Com. v. Davis, N.

J-S24030-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

NAFEE ANTHONY DAVIS : No. 1487 MDA 2022

Appeal from the Order Entered October 20, 2022

In the Court of Common Pleas of Dauphin County Criminal Division at

No(s): CP-22-CR-0001621-2021

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.: FILED: AUGUST 18, 2023

The Commonwealth of Pennsylvania appeals from the order, entered in

the Court of Common Pleas of Dauphin County, granting Nafee Anthony Davis’

post-verdict motion for acquittal and dismissing all charges lodged against

him. Upon our careful review, we reverse the order of the trial court and

remand for sentencing.

The trial court set forth the facts of this case as follows:

On March 22, 2021, members of the Pennsylvania Board of

Probation and Parole and Dauphin County Adult Probation and

Parole went to 1401 N. 15th Street in the City of Harrisburg for

the purposes of conducting a parole/probation search. [Davis]

began residing at that address in January 2021, and was

presumably approved by state parole and/or county probation.9

Prior to March 22, 2021, Pennsylvania Board of Probation and

Parole Agent Rob Gerrity (hereinafter “Agent Gerrity”) and APO

____________________________________________

* Former Justice specially assigned to the Superior Court.

J-S24030-23

[Rick] Anglemeyer visited [Davis] at his residence on at least six

[] different occasions.

9 At the time of the search, [Davis] was serving house arrest

and was required to remain at the approved residence. [At

trial, the parties agreed to use the general term “law

enforcement officers” to refer to the probation/parole

officers so as not to alert the jury to Davis’ status.]

Agent Gerrity’s first [] visit to [Davis’] residence was on February

9, 2021. On direct-examination, Agent Gerrity testified that

[Davis] was the only person at the residence on that date.

However, during cross-examination, it was revealed that the state

parole agents involved in this case did not turn over all of their

notes of contacts to the Commonwealth, who then could not turn

it over to [Davis]. As a result, this [c]ourt directed the state parole

agents to provide the notes to both parties. Once the notes were

provided, Agent Gerrity corrected his prior testimony and stated

that there were three [] other occupants at the residence on

February 9, 2021, but he did not record their names. Agent

Gerrity was only in the living room, and the visit lasted

approximately five [] to ten [] minutes.

The next day, February 10, 2021, APO Anglemeyer visited [Davis]

at 1401 N. 15th Street for the first time. APO Anglemeyer testified

that he observed marijuana and drug paraphernalia on the living

room coffee table. [Davis] informed APO Anglemeyer that he had

a medical marijuana card, and APO Anglemeyer counseled him on

the proper use of medical marijuana. During the visit, [Davis]

consented to a search of his bedroom and vehicle, and there was

no evidence of any violation(s). APO Anglemeyer testified that

[Davis’] bedroom was on the second [] floor toward the rear of

the house.

On February 16, 2021, Agent Gerrity visited [Davis] at his

residence. [Davis] was the only person present at that time and

the visit lasted approximately five [] to ten [] minutes. Similar to

the previous visit, Agent Gerrity testified that he was only in the

living room.

Agent Gerrity’s next visit to [Davis’] residence was on March 1,

2021. On direct-examination, Agent Gerrity testified that [Davis]

was the only person present. However, after the notes were

provided, Agent Gerrity corrected his testimony and stated that a

cohabitant was also present, but he did not record their name.

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Similar to previous visits, this visit lasted approximately five [] to

ten [] minutes in the living room.

Two days later, on March 3, 2021, APO Anglemeyer visited [Davis]

at his residence. APO Anglemeyer testified that he spoke to

[Davis] at the front door and does not believe he went inside the

residence that day.

Agent Gerrity’s last visit before the search was on March 8, 2021.

[Davis] was the only person present, and the visit lasted

approximately five [] to ten [] minutes in the living room. On

cross-examination, Agent Gerrity stated that his note said, “no

other members of the household were present.”

On March 22, 2021, Agent Gerrity, APO Anglemeyer, Pennsylvania

Board of Probation and Parole Agent Caleb Tyson (hereinafter

“Agent Tyson”), and Dauphin County Adult Probation and Parole

Officer Brandon Rigel (hereinafter “APO Rigel”) knocked on the

door of 1401 N. 15th Street at around 9:40 A.M., and there was

no response for approximately three [] to four [] minutes. When

[Davis] opened the door, officers immediately smelled the odor of

marijuana, and observed a grinder and a marijuana blunt in plain

view. [Davis] was immediately detained and remained with Agent

Gerrity while Agent Tyson, APO Anglemeyer[,] and APO Rigel

performed a protective sweep of the residence for safety

purposes, prior to conducting the planned search. No other

individuals were in the residence at that time.

