J-S61036-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                  Appellee                :
                                          :
          v.                              :
                                          :
GARY LEE JOSLYN, JR.,                     :
                                          :
                  Appellant               :   No. 307 MDA 2015

    Appeal from the Judgment of Sentence Entered September 11, 2014,
              in the Court of Common Pleas of Bradford County,
             Criminal Division, at No.: CP-08-CR-0000167-2014

BEFORE:        PANELLA, WECHT, and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                  FILED OCTOBER 30, 2015

      Gary Lee Joslyn, Jr., (Appellant) appeals from the judgment of

sentence entered following his conviction for possession of a controlled

substance. We affirm.

      On June 24, 2014, Appellant was convicted of the aforementioned

crime following a jury trial. Appellant’s conviction resulted from an incident

wherein police officers, while executing an arrest warrant for Appellant at a

residence in Towanda, Pennsylvania, found two plastic baggies containing

residue from bath salts1 on a nightstand next to where Appellant was found



1
  “‘Bath salts,’ the street name of a category of designer drugs that contain
synthetic cathinones such as mephedrone, have … been designated a
controlled substance.” Commonwealth v. Scott, 73 A.3d 599, 601 n.5
(Pa. Super. 2013) (citing 35 P.S. § 780-104(1)(iii)(17-25), (vii)(1-8),
(viii)(1-9)); see also N.T., 6/24/2014, at 42-43 (Jennifer J. Libus, Forensic
Scientist II with the Pennsylvania State Police, explaining that testing of the

*Retired Senior Judge assigned to the Superior Court.
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sleeping with his girlfriend and an infant. Appellant was sentenced to four to

twelve months of incarceration for the conviction. Following the denial of his

post-sentence motions, Appellant timely filed his notice of appeal to this

Court.

      On appeal, Appellant presents one issue for our consideration:

“Whether the evidence was sufficient to prove the ability and intent to

exercise conscious control in order to prove the offense of possession of a

controlled substance?” Appellant’s Brief at 7.

         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 proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the [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.



residue revealed the presence of two Schedule I controlled substances
known as bath salts).


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      Further, in viewing the evidence in the light most favorable to
      the Commonwealth as the verdict winner, the court must give
      the prosecution the benefit of all reasonable inferences to be
      drawn from the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (citation

omitted).

      The statute under which Appellant was convicted provides, in relevant

part, as follows:

      (a) The following acts and the causing thereof within the
      Commonwealth are hereby prohibited:

                                     ***

         (16) Knowingly or intentionally possessing a controlled or
         counterfeit substance by a person not registered under this
         act, or a practitioner not registered or licensed by the
         appropriate State board, unless the substance was
         obtained directly from, or pursuant to, a valid prescription
         order or order of a practitioner, or except as otherwise
         authorized by this act.

35 P.S. § 780-113(a)(16).

      Because Appellant was not found with contraband on his person, the

Commonwealth was required to establish that Appellant had constructive

possession of the seized items to support his conviction. 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.
      We have defined constructive possession as conscious dominion.
      We subsequently defined conscious dominion as the power to



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      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.

Id. (quoting Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super.

2012)). Moreover,

      [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. [Rather],
      the Commonwealth must introduce evidence demonstrating
      either Appellant’s participation in the drug-related activity or
      evidence connecting Appellant to the specific room or areas
      where the drugs were kept.

Commonwealth v. Bricker, 882 A.2d 1008, 1016 (Pa. Super. 2005)

(internal quotation marks and citation omitted).

      Appellant argues that the Commonwealth failed to present sufficient

evidence to prove that he had constructive possession of the contraband.

Specifically, Appellant contends that the circumstances of the case do not

suggest that he had knowledge of the drugs prior to overhearing police tell

his girlfriend that they were going to call Children and Youth Services (CYS).

Appellant’s Brief at 10-11.         Appellant also emphasizes that his mere

proximity   to   the   contraband    is   insufficient   to   establish   constructive

possession. Id.

      At trial, the Commonwealth presented the testimony of Pennsylvania

State Police Troopers Robert Hutchinson and Michael Adams.                    Trooper

Hutchinson testified that, while executing an arrest warrant for Appellant at




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the residence, Trooper Hutchinson entered a room where Appellant was

sleeping on the left side of the bed, a small infant girl was sleeping in the

middle, and Appellant’s girlfriend was sleeping on the right side of the bed.

N.T., 6/24/2014, at 14-16.      Trooper Hutchinson said he woke up the

individuals and placed Appellant under arrest.        Id. at 16.     Trooper

Hutchinson explained that there was a nightstand on the left side of the bed,

where two small green zip lock baggies with residue “were laying right

beside [Appellant].”   Id. at 16-17.    Trooper Hutchinson testified that the

items were consistent with bath salts, so he took the items into possession.

Id. at 17. Trooper Hutchinson stated that Appellant was eventually escorted

outside to the police car. Id. at 17-18.    Troopers Hutchinson and Adams

both confirmed that Appellant told Trooper Adams that the baggies were his.

Id. at 33-34, 61. The troopers further testified that it was protocol to call

CYS in a drug case involving the presence of children and that such a call

was made in this case. Id. 28, 37-39.

     Appellant also testified at trial. Appellant admitted that he had a drug

problem, used bath salts, had brought bath salts to the residence in the

past, and had received bath salts from others at times as well. Id. at 49,

51-52, 56.    Appellant further stated that, on the day he was arrested, he

was sleeping on the side of the bed with the nightstand upon which the




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baggies were found. Id. at 50-51. Appellant also testified that when asked

if the baggies were his, he replied, “I guess they are mine.” Id. at 53, 56.

      This evidence, viewed together and in the light most favorable to the

Commonwealth, is sufficient to prove that Appellant had constructive

possession of the contraband in question.      Although Appellant testified at

trial that the baggies were not actually his and that he said they were his

only because he overheard the police talking to his girlfriend about calling

CYS and he “didn’t want them taking [his] girlfriend’s daughter away from

her,” id. at 53-54, 56-59, it is clear that the jury did not credit this

testimony.    See Harden, 103 A.3d at 111 (“[T]he [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.”).

      Based on the foregoing, Appellant is not entitled to relief on his

sufficiency claim. Accordingly, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/30/2015




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