Com. v. Williams, K.

J.A21005/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

KAALEEM WILLIAMS, :

:

Appellant : No. 1937 EDA 2013

Appeal from the Judgment of Sentence June 7, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division No(s).: CP-51-CR-0000450-2012

BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 28, 2015

Appellant, Kaaleem Williams,1 appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Plea after he was found

guilty of, inter alia, possession with intent to deliver controlled substances2

(“PWID”), possessing a firearm with manufacturer number altered, 3 and

conspiracy.4 He asserts the evidence was insufficient to sustain the verdicts

and the imposition of a mandatory minimum sentence under 42 Pa.C.S. §

*

Former Justice specially assigned to the Superior Court.

1

The appeal of Appellant’s co-defendant, Alex Banks, is pending at 1852

EDA 2013.

2

35 P.S. § 780-113(a)(30).

3

18 Pa.C.S. § 6110.2.

4

18 Pa.C.S. § 903.

J.A21005/15

9712.15 is illegal under Alleyne v. United States, 133 S. Ct. 2151 (2013).

We affirm the convictions, vacate the judgment of sentence and remand for

resentencing.

The trial court summarized the evidence adduced at Appellant and the

co-defendant’s joint suppression hearing and nonjury trial as follows:

[T]he Commonwealth presented the testimony of

Philadelphia Police Investigator Daniel Thompson and

Detective Timothy Connell and the following facts were

established. The Officers testified credibly that around

3:00 A.M. on December 6, 2011 five Philadelphia warrant

officers arrived at 1716 North 55th Street in Philadelphia,

Pennsylvania, to execute an arrest warrant for a resident

of that address named Shaquita Brown. Three Officers

were present, knocking on the front door while the

remaining two Officers covered the rear of the property.

Before entering the residence and during the subsequent

search, Officers were under the belief that this property

was a single family home. The Officer[s] testified that it

was a regular twin house with a single front door with one

doorbell and one lock. There was no intercom system, no

sign of multiple mailboxes or apartment numbers or

exterior locks on each door.

After a few minutes of knocking, one of the tenants

answered the door; the Officers identified themselves and

explained that they had a warrant for Shaquita Brown.

This tenant was shown a picture, stated that he did not

know her, admitted the officers into the entryway of the

first floor and subsequently into his room to search for Ms.

Brown. The Officers’ search of the room yielded no results

5

Section 9712.1 provided, inter alia, that “[a]ny person who is convicted of

[PWID] when at the time of the offense the person or the person’s

accomplice is in physical possession or control of a firearm, whether visible .

. . or within the actor’s or accomplice’s reach or in close proximity to the

controlled substance, shall likewise be sentenced to a minimum sentence of

at least five years of total confinement.”

-2-

J.A21005/15

and the tenant suggested that the Officers check the other

rooms of the residence. The Officers proceeded to knock

on the remaining doors in the hallway, following the same

procedure of identifying themselves, stating that they were

looking for resident Shaquita Brown, being admitted and

searching the room. It took a few minutes of knocking on

each door before they were answered and the inhabitants

of each room appeared to have been sleeping with the

lights turned off. The search of these rooms also yielded

no results.

About twenty minutes after initially entering the

building, the Officers reached the fourth and final door.

Again, the Officers knocked on the door, which they

described as a regular wooden bedroom door, and it took

two to three minutes before [Appellant] responded asking,

“Who’s there?” The Officers identified themselves,

[Appellant] opened the door, was shown a picture of

Shaquita Brown and a copy of the arrest warrant. The

Officers asked if they could enter the room to search for

Ms. Brown and [Appellant] said “okay”, agreeing to let

them enter. . . .

Upon entering the room to begin their search, the

Officers immediately noticed the co-defendant[, Alex

Banks,] sitting on the bed. Both [Appellant] and co-

defendant were fully clothed and wearing shoes. The room

was described as similar to the others in the home — a

regular style bedroom with an open doorway (but no door)

leading into the bathroom. The room was small and

contained only a twin sized futon bed; small refrigerator,

broken dresser and television. The lights were on in

addition to the television with the movie “Juice” playing.

As the Officers began their search for Ms. Brown in the

room, Officer Jones approached the co-defendant who was

seated on the bed to show him a picture of Ms. Brown for

identification. Upon approaching [Appellant], the Officer

looked to his left and saw what he believed to be narcotics

in plain view in the broken dresser drawer that was

completely missing its front panel. Officer Jones alerted

the other Officers that there was something in the

drawer—a “white-chunky substance” in plastic bags being

held inside of a bigger clear plastic bag—that he believed

-3-

J.A21005/15

to be crack cocaine. Upon further investigation of the

drawer, the Officers were also able to view the handle of a

handgun which prompted them to secure [Appellant] and

codefendant as a cautionary measure to ensure the

Officers’ safety. The Officers alerted their Sergeant to the

discovery and were given orders to secure the scene and

continue their search for Ms. Brown. While searching for

her under the bed, an additional firearm, which they

described as a “small submachine gun” with a bit longer

barrel and a bigger clip was discovered. At the foot of the

bed near the front door, a third handgun was recovered.

