J-S47034-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

* Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

v.

TERRELL DEVON FLOYD,

 Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 116 WDA 2018

Appeal from the Judgment of Sentence August 1, 2017

In the Court of Common Pleas of Armstrong County 

Criminal Division at No(s): CP-03-CR-0000558-2016

BEFORE: OLSON, MCLAUGHLIN, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 06, 2018

Terrell Devon Floyd (Appellant) appeals from the judgment of sentence 

of 30 to 60 months of incarceration imposed following his convictions for 

possession of a controlled substance, possession with intent to deliver (PWID) 

a controlled substance, and possession of drug paraphernalia. We affirm.

The trial court summarized the relevant factual history of this matter as 

follows.

On June 27, 2016, Detective Frank Pitzer was conducting 

surveillance of Staley’s Motel in Kittanning, Armstrong County, 

Pennsylvania. At the time, Detective Pitzer was the Chief 

Armstrong County Detective and a regional coordinator of the 

Armstrong County Narcotics Enforcement Team (“ARMNET”). 

Detective Pitzer had conducted surveillance of Staley’s Motel on 

many prior occasions and knew it to be a location of frequent drug 

activity. That day, he received information that drug activity was 

again occurring at the motel, this time in room “8” specifically. 

Detective Pitzer set up his surveillance in a marked police vehicle 

in the parking lot of a convenience store located across the 

highway. From his vantage point, he could see clearly the exterior 

doorways of the motel rooms, including that of room 8. All of the 
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rooms of the motel are ground-level. The doorways open to a 

sidewalk and the motel’s gravel parking lot. Each room also has 

a rear exterior window.

Between 10:00 a.m. and 11:00 a.m., Detective Pitzer 

observed a white car pull into the motel driveway and park directly 

in front of room 8. He then observed [Appellant] and a female, 

Gabrielle Simms, come out of room 8 and approach the vehicle. 

The door to room 8 was open when the vehicle arrived. Detective 

Pitzer recognized [Appellant] and Simms, having had prior 

experiences with both. [Appellant] stood at the driver’s window 

of the vehicle and Simms at the passenger window. A 

conversation ensued during which both [Appellant] and Simms 

leaned into the vehicle. The female driver made movements 

during the conversation, but Detective Pitzer did not observe 

exactly what was going on inside. Given his training in drug 

investigations and his prior experience with Staley’s Motel in 

particular, Detective Pitzer suspected that drug activity was afoot. 

After approximately 5 minutes, the white vehicle left, and 

[Appellant] and Simms returned to room 8. 

Detective Pitzer radioed Sheriff William Rupert and Deputy 

Sheriff Jason Hufhand, both of whom are ARMNET detectives and 

were in the area for backup, to advise that he was going to 

conduct an investigatory stop of the white car. Detective Pitzer 

followed the white car and conducted a traffic stop not far from 

Staley’s along State Route 66. Sheriff Rupert and Deputy 

Huf[h]and soon arrived to assist. Detective Pitzer first spoke with 

the female driver of the vehicle. He then spoke with the male 

passenger who exited the vehicle to speak with the officers. 

Detective Pitzer searched the male passenger and found no drugs 

or contraband. The male passenger then advised Detective Pitzer 

that there were two black males in room 8 with drugs. He 

indicated that one went by the nickname of “Yikes” and the other 

by “J.”6 Detective Pitzer knew from his prior experience that 

[Appellant’s] nickname was “Yikes.” Detective Pitzer requested 

consent to search the vehicle from the female driver, who 

declined. The officers then ended the stop and drove back to 

Staley’s. 

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 Detective Pitzer knew that there were several outstanding 

drug-related felony arrest warrants for an individual known 
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as “J.” The officers were attempting to find “J” on the day 

they observed [Appellant] at Staley’s. The male 

passenger’s description of the second black man in room 8 

matched the description of the individual with the 

outstanding warrants.

