Com. v. Brown, J.

J-S43006-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES BROWN,

Appellant No. 3529 EDA 2013

Appeal from the Judgment of Sentence of October 24, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0001988-2012

BEFORE: GANTMAN, P.J., PANELLA AND OLSON, JJ.

MEMORANDUM BY OLSON, J.: FILED AUGUST 19, 2015

Appellant, James Brown, appeals from the judgment of sentence

entered on October 24, 2013, as made final by the denial of Appellant’s

post-sentence motion on November 12, 2013. We affirm.

The trial court ably and thoroughly summarized the factual and

procedural posture of this case. As the trial court explained:

On June 3, 2011, police arrested and charged Appellant with

possession of a controlled substance with intent to deliver

[(“PWID”)], conspiracy to commit PWID, possession of an

instrument of crime [(“PIC”)],[1] and other related charges.

On June 25, 2013, Appellant proceeded to a jury trial on the

charges of PWID, conspiracy to commit PWID, and PIC.

...

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35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903(c), and 18 Pa.C.S.A.

§ 907(a), respectively.

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[During Appellant’s trial], Police Officer Gary Francis

testified that[,] on May 24, 2011, in the late afternoon, he

[and] his partner[,] Police Officer Bradford Mitchell[, were]

conducting surveillance on the 5500 block of Crowson

Street[, in Philadelphia]. Officer Francis testified that he

was at that area with his partner based on information from

a confidential informant [(“CI”),] regarding alleged narcotics

sales on the 5500 block of Crowson Street. . . .

Officer Francis testified that they first drove by the area that

day looking specifically for the addresses of 5542 and 5534

Crowson Street, and when they did, they saw [Appellant]

and another male[, named] Darnell Cooper[,] standing on

the front porch [of] 5542 Crowson Street. The officers met

the CI and gave him/her pre-recorded buy money and

directed the CI to the location of 5542 Crowson Street.

Officer Francis testified that he observed the CI approach

[Appellant] and Mr. Cooper [and begin] a conversation with

the two men. The officer testified that[,] after [] the brief

conversation, Appellant left 5542 Crowson Street and

walked down [the street] to [] go inside [of] 5534 Crowson

Street. Then Appellant came back to 5542 Crowson and

approached the CI. The CI handed [Appellant] the pre-

recorded buy money in exchange for small objects which

[Appellant gave] him. The CI left the area and met with

Officer Mitchell and gave the officer three vials containing []

crack cocaine and one packet of [] crack cocaine which was

placed on [a] property receipt.

. . . Officer Francis testified [that, on the next day, he and

Officer Mitchell] went back to the same area at around the

same time, to continue [their] investigation of [Appellant].

Officer Francis testified that . . . they again saw [Appellant]

and Mr. Cooper standing on the front porch of 5542

Crowson Street. They then went and met with the same CI

and performed the same procedure as the day before,

where the CI was given pre-recorded buy money and

directed to the same area. Officer Francis testified that he

observed the CI again approach [Appellant] and[,] after a

brief conversation, Appellant left 5542 Crowson Street,

walked down to and went inside 5534 Crowson Street[, and

came] back to 5542 Crowson[, where Appellant] accept[ed]

the pre-recorded buy money from the CI in exchange for

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small objects[,] which Appellant [gave] to the CI. The CI

then left and met again with Officer Mitchell, this time

giving him two clear packets of [] crack cocaine, which

again was place[d] on [a] property receipt.

On May 31, 2011, Officer Francis testified[,] he and Officer

Mitchell went back to that same location around the same

time and again observed Appellant and Mr. Cooper standing

on the front porch of 5542 Crowson Street. Officer Francis

testified that they set up surveillance and observed two

different females approach [Appellant] at two different

times and engage in the same type of activity that the

officers had witnessed the CI had with Appellant on the two

other days. Officer Francis also testified that he contacted a

uniformed police officer to stop and [ask Appellant] and Mr.

Cooper for identification. [Appellant] was not arrested at

that time as the officers were trying to further their

investigation and to see whether there were any other

locations involved besides 5542 and 5534 Crowson Street. .

. . [Officer Francis also testified that, following the

interaction between the uniformed police officer and

Appellant and Mr. Cooper, Appellant and Mr. Cooper

retreated inside of 5542 Crowson Street. N.T. Trial,

6/26/13, at 86-90 and 107.]

On June 2, 2011, Officer Mitchell went back to the same

area himself with the same CI and performed the same

procedure as the [prior two buys], where the CI was given

pre-recorded buy money and directed to [5542 Crowson

Street]. Officer Mitchell testified that both Appellant and

Mr. Cooper were again in front of 5542 Crowson Street and

this time Mr. Cooper approached the CI and after a short

conversation with the CI, Mr. Cooper went and entered []

5534 Crowson Street. After about a minute, Mr. Cooper

exited 5534 Crowson Street[,] went back to the CI[,] and

handed [the CI] something in exchange for the pre-

recorded buy money. The CI [] left the area and Officer

Mitchell [started to follow the CI]. . . . Mr. Cooper [then]

went back [and walked inside of] 5542 Crowson Street.

