J-S43006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMES BROWN,

                            Appellant                No. 3529 EDA 2013


          Appeal from the Judgment of Sentence of October 24, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001988-2012


BEFORE: GANTMAN, P.J., PANELLA AND OLSON, JJ.

MEMORANDUM BY OLSON, J.:                           FILED AUGUST 19, 2015

       Appellant, James Brown, appeals from the judgment of sentence

entered on October 24, 2013, as made final by the denial of Appellant’s

post-sentence motion on November 12, 2013. We affirm.

       The trial court ably and thoroughly summarized the factual and

procedural posture of this case. As the trial court explained:

         On June 3, 2011, police arrested and charged Appellant with
         possession of a controlled substance with intent to deliver
         [(“PWID”)], conspiracy to commit PWID, possession of an
         instrument of crime [(“PIC”)],[1] and other related charges.
         On June 25, 2013, Appellant proceeded to a jury trial on the
         charges of PWID, conspiracy to commit PWID, and PIC.

                                           ...
____________________________________________


1
  35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903(c), and 18 Pa.C.S.A.
§ 907(a), respectively.
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       [During Appellant’s trial], Police Officer Gary Francis
       testified that[,] on May 24, 2011, in the late afternoon, he
       [and] his partner[,] Police Officer Bradford Mitchell[, were]
       conducting surveillance on the 5500 block of Crowson
       Street[, in Philadelphia]. Officer Francis testified that he
       was at that area with his partner based on information from
       a confidential informant [(“CI”),] regarding alleged narcotics
       sales on the 5500 block of Crowson Street. . . .

       Officer Francis testified that they first drove by the area that
       day looking specifically for the addresses of 5542 and 5534
       Crowson Street, and when they did, they saw [Appellant]
       and another male[, named] Darnell Cooper[,] standing on
       the front porch [of] 5542 Crowson Street. The officers met
       the CI and gave him/her pre-recorded buy money and
       directed the CI to the location of 5542 Crowson Street.
       Officer Francis testified that he observed the CI approach
       [Appellant] and Mr. Cooper [and begin] a conversation with
       the two men. The officer testified that[,] after [] the brief
       conversation, Appellant left 5542 Crowson Street and
       walked down [the street] to [] go inside [of] 5534 Crowson
       Street. Then Appellant came back to 5542 Crowson and
       approached the CI. The CI handed [Appellant] the pre-
       recorded buy money in exchange for small objects which
       [Appellant gave] him. The CI left the area and met with
       Officer Mitchell and gave the officer three vials containing []
       crack cocaine and one packet of [] crack cocaine which was
       placed on [a] property receipt.

       . . . Officer Francis testified [that, on the next day, he and
       Officer Mitchell] went back to the same area at around the
       same time, to continue [their] investigation of [Appellant].
       Officer Francis testified that . . . they again saw [Appellant]
       and Mr. Cooper standing on the front porch of 5542
       Crowson Street. They then went and met with the same CI
       and performed the same procedure as the day before,
       where the CI was given pre-recorded buy money and
       directed to the same area. Officer Francis testified that he
       observed the CI again approach [Appellant] and[,] after a
       brief conversation, Appellant left 5542 Crowson Street,
       walked down to and went inside 5534 Crowson Street[, and
       came] back to 5542 Crowson[, where Appellant] accept[ed]
       the pre-recorded buy money from the CI in exchange for

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       small objects[,] which Appellant [gave] to the CI. The CI
       then left and met again with Officer Mitchell, this time
       giving him two clear packets of [] crack cocaine, which
       again was place[d] on [a] property receipt.

       On May 31, 2011, Officer Francis testified[,] he and Officer
       Mitchell went back to that same location around the same
       time and again observed Appellant and Mr. Cooper standing
       on the front porch of 5542 Crowson Street. Officer Francis
       testified that they set up surveillance and observed two
       different females approach [Appellant] at two different
       times and engage in the same type of activity that the
       officers had witnessed the CI had with Appellant on the two
       other days. Officer Francis also testified that he contacted a
       uniformed police officer to stop and [ask Appellant] and Mr.
       Cooper for identification. [Appellant] was not arrested at
       that time as the officers were trying to further their
       investigation and to see whether there were any other
       locations involved besides 5542 and 5534 Crowson Street. .
       . . [Officer Francis also testified that, following the
       interaction between the uniformed police officer and
       Appellant and Mr. Cooper, Appellant and Mr. Cooper
       retreated inside of 5542 Crowson Street.            N.T. Trial,
       6/26/13, at 86-90 and 107.]

