Com. v. Vera, R.

• Court: Superior Court of Pennsylvania
• Decided: November 19, 2020
• Docket: 1411 EDA 2019
• Status: Unpublished

Opinion

J-S42025-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RAMON VERA : : Appellant : No. 1411 EDA 2019

Appeal from the Judgment of Sentence Entered April 22, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008751-2018

BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: Filed: November 19, 2020

Appellant, Ramon Vera, appeals from the April 22, 2019 judgment of

sentence imposing nine months’ probation after the trial court found Appellant

guilty of possession of a controlled substance.1 We affirm.

The trial court summarized the factual history as follows:

On September 22, 2018, at approximately 9:55 a.m., Officer Watson and his partner[,] Officer Rivera[,] were conducting a narcotic[s’] surveillance [operation] in the area of 3100 Custard Street, in the city and county of Philadelphia[, Pennsylvania]. Looking through the front windshield of his unmarked vehicle, and using the aid of 10x50 binoculars, Officer Watson observed [an] unknown black male engage in a hand-to-hand [drug] transaction with an individual later identified as Meeker. Prior to leaving the area, the unknown black male briefly spoke to Appellant [and then walked] westbound on Clearfield Street and out of Officer ____________________________________________

135 P.S. § 780-113(a)(16). Appellant was sentenced to a minimum of nine months’ probation and a maximum of nine months’ probation. J-S42025-20

Watson's sight. Officer Watson then observed Appellant approach another male, later identified as [Bazzoli.2] They engaged in a conversation[,] and Appellant went to a nearby vacant lot. Officer Watson could not see in the lot or any of the items that were in the lot at that time. Once Appellant returned, he exchanged an object [with Bazzoli] for United States currency. After [Bazzoli] left the area, Officer Watson, gave his description and direction of travel to his backup officers. Officer Watson then observed another black male, later identified as [Kittrell3], approach Appellant. Appellant bent down and went under a [utility company] truck, parked six to eight [car lengths] in front of Officer Watson's vehicle. [Kittrell] immediately followed Appellant under the truck. At that point, Appellant retrieved objects from under the truck and dropped the objects in [Kittrell's] palm. [Kittrell] then left the area with another black male, later identified as Rollins, and handed Rollins the unknown objects. Officer Watson gave their description[s] to his backup officers.[4] Shortly after, Officer Watson observed Appellant go back to the vacant lot for about [five] minutes. He then exited the lot and went to the corner of Custard [Street] and [East] Allegheny [Avenue]. The length of the surveillance involving Appellant took approximately 30 minutes. In the presence of Officer Watson, backup officers arrested Appellant. Appellant did not attempt to run and no narcotics were found on his person. Upon inspection, no narcotics were recovered from the vacant lot [or from] the [utility company] truck. There was, however, $20[.00] of United Stated currency recovered from Appellant.

____________________________________________

2 The trial court identified the male individual as “Razzoli.” The record demonstrates that the correct spelling of the individual’s last name is “Bazzoli.” See Commonwealth Exhibit C-3.

3 The trial court identified the male individual as “Kitrell.” The record demonstrates that the correct spelling of the individual’s last name is “Kittrell.” See Commonwealth Exhibit C-2.

4 Bazzoli, Kittrell, and Rollins were subsequently stopped by the police and, upon being searched, were each found to be in possession of a controlled substance, as discussed infra.

-2- J-S42025-20

Trial Court Opinion, 12/6/19, at 1-2 (record citations and footnotes 1 and 2

omitted).

Appellant was charged with manufacture, delivery, or possession with

the intent to manufacture or deliver a controlled substance5 and possession of

a controlled substance. Appellant waived his right to a trial-by-jury, and on

April 16, 2019, the trial court found Appellant guilty of possession of a

controlled substance.6 On April 22, 2019, the trial court sentenced Appellant

to nine months’ probation. This appeal followed.7

Appellant raises the following issue for our review: “Was [A]ppellant's

conviction impermissibly based on conjecture and speculation where the

prosecution's evidence was insufficient to prove that [A]ppellant ever

possessed [a] controlled substance?” Appellant’s Brief at 4.

Appellant raises a sufficiency of the evidence claim for which our

standard of review and scope of review is well-settled.

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 ____________________________________________

5 35 P.S. § 780-113(a)(30).

6 The trial court found Appellant not guilty of manufacture, delivery, or possession with the intent to manufacture or deliver a controlled substance.

