J-S53008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

TOBIAS C. CHAMBERS,

                         Appellant                   No. 118 EDA 2016


     Appeal from the Judgment of Sentence Entered December 3, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0004171-2014


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

MEMORANDUM BY BENDER, P.J.E.:                     FILED OCTOBER 31, 2017

      Appellant, Tobias C. Chambers, appeals from the aggregate judgment

of sentence of four to eight years’ incarceration, following his conviction for

drug offenses.   Herein, Appellant challenges the trial court’s suppression

ruling, as well as the sufficiency of the evidence. After careful review, we

affirm.

      The trial court summarized the facts adduced at trial as follows:

            On March 1, 2014, at approximately 6:05 p.m., Officer
      Gary D'Alesio ("Officer D'Alesio") and his partner Officer Gary
      Tumolo ("Officer Tumolo") were on routine patrol in the area of
      6000 Media Street in Philadelphia, Pennsylvania.            N.T.[,]
      3/9/2015[,] at 10-11. At that time, Officer D'Alesio observed a
      gray 2013 Toyota Camry traveling westbound on Media Street;
      after observing the driver of the vehicle fail to obey a stop sign,
      the Officers conducted a lawful traffic stop for violation of the
      Motor Vehicle Code. Id. at 11.

           After [Appellant] stopped the vehicle, the officers
      approached; Officer D'Alesio observed three unidentified males
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     inside the car, shifting around in their seats. Id. The rear
     passenger turned around and watched the officers as they
     approached. Id. Officer Tumolo approached the driver's side of
     the vehicle and saw [Appellant] in the driver's seat; he was
     accompanied by a front passenger, later identified as co-
     defendant Stewart, and a third individual identified as Marcell
     Porter, who was seated in the back. Id.

           While Officer Tumolo spoke with [Appellant] and collected
     his relevant paperwork, Officer D'Alesio remained on the right
     side of the vehicle and observed the rear passenger. Id. at 12.
     While facing Officer D'Alesio, the rear passenger shifted from his
     seat and moved to the opposite side of the car. Id. At this
     point, after discovering that Porter had no identification, Officer
     Tumolo removed Porter from the vehicle and secured him in the
     back of the squad car to minimize potential risk to the officers.
     Id.

           During this time, Officer D'Alesio noticed [Appellant] slowly
     reaching his right hand towards the center console area. Id. at
     13. As he continued to observe [Appellant], he noticed that the
     molding around the gear shifter was slightly raised and looked
     unnatural. Id. At this point, Officer D'Alesio recognized that
     [Appellant] was trying to push the shifter molding down, but was
     unable to do so because there was a bag sticking out. Id. He
     immediately motioned to alert his partner, who returned to the
     vehicle just as Officers Ondarza and Tritz arrived at the scene to
     provide backup. Id.

           With the backup officers in place, Officers D'Alesio and
     Tumolo removed [Appellant] and Stewart from the vehicle to
     conduct a pat down frisk, then placed them at the rear of the
     vehicle. Id. at 14. At this time, Officer D'Alesio also observed
     several small, black rubber bands spread out on the floor of the
     passenger side of the car. Id. at 14. Based on the officer's
     experience with narcotics, he concluded that the items were
     consistent with what is commonly used to package heroin. Id.
     With the men out of the vehicle, Officer D'Alesio also had an
     unimpeded view of the space by the gear shifter; he was able to
     look into the space with the bag and observed what he believed
     to be multiple bags of packaged heroin. Id.

           Officers D'Alesia and Tumolo instructed [Appellant] and
     Stewart to place their hands behind their back and explained
     that they were under arrest. Id. at 16. Stewart complied, but


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       [Appellant] turned around and punched Officer Ordarza in the
       face in an attempt to flee. Id. Officer Tritz grabbed [Appellant],
       who responded by swinging his elbow and striking the officer in
       the face. Id. A struggle ensued between [Appellant] and the
       four officers, who were eventually able to handcuff and place
       him into custody. Id.

              Following the officers' observations, Canine Officer Snyder
       and Canine Leo were summoned to the scene to conduct a
       search of the vehicle's exterior. Id. at 43. After the canine
       officer indicated the presence of narcotics, search and seizure
       warrant 180553 was executed by Detective Gilson. Id. at 44.
       Recovered from the vehicle were 13 packets of crack cocaine,
       952 packets of heroin, and the black rubber bands, commonly
       used to wrap heroin bundles for sale. Id.

