J-A08027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                              :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 71 EDA 2017
    WILLIE A. WILLIAMS,                        :
                                               :
                       Appellee                :

                    Appeal from the Order November 29, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0009535-2015


BEFORE:      PANELLA, J., LAZARUS, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                                  FILED JUNE 1, 2018

       The Commonwealth of Pennsylvania appeals from the order, entered in

the Court of Common Pleas of Philadelphia County, granting Willie A. Williams’

post-sentence motion in arrest of judgment and vacating his convictions on

two counts of possession of a controlled substance with intent to deliver

(PWID), 35 P.S. § 780-113(a)(30), and one count of criminal conspiracy, 18

Pa.C.S.A. § 903.1 After our review, we affirm.

       The facts of this case are as follows:

       On August 31, 2015, Police Officer [Dierta] Cuffie and other
       members of the Narcotics Field Unit set up a narcotics surveillance
____________________________________________


1 Williams was also convicted of knowing and intelligent possession of a
controlled substance, 35 P.S. § 780-113(a)(16) (ungraded misdemeanor) and
tampering with evidence, 18 Pa.C.S.A. § 4910. The court denied the motion
in arrest of judgment with respect to those convictions.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     at 6742 North 18th Street [in Philadelphia], due to numerous
     complaints of drug sales at that address.          The house was
     registered to Daniel Simons. A confidential informant (“CI”) was
     provided with pre-recorded buy money, and knocked on the
     door[,] which was opened by Mr. Simons. The CI spoke with Mr.
     Simons, who then made a phone call. Thereafter, a Neon
     automobile approached, an unknown black male exited the
     vehicle, and went inside the property. The CI returned and turned
     over to the officers one purple packet of crack cocaine. The Neon
     and unknown black male were not stopped or seen [again].
     Appellee Mr. Williams was not seen at all during this incident. On
     September 1, 2015, the surveillance operation was again made
     on that property. The CI went to the house. Simons was outside,
     and spoke with the CI, who gave Simons the pre-recorded buy
     money. Simons made a phone call, and shortly thereafter, a Buick
     automobile appeared and parked in front of the house. Appellee
     Williams then exited the house, entered the Buick, exited the
     Buick, then re-entered the property, along with Simons and the
     CI. The CI returned and turned over crack cocaine. The Buick
     was not stopped or seen again. On September 2, 2015, police
     again set up the surveillance operation. The CI went to the house,
     knocked on the door, and was admitted by Mr. Simons. The CI
     returned with two purple packets of crack cocaine. Appellee
     Williams again was not present. Later on September 2, 2015,
     police executed a search warrant for the property. During the
     execution of the warrant, Police Officer Weaver, who was in the
     back of the property, observed white Styrofoam particles falling
     from the side of the air conditioning unit in the second floor rear
     window of the property. Appellee Williams was arrested along
     with the other people in the home, but was not found to be in
     possession of either drugs or money. In the room where he was
     arrested, which is the room where the police officer observed
     Styrofoam falling from the window, police recovered one packet
     containing 16 purple packets of crack cocaine near a window air
     conditioner unit, two clear baggies of powder cocaine on a dresser,
     $20 in pre-recorded buy money from under a mattress, $256 in
     cash, a yellow probation card, with Williams’ name, and Williams’
     ID card, listing his address as 7205 North 21st Street. Simons was
     arrested in the middle bedroom, and recovered from him was
     $4.00, a door key and a letter listing his address as the house
     being searched, 6742 North 18th Street. No cell phones were
     recovered.




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Trial Court Opinion, 2/27/17, at 1-3.

      Following a bench trial before the Honorable Tracy Brandeis-Roman,

Williams was convicted of two counts of PWID, one count of conspiracy, one

count of knowing and intelligent possession of a controlled substance, and one

count of tampering with evidence. The court sentenced Williams to 11½ to

23 months’ incarceration on the tampering with evidence conviction, with

immediate parole, and one year of probation for each of the remaining four

convictions, to run consecutively.

      Williams filed a post-sentence motion claiming that the evidence was

insufficient to sustain his two PWID convictions and his conspiracy conviction.

