J.A21005/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                           Appellee         :
                                            :
                    v.                      :
                                            :
KAALEEM WILLIAMS,                           :
                                            :
                           Appellant        :     No. 1937 EDA 2013

              Appeal from the Judgment of Sentence June 7, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0000450-2012

BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED AUGUST 28, 2015

        Appellant, Kaaleem Williams,1 appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Plea after he was found

guilty of, inter alia, possession with intent to deliver controlled substances2

(“PWID”), possessing a firearm with manufacturer number altered, 3 and

conspiracy.4 He asserts the evidence was insufficient to sustain the verdicts

and the imposition of a mandatory minimum sentence under 42 Pa.C.S. §

*
    Former Justice specially assigned to the Superior Court.
1
 The appeal of Appellant’s co-defendant, Alex Banks, is pending at 1852
EDA 2013.
2
    35 P.S. § 780-113(a)(30).
3
    18 Pa.C.S. § 6110.2.
4
    18 Pa.C.S. § 903.
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9712.15 is illegal under Alleyne v. United States, 133 S. Ct. 2151 (2013).

We affirm the convictions, vacate the judgment of sentence and remand for

resentencing.

      The trial court summarized the evidence adduced at Appellant and the

co-defendant’s joint suppression hearing and nonjury trial as follows:

         [T]he Commonwealth presented the testimony of
         Philadelphia Police Investigator Daniel Thompson and
         Detective Timothy Connell and the following facts were
         established. The Officers testified credibly that around
         3:00 A.M. on December 6, 2011 five Philadelphia warrant
         officers arrived at 1716 North 55th Street in Philadelphia,
         Pennsylvania, to execute an arrest warrant for a resident
         of that address named Shaquita Brown. Three Officers
         were present, knocking on the front door while the
         remaining two Officers covered the rear of the property.
         Before entering the residence and during the subsequent
         search, Officers were under the belief that this property
         was a single family home. The Officer[s] testified that it
         was a regular twin house with a single front door with one
         doorbell and one lock. There was no intercom system, no
         sign of multiple mailboxes or apartment numbers or
         exterior locks on each door.

             After a few minutes of knocking, one of the tenants
         answered the door; the Officers identified themselves and
         explained that they had a warrant for Shaquita Brown.
         This tenant was shown a picture, stated that he did not
         know her, admitted the officers into the entryway of the
         first floor and subsequently into his room to search for Ms.
         Brown. The Officers’ search of the room yielded no results

5
  Section 9712.1 provided, inter alia, that “[a]ny person who is convicted of
[PWID] when at the time of the offense the person or the person’s
accomplice is in physical possession or control of a firearm, whether visible .
. . or within the actor’s or accomplice’s reach or in close proximity to the
controlled substance, shall likewise be sentenced to a minimum sentence of
at least five years of total confinement.”




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       and the tenant suggested that the Officers check the other
       rooms of the residence. The Officers proceeded to knock
       on the remaining doors in the hallway, following the same
       procedure of identifying themselves, stating that they were
       looking for resident Shaquita Brown, being admitted and
       searching the room. It took a few minutes of knocking on
       each door before they were answered and the inhabitants
       of each room appeared to have been sleeping with the
       lights turned off. The search of these rooms also yielded
       no results.

          About twenty minutes after initially entering the
       building, the Officers reached the fourth and final door.
       Again, the Officers knocked on the door, which they
       described as a regular wooden bedroom door, and it took
       two to three minutes before [Appellant] responded asking,
       “Who’s there?”       The Officers identified themselves,
       [Appellant] opened the door, was shown a picture of
       Shaquita Brown and a copy of the arrest warrant. The
       Officers asked if they could enter the room to search for
       Ms. Brown and [Appellant] said “okay”, agreeing to let
       them enter. . . .

          Upon entering the room to begin their search, the
       Officers immediately noticed the co-defendant[, Alex
       Banks,] sitting on the bed. Both [Appellant] and co-
       defendant were fully clothed and wearing shoes. The room
       was described as similar to the others in the home — a
       regular style bedroom with an open doorway (but no door)
       leading into the bathroom. The room was small and
       contained only a twin sized futon bed; small refrigerator,
       broken dresser and television. The lights were on in
       addition to the television with the movie “Juice” playing.