Officer Mitchell [] met with the CI[,] who turned over to him

two clear packets [] containing [] crack cocaine.

Based on this information[,] the officers obtained a search

and seizure warrant for 5542 and 5534 Crowson Street. On

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June 3, 2011, the officers went back to the location with the

search and seizure warrant. Officer Mitchell testified that

they first executed the search warrant on the property of

5542 Crowson Street. [“Darnell Cooper” was identified as

the resident of 5542 Crowson Street. N.T. Trial, 6/26/13, at

126-127 and 167.] . . .

After being let in by Mr. Cooper’s mother, Officer Mitchell

testified that he confiscated a .38 revolver loaded with five

live rounds of ammunition from the dining room area on top

of a [china] cabinet. Also confiscated from that same

[china] cabinet[] was a clear plastic bag with 26 purple

packets each containing . . . crack cocaine, other unused

purple packets, as well as a scale. Officer Mitchell testified

that based on his years of experience [the paraphernalia]

recovered [was] used specifically for packaging and

weighing narcotics. . . .

All the items recovered were placed on [a] property receipt.

Officer Mitchell then testified that they [] executed the

search warrant on 5534 Crowson Street. The officers had

to make a forced entry because no one answered the door.

There was nothing recovered from that location as it was

empty other than some work tools, as it looked like the

house was being renovated. [Appellant and] Mr. Cooper

were placed under arrest outside of 5542 Crowson Street.

[During trial, the parties stipulated that all of the alleged

crack cocaine that was either purchased by the CI or found

at 5542 Crowson Street tested positive for cocaine. N.T.

Trial, 6/26/13, at 155-157.]

...

On June 27, 2013, the jury found Appellant guilty of PWID,

conspiracy to commit PWID, and PIC. On October 24, 2013,

[the trial court] sentenced Appellant [to serve an aggregate

term of three-and-a-half to nine years in prison for his

convictions].

Trial Court Opinion, 9/5/14, at 1-5 (internal citations omitted and some

internal capitalization omitted).

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On November 12, 2013, the trial court denied Appellant’s timely post-

sentence motion. Appellant filed a timely notice of appeal and Appellant

now raises one claim on appeal:

Whether the evidence was insufficient to support the verdict

of guilty on the charge of possession of an instrument of

crime (gun)?

Appellant’s Brief at 4.

Appellant claims that the evidence was insufficient to support his PIC

conviction. We review Appellant’s sufficiency of the evidence challenge

under the following standard:

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 [that of] the fact-finder. In

addition, we note that the facts and circumstances

established by the Commonwealth need not preclude every

possibility of 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 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 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.

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Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en

banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806

(Pa. Super. 2008).

According to Appellant, the evidence was insufficient to support his PIC

conviction because there was no evidence that he possessed the firearm.

Specifically, Appellant claims that the Commonwealth failed to demonstrate

“that [Appellant] knew that the gun was atop the china cabinet in [Darnell

Cooper’s] residence[, at 5542 Crowson Street].” Appellant’s Brief at 14

(emphasis in original). This claim fails.2

“In [] possession cases, the Commonwealth may meet its burden by

showing actual, constructive, or joint constructive possession of the

contraband.” Commonwealth v. Thompson, 428 A.2d 223, 224 (Pa.

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2

As we have summarized:

To prove PIC, the Commonwealth must demonstrate that

the defendant “possesses any instrument of crime with

intent to employ it criminally.” 18 Pa.C.S.A. § 907. An

instrument of crime is defined as “[a]nything specially made

or specially adapted for criminal use” or “[a]nything used

for criminal purposes and possessed by the actor under

circumstances not manifestly appropriate for lawful uses it

may have.” 18 Pa.C.S.A. § 907(d). It is undisputed that a

gun can be an instrument of crime.

Commonwealth v. Stokes, 38 A.3d 846, 854 (Pa. Super. 2011). On

appeal, Appellant claims only that the Commonwealth failed to prove “that

[Appellant] knew that the gun was atop the china cabinet in [Darnell

Cooper’s] residence[, at 5542 Crowson Street].” Appellant’s Brief at 14

(emphasis in original). Our review is thus limited to the specific claim

Appellant raises on appeal.

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Super. 1981). Actual possession is proven “by showing . . . [that the

contraband was] found on the [defendant’s] person.” Commonwealth v.

Macolino, 469 A.2d 132, 134 (Pa. 1983). If the contraband is not

discovered on the defendant’s person, the Commonwealth may satisfy its

evidentiary burden by proving that the defendant had constructive

possession of the contraband. Id. “Constructive possession has been

defined as the ability to exercise a conscious dominion over the illegal

[contraband]: the power to control the contraband and the intent to

exercise that control.” Id.

