J-S21042-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

SELIM PALYANI

                            Appellant               No. 2799 EDA 2012


         Appeal from the Judgment of Sentence September 14, 2012
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0000162-2011


BEFORE: SHOGAN, J., ALLEN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                           FILED OCTOBER 01, 2014

       Selim Palyani appeals from the judgment of sentence imposed on

September 14, 2012, in the Court of Common Pleas of Bucks County. On

August 16, 2012, the trial court, sitting without a jury, convicted Palyani of

intentional possession of a controlled substance and possession of drug

paraphernalia.1 The court imposed a term of six to 12 months’ incarceration

for the intentional possession of a controlled substance offense and a

consecutive one year period of probation for the paraphernalia crime.      On

appeal, he raises the following two issues:      (1) the trial court erred in

admitting physical evidence seized as a result of a warrantless search of the

vehicle which Palyani was driving prior to his arrest; and (2) the court erred
____________________________________________


1
    35 P.S. §§ 780-113(a)(16) and (a)(32), respectively.
J-S21042-14


in finding there was sufficient evidence to establish that he constructively

possessed contraband that was seized from the vehicle.       After a thorough

review of the submissions by the parties, the certified record, and relevant

law, we affirm.

     The trial court set forth the facts as follows:

           The facts of this case arise from the Defendant, Selim
     Palyani (Palyani), a citizen of the country of Georgia, being found
     to be in constructive possession of a controlled substance,
     namely heroin and cocaine residue, as well as drug
     paraphernalia in the form of two syringes.

           On October 30, 2010 at approximately 2:13 P.M., Sergeant
     Michael Rihl of the Bensalem Township Police Department
     (BTPD) was on duty driving a marked patrol vehicle.              He
     observed the vehicle Palyani was operating stopped in the left
     oncoming traffic lane. Palyani was, therefore, parked in a lane
     of travel facing the wrong direction at the intersection of Street
     Road and Old Street Road in Bensalem Township, Bucks County.
     Sergeant Rihl pulled up alongside [Palyani]’s vehicle and was
     situated in the left only turning lane at a red light. Had the light
     turned green, [Palyani]’s vehicle would have been blocking
     oncoming traffic and ultimately “impeding the flow of traffic.”
     Both [Palyani] and the passenger of the vehicle appeared
     lethargic and “hazy.” Once Sergeant Rihl eventually got his
     attention, he instructed Palyani that he was on the wrong side of
     the road and should make a left at the light when it turns green.
     As a result, [Palyani] proceeded to make a left into the
     intersection onto Street Road in front of Sergeant Rihl.

           At this point, Sergeant Rihl effectuated a traffic stop of
     [Palyani]’s vehicle on the shoulder around the forty-seven-
     hundred block of Street Road. Both the prosecution and defense
     counsel introduced Google Maps of the specific intersection into
     evidence. Additionally, both patrol vehicles Sergeant Rihl and
     Officer Patrick Moore (a responding officer) were operating were
     equipped with visual and audio recording devices. [Palyani] was
     informed of this and did not object to their use.




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           Upon approaching [Palyani], the sergeant again noticed he
     was lethargic, the pupils of his eyes were constricted, he had
     slurred speech, and his eyes were glassy. It took a “long time”
     for [Palyani] to retrieve the necessary papers, i.e., his license
     and registration. The sergeant ran the passenger’s information
     and he was immediately taken into custody based on an active
     warrant. Thereafter, based on the traffic violation and the
     sergeant[’s] observations of Palyani, as set forth above, field
     sobriety tests were administered. The sergeant determined that
     [Palyani] did not properly and/or successfully complete the field
     sobriety tests, which, coupled with the above observations, led
     him to opine that “[Palyani] was unable to operate a motor
     vehicle safely.” [Palyani] was then placed under arrest for
     suspicion of DUI.

           Sergeant Rihl next determined that because both
     occupants were being taken into custody, the vehicle would need
     to be impounded.         Sergeant Rihl referenced the BTPD’s
     “Procedural Field Directive #2-14,” which directs that “Officers
     will have vehicles removed from the highway when they create
     [a] substantial hazard to motorists.” Sergeant Rihl determined
     that there was no place on the highway to safely leave
     [Palyani]’s vehicle and we also found that doing so would be
     dangerous and present a serious public safety issue.          The
     inventory policy provides that if an officer makes the decision to
     impound a vehicle, they are to advise Bucks County Radio to
     contact the on-call tow service. Additionally, an inventory form
     is required detailing the items taken from the vehicle in order to
     protect BTPD from liability. Pursuant to BTPD’s inventory policy,
     Officer Moore directed Bucks County radio to contact the on-call
     tow.

