J-S41039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JASON SIMMONS,

                            Appellant                 No. 1519 EDA 2015


              Appeal from the Judgment of Sentence April 2, 2012
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005926-2011

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                          FILED MAY 18, 2016

       This is an appeal from the judgment of sentence entered by the Court

of Common Pleas of Philadelphia County after the trial court convicted

Appellant Jason Simmons of possession of a controlled substance with intent

to deliver (PWID), possession of an instrument of crime, and possession of a

firearm prohibited.1        Appellant claims the evidence was insufficient to

support his convictions. We affirm.

       On April 19, 2011, Philadelphia police officers conducted surveillance

on the 2500 block of North Chadwick Street. The officers were assisted by a

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1
  35 P.S. §780-113(a)(30), 18 Pa.C.S.A. §907(a), §6105(a)(1) (“Persons not
to possess, use, manufacture, control, sell or transfer firearms”).




*Former Justice specially assigned to the Superior Court.
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confidential informant (CI) who was given prerecorded buy money and

searched for contraband or currency before he was released.         The CI

approached a nearby residence on Cumberland Street and yelled up to a

second floor window. Appellant looked out of the window to see the CI and

exited the home shortly thereafter. Officers observed Appellant give the CI

two small, red plastic packets in exchange for $20 of the buy money. The

officers later determined that the packets contained cocaine.

     Subsequently, on two other occasions, the officers used the same CI to

buy more controlled substances from Appellant.        On May 3, 2011, the

officers watched as Appellant handed the CI two small, pink plastic packets

in exchange for money.    On May 4, 2011, the officers observed Appellant

give two small, yellow plastic packets to an unidentified individual who

passed them to the CI and took money from the CI.         All of the packets

subsequently tested positive for cocaine.

     Once the officers had observed the three separate transactions, they

obtained a search warrant for the Cumberland Street residence. On May 5,

2011, the officers executed the warrant and arrested Appellant.     Officers

recovered $184 in U.S. currency and the keys to the Cumberland Street

residence from Appellant’s person.    After entering the home’s first floor,

officers confiscated one small blue packet of cocaine found on a table and a

9 mm handgun from an unlocked tool box. The cocaine packet matched the




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packaging, size, and the weight of the drug packets that the CI purchased

from Appellant.

         Appellant waived his right to a jury trial and proceeded to a bench

trial.   On February 1, 2012, the trial court convicted Appellant of all the

aforementioned offenses. On April 2, 2012, Appellant was sentenced to five

to ten years imprisonment to be followed by five years probation. No direct

appeal was filed.

         On April 2, 2013, Appellant filed a pro se petition under the Post

Conviction Relief Act (PCRA). The lower court appointed counsel, who filed

an amended petition on Appellant’s behalf, claiming trial counsel was

ineffective in failing to pursue appellate relief. On May 12, 2015, the PCRA

court granted Appellant the right to file a direct appeal nunc pro tunc.

Appellant filed a timely notice of appeal and complied with the trial court’s

direction to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).

         Appellant claims that there was insufficient evidence to prove that he

possessed the cocaine packets or the firearm.2       In reviewing a sufficiency

claim, we must review the evidence in the light most favorable to the

Commonwealth as verdict winner according to the following standard:


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2
  The parties stipulated that Appellant had a prior conviction that prevented
him from possessing a firearm. N.T. Trial, 2/1/12, at 70.



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      We must determine whether the evidence admitted at trial, and
      all reasonable inferences drawn therefrom, when viewed in a
      light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. Where there
      is sufficient evidence to enable the trier of fact to find every
      element of the crime has been established beyond a reasonable
      doubt, the sufficiency of the evidence claim must fail.

      The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute
      our judgment for that of the fact-finder. The Commonwealth's
      burden may be met by wholly circumstantial evidence and any
      doubt about the defendant's guilt is to be resolved by the fact
      finder unless the evidence is so weak and inconclusive that, as a
      matter of law, no probability of fact can be drawn from the
      combined circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (quoting

Commonwealth v. Mobley, 14 A.3d 887, 889–90 (Pa. Super. 2011)

(citation omitted)).

      Appellant claims that the Commonwealth failed to prove he possessed

a controlled substance or a firearm as the officers did not find any such

contraband on his person upon his arrest.              Appellant denies being in

possession of any of the drugs recovered from the CI and alleges that he

cannot deemed to have possessed the blue packet of cocaine or the firearm

found on the first floor of his home as his bedroom is on the second floor.

      It is well established that “[p]ossession can be found by proving actual

possession,   constructive   possession   or   joint   constructive   possession.”

Commonwealth v. Gutierrez, 969 A.2d 584, 590 (Pa. Super. 2009)

(citation omitted).


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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. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (citation

omitted)). Our courts have held that “[the] 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.”   Gutierrez,    969   A.2d   at   590   (citing

Commonwealth v. Valette, 531 Pa. 384, 613 A.2d 548, 550 (1992)

(citation omitted)).

      The evidence presented at trial was more than sufficient to establish

that Appellant constructively possessed the cocaine packets and the firearm.

First, on three separate occasions, the officers observed Appellant exchange

packets of cocaine for U.S. currency.       Second, officers discovered in

Appellant’s home a 9 mm handgun and another bag of cocaine of the same

size, weight, and packaging as those purchased by the CI. Even though the

drugs and the weapon were not recovered from Appellant’s bedroom, they

were seized from an area on the first floor that was equally accessible to

him. Lastly, there was no evidence that anyone besides Appellant resided in

the home or had access to the area where the drugs were found.

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      We reject Appellant’s suggestion that he could not be found in

constructive possession of items found on the first floor on the home.    The

trial court found that the although the first floor did not consist of livable

space, Appellant exercised dominion and control of the both floors of the

residence, as he utilized both floors, and was the sole recorded occupant of

the property.” Trial Court Op., 12/31/15, at 7. Even if there were evidence

that another individual had access to the Cumberland Street home, our

courts have repeatedly held that “[p]ossession of [contraband] need not be

exclusive; two or more [individuals] can possess the same [contraband] at

the same time.” Commonwealth v. Macolino, 503 Pa. 201, 208, 469 A.2d

132, 135 (1983).       More than one actor may constructively possess

contraband that is located in an area of joint control and access.

Commonwealth v. Sanes, 955 A.2d 369, 373 (Pa. Super. 2008).

      Appellant also contends that his convictions cannot stand as 1) the

officers did not observe a transaction on the day of his arrest, 2) Appellant

did not have any of the prerecorded buy money on his person when he was

arrested the day after the last exchange and 3) the packets recovered from

the CI were not the same color as the packets confiscated from Appellant’s

home.   As all the aforementioned facts are inconsequential, we find these

arguments to be unpersuasive.     After viewing the evidence in this case in

the light most favorable to the Commonwealth, we find the trial court could

reasonably conclude that Appellant had the power and intent to exercise


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conscious dominion over the cocaine packets and the firearm. In light of the

aforementioned evidence and all the reasonable inferences that can be made

therefrom, we find the Commonwealth presented sufficient evidence to

support Appellant’s conviction of PWID, possession of an instrument of

crime, and possession of a firearm prohibited.

     For the foregoing reasons, we affirm Appellant’s judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/2016




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