Com. v. Williams, W. ( 2018 )

J-A08027-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 71 EDA 2017
WILLIE A. WILLIAMS, :
:
Appellee :
Appeal from the Order November 29, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009535-2015
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED JUNE 1, 2018
The Commonwealth of Pennsylvania appeals from the order, entered in
the Court of Common Pleas of Philadelphia County, granting Willie A. Williams’
post-sentence motion in arrest of judgment and vacating his convictions on
two counts of possession of a controlled substance with intent to deliver
(PWID), 35 P.S. § 780-113(a)(30), and one count of criminal conspiracy, 18
Pa.C.S.A. § 903.1 After our review, we affirm.
The facts of this case are as follows:
On August 31, 2015, Police Officer [Dierta] Cuffie and other
members of the Narcotics Field Unit set up a narcotics surveillance
____________________________________________
1 Williams was also convicted of knowing and intelligent possession of a
controlled substance, 35 P.S. § 780-113(a)(16) (ungraded misdemeanor) and
tampering with evidence, 18 Pa.C.S.A. § 4910. The court denied the motion
in arrest of judgment with respect to those convictions.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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at 6742 North 18th Street [in Philadelphia], due to numerous
complaints of drug sales at that address. The house was
registered to Daniel Simons. A confidential informant (“CI”) was
provided with pre-recorded buy money, and knocked on the
door[,] which was opened by Mr. Simons. The CI spoke with Mr.
Simons, who then made a phone call. Thereafter, a Neon
automobile approached, an unknown black male exited the
vehicle, and went inside the property. The CI returned and turned
over to the officers one purple packet of crack cocaine. The Neon
and unknown black male were not stopped or seen [again].
Appellee Mr. Williams was not seen at all during this incident. On
September 1, 2015, the surveillance operation was again made
on that property. The CI went to the house. Simons was outside,
and spoke with the CI, who gave Simons the pre-recorded buy
money. Simons made a phone call, and shortly thereafter, a Buick
automobile appeared and parked in front of the house. Appellee
Williams then exited the house, entered the Buick, exited the
Buick, then re-entered the property, along with Simons and the
CI. The CI returned and turned over crack cocaine. The Buick
was not stopped or seen again. On September 2, 2015, police
again set up the surveillance operation. The CI went to the house,
knocked on the door, and was admitted by Mr. Simons. The CI
returned with two purple packets of crack cocaine. Appellee
Williams again was not present. Later on September 2, 2015,
police executed a search warrant for the property. During the
execution of the warrant, Police Officer Weaver, who was in the
back of the property, observed white Styrofoam particles falling
from the side of the air conditioning unit in the second floor rear
window of the property. Appellee Williams was arrested along
with the other people in the home, but was not found to be in
possession of either drugs or money. In the room where he was
arrested, which is the room where the police officer observed
Styrofoam falling from the window, police recovered one packet
containing 16 purple packets of crack cocaine near a window air
conditioner unit, two clear baggies of powder cocaine on a dresser,
$20 in pre-recorded buy money from under a mattress, $256 in
cash, a yellow probation card, with Williams’ name, and Williams’
ID card, listing his address as 7205 North 21st Street. Simons was
arrested in the middle bedroom, and recovered from him was
$4.00, a door key and a letter listing his address as the house
being searched, 6742 North 18th Street. No cell phones were
recovered.
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Trial Court Opinion, 2/27/17, at 1-3.
Following a bench trial before the Honorable Tracy Brandeis-Roman,
Williams was convicted of two counts of PWID, one count of conspiracy, one
count of knowing and intelligent possession of a controlled substance, and one
count of tampering with evidence. The court sentenced Williams to 11½ to
23 months’ incarceration on the tampering with evidence conviction, with
immediate parole, and one year of probation for each of the remaining four
convictions, to run consecutively.
Williams filed a post-sentence motion claiming that the evidence was
insufficient to sustain his two PWID convictions and his conspiracy conviction.
The court granted Williams’ motion and vacated those convictions. The
Commonwealth filed this timely appeal, raising the following issues for our
review:
1. Was the evidence sufficient to sustain defendant’s
convictions for possessing a controlled substance with intent
to deliver, where defendant was arrested in a room with
numerous packets of crack cocaine and hundreds of dollars
in cash, including pre-recorded buy money?
