J-S69013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

FRANK RAPHIEK CRISTEA

                            Appellant                   No. 940 EDA 2015


           Appeal from the Judgment of Sentence December 4, 2014
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0006967-2013


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

MEMORANDUM BY GANTMAN, P.J.:                       FILED FEBRUARY 04, 2016

        Appellant, Frank Raphiek Cristea, appeals from the judgment of

sentence entered in the Montgomery County Court of Common Pleas,

following his convictions for two counts of possession of a controlled

substance with intent to deliver (“PWID”), and one count each of possession

of a controlled substance and possession of drug paraphernalia. 1 We affirm

and grant counsel’s petition to withdraw.

        In its findings of facts and conclusions of law, the trial court set forth

the relevant facts of this case as follows:

           On Friday, April 12th, 2013, Detective Bruckner received a
           report from a woman and her juvenile daughter

____________________________________________


1
    35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32), respectively.
J-S69013-15


       [(“Victim”)], that [Victim] had been sexually assaulted by
       [Appellant’s] juvenile son on Wednesday, April 10th, 2013.

       As per the policy of the Montgomery County District
       Attorney’s Office, Detective Bruckner was not permitted to
       interview the [Victim] without first arranging for her to be
       interviewed by Mission Kids. A Mission Kids interview of
       [Victim] took place on Tuesday, April 16th, 2013, or
       Monday, April 15th, 2013, which apparently was the first
       available slot following the weekend.

       On Friday, April 19th, 2013, Detective Bruckner applied for
       a search warrant for the residence of [Appellant’s] son….
       [Appellant] himself also resided in this apartment.       A
       search warrant was issued…that same date….

       [The first search warrant] provided on its face that the
       police were authorized to search the residence for physical
       evidence relating to the alleged sexual assault, including
       but not limited to bedding and clothing.

       Detective Bruckner and several other officers arrived at the
       apartment at approximately 12:55 p.m., on April 19th, []
       2013. The officers repeatedly knocked and announced
       their presence and purpose but received no response. The
       officers then discovered that the door to the apartment
       was unlocked and the officers entered the apartment
       continuing to announce their presence and purpose.

       As soon as the officers entered the apartment[,] Detective
       Bruckner became aware of an odor of marijuana. The
       officers then performed a protective sweep of the
       apartment for officer safety to ascertain that no one was
       hiding inside.

       The officers did not make forcible entry into any area of
       the apartment to perform their protective sweep but
       simply moved from room to room checking the rooms and
       closets to make sure no one was inside.

       Upon entering the master bedroom, during the course of
       the protective sweep, Detective Bruckner observed a pipe
       of the sort commonly used for smoking marijuana in plain
       view on a dresser. At this point the officers stopped their

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        search of the master bedroom and Detective Nicholas
        Oropeza left the apartment to seek a second [search]
        warrant to search for controlled substances and drug
        paraphernalia.

        The requested second [search] warrant was issued, that
        same date at approximately 2:15 p.m., following which, a
        search of the master bedroom for narcotics and drug-
        related paraphernalia was conducted resulting in the
        discovery and the seizure of [certain] items….

(N.T. Suppression, 8/27/14, at 59-61). Specifically, the search pursuant to

the second search warrant led to the discovery of: (1) a Reddi-Wip can with

a false bottom that contained seven grams of cocaine, four Xanax pills in a

cellophane wrapper, and marijuana; (2) two glass marijuana pipes; (3)

numerous plastic baggies regularly used in the sale of narcotics; (4) two

scales; (5) one thousand four hundred and sixty dollars ($1,460.00) in U.S.

currency; and (6) three glass vials with a liquid believed to be PCP inside.

Police also found items that connected Appellant to the master bedroom

where police found the contraband, including a court order addressed to

Appellant, a PECO Energy bill addressed to Appellant, a debit card in

Appellant’s name, a prescription pill bottle in Appellant’s name, and adult

male clothing.

     Procedurally, the Commonwealth charged Appellant with three counts

each of PWID and possession of a controlled substance, and four counts of

possession of drug paraphernalia.   On November 27, 2013, Appellant filed

an omnibus pre-trial motion, in which he sought the suppression of the

items seized during the execution of the second search warrant.     After a

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hearing on August 27, 2014, the court denied Appellant’s motion.

        That same day, Appellant proceeded to a bench trial. Prior to trial, the

Commonwealth withdrew one count of PWID, two counts of possession of a

controlled substance, and three counts of possession of drug paraphernalia.

