pa. Super. 2014) (“A motion for judgment of acquittal challenges the

sufficiency of the evidence to sustain a conviction on a particular charge, and

is granted only in cases in which the Commonwealth has failed to carry its

burden regarding that charge.”) (citation omitted).
            In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).




                                     -3-
J-S45007-19



      In this case, Appellant challenges his convictions for PWID, possession

of a controlled substance, possession of drug paraphernalia, and conspiracy

to commit PWID. Because our standard of review requires us to assess the

evidence in the light most favorable to the Commonwealth, as the verdict

winner, we reproduce the Commonwealth’s summary of the evidence

admitted at Appellant’s trial:

            Pennsylvania State Police Trooper John Stepanski was
      assigned to monitor westbound traffic on Interstate 78 on October
      3, 2017. Trooper Stepanski had over nine years’ experience as a
      police officer at the time, as well as over two hundred and fifty
      hours of narcotics and interdiction training. N.T., 10/29/18, at
      54-56, 72. During his time with the State Police, Trooper
      Stepanski conducted thousands of traffic stops and effected more
      than two hundred and fifty drug-related arrests, the majority of
      which occurred following a traffic stop. Id. at 55.

             On October 3, 2017, just after 2:00 p.m., Trooper Stepanski
      observed a black Dodge Charger with darkly tinted windows. Id.
      at 57. He initiated a traffic stop. Id. at 58. Trooper Stepanski
      approached the front passenger side of the vehicle, where
      Appellant was seated. Id. at 59-60. Appellant’s co-defendant,
      Ms. Moses, was seated in the driver’s seat. Id. at 60. When
      Trooper Stepanski approached, Appellant was on his cell phone,
      which Trooper Stepanski testified was unusual in his experience
      during traffic stops, and was avoiding eye contact. Id. at 82-83,
      169.     Trooper Stepanski obtained identification from both
      individuals. Id. at 61. Appellant had a New Jersey identification
      card; Ms. Moses had a New Jersey driver’s license. Id. at 61.
      Trooper Stepanski learned that the car, which had New Jersey
      license plates, was recently registered to Ms. Moses at a Newark,
      New Jersey address. Id. at 58-59, 63. Trooper Stepanski testified
      that Ms. Moses was nervous during his initial interaction with her
      and became more nervous when she was asked to exit the vehicle.
      Id. at 99, 104-05. Trooper Stepanski described that at one point,
      Ms. Moses was fidgeting and struggling to open a cough drop and
      eventually put the entire cough drop, still in the wrapper, in her




                                    -4-
J-S45007-19


       mouth. Id. at 82. Trooper Stepanski observed Appellant to have
       “[v]ery abnormal behavior, very nervous.”[2] Id. at 81.

             During the course of the stop, Ms. Moses consented to a
       search of the vehicle. Id. at 64-65, 110; Commonwealth’s Exhibit
       1. Trooper Stepanski found four cell phones in the front center
       console, three of which belonged to Appellant. N.T., 10/29/18, at
       67, 182. During the search of the trunk of the vehicle, Trooper
       Stepanski discovered three sets of New Jersey license plates. Id.
       at 69. Testifying as an expert in drug interdiction, Trooper
       Stepanski explained that “smugglers typically change their license
       plates out quite frequently.” Id. at 76. He further stated that drug
       couriers “keep a fresh license plate so it is not being tracked in
       high trafficking areas.” Id. at 77.

             Trooper Stepanski continued his search in the trunk of the
       vehicle. At that time, Appellant “became extremely nervous and
       agitated. He bladed his body away from” police. Id. at 83-84,
       112. Trooper Stepanski testified that Appellant’s demeanor and
       body language led him to believe contraband would be found in
       the trunk. N.T., 10/30/18, at 183. During his search, Trooper
       Stepanski observed tool marks on the wing nuts that attach the
       carpet to the side[-]wall of the trunk. N.T., 10/29/18, at 78. He
       explained that these marks were indicative of someone removing
       the wing nuts to access the large empty space between the sheet
       metal and the carpet. Id. Trooper Stepanski stated that there is
       “no legitimate purpose of removing these wing nuts and removing
       the carpet [except] to discover these natural voids.” N.T.,
       10/30/18, at 179.

