J-S70035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DEATHRICE DWAYNE GRAY                      :
                                               :
                       Appellant               :   No. 825 MDA 2017

           Appeal from the Judgment of Sentence December 11, 2015
               In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0001900-2014


BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

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

        Deathrice Dwayne Gray1 appeals from the judgment of sentence

imposed on December 11, 2015, in the Court of Common Pleas of Luzerne

County. Gray was found guilty by the trial court of possession of a controlled

substance (heroin).2       The trial court sentenced Gray to six to 23 months’

imprisonment.3 The sole issue raised by Gray is a challenge to the sufficiency

of the evidence to sustain his conviction, based on his contention the

Commonwealth failed to prove he constructively possessed the heroin. For

the following reasons, we affirm.

____________________________________________


1   Appellant’s name also appears in the record as “Deathtice” Dwayne Gray.

2   35 P.S. § 780-113(a)(16).

3 On June 27, 2016, the trial court entered an order amending the sentence
to six to 12 months’ imprisonment. See Order, 6/27/2016; see also Trial
Court Opinion, 6/30/2017, at 1.
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     Previously, this Court discussed the background of this case, as follows:

     Appellant, Deathrice Dwayne Gray, appeals pro se from the
     judgment of sentence entered in the Luzerne County Court of
     Common Pleas, following his bench trial conviction for
     possession of a controlled substance (heroin). For the
     following reasons, we remand the matter with instructions
     and relinquish jurisdiction.

     The relevant facts and procedural history of this case are as
     follows. On February 12, 2014, police executed a search
     warrant at a residence in Hazleton, Pennsylvania. Police
     discovered money, drugs, and drug paraphernalia in the
     residence in close proximity to [Gray]. The Commonwealth
     charged [Gray] with possession of a controlled substance
     with the intent to deliver and simple possession. [Gray]
     initially retained private counsel to defend against the
     charges. Private counsel filed a motion to withdraw on
     November 24, 2014, claiming [Gray] had not honored their
     fee agreement and citing [Gray’s] complaints that he could
     no longer afford private counsel. The court granted counsel’s
     motion and directed [Gray] to apply for representation with
     the Public Defender's Office. [Gray] complied and obtained
     representation from the Public Defender. Several months
     later, however, the Public Defender sought to withdraw due
     to a conflict of interest. On April 7, 2015, the court appointed
     conflict counsel. Conflict counsel later withdrew his
     appearance, citing a breakdown in the attorney/client
     relationship. According to [Gray], conflict counsel failed to
     communicate with him; so, [Gray] borrowed money from
     family and friends to retain private counsel for trial.

     [Gray] proceeded to a bench trial on October 23, 2015, and
     was convicted of simple possession on October 26, 2015. On
     December 11, 2015, the court sentenced [Gray] to 6-23
     months’ imprisonment. After sentencing, the court permitted
     counsel to withdraw. [Gray] timely filed a pro se notice of
     appeal on December 24, 2015. On January 20, 2016, the
     court ordered [Gray] to file a Pa.R.A.P. 1925(b) statement,
     which [Gray] timely filed pro se on January 27, 2016. [Gray]
     filed an untimely post-sentence motion to reduce his
     sentence on February 5, 2016, which the court denied on



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      February 11, 2016, for lack of jurisdiction due to the pending
      appeal.

      On February 24, 2016, [Gray] filed a pro se motion in the
      trial court requesting appointment of counsel for his appeal,
      claiming he could not afford counsel. The court did not rule
      on the motion. On April 21, 2016, [Gray] filed an application
      for appointment of counsel in this Court, which this Court
      denied without prejudice, directing [Gray] to seek relief in the
      trial court. [Gray] filed another motion in the trial court for
      appointment of counsel on May 18, 2016; the court did not
      rule on that motion either. In light of [Gray’s] allegations of
      indigency and repeated requests for counsel, on September
      19, 2016, this Court remanded the matter to determine
      indigency status and/or consider the appointment of counsel
      in the interests of justice. Upon remand, the trial court
      scheduled a hearing for October 5, 2016. On October 11,
      2016, the trial court notified this Court that it was unable to
      assess [Gray’s] indigency status because [Gray] failed to
      appear at the hearing. The record shows the court sent notice
      of the hearing to an address where [Gray] no longer resides.

Commonwealth v. Gray, 159 A.3d 996 (Pa. Super. December 6, 2016)

(unpublished memorandum, at 1-3) (footnote omitted).

      This Court declined to proceed with the pro se appeal and remanded for

appointment of counsel, and the filing of post-sentence motions nunc pro tunc.

See id. Following the denial of Gray’s motion for modification of sentence,

this appeal followed.

