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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 MOUNT,                              :           No. 761 EDA 2017
                                            :
                          Appellant         :


          Appeal from the Judgment of Sentence, September 29, 2016,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0004411-2014


BEFORE: STABILE, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED AUGUST 19, 2019

        William Mount appeals from the September 29, 2016 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County

following his conviction in a waiver trial of manufacture, delivery, or

possession with intent to manufacture or deliver a controlled substance;

possession of a controlled substance; possession of drug paraphernalia; and

possession of a small amount of marijuana.1            The trial court imposed a

sentence of 11½ to 23 months’ incarceration with immediate parole and

4 years’ reporting probation on the possession with the intent to deliver

conviction and no further penalty on the remaining convictions. We affirm.

        The trial court set forth the following factual history:




1   35 P.S. §§ 780-113(a)(30), (16), (32), and (31), respectively.
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           On February 11, 2014, a report was filed by the victim
           of a robbery stating that William Mount Jr.[2] had
           taken from the victim a Samsung Galaxy cellular
           phone and SEPTA TransPass at 58th Street and
           Woodland Avenue in the city and county of
           Philadelphia. The victim identified William Mount, Jr.
           as the perpetrator having known Mount, Jr. from
           school and from an alleged previous robbery. On
           February 15, 2014, at approximately 6:05 p.m.,
           detectives from the Southwest Detectives Division of
           the Philadelphia Police Department executed a search
           warrant on 5944 Cobbs Creek Parkway in connection
           to the February 11[,] 2014 robbery. Upon entrance,
           officers determined that only one female friend of the
           suspect’s father, [appellant], was present in the
           home.

           Detectives began to search the home and entered the
           basement area of 5944 Cobbs Creek Parkway. In the
           middle of the basement, officers encountered a
           windowless room with one single locked door that
           appeared to be recently constructed. The room was
           constructed with sheetrock and had both a heating
           and ventilation system. The design of this particular
           room is consistent with others that are used for the
           exclusive purpose of growing marijuana.          The
           detectives gained entry into the room and discovered
           a large quantity of marijuana which then prompted a
           call for officers from the Narcotics Field Unit.

           Responding officers from the Narcotics Field Unit
           arrived to 5944 Cobbs Creek Parkway and began to
           inventory the contents of the windowless room in the
           basement.      Within this room, officers from the
           Narcotics Field Unit catalogued: six freezer bags filled
           with approximately one pound each of marijuana; one
           trash bag filled with loose marijuana; one postal letter
           addressed to William Mount; one large clear bag that
           contained multiple smaller unused bags that are
           consistently used for the packaging of narcotics; one

2 We note that appellant is William Mount, Sr. The alleged robbery suspect,
who was the subject of the search warrant, was William Mount, Jr., appellant’s
son.


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            scale with a power plug; one box, with a shipping label
            addressed to 428 West Wayne Avenue, containing
            drug paraphernalia, marijuana and a white digital
            scale; one handheld scale; and high powered lights
            consistent with marijuana growing operations. The
            Narcotics Field Unit, in total, recovered 8.8 pounds of
            marijuana with an approximate street value of
            between $39,000 and $78,000 dependent upon the
            quantities in which the marijuana is sold.

            As officers from the Narcotics Field Unit prepared to
            leave 5944 Cobbs Creek Parkway, [appellant] arrived
            at the location. [Appellant] identified himself to
            Officer Burgess of the Narcotics Field Unit and agreed
            to answer questions posed by the officer. [Appellant]
            denied any knowledge of the windowless room in the
            basement despite having stated he lived there for
            approximately one to [two] years. Officer Burgess
            stated to [appellant] that the room had been recently
            constructed and [appellant] continued to deny any
            knowledge of the room altogether. Officer Burgess
            then placed [appellant] under arrest because he found
            the story of [appellant] not credible.

Trial court opinion, 8/16/17 at 1-3 (citations to notes of testimony omitted).

      The record reflects that following appellant’s sentencing, appellant filed

a timely post-sentence motion on October 8, 2016. This motion was denied

by operation of law on February 8, 2017. See Pa.R.Crim.P. 720(B)(3)(a). On

February 18, 2017, appellant filed a timely notice of appeal. The trial court

ordered appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. The trial court

subsequently filed its Rule 1925(a) opinion.




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      Appellant raises the following issue for our review:3

            Whether the trial court erred in finding that the
            Commonwealth produced sufficient evidence to prove
            beyond a reasonable doubt that [a]ppellant
            constructively  possessed     the    marijuana    and
            marijuana paraphernalia found in the locked room in
            the basement of a home in which multiple people lived
            or were present at the time of the search[?]

Appellant’s brief at 4.

