Com. v. Gilmore, O. ( 2021 )

J-A06037-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OMAR JAMAL GILMORE, :
:
Appellant : No. 581 WDA 2020
Appeal from the Judgment of Sentence Entered January 27, 2020
In the Court of Common Pleas of Washington County at
No(s): CP-63-CR-0000392-2018
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: MARCH 30, 2021
Appellant, Omar Jamal Gilmore, appeals from the judgment of sentence
entered in the Washington County Court of Common Pleas following his waiver
trial and convictions for drug offenses.1 On appeal, he challenges the
sufficiency of the evidence establishing his constructive possession of drugs
and contraband. We affirm.
Our review begins with Alexandria Moltz (Moltz), the lessee of a two-
bedroom apartment located at 22 South Main Street, Apartment 2, Houston
Borough, Pennsylvania (the apartment). N.T. Trial, 8/15/19, at 22-23, 33.
Beginning in summer of 2017, Appellant “stay[ed]” with Moltz “off and on[,]”
for about “six months or less.” Id. 26. Although Appellant was “[j]ust an
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1 35 P.S. § 780-113(a)(16), (30), (32).
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acquaintance[,]” the two shared a bedroom. Id. at 34. Appellant was “going
to be there for a short period of time[,]” and thus kept clothes and personal
items at the apartment and “helped around the house[.]” Id. at 28-29, 34.
He would “invite people over” and stay in the apartment while Moltz worked.
Id. at 27, 30. When asked if Appellant was a guest, Moltz testified he was “a
friend[.]” Id. at 34. Appellant was not a party to the apartment lease, did
not pay rent, but would, “from time to time[,]” supply Moltz with heroin. Id.
at 29, 34. Moltz maintained no one else “lived” with her in January of 2018.
Id. at 24.
On January 12, 2018, at approximately 7:00 a.m., law enforcement
executed a search warrant for the apartment. N.T. Trial at 46. At the time of
execution, Appellant and Moltz were alone in the apartment, discovered
together in one of the two bedrooms. Id. at 48. After both were secured,
police searched the entire premises. Id. at 48, 51. On the nightstand in the
occupied bedroom, police found “a brick of heroin,” a can containing three
“baggies” of marijuana, a “small plastic [b]aggie containing an unknown
substance, olive in color,” and Appellant’s Pennsylvania identification card.
Id. at 52, 58, 73. The police found, in the same bedroom, a “bundle of
heroin[,]” a mason jar containing “baggies” of marijuana, and an “owe
sheet[.]” Id. at 57-59, 89-91. Sheriff’s Deputy Ryan McWreath, a member
the Washington County Drug Task Force who assisted in the execution of the
warrant, described the owe sheet as “a white sheet of paper with recording of
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some numbers, 400, 100, 500, 200, 100, 300, 500, 800 and it’s in the name
Scott, Ron, Mikey, Chris and then another name, Mikey[.]” Id. at 57, 74.
Police also discovered “a burgundy jacket hanging on the door” of the
unoccupied bedroom, which had “substantial bricks of heroin” in the left
pocket. Id. at 62-63, 96. In the living room, police found a box of sandwich
bags and two digital scales on the coffee table. Id. at 74, 92-93.
On April 30, 2018, Appellant was charged, inter alia, with possession
with intent to distribute (PWID)-heroin; two counts of possession of a
controlled substance-heroin and marijuana; and one count of possession of
drug paraphernalia.2
The charges proceeded to a one-day waiver trial on August 15, 2019.
Moltz: denied knowledge and ownership of the heroin and marijuana; denied
selling heroin in January of 2018; stated the burgundy jacket was not hers
and she did not know who owned it. N.T. Trial at 27-28, 31-32. The
Commonwealth also presented expert testimony concluding the more than
“seven bricks [of heroin]” found in the apartment were “a much larger”
quantity “than what a person who used these drugs . . . would have in their
possession.” Id. at 113, 115. In addition, the Commonwealth’s expert
testified the owe sheet and digital scales, “in conjunction with the narcotics
found in the same place[,]” indicated “retail sales” of the drugs. Id. at 117-
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2 35 P.S. § 780-113(a)(30), (a)(16), (a)(32), respectively.
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18. Appellant did not testify nor present evidence. He was found guilty of the
above charges.
On January 27, 2020, the trial court imposed the costs of prosecution
and consecutive sentences of: 2 to 4 years’ incarceration for PWID-heroin; 3
to 12 months’ incarceration for possession of marijuana; and 3 to 12 months’
incarceration for possession of drug paraphernalia. Appellant’s sentence for
possession of heroin merged with his sentence at Count 1 for PWID-heroin.