      Gray contends the evidence is insufficient to sustain his conviction for

possession of a controlled substance “because he did nothing other than be

present at the residence where drugs were found[.]” Gray’s Brief, at 5.

      In reviewing a challenge to the sufficiency of the evidence, our standard

of review is well settled:




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         The standard we apply in reviewing the sufficiency of the evidence
         is whether viewing all the evidence admitted at trial in the light
         most favorable to the verdict winner, there is sufficient evidence
         to enable the fact-finder to find every element of the crime beyond
         a reasonable doubt. In applying the above test, we may not weigh
         the evidence and substitute our judgment for [that of] 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 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 trier of fact while passing upon the credibility of
         witnesses and the weight of the evidence produced, is free to
         believe all, part or none of the evidence.

Commonwealth v. Irvin, 134 A.3d 67, 75-76 (Pa. Super. 2016) (citation

omitted).

         The crime of possession of a controlled substance is defined in Section

780-113(a)(16) of The Controlled Substance, Drug, Device and Cosmetic Act

(Act):

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

               (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
               authorized by this act.

35 P.S. § 780-113(a)(16).




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     Because police did not recover the drugs or drug paraphernalia from

Gray’s person, the Commonwealth must establish Gray’s constructive

possession of the contraband to support his convictions.

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

     Commonwealth v. Brown, 2012 PA Super 119, 48 A.3d 426,
     430 (Pa. Super. 2012), appeal denied, 619 Pa. 697, 63 A.3d 1243
     (2013) (internal quotation marks and citation omitted).
     Additionally, it is possible for two people to have joint constructive
     possession of an item of contraband. Commonwealth v. Sanes,
     2008 PA Super 175, 955 A.2d 369, 373 (Pa. Super. 2008), appeal
     denied, 601 Pa. 696, 972 A.2d 521 (2009).

Commonwealth v. Hopkins, 67 A.3d 817, 820-21 (Pa. Super. 2013).

Furthermore,

     although “mere presence” at a crime scene cannot alone sustain
     a conviction for possession of contraband:

         a jury need not ignore presence, proximity and association
         when presented in conjunction with other evidence of guilt.
         Indeed, presence at the scene where drugs are being
         processed and packaged is a material and probative factor
         which the jury may consider. Drug dealers of any size and
         [illegal drug] manufacturers probably are reticent about
         allowing the unknowing to take view of or assist in the
         operation.




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Commonwealth v. Vargas, 108 A.3d 858, 869 (Pa. Super. 2014) (citation

omitted).

      Here, the trial court rejected Gray’s sufficiency challenge, finding that:

      Prior to the commencement of trial, the parties stipulated to the
      lab report which indicated that the controlled substance was 1.1
      grams of heroin. (N.T. 10/23/15 at 17). As part of their
      investigation of drug activity in the City of Hazleton, officers
      executed a search warrant on the residence located at 18-A Third
      Street. Id. at 36. As a result of the search, the heroin was located
      on an air mattress within “arms’ reach” of [Gray]. Id. at 36-42.

Trial Court Opinion, 7/30/2017, at 3. Based on our review, we agree with the

trial court.

      To the trial court’s discussion, we add that the Commonwealth’s

evidence showed a controlled buy was made inside the residence at 18-A Third

Street. N.T., 2/3/2016, at 35-36. After police secured a search warrant and

entered the residence, they found heroin and marijuana. Id. at 39, 41. “Mr.

Gray was on an air mattress, which is in the living room area. There was

clothing there, pants, and that’s where the money and the drugs were found.”

Id. at 42. The drugs were “within arms’ length” of Gray. Id.        No one else

was in the residence. Id. A digital scale was also recovered by police, and

documents with Gray’s name on them. Id.

      Gray argues the evidence was insufficient because the Commonwealth

provided no evidence that Gray was a legal owner of the residence by way of

lease agreement or deed. See Gray’s Brief at 6. He maintains his presence

at the crime scene is not enough to convict him. Gray’s argument, however,


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ignores our standard of review, which requires that we view the evidence in

the light most favorable to the Commonwealth as verdict winner. See Irvin,

supra.

         Here, the heroin was within arm’s reach of Gray, who was in the “small”4

living room area on an air mattress. In addition, police recovered a digital

scale.     The “totality of the evidence” demonstrates Gray’s constructive

possession of the heroin. See Hopkins, supra. Further, the Commonwealth

was under no obligation to prove that only Gray constructively possessed the

drugs found in the house. As noted above, two people can constructively

possess the same contraband. See id. Accordingly, we conclude the evidence

was sufficient to prove beyond a reasonable doubt that Gray was guilty of the

crime of possession of a controlled substance (heroin).

         Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/17/2018




____________________________________________


4   N.T., 2/3/2016, at 40.

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