            Sergeant Rihl thereafter conducted the inventory search.
     First, he located [Palyani]’s wallet so it could be transported with
     [Palyani].    During the inventory search, Sergeant Rihl also
     located two syringe needles, one in the driver’s side door pocket
     and the other on the backseat, as well as a baggie commonly
     used to package controlled substances on the floor in front of the
     passenger seat. The syringes and baggie were submitted to the
     Bucks County Crime lab for analysis, and were found to contain
     cocaine and heroin residue, respectively.

           Selim Palyani, the operator of the vehicle, was charged
     with Count 1 - DUI: General Impairment/Incapable of Driving

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     Safely – 3d Offense, Count 2 - DUI: Controlled Substance –
     Impaired Ability – 3d Offense, Count 3 – Intentional Possession
     of a Controlled Substance, Count 4 – Possession of Drug
     Paraphernalia, and Count 5 – Careless Driving.

           On April 4, 2011, [Palyani] pled guilty to all counts before
     the Honorable Jeffery L. Finely of this Court. On Count 1,
     [Palyani] was sentenced to not less than one (1), nor more than
     three (3) years’ incarceration. The Court directed that [Palyani]
     could be screened for house arrest and work release and that he
     could be presumptively paroled upon completing his minimum
     term of incarceration with good conduct. On Count 3, [Palyani]
     received one (1) year of probation. On Count 4, [Palyani]
     received an additional one (1) year of probation. The Court
     directed that the sentences on Counts 3 and 4 would run
     consecutive to each other, but concurrent to the sentence
     imposed on Count 1.

            On November 21, 2011, [Palyani] filed his first petition
     pursuant to the Post-Conviction Relief Act (“PCRA”), claiming
     that he was subject to deportation due to his guilty plea.
     [Palyani] claimed that plea counsel failed to advise him of the
     collateral consequences of his plea as required by Padilla v.
     Kentucky, 130 S.Ct. 1473 (2010). On January 30, 2012, the
     Commonwealth filed a response thereto. Judge Finley conducted
     hearings on February 3, 2012 and April 30, 2012. On April 30,
     2012, the Court granted [Palyani]’s motion to withdraw his guilty
     plea. The case was assigned to the undersigned and proceeded
     to trial.

            Through newly-retained counsel (“trial counsel”), [Palyani]
     filed omnibus pre-trial motions on June 22, 2012 and June 26,
     2012. [Palyani] sought to suppress statements made to the
     officers and physical evidence in the form of syringes and
     baggies containing heroin and cocaine residue recovered from
     his vehicle. On June 26 and 27, 2012, after a full and complete
     suppression hearing we denied [Palyani]’s motion to suppress
     physical evidence and also denied [Palyani]’s motion in limine to
     suppress his refusal to consent to a blood draw. We deferred
     ruling, however, on [Palyani]’s motion to suppress statements
     made to the officers for thirty (30) days to allow the attorneys to
     submit briefs. Specifically, we directed the Commonwealth to
     provide transcripts from the video recordings captured by
     cameras on the officers’ vehicles. On August 15, 2012, at the

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     continued suppression hearing, we granted [Palyani]’s motion to
     suppress all of his statements to the officers.

           Following the suppression hearing, [Palyani] waived a jury
     trial and proceeded on a stipulated waiver trial.               The
     Commonwealth and trial counsel stipulated to the exhibits. The
     Commonwealth also presented the testimony of Dr. Thomas
     Bretell, an expert witness in forensic toxicology, who testified as
     to the effects of heroin on a user’s body.

           We found [Palyani] not guilty of Count 2 - DUI: Controlled
     Substance – Impaired Ability – 3d offense and the summary
     offense of Careless Driving.     We found [Palyani] guilty of
     Intentional Possession of a Controlled Substance and Possession
     of Drug Paraphernalia. The Commonwealth moved to nolle pros
     Count 1 – DUI: General Impairment/Incapable of Driving Safely
     – 3d Offense, which we granted. At [Palyani]’s request, we
     deferred sentencing.

