Commonwealth v. Aviles

615 A.2d 398, 419 Pa. Super. 345, 1992 Pa. Super. LEXIS 3628

• Court: Superior Court of Pennsylvania
• Decided: October 22, 1992
• Docket: 01650
• Status: Published

Opinions

POPOVICH, Judge:

This case has been granted en banc consideration to assess a challenge to the judgment of sentence imposed following a bench trial and conviction for various drug offenses. We affirm.

The sole issue concerns the sufficiency of the evidence to sustain Maria Aviles’ convictions. To assess such a claim, one looks to a time-honored test oft-stated in this jurisdiction; to-wit:

... in determining if the evidence was sufficient to sustain the conviction, the test is, whether accepting as true all of the evidence (be it direct or circumstantial) and all reasonable inferences arising therefrom, upon which the jury, or the trial court in a nonjury trial, could properly have reached its verdict, is it sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime of which [s/]he has been convicted.

Commonwealth v. Wrona, 442 Pa. 201, 204, 275 A.2d 78, 79-80 (1971). Accord Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983); Commonwealth v. Thornton, 494 Pa. 164, 430 A.2d 1168 (1981); Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Helm, 485 Pa. 315, 402 A.2d 500 (1979); Commonwealth v. Williams, 447 Pa. 206, 290 A.2d 111 (1972); Commonwealth v. Kirkland, 413 Pa. 48, 195 A.2d 338 (1963). Of course, the record in the instant appeal must be considered and read in the light most favorable to the Commonwealth. E.g., Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971).

So viewed, the evidence reveals that at 7:30 p.m. on the 23rd of January, 1989, Police Officer Daniel McEwen, in the company of five other officers, arrived at 181 West Wishart Street, Philadelphia, to execute a search warrant obtained on the strength of a first-time informant’s account of drug activity and follow-up surveillances by Officer McEwen.¹

Once at the site, Officer McEwen knocked on the front door and announced, “Police”. Ms. Aviles opened the door and was informed that the police were requesting entry into the house. Consent was given. All those present were advised to remain calm and that the police had a search warrant. At this time, Ms. Aviles addressed Officer McEwen: “She said don’t talk to anyone else, talk to me. This is my place.”

A team of officers conducted a search of the premises. Within 10 minutes of their arrival, Officer McEwen was called to the second floor, rear bedroom and Officer Tames pointed to an open dresser drawer containing a brown metal box. The box was found to contain: Officer Tames stated that the door to the rear bedroom was open and he “did not break any lock”. With regard to the metal box, Officer Tames testified:

a) 54 plastic packets, each containing a white powder and sealed with gold tape;

b) 3 different sized sandwich baggies containing a white powder;

c) 7 clear plastic packets sealed with orange tape;

d) a small glass bottle containing a white powder; and

e) 3 black and green grinders and a screen, all of which contained a white residue.²

... when I got the box out of the drawer ... it was closed and I just pulled this [latch] up like that and opened it. * * * I didn’t pry it open. I just opened it.

Then, Officer McEwen proceeded to the second bedroom, which was the middle bedroom on the same floor. There McEwen observed Sergeant Perez “on his hands and knees removing floor boards ... from the eastern-most wall of that room.” Retrieved from under the floor was an “open toolbox” containing $10,538 in cash. McEwen also found a second box in the middle bedroom which contained:

a) 1 scale with 5 weights marked 50, 20, 20, 10 & 5 grams;

b) Electronic heat-sealer (10" x 10") with a plug;

c) 2 strainers (10" & 5" in diameter);

d) Screen;

e) Hundreds of empty, clear plastic packets; and

f) 12 rolls of gold tape.

Sergeant Perez was the first officer to enter the middle bedroom, and, in respect thereto, he stated that he did not have to force the door open to get in: “The door [he] went into, to get into the room, [he] didn’t break.”

The police found proof that Aviles resided at the stated address. Likewise, Ms. Aviles admitted being the lessee and that, for approximately 5 years prior to the search, she had rented the rear and middle bedrooms for $35 a week to supplement her receipt of $474 a month from the Department of Public Welfare.³ She and her 3 children slept on the second floor, front bedroom next to the middle and rear bedrooms.

Ms. Aviles testified that the rear and middle bedrooms had been rented to her sister (Zoraida) and brother-in-law (nicknamed “Flea”) from the beginning of December, 1988 until the police arrived.⁴ She denied having any knowledge of the drugs, the location of the drug paraphernalia or the sawed-out floor-compartment wherein the money was hidden.

