Com. v. Davis, D.

• Court: Superior Court of Pennsylvania
• Decided: January 14, 2025
• Docket: 2711 EDA 2023
• Status: Unpublished

Opinion

J-S32007-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DARNELL DAVIS : : Appellant : No. 2711 EDA 2023

Appeal from the Judgment of Sentence Entered May 24, 2023 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0003192-2020

BEFORE: LAZARUS, P.J., STABILE, J., and KING, J.

MEMORANDUM BY LAZARUS, P.J.: FILED JANUARY 14, 2025

Darnell Davis appeals from the judgment of sentence, entered in the

Court of Common Pleas of Chester County, after a jury convicted him of one

count each of possession with intent to deliver (PWID) (between 100g and

1000g cocaine),1 possession of drug paraphernalia, 2 and possession of a

controlled substance.3 On appeal, Davis challenges the denial of his motion

to suppress evidence, the sufficiency of the evidence, and the discretionary

aspects of his sentence. After careful review, we affirm.

This case arises from a vehicle stop, conducted by Pennsylvania State

Trooper Peter Burghart, on August 26, 2020, at 4:02 p.m., on the ____________________________________________

1 35 Pa.C.S.A. § 780-113(a)(30).

2 Id. at § 780-113(a)(32).

3 Id. at § 780-113(a)(16). J-S32007-24

Pennsylvania Turnpike at mile marker 320 in Tredyffrin Township, Chester

County. On that date, Trooper Burghart, while on patrol around that location,

observed a blue Chevrolet Malibu moving at a high rate of speed, which he

clocked at 84 miles per hour in a 70-mile-per-hour zone. Trooper Burghart

pulled the vehicle over and requested identification from Davis, who was the

lone occupant and driver. When Davis was not able to provide any

identification, Trooper Burghart removed Davis from the Chevrolet, patted him

down, and walked him back to his own police vehicle. There, Trooper Burghart

had Davis stand outside of the passenger-side door, while Trooper Burghart

entered the driver’s side of the police vehicle.

At that point, Trooper Burghart searched the police database system

using the name and address information that Davis provided and continued

talking to Davis through the police vehicle’s open passenger-side window.

When Trooper Burghart asked Davis who owned the vehicle Davis was driving,

Davis stated it was his cousin’s friend’s vehicle, but he did not know that

person’s name. When asked again how Davis was connected to the vehicle,

Davis changed his prior answer and explained that it was his cousin’s son’s

girlfriend’s vehicle. The suppression court found that Davis appeared a little

bit nervous.

Once Trooper Burghart confirmed Davis’ identification and determined

the identity of the vehicle’s registered owner, Trooper Burghart raised the fact

that he smelled marijuana inside Davis’ car when he first approached it after

pulling Davis over. Davis admitted to smoking marijuana a few hours prior.

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Trooper Burghart responded that he did not smell burnt marijuana, but rather

smelled unburnt marijuana. Davis then admitted to having less than one

ounce of marijuana in the vehicle. Trooper Burghart asked Davis if there was

anything else illegal in the vehicle, and Davis stumbled over his answer before

answering in the negative.

Trooper Burghart then searched the vehicle and found two small black

trash bags on the rear passenger floor, and a larger white trash bag on the

rear bench seat. One of the black bags contained several containers of

suspected marijuana. The other black bag contained 240 baggies of suspected

crack cocaine, which were broken down into either five or six larger balls

wrapped in colored saran wrap, weighing approximately 185 grams.4 The

white bag contained two digital scales and a calibration weight. Davis was

arrested on the scene.

On March 3, 2023, a jury convicted Davis of the above-mentioned

crimes and found that the weight of the cocaine that Davis possessed with

intent to deliver was at least 100 grams and less than 1,000 grams. The court

sentenced Davis to an aggregate sentence of 7½ to 15 years’ incarceration.

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4 At the suppression hearing, the testimony reflected police recovered 185 grams of cocaine, see N.T. Suppression Hearing, 6/24/21, at 19, but at trial, Pennsylvania State Police Forensic Scientist Gina Muscante testified that police recovered approximately 156.4 grams. See N.T. Jury Trial, 3/2/23, at 64. At trial, Corporal James Wisnieski of the Pennsylvania State Police testified that the street value of the cocaine was $12,480.00 to $18,720.00. Id. at 98. The jury’s verdict concluded that there was at least 100 grams, but less than 1,000 grams, of cocaine. See N.T. Jury Trial, 3/3/23, at 9.

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Davis filed a timely post-sentence motion, which the court denied. Davis filed

a timely notice of appeal. Davis and the trial court have complied with

Pa.R.A.P. 1925.

On appeal, Davis raises the following issues for our review:

1. Did the trial court err in finding [Davis] lacked a reasonable expectation of privacy [in the vehicle that was searched]?