The court convicted Appellant of two counts of PWID, and one count each of

possession of a controlled substance and possession of drug paraphernalia.

The court deferred sentencing pending the preparation of a pre-sentence

investigation (“PSI”) report.

        On December 4, 2014, the court sentenced Appellant to an aggregate

term of two and one-half (2½) to five (5) years’ imprisonment, followed by

one year of probation. On December 12, 2014, Appellant timely filed a post-

sentence motion and an amended post-sentence motion on January 27,

2015.     On March 24, 2015, the court denied Appellant’s post-sentence

motion. Appellant timely filed a notice of appeal on April 1, 2015. On April

15, 2015, the court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).          After the court

granted several extensions of time, Appellant’s counsel filed a statement of

intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4) on June 11,

2015.    On July 28, 2015, counsel filed an Anders brief and a petition for

leave to withdraw as counsel.

        As a preliminarily matter, counsel seeks to withdraw his representation

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d


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493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349

(2009). Anders and Santiago require counsel to: 1) petition the Court for

leave to withdraw, certifying that after a thorough review of the record,

counsel has concluded the issues to be raised are wholly frivolous; 2) file a

brief referring to anything in the record that might arguably support the

appeal; and 3) furnish a copy of the brief to the appellant and advise him of

his right to obtain new counsel or file a pro se brief to raise any additional

points the appellant deems worthy of review. Santiago, supra at 173-79,

978 A.2d at 358-61.          Substantial compliance with these requirements is

sufficient.   Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.

2007).

       In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

          Neither Anders nor McClendon[2] requires that counsel’s
          brief provide an argument of any sort, let alone the type of
          argument that counsel develops in a merits brief. To
          repeat, what the brief must provide under Anders are
          references to anything in the record that might arguably
          support the appeal.

                                       *       *   *

          Under Anders, the right to counsel is vindicated by
          counsel’s examination and assessment of the record and

____________________________________________


2
    Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).



                                           -5-
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         counsel’s references to anything       in the   record that
         arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

         [I]n the Anders brief that accompanies court-appointed
         counsel’s petition to withdraw, counsel must: (1) provide a
         summary of the procedural history and facts, with citations
         to the record; (2) refer to anything in the record that
         counsel believes arguably supports the appeal; (3) set
         forth counsel’s conclusion that the appeal is frivolous; and
         (4) state counsel’s reasons for concluding that the appeal
         is frivolous. Counsel should articulate the relevant facts of
         record, controlling case law, and/or statutes on point that
         have led to the conclusion that the appeal is frivolous.

Id. at 178-79, 978 A.2d at 361.

      Instantly, counsel filed a petition to withdraw.    The petition states

counsel conducted a conscientious review of the record and determined the

appeal is wholly frivolous.   Counsel also supplied Appellant with a copy of

the brief and a letter explaining Appellant’s right to retain new counsel or to

proceed pro se to raise any additional issues Appellant deems worthy of this

Court’s attention.   (See Letter to Appellant, dated 6/11/15, attached to

Petition for Leave to Withdraw as Counsel.)     In the Anders brief, counsel

provides a summary of the facts and procedural history of the case.

Counsel’s argument refers to relevant law that might arguably support

Appellant’s issues. Counsel further states the reasons for his conclusion that

the appeal is wholly frivolous. Therefore, counsel has substantially complied

with the requirements of Anders and Santiago.

      Counsel raises the following issues on Appellant’s behalf:


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        DID THE TRIAL [COURT] ABUSE [ITS] DISCRETION AND
        ERR AS A MATTER OF LAW BY FAILING TO SUPPRESS
        PHYSICAL EVIDENCE FOUND PURSUANT TO A SEARCH
        WARRANT ISSUED UPON FINDINGS MADE PURSUANT TO
        A PREVIOUS SEARCH WARRANT THAT CONTAINED STALE
        INFORMATION AND WAS OTHERWISE NOT SUPPORTED BY
        FACTS THAT ESTABLISHED PROBABLE CAUSE FOR THE
        INITIAL SEARCH?

        DID THE TRIAL [COURT] ABUSE [ITS] DISCRETION AND
        ERR AS A MATTER OF LAW BY FAILING TO SUPPRESS
        PHYSICAL EVIDENCE FOUND PURSUANT TO A SEARCH
        WARRANT WHEN THE SEARCH WARRANT WAS ISSUED
        UPON OBSERVATIONS MADE IN LOCATION THAT
        EXCEEDED THE LAWFUL SCOPE OF THE PREVIOUSLY
        ISSUED SEARCH WARRANT?

