J-A07041-21
2021 PA Super 119
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRY'DRICK DA'MICHAEL WRIGHT :
:
Appellant : No. 815 MDA 2020
Appeal from the Judgment of Sentence Entered April 28, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0006129-2018
BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED JUNE 09, 2021
Appellant, Bry’Drick Da’Michael Wright, appeals from the judgment of
sentence of 42 to 84 months’ incarceration entered in the Court of Common
Pleas of Dauphin County after a jury found him guilty of Possession With Intent
to Deliver (“PWID”), Possession of Marijuana—Small Amount Personal Use,
and Use or Possession of Drug Paraphernalia.1 He challenges the denial of his
motion to suppress a state parole officer’s warrantless vehicle search, the
sufficiency of evidence offered to prove his constructive possession of
contraband recovered from the vehicle, and the admission of incriminating
text messages retrieved from his cell phone. We affirm.
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* Former Justice specially assigned to the Superior Court.
135 P.S. §§ 780-113(a)(30), (31), and (32), respectively.
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The trial court’s Pa.R.A.P 1925(a) opinion provides the pertinent facts
and procedural history, as follows:
A criminal complaint [charging Appellant with multiple narcotics
and firearm violations] was filed October 4, 2018 and Bry’Drick
Da’Michael Wright (hereinafter “Appellant”) was formally
arraigned January 4, 2019. On February 25, 2019, Appellant filed
a pre-trial motion to suppress, and a suppression hearing was held
March 21, 2019. On June 19, 2019, [the trial court] denied
Appellant’s pre-trial motion to suppress. On December 19, 2019,
Appellant’s Motions in limine and demand for an offer of proof
regarding cell phone extraction were ordered to be heard
immediately prior to trial.
[Appellant’s jury trial commenced on March 9, 2020. The
Commonwealth presented evidence that,] [o]n October 4, 2018,
Adult Parole Officer (“APO”) [Arlen] Shipley and Harrisburg Police
Officer Daril Foose partnered to perform a probation check on
Appellant’s brother, Marquis Emery, an individual who was under
APO Shipley’s supervision at the time. [N.T.] Jury Trial, March 9-
11, 2020, page 52 (hereinafter “N.T. at __”). While performing
the check, the two noticed the smell of “freshly burnt marijuana.”
N.T. at 59.
APO Shipley [testified] that Appellant stood up and in doing so
revealed that he was sitting on a small bag of marijuana, which
Appellant quickly admitted was his. N.T. at 61-62. After noticing
Appellant trying to give a car key to Angela Murray, APO Shipley
questioned Appellant about the key, to which Appellant replied
that it was just a key to his locker at work. N.T. at 95-96. APO
Shipley subsequently [used the key to] perform a search of the
Chevrolet Impala and found a handgun in the center console. N.T.
at 71.
Officer Foose [testified] that Appellant admitted that he was
sitting on the bag of marijuana prior to standing up. N.T. at 94.
After APO Shipley found the gun, Officer Foose placed Appellant
under arrest and searched the remainder of the car, finding a
white shopping bag containing marijuana and four bundles of
fentanyl and heroin, as well as a brown box containing multiple
empty white and blue heroin baggies. N.T. at 103.
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Officer Foose obtained consent from Appellant to search his cell
phone, N.T. at 114, and noticed that his phone contained
messages with multiple individuals for the purchase of firearms as
well as the distribution and sale of drugs. N.T. at 115.
Subsequently, Officer Foose seized the cell phone and ordered a
“phone dump” – forensic samples of the cell phone’s content.[fn]
[FN] Commonwealth exhibits 21 through 27 contain the
messages seized in the phone dump.
Chief John Goshert also testified about the messages contained
on the Appellant’s cell phone. First, he testified to several
messages that linked the phone to the Appellant. See N.T. at 197,
198. For example, one of these text messages says, “you’re
texting why not take my calls Bry’Drick[.]” N.T. at 198,
Commonwealth’s Exhibit 28. There was no indication that the
reply messages were sent by someone other than the Appellant.
Additionally, Chief Goshert testified about text messages that
linked the Appellant to the Chevy Impala. N.T. at 200. These
included messages sent to the Appellant that said, “grab the
Impala come get a n***a[,]” to which the Appellant responded,
“on my way.” Commonwealth’s Exhibit 21-22.[fn] Finally, Chief
Goshert testified about several text messages relating to smoking
marijuana. N.T. at 203-230. See generally Commonwealth’s
Exhibits 9-20.