Order, 1/27/20. Appellant’s aggregate sentence was 2½ to 6 years’
incarceration.
On January 31, 2020, Appellant filed a letter, requesting new counsel
for his “direct appeal and any post-sentence motion necessary.” Appellant’s
Letter, 1/31/20, at 1. Appellant claimed his trial counsel was “impossible to
work with[,]” did not communicate with him, failed to follow his objectives,
and “waived rights . . . that [he] did not wish to be waived.” Id. The trial
court granted Appellant’s request and appointed Joseph Horowitz, Esquire, on
February 5, 2020.
Almost two months later, on April 2, 2020, the trial court received a
second letter from Appellant explaining he filed a pro se notice of appeal
because he had not heard from Attorney Horowitz. See Trial Ct. Op. 7/13/20,
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at 5. The trial court treated Appellant’s April 2nd, pro se notice of appeal as
his first petition under the Post Conviction Relief Act (PCRA).3
On April 15, 2020, the trial court appointed present counsel, Corrie
Woods, Esquire, who filed an amended PCRA petition on May 4, 2020.4 On
May 7th, the trial court granted Appellant’s amended PCRA petition and
reinstated his direct appeal rights nunc pro tunc. Order, 5/7/20. Appellant
filed a timely notice of appeal on June 1, 2020.5 The trial court ordered
Appellant to file a concise statement pursuant to Pa.R.A.P. 1925(b), which he
timely filed on June 14th. The trial court filed a responsive opinion on July
13, 2020.
Appellant presents the following issue for our review:
Was the evidence presented at trial insufficient to sustain
[Appellant’s] convictions for possession of various drug-related
contraband where police recovered it from areas in another
person’s apartment to which [Appellant], the other person, and
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3 42 Pa.C.S. §§ 9541-9546.
4 Appellant’s amended PCRA Petition alleged per se ineffective assistance of
counsel by Attorney Horowitz for failing to fulfill Appellant’s wishes to file a
notice of appeal. Appellant’s Amended Petition for Relief Pursuant to the Post
Conviction Relief Act, 5/7/20, at 3-5. Appellant’s prayer for relief simply
requested the “right to file an appeal from his judgment of sentence nunc pro
tunc, or, in the alternative, . . . a hearing on his Amended Petition[.]” Id. at
6. We note Appellant did not request reinstatement of his right to file a post-
sentence motion nunc pro tunc.
5 See Commonwealth. v. Wright, 846 A.2d 730, 734 (Pa. Super. 2004)
(appellant must file notice of appeal within 30 days of the order reinstating
direct appeal rights nunc pro tunc).
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their guests shared equal access and the Commonwealth failed to
present evidence that [Appellant] controlled those areas or was
involved in the subject drug-related activity?
Appellant’s Brief at 5.6
As a preliminary matter, we observe Appellant presents arguments
conflating two claims, the sufficiency and weight of the evidence, each with
its own standard of review. This Court has emphasized the distinction
between a challenge to the sufficiency of the evidence, which contests the
quantity of evidence presented at trial, and a challenge to the weight of the
evidence, which contests the quality of that evidence. See Commonwealth
v. Antidormi, 84 A.3d 736, 756-57 (Pa. Super. 2014). We have
disaggregated Appellant’s arguments challenging the sufficiency of the
evidence from those challenging the weight of the evidence and address them
in turn. We begin our review by addressing Appellant’s sufficiency challenges.
Appellant relies on his self-claimed status as an “intermittent
houseguest” in support of his challenge to the sufficiency of the evidence.
Appellant’s Brief at 15. As an “intermittent houseguest[,]” Appellant contends
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6 Given the length and substance of Appellant’s brief, we note that his 23 page
argument section is not divided into separate sections and does not contain
distinctive headings. See Pa.R.A.P. 2119(a). This Court may quash or dismiss
an appeal if the appellant’s brief fails to conform to the requirements set forth
in the Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P. 2101.
Although we disapprove of Appellant’s disregard of the Rule, and the resulting
lack of clarity in the presentation of his arguments, his failure has not
substantially hampered our review, and thus, we address each of his
arguments in turn.