        DID THE TRIAL [COURT] ABUSE [ITS] DISCRETION AND
        ERR AS A MATTER OF LAW BY FAILING TO SUPPRESS
        PHYSICAL EVIDENCE FOUND PURSUANT TO A SEARCH
        WARRANT THAT WAS NOT SUPPORTED BY PROBABLE
        CAUSE DUE TO A LACK OF INDICIA THAT ANY DRUGS OR
        DRUG PARAPHERNALIA WOULD BE FOUND PURSUANT TO
        A SEARCH?

        DID THE TRIAL [COURT] ERR AS A MATTER OF LAW BY
        FINDING THAT THE EVIDENCE PRESENTED AT TRIAL WAS
        LEGALLY SUFFICIENT TO SUPPORT GUILTY VERDICTS ON
        ALL CHARGES?

(Anders Brief at 4).

     For purposes of disposition, we combine Appellant’s first three issues

on appeal. Appellant argues police used the search warrant related to the

sexual assault investigation regarding Appellant’s son to gain access to

Appellant’s apartment to look for narcotics. Appellant claims probable cause

did not exist for the first search warrant because it was based on stale

information, and the lack of probable cause for the first search warrant


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rendered the police entry into Appellant’s apartment unlawful. Alternatively,

Appellant complains the police obtained the evidence used to establish

probable cause for the second search warrant while outside the lawful scope

of the first search warrant.   Appellant also asserts the evidence obtained

during the execution of the first search warrant was insufficient to establish

the requisite probable cause for the second search warrant. For all of these

reasons, Appellant concludes the trial court should have suppressed the

evidence seized during the execution of the second search warrant, and this

Court should vacate Appellant’s judgment of sentence. We disagree.

      Our standard of review of the denial of a motion to suppress evidence

is as follows:

         [An appellate court’s] 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, [the appellate court is] bound by
         [those] 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 [the] 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 [trial court
         are] subject to plenary review.

Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa.Super. 2012),


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appeal denied, 618 Pa. 684, 57 A.3d 68 (2012). For a valid search warrant:

        Article I, Section 8 [of the Pennsylvania Constitution] and
        the    Fourth    Amendment      [to  the   United    States
        Constitution]…require that search warrants be supported
        by probable cause. The [linchpin] that has been developed
        to determine whether it is appropriate to issue a search
        warrant is the test of probable cause. Probable cause
        exists where the facts and circumstances within the
        affiant’s knowledge and of which he has reasonable
        trustworthy information are sufficient in themselves to
        warrant a man of reasonable caution in the belief that a
        search should be conducted.

        In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76
        L.Ed.2d 527 (1983), the United States Supreme Court
        established the totality of the circumstances test for
        determining whether a request for a search warrant under
        the Fourth Amendment is supported by probable cause.
        …[The Pennsylvania Supreme] Court [has] adopted the
        totality of the circumstance test for purposes of making
        and reviewing probable cause determinations under Article
        I, Section 8. In describing this test, [our Supreme Court]
        stated:

           Pursuant to the “totality of the circumstances” test
           set forth by the United States Supreme Court in
           [Gates, supra], the task of an issuing authority is
           simply to make a practical, common-sense decision
           whether, given all of the circumstances set forth in
           the affidavit before him, including the veracity and
           basis of knowledge of persons supplying hearsay
           information, there is a fair probability that
           contraband or evidence of a crime will be found in a
           particular place…. It is the duty of a court reviewing
           an issuing authority’s probable cause determination
           to ensure that the magistrate had a substantial basis
           for concluding that probable cause existed. In so
           doing, the reviewing court must accord deference to
           the issuing authority’s probable cause determination,
           and must view the information offered to establish
           probable cause in a common-sense, non-technical
           manner.


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                                 *     *      *

           Further, a reviewing court is not to conduct a de
           novo review of the issuing authority’s probable cause
           determination, but is simply to determine whether or
           not there is substantial evidence in the record
           supporting the decision to issue the warrant.

        Commonwealth v. Torres, 564 Pa. 86, 96-97, 101, 764
        A.2d 532, 537-38, 540 (2001).

