Com. v. Smith, R. ( 2019 )


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  • J-S77003-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    RONNIE SMITH                               :
    :
    Appellant               :   No. 3386 EDA 2017
    Appeal from the Judgment of Sentence September 14, 2017
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-000103-2016
    BEFORE:      OTT, J., DUBOW, J., and STRASSBURGER, J.
    MEMORANDUM BY OTT, J.:                                  FILED MARCH 07, 2019
    Ronnie Smith appeals from the judgment of sentence imposed
    September 14, 2017, in the Philadelphia County Court of Common Pleas. The
    trial court sentenced Smith to an aggregate term of six to 12 years’
    imprisonment, and two years’ consecutive probation, following her non-jury
    conviction of, inter alia, possession with intent to deliver controlled substances
    [“PWID”] and criminal use of a communication facility.1        On appeal, Smith
    challenges the sufficiency of the evidence supporting those two convictions.
    For the reasons below, we affirm.
    ____________________________________________
       Retired Senior Judge assigned to the Superior Court.
    1   See 35 P.S. § 780-113(a)(30), and 18 Pa.C.S. § 7512, respectively.
    J-S77003-18
    The facts underlying Smith’s arrest and conviction were aptly
    summarized by the trial court as follows:
    On October 1, 2015, the Philadelphia police received
    information including a phone number [that] led them [to the]
    1500 block of Woodstock Street. On that date, Officer Jason
    Yerges dialed the phone number and listened on speakerphone to
    a conversation between a confidential informant (C.I.) and the
    recipient of the call. Yerges testified that he heard what appeared
    to be a female voice speaking on the receiving end of the call.
    Yerges then gave the C.I. $40 of buy money and directed him to
    conduct a transaction with the recipient of the phone call at 1551
    South Woodstock Street. He observed the C.I. enter the house
    and exit approximately 5 minutes later. The C.I. returned to
    Yerges’s patrol car and handed to him one blue pill stamped with
    "A 215." A seizure analysis indicated that the pill tested positively
    for oxycodone.
    On October 7, 2015 at approximately 7:00 p.m., Officer
    Yerges employed the same C.I. to replicate the previous
    transaction. Yerges testified that he redialed the same phone
    number, and the C.I. arranged a drug buy with the recipient of
    the phone call, Yerges then gave the C.I. $40 in buy money and
    directed him to go to the 1500 block of South Woodstock Street.
    Yerges testified that he witnessed [Smith] exchange items with
    the C.I. at the front door of 1551 South Woodstock Street. The
    C.I. then returned to Yerges and gave him two green pills stamped
    "A 214" immediately after the transaction. A seizure analysis
    indicated that these pills tested positively for oxycodone.
    On October 15, 2015, Officer Yerges and other officers
    returned to the same location with a search warrant for 1551
    South Woodstock Street at approximately 2:00 pm. Yerges set
    up surveillance from his patrol car at the corner of Tasker Street
    and Woodstock Street (approximately 100 feet from the target
    location). Yerges testified that the front door to the house was
    open and he observed [Smith] seated on a chair a few feet within
    the entrance. Approximately fifteen minutes later, he observed a
    female walk down the 1500 block at South Woodstock Street with
    money in her hand and approach the doorway. [Smith] came to
    the doorway (in sight of Yerges) and exchanged items for
    money.16
    __________
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    16 The unidentified female wore a red coat and blue jeans.
    Officer Yerges observed the female exchange money for
    items from [Smith] and then saw the female put her palm
    to her mouth before walking away. He indicated that it was
    not a swallowing motion.
    __________
    On October 16, 2015 at approximately 12:30 p.m., Officer
    Yerges and other agents set up surveillance at the same location.
    Yerges testified that he observed a heavyset black male (Leonard
    Ware) knock on the door to 1551 South Woodstock Street several
    times unanswered. He then observed Ware looking up and down
    the street and answering a couple phone calls. Approximately 15
    minutes later, he observed [Smith] and two male passengers
    arrive in a SUV. [Smith] was carrying a brown handbag when she
    exited the vehicle. [Smith], Ware, and the unidentified men then
    entered the house.