The residence at 1401 N. 15th Street is a two-story row home

with a finished basement, connected only on one [] side to another

row home. In the basement, there was an in-home recording

studio in the common area, and a separate bedroom. During the

protective sweep, officers observed a jar of medical marijuana on

the desk of the recording studio, suitcases in the open closet, and

three [] firearms laying on the floor in the basement bedroom in

plain view. While officers were still at the residence, [Kyle] Oliver

approached APO Anglemeyer and requested permission to enter.

APO Anglemeyer denied him permission to enter. [] Oliver then

informed APO Anglemeyer that he resided in the basement

bedroom. There was an exterior door that led from the basement

to the rear of the residence, where [Davis’] vehicle was parked.

APO Anglemeyer did not know whether [Davis] had a valid driver’s

license or not.

The first floor consisted of the kitchen and living room. [No

contraband] was found in the kitchen. As previously stated,

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officers observed a marijuana grinder, a blunt wrapper, and an

ashtray in plain view on the living room table. During the

protective sweep, officers removed all the items from the closet

by the front door and searched through a pink backpack, as well

as a box that was in the closet. Inside the pink backpack was a

plastic grocery bag filled with what appeared to be drug packaging

materials. The box was located on the top shelf of the closet that

contained a composit[ion] notebook, a firearm, a digital scale box,

and a guilty plea colloquy for an individual known as William

Davis.12 The composit[ion] notebook contained numerous

writings in various handwritings. There was no attempt to obtain

a handwriting exemplar to investigate the various handwritings

found in the notebook. None of [Davis’] personal belongings were

found in the living room closet.

12 William Davis has no relation to [the defendant].

On the second floor, there were three [] bedrooms—front, rear,

and north—and a bathroom. During the protective sweep of the

second [] floor, officers observed a box of 9mm ammunition on a

side night table in the front bedroom, consistent with the Glock

9mm found in the living room closet. While officers were still on

scene, [] Oliver handed his phone to APO Anglemeyer to speak

with a female on the other end. The female identified herself as

Melina Mendoza [] and informed APO Anglemeyer that she resided

in the second-floor front bedroom, and legally owned a firearm

(the Glock 9mm) that would be found in the living room closet.

As a result of the evidence observed in plain view, as well as

evidence that was secreted in a bookbag and a box in the living

room closet, APO Anglemeyer contacted Officer Jeremy Crist [] of

the City of Harrisburg Bureau of Police. Officer Crist arrived on

scene and was provided information by APO Anglemeyer. Based

on the information provided to him, Officer Crist applied for four

[] separate search warrants [for]: (1) the common areas; (2) the

basement bedroom[,] which [was] identified [as belonging to]

Oliver[;] (3) [the] second[-]floor front bedroom (belonging to []

Mendoza); and (4) [the] second[-]floor rear bedroom[,] which

[was] identified [as belonging to Davis].

[The search of Davis’ residence yielded an abundance of evidence

of marijuana trafficking. In the basement bedroom, identified as

belonging to Oliver, the search uncovered, inter alia: three one-

pound bags of marijuana, multiple firearms, ammunition, and

$1,396 in cash. In the basement common area, the search

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uncovered, inter alia: Davis’ expired identification card, two

medical marijuana containers, a grinder, rolling papers, and

luggage containing plastic bags with marijuana residue. The living

room closet contained, inter alia: a backpack containing drug

packaging materials, a shoebox containing a digital scale, a

composition notebook, a firearm, and a backpack containing

$2,000. Recovered in plain view in the living room was a

marijuana grinder on a coffee table. The “futon room” [on the

second floor] contained a grinder with marijuana residue and

vacuum sealed bags with marijuana residue. In the second-floor-

front bedroom, purportedly belonging to Mendoza, the search

uncovered, inter alia: ammunition, a composition book containing

a drug ledger, seven amphetamine pills, a total of $65,000 in

cash, and labels used to package marijuana. Nothing was

recovered from Davis’ bedroom.]

Detective John Goshert [] testified on behalf of the

Commonwealth as an expert in street[-]level drug trafficking. He

opined that the marijuana recovered from 1401 N. 15th Street

was possessed with the intent to distribute it. However, Detective

Goshert also testified that[,] based on the evidence he reviewed,

it appeared that the marijuana was being sold by the pound[,] as

opposed to the typical street-level dealing where it[ is] sold by the

gram. He further opined that it was a “very sophisticated

operation” and likely involved more than one [] person.