[FN] There were additional text messages linking the
Appellant to the Chevy Impala. N.T. at 200-203.
[At the conclusion of the jury trial], Appellant was found guilty [of
the above-listed offenses]. On April 28, 2020, . . . he was
sentenced to a 42 to 84-month sentence [of incarceration on the
charge of PWID] and [an additional 12-month probationary term
to run concurrently.] On May 4, 2020, Appellant filed a post-sentence motion raising a weight of the evidence claim. On May
19, 2020, [the trial court] denied Appellant’s post-sentence
motion.
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On June 9, 2020, a timely notice of appeal was filed in the
Pennsylvania Superior Court. In compliance with [the trial court’s]
1925 order, Appellant filed an “Amended Statement of Errors
Complained of on Appeal” (“Concise Statement”) [raising multiple
issues].
Trial Court Opinion, 7/22/2020, at 1-4.
Appellant presents the following questions for this Court’s consideration:
1. Did not the court err in denying Appellant’s motion to suppress
the fruits of the warrantless search of a vehicle by a state
parole agent and a police officer?
2. Did not the court err in admitting text messages extracted from
a cell phone when the Commonwealth failed to authenticate
such evidence under Pa.R.E. 901 by establishing Appellant’s
authorship of such communications?
3. Was not the evidence insufficient to sustain a conviction for
possessing contraband that was found in a vehicle that
Appellant did not own when there was insufficient proof of his
constructive possession of the contraband and when he was
merely present along with a group of other persons on a porch
near the parked vehicle?
Appellant’s brief, at 7.
In Appellant’s first issue, he maintains the court erred in denying his
motion to suppress all evidence obtained from the state parole agent’s
warrantless vehicle search of the Chevrolet Impala. The standard of review
an appellate court applies when considering an order denying a suppression
motion is well established. “On review from an order suppressing evidence,
we ‘consider only the evidence from the defendant's witnesses together with
the evidence of the prosecution that, when read in the context of the entire
record, remains uncontradicted.’” Commonwealth v. Johnson, 202 A.3d
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125, 127 (Pa. Super. 2019). “This Court is bound by the factual findings of
the suppression court where the record supports those findings and may only
reverse when the legal conclusions drawn from those facts are in error.”
Commonwealth v. Haynes, 116 A.3d 640, 644 (Pa. Super. 2015).
Because the Commonwealth prevailed in the suppression court, we
consider only the Commonwealth's evidence and the evidence presented by
Appellant that remains uncontradicted. Commonwealth v. Harlan, 208
A.3d 497, 499 (Pa. Super. 2019). Additionally, we may consider only the
evidence presented at the suppression hearing. In re L.J.,
79 A.3d 1073,
1085–1087 (Pa. 2013).
At Appellant’s March 21, 2019 suppression hearing, Agent Shipley was
the sole witness, and he testified that on the evening of October 4, 2018,
Officer Foose and he visited 1720 North Street, Harrisburg, the approved
parole residence of Marquis Emery, Appellant’s brother,2 who had been under
Agent Shipley’s active supervision as a high-risk offender. N.T., Suppression
Hearing, 3/21/19 at 6. As they drove toward the address—from which
authorities had recently confiscated 120 bundles of heroin and a firearm, and
which is otherwise situated in a high-crime, high-drug neighborhood—they
noticed four males sitting on the porch. As they alighted the vehicle, both the
agent and officer detected the smell of freshly burnt marijuana. N.T. at 8-10.
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2 The notes of testimony reveal that Appellant’s father and aunt also resided
at this residence.
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Agent Shipley addressed the group and recognized Appellant once he
began talking with him. N.T. at 11. Specifically, the agent knew Appellant
was Emery’s brother and that he was also on state parole, a status to which
Appellant admitted during their conversation. N.T. at 11-13. When Agent
Shipley asked Appellant to stand for a consented-to pat-down, he observed a
bag of marijuana on Appellant’s chair. N.T. at 13, 26. The agent also noticed
Appellant was making a subtle attempt to pass a set of keys and a single key
to his aunt, Angela Murray, but he ordered the group to leave the keys where
they were. N.T. at 13-14, 29. At this point, Agent Shipley indicated to
Appellant that he was addressing him as state parole agent to state parolee.
