J-S47034-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
               Appellee                  :
                                         :
                  v.                     :
                                         :
TERRELL DEVON FLOYD,                     :
                                         :
               Appellant                 :   No. 116 WDA 2018

           Appeal from the Judgment of Sentence August 1, 2017
            In the Court of Common Pleas of Armstrong County
            Criminal Division at No(s): CP-03-CR-0000558-2016

BEFORE:    OLSON, MCLAUGHLIN, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                FILED SEPTEMBER 06, 2018

      Terrell Devon Floyd (Appellant) appeals from the judgment of sentence

of 30 to 60 months of incarceration imposed following his convictions for

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

a controlled substance, and possession of drug paraphernalia. We affirm.

      The trial court summarized the relevant factual history of this matter as

follows.

             On June 27, 2016, Detective Frank Pitzer was conducting
      surveillance of Staley’s Motel in Kittanning, Armstrong County,
      Pennsylvania.    At the time, Detective Pitzer was the Chief
      Armstrong County Detective and a regional coordinator of the
      Armstrong County Narcotics Enforcement Team (“ARMNET”).
      Detective Pitzer had conducted surveillance of Staley’s Motel on
      many prior occasions and knew it to be a location of frequent drug
      activity. That day, he received information that drug activity was
      again occurring at the motel, this time in room “8” specifically.
      Detective Pitzer set up his surveillance in a marked police vehicle
      in the parking lot of a convenience store located across the
      highway. From his vantage point, he could see clearly the exterior
      doorways of the motel rooms, including that of room 8. All of the


* Retired Senior Judge assigned to the Superior Court.
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     rooms of the motel are ground-level. The doorways open to a
     sidewalk and the motel’s gravel parking lot. Each room also has
     a rear exterior window.

           Between 10:00 a.m. and 11:00 a.m., Detective Pitzer
     observed a white car pull into the motel driveway and park directly
     in front of room 8. He then observed [Appellant] and a female,
     Gabrielle Simms, come out of room 8 and approach the vehicle.
     The door to room 8 was open when the vehicle arrived. Detective
     Pitzer recognized [Appellant] and Simms, having had prior
     experiences with both. [Appellant] stood at the driver’s window
     of the vehicle and Simms at the passenger window.                 A
     conversation ensued during which both [Appellant] and Simms
     leaned into the vehicle. The female driver made movements
     during the conversation, but Detective Pitzer did not observe
     exactly what was going on inside. Given his training in drug
     investigations and his prior experience with Staley’s Motel in
     particular, Detective Pitzer suspected that drug activity was afoot.
     After approximately 5 minutes, the white vehicle left, and
     [Appellant] and Simms returned to room 8.

           Detective Pitzer radioed Sheriff William Rupert and Deputy
     Sheriff Jason Hufhand, both of whom are ARMNET detectives and
     were in the area for backup, to advise that he was going to
     conduct an investigatory stop of the white car. Detective Pitzer
     followed the white car and conducted a traffic stop not far from
     Staley’s along State Route 66.       Sheriff Rupert and Deputy
     Huf[h]and soon arrived to assist. Detective Pitzer first spoke with
     the female driver of the vehicle. He then spoke with the male
     passenger who exited the vehicle to speak with the officers.
     Detective Pitzer searched the male passenger and found no drugs
     or contraband. The male passenger then advised Detective Pitzer
     that there were two black males in room 8 with drugs. He
     indicated that one went by the nickname of “Yikes” and the other
     by “J.”6 Detective Pitzer knew from his prior experience that
     [Appellant’s] nickname was “Yikes.” Detective Pitzer requested
     consent to search the vehicle from the female driver, who
     declined. The officers then ended the stop and drove back to
     Staley’s.

           ________

           6 Detective Pitzer knew that there were several outstanding
           drug-related felony arrest warrants for an individual known

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               as “J.” The officers were attempting to find “J” on the day
               they observed [Appellant] at Staley’s.           The male
               passenger’s description of the second black man in room 8
               matched the description of the individual with the
               outstanding warrants.

