J-S78039-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                 Appellee                   :
                                            :
                    v.                      :
                                            :
KAREEM LEE MIDDLEBROOK,                     :
                                            :
                 Appellant                  :    No. 1075 WDA 2017

            Appeal from the Judgment of Sentence July 7, 2017
              in the Court of Common Pleas of Indiana County
            Criminal Division, at No(s): CP-32-CR-0001016-2016

BEFORE:     OLSON, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:             FILED JANUARY 17, 2018

      Kareem Lee Middlebrook (Appellant) appeals from the judgment of

sentence of 2½ to 5 years of imprisonment following his jury convictions for

possession with intent to deliver, possession of a controlled substance, and

possession of drug paraphernalia.        Specifically, Appellant challenges the

denial of his pre-trial suppression motion and the sufficiency of the evidence

to sustain his convictions. We affirm.

      The trial court summarized the underlying facts of this case as follows.

             On August 17, 2016, while on routine patrol duty, Trooper
      Donald Watters of the Pennsylvania State Police conducted a
      traffic stop of a 2008 Chevrolet Cobalt on State Route 422, in
      White Township, Indiana County, Pennsylvania. Trooper Watters
      observed the vehicle traveling at a high rate of speed, and then
      paced the vehicle for approximately four-tenths of a mile using
      the certified calibrated speedometer in his patrol vehicle; he
      determined that the vehicle was traveling at 80 miles per hour in
      a 65 mile per hour zone. Trooper Watters then initiated a traffic


*Retired Senior Judge assigned to the Superior Court.
J-S78039-17


      stop by activating his emergency lights, and the Chevy Cobalt
      pulled to the highway berm approximately two-tenths of a mile
      from the State Route 286 exit.

             Trooper Watters approached the vehicle on the driver’s
      side; as he approached, he observed four (4) occupants,
      including the driver, in the vehicle. He also noticed that there
      was excessive movement inside the vehicle. Trooper Watters
      made contact with the operator and identified her as Amber
      Leigh Marchlewski of Indiana, Pennsylvania. The passengers
      were identified as Ryan Stepp (front seat passenger), Henry King
      (rear seat, passenger side), and [Appellant] (rear seat, driver’s
      side).

            After identifying the occupants, Trooper Watters went back
      to his patrol vehicle and called for backup.      Trooper Shari
      Campbell arrived at the scene, and assisted Trooper Watters in
      taking the front seat passenger, Ryan Stepp, into custody
      because he was wanted for an alleged state parole violation.
      Trooper Watters then spoke to Ms. Marchlewski outside of her
      vehicle; he asked her questions about where she was coming
      from and where she was going, and he asked her questions
      about the occupants of her vehicle. Trooper Watters ultimately
      asked Ms. Marchlewski for permission to search her vehicle,1 and
      she consented to the search.
            ______
            1
              The car was owned by Ms. Marchlewski’s mother, but it
            was Trooper Watters’ understanding that Ms. Marchlewski
            was an authorized driver of the vehicle.

            Trooper Watters then ordered that the rear seat
      passengers, [Appellant] and King, exit the vehicle. [Appellant]
      stepped out of the vehicle first. Trooper Campbell was standing
      between the open door and the body of the vehicle, and
      observed a white bag of suspected heroin on the seat where
      [Appellant] was sitting. Trooper Campbell took possession of the
      bag of suspected heroin and placed [Appellant] under arrest.

Trial Court Opinion, 8/16/2017, at 2-4 (citations omitted).




                                    -2-
J-S78039-17


        Appellant was arrested and charged with the aforementioned crimes.

Appellant filed a motion to suppress, in which he alleged that both the initial

traffic stop and the subsequent search of the vehicle were illegal.               After a

hearing, his motion to suppress evidence was denied. Thereafter, Appellant

was convicted following a jury trial.          Appellant timely filed a notice of

appeal.1      Appellant   presents      the   following    issues   for   this    Court’s

consideration: (1) whether the trial court erred in denying his suppression

motion;     and   (2)   whether   the    evidence    was    sufficient    to     establish

constructive possession of the heroin found in the vehicle. Appellant’s Brief

at 5, 22.