Officers recovered a total of five [] firearms from [] Oliver’s

basement bedroom: (1) a 9mm pistol inside a backpack; (2) a

semiautomatic shotgun (Citadel) on the floor; (3) a bolt-action

rifle (Creedmoor) on the floor; (4) a semiautomatic AR-15 on the

floor; and (5) a Mossberg shotgun in a case behind the TV. During

the investigation, Officer Crist was informed by [] Oliver that Jlynn

McDonald [] was his girlfriend. Two [] of the firearms recovered

from the basement bedroom were registered to [] McDonald—the

9mm pistol and bolt-action rifle. Inside the backpack with the

9mm pistol were medical records and a prescription bottle for Ms.

McDonald.

Additionally, [] Oliver claimed ownership of the remaining three []

firearms recovered from his bedroom, and informed Officer Crist

that he purchased the Citadel shotgun and the AR-15. An

additional firearm was recovered from the living room closet—a

9mm pistol registered to [] Mendoza. [] Oliver was charged with

possession of the marijuana found in his basement bedroom, but

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[] McDonald was not. Significantly, there was no evidence with

[Davis’] name on it [] recovered from [] Oliver’s bedroom.

In the basement studio, officers recovered [Davis’] expired

identification card, as well as two [] medical marijuana containers.

Despite the medical marijuana containers having labels with

identifying information on them, apparently Officer Crist chose not

to investigate [the identity of the patient].

The only evidence in the second [] floor front bedroom ([identified

as] Mendoza’s bedroom) that had [Davis’] name on it was a

Dauphin County Treasury bill addressed to [Davis] and Charles

Morrison [] for a property at 18 Evergreen Street. The bill was

mailed to 929 Norwood Street. During the investigation, Officer

Crist learned that [] Morrison is [Davis’] adopted brother, and that

they jointly own the property at 18 Evergreen Street. Officer Crist

did not check the Recorder of Deeds to obtain a copy of the deed

for 18 Evergreen Street. At trial, Officer Crist was shown a copy

of the deed and indicated that it was a quit claim deed—a brother

to brother transfer from Joseph Davis to [] Morrison and [Davis].

Officers also recovered the identification card and [S]ocial

[S]ecurity card for Katiria Maldonado-Davila [] in the second []

floor front bedroom ([]Mendoza’s bedroom). During the

investigation, Officer Crist learned that [] Maldonado-Davila was

[Morrison’s] girlfriend[.] However, Officer Crist did not interview

[] Morrison or [] Maldonado-Davila during the investigation to find

out why her personal information was in [] Mendoza’s bedroom.

Further, there was no evidence with [Davis’] name on it recovered

from the second [] floor north bedroom ([“]futon room[”]).

Of all the evidence that was collected—six [] firearms, numerous

plastic bags, storage containers, ammunition boxes, notebooks,

packaging labels, etc.—only the [two] 9mm pistols were

processed for fingerprinting. No latent prints were found. Officer

Crist explained that he did submit the other four [] firearms for

fingerprinting, but there was a “packaging snafu” that made the

firearms unable to be processed.

Although Officer Crist had the capability to collect trace DNA from

the firearms for analysis, he chose not to do so. He explained that

he did not request them to be processed because: (1) it would

not have be uncommon for [Davis’] DNA to be on the firearms

since he resided at 1401 N. 15th Street; (2) the Pennsylvania

State Police lab would not prioritize the testing because it was not

a homicide or aggravated assault; and (3) it “doesn’t seem logical

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for the possibility for there to be actual reason for his DNA to be

on the weapons.”

Despite Officer Crist having evidence that at least six [] and

possibly up to nine [] other individuals had access to 1401 N. 15th

Street—[] Oliver, [] Mendoza, [] Morrison, [] Maldonado-Davila,

[] McDonald, [] William Davis, the three [] unnamed occupants at

the residence on February 9, 2021, and the unnamed cohabitant

at the residence on March 1, 2021—he chose to only interview []

Oliver and [] Mendoza, and did not investigate any of the other

individuals to determine what level of access they may have had

to the residence.

At some point during the protective sweep or ultimate search,

officers obtained possession of [Davis’] keyring and discovered

that one [] of his keys opened the back door of the residence.

That same key was not examined to see if it also opened the front

door, nor was it collected as evidence. Additionally, four [] to five

[] other sets of keys were photographed throughout the

residence, but were not seized []or tested to see if they opened

the front and/or back doors. Further, the only evidence testified

to in [Davis’] bedroom w[as] a vape pen and loose marijuana,

which were not collected as evidence.

Trial Court Opinion, 1/12/23, at 4-15 (citations to record and some footnotes

omitted).