        … A grudging or negative attitude by reviewing courts
        toward warrants…is inconsistent       with the   Fourth
        Amendment’s strong preference for searches conducted
        pursuant to a warrant; courts should not invalidate
        warrants by interpreting affidavits in a hypertechnical,
        rather than a commonsense, manner.

Commonwealth v. C. Jones, 605 Pa. 188, 199-200, 988 A.2d 649, 655

(2010), cert. denied, 562 U.S. 832, 131 S.Ct. 110, 178 L.Ed.2d 32 (2010)

(some quotations and internal citations omitted).

     “The requisite probable cause [for a search warrant] must exist at the

time the warrant is issued and be based on facts closely related in time to

the date of issuance.” Commonwealth v. T. Jones, 506 Pa. 262, 269, 484

A.2d 1383, 1387 (1984).     “Settled Pennsylvania law establishes that stale

information cannot provide probable cause in support of a warrant.”

Commonwealth v. Janda, 14 A.3d 147, 158 (Pa.Super. 2011). “There is

no hard and fast rule regarding what constitutes stale information; such

determinations must be made on a case-by-case basis.” Commonwealth

v. Vergotz, 616 A.2d 1379, 1382 (Pa.Super. 1992), appeal denied, 534 Pa.

648, 627 A.2d 179 (1993).     This Court applies a reasonableness standard


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when it determines the time limits to be placed on search warrants.      Id.

Importantly,

          [A]ge of the information supporting a warrant application
          is a factor in determining probable cause. If too old, the
          information is stale, and probable cause may no longer
          exist. Age alone, however, does not determine staleness.
          The determination of probable cause is not merely an
          exercise in counting the days or even months between the
          facts relied on and the issuance of the warrant. Rather,
          we must also examine the nature of the crime and the
          type of evidence.

Janda, supra, at 158-59 (internal citations omitted). “Mere lapse of time

between discovery of criminal activity and issuance of the warrant will not

necessarily dissipate probable cause.”       Commonwealth v. Dennis, 618

A.2d 972, 981 (Pa.Super. 1992), appeal denied, 535 Pa. 654, 634 A.2d 218

(1993).

      “The scope of a lawful search pursuant to a warrant is defined by the

object of the search and the places in which there is probable cause to

believe that it may be found.”    Commonwealth v. Taylor, 565 Pa. 140,

148, 771 A.2d 1261, 1265-66 (2001), cert. denied, 534 U.S. 994, 122 S.Ct.

462, 151 L.Ed.2d. 380 (2001). “[T]he search may not go beyond the scope

of the warrant.”    Commonwealth v. Eichelberger, 508 A.2d 589, 592

(Pa.Super. 1986), appeal denied, 515 Pa. 619, 531 A.2d 427 (1987).

Importantly, police may perform a protective sweep for officer safety without

violating the search warrant requirement of the Fourth Amendment, and

Article I, Section 8.   Taylor, supra.   “A protective sweep is a quick and


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limited search of premises…conducted to protect the safety of police officers

or others.” Id. at 150, 771 A.2d at 1267. There are two levels of protective

sweeps, which may be executed as follows:

         Pursuant to the first level of a protective sweep, without a
         showing of even reasonable suspicion, police officers may
         make cursory visual inspections of spaces immediately
         [adjacent to the area to be searched], which could conceal
         an assailant. The scope of the second level permits a
         search for attackers further away from the [area to be
         searched], provided that the officer who conducted the
         sweep can articulate specific facts to justify a reasonable
         fear for the safety of himself and others.

Id.   A protective sweep should not last any longer than is necessary to

dispel the fear of danger. Id. at 152, 771 A.2d at 1268.

      Where an officer is lawfully present at a particular location, detection

of an odor of marijuana constitutes sufficient probable cause to obtain a

search warrant. Commonwealth v. Johnson, 68 A.3d 930, 936 (Pa.Super.

2013).    See also Commonwealth v. Waddell, 61 A.3d 198, 215

(Pa.Super. 2012) (stating: “Once the odor of marijuana was detected

emanating from the residence, the threshold necessary to establish probable

cause to obtain a search warrant was met…”).

      Instantly, on April 12, 2013, Victim contacted police to report a sexual

assault allegedly perpetrated by Appellant’s juvenile son on April 10, 2013.

