J-S54013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                              IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                               Appellee

                          v.

DELORES ELLEN BRYANT

                               Appellant                         No. 592 MDA 2014


                Appeal from the Judgment of Sentence May 8, 2012
                 In the Court of Common Pleas of Lycoming County
                Criminal Division at No(s): CP-41-CR-0000300-2010


BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.                                FILED SEPTEMBER 26, 2014

          Delores Ellen Bryant appeals the judgment of sentence entered in the

Court of Common Pleas of Lycoming County following a nonjury trial, after

which Bryant was convicted of two counts of possession with intent to
                      1
                           possession      of   a   controlled   substance    cocaine,2

possession of a controlled substance                marijuana,3 and possession of drug

paraphernalia.4 Upon review, we affirm.

          The trial court summarized the facts of this matter as follows:

____________________________________________


1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(16).
3
    Id.
4
    35 P.S. § 780-113(a)(32).
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     On the afternoon of October 21, 2009, Tyson Havens,
     Pennsylvania State Trooper, observed a white Nissan Maxima in
     the area of the Penn Vale Housing Development in Williamsport,
     Lycoming County, Pennsylvania. Prior to October 21, 2009,
     Trooper Havens had spoken with Christy [Leinbach], manager of
     the Penn Vale Housing Development, regarding a suspicious
     white Nissan Maxima which she had observed frequenting the
     housing development. On the day in question, the driver of the
     Nissan parked and exited the vehicle.        Trooper Havens
     proceeded to drive past the driver and greet him.            A
     conversation ensued [during] which Trooper Havens became

     At that point, Trooper Havens initiated a traffic stop.        The
     individual identified himself as Izone Jackson and indicated that
     he was going to visit his girlfriend, Dolores Bryant, at her place
     of residence, 1814 Hazel Drive. Jackson further indicated that
     his girlfriend was not home and that he did not have a key to her
     residence, but a friend of his, Raymond Jones, was inside the
     residence. Trooper Havens gave Jackson a verbal warning and
     indicated that Jackson was free to leave.

     Jackson proceeded to walk away heading in the direction of
                             then veered south away from the


     was not going to 1814, [but] that he was going to pick up his
     son from daycare. Jackson then walked around the back of the
     building and out of sight.

     Trooper Havens proceeded to 1814 Hazel Drive and knocked on
     the door. The door was opened approximately six inches and
     then slammed closed.      Trooper Havens stayed at the door
     announcing himself and asking for someone to come outside or
     indicate that they were alright for approximately ten minutes.
     After his attempts proved unsuccessful, Trooper Havens
     contacted [Leinbach]. [Leinbach] arrived, and [. . .] requested
     Trooper Havens [enter] the residence due to the fact that she
     was concerned that someone inside was injured or that there
     was a burglary in progress.

     Trooper Havens [entered the residence with Leinbach]. [. . . ]
     After the downstairs portion of the residence was cleared, the
     officers proceeded upstairs. Trooper Havens entered the master
     bedroom and observed in plain view a pair of black Timberland
     boots. Inside one of the boots was a plastic bag. The bag

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     contained nineteen (19) smaller ziplock bags, which contained
     crack cocaine. A second bag, also in the boot, contained four
     smaller ziplock bags that contained crack cocaine.       By the
     window in the master bedroom, Trooper Havens observed a
     stack of approximately fifteen (15) shoe boxes. The top shoebox
     was open and contained money. It was later determined that it
     contained $130. The shoebox directly below the top shoebox
     had holes in the side of the box. Through the holes, a stack of
     money was evident. It was later determined that it was the sum
     of $700. The officers continued to clear the residence to make
     sure that there was no one else present. After the residence
     was secured, Trooper Havens left and proceeded to apply for a
     search warrant.