A jury trial was held from September 19-22, 2022. At the conclusion of

the Commonwealth’s case, the trial court granted Davis’ motion for judgment

of acquittal as to a charge of possession of a controlled substance

(amphetamine).1 The jury subsequently convicted Davis of person not to

possess firearm,2 possession with intent to deliver a controlled substance

____________________________________________

1 The Commonwealth does not challenge the trial court’s grant of judgment of

acquittal as to this charge.

2 18 Pa.C.S.A. § 6105.

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(“PWID”),3 and possession of drug paraphernalia.4 After the verdict was

announced, Davis moved for judgment of acquittal on the remaining charges.

After briefing by both parties, the trial court granted Davis’ motion on October

20, 2022, and dismissed the charges against him. The Commonwealth filed

a timely notice of appeal, and both the Commonwealth and the trial court have

complied with Pa.R.A.P. 1925.

The Commonwealth raises the following claim for our review:

Whether the trial court erred in granting [Davis’] post-verdict

motion for acquittal and dismissing all charges where [the

Commonwealth] presented weighty and sufficient evidence to

sustain [Davis’] convictions for persons not to possess firearms,

possession with intent to deliver a controlled substance, and

possession of drug paraphernalia[, and] the jury weighed the

evidence and concluded that it established [Davis’] guilt beyond a

reasonable doubt, and[, thus,] the trial court [] erred in

reweighing the evidence[.]

Brief of Appellant, at 4.

Our standard of review when considering the Commonwealth’s claim

that the trial court erred in granting a motion for judgment of acquittal is as

follows.

A motion for judgment of acquittal challenges the sufficiency of

the evidence to sustain a conviction on a particular charge, and is

granted only in cases in which the Commonwealth has failed to

carry its burden regarding that charge.

The standard we apply in reviewing the sufficiency of the evidence

is whether[,] viewing all the evidence admitted at trial in the light

____________________________________________

3 35 P.S. § 780-113 (a)(30).

4 Id. at § 780-113(a)(32).

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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 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.

Commonwealth v. Hutchinson, 947 A.2d 800, 805–06 (Pa. Super. 2008)

(citation omitted).

Here, Davis was convicted of PWID, possession of drug paraphernalia,

and person not to possess firearm. To sustain a conviction for PWID, “the

Commonwealth must prove both the possession of the controlled substance

and the intent to deliver the controlled substance.” Commonwealth v.

Roberts, 133 A.3d 759, 767 (Pa. Super. 2016) (citation omitted).

Possession of drug paraphernalia is defined as:

The use of, or possession with intent to use, drug paraphernalia

for the purpose of planting, propagating, cultivating, growing,

harvesting, manufacturing, compounding, converting, producing,

processing, preparing, testing, analyzing, packing, repacking,

storing, containing, concealing, injecting, ingesting, inhaling or

otherwise introducing into the human body a controlled substance

in violation of this act.

35 P.S. § 780–113(a)(32). Drug paraphernalia is defined as:

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all equipment, products and materials of any kind which are used,

intended for use or designed for use in planting, propagating,

cultivating, growing, harvesting, manufacturing, compounding,

converting, producing, processing, preparing, testing, analyzing,

packaging, repackaging, storing, containing, concealing, injecting,

ingesting, inhaling or otherwise introducing into the human body

a controlled substance in violation of this act. . . .

In determining whether an object is drug paraphernalia, a court

or other authority should consider, in addition to all other logically

relevant factors, statements by an owner or by anyone in control

of the object concerning its use . . . the proximity of the object, in

time and space, to a direct violation of this act, the proximity of

the object to controlled substances, the existence of any residue

of controlled substances on the object, direct or circumstantial

evidence of the intent of an owner, or of anyone in control of the

object, to deliver it to persons who he knows, or should reasonably

know, intend to use the object to facilitate a violation of this act

. . . the existence and scope of legitimate uses for the object in

the community, and expert testimony concerning its use.

35 P.S. § 780–102.

“To sustain a conviction for possession of drug paraphernalia[,] the

Commonwealth must establish that items possessed by defendant were used

or intended to be used with a controlled substance so as to constitute drug

paraphernalia and this burden may be met by Commonwealth through

circumstantial evidence.” Commonwealth v. Little, 879 A.2d 293, 300 (Pa.

Super. 2005).

Finally, the Crimes Code defines persons not to possess firearms, in

pertinent part, as follows:

(a) Offense defined.

(1) A person who has been convicted of an offense

enumerated in subsection (b), within or without this

Commonwealth, regardless of the length of sentence or

whose conduct meets the criteria in subsection (c) shall not

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possess, use, control, sell, transfer or manufacture or obtain

a license to possess, use, control, sell, transfer or

manufacture a firearm in this Commonwealth.

