J-S34033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTHONY L. JETER                           :
                                               :
                       Appellant               :   No. 33 WDA 2019

       Appeal from the Judgment of Sentence Entered December 5, 2018
      In the Court of Common Pleas of Beaver County Criminal Division at
                        No(s): CP-04-CR-0000089-2018


BEFORE:      DUBOW, J., McLAUGHLIN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                                 FILED JULY 11, 2019

        Appellant, Anthony L. Jeter, appeals from the aggregate judgment of

sentence of eight to sixteen years of confinement with a concurrent six months

of probation, which was imposed after his jury trial conviction for possession

with intent to deliver a controlled substance by a person not registered

(“PWID”), use of or possession with intent to use drug paraphernalia, and

knowingly or intentionally possessing a controlled or counterfeit substance by

a person not registered.1 We affirm.

        Appellant resided in the basement of a home in Aliquippa, Beaver

County; although the owner of the house could enter the basement, he

described it as “strictly” Appellant’s “living area.” N.T., 10/31/2018, at 37,


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1   35 P.S. § 780-113(a)(30), (32), and (16), respectively.


*    Retired Senior Judge assigned to the Superior Court.
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39, 45-46 (homeowner’s testimony). While Appellant was not present and

with the consent of the homeowner, police searched the basement and

discovered 293.2 grams of cocaine,2 small glassine baggies, rubber gloves, a

measuring cup with cocaine residue inside, and a Pennsylvania temporary

identification card in Appellant’s name. Commonwealth Exhibits 3 (baggies),

9-10 (cocaine discovered in basement; measuring cup), 12 (card), 17

(stipulated lab report); N.T., 10/31/2018, at 39 (homeowner’s testimony), 52,

59-62, 71-72, 75 (arresting officer’s testimony). The arresting officer, who

had been involved in 100 to 200 narcotics investigations, later described the

amount discovered in the basement as “quite a bit of cocaine,” more than he

had seen at any one location, except in a handful of cases. N.T., 10/31/2018,

at 49, 76 (arresting officer’s testimony). When police arrested Appellant, they

found $379 in cash and 0.42 grams of cocaine on his person. Commonwealth

Exhibits 13-14 (cocaine discovered on Appellant’s person; cash); N.T.,

10/31/2018, at 66, 73 (arresting officer’s testimony).

        On October 31, 2018, a jury convicted Appellant of the aforementioned

charges. Sentencing was delayed pending a presentence investigation report.

On December 5, 2018, Appellant was sentenced, and, on December 28, 2018,

Appellant filed this timely direct appeal. 3

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2   The parties stipulated that the substance was cocaine and to the amount.
3 Appellant filed his statement of errors complained of on appeal on
January 24, 2019. The trial court entered its opinion on February 11, 2019.


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       Appellant presents the following issues for our review:

       I.    Whether the Commonwealth presented to prove sufficient
       evidence beyond a reasonable doubt that Appellant was in
       possession of the illegal substance cocaine. Specifically in regards
       to the cocaine and other items discovered in the basement of the
       residence [in] Aliquippa[,] Pennsylvania.

       II.   Whether the [trial] court erred in denying Appellant’s motion
       for summary judgement because the Commonwealth failed to
       present sufficient evidence to prove beyond a reasonable doubt
       that Appellant had the intent to distribute an illegal substance?

Appellant’s Brief at 6 (suggested answers and unnecessary capitalization

omitted). “This appeal addresses only the charge relating to [PWID c]ocaine

in violation of 35 P.S. § 780-113(a)(30).” Id. at 7.4

       “To sustain a conviction for [PWID], the Commonwealth must establish

the defendant knowingly or intentionally possessed a controlled substance

without being properly registered to do so, with the intent to manufacture,

distribute, or deliver it. See 35 P.S. § 780-113(a)(30); Commonwealth v.

Brown, 48 A.3d 426, 430 (Pa.Super. 2012).” Commonwealth v. Dix, 2019

PA Super 102, *11 (filed April 1, 2019), petition for allowance of appeal

docketed, No. 211 EAL 2019.