Trial Court Opinion (TCO), 10/13/16, at 1-3.

       Following his arrest, the Commonwealth charged Appellant with

possession with intent to manufacture or deliver a controlled substance, 35

Pa.C.S. § 780-113(a)(30) (PWID); conspiracy (PWID), 18 Pa.C.S. § 903;

possession of a controlled substance, 35 § 780-113(a)(16); and possession

of drug paraphernalia, 35 Pa.C.S. § 780-113(a)(32).1                Appellant filed a

suppression motion on March 9, 2015, targeting the seized crack cocaine,

heroin, and related paraphernalia.             The trial court denied the suppression

motion on July 16, 2015. Appellant was then jointly tried with co-defendant

Stewart in a non-jury trial the same day. The trial court convicted Appellant

____________________________________________


1  The Commonwealth also charged Appellant with two counts each of
aggravated assault and resisting arrest at Docket Nos. CP-51-CR-0004173-
2014 and CP-51-CR-0004714-2014, which were consolidated with CP-51-
CR-0004171-2014 for trial. Appellant was convicted of those offenses as
well. However, Appellant has not appealed from the judgment of sentence
in those cases.



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on all counts, while his co-defendant was found not guilty of all charges he

faced, including conspiracy. On December 3, 2015, the trial court sentenced

Appellant to 4-8 years’ incarceration for PWID, and a concurrent term of 4-8

years’ incarceration for conspiracy. He was sentenced to no further penalty

for the remaining counts.    Appellant filed a timely notice of appeal, and a

timely, court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued its

Rule 1925(a) opinion on October 14, 2016.

     Appellant now presents the following questions for our review:

       I.   Did the trial court err when it denied [Appellant]'s pre-trial
            motion to suppress physical evidence where … the
            arresting officers' testimony was not credible and did not
            establish that the officers had probable cause to search the
            car operated by [Appellant]?

      II.   Is the evidence sufficient as a matter of law to sustain
            [A]ppellant's conviction for the crime of possession with
            intent to deliver a controlled substance where the
            competent evidence of record did not establish beyond a
            reasonable doubt that [Appellant] constructively possessed
            the controlled substance recovered hidden in a rental car
            which was rented by another person and occupied by
            several other people making furtive movements?

     III.   Is the evidence sufficient as a matter of law to sustain
            [A]ppellant's conviction for the crime of conspiracy where
            the co-defendant was acquitted of all charges by the trial
            court in a non-jury trial and the competent evidence of
            record did not establish beyond a reasonable doubt that
            [Appellant] agreed or acted with the aid of another to
            commit any crime?

Appellant’s Brief at 6-7 (numbering added).

     Appellant’s first issue concerns the trial court’s decision to deny his

motion to suppress the seized contraband.


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     Our standard of review in addressing a challenge to the denial of
     a suppression motion is limited to determining whether the
     suppression court's factual findings are supported by the record
     and whether the legal conclusions drawn from those facts are
     correct.   Because the Commonwealth prevailed before the
     suppression court, we may consider only the evidence of the
     Commonwealth and so much of the evidence for the defense as
     remains uncontradicted when read in the context of the record
     as a whole. Where the suppression court's factual findings are
     supported by the record, we are bound by these findings and
     may reverse only if the court's legal conclusions are erroneous.
     Where, as here, the appeal of the determination of the
     suppression court turns on allegations of legal error, the
     suppression court's legal conclusions are not binding on an
     appellate court, whose duty it is to determine if the suppression
     court properly applied the law to the facts.           Thus, the
     conclusions of law of the courts below are subject to our plenary
     review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012)

(quoting Commonwealth v. Hoppert, 39 A.3d 358, 361–62 (Pa. Super.

2012)).

           The plain view doctrine permits the warrantless seizure of
     evidence in plain view when: (1) an “officer views [the] object
     from a lawful vantage point”; and (2) it is “immediately
     apparent”    to   him   that   the   object  is   incriminating.
     Commonwealth v. Petroll, 558 Pa. 565, 738 A.2d 993, 999
     (1999).    Our Supreme Court has expressly recognized that
     incriminating objects “plainly viewable [in the] interior of a
     vehicle” are in “plain view” and, therefore, subject to seizure
     without a warrant. Commonwealth v. Colon, 777 A.2d 1097,
     1103 (Pa. Super. 2001) (citing Commonwealth v. Milyak, 508
     Pa. 2, 493 A.2d 1346, 1348 (1985)). This doctrine rests on the
     principle that an individual cannot have a “reasonable
     expectation of privacy in an object that is in plain view.”
     Petroll, 738 A.2d at 999.