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he was not in constructive possession of the contraband because he lacked
the necessary joint or exclusive control over the premises, id. at 14, 22-23,
and his presence and proximity to the contraband were insufficient to support
his convictions. Id. at 23, citing Commonwealth v. Keblitis, 456 A.2d 149,
151 (Pa. 1983). In addition, Appellant alleges the trial court erred in
concluding he was sufficiently “connected” to various areas of the apartment,
where Pennsylvania authority “requires control.” Id. at 30. He insists his
relationship with the areas in which contraband was found, and the number
of people with equal access to those areas,7 is “more attenuated” and “far
greater” than those in Commonwealth v. Chenet, 373 A.2d 1107 (Pa.
1977). Id. at 17-19. Appellant also challenges the trial court’s crediting
Moltz’s testimony — that she was unaware of the “heroin in plain view on her
nightstand;” Appellant maintains this testimony was “so plainly unreliable as
to constitute a legal nullity.” Id. at 32-33, citing In re J.B., 189 A.3d 390,
415 n.25, 26 (Pa. 2018).
Our standard of review is guided by fixed principles:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
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7 Appellant avers “Moltz’ apartment was accessed by roughly a half-dozen
guests per week over the course of six months.” Appellant’s Brief at 18-19.
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circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the finder
of fact while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part or none
of the evidence.
Antidormi, 84 A.3d at 756 (citation omitted) (emphases added).
Appellant was convicted of the following drug offenses:
(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:
* * *
(16) Knowingly or intentionally possessing a
controlled. . . substance by a person not registered under
this act, or a practitioner not registered or licensed by the
appropriate State board, unless the substance was obtained
directly from, or pursuant to, a valid prescription order or
order of a practitioner, or except as otherwise authorized by
this act.
* * *
(30) [P]ossession 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[.]
* * *
(32) The use of, or possession with intent to use, drug
paraphernalia for the purpose of planting, propagating,
cultivating, growing, harvesting, manufacturing,
compounding, converting, producing, processing, preparing,
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testing, analyzing, packing, repacking, storing, containing,
concealing, injecting, ingesting, inhaling or otherwise
introducing into the human body a controlled substance in
violation of this act.
35 P.S. § 780-113(a)(16), (30), (32) (emphases added).
In the context of a challenge to the sufficiency of the evidence
establishing possession, a defendant may actually or constructively possess
contraband. Commonwealth v. Ocasio, 619 A.2d 352, 354 (Pa. Super.
1993) (citation omitted). Where a defendant does not have physical
possession of contraband, constructive possession can be established by
showing the defendant had “power of control over and inten[t] to exercise
control” over such contraband. Id. (citation omitted). This “conscious
dominion” may be proven through inference under the totality of the
circumstances. Id. (citation omitted). However, a defendant’s presence,
without more, does not establish the requisite conscious dominion where more
than one person has “equal access” to the contraband. Id. In such cases,
“the Commonwealth must introduce evidence demonstrating either
appellant’s participation in the drug related activity or evidence connecting
appellant to the specific room or areas where the drugs were kept.” Id. at
354-55, citing Commonwealth v. Macolino, 469 A.2d 132, 135-36 (Pa.
1983).
Here, we have the benefit of the trial court’s detailed and thorough
opinion. It concluded the Commonwealth had proven Appellant was in
constructive possession of “heroin, marijuana, two digital scales, plastic
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baggies, and stamp bags.” Trial Ct. Op. at 17. The court found Appellant
“had joint and exclusive control over the apartment[ ]” and the contraband
therein, where “Appellant’s actions demonstrated that he was undoubtedly
living there,” stored personal items in the apartment, remained inside when
Moltz was not present, and invited his own personal guests into the unit. Id.(record citation omitted). Moreover, notwithstanding Moltz’s “equal access”
to the contraband, the court found sufficient evidence, aside from Appellant’s
presence, establishing his “conscious dominion over the contraband.” Id.Specifically, Appellant was one of only two people found sleeping in a bedroom
where his Pennsylvania identification card was located next to heroin and
marijuana. Id. at 18 (record citation omitted). The court also found Appellant
was the owner of the burgundy jacket, hanging/found on the door of the
unoccupied bedroom, as Moltz disclaimed ownership and he was the only other
person storing clothing in the apartment. Id. (record citation omitted).
Appellant’s ownership of the jacket, the trial court concluded, was sufficient
to prove he was connected to the unoccupied bedroom. Id. The court also
found Appellant was engaged in drug related activity as evidenced by his
constructive possession of an “owe sheet” and two digital scales, “which [the
Commonwealth’s expert] opined are commonly used in the distribution of
controlled substances.” Id. at 18-19.
