J-A13026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellee

                     v.

JUSTIN GRANDISON,

                          Appellant                No. 331 WDA 2014


          Appeal from the Judgment of Sentence January 22, 2014
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0006600-2013


BEFORE: PANELLA, SHOGAN, and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED JUNE 24, 2015

      Appellant, Justin Grandison, appeals from the judgment of sentence

entered on January 22, 2014, in the Allegheny County Court of Common

Pleas. After careful review, we affirm in part, reverse in part, and remand

with instructions.

      The record reveals that on March 15, 2013, Assistant Duquesne Police

Chief Scott Adams obtained and executed a search warrant for 637 South

Fifth Street.   N.T., Trial, 10/22-23/13, at 13.    Assistant Chief Adams,

accompanied by Detective Scott Klobchar, Detective Jonathan Love, and

Detective Tom DeFelice of the Allegheny County Police Department knocked

on the front door of 637 South Fifth Street, where they were met by Ms.

Chandrea Buefort. Id. at 13-14. Assistant Chief Adams informed Buefort

that they were investigating Appellant. Id. at 14. Buefort told the officers
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that Appellant and his girlfriend, Ms. Javonna Gibson, were staying in a

bedroom on the second floor to the right of the stairs (“the bedroom on the

right”). Id. at 14-15, 50. Detective Klobchar searched the bedroom on the

right and found a juice can containing baggy diapers,1 two sifters, a hot

plate, baking soda, .20 grams of crack cocaine, a digital scale, and a box of

baggies.    Id. at 32.     The detectives also found an envelope addressed to

“Javonna Gibson, 637 South Fifth Street, Duquesne, Pennsylvania.” Id. at

40.   This envelope contained two photographs of Appellant with unknown

individuals. Id. at 39.

       The police also searched the other upstairs bedroom (“the bedroom on

the left”), which was occupied by Buefort and her boyfriend, who was

Appellant’s co-defendant, Kelly Parker.          N.T., Trial, 10/22-23/13, at 50.

Buefort testified that the bedroom on the left was like a living room because

it is where the television and DVD player were located. Id. at 51. In the

bedroom on the left, the officers found a cigar box containing a burnt metal

spoon that appeared to have cocaine residue on it, baggy diapers, and torn

plastic bags.      Id. at 16-17.        Inside a nightstand drawer, the officers



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1
  Baggy diapers are sandwich baggies with the corners torn off of them.
Commonwealth v. James, 69 A.3d 180, 181 (Pa. 2013). The corners of
the bag may be used as smaller bags to package controlled substances, and
the remnants of the bag itself, which has no corners, resembles a diaper,
hence the name.



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discovered a bag that contained nineteen individually wrapped pieces of

crack cocaine and Parker’s Pennsylvania identification card. Id.

      Appellant was not in the house when police executed the search

warrant. When Detective Love and Detective DeFelice saw Appellant driving

away from 637 South Fifth Street, they conducted a traffic stop. N.T., Trial,

10/22-23/13, at 41.     The occupants of the vehicle were Appellant and

Gibson. Id. The detectives removed Appellant from the car and searched

his person.   Id. at 41-42.   Detective Love took a mobile telephone from

Appellant’s hand.   Id. at 44. Police did not recover money or drugs from

Appellant’s person or from the vehicle. Id. at 46. The police subsequently

conducted a search of activity on the telephone recovered from Appellant.

N.T., Trial, 10/22-23/13, at 61. Chief Adams testified that some of the text

messages on the phone revealed evidence of what he considered “street-

level drug dealing.” Id. at 62.

      Appellant was charged with possession of a controlled substance with

intent to deliver (“PWID”), possession of a controlled substance, possession

of drug paraphernalia, and criminal conspiracy. Following a bench trial that

was held on October 22, 2013 through October 23, 2013, Appellant was

acquitted of conspiracy, but the trial court convicted him on the other

charges. The trial court sentenced Appellant to a term of one and one-half

to five years of incarceration on the PWID conviction, and imposed no

further penalty on the other two counts.      Appellant filed a timely post-


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sentence motion that was denied on January 31, 2014, and this timely

appeal followed.

