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[U] Commonwealth v. Palmer

Superior Court of Pennsylvania

February 3, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DANA PALMER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence Entered October 23, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000777-2012

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM

BENDER, P.J.E.

Appellant, Dana Palmer, appeals from the judgment of sentence of six to twelve years' incarceration, followed by five years' probation, imposed after he was convicted of possession with intent to deliver heroin (PWI D) and possession of heroin. Appellant solely challenges the sufficiency of the evidence to sustain his convictions. We affirm .

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

On November 18, 2011, Officer Igor Boyko, of the Pittsburgh Police Department, was assigned to perform a traffic enforcement detail at the intersection of Robinson Street and Fifth Avenue in the City of Pittsburgh. At approximately 10: 00 p.m., Officer Boyko observed a red Ford Mustang coming down Robinson Street toward Fifth Avenue. At the intersection of Robinson and Fifth Avenue, there were signs prohibiting traffic from making a left-hand turn requiring all traffic to make a right-hand turn on to Fifth Avenue. The Ford Mustang stopped at the stop sign and then despite the signs prohibiting a left-hand turn, made a left onto Fifth Avenue. The Mustang then made an illegal right turn on to the bus lane of Fifth Avenue and proceeded toward the entrance ramp from Fifth Avenue to the Parkway East.
Officer Boyko was in pursuit of this red Mustang and had activated his lights and siren in an effort to stop [ the vehicle] for the traffic violations that he had witnessed. As the Mustang proceeded down the sloped entrance ramp, Officer Boyko observed a white shopping bag being thrown out of the passenger side window. That object landed on the top of a hillside on the top of the retaining wall for this entrance ram p. Officer Boyko noted the location of this thrown object and requested backup so that he could be assisted in the investigation of this incident. Officer Aaron Fetty arrived on the scene and Officer Boyko told him where the object had been thrown[ .] [ Officer Fetty] recovered that shopping bag which contained [ 960] stamp bags of heroin. The driver of the vehicle, Jonathan Young, (hereinafter referred to as "Young"), and his cousin, [ Appellant], were arrested and charged with the violation of the Controlled Substance, Drug, Device & Cosmetic Act and tampering with evidence.

Trial Court Opinion (TCO), 4/ 30/ 13, at 3-4.

Appellant was initially charged with two counts of criminal conspiracy, tampering with physical evidence, possession of heroin, and PWID. After his preliminary hearing, the criminal conspiracy counts were dismissed. On August 27, 2012, Appellant proceeded to a jury trial on the remaining charges. On August 29, 2012, the jury found Appellant guilty of tampering with physical evidence, but it was unable to reach a verdict with regard to the remaining charges.[1]

On October 22, 2012, a second jury trial was conducted, after which the jury convicted Appellant of possession of heroin and PWID. He was subsequently sentenced to a term of six to twelve years' incarceration, followed by five years' probation. Appellant filed a timely post-sentence motion, which the court ultimately denied. Appellant then filed a timely notice of appeal, as well as a timely concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, he raises one issue for our review:

1. Did the trial court err in finding that the evidence was sufficient to sustain the verdict when the Commonwealth relied on a theory of constructive possession and the evidence presented only established the location of the drugs?

Appellant's Brief at 3.

To begin, we note our standard of review of a challenge to the sufficiency of the evidence:

In reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light m ost favorable to the verdict winner, are sufficient to support all elements of the offense. Commonwealth v. Moreno, 14 A.3d 133 (Pa.Super. 2011). Additionally, we may not reweigh the evidence or substitute our own judgment for that of the fact finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa.Super. 2009). The evidence may be entirely circumstantial as long as it links the accused to the crime beyond a reasonable doubt. Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa.Super. 2011).

Moreover, in Commonwealth v. Perez, 931 A.2d 703 (Pa.Super. 2007), this Court explained:

To establish the offense of possession of a controlled substance with intent to deliver, the Commonwealth must prove beyond a reasonable doubt that the defendant possessed a controlled substance with the intent to deliver it.
The Commonwealth has the option to establish actual or constructive possession.
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 control. Constructive possession may be established by the totality of the circumstances. We have held that circumstantial evidence is reviewed by the same standard as direct evidence-a decision by the trial court will be affirmed so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.

Id. at 707-708 (internal quotation marks and citations omitted).

In this case, Appellant acknowledges that the Commonwealth's evidence established the "location of the contraband." Appellant's Brief at 9. In other words, he concedes that the evidence proved that a bag of heroin was thrown from the passenger-side window of the vehicle in which he was riding, and that the bag "went up into the air and landed on top of the hillside on top of the retaining wall" alongside the roadway. Id. at 10 (quoting N.T. Trial, 10/ 22/ 12, at 29-30 (Officer Boyko's testimony)). However, Appellant argues that because no witness identified who threw the bag out of the window, or even saw "an arm come out of the window, " there was insufficient evidence to prove that he constructively possessed that bag of heroin. This is especially true, Appellant contends, where Jonathan Young "testified that he threw the bag out of the passenger window" and that "Appellant did not know about the heroin." Id. (citing N.T. Trial, 10/ 22/ 12, at 84-85).

In support of his argument that "location and proximity of the contraband alone is not enough to establish constructive possession, " Appellant relies on two cases, Commonwealth v. Arm stead, 305 A.2d 1 (Pa. 1973) (finding appellant-passenger's mere presence in vehicle where gun was found lying in middle of front seat was insufficient to prove appellant-passenger knew of the presence of weapon or constructively possessed it), and Commonwealth v. Juliano, 490 A.2d 891 (Pa.Super. 1985) (holding that appellant-passenger's knowledge of a bag sitting at his feet on floor of vehicle, in which three other men were present, was insufficient to prove appellant-passenger knew that bag contained narcotics). However, Arm stead and Juliano are distinguishable from the instant case.

Here, unlike in Armstead or Juliano, there was evidence that Appellant not only knew about the presence of the white bag in the vehicle, but that he was the person who threw the bag out the window, thus establishing his knowledge of the contents of the bag. Namely, Officer Boyko testified that the vehicle driven by Young was a "sportier type of car, " and that it was "low to the ground." N.T. Trial, 10/ 22/ 12, at 29. The officer stated that the vehicle "came to a sudden stop, " a white bag was "thrown out the passenger side window, " and that the bag "went up into the air, " landing on the hillside above the retaining wall. Id. (emphasis added). Officer Fetty testified that the bag of narcotics was located approximately "20 feet or so" above the roadway. Id. at 54.

From this testimony, the jury was permitted to conclude that Appellant threw the bag of heroin from the vehicle. Appellant was the person sitting in the passenger seat next to the window from which the white bag emerged. While Young claimed that he threw the bag, it would have been very difficult for Young, sitting in the driver's seat, to throw the bag through the passenger-side window and up into the air approximately 20 feet. In any event, the jury was permitted to disbelieve Young's testimony that he threw the bag and that Appellant had no knowledge of the bag or its contents.

In sum, the totality of the Commonwealth's circumstantial evidence was sufficient to prove that Appellant not only had the ability, power, and intent to exercise control over the bag of heroin, but that he actually did so by throwing the bag from the vehicle. Accordingly, Appellant's convictions of PWID and possession of heroin must stand.

Judgment of sentence affirmed.

Judgment Entered.


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