J-S23017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER DAVIS,

                            Appellant                 No. 977 EDA 2014


          Appeal from the Judgment of Sentence November 18, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006306-2012


BEFORE: DONOHUE, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED JUNE 05, 2015

       Appellant, Christopher Davis, appeals from the judgment of sentence

entered November 18, 2013, following his conviction at a bench trial of

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

       The trial court summarized the facts and procedural history as follows:

              [Appellant] was arrested on December 28, 2011, after
       police recovered marijuana and a digital scale located in plain
       view on the coffee table in [Appellant’s] living room.         He
       appeared before this Court for a non-jury trial on November 18,
       2013. The evidence adduced at trial showed that, in the early
       hours of December 28, 2011, [Appellant] arrived home to the
       South Philadelphia house he shared with two roommates. Both
       roommates were away visiting family for the holidays.
       [Appellant] woke up early in the afternoon and walked through
       his living room to the backyard so he could feed his two pit bulls.
       While doing so, he accidently set off the home’s security system.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     Police Officer James Battista arrived shortly thereafter in
     response to the security alarm, and asked [Appellant] to produce
     identification and proof of residence. From the threshold of the
     front door, which opened into the living room, Officer Battista
     noticed a bag of marijuana and a digital scale sitting in plain
     view on the coffee table in the living room. As a result, he
     secured a search warrant and backup police officers arrived on
     the scene. In addition to the bag of marijuana and digital scale
     in the living room, a thorough search of the residence resulted in
     the discovery of a firearm on the living room couch underneath
     an article of clothing; 42 packets of crack cocaine, a digital scale,
     and two clear plastic bags with red apples containing new and
     unused clear packets in the front upstairs bedroom; $4,107 US
     currency from the rear bedroom; and two letters addressed to
     [Appellant] at that address. At the conclusion of testimony and
     argument, this Court found [Appellant] guilty of Possession of
     Marijuana and Possession of Drug Paraphernalia. This Court
     imposed no further penalty on the two charges and ordered
     [Appellant] to pay a fine of $300.

           On November 27, 2013, [Appellant] filed a “Motion under
     Rule 720 for Judgment of Acquittal.”1 This motion was denied by
     operation of law on March 27, 2014. On March 28, 2014,
     [Appellant] filed a Notice of Appeal to the Superior Court. On
     April 8, 2014, this Court ordered that defense counsel file a
     Concise Statement of Errors Complained of on Appeal, and
     defense counsel did so on April 21, 2014.
            1
             [Appellant] did not file any other post sentence
            motions. He failed to file a motion to reconsider or a
            motion for a new trial.

Trial Court Opinion, 6/30/14, at 1–2.

     Appellant raises the following issues on appeal:

       I.   Whether     [Appellant’s]  conviction   for  constructive
            possession of marijuana and drug paraphernalia was
            supported by legally sufficient evidence when the
            marijuana and scale were in a common area accessible to
            multiple individuals and there was no proof that he had
            any knowledge of the illegal contraband or that he
            exercised any dominion and control over same.


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       II.   Whether     [Appellant’s]  conviction  for   constructive
             possession of marijuana and drug paraphernalia was
             against the weight of the evidence when the marijuana
             and scale were in a common area accessible to multiple
             individuals and there was no proof that he had any
             knowledge of the illegal contraband or that he exercised
             any dominion and control over same.

      III.   Whether     [Appellant’s]  conviction    for    constructive
             possession of marijuana and drug paraphernalia should be
             vacated because the trial court erred by failing to consider
             the character evidence submitted.

Appellant’s Brief at 5.

      Appellant first asserts that there was insufficient evidence of record to

support the verdict. In reviewing the sufficiency of the evidence, we must

determine whether the evidence admitted at trial and all reasonable

inferences drawn therefrom, viewed in the light most favorable to the

Commonwealth as verdict winner, were sufficient to prove every element of

the offense beyond a reasonable doubt. Commonwealth v. Diamond, 83

A.3d 119 (Pa. 2013). It is within the province of the fact-finder to determine

the weight to be accorded to each witness’s testimony and to believe all,

part, or none of the evidence. Commonwealth v. James, 46 A.3d 776 (Pa.

Super. 2012). The Commonwealth may sustain its burden of proving every

element of the      crime   by   means   of wholly    circumstantial   evidence.

Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014). “[I]n

applying the above test, the entire record must be evaluated and all

evidence actually received must be considered.”           Commonwealth v.

Estepp, 17 A.3d 939, 944 (Pa. Super. 2011).          Moreover, as an appellate

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court, we may not re-weigh the evidence and substitute our judgment for

that of the fact-finder. Commonwealth v. Ratsamy, 934 A.2d 1233 (Pa.

2007).

     The critical inquiry on review of the sufficiency of the evidence to
     support a criminal conviction . . . does not require a court to ‘ask
     itself whether it believes that the evidence at the trial
     established guilt beyond a reasonable doubt.’ Instead, it must
     determine simply whether the evidence believed by the fact-
     finder was sufficient to support the verdict.

Id. at 1235–1236 (emphasis in original, internal citation omitted).