       On June 2, 2011, Officer Mitchell went back to the same
       area himself with the same CI and performed the same
       procedure as the [prior two buys], where the CI was given
       pre-recorded buy money and directed to [5542 Crowson
       Street]. Officer Mitchell testified that both Appellant and
       Mr. Cooper were again in front of 5542 Crowson Street and
       this time Mr. Cooper approached the CI and after a short
       conversation with the CI, Mr. Cooper went and entered []
       5534 Crowson Street. After about a minute, Mr. Cooper
       exited 5534 Crowson Street[,] went back to the CI[,] and
       handed [the CI] something in exchange for the pre-
       recorded buy money. The CI [] left the area and Officer
       Mitchell [started to follow the CI]. . . . Mr. Cooper [then]
       went back [and walked inside of] 5542 Crowson Street.
       Officer Mitchell [] met with the CI[,] who turned over to him
       two clear packets [] containing [] crack cocaine.

       Based on this information[,] the officers obtained a search
       and seizure warrant for 5542 and 5534 Crowson Street. On

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        June 3, 2011, the officers went back to the location with the
        search and seizure warrant. Officer Mitchell testified that
        they first executed the search warrant on the property of
        5542 Crowson Street. [“Darnell Cooper” was identified as
        the resident of 5542 Crowson Street. N.T. Trial, 6/26/13, at
        126-127 and 167.] . . .

        After being let in by Mr. Cooper’s mother, Officer Mitchell
        testified that he confiscated a .38 revolver loaded with five
        live rounds of ammunition from the dining room area on top
        of a [china] cabinet. Also confiscated from that same
        [china] cabinet[] was a clear plastic bag with 26 purple
        packets each containing . . . crack cocaine, other unused
        purple packets, as well as a scale. Officer Mitchell testified
        that based on his years of experience [the paraphernalia]
        recovered [was] used specifically for packaging and
        weighing narcotics. . . .

        All the items recovered were placed on [a] property receipt.
        Officer Mitchell then testified that they [] executed the
        search warrant on 5534 Crowson Street. The officers had
        to make a forced entry because no one answered the door.
        There was nothing recovered from that location as it was
        empty other than some work tools, as it looked like the
        house was being renovated. [Appellant and] Mr. Cooper
        were placed under arrest outside of 5542 Crowson Street.

        [During trial, the parties stipulated that all of the alleged
        crack cocaine that was either purchased by the CI or found
        at 5542 Crowson Street tested positive for cocaine. N.T.
        Trial, 6/26/13, at 155-157.]

                                     ...

        On June 27, 2013, the jury found Appellant guilty of PWID,
        conspiracy to commit PWID, and PIC. On October 24, 2013,
        [the trial court] sentenced Appellant [to serve an aggregate
        term of three-and-a-half to nine years in prison for his
        convictions].

Trial Court Opinion, 9/5/14, at 1-5 (internal citations omitted and some

internal capitalization omitted).



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      On November 12, 2013, the trial court denied Appellant’s timely post-

sentence motion.     Appellant filed a timely notice of appeal and Appellant

now raises one claim on appeal:

        Whether the evidence was insufficient to support the verdict
        of guilty on the charge of possession of an instrument of
        crime (gun)?

Appellant’s Brief at 4.

      Appellant claims that the evidence was insufficient to support his PIC

conviction.   We review Appellant’s sufficiency of the evidence challenge

under the following standard:

        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 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 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.




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Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en

banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806

(Pa. Super. 2008).

       According to Appellant, the evidence was insufficient to support his PIC

conviction because there was no evidence that he possessed the firearm.

Specifically, Appellant claims that the Commonwealth failed to demonstrate

“that [Appellant] knew that the gun was atop the china cabinet in [Darnell

Cooper’s] residence[, at 5542 Crowson Street].”        Appellant’s Brief at 14

(emphasis in original). This claim fails.2

       “In [] possession cases, the Commonwealth may meet its burden by

showing actual, constructive, or joint constructive possession of the

contraband.”      Commonwealth v. Thompson, 428 A.2d 223, 224 (Pa.
____________________________________________


2
    As we have summarized:

         To prove PIC, the Commonwealth must demonstrate that
         the defendant “possesses any instrument of crime with
         intent to employ it criminally.” 18 Pa.C.S.A. § 907. An
         instrument of crime is defined as “[a]nything specially made
         or specially adapted for criminal use” or “[a]nything used
         for criminal purposes and possessed by the actor under
         circumstances not manifestly appropriate for lawful uses it
         may have.” 18 Pa.C.S.A. § 907(d). It is undisputed that a
         gun can be an instrument of crime.

Commonwealth v. Stokes, 38 A.3d 846, 854 (Pa. Super. 2011). On
appeal, Appellant claims only that the Commonwealth failed to prove “that
[Appellant] knew that the gun was atop the china cabinet in [Darnell
Cooper’s] residence[, at 5542 Crowson Street].” Appellant’s Brief at 14
(emphasis in original). Our review is thus limited to the specific claim
Appellant raises on appeal.



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Super. 1981).      Actual possession is proven “by showing . . . [that the

contraband was] found on the [defendant’s] person.”          Commonwealth v.