N.T. at 15.
When asked what the set of keys were for, Appellant said the set
belonged to his father’s van, which he had just driven to the present location.
Agent Shipley used the keys to perform a consent search of the van, which
yielded no contraband. N.T. at 14-15. The agent returned to the porch and
asked Appellant what the single key was for, and Appellant claimed it was for
his work locker. The agent deemed this a lie, he testified, as he knew from
its distinctive shape and size that it was a vehicle key. N.T. at 16-17.
With key in hand, Agent Shipley walked directly to a white Chevrolet
Impala and used the key to unlock and open a door. He entered the vehicle
and observed a semiautomatic firearm in the center console. N.T. at 17-18.
He alerted Officer Foose and other officers now on the scene of his finding and
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allowed them to complete the search, which uncovered additional marijuana,
heroin, and fentanyl. N.T. at 18-19.
Appellant argues that the small amount of marijuana discovered in his
possession and the prior drug-related history of his brother’s residence were
insufficient to create a reasonable suspicion that the Chevrolet Impala
contained contraband. As we discern Agent Shipley to have acted on more
extensive information than Appellant acknowledges in this argument and view
such information as adequate to provide reasonable suspicion supporting the
vehicle search, we deem Appellant’s argument meritless.
Our Supreme Court has summarized state parole agents' authority and
duties with respect to parolees as follows:
[S]tate parole agents' authority and duties with respect to
parolees are prescribed by two sections of the Prisons and Parole
Code. Section 6152 declares agents to be peace officers and
provides them with police power to arrest without warrant any
parolee under supervision for violating parole conditions. See 61
Pa.C.S. § 6152. Section 6153 deems parole agents to be in a
“supervisory relationship with their offenders,” aimed at assisting
parolees in rehabilitation and reassimilation and protecting the
public. Id. § 6153(a). This section further outlines the
procedures and requirements for agents to search the person and
property of offenders, see id. § 6153(b)(1), (d), and provides that
such searches must comport with the protections of the United
States and Pennsylvania Constitutions, see id. § 6153(b)(2).
Another provision prevents the exclusion of evidence from parole
or criminal proceedings based solely on a violation of the statute.
See id. § 6153(c).
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Commonwealth v. Mathis, 173 A.3d 699, 701–702 (Pa. 2017) (footnote
omitted). 3
“[P]arolees agree to ‘endure warrantless searches’ based only on
reasonable suspicion in exchange for their early release from prison.”
Commonwealth v. Curry, 900 A.2d 390, 394 (Pa. Super. 2006) (quoting
Commonwealth v. Appleby,
856 A.2d 191, 195 (Pa. Super. 2004)).
“[Parole] agents need not have probable cause to search a parolee or his
property; instead, reasonable suspicion is sufficient to authorize a search.”
Id.
A search will be deemed reasonable “if the totality of the evidence
demonstrates: (1) that the parole officer had a reasonable suspicion that the
parolee had committed a parole violation, and (2) that the search was
reasonably related to the parole officer's duty.” Gould, 187 A.3d at 935
(citation omitted). See 61 Pa.C.S. § 6153(d)(2) (grounds for state parole
agent’s property search exist “if there is reasonable suspicion to believe that
the real or other property in the possession of or under the control of the
offender contains contraband or other evidence of violations of the conditions
of supervision.”).
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3 Section 6153 also requires that, absent exigent circumstances, a parole
agent must obtain prior approval from a supervisor to conduct a property
search. 61 Pa.C.S.A. § 6153(d)(3). However, as noted supra, a violation of
the statute alone will not constitute grounds for suppression of evidence. Id.
at (c). Commonwealth v. Gould, 187 A.3d 927, 935 (Pa. Super. 2018)
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Parole officers may form reasonable suspicion based on personal
observations and third-party information. Commonwealth v. Colon, 31
A.3d 309, 315–16 (Pa. Super. 2011). For example, in Commonwealth v.
Smith,
85 A.3d 530 (Pa. Super. 2014), a parole officer smelled marijuana
during a routine walkthrough of a parolee's home. We held that this
experience gave rise to reasonable suspicion, justifying the parole officer's
search of the home.
Id. at 537.