          As the Officers began their search for Ms. Brown in the
       room, Officer Jones approached the co-defendant who was
       seated on the bed to show him a picture of Ms. Brown for
       identification. Upon approaching [Appellant], the Officer
       looked to his left and saw what he believed to be narcotics
       in plain view in the broken dresser drawer that was
       completely missing its front panel. Officer Jones alerted
       the other Officers that there was something in the
       drawer—a “white-chunky substance” in plastic bags being
       held inside of a bigger clear plastic bag—that he believed


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           to be crack cocaine. Upon further investigation of the
           drawer, the Officers were also able to view the handle of a
           handgun which prompted them to secure [Appellant] and
           codefendant as a cautionary measure to ensure the
           Officers’ safety. The Officers alerted their Sergeant to the
           discovery and were given orders to secure the scene and
           continue their search for Ms. Brown. While searching for
           her under the bed, an additional firearm, which they
           described as a “small submachine gun” with a bit longer
           barrel and a bigger clip was discovered. At the foot of the
           bed near the front door, a third handgun was recovered.
           The subsequent search of the bathroom also led to the
           discovery of “a big black trashbag” that was “full of
           marijuana”

              Ms. Brown was not found in the room, so the Officers
           were ordered by their Sergeant to secure the contraband
           that they discovered by placing it in evidence bags, leaving
           them in the room, and transporting [Appellant] and co-
           defendant to the Southwest Detectives headquarters.
           [Appellant and the co-defendant] provided different home
           addresses, neither of which was that residence. Officers
           secured the front and rear of the residence when they
           arrived and no one was seen exiting.         Based on the
           contraband discovered during the search for Ms. Brown,
           additional Officers obtained and executed a search warrant
           in order to recover the items. . . .

           [T]he seizure analysis establish[ed] that 28.08 grams of
           crack cocaine were discovered in addition to 2.12 pounds
           of what tested positive as marijuana from the trash bags;
           that whoever possessed the drugs possessed them with
           the intent to deliver based on the amount, paraphernalia,
           scale and value—approximately $1,000 in crack cocaine
           and $3,000 in marijuana; the ballistics report establishing
           that two of the three firearms were operable at the time of
           recovery, while the third became operable after recovery
           and insertion of a new magazine; and that the serial
           number of the semi-automatic weapon was defaced by
           abrasion, gauging and restored by chemical etching.[6]


6
    Neither Appellant nor the co-defendant testified at trial.



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Trial Ct. Op., 7/14/14, at 2-6 (record citations omitted).     On January 25,

2013, the trial court found Appellant guilty of PWID, possessing a firearm

with manufacturer number altered, and conspiracy.       On June 7, 2013, the

court imposed an aggregate sentence of five to ten years’ imprisonment,

based, in part, on the mandatory minimum sentence in 42 Pa.C.S. § 9712.1.

This timely appeal followed.7

      Appellant presents the following questions for review:

            Was not the evidence insufficient for conviction on all
         charges, insofar as the Commonwealth failed to prove that
         [Appellant] actually or constructively possessed the
         narcotics, paraphernalia, or firearms at issue, or conspired
         to do so?

            Was not [Appellant’s] sentence illegal, in so far as he
         was subjected to a mandatory minimum sentence pursuant
         to 42 Pa.C.S. § 9712.1, which has been found to be
         unconstitutional?

Appellant’s Brief at 4.

      Appellant first claims the evidence was insufficient to sustain the trial

court’s verdicts because “[t]here [was] no evidence whatsoever that [he]

lived in the apartment or was anything other than a transitory guest.” Id. at

11.   He asserts the contraband was “hidden away in a dresser, under the

bed, or in a black plastic trash bag in the bathroom” and there was “no

evidence [he] ever exercised control[,] ever even touched them or knew

about them.”     Id.      According to Appellant, “the facts here are far less

7
  Appellant timely complied with the trial court’s order to file and serve a
Pa.R.A.P. 1925(b) statement.



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damaging than those” in cases where the evidence of constructive

possession was found to be lacking. Id. at 13 (discussing Commonwealth

v. Rodriguez, 618 A.2d 1007 (Pa. Super. 1993), and United States v.

Jenkins, 90 F.3d 814 (3d Cir. 1996)). Similarly, Appellant asserts his mere

presence in the apartment did not establish his participation in or knowledge

of a conspiratorial agreement.      Id. at 14-15.     We are constrained to

disagree.

      Our review is governed by the following principles:

         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 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 proof 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 the
         evidence actually received must be considered. . . .

Commonwealth v. Bricker, 882 A.2d 1008, 1014 (Pa. Super. 2005)

(citation omitted).

         Constructive possession requires proof of the ability to
         exercise conscious dominion over the substance, the power
         to control the contraband, and the intent to exercise such



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         control. Constructive possession may be established by
         the totality of the circumstances. . . .

Id. (citations omitted).   However, “‘[g]uilt by association is unacceptable.’

Further, ‘mere presence of one person, among a group at a scene of

contraband, is not a strong factor indicative of guilt.’” Commonwealth v.

