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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MICHAEL REIVES

                            Appellant               No. 1317 EDA 2015


                      Appeal from the Order April 16, 2015
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-002431-2014


BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED FEBRUARY 09, 2016

        Michael Reives (“Appellant”) appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his petition for

writ of certiorari, following his municipal court conviction and judgment of

sentence for possession of a small amount of marijuana.1 We affirm.

        Officer James Conway of the Philadelphia Police Department testified

that on July 19, 2014, at 12:25 a.m., while he was in his patrol vehicle with

Officer Ernest Powell, he observed Appellant and a few other people sitting

on a bench waiting for a bus. N.T., 12/29/2014, at 8-9, 12. Officer Conway

detected the odor of marijuana and observed Appellant smoking what he

believed to be a brown marijuana cigarette. Id. at 9. Officer Conway and

____________________________________________


1
    35 Pa.C.S. § 780-113(a)(31).
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Officer Powell approached Appellant.             Id.   After investigating Appellant,

Officer Powell recovered a brown marijuana cigarette. Id.2

        On December 29, 2014, the municipal court heard and denied

Appellant’s motion to suppress physical evidence, found Appellant guilty of

possession of marijuana, and ordered him to pay $623.00 for court costs,

fines, and lab fees. On January 28, 2015, Appellant filed a writ of certiorari

requesting the Philadelphia County Court of Common Pleas grant his motion

for suppression of physical evidence or reverse his guilty verdict. On April

16, 2015, the trial court denied Appellant’s writ of certiorari. On April 30,

2015, Appellant filed a notice of appeal.              On May 21, 2015, the court

ordered Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and he timely complied on June 2,

2015.

        Appellant raises the following issue for our review.

           WAS NOT THE EVIDENCE INSUFFICIENT AS A MATTER OF
           LAW TO ESTABLISH THAT [APPELLANT] WAS GUILTY
           BEYOND A REASONABLE DOUBT OF THE CRIME OF
           POSSESSION OF A SMALL AMOUNT OF MARIJUANA, IN
           THAT THERE WAS NO EVIDENCE THAT HE EVER
           POSSESSED THE MARIJUANA OR THAT THERE WAS A
           NEXUS BETWEEN THE RECOVERED MARIJUANA AND
           [APPELLANT]?

____________________________________________


2
  Officer Powell did not testify. Officer Conway did not see Officer Powell
recover the brown marijuana cigarette from Appellant. He testified only that
Officer Powell “investigated” Appellant and recovered a brown marijuana
cigarette.



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Appellant’s Brief at 4.

      Appellant argues his conviction was the result of conjecture and

suspicion and that the Commonwealth did not present sufficient evidence to

prove the elements of his crime of possession beyond a reasonable doubt.

We disagree.

      A trial court’s decision on the issuance of a writ of certiorari will not be

disturbed absent an abuse of discretion.         Commonwealth v. Elisco, 666

A.2d 739, 740 (Pa.Super.1995).        “Certiorari provides a narrow scope of

review in a summary criminal matter and allows review solely for questions

of   law.”     Id.   (citing   Commonwealth        v.   Cook,   308    A.2d   151

(Pa.Super.1973);      Commonwealth          v.     Reese,    528      A.2d    647

(Pa.Super.1987)). An appellant can raise a sufficiency of the evidence claim

for the first time in a petition for a writ of certiorari. Commonwealth v.

Coleman, 19 A.3d 1111, 1119 (Pa.Super.2011).

         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

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        evidence. Moreover, in applying the above test, the entire
        record must be evaluated and all evidence actually
        received must be considered. Finally, the [trier] 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. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874

A.2d 108, 120-21 (Pa.Super.2005)).

     Appellant was convicted under the following statute:

        § 780-113. Prohibited acts; penalties

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

                                  *    *     *

           (31) Notwithstanding other subsections of this
           section, (i) the possession of a small amount of
           marihuana only for personal use; (ii) the possession
           of a small amount of marihuana with the intent to
           distribute it but not to sell it; or (iii) the distribution
           of a small amount of marihuana but not for sale.


           For purposes of this subsection, thirty (30) grams of
           marihuana or eight (8) grams of hashish shall be
           considered a small amount of marihuana.

35 Pa.C.S. § 780-113(a)(31).

     In possession cases, the Commonwealth “may meet its burden by

showing actual, constructive, or joint constructive possession of the

contraband.”     Commonwealth          v.   Vargas,     108    A.3d      858,   868



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(Pa.Super.2014) (en banc), appeal denied, 121 A.3d 496 (Pa.2015) (citing

Commonwealth v. Thompson, 428 A.2d 223, 224 (Pa.Super.1981)). “If

the   contraband   is   not   discovered   on   the   defendant’s   person,   the

Commonwealth may satisfy its evidentiary burden by proving that the

defendant had constructive possession of the drug.” Id.

         [C]onstructive possession is a legal fiction, a pragmatic
         construct to deal with the realities of criminal law
         enforcement. The existence of constructive possession of
         a controlled substance is demonstrated by the ability to
         exercise a conscious dominion over the illegal substance:
         the power to control the illegal substance and the intent to
         exercise that control. An intent to maintain a conscious
         dominion may be inferred from the totality of the
         circumstances. Thus, circumstantial evidence may be used
         to establish constructive possession of the illegal
         substance.      Additionally, our [Supreme] Court has
         recognized that constructive possession may be found in
         one or more actors where the item in issue is in an area of
         joint control and equal access.

Commonwealth v. Johnson, 26 A.3d 1078, 1093-94 (Pa.2011) (internal

quotations and citations removed).

      Here, the trial court reasoned:

         In this case, Officer Conway smelled a strong odor of
         marijuana coming from the bus bench where Appellant
         was sitting. He then observed Appellant smoking what
         looked like a brown marijuana cigarette. Within moments,
         Officer Powell investigated Appellant and recovered a
         brown marijuana cigarette. These facts provide both direct
         and circumstantial evidence sufficient to find Appellant
         guilty beyond a reasonable doubt.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed July 30, 2015, at 4.




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     The trial court did not abuse its discretion in determining there was

sufficient evidence to enable the court to find every element of possession

beyond a reasonable doubt.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2016




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