At the suppression hearing, the Commonwealth established that Agent
Shipley had formed a reasonable suspicion that Appellant was storing
contraband in the Chevrolet Impala. Specifically, Agent Shipley encountered
Appellant sitting on the porch of his brother’s residence, a known drug
distribution address within a larger neighborhood marked by drug crime. As
he approached, Agent Shipley smelled “freshly burnt marijuana,” and he soon
discovered that Appellant had been concealing a personal baggie of marijuana
underneath himself as he sat in a chair.
Though Appellant was generally cooperative during the encounter—
readily claiming ownership of all keys resting on a table next to his chair and
consenting to the search of a van he alleged he had just driven—he lied to
Agent Shipley about the single key placed atop the others, saying it belonged
to his work locker. Agent Shipley rejected Appellant’s information, as he
unquestionably recognized the key as another car key.
At that moment, the totality of circumstances known to Agent Shipley
included: Appellant’s presence at an address implicated in the local drug
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trade; the aroma of recently smoked marijuana in the air, coupled with
Appellant’s attempt to hide the small amount of marijuana in his possession;
his effort to surreptitiously remove the car keys from the table without
catching Agent Shipley’s attention; his claim of ownership of the single key;
and, his subsequent lie about the single key belonging to his work locker,
suggesting an attempt to draw the agent’s attention away from the car to
which it really belonged to prevent a vehicle search.
Agent Shipley thus articulated the specific observations and reasonable
inferences therefrom that gave him reasonable suspicion to believe Appellant
had involved the Chevrolet Impala in his present illegal activity. His testimony
at the suppression hearing thus supported the propriety of the contested
vehicle search. See Gould, 187 A.3d at 935. Accordingly, we grant Appellant
no relief on this claim.
In Appellant’s second issue, he posits the trial court improperly admitted
the Commonwealth’s proffer of text message evidence extracted from
Appellant’s cell phone, as the Commonwealth’s failure to properly authenticate
the text messages rendered them inadmissible.
The admissibility of evidence is a matter within the sound
discretion of the trial court and will be reversed only where there
is a clear abuse of discretion. ... Evidence is admissible if it is
relevant—that is, if it tends to establish a material fact, makes a
fact at issue more or less probable, or supports a reasonable
inference supporting a material fact—and its probative value
outweighs the likelihood of unfair prejudice.
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Commonwealth v. Clemons, 200 A.3d 441, 474 (Pa. 2019) (citations
omitted).
Pursuant to Pennsylvania Rule of Evidence 901,
authentication is required prior to admission of evidence. The
proponent of the evidence must introduce sufficient evidence that
the matter is what it purports to be. See Pa.R.E. 901(a).
Testimony of a witness with personal knowledge that a matter is
what it is claimed to be can be sufficient. See Pa.R.E. 901(b)(1).
Evidence that cannot be authenticated by a knowledgeable
person, pursuant to subsection (b)(1), may be authenticated by
other parts of subsection (b), including circumstantial evidence
pursuant to subsection (b)(4). See Pa.R.E. 901(b)(4).
Commonwealth v. Talley, 236 A.3d 42, 59 (Pa. Super. 2020) reargument
denied (September 23, 2020).
In Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011), affirmed
by an equally divided court,
630 Pa. 374,
106 A.3d 705 (2014),4 this Court
addressed authentication challenges in the context of text messaging. At trial,
a detective who had transcribed the texts testified that incriminating text
messages came from a cellular telephone belonging to the defendant. This
Court observed, however, that “authentication of electronic communications,
like documents, requires more than mere confirmation that the number or
address belonged to a particular person.” Id. at 1005. Where there was no
____________________________________________
4 Because an equally divided Supreme Court affirmed this Court's grant of a
new trial in Koch, our Supreme Court's decision is not binding in this case.
See Commonwealth v. Mosley,
114 A.3d 1072, 1082 n.11 (Pa. Super.
2015) (holding that “[w]hen a judgment of sentence is affirmed by an equally
divided court, as in the Koch case, no precedent is established and the holding
is not binding on other cases.”) (citation omitted).
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testimony from any person who had sent or received the text messages, nor
any contextual clues revealing the identity of the cellular phone’s user, the
detective’s testimony was insufficient to authenticate the text messages. Id.
We thus concluded that the admission of the text messages represented an
abuse of discretion.