           On September 14, 2012, on Intentional Possession of a
     Controlled Substance, we sentenced [Palyani] to not less than
     six (6), nor more than twelve (12) months’ incarceration. On
     Possession of Drug Paraphernalia, we sentenced [Palyani] to a
     consecutive one (1) year period of probation. [Palyani] received
     credit from July 6, 2011 to September 14, 2012, and,
     accordingly, we directed that the parole portion of his sentence
     was closed out and his probation was to commence upon his
     release from custody.7
        7
           Palyani was in custody on an immigration detainer and
        therefore never posted bail on this case. Because he had
        not yet had an immigration hearing we exercised our
        discretion and granted him credit for the entire six (6) to
        twelve (12) month sentence on possession which is why
        we closed out that portion of his sentence.

Trial Court Opinion, 9/4/2013, at 1 5 (record citations and some footnotes

omitted). This appeal followed.

     In Palyani’s first argument, he claims the trial court erred in denying

his motion to suppress, in part, by finding that the warrantless search of his


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vehicle constituted a valid inventory search.     Palyani’s Brief at 9.   Palyani

contends that “although the vehicle may have been headed for a lawful tow

away from the site of the arrest, the motive in searching the interior of the

vehicle was to further an investigatory purpose.”       Id. (italics in original).

Specifically, he states, “Police were investigating a specific crime (driving

under the influence of narcotics), questioned [him] regarding that crime,

received critical information regarding evidence of that crime, and then

immediately searched the vehicle to uncover and seize that evidence.” Id.

at 10.    Moreover, Palyani claims he told the officers that it was his

girlfriend’s car and, therefore, the officers’ actions were inconsistent with the

holding in Commonwealth v. Germann, 621 A.2d 589 (Pa. Super. 1993),

because the vehicle did not pose a public safety risk, there was no need for

a full-scale search of the vehicle, and the property owner should have been

given the opportunity to determine how her property should be secured. Id.

at 11. Furthermore, Palyani asserts that no attempt was made to obtain a

search warrant to uncover evidence, which the police had reason to believe

was secreted in the vehicle.

      With respect to suppression issues, we are guided by the following:

      Our scope and standard of review from the denial of a
      suppression motion are well settled:

            An appellate court’s standard of review in addressing
            a challenge to a trial court's denial of a suppression
            motion is limited to determining whether the factual
            findings are supported by the record and whether
            the legal conclusions drawn from those facts are

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            correct. [Because] the prosecution prevailed in the
            suppression court, we may consider only the
            evidence of the prosecution and so much of the
            evidence for the defense as remains uncontradicted
            when read in the context of the record as a whole.
            Where the record supports the factual findings of the
            trial court, we are bound by those facts and may
            reverse only if the legal conclusions drawn therefrom
            are in error.

Commonwealth v. Smith, 85 A.3d 530, 534 (Pa. Super. 2014) (citation

omitted).

     In addition, “[i]t is within the suppression court’s sole province
     as factfinder to pass on the credibility of witnesses and the
     weight to be given their testimony.”         Commonwealth v.
     Elmobdy, 2003 PA Super 158, 823 A.2d 180, 183 (Pa. Super.
     2003). The suppression court is also entitled “to believe all, part
     or none of the evidence presented.”          Commonwealth v.
     Benton, 440 Pa. Super. 441, 655 A.2d 1030, 1032 (Pa. Super.
     1995). Finally, at a suppression hearing, the Commonwealth
     has the burden of “establish[ing] by a preponderance of the
     evidence    that     the   evidence   was    properly   obtained.”
     Commonwealth v. Culp, 378 Pa. Super. 213, 548 A.2d 578,
     581 (Pa. Super. 1988).

Commonwealth v. Galendez, 27 A.3d 1042, 1046 (Pa. Super. 2011).

     In Commonwealth v. Hennigan, 753 A.2d 245 (Pa. Super. 2000),

this Court explained:

     Inventory searches are a well-defined exception to the search
     warrant requirement. The purpose of an inventory search is not
     to uncover criminal evidence. Rather, it is designed to safeguard
     seized items in order to benefit both the police and the
     defendant.    Inventory searches serve one or more of the
     following purposes: (1) to protect the owner’s property while it
     remains in police custody; (2) to protect the police against
     claims or disputes over lost or stolen property; (3) to protect the
     police from potential danger; and (4) to assist the police in
     determining whether the vehicle was stolen and then
     abandoned.

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     A warrantless inventory search of an automobile is different from
     a warrantless investigatory search of the same. An inventory
     search of an automobile is permitted where: (1) the police have
     lawfully impounded the automobile; and (2) the police have
     acted in accordance with a reasonable, standard policy of
     routinely securing and inventorying the contents of the
     impounded vehicle….

