J-S58020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CLIFFORD J. PARKER, JR.                    :
                                               :
                       Appellant               :   No. 361 WDA 2018

             Appeal from the Judgment of Sentence June 21, 2017
      In the Court of Common Pleas of Beaver County Criminal Division at
                        No(s): CP-04-CR-0002231-2016


BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                          FILED SEPTEMBER 24, 2018

        Clifford J. Parker, Jr. (Appellant) appeals from the judgment of sentence

imposed after the trial court convicted him of one count of receiving stolen

property, two counts of illegally possessing a firearm, and three counts of

possessing a controlled substance with the intent to deliver.1 We affirm.

        A two-day bench trial commenced on May 17, 2017. The trial court

entered its six guilty verdicts on May 18, 2017. The trial court detailed the

facts presented at trial as follows:

              Richard Woznicki, a Narcotics Investigating Agent for the
        Pennsylvania Office of Attorney General Bureau of Narcotics and
        Drug Control, was working on July 7, 2016 in his capacity as a
        Narcotics Agent and was executing and conducting a search
        warrant. N.T., 5/17/17, at 14-17. Agent Woznicki testified that
        he was searching an apartment for illegal narcotics based on a
        continuing investigation into [Appellant], Clifford Parker. Id. at
        17-18. In this instance, the apartment being searched was within
____________________________________________


1   18 Pa.C.S.A. §§ 3925(a), 6105(a)(1), and 35 P.S. § 780-113(a)(30).
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     an apartment complex and the agent was part of the entry team
     who witnessed the knocking and announcing which took place
     before entry. Id. at 20-21. After the entry team knocked and
     announced its presence, the task force officers used a key,
     previously obtained, to gain entry into the residence. Id. at 21.
     After entering the residence, the officers verbally announced that
     they were police and the occupants were ordered to get down on
     the ground; Agent Woznicki encountered [Appellant] and another
     female. Id. at 22. In the apartment there is a kitchen area, a
     living room area, two bedrooms and a bathroom. Id. at 23.
     Specifically, when Agent Woznicki made entry into the apartment,
     he observed [Appellant] coming from a bedroom area through the
     hallway which was in front of the officers; [Appellant] was “coming
     from the area of the back bedroom, then he was turning going
     back towards that area.” Id. at 23-25. Once [Appellant] and the
     female were secured, they were moved to the living room area
     and the officers proceeded to search the apartment. Id. at 26.
     Following a search of the apartment which included the kitchen
     area, the bedrooms, the bathroom and the living room area, Agent
     Woznicki found several items of significance in one of the
     bedrooms. Id. at 26-27. Specifically, the agent discovered
     narcotics consisting of heroin, powder and crack cocaine, ecstasy
     pills, two firearms, a digital scale, drug paraphernalia, some U.S.
     currency, firearm ammunition, grinders and food processors. Id.
     at 27-28.

             In the bedroom containing the contraband, Agent Woznicki
     also found male clothing and within a dresser against one of the
     bedroom walls, the agent found a knotted plastic bag with
     suspected cocaine, a box of “baggies”, a dish with straws on it, a
     gallon size bag, and a loaded .380 handgun. Id. at 29-31. The
     agent attributed the baggies to the repackaging of the narcotics
     for resale and the large bent straws for either personal use or
     filling baggies with narcotics. Id. at 31-32. Agent Woznicki also
     discovered black and gold rubber bands which, in his experience,
     are used for heroin packaging to bundle glassine packets of
     heroin. Id. at 32-33. Also on the dresser in the bedroom were
     three prescription bottles with [Appellant’s] name on them. Id. at
     33-34. The agent located four bottles of melatonin vitamins which
     are typically used as a sleep aid but, according to Agent Woznicki,
     can be used as a cutting agent for narcotics. Id. at 34.