Id.
Distinguishing the present case from the facts of Koch, however, is that
evidence presented at Appellant’s trial provided more than “mere confirmation
that the number or address belonged to a particular person.” Id. at 1005.
Initially, Officer Foose testified that she confiscated the cell phone in question
from Appellant with his consent, and he was able to supply the complicated
password allowing her access to its messages. N.T. at 196.
Chief John Goshert also read several text messages from the phone that
supplied significant contextual clues revealing Appellant’s identity as the cell
phone’s user engaged in drug distribution-related communications. Admitted
into evidence during Chief Goshert’s testimony were Commonwealth exhibits
depicting screen shots of outgoing text messages transmitted in the relevant
time such as, "You not beating this case I sentence you to life with Bry'Drick
Wright,” and two incoming texts under the title “mom,” one of which said
"you're texting why not take my calls Bry'Drick," and a second that reads "Too
important to take your mother’s calls. That is sad, Bry'Drick. I am home
hitting the trash because I knew you wouldn't." N.T. at 198.
Multiple text references to the Impala were also read at trial, including
one from September 21, 2018, just thirteen days before Appellant’s arrest,
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asking if he is driving the Impala that day. N.T. at 201. From October 4th,
2018, the day of Appellant’s arrest, an outgoing text message indicates he is
at his father’s “hanging out” with his brother “out front”, and he needs to
check inside the Impala for the keys. N.T. at 202. Nowhere among the
messages retrieved in the phone drop was there an outgoing message
indicating a person other than Appellant was using the phone. N.T. at 199.
These messages were offered to authenticate numerous texts from
Appellant’s phone, made during the same time frame, in which drug sales
were arranged. Specifically, incoming messages from September 15 through
October 2, 2018, seeking to arrange drug purchases of heroin/fentanyl, such
as, “I got 40 can you do a bun?”, or pure fentanyl, “do you have white bags,”
were received and answered. N.T. at 204-230. The outgoing messages all
indicate the transaction can be made, and the incoming replies frequently
confirm, occasionally with complaints about the quality of the previous bundle
purchased. Id. In many of the text conversations, the outgoing message
from Appellant’s cell phone tells the prospective buyer that their meeting place
is “North Street,” the street where Appellant was arrested on October 4th. Id.
This evidence, collectively, provided contextual clues necessary to
authenticate that the incriminating text messages taken from the cell phone
Appellant handed to authorities were authored by Appellant. Accordingly, we
discern no merit to Appellant’s second issue.
In Appellant’s final issue, Appellant argues that the evidence was
insufficient to prove he constructively possessed the contraband recovered
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from the Impala, as the evidence established only that he was merely present
on the porch near the car. Where his aunt, Angela Murray, was the registered
owner of the Impala, there were no documents bearing his name in the vehicle
and no forensic testing of the men’s clothing found in the vehicle, and no one
saw him access the car, he argues the jury could not reasonably infer that he
possessed or controlled the contraband in question.
In reviewing a challenge to the sufficiency of the evidence, our standard
of review is as follows:
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable to
the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it establishes
each material element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant's guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of wholly
circumstantial evidence. Accordingly, [t]he fact that the evidence
establishing a defendant's participation in a crime is circumstantial
does not preclude a conviction where the evidence coupled with
the reasonable inferences drawn therefrom overcomes the
presumption of innocence. Significantly, we may not substitute
our judgment for that of the fact finder; thus, so long as the
evidence adduced, accepted in the light most favorable to the
Commonwealth, demonstrates the respective elements of a
defendant's crimes beyond a reasonable doubt, the appellant's
convictions will be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)
(internal quotations and citations omitted). Importantly, “the [fact-finder],
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which passes upon the weight and credibility of each witness's testimony, is
free to believe all, part, or none of the evidence.” Commonwealth v.
Ramtahal, 33 A.3d 602, 607 (Pa. 2011).
This Court has held that “[p]ossession can be found by
proving possession, constructive possession, or joint constructive
possession.” Commonwealth v. Heidler, 741 A.2d 213, 215
(Pa. Super. 1999). Where a defendant is not in actual possession
of the prohibited items, the Commonwealth must establish that
the defendant had constructive possession to support the
conviction. Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.