2. Was insufficient evidence presented at trial to show [Davis] possessed the controlled substances and the paraphernalia to sustain possession with intent to deliver, possession of controlled substance, and possession of paraphernalia convictions beyond a reasonable doubt?

3. Did the trial court err in not considering [Davis]’s background or his rehabilitative needs, as required by 42 Pa.C.S.A. § 9721(b)?

Appellant’s Brief, at 5 (unnecessary capitalization omitted).

Davis first challenges the court’s suppression ruling. Both the United

States and Pennsylvania Constitutions protect citizens from unlawful police

searches and seizures. See Commonwealth v. Brame, 239 A.3d 1119,

1127 (Pa. Super. 2020); see also U.S. CONST. Amend. IV.; PA CONST. Art.

I, § 8. Nevertheless, this Court has explained that a defendant seeking to

suppress evidence under these constitutional provisions must have standing

to challenge a search as unlawful, which, inter alia, requires the defendant to

establish a legitimate expectation of privacy in the area searched or thing

seized. See Commonwealth v. Hawkins, 718 A.2d 265, 267 (Pa. 1998)

(suppression motion properly denied where defendant lacked legitimate

expectation of privacy). It is the defendant’s burden to establish such

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standing and reasonable expectation of privacy. See Commonwealth v.

Burton, 973 A.2d 428, 435 (Pa. Super. 2009) (en banc). It is well-settled

that a defendant has no reasonable expectation of privacy in a car that is

searched if that defendant fails to produce credible evidence of ownership or

proper authorization to drive it. Id. at 436 (defendant failed to demonstrate

reasonable expectation of privacy in vehicle he did not own, that was not

registered to him, and for which he failed to show authority to operate); see

also Commonwealth v. Jones, 874 A.2d 108, 120 (Pa. Super. 2005)

(operator of rental car had no reasonable expectation of privacy sufficient to

challenge constitutionality of search of rental car since he was not authorized

driver and rental agreement had expired).

Instantly, the trial court set forth its findings of fact as follows:

The car in this case was owned by Mareka Crampton. [] Crampton was Marqui Edwards[’ girlfriend]. [] Edwards is [Davis’] cousin. [] Edwards does not own the car in question. There was no evidence presented that [] Edwards had authority to give [Davis] permission [] to drive the vehicle.

N.T. Suppression Hearing, 8/30/22, at 19. The court made the following

conclusions of law in connection with those factual findings: “[Davis] has the

burden of proof to establish permission to operate the vehicle. The lack of

evidence regarding [] Edwards’ authority, even if [Davis]’s testimony is

credible, [] failed to establish that he had permission to operate the vehicle.

Thus, [Davis] didn’t meet the burden regarding an expectation of privacy.”

Id.

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Here, Davis was not the registered owner or title owner of the vehicle

and failed to present any evidence that he was driving with the authorization

or permission of the registered or title owner, who was Crampton. Therefore,

Davis failed to establish that he had a reasonable expectation of privacy in the

vehicle. See Burton, supra; see also Jones, supra. Accordingly, Davis

may not challenge the search; thus, his claim is meritless. See Hawkins,

supra. See also Commonwealth v. Cruz, 21 A.3d 1247, 1251 (Pa. Super.

2011) (defendant had no expectation of privacy and could not challenge

search where he presented no evidence that he owned vehicle, that it was

registered in his name, or that he was using it with permission of registered

owner); Commonwealth v. Brown, 64 A.3d 1101, 1107 (Pa. Super. 2011)

(defendant failed to establish reasonable expectation of privacy in vehicle

where defendant failed to present permission to operate vehicle);

Commonwealth v. Maldonado, 14 A.3d 907, 911 (Pa. Super. 2011)

(defendant had no expectation of privacy in girlfriend’s car he was driving

where he established he lived with girlfriend but presented no evidence he

had permission from her to drive car).

In his second claim on appeal, Davis challenges the sufficiency of the

evidence. In particular, Davis argues that he did not possess any of the items

seized by police, including the drugs and paraphernalia, because the record

does not support that he intended to exercise conscious dominion over those

items.

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Our standard of review of an appellant’s challenge to the sufficiency of

the evidence is well-settled:

Our applicable standard of review is whether the evidence admitted at trial, and all reasonable inferences drawn from that evidence, when viewed in the light most favorable to the Commonwealth as verdict-winner, was sufficient to enable the fact-finder to conclude that the Commonwealth established all of the elements of the offense beyond a reasonable doubt. Additionally, when examining sufficiency issues, we bear in mind that: the Commonwealth’s burden may be sustained by means of wholly circumstantial evidence; the entire trial record is evaluated and all evidence received against the defendant considered; and the trier of fact is free to believe all, part, or none of the evidence when evaluating witness credibility.

This standard is equally applicable to cases where the evidence is circumstantial[,] rather than direct[,] so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Although a conviction must be based on more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty.