Macolino, 469 A.2d 132, 134 (Pa. 1983).                If the contraband is not

discovered on the defendant’s person, the Commonwealth may satisfy its

evidentiary   burden   by   proving    that    the   defendant   had   constructive

possession of the contraband.         Id.     “Constructive possession has been

defined as the ability to exercise a conscious dominion over the illegal

[contraband]:      the power to control the contraband and the intent to

exercise that control.” Id.

      With respect to the element of “knowledge” in a possessory offense,

this Court held:

        an awareness of the presence of the items which [the
        defendant] was accused of having [is] an essential element
        of his supposed intent to control. But this knowledge need
        not be proven by his admission of such knowledge, or by
        testimony of his associates that he saw these articles. The
        defendant’s knowledge of the presence of these
        articles may be inferred from all the surrounding
        circumstances.

Commonwealth v. Gladden, 311 A.2d 711, 712 (Pa. Super. 1973) (en

banc) (emphasis added) (internal quotations and citations omitted) (some

internal capitalization omitted).

      On appeal, Appellant claims that the Commonwealth failed to prove

“that [Appellant] knew that the gun was atop the china cabinet in [Darnell

Cooper’s] residence[, at 5542 Crowson Street].”           Appellant’s Brief at 14

(emphasis omitted).      However, viewing the evidence in the light most


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favorable to the Commonwealth, we conclude that the evidence was

sufficient to prove that Appellant knew that the gun was on top of the china

cabinet.

     At trial, the Commonwealth proved that Appellant and Darnell Cooper

were involved in a conspiracy to sell crack cocaine and that they jointly

possessed the crack cocaine, the drug paraphernalia, and the firearm that

was found in or on the china cabinet inside of 5542 Crowson Street.      To

summarize, viewing the evidence in the light most favorable to the

Commonwealth, the Commonwealth proved that:          Appellant and Darnell

Cooper stationed themselves on the front porch of 5542 Crowson Street to

meet cocaine purchasers; 5542 Crowson Street was a furnished and

occupied house that the Commonwealth identified as belonging to “Darnell

Cooper;” the prospective cocaine purchasers would walk up to 5542 Crowson

Street and, from the sidewalk, would speak to Appellant and Mr. Cooper;

while Appellant and Mr. Cooper stood on the front porch of 5542 Crowson

Street, Appellant and Mr. Cooper would culminate their agreement with the

buyers to sell crack cocaine; after arriving at their agreement, either

Appellant or Mr. Cooper would enter the (otherwise empty and unfurnished)

house at 5534 Crowson Street and retrieve a specific amount of crack

cocaine; after retrieving the crack cocaine, Appellant or Mr. Cooper would

walk back to the sidewalk in front of 5542 Crowson Street and exchange the

crack cocaine with the purchaser for money; and, at the conclusion of the

sale, Appellant or Mr. Cooper would walk back up to the front porch of 5542

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Crowson Street and stand ready to make another sale. Further, at trial, the

Commonwealth proved that Appellant was permitted entry into 5542

Crowson Street, as Officer Francis testified that Appellant and Mr. Cooper

retreated into 5542 Crowson Street on May 31, 2011, after being questioned

by the police. Finally, the Commonwealth proved at trial that, at the time of

the search: there was no crack cocaine inside of the empty house at 5534

Crowson Street; there was a substantial amount of crack cocaine inside of

the occupied house at 5542 Crowson Street; all of the cocaine found in 5542

Crowson Street was inside of a china cabinet and was individually packaged

in “purple packets;” also inside of the china cabinet were empty “purple

packets” and a scale that was used to weigh narcotics; and, on top of the

same china cabinet that contained all of the crack cocaine and drug-dealing

paraphernalia was a .38 caliber revolver.

     We conclude that, viewing this evidence in the light most favorable to

the Commonwealth – and giving the Commonwealth every reasonable

inference from these facts – the evidence is clearly sufficient to prove that

Appellant “knew that the gun was atop the china cabinet.” Appellant’s Brief

at 14 (emphasis omitted).       Certainly, the evidence demonstrates that

Appellant and Mr. Cooper used the otherwise empty and unfurnished house

at 5534 Crowson Street as their daily “stash house,” but used the occupied

and furnished home at 5542 Crowson Street as the base of their joint, illicit,

drug-dealing operation. Further, the evidence demonstrates that Appellant

and Mr. Cooper used the china cabinet inside of 5542 Crowson Street to

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store all of their crack cocaine and related, drug-dealing paraphernalia and

instruments – including the firearm. Thus, a reasonable juror could conclude

that the firearm was jointly possessed by Appellant and Mr. Cooper to

protect their joint, illegal operation.   The evidence was thus sufficient to

prove that Appellant knew the firearm was on top of the china cabinet. See

Gladden, 311 A.2d at 712-713 (holding that “[t]he defendant’s knowledge

of the presence of [the] articles may be inferred from all the surrounding

circumstances”); see also Stokes, 38 A.3d at 854 (holding that the totality

of the circumstances proved the defendant was aware of, and constructively

possessed, the firearm that was discovered in the home).

      Appellant’s sufficiency of the evidence claim fails.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2015




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