It was Jorge’s belief that the sawed-out floor-boards in the middle bedroom had been perpetrated by the police during their search since, he claimed, no such opening existed prior thereto. This was confirmed by Aviles’ sister (Gladys), who rented the same two bedrooms from 1987 until 1988 and noticed no floor boards having been sawed through and used as a storage area. On the other hand, the police testified to the contrary: McEwen “didn’t observe any sawdust or fresh type markings [in the floor boards]. They appeared to be well worn[, i.e., he] wouldn’t say it was recently cut.”

Lastly, Aviles testified that locks were placed on the doors to the rear and middle bedrooms by her sister immediately upon renting the rooms; she denied having any keys to the locks; she denied selling drugs; and she did not know about the metal boxes or the hole in the floor in the middle bedroom or its contents. The trial court, after hearing from both sides, found Ms. Aviles guilty as charged and revoked her bail.⁵

Post-trial motions were filed, denied and sentence was imposed. On an initial appeal to this Court, a panel majority (with Cavanaugh, J. dissenting) reversed the judgment of sentence and discharged Ms. Aviles. However, on petition of the Commonwealth, this Court granted en banc certification to determine whether the Commonwealth established, beyond a reasonable doubt, Aviles’ guilt for knowingly or intentionally possessing a controlled substance, possession with intent to manufacture or deliver a controlled substance and possession of drug paraphernalia. See 35 P.S. § 780-113(a)(16), (30) & (32) (Supp.1992).

The standard of review having been articulated earlier, it will not be repeated here, except we add to the appellate-review-equation the reliance upon “constructive possession” as a vehicle by which to prove Ms. Aviles’ knowing or intentional possession of cocaine and drug paraphernalia. Commonwealth v. Mudrick, 510 Pa. 305, 507 A.2d 1212 (1986). Since the cocaine and drug paraphernalia were not found on Ms. Aviles’ person, she was properly convicted only if the Commonwealth proved joint constructive possession. See Commonwealth v. Griffin, 230 Pa.Super. 425, 326 A.2d 554 (1974).

Our Supreme Court has stated on this subject that:

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.” Commonwealth v. Davis, 444 Pa. 11, 115, 280 A.2d 119, 121 (1971). We subsequently defined “conscious dominion” as “the power to exercise that control.” Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134 (1983). Though these tests may be helpful and logical in the abstract, application to actual factual situations, particularly when multiple actors are involved, has proven difficult for our ... courts in cases involving controlled substances located on premises in joint possession but not on the actual person of any of the parties entitled to occupy those premises.

To aid application, we have held that constructive possession may be established by the totality of the circumstances. Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974). We took a further step toward resolving these problems in Commonwealth v. Macolino, supra. In Macolino, contraband and otherwise legal items used in the drug trade were found in the common bedroom of the Macolinos, a married couple. We 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.” 503 Pa. at 208, 469 A.2d at 135. See also Commonwealth v. Carroll, [510] Pa. [299], 507 A.2d 819 (1986).

... We hold today that even absent a marital relationship constructive possession may be found in either of both actors if contraband is found in an area of joint control and equal access. * * * [In] the Macolino analysis!,] shared access to and control of the area where the contraband was found was critical.

Mudrick, supra, 510 Pa. at 308-09, 507 A.2d at 1213-14 (Emphasis added). Accord Commonwealth v. Grekis, 411 Pa.Super. 494, 601 A.2d 1275 (1992); Commonwealth v. Parsons, 391 Pa.Super. 273, 570 A.2d 1328 (1990); Commonwealth v. Santiesteban, 381 Pa.Super. 18, 552 A.2d 1072 (1988); Commonwealth v. Davis, 331 Pa.Super. 285, 480 A.2d 1035 (1984).

The trial court concluded, in denying post-trial motions, that “Maria Aviles was the lessee at the subject premises and she had access to all the bedrooms, none of which were locked.” Trial Court Opinion at 3. The evidence is consistent with such conclusions. Specifically, Ms. Aviles admitted that she was the lessee at 812 West Wishart, that she had subleased 2 of the 3 upstairs bedrooms for the past 5 years for a fixed dollar amount, and that the most recent sub-lessees were her sister and brother-in-law.

The trial court also concluded that Ms. Aviles had “access to all the bedrooms”. In none of the testimony reviewed by this Court was there a reference by either Ms. Aviles or her witnesses that she was denied access to the rear and middle bedrooms. Albeit Ms. Aviles stated that her sister and brother-in-law affixed “locks” to the rented bedrooms, and Aviles’ son testified that there were “locks” on the two rooms thereafter, the account of the officers was to the contrary.⁶ This created a disputed issue of fact.