The subsequent search of the bathroom also led to the

discovery of “a big black trashbag” that was “full of

marijuana”

Ms. Brown was not found in the room, so the Officers

were ordered by their Sergeant to secure the contraband

that they discovered by placing it in evidence bags, leaving

them in the room, and transporting [Appellant] and co-

defendant to the Southwest Detectives headquarters.

[Appellant and the co-defendant] provided different home

addresses, neither of which was that residence. Officers

secured the front and rear of the residence when they

arrived and no one was seen exiting. Based on the

contraband discovered during the search for Ms. Brown,

additional Officers obtained and executed a search warrant

in order to recover the items. . . .

[T]he seizure analysis establish[ed] that 28.08 grams of

crack cocaine were discovered in addition to 2.12 pounds

of what tested positive as marijuana from the trash bags;

that whoever possessed the drugs possessed them with

the intent to deliver based on the amount, paraphernalia,

scale and value—approximately $1,000 in crack cocaine

and $3,000 in marijuana; the ballistics report establishing

that two of the three firearms were operable at the time of

recovery, while the third became operable after recovery

and insertion of a new magazine; and that the serial

number of the semi-automatic weapon was defaced by

abrasion, gauging and restored by chemical etching.[6]

6

Neither Appellant nor the co-defendant testified at trial.

-4-

J.A21005/15

Trial Ct. Op., 7/14/14, at 2-6 (record citations omitted). On January 25,

2013, the trial court found Appellant guilty of PWID, possessing a firearm

with manufacturer number altered, and conspiracy. On June 7, 2013, the

court imposed an aggregate sentence of five to ten years’ imprisonment,

based, in part, on the mandatory minimum sentence in 42 Pa.C.S. § 9712.1.

This timely appeal followed.7

Appellant presents the following questions for review:

Was not the evidence insufficient for conviction on all

charges, insofar as the Commonwealth failed to prove that

[Appellant] actually or constructively possessed the

narcotics, paraphernalia, or firearms at issue, or conspired

to do so?

Was not [Appellant’s] sentence illegal, in so far as he

was subjected to a mandatory minimum sentence pursuant

to 42 Pa.C.S. § 9712.1, which has been found to be

unconstitutional?

Appellant’s Brief at 4.

Appellant first claims the evidence was insufficient to sustain the trial

court’s verdicts because “[t]here [was] no evidence whatsoever that [he]

lived in the apartment or was anything other than a transitory guest.” Id. at

11. He asserts the contraband was “hidden away in a dresser, under the

bed, or in a black plastic trash bag in the bathroom” and there was “no

evidence [he] ever exercised control[,] ever even touched them or knew

about them.” Id. According to Appellant, “the facts here are far less

7

Appellant timely complied with the trial court’s order to file and serve a

Pa.R.A.P. 1925(b) statement.

-5-

J.A21005/15

damaging than those” in cases where the evidence of constructive

possession was found to be lacking. Id. at 13 (discussing Commonwealth

v. Rodriguez, 618 A.2d 1007 (Pa. Super. 1993), and United States v.

Jenkins, 90 F.3d 814 (3d Cir. 1996)). Similarly, Appellant asserts his mere

presence in the apartment did not establish his participation in or knowledge

of a conspiratorial agreement. Id. at 14-15. We are constrained to

disagree.

Our review is governed by the following principles:

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 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 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 the

evidence actually received must be considered. . . .

Commonwealth v. Bricker, 882 A.2d 1008, 1014 (Pa. Super. 2005)

(citation omitted).

Constructive possession requires proof of the ability to

exercise conscious dominion over the substance, the power

to control the contraband, and the intent to exercise such

-6-

J.A21005/15

control. Constructive possession may be established by

the totality of the circumstances. . . .

Id. (citations omitted). However, “‘[g]uilt by association is unacceptable.’

Further, ‘mere presence of one person, among a group at a scene of

contraband, is not a strong factor indicative of guilt.’” Commonwealth v.

Thompson, 779 A.2d 1195, 1199 (Pa. Super. 2001) (citations omitted).

