J-S77003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RONNIE SMITH                               :
                                               :
                       Appellant               :   No. 3386 EDA 2017

          Appeal from the Judgment of Sentence September 14, 2017
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-000103-2016


BEFORE:      OTT, J., DUBOW, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                                  FILED MARCH 07, 2019

        Ronnie Smith appeals from the judgment of sentence imposed

September 14, 2017, in the Philadelphia County Court of Common Pleas. The

trial court sentenced Smith to an aggregate term of six to 12 years’

imprisonment, and two years’ consecutive probation, following her non-jury

conviction of, inter alia, possession with intent to deliver controlled substances

[“PWID”] and criminal use of a communication facility.1        On appeal, Smith

challenges the sufficiency of the evidence supporting those two convictions.

For the reasons below, we affirm.




____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   See 35 P.S. § 780-113(a)(30), and 18 Pa.C.S. § 7512, respectively.
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     The facts underlying Smith’s arrest and conviction were aptly

summarized by the trial court as follows:

           On October 1, 2015, the Philadelphia police received
     information including a phone number [that] led them [to the]
     1500 block of Woodstock Street. On that date, Officer Jason
     Yerges dialed the phone number and listened on speakerphone to
     a conversation between a confidential informant (C.I.) and the
     recipient of the call. Yerges testified that he heard what appeared
     to be a female voice speaking on the receiving end of the call.
     Yerges then gave the C.I. $40 of buy money and directed him to
     conduct a transaction with the recipient of the phone call at 1551
     South Woodstock Street. He observed the C.I. enter the house
     and exit approximately 5 minutes later. The C.I. returned to
     Yerges’s patrol car and handed to him one blue pill stamped with
     "A 215." A seizure analysis indicated that the pill tested positively
     for oxycodone.

            On October 7, 2015 at approximately 7:00 p.m., Officer
     Yerges employed the same C.I. to replicate the previous
     transaction. Yerges testified that he redialed the same phone
     number, and the C.I. arranged a drug buy with the recipient of
     the phone call, Yerges then gave the C.I. $40 in buy money and
     directed him to go to the 1500 block of South Woodstock Street.
     Yerges testified that he witnessed [Smith] exchange items with
     the C.I. at the front door of 1551 South Woodstock Street. The
     C.I. then returned to Yerges and gave him two green pills stamped
     "A 214" immediately after the transaction. A seizure analysis
     indicated that these pills tested positively for oxycodone.

            On October 15, 2015, Officer Yerges and other officers
     returned to the same location with a search warrant for 1551
     South Woodstock Street at approximately 2:00 pm. Yerges set
     up surveillance from his patrol car at the corner of Tasker Street
     and Woodstock Street (approximately 100 feet from the target
     location). Yerges testified that the front door to the house was
     open and he observed [Smith] seated on a chair a few feet within
     the entrance. Approximately fifteen minutes later, he observed a
     female walk down the 1500 block at South Woodstock Street with
     money in her hand and approach the doorway. [Smith] came to
     the doorway (in sight of Yerges) and exchanged items for
     money.16
        __________

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         16 The unidentified female wore a red coat and blue jeans.
         Officer Yerges observed the female exchange money for
         items from [Smith] and then saw the female put her palm
         to her mouth before walking away. He indicated that it was
         not a swallowing motion.

         __________

            On October 16, 2015 at approximately 12:30 p.m., Officer
      Yerges and other agents set up surveillance at the same location.
      Yerges testified that he observed a heavyset black male (Leonard
      Ware) knock on the door to 1551 South Woodstock Street several
      times unanswered. He then observed Ware looking up and down
      the street and answering a couple phone calls. Approximately 15
      minutes later, he observed [Smith] and two male passengers
      arrive in a SUV. [Smith] was carrying a brown handbag when she
      exited the vehicle. [Smith], Ware, and the unidentified men then
      entered the house.

            Shortly thereafter, the police and other agents knocked and
      announced their presence before using force to enter the house.
      [Smith] was secured in the hallway on the second floor as was a
      brown handbag in close proximity to her. Police recovered from
      the brown handbag 6 pill bottles containing various scheduled
      drugs, a small clear glass jar containing purple liquid, a utility bill
      for 1551 South Woodstock Street in [Smith’s] name, a white cell
      phone, and cash.24 Yerges dialed the same number he had used
      during his investigation with the C.I., and the white cell phone
      alerted and displayed his phone number. Police also recovered a
      firearm and other drug paraphernalia from the house, though
      none of these items were ultimately attributed to [Smith].
          __________
         24 Seizure analysis of the scheduled drugs in the pill bottles
         tested positively for oxycodone, Alprazolam, codeine and
         acetaminophen, Dizepam, and a non-controlled prescription
         item.

Trial Court Opinion, 7/10/2018, at 2-4 (most footnotes and all record citations

and emphasis omitted).