***

(c) Other persons.--In addition to any person who has been

convicted of any offense listed under subsection (b), the following

persons shall be subject to the prohibition of subsection (a):

***

(2) A person who has been convicted of an offense under

the act of April 14, 1972 (P.L. 233, No. 64), known as The

Controlled Substance, Drug, Device and Cosmetic Act, or

any equivalent Federal statute or equivalent statute of any

other state, that may be punishable by a term of

imprisonment exceeding two years.[5]

18 Pa.C.S.A. §§ 6105(a)(1) & (c).

Davis was convicted of three possessory offenses. It is well-settled that

in the context of such prosecutions, “the Commonwealth may meet its burden

by showing actual, constructive, or joint constructive possession of the

contraband.” Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa. Super.

2014) (en banc) (quotation and quotation marks omitted).

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.” We

subsequently defined “conscious dominion” as “the power to

control the contraband and the intent to exercise that control.” To

aid application, we have held that constructive possession may be

established by the totality of the circumstances.

____________________________________________

5 On May 28, 2020, Davis entered a guilty plea to one count of PWID

(marijuana). See N.T. Trial, 9/22/22, at 572.

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Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012) (quotation

omitted). “The Commonwealth may sustain its burden by means of wholly

circumstantial evidence, and we must evaluate the entire trial record and

consider all evidence received against the defendant.” Id. (citation omitted).

Nevertheless, “where more than one person has equal access to where

drugs are stored, presence alone in conjunction with such access will not prove

conscious dominion over the contraband.” Vargas, 108 A.3d at 868, quoting

Commonwealth v. Davis, 480 A.2d 1035, 1045 (Pa. Super. 1984)

(emphasis omitted). Rather, for the Commonwealth to prove constructive

possession where more than one person has access to the contraband, “the

Commonwealth must introduce evidence demonstrating either [the

defendant’s] participation in the drug[-]related activity or evidence connecting

[the defendant] to the specific room or areas where the drugs were kept.”

Vargas, 108 A.3d at 868, quoting Commonwealth v. Ocasio, 619 A.2d 352,

354–355 (Pa. Super. 1993).

[A]lthough “mere presence” at a crime scene cannot alone sustain

a conviction for possession of contraband:

a jury 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.

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Vargas, 108 A.3d at 869, quoting United States v. Robinson, 978 F.2d

1554, 1557–58 (10th Cir. 1992) (internal quotations and citations omitted).

In reaching its conclusion that Davis’ convictions were not supported by

the evidence, the trial court reviewed numerous constructive possession cases

and concluded that “[t]his case is significantly different.” Trial Court Opinion,

1/12/23, at 19. Specifically, the court noted, inter alia, the following factors:

(1) the lack of fingerprint or DNA evidence connecting Davis to the

contraband; (2) clear evidence that others resided in the bedrooms where the

vast majority of the contraband was found; (3) the lack of any contraband in

Davis’ bedroom; (4) Oliver’s statement to Officer Anglemeyer that everything

in the basement bedroom belonged to him; (5) Oliver’s PennDOT change of

address, which pre-dated Davis’ presence at the residence, identifying 1401

N. 15th Street as his address; and (6) the items recovered from the front

bedroom were consistent with Mendoza’s ownership of the room. Moreover,

the court noted that the Commonwealth’s emphasis on the fact that Davis was

the sole person present in the residence during each of the visits made by law

enforcement was disingenuous, as Davis was on house arrest and was

required to be there.6

____________________________________________

6 The trial court stated in its opinion:

By repeatedly exploiting the reality that [Davis] was unable to

leave his residence, the Commonwealth placed [him] in an unfair

position—violate his constitutional rights by informing the jury he

was on state parole and required to be on house arrest or say

(Footnote Continued Next Page)

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The court concluded:

In sum, this [c]ourt finds that the Commonwealth’s case rests on

inferences upon inferences, and that the inferences the

Commonwealth asks this [c]ourt to draw do not flow from the

facts and circumstances presented at trial. [T]hey are not of the

volume and quality to overcome the presumption of innocence.

This [c]ourt does not take this issue lightly, nor does it desire to

substitute its conclusions for the jury’s. Instead, we must follow

the guidance of our appellate courts, and objectively analyze the

evidence without unsupported conjecture. The two [] co-

defendants, to which the evidence points [] directly, have not

been brought to trial to answer on their charges, nor were they

joined for trial with this case. Nevertheless, we are constrained

to conclude that the evidence is insufficient, as a matter of law, to

support the convictions against [Davis].