      Appellant claims that the Commonwealth failed to present sufficient

evidence to establish constructive possession of the controlled substance –

marijuana – and of drug paraphernalia beyond a reasonable doubt to support

appellant’s convictions. (Id. at 10.) Specifically, appellant argues:

            Notably, the room in the basement was locked and the
            police never found the key. Had something connected
            [appellant] to that basement room such as the key or
            mail which was definitively addressed to him, the
            evidence may have been sufficient. But here, the
            Commonwealth showed only that he shared a house
            which was found to have marijuana and other grow
            equipment in the basement. The Commonwealth did
            not even establish that [appellant] had access to the
            marijuana because the room was locked and he did
            not have the key.

Id. at 13 (citation omitted).




3  We note that after filing the Rule 1925(b) statement, appellant’s counsel,
Mark A. Hinrichs, Esq., accepted new employment and on October 27, 2017,
filed a petition to withdraw with this court. In a per curiam order dated
December 5, 2017, this court granted counsel’s request to withdraw and
directed the trial court to determine appellant’s eligibility for court-appointed
counsel and appoint new counsel, if required. On August 16, 2018, Zak
Goldstein, Esq., was appointed new counsel and subsequently filed a brief on
behalf of appellant.


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      Our standard and scope of review for a sufficiency of the evidence claim

is well settled.

             The standard we apply in reviewing the sufficiency of
             the evidence is whether viewing all the evidence
             admitted at trial in the light most favorable to the
             verdict winner, there is sufficient evidence to enable
             the fact-finder to find every element of the crime
             beyond a reasonable doubt. In applying the above
             test, we may not weigh the evidence and substitute
             our judgment for the fact-finder. In addition, we note
             that the facts and circumstances established by the
             Commonwealth need not preclude every possibility of
             innocence. Any doubts regarding a defendant’s guilt
             may be resolved by the fact-finder unless the
             evidence is so weak and inconclusive that as a matter
             of law no probability of fact may be drawn from the
             combined circumstances. The Commonwealth may
             sustain its burden of proof or proving every element
             of the crime beyond a reasonable doubt by means of
             wholly circumstantial evidence. Moreover, in applying
             the above test, the entire record must be evaluated
             and all the evidence actually received must be
             considered. Finally, the trier of fact while passing
             upon the credibility of witnesses and the weight of the
             evidence produced, is free to believe all, part or none
             of the evidence.

Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)

(citation omitted).

      “‘[I]n narcotics possession cases, the Commonwealth may meet its

burden by showing actual, constructive, or joint constructive possession of the

contraband.’” Commonwealth v. Roberts, 133 A.3d 759, 767 (Pa.Super.

2016), appeal denied, 145 A.3d 725 (Pa. 2016); quoting Commonwealth

v. Vargas, 108 A.3d 858, 868 (Pa.Super. 2014) (en banc), appeal denied,

121 A.3d 496 (Pa. 2015). When the contraband is not found on the appellant,


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the Commonwealth must establish that appellant had constructive possession

of the seized items to support the conviction.        See Commonwealth v.

Brown, 48 A.3d 426, 430 (Pa.Super. 2012), appeal denied, 63 A.3d 1243

(Pa. 2013).

              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.

Roberts, 133 A.3d at 767-768, quoting Brown, 48 A.2d at 430.

      Here, appellant argues that the Commonwealth failed to show that the

letter and the box label were “definitely addressed to” appellant. (Appellant’s

brief at 13.)     It is, however, the totality of the circumstances that the

trier-of-fact must consider to determine if constructive possession existed.

See Roberts, 133 A.3d at 768.

      The trial court found that “[t]he presence of [appellant’s] mail in the

room make[s] it likely that [appellant] had access to [the room] and had the

power to exercise control over its contents.” (Trial court opinion, 8/16/17

at 6.) The trial transcript reflects that the narcotics detective testified that

appellant’s name was on both the letter and the label on the box containing

the marijuana and drug paraphernalia and the items were found in the locked


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room in the basement of appellant’s house, as reflected on the police property

receipts.    (Notes   of   testimony,    7/18/16   at   19-20,   27;   see   also

Commonwealth Exhibits C-2 and C-3.) Appellant testified that he was aware

of the room in his basement and that the room existed prior to the other

residents moving into the house.        (Notes of testimony, 7/18/16 at 38-39,

42-43.) Appellant claimed, however, that he did not know the contents of the

room but offered no explanation as to how or why his mail was found in the

room. (Id. at 38-46.) Additionally, appellant was responsible for the electric

bill, and the cost of the power to operate the large high-powered lamps used

in the “grow house” would have been reflected in those bills. (Id. at 41-42.)

      Based upon the totality of the circumstances, it was more likely than not

that appellant constructively possessed the marijuana and drug paraphernalia

found in the locked room in his basement. See Commonwealth v. Walker,

874 A.2d 667 (Pa.Super. 2005) (holding that the presence of mail with

defendant’s name on it in a room that also contained drugs and drug

paraphernalia established constructive possession). Therefore, in viewing all

of the evidence and the inferences drawn from that evidence in the light most

favorable to the Commonwealth, as the verdict winner, there was sufficient

evidence for the trial court, as trier-of-fact, to find that appellant possessed

marijuana with the intent to deliver and that he possessed drug paraphernalia.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/19




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