J-S39017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

JASON MARASCO

                            Appellant                         No. 1535 WDA 2013


          Appeal from the Judgment of Sentence of August 29, 2013
             In the Court of Common Pleas of Allegheny County
              Criminal Division at No.: CP-02-CR-0001939-2013

BEFORE: BENDER, P.J.E., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                                     FILED AUGUST 13, 2014

       Jason Marasco appeals his August 29, 2013 judgment of sentence for

contraband. We affirm.

       The    evidence,     viewed      in     the   light   most   favorable   to   the

Commonwealth, supports the following factual account:

       [O]n November 23, [2012], [Marasco] was a resident of cell 220
       on pod 4D in the Allegheny County Jail.           On that day,
       Corrections Officer Eric Gamboa observed five (5) to ten (10)
       inmates going into [Marasco’s] cell, remaining in the cell for
       three (3) to five (5) seconds and then leaving. Officer Gamboa
       called [Marasco] out of his cell and reminded him that other
       inmates were not permitted in his cell. [Marasco] stated he
       understood. After approximately five (5) minutes, the parade of
       inmates return[ed] to their respective cells to be counted, and
       he and his partner, Officer Charles Claypoole went to [Marasco’s]
       cell. During the search, Officer Claypoole discovered a sock
       under [Marasco’s] bunk[,] which contained a baseball-sized
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*
       Retired Senior Judge assigned to the Superior Court.
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      amount of powder, which was later determined to be the drug
      clonazepam.

Trial Court Opinion (“T.C.O.”), 1/13/2014, at 3.

      Based upon this evidence, the trial court, following a bench trial, found

Marasco guilty of Contraband, which is defined, in relevant part, as follows:

      (a) Controlled        substance     contraband      to     confined
      persons prohibited.—A person commits a felony of the second
      degree if he sells, gives, transmits or furnishes to any convict in
      a prison, . . . or gives away in or brings into any prison . . . for
      the use and benefit of the prisoners or inmates, or puts in any
      place where it may be secured by a convict of a prison . . . any
      controlled substance included in Schedules I through V of the act
      of April 14, 1972 (P.L. 233, No. 64), known as The Controlled
      Substance, Drug, Device and Cosmetic Act, . . . without a written
      permit signed by the physician of such institution . . . .

18 Pa.C.S. § 5123(a).      Pursuant to subsection 5123(a.1), an individual

convicted of a violation of subsection 5123(a) is subject to a mandatory

minimum sentence of at least two years of total confinement. Accordingly,

the trial court sentenced Marasco to the mandatory minimum sentence of

two to four years’ incarceration.

      Marasco filed no post-sentence motions, but filed the instant appeal.

On December 6, 2013, the trial court directed Marasco to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On December 17, 2013, Marasco timely complied. Thereafter, the trial court

entered the above-excerpted Rule 1925(a) opinion.

      Before this Court, Marasco raises the following issue:

      The evidence was not sufficient to establish each element of
      possession of contraband beyond a reasonable doubt because

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      the Commonwealth failed to prove that [Marasco] was aware of
      the contraband or would have had any opportunity to possess it
      when he was only in the cell for a short time, others had access
      to the cell, and he was strip searched before being placed in the
      cell[,] whereas the cell was not searched before placing
      [Marasco] in it.

Brief for Marasco at 9 (capitalization modified).

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

governed by the following standard:

      We must determine whether the evidence admitted at trial, and
      all reasonable inferences drawn therefrom, when viewed in [the]
      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 [that]
      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. Mobley, 14 A.3d 887, 889-90 (Pa. Super. 2010)

(quoting Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa. Super. 2010));

see Commonwealth v. Auker, 681 A.2d 1305, 1314 (Pa. 1996).

      In substance, Marasco’s challenge pertains only to the possession

element   of   contraband,   leaving   unchallenged    the   adequacy   of   the

Commonwealth’s proof of the other elements.           Marasco correctly argues


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that, because the contraband was not found on his person, it was incumbent

upon the Commonwealth to prove beyond a reasonable doubt that Marasco

constructively possessed the controlled substance. Brief for Marasco at 9-10

(citing    Commonwealth        v.   Kirkland,     831    A.2d     607,    611

(Pa. Super. 2003)).   Marasco acknowledges our case law establishing that

“conscious dominion” may be established circumstantially when the item in

question is found in a place typically accessible only to the accused, but

notes that such an inference is not appropriate when the item in question is

found in a location to which others have a similar degree of access to the

accused.   Id. at 11-12; see Commonwealth v. Stamps, 427 A.2d 141,

145 (Pa. 1981) (“We recognize that the fact of possession loses all

persuasiveness if persons other than the accused had equal access to the

place in which the property was discovered,” but “exclusive control over the

contents of a residence may properly be inferred from a showing that the

accused is the only occupant or tenant of that residence.”).

      In applying these principles to the instant case, Marasco relies heavily

upon the assertions embedded in his statement of the issues: He contends

that he had been moved into the cell where the contraband was discovered

shortly before the correctional officers’ search; that he was strip searched

before he was moved into that cell; that the cell, itself, was not searched

before the move; and that numerous other inmates, including a cell mate,

had equal or superior access to the location where the contraband was




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found.    Id. at 11-12.1       Thus, he contends, the Commonwealth failed to

prove beyond a reasonable doubt each element of the crime of contraband.