Thompson, 779 A.2d 1195, 1199 (Pa. Super. 2001) (citations omitted).

      We note that in both Rodriguez and Jenkins, the evidence

established that other parties were responsible for the residence searched or

the contraband found therein.     In Rodriguez, officers executed a search

warrant on an apartment and arrested Joseph Aquino. See Rodriguez, 618

A.2d at 1008. Aquino was identified as the perpetrator in a drug sale that

gave rise to the search warrant, was in physical possession of contraband

and cash, and had mail in his name in the apartment.            Id.   Officers

recovered additional contraband in the apartment. Id. Officers also found

the defendant hiding in a closet, next to a jacket with three baggies of

cocaine inside a cigarette pack in the side pocket. Id. The defendant was

arrested following a struggle. Id. The defendant had no contraband on his

person and had no personal items in the apartment.       However, he was in

physical possession of a key to the apartment. Id. Following his conviction,

this Court concluded the defendant’s possession of the key and presence in

Aquino’s apartment was insufficient to prove constructive possession of the

contraband.   Id. at 1009.     We emphasized there were no indication he




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resided at the apartment, engaged in criminal activity, or was aware of the

presence of contraband. Id.

      In Jenkins, officers pursued two suspects into an apartment.

Jenkins, 90 F.3d at 816.      There, they found the defendant and another

individual, Sam Stallings, seated on a couch, in their underwear, with three

bags of cocaine, firearms, and paraphernalia for packaging the cocaine on

the coffee table in front of them. Id. Stallings and one of the suspects who

initially led officer to the apartment were identified as residents of the

apartment.    Id. at 817.     The Jenkins Court reversed the defendant’s

conviction, concluding there was no “decisive nexus” between the defendant

and the contraband beyond the evidence of his proximity to the contraband

and his presence in Stallings apartment. Id. at 820.

      Thus, Rodriguez and Jenkins emphasized the absence of a sufficient

nexus establishing control over the contraband vis-à-vis a party implicated

in the criminal activity.   See Rodriguez, 618 A.2d at 1009; see also

Jenkins, 90 F.3d at 820. Although it is well settled that “mere presence” is

insufficient to establish constructive possession under those circumstances,

this Court has also opined that a fact-finder

             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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         United States v. Robinson, 978 F.2d 1554, 1557–1558
         (10th Cir. 1992) (internal quotations and citations
         omitted); see also Rivas v. United States, 783 A.2d
         125, 138 (D.C. 2001) (en banc) (“a claim of innocent
         presence becomes decidedly less plausible in an
         environment (vehicular or otherwise) that is rife with
         evidence of ongoing drug production or distribution, such
         as a manufacturing or cutting facility, a warehouse, or a
         staging or preparation area where a large quantity of
         drugs or drug paraphernalia is exposed to view”); United
         States v. Batista–Polanco, 927 F.2d 14, 18 (1st Cir.
         1991) (casting doubt upon the “hypothesis that
         participants in a [large-scale heroin packaging] scheme
         would permit a noncontributing interloper to remain for an
         extended period of time in a small apartment while their
         conspicuous criminal conduct continued unabated [since
         s]uch is not normally the conduct that one would expect of
         conspirators engaged in conduct which by its nature is
         kept secret from outsiders”) (internal quotations, citations,
         and corrections omitted); United States v. Staten, 581
         F.2d 878, 885 n. 67 (D.C. Cir. 1978) (“[i]t would seem
         that the voluntary presence of the accused in an area
         obviously devoted to preparation of drugs for distribution
         is a circumstance potently indicative of his involvement in
         the operation”).

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

banc).

     Instantly, the record, when viewed in a light most favorable to the

Commonwealth, provided a reasonable basis for the trial court’s finding that

the “small room” in which Appellant and the co-defendant were found “was

most likely used exclusively for packaging drugs.” See Trial Ct. Op. at 12.

We cannot disregard (1) the presence of $4,000 worth of narcotics—

including the “giant garbage bag” containing marijuana and vials located

near the shower, (2) the presence of multiple firearms—one of which had its


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serial number obliterated, or (3) the absence of any paraphernalia for

personal use. See Vargas, 108 A.3d at 869-70. The combination of these

factors all strengthened the inference that the apartment was a location for

securing narcotics that were packaged for future sales. See id.

     Moreover, the evidence did not give rise to a suggestion of innocent

presence in the room.      See Rodriguez, 618 A.2d at 1009; see also

Jenkins, 90 F.3d at 820.     The only furnishings were a futon-style bed, a

small refrigerator, a dresser, and a television. N.T., 1/25/13, at 30, 37-38.