7 Appellant and the trial court complied with Pa.R.A.P. 1925.

-3- J-S42025-20

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 proof or 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 the 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. Pappas, 845 A.2d 829, 835-836 (Pa. Super. 2004)

(citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004). To preserve a

sufficiency claim, an appellant’s Rule 1925(b) statement must specify the

element or elements upon which the evidence was insufficient.

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008).

Section 780-113(a)(16) of The Controlled Substance, Drug, Device and

Cosmetic Act prohibits the act of:

[k]nowingly 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). A defendant possesses a controlled substance for

purposes of Section 780-113(a)(16) if the defendant “knowingly procured or

received the [controlled substance] possessed or was aware of his control

thereof for a sufficient period to have been able to terminate his possession.”

18 Pa.C.S.A. § 301. “Possession can be found by proving actual possession,

-4- J-S42025-20

constructive possession[,] or joint constructive possession.”

Commonwealth v. Heidler, 741 A.2d 213, 215 (Pa. Super. 1999) (citations

omitted), appeal denied, 758 A.2d 660 (Pa. 2000). Where a defendant is not

in physical possession of the controlled substance, the Commonwealth is

required to establish that the defendant had constructive possession of the

controlled substance to support the conviction. Commonwealth v. Hopkins,

67 A.3d 817, 820 (Pa. Super. 2013), appeal denied, 78 A.3d 1090 (Pa. 2013).

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 []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 []held that constructive possession may be established by the totality of the circumstances.

Id. (citation omitted). The Commonwealth may prove constructive

possession by circumstantial evidence or, stated another way, the

Commonwealth may “establish facts from which the [trier-of-fact] can

reasonably infer that the defendant exercised dominion and control over the

contraband at issue.” Commonwealth v. Parrish, 191 A.3d 31, 37

(Pa. Super. 2018) (citations omitted), appeal denied, 202 A.3d 42 (Pa. 2019).

Here, Appellant contends that the Commonwealth “failed to prove

beyond a reasonable doubt that [A]ppellant possessed or constructively

possessed a controlled substance, and/or the specific type of [] controlled

substance[.]” Appellant’s Rule 1925(b) Statement, 7/10/19, at ¶ 4; see also

-5- J-S42025-20

Appellant’s Brief at 11-18. Appellant argues that he was convicted of

possession of a controlled substance despite the absence of a controlled

substance found on his person at the time of arrest or evidence establishing

that Appellant provided a controlled substance to two individuals (Bazzoli and

Kittrell). Appellant’s Brief at 11-12. Appellant asserts that “[b]ecause there

was no direct evidence to determine when or from whom the two males

(Bazzoli and Kittrell) acquired the drugs found on them, this evidence, absent

conjecture or speculation, was insufficient to prove that [A]ppellant possessed

or delivered drugs to them, and is insufficient to prove guilt beyond a

reasonable doubt.” Id. at 12.

In finding sufficient evidence to support a conviction of possession of a

controlled substance, the trial court stated,

While there were no drugs found in the vacant lot or under the [utility company] truck, there is substantial evidence that [Appellant exercised a] power to control and the intent to exercise that control over the recovered controlled substances. [Officer Watson] observed two[8] different buyers exchange United States currency for objects retrieved from Appellant. Appellant retrieved those objects from two different locations. Notably, two separate drugs were recovered from the buyers. [Officer Watson] observed Appellant engage in these transaction[s]. Additionally, [the police surveillance] was not a quick interaction. This surveillance took approximately 30 minutes to confirm that [] criminal activity was afoot. When viewed in their totality, the facts and circumstances support the finding that Appellant was in constructive possession of the controlled substances [later] found on the two buyers, ____________________________________________

8 The record demonstrates that only one individual (Bazzoli) provided Appellant United Stated currency in exchange for the item received. N.T., 4/16/19, at 14-15.

-6- J-S42025-20

[Bazzoli and Kittrell]. The abovementioned facts and observations [were] not based on conjecture. Nor [were they] based on speculation.

Trial Court Opinion, 12/6/19, at 5-6.