                When the officers returned and pulled into the motel parking
         lot, the door to room 8 again was open. Detective Pitzer observed
         an individual look out the door and then shut it as the officers
         approached. Having had prior experience with drug-related
         apprehensions at Staley’s, Detective Pitzer asked Deputy Hufhand
         to go around the back of the motel to watch the bathroom window.
         Detective Pitzer and Sheriff Rupert then approached the door to
         room 8. At that point, Deputy Hufhand radioed and advised that
         someone in the bedroom was going to the bathroom. Detective
         Pitzer knocked on the door and it opened. Deputy Huf[h]and
         radioed again to advise that a black individual with tattoos on his
         arm had dropped a green Crown Royal[] bag out of the bathroom
         window and was going back into the bedroom. This individual
         would later be identified as John Weathersby.

               When the front door opened, Detective Pitzer observed the
         inside of room 8, which was very small. He immediately saw
         [Appellant] standing between the two beds in the room, which
         were approximately two feet apart. Weathersby was walking out
         of the bathroom and Simms was lying on the bed behind
         [Appellant]. Detective Pitzer also immediately noticed a digital
         scale sitting on the shelf of the headboard of one of the beds,
         located within an arm’s reach of [Appellant]. The cover had been
         removed and a white powdery residue, later identified as Fentanyl,
         was on top of the scale. Detective Pitzer also observed the corner
         of a plastic baggie sticking out from between the mattress and
         box springs of the bed on which Simms was lying. The contents
         of that bag [were] later identified to be cocaine. Detective Pitzer
         recognized that Weathersby was not the “J” individual for whom
         the officers had been looking.

               Detective Huf[h]and then came around to the front of the
         building with the Crown Royal[] bag to find seven small baggies
         of cocaine, a rock of crack cocaine, a baggie of marijuana, a credit
         card, and a rolled-up $10.00 bill. The officers then Mirandized[1]
____________________________________________


[1]   Miranda v. Arizona, 384 U.S. 436 (1966).

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      all three individuals and searched the two males. They found
      $424.00 cash on [Appellant’s] person in various denominations.
      They also found $459.00 cash on Weathersby’s person, again in
      various denominations. Simms, when advised that she would be
      taken to the Armstrong County Jail to be searched, admitted that
      she had a baggie of cocaine in her pants. All three individuals
      were apprehended and the contraband, drugs, and cash [were]
      confiscated.

             The contraband recovered from the scene included 1) 20.62
      grams of cocaine, packaged in seven small baggies, taken from
      the green Crown Royal[] bag, 2) 5.99 grams of rock or “crack”
      cocaine, taken from the Crown Royal[] bag, 3) 1.13 grams of
      marijuana, taken from the Crown Royal[] bag, 4) 0.21 grams of
      cocaine, taken from the baggie found under the mattress, 5) 3.95
      grams of cocaine, taken from the bag in Simms’[s] pants, and 6)
      0.79 grams of Fentanyl, taken from the weighing surface on the
      digital scale.

Trial Court Opinion, 3/5/2018, at 2-5.

      Appellant was arrested and charged with conspiracy in addition to the

aforementioned charges. A jury trial was held on April 11, 2017, and Appellant

was convicted of all charges except conspiracy. On August 1, 2017, Appellant

was sentenced to 30 to 60 months of incarceration on the PWID conviction,

and he received no further penalty for the other two convictions. Appellant

timely filed a post-sentence motion, which was denied by operation of law on

December 21, 2017.      Appellant timely filed a notice of appeal, and both

Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant first challenges the sufficiency of the evidence to sustain his

convictions on all three charges. See Appellant’s Brief at 9-14. Accordingly,

the following principles apply.




