J-S14015-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
MICHAEL WILLIAMS,                        :
                                         :
                 Appellant               : No. 735 EDA 2014

         Appeal from the Judgment of Sentence February 12, 2014,
               Court of Common Pleas, Philadelphia County,
             Criminal Division at No. CP-51-CR-0010059-2013

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                             FILED APRIL 21, 2015

     Michael Williams (“Williams”) appeals from the February 12, 2014

judgment of sentence entered by the Court of Common Pleas, Philadelphia

County, following a conviction of possession with intent to deliver a

controlled substance (“PWID”), 35 P.S. § 780-113(a)(30), and knowingly

and intentionally possessing a controlled substance (“K&I”), 35 P.S. § 780-

113(a)(16). For the reasons set forth herein, we affirm Williams’ conviction,

but vacate his judgment of sentence and remand for resentencing.

     The facts and procedural history is as follows:

           On July 18, 2013, at 12:45 p.m., Officer [David]
           Rausch was conducting surveillance on the 2300
           block of Nichols Street in the city and county of
           Philadelphia, Pennsylvania. The officer observed
           [Williams] standing outside the row homes between
           2314 and 2316 Nichols Street, "talking to a couple of
           gentlemen on the block." "At approximately 12:50
           [p.m.], an unknown black male [wearing] a white
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          and blue shirt and black pants approached [Williams]
          to engage in a brief conversation." The "unknown"
          male handed [Williams] money, which [Williams]
          placed in the back pocket of his shorts. [Williams]
          then walked across the street and entered an
          abandoned row home located at 2319 Nichols Street.
          [Williams] entered the premises through an unlocked
          door and remained inside for about twenty seconds.
          When [Williams] emerged, he walked back to the
          unknown male and "handed him small items," after
          which the individual walked away. Officer Rausch
          described this individual to back-up officers, but the
          officers could not locate him after he departed from
          [Williams]. (N.T., 2/10/14, pp. 14-18).

          A few minutes later, at approximately 1:00 p.m.,
          another black male wearing a blue shirt and tan
          pants approached [Williams] and handed him
          money, which [Williams] placed in the back pocket of
          his shorts. As before, [Williams] walked across the
          street, entered 2319 Nichols Street, and remained
          inside for about twenty seconds. When [Williams]
          emerged, he walked back to the unknown male and
          handed him "small items." Following this transaction,
          the unknown male walked away and was neither
          located nor stopped by back-up officers. (N.T.,
          2/10/14, pp. 18-19).

          At approximately 1:15 p.m., another individual
          approached [Williams] and handed him money,
          which [Williams] placed in the back pocket of his
          shorts. Same as the previous two transactions,
          [Williams] walked across the street, entered 2319
          Nichols Street, and remained inside for about twenty
          seconds. When [Williams] emerged, he walked back
          to the individual and handed him "items." Officer
          Rausch described this individual to back-up officers,
          including    Officer    [Steven]     Shippen,    who
          subsequently detained and identified the individual
          as Dwayne Carson. Officer Shippen recovered a
          silver metal container from Mr. Carson, which
          contained two Xanax pills, four Methadone pills, and
          one Roxicodone pill. (N.T., 2/10/14, pp. 19-20, 29).



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            Following his transaction with Mr. Carson, [Williams]
            walked down Nichols Street toward Ridge Avenue,
            upon which Officer Rausch directed back-up officers
            to apprehend him. The arresting officer recovered
            $185.00 from the back pocket of [Williams’] pants,
            and was informed by [Williams] that [Williams] lived
            not at 2319 Nichols Street -- which he was seen
            entering three times -- but several blocks away at
            2812 West Marsden Street. The arresting officer
            recovered no narcotics from [Williams’] person (N.T.,
            2/10/14, pp. 19-20, 27, 37).

            Officers Rausch and [John] Mulqueeney (among
            other officers) subsequently searched the premises
            at 2319 Nichols Street. [According to] Officer
            Mulqueeney [] the sole piece of furniture in the
            premises was a couch located about ten feet from
            the front door. The residence "was obviously
            abandoned" and was covered with trash "all over the
            place." Officer Mulqueeney observed an "amber pill
            bottle" sitting beside a couch cushion, which
            contained sixty-six (66) Endoset pills weighing a
            total of 28.64 grams. When Officer Mulqueeney
            searched beneath the couch cushion, he discovered
            "one clear plastic baggie containing five clear heat-
            sealed packets of ... crack cocaine," which weighed
            less than 2 grams. Although police officers
            discovered no paperwork linking [Williams] or
            anyone else to the abandoned property, [Williams]
            was the only person whom Officer Rausch observed
            enter or exit the premises. (N.T., 2/10/14, pp. 33-
            38).

