J-S52010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                                  :        PENNSYLVANIA
                                                  :
                v.                                :
                                                  :
                                                  :
    DARIT A. SANTIAGO-TORRES                      :
                                                  :
                       Appellant                  :   No. 2792 EDA 2018

       Appeal from the Judgment of Sentence Entered August 17, 2018
           In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0003488-2017


BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY OTT, J.:                                  FILED DECEMBER 05, 2019

       Darit A. Santiago-Torres appeals from the judgment of sentence

imposed on August 17, 2018, in the Court of Common Pleas of Montgomery

County, after a non-jury trial. The judge sentenced Santiago-Torres to a term

of 4 years’ probation, after she convicted him of one count each of possession

of a controlled substance with intent to deliver (PWID), possession of a small

amount of marijuana, possession of drug paraphernalia, and turning

movements and required signals.1               On appeal, Santiago-Torres argues the

evidence was insufficient to sustain the verdict. For the reasons discussed

below, we affirm.




____________________________________________


1 35 P.S. § 780-113(a)(30), (31), (32), and 75 Pa.C.S.A. § 3334(a),
respectively.
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      The trial judge summarized the facts underlying Santiago-Torres’

conviction as follows:

      On February 24, 2017, Abington Police Officer Dustin Wittmer
      observed [Santiago-Torres’] vehicle illegally parked in front of a
      residence at 1305 Thompson Road. As the officer approached the
      vehicle, he observed it pull away from the residence. The officer
      subsequently observed the vehicle perform two right hand turns
      without using a turn signal. Following the second right hand turn,
      the officer activated his emergency lights and siren and
      effectuated a traffic stop. When the officer first approached the
      vehicle, he detected a strong odor of raw marijuana. The officer
      asked [Santiago-Torres] for his license, registration and proof of
      insurance and observed that [Santiago-Torres] was extremely
      nervous and hesitant to answer questions. While waiting for
      [Santiago-Torres] to produce the requested documentation, the
      officer observed a piece of paper in plain view containing the
      address of 1305 Thompson Road. Upon observing this paper, the
      officer asked about this address and [Santiago-Torres] responded
      that this was his friend’s home but stated that he did not know his
      friend’s name. [Santiago-Torres] also mentioned that he was
      performing electrical work, but the officer did not observe any
      evidence of electrical equipment in the vehicle.

      The officer requested [Santiago-Torres] to exit the vehicle and
      asked whether he could perform a pat down of [Santiago-Torres’]
      person. [Santiago-Torres] provided the officer with permission,
      and during the pat down he felt large folded papers in [Santiago-
      Torres’] pocket which had the feel of money. Following the pat
      down, the officer asked [Santiago-Torres] if he could search his
      vehicle. [Santiago-Torres] displayed some hesitation, upon which
      the officer stated that he would obtain a search warrant if
      [Santiago-Torres] did not provide consent. [Santiago-Torres]
      subsequently provided verbal consent to search the vehicle.

      During the search of [Santiago-Torres’] vehicle, the officer found
      two marijuana bags under the driver’s seat, several pieces of
      paper with addresses and dollar amounts, ledgers containing
      addresses from surrounding counties and $4,280 from the rear
      tire well of the vehicle.   The officer also found $5,035 on
      [Santiago-Torres’] person. The officer subsequently placed [him]
      under arrest.


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       On April 25, 2018, [Santiago-Torres] filed a motion to suppress
       the evidence seized from [his] person and his vehicle. On May
       24, 2018, the [trial] court denied [his] motion to suppress
       following a hearing. That same date, the [trial] court held a bench
       trial and found [Santiago-Torres] guilty of the charges referenced
       above.     On August 17, 2018, the [trial] court imposed an
       aggregate sentence of four (4) years of probation.

       On September 17, 2018, [Santiago-Torres] filed a timely notice of
       appeal. On September 20, 2018, the [trial] court issued an
       [o]rder directing [Santiago-Torres] to file a concise statement of
       matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)
       (the “Concise Statement”) within twenty-one (21) days. On
       October 9, 2018, [Santiago-Torres] requested an extension to file
       his Concise Statement until fourteen (14) days after he received
       the requested notes of testimony, which the [trial] court granted.
       On October 25, 2018, [Santiago-Torres] filed a timely Concise
       Statement. [On January 16, 2019, the trial court filed an opinion.]

Trial Court Opinion, 1/16/2019, at 1-3 (footnotes omitted).