          Amongst other items located in the bedroom, Agent
     Woznicki located a Pennsylvania driver’s license with the name

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     “Clifford J. Parker, Jr.” next to a digital scale which was also
     recovered; the address on the driver’s license was 107 Orchard
     Street, Aliquippa, Pennsylvania 15001. Id. at 38. Com. Exhibit
     12. The license had been issued on September 17, 2015 which
     was a little less than a year prior to the date of the search. Id. at
     38-39. The agent further seized a loaded .380 semi-automatic
     handgun which was loaded at the time of discovery with an extra
     round in the chamber and was found with a concealed holster. Id.
     at 40. This handgun was a Bersa Thunder .380 semiautomatic
     silver and black pistol, serial number A17393. Id. at 102-103.
     The officers ran the serial number through the NCIC database and
     they discovered the firearm was reported stolen in Findlay
     Township. Id. at 103.

            Within the bedroom area and on top of the dresser, Agent
     Woznicki located a set of numerous keys including a key for a
     vehicle that [Appellant] was utilizing and which the agent
     described as a black Mitsubishi Lancer. Id. at 42-43. This motor
     vehicle was parked in the lot of the apartment building and it was
     searched after [Appellant] gave the officers written consent to do
     so. Id. at 44. Agent Woznicki also found a dictionary which had
     a concealed compartment and where the agent found the bulk of
     all of the drugs; this dictionary was located in the bedroom area
     of the apartment and the same bedroom that the agent had
     observed [Appellant] heading toward at the time he entered the
     residence. Id. at 44-45.

            The dictionary was sitting on top of a cardboard box that
     contained male clothing. Id. Agent Woznicki also seized boxes
     containing unused glassine packets, a grinder or food processor
     which had white powder on it and U.S. currency in the amount of
     approximately $800. Id. at 46-48. The agent further found a
     separate handgun holster, three mason jars with quantities of
     suspected marijuana, another grinding tool and a box of
     Winchester handgun ammunition; the ammunition was consistent
     with what was contained in the handgun seized. Id. at 48-49.
     Also within the closet of the same bedroom, Agent Woznicki
     located an SKS Yugo assault rifle with a fixed bayonet, however
     the rifle was not loaded and there was no magazine belonging to
     the rifle. Id. at 49-50.

           Several items seized were submitted to the Greensburg
     State Police Crime Lab and the subsequent report[FN]2 indicated
     that the substances were identified as methamphetamine, heroin,

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     cocaine, and carisoprodol. Id. at 56-59. Agent Woznicki and
     Agent Wagaman tested the .380 semiautomatic handgun at the
     range for functionality[FN]3 with rounds provided by law
     enforcement. Id. at 67-69. Agent Woznicki and Agent Wagaman
     also test fired the rifle with the fixed bayonet by manually loading
     each round into the chamber because it lacked a magazine;
     however, the rifle fired the rounds without issue. Id. 70-72.

                The parties stipulated to the admissibility of the
           [FN] 2

           report and the conclusions reached therein including
           the weights and the types of substances.          N.T.,
           5/17/17, at 56-57.

           [FN] 3The parties stipulated to the functionality of the
           firearm as well as the fact that Agent Woznicki
           witnessed the functionality test. N.T., 5/17/17, at 67-
           68.

            During the search, [Appellant] was read his Miranda rights
     and signed an Office of Attorney General Miranda Rights Form on
     July 7, 2016 at 911 Second Street, Apartment 12, in Baden. Id.
     at 73-75. After signing this form, [Appellant] made statements to
     Task Force Officer James Mann at which time he stated “[t]hat the
     drugs [in the bedroom] weren’t his. He was holding them for his
     brother.” Id. at 75-76. At the time of trial, Agent Woznicki
     identified [Appellant], Clifford Parker, as the individual who was
     present during the course of his execution of the search warrant.
     Id. at 73-74. During trial, the Commonwealth introduced a
     stipulation regarding [Appellant’s] prior record with respect to a
     drug conviction, and further, [Appellant] stipulated that he is a
     person not to possess a firearm under the law as a result of his
     conviction. Id. at 76-77. Testimony on cross-examination at trial
     provided that the agent did not make any investigation as to who
     paid the bills or the rent to the leased premises but Agent Woznicki
     did state that the premises was not leased to [Appellant]. Id. at
     86.