Id. at 29-30.

In its brief, the Commonwealth relies on two cases in which our Supreme

Court found constructive possession and argued that the facts underlying the

instant matter are “more compelling.” Brief of Appellant, at 23. In

Commonwealth v. Macolino, 469 A.2d 132 (Pa. 1983), the defendant was

convicted of PWID and criminal conspiracy based on the following factual

scenario:

Armed with a search warrant, police searched [Macolino’s] home

on October 29, 1979. In the first[-]floor dining room, the police

seized various items linking Carl and Gae Macolino[, Macolino’s

wife and co-defendant,] together as a couple, including bank

checks, deposit slips, a bank passbook in both their names[,] and

photographs of the couple. Large sums of money were also

seized. In the master bedroom[,] which was equipped with a

double bed, there was a clothes closet with the clothing of both a

____________________________________________

nothing and allow the Commonwealth to argue that he had to be

in control of the entire residence.

Trial Court Opinion, 1/12/23, at 25.

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man and woman. On the top shelf of the closet[,] police seized

two plastic bags containing a white powder, testified at trial to be

thirty-percent cocaine. Two smaller plastic packages were found

in the closet as well, containing what was testified to be two

percent cocaine, along with a Tupperware container holding four

empty plastic bags. Copies of “The Pleasures of Cocaine” and “The

Pill Book” were seized from a bookshelf in the bedroom. On top

of the bedroom dresser, the officers seized a pocket memo book,

containing pages of numbers, a machine called a “Daisy Seal-a-

Meal,” an appliance used in the drug trade to seal packages of

cocaine in order to prevent seepage of the drug, and a device used

to detect eavesdropping equipment on a telephone called an

“Eavesdropper Stopper.” In the attic, police seized two one-pound

containers of mannitol, a substance used as a cocaine “cutting”

agent.

Id. at 133-34.

This Court reversed Macolino’s convictions on the basis that there was

insufficient evidence to establish constructive possession, as Macolino’s “wife

had equal access to the drugs, and . . . the inference was just as strong that

the drugs belonged to her as to her husband.” Id. at 135 (quotation marks

omitted). The Supreme Court granted the Commonwealth’s petition for

allowance of appeal as to the PWID charge and noted that the issue of

constructive possession of contraband seized in an area jointly controlled by

husband and wife was an issue of first impression in Pennsylvania. After

reviewing similar cases from other jurisdictions, the Court concluded 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.” Id. at 135. The Court stated that “[t]he facts of this

case involve a husband and wife who had joint and exclusive control of a

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residence, who alone were present at the time of the police search, in

conjunction with other evidence sufficient to establish a link between []

Macolino and the illegal substance.” Id. at 136.

[T]he fact-finder, examining all of the evidence in its totality, could

reasonably conclude that [Macolino] was aware of the cocaine,

along with the items found in his bedroom[,] which are commonly

used in cocaine use and trafficking, that he exercised a conscious

dominion over the illegal substance[,] and that he intended to

possess it.

Id.

The Commonwealth also relies on Commonwealth v. Mudrick, 507

A.2d 1212 (Pa. 1986). The charges there arose when police arrived at the

residence of the defendant’s paramour, Sandra Dietz, to serve a New Jersey

fugitive warrant on Dietz.

They knocked; [Mudrick] answered the door. After the officers

explained their purpose, [Mudrick] told them that [] Dietz was

sleeping in the bedroom and directed them to it. [Mudrick] was

wearing only a pair of blue jeans. Some of the officers entered

the bedroom, woke [Dietz], and placed her under arrest. [] Dietz

was taken to the District Magistrate after dressing and using the

bathroom. [Mudrick] told another officer that he lived with []

Dietz and they were going to be married. He also mentioned that

one of the dogs on the premises was his. The officers saw a box

of what they believed to be marijuana on the living room coffee

table. [Mudrick] was ordered to sit down; he sat within two feet

of the contraband. One officer remained on the premises with

[Mudrick] while others obtained a search warrant. While waiting

for the officers to return, [Mudrick] got up, walked into the kitchen

and helped himself to a cold drink from the refrigerator. At about

3:00 P.M. the officers returned with a search warrant for the

residence. In addition to the box on the coffee table, they found

what proved to be cocaine in the bedroom and the study. The

suspected contraband was confiscated and [Mudrick] was

arrested. He retrieved his clothes from the bedroom in which

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Dietz had been sleeping. This was the only room in the residence

in use as a bedroom. Subsequent chemical analysis showed that

the substances seized were marijuana and cocaine.

