Com. v. Lesher, L.

• Court: Superior Court of Pennsylvania
• Decided: April 29, 2019
• Docket: 2861 EDA 2018
• Status: Unpublished

Opinion

J-S17026-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LINETTE A. LESHER : : Appellant : No. 2861 EDA 2018

Appeal from the Judgment of Sentence Entered September 7, 2018 In the Court of Common Pleas of Carbon County Criminal Division at No(s): CP-13-CR-0001592-2016

BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.: FILED APRIL 29, 2019

Appellant, Linette Lesher, appeals from the judgment of sentence

entered on September 7, 2018. We affirm.

The factual and procedural history of the case are as follows. On

October 1, 2016, at around 11:30 a.m., police in Mahoning Township and

Lehighton Borough received multiple calls regarding an erratic driver.

Subsequent dispatch reports indicated that the offending car was stopped in

the parking lot of the Giant grocery store in Mahoning Township. Officer Tyler

Meek, of Mahoning Township, arrived to the parking lot first. Upon arrival,

Officer Meek saw Appellant seated in her vehicle, talking on the phone.

Witnesses to Appellant’s alleged erratic driving were gathered near Appellant’s

car, a few of whom had blocked Appellant from driving away using their own

vehicles. Officer Meek spoke to a few of the witnesses before he made contact

with Appellant. J-S17026-19

Officer Meek asked Appellant what was going on between her and the

other people in the parking lot. Appellant appeared confused and agitated

and she told Officer Meek that people were following her and that he knew

what she was talking about. Officer Meek believed, based on his interaction

with Appellant, that she was either under the influence of drugs or alcohol or

she had some kind of mental health problem. Officer Meek asked Appellant

to step out of her vehicle and perform field sobriety tests. At this point, Officer

Robert DeFuso and Officer Gabriel Szozda were present on the scene and

assisting Officer Meek with the investigation. Officer Meek determined that,

based on her performance of the field sobriety tests, Appellant was incapable

of driving safely and placed her under arrest. Officer Meek arranged for the

other officers to take Appellant to Lehighton Borough Police Department for a

drug recognition expert evaluation.1

As Appellant exited her vehicle, Officer DeFuso asked her if there were

anything in the car that should not be there, to which she responded that she

did not believe there was and, “you can check if you want.” While Appellant

performed field sobriety tests, Officer Szozda searched Appellant’s vehicle

pursuant to Officer DeFuso’s directive. Officer Szozda located an orange pill

bottle in the center console of Appellant’s car. Upon opening the pill bottle,

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1 Officer Meek was called away from the scene to respond to a fatal car accident. Drug recognition expert, Officer Dane O’Brien, evaluated Appellant at the Lehighton Borough Police Department and did not recommend that she be taken for a blood draw.

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Officer Szozda saw what appeared to be a marijuana cigarette inside. Officer

Szozda seized the bottle and later provided it to Officer Meek.

The Commonwealth charged Appellant with possession of marijuana,2

possession of drug paraphernalia,3 harassment,4 disorderly conduct,5 and

careless driving.6 Appellant filed a motion to suppress the pill bottle and

marijuana cigarette on May 24, 2017. On October 20, 2017, the trial court

conducted a suppression hearing. The trial court denied the motion and the

case proceeded to a bench trial on June 8, 2018. At the close of the

Commonwealth’s case, Appellant moved for judgment of acquittal on the

harassment and careless driving charges, which the trial court granted. At

the conclusion of the trial, the court found Appellant guilty of possession of

marijuana and possession of drug paraphernalia and not guilty of disorderly

conduct. On September 7, 2018, the trial court sentenced Appellant to one

year of probation on the possession of drug paraphernalia charge and ordered

2 35 Pa.C.S.A. § 780-133(a)(31).

3 35 Pa.C.S.A. § 780-113(a)(32).

4 18 Pa.C.S.A. § 2709(a)(1).

5 18 Pa.C.S.A. § 5503(a)(1).

6 75 Pa.C.S.A. § 3714(a).

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that Appellant pay a fine of $150.00 on the possession of marijuana charge.

This timely appeal followed.7

Appellant presents the following issues for our review:

1. Whether the [t]rial [c]ourt erred by denying [Appellant’s] suppression motion by finding that [Appellant] provided an unequivocal, specific, and voluntary consent to search her vehicle?

2. Whether the evidence was sufficient to establish that [Appellant] had conscious dominion over the marijuana cigarette and pill bottle to establish that she possessed these items?

Appellant’s Brief at 4.

Appellant’s first issue alleges that the suppression court erred by

denying her motion to suppress the marijuana cigarette.

Our standard of review over an order denying suppression requires us to “consider only the Commonwealth's evidence and so much of the defense's evidence as remains uncontradicted when read in the context of the record as a whole. Where the record supports the suppression court's factual findings, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.”

In Interest of A.A., 195 A.3d 896, 901 (Pa. 2018), quoting Commonwealth

v. Johnson, 160 A.3d 127, 138 (Pa. 2017). Appellant argues that the trial

court should have suppressed the marijuana cigarette because she did not

7 On September 28, 2018, the trial court ordered that Appellant file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on October 2, 2018. The trial court filed its 1925(a) opinion on November 21, 2018.

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provide the officers with valid consent to search her vehicle. Appellant does

not contest the factual findings of the trial court at the suppression hearing;

she argues that the legal conclusions drawn therefrom were in error.

