Com. v. Kilber, S. ( 2021 )

J-A23014-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAHEED KILBER :
:
Appellant : No. 916 EDA 2019
Appeal from the Judgment of Sentence Entered January 18, 2019,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0004869-2018.
BEFORE: KUNSELMAN, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: FEBRUARY 22, 2021
Shaheed Kilber appeals from the judgment of sentence imposed
following his convictions for possession, possession with intent to deliver a
controlled substance (“PWID”), and possession of drug paraphernalia.1 Upon
review, we affirm.
The pertinent facts are as follows. On June 5, 2018, the narcotics field
unit of the Philadelphia Police Department initiated an investigation at 2023
N. Stillman Street, and set up a controlled buy at the address. The
surveillance officer saw Kilber come out of the house, close the door, and lock
it with a key. Sometime thereafter, the CI, with his buy money, approached
Kilber. The two briefly talked and then went into the house. Shortly
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 35 Pa.C.S. § § 780-113(a)(16), 780-113(a)(30), and 780-113(a)(32).
J-A23014-20
thereafter, they came out and the CI left. The CI turned over two pink packets
of cocaine to the police.
A little later, the surveillance officer observed Kilber come to the door
and check the area. The officer saw another individual, with cash in hand,
approach Kilber at the door and talk with him. They went inside briefly. When
the individual came out, the officer saw something in his hand, which he put
in his pocket. Kilber came out of the house, locked the door with a key, and
left.
The trial court further explained:
On June 13, the investigation continued, where at the same
address the police initiated another controlled buy. This time,
[Kilber] was observed speaking to an unidentified male who went
into the property. When he came out, this individual accepted
money from the informant and exchanged small objects. [Kilber]
was speaking to the informant before the other male went into the
property and while the other male went into the property. The
informant turned over two green tinted packets of crack cocaine.
On June 14, the investigation resumed. [Kilber] was observed
outside of 2023 N. Stillman Street and was arrested. The police
executed a search warrant on that address, recovering $560 in
currency, a knotted bag of marijuana, 16 pink tinted packets of
crack cocaine inside of a boot, 29 green tinted packets of crack
cocaine, 4 Oxycodone pills, new and unused packaging consistent
with packaging controlled substances, a loaded .38 special
handgun in a couch cushion, a loaded 9 mm handgun on a
different side of the couch, a scale on a table, and a key which
locked and unlocked the front door of that address, all found in a
common area living room.
Trial Court Opinion, 1/29/20, at 2-3.
Prior to trial, Kilber filed a motion to suppress the physical evidence
obtained pursuant to the search warrant. At the hearing, Kilber specifically
-2-
J-A23014-20
argued that the search warrant was invalid because it did not indicate the
expiration date of the issuing authority’s commission. The trial court denied
this motion.
After a bench trial, the court found Kilber guilty of possession, PWID,
and possession of drug paraphernalia.2 The court sentenced Kilber to 21 to
60 months of incarceration for his PWID conviction and no further penalty for
his others convictions.
On appeal, Kilber raises the following two issues:
1. Whether the [trial] court erred in denying [Kilber's] Motion to
Suppress based upon [Kilber’s] argument that the four corners of
that search and seizure warrant were violative of the 4th
Amendment to the United States Constitution where the license
or commission of the judicial officer who approved that warrant
with affidavit number 210802 had expired or no proof was
presented that the aforesaid commission was still valid.
2. Whether the evidence presented by the Commonwealth was
sufficient to convict [Kilber] of the crimes that he was found to be
guilty of, especially whether the Commonwealth proved beyond a
reasonable doubt that [Kilber] actually participated in the drug
transactions that were alleged to have taken place on June 5,
2018 and June 13, 2018, or whether [Kilber] even lived at or was
present at 2023 N. Stillman Street, Philadelphia, Pennsylvania
when that location was searched on or about June 14, 2018.
Kilber’s Brief at 4.
In his first issue, Kilber claims that the trial court erred in denying his
motion to suppress evidence of the drugs and paraphernalia found at Stillman
Street pursuant to the search warrant. Kilber argues that the search warrant
____________________________________________
2 Although Kilber was charged with various firearm offenses, the trial court
found him not guilty of those charges.
-3-
J-A23014-20
was invalid because it did not adequately identify the issuing authority who
executed it and included only a “vague, non-descript, unsigned reference to
[an] official.” Kilber’s Brief at 13. Additionally, Kilber briefly mentions that
the issuing authority’s commission had expired. Id. Upon review, we
conclude that Kilber has waived both of these arguments.
First, we observe, as the Commonwealth argues, that Kilber did not raise
before the trial court the argument regarding the identity of the issuing
authority. Kilber’s written suppression motion was not specific. At the
hearing, he specifically argued that the warrant was invalid because it lacked
the expiration date of the issuing authority’s term, and consequently one could
not determine whether the issuing authority was authorized to issue it. This
was the Kilber’s only argument below; he never argued that he could not
determine the identity of the issuing authority. Kilber asserts this argument
for the first time on appeal. His failure to raise it with the trial court precludes
our review. Issues not raised in the trial court are waived and cannot be
raised for the first time on appeal. See Pa.R.A.P. 302(a). Additionally, Kilber
did not raise this issue in his 1925(b) statement. Instead, Kilber only raised
an issue regarding the expiration date of the commission. Issues not included
in a 1925(b) are also waived. See Pa.R.A.P. 1925(b)(4).