    Shortly thereafter, the police and other agents knocked and
    announced their presence before using force to enter the house.
    [Smith] was secured in the hallway on the second floor as was a
    brown handbag in close proximity to her. Police recovered from
    the brown handbag 6 pill bottles containing various scheduled
    drugs, a small clear glass jar containing purple liquid, a utility bill
    for 1551 South Woodstock Street in [Smith’s] name, a white cell
    phone, and cash.24 Yerges dialed the same number he had used
    during his investigation with the C.I., and the white cell phone
    alerted and displayed his phone number. Police also recovered a
    firearm and other drug paraphernalia from the house, though
    none of these items were ultimately attributed to [Smith].
    __________
    24 Seizure analysis of the scheduled drugs in the pill bottles
    tested positively for oxycodone, Alprazolam, codeine and
    acetaminophen, Dizepam, and a non-controlled prescription
    item.
    Trial Court Opinion, 7/10/2018, at 2-4 (most footnotes and all record citations
    and emphasis omitted).
    Smith was arrested and charged with PWID, possession of controlled
    substances, possession of drug paraphernalia, conspiracy, criminal use of a
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    communication facility, possession of a firearm prohibited, and possessing an
    instrument of crime.2 The case proceeded to a non-jury trial. On December
    16, 2016, the trial court found Smith guilty of PWID, conspiracy, criminal use
    of a communication facility, possession of controlled substances and
    possession of drug paraphernalia.              The court found her not guilty of the
    remaining crimes concerning the firearm. On September 14, 2017, the trial
    court sentenced Smith to a term of six to 12 years’ imprisonment for PWID,
    and a consecutive term of two years’ probation for criminal use of a
    communication facility.       No further penalty was imposed on the remaining
    offenses. Smith filed a timely notice of appeal, pro se, on October 10, 2017.
    New counsel was appointed, and, on February 12, 2018, complied with the
    trial court’s directive to file a concise statement of matters complained of on
    appeal.
    Smith raises two issues on appeal, both challenging the sufficiency of
    the evidence supporting her convictions.             Our standard of review is well-
    established:
    When reviewing challenges to the sufficiency of the evidence, we
    evaluate the record in the light most favorable to the
    Commonwealth as verdict winner, giving the prosecution the
    benefit of all reasonable inferences to be drawn from the evidence.
    “Evidence will be deemed sufficient to support the verdict when it
    establishes each material element of the crime charged and the
    commission thereof by the accused, beyond a reasonable doubt.”
    However, the Commonwealth need not establish guilt to a
    ____________________________________________
    2See 35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32), and 18 Pa.C.S. §§
    903, 7512(a), 6105(a)(1), and 907(a), respectively.
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    mathematical certainty, and it may sustain its burden by means
    of wholly circumstantial evidence. In addition, this Court may not
    substitute its judgment for that of the factfinder, and where the
    record contains support for the convictions, they may not be
    disturbed. Lastly, we note that the finder of fact is free to believe
    some, all, or none of the evidence presented.
    Commonwealth v. Smith, 
    146 A.3d 257
    , 261–262 (Pa. Super. 2016)
    (internal citations omitted).
    Smith first argues the evidence was insufficient to support her conviction
    of PWID.   “In order to convict an accused of PWID under 35 P.S. § 780–
    113(a)(30), the Commonwealth must prove that [s]he ‘both possessed the
    controlled substance and had an intent to deliver that substance.’”
    Commonwealth v. Koch, 
    39 A.3d 996
    , 1001 (Pa. Super. 2011) (quotation
    omitted), aff’d by evenly divided court, 
    106 A.3d 705
     (Pa. 2014).
    When controlled substances are not found on the defendant’s person,
    the Commonwealth must prove constructive possession of the drugs. See
    Commonwealth v. Walker, 
    874 A.2d 667
    , 677 (Pa. Super. 2005).
    “Constructive possession is an inference arising from a set of facts that
    possession of the contraband was more likely than not.” Smith, supra, 146
    A.3d at 263 (quotation omitted). It has been defined as “conscious dominion,”
    that is “the power to control the contraband and the intent to exercise that
    control,” and it “may be established by the totality of the circumstances.”