       The trial court rejected this argument. First, it noted that, “[a]lthough

numerous inmates had been in and out of [Marasco’s] cell prior to the

search, there is only one pocket in the jail uniforms – a chest pocket in the

shirt – and none of those inmates were seen with a baseball-sized item in

[his] chest pocket.”        T.C.O. at 3.       The court rejected the balance of

Marasco’s argument as follows:

       [Marasco] presented no evidence in support of [the] argument
       [that he had recently been moved into the cell] in the form of jail
       logs, etc., and therefore [the trial court could not] consider it.
       Rather, the drugs were found under [Marasco’s] mattress, in an
       area not accessible to the lower-bunk inmate, and in an area
       within [Marasco’s] control.

Id.

       We have described the nature of “constructive” possession as follows:

       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.

____________________________________________


1
      In effect, Marasco attempts to exploit the very evidence that the court
found damning – the numerous brief visits of other inmates – as inculpating
evidence, by insisting that any of these visitors might, in fact, have
deposited or otherwise exercised dominion over the contraband found
hidden in Marasco’s bunk without his knowledge or complicity.



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      To aid application, we have held that constructive possession
      may be established by the totality of the circumstances.

Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (quoting

Commonwealth v. Thompson, 779 A.2d 1195, 1199 (Pa. Super. 2001))

(internal quotation marks omitted). While “[i]ndividually, the circumstances

may not be decisive[,] . . . in combination, they may justify an inference

that the accused had both the power to control and the intent to exercise

that control.”        Commonwealth v. DeCampli, 364 A.2d 454, 457

(Pa. Super. 1976).

      Marasco, indeed, testified that he had been moved recently and that

he had been strip searched in advance of that move.            He further testified

that the cell was not searched before he was placed in it. However, the trial

court, as fact-finder, was free to disregard Marasco’s testimony as

incredible, especially in the absence of corroborating evidence.         However,

the   burden     of   proof   beyond   a   reasonable    doubt   rests   with   the

Commonwealth. Thus, it was incumbent on the Commonwealth to establish

constructive possession beyond a reasonable doubt.           As noted above, the

evidence at trial established that Marasco occupied a cell that was visited

ever so briefly by five to ten other inmates.           After correctional officers

observed this pattern, they searched the cell, discovering a baseball-sized

bag of contraband lodged in Marasco’s mattress.

      In light of the above evidence, a fact-finder reasonably could have

concluded that Marasco had the “power to control the contraband and the



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intent to exercise that control.”    Not only was the contraband found in

Marasco’s bunk, over which a fact-finder could infer Marasco’s effectively

exclusive dominion, but the “parade” of visitors to his cell entered the cell

while Marasco was there, all but excluding any prospect that any one of

them deposited the contraband in Marasco’s bunk without his knowledge and

assent.   That evidence was sufficient to satisfy the standard we have set

forth for constructive possession, and, therefore, sufficient to establish

beyond    a   reasonable   doubt   that   Marasco   committed   the   crime   of

contraband.

     The cases cited by Marasco are not to the contrary; indeed, we find

support for affirmance in the very same cases. In DeCampli, for example,

we reversed the defendant’s judgment of sentence not due to the

inadequacy of the proof of constructive possession but due to certain

prejudicial testimony presented by the Commonwealth.        See 364 A.2d at

457-59. With respect to the constructive possession at issue in that case,

we found circumstantial evidence that the defendant was the sole occupant

of the dwelling sufficient to sustain the conviction notwithstanding that

visitors to the home could have brought the contraband, unbeknownst to the

defendant. Id. at 456-57.     Our conclusion found additional support in the

fact that the contraband was found variously in a jewelry box and an

envelope on the defendant’s dresser in his bedroom. Id. at 457.

     In Thompson, an inmate was found to be in constructive possession

of a bag of contraband.    The defendant was observed in his cell with two

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other inmates; all three were seen to have packets containing a “brown,

grass substance.”     A larger bag was observed on the inmate’s bunk.

Correctional officers secured the cell, and, in the search that followed, found

a large bag containing marijuana wedged in a table near the inmate’s bunk,

which we characterized as a “location to which [the inmate], in the future,

would have private access.” 428 A.2d at 225. While the initial observations

arguably were more incriminating than the initial observations in this case,

our conclusions regarding the location of, and present and future access to,

the contraband nonetheless were our primary basis for affirmance.             Those

observations apply equally to this case, in which the contraband was found

secreted in Marasco’s bunk, to which he later would have access superior to

any other individual.     The location of the contraband in Marasco’s cell,

viewed in tandem with the brief visits of five to ten other inmates in rapid

succession,   constituted     sufficient    evidence   to   establish   constructive

possession of the contraband.

      We conclude by noting that Marasco arguably does not directly

challenge the adequacy of the Commonwealth’s evidence under the

applicable standard to establish an evidentiary basis for his conviction.

Instead, Marasco’s argument largely is based upon the proposition that the

trial court wrongfully disregarded his self-serving testimony in favor of the

Commonwealth’s circumstantial evidence. Thus, Marasco arguably presents

a challenge to the trial court’s weighing of the evidence rather than the

evidence’s sufficiency.     No such challenge will lie in this case:       We may

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consider a challenge to the weight of the evidence only if the appellant first

has challenged it in an oral or written post-trial motion that is presented to

the trial court.   See Pa.R.Crim.P. 607(A); Commonwealth v. Mack, 850

A.2d 690, 693-94 (Pa. Super. 2004).        Marasco made no such motion.

Consequently, any intended challenge to the weight of the evidence is

waived.

      The Commonwealth’s evidence in this case was not “so weak and

inconclusive that, as a matter of law, no probability of fact [could] be drawn

from the combined circumstances.” See Mobley, supra. Thus, we find that

the Commonwealth presented sufficient evidence to support a finding

beyond a reasonable doubt of each element of the crime of contraband,

including   the    circumstantial   evidence   of   constructive   possession.

Consequently, Marasco’s challenge to the sufficiency of the evidence fails.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/2014




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