J-S65004-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DONTE FISHER

                            Appellant                  No. 1494 EDA 2013


           Appeal from the Judgment of Sentence December 20, 2012
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011493-2011


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                         FILED DECEMBER 17, 2014

        Appellant, Donte Fisher, appeals from the judgment of sentence

entered on December 20, 2012, in the Court of Common Pleas of

Philadelphia County. We affirm.

        After a waiver trial, the trial court convicted Fisher of possession with

intent to deliver (cocaine) and possession of drug paraphernalia. The issue

in this case is simply whether Fisher possessed the cocaine and the drug

paraphernalia. He did. The facts are as follows.

        Detectives with the Fugitive Task Force were in a neighborhood looking

for a man (not Fisher) with an outstanding warrant.          They observed the

man, the man saw the detectives, and fled. The detectives gave chase and
____________________________________________



    Retired Senior Judge assigned to the Superior Court.
J-S65004-14


the man ran into a home. The detectives entered the home and one of them

immediately went upstairs until he reached the third floor. On that floor was

a “small bedroom” where a man, later identified as Fisher, was exiting the

room, but he had not yet crossed through the bedroom’s doorway.                   N.T.,

Trial, 10/26/12, at 22.1 The detective told Fisher to go downstairs while he

searched for the fugitive.        Apart from the detective, Fisher was the only

other person on that floor. (There were four other people in the property at

the time of the search.) Inside the room were a bed and a nightstand. The

nightstand “rested against the bed….”             Id., at 24.   There was a ceramic

plate on top of the bed.        On top of the plate were cocaine, several small

Ziploc baggies containing cocaine, other “new and unused packaging,” and a

razor blade.     Id., at 22.      On the nightstand were a Pennsylvania state

identification card and an ATM card. Both belonged to Fisher.

       Fisher   maintains     that   the       Commonwealth     presented   insufficient

evidence to sustain his convictions as it failed to prove that he possessed the
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1
  The trial transcript is not in the certified record. Fisher requested a copy of
the transcript in the trial court. For whatever reason, the trial court did not
forward the transcript along with the certified record.           A copy of the
transcript is in Fisher’s reproduced record and the Commonwealth has not
objected to that copy. In the interest of judicial economy, we have not
requested the trial court to locate and forward the official transcript, see
Commmonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc),
but have elected to use the one provided in the reproduced record. Accord
Commonwealth v. Walls, 926 A.2d 957, 959 n.1 (Pa. 2007) (relying on
pre-sentence investigation report that appeared only in reproduced record
where neither party challenged the validity of the report).




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cocaine and drug paraphernalia.2               As the detectives did not recover the

cocaine and drug paraphernalia from Fisher’s person, the Commonwealth

must establish constructive possession.

       “Constructive possession is a legal fiction, which is invoked when

actual possession at the time of arrest cannot be shown, but there is a

strong inference of possession from the facts surrounding the case.”

Commonwealth v. Battle, 883 A.2d 641, 644 (Pa. Super. 2005) (citation

omitted).      Constructive       possession      has   been   defined   as    “conscious

dominion,” which has subsequently been defined as “the power to control

the contraband and the intent to exercise that control.” Commonwealth v.

Walker,     874    A.2d    667,    678   (Pa.     Super.   2005)   (citation    omitted).

“[C]onstructive possession may be established by the totality of the

circumstances.” Id. (citation omitted).

       Fisher argues that the Commonwealth cannot establish constructive

possession as there were other people in the home, that there is a question

if he really was even in the room as “he was already at the door when the

officers saw him,” that anyone could have placed his identification card and

ATM card in that room, and “there was no evidence presented as to exactly

where in the room the paraphernalia was even found.” Appellant’s Brief at

12-13. These assertions either strain credulity or conflict with the record.
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2
  For our standard of review, see Commonwealth v. Harden, ___ A.3d
___, ___, 2014 WL 5421012, *3 (Pa. Super., filed October 27, 2014).



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      It is true that there were other people in the residence, but Fisher was

the only person on that floor. The detective testified that when he first saw

Fisher, Fisher “was in the doorway of the bedroom but still more into the

bedroom than in the hallway so he didn’t cross the threshold of the

doorjamb.” N.T., Trial, 10/26/12, at 21. Fisher was alone in that room—

with the cocaine and the paraphernalia, the ceramic plate, razor blade, and

Ziploc baggies.   His identification card and ATM card were found in very

close proximity to the cocaine and drug paraphernalia. An examination of

the circumstances leads us to conclude that Fisher had the power to control

the contraband and the intent to exercise that control. One would have to

suspend reason and common sense to find otherwise.

      As the Commonwealth established that Fisher constructively possessed

the cocaine and drug paraphernalia, the evidence is sufficient to sustain the

convictions.

      Judgment of sentence affirmed.

      Judge Olson concurs in the result.

      Judge Platt concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/17/2014


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