The court granted Williams’ motion and vacated those convictions.            The

Commonwealth filed this timely appeal, raising the following issues for our

review:

          1. Was the evidence sufficient to sustain defendant’s
             convictions for possessing a controlled substance with intent
             to deliver, where defendant was arrested in a room with
             numerous packets of crack cocaine and hundreds of dollars
             in cash, including pre-recorded buy money?

          2. Was the evidence sufficient to sustain defendant’s
             conviction for criminal conspiracy, where defendant aided
             his conspirator in selling three packets and one chunk of
             crack cocaine to a confidential informant?

Appellant’s Brief, at 1.

      The standard of review for the trial court as it passes upon a
      motion in arrest of judgment, is limited to a determination of the
      absence or presence of that quantum of evidence necessary to
      establish the elements of the crime. The trial court is required to
      view the evidence in the light most favorable to the

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      Commonwealth, as verdict winner, and may not alter the verdict
      based on a redetermination of credibility or a re-evaluation of the
      evidence. Before granting an arrest of judgment, the trial court
      must find the evidence supporting the verdict to be so weak and
      inconclusive that a jury of reasonable persons would not have
      been satisfied as to the accused’s guilt. . . . It [is] not the function
      of the trial court, in reviewing post-trial motions, to reweigh the
      evidence presented at trial.

Commonwealth v. Bigelow, 611 A.2d 301, 303-04 (Pa. Super. 1992)

(citations omitted).   See also Commonwealth v. Marquez, 980 A.2d 145,

148 (Pa. Super. 2009) (en banc). Further, “[t]he Commonwealth’s burden

may be met by wholly circumstantial evidence and any doubt about the

defendant’s guilt is to be resolved by the factfinder 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)).

      In his motion, Williams claimed the Commonwealth did not prove

beyond a reasonable doubt “that he either possessed the narcotics with intent

to deliver, actually sold or delivered narcotics, or was part of a conspiracy to

sell or deliver narcotics.” Post-Sentence Motion, 11/23/16, at ¶ 6. Williams

argued:

      [He] was never seen on the first day of the narcotics surveillance.
      He was seen on the second day but he was never seen interacting
      with the CI in any direct manner. He was not seen on the third
      day prior to the execution of the search warrant. Instead, Mr.
      Simons was seen all three days. In fact, Mr. Simons was the only
      one seen interacting with the CI. Mr. Simons is seen answering
      the door to the home on two occasions and on the third occasion
      he is seen already outside and accepts money from the CI. Mr.

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     Simons is the one who owns the house [about which] police
     received complaints of narcotics sales and those complaints
     specifically mention a Daniel Simons.         The Commonwealth
     likewise failed to present sufficient evidence that [Williams] was
     involved in a criminal conspiracy to sell or deliver narcotics.
     [Williams] is never seen interacting with either Mr. Simons or the
     CI on any of the days.

Id. at ¶ 8. Williams further claimed that the Commonwealth did not argue,

or present expert testimony to establish, that the circumstances of the arrest

or narcotics recovery indicated possession with intent to deliver. Id. at ¶ 7.

Finally, Williams contended that the Commonwealth likewise failed to present

evidence of criminal conspiracy, stating that he was never seen on day one or

day three of the surveillance, and was “never seen interacting with either Mr.

Simons or the CI on any of the days.” Id. at ¶ 9.

     The Commonwealth would argue seeing [Williams] on one day
     enter the house with the CI and Mr. Simons, his presence in this
     house where drugs are sold, his identification with the money and
     his arrest near where the drugs were recovered is enough.
     However, on cross-examination, this evidence [i]s admitted to be
     perhaps incorrect. The Officer could not know who else
     might have been in the house on any given date and
     admitted [Williams] never directly interacted with the CI
     or Mr. Simons. She admitted there were other individuals
     in the home, potentially in the same room as [Williams]
     during the search, that were not arrested. She admitted
     that the identification might not have been with the money.
     Given these admissions on cross-examination, the Commonwealth
     has not shown that [Williams] was part of a drug selling
     conspiracy.

Id. (emphasis added).

     The Controlled Substances Act defines PWID as follows:

     (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(a)(30).          A person is guilty of conspiracy with another

person or persons to commit a crime if, with the intent of promoting or

facilitating its commission, he:

      (1) agrees with such other person or persons that they or one or
      more of them will engage in conduct which constitutes such crime
      or an attempt or solicitation to commit such crime; or

      (2) agrees to aid such other person or persons in the planning or
      commission of such crime or of an attempt or solicitation to
      commit such crime.