The Fourth Amendment to the United States Constitution and Article I,

Section 8 of the Pennsylvania Constitution protect individuals from

unreasonable searches and seizures. Commonwealth v. Bell, 871 A.2d 267,

272 (Pa. Super. 2005). It is well settled that a search conducted without a

warrant is unreasonable and unconstitutional, unless an established exception

to the warrant requirement applies. Commonwealth v. Strickler, 757 A.2d

884, 888 (Pa. 2000). “One such exception is consent[.]” Id. “To establish a

valid consensual search, the Commonwealth must first prove that the consent

was given during a legal police interaction.” Bell, 871 A.2d at 273. Next, the

Commonwealth must prove the consent was given voluntarily. Id. In

Pennsylvania, a person’s consent to a warrantless search must be

unequivocal, specific, and voluntary. Commonwealth v. Powell, 994 A.2d

1096, 1102 (Pa. Super. 2010).

Appellant does not contest the legality of the underlying police

interaction. Instead, Appellant first argues that she did not provide valid

consent to search her car because her statement, “you can check if you want,”

was equivocal. Appellant’s argument is that her consent was conditional, and

therefore equivocal and legally insufficient. Appellant’s Brief at 13. We find

this argument unavailing. Assuming Appellant’s consent was “conditional,” it

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was conditioned on whether the officer wanted to search the car, a condition

that he could (and did) satisfy without any further interaction with Appellant.

Next, Appellant contends that her consent was invalid because she did

not comprehend the nature and scope of her consent. Appellant argues that

“she made this statement without having the basic and fundamental

understanding that the officers wanted to search her vehicle.” Appellant’s Brief

at 18. Appellant seems to argue that her consent cannot be considered valid

because it was given without the officers actually asking for it. That is simply

not the case. This Court addressed a very similar factual situation in

Commonwealth v. Edwards, 735 A.2d 723 (Pa. Super. 1999) and found

that the consent was valid.8 The trial court found Appellant’s consent to be

“an unsolicited invitation for the police to search her vehicle.” Trial Court

Opinion, 11/21/18, at 10. That conclusion is supported by the suppression

8 In Edwards, police received a complaint of loud noise and underage drinking at appellant’s home. Police knocked on the door and were allowed entry by another person in the house. They asked to speak with the owner of the home. The appellant-homeowner, Ms. Logue, appeared and spoke to the officers. Police asked her if there was any more beer in the house and she replied that she did not believe so but the officers could “go ahead and check.” The officers opened the refrigerator and found several bottles of red malt liquor beer. Ms. Logue and two codefendants were charged with underage drinking and moved to suppress the evidence seized pursuant to Ms. Logue’s consent to search. The suppression court found that voluntary consent to search for alcohol was given and denied the motion to suppress. This Court affirmed her judgment of sentence holding that there was no error in the suppression court’s conclusion.

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record. Thus, the trial court did not err in denying Appellant’s motion to

suppress the pill bottle and marijuana cigarette.

In her next issue, Appellant argues that the evidence was insufficient to

establish that she possessed the pill bottle and marijuana cigarette. We

review a challenge to the sufficiency of the evidence de novo and our scope

of review is plenary. In the Interest of J.B., 189 A.3d 390, 414 n.24 (Pa.

2018) (citation omitted). In assessing Appellant’s sufficiency challenge, we

must determine “whether, viewing all the evidence admitted at trial in the

light most favorable to the [Commonwealth], there is sufficient evidence to

enable the fact-finder to find every element of the crime beyond a reasonable

doubt.” Commonwealth v. Cramer, 195 A.3d 594, 601 (Pa. Super. 2018)

(cleaned up). The evidence “need not preclude every possibility of

innocence[.] . . . 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.” Commonwealth v. Thomas, 194 A.3d 159, 166

(Pa. Super. 2018) (cleaned up).

Appellant argues that, because the marijuana and related paraphernalia

were “hidden” in her car, the evidence failed to establish that she

constructively possessed them.

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

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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. Kinard, 95 A.3d 279, 292 (Pa. Super. 2014) (emphasis

added).

Appellant testified at trial that she often allowed her boyfriend to drive

her car and that he had used the car the day before this incident. She testified

that she knew her boyfriend to smoke marijuana and that she told the police

the marijuana was not hers and likely belonged to her boyfriend. The

Commonwealth called Officer Meek as a rebuttal witness and he testified that

he never heard Appellant say anything about her boyfriend driving her car or

being the true owner of the marijuana.

Appellant cites Commonwealth v. Davis, 280 A.2d 119, 121 (Pa.

1971), for the proposition that, “the fact of possession loses all persuasiveness

if persons other than the accused had equal access with him to the place in

which the property was discovered.” In the instant case, however, Appellant

failed to establish that she and her boyfriend shared equal access to the

vehicle. The vehicle was registered to Appellant and she was the sole

occupant on the day in question. Based on the totality of the circumstances,

and viewing the evidence in the light most favorable to the Commonwealth,

the evidence was sufficient to support the finding that Appellant constructively

possessed the marijuana and related paraphernalia, which was found in the

center console of her vehicle. See Commonwealth v. Best, 120 A.3d 329

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(Pa. Super. 2015) (finding that sufficient evidence existed to support

appellant’s conviction for possession of marijuana where appellant was the

sole occupant of the vehicle and marijuana was found in the center console).

Appellant is not entitled to relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/29/19

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