     In determining whether a proper inventory search has occurred,
     the first inquiry is whether the police have lawfully impounded
     the automobile, i.e., have lawful custody of the automobile. The
     authority of the police to impound vehicles derives from the
     police’s reasonable community care-taking functions.        Such
     functions include removing disabled or damaged vehicles from
     the highway, impounding automobiles which violate parking
     ordinances (thereby jeopardizing public safety and efficient
     traffic flow), and protecting the community’s safety.

     The second inquiry is whether the police have conducted a
     reasonable inventory search. An inventory search is reasonable
     if it is conducted pursuant to reasonable standard police
     procedures and in good faith and not for the sole purpose of
     investigation. Said another way, the inventory search must be
     pursuant to reasonable police procedures, and conducted in good
     faith and not as a substitute for a warrantless investigatory
     search.

Id. at 254-255 (internal citations, quotations and footnotes omitted).

     In the present case, the testimony from the June 26, 2013,

suppression hearing reveals that on October 30, 2010, police stopped

Palyani for a Motor Vehicle Code violation, in which the defendant was

stopped in the oncoming traffic lane. N.T., 6/26/2013, at 100. At the time

of the stop, Palyani pulled the car onto the shoulder of Street Road in

Bensalem Township, Bucks County. Id. at 26. Sergeant Rihl testified that

both Palyani and his passenger were being taken into custody following the


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vehicle stop.   With respect to the passenger, he was taken into custody

because he had a warrant for his arrest. Id. at 38. With regard to Palyani,

Sergeant Rihl stated that based on his observations of the defendant and the

field sobriety tests, he “made the determination in [his] opinion [that

Palyani] was unsafe to operate a motor vehicle[.]” Id. at 46. The sergeant

then placed Palyani under arrest for suspicion of DUI. Sergeant Rihl testified

that he was conducting an inventory search because “both of them were

under arrest and [he] can’t leave their vehicle abandoned on the highway.”

Id. at 50.

      The Bensalem Township Police Department’s (BTPD) “Procedural Field

Directive #2-14,” provides, in pertinent part:

      F. Removing Vehicles from the Roadway

      1. Officers will have vehicles removed from the highway when
      they create substantial hazard to motorists. The on-call tow
      service will be contacted by the Bucks County Police Radio. The
      vehicle will be taken to the on duty tow service secured facility.

      2. In the event that the removed vehicle is of investigative
      importance or physical evidence, it will be taken to a secured
      designated location.

      3. Officers … in the event that they direct the removal of a
      vehicle will complete a vehicle-impoundment report and incident
      report. All vehicles secured by officers will be inventoried and an
      inventory report completed.

      4. Officers will attempt to make contact with the last registered
      owner to advise the owner that his vehicle has been removed.

Exhibit CS-5, “Procedural Field Directive #2-14 Traffic Ancillary Services,”

1/31/1997, at 5-6. It was uncontested that there was no safe place on the

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highway to leave the vehicle. N.T., 6/26/2013, at 66. During the inventory

search, Officer Moore told Sergeant Rihl that Palyania has informed him

there may be a needle on the floor or in the door. Id. During his search,

Sergeant Rihl discovered two syringes and a glassine baggie with residue in

it. Id. at 57.

      Based on the evidence, the court found the following:

      This car … was truly inventoried, as noted on the vehicle
      impound and inventory record, it was towed by Bakers Towing
      and it was towed to Bakers. So, the towing company had total
      control of the vehicle after it was towed from the highway. The
      only thing[s] seized here were the GPS, cell phone, the
      sunglasses, the cleaning supplies, the battery cables and the
      trash that was seized, all after the officer seized the controlled
      substances and the paraphernalia that were related to them. I
      meant to make that shorter, but I do think that this is the proper
      inquiry and not just the DUI.

Id. at 133.

      In its Rule 1925(a) opinion, the court further opined:

      At the suppression hearing, we found the search was a valid
      inventory search in keeping with [BTPD’s] written policy
      concerning inventory searches.

                                      …

            Both the Googles Maps depicting the area in which the
      vehicle was stopped as well as the footage from Sergeant Rihl
      and Officer Moore’s patrol vehicles demonstrates that in this
      particular area vehicles are numerous and traffic is constant, as
      there were cars lining up at the nearby traffic lights even in the
      middle of the day. Furthermore, Sergeant Rihl explained that if
      left on the side of the road, someone could “steal” or “break
      into” the vehicle and, additionally, it presented a hazard to
      motorists as it would be left on the shoulder of the road next to
      the right travel lane without its lights on. Therefore, the only
      safe course of action was to order the vehicle be towed, as under

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      the BTPD inventory policy where the location of a vehicle creates
      a “substantial hazard to motorists,” the officer is to direct Bucks
      County Radio to contact the on-call tow service. At this point,
      Officer Moore did in fact direct a duty tow to their location.