     After the search warrant was obtained, the following evidence
                                 residence:

       Kitchen

          In the kitchen drawer there was a plastic bag with
          marijuana dime bags and a grocery bag containing
          marijuana dime bags.
          In the kitchen cabinet there was a paper bag that
          contained a plastic bag containing marijuana and
          between 1,000-2,000 little plastic ziplock bags
          commonly used for distributing crack cocaine and
          marijuana.
          In the trash box there were four clear yellow bags
          containing crack cocaine.

       Living Room

          One hundred and thirty-one dollars ($131) in a pair of
          white Adidas sneakers.
          A silver Page Plus cell phone.
          A blue Virgin Mobile cell phone.

       Dining Room

          On the dining room table was a wallet that contained
          identification for Izone Jackson.

       Master Bedroom


          Astra A-100 9mm handgun.


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J-S54013-14


             Black wallet containing two forms of identification for
             Delores Bryant.

      Additionally, the master bedroom showed signs of use.        It
      contained a dresser; ironing board; and a photo of Bryant and
      Jackson. Bryant and her minor child, who was approximately
      five or six years of age at the time, were the only individuals
      listed on the lease. During an interview with Trooper Havens,
      Bryant stated that the items found in the residence belonged to
      her boyfriend, Earnest Jackson.

Trial Court Opinion, 5/28/14, at 1-5.

      On May 8, 2012, the trial court sentenced Bryant to an aggregate term

                                                           -sentence motion on

May 25, 2012, which the court denied on August 2, 2012. Bryant filed the

instant appeal on April 3, 2014, following reinstatement of her appellate

rights nunc pro tunc.

      On appeal, Bryant presents the following issues for review:

      1.
           when the police entered her residence allegedly with the
           permission of the housing authority manager and then

           under the guise of a protective sweep.

      2. The evidence presented at trial was insufficient to prove
         Bryant constructively possessed the controlled substance
         found in her residence when she was not present at the time
         police entered and searched.

Brief of Appellant, at 5.

      Bryant first argues that the trial court erred when it denied her motion

to suppress because the Lycoming Housing Authority manager, Leinbach,

lacked the proper legal authority to consent to the police entering her

apartment. At the outset, we observe:


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      determining whether the factual findings are supported by the
      record and whether the legal conclusions drawn from those facts
      are 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.

      The suppression court has sole authority to assess the credibility
      of the witnesses and is entitled to believe all, part or none of the
      evidence presented. Warrantless searches and seizures are
      considered to be unreasonable and therefore, prohibited, except
      for a few established exceptions pursuant to both the Fourth
      Amendment to the United States Constitution and Article I,
      Section 8 of the Pennsylvania Constitution. Both the federal and
      Pennsylvania constitutions permit third party consent to a
      search. When police officers obtain the voluntary consent of a
      third party who has the authority to give consent, they are not
      required to obtain a search warrant based upon probable cause.
      The third-party consent to search is an exception to the
      exclusionary rule.

Commonwealth v. Reese, 31 A.3s 708, 721-22 (Pa. Super. 2010)

(citations omitted).

      Here, Leinbach had the legal authority to give consent. When Bryant

signed the lease for her apartment, she was also required to sign a written

Authorization Disclosure as part of her lease obligation with Penn Vale

Housing Development.     This document, also signed by a representative of

the Lycoming County Housing Authority, granted the Authority permission to



believe an emergency exists or at the request of law enforcement officials.

N.T. Pretrial Motion Hearing, 6/2/10, at 6-9.


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       At trial, Leinbach, Trooper Havens, and Corporal Mike Simpler 5 all

testified that, given the circumstances, there was reasonable cause to

believe an emergency existed.           Trooper Havens also noted that Leinbach

gave specific consent to enter the residence and that he opened the door



exception to the warrant requirement existed is supported by the record, we

conclude that the trial court properly denied

       In her second issue, Bryant argues that the evidence presented by the

Commonwealth was insufficient to prove, beyond a reasonable doubt, that

Bryant was guilty of constructively possessing the controlled substances

found in her apartment.