Commonwealth v. Dewald, 317 A.3d 1020, 1038 (Pa. Super. 2024)

(citations, quotation marks, and brackets omitted).

To sustain a conviction for PWID, this Court has explained that:

the Commonwealth must prove both the possession of the controlled substance and the intent to deliver the controlled substance. It is well[-]settled that all the facts and circumstances surrounding possession are relevant in making a determination of whether contraband was possessed with intent to deliver.

In Pennsylvania, the intent to deliver may be inferred from possession of a large quantity of controlled substance. It follows that possession of a small amount of a controlled substance supports the conclusion that there is an absence of intent to deliver.

Notably, if, when considering only the quantity of a controlled substance, it is not clear whether the substance is being used for

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personal consumption or distribution, it then becomes necessary to analyze other factors.

Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa. Super. 2008) (citation,

quotation marks, and brackets omitted). The trier of fact may infer intent to

deliver based on the totality of the circumstances, including the method of

packaging, the form of the drug, and the behavior of the defendant. See

Jones, 874 A.2d at 121.

“Where, as herein, the contraband is not found on the accused’s person,

the Commonwealth must demonstrate he had constructive possession of the

same, or that the individual had the ability and intent to exercise control or

dominion over the substance.” Commonwealth v. Hutchinson, 947 A.2d

800, 806 (Pa. Super. 2008).

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 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. Roberts, 133 A.3d 759, 767-68 (Pa. Super. 2016)

(citation and some quotations marks omitted).

Here, the cocaine was discovered in the vehicle Davis was driving in a

black bag placed next to a similar black bag that contained the marijuana

Davis admitted he possessed. The proximity of the black bags to each other,

their similar appearance, and the fact that they were discovered inside the

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vehicle Davis was driving, is sufficient to establish conscious dominion by

Davis—the vehicle’s sole occupant—over the cocaine. See Jones, 874 A.2d

at 122 (evidence sufficient to establish conscious dominion by defendant over

cocaine discovered in rental vehicle with multiple occupants shortly after

passengers exited). The evidence here was also sufficient to establish Davis’

intent to deliver the cocaine discovered in the vehicle, where the amount of

cocaine, itself, was enough to satisfy that element of PWID. See Lee, 956

A.2d at 1028. Assuming, arguendo, that the amount of cocaine did not, by

itself, satisfy the element of specific intent to deliver, we would conclude that

the totality of circumstances would have satisfied this element, due to the high

number of baggies discovered, the fact there were measuring scales and a

calibration weight proximately located to the cocaine, and the fact that police

did not otherwise locate paraphernalia indicating Davis’ personal use. See

Commonwealth v. Conaway, 791 A.2d 359, 363 (Pa. Super. 2002)

(evidence of individually wrapped bags of cocaine and lack of paraphernalia

for personal use gives rise to inference of intent to deliver).

We similarly conclude that the evidence was sufficient to establish

possession of drug paraphernalia where Davis constructively possessed the

measuring scales and calibration weight, which were discovered very close in

proximity to the cocaine and marijuana. See Commonwealth v. Parsons,

570 A.2d 1328, 1335 (Pa. Super. 1990) (electronic scales and weights

discovered near cocaine in defendant’s house sufficient to establish

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constructive possession of paraphernalia). Accordingly, Davis is not entitled

to any relief on his second issue on appeal. See Dewald, supra.

In his final issue, Davis raises a challenge to discretionary aspects of his

sentence. Appellants may not challenge the discretionary aspects of their

sentence as of right. See Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.

Super. 2000). A request for appellate review of the discretionary aspects of

a sentence is considered a petition for permission to appeal. See

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014). Prior to

reaching the merits of a discretionary sentencing issue, to determine whether

the appellate court’s jurisdiction has been invoked, the Court conducts a four-

part test to determine:

(1) whether the appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether the appellant’s brief has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.[A] § 9781(b).

Commonwealth v. Bradley, 237 A.3d 1131, 1138 (Pa. Super. 2020) (some

citations and brackets omitted).

“A defendant presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citation

omitted). The Court determines what constitutes a substantial question on a

case-by-case basis. See Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.

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Super. 2011). In reviewing for a substantial question, “[o]ur inquiry must

focus on the reasons for which the appeal is sought, in contrast to the facts

underlying the appeal, which are necessary only to decide the appeal on the

merits.” Commonwealth v. Akhmedov, 216 A.3d 307, 328 (Pa. Super.

2019) (en banc) (citation and quotation marks omitted). The appellate court

cannot look beyond the statement of questions involved and the prefatory

Rule 2119(f) statement to determine whether a substantial question exists.

See Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012).