With respect to the element of “knowledge” in a possessory offense,

this Court held:

an awareness of the presence of the items which [the

defendant] was accused of having [is] an essential element

of his supposed intent to control. But this knowledge need

not be proven by his admission of such knowledge, or by

testimony of his associates that he saw these articles. The

defendant’s knowledge of the presence of these

articles may be inferred from all the surrounding

circumstances.

Commonwealth v. Gladden, 311 A.2d 711, 712 (Pa. Super. 1973) (en

banc) (emphasis added) (internal quotations and citations omitted) (some

internal capitalization omitted).

On appeal, Appellant claims that the Commonwealth failed to prove

“that [Appellant] knew that the gun was atop the china cabinet in [Darnell

Cooper’s] residence[, at 5542 Crowson Street].” Appellant’s Brief at 14

(emphasis omitted). However, viewing the evidence in the light most

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favorable to the Commonwealth, we conclude that the evidence was

sufficient to prove that Appellant knew that the gun was on top of the china

cabinet.

At trial, the Commonwealth proved that Appellant and Darnell Cooper

were involved in a conspiracy to sell crack cocaine and that they jointly

possessed the crack cocaine, the drug paraphernalia, and the firearm that

was found in or on the china cabinet inside of 5542 Crowson Street. To

summarize, viewing the evidence in the light most favorable to the

Commonwealth, the Commonwealth proved that: Appellant and Darnell

Cooper stationed themselves on the front porch of 5542 Crowson Street to

meet cocaine purchasers; 5542 Crowson Street was a furnished and

occupied house that the Commonwealth identified as belonging to “Darnell

Cooper;” the prospective cocaine purchasers would walk up to 5542 Crowson

Street and, from the sidewalk, would speak to Appellant and Mr. Cooper;

while Appellant and Mr. Cooper stood on the front porch of 5542 Crowson

Street, Appellant and Mr. Cooper would culminate their agreement with the

buyers to sell crack cocaine; after arriving at their agreement, either

Appellant or Mr. Cooper would enter the (otherwise empty and unfurnished)

house at 5534 Crowson Street and retrieve a specific amount of crack

cocaine; after retrieving the crack cocaine, Appellant or Mr. Cooper would

walk back to the sidewalk in front of 5542 Crowson Street and exchange the

crack cocaine with the purchaser for money; and, at the conclusion of the

sale, Appellant or Mr. Cooper would walk back up to the front porch of 5542

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Crowson Street and stand ready to make another sale. Further, at trial, the

Commonwealth proved that Appellant was permitted entry into 5542

Crowson Street, as Officer Francis testified that Appellant and Mr. Cooper

retreated into 5542 Crowson Street on May 31, 2011, after being questioned

by the police. Finally, the Commonwealth proved at trial that, at the time of

the search: there was no crack cocaine inside of the empty house at 5534

Crowson Street; there was a substantial amount of crack cocaine inside of

the occupied house at 5542 Crowson Street; all of the cocaine found in 5542

Crowson Street was inside of a china cabinet and was individually packaged

in “purple packets;” also inside of the china cabinet were empty “purple

packets” and a scale that was used to weigh narcotics; and, on top of the

same china cabinet that contained all of the crack cocaine and drug-dealing

paraphernalia was a .38 caliber revolver.

We conclude that, viewing this evidence in the light most favorable to

the Commonwealth – and giving the Commonwealth every reasonable

inference from these facts – the evidence is clearly sufficient to prove that

Appellant “knew that the gun was atop the china cabinet.” Appellant’s Brief

at 14 (emphasis omitted). Certainly, the evidence demonstrates that

Appellant and Mr. Cooper used the otherwise empty and unfurnished house

at 5534 Crowson Street as their daily “stash house,” but used the occupied

and furnished home at 5542 Crowson Street as the base of their joint, illicit,

drug-dealing operation. Further, the evidence demonstrates that Appellant

and Mr. Cooper used the china cabinet inside of 5542 Crowson Street to

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store all of their crack cocaine and related, drug-dealing paraphernalia and

instruments – including the firearm. Thus, a reasonable juror could conclude

that the firearm was jointly possessed by Appellant and Mr. Cooper to

protect their joint, illegal operation. The evidence was thus sufficient to

prove that Appellant knew the firearm was on top of the china cabinet. See

Gladden, 311 A.2d at 712-713 (holding that “[t]he defendant’s knowledge

of the presence of [the] articles may be inferred from all the surrounding

circumstances”); see also Stokes, 38 A.3d at 854 (holding that the totality

of the circumstances proved the defendant was aware of, and constructively

possessed, the firearm that was discovered in the home).

Appellant’s sufficiency of the evidence claim fails.

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/19/2015

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