J-S74014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
ABIJAH HINES                            :
                                        :
                  Appellant             :   No. 2437 EDA 2016

            Appeal from the Judgment of Sentence July 19, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0004698-2015


BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY BOWES, J.:                           FILED MARCH 27, 2018

      Abijah Hines appeals from the judgment of sentence of nine to twenty-

three months incarceration followed by five years probation imposed

following his convictions for possession with intent to deliver, possession of

controlled substances, receipt of stolen property, and possession of an

instrument of crime. We affirm.

      The trial court set forth the facts in its Pa.R.A.P. 1925(a) Opinion,

which we adopt herein.

      Detective Theodore Manko testified that on March 14, 2015 at
      approximately 7:45 AM, he executed a search and seizure
      warrant on the property located at 1637 South 59th Street.
      Upon entering the residence, Detective Manko found the
      Defendant in the kitchen area and another male by the front
      door. Detective Manko testified that he was investigating a
      domestic incident at the residence and was looking for any and
      all weapons or instruments of crime as well as proof of
      ownership or occupancy.       Upon securing the two males,
      Detective Manko immediately recovered a knife and firearm
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      ammunition. He proceeded to the back of the residence and
      found court documents in the Defendant's name in a back
      bedroom. In the bathroom, he recovered a rifle behind a service
      panel, which he had observed to be slightly ajar. He detected an
      odor of marijuana, initially under the kitchen sink, but
      subsequently noticed it throughout the house. He believed there
      was marijuana being stored beneath the floorboards for that
      reason. In the closet of the shared dining room area, Detective
      Manko ripped up some floor boards and recovered a blue bag
      with four gallon-sized bags full of marijuana and a Smith &
      Wesson handgun. Detective Manko described the residence as a
      two-bedroom apartment with a kitchen, bathroom and dining
      area. The dining area is in the back of the house, abutting the
      Defendant's bedroom. The substance identified by Detective
      Manko as marijuana was later tested with positive results for
      marijuana. Additionally, the Detective discovered scales and
      sandwich bags.      Everything recovered was placed on a
      corresponding property receipt. The firearm check on the Smith
      & Wesson handgun revealed that it had been reported stolen
      from Georgia. The check conducted on the rifle came back
      inconclusive.

      Sergeant Robert Albertini of the Atlanta, Georgia Police
      Department testified that it was his .38 caliber Smith & Wesson
      handgun that had been stolen from his vehicle along with his
      wallet. The serial number from the gun registered to him
      matched the gun recovered in the Defendant's home. This .38
      caliber handgun had a partially obliterated serial number on the
      left side of the frame under the cylinder, but the serial number
      printed elsewhere was legible.

Trial Court Opinion, 2/3/17, at 2-3.

      Appellant was convicted following a bench trial and sentenced as

indicated. He filed a timely notice of appeal and complied with the order to

file a concise statement of errors complained of on appeal. The trial court

authored an opinion in response, and the matter is ready for review.

Appellant raises three claims:




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      I. Were the verdicts so contrary to the weight of the evidence as
      to shock one's sense of justice and based on pure conjecture
      where the Commonwealth failed to prove [Appellant] possessed
      the drugs around in the basement of a two apartment building
      where each apartment had a[cc]ess to the basement.

      II. Were the verdicts so contrary to the weight of the evidence
      as to shock one's sense of justice and based on pure conjecture
      where the Commonwealth failed to prove [Appellant] possessed
      an instrument of a crime when a firearm was found in a
      basement of a two apartment building where each apartment
      had a[cc]ess to the basement.

      III. Were the verdicts so contrary to the weight of the evidence
      as to shock one's sense of justice and based on pure conjecture
      where the Commonwealth failed to prove that Appellant knew or
      should have known that firearm, recovered from the basement
      of the apartment building, was stolen.

Appellant’s brief at vi.

      The Commonwealth argues that Appellant has waived his claims for

failing to distinguish between weight and sufficiency.          We agree that

Appellant has confused the two concepts.         Indeed, Appellant errs at the

outset as he maintains that “The scope of appellate review of an [o]rder

granting or denying reversal of a Judgment of Sentence on the basis of the

weight and sufficiency of the evidence is identical to the standard employed

by the [t]rial [c]ourt[.]”   Appellant’s brief at v.   However, that is not true

with respect to weight of the evidence. See Commonwealth v. Clay, 64

A.3d 1049, 1055 (Pa. 2013) (“An appellate court's standard of review when

presented with a weight of the evidence claim is distinct from the standard

of review applied by the trial court.”). Additionally, Appellant frames all his

arguments in terms of weight of the evidence and uses language specific to

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weight of the evidence claims. For example, all three of his arguments refer

to whether the verdicts “shock one’s sense of justice,” which is a concept

that applies to a weight claim. See Commonwealth v. Talbert, 129 A.3d

536, 546 (Pa.Super. 2015) (“In order for a defendant to prevail on a

challenge to the weight of the evidence, the evidence must be so tenuous,

vague and uncertain that the verdict shocks the conscience of the court.”)