When the officers returned and pulled into the motel parking 

lot, the door to room 8 again was open. Detective Pitzer observed 

an individual look out the door and then shut it as the officers 

approached. Having had prior experience with drug-related 

apprehensions at Staley’s, Detective Pitzer asked Deputy Hufhand 

to go around the back of the motel to watch the bathroom window. 

Detective Pitzer and Sheriff Rupert then approached the door to 

room 8. At that point, Deputy Hufhand radioed and advised that 

someone in the bedroom was going to the bathroom. Detective 

Pitzer knocked on the door and it opened. Deputy Huf[h]and 

radioed again to advise that a black individual with tattoos on his

arm had dropped a green Crown Royal[] bag out of the bathroom 

window and was going back into the bedroom. This individual 

would later be identified as John Weathersby.

When the front door opened, Detective Pitzer observed the 

inside of room 8, which was very small. He immediately saw 

[Appellant] standing between the two beds in the room, which 

were approximately two feet apart. Weathersby was walking out 

of the bathroom and Simms was lying on the bed behind 

[Appellant]. Detective Pitzer also immediately noticed a digital 

scale sitting on the shelf of the headboard of one of the beds, 

located within an arm’s reach of [Appellant]. The cover had been 

removed and a white powdery residue, later identified as Fentanyl, 

was on top of the scale. Detective Pitzer also observed the corner 

of a plastic baggie sticking out from between the mattress and 

box springs of the bed on which Simms was lying. The contents 

of that bag [were] later identified to be cocaine. Detective Pitzer 

recognized that Weathersby was not the “J” individual for whom 

the officers had been looking.

Detective Huf[h]and then came around to the front of the 

building with the Crown Royal[] bag to find seven small baggies 

of cocaine, a rock of crack cocaine, a baggie of marijuana, a credit 

card, and a rolled-up $10.00 bill. The officers then Mirandized[1]

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[1] Miranda v. Arizona, 384 U.S. 436 (1966).
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all three individuals and searched the two males. They found 

$424.00 cash on [Appellant’s] person in various denominations. 

They also found $459.00 cash on Weathersby’s person, again in 

various denominations. Simms, when advised that she would be 

taken to the Armstrong County Jail to be searched, admitted that 

she had a baggie of cocaine in her pants. All three individuals 

were apprehended and the contraband, drugs, and cash [were] 

confiscated.

The contraband recovered from the scene included 1) 20.62 

grams of cocaine, packaged in seven small baggies, taken from 

the green Crown Royal[] bag, 2) 5.99 grams of rock or “crack” 

cocaine, taken from the Crown Royal[] bag, 3) 1.13 grams of 

marijuana, taken from the Crown Royal[] bag, 4) 0.21 grams of 

cocaine, taken from the baggie found under the mattress, 5) 3.95 

grams of cocaine, taken from the bag in Simms’[s] pants, and 6) 

0.79 grams of Fentanyl, taken from the weighing surface on the 

digital scale.

Trial Court Opinion, 3/5/2018, at 2-5.

Appellant was arrested and charged with conspiracy in addition to the 

aforementioned charges. A jury trial was held on April 11, 2017, and Appellant 

was convicted of all charges except conspiracy. On August 1, 2017, Appellant 

was sentenced to 30 to 60 months of incarceration on the PWID conviction, 

and he received no further penalty for the other two convictions. Appellant 

timely filed a post-sentence motion, which was denied by operation of law on 

December 21, 2017. Appellant timely filed a notice of appeal, and both 

Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant first challenges the sufficiency of the evidence to sustain his 

convictions on all three charges. See Appellant’s Brief at 9-14. Accordingly, 

the following principles apply.
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The standard of review for a challenge to the sufficiency of the 

evidence is to determine whether, when viewed in a light most 

favorable to the verdict winner, the evidence at trial and all 

reasonable inferences therefrom is sufficient for the trier of fact to 

find that each element of the crimes charged is established beyond 

a reasonable doubt. The Commonwealth may sustain its burden 

of proving every element beyond a reasonable doubt by means of 

wholly circumstantial evidence.

