J-S77003-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RONNIE SMITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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.
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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].

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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 wellestablished:

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 

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2 See 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 drugrelated 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].
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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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