At trial, [Mudrick] presented evidence that he actually lived in

Blakeslee in the home of one Patrick Simonik, and that he paid

room and board to Simonik and took meals there.

Id. at 1212-13.

This Court reversed Mudrick’s judgment of sentence on the basis that

“the Commonwealth proved no more than [Mudrick’s] presence at the scene,

and the evidence was insufficient to establish constructive possession.” Id.

at 1213. The Supreme Court granted allowance of appeal to the

Commonwealth and reinstated Mudrick’s convictions, holding that “even in the

absence of a marital relationship[,] constructive possession may be found in

either or both actors if contraband is found in an area of joint control and

equal access.” Id. at 1214. The Court concluded that the fact that Mudrick

exclusively shared the residence, in which contraband was found in the

bedroom, study, and living room, was sufficient to enable a factfinder to find

joint control and equal access to the contraband, thus establishing

constructive possession.

In response, Davis argues that there was no direct or circumstantial

evidence proving any connection between him and the contraband or drug

activity related thereto. No firearms, marijuana, or other contraband was

found in Davis’ bedroom, or in any area over which Davis had “exclusive

control.” Brief of Appellee, at 28. Davis argues that there was no evidence

of his intent to exercise control over the contraband. “At best . . . the evidence

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presented at trial, as to Davis, was equally consistent with his innocence as it

was with any guilt.” Id., citing In Interest of J.B., 189 A.3d 390, 415 (Pa.

2018) (where evidence of record, viewed in light most favorable to

Commonwealth with all reasonable inferences, is, at most, equally consistent

with guilt and innocence, Commonwealth has not sustained burden of proof

beyond reasonable doubt). Davis argues that it is unreasonable to infer that

he was the only resident of the home, as Officer Crist “conceded that there

were possibly ten other individuals living in the residence, or had equal access

to the contraband . . . as Davis.” Id. at 30.

In support of his argument, Davis relies on this Court’s decision in

Ocasio, supra, in which we set forth the facts as follows:

On February 2, 1989[,] the Philadelphia Police Department

executed a search warrant for 2128 North Second Street in

Philadelphia. During the search, the officers required the five

occupants of the house, including Abel Ocasio (hereinafter “co-

defendant”), to remain in the living room. While the officers were

searching the first floor, Officer Ralph Perez overheard co-

defendant state in Spanish, “it’s in the trash.” Officer Perez then

directed another officer to search the trash can in the kitchen. The

police discovered twelve baggies containing a total of 567 vials of

crack cocaine hidden in the trash can. In a third[-]floor bedroom,

the officers found a baggie containing a large chunk of crack

cocaine laying out in the open and $5,882 in cash. In addition,

the officers recovered from the basement a triple beam scale, one

baggie containing numerous empty clear plastic vials with gray

and black caps, two strainers, and one baggie containing

numerous empty clear smaller packets.

The 567 vials found in the kitchen contained approximately 56.7

grams of crack cocaine and the baggie found in the third[-]floor

bedroom contained 113.2 grams of crack cocaine. The black

plastic grinding apparatus recovered during the search contained

residue of cocaine and the glass bottle confiscated during the

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search contained 5.35 grams of Tetracaine, a substance

commonly used to dilute or “cut” cocaine before selling it.

Appellant returned home while the search was in progress and he

was subsequently arrested. During a search of appellant, police

recovered $422 in cash and a current driver’s license listing his

residence as 2128 North Second Street.

Id. at 353.

Ocasio was convicted of possession of drug paraphernalia and

conspiracy. On appeal, he argued, inter alia, that the evidence was insufficient

to convict, and this Court agreed, finding that the Commonwealth failed to

introduce evidence demonstrating either Ocasio’s participation in the drug-

related activity or connecting him to the specific room or areas where the

drugs were kept. The Court stated:

After carefully examining all of the circumstances in the instant

action, we find that the Commonwealth has established no more

than a mere suspicion that appellant agreed to participate or aid

in the drug distribution. As a resident of the house, appellant’s

presence at the scene of the crime was not out of the ordinary.

In fact, he was one of six individuals present during the search.

Moreover, there is no evidence that appellant even knew of the

criminal activity in the house. See Commonwealth v. Fortune,

[] 318 A.2d 327, 329 ([Pa.] 1974) (a defendant’s residence at the

house where contraband is found does not establish that he had

knowledge of any criminal activity). Nothing connecting appellant

to the drugs or the drug paraphernalia was found anywhere in the

house. As stated above, the $422 in small denominations could

suggest that appellant was involved in drug sales. However, this

inference is not supported by any other evidence. In light of the

lack of direct and circumstantial evidence connecting appellant to

any drug related activity, the evidence introduced at trial is

insufficient to support appellant’s conviction of criminal

conspiracy.