      Smith was arrested and charged with PWID, possession of controlled

substances, possession of drug paraphernalia, conspiracy, criminal use of a

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communication facility, possession of a firearm prohibited, and possessing an

instrument of crime.2 The case proceeded to a non-jury trial. On December

16, 2016, the trial court found Smith guilty of PWID, conspiracy, criminal use

of a communication facility, possession of controlled substances and

possession of drug paraphernalia.              The court found her not guilty of the

remaining crimes concerning the firearm. On September 14, 2017, the trial

court sentenced Smith to a term of six to 12 years’ imprisonment for PWID,

and a consecutive term of two years’ probation for criminal use of a

communication facility.       No further penalty was imposed on the remaining

offenses. Smith filed a timely notice of appeal, pro se, on October 10, 2017.

New counsel was appointed, and, on February 12, 2018, complied with the

trial court’s directive to file a concise statement of matters complained of on

appeal.

       Smith raises two issues on appeal, both challenging the sufficiency of

the evidence supporting her convictions.             Our standard of review is well-

established:

       When reviewing challenges to the sufficiency of the evidence, we
       evaluate the record in the light most favorable to the
       Commonwealth as verdict winner, giving the prosecution the
       benefit of all reasonable inferences to be drawn from the evidence.
       “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.”
       However, the Commonwealth need not establish guilt to a
____________________________________________


2See 35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32), and 18 Pa.C.S. §§
903, 7512(a), 6105(a)(1), and 907(a), respectively.


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      mathematical certainty, and it may sustain its burden by means
      of wholly circumstantial evidence. In addition, this Court may not
      substitute its judgment for that of the factfinder, and where the
      record contains support for the convictions, they may not be
      disturbed. Lastly, we note that the finder of fact is free to believe
      some, all, or none of the evidence presented.

Commonwealth v. Smith, 146 A.3d 257, 261–262 (Pa. Super. 2016)

(internal citations omitted).

      Smith first argues the evidence was insufficient to support her conviction

of PWID.   “In order to convict an accused of PWID under 35 P.S. § 780–

113(a)(30), the Commonwealth must prove that [s]he ‘both possessed the

controlled substance and had an intent to deliver that substance.’”

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

omitted), aff’d by evenly divided court, 106 A.3d 705 (Pa. 2014).

      When controlled substances are not found on the defendant’s person,

the Commonwealth must prove constructive possession of the drugs. See

Commonwealth v. Walker, 874 A.2d 667, 677 (Pa. Super. 2005).

“Constructive possession is an inference arising from a set of facts that

possession of the contraband was more likely than not.” Smith, supra, 146

A.3d at 263 (quotation omitted). It has been defined as “conscious dominion,”

that is “the power to control the contraband and the intent to exercise that

control,” and it “may be established by the totality of the circumstances.”

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

omitted), appeal denied, 78 A.3d 1090 (Pa. 2013). Moreover, it is possible

for two or more people to have joint constructive possession of the same



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contraband.     Commonwealth v. Kinnard, 95 A.3d 279, 292 (Pa. Super.

2014).

      Similarly, the fact finder should consider all the facts and circumstances

surrounding the defendant’s possession of contraband to determine if she

possessed it with the intent to deliver. See Commonwealth v. Lee, 956

A.2d 1024, 1028 (Pa. Super. 2008) (citation omitted), appeal denied, 964

A.2d 894 (Pa. 2009). Relevant factors include: “the manner in which the

controlled substance was packaged, the behavior of the defendant, the

presence of drug paraphernalia, and large sums of cash[.]” Koch, supra, 39

A.3d at 1001.

      In the present case, Smith insists she was merely present in the home,

with five other people, when the police executed the search warrant. See

Smith’s Brief at 15. As for the pill bottles recovered from the brown purse,

Smith emphasizes that three of the bottles bore her name, one bore the name

of her son, and the other bottles “likely belonged to any of the other five

people in the home” as the bag was “equally accessible” to them. Id. at 14,

15.   Absent a narcotics expert, she contends the Commonwealth failed to

establish she possessed the drugs with the intent to deliver. See id. at 16.

With regard to the cell phone, which had been used to coordinate the prior

controlled buys, Smith notes the Commonwealth did not establish who owned

the phone, and the “female voice” heard during the controlled buy could have

been any of the three other women present during the execution of the

warrant. Id. at 15.

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        The trial court concluded the Commonwealth proved, beyond a

reasonable doubt, that Smith possessed the pills with the intent to deliver

them. See Trial Court Opinion, 7/10/2018, at 6-7. We agree.

        First, the court noted the police recovered six pill bottles from the purse

she had been seen carrying into the residence. See id. at 6. While several

of the bottles had labels with both her and her son’s name, two of the bottles

contained a label that had been scratched off.         Inside those bottles were

controlled substances, for which Smith did not have a prescription. See id.

at 6.     Second, the court noted the Commonwealth used a confidential

informant (“CI”) to purchase oxycodone from the residence on two separate

occasions. The first time, on October 1, 2015, the officer heard a female voice

on the call the CI placed to the supplier. See id. at 7.3 During the second

controlled buy, conducted less than a week later, the officer observed Smith

meet the CI at the door, and exchange items for money. See id. Accordingly,

the trial court found the evidence was sufficient to convict Smith of PWID.