            With regard to the second requirement, Sergeant Rihl
      explained that he was familiar with his department’s inventory
      policy, and identified the relevant sections from said policy. In
      addition, Sergeant Rihl explained that because both occupants
      were under arrest and the vehicle was seized, the policy dictates
      that an inventory search of the vehicle for valuables is to be
      conducted. Sergeant Rihl also completed an inventory form
      after searching the vehicle, as is required by the policy. During
      the search, he located two syringes, one in the driver’s side
      pocket and the other on the backseat, as well as a small plastic
      baggie on the passenger side floor, all containing heroin and/or
      cocaine residue. There is no indication that the inventory policy
      of the Bensalem Township Police Department in place at the time
      of the stop was unreasonable.

            We concluded, therefore, that Sergeant Rihl had lawful
      custody of the vehicle and his inventory of personal items
      therein was a valid search without warrant.

Trial Court Opinion, 9/4/2013, at 7-8, 9-10.

      We discern no error in the trial court’s conclusion. The first inquiry is

whether    the   police   have   lawfully impounded the          automobile.       See

Hennigan, 753 A.2d at 255.             Here, the police took lawful custody of the

vehicle at issue as both the driver and passenger were arrested, and

therefore, there was no one available to drive the vehicle.              Indeed, the

police’s   impoundment     of    the    vehicle    was   based   on   protecting   the

community’s safety.       Moreover, the second inquiry is whether the police

have conducted a reasonable inventory search. Id. An inventory search is

“reasonable if it is conducted pursuant to reasonable standard police


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procedures and in good faith and not for the sole purpose of investigation.”

Id. Contrary to Palyani’s argument, that Sergeant Rihl’s motive in searching

the interior of the vehicle was to further an investigatory purpose because

he had received information about contraband in the car, we note that

Sergeant Rihl had already initiated the inventory search prior to receiving

that information.   As indicated by the court, he properly conducted the

search in accordance with BTPD’s Procedural Field Directive #2-14 because

both men were being taken into custody. Furthermore, it bears mentioning

the BTPD’s inventory search policy only requires the police officer attempt to

make contact with the last registered owner to advise the owner that his or

her vehicle had been removed.      The policy does not require the property

owner be given an opportunity to determine how the car should be secured,

as contended by Palyani.

      Moreover, we note Palyani relies on Commonwealth v. Germann,

621 A.2d 589 (Pa. Super. 1993), to support his argument. In Germann, a

panel of this Court held the police conducted an improper inventory search

based on a vehicle’s bearing fraudulent inspection validation stickers and the

vehicle’s poor condition.   Germann is distinguishable from the present

matter because in that case, this Court determined there was no justification

for towing the vehicle, and there was no evidence that the vehicle at issue

was obstructing traffic or otherwise creating a safety hazard.    In the case

sub judice, there was justification for towing the vehicle and there was


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evidence that the car created a safety hazard.    As such, we conclude the

police had lawful custody of Palyani’s vehicle and conducted a reasonable

inventory search pursuant to the inventory search exception to the warrant

requirement. Accordingly, there is no basis upon which to disturb the court’s

ruling that denied Palyani’s suppression motion.        Therefore, his first

argument fails.

      In his second argument, Palyani claims there was insufficient evidence

to support his convictions for possession of a controlled substance and

possession of drug paraphernalia.    Palyani’s Brief at 12.   Specifically, he

asserts that because his incriminating statements made to police were

suppressed, there was insufficient evidence to support the court’s finding

that he constructively possessed the items seized from the vehicle because

the facts did not establish that he had the power/ability to control the

contraband and the intent to exercise that control.   Id. at 12-13. Palyani

states there was no evidence as to how long he was in control of the vehicle

“[n]or was the incriminating evidence found in areas of the car which the

driver would be expected to be aware of.” Id. at 13. Likewise, he argues

“[n]o furtive movements or other suspicious actions were observed that

might suggest that [he] had any physical connection to any of the evidence

prior to the time he was taken out of the vehicle, which he did not own.” Id.