           In determining “whether the incriminating nature of an
     object [is] immediately apparent to the police officer,” we look to
     the “totality of the circumstances.” Id. An officer can never be
     one hundred percent certain that a substance in plain view is
     incriminating, but his belief must be supported by probable

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     cause. Commonwealth v. Ellis, 541 Pa. 285, 662 A.2d 1043,
     1049 (1995).

Commonwealth v. Ballard, 806 A.2d 889, 891–92 (Pa. Super. 2002)

     Instantly,   Appellant’s   claim   is   that   the   trial   court’s   factual

determinations are not supported by the record.       Appellant asserts that a

video taken of the incident demonstrates that the police searched inside the

vehicle after all three defendants had already been detained, before the

canine unit arrived and, consequently, before the warrant was obtained to

search the vehicle.   Appellant argues that this evidence undermines the

credibility of Officer D’Alesio, who had testified that he only saw the

contraband in question from a neutral vantage point, i.e., that the

contraband was visible in plain view from outside of the vehicle.           If the

contraband in question was in plain view, however, the police had probable

cause to search Appellant’s vehicle, making the subsequent canine search

and search warrant superfluous. Ballard, supra.

     Appellant relies on Commonwealth v. Griffin, 116 A.3d 1139 (Pa.

Super. 2015), wherein this Court reversed the trial court’s denial of

suppression on the basis that an officer’s testimony alleging the lawfulness

of the at-issue seizure of contraband was clearly contradicted by video

evidence. The officer in Griffin testified that he had discovered contraband

on the defendant via the plain feel doctrine, whereas a video of the incident

“clearly depict[ed] the officer repeatedly manipulating [the] appellant's

pocket.”   Id. at 1143 (emphasis added).        In light of that evidence, we

stated, “this is one of those rare cases where a dash cam video, which was

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made a part of the certified record, can contradict a trial court's factual

finding often based on its credibility determinations.” Id.

      In this case, the trial court rejected Appellant’s claim, reasoning:

      At the suppression hearing, Officer D'Alesio's testimony focused
      on 1) the [Appellant]'s suspicious and evasive conduct; 2) the
      vantage point from which he observed the contraband in plain
      view; and 3) the events that occurred between the initial traffic
      stop and the eventual search of [Appellant]'s vehicle.          In
      response to the officer's testimony, the Defense sought to
      introduce a video to impeach Officer D'Alesio's credibility.
      Defense counsel argued that the footage demonstrated
      inconsistencies in the officer's recounting of the incident,
      suggesting an overall lack of credibility.        However, after
      admitting the video into evidence and hearing arguments on the
      matter, the Trial Court rejected the [Appellant]'s contentions as
      meritless, concluding that the footage was consistent with Officer
      D'Alesio's testimony and that it contained no basis for which his
      credibility could be questioned. Based on those factors, the
      [c]ourt properly denied [Appellant]'s suppression motion and
      allowed the contents of the search to be properly admitted into
      evidence.

TCO at 6.

      We agree with Appellant to the extent that the video in question does

depict that at least one officer was physically inside the vehicle, searching

with a flashlight, for at least a minute, and that another officer joined him

inside the vehicle for 10-20 seconds.        However, we disagree that this

evidence so clearly contradicts Officer D’Alesio’s testimony – that he initially

observed the contraband in plain view – to the extent that we would be

compelled to reject the trial court’s credibility determination as we did in

Griffin.




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        Appellant’s theory is that there was no need to rummage through the

vehicle after the plain-view observation, and before the arrival of the canine

unit, unless Officer D’Alesio had not actually seen any contraband in plain

view from a neutral vantage point. However, the video evidence here does

not clearly contradict Officer D’Alesio’s testimony merely because it could be

consistent with Appellant’s theory.            The video does not depict the initial

plain-view observation, but events which occurred later. Consequently, the

video only provides an inference that Appellant’s theory is true, not direct

proof that Officer D’Alesio lied.

        Moreover, Officer D’Alesio testified that he had conducted a sweep of

the vehicle for weapons following the removal of Appellant and the other

passengers in the vehicle.        N.T., 3/9/15, at 29-30; see also Michigan v.

