J-S85004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    BEENIE JAMES THORNTON, JR.                 :
                                               :
                      Appellant                :   No. 1770 WDA 2016

            Appeal from the Judgment of Sentence October 11, 2016
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0007538-2015


BEFORE: BOWES, J., PANELLA, J., and STABILE, J.

MEMORANDUM BY BOWES, J.:                                   FILED MAY 21, 2018

        Beenie1 James Thornton, Jr. appeals from the judgment of sentence of

six to twelve months incarceration and one year probation imposed following

his non-jury trial convictions for, inter alia, possession of a controlled

substance (heroin), possession of marijuana, and fleeing and eluding a

police officer. We affirm.

        On April 8, 2015, at 8:20 a.m., Officer Brian Meals of the Homestead

Police Department observed a blue Ford Explorer, driven by Appellant, with

an expired validation sticker. A license plate check revealed that the plate


____________________________________________


1 The docket for this case lists Appellant’s name as Beenie James Thornton,
Jr. while the plea transcripts and parties’ briefs refer to Appellant’s name as
Bennie. Additionally, Appellant’s brief lists the last name as “Thorton.” Pre-
trial motions filed by Appellant in this case have used both first name
designations.
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was registered to a different vehicle, causing Officer Meals to activate his

lights and sirens for a traffic stop.          Appellant did not obey, but instead

weaved through oncoming traffic and went through several red lights.

Officer Meals followed the vehicle, which eventually went over a bridge.

While on the bridge, Officer Meals observed the passenger extend her hand

outside her window and throw out a number of items. Officer Meals, who

was in contact with other officers via radio, informed them of the location of

the items while he continued pursuit. Corporal Steven Adams proceeded to

the area identified by Officer Meals and recovered 191 individual stamp bags

of heroin, some packaging material, and a small amount of marijuana.

Some of these items were discovered on the bridge itself, while others were

retrieved from the ground below.

       The pursuit ended approximately four minutes after its initiation, as

traffic impeded the Explorer, enabling police to surround the vehicle. Officer

Meals made contact with the occupants. Appellant and his girlfriend, located

in the passenger seat, were removed from the vehicle and arrested.2

       Approximately five hours later, Officer Meals transported Appellant to

arraignment in his police vehicle.             Unprompted, Appellant asked if his

girlfriend would also be charged.          He stated that the drugs were his and



____________________________________________


2 The passenger was charged and tried jointly with Appellant; she was
acquitted of all counts.



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expressed regret for getting his girlfriend involved. He further indicated that

he had recently purchased the heroin.

      Based on the foregoing, Appellant was charged with possession with

intent to deliver (“PWID”), possession of heroin, possession of marijuana,

possession of drug paraphernalia, fleeing or attempting to elude a police

officer, and various summary vehicular offenses. Following a bench trial, the

court acquitted Appellant of PWID and two of the summary offenses; he was

convicted of all other charges.     Appellant was sentenced as previously

indicated, and filed a timely notice of appeal. Appellant complied with the

order to file a Pa.R.A.P. 1925(b) statement, and the trial court issued its

opinion in response. We now address the two claims raised on appeal.

      I.    Was the evidence insufficient to sustain the convictions for
            possession of a controlled substance, possession of
            marijuana, and possession of drug paraphernalia, in that
            the Commonwealth failed to prove beyond a reasonable
            doubt that [Appellant] was in actual or constructive
            possession of the marijuana or heroin that a passenger
            threw out the window of a vehicle which [Appellant] was
            driving?

      II.   Was the evidence insufficient to sustain the conviction for
            fleeing or attempting to elude a police officer in that the
            Commonwealth failed to prove beyond a reasonable doubt
            that [Appellant] knew that a police officer was trying to
            pull him over, and that he purposefully failed to bring his
            vehicle to a stop when the officer activated the police car's
            lights and siren?

Appellant’s brief at 5.

      Both of Appellant’s claims challenge the sufficiency of the evidence

supporting the verdicts. Our standard of review is well-settled.


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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. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)

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

      The first claim challenges the evidence that Appellant possessed the

contraband discarded by the passenger; i.e., the heroin packets, the

marijuana, and associated paraphernalia. Appellant challenges the common

element of possession for all of those counts.            The Commonwealth could

satisfy   its   burden   through    evidence     that   Appellant   either   physically

possessed       the   items,   or   that   he    constructively     possessed   them.

Constructive possession has been described as

      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

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

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

omitted).