      Our review of a challenge to the sufficiency of the evidence is well-

settled:


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      A claim challenging the sufficiency of the evidence presents a
      question of law.    Commonwealth v. Widmer, 560 Pa. 308,
      744 A.2d 745, 751 (2000). We must determine “whether the
      evidence is sufficient to prove every element of the crime
      beyond a reasonable doubt.” Commonwealth v. Hughes, 521
      Pa. 423, 555 A.2d 1264, 1267 (1989). We “must view evidence
      in the light most favorable to the Commonwealth as the verdict
      winner, and accept as true all evidence and all reasonable
      inferences therefrom upon which, if believed, the fact finder
      properly could have based its verdict.” Id.

      Our Supreme Court has instructed:

         [T]he 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. Moreover, in applying the above test, the
         entire record must be evaluated and all 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. Ratsamy, 594 Pa. 176, 934 A.2d 1233,
      1236 n. 2 (2007).


Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa. Super. 2013).

      A person is guilty of possession of a controlled substance if he

“[k]nowingly   or   intentionally   possess[es]   a   controlled   or   counterfeit

substance[.]” 35 P.S. § 780-113(a)(16). A person is guilty of possession of

drug paraphernalia if he engages in the “use of, or possession with intent to

use, drug paraphernalia for the purpose of planting, propagating, cultivating,

growing, harvesting, manufacturing, compounding, converting, producing,

processing, preparing, testing, analyzing, packing, repacking, storing,

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containing, concealing, injecting, ingesting, inhaling or otherwise introducing

into the human body a controlled substance in violation of this act.” 35 P.S.

§ 780-113(a)(32).

      When a prohibited item is not discovered on a defendant’s person, or

in their actual possession, as is the case here, the Commonwealth may

prove the defendant had constructive possession of the item.

         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. Brown, 48 A.3d 426, 430 (Pa.
      Super.2012), appeal denied, [] 63 A.3d 1243 (2013) (internal
      quotation marks and citation omitted). Additionally, it is possible
      for two people to have joint constructive possession of an item of
      contraband. Commonwealth v. Sanes, 955 A.2d 369, 373
      (Pa. Super. 2008), appeal denied, 601 Pa. 696, 972 A.2d 521
      (2009).

Commonwealth v. Hopkins, 67 A.3d 817, 820-821 (Pa. Super. 2013),

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).



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     Here, the trial court found the following:

     In this case, we noted that [Palyani] was the operator of the
     motor vehicle in which the controlled substance(s) and
     paraphernalia were located and there was only one other
     passenger present in the vehicle. During an inventory search of
     said vehicle after [Palyani] was taken into custody, Sergeant
     Michael Rihl, the investigating officer, located “two syringe
     needles and a baggie commonly used to package controlled
     substances.” Further, he testified that one syringe was located
     in the driver’s door pocket, the other syringe was located on the
     backseat, and the baggie was “recovered from the passenger’s
     floor.”   Furthermore, there was no testimony indicating or
     explaining that any third party had the ability to exercise any
     control or dominion over the syringes.

            Accordingly, after viewing the evidence in the light most
     favorable to the Commonwealth as the verdict winner, we
     believe that there exists sufficient evidence to find [Palyani]
     guilty of Possession of a Controlled Substance and Possession of
     Drug Paraphernalia.

Trial Court Opinion, 9/4/2013, at 12-13 (record citations omitted).

     Viewing    this   evidence   in     the    light   most   favorable   to   the

Commonwealth, and drawing all reasonable inferences therefrom, we agree

with the trial court’s determination. Palyani attempts to argue that because

there was no evidence indicating how long he was in control of the vehicle or

any furtive movements on his part, there was insufficient evidence to

connect him to the contraband.     However, this argument ignores the fact

that one syringe was found in the driver’s door pocket, the other was

found on the backseat, and a baggie was found on the passenger-side floor.

Sergeant Rihl, an experienced police officer trained in drug matters, opined

that the items were consistent with drug use and drug paraphernalia. N.T.,


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4/26/2012, at 57-58. Given the testimony as set forth by the trial court, a

permissible inference could be made that the syringes and baggie at issue

belonged to Palyani and he had the “ability” and “intent” to exercise control

or dominion over the contraband found next to the bag. See Hopkins, 67

A.3d at 820-821.    Therefore, we conclude the Commonwealth presented

sufficient circumstantial evidence from which the trial court could reasonably

infer that Palyani constructively possessed the contraband. Accordingly, his

second argument also fails, and we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/1/2014




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