        We consider Appellant’s suppression claims mindful of the following.

        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 ... 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 court[]
        below are subject to our plenary review.

1
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.



                                         -3-
J-S78039-17



Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)).

      Appellant concedes that the initial traffic stop was lawful. Appellant’s

Brief at 12, 14. His challenge to the denial of his suppression motion can be

separated into two parts: (1) the detention after the stop; and (2) Ms.

Marchlewski’s consent to search the vehicle.

      We first address the detention. As discussed above, Trooper Watters

completed the initial traffic stop, but continued to engage with the occupants

of the vehicle until he asked Ms. Marchlewski for consent to search the

vehicle. Accordingly, the following principles govern our analysis.

      The Supreme Court in [Commonwealth v. Strickler, 757 A.2d
      884 (Pa. 2000)] ruled that after police finish processing a traffic
      infraction, the determination of whether a continuing interdiction
      constitutes a mere encounter or a constitutional seizure centers
      upon whether an individual would objectively believe that he was
      free to end the encounter and refuse a request to answer
      questions.

            Our    Supreme      Court   adopted   a    totality-of-the-
      circumstances approach. It delineated a non-exclusive list of
      factors to be used in making this assessment. Those factors
      include 1) the presence or absence of police excesses; 2)
      whether there was physical contact; 3) whether police directed
      the citizen’s movements; 4) police demeanor and manner of
      expression; 5) the location and time of the interdiction; 6) the
      content of the questions and statements; 7) the existence and
      character of the initial investigative detention, including its
      degree of coerciveness; 8) “the degree to which the transition
      between the traffic stop/investigative detention and the
      subsequent encounter can be viewed as seamless, ... thus
      suggesting to a citizen that his movements may remain subject



                                     -4-
J-S78039-17


      to police restraint,” id. at 898; and 9) whether there was an
      express admonition to the effect that the citizen-subject is free
      to depart, which “is a potent, objective factor.” Id. at 899. Our
      Supreme Court also observed that when an individual has been
      subjected to a valid detention but police continue to engage the
      person in conversation, the person is less likely to reasonably
      believe that he is actually free to leave the scene.

Commonwealth v. Kemp, 961 A.2d 1247, 1253 (Pa. Super. 2008).

      Here, after processing the traffic infraction and ascertaining the

identities of the individuals in the vehicle, Trooper Watters did not inform the

occupants that they were free to leave. Rather, Trooper Watters called for

backup, took the front seat passenger into custody on an active warrant,

asked Ms. Marchlewski to step out of the vehicle, and inquired about her

travels that day and the occupants of the vehicle. Based on the totality of

the circumstances, we conclude that the occupants of the vehicle, including

Appellant,   were     subject   to   an   investigatory   detention   following   the

completion of the initial traffic stop. See id. at 1254 (finding that encounter

was an investigatory detention where the appellant was not told that he was

free to leave after his documents were returned, and the trooper inquired

about his travels).

      We next consider whether the detention was proper.

      A police officer may detain an individual in order to conduct an
      investigation if that officer reasonably suspects that the
      individual is engaging in criminal conduct. This standard, less
      stringent than probable cause, is commonly known as
      reasonable suspicion. In order to determine whether the police
      officer had reasonable suspicion, the totality of the



                                          -5-
J-S78039-17


      circumstances     must      be     considered. In    making      this
      determination, we must give due weight ... to the specific
      reasonable inferences [the police officer] is entitled to draw from
      the facts in light of his experience. Also, the totality of the
      circumstances test does not limit our inquiry to an examination
      of only those facts that clearly indicate criminal conduct. Rather,
      even a combination of innocent facts, when taken together, may
      warrant    further    investigation    by    the    police   officer.