Moreover, Kilber did not develop the expiration date argument in his
brief on appeal. Instead, he only argued that the warrant was invalid because
the identity of the issuing authority was indeterminable. At the end of the
argument, in passing, he mentioned that the warrant was invalid because the
-4-
J-A23014-20
issuing authority’s commission had expired. It is well settled that the failure
to present argument in a brief constitutes waiver of the claim on appeal. See,
e.g., Commonwealth v. Sneddon, 738 A.2d 1026, 1028–1029 (Pa. Super.
1999). “When issues are not properly raised and developed in briefs, when
the briefs are wholly inadequate to present specific issues for review, a court
will not consider the merits thereof.” Commonwealth v. Drew, 510 A.2d
1244, 1245 (Pa. Super. 1986). We therefore conclude that Kilber has waived
his first issue.
In his second issue, Kilber challenges the sufficiency of the evidence to
sustain his convictions for PWID. In particular, he claims that the evidence
was insufficient to show that he engaged in the drug transactions. According
to Kilber, the evidence merely showed that he was present at the property.
Id. at 9, 16-17.
In reviewing a claim based upon the sufficiency of the evidence, this
Court:
must determine whether the evidence admitted at trial, as well as
all reasonable inferences drawn therefrom when viewed in the
light most favorable to the verdict winner, are sufficient to support
all elements of the offense. Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations
omitted). “Because evidentiary sufficiency is a question of law, our standard
-5-
J-A23014-20
of review is de novo and our scope of review is plenary.” Commonwealth v.
Diamond, 83 A.3d 119, 126 (Pa. 2013).
To sustain a conviction for PWID, the Commonwealth must prove: 1)
the possession of the controlled substance; and 2) the intent to deliver the
controlled substance. See, e.g., Commonwealth v. Lee, 956 A.2d 1024,
1028 (Pa. Super. 2008); see also 35 P.S. 780-113(a)(30). “In determining
whether there is sufficient evidence to support a PWID conviction, all facts and
circumstances surrounding the possession are relevant, and the
Commonwealth may establish the essential elements of the crime wholly by
circumstantial evidence.” Commonwealth v. Bricker, 882 A.2d 1008, 1015
(Pa. Super. 2005).
Possession of a controlled substance can be found by “proving actual
possession, constructive possession, or joint constructive possession.”
Commonwealth v. Parrish, 191 A.3d 31, 26 (Pa. Super. 2018), appeal
denied, 202 A.3d 42 (Pa. 2019) (citation omitted). Where contraband is not
found on a defendant's person, “the Commonwealth is required to establish
that the defendant had constructive possession of the seized items to support
his convictions.” See Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.
Super. 2012). With respect to constructive possession, this Court has noted:
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
-6-
J-A23014-20
application, we have held that constructive possession may be
established by the totality of the circumstances.
Id. “Individually, the circumstances may not be decisive; but, in combination,
they may justify an inference that the accused had both the power to control
and the intent to exercise that control, which is required to prove constructive
possession.” Commonwealth v. Carter, 450 A.2d 142, 147 (Pa. Super.
1982).
The intent to deliver can be inferred from the surrounding facts and
circumstances. Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa. Super.
2003), appeal denied, 847 A.2d 1280 (2004). “Factors to consider in
determining whether the drugs were possessed with the intent to deliver
include the particular method of packaging, the form of the drug, and the
behavior of the defendant.” Id.Here, the surveillance team observed Kilber at the Stillman Street
property on several occasions, where they later found drugs, cash, and drug
paraphernalia. Although a defendant’s mere presence at the scene, standing
alone, is insufficient to prove guilt, the factfinder does not have to ignore a
defendant’s presence. Commonwealth v. Vargas, 108 A.3d 858, 869 (Pa.
Super. 2014). Indeed, presence at a scene where drugs are found is a
material and probative factor which the factfinder may consider. See id.Notwithstanding this, the evidence in this case established more.
On one occasion, the surveillance officer observed a confidential
informant go to the Stillman Street property and talk with Kilber. Although
-7-
J-A23014-20
Kilber and the CI went in the house, and the officer could not see them, the
CI returned with two pink tinted packets of cocaine, like those found during
the search. On that same occasion, the officer saw another individual with
cash in hand approach Kilber. After talking, they went inside; the individual
came out with an object in his hand which he put in his pocket. Before this
transaction, the officer noticed Kilber survey the neighborhood.
On another occasion, Kilber facilitated a purchase between another man,
later identified as his brother, and a CI. The CI returned with tinted green
packets of cocaine like those found during the search.
The evidence also showed that Kilber secured the property with a key,
which was found during the search, when he left. From this evidence, the
factfinder could infer that Kilber exercised control over both the premises and
its contents, including the drugs and paraphernalia. Control of the premises,
like an owner or lessee, is indicative of possession. See Commonwealth. v.
Samuels, 340 A.2d 880, 886 (Pa. Super. 1975). Additionally, this evidence
demonstrated that Kilber sought to protect the property and its contents by
locking the door when he left. Such behavior is indicative of possession. See
Commonwealth v. Sweitzer, 177 A.3d 253, 259 (Pa. Super. 2017).
Thus, viewing the totality of these circumstances, the evidence was
sufficient for the trial court to find that Kilber had constructive possession of
the drugs. Further, this evidence was sufficient to establish that Kilber
possessed the drugs with the intent to deliver. Kilber was observed engaging
in transactions in exchange for money. Additionally, he had individually
-8-
J-A23014-20
packaged drugs, drug paraphernalia, cash, and weapons consistent with drug
dealing, at the property he controlled.
Based upon our review of the record, and viewing the evidence in the
light most favorable to the Commonwealth as verdict winner, we conclude that
there was sufficient evidence to sustain Kilber’s convictions. His second issue
merits no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/21
-9-
J-A23014-20
- 10 -