Trial Court Opinion, 8/22/14, at 2-4.

      Williams was charged with PWID and K&I.       On February 10, 2014,

Williams waived his right to a jury trial and proceeded to a bench trial. At

trial, the Commonwealth presented the testimony of Officers Rausch,

Shippen, and Mulqueeney. Williams did not offer any witness or evidence.



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At the conclusion of the Commonwealth’s case, the trial court found Williams

guilty of both charges.

      On February 12, 2014, the trial court sentenced Williams to a

mandatory minimum of five to ten years of incarceration on the charge of

PWID. The trial court did not impose a penalty on the K&I charge. Williams

did not file a post-sentence motion challenging his convictions or sentence.

      On March 5, 2014, Williams filed a timely notice of appeal. On July 1,

2014, Williams filed a statement of matters complained of on appeal

pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure.

Pa.R.A.P. 1925(b).      On appeal, Williams raises the following issues for our

review:

            1. [Whether] the verdict is against the weight of the
            evidence because the evidence was not beyond a
            reasonable doubt to convict [Williams] of Possessing
            With the Intent to Deliver the narcotics inside the
            abandoned house[?]

            2. [Whether] the evidence was insufficient to support
            the verdict because there was insufficient evidence
            to convict [Williams] of the mandatory amount of
            narcotics recovered from inside the abandoned
            house[?]

Williams’ Brief at 3.

      For his first issue on appeal, Williams argues that the trial court’s

verdict is against the weight of the evidence. Id. at 8-10. Williams asserts

that the trial court “abused [its] discretion by accepting the Commonwealth’s

version of the events without considering the lack of evidence or



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contradictory evidence recovered from the different parties and property.”

Id. at 10. Williams contends that the verdict is against the weight of the

evidence because the Commonwealth failed to introduce evidence that

Williams sold narcotics to the first two individuals he was observed

interacting with, the narcotics recovered from the third alleged buyer did not

match the narcotics found inside the house, and there was no evidence

linking Williams to the house containing the narcotics. Id. at 9-10.

      After reviewing the record, we conclude that Williams waived this issue

for appellate review.     Rule 607 of the Pennsylvania Rules of Criminal

Procedure provides that “a weight of the evidence claim must be preserved

either in a post-sentence motion, by a written motion before sentencing, or

orally prior to sentencing.” Pa.R.Crim.P. 607. In this case, Williams did not

file a post-sentence motion. Moreover, Williams did not preserve this issue

in an oral or written motion prior to sentencing. We note that while the trial

court makes no mention of waiver and addresses Williams’ claim in its

1925(a) opinion, this Court has established that “[f]ailure to properly

preserve the claim will result in waiver, even if the trial court addresses the

issue in its opinion.”   Commonwealth v. Thompson, 93 A.3d 478, 490

(Pa. Super. 2014) (citing Commonwealth v. Lofton, 57 A.3d 1270, 1273

(Pa. Super. 2012)). Accordingly, we will not address the merits of Williams’

claim.




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      For his second issue on appeal, Williams presents a sufficiency of the

evidence claim.    Williams’ Brief at 10-12.1     Williams asserts that the

Commonwealth failed to prove that he “was in possession or constructive

possession of the narcotics found in the ‘abandoned property’ beyond a

reasonable doubt.” Id. at 11.

      Our standard of review in assessing the sufficiency of the evidence is

well settled:

            The standard we apply in reviewing the sufficiency of
            the evidence is whether viewing all of 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 proving
            every element of the crime beyond a reasonable
            doubt by means of wholly circumstantial evidence.
            Moreover, in applying the above test, the entire


1
  We note that in his concise statement of matters complained of on appeal,
Williams raises a sufficiency of the evidence claim, stating that “[t]here was
insufficient evidence to convict [him] of the mandatory amount of narcotics
recovered from inside the abandoned house.” Although we could find this
statement to be too vague to permit review, Williams’ brief presents
argument relating to his PWID conviction, claiming that “the Commonwealth
did not prove that [he] was in possession or constructive possession of the
narcotics found in the ‘abandoned property’ beyond a reasonable doubt.”
Williams’ Brief at 11. Accordingly, we address the merits of his claim.


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           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. Helsel, 53 A.3d 906, 917-18 (Pa. Super. 2012) (citing

Commonwealth v. Bricker, 41 A.3d 872, 877 (Pa. Super. 2012)).

      In order to sustain a conviction of PWID, “the Commonwealth must

prove beyond a reasonable doubt that the defendant possessed a controlled

substance and did so with the intent to deliver it.”     Commonwealth v.