Per Montgomery County District Attorney’s Office policy, police had to

schedule a Mission Kids interview for Victim prior to obtaining additional

information about the alleged sexual assault.     Police scheduled the next


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available Mission Kids interview, which occurred on either April 15, 2013 or

April 16, 2013.    After Mission Kids interviewed Victim, police obtained a

search warrant for Appellant’s apartment on April 19, 2013. Police executed

the search warrant that same day.        Between April 12, 2013 and April 19,

2013, police also contacted Appellant to arrange an interview with

Appellant’s juvenile son. The total passage of time between Victim’s report

of the alleged sexual assault and the execution of the search warrant was

one week.     During this time, the police made consistent efforts to further

their   investigation   into   the   alleged    sexual   assault.   Under   these

circumstances, the information in the affidavit of probable cause was not

stale. See Janda, supra; Vergotz, supra. Thus, the first search warrant,

which authorized a search of Appellant’s residence for evidence related to

the sexual assault investigation, gave police lawful access to Appellant’s

apartment.

        Further, the first search warrant authorized a search of Appellant’s

residence for evidence in connection to the sexual assault investigation; it

did not limit the police search to a specific portion of the apartment. Upon

entry into Appellant’s residence, and per police protocol, police conducted a

protective sweep of the apartment.        The officers did a visual inspection of

the whole residence to determine if anyone was hiding.               During the

protective sweep, police saw drug paraphernalia in plain view on top of the

dresser in the master bedroom. Under these circumstances, police did not


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exceed the scope of the first search warrant because the warrant gave police

permission to search the residence as a whole, and police were permitted to

perform a cursory protective sweep for officer safety upon entry to the

apartment.    See Eichelberger, supra; Taylor, supra.         Thus, the police

legally obtained the information used to support the second search warrant.

      Finally, police smelled an odor of marijuana as soon as they entered

Appellant’s apartment to execute the first search warrant.         Police also

observed drug paraphernalia on top of the dresser in the master bedroom

during the protective sweep.     The odor of marijuana and the presence of

drug paraphernalia were sufficient to establish probable cause for the second

search warrant.     See Johnson, supra; Waddell, supra.        Therefore, the

court properly denied Appellant’s motion to suppress the evidence, and

Appellant’s first three issues on appeal warrant no relief.

      In his fourth issue, Appellant argues the evidence introduced at trial

did not prove that the drugs and drug paraphernalia found in the master

bedroom belonged to Appellant.      Appellant concludes the evidence at trial

was insufficient to support his possession of a controlled substance,

possession of drug paraphernalia, and PWID convictions, and this Court

should vacate his judgment of sentence. We disagree.

      A challenge to the sufficiency of the evidence implicates the following

legal principles:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at

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           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
           evidence. Moreover, in applying the above test, the entire
           record must be evaluated and all evidence actually
           received must be considered. Finally, the [finder] 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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

      The Crimes Code defines possession of a controlled substance as

follows:

           § 780-113. Prohibited acts; penalties

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

                                    *     *      *

           (a)(16) Knowingly or intentionally possessing a controlled
           or counterfeit substance by a person not registered under
           this act, or a practitioner not registered or licensed by the
           appropriate State board, unless the substance was
           obtained directly from, or pursuant to, a valid prescription
           order or order of a practitioner, or except as otherwise

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        authorized by this act.

35 P.S. § 780-113(a)(16).     When police do not find the drugs on the

defendant’s person, the Commonwealth is required to establish that the

defendant constructively possessed the drugs. Commonwealth v. Bricker,

882 A.2d 1008, 1014 (Pa.Super. 2005). “Constructive possession requires

proof of the ability to exercise conscious dominion over the [drugs], the

power to control the contraband and the intent to exercise such control.”

Commonwealth v. Petteway, 847 A.2d 713, 716 (Pa.Super. 2004).

“Constructive possession may be established by the totality of the

circumstances.” Bricker, supra, at 1014.

     Possession of drug paraphernalia is defined as:

        § 780-113. Prohibited acts; penalties

                                  *     *      *

        (a)(32) The use of, or possession with intent to use, drug
        paraphernalia for the purposes of planting, propagating,
        cultivating,    growing,      harvesting,      manufacturing,
        compounding,      converting,       producing,    processing,
        preparing, testing, analyzing, packing, repacking, storing,
        containing, concealing, injecting, ingesting, inhaling or
        otherwise introducing into the human body a controlled
        substance in violation of this act.