             After observing these markings, Trooper Stepanski removed
       the wing nuts to check the space behind the carpet. When he
       performed his search on the right said of the vehicle, he observed
       Appellant “blade[] himself away from the traffic stop, away from
       the other officers” and “bec[o]me very engaged in what [Trooper
       Stepanski] was doing.” N.T., 10/29/18, at 83-84, 112. Trooper
       Stepanski described Appellant as staring intently at him and the
____________________________________________


2 We note that, just after this statement by Trooper Stepanski, the court asked
him to clarify which defendant he was referring to, and the trooper proceeded
to focus his testimony on Moses’ nervous conduct. N.T. Trial, 10/29/18, at
82. Thus, contrary to the Commonwealth’s suggestion, it is not clear that
Trooper Stepanski believed Appellant was exhibiting nervous or abnormal
behavior at this point of the traffic stop.

                                           -5-
J-S45007-19


     trunk, even though he had not been watching the earlier portion
     of the search. N.T., 10/30/18, at 169-70. Based on Appellant’s
     demeanor and expression as the search moved to the right side
     of the trunk, Trooper Stepanski believed Appellant “was going to
     run.” Id. at 83-84, 114.

            On the right side of the trunk, Trooper Stepanski found a
     white plastic bag. Id. at 79. The bag contained rubber bands and
     1000 small glassine bags of an off-white substance, which was
     later confirmed to be approximately twenty-seven grams of
     heroin. Id. at 53, 90[;] Commonwealth’s Exhibit 6. The heroin
     was bundled in sets of fifty bags and wrapped in textbook paper,
     which Trooper Stepanski testified was a common method used by
     drug dealers to secure heroin. N.T., 10/29/18, at 84, 86-87. Each
     individual glassine bag contained a single dose of heroin and was
     stamped with a blue star logo. Id. at 90-91; N.T., 10/30/18, at
     272; Commonwealth’s Exhibit 6.

            At trial, Corporal James Petti of the Pennsylvania State
     Police Bureau of Forensic Services testified as an expert in
     fingerprint and palm print analysis. N.T., 10/30/18, at 197, 203.
     Corporal Petti stated that he examined the white plastic shopping
     bag and the textbook papers that were wrapped around the heroin
     bundles. Id. at 207. He stated that “there was a lot of touching
     and friction-ridged skin on … both items,” and he was able to find
     ten identifiable prints and multiple unidentifiable prints. Id. at
     185, 208-09. While Appellant was excluded as a source for seven
     of the identifiable prints, no determination could be made for the
     three other prints. Id. at 210-11, 224. Further, Corporal Petti
     testified that it was possible to not leave fingerprints on an item
     for a variety of reasons, including wearing gloves or having dry
     skin. Id. at 212.

            Brittni Andaloro, a forensic scientist with the Pennsylvania
     State Police DNA laboratory, testified as a DNA analysis expert.
     Id. at 229-30, 232. She tested twelve samples and eleven of
     those samples resulted in no interpretable results because of an
     insufficient quantity of DNA. Id. at 240, 242. Ms. Andaloro stated
     that, from these eleven samples, she could not include or exclude
     Appellant as a DNA contributor. Id. at 240-42. However, she was
     able to identify that several of the samples contained male DNA.
     Id. at 250-55.