Bricker, 882 A.2d 1008, 1015 (Pa. Super. 2005). It is well settled that “[i]n

narcotics possession cases, the Commonwealth may meet its burden by

showing actual, constructive, or joint constructive possession of the

contraband.” Commonwealth v. Vargas, __ A.3d ___, 2014 WL 7447678,

at *8 (Pa. Super. Dec. 31, 2014) (quoting Commonwealth v. Thompson,

428 A.2d 223, 224 (Pa. Super. 1981)).       In this case, the police did not

discover the narcotics on Williams’ person.      Thus, we must determine

whether the Commonwealth sufficiently established that Williams had

constructive possession of the narcotics.

      This Court has established that

            [c]onstructive 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



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            “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, 48 A.3d 426, 430 (Pa. Super. 2012) (quoting

Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (internal

citations omitted)). “The Commonwealth may sustain its burden by means

of wholly circumstantial evidence, and we must evaluate the entire trial

record and consider all evidence received against the defendant.” Brown,

48 A.3d at 430 (citing Commonwealth v. Markman, 916 A.2d 586, 598

(Pa. 2007)).

      In this case, the record reflects that the narcotics were discovered

inside of an abandoned house located at 2319 Nichols Street. N.T., 2/10/14,

at 23-24, 34-35. Officer Rausch testified that Williams did not use a key to

enter the property.   Id. at 16.   Officer Mulqueeney further testified that

“[t]he front door was open, it was shut, but you could tell it wasn’t latched.

It was a wooden door you could push open[.]” Id. at 35. The police officers

did not find anything in the house linking Williams to the property. Id. at

26.   Thus, the record does not contain evidence to establish exclusive

control over the property. In these situations, “where more than one person

has equal access to where drugs are stored, presence alone in conjunction

with such access will not prove conscious dominion over the contraband. ….

‘[T]he Commonwealth must introduce evidence connecting [the defendant]



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to the specific room or areas where the drugs were kept.’” Vargas, 2014

WL 7447678, at *8 (quoting Commonwealth v. Ocasio, 619 A.2d 352,

354-55 (Pa. Super. 1993)). Upon review of all the facts and circumstances

in this case, we conclude that the evidence presented at trial was sufficient

to connect Williams to the specific area where the police officers discovered

the narcotics to prove that he had control and possession of them.

      Officer Rausch testified that he observed Williams engage in three

separate hand-to-hand transactions wherein Williams would accept money

from an individual, walk into the front door of the abandoned house at 2319

Nichols Street, exit the property approximately twenty seconds later, and

hand the individual small items. Id. at 15-19. The police officers testified

that they discovered five heat-sealed packets of crack cocaine and an

unlabeled “amber pill bottle” containing sixty-six (66) pills, located inside the

abandoned house, nestled in a couch cushion.        Id. at 23-24, 34-35.     The

couch was located inside of the abandoned house, approximately ten feet

from the door. Id. at 34. The house contained no other furniture. Id. at

35.   The police officers’ testimony that Williams entered the house for a

mere twenty seconds therefore establishes that Williams only had enough

time to access those areas of the house close to the door. Thus, the police

officers’ testimony regarding the close proximity of the front door to the

couch and the testimony that the house was otherwise vacant, is sufficient




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to establish circumstantial evidence connecting Williams to the specific area

where the narcotics were found.

      Moreover, although the house located at 2319 Nichols Street was

abandoned and unsecured in that no key was needed to enter and the door

was not latched, the police officers testified that no one other than Williams

entered or exited the property during the relevant period in question. This

evidence establishes that although Williams was not the only person with

access to the property generally, Williams was the only person with access

to the property at the time the police officers discovered the narcotics. In

Commonwealth v. Hutchinson, 947 A.2d 800 (Pa. Super. 2008), this

Court determined that the appellee “had the ability and intent to exercise

conscious control and dominion over the [narcotics] … when only he had

access to the same at the relevant time.”       Id. at 807.    Pursuant to our

standard of review, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, we are not persuaded that the evidence

was so weak and inconclusive so as to be insufficient to establish that

Williams constructively possessed the narcotics discovered in the abandoned

house to support a conviction of PWID. Accordingly, we do not disturb the

trial court’s determination in this respect.