2. Was the evidence sufficient to sustain defendant’s
conviction for criminal conspiracy, where defendant aided
his conspirator in selling three packets and one chunk of
crack cocaine to a confidential informant?
Appellant’s Brief, at 1.
The standard of review for the trial court as it passes upon a
motion in arrest of judgment, is limited to a determination of the
absence or presence of that quantum of evidence necessary to
establish the elements of the crime. The trial court is required to
view the evidence in the light most favorable to the
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Commonwealth, as verdict winner, and may not alter the verdict
based on a redetermination of credibility or a re-evaluation of the
evidence. Before granting an arrest of judgment, the trial court
must find the evidence supporting the verdict to be so weak and
inconclusive that a jury of reasonable persons would not have
been satisfied as to the accused’s guilt. . . . It [is] not the function
of the trial court, in reviewing post-trial motions, to reweigh the
evidence presented at trial.
Commonwealth v. Bigelow, 611 A.2d 301, 303-04 (Pa. Super. 1992)
(citations omitted). See also Commonwealth v. Marquez, 980 A.2d 145,
148 (Pa. Super. 2009) (en banc). Further, “[t]he Commonwealth’s burden
may be met by wholly circumstantial evidence and any doubt about the
defendant’s guilt is to be resolved by the factfinder unless the evidence is so
weak and inconclusive that, as a matter of law, no probability of fact can be
drawn from the combined circumstances.” Commonwealth v. Rodriguez,
141 A.3d 523, 525 (Pa. Super. 2016) (quoting Commonwealth v. Tarrach,
42 A.3d 342, 345 (Pa. Super. 2012)).
In his motion, Williams claimed the Commonwealth did not prove
beyond a reasonable doubt “that he either possessed the narcotics with intent
to deliver, actually sold or delivered narcotics, or was part of a conspiracy to
sell or deliver narcotics.” Post-Sentence Motion, 11/23/16, at ¶ 6. Williams
argued:
[He] was never seen on the first day of the narcotics surveillance.
He was seen on the second day but he was never seen interacting
with the CI in any direct manner. He was not seen on the third
day prior to the execution of the search warrant. Instead, Mr.
Simons was seen all three days. In fact, Mr. Simons was the only
one seen interacting with the CI. Mr. Simons is seen answering
the door to the home on two occasions and on the third occasion
he is seen already outside and accepts money from the CI. Mr.
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Simons is the one who owns the house [about which] police
received complaints of narcotics sales and those complaints
specifically mention a Daniel Simons. The Commonwealth
likewise failed to present sufficient evidence that [Williams] was
involved in a criminal conspiracy to sell or deliver narcotics.
[Williams] is never seen interacting with either Mr. Simons or the
CI on any of the days.
Id. at ¶ 8. Williams further claimed that the Commonwealth did not argue,
or present expert testimony to establish, that the circumstances of the arrest
or narcotics recovery indicated possession with intent to deliver. Id. at ¶ 7.
Finally, Williams contended that the Commonwealth likewise failed to present
evidence of criminal conspiracy, stating that he was never seen on day one or
day three of the surveillance, and was “never seen interacting with either Mr.
Simons or the CI on any of the days.” Id. at ¶ 9.
The Commonwealth would argue seeing [Williams] on one day
enter the house with the CI and Mr. Simons, his presence in this
house where drugs are sold, his identification with the money and
his arrest near where the drugs were recovered is enough.
However, on cross-examination, this evidence [i]s admitted to be
perhaps incorrect. The Officer could not know who else
might have been in the house on any given date and
admitted [Williams] never directly interacted with the CI
or Mr. Simons. She admitted there were other individuals
in the home, potentially in the same room as [Williams]
during the search, that were not arrested. She admitted
that the identification might not have been with the money.
Given these admissions on cross-examination, the Commonwealth
has not shown that [Williams] was part of a drug selling
conspiracy.
Id. (emphasis added).
The Controlled Substances Act defines PWID as follows:
(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:
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****
(30) Except as authorized by this act, the manufacture, delivery,
or possession with intent to manufacture or deliver, a controlled
substance by a person not registered under this act, or a
practitioner not registered or licensed by the appropriate State
board, or knowingly creating, delivering or possessing with intent
to deliver, a counterfeit controlled substance.