           Michelle Nelson is a resident of Findlay Township and a gun
     owner. Id. at 123. Approximately a year prior to trial, Ms. Nelson
     had a .380 Bersa Thunder firearm stolen from her home and she
     reported the incident to the Findlay Township police. Id. Ms.
     Nelson stated that she had purchased the firearm from Ace
     Sporting Goods and it was a “nickel plated black rip automatic with
     a seven[] shot clip.” Id. at 124. At the time of trial, Ms. Nelson

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      viewed the firearm which was seized by police at the time of the
      search warrant and identified it as the .380 Bersa Thunder which
      was stolen from her residence. Id. at 125. Ms. Nelson was not
      familiar with [Appellant] and had not given anyone permission to
      remove the firearm from her residence. Id. at 125-126.

             At trial [Appellant] testified on his own behalf. [Appellant]
      testified that he had been to the apartment in Baden on
      approximately three or four occasions and has seen anywhere
      from five to ten people at that residence. N.T., 5/18/17, at 5.
      [Appellant] stated that he arrived at the residence on the date the
      search warrant was executed between 11:30 PM and midnight and
      was driving Danita Hutchin’s ([Appellant’s] girlfriend’s) car. Id. at
      5-6, 14. According to [Appellant], his car was at the scene
      because Ms. Hutchins was using it. Id. [Appellant] was at the
      residence to engage in sexual encounters and take drugs and he
      testified that there were approximately six people at the party that
      night. Id. at 6. The owner of the residence goes by the name
      "Bria" and according to [Appellant], she hosts parties
      approximately twice a week. Id. When the search warrant was
      being executed, [Appellant] was in the hallway coming out of the
      first bedroom. Id.

            According to [Appellant], the reason why he tried to turn
      and enter a back bedroom, as Agent Woznicki had testified, was
      because he heard the door open and thought people were still in
      the apartment so “[he] was trying to tell everyone to get up, the
      police are []here.” Id. After looking into the bedroom and not
      seeing anyone in the room, [Appellant] testified that he laid down
      on the ground. Id. at 8. [Appellant] testified that he lives at 107
      Orchard Street, Aliquippa and this occasion was the first time he
      had stayed overnight at the Baden apartment. Id. at 8. According
      to [Appellant], the medications seized by police with his name on
      the label belong to him because he has high blood pressure and
      must take the medications twice per day. Id. at 8-9. [Appellant]
      further provided that he carries those medications with him at all
      times, and he also carries his wallet and car keys at all times. Id.
      at 9.

Trial Court Opinion, 5/4/18, at 2-7.

      On June 21, 2017, the trial court sentenced Appellant to an aggregate

5 to 10 years of incarceration. Appellant did not file a timely appeal. However,


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he filed a timely petition for post-conviction relief and the trial court reinstated

his direct appeal rights nunc pro tunc.       Thereafter, Appellant and the trial

court complied with Pennsylvania Rule of Appellate Procedure 1925.

      On appeal, Appellant assails the sufficiency of the evidence, stating:
      The underlying convictions at each of the 6 counts were not
      supported by sufficient evidence, where the Commonwealth failed
      to establish constructive possession as an initial matter at each
      count, where [Appellant] was merely a guest at the apartment
      and the Commonwealth failed to establish he had dominion and
      control over anything found in a back bedroom, including the
      stolen gun, any other weapons, or the drugs located in that room.

Appellant’s Brief at 6.