18 Pa.C.S.A. § 903.

      The Commonwealth maintains that the evidence presented at trial

established that Williams “helped his co-conspirator Daniel Simons sell crack

cocaine   to   a   confidential    informant.”   Appellant’s   Brief,   at   8.   The

Commonwealth also argues that Williams “was arrested in a room containing

numerous packets of crack cocaine and hundreds of dollars in cash, including

$20 of pre-recorded buy money” and therefore the evidence was sufficient to

convict him of PWID and criminal conspiracy. Id.

      Even viewed in the light most favorable to the Commonwealth, the

Commonwealth did not prove constructive possession. See Commonwealth

v. Macolino, 469 A.2d 132, 134 (Pa. 1983) (constructive possession is “the


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J-A08027-18



ability to exercise a conscious dominion over the illegal substance: the power

to control the contraband and the intent to exercise that control.”); see also

Commonwealth v. Davis, 480 A.2d 1035, 1045 (Pa. Super. 1984) (“where

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.”). “Constructive possession is an inference arising from a set

of facts that possession of the contraband was more likely than not.”

Commonwealth v. Mudrick, 507 A.2d 1212, 1213 (Pa. 1986). Where more

than one person has equal access, the Commonwealth must present evidence

showing either defendant’s participation in the drug-related activity, or

evidence connecting defendant to the specific room or area where the

contraband was kept.     Commonwealth v. Bricker, 882 A.2d 1008 (Pa.

Super. 2005). Our review of the record indicates that the Commonwealth

presented neither.

      The Commonwealth presented no evidence that Williams engaged in a

drug transaction with the CI, and no evidence that Williams ever interacted

with Simons or the CI at any time during the surveillance or execution of the

search warrant. N.T. Trial, supra at 28. Further, Officer Cuffie acknowledged

that no drugs or money were found in Williams’ possession at the time of

arrest. Id. at 36.

      As noted above, Officer Cuffie testified that at the time of the search

“there could have been someone else in the room [with Williams].        There

w[ere] other people in the house.” N.T. Trial, supra at 31.     Officer Cuffie

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J-A08027-18



stated there were a couple of women in the house. Id. at 32. Williams did

not reside in that house with Simons. The only thing connecting Williams to

the room where the drugs and money were found was his identification, which,

on cross-examination, Officer Cuffie acknowledged might not have been with

the money found in the room, but may have been somewhere “in the room.”

Id. at 36.    Further, the parties stipulated that there was no paperwork

indicating that Williams was associated with the address under surveillance.

Id. at 27. Finally, Officer Cuffie acknowledged that paraphernalia was found

in the same room where Williams was arrested, supporting the inference that

Williams was a user, and not a seller. Id. at 37. In light of the fact there

were two other individuals present with equal access, and the inconclusive

evidence presented by the Commonwealth, we conclude that the inference of

constructive possession is not appropriate here.

     We are satisfied that the court did not engage in a reevaluation of the

evidence or a redetermination of credibility. Bigelow, supra. In fact, at the

hearing on post-sentence motions, the trial court stated the following on the

record: “I thought I heard something that I didn’t hear. When I read the

[notes of testimony], I realized that I thought there was something else that

was said and it wasn’t, so I apologize to both of you.” N.T. Hearing on Post-

Sentence Motion, 11/29/16, at 6-7.

     In conclusion, we find that the record, viewed in the light most favorable

to the Commonwealth, reveals that the Commonwealth failed to establish

beyond a reasonable doubt that Williams possessed controlled substances with

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J-A08027-18



the intent to deliver or that he conspired with Simons to do so. The “web of

circumstantial evidence” is simply too fragmented to support the convictions.

Marquez, supra at 150.       We conclude, therefore, that there was simply

insufficient evidence to establish that Williams was guilty beyond a reasonable

doubt of PWID and conspiracy.      We affirm the trial court’s order granting

Williams’ post-sentence motion in arrest of judgment.

      Order affirmed.

      Judge Panella joins this Memorandum.

      Judge Strassburger files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/18




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