Id. at 1255 (citations and quotation marks omitted).

      Appellant argues that “[f]urtive movements and nervousness, standing

alone, do not support the existence of reasonable suspicion.”        Appellant’s

Brief at 19 (quoting Commonwealth v. Moyer, 954 A.2d 659, 670 (Pa.

Super. 2008)). However, the evidence presented at the suppression hearing

established more than mere furtive movements and nervousness. Rather,

the evidence established that: (1) Trooper Watters initiated a traffic stop for

speeding; (2) the occupants of the vehicle exhibited excessive shoulder

movement, fidgeting, nervousness, and hand shaking; (3) the backseat

passengers avoided eye contact with Trooper Watters; (4) the front seat

passenger had an active arrest warrant; and (5) the backseat passengers

had multiple prior drug charges.     N.T., 2/1/2017, at 10-11, 14-15.         This

evidence was sufficient to establish reasonable suspicion that the occupants

of the vehicle were engaged in criminal activity.     Thus, the detention was

proper.

      We next address Appellant’s challenge to Ms. Marchlewski’s consent to

search the vehicle.      “Establishment of the expectation of privacy in



                                      -6-
J-S78039-17


a searched vehicle applies not only to drivers, but also to its passengers.”

Commonwealth v. Powell, 994 A.2d 1096, 1104 (Pa. Super. 2010).

     [I]n order for a defendant accused of a possessory crime to
     prevail in a challenge to the search and seizure which provided
     the evidence used against him, he must, as a threshold matter,
     establish that he has a legally cognizable expectation of privacy
     in the premises which were searched.

            An expectation of privacy will be found to exist when the
     individual exhibits an actual or subjective expectation of privacy
     and that expectation is one that society is prepared to recognize
     as reasonable. In determining whether a person’s expectation of
     privacy is legitimate or reasonable, the totality of the
     circumstances must be considered and the determination will
     ultimately rest upon a balancing of the societal interests
     involved. The constitutional legitimacy of an expectation of
     privacy is not dependent on the subjective intent of the
     individual asserting the right but on whether the expectation is
     reasonable in light of all the surrounding circumstances.

Commonwealth v. Viall, 890 A.2d 419, 422 (Pa. Super. 2005) (citations

and quotation marks omitted). In that case,

     the drugs and drug paraphernalia were recovered from a
     common area in the backseat of the vehicle near where [Viall]
     sat. Also traveling with [Viall] were the driver, a front seat
     passenger and two other backseat passengers. We conclude that
     it would be unreasonable for [Viall] to have expected to maintain
     a privacy interest in objects which were placed inside the car and
     not shielded from the view of the many others occupying the
     same small space. Much like a co-inhabitant of a home assumes
     the risk that one of the residents may permit the common area
     to be searched, [Viall], as a co-occupant of the automobile,
     assumed the risk that the driver would permit the common areas
     of the car to be searched. Where joint access or control exists,
     there can be no reasonable or legitimate expectation of
     privacy. Thus, as we conclude [Viall] did not have a reasonable
     expectation of privacy in the area where the contraband was




                                   -7-
J-S78039-17


        recovered, the trial court rightly found he is unable to challenge
        the validity of the consent given to search that area.

890 A.2d at 423 (citations omitted).

        Based upon Viall we conclude that Appellant has not established that

he had a legally cognizable expectation of privacy in the backseat of Ms.

Marchlewski’s vehicle.      Based on the foregoing, Appellant’s detention was

supported by reasonable suspicion, and the search of the vehicle was not

illegal.   Thus, the trial court did not err in denying Appellant’s motion to

suppress the search of the vehicle.

        Lastly,   we   address   Appellant’s   sufficiency-of-the-evidence     claim.

Appellant argues that the evidence was insufficient to prove constructive

possession of the heroin found where Appellant was sitting. 2              Appellant’s

Brief at 28.