(citation and quotation marks omitted).

      In contrast, our review of the sufficiency of the evidence “does not

include an assessment of the credibility of the testimony offered by the

Commonwealth.”       Commonwealth v. Wilson, 825 A.2d 710, 713–14

(Pa.Super. 2003) (citations omitted).     Our standard of review asks only

“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.”

Commonwealth v. Brockman, 167 A.3d 29, 38 (Pa.Super. 2017) (quoting

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.Super. 2014)). When

applying this 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

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       applying the above test, the entire record must be evaluated and
       all evidence actually received must be considered. Finally, the
       finder 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.

Id.

       We agree that Appellant fails to recognize the different concepts at

issue, which can result in waiver. However, while Appellant confuses these

concepts, his arguments and citations are properly directed at the sufficiency

of    the   evidence.   Hence,    we   decline   to   find   waiver.   Compare

Commonwealth v. Birdseye, 637 A.2d 1036 (Pa.Super. 1994) (finding

waiver where identical argument was made for weight and sufficiency

challenges, and appellants “neither cite[d] to the record nor do they cite to

any case law to support their allegation[.]”).

       Turning to the merits, we find that Appellant is not entitled to relief.

Appellant’s first claim concerns the possession with intent to deliver charge.

The drugs and gun were not found on Appellant’s person.            Therefore, the

Commonwealth was required to prove constructive possession in order to

satisfy the element of possession.         Constructive possession has been

described as

       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 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

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        established      by        the    totality    of      the        circumstances.

Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.Super. 2013) (citation

omitted).      As with any sufficiency of the evidence challenge, constructive

possession may be proven by circumstantial evidence, and the “requisite

knowledge and intent may be inferred from examination of the totality of the

circumstances.”         Commonwealth            v.   Clark,       746     A.2d   1128,    1136

(Pa.Super. 2000) (quoting Commonwealth v. Haskins, 677 A.2d 328, 330

(Pa.Super. 1996)). “Moreover, we have held that circumstantial evidence is

reviewed by the same standard as direct evidence—that is, that a decision

by the trial court will be affirmed ‘so long as the combination of the evidence

links    the     accused      to    the   crime      beyond       a     reasonable      doubt.’”

Commonwealth            v.    Johnson, 818        A.2d     514,     516    (Pa.Super.    2003)

(citations omitted).

        To undercut constructive possession, which is the only element of the

crime that Appellant attacks on appeal, he relies upon the following

limitation to its applicability: “[W]here 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.”

Commonwealth v. Davis, 480 A.2d 1035, 1045 (Pa.Super. 1984)

(emphasis omitted). He argues that this principle applies herein because the

evidence established that more than one person had equal access to the




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areas where the items were recovered, and that Appellant was merely

present at the residence.

     A clear example of a case where the evidence established only equal

access and presence alone is Commonwealth v. Valette, 613 A.2d 548

(Pa. 1992). Valette was in the living room of an apartment when the police

executed a search warrant, which yielded drugs from the second floor of the

apartment secured in a briefcase concealed beneath floorboards.    Nothing

incriminating was found on Valette’s person nor in the room where he was

located at the time of the raid.   Our Supreme Court determined that his

possessory convictions must be reversed.

     At trial the Commonwealth attempted to portray appellant as a
     participant involved in a large drug distribution scheme.
     However, the only link to the narcotics confiscated from
     the     premises     was     his    presence     and   apparent
     acquaintanceship with the co-defendants. The record is
     clear that no contraband was found in the room in which the
     appellant was sitting at the time entry was made by law
     enforcement officers; and, although $1500.00 in cash was found
     hidden on a shelf in a closet located in the room, there was no
     evidence that appellant knew of its existence, or had access to
     it: nor is the possession of cash a crime. Moreover, no personal
     property of petitioner's was located in the apartment.

           ....

     In this case, the record demonstrates nothing more than that
     appellant was present in an apartment in which drugs were
     found. In order to find the drugs, the police were required to
     make a full search, and the most significant quantity of drugs
     was found in a room on a separate floor in a closed case located
     beneath floorboards.

Id. at 551 (footnote omitted, emphasis added).


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     Simultaneously,    the   fact   of   equal    access   does   not   preclude

constructive possession, as “it is possible for two people to have joint

constructive possession of an item of contraband.” Hopkins, supra at 820-

21. This principle was illustrated in Commonwealth v. Mudrick, 507 A.2d

1212 (Pa. 1986). Therein, Mudrick was at the home of Sandra Dietz when

officers served a fugitive warrant on Dietz. Mudrick informed the police that

he and Dietz were engaged and that he owned one of the dogs on site.