      Appellant argues that the evidence was insufficient to support his

convictions because the Commonwealth “did not offer evidence of indicia that

would establish [Appellant] permanently lived at the apartment, nor did they

know who rented the apartment. They did know, however, that [Appellant]

was not the tenant.” Id. Appellant states that he was in the “wrong place at

the wrong time,” and his “mere presence” cannot “establish constructive

possession of the contraband.” Id.

      Conversely, the Commonwealth argues that “evidence seized from the

bedroom [of the apartment], including [Appellant’s] wallet, identification, and

multiple prescription pill bottles, suggested [Appellant] was a resident of the

apartment, and this was his sole bedroom.” Commonwealth Brief at 11. The

Commonwealth emphasizes that “all guns, drugs, packaging material,

paraphernalia, and [Appellant’s] personal belongings were found within the

same bedroom. All of the clothing in the bedroom . . . was male clothing [and


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Appellant] admitted to possessing all of the illegal items, including guns and

controlled substances, when he stated to agents that he was holding the items

for his brother.”         Id. at 11-12.      Upon review, we agree with the

Commonwealth.        Our determination is informed by our standard of review

when examining sufficiency claims:

           As a general matter, our standard of review of sufficiency
        claims requires that we evaluate the record in the light most
        favorable to the verdict winner giving the prosecution the benefit
        of all reasonable inferences to be drawn from the evidence.
        Evidence will be deemed sufficient to support the verdict when it
        establishes each material element of the crime charged and the
        commission thereof by the accused, beyond a reasonable doubt.
        Nevertheless, the Commonwealth need not establish guilt to a
        mathematical certainty. 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.

            The Commonwealth may sustain its burden by means of wholly
        circumstantial evidence. Accordingly, [t]he fact that the evidence
        establishing a defendant’s participation in a crime is circumstantial
        does not preclude a conviction where the evidence coupled with
        the reasonable inferences drawn therefrom overcomes the
        presumption of innocence. Significantly, we may not substitute
        our judgment for that of the fact finder; thus, so long as the
        evidence adduced, accepted in the light most favorable to the
        Commonwealth, demonstrates the respective elements of a
        defendant’s crimes beyond a reasonable doubt, the appellant’s
        convictions will be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(internal quotations and citations omitted).

        The trier of fact – in this case the trial judge – is free to believe, all,

part,    or   none   of   the   evidence    presented   when   making    credibility

determinations. Commonwealth v. Beasley, 138 A.3d 39, 45 (Pa. Super.

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2016). In deciding a sufficiency of the evidence claim, this Court may not

reweigh the evidence or substitute our judgment for that of the fact-finder.

Commonwealth v. Williams, 153 A.3d 372, 375 (Pa. Super. 2016).

      Instantly, we are not persuaded by Appellant’s sufficiency argument in

which he generally asserts – without reference to or discussion of the three

statutes under which he was convicted – that the evidence was insufficient to

demonstrate his constructive possession of the contraband. See Appellant’s

Brief at 18-22. We note that Appellant was convicted of six crimes under the

following three statutes:

      § 3925. Receiving stolen property

      (a)Offense defined.--A person is guilty of theft if he intentionally
      receives, retains, or disposes of movable property of another
      knowing that it has been stolen, or believing that it has probably
      been stolen, unless the property is received, retained, or disposed
      with intent to restore it to the owner.

18 Pa.C.S.A. § 3925.

      § 6105. Persons not to possess, use, manufacture, control,
      sell or transfer firearms

      (a)Offense defined.--
      (1) A person who has been convicted of an offense enumerated in
      subsection (b), within or without this Commonwealth, regardless
      of the length of sentence or whose conduct meets the criteria in
      subsection (c) shall not possess, use, control, sell, transfer or
      manufacture or obtain a license to possess, use, control, sell,
      transfer or manufacture a firearm in this Commonwealth.

18 Pa.C.S.A. § 6105.

      § 780-113. Prohibited acts; penalties

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

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            ...