           Finally, Detective Sergeant Michael Mish, a twenty[-]year
     veteran of the Bethlehem Police Department, testified as an


                                    -6-
J-S45007-19


     expert in the field of narcotics. Id. at 262, 268. Detective
     Sergeant Mish explained that 1000 bags is a “commonly
     distributed increment[]” of heroin and it is “very common” for the
     heroin bundles to be wrapped in textbook paper. Id. at 274. This
     amount of heroin would have a street value of approximately
     $5000.00. Id. at 278. Detective Sergeant Mish testified that
     when drugs are transported in a passenger vehicle with only a few
     occupants,

        those couriers always know [there are drugs in the vehicle]
        because you’re not going to employ someone [who does not
        know] to take thousands of dollars of material from A to B.
        You’re going to want to know that person is being
        careful[….] … They’re going to protect it.           It is
        counterintuitive for that person not to know.

     Id. at 280. Detective Sergeant Mish stated that, in the context of
     this stop, “where you’re using an interstate and going a significant
     distance,” every individual in the vehicle would be aware of the
     drugs contained in the vehicle. Id. at 294.

            Detective Sergeant Mish stated that, in his expert opinion,
     the heroin found in the vehicle was possessed with the intent to
     deliver. Id. at 287. He relied on several factors in reaching his
     conclusion. First, the discovery of rubber bands with the heroin
     indicated a manufacturing use to keep the bundles of heroin
     together. Id. at 283-84. Second, the large quantity of glassine
     bags was far more than Detective Sergeant Mish had ever seen a
     user possess. Id. at 278; see id. at 287 (referring to 1000 bags
     as “overwhelming numbers, not a borderline number”). Further,
     no user paraphernalia was found in the vehicle, such as needles,
     spoons, or opened packets. Id. at 278, 287. It was also
     significant to Detective Sergeant Mish that the drugs were not in
     an easily accessible area, because users typically purchase and
     use heroin immediately. Id. at 286.

Commonwealth’s Brief at 9-15.

     From the totality of this evidence, the Commonwealth insists that

Appellant’s convictions must be sustained. It summarizes:

     Appellant was present in a vehicle driven by Moses on Interstate
     78 where 1000 bags of heroin were found, but no user
     paraphernalia or other evidence that the drugs were for personal


                                    -7-
J-S45007-19


      consumption was discovered. Both Moses and Appellant exhibited
      signs of nervousness during the stop. In particular, Appellant
      avoided eye contact with Trooper Stepanski and his demeanor and
      body language changed significantly as Trooper Stepanski neared
      the hidden compartment containing the heroin. Police recovered
      a large amount of heroin, along with rubber bands, which was
      packaged for individual sale. The heroin was concealed in a
      hidden compartment that required tools to access and was in an
      area that would not be accessed for a legitimate purpose. This
      evidence is sufficient to establish that Appellant committed the
      crimes of possession with intent to deliver, possession of a
      controlled substance, possession of drug paraphernalia, and
      criminal conspiracy.

Id. at 15.

      Appellant, on the other hand, is adamant that the evidence was

insufficient to prove his guilt of the crimes for which he was convicted. He

argues that the Commonwealth failed to establish that he constructively

possessed the drugs in Moses’ trunk. Appellant stresses that “the drugs were

found hidden beneath the lining of the trunk in a compartment separate from

the passenger compartment where [he] was seated[,]” and there was no

evidence that Appellant “ever had access to the trunk.” Appellant’s Brief at

21, 23.      Appellant notes that he cooperated with police, provided correct

identification, and voluntarily returned to the police station “well after the

arrest date” to provide a DNA sample.         Id. at 23 n.1.     He also correctly

observes that, “[w]hile [he] was found in possession of more than one cell

phone, the Commonwealth’s own expert testified that in today’s society this

is no longer a suspicious indicator of drug activity.” Id. at 23 (citing N.T. Trial,

10/30/18, at 298 (Detective Sergeant Mish’s testifying that it is “[b]ecoming




                                       -8-
J-S45007-19



more common in today’s day and age” for a person to have more than one

cell phone).