Within the premises, officers recovered marijuana on a living room table as

well as cocaine in the home’s only bedroom. Id. at 1212-13. Our Supreme

Court analyzed Commonwealth v. Macolino, 469 A.2d 132 (Pa. 1983),

wherein drugs and a variety of legal items used in the drug trade were

discovered in the common bedroom of the Macolinos, a married couple.

“[Macolino] held that ‘constructive possession can be found in one

defendant when both the husband and wife have equal access to an area

where the illegal substance or contraband is found.’”       Mudrick, supra at

1214 (quoting Macolino, supra at 135).            The Mudrick Court held that

constructive possession was established:

     Though the facts here do not precisely mirror those
     in Macolino, they are similar and the issue again concerns
     constructive possession in an area of joint control. We hold today
     that even absent a marital relationship constructive possession
     may be found in either or both actors if contraband is found in
     an area of joint control and equal access. The marital
     relationship per se was not critical to the Macolino analysis;
     shared access to and control of the area where the contraband
     was found was critical.


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       Here there was evidence that appellee lived in the residence and
       shared the bedroom with Ms. Dietz. From this evidence, the
       factfinder could find joint control over and equal access to the
       area where the cocaine was found, the bedroom. Given the
       totality of the circumstances, i.e., joint control and equal access
       and evidence that the cocaine was found in plain view, the jury
       could have found constructive possession.

Id. at 1214 (footnotes omitted).

       Appellant argues that this case falls on the Valette side of the

spectrum on the basis that the Commonwealth failed to connect him “to the

specific room or areas where the drugs were kept.” Appellant’s brief at 4.

Moreover, Appellant emphasizes that an unknown person could have had

access to the basement where the drugs were recovered.1 Thus, Appellant

extends the concept of joint control and access to theoretical joint control

and access by unspecified persons.


____________________________________________


1 Detective Manko testified that the floor of the closet seemed flimsy, and
when he “lifted that up the cellar steps were there and right on top was a
blue bag.” N.T., 4/7/16, at 16. Appellant points to his cross-examination,
when Detective Manko stated that he did not actually go down the steps.
Appellant asked, “[A]re there other steps from another portion of the
building or from the exterior of the building to access the basement?” Id. at
31. Detective Manko stated, “Possibly,” and stated that he did not actually
check the exterior. Id. at 32.

Appellant claims that this testimony establishes that “[a]ny number of
people” would have had access to the basement, and, in turn, the area
underneath the floorboards. Appellant’s brief at x. We disagree. As noted
in our standard of review, the Commonwealth is not required to preclude
every possibility of innocence. Furthermore, Appellant did not establish that
an alternative entrance to the basement actually exists, only that Detective
Manko did not check for one.



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      We disagree. There is ample evidence of Appellant’s connection to the

items beyond presence and access.        Most significantly, court documents

bearing Appellant’s name, with a listed address of the residence in question,

were discovered in one of the apartment’s two bedrooms. Furthermore, the

testimony established that the odor of marijuana after Detective Manko

looked in the area underneath the kitchen sink was so obvious that the

occupant could not be ignorant of its presence. The source of that odor was

four gallon-sized bags of marijuana found underneath the floorboards of the

apartment’s closet area. Thus, this is not a case of mere equal access and

presence, as in Valette, and we find that the evidence suffices to establish

constructive possession.

      Appellant’s second argument is identical to the first, and concerns

whether the Commonwealth established constructive possession of the

firearm found alongside the marijuana. For all of the foregoing reasons, we

find that the Commonwealth established constructive possession of the

firearm, and we therefore reject this claim.

      We now address Appellant’s final argument, which is that the

Commonwealth failed to establish the crime of receipt of stolen property,

which pertained to the firearm. The statute reads:

      (a) Offense defined.--A person is guilty of theft if he
      intentionally receives, retains, or disposes of movable property
      of another knowing that it has been stolen, or believing that it
      has probably been stolen, unless the property is received,
      retained, or disposed with intent to restore it to the owner.


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18 Pa.C.S. § 3925. The elements of the crime are:

      (1) intentionally acquiring possession, control or title, retaining,
      disposing, or lending on the security of movable property of
      another; (2) with knowledge or belief that it was probably
      stolen;    and     (3)    intent   to    deprive      permanently.

Commonwealth v. Nero, 58 A.3d 802, 807 (Pa.Super. 2012) (quoting

Commonwealth v. Young, 35 A.3d 54, 63 (Pa.Super. 2011)).              Appellant

challenges the second element, averring that “the evidence was insufficient

to establish that the appellant knew or believed the fire[arm] to be stolen.”

