J-S57004-14

NON-PRECEDENTIAL DECISION             SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
BRYAN JOHNS,                              :
                                          :
                   Appellant              : No. 1470 EDA 2013

            Appeal from the Judgment of Sentence April 25, 2013,
                Court of Common Pleas, Philadelphia County,
              Criminal Division at No. CP-51-CR-0004774-2011

BEFORE: DONOHUE, MUNDY and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED OCTOBER 06, 2014



sentence entered by the Philadelphia County Court of Common Pleas

following his convictions of possession of a controlled substance with intent

to deliver and possession of drug paraphernalia.1 We affirm.

       The testimony adduced at trial reveals the following relevant facts. At

approximately 9:00 p.m. on February 10, 2011, Officer Jeffrey Middleton, a



Enforcement Team, set up surveillance in the 1300 block of East Price

Street.   N.T., 2/26/13, at 32, 35.    He was in plain clothes and on foot,

approximately 50 to 60 feet from the house located at 1351 East Price

Street.   Id. at 35.   In the one hour and twenty minutes he conducted



1
    35 P.S. § 780-113(a)(30), (32).
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surveillance, he observed on three occasions people come onto the porch at

1351 East Price Street, engage in a brief conversation with Johns and hand

Johns an unknown amount of money. Id. at 41, 49-50, 52. On all three

occasions, Johns thereafter walked inside the house, returned two-to-three

                                                                        eton

could not see from a distance. Id. at 41-43, 49-50, 52. Officer Middleton

radioed his backup officers each time the purchasers left the porch of 1351

East Price Street, and Officer Jennifer Skrocki effectuated the arrest of the

second purchaser, Gal                               Id. at 44-45, 50, 52-53,

101.     Officer Skrocki recovered two clear vials with clear lids containing

crack cocaine from Whitaker. Id. at 100.

       After the third transaction, Johns left the porch of 1351 East Price

Street. Id. at 54. Officer Middleton radioed to his backup officers to stop

Johns, which was done by Officer Seante Warren. Id. at 55. He recovered



at 11.    No narcotics were recovered from Johns.      N.T., 2/26/11, at 89.

When police filled out the biographical report, Johns provided 1351 East

Price Street as his address. Id. at 104.



that no one was inside. Id. at 56. Believing there would be evidence and

contraband inside, the police then obtained a search warrant for 1351 East

Price Street. Id. at 57-58. From a bedroom on the third floor of the house



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Pennsylvania identification card; a scale; eight clear baggies with an apple

logo; numerous new, unused red-tinted baggies; a box of sandwich bags; a

clear bag with new, unused clear vials with clear lids; and a gray box with

two sandwich bags, one containing 103 clear glass vials with plastic lids that

were filled with crack cocaine and the other containing 26 red-tinted packets

filled with marijuana. Id. at 59-60. According to Officer Middleton, the vials

containing the narcotics recovered from Whitaker were identical to the vials

recovered from the search of the house. Id. at 61.



and stated that Johns did not live at 1351 East Price Street in February of

2011.   N.T., 2/27/13, at 94.   He testified that he returned home from a

meeting at approximately 8:15 p.m., at which time Johns was helping his

grandmother unload groceries.    Id. at 95-96.    According to Johns Sr., no

more than six minutes later, the police came and placed him and other

friends and family members who were at the house in handcuffs. Id. at 97-

98.   He did not observe Johns selling drugs.    Id. at 100.   Johns Sr. was

unaware that there were drugs in a third-floor bedroom in his house. Id. at

102. He testified that there were two bedrooms located on the third floor of



needed a place to stay. Id.




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house sometimes, Johns Sr. testified that Johns never slept on the third

floor. Id. at 112.

      After two days of testimony, the jury convicted Johns of the

aforementioned offenses. On April 25, 2013, the trial court sentenced Johns

to two to four years of incarceration followed by six years of probation.

Johns did not file any post-sentence motions.     He filed a timely notice of

appeal on May 23, 2013, followed by a court-ordered concise statement of

errors complained of on appeal. He raises two issues for our review:

         1. Whether the evidence was sufficient to support a
            conviction for possession with intent to deliver [a]
            controlled substance and related offenses?

         2. Whether [the] verdict was against the weight of the
            evidence?




Whether sufficient evidence exists to support the verdict is a question of

law; our standard of review is de novo

Commonwealth v. Murray, 83 A.3d 137, 151 (Pa. 2013). We review the

evidence in the light most favorable to the verdict winner to determine

whether there is sufficient evidence to allow the jury to find every element of

a crime beyond a reasonable doubt.       Commonwealth v. Cahill, 95 A.3d

298, 300 (Pa. Super. 2014).

            In applying the above test, we may not weigh the
            evidence and substitute our judgment for the fact-



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              finder. In addition, we note that the facts and
              circumstances established by the Commonwealth
              need not preclude every possibility of innocence. Any

              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.

Id. (citation omitted).

        Johns asserts that the evidence presented was insufficient to prove

                                                                         at

9-12.    The trial court found that the Commonwealth presented adequate

evidence that Johns constructively possessed the contraband, warranting his

convictions. Trial Court Opinion, 11/21/13, at 7-8.

        The trial court is correct in finding that because Johns was not in

actual physical possession of the drugs seized from the residence, the

Commonwealth had to prove constructive possession. Commonwealth v.

Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013), appeal denied, 78 A.3d 1090

(Pa. 2013).

              Constructive possession is a legal fiction, a pragmatic
              construct to deal with the realities of criminal law
              enforcement. Constructive possession is an inference



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            arising from a set of facts that possession of the
            contraband was more likely than not. 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.

Id. at 820-21 (citation omitted).

      The evidence presented reveals that police observed Johns selling

drugs from the porch of 1351 East Price Street.      N.T., 2/26/13, at 41-43,

49-50, 52. Police recovered the drugs Johns sold to Whitaker, which were

packaged identically to drugs found on the third floor of 1351 East Price

Street. Id. at 61, 100. In a drawer located in the same bedroom, police

                                     tification card and a piece of mail bearing

his name. Id. at 59-60. Although the identification card did not list 1351



there.    Id.   at 104.     This evidence    sufficiently proves       that   Johns

constructively possessed the drugs in question.      See Commonwealth v.

Walker, 874 A.2d 667, 678 (Pa. Super. 2005) (constructive possession of

drugs found in a basement office where the defendant was present at the

home when police conducted the search; the defendant told police he lived



      Johns states that it is his belief that police planted the Pennsylvania

identification card and mail bearing his name in the third floor bedroom. He




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asserts that this belief is supported by the fact that the police included



Johns supposedly did not have his identification card on him, and the fact

that the police did not take any photographs of the mail allegedly found on

                                     -11.   We disagree.   First, viewing the

evidence in the light most favorable to the Commonwealth, as our standard

of review requires, the record does not support a finding that the police

planted the items.      Second, this challenge implicates the weight of the

evidence, not its sufficiency, and thus entitles him to no relief on his

challenge to the sufficiency of the evidence.    As the evidence of record

supports the verdict

     As his second issue on appeal, Johns asserts that the weight of the

                                                             -13. This issue

is waived, as Johns failed to raise it either at sentencing or in a post-

sentence motion.       Pa.R.Crim.P. 607(A); Commonwealth v. Thompson,

93 A.3d 478, 490 (Pa. Super. 2014).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/6/2014



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