Since the trial court, as the trier-of-fact, had the prerogative to believe all, some or none of the testimony proffered, the verdict rendered in this case reflects the trial court’s acceptance of the officers’ version of the physical condition of the residence and the 2 bedrooms housing Zoraida, “Flea” and their children. Accordingly, such determinations, being buttressed by the record, we are not at liberty to usurp the trial court’s roles as credibility-assesser and arbiter-of-fact or substitute our (different) conclusions on matters within its bailiwick. Contrast Helms, supra.

Continuing, the principles enunciated in Mudrick, supra, are equally applicable to aid us in determining whether joint constructive possession (power to control and intent to control) has been proven by the Commonwealth.

Initially, we set forth some guideposts to assist us in our endeavor. First, in constructive possession cases involving drugs, all facts and circumstances surrounding the possession of drugs are relevant in determining whether contraband was possessed with the requisite intent to deliver or manufacture. See Davis, supra. Second, in conjunction with the quantity of drugs possessed, the courts have considered the presence of paraphernalia used in the narcotics trade as well as the presence of inordinately large sums of cash in ferreting out the element of intent. See Helms, supra, citing Commonwealth v. Fisher, 316 Pa.Super. 311, 462 A.2d 1366 (1983); Commonwealth v. Bundridge, 303 Pa.Super. 267, 449 A.2d 681 (1982); Commonwealth v. Smith, 250 Pa.Super. 460, 378 A.2d 1239 (1977). Finally, albeit not dispositive, a defendant’s presence at the location where drugs are discovered is a factor in establishing knowledge that contraband is present and his/her exercise of dominion and control over the same. See Parsons, supra, citing Commonwealth v. Harris, 263 Pa.Super. 110, 397 A.2d 424 (1979).

In evaluating proof of joint constructive possession, one must be cognizant of the “realities” of criminal law enforcement and the “totality of circumstances” before one may be allowed to “infer” from a set of facts that possession of contraband “was more likely than not” properly assignable to a defendant.

Instantly, viewing the evidence in a light most favorable to the verdict-winner, we find it reasonable to conclude that Ms. Aviles was the lessee of the premises in which a large amount of cash, drugs and drug paraphernalia were found; the day preceding the search, an informant had witnessed the receipt of large quantities of cocaine from drug dealers on two separate occasions at Aviles’ residence; on the same day, the informant heard Aviles’ sister and brother-in-law advise suppliers that processing the drugs would not be complete until the following day because they were “backed up”; the informant witnessed a brick of cocaine being cut, weighed and individually packaged “on [the] kitchen table”; no more than an hour-and-a-half after the informant’s viewing and communication of the same to the police, a surveillance of the premises disclosed 3 occasions in which unknown Hispanic males walked into the premises in question with small packages and exited within a “few seconds without those packages”; a surveillance of the premises 3 hours prior to the warranted search produced 2 additional observations of similar activity as that which transpired the day before; Ms. Aviles was on the premises when the search was conducted; and, the 2 second-floor bedrooms in which money, drugs and drug paraphernalia were found were situated next to Ms. Aviles’ sleeping quarters and were accessible to anyone wishing to enter while in the residence.

From the evidence presented to the factfinder, when viewed under the totality of the circumstances and drawing all reasonable inferences therefrom bounded only by the “realities” of drug activity and its attendant variables, we find that Ms. Aviles had joint control over and equal access to areas where cocaine, drug paraphernalia and money were found — the rear and middle bedrooms.

The factfinder could properly find that Ms. Aviles and her sub-lessees not only had control and access to all the bedrooms but the whole residence. Thus, analyzing all the circumstances, the trial court could infer Ms. Aviles’ constructive possession of the cocaine, drug paraphernalia and money which were openly accessible to her in the rear and middle bedrooms.

We find the evidence, and the reasonable inferences to be drawn therefrom, to be supportive of the verdicts. Therefore, we affirm the judgment of sentence issued by the Philadelphia County Court of Common Pleas.

WIEAND, J., files a dissenting Opinion in which President Judge ROWLEY, and MONTEMURO and FORD ELLIOTT, JJ., join.

1 . In particular, the probable cause section of the warrant provided that, between 1:30 p.m. and 2:30 p.m. on Sunday, the 22nd of January, 1989, the informant was inside the Wishart Street residence in the company of two "occupants” identified as "Zoraida” and "Flea”. The two “r[a]n a cut house” in which:

... they obtain[ed] large amounts of Cocaine in bulk form, from drug dealers, and they then cut and packagefd] these drugs into smaller packets, thus preparing the drugs for street sale, all in various amounts/weights. The Informant kn[e]w this to be true because during the aforementioned dt. and times, the Informant did observe on 2 separate occasions, unknown hispanic males enter[] this location and hand[ ] bulk amounts of COCAINE to the above mentioned persons, those persons then on each occassions [sic] telling the unknown hispanic males, "We can’t cut this until tonight, you can come for it around 10:00 tomorrow night, we're backed up”. During this period the Informant did observe these aforementioned persons retrieve from a gray tool box, a large square brick of compressed white powder, (COCAINE), and cut this into smaller pieces, weighing and packaging each piece individually on a kitchen table.