The record demonstrates that Officer Watson positioned himself in an

unmarked surveillance vehicle for purposes of observing suspected drug

activity in the area of Custer Street and that he witnessed such activity

between an individual, who was not Appellant, and a third-party. During his

surveillance, Officer Watson observed Appellant enter a vacant lot, where he

remained for several minutes. Upon exiting the vacant lot, Appellant engaged

in an encounter with Bazzoli in which Appellant exchanged an item, which

Officer Watson was not able to identify from his surveillance location, for

currency provided by Bazzoli. N.T., 4/16/19, at 14, 23. The parties stipulated

that Bazzoli was subsequently stopped by another police officer and a “green

leafy substance” was discovered on Bazzoli’s person. Id. at 32-33; see also

Commonwealth Exhibit C-3. The substance obtained from Bazzoli’s person

was identified as marihuana. Commonwealth Exhibit C-3A. The parties also

stipulated that at the time Appellant was stopped by the police, he had $20.00

on his person. N.T., 4/16/19, at 33. Upon a search of the vacant lot, the

police did not recover any controlled substances. Id. at 29.

After Appellant completed his transaction with Bazzoli, Kittrell

approached Appellant. Id. at 15. Both men positioned themselves under a

utility company truck that was parked on the same side of the street as, and

six to eight car lengths away from, Officer Watson’s surveillance vehicle. Id.

-7- J-S42025-20

at 15. Once under the truck, Appellant retrieved an object, which Officer

Watson was not able to identify, and gave that object to Kittrell. Id. at 15,

24-25. Upon exiting from under the truck, Kittrell walked away from Appellant

and encountered a third individual, later identified as Rollins. Id. Kittrell

handed the object he received from Appellant to Rollins. Id. The parties

stipulated that Kittrell was stopped a short time after his transaction with

Appellant and was found with “one clear packet with a blue glassine insert

stamped [‘]Chuckie[’] which contained an off-white powdery substance.” Id.

at 33; see also Commonwealth Exhibit C-2. The substance obtained from

Kittrell’s person was heroin and fentanyl. Commonwealth Exhibit C-2A.9 The

police did not recover any controlled substances upon a search of the utility

company truck. N.T., 4/16/19, at 29.

In viewing all of the evidence presented at trial in the light most

favorable to the Commonwealth, as verdict winner, there is sufficient

evidence to enable the trial court, as fact-finder, to find that Appellant

constructively possessed the controlled substances. Appellant relies on

Commonwealth v. Lawson, 309 A.2d 391 (Pa. 1973), and its progeny of

cases, in support of his argument that “a single commercial transaction on a

public street, even when accompanied by other [‘]suspicious[’] factors, is ____________________________________________

9The parties stipulated that Rollins was stopped and was found with “two clear packets, each with a blue glassine insert stamped [‘]Chuckie[’] that contained an off-white powdery substance.” N.T., 4/16/19, at 33; see also Commonwealth Exhibit C-1. The substance contained in the two packets was heroin. Commonwealth Exhibit C-1A.

-8- J-S42025-20

insufficient to establish even probable cause.” Appellant’s Brief at 12

(emphasis added). We find Appellant’s argument, and his reliance on this line

of cases, unavailing in the case sub judice. Appellant in the case sub judice

did not challenge the constitutionality of his arrest, i.e. whether there was

probable cause to support Appellant’s arrest but, rather, challenged the

sufficiency of the evidence to support his conviction. The facts of Lawson,

on the issue of constructive possession, are analogous to the facts in the case

sub judice. In Lawson, our Supreme Court found there was sufficient

evidence to establish constructive possession of a controlled substance by the

husband where the evidence demonstrated that the husband obtained items

from the wife, the husband then handed the items to a buyer, and items,

similar to the items distributed by the husband to the buyer, were

subsequently found on the wife’s person and determined to be a controlled

substance. Lawson, 309 A.2d at 395. The Lawson Court stated, “it could

be reasonably inferred that both the husband and the wife controlled and sold

the” controlled substance. Id.

In the instant case, the evidence established through the surveillance

and interdiction efforts of the police demonstrated that Appellant obtained

items from the alley and from underneath the utility company truck, that

Appellant handed the items to the buyers, and that items subsequently

recovered from the buyers included controlled substances (marihuana, heroin,

and fentanyl). The totality of the circumstances demonstrates that Appellant’s

constructive possession of the controlled substances is inferred from the facts,

-9- J-S42025-20

namely Appellant’s suspicious interactions with Bazzoli and Kittrell, during

which Appellant handed each individual an item, or items, and the later

discovery of controlled substances on each individual’s person within a close

proximity of time to their interaction with Appellant. See Commonwealth v.

Bostick, 958 A.2d 543, 561 (Pa. Super. 2008) (finding sufficient evidence of

constructive possession of a controlled substance where police officers

observed the defendant engaging in separate transactions with buyers who

were later found in possession of a controlled substance), appeal denied, 987

A.2d 158 (Pa. 2009). Therefore, Appellant’s issue is without merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/19/20

- 10 -