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4 Appellant thus is not challenging his convictions for use of or possession with
intent to use drug paraphernalia, 35 P.S. § 780-113(a)(32), or for knowingly
or intentionally possessing a controlled or counterfeit substance by a person
not registered, id. § 780-113(a)(16).


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      Appellant argues that the Commonwealth failed to present sufficient

evidence of two elements of PWID: (1) possession and (2) intent to deliver.

Appellant’s Brief at 9-16.

      This Court’s standard for reviewing sufficiency of the evidence
      claims is as follows:

         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)).

Commonwealth v. Izurieta, 171 A.3d 803, 806 (Pa. Super. 2017) (internal

brackets omitted).

                                 Possession

      There is no dispute that Appellant was not in actual possession of the

cocaine discovered in the basement.




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      Where a defendant is not in actual possession of the prohibited
      items, the Commonwealth must establish that the defendant had
      constructive possession to support the conviction. 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, meaning that the
      defendant has 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.

      It is well established that, as with any other element of a crime,
      constructive possession may be proven by circumstantial
      evidence. In other words, the Commonwealth must establish
      facts from which the trier of fact can reasonably infer that the
      defendant exercised dominion and control over the contraband at
      issue.

Commonwealth v. Parrish, 191 A.3d 31, 36–37 (Pa. Super. 2018) (internal

brackets, citations, and quotation marks omitted), appeal denied, 202 A.3d

42 (Pa. 2019); see also Dix, 2019 PA Super 102, *11 (“Because Dix was not

in physical possession of the narcotics, the Commonwealth was required to

establish Dix had constructive possession.          To establish constructive

possession of contraband, the Commonwealth must show that the defendant

has ‘conscious dominion’ over the contraband[.]” (citation omitted)).

      “Where contraband is found among the defendant’s personal effects, in

a place normally accessible only to the defendant, the fact finder may properly

infer that the defendant had both the power and intent to control the

contraband.”   Commonwealth v. Gray, 469 A.2d 169, 171 (Pa. Super.

1983).

      Viewing the evidence admitted at trial and all reasonable inference

drawn therefrom in a light most favorable to the Commonwealth as verdict


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winner, we conclude that the evidence was sufficient to support that Appellant

possessed the cocaine discovered in the basement. See Izurieta, 171 A.3d

at 806.

      Appellant’s constructive possession of the cocaine discovered in the

basement    was    established   through     uncontradicted   testimony    of   the

homeowner that Appellant resided in the basement, which the homeowner

described as “strictly” Appellant’s “living area.” N.T., 10/31/2018, at 37, 39,

46. Although the homeowner also testified that he could enter the basement,

he further testified that he consented to the search thereof, id. at 39, 45, and

the factfinder could reasonably deduce that the basement was normally

accessed only by Appellant and infer that the homeowner would not have

consented to the search had he been aware of the presence of cocaine. See

Izurieta, 171 A.3d at 806 (“all reasonable inferences”); Gray, 469 A.2d at

171 (where contraband is found “in a place normally accessible only to the

defendant, the fact finder may properly infer that the defendant had both the

power and intent to control the contraband”).

      Furthermore, the officer testified that he discovered Appellant’s state-

issued identification card in the basement, N.T., 10/31/2018, at 62, and the

card itself was shown to the jury as Commonwealth Exhibit 12. Viewed in the

light most favorable to the Commonwealth, see Izurieta, 171 A.3d at 806,

the presence of Appellant’s identification card – i.e., a personal effect -- in the

basement suggests that Appellant had control over the basement.                 See

Parrish, 191 A.3d at 36–37; Gray, 469 A.2d at 171.

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       Additionally, the cocaine found on Appellant’s person at the time of his

arrest was admitted into evidence, Commonwealth Exhibit 15, and the jury

could have reasonably inferred that Appellant’s actual possession of cocaine

was circumstantial evidence that the cocaine discovered in the basement

likewise belonged to him, giving him constructive possession thereof. See

Parrish, 191 A.3d at 36–37; Izurieta, 171 A.3d at 806 (“all reasonable

inferences”).