     On appeal, Appellant raises the following issues for this Court’s

consideration:

     I.    Whether the evidence was sufficient to convict [Appellant]
     at Count 1—Possession of a Controlled Substance With Intent to
     Deliver, Count 2—Possession of a Controlled Substance, and
     Count 3—Possession of Drug Paraphernalia when the
     Commonwealth failed to prove, beyond a reasonable doubt, that
     he was in constructive possession of the drugs and drug
     paraphernalia?1
           1
              In his Concise Statement, [Appellant] individually
           raised a failure-to-prove-constructive-possession
           challenge as to each conviction. (Docket Entry 25).
           For purposes of convenience and ease of the reader,
           [Appellant] has combined these three identical issues
           into one argument in his Brief for Appellant.

     II.   Assuming, arguendo, that [Appellant] constructively
     possessed the drugs, whether the evidence was sufficient to
     sustain his conviction at Count 1—Possession of a Controlled
     Substance With Intent to Deliver when the Commonwealth failed
     to prove, beyond a reasonable doubt, that he possessed the
     drugs with the intent to deliver them?

Appellant’s Brief at 5 (footnote in original).   Because these issues are

interrelated, we address them concurrently.

     In reviewing challenges to the sufficiency of the evidence, “our

standard of review is de novo, however, our scope of review is limited to

considering the evidence of record, and all reasonable inferences arising

therefrom, viewed in the light most favorable to the Commonwealth as the

verdict winner.” Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa. Super.


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2015) (citation omitted).     “Evidence is sufficient if it can support every

element of the crime charged beyond a reasonable doubt.”            Id. (citation

omitted).   The evidence does not need to disprove every possibility of

innocence, and doubts as to guilt, the credibility of witnesses, and the

weight of the evidence are left to the finder of fact. Id. (citation omitted).

We will not disturb the verdict “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.”       Id. (citation omitted).   Moreover, the

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.   Commonwealth v. Orr, 38 A.3d 868, 873 (Pa. Super. 2011)

(citation omitted).   In applying the above test, the entire record must be

evaluated and all evidence actually received must be considered.              Id.

Finally, the trier of fact while passing upon the credibility of witnesses is free

to believe all, part, or none of the evidence. Id.

      As noted above, Appellant was convicted of possession of a controlled

substance, PWID, and possession of drug paraphernalia. To prove a

defendant guilty of possession of a controlled substance, the Commonwealth

must prove beyond a reasonable doubt that Appellant possessed a controlled

substance. 35 P.S. § 780-113(a)(16). In order to uphold a conviction for

PWID pursuant to 35 P.S. § 780-113(a)(30), the Commonwealth must prove

beyond a reasonable doubt that the defendant possessed a controlled


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substance and did so with the intent to deliver it.                Commonwealth v.

Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000) (en banc). “The intent to

deliver may be inferred from an examination of the facts and circumstances

surrounding the case.” Commonwealth v. Conaway, 791 A.2d 359, 362-

363 (Pa. Super. 2002). “[P]ossession with intent to deliver can be inferred

from     the   quantity    of    the   drugs     possessed   and   other   surrounding

circumstances,      such        as   lack   of    paraphernalia    for   consumption.”

Commonwealth v. Jones, 874 A.2d 108, 121 (Pa. Super. 2005). Expert

opinion testimony is also admissible “to aid in determining whether the facts

surrounding the possession of controlled substances are consistent with

intent to deliver.” Commonwealth v. Ratsamy, 934 A.2d 1233, 1237 (Pa.

2007).

       When the contraband is not found on the defendant’s person, the

Commonwealth must prove that the defendant had constructive possession

of the contraband, or that the individual had the ability and intent to

exercise control or dominion over the contraband.                  Commonwealth v.

Dargan, 897 A.2d 496, 503 (Pa. Super. 2006). In a situation where more

than one person has access to the contraband, presence alone will not prove

conscious dominion over the contraband. Commonwealth v. Bricker, 882

A.2d 1008, 1016 (Pa. Super. 2005) (citation omitted). “Rather, the

Commonwealth must introduce evidence demonstrating either Appellant’s

participation in the drug-related activity or evidence connecting Appellant to


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the specific room or areas where the drugs were kept.”           Id. (citation

omitted).

      Finally, the crime of possession of drug paraphernalia is defined as:

      (32) 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, 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).         Drug paraphernalia is defined as: “all

equipment, products and materials of any kind which are used, intended for

use or designed for use in ... storing, containing, concealing ... a controlled

substance in violation of [the Controlled Substance, Drug, Device and

Cosmetic Act, 35 P.S. § 780-101 et seq. (“the Act”)].” Commonwealth v.