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      The standard of review for a challenge to the sufficiency of the
      evidence is to determine whether, when viewed in a light most
      favorable to the verdict winner, the evidence at trial and all
      reasonable inferences therefrom is sufficient for the trier of fact to
      find that each element of the crimes charged is established beyond
      a reasonable doubt. The Commonwealth may sustain its burden
      of proving every element beyond a reasonable doubt by means of
      wholly circumstantial evidence.

      The facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. Any doubt raised
      as to the accused’s guilt is to be resolved by the fact-finder. As
      an appellate court, we do not assess credibility nor do we assign
      weight to any of the testimony of record. Therefore, 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.

Commonwealth v. Wanner, 158 A.3d 714, 717-18 (Pa. Super. 2017)

(quoting Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014)

(citations and quotations omitted)).

      To sustain a conviction for the crime of possession of a controlled

substance, the Commonwealth must prove that Appellant knowingly or

intentionally possessed a controlled substance without being properly

registered to do so under the Controlled Substance, Drug, Device and

Cosmetic Act (the Act). See 35 P.S. § 780–113(a)(16). The crime of PWID

requires the Commonwealth to prove an additional element: that Appellant

possessed the controlled substance with the intent to manufacture, distribute,

or deliver it. See 35 P.S. § 780–113(a)(30). The crime of possession or use

of drug paraphernalia requires the Commonwealth to prove that Appellant




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knowingly or intentionally possessed or used drug paraphernalia. See 35 P.S.

§ 780–113(a)(32).

     Because the contraband was not found on Appellant’s person, the

Commonwealth was required to prove constructive possession.

     Constructive possession is a legal fiction, a pragmatic construct to
     deal with the realities of criminal law enforcement. … 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) (quotation

marks and citation omitted). The Commonwealth may establish constructive

possession of an illegal substance by wholly circumstantial evidence.

Commonwealth v. Johnson, 26 A.3d 1078 (Pa. 2011).                     Further,

“[c]onstructive possession may be found in one or more actors where the item

in issue is in an area of joint control and equal access.” Commonwealth v.

Mudrick, 507 A.2d 1212, 1213 (Pa. 1986).

     The trial court offered the following in support of its determination that

Appellant constructively possessed the contraband.

     …Detective Pitzer testified that he had several prior experiences
     with [Appellant] and with drug activity at Staley’s Motel. He
     further testified that, after receiving a report of drug activity in
     room 8, he observed [Appellant] and Simms come out of the room
     and converse for several minutes with two individuals in a white
     car parked outside, at times leaning and reaching into the vehicle.
     During a traffic stop of the vehicle, the male passenger indicated
     that two black males, one nicknamed “Yikes,” was in the room
     with drugs. Detective Pitzer knew “Yikes” to be [Appellant’s]
     nickname.

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            Upon entering the room, which was small, Detective Pitzer
      observed [Appellant] within arm’s reach of a digital scale with drug
      residue and baggie of cocaine under the mattress, both in plain
      view.

Trial Court Opinion, 7/20/2017, at 3-4.

      Here, Appellant argues that the “Commonwealth failed to present any

evidence linking [Appellant] to the motel room, and also failed to present any

evidence that [Appellant] exercised conscious dominion over any of the

contraband found in the room.” Appellant’s Brief at 12. Unlike Weathersby,

who was seen with the Crown Royal bag, and Simms, who was on the bed

with the baggie of cocaine, Appellant argues that he was merely present in

the room. Id. at 12-13.

      Viewing the facts in the light most favorable to the Commonwealth, the

totality of the circumstances suggests that all individuals in the room were

involved in drug-related activity. First, the scale and a baggie of cocaine were

in plain view in a small motel room where Appellant had been seen entering

and exiting. N.T., 4/11/2017, at 49. Although others were in the motel room

and may have been seen holding the contraband, “[p]ossession of the illegal

substance need not be exclusive; two or more can possess the same drug at

the same time.” Commonwealth v. Macolino, 469 A.2d 132, 135 (Pa.

1983).