     As Appellant was not in physical possession of the contraband, the

Commonwealth     was   required   to    establish   that   he   had   constructive

possession of it. Commonwealth v. Kinard, 95 A.3d 279, 292 (Pa. Super.

2014). “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. Mudrick, 507 A.2d 1212,

1213 (Pa. 1986); see also Commonwealth v. Thompson, 779 A.2d 1195

(Pa. Super. 2001).

     The existence of constructive possession of a controlled
     substance is demonstrated by the ability to exercise a conscious
     dominion over the illegal substance: the power to control the
     illegal substance and the intent to exercise that control. An
     intent to maintain a conscious dominion may be inferred from
     the totality of the circumstances. Thus, circumstantial evidence
     may be used to establish constructive possession of the illegal
     substance.      Additionally, our Court has recognized that
     constructive possession may be found in one or more actors
     where the item in issue is in an area of joint control and equal
     access.

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Commonwealth v. Johnson, 26 A.3d 381, 1093–1094 (Pa. 2011) (internal

quotation marks and citations omitted).

       Appellant asserts that he was merely present at the residence, and

this mere presence was insufficient to prove that he constructively

possessed the marijuana and scale on the living room coffee table.

Appellant’s Brief at 12.      He suggests that his two roommates1 had equal,

unfettered access to the room where the marijuana was found. Appellant’s

Brief at 26.2 He cites multiple cases that are all distinguishable or lacking in

support. Id. at 16–24.

       The trial court has addressed the arguments put forth by Appellant,

and we rely on its cogent and thorough discussion for our disposition of the

issue, as follows:

              When viewed in its totality, the evidence adduced at trial
       was sufficient to support this [c]ourt’s finding that [Appellant]
       was in constructive possession of the marijuana and scale. The
       record shows that a bag of marijuana and a scale were in [sic]
       sitting out in plain view on the coffee table in [Appellant’s] living
       room. Officer Battista testified that when [Appellant] answered
       his front door, he could smell fresh marijuana and the drugs and
       scale were visible from where he was standing in the threshold.
       [Appellant] testified that he was the only person home, as his
____________________________________________


1
  Appellant’s roommates were out of town for the Christmas holiday, and
Appellant was alone in the house. N.T., 11/18/13, at 11, 82.
2
   Appellant has failed to include any citations to the record in making his
allegations concerning the testimony at trial. See e.g., Appellant’s Brief at
26. This Court will not comb the record for facts in support of an appellant’s
claim. Commonwealth v. Samuel, 102 A.3d 1001 (Pa. Super. 2014).



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     two roommates had returned home for the holidays. He further
     testified that he had entered the house early that morning
     through the front door and went upstairs; he later walked
     through the living room, past the coffee table, at least two more
     times to feed the pit bulls in the backyard. After police executed
     a search warrant, they recovered mail sent to [Appellant] at that
     address, a firearm on the living room couch; 42 packets of crack
     cocaine, several new and unused plastic bags, and a scale from
     the upstairs front bedroom; and more than $4000 in cash
     stuffed into a pillowcase in the upstairs back bedroom closet.

            These facts and circumstances, when viewed in their
     totality, are sufficient to prove that [Appellant] had the ability to
     exercise dominion and control of the marijuana and digital scale
     on the coffee table and that he had the intent to exercise that
     control. Contrary to [Appellant’s] assertions, he was more than
     “merely present” in the same room as the narcotics. [Appellant]
     resided in the house, he received bills at that address, and his
     name was on the lease. More importantly, the drugs were in
     plain view where they could easily be seen, and smelled, by
     anyone in the room. [Appellant] seems to grant tremendous
     import to the fact that the marijuana could have belonged to one
     of the other roommates as it was located in a jointly shared,
     common area of the house; however, as [Appellant] himself
     testified, no one else was home. It defies logic and reason that
     [Appellant] would have no knowledge of marijuana and a digital
     scale sitting out in the open on the coffee table in his own living
     room that he admittedly had walked through on more than one
     occasion that same day. See Commonwealth v. Murdrick, 510
     Pa. 305, 507 A.2d 1212 (1986) (finding constructive possession
     of cocaine where the defendant had joint control and equal
     access to the area where the drugs were found in plain view);
     see also Commonwealth v Aviles, 419 Pa. Super. 345, 615 A.2d
     398 (1992) (finding defendant constructively possessed narcotics
     found in middle and rear bedrooms of house, even though she
     slept in front bedroom, because she and co-tenants had joint
     and access and control over “the whole residence”).