Long, 463 U.S. 1032, 1049 (1983) (holding “the search of the passenger

compartment of an automobile, limited to those areas in which a weapon

may be placed or hidden, is permissible if the police officer possesses a

reasonable belief based on ‘specific and articulable facts which, taken

together with the rational inferences from those facts, reasonably warrant’

the officers in believing that the suspect is dangerous and the suspect may

gain immediate control of weapons”).2 The Commonwealth argues that the

video actually corroborates Officer D’Alesio’s testimony in this regard.


____________________________________________


2   Appellant does not challenge the officers’ protective sweep of the vehicle.



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Commonwealth’s Brief at 16-17. Whether it does or not, we can conclude

that the video does not clearly or irrefutably contradict the veracity of Officer

D’Alesio’s testimony. In Griffin, by contrast, the video specifically depicted

the act which rendered the search illegal, not merely indirect evidence which

tended to support that the prohibited act had occurred. Consequently, we

are compelled to reject Appellant’s suppression claim.

      Next, Appellant argues that the evidence was insufficient to support

his conviction for PWID.

      Our standard of review of sufficiency claims is well-settled:

             A claim challenging the sufficiency of the evidence is a
      question of law. 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. Where the evidence offered to
      support the verdict is in contradiction to the physical facts, in
      contravention to human experience and the laws of nature, then
      the evidence is insufficient as a matter of law. When reviewing a
      sufficiency claim[,] the court is required to view the evidence in
      the light most favorable to the verdict winner giving the
      prosecution the benefit of all reasonable inferences to be drawn
      from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      Appellant alleges the evidence was insufficient in this case to support

his PWID conviction because the Commonwealth ostensibly failed to

establish that he had constructive possession of the seized contraband.

            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


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      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; two actors may have joint control and
      equal access and thus both may constructively possess the
      contraband. Commonwealth v. Mudrick, 510 Pa. 305, 507
      A.2d 1212 (1986). 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 examination of the totality of the circumstances.
      Commonwealth v. Thompson, 286 Pa. Super. 31, 428 A.2d
      223 (1981). The fact that the contraband is located in an area
      usually accessible only to the defendant may lead to an inference
      that he placed it there or knew of its presence. Id.

Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996).

      Appellant specifically contends that the Commonwealth failed to

establish constructive possession because: 1) the vehicle driven by Appellant

was a rental, and had not been rented by him or any of the other

passengers; and 2) because the contraband was “recovered in an area

accessible to all three occupants of the rental car.” Appellant’s Brief at 27.

      The trial court found, however, that:

            First, when police initially approached the vehicle,
      [Appellant] and the two passengers were seen making "fervent
      movements," which put the officers on high alert for potential
      criminal activity. [Appellant] was also observed operating the
      vehicle from which the contraband was seized. Although he was
      not the registered lessee, trial testimony established that his
      mother (the lessee) gave him express consent to drive the rental
      vehicle on the date in question. Later, and just moments before
      his arrest, Defendant tried to … flee the scene, resorting to a
      physical assault on two different officers during his attempt.
      Lastly, and perhaps most significant, [Appellant] was observed
      attempting to conceal the heroin later found in the center
      console area of the vehicle, demonstrating both his awareness of
      the situation and his consciousness of guilt.             These
      circumstances, coupled with the close proximity of the

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      contraband     to   [Appellant],     creates    a    clear    inference    of
      possession.

           When viewed in their totality, the facts and circumstances
      support the finding that [A]ppellant was in constructive
      possession of the contraband.

TCO at 8.

      We agree with the trial court. Appellant’s argument simply disregards

the fact that he was observed attempting to conceal the baggie located

under the molding of the gear shift, a critical factor because it demonstrates

both Appellant’s power and intent to control the contraband in question.

Moreover, it is now axiomatic that one may constructively possess items

which are simultaneously accessible others. See Mudrick, supra. Finally,

Appellant’s attempted flight is another factor that supported the inference

that he was in possession of the contraband.              “When a person commits a

crime, knows that he is wanted therefor, and flees or conceals himself, such

conduct is evidence of consciousness of guilt, and may form the basis in

connection    with   other   proof   from         which   guilt    may   be     inferred.”

Commonwealth v. Collins, 269 A.2d 882, 884 (Pa. 1970) (citation and

quotation marks omitted). Accordingly, the totality of circumstances in this

case was sufficient to demonstrate Appellant’s constructive possession of the

contraband and, therefore, we conclude that Appellant’s second issue lacks

merit.

