J-S40009-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

MICHAEL D. TWYMAN

                        Appellant                  No. 2399 EDA 2015


           Appeal from the Judgment of Sentence July 8, 2015
             In the Court of Common Pleas of Chester County
           Criminal Division at No(s): CP-15-CR-0000940-2014


BEFORE: BOWES, MUNDY AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                             FILED JULY 15, 2016

     Michael D. Twyman appeals from his July 8, 2015 judgment of

sentence of thirty to sixty months of incarceration followed by one year of

probation imposed after his conviction for possession of a controlled

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

possession of marijuana, and possession of drug paraphernalia. We affirm.

     Around midnight on December 6, 2013, Appellant was a passenger in

a silver Audi hatchback being driven by James Allen.        While traveling

through Coatesville, Pennsylvania, local police officers familiar with Allen

spotted the two men. Corporal Kenneth Michels suspected Allen was driving

with a suspended license. His partner, Officer Robert Kuech, confirmed via
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the onboard computer that Allen’s license was suspended.               The officers

attempted to locate the vehicle, which had left their line of sight.

      Shortly thereafter, the officers discovered the Audi parked and

protruding into a roadway. No pedestrians were visible in the vicinity of the

parked car when Corporal Michels pulled behind the vehicle, activated his

lights, and initiated a traffic stop. Appellant opened the passenger side door

and exited the vehicle.    Officer Kuech, finding this behavior unusual for a

traffic stop, approached Appellant from the rear driver’s side of the Audi. As

Officer Kuech ordered Appellant to reenter the vehicle, he heard a hard-

plastic object strike the ground near Appellant. Since the officer’s view was

obstructed by the vehicle, he did not immediately ascertain what had fallen.

      Appellant complied and entered the vehicle. As he did so, Appellant

asked if he could retrieve his cellular telephone, which he had dropped.

Officer Kuech advised Appellant that he would recover the phone.              After

locating the phone, the officer observed a bag, which he recognized as being

filled with smaller bags of narcotics, resting four to six inches further under

the car. A field test revealed the larger bag contained sixty small bags of

crack cocaine, and one bag of marijuana. A search incident to arrest yielded

$699 dollars.

      The   Commonwealth charged Appellant with the             aforementioned

crimes, and a jury found Appellant guilty as charged.        Subsequently, the

court sentenced him to thirty to sixty months of incarceration followed by

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one year of probation. Appellant filed a timely notice of appeal and complied

with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal.      The trial court then authored its Rule

1925(a) opinion. This matter is now ready for our consideration.

      Appellant raises the following question for our review: “Was evidence

presented at trial sufficient to prove constructive possession to sustain

convictions for the following offenses:   possession with intent to deliver,

possession of a controlled substance, possession of a small amount of

marijuana, and possession of paraphernalia?”         Appellant’s brief at 2

(unnecessary capitalization omitted).

      We have observed that 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. Gonzalez, 109 A.3d 711, 716 (Pa.Super. 2015)

(citation omitted).

      Appellant’s sufficiency challenge relates to whether there was enough

proof that he constructively possessed the drugs. “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.”

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

Constructive possession has been defined as conscious dominion, i.e., “the

power to control the contraband and the intent to exercise that control.” Id.

Recognizing that constructive possession is not amenable to a bright line

test, we have held that it may be established by the totality of the

circumstances.    Commonwealth v. Woody, 679 A.2d 817 (Pa.Super.

1996).

      Appellant argues that the Commonwealth failed to adduce that he had

constructive possession of the narcotics found underneath the Audi.

Appellant’s brief at 9.      Specifically, he contends there is no evidence

indicating that he knew of the bag’s existence or location, that he made

furtive movements, or that he kicked or threw the contraband, as to signify

that he knew of the drugs or had the intent to control them.          Id. at 11.

Appellant asserts his conviction is based solely on his proximity to the



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contraband.   Id. at 12.   Thus, he concludes, the Commonwealth did not

prove beyond a reasonable doubt that Appellant constructively possessed

the bag found beneath the Audi. We disagree.

      Here, the Commonwealth offered evidence that, as Appellant exited

the vehicle, he dropped an item in his control out of the view of the officers.

Upon retrieving Appellant’s cellular phone, Officer Kuech also recovered a

bag of narcotics lying underneath the passenger side of the vehicle, mere

inches from the phone. Despite wet conditions caused by melting snow and

mist, neither the phone nor the bag was wet. The contraband, which was

found in line with the Audi’s tires, showed no signs of being crushed or

damaged. Furthermore, the officers testified that, at the time of the traffic

stop, no pedestrians were in the area. Finally, Appellant possessed a large

amount of cash, the majority of which consisted of twenty dollar bills. Many

of the individual bags were divided into amounts of crack cocaine worth

approximately twenty dollars.    Under the totality of the circumstances, we

find the evidence, together with all reasonable inferences drawn therefrom,

sufficient to establish beyond a reasonable doubt that Appellant possessed

the narcotics and threw them under the car to avoid detection.

      On similar facts in Commonwealth v. Roberts, 133 A.3d 759

(Pa.Super. 2016), we concluded that evidence was sufficient to support a

conviction for a possessory crime.         In Roberts, undercover officers

approached the defendant after he left a “known drug house.” Id. at 765.

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The defendant fled the officers and a pursuit ensued.   Id.   Following the

defendant’s apprehension, one of the officers realized he lost his radio

during the chase. Id. While retracing his steps, the officer discovered two

bags of narcotics and a cellular telephone bearing the defendant’s picture,

within a few feet of each other. Id. Based on this evidence, we found that

“the jury was free to accept the inference that the drugs were dropped by

[the defendant] during the pursuit.”     Id. at 768.    Similarly here, the

evidence presented by the Commonwealth supports the inference that

Appellant possessed the narcotics, but dropped them as he exited the

vehicle.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2016




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