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Commonwealth v. Parrish

Superior Court of Pennsylvania

June 15, 2018


          Appeal from the Judgment of Sentence March 22, 2016 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0003237-2014



          DUBOW, JUDGE

         Appellant, 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 License.[1]

         The 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.

         The 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[2] 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.

         Mr. 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.

         The 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, [3] 250 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.

         In the 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 flee.

         Police charged Appellant with the above crimes, [4] 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.[5] Before trial, the court severed the Person Not to Possess Firearm offense from Appellant's other offenses.

         At 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 60-61.

         Officer 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.

         On 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.

         Officer Bevilaqua also testified that police did not test any of the items found in Mr. Riddick's vehicle for fingerprints. Id. at 86-87.

         Kingston 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.

         Detective Palka also concluded that the presence of loaded handguns and a bulletproof vest reflected the inherent dangerousness of drug dealing. Id. at 126.

         In 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 130.[6]

         Timothy 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.

         On January 20, 2016, the jury convicted Appellant of the above charges.[7] 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 restitution ...

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