    Commonwealth v. Hopkins, 
    67 A.3d 817
    , 820 (Pa. Super. 2013) (quotation
    omitted), appeal denied, 
    78 A.3d 1090
     (Pa. 2013). Moreover, it is possible
    for two or more people to have joint constructive possession of the same
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    contraband.     Commonwealth v. Kinnard, 
    95 A.3d 279
    , 292 (Pa. Super.
    2014).
    Similarly, the fact finder should consider all the facts and circumstances
    surrounding the defendant’s possession of contraband to determine if she
    possessed it with the intent to deliver. See Commonwealth v. Lee, 
    956 A.2d 1024
    , 1028 (Pa. Super. 2008) (citation omitted), appeal denied, 
    964 A.2d 894
     (Pa. 2009). Relevant factors include: “the manner in which the
    controlled substance was packaged, the behavior of the defendant, the
    presence of drug paraphernalia, and large sums of cash[.]” Koch, 
    supra,
     
    39 A.3d at 1001
    .
    In the present case, Smith insists she was merely present in the home,
    with five other people, when the police executed the search warrant. See
    Smith’s Brief at 15. As for the pill bottles recovered from the brown purse,
    Smith emphasizes that three of the bottles bore her name, one bore the name
    of her son, and the other bottles “likely belonged to any of the other five
    people in the home” as the bag was “equally accessible” to them. Id. at 14,
    15.   Absent a narcotics expert, she contends the Commonwealth failed to
    establish she possessed the drugs with the intent to deliver. See id. at 16.
    With regard to the cell phone, which had been used to coordinate the prior
    controlled buys, Smith notes the Commonwealth did not establish who owned
    the phone, and the “female voice” heard during the controlled buy could have
    been any of the three other women present during the execution of the
    warrant. Id. at 15.
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    The trial court concluded the Commonwealth proved, beyond a
    reasonable doubt, that Smith possessed the pills with the intent to deliver
    them. See Trial Court Opinion, 7/10/2018, at 6-7. We agree.
    First, the court noted the police recovered six pill bottles from the purse
    she had been seen carrying into the residence. See id. at 6. While several
    of the bottles had labels with both her and her son’s name, two of the bottles
    contained a label that had been scratched off.         Inside those bottles were
    controlled substances, for which Smith did not have a prescription. See id.
    at 6.     Second, the court noted the Commonwealth used a confidential
    informant (“CI”) to purchase oxycodone from the residence on two separate
    occasions. The first time, on October 1, 2015, the officer heard a female voice
    on the call the CI placed to the supplier. See id. at 7.3 During the second
    controlled buy, conducted less than a week later, the officer observed Smith
    meet the CI at the door, and exchange items for money. See id. Accordingly,
    the trial court found the evidence was sufficient to convict Smith of PWID.
    Our review of the record reveals ample support for the trial court’s
    findings. The fact that other persons were present in the residence at the
    time of the search is irrelevant. Officer Yerges identified a female voice on
    the phone during the first controlled buy, and saw Smith, herself, exchange
    items for money during the second controlled buy. See N.T., 12/9/2016, at
    ____________________________________________
    3 The court also stated that Officer Yerges saw Smith answer the door during
    the October 1, 2015, controlled buy. However, that statement is not
    supported by the record. See N.T., 12/9/2016, at 23-25.
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    23, 32. He also witnessed Smith conduct another probable drug transaction
    the day before the search.     See id. at 40.    Two of the pill bottles were
    recovered from a brown purse that he had seen Smith carrying shortly before
    the search. See id. at 28-29, 45-46. There were also items with her name
    in the purse, as well as the cell phone with the number used to set up the
    controlled buys.    See id. at 55, 59-60.         Under the totality of the
    circumstances, we agree with the trial court’s determination that the evidence
    was more than sufficient to support Smith’s conviction of PWID.