      In Appellant’s final issue, he contends the evidence was insufficient to

convict him of conspiracy (to commit PWID), because his co-defendant was

acquitted of all charges, including a similar charge of conspiracy.

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            “To sustain a conviction for criminal conspiracy, the
      Commonwealth must establish that the defendant (1) entered
      into an agreement to commit or aid in an unlawful act with
      another person or persons, (2) with a shared criminal intent and
      (3) an overt act was done in furtherance of the conspiracy.”
      Commonwealth v. Rios, 546 Pa. 271, 283, 684 A.2d 1025,
      1030 (1996), cert. denied, 520 U.S. 1231, 117 S.Ct. 1825, 137
      L.Ed.2d 1032 (1997), citing 18 Pa.C.S.A. § 903. “This overt act
      need not be committed by the defendant; it need only be
      committed by a co-conspirator.” Commonwealth v. Johnson,
      719 A.2d 778, 784 (Pa. Super. 1998) (en banc), appeal denied,
      559 Pa. 689, 739 A.2d 1056 (1999).

             Proof of a conspiracy is almost always extracted from
      circumstantial evidence. Commonwealth v. Swerdlow, 431
      Pa. Super. 453, 636 A.2d 1173, 1176 (1994).                   The
      Commonwealth may present a “web of evidence” linking the
      defendant to the conspiracy beyond a reasonable doubt.
      Johnson, 719 A.2d at 785. The evidence must, however, “rise
      above mere suspicion or possibility of guilty collusion.”
      Swerdlow, 636 A.2d at 1177 (citation omitted).              Mere
      association, presence at the scene, or knowledge of the crime is
      insufficient; the Commonwealth must prove that the defendant
      “became an active participant in the criminal enterprise and that
      he had knowledge of the conspiratorial agreement.” Id. (citation
      omitted).

Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000)

(footnote omitted).

      Here, Appellant acknowledges that the law does not typically require

consistent verdicts among alleged co-conspirators with respect to a

conspiracy conviction, especially when conspirators are tried separately.

      This Court has held that “consistency in verdicts in criminal cases
      is not necessary.” Commonwealth v. Swann, 431 Pa. Super.
      125, 635 A.2d 1103, 1104 (1994). “It is well-settled that juries
      may render inconsistent verdicts.       Pursuant to Pa.R.Crim.P.
      1101[,] … judges have the same powers as juries when a jury
      trial is waived. Accordingly, a judge, in a non-jury trial, has the
      power to render inconsistent verdicts.” Commonwealth v.
      Caine, 453 Pa. Super. 235, 683 A.2d 890, 893 (1996) (citing

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     Commonwealth v. Harris, 239 Pa. Super. 603, 360 A.2d 728
     (1976)). As such, “this Court will not disturb a guilty verdict on
     the basis of apparent inconsistencies as long as there is
     sufficient evidence to support the verdict.” Commonwealth v.
     Miller, 441 Pa. Super. 320, 657 A.2d 946, 948 (1995).

Commonwealth v. Coon, 695 A.2d 794, 799 (Pa. Super. 1997), abrogated

on different grounds by Commonwealth v. Fedorek, 946 A.2d 93, 101

(Pa. 2008).

     Nevertheless, Appellant claims that the circumstances of this case are

unique because the only other charged co-conspirator in this case, Stewart,

was acquitted of conspiracy at the same joint trial. However, our Supreme

Court rejected a nearly identical claim in Commonwealth v. Campbell,

651 A.2d 1096 (Pa. 1994). In Campbell, the defendant argued,

     that consistent verdicts are required in a joint trial for
     conspiracy. Thus, the reasonable doubt that the jury had as to
     the identity of the co-conspirator, as reflected by its acquittal of
     4Briston[, 12eryuiopCampbell’s co-defendant and alleged co-
     conpirator], invalidates the verdict finding [Campbell] guilty of
     conspiracy. [Campbell] relies on the fact that the information
     did not charge him with conspiring with any person (known or
     unknown), but that it solely charged him with conspiring with
     Briston. He asserts that the court accordingly erred in charging
     the jury that it could find one defendant guilty of conspiracy
     without also finding the sole other co-conspirator guilty.

Id. at 1098.

     In Campbell, the defendant was specifically charged with conspiring

with his jointly-tried co-defendant, whereas here, Appellant was not charged

with conspiring with a specific person, much less his co-defendant at trial,

Stewart. Thus, Appellant’s argument is an even weaker inconsistent verdict

claim than was presented in Campbell.


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     Judgement of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2017




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