       When reviewing challenges to the sufficiency of the evidence, we

evaluate the record in the light most favorable to the Commonwealth as the

verdict winner, giving the prosecution the benefit of all reasonable inferences

to be drawn from the evidence.            Commonwealth v. Duncan, 932 A.2d



sufficient to support the verdict when it establishes each material element of

the crime charged and the commission thereof by the accused, beyond a

                         Id.    (quoting Commonwealth v. Brewer, 876 A.2d

1029, 1032 (Pa. Super. 2005).             However, the Commonwealth need not

____________________________________________


5

the date in question as back up.



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J-S54013-14



establish guilt to a mathematical certainty, and it may sustain its burden by

means of wholly circumstantial evidence. Id. Moreover, this Court may not

substitute its judgment for that of the factfinder, and where the record

contains support for the convictions, they may not be disturbed. Id. Lastly,

we note that the finder of fact is free to believe some, all, or none of the

evidence presented.    Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa.

Super. 2006).

       Possession of a controlled substance is defined as follows:

       Knowingly or intentionally possessing a controlled or counterfeit
       substance by a person not registered under this act, or a
       practitioner not registered or licensed by the appropriate State
       board, unless the substance was obtained directly from, or
       pursuant to, a valid prescription order or order of a practitioner,
       or except as otherwise authorized by this act.

35 P.S. § 780-113(a)(16).

       Where the contraband a person is charged with possessing is not

found on the person of the defendant, the Commonwealth is required to

prove constructive possession.      Commonwealth v. Kirkland, 831 A.2d

607, 611 (Pa. Super. 2003). Constructive possession is an inference arising

from a set of facts that possession of the contraband was more likely than

not.   Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004).

Our courts have held that constructive possession requires proof of the

ability to exercise conscious dominion over the substance, the power to

control   the   contraband   and    the   intent   to   exercise   such   control.




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J-S54013-14



Commonwealth v. Johnson, 920 A.2d 873, 882 (Pa. Super. 2007) (citing

Commonwealth v. Valette, 613 A.2d 548, 550 (Pa. 1992)).

      We are mindful that constructive possession can be proven by




Commonwealth v. Clark, 746 A.2d 1128, 1136 (Pa. Super. 2000) (quoting

Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996)).

Moreover, we have held that circumstantial evidence is reviewed by the

same standard as direct evidence--that is, a decision by the trial court will

                                           the evidence links the accused to

                                          Commonwealth v. Johnson, 818

A.2d 514, 516 (Pa. Super. 2003) (citations omitted).



follows:

      When analyzing the evidence and the totality of the
      circumstances it is evident that the Commonwealth met its
      burden beyond a reasonable doubt that [Bryant] constructively
      possessed the drugs and drug paraphernalia. All of the evidence
      retrieved was from common areas in the home and the master

      cocaine and shoeboxes containing money. Inside the kitchen
      drawer, right on top was a plastic bag containing marijuana dime
      bags and a grocery bag containing marijuana dime bags. In the
      kitchen cabinet there was a paper bag containing marijuana and
      little drug packaging bags. These are all areas that as the lease
      holder, [Bryant] would have access to and would be under her
      control. These items were not hidden, the contraband in the
      kitchen drawer [was] on top mixed in with the other items; the
      contraband in the kitchen cabinet was in the top left of the
      cabinet; and the contraband in the bedroom was in plain view.


                                    -8-
J-S54013-14



Trial Court Opinion, 5/28/14, at 9-10 (citations omitted).

      Our review of the record leads us to agree with the conclusion reached

by the trial court. Under the totality of the circumstances, the circumstantial

evidence presented by the Commonwealth was sufficient to establish,

beyond a reasonable doubt, that Bryant had the ability to exercise conscious

dominion over the illegal substances found in her apartment. See Johnson,

920 A.2d at 882. Accordingly, Bryant is not entitled to relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




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