    Next, Smith argues the evidence was insufficient to sustain her
    conviction of criminal use of a communication facility. Section 7512 of the
    Crimes Code provides, in pertinent part, “[a] person commits a felony of the
    third degree if that person uses a communication facility to commit, cause or
    facilitate the commission or the attempt thereof of any crime which constitutes
    a felony[.]” 18 Pa.C.S. § 7512(a).
    Here, Smith insists “the only evidence” of this offense was the CI’s drug-
    related conversation with a “female voice.”       Smith’s Brief at 16.      She
    emphasizes the Commonwealth presented no evidence “as to whom the phone
    is registered,” and that, it was “equally accessible by any of the other five
    people in the home.” Id. at 16-17.
    The trial court addressed this claim as follows:
    Officer Jason Yerges received a phone number and other
    information on October 1, 2015 that led him to the 1500 block of
    Woodstock Street. Yerges dialed the phone number and listened
    on the speakerphone to a conversation between the C.I. and the
    recipient of the call. Yerges heard what appeared to be a female’s
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    voice on the receiving end of the call. Yerges then gave the C.I.
    $40 of buy money and directed him[ or her] to conduct a
    transaction with the recipient of the phone call at 1551 South
    Woodstock Street. [H]e observed the C.I. enter the house and
    exit approximately 5 minutes later.       The C.I. subsequently
    returned to Yerges and handed to him one blue pill stamped “A
    215.” The seizure analysis reflected that the pill tested positively
    for oxycodone.
    On October 7, 2015, Yerges used the same C.I. to make a
    second drug purchase. Yerges redialed the same phone number
    and had the C.I. arrange a drug buy with the person who
    answered the call. Yerges also gave the C.I. $40 in buy money.
    Yerges next witnessed [Smith] exchange items with the C.I. at
    the front door of 1551 South Woodstock Street. The C.I.
    immediately gave Yerges two green pills stamped “A 214” after
    the transaction. The seizure analysis reflected that the pills tested
    positively for oxycodone.
    On October 16, 2015, police executed a search warrant at
    1551 South Woodstock Street.          However, approximately 15
    minutes before the warrant was executed, Yerges observed
    [Smith] and 2 other men arrive at the location in a vehicle. Yerges
    observed [Smith] exit the vehicle with a brown handbag before all
    of the passengers entered the house. The police then executed
    the warrant, arrested [Smith], and recovered the same brown
    handbag on the second floor in close proximity to [her]. When
    police searched the brown handbag, they recovered 6 pill bottles
    containing various scheduled drugs, a clear bottle containing a
    purple liquid, a utility bill for 1551 South Woodstock Street in
    [Smith’s] name, and a white cell phone. Yerges dialed the same
    number that he had used with the C.I. during his investigation,
    and the white cell phone began ringing in his presence.
    Given the evidence, the Commonwealth established beyond
    a reasonable doubt that [Smith] knowingly and intentionally used
    the white cell phone to communicate with the C.I. before the
    October 1, 2015 and October 7, 2015 transactions. Furthermore,
    [Smith] knowingly facilitated the illegal drug transactions with the
    C.I. [Her] culpability is further evidenced by the blue and green
    pills the C.I. returned to Yerges on each date after interacting with
    [Smith].
    -9-
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    Trial Court Opinion, 7/10/2018, at 8-10 (footnotes, record citations and
    emphasis omitted).
    We find no basis to disagree.     The circumstantial evidence clearly
    supports Smith’s conviction of violating Section 7512 of Title 18. The CI used
    the same phone number to contact his or her supplier before each controlled
    buy. During the first transaction, the officer heard a female voice on the other
    end. During the second transaction, the officer witnessed Smith answer the
    door, and exchange items for money. When a cell phone was recovered from
    Smith’s purse during the search, the officer called the number supplied by the
    CI.   Immediately, the newly discovered cell phone rang and displayed the
    officer’s number.    Under these circumstances, we agree the evidence was
    sufficient to support Smith’s conviction of criminal use of a communication
    facility.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/7/19
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Document Info

Docket Number: 3386 EDA 2017

Filed Date: 3/7/2019

Precedential Status: Precedential

Modified Date: 3/7/2019