        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 [Commonwealth as 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

2
    The trial court failed to address this claim in its 1925(a) opinion.


                                        -8-
J-S78039-17


      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015)

(citation omitted).

      Because the heroin was not found on Appellant’s person, the

Commonwealth was required to prove constructive possession.

            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. We subsequently defined conscious dominion as 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.

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

marks and citation omitted).     “The Commonwealth may sustain its burden

by means of wholly circumstantial evidence, and we must evaluate the

entire trial record and consider all evidence received against the defendant.”

Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013) (citation

omitted).

      Appellant   contends     that   “[t]he   only   circumstance   connecting

[Appellant] to the bag of heroin was the fact that it was located on the seat

on which he was sitting and may have been under him, unless placed there

by [Mr.] King after [Appellant] exited the vehicle.” Appellant’s Brief at 28.

Appellant sets forth several possibilities of how the bag of heroin could have



                                      -9-
J-S78039-17


been placed there without Appellant’s knowledge, and argues that all

passengers had equal access to the heroin.        Id. at 28-29.   Appellant

concludes that “while the circumstances of where the bag of heroin was

found in this case may be suspicious, conjecture and suspicion [are]

insufficient to support a conviction.”   Id. at 29 (citing Commonwealth v.

Spencer, 621 A.2d 153 (Pa. Super. 1993) (holding that evidence was

insufficient to establish that defendant, who was a passenger in a vehicle,

was in constructive possession of drugs found in armrest of door); and

Commonwealth v. Juliano, 490 A.2d 891 (Pa. Super. 1985) (holding that

circumstantial evidence was insufficient to find defendant, who was a

passenger in a vehicle, was in constructive possession of items found within

an unopened satchel by his feet)).

      Our review of the record shows that it was reasonable for the jury to

conclude from the evidence presented, giving credit to the officers’

testimony and that of the vehicle’s other occupants,3 that Appellant

constructively possessed the bag of heroin. The evidence demonstrated that

as Appellant exited the vehicle, Trooper Campbell observed a clear plastic

baggie with a white powdery substance lying on the seat exactly where



3
  See, e.g., Commonwealth v. Love, 896 A.2d 1276, 1283 (Pa. Super.
2006) (“We may not weigh the evidence or substitute our judgment for that
of the fact-finder. … When evaluating the credibility and weight of the
evidence, the fact-finder is free to believe all, part, or none of the
evidence.”).


                                     - 10 -
J-S78039-17


Appellant had been sitting.   N.T. 4/17/2017, at 18-21.    It was obvious to

Trooper Campbell that Appellant “was sitting directly on it” before he exited

the vehicle. Id. at 29. The substance in the bag was tested and found to be

5.98 grams of heroin.      Id. at 80.   Ms. Marchlewski and the front seat

passenger, Mr. Stepp, testified that they were under the impression that

Appellant and Mr. King were involved in the heroin drug trade and they were

being paid to drive Appellant and Mr. King from Pittsburgh to Indiana in

order to sell heroin. Ms. Marchlewski and Mr. Stepp testified that the heroin

found where Appellant was sitting was not theirs. Id. at 102-104, 107, 111.

      It is well established that “the evidence at trial need not preclude

every possibility of innocence, and the fact-finder is free to resolve any

doubts regarding a defendant’s guilt 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.” Commonwealth v. Hughes, 908 A.2d

924, 928 (Pa. Super. 2006).

      Here, Appellant was sitting directly on a bag of heroin, and

specifically was being driven from Pittsburgh to Indiana in order to sell that

heroin.   The evidence was sufficient to permit the jury to conclude that

Appellant constructively possessed the heroin in question.       Accordingly,

Appellant’s claim fails.

      Judgment of sentence affirmed.




                                    - 11 -
J-S78039-17




Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 1/17/2018




                          - 12 -