Id. at 355.

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Here, while we are sympathetic to the trial court’s evident frustration

with the Commonwealth regarding certain aspects of its investigation and

prosecution of this matter, we are constrained to conclude that the court erred

in granting Davis’ motion for acquittal. Contrary to Davis’ argument, the jury

need not have found that Davis had exclusive possession of the areas in

which contraband was found, or that he was the only resident of the dwelling,

to conclude that he was guilty of possessing the contraband. Similarly, the

fact that no contraband was found in Davis’ bedroom is not dispositive.

Indeed, the facts of this case are closely analogous to those in

Commonwealth v. Aviles, 615 A.2d 398, 402 (Pa. Super. 1992) (en banc).

In Aviles, appellant was convicted of possession of a controlled

substance, PWID, and possession of drug paraphernalia on the following facts:

[A]t 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.

Once at the site, Officer McEwen knocked on the front door and

announced, “Police.” [] 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, [] 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 [drugs and drug paraphernalia, including plastic packets

containing white powder and sealed with gold tape, sandwich bags

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containing white powder, a glass bottle containing white powder,

and grinders and a screen containing white residue].

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: [“W]hen 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[, Officer]

McEwen observed Sergeant Perez “on his hands and knees

removing floorboards . . . from the eastern-most wall of that

room.” Retrieved from under the floor was an “open toolbox”

containing $10,538 in cash. [Officer] McEwen also found a second

box in the middle bedroom which contained[ a scale, an electric

heat-sealer with a plug, two strainers, a screen, hundreds of

empty, clear plastic packets, and twelve 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, [] 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. She and

her [three] children slept on the second floor, front bedroom[,]

next to the middle and rear bedrooms[ in which the drugs and

paraphernalia were found].

[] Aviles testified that the rear and middle bedrooms had been

rented to her sister [] and brother-in-law [] from the beginning of

December, 1988 until the police arrived. 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 [the belief of Aviles’ son,] Jorge[,] 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[,] who rented

the same two bedrooms from 1987 until 1988 and noticed no

floorboards having been sawed through and used as a storage

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area. On the other hand, the police testified to the contrary:

[Officer] McEwen “didn't observe any sawdust or fresh type

markings [in the floorboards]. 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.

Id. at 399–401.

A three-judge panel of this Court, with one dissent, reversed Aviles’

judgment of sentence. On petition of the Commonwealth, we granted en banc

review. Applying the principles enunciated in Mudrick, supra, the Court en

banc concluded that, “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,” the evidence was

sufficient to prove that Aviles had joint control over, and equal access to, the

areas where the contraband was found. Aviles, 615 A.2d at 403.

The factfinder could properly find that [] 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 [] Aviles’ constructive possession of the

cocaine, drug paraphernalia[,] and money[,] which were openly

accessible to her in the rear and middle bedrooms.

Id. (emphasis in original)

Here, as in Aviles, no contraband was discovered in the bedroom

identified as belonging to the defendant. Nevertheless, in both cases, the

defendant had unrestricted access to all of the areas in which contraband was

found. Indeed, the facts here are more compelling than in Aviles, as

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contraband was found not only in unlocked, freely accessible bedrooms

belonging to other residents, but throughout the other common areas of the

house. In the matter sub judice, Davis had unfettered access to the two other

second-floor bedrooms adjacent to his, in which large amounts of cash,

ammunition, drug paraphernalia, a drug ledger, and drug packaging materials

were found. He had similarly free access to the living room and its closet, in

which cash and drug paraphernalia were found, some in plain view on the

coffee table. Finally, property belonging to Davis, including an expired

identification card and medial marijuana containers, was found in the

basement common area, in which marijuana and luggage containing plastic

bags with marijuana residue were also found. And, although evidence tended

to show that the basement bedroom belonged to Kyle Oliver, Davis also had

unfettered access to that room, in which firearms, ammunition, approximately

$1,400 in cash, and at least three pounds of marijuana were uncovered.

In light of the foregoing, viewed in the light most favorable to the

Commonwealth and drawing all reasonable inferences therefrom, “bounded

only by the ‘realities’ of drug activity and its attendant variables,” id. at 403,

the jury could have reasonably concluded that Davis had joint control and

equal access to the areas in which the contraband was found and intent to

exercise that control and, thus, that he was in constructive possession of the

contraband. See Mudrick, supra.

Order reversed. Convictions reinstated. Case remanded for sentencing.

Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/18/2023

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