Coleman, 984 A.2d 998, 1001 (Pa. Super. 2009). In determining whether

an object is drug paraphernalia, a court should consider, in addition to all

other logically relevant factors, statements by an owner or by anyone in

control of the object concerning its use, the proximity of the object, in time

and space, to a direct violation of the Act, the proximity of the object to

controlled substances, the existence of any residue of controlled substances

on the object, direct or circumstantial evidence of the intent of an owner, or

of anyone in control of the object, to deliver it to persons who he knows, or

should reasonably know, intend to use the object to facilitate a violation of

the Act, the existence and scope of legitimate uses for the object in the


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community, and expert testimony concerning its use.         Id.   “To sustain a

conviction for possession of drug paraphernalia[,] the Commonwealth must

establish that items possessed by defendant were used or intended to be

used with a controlled substance so as to constitute drug paraphernalia and

this burden may be met by [the] Commonwealth through circumstantial

evidence.” Id. (citation omitted).

     As discussed above, Buefort testified that Appellant shared the

bedroom on the right with his girlfriend, Javonna Gibson. N.T., Trial, 10/22-

23/13, at 50. In this bedroom, the police found baggy diapers, two sifters, a

hot plate, baking soda, a digital scale, baggies, and a single piece of crack

cocaine. Id. at 32. This evidence, which was accepted by the fact finder,

proved that Appellant lived in the bedroom on the right, and it allowed the

factfinder to reasonably infer that Appellant had the ability and intent to

exercise control or dominion over the contraband found in his room.

Dargan, 897 A.2d at 503. Pursuant to our standard of review, this evidence

was sufficient to establish that Appellant constructively possessed the

cocaine   and   paraphernalia,   or   jointly   possessed   the   cocaine   and

paraphernalia. Bricker, 882 A.2d at 1016. We discern no error in the trial

court’s conclusion that this evidence was sufficient to prove Appellant

possessed both the crack cocaine and drug paraphernalia found in the

bedroom on the right.




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       However, we are constrained to agree with Appellant that the evidence

was insufficient to prove that he was guilty of PWID.          As noted, while

Appellant constructively possessed a single piece of crack cocaine, the

nineteen individually wrapped pieces of crack cocaine discovered in the

house were not in Appellant’s room, but in the room where Buefort and

Parker lived.      N.T., Trial, 10/22-23/13, at 16-17.   The Commonwealth’s

expert, who concluded that contraband found in the home was consistent

with the intent to deliver, combined the items found in the bedroom on the

right and the items found in the bedroom on the left.               Id. at 74-76.

However, there is no evidence connecting Appellant to the bedroom on the

left. As stated, Buefort testified that the room on the left was her room and

that the bedroom on the right was Appellant’s room. Id. at 50. There is no

testimony from the Commonwealth’s expert, or any other witness, that the

small amount of crack cocaine found in Appellant’s room supported the

intent to deliver.    Moreover, while there was paraphernalia and packaging

material in Appellant’s room, there is no evidence linking Appellant to

possession of an amount of crack cocaine indicating the intent to deliver.

Additionally, while the phone seized from Appellant contained activity

consistent with street level drug dealing, the record contains no evidence

that   Appellant     owned   the   phone   or   communicated   on    that   phone.

Accordingly, we conclude that the evidence was insufficient to prove PWID,




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and therefore, we reverse Appellant’s conviction and the judgment of

sentence on PWID.

       For the reasons set forth above, we affirm Appellant’s judgment of

sentence with respect to possession of a controlled substance and

possession of drug paraphernalia.          However, we reverse the guilty verdict

and Appellant’s judgment of sentence on PWID and remand for resentencing

on the remaining counts. 2

       Judgment affirmed in part and reversed in part. Case remanded for

resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/24/2015




____________________________________________


2
  Because our disposition disturbs the trial court’s overall sentencing
scheme, we remand for resentencing. See Commonwealth v. Tanner, 61
A.3d 1043, 1048 (Pa. Super. 2013) (stating that where this Court upsets the
sentencing scheme envisioned by the trial court, the better practice is to
remand for resentencing).



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