       For all these reasons, based on the totality of the circumstance, we hold

that the evidence was sufficient to establish that Appellant had conscious

dominion over the cocaine and, ergo, to prove the element of possession for

PWID. See Dix, 2019 PA Super 102, *11; Parrish, 191 A.3d at 36–37.

                                    Intent

       In addition, there was sufficient evidence to enable the trier of fact to

find, beyond a reasonable doubt, that Appellant had the requisite intent to

deliver the cocaine discovered in the basement. See Izurieta, 171 A.3d at

806.

       “In certain circumstances, the possession of large quantities of a

controlled substance may justifiably suggest an inference of an intent to

deliver.” Commonwealth v. Gill, 415 A.2d 2, 4 (Pa. 1980).

       [I]f the quantity of the controlled substance is not dispositive as
       to the intent, the court may look to other factors.

       Other factors to consider when determining whether a defendant
       intended to deliver a controlled substance include the manner in
       which the controlled substance was packaged, the behavior of the


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      defendant, the presence of drug paraphernalia, and large[] sums
      of cash found in possession of the defendant.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1237–38 (Pa. 2007) (citation

omitted) (some formatting). “An intent to deliver may also be inferred from

the totality of the circumstances.” Gray, 469 A.2d at 172.

      In the current action, an experienced narcotics officer testified that the

amount of cocaine discovered in the basement was a large quantity, N.T.,

10/31/2018, at 49, 52, 59-61, 72, 76, and the jury saw for itself the amount

of cocaine recovered.   Commonwealth Exhibit 9.       The jury could draw the

reasonable inference from this evidence that the cocaine seized from the

basement was not for personal use and was therefore intended for distribution

and delivery.   See Gill, 415 A.2d at 4; Izurieta, 171 A.3d at 806 (“all

reasonable inferences”).

      The officer additionally testified that rubber gloves, small baggies, and

a measuring cup with cocaine residue inside were uncovered in the basement,

N.T., 10/31/2018, at 52, 59-61, 72, and the baggies and the cup were

admitted into evidence as Commonwealth Exhibits 3 and 10, respectively. The

evidence of the baggies implies that Appellant was delivering the cocaine and

not keeping it for personal use; the presence of the cup with cocaine residue

inside suggests that it was being used to measure out cocaine, possibly to put

it into the baggies, which likewise indicates delivery and distribution of the

cocaine to third parties, not personal use. The rubber gloves could have been

used to handle the product during the measuring and packing for distribution.



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The existence of this packaging equipment and drug paraphernalia imply

intent to deliver. See Ratsamy, 934 A.3d at 1237.

       Moreover, the officer testified that Appellant had a large amount of cash

and a small amount of cocaine on his person when arrested, N.T., 10/31/2018,

at 66, 73, which the jury was shown as Commonwealth Exhibits 13 and 14,

respectively; the trier of fact could find a individual who had large sums of

cash and a little bit of a drug on his person had been dealing that drug. See

Ratsamy, 934 A.2d at 1238.5

       All of this evidence was thus sufficient to establish beyond a reasonable

doubt that Appellant had the intent to deliver the cocaine located in the

basement. See Ratsamy, 934 A.2d at 1237–38; Izurieta, 171 A.3d at 806;

Gray, 469 A.2d at 172.

                                       *       *   *

       Accordingly, viewing the evidence admitted at trial and all reasonable

inferences drawn therefrom in a light most favorable to the Commonwealth,

the evidence established that Appellant had constructive possession of the

cocaine from the basement and had the intent to deliver it, and Appellant’s

sufficiency of the evidence claims consequently must fail. See Izurieta, 171

A.3d at 806. Both of Appellant’s issues hence are meritless, and we affirm.

       Judgment of sentence affirmed.

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5 There was no evidence presented as to “the behavior of the defendant,” the
final remaining factor that may be considered according to Ratsamy, 934
A.2d at 1237.

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     Judge McLaughlin joins the Memorandum.

     Judge Dubow Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2019




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