       On appeal, Santiago-Torres challenges the sufficiency of the evidence

supporting     his   conviction    for   PWID.2   Santiago-Torres   argues   the



____________________________________________


2  While Santiago-Torres purports to challenge “all of the charges”, see
Santiago-Torres’ Brief, at 8, he waived any challenge to his conviction for
possession of drug paraphernalia, possession of a small amount of marijuana,
and turning movements and required signals. In his Pa.R.A.P. 1925(b)
statement, he only challenged his conviction for PWID. See Statement of
Matters to be Complained of on Appeal, 10/25/2018, at unnumbered page 1.
As amended in 2007, Pennsylvania Rule of Appellate Procedure 1925 provides
issues that are not included in the Rule 1925(b) statement or raised in
accordance with Rule 1925(b)(4) are waived. See Pa.R.A.P. 1925(b)(4)(vii);
see also Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa. Super. 2011),
appeal denied, 827 A.2d 430 (Pa. 2003) (“[A Rule 1925(b)] [s]tatement which
is too vague to allow the court to identify the issues raised on appeal is the
functional equivalent to no [c]oncise [s]tatement at all.”); Commonwealth
v. Lord, 719 A.2d 306, 308 (Pa. 1998), superseded by rule on other grounds
as stated in Commonwealth v. Burton, 973 A.2d 428, 431 (Pa. Super.
2009).

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Commonwealth failed to prove he constructively possessed the contraband

inside the vehicle.   See Santiago-Torres’ Brief at 8-13.      Santiago-Torres

contends there was another individual in the vehicle when the police pulled it

over, and he was not the owner of the car. See id.       He asserts there was

insufficient evidence that he actually knew of the existence of the contraband,

despite the fact he was the driver and the police located the marijuana under

the driver’s seat. See id.

      He also maintains the Commonwealth only presented “ambiguous proof”

in support of its assertion he possessed the drugs with the intent to deliver.

Id. at 14.   He notes the quantity of the drugs found in and of itself was

insufficient to prove intent to deliver; the packaging was consistent with both

personal use and drug dealing; his possession of drug paraphernalia; and the

absence of a weapon. See id. at 15, 17-18.

      Our standard of review for a challenge to the sufficiency of the evidence

is well settled:

      Whether sufficient evidence exists to support the verdict is a
      question of law; our standard of review is de novo and our scope
      of review is plenary. When reviewing the sufficiency of the
      evidence, this Court is tasked with determining whether the
      evidence at trial, and all reasonable inferences derived therefrom,
      are sufficient to establish all elements of the offense beyond a
      reasonable doubt when viewed in the light most favorable to
      the Commonwealth[.] The evidence need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented.




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Commonwealth v. Walls, 144 A.3d 926, 931 (Pa. Super. 2016) (internal

citations and quotation marks omitted, emphasis added), appeal denied, 167

A.3d 698 (Pa. 2017).

     Section 780–113 of The Controlled Substance, Drug, Device and

Cosmetic Act provides in relevant part:

     (a) The following acts and the causing thereof within the
     Commonwealth are hereby prohibited:

                                      * * *

              (30) Except as authorized by this act, the
              manufacture, delivery, or possession with intent to
              manufacture or deliver, a controlled substance by a
              person not registered under this act, or a practitioner
              not registered or licensed by the appropriate State
              board, or knowingly creating, delivering or possessing
              with intent to deliver, a counterfeit controlled
              substance.

35 P.S. §§ 780–113(a)(30).

     The following principles govern the Commonwealth’s burden of proof in

drug possession cases:

     In narcotics possession cases, the Commonwealth may meet its
     burden by showing actual, constructive, or joint constructive
     possession of the contraband. Actual possession is proven by
     showing . . . [the] controlled substance [was] found on the
     [defendant’s] person. If the contraband is not discovered on the
     defendant’s person, the Commonwealth may satisfy its
     evidentiary burden by proving that the defendant had constructive
     possession of the drug.

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

(internal citations and quotation marks omitted), appeal denied, 121 A.3d 496

(Pa. 2015).

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           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. Hopkins, 67 A.3d 817, 820–821 (Pa. Super. 2013)

(citations omitted), appeal denied, 78 A.3d 1090 (Pa. 2013). “An intent to

maintain a conscious dominion may be inferred from the totality of the

circumstances, and circumstantial evidence may be used to establish a

defendant’s possession of drugs or contraband.”          Commonwealth v.

Harvard, 64 A.3d 690, 699 (Pa. Super. 2013) (citation omitted), appeal

denied, 77 A.3d 636 (Pa. 2013).