Appellant argues the evidence in this case “is far weaker than” that in
Ocasio, 619 A.2d 352. Appellant’s Brief at 21. In that case, police executed
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a search warrant on a home in Philadelphia, finding five occupants inside the
home at the time of execution. Ocasio, 619 A.2d at 353. Police discovered
substantial amounts of drugs, money, and other paraphernalia throughout the
house. Id. Ocasio returned home while the search was in progress and was
arrested. Id. On his person, Ocasio had $422 cash and a current driver's
license listing the home as his residence. Id. Ocasio was later convicted of
possession of drug paraphernalia and appealed, challenging the sufficiency of
the evidence establishing his constructive possession of the paraphernalia.
Id. This Court reversed, reasoning, although Ocasio “was present at the scene
of the crime and, as a resident, had access to the drugs in the house[,]” the
Commonwealth failed to introduce evidence “demonstrating either [Ocasio’s]
participation in the drug related activity or evidence connecting [Ocasio] to
the specific room or areas where the drugs were kept.” Id. at 356.
Equipped with the foregoing principles and viewing the evidence in a
light most favorable to the Commonwealth, we conclude no relief is due. See
Antidormi, 84 A.3d at 756. We begin with Appellant’s self-claimed status as
an “intermittent houseguest.” See Appellant’s Brief at 15. In the context of
nonexclusive, constructive possession, liability is not determined solely by a
defendant’s relationship to real property. See Ocasio, 619 A.2d 352. Rather,
liability is determined by a defendant’s “power of control” and “inten[t] to
exercise control” over contraband. See id. (insufficient evidence showing
defendant was involved in drug related activity); Commonwealth v.
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Kitchener, 506 A.2d 941, 945 (Pa. Super. 1986) (defendant was in joint
constructive possession of drugs found in a dwelling, where she and co-
defendant were sole residents and drugs were located in places within access
and knowledge of both); Commonwealth v. Keefer, 487 A.2d 915, 918 (Pa.
Super. 1985) (non-lessee defendant, found alone bathing in apartment with
clothes in the bedroom, was in joint constructive possession of drugs with
apartment lessee); Commonwealth v. Davis, 480 A.2d 1035, 1046 (Pa.
Super. 1984) (evidence of defendant’s attempt to dispose of heroin, joint
control over the row house, and possession of large sums of money adequately
established his control and intention to control the drugs); Macolino, 469
A.2d at 135 (defendant was in constructive possession of cocaine and other
paraphernalia found in a closet of the bedroom in which he and wife were
sleeping; “[T]he fact that the drugs were found in the bedroom to be of special
significance, [where] a bedroom is ‘a more private place with limited access
and usually subject to the exclusive control of the owner or lessee of the
premises.’”). Just as mere presence does not establish the requisite
“conscious dominion” where others have equal access to contraband, a
defendant’s relationship to real property, alone, is no measure of their power,
ability, and intent to control contraband. Ocasio, 619 A.2d at 354. An
occupant’s status creates but an “inference” of conscious dominion. Id. For
those reasons, Appellant’s attempt to carve out a categorical “intermittent
houseguest” exception to our constructive possession jurisprudence must fail.
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Next, we decline to conclude the evidence supporting the trial court’s
finding, that Appellant “had joint and exclusive control over the apartment,”
“is so weak and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances.” See Trial Ct. Op. at 17; see
also Antidormi, 84 A.3d at 756. It is uncontroverted that Appellant stored
personal items in the apartment, remained there when Moltz was not present,
and invited his own guests into the unit. See N.T. Trial at 29-30. Moreover,
Moltz testified Appellant was going to be “staying” in the apartment “for a
short period of time.” See id. at 26, 29. Although Moltz had equal access to
the premises, it was sufficient for the court to find Appellant in constructive
possession of the contraband based on the “plethora of evidence which
established Appellant’s participation in drug related activity.” See Trial Ct.
Op. at 18; see also Ocasio, 619 A.2d at 354-55.
It therefore follows that Appellant’s alternative argument — that the trial
court misinterpreted Ocasio, 619 A.2d 352, to require mere “connection” to
a room, rather than control over its contents — is without merit. See
Appellant’s Brief at 23. Additionally, because we find the evidence sufficient
to prove Appellant possessed drugs and contraband, we need not address his
“presence and proximity” argument under Keblitis, 456 A.2d 149. See
Appellant’s Brief at 17-19.
Moreover, Appellant’s reliance on Chenet, 373 A.2d 1107, is misplaced.