      Detective Pitzer testified that he has “been called [to Staley’s Motel] on

numerous drug investigations.” N.T., 4/11/2017, at 29. In addition, Detective


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Pitzer saw both Appellant and Simms engaging in suspicious activity directly

from a motel room where it had been reported that drug activity was

occurring. Thus, even though police did not see Appellant with the Crown

Royal bag, the scale, or the cocaine between the mattresses, a jury could

reasonably infer Appellant, as well as the others in the room, constructively

possessed them. As we have pointed out,

      although “mere presence” at a crime scene cannot alone sustain
      a conviction for possession of contraband: “a jury need not ignore
      presence, proximity and association when presented in
      conjunction with other evidence of guilt. Indeed, presence at the
      scene where drugs are being processed and packaged is a material
      and probative factor which the jury may consider. Drug dealers
      of any size and [illegal drug] manufacturers probably are reticent
      about allowing the unknowing to take view of or assist in the
      operation.”

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

United States v. Robinson, 978 F.2d 1554, 1557-58 (10th Cir. 1992)).

Based on the foregoing, a jury could reasonably infer that Appellant was

involved in the drug-related activity occurring in the motel room; thus, we

conclude evidence was sufficient to sustain Appellant’s convictions.

      We now turn to Appellant’s second claim, where he contends that the

verdict is contrary to the weight of the evidence. See Appellant’s Brief at 15.

We review this claim mindful of the following.

      We have held that [a] motion for new trial on the grounds that
      the verdict is contrary to the weight of the evidence, concedes
      that there is sufficient evidence to sustain the verdict. Our
      Supreme Court has described the standard applied to a weight-
      of-the-evidence claim as follows:


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                   The decision to grant or deny a motion for a new
            trial based upon a claim that the verdict is against the
            weight of the evidence is within the sound discretion
            of the trial court. Thus, the function of an appellate
            court on appeal is to review the trial court’s exercise
            of discretion based upon a review of the record, rather
            than to consider de novo the underlying question of
            the weight of the evidence. An appellate court may
            not overturn the trial court’s decision unless the trial
            court palpably abused its discretion in ruling on the
            weight claim. Further, in reviewing a challenge to the
            weight of the evidence, a verdict will be overturned
            only if it is so contrary to the evidence as to shock
            one’s sense of justice.

      Commonwealth v. Cash, 137 A.3d 1262, 1270 ([Pa.] 2016). A
      trial court’s determination that a verdict was not against the
      interest of justice is [o]ne of the least assailable reasons for
      denying a new trial. A verdict is against the weight of the evidence
      where certain facts are so clearly of greater weight that to ignore
      them or to give them equal weight with all the facts is to deny
      justice. [W]e do not reach the underlying question of whether the
      verdict was, in fact, against the weight of the evidence.... Instead,
      this Court determines whether the trial court abused its discretion
      in reaching whatever decision it made on the motion[.]

Commonwealth v. Williams, 176 A.3d 298, 312 (Pa. Super. 2017) (some

citations and quotation marks omitted).

      Here, Appellant contends that the jury verdict was

      based solely on speculation given that the only facts relied upon
      by the Commonwealth to connect [Appellant] to any wrongdoing
      whatsoever were that he was present in a motel room where drugs
      and contraband that clearly did not belong to him were found, and
      he had a discussion with the occupants of a vehicle located in front
      of the motel room where he was arrested.

Appellant’s Brief at 15.

      In this case, the trial court concluded that the jury verdict did not shock

its conscience. Trial Court Opinion, 7/20/2017, at 10. We discern no abuse of

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discretion in that conclusion. Despite Appellant’s arguments to the contrary,

as discussed supra, the Commonwealth established more than Appellant’s

mere presence in the motel room, including seeing him engaging in suspicious

activity and finding cash on his person. Thus, we discern no abuse of the

discretion in the trial court’s conclusion, and Appellant is not entitled to relief

on this claim.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/2018




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