     In determining whether the Commonwealth proved the delivery element

of PWID, this Court has stated:

     When determining whether a defendant had the requisite intent
     to deliver, relevant factors for consideration are the manner in
     which the controlled substance was packaged, the behavior of the
     defendant, the presence of drug paraphernalia, and large sums of
     cash[.] Additionally, expert opinion testimony is also admissible
     concerning whether the facts surrounding the possession of
     controlled substances are consistent with an intent to deliver
     rather than with an intent to possess it for personal use. [We
     have held] that such expert testimony, coupled with the presence
     of drug paraphernalia, is sufficient to establish intent to deliver.

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

and quotation marks omitted), affirmed, 106 A.3d 705 (Pa. 2014).

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       In the present case, Santiago-Torres’ arguments with respect to both

the possession element and the delivery element suffer from a fatal flaw, he

views the evidence in the light most favorable to himself, not the

Commonwealth. See Santiago-Torres’ Brief, at 8-18. Viewing the evidence

in the light most favorable to the Commonwealth, there is sufficient evidence

to conclude Santiago-Torres constructively possessed the drugs found in the

vehicle and possessed them with the intent to deliver.

       Santiago-Torres was the driver of the car; the police found the drugs

directly under Santiago-Torres’ seat, within his reach, and the odor of the

marijuana was so strong that police could smell it outside the car. N.T. Trial,

5/24/2018, at 11, 25, 125, 157, 162. While Santiago-Torres’ father was the

registered owner of the car, Santiago-Torres specifically told the police the car

was his. Id. at 157, 162. Viewing the evidence in the light most favorable to

the Commonwealth, the court, sitting as fact-finder, could reasonably

conclude the totality of the circumstances established Santiago-Torres had the

ability and intent to exercise control over the drugs.3 See Commonwealth

____________________________________________


3 Santiago-Torres’ reliance on Commonwealth v. Spencer, 621 A.2d 153
(Pa. Super. 1993), Commonwealth v. Boatwright, 453 A.2d 1058 (Pa.
Super. 1982); and Commonwealth v. Hamm, 447 A.2d 960 (Pa. Super.
1982) is misplaced. Both Spencer and Boatwright concerned situations
where the defendant was the passenger in the car, not the driver. See
Spencer, supra at 154; Boatwright, supra at 1058. Further, both Spencer
and Boatwright involved situations where the police found contraband in
close proximity to the driver but located remotely from the passenger.
Spencer, supra at 154; Boatwright, supra at 1058-1059. In Spencer, in



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v. Dix, 207 A.3d 383, 390-391 (Pa. Super. 2019), appeal denied, 2019 WL

4164778 (Pa. Sep. 3, 2019) (evidence sufficient to find constructive

possession of drugs where appellant was driver of car and police found drugs

on floor in front of driver’s seat); Spencer, supra at 155.

       With respect to delivery, Santiago-Torres’ argument4 is based, in its

entirety, in viewing the evidence in the light most favorable to himself, rather

than to the Commonwealth. See Santiago-Torres’ Brief, at 13-18. Further,

after a thorough review of the trial transcript, we find the trial court, in its

opinion, thoroughly and accurately summarized the testimony of the

Commonwealth’s expert witness, Detective Michael Reynolds. See Trial Court

Opinion, 1/16/2019, at 11–12 (summarizing expert’s testimony that: (1) the

papers recovered from the car were drug tally worksheets; (2) the crossing

out of certain addresses on the papers is “indicative of a debt being paid in

the drug business[,]”; (3) the “acronyms listed on some of the paper slips

refer to different marijuana strains[,]”; (4) the separation of large sums of

money into bundles, one found on Santiago-Torres’ person and the other in



____________________________________________


fact, the Court specifically found the driver was the individual who
constructively possessed the drugs. See Spencer, supra at 155. In Hamm,
while the defendant was the driver, the police observed the backseat
passenger of the car pass a gun to the front-seat passenger, who put the gun
under his seat, a situation that has no bearing on the current matter. See
Hamm, supra at 961-962.

4 Throughout this section of Santiago-Torres’ Brief, defense counsel refers to
the appellant as “Carpenter”. See Santiago-Torres’ Brief, at 14-15.

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the wheel well of the car “is a common trait for drug traffickers to try to

separate money and not have everything all on them at one time”; (5) the

absence of any personal use paraphernalia on Santiago-Torres’ person or in

the vehicle; and (6) the presence of two marijuana bags; concluding none of

the above are typical for a user but is rather indicative of possession with

intent to deliver).   Furthermore, we conclude the court provides a well-

reasoned basis for its determination that the Commonwealth presented

sufficient evidence to support the judge’s verdict of PWID. See id. at 12.

Therefore, we adopt the sound reasoning of the Honorable Wendy G. Rothstein

as dispositive of this issue.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/19




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