Here, Davis preserved his discretionary sentencing claim in a post-

sentence motion, filed a timely notice of appeal, and has included a Rule

2119(f) statement in his brief. See Appellant’s Brief, at 11-12. Consequently,

we turn to whether Davis’ appeal raises a substantial question. In his Rule

2119(f) statement, Davis states that his sentence is excessive because the

court did not account for his background and rehabilitative needs. See

Appellant’s Brief, at 12.

An excessive sentence claim, in conjunction with a claim that the

sentencing court failed to consider mitigating factors, raises a substantial

question. See Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super.

2014). This Court has also recognized a substantial question exists where an

appellant claims that the sentencing court disregarded the defendant’s

rehabilitative needs. See Commonwealth v. White, 193 A.3d 977, 983 (Pa.

Super. 2018). Accordingly, we will consider the merits of Davis’ discretionary

claim. However, we are “mindful that sentencing is vested in the sound

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discretion of the sentencing court, and we shall not disturb a sentence absent

a manifest abuse of discretion.” Commonwealth v. Schroat, 272 A.3d 523,

527 (Pa. Super. 2022).

In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias[,] or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Summers, 245 A.3d 686, 692-93 (Pa. Super. 2021)

(citation omitted). In addition to the broad sentencing discretion afforded to

the sentencing court, appellate courts also grant the sentencing court great

deference, as it is the sentencing court that is in the “superior position to view

the defendant’s character, displays of remorse, defiance[,] or indifference,

and the overall effect and nature of the crime.” Commonwealth v. Walls,

926 A.2d 957, 961 (Pa. 2007) (citation omitted).

When imposing a sentence, the sentencing court must consider “the

protection of the public, the gravity of the offense as it relates to the impact

on the life of the victim and on the community, and the rehabilitative needs

of the defendant.” 42 Pa.C.S.A. § 9721(b). Further, the sentencing court is

required to consider the circumstances of the offense and the character of the

defendant, paying particular attention to the defendant’s prior criminal record,

age, personal characteristics, and potential for rehabilitation. See

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). Although they

must be considered, the Pennsylvania Sentencing Guidelines are not

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mandatory, and, thus, do not prohibit any particular sentence otherwise within

the statutory maximum. See Commonwealth v. Sheller, 961 A.2d 187,

190 (Pa. Super. 2008); Commonwealth v. Mitchell, 883 A.2d 1096, 1107

(Pa. Super. 2005). The balancing of the sentencing factors is within the sole

province of the sentencing court. See Commonwealth v. Velez, 273 A.3d

6, 10 (Pa. Super. 2022).

When we conduct a merits analysis of a challenge to the discretionary

aspects of a sentence, we are also guided by the statutory requirements of 42

Pa.C.S.A. § 9781(c) and (d). See Commonwealth v. Zeigler, 112 A.3d 656,

661 (Pa. Super. 2015). Here, Davis was sentenced within the sentencing

guidelines; however, Davis alleges the case involves circumstances where the

application of the guidelines would be clearly unreasonable. See Appellant’s

Brief, at 12; see also 42 Pa.C.S.A. § 9781(c)(2).

More specifically, Davis argues that the court failed to consider that: he

grew up in a low-income Philadelphia neighborhood surrounded by drugs; his

mother was addicted to drugs and his father was completely absent; he

dropped out of school and was accepted by gang members dealing drugs; at

a very young age, he did what he could to help support his family; he suffered

the loss of his infant daughter and then his grandmother who was like a

mother to him; his prior criminal history was not recent, two of which offenses

dated back to when he was 20 years old and the other was 10 years old; he

was 44 years old at the time of sentencing; after time in prison, he maintained

part-time positions, but had difficulty securing employment due to his criminal

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record; and, for approximately 3 years prior to sentencing, he was leading an

upstanding life as witnessed by many in his life who wrote the court to show

their support for him.

In this context, we consider:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d). The appellate court is not permitted to re-weigh the

sentencing factors considered by the sentencing court. See Summers, 245

A.3d at 695. Also, “[w]here [a] presentence report[ (PSI)] exist[s], we shall

[] presume that the sentencing judge was aware of relevant information

regarding the defendant’s character and weighed those considerations along

with mitigating statutory factors. A [PSI] constitutes the record and speaks

for itself.” Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).

Here, at sentencing, the court stated that it reviewed Davis’ PSI,

meaning that, contrary to Davis’ claims, the court is presumed to have

considered his background and rehabilitative needs prior to imposing the

sentence. See N.T. Sentencing Hearing, 5/24/23, at 25-26; see also

Devers, supra. Moreover, after our review of the sentencing transcript and

the record, we are satisfied that the court appropriately considered the

required sentencing factors and we discern no abuse of discretion. See

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Summers, 245 A.3d at 695; see also Schroat, supra. Accordingly, we

conclude that Davis is not entitled to relief on his third issue on appeal.

Judgment of sentence affirmed.

Date: 1/14/2025

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