35 P.S. § 780–113(a)(30). A person is guilty of conspiracy with another
person or persons to commit a crime if, with the intent of promoting or
facilitating its commission, he:
(1) agrees with such other person or persons that they or one or
more of them will engage in conduct which constitutes such crime
or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or
commission of such crime or of an attempt or solicitation to
commit such crime.
18 Pa.C.S.A. § 903.
The Commonwealth maintains that the evidence presented at trial
established that Williams “helped his co-conspirator Daniel Simons sell crack
cocaine to a confidential informant.” Appellant’s Brief, at 8. The
Commonwealth also argues that Williams “was arrested in a room containing
numerous packets of crack cocaine and hundreds of dollars in cash, including
$20 of pre-recorded buy money” and therefore the evidence was sufficient to
convict him of PWID and criminal conspiracy. Id.
Even viewed in the light most favorable to the Commonwealth, the
Commonwealth did not prove constructive possession. See Commonwealth
v. Macolino, 469 A.2d 132, 134 (Pa. 1983) (constructive possession is “the
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ability to exercise a conscious dominion over the illegal substance: the power
to control the contraband and the intent to exercise that control.”); see also
Commonwealth v. Davis, 480 A.2d 1035, 1045 (Pa. Super. 1984) (“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.”). “Constructive possession is an inference arising from a set
of facts that possession of the contraband was more likely than not.”
Commonwealth v. Mudrick, 507 A.2d 1212, 1213 (Pa. 1986). Where more
than one person has equal access, the Commonwealth must present evidence
showing either defendant’s participation in the drug-related activity, or
evidence connecting defendant to the specific room or area where the
contraband was kept. Commonwealth v. Bricker, 882 A.2d 1008 (Pa.
Super. 2005). Our review of the record indicates that the Commonwealth
presented neither.
The Commonwealth presented no evidence that Williams engaged in a
drug transaction with the CI, and no evidence that Williams ever interacted
with Simons or the CI at any time during the surveillance or execution of the
search warrant. N.T. Trial, supra at 28. Further, Officer Cuffie acknowledged
that no drugs or money were found in Williams’ possession at the time of
arrest. Id. at 36.
As noted above, Officer Cuffie testified that at the time of the search
“there could have been someone else in the room [with Williams]. There
w[ere] other people in the house.” N.T. Trial, supra at 31. Officer Cuffie
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stated there were a couple of women in the house. Id. at 32. Williams did
not reside in that house with Simons. The only thing connecting Williams to
the room where the drugs and money were found was his identification, which,
on cross-examination, Officer Cuffie acknowledged might not have been with
the money found in the room, but may have been somewhere “in the room.”
Id. at 36. Further, the parties stipulated that there was no paperwork
indicating that Williams was associated with the address under surveillance.
Id. at 27. Finally, Officer Cuffie acknowledged that paraphernalia was found
in the same room where Williams was arrested, supporting the inference that
Williams was a user, and not a seller. Id. at 37. In light of the fact there
were two other individuals present with equal access, and the inconclusive
evidence presented by the Commonwealth, we conclude that the inference of
constructive possession is not appropriate here.
We are satisfied that the court did not engage in a reevaluation of the
evidence or a redetermination of credibility. Bigelow, supra. In fact, at the
hearing on post-sentence motions, the trial court stated the following on the
record: “I thought I heard something that I didn’t hear. When I read the
[notes of testimony], I realized that I thought there was something else that
was said and it wasn’t, so I apologize to both of you.” N.T. Hearing on Post-
Sentence Motion, 11/29/16, at 6-7.
In conclusion, we find that the record, viewed in the light most favorable
to the Commonwealth, reveals that the Commonwealth failed to establish
beyond a reasonable doubt that Williams possessed controlled substances with
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the intent to deliver or that he conspired with Simons to do so. The “web of
circumstantial evidence” is simply too fragmented to support the convictions.
Marquez, supra at 150. We conclude, therefore, that there was simply
insufficient evidence to establish that Williams was guilty beyond a reasonable
doubt of PWID and conspiracy. We affirm the trial court’s order granting
Williams’ post-sentence motion in arrest of judgment.
Order affirmed.
Judge Panella joins this Memorandum.
Judge Strassburger files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/1/18
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