      Additionally, regarding his conviction of criminal conspiracy, Appellant

maintains that the evidence admitted at trial proved only that he was present

in Moses’ car “and that Trooper Stepanski believed him to be acting

nervous….” Appellant’s Brief at 10. He avers that there “was no evidence -

direct or circumstantial - to show that [he] had any agreement or shared

criminal intent with Moses.” Id. He stresses that he,

      was not the owner of the vehicle. There was no evidence that
      [he] ever spoke to Moses about what was in the trunk of the car.
      The only evidence the Commonwealth presented of [Appellant’s]
      knowledge or agreement was the fact he was sitting in the
      passenger’s seat of the vehicle in which the drugs were found.
      However, “[m]ere presence at or near the scene of an offense, it
      has been held repeatedly, is insufficient to establish that one is
      part of a conspiracy.” [Commonwealth v.] Carter, [450 A.2d
      142,] 145 [(Pa. Super. 1982)].

Id. at 11.

      After careful review of Appellant’s arguments, the case law on which he

relies, and the certified record, we agree with Appellant that the evidence was

insufficient to support his convictions. Initially, the Commonwealth failed to

demonstrate that Appellant constructively possessed the drugs in Moses’

vehicle.   Regarding the concept of constructive possession, this Court has

explained:

            Where a defendant is not in actual possession of the
      prohibited items, the Commonwealth must establish that the
      defendant had constructive possession to support the conviction.
      Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super.


                                     -9-
J-S45007-19


     2013) (conviction under 18 Pa.C.S. § 6106(a) supported by a
     finding of constructive possession). See also Commonwealth
     v. Parker, 847 A.2d 745 (Pa. Super. 2004) (same). “Constructive
     possession is a legal fiction, a pragmatic construct to deal with the
     realities of criminal law enforcement.” Hopkins, supra at 820
     (citation and quotation omitted). “We have defined constructive
     possession as conscious dominion,” meaning that the defendant
     has “the power to control the contraband and the intent to
     exercise that control.” Id. (citation and quotation omitted). “To
     aid application, we have held that constructive possession may be
     established by the totality of the circumstances.” Id. (citation and
     quotation omitted).

           It is well established that, “[a]s with any other element of a
     crime, constructive possession may be proven by circumstantial
     evidence.” Commonwealth v. Haskins, 450 Pa. Super. 540,
     677 A.2d 328, 330 (1996) (citation omitted). In other words, the
     Commonwealth must establish facts from which the trier of fact
     can reasonably infer that the defendant exercised dominion and
     control over the contraband at issue. See, e.g., Commonwealth
     v. Davis, 743 A.2d 946, 953–54 (Pa. Super. 1999) (holding that
     evidence was sufficient to prove constructive possession over
     drugs found in common areas of an apartment where the
     defendant entered the apartment using his own key, and
     possessed $800 in cash on his person, and police recovered
     defendant's identification badge, size-appropriate clothing, and
     firearms from a bedroom).

            Significant to the instant appeal, a defendant’s mere
     presence at a place where contraband is found or secreted is
     insufficient, standing alone, to prove that he exercised dominion
     and control over those items. Commonwealth v. Valette, 531
     Pa. 384, 613 A.2d 548, 551 (1992). Thus, the location and
     proximity of an actor to the contraband alone is not conclusive of
     guilt. Commonwealth v. Juliano, 340 Pa. Super. 501, 490 A.2d
     891, 893 (1985). Rather, knowledge of the existence and location
     of the contraband is a necessary prerequisite to proving the
     defendant’s intent to control, and, thus, his constructive
     possession. Id., citing Commonwealth v. Thompson, 286 Pa.
     Super. 31, 428 A.2d 223, 224 (1981).

            If the only inference that the fact finder can make from the
     facts is a suspicion of possession, the Commonwealth has failed
     to prove constructive possession. Valette, supra at 551. “It is
     well settled that facts giving rise to mere ‘association,’ ‘suspicion’

                                    - 10 -
J-S45007-19


      or ‘conjecture,’ will not make out a case of constructive
      possession.” Id.

Commonwealth v. Parrish, 191 A.3d 31, 36-37 (Pa. Super. 2018).