Because of the information received, Officer McEwen conducted a surveillance of the

Wishart Street address on the following dates and times, all of which were included in the probable cause section of the warrant which read:

On 1-22-89 at 5:25 P.M., the Affiant did conduct a surveillance from a vantage point of 181 Wishart St., and remain there until 5:50 P.M., same date. During this period, the Affiant observed on 2 separate occassions [sic ], vehicles drive to this location and different unknown hispanic males did enter this location carrying small packages and left after only a few seconds without those packages.

On 1-22-89 between 8:45 P.M. and 9:10 P.M., the Affiant did again return to this location and did conduct a second surveillance of location and observed on 1 occassion [sic] an unknown hispanic male walk to the front door, knock and was let in while carrying a small package and left without this package after only a few seconds. On 1-22-89 between 11:00 P.M., the Affiant conducted a surveillance of location yielding no activity observed.

On 1-23-89 between 4:10 P.M. and 4:30 P.M., the Affiant conducted a surveillance of location and observed on 2 separate occassions [sic ], unknown hispanic males drive to the front of this location and appeared to dropp [sic] off small items wrapped in green plastic trash type material on each occassion [sic ], each only staying inside for a few seconds.

The search warrant was admitted into evidence without objection. See Trial Court Opinion at 4.

2 . More particularly, Officer McEwen testified that he inventoried:

a) Ziplock bags containing 199 grams of chunky white powder (cocaine);

b) Clear plastic ziplock bag containing 112.1 grams of cocaine;

c) Small white bag containing 35.1 grams of cocaine;

d) 54 pink plastic packets containing white powder;

e) 8 packets, 3 of which were field tested for cocaine; net weight: 175, 168, 119, 146, 163, 132, 85 & 142 milligrams, respectively;

f) 1 ziplock bag containing 7 sealed plastic packets of white powder — 2 packets selected at random contained cocaine and weighed 197 & 270 milligrams, respectively;

g) 3 black and green plastic grinders, each with a residue of white powder (cocaine); and

h) 1 clear glass jar containing 5.97 grams of a chunky white substance which was not controlled.

3 . Ms. Aviles testified that she rented the rowhouse in question (which is no more than 16 feet in width) for $175 a month and paid $75 for electricity; $27 for gas; and $100 a month for heating oil. Her family’s living expenses came to $375, an amount which had to be offset by the receipt of $237 every two weeks from the Department of Public Welfare and the rent ($35) for the 2 bedrooms.

4 . Interestingly, on February 1, 1989, Aviles’ counsel had photographs taken of the premises. All were of the rooms searched by the police on January 23, 1989, and depicted the disheveled condition in which the bedrooms and hallway were left, allegedly, by the police: clothing thrown willy-nilly and the second floor hallway was littered with clothing and other debris. All of this, supposedly, remained intact for 10 days after the search and following, according to Aviles’ son (Jorge), "Zoraida and Flea’s” flight from the premises on the evening following the police’s search — "They picked up the children and they picked up their clothes and they left ... and [Jorge] ha[s]n’t seen them no more.” Yet, those same two bedrooms still appeared to be cluttered with clothing and other personal belongings of Zoraida and "Flea” well after they exited the premises on the heels of the police search.

Further, neither Ms. Aviles nor any of her witnesses (son and sister, Gladys) knew the number of children in Zoraida's family (Jorge said: 5; Ms. Aviles said: 4). And, during the entire time that Zoraida, "Flea” and the children lived in Aviles’ home, Gladys indicated that no one told her Zoraida was in town.

Also, it needs to be mentioned that a private detective was hired by Aviles’ counsel to take photographs of the condition of the bedrooms after the search. However, no effort was made to produce “Zoraida”. All that was achieved was a "stipulation" by counsel that the defense attorney had spoken to a “Zoraida”. This was done, purportedly, to establish that Maria Aviles and "Zoraida” were not one and the same person.

5 . Thereafter, bail was reinstated in the amount of $100,000.00 pending appeal. A property bond was posted by friends of Ms. Aviles.

6 . Sergeant Perez and Officer Tames repeatedly denied having used force to enter the rear and middle bedrooms; each testified that the doors were open upon their arrival and contained no locks.