Super. 2013) (conviction under 18 Pa.C.S. § 6106(a) supported
by a finding of constructive possession). See also
Commonwealth v. Parker, 847 A.2d 745 (Pa. Super. 2004)
(same). “Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law enforcement.”
Hopkins, supra at 820 (citation and quotation omitted). “We
have defined constructive possession as conscious dominion,”
meaning that the defendant has “the power to control the
contraband and the intent to exercise that control.” Id. (citation
and quotation omitted). “To aid application, we have held that
constructive possession may be established by the totality of the
circumstances.” Id. (citation and quotation omitted).
It is well established that, “[a]s with any other element of a crime,
constructive possession may be proven by circumstantial
evidence.” Commonwealth v. Haskins, 450 Pa.Super. 540,
677
A.2d 328, 330 (1996) (citation omitted). In other words, the
Commonwealth must establish facts from which the trier of fact
can reasonably infer that the defendant exercised dominion and
control over the contraband at issue. See, e.g., Commonwealth
v. Davis, 743 A.2d 946, 953–54 (Pa. Super. 1999) (holding that
evidence was sufficient to prove constructive possession over
drugs found in common areas of an apartment where the
defendant entered the apartment using his own key, and
possessed $800 in cash on his person, and police recovered
defendant's identification badge, size-appropriate clothing, and
firearms from a bedroom).
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[] a defendant's mere presence at a place where contraband is
found or secreted is insufficient, standing alone, to prove that he
exercised dominion and control over those items.
Commonwealth v. Valette, 531 Pa. 384,
613 A.2d 548, 551
(1992). Thus, the location and proximity of an actor to the
contraband alone is not conclusive of guilt. Commonwealth v.
Juliano, 340 Pa.Super. 501,
490 A.2d 891, 893 (1985). Rather,
knowledge of the existence and location of the contraband is a
necessary prerequisite to proving the defendant's intent to
control, and, thus, his constructive possession. Id., citing
Commonwealth v. Thompson, 286 Pa.Super. 31,
428 A.2d 223,
224 (1981).
If the only inference that the fact finder can make from the facts
is a suspicion of possession, the Commonwealth has failed to
prove constructive possession. Valette, supra at 551. “It is well
settled that facts giving rise to mere ‘association,’ ‘suspicion’ or
‘conjecture,’ will not make out a case of constructive possession.
Commonwealth v. Parrish, 191 A.3d 31, 36-37 (Pa. Super. 2018).
Here, the circumstantial evidence admitted at trial showed the
contraband found in the Impala was within Appellant’s knowledge, control,
and dominion on October 4, 2018, the day of his arrest. Despite Appellant’s
lack of ownership interest in the Impala, his text messages admitted into
evidence showed he was a frequent driver of the vehicle. Both his claim of
owning the car’s key as it lay by his side and his attempt to mislead Agent
Shipley about the nature of the key to prevent a vehicle search of the Impala
were additional actions consistent with someone who had both control over
the vehicle and concern that the agent would discover contraband if he gained
access to it. Finally, evidence of the drug deals arranged on Appellant’s cell
phone corroborated Appellant’s role in selling to calling customers the very
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same illicit drugs—marijuana, heroin, and fentanyl—found in the trunk of the
Impala.
Viewing this record in the light most favorable to the Commonwealth,
as verdict winner, and giving the prosecution the benefit of all reasonable
inferences, we conclude that there was sufficient circumstantial evidence for
the jury as finder of fact to conclude that Appellant constructively possessed
the contraband inside the Impala. The fact that Appellant was not the owner
of the vehicle, or the possibility that the firearm and narcotics may have been
primarily possessed by someone else, did not render the evidence insufficient
to prove Appellant’s constructive possession, because more than one person
may have constructive possession of an item at the same time. See
Commonwealth v. Johnson, 26 A.3d 1078, 1094 (Pa. 2011) (recognizing
that one or more individuals may be deemed to have constructive possession
of contraband where the item is in an area of joint control and equal access);
see also Haskins,
677 A.2d at 330 (holding another person’s control and
access does not eliminate the defendant's constructive possession, as two
actors may have joint control and equal access and thus both may
constructively possess contraband). Accordingly, we conclude Appellant’s
sufficiency of the evidence challenge must fail.
For the foregoing reasons, we deny Appellant relief on his claims and
affirm judgment of sentence in the above-captioned matter.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2021
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