Appellant’s brief at 6.   Appellant highlights that over four years passed

between the theft of the firearm, no other stolen items were discovered, and

he did not flee.

      In Commonwealth v. Robinson, 128 A.3d 261 (Pa.Super. 2015) (en

banc), we extensively analyzed the element of knowledge as it pertains to

receipt of stolen property.    Therein officers handling a domestic dispute

learned that Robinson was carrying a firearm in his pocket.        Id. at 263.

Officers secured the firearm and discovered that the registered owner had

last seen the weapon approximately three years prior. On the basis of those

facts, he was convicted of receipt of stolen property. On appeal, Robinson

argued that the Commonwealth “presented no evidence at trial to establish

that he knew, or had reason to know, that the firearm in his possession was

stolen.” Id. at 264. We agreed, and vacated the conviction.

      In reaching our conclusion, we discussed the viability of an inference

that the recent theft of an item, paired with unexplained possession of the

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item, constitutes evidence of “knowledge.” We explained that our Supreme

Court has held that a theft of a firearm seven weeks prior to the incident at

issue was too attenuated from the possession to permit the inference, partly

due to the fact that the seven week delay “provided ample time for any

number of transfers in seemingly innocent circumstances[.]”          Id. at 266

(quotation marks and citation omitted).

        Appellant is therefore correct that his unexplained possession of a

firearm stolen years before the incident2 in question cannot serve to

establish his guilty knowledge.            However, as we further explained in

Robinson, recency is simply one basis for an inference of guilty knowledge,

not the only one:

        Evidence of the recency of the theft is not the only basis for an
        inference    of    guilty   knowledge. See Commonwealth          v.
        Stevenson, 242 Pa.Super. 31, 363 A.2d 1144, 1145 (1976)
        (“[C]riminal intent or guilty knowledge may be inferred where
        facts and evidence are such as to show that element of the
        crime.”). Circumstantial evidence of guilty knowledge may
        include, inter alia, the place or manner of possession, alterations
        to the property indicative of theft, the defendant's conduct or
        statements at the time of arrest (including attempts to flee
        apprehension), a false explanation for the possession, the
        location of the theft in comparison to where the defendant
        gained possession, the value of the property compared to the
        price paid for it, or any other evidence connecting the defendant
        to the crime. See, e.g., Commonwealth v. Marrero, 914 A.2d
        870, 873 (Pa.Super.2006) (listing factors); [Commonwealth v.
        Foreman, 797 A.2d 1005, 1009 (Pa.Super. 2002)] (the owner
        of a motorcycle repair shop in possession of motorcycles,
        engines, and other parts, where the serial numbers on several of
____________________________________________


2   The owner testified that the firearm was stolen in 2011.



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     the      motorcycle       engines      had      been       visibly
     altered); Commonwealth v. Grabowski, 306 Pa.Super. 483,
     452 A.2d 827, 830 (1982) (attempts to sell a stolen
     car); Commonwealth v. Worrell, 277 Pa.Super. 386, 419 A.2d
     1199, 1201–02 (1980) (VIN numbers on frame of vehicle and
     engine     mutilated); Commonwealth         v.    Brabham, 268
     Pa.Super. 35, 407 A.2d 424, 426–27 (1979) (flight from law
     enforcement at the time of arrest); Commonwealth v.
     Phillips, 258 Pa.Super. 109, 392 A.2d 708, 710 (1978)
     (appellant in possession of repainted motorcycle in the same city
     where it had been stolen, with the serial number marred).

Id. at 268–69.   Since, in Robinson, there was no evidence of knowledge

other than possession, the conviction could not stand.

     Herein, we find that the circumstantial evidence suffices to establish

that Appellant knew that the item was stolen.     Significantly, the firearm’s

serial number was scratched off, and “whether the property has alterations

indicative of being stolen can be used to establish guilty knowledge.”

Commonwealth v. Foreman, 797 A.2d 1005, 1012 (Pa.Super. 2002)

(citing Commonwealth v. Williams, 362 A.2d 244, 249 n.7 (Pa. 1976)).

Additionally, the firearm was stored alongside a substantial amount of

marijuana, and while our Supreme Court has rejected a “guns follow drugs”

presumption permitting a patdown for weapons based on the presence of

drugs, Commonwealth v. Grahame, 7 A.3d 810 (Pa. 2010), the trial court

was not required to ignore the combination of the two items, especially when

the firearm’s serial number was altered. Certainly, drug dealers commonly

employ firearms in their trade, and it is but a simple step further to

acknowledge that drug dealers are unlikely to obtain the tools of their trade


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from legitimate channels.   Therefore, we find that the receipt of stolen

property conviction is not premised upon mere possession.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/18




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