        Our review of the record reveals ample support for the trial court’s

findings. The fact that other persons were present in the residence at the

time of the search is irrelevant. Officer Yerges identified a female voice on

the phone during the first controlled buy, and saw Smith, herself, exchange

items for money during the second controlled buy. See N.T., 12/9/2016, at

____________________________________________


3 The court also stated that Officer Yerges saw Smith answer the door during
the October 1, 2015, controlled buy. However, that statement is not
supported by the record. See N.T., 12/9/2016, at 23-25.

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23, 32. He also witnessed Smith conduct another probable drug transaction

the day before the search.     See id. at 40.    Two of the pill bottles were

recovered from a brown purse that he had seen Smith carrying shortly before

the search. See id. at 28-29, 45-46. There were also items with her name

in the purse, as well as the cell phone with the number used to set up the

controlled buys.    See id. at 55, 59-60.         Under the totality of the

circumstances, we agree with the trial court’s determination that the evidence

was more than sufficient to support Smith’s conviction of PWID.

      Next, Smith argues the evidence was insufficient to sustain her

conviction of criminal use of a communication facility. Section 7512 of the

Crimes Code provides, in pertinent part, “[a] person commits a felony of the

third degree if that person uses a communication facility to commit, cause or

facilitate the commission or the attempt thereof of any crime which constitutes

a felony[.]” 18 Pa.C.S. § 7512(a).

      Here, Smith insists “the only evidence” of this offense was the CI’s drug-

related conversation with a “female voice.”       Smith’s Brief at 16.      She

emphasizes the Commonwealth presented no evidence “as to whom the phone

is registered,” and that, it was “equally accessible by any of the other five

people in the home.” Id. at 16-17.

      The trial court addressed this claim as follows:

      Officer Jason Yerges received a phone number and other
      information on October 1, 2015 that led him to the 1500 block of
      Woodstock Street. Yerges dialed the phone number and listened
      on the speakerphone to a conversation between the C.I. and the
      recipient of the call. Yerges heard what appeared to be a female’s

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     voice on the receiving end of the call. Yerges then gave the C.I.
     $40 of buy money and directed him[ or her] to conduct a
     transaction with the recipient of the phone call at 1551 South
     Woodstock Street. [H]e observed the C.I. enter the house and
     exit approximately 5 minutes later.       The C.I. subsequently
     returned to Yerges and handed to him one blue pill stamped “A
     215.” The seizure analysis reflected that the pill tested positively
     for oxycodone.

            On October 7, 2015, Yerges used the same C.I. to make a
     second drug purchase. Yerges redialed the same phone number
     and had the C.I. arrange a drug buy with the person who
     answered the call. Yerges also gave the C.I. $40 in buy money.
     Yerges next witnessed [Smith] exchange items with the C.I. at
     the front door of 1551 South Woodstock Street. The C.I.
     immediately gave Yerges two green pills stamped “A 214” after
     the transaction. The seizure analysis reflected that the pills tested
     positively for oxycodone.

           On October 16, 2015, police executed a search warrant at
     1551 South Woodstock Street.          However, approximately 15
     minutes before the warrant was executed, Yerges observed
     [Smith] and 2 other men arrive at the location in a vehicle. Yerges
     observed [Smith] exit the vehicle with a brown handbag before all
     of the passengers entered the house. The police then executed
     the warrant, arrested [Smith], and recovered the same brown
     handbag on the second floor in close proximity to [her]. When
     police searched the brown handbag, they recovered 6 pill bottles
     containing various scheduled drugs, a clear bottle containing a
     purple liquid, a utility bill for 1551 South Woodstock Street in
     [Smith’s] name, and a white cell phone. Yerges dialed the same
     number that he had used with the C.I. during his investigation,
     and the white cell phone began ringing in his presence.

             Given the evidence, the Commonwealth established beyond
     a reasonable doubt that [Smith] knowingly and intentionally used
     the white cell phone to communicate with the C.I. before the
     October 1, 2015 and October 7, 2015 transactions. Furthermore,
     [Smith] knowingly facilitated the illegal drug transactions with the
     C.I. [Her] culpability is further evidenced by the blue and green
     pills the C.I. returned to Yerges on each date after interacting with
     [Smith].




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Trial Court Opinion, 7/10/2018, at 8-10 (footnotes, record citations and

emphasis omitted).

       We find no basis to disagree.     The circumstantial evidence clearly

supports Smith’s conviction of violating Section 7512 of Title 18. The CI used

the same phone number to contact his or her supplier before each controlled

buy. During the first transaction, the officer heard a female voice on the other

end. During the second transaction, the officer witnessed Smith answer the

door, and exchange items for money. When a cell phone was recovered from

Smith’s purse during the search, the officer called the number supplied by the

CI.   Immediately, the newly discovered cell phone rang and displayed the

officer’s number.    Under these circumstances, we agree the evidence was

sufficient to support Smith’s conviction of criminal use of a communication

facility.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/19




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