      (30) Except as authorized by this act, the manufacture, delivery,
      or possession with intent to manufacture or deliver, a controlled
      substance by a person not registered under this act, or a
      practitioner not registered or licensed by the appropriate State
      board, or knowingly creating, delivering or possessing with intent
      to deliver, a counterfeit controlled substance.

35 P.S. § 780-113.

      The record does not support Appellant’s argument that “the constructive

possession case against [Appellant] was established through conjecture.”

Appellant’s Brief at 22. We have held:

            When contraband is not found on the defendant’s
            person,    the    Commonwealth      must     establish
            “constructive possession,” that is, the power to
            control the contraband and the intent to exercise that
            control. Commonwealth v. Valette, 531 Pa. 384,
            613 A.2d 548 (1992). The fact that another person
            may also have control and access does not eliminate
            the defendant’s constructive possession.... As with
            any other element of a crime, constructive possession
            may be proven by circumstantial evidence.
            Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d
            132 (1983). The requisite knowledge and intent may
            be inferred from the totality of the circumstances.
            Commonwealth v. Thompson, 286 Pa. Super. 31,
            428 A.2d 223 (1981).

      Commonwealth v. Haskins, 450 Pa. Super. 540, 677 A.2d 328,
      330 (1996), appeal denied, 547 Pa. 751, 692 A.2d 563 (Pa.
      1997). Constructive possession is an inference arising from a set
      of facts that possession of the contraband was more likely than
      not. Commonwealth v. Mudrick, 510 Pa. 305, 507 A.2d 1212,
      1213 (1986).

Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super. 2018)

(citations omitted).



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      Our review supports the trial court’s determination that there was

sufficient indicia that Appellant constructively possessed the firearms and drug

evidence recovered from the apartment bedroom.              The Commonwealth

presented the testimony of Narcotics Agent Richard Woznicki from the

Pennsylvania Attorney General’s Office, Narcotics Task Force Member James

Mann, and Michelle Nelson, who was the owner of the stolen “Bersa Thunder”

firearm; Appellant testified as the sole witness for the defense. The detailed

recitation of facts by the trial court accurately reflects the witnesses’ testimony

and evidence produced at trial. See Trial Court Opinion, 5/4/18, at 2-7. The

trial court reasoned:

            The narcotics and firearms were in close proximity to
      [Appellant], who was heading in the direction of the bedroom
      containing these items. In addition, police recovered numerous
      items indicative of drug trafficking, including a digital scale,
      glassine packets, rubber bands, a dish with straws on it, and a food
      processor with white powder residue on it. The “totality of the
      evidence” demonstrates [Appellant’s] constructive possession of
      the drugs and the firearms. See [Commonwealth v.] Hopkins,
      [67 A.3d 817, 820-21 (Pa. Super. 2013)].              Further, the
      Commonwealth was under no obligation to prove that only
      [Appellant] constructively possessed the drugs found in the house.
      As noted above, two people can constructively possess the same
      contraband. See id.

             Additionally, [Appellant] stipulated that he is a person not to
      possess firearms and the Commonwealth introduced a certified
      record of [Appellant’s] prior conviction for drug offenses. N.T.,
      5/17/17, at 76-77. Michelle Nelson testified that she purchased a
      .380 Bersa Thunder firearm which was subsequently stolen from
      her home. N.T., 5/17/17, at 123-124. At trial, Ms. Nelson
      identified Commonwealth’s Exhibit 38, which was the firearm
      seized at the time of the search warrant, as the .380 handgun which
      was stolen from her residence. Id. at 125.


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Trial Court Opinion, 5/4/18, at 10.

      Consistent with the foregoing, we find no basis to disturb the trial court’s

conclusion that Appellant constructively possessed the firearms and drugs. In

sum, the record does not support Appellant’s contention that the evidence was

insufficient to support a finding that he constructively possessed the

contraband that resulted in his criminal convictions.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2018




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