J-S24032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ERION BESHIRI,                           :
                                          :
                    Appellant             :       No. 1068 MDA 2017

            Appeal from the Judgment of Sentence June 7, 2017
              in the Court of Common Pleas of Lebanon County
            Criminal Division at No(s): CP-38-CR-0001324-2015

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED JULY 19, 2018

      Erion Beshiri (“Beshiri”) appeals from the judgment of sentence imposed

following his convictions of possession of a controlled substance (heroin) and

possession of drug paraphernalia. See 35 P.S. § 780-113(a)(16), (32). We

affirm.

      On June 18, 2015, the manager of the Holiday Inn Express in Lebanon,

Pennsylvania, Joanna Vazquez (“Vazquez”), called 911 to report a male who

appeared to be stumbling and falling asleep in the hotel lobby.       Vazquez

identified the male as Beshiri. Before emergency services arrived at the hotel,

Beshiri left the lobby and went to his hotel room. When paramedics and police

officers (“Responders”) arrived, they went to Beshiri’s hotel room to perform

a wellness check. Beshiri was sharing the room with his girlfriend, Lauryn

Nanni (“Nanni”), who was present at the time. When Responders knocked on
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the hotel room door, Nanni told them to wait, before she opened the door

minutes later.

       Responders discovered Beshiri in the bathroom preparing to take a bath.

According to the Responders, Beshiri appeared to be under the influence of

drugs.     While paramedics responded to Beshiri, officers observed drug

paraphernalia throughout the room.             A search of the room resulted in the

discovery of glassine bags of heroin, syringes, bottle caps, and methadone

and Xanax pills. In the bathroom, officers found an orange hypodermic needle

cap, a white glassine baggy, and a bottle cap to a water bottle, but no

measurable amount of drugs. Beshiri admitted to using drugs in the hotel

room at 7:00 a.m. that day, but he denied knowing about the presence of

drugs in the room at the time Responders entered, which was around 9:30

a.m.

       In February 2017, a jury found Beshiri guilty of the above-mentioned

crimes.1 The trial court sentenced Beshiri to serve concurrent probation terms

of one (1) year less one (1) day for the convictions. Beshiri filed a timely

Notice of Appeal and court-ordered Concise Statement of matters complained

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

       On appeal, Beshiri raises the following question for our review:


____________________________________________


1 Beshiri initially pled guilty. At the time of the guilty plea, Beshiri was an
immigrant from Albania and, accordingly, was subject to deportation.
Because Beshiri was unaware of the immigration consequences of the guilty
plea, he was allowed to withdraw the plea.

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       Whether the evidence presented was sufficient as a matter of law
       to support [Beshiri’s] conviction at Count 1: Possession of a
       Controlled Substance – Heroin, where it was not established that
       [Beshiri] possessed or constructively possessed the controlled
       substances hidden in the hotel room[,] as [Beshiri] had neither
       the intent nor the power to control the controlled substances and,
       further, that another individual had access to and control over the
       hotel room and the controlled substances?

Brief for Appellant at 4 (internal citation omitted).

       Beshiri argues that the evidence presented at trial was insufficient to

support his possession of a controlled substance conviction. Id. at 10-17.

Beshiri asserts that his mere presence in the hotel room where drugs were

recovered is not sufficient to establish constructive possession when more

than one person had equal access to the drugs. Id. at 13, 16. He argues that

because the drugs were hidden from him, and because he was unaware of

their presence in the hotel room, he could not have intended to exercise

dominion and control over the drugs. Id. at 10, 12-13, 15-16. Beshiri claims

that he did not have any drugs on his person, but Nanni had contraband in

her wallet and was nervous when the Responders were in the room. Id. at

12-13. Beshiri avers that the Commonwealth failed to establish evidence of

his participation in the drug-related activity and, as such, his conviction and

sentence for possession of a controlled substance should be reversed. Id. at

17.2


____________________________________________


2 On appeal, Beshiri only challenges the sufficiency of evidence for the
possession of a controlled substance conviction, and raises no claim regarding
the possession of drug paraphernalia.

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      We apply the following standard of review when considering a challenge

to the sufficiency of the evidence:

      The standard we apply in reviewing the sufficiency of the evidence
      is whether[,] viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying the above test, we may not weigh
      the evidence and substitute our judgment for the fact-finder. In
      addition, we note that the facts and circumstances established by
      the Commonwealth need not preclude every possibility of
      innocence. Any doubts regarding a defendant's guilt may be
      resolved by the fact-finder 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. The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the finder of fact[,] while passing upon the
      credibility of witnesses and the weight of the evidence produced,
      is free to believe all, part or none of the evidence.

Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

      The Controlled Substance, Drug, Device and Cosmetic Act provides as

follows, in relevant part:

      (a)   The following acts and the causing thereof within the
            Commonwealth are hereby prohibited:

                                         ***

      (16) 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.

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35 P.S. § 780-113(a)(16).

      “[I]n narcotics possession cases, the Commonwealth may meet its

burden by showing actual, constructive, or joint constructive possession of the

contraband.” Commonwealth v. Roberts, 133 A.3d 759, 767 (Pa. Super.

2016) (citation omitted).     “We have defined constructive possession as

conscious dominion. … [C]onscious dominion [is] the power to control the

contraband and the intent to exercise that control.” Id. at 768 (citation and

quotation marks omitted). “[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.”        Commonwealth v.

Ocasio, 619 A.2d 352, 354 (Pa. Super. 1993) (citation and emphasis

omitted).   In such cases, “the Commonwealth must introduce evidence

demonstrating either the [defendant’s] participation in the drug related

activity or evidence connecting [the defendant] to the specific room or areas

where the drugs were kept.”       Id. at 354-55.    “An intent to maintain a

conscious dominion may be inferred from the totality of the circumstances,

and circumstantial evidence may be used to establish a defendant’s

possession of drugs or contraband.” Commonwealth v. Harvard, 64 A.3d

690, 699 (Pa. Super. 2013) (citation omitted).

      At trial, the hotel manager, Vazquez, testified that on the morning of

June 18, 2015, she was working the front desk of the Holiday Inn Express in

Lebanon, Pennsylvania.      N.T., 2/16/17, at 10.   Vazquez stated that she

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witnessed Beshiri falling asleep at breakfast. Id. Vazquez further testified

that Beshiri’s head “kept going down and his eyes kept closing” and that she

called 911 because she was afraid “that [Beshiri] would pass out [and] fall.”

Id. at 10-11.

      A responding paramedic, Jodi Etter (“Etter”), testified that syringes were

openly visible in Beshiri’s hotel room. Id. at 17. Etter testified that the room

appeared to be consistent with what she had seen on other drug overdose

calls. Id. A responding police officer, Nelson Sweigart (“Sweigart”), observed

drugs and drug paraphernalia in the hotel room.       Id. at 22-23.   Sweigart

testified that Beshiri admitted to spending $1,000 on drugs the night of June

17, 2015. Id. at 24-25. Sweigart also testified that Beshiri was “very slow in

his movements” and was “nodding off.” Id. at 26. Another responding police

officer, Randall Morgan, Jr. (“Morgan”), testified that three glassine baggies

containing heroin were found in the hotel room. Id. at 33. Morgan stated

that he observed paraphernalia consistent with heroin use throughout the

room. Id. at 31-32. Morgan also noted that Beshiri’s actions were indicative

of someone under the influence of heroin. Id. at 38.

      Beshiri testified that he gave Nanni $200 and that Nanni bought drugs

on June 17, 2015. Id. at 53-54. He further testified that he used heroin in

the hotel room both on the night of June 17, 2015, and at 7:00 a.m. on June

18, 2015. Id. at 52-54. Beshiri stated that his drug of choice was heroin and

that he could not have used any more drugs on June 18, 2015, in fear of an


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overdose. Id. at 64-65, 70, 71. Beshiri maintained that he was unaware of

the presence of any drugs in the hotel room. Id. at 56, 71.

      Viewing the totality of the evidence in a light most favorable to the

Commonwealth, Beshiri constructively possessed the heroin that was found in

the hotel room. See Commonwealth v. Carroll, 507 A.2d 819, 821 (Pa.

1986)   (holding   that   defendant    constructively   possessed    a   controlled

substance where officers found drugs and paraphernalia hidden throughout

husband and wife’s shared motel room). While Beshiri testified that he was

unaware of any drugs in the room, the jury was free to reject this testimony.

See Commonwealth v. Cruz, 919 A.2d 279, 281-82 (Pa. Super. 2007)

(stating that “[t]he finder of fact is the exclusive judge of the weight of the

evidence[,] as the fact finder is free to believe all, part, or none of the evidence

presented and determines the credibility of the witnesses.”) (citations

omitted). Thus, the evidence was sufficient to convict Beshiri of possession

of a controlled substance.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 07/19/2018

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