The dresser only contained “a T-shirt or two,” and there was no evidence of

mail addressed to any individual. Id. at 52-53. Both Appellant and the co-

defendant provided police officers information that they did not live in the

building. Neither Appellant nor the co-defendant had a relationship to the

apartment or a legitimate occupant of the building, despite their presence in

the apartment at 3:00 A.M.

     We also note the record belies Appellant’s assertion that he was

unaware of the contraband.     Instantly, the arresting officer testified the

suspected cocaine and the handle of the firearm located in the broken

drawer was immediately apparent.       See N.T., 1/25/13, at 31-32.      The

record further established that the doorway to the bathroom was open, the

trash bag in the bathroom was left open, and the vials and marijuana in the

trash bag were similarly in plain view. Id. at 36, 39. Thus, we detect no




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merit to Appellant’s assertion that he had no knowledge of the narcotics or

firearms.

      In sum, we discern no error in the trial court’s determination that

Appellant and the co-defendant were not mere social visitors.           Rather,

based on the totality of the circumstances—including the nature of the

apartment and the indicia that it was exclusively used to store contraband

for sale—we conclude that the court was entitled to find that Appellant and

the co-defendant constructively possessed the contraband.      In contrast to

Rodriguez and Jenkins, there was no evidence an identified party used the

apartment to sell drugs or was responsible for packaging the drugs.

Accordingly, we discern no merit to Appellant’s arguments that the absence

of evidence regarding his connection to the apartment or the contraband

warranted relief.

      With respect to Appellant’s conspiracy conviction, we note that

         “to sustain a conviction for criminal conspiracy, the
         Commonwealth must establish that the defendant (1)
         entered into an agreement to commit or aid in an unlawful
         act with another person or persons, (2) with a shared
         criminal intent and (3) an overt act was done in
         furtherance of the conspiracy.” . . .

            The essence of a criminal conspiracy is the common
            understanding that a particular criminal objective is
            to be accomplished.      Mere association with the
            perpetrators, mere presence at the scene, or mere
            knowledge of the crime is insufficient. Rather, the
            Commonwealth must prove that the defendant
            shared the criminal intent, i.e., that the [defendant]
            was an active participant in the criminal enterprise
            and that he had knowledge of the conspiratorial


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            agreement. The defendant does not need to commit
            the overt act; a co-conspirator may commit the overt
            act.

             “Proof of a conspiracy is almost always extracted from
         circumstantial evidence. The Commonwealth may present
         a ‘web of evidence’ linking the defendant to the conspiracy
         beyond a reasonable doubt. The evidence must, however,
         rise above mere suspicion or possibility of guilty collusion.”
         We have held that, “[a]mong the circumstances which are
         relevant, but not sufficient by themselves, to prove a
         corrupt confederation are: (1) an association between
         alleged conspirators; (2) knowledge of the commission of
         the crime; (3) presence at the scene of the crime; and (4)
         in some situations, participation in the object of the
         conspiracy.”

Vargas, 108 A.3d at 873-74 (citations omitted).

      As we have discussed above, the evidence gave rise to an inference

that Appellant and the co-defendant were, at a minimum, participants in a

conspiracy to store and secure narcotics for future sales.      In light of that

same evidence, we discern no basis upon which to disturb the trial court’s

determination that there existed a criminal agreement to so do.           See id.

Thus, no relief is due.

      Lastly, Appellant claims his sentence, which was based on the

mandatory minimum sentence under 42 Pa.C.S. § 9712.1, is illegal under

Alleyne.   Appellant’s Brief at 45.    The Commonwealth does not object to

resentencing without reference to Section 9712.1. Commonwealth’s Brief at

24-25.

      This Court has held that Section 9712.1 is unconstitutional in its

entirety. See Commonwealth v. Newman, 99 A.3d 86, 103 (Pa. Super.


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2014) (en banc). Moreover, an Alleyne challenge is available to defendants

whose cases are on direct appeal. See id.; Commonwealth v. Riggle, ___

A.3d ___, ___, 2015 WL 4094427 at *4 (Pa. Super. July 7, 2015).

Therefore, we remand for resentencing “without consideration of any

mandatory minimum sentence.”8           See Newman, 99 A.3d at 103.

Accordingly, we affirm the convictions, vacate the judgment of sentence,

and remand this matter for resentencing.

      Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/28/2015




8
  We note that before trial, the Commonwealth also asserted that a
mandatory minimum sentence under 18 Pa.C.S. § 7508, for the weights of
the controlled substances, could apply. N.T., 1/25/13, at 6. However,
Section 7508 has also been held unconstitutional in light of Alleyne and
Newman. See Commonwealth v. Mosley, 114 A.3d 1072, 1089-91 (Pa.
Super. 2015).



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