There, a search of Chenet’s trailer revealed “a few marijuana seeds on the
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kitchen floor, marijuana cigarette butts [and] a ‘baggie’ containing marijuana
residue in the living room[,] and . . . marijuana in a milk delivery box attached
to the trailer hitch.” Id. at 1108. A roommate also lived in the trailer, and
he and his girlfriend had equal access to these areas. Id. at 1108-09. The
Pennsylvania Supreme Court reversed Chenet’s conviction of possession of a
controlled substance, holding that no reasonable inference could link the
marijuana to Chenet, where no marijuana was found in Chenet’s room nor on
his person. Id. at 1109. Unlike Chenet, the evidence produced at Appellant’s
trial, for the reasons set forth above, does provide a reasonable inference
linking Appellant to the drugs and contraband. See Macolino, 469 A.2d at
136.
Accordingly, we find the instant case analogous to Macolino, 469 A.2d
132, where our Supreme Court reiterated, “Possession of an illegal substance
need not be exclusive; two or more [people] can possess the same drug at
the same time.” Id. at 136. The Court found the evidence sufficient to
establish Macolino, who shared joint and exclusive control of the residence
with his wife, was in constructive possession of cocaine and other
paraphernalia found in a closet of the bedroom in which they were discovered
sleeping. Id. Here, the same is true. For the reasons discussed above, the
evidence was sufficient to prove Appellant “had joint and exclusive control
over the apartment[ ]” and contraband therein. See Trial Ct. Op. at 17.
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Finally, Moltz’s awareness of the “heroin in plain view on [the]
nightstand,” has no bearing on whether Appellant constructively possessed it.
See Appellant’s Brief at 32-33. We remind Appellant, “Possession of an illegal
substance need not be exclusive; two or more [people] can possess the same
drug at the same time.” See Macolino, 469 A.2d at 136.
Next, we turn to Appellant’s arguments challenging the weight of the
evidence. As discussed above, a challenge to the weight of the evidence
contests the quality of evidence introduced at trial. See Antidormi, 84 A.3d
736 (Pa. Super. 2014). Appellant begins by asserting the trial court erred in
finding Appellant lived at the apartment because Moltz had repeatedly denied
Appellant lived there. Appellant’s Brief at 25. As such, he argues the trial
court’s application of Macolino, 469 A.2d 132, to an “intermittent
houseguest” was also in error. Id. at 26-27. Second, he argues the burgundy
jacket could not have properly been attributed to him because Moltz never
testified Appellant was the only other person to store clothing at her
apartment. Id. at 31. Finally, Appellant alleges Moltz’ testimony, that
Appellant had supplied her heroin “in the past,” does not support the inference
that he possessed the heroin seized in the apartment. Id. at 30.
A challenge to the weight of the evidence must be preserved either in a
written or oral motion before sentencing, or in a timely post-sentence motion
thereafter. Pa.R.Crim.P. 607(A)(1)-(3); Antidormi, 84 A.3d at 758 n.19,
citing Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa. Super. 2013).
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Failure to preserve a weight challenge results in waiver of the claim. Griffin,
65 A.3d at 938. Furthermore, a petitioner who is granted reinstatement of
his direct appeal rights nunc pro tunc, is not automatically entitled to a
subsequent order reinstating his right to file a post-sentence motion nunc pro
tunc. Commonwealth v. Fransen, 986 A.2d 154, 158 (Pa. Super. 2009).
If filing a post-sentence motion is necessary to pursue a claim on direct appeal
nunc pro tunc, a defendant is under an affirmative duty to submit a separate
and distinct claim to the PCRA court requesting the right to file a post-sentence
motion nunc pro tunc. Id.In the instant case, Appellant’s challenges to the weight of the evidence
are waived. See Pa.R.Crim.P. 607(A)(1)-(3); see also Griffin, 65 A.3d at
939. To have properly invoked this Court’s jurisdiction, Appellant must have
requested, and been granted, the right to file a post-sentence motion nunc
pro tunc. See Fransen, 986 A.2d at 158. Then, Appellant would needed to
have filed a post-sentence motion nunc pro tunc advancing his challenges to
the weight of the evidence. Id.; see also Griffin, 65 A.3d at 939. Our review
of the certified record does not reveal the presence of a written or oral motion,
nor any post-sentence motion, challenging the weight of the evidence.
Furthermore, Appellant’s amended PCRA petition does not contain a request
to file a post-sentence motion nunc pro tunc, and the PCRA court did not grant
such relief. See Appellant’s Amended Petition for Relief Pursuant to the Post
Conviction Relief Act, 5/7/20, at 3-5. Accordingly, no relief is due on
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Appellant’s challenge to the weight of the evidence. We affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2021
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