      Finally, we note that in his brief, Williams references the validity of his

sentence and states that “[i]f this Court wishes to retroactively apply

Commonwealth v. Newman, [99 A.3d 86, 97-98, 103 (Pa. Super. 2014)



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(en banc) (finding the imposition of a mandatory minimum sentence

unconstitutional and remanding the case “for the re-imposition of sentence

without consideration of any mandatory minimum sentence”)], Appellant

would be pleased to get a new sentencing hearing without any mandatory

minimum being applied.” Williams’ Brief at 11. In its opinion, the trial court

does not address the merits of any challenge to Williams’ sentence. The trial

court presumed that because Williams’ claim of error was vague and

because counsel did not dispute the five to ten year mandatory minimum or

the weight of the narcotics discovered at the abandoned house, Williams’

challenge was directed to the sufficiency of the evidence to sustain his PWID

conviction.

      Although Williams failed to preserve a challenge to his sentence on

appeal, this Court has established that “a challenge to a sentence premised

upon [mandatory minimum sentences] implicates the legality of the

sentence and cannot be waived on appeal.”        Newman, 99 A.3d at 90.

Moreover, it is well settled that this Court may address the legality of a

defendant’s sentence sua sponte.     Commonwealth v. Watley, 81 A.3d

108, 118 (Pa. Super. 2013) (en banc), appeal denied, 95 A.3d 277 (Pa.

2014). Accordingly, we will address the legality of Williams’ sentence.

      The trial court sentenced Williams to a mandatory minimum sentence

of five to ten years of incarceration under 18 Pa.C.S.A. § 7508(a)(2)(ii),

which provides, in relevant part:



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           § 7508. Drug trafficking sentencing and penalties

           (a) General rule.—Notwithstanding any other
           provisions of this or any other act to the contrary,
           the following provisions shall apply:

                                   ***

           (2) A person who is convicted of violating section
           13(a)(14), (30) or (37) of The Controlled Substance,
           Drug, Device and Cosmetic Act where the controlled
           substance or a mixture containing it is classified in
           Schedule I or Schedule II under section 4 of that act
           and is a narcotic drug shall, upon conviction, be
           sentenced to a mandatory minimum term of
           imprisonment and a fine as set forth in this
           subsection:

                                   ***

           (ii) when the aggregate weight of the compound or
           mixture containing the substance involved is at least
           ten grams and less than 100 grams; three years in
           prison and a fine of $15,000 or such larger amount
           as is sufficient to exhaust the assets utilized in the
           proceeds from the illegal activity; however, if at the
           time of sentencing the defendant has been convicted
           of another drug trafficking offense: five years in
           prison and $30,000 or such larger amount as is
           sufficient to exhaust the assets utilized in and the
           proceeds from the illegal activity;

                                   ***

18 Pa.C.S.A. § 7508(a)(2)(ii).

     In Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013), the United

States Supreme Court held that facts that increase mandatory minimum

sentences “must be submitted to the jury and found beyond a reasonable




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doubt.” Id. at 2155.2 This Court subsequently determined that the decision

in Alleyne renders “Pennsylvania mandatory minimum sentencing statutes

that do not pertain to prior convictions[] constitutionally infirm insofar as

they permit a judge to automatically increase a defendant’s sentence based

on a preponderance of the evidence standard.”         Watley, 81 A.3d at 117

(footnote omitted).

      In Thompson, this Court addressed the constitutionality of the

mandatory minimum sentence that is at issue in the case at bar, holding

that section 7508(a)(2)(ii) cannot be constitutionally applied in light of

Alleyne, as “the facts that permit[] application of [the] mandatory sentence

[are] not determined by the fact-finder nor proven beyond a reasonable

doubt.” Thompson, 93 A.3d at 493-94. This Court thereafter determined

that section 7508 is unconstitutional in its entirety under Alleyne.    See

Fennell, 105 A.3d at 20; see also Cardwell, 105 A.3d at 754-55.             In

reaching its conclusion, the Fennell and Cardwell Courts relied upon the

holding in Newman wherein this Court determined that “it is manifestly the

province of the General Assembly to determine what new procedures must

be   created   in   order   to   impose   mandatory   minimum   sentences   in



2
  This Court recently noted that under the Due Process Clause, a defendant
that elects a non-jury trial is “entitled to have the extra element of the
aggravated offense found by the factfinder beyond a reasonable doubt
pursuant to Alleyne.” Commonwealth v. Fennell, 105 A.3d 13, 17 (Pa.
Super. 2014); Commonwealth v. Cardwell, 105 A.3d 748, 751 (Pa.
Super. 2014).


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Pennsylvania following Alleyne.” Newman, 105 A.3d at 18. As this Court

has provided an express determination that the statute under which the trial

court sentenced Williams is unconstitutional, we are bound by the result.

Accordingly, we conclude that the trial court’s sentence pursuant to section

7508(a)(2)(ii) is illegal and must be vacated.

      Judgment of sentence vacated.          Case remanded for resentencing

without imposition of a mandatory minimum term. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/21/2015




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