      Our decision in Parrish provides guidance in the present case. There,

Parrish was a back-seat passenger in a vehicle driven by Pernell Riddick, which

was stopped by police for a tinted-window violation. Id. at 33. As the officers

approached the vehicle, they observed “it rocking back and forth.” Id. Then,

      [] Riddick rolled down the window, and the police officers smelled
      marijuana and observed a plastic baggie containing marijuana in
      plain view. They also observed [] Riddick straddling the center
      console between the two front seats and the grip of a silver
      handgun protruding from under the front passenger seat. The
      officers further observed [Parrish] seated behind the driver’s seat
      with his hands on the headrest of the driver’s seat.

      The officers arrested [] Riddick and [Parrish] and subsequently
      searched the entire vehicle. On the floor on the passenger side of
      the front of the vehicle, the officers found a black bag. In the bag
      was a loaded .45 caliber handgun, 250 wax paper packets of
      heroin packaged into bundles, 12 individual packets of
      methamphetamines, a baggie of loose heroin, two scales,
      packaging material, and unknown powder substance, a spoon,
      and a magazine containing .40 caliber ammunition. The officers
      also found in the front of the passenger cabin of the vehicle,
      marijuana on the passenger-side door and a .40 caliber handgun
      protruding from under the passenger-side seat.

      In the glove compartment, the officers found an extra magazine
      of bullets, and in the trunk, they found a bulletproof vest. The
      officers also found $1,335 in cash on [Parrish] and $2,168 on
      Riddick. During his arrest, [Parrish] cooperated with the police,
      correctly identified himself, and did not attempt to flee.

Id. Additionally, at trial, the Commonwealth presented expert testimony of a

police officer, who opined that the presence of two guns in the vehicle

demonstrated that Riddick and Parrish had each possessed a gun, as the



                                     - 11 -
J-S45007-19



officer did not “generally come across one person carrying more than one gun

in a car.” Id. at 34 (citation to the record omitted).

      Parrish was ultimately convicted of several possessory drug offenses,

including PWID, as well as criminal conspiracy. On appeal to this Court, he

challenged the sufficiency of the evidence to sustain his convictions, arguing

that the Commonwealth had failed to prove he constructively possessed the

contraband in the vehicle. We agreed with Parrish and reversed his judgment

of sentence, reasoning as follows:

             In the instant case, [Parrish] was sitting in the back the
      vehicle on the driver’s side. The police located all of the
      contraband in the front of the car. In particular, the police found
      the black satchel containing contraband on the passenger-side
      floor of the front of the vehicle, the gun under the front passenger-
      side seat, and marijuana on the front passenger door.

            Moreover, the evidence also established that [Parrish] was
      not carrying any type of bag when he entered the car; he did not
      have keys to the car, and was not the owner or operator of it.
      There is no evidence that [Parrish] had ever been seated in either
      of the car’s front seats. Neither of the recovered firearms was
      registered to him and there was no fingerprint evidence for either
      weapon.

             Following our review of the evidence, we fail to see how the
      jury could reasonably infer that [Parrish] had knowledge of the
      contraband in the black bag located in the front row of the vehicle,
      let alone exercise dominion and control over its contents. The only
      evidence presented regarding the black bag in the vehicle was its
      location and that [Parrish] did not carry a black bag into the
      vehicle. From this, it is not reasonable for the jury to conclude
      that [Parrish] knew about the contents of the black bag and
      exercised dominion and control over it.

            Similarly, we fail to see how the jury could reasonably
      conclude that [Parrish], while sitting in the back seat of the
      vehicle, had dominion and control over the gun under the
      passenger-side front seat and the marijuana on front passenger-

                                     - 12 -
J-S45007-19


     side door. Rather, the evidence reveals that [Parrish] was merely
     present on the driver’s side of the back seat of [] Riddick’s car,
     while police officers discovered the contraband on the passenger
     side of the front row of the vehicle.

