Com. v. Kirkland

831 A.2d 607

COMMONWEALTH of Pennsylvania, Appellee, v. Nathan KIRKLAND, Appellant.

Superior Court of Pennsylvania.

Submitted June 2, 2003.

Filed July 29, 2003.

Reargument Denied September 29, 2003.

J. Matthew Wolfe, Philadelphia, for appellant.

Catherine L. Marshall, Asst. Dist. Atty., Philadelphia, for Com., appellee.

BEFORE: MUSMANNO, BOWES and CAVANAUGH, JJ.

OPINION BY BOWES, J.:

¶ 1 Nathan Kirkland appeals from the judgment of sentence of two to four years imprisonment that was imposed after he was convicted at a nonjury trial of simple assault, possession of a controlled substance, and possession with intent to deliver a controlled substance. For the following reasons, we reverse Appellant's conviction on the charge of possession with intent to deliver a controlled substance and remand for re-sentencing.

¶ 2 The relevant facts are as follows. At approximately 9:00 p.m. on April 29, 1999, Philadelphia Police Officer Jack Kenner and his partner, Officer Richard Lynch, drove to Appellant's residence at 3136 North Marston Street to investigate a report of an individual brandishing a firearm. Appellant's wife, Monique Byrd, met the officers outside the residence and informed them that Appellant, who was on the porch, had assaulted her and threatened her brother with a handgun. The officers examined Ms. Byrd and observed scratches and bruises on her face and arms. Ms. Byrd indicated that she wanted to press charges against Appellant, and Officer Kenner instructed Officer Lynch to place Appellant under arrest. A pat-down search of Appellant's person yielded a set of car keys, a pager, a pocket knife, and a screwdriver. Ms. Byrd was adamant that Appellant possessed a handgun. When none was found on his person, she indicated that it might be inside the vehicle Appellant had been driving, which she identified for the officers.

¶ 3 As he was being placed in the police car, Appellant asked Officer Lynch to give the car keys found on his person to a man named Tony who was standing nearby. Officer Lynch initially complied with Appellant's request, but then retrieved the keys, walked over to the vehicle Appellant had been driving, and peered through the front window using a flashlight. When he scanned the vehicle's interior, Officer Lynch observed a dinner plate resting on the back seat which contained "an off-white chunky substance" that was later determined to be 6.876 grams of crack cocaine, a razor blade with cocaine residue, and several unused ziplock packets in a brown paper bag. N.T. Preliminary Hearing, 8/27/99, at 34. Believing the off-white substance to be crack cocaine, Officer Lynch and his partner seized the plate and its contents. When Officer Lynch subsequently returned to the police car, Appellant asked him what he had found inside the vehicle, to which Officer Lynch replied, "You know what we found." N.T. Trial, 9/20/00, at 16. At that point, Appellant stated, "Ya'll found narcotics." Id.

¶ 4 Based on this evidence, Appellant was convicted of the enumerated offenses, and on January 29, 2001, the court imposed a sentence of two to four years imprisonment followed by five years probation. No post-sentence motions were filed, and no direct appeal was taken. Thereafter, Appellant filed a timely PCRA petition seeking restoration of his appellate rights. The trial court reinstated Appellant's appellate rights, and this appeal followed.

¶ 5 The sole issue presented on appeal is whether the verdict was "against the weight of the evidence as to ... Appellant's constructive possession of the controlled substances or his intent to deliver them." Appellant's brief at 7. Initially, we observe that Appellant's challenge actually relates to the sufficiency of the evidence supporting his convictions for possession of a controlled substance and possession with intent to deliver a controlled substance. Indeed, in its Pa.R.A.P. 1925(a) opinion, the trial court utilized the standard of review for sufficiency determinations and concluded that the Commonwealth presented sufficient evidence to sustain Appellant's narcotics convictions. Like the trial court, we will address the issues raised herein in terms of the sufficiency of the evidence. Cf. Commonwealth v. Bishop, 742 A.2d 178 (Pa.Super.1999) (Superior Court addressed weight and sufficiency issues where appellant's weight-of-the-evidence claims implicated both types of issues).

¶ 6 When considering a challenge to the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to establish every element of the offense beyond a reasonable doubt. Commonwealth v. Krouse, 799 A.2d 835 (Pa.Super.2002). Any question of doubt is for the trier of fact, 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. Foreman, 797 A.2d 1005 (Pa.Super.2002).

¶ 7 Appellant first contends that the Commonwealth failed to prove beyond a reasonable doubt that Appellant constructively possessed the crack cocaine found in the vehicle that he had been driving prior to the altercation that led to his arrest. We disagree.

¶ 8 Since the police did not find any narcotics on Appellant's person, the Commonwealth was required to prove that Appellant constructively possessed the crack cocaine found in the vehicle. See Commonwealth v. Davis, 743 A.2d 946 (Pa.Super.1999). Constructive possession is the ability to exercise conscious control or dominion over the illegal substance and the intent to exercise that control. Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983). The intent to exercise conscious dominion can be inferred from the totality of the circumstances. Id.; see also Commonwealth v. Aviles, 419 Pa.Super. 345, 615 A.2d 398 (1992).

¶ 9 In the instant case, Appellant contends that the Commonwealth failed to prove constructive possession because: 1) Appellant did not own the vehicle in which the cocaine was found; 2) Appellant was "never placed" in the vehicle; 3) the cocaine was located on the back seat of the vehicle rather than the front seat; 4) the vehicle's front windows were down and the vehicle was unlocked. Appellant's brief at 10-11.

¶ 10 We reject Appellant's argument that the evidence was insufficient to establish constructive possession. The record reveals that Ms. Byrd told the arresting officers that Appellant drove the vehicle in question to their residence prior to the assault, and Appellant possessed the keys to the vehicle. The cocaine was situated on a plate lying in plain view on the back seat of the vehicle, and when Officer Lynch returned to his patrol car, Appellant stated, "Ya'll found narcotics." Considering the totality of the circumstances, we find that the Commonwealth proffered ample evidence to support the inference that Appellant constructively possessed the cocaine.

¶ 11 Lastly, Appellant asserts that the evidence adduced at trial was insufficient to prove possession of a controlled substance with intent to deliver. In leveling this claim, Appellant argues: 1) no one testified that Appellant was a drug dealer; 2) no cash was found on Appellant or in the vehicle where the cocaine were found; 3) no scales or dilutants commonly added to cocaine before it is sold were found inside the vehicle; and 4) the Commonwealth failed to present expert testimony establishing that the cocaine was intended for sale rather than personal use. For reasons discussed below, we find that the Commonwealth failed to prove beyond a reasonable doubt that Appellant possessed the cocaine with the intent to deliver it. Accordingly, we reverse Appellant's conviction for that offense.

¶ 12 To establish the offense of possession of a controlled substance with intent to deliver, the Commonwealth must prove beyond a reasonable doubt that the defendant possessed a controlled substance with the intent to deliver it. Commonwealth v. Conaway, 791 A.2d 359 (Pa.Super.2002); Commonwealth v. Aguado, 760 A.2d 1181 (Pa.Super.2000). The trier of fact may infer that the defendant intended to deliver a controlled substance from an examination of the facts and circumstances surrounding the case. Conaway, supra. 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.

¶ 13 In the case at bar, the Commonwealth established that Appellant constructively...