We note that in both Rodriguez and Jenkins, the evidence

established that other parties were responsible for the residence searched or

the contraband found therein. In Rodriguez, officers executed a search

warrant on an apartment and arrested Joseph Aquino. See Rodriguez, 618

A.2d at 1008. Aquino was identified as the perpetrator in a drug sale that

gave rise to the search warrant, was in physical possession of contraband

and cash, and had mail in his name in the apartment. Id. Officers

recovered additional contraband in the apartment. Id. Officers also found

the defendant hiding in a closet, next to a jacket with three baggies of

cocaine inside a cigarette pack in the side pocket. Id. The defendant was

arrested following a struggle. Id. The defendant had no contraband on his

person and had no personal items in the apartment. However, he was in

physical possession of a key to the apartment. Id. Following his conviction,

this Court concluded the defendant’s possession of the key and presence in

Aquino’s apartment was insufficient to prove constructive possession of the

contraband. Id. at 1009. We emphasized there were no indication he

-7-

J.A21005/15

resided at the apartment, engaged in criminal activity, or was aware of the

presence of contraband. Id.

In Jenkins, officers pursued two suspects into an apartment.

Jenkins, 90 F.3d at 816. There, they found the defendant and another

individual, Sam Stallings, seated on a couch, in their underwear, with three

bags of cocaine, firearms, and paraphernalia for packaging the cocaine on

the coffee table in front of them. Id. Stallings and one of the suspects who

initially led officer to the apartment were identified as residents of the

apartment. Id. at 817. The Jenkins Court reversed the defendant’s

conviction, concluding there was no “decisive nexus” between the defendant

and the contraband beyond the evidence of his proximity to the contraband

and his presence in Stallings apartment. Id. at 820.

Thus, Rodriguez and Jenkins emphasized the absence of a sufficient

nexus establishing control over the contraband vis-à-vis a party implicated

in the criminal activity. See Rodriguez, 618 A.2d at 1009; see also

Jenkins, 90 F.3d at 820. Although it is well settled that “mere presence” is

insufficient to establish constructive possession under those circumstances,

this Court has also opined that a fact-finder

need not ignore presence, proximity and association

when presented in conjunction with other evidence

of guilt. Indeed, presence at the scene where drugs

are being processed and packaged is a material and

probative factor which the jury may consider. Drug

dealers of any size and [illegal drug] manufacturers

probably are reticent about allowing the unknowing

to take view of or assist in the operation.

-8-

J.A21005/15

United States v. Robinson, 978 F.2d 1554, 1557–1558

(10th Cir. 1992) (internal quotations and citations

omitted); see also Rivas v. United States, 783 A.2d

125, 138 (D.C. 2001) (en banc) (“a claim of innocent

presence becomes decidedly less plausible in an

environment (vehicular or otherwise) that is rife with

evidence of ongoing drug production or distribution, such

as a manufacturing or cutting facility, a warehouse, or a

staging or preparation area where a large quantity of

drugs or drug paraphernalia is exposed to view”); United

States v. Batista–Polanco, 927 F.2d 14, 18 (1st Cir.

1991) (casting doubt upon the “hypothesis that

participants in a [large-scale heroin packaging] scheme

would permit a noncontributing interloper to remain for an

extended period of time in a small apartment while their

conspicuous criminal conduct continued unabated [since

s]uch is not normally the conduct that one would expect of

conspirators engaged in conduct which by its nature is

kept secret from outsiders”) (internal quotations, citations,

and corrections omitted); United States v. Staten, 581

F.2d 878, 885 n. 67 (D.C. Cir. 1978) (“[i]t would seem

that the voluntary presence of the accused in an area

obviously devoted to preparation of drugs for distribution

is a circumstance potently indicative of his involvement in

the operation”).

Commonwealth v. Vargas, 108 A.3d 858, 869 (Pa. Super. 2014) (en

banc).

Instantly, the record, when viewed in a light most favorable to the

Commonwealth, provided a reasonable basis for the trial court’s finding that

the “small room” in which Appellant and the co-defendant were found “was

most likely used exclusively for packaging drugs.” See Trial Ct. Op. at 12.

We cannot disregard (1) the presence of $4,000 worth of narcotics—

including the “giant garbage bag” containing marijuana and vials located

near the shower, (2) the presence of multiple firearms—one of which had its

-9-

J.A21005/15

serial number obliterated, or (3) the absence of any paraphernalia for

personal use. See Vargas, 108 A.3d at 869-70. The combination of these

factors all strengthened the inference that the apartment was a location for

securing narcotics that were packaged for future sales. See id.

Moreover, the evidence did not give rise to a suggestion of innocent

presence in the room. See Rodriguez, 618 A.2d at 1009; see also

Jenkins, 90 F.3d at 820. The only furnishings were a futon-style bed, a

small refrigerator, a dresser, and a television. N.T., 1/25/13, at 30, 37-38.