           Simply stated, the Commonwealth did not present any
     evidence from which it would be reasonable for the jury to infer
     that [Parrish] had knowledge of or exercised dominion and control
     over the contraband.

            Moreover, to the extent that Officer Bevilaqua intended to
     attribute the rocking of the vehicle that he observed following the
     commencement of the traffic stop to [Parrish] jettisoning himself
     away from the contraband located in the front seat, we conclude
     that, absent other evidence, it is equally reasonable to infer that
     the rocking was caused by Riddick—who police discovered
     straddling the center console—attempting to obscure his
     contraband from sight. In addition, given the evidence regarding
     [Parrish’s] height and weight, and the size of the vehicle, it strains
     credulity to conclude that [Parrish] was able to propel himself from
     the front seat to the back seat in the short time it took for the
     officers to reach the vehicle.

           Notwithstanding Detective Palka’s opinion that, in his
     experience, the presence of two firearms generally indicates that
     each occupant possessed a gun, we cannot agree that this
     evidence is sufficient for a factfinder to conclude that [Parrish]
     possessed the firearm in this case.

Id. at 37-38.

     Appellant contends that here, “the evidence of record is even more

tenuous than the evidence presented in the Parrish case.” Appellant’s Brief

at 23. He explains:

           Both [Appellant] and Parrish cooperated with the police,
     provided correct identification[,]1[] and did not attempt to flee.
     However, in Parrish, much of the evidence was unconcealed in
     the passenger compartment of the vehicle.          … [H]ere, the
     evidence was secreted in a hidden compartment in the trunk -
     with no evidence that [Appellant] ever had access to the trunk.
           1 [Appellant] demonstrated even more cooperation with
     police when, well after the arrest date, [he] returned to the police

                                    - 13 -
J-S45007-19


      upon request and provided a DNA sample while the driver and co-
      defendant avoided investigators.

             Further, Parrish was found with a substantial amount of cash
      on his person while [Appellant] was not. While [Appellant] was
      found in possession of more than one cell phone, the
      Commonwealth’s own expert testified that in today’s society this
      is no longer a suspicious indicator of drug activity. Finally,
      Parrish reinforces the conclusion in [Commonwealth v.]
      Valette[, 613 A.2d 548 (Pa. 1992),] that any testimony from the
      Commonwealth’s expert as to common practices of individuals
      traveling in cars with quantities of drug is mere conjecture and
      suspicion and cannot support a finding of guilt beyond a
      reasonable doubt. Parrish, [191 A.3d] at 38 (“Notwithstanding
      Detective Palka’s opinion that, in his experience, the presence of
      two firearms generally indicates that each occupant possessed a
      gun, we cannot agree that this evidence is sufficient for a
      factfinder to conclude that [Parrish] possessed the firearm in this
      case.”).

Appellant’s Brief at 23-24 (citation to the reproduced record omitted).

      Appellant’s arguments are compelling.     In addition to his points, we

stress that seven of the identifiable fingerprints on the drugs were not

Appellant’s, and none of the DNA on the contraband could be verified as his.

We recognize that Appellant omits any mention of Trooper Stepanski’s

testimony that he acted evasively at the start of the traffic stop by avoiding

eye contact with the trooper, and that he became extremely nervous and

looked like he might run when the trooper’s search neared the right-side of

the trunk where the drugs were ultimately found.        Even considering this

testimony, however, the trooper’s subjective assessment of Appellant’s

behavior was not enough for the jury to reasonably infer that Appellant knew

about the drugs, where no other evidence established Appellant’s knowledge

but for his mere presence in the vehicle. Moreover, Appellant’s nervousness


                                    - 14 -
J-S45007-19



could have arisen simply from the circumstances of the stop itself. Notably,

Appellant and Moses had fully complied with Trooper Stepanski, yet they were

asked to exit the vehicle so it could be searched. At that time, two backup

patrol vehicles (including a canine unit) containing three additional officers

had arrived at the scene.   N.T. Trial, 10/29/18, at 63-64.    While Trooper

Stepanski searched the entirety of the car, Appellant and Moses stood on the

side of a busy interstate highway as traffic passed at “65 [to] 70 miles an

hour.” Id. at 59. During the search, Trooper Stepanski periodically looked

back at Moses and Appellant and attempted to make eye contact and “observe

their body reactions.” Id. at 83. Given these facts of the stop and search,

and considering that no other evidence established Appellant’s knowledge of

the drugs in Moses’ car, it was not reasonable for the jury to conclude that

Appellant knew about the narcotics simply because he acted nervous during

the search.