35 P.S. § 780-113(a)(32). Drug paraphernalia is defined in relevant part as:


        § 780-102. Definitions

                                  *     *      *

        “Drug paraphernalia” means all equipment, products
        and materials of any kind which are used, intended for use

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        or designed for use in…packaging, repackaging, storing,
        containing, concealing, injecting, ingesting, inhaling or
        otherwise introducing into the human body a controlled
        substance in violation of this act. …

                                 *     *      *

        In determining whether an object is drug paraphernalia, a
        court or other authority should consider, in addition to all
        other logically relevant factors, statements by an owner or
        by anyone in control of the object concerning its use…the
        proximity of the object, in time and space, to a direct
        violation of this act, the proximity of the object to
        controlled substances, the existence of any residue of
        controlled    substances      on    the    object,  direct  or
        circumstantial evidence of the intent of an owner, or of
        anyone in control of the object, to deliver it to persons who
        he knows, or should reasonably know, intend to use the
        object to facilitate a violation of this act…the existence and
        scope of legitimate uses for the object in the community,
        and expert testimony concerning its use.

35 P.S. § 780-102.      “To sustain a conviction for possession of drug

paraphernalia[,] the Commonwealth must establish that items possessed by

[the] defendant were used or intended to be used with a controlled

substance so as to constitute drug paraphernalia and this burden may be

met    by     the   Commonwealth       through    circumstantial    evidence.”

Commonwealth v. Coleman, 984 A.2d 998, 1001 (Pa.Super. 2009).

      The Crimes Code defines PWID as:

        § 780-113. Prohibited acts; penalties

                                 *     *      *

        (a)(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

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            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).      “To   convict   a   person   of   PWID,   the

Commonwealth must prove beyond a reasonable doubt that the defendant

possessed a controlled substance and did so with the intent to deliver it.”

Bricker, supra at 1015. When reviewing the sufficiency of the evidence to

support a PWID conviction, this Court considers “all facts and circumstances

surrounding the possession are relevant, and the Commonwealth may

establish the essential elements of the crime wholly by circumstantial

evidence.” Id. “Factors to consider in determining whether the drugs were

possessed with the intent to deliver include the particular method of

packaging, the form of the drug, and the behavior of the defendant.”

Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa.Super. 2003), appeal

denied, 577 Pa. 712, 847 A.2d 1280 (2004).

      Instantly, Detective Bruckner testified at trial that police found various

drugs and drug paraphernalia in the master bedroom of Appellant’s

residence, including a Reddi-Wip can with a false bottom regularly used to

conceal drugs, seven grams of cocaine, four Xanax pills in a cellophane

wrapper, marijuana, two glass marijuana pipes, numerous plastic baggies

regularly used in the sale of narcotics, two scales, one thousand four

hundred and sixty dollars ($1,460.00) in U.S. currency, and three glass vials

with a liquid believed to be PCP inside. Detective Bruckner also testified that


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police recovered the following items from the master bedroom where police

discovered the drugs and drug paraphernalia: (1) a court order addressed to

Appellant; (2) a PECO Energy bill addressed to Appellant; (3) a debit card in

Appellant’s name; (4) a prescription pill bottle in Appellant’s name; and (5)

adult male clothing.   This testimony demonstrated that Appellant had the

ability to exercise conscious dominion over the contraband found in his

residence, the power to control the contraband, and the intent to exercise

such control. See 35 P.S. § 780-113(a)(16); Petteway, supra. Detective

Bruckner’s testimony also established Appellant’s intent to use the drug

paraphernalia with the controlled substances found in Appellant’s bedroom.

See 35 P.S. § 780-113(a)(32); Coleman, supra. Thus, sufficient evidence

supported Appellant’s convictions for possession of a controlled substance

and possession of drug paraphernalia.

     Additionally, the Commonwealth presented the expert testimony of

Detective James Wood, who stated that the following evidence indicated

Appellant’s possession of the drugs with the intent to deliver: (1) the

quantity of the drugs; (2) the way the cocaine was packaged into smaller

packets; (3) the presence of baggies typically used in the sale of narcotics;

(4) the presence of scales; (5) the $1,460.00 in U.S. currency found in the

bedroom and the denominations of that currency; and (6) Appellant’s use of

the Reddi-Wip can to conceal the drugs.        Detective Wood’s testimony

established Appellant possessed the drugs with the intent to deliver; thus,


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sufficient evidence also supported Appellant’s conviction for PWID. See 35

P.S. § 780-113(a)(30); Bricker, supra. Therefore, Appellant’s fourth issue

on appeal has no merit. Accordingly, we affirm the judgment of sentence

and grant counsel’s petition to withdraw.

     Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/4/2016




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