The dresser only contained “a T-shirt or two,” and there was no evidence of

mail addressed to any individual. Id. at 52-53. Both Appellant and the co-

defendant provided police officers information that they did not live in the

building. Neither Appellant nor the co-defendant had a relationship to the

apartment or a legitimate occupant of the building, despite their presence in

the apartment at 3:00 A.M.

We also note the record belies Appellant’s assertion that he was

unaware of the contraband. Instantly, the arresting officer testified the

suspected cocaine and the handle of the firearm located in the broken

drawer was immediately apparent. See N.T., 1/25/13, at 31-32. The

record further established that the doorway to the bathroom was open, the

trash bag in the bathroom was left open, and the vials and marijuana in the

trash bag were similarly in plain view. Id. at 36, 39. Thus, we detect no

- 10 -

J.A21005/15

merit to Appellant’s assertion that he had no knowledge of the narcotics or

firearms.

In sum, we discern no error in the trial court’s determination that

Appellant and the co-defendant were not mere social visitors. Rather,

based on the totality of the circumstances—including the nature of the

apartment and the indicia that it was exclusively used to store contraband

for sale—we conclude that the court was entitled to find that Appellant and

the co-defendant constructively possessed the contraband. In contrast to

Rodriguez and Jenkins, there was no evidence an identified party used the

apartment to sell drugs or was responsible for packaging the drugs.

Accordingly, we discern no merit to Appellant’s arguments that the absence

of evidence regarding his connection to the apartment or the contraband

warranted relief.

With respect to Appellant’s conspiracy conviction, we note that

“to sustain a conviction for criminal conspiracy, the

Commonwealth must establish that the defendant (1)

entered into an agreement to commit or aid in an unlawful

act with another person or persons, (2) with a shared

criminal intent and (3) an overt act was done in

furtherance of the conspiracy.” . . .

The essence of a criminal conspiracy is the common

understanding that a particular criminal objective is

to be accomplished. Mere association with the

perpetrators, mere presence at the scene, or mere

knowledge of the crime is insufficient. Rather, the

Commonwealth must prove that the defendant

shared the criminal intent, i.e., that the [defendant]

was an active participant in the criminal enterprise

and that he had knowledge of the conspiratorial

- 11 -

J.A21005/15

agreement. The defendant does not need to commit

the overt act; a co-conspirator may commit the overt

act.

“Proof of a conspiracy is almost always extracted from

circumstantial evidence. The Commonwealth may present

a ‘web of evidence’ linking the defendant to the conspiracy

beyond a reasonable doubt. The evidence must, however,

rise above mere suspicion or possibility of guilty collusion.”

We have held that, “[a]mong the circumstances which are

relevant, but not sufficient by themselves, to prove a

corrupt confederation are: (1) an association between

alleged conspirators; (2) knowledge of the commission of

the crime; (3) presence at the scene of the crime; and (4)

in some situations, participation in the object of the

conspiracy.”

Vargas, 108 A.3d at 873-74 (citations omitted).

As we have discussed above, the evidence gave rise to an inference

that Appellant and the co-defendant were, at a minimum, participants in a

conspiracy to store and secure narcotics for future sales. In light of that

same evidence, we discern no basis upon which to disturb the trial court’s

determination that there existed a criminal agreement to so do. See id.

Thus, no relief is due.

Lastly, Appellant claims his sentence, which was based on the

mandatory minimum sentence under 42 Pa.C.S. § 9712.1, is illegal under

Alleyne. Appellant’s Brief at 45. The Commonwealth does not object to

resentencing without reference to Section 9712.1. Commonwealth’s Brief at

24-25.

This Court has held that Section 9712.1 is unconstitutional in its

entirety. See Commonwealth v. Newman, 99 A.3d 86, 103 (Pa. Super.

- 12 -

J.A21005/15

2014) (en banc). Moreover, an Alleyne challenge is available to defendants

whose cases are on direct appeal. See id.; Commonwealth v. Riggle, ___

A.3d ___, ___, 2015 WL 4094427 at *4 (Pa. Super. July 7, 2015).

Therefore, we remand for resentencing “without consideration of any

mandatory minimum sentence.”8 See Newman, 99 A.3d at 103.

Accordingly, we affirm the convictions, vacate the judgment of sentence,

and remand this matter for resentencing.

Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/28/2015

8

We note that before trial, the Commonwealth also asserted that a

mandatory minimum sentence under 18 Pa.C.S. § 7508, for the weights of

the controlled substances, could apply. N.T., 1/25/13, at 6. However,

Section 7508 has also been held unconstitutional in light of Alleyne and

Newman. See Commonwealth v. Mosley, 114 A.3d 1072, 1089-91 (Pa.

Super. 2015).

- 13 -