      Similarly, Detective Sergeant Mish’s expert testimony did not support

that Appellant knew about the drugs.         In the majority of the detective

sergeant’s testimony cited by the Commonwealth, he seemed to focus on the

knowledge of the driver of a vehicle containing drugs, whom he labeled a

drug “courier.”   See N.T. Trial, 10/30/18, at 280.    On cross-examination,

defense counsel attempted to clarify the detective’s opinion regarding

passengers in such vehicles, questioning the detective sergeant as follows:

      [Defense Counsel:] You made a few statements about couriers,
      the drivers of the vehicles, correct?


                                    - 15 -
J-S45007-19


      [Detective Sergeant Mish:] Yes.

      [Defense Counsel:] How … generally they know what’s in the
      vehicle or claim they don’t know, and in subsequent investigation
      you will find drugs, correct?

      [Detective Sergeant Mish:] Yes.

      [Defense Counsel:] Is it your opinion that it’s also the same for
      passengers in the vehicle[,] that they automatically know what’s
      in there?

      [Detective Sergeant Mish:] Yes.

      [Defense Counsel:] Every single person knows what’s in someone
      else’s vehicle?

      [Detective Sergeant Mish:] Again, in a situation where you’re
      using an interstate and going a significant distance, yes, I would
      say so.

Id. at 293-94.

      Detective Sergeant Mish’s opinion that any passenger of a vehicle

containing drugs, that is traveling a lengthy distance on an interstate,

necessarily knows that drugs are in the car is simply illogical. Moreover, it

clear that the ultimate fact for the jury to determine in this case was whether

Appellant knew about, and constructively possessed, the drugs in the trunk of

the vehicle.   Consequently, Detective Sergeant Mish’s testimony improperly

“invite[d] the jury to abdicate its responsibility to ascertain and assess the

facts and, instead, defer to the expert’s opinion.”      Commonwealth v.

Montavo, 653 A.2d 700, 705 (Pa. Super. 1995) (concluding that a trooper’s

expert testimony that the “appellant’s and his co-defendant’s travels to drug

trafficking areas indicated that they were involved in narcotics dealing … was

beyond the scope of [the] [t]rooper[’s] … qualification as an expert”) (citing



                                    - 16 -
J-S45007-19



Commonwealth v.            Carter, 589 A.2d 1133, 1134 (Pa.           Super.    1991)

(citations omitted)).       Thus, Detective Sergeant Mish’s opinion does not

support a reasonable inference that Appellant knew about the drugs.

       In sum, the evidence presented by the Commonwealth did not

demonstrate that Appellant constructively possessed the drugs found in

Moses’ vehicle. Accordingly, his PWID, possession of a controlled substance,

and possession of drug paraphernalia convictions must be reversed.

Additionally, absent Appellant’s constructive possession of the drugs, there

was insufficient evidence to prove that he had “a shared criminal intent” with

Moses to deliver those narcotics.          Commonwealth v. Murphy, 795 A.2d

1025, 1038 (Pa. Super. 2002) (“[A] conviction for conspiracy requires proof

of the existence of a shared criminal intent.”).              Therefore, we reverse

Appellant’s conviction for criminal conspiracy, as well.3

       Judgment of sentence reversed.              Appellant discharged.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/19
____________________________________________


3 Given our disposition, we need not address Appellant’s third issue
challenging the weight of the evidence.

                                          - 17 -