      We find that the totality of the circumstances suffices to establish

constructive possession beyond a reasonable doubt.       It is undisputed that

Officer Meals was not in a position to observe Appellant handle the items or

otherwise convey the items to his passenger, and that he saw only the

passenger actually possessing those items.          However, several other

circumstances establish    Appellant’s   power   and intent to    control   the

contraband. Significantly, Appellant made comments to Officer Meals on the

way to arraignment that he owned the drugs. Additionally, Appellant, as the

driver of the vehicle, did not stop when Officer Meals activated his lights and

sirens. Instead, he proceeded to drive across a bridge, at which time the

passenger attempted to jettison the contraband in an obvious attempt to

prevent its recovery.      That event, when combined with Appellant’s

statement, circumstantially establishes that Appellant directed the passenger

to discard the items at his behest.

      We acknowledge Appellant’s argument that these circumstances are

equally consistent with the notion that the passenger possessed the drugs

and sought to discard the evidence on her own initiative, without any

knowledge on his part of what she possessed.       In other words, Appellant

claims that the evidence establishes, at most, that he was merely present

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and had equal access to the contraband, which cannot establish constructive

possession.      See Commonwealth v. Davis, 480 A.2d 1035, 1045

(Pa.Super. 1984) (“[W]here more than one person has equal access to

where drugs are stored, presence alone in conjunction with such access will

not prove conscious dominion over the contraband.”) (emphasis omitted).

However, that argument requires this Court to remove Officer Meals’s

testimony regarding Appellant’s statements from the equation.             Indeed,

Appellant’s argument relies in large part on his own testimony offered at

trial, in which he explained that the passenger offered him marijuana in

exchange for a ride to work. Appellant further testified that he did not know

she also had heroin, and was therefore merely referring to the marijuana

when he told Officer Meals that the drugs were his.

      This argument ignores our standard of review and improperly views

the   evidence   in   the   light   most   favorable   to   Appellant,   not    the

Commonwealth. Officer Meals testified that Appellant referenced the heroin:

“He advised me that he had recently purchased the heroin, but when I

pressed him on where he purchased it, like an exact location, street or a

person’s name or nickname, then he said he was done talking.”                  N.T.,

9/29/16, at 28-29.      The fact-finder was free to reject or accept this

testimony, whereas we cannot.

      The evidence, viewed in the light most favorable to the Commonwealth

as verdict winner, therefore establishes that the drugs belonged to


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Appellant, establishing his intent and power to control. “[W]e have held that

circumstantial evidence is reviewed by the same standard as direct

evidence—that is, that a decision by the trial court will be affirmed ‘so long

as the combination of the evidence links the accused to the crime beyond a

reasonable doubt.’”       Commonwealth v. Johnson, 818 A.2d 514, 516

(Pa.Super. 2003) (citations omitted). Appellant’s admission, combined with

the observations made by Officer Meals of the contraband being discarded,

links him to those items beyond a reasonable doubt. Hence, this challenge

fails.

         Appellant’s second sufficiency claim fares no better, as it too

emphasizes a version of events considered in the light most favorable to

Appellant. The crime at issue is fleeing and eluding a police officer, which

states:

         (a) Offense defined.--Any driver of a motor vehicle who
         willfully fails or refuses to bring his vehicle to a stop, or who
         otherwise flees or attempts to elude a pursuing police officer,
         when given a visual and audible signal to bring the vehicle to a
         stop, commits an offense[.]

75 Pa.C.S. § 3733. Appellant claims that his failure to bring his vehicle to a

stop was not willful. In support thereof, he cites his own testimony that he

did not realize Officer Meals was signaling for him to pull over, as opposed to

other drivers on the road.         He also testified that his movement into

oncoming traffic was designed to create room for Officer Meals to pass his

vehicle.


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      Appellant’s assertion that he was weaving and continued driving after

hearing and seeing the lights and sirens in an effort “to make room for the

other vehicles and police officer to pass,” Appellant’s brief at 19, is rather

implausible; even accepting this version of events, his behavior is illogical.

Appellant’s attempt to “make room” prevented Officer Meals from getting

around Appellant.       Furthermore, that testimony fails to explain why

Appellant proceeded through three red lights, rather than pulling over and

letting Officer Meals pass as motorists are required to do. See 75 Pa.C.S. §

3325(a) (upon approach of emergency vehicle using lights and sirens, driver

shall yield and permit emergency vehicle to pass).

        More importantly, we are not permitted to view the evidence in the

light most favorable to Appellant, and we firmly disagree that his version of

events is “just as consistent as those of a bad driver trying to get through

rush hour traffic and move out of the police vehicle’s way.” Id. The fact-

finder was entitled to find that Appellant’s actions were intended to evade a

traffic stop, and the discarded narcotics constitute circumstantial evidence

that Appellant failed to stop for the express purpose of getting rid of the

evidence. “As intent is a subjective frame of mind, it is of necessity difficult

of direct proof.” Commonwealth v. Miller, 172 A.3d 632, 641 (Pa.Super.

2017) (citing Commonwealth v. Matthews, 870 A.2d 924 (Pa. 2005)).

The circumstantial evidence establishes a willful failure to stop. Therefore,

this challenge fails.

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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/2018




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