           In his motion for acquittal, [Appellant] cites several cases
     where “mere presence” was not sufficient to establish
     constructive possession. See Commonwealth v. Tirpak, 272
     A.2d 476 (Pa. 1971) (mere presence at a “pot party,” where
     several party guests were in the same room with marijuana and
     used joints, was insufficient to establish constructive possession

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     by the defendant); Commonwealth v. Fortune, 318 A.2d 327
     (Pa. 1974) ([Appellant]’s presence in upstairs bedroom
     insufficient to establish constructive possession of heroin found
     on kitchen floor where four other people were in the kitchen at
     time of police raid); Commonwealth v. Chenet, 373 A.2d 1107
     (Pa. 1977) (insufficient evidence to support finding of
     constructive possession where police executed a search warrant
     on the defendant and his roommate’s home when no one was
     there and found marijuana in common areas). However, in all of
     these cases, except Chenet, the defendant was one of many
     people present in the area where drugs were found and there
     was little evidence to link that particular defendant with the
     contraband. In Chenet, the defendant wasn’t even home [when]
     police executed the warrant; therefore, there was no proof that
     the defendant had knowledge of the drugs. In contrast, in the
     case at bar, [Appellant] was at home, alone, and present when
     the police officer saw and smelled the fresh marijuana and digital
     scale sitting on the living room coffee table in plain view.

            [Appellant] cites Commonwealth v. Jackson, 659 A.2d 549
     (Pa. 1995) as being “directly on point” to the case at bar. In
     Jackson, police executed a search warrant on the defendant’s
     home and found narcotics and related drug-selling paraphernalia
     in the rear bedroom belonging to defendant’s brother, as well as
     inside a hall closet and in a kitchen cabinet. The Pennsylvania
     Supreme Court reversed the lower court’s finding of constructive
     possession, holding that there was no evidence that the
     defendant was aware of drug related activities going on in the
     house and that “mere association, suspicion or conjecture” was
     insufficient. One very important factor distinguishes this case
     from ours: the marijuana and scale found in the case at bar
     were in plain view.          [Appellant] was not convicted of
     possessing the cocaine found in the front bedroom of the house,
     nor was he tried and found guilty of possessing the firearm
     found on the couch under a blanket. This [c]ourt only found him
     guilty of . . . possessing the marijuana and digital scale located
     in plain view on the coffee table in the middle of the living
     room, where [Appellant] was home alone and had admittedly
     walked through the living room several times that very day.
     These facts and circumstances were sufficient to find that it was
     “more likely than not” that [Appellant] possessed the
     contraband. Brown, 48 A.3d at 430. Thus, when viewed under
     the totality of the circumstances and drawing all reasonable
     inferences therefrom in the light most favorable to the

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       Commonwealth, this [c]ourt properly found that [Appellant] had
       constructive possession of the marijuana and scale found openly
       displayed in plain view on the living room coffee table.

Trial Court Opinion, 6/30/14, at 6–8 (emphasis in original).         Thus, we

conclude that the evidence was sufficient to support the verdict.

       Appellant next asserts that the verdict was against the weight of the

evidence. The trial court found this claim waived due to Appellant’s failure

to raise it in a post-sentence motion.           Pennsylvania Rule of Criminal

Procedure 607 and its comment instruct that in order to preserve for

appellate review a claim that a verdict is against the weight of the evidence,

the issue must be raised with the trial judge in a motion for a new trial

either orally or in writing prior to sentencing, or in a post-sentence motion.

Pa.R.Crim.P. 607. Here, Appellant never filed with the trial court an oral or

written motion for a new trial prior to sentencing, or a post-sentence motion

challenging the weight of the evidence.3 We agree with the trial court that

Appellant has waived this matter, and we decline to address its merits.

Commonwealth v. Thompson, 93 A.3d 478, 491 (Pa. Super. 2014).

       Finally, Appellant contends that because the Commonwealth stipulated

to the admission of good character evidence, all of Appellant’s testimony

“should be deemed accurate.” Appellant’s Brief at 37. Thus, Appellant avers

____________________________________________


3
   Appellant’s Motion for Judgment of Acquittal challenged the sufficiency of
the evidence. Pa.R.Crim.P. 720. Christopher Davis Motion under PA Crim.
P. 720 for Judgment of Acquittal, 11/27/13.



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that because Appellant testified that he was not aware of the marijuana and

scale in plain view in the living room, the trial court was required to accept

all of his testimony “as true and credible.” This claim is absurd.

      The trial court specifically concluded that it “found [Appellant’s]

testimony that he had no knowledge of the drugs and scale to be incredible.”

Trial Court Opinion, 6/30/14, at 10. As fact-finder, the trial court was “free

to believe all, part, or none of the evidence and to determine the credibility

of the witnesses.” Commonwealth v. Ferguson, 107 A.3d 206, 213 (Pa.

Super. 2015).    Moreover, the Commonwealth’s stipulation was simply that

various witnesses would have testified to Appellant’s good character “for the

traits of being law-abiding and honest.” N.T., 11/18/13, at 108. It was not

a stipulation as to truth of the testimony. Id. Indeed, the trial judge, as

fact-finder, was required to “weigh and consider the character evidence in

connection with all the other evidence in the case.”      Commonwealth v.

Sandusky, 77 A.3d 663, 673 (Pa. Super. 2013).          Finally, in his Pa.R.A.P.

1925(b) statement, Appellant maintained that the trial court “did not give

proper weight to the [character evidence] when determining the guilt of

[Appellant],” and in his appellate brief, he contends the trial court failed to

consider it at all.   Concise Statement of Errors, 4/21/14, at 1; Appellant’s

Brief at 34.    This allegation is merely another aspect of a weight-of-the-

evidence claim, which we already determined is waived herein.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2015




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