from the Judgment of Sentence March 22, 2016 In the Court of
Common Pleas of Luzerne County Criminal Division at No(s):
BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
Braemar Parrish, appeals from the Judgment of Sentence
imposed following his convictions of two counts each of
Possession with Intent to Deliver ("PWID") (heroin
and methamphetamines), Conspiracy, and Possession of a
Controlled Substance, and one count each of Possession of
Drug Paraphernalia and Firearms Not to be Carried Without a
charges in this case stem from the police search of a vehicle
driven by Pernell Riddick. When the police pulled the vehicle
over, they observed Appellant seated in the back seat. The
police found in the front seat a black bag that contained
drugs, drug paraphernalia, and a gun. The police also found a
gun under the front passenger seat and marijuana in a cup
holder on the front passenger-side door. Appellant contends,
inter alia, that the evidence was insufficient to
establish that the he even knew about the contraband, let
alone exercised dominion and control over it. We agree and,
accordingly, reverse Appellant's Judgment of Sentence.
facts and procedural history most relevant to this appeal are
as follows. On August 7, 2014, after observing a
tinted-windows violation, Kingston Police Officer John
Bevilaqua and Sergeant Height conducted a traffic stop of a
Lincoln MKZ four-door sedan. The officers followed the
vehicle without lights or sirens for several blocks, and then
indicated to the driver of the vehicle, Mr. Riddick, that he
should pull the vehicle over. After Mr. Riddick pulled over,
the officers immediately approached the vehicle and while
doing so noticed it rocking back and forth.
Riddick rolled down the window, and the police officers
smelled marijuana and observed a plastic baggie containing
marijuana in plain view. They also observed Mr. Riddick
straddling the center console between the two front seats and
the grip of a silver handgun protruding from under the front
passenger seat. The officers further observed Appellant
seated behind the driver's seat with his hands on the
headrest of the driver's seat.
officers arrested Mr. Riddick and Appellant and subsequently
searched the entire vehicle. On the floor on the passenger
side of the front of the vehicle, the officers found a black
bag. In the bag was a loaded .45 caliber handgun,
wax paper packets of heroin packaged into bundles, 12
individual packets of methamphetamines, a baggie of loose
heroin, two scales, packaging material, and unknown powder
substance, a spoon, and a magazine containing .40 caliber
ammunition. The officers also found in the front of the
passenger cabin of the vehicle, marijuana on the
passenger-side door and a .40 caliber handgun protruding from
under the passenger-side seat.
glove compartment, the officers found an extra magazine of
bullets, and in the trunk, they found a bulletproof vest. The
officers also found $1, 335 in cash on Appellant and $2, 168
on Riddick. During his arrest, Appellant cooperated with the
police, correctly identified himself, and did not attempt to
charged Appellant with the above crimes,  as well as one
additional count of Possession of a Controlled Substance and
one count each of Receiving Stolen Property and Person Not to
Possess Firearm. Before trial, the court severed the Person
Not to Possess Firearm offense from Appellant's other
Appellant's jury trial, Officer Bevilaqua testified
regarding the above details of the stop and search of the
vehicle. In addition, he stated that he observed the vehicle
"rocking back and forth in a violent manner." N.T.,
1/19/16, at 60. Because of the heavy window tint, however, he
"could not see inside the vehicle to see any furtive
movement being conducted." Id. He testified
that when he was finally able to see into the car, he
observed Mr. Riddick straddled over the center console of the
vehicle, half on the passenger side and half on the
driver's side. He saw Appellant, who was between
5'11" and 6' tall and weighed 270 lbs., seated
in the back seat on the driver's side with his hands
resting on the headrest in front of him. Id. at
60-62, 76-77. Officer Bevilaqua also testified that he
smelled marijuana emanating from the vehicle. Id. at
Bevilaqua further testified that, after Sergeant Height
observed a small bag of marijuana in plain view in the front
of the car in the passenger side door, Mr. Riddick admitted
that it was his. As the officers removed Mr. Riddick from the
car, Sergeant Height observed a .40 caliber Smith and Wesson
under the front passenger seat. Id. at 63, 78.
cross-examination, Officer Bevilaqua testified that Appellant
was not the registered owner of the vehicle and Appellant did
not have a key to the car's glove compartment or trunk.
Id. at 77, 85-86. Moreover, Officer Bevilaqua stated
that, because he first saw Appellant in the back seat, he
inferred that Appellant was not the vehicle's operator.
Id. at 86. Officer Bevilaqua confirmed that
Appellant correctly identified himself, cooperated with him
and Sergeant Height, and did not attempt to flee.
Id. at 88.
Bevilaqua also testified that police did not test any of the
items found in Mr. Riddick's vehicle for fingerprints.
Id. at 86-87.
Police Detective Edward Palka testified for the Commonwealth
as an expert in street-level drug interdiction. Id.
at 112. He reviewed the evidence, prepared an expert report,
and concluded that Appellant possessed the controlled
substances not for personal use, but to sell to others.
Id. at 113-116.
Palka also concluded that the presence of loaded handguns and
a bulletproof vest reflected the inherent dangerousness of
drug dealing. Id. at 126.
concluding that Appellant "constructively
possessed" the handguns, Detective Palka testified that
the "fact that there was [sic] two handguns
present[, ] not just one[, ] to me shows that both
individuals possessed a handgun. And in all the
investigations that I have done, I don't remember ever
coming - having more than one handgun." Id. He
reiterated that he does not generally come across one person
carrying more than one gun in a car. Id. at
Evans testified on Appellant's behalf. Mr. Evans
testified that Appellant had been at a party hosted by Mr.
Evans all afternoon on the day of Appellant's arrest and
stayed until approximately 2:00 AM. Id. at 151-52.
Mr. Evans testified that he asked Mr. Riddick to drive
Appellant home at the end of the party. Id. at 152.
Mr. Evans further testified that, when Appellant left the
party in Mr. Riddick's car, Appellant was not carrying a
satchel or any kind of bag. Id. at 153. He also
stated that he saw Appellant lay down in the back seat when
Appellant got in the car. Id.
January 20, 2016, the jury convicted Appellant of the above
charges. The court sentenced Appellant on March 22,
2016, to an aggregate term of 88 to 176 months'
incarceration and ordered Appellant to pay $356 in