The facts and circumstances established by the Commonwealth 

need not preclude every possibility of innocence. Any doubt raised 

as to the accused’s guilt is to be resolved by the fact-finder. As 

an appellate court, we do not assess credibility nor do we assign 

weight to any of the testimony of record. Therefore, we will not 

disturb the verdict 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.

Commonwealth v. Wanner, 158 A.3d 714, 717-18 (Pa. Super. 2017)

(quoting Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014) 

(citations and quotations omitted)).

To sustain a conviction for the crime of possession of a controlled 

substance, the Commonwealth must prove that Appellant knowingly or 

intentionally possessed a controlled substance without being properly 

registered to do so under the Controlled Substance, Drug, Device and 

Cosmetic Act (the Act). See 35 P.S. § 780–113(a)(16). The crime of PWID

requires the Commonwealth to prove an additional element: that Appellant 

possessed the controlled substance with the intent to manufacture, distribute, 

or deliver it. See 35 P.S. § 780–113(a)(30). The crime of possession or use 

of drug paraphernalia requires the Commonwealth to prove that Appellant 
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knowingly or intentionally possessed or used drug paraphernalia. See 35 P.S. 

§ 780–113(a)(32).

Because the contraband was not found on Appellant’s person, the 

Commonwealth was required to prove constructive possession.

Constructive possession is a legal fiction, a pragmatic construct to 

deal with the realities of criminal law enforcement. ... 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 

application, we have held that constructive possession may be 

established by the totality of the circumstances.

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012) (quotation 

marks and citation omitted). The Commonwealth may establish constructive 

possession of an illegal substance by wholly circumstantial evidence. 

Commonwealth v. Johnson, 26 A.3d 1078 (Pa. 2011). Further, 

“[c]onstructive possession may be found in one or more actors where the item 

in issue is in an area of joint control and equal access.” Commonwealth v. 

Mudrick, 507 A.2d 1212, 1213 (Pa. 1986). 

The trial court offered the following in support of its determination that 

Appellant constructively possessed the contraband.

...Detective Pitzer testified that he had several prior experiences 

with [Appellant] and with drug activity at Staley’s Motel. He 

further testified that, after receiving a report of drug activity in 

room 8, he observed [Appellant] and Simms come out of the room 

and converse for several minutes with two individuals in a white 

car parked outside, at times leaning and reaching into the vehicle. 

During a traffic stop of the vehicle, the male passenger indicated 

that two black males, one nicknamed “Yikes,” was in the room 

with drugs. Detective Pitzer knew “Yikes” to be [Appellant’s] 

nickname.
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Upon entering the room, which was small, Detective Pitzer 

observed [Appellant] within arm’s reach of a digital scale with drug 

residue and baggie of cocaine under the mattress, both in plain 

view. 

Trial Court Opinion, 7/20/2017, at 3-4.

Here, Appellant argues that the “Commonwealth failed to present any 

evidence linking [Appellant] to the motel room, and also failed to present any 

evidence that [Appellant] exercised conscious dominion over any of the 

contraband found in the room.” Appellant’s Brief at 12. Unlike Weathersby, 

who was seen with the Crown Royal bag, and Simms, who was on the bed 

with the baggie of cocaine, Appellant argues that he was merely present in 

the room. Id. at 12-13. 

Viewing the facts in the light most favorable to the Commonwealth, the 

totality of the circumstances suggests that all individuals in the room were 

involved in drug-related activity. First, the scale and a baggie of cocaine were

in plain view in a small motel room where Appellant had been seen entering 

and exiting. N.T., 4/11/2017, at 49. Although others were in the motel room

and may have been seen holding the contraband, “[p]ossession of the illegal 

substance need not be exclusive; two or more can possess the same drug at 

the same time.” Commonwealth v. Macolino, 469 A.2d 132, 135 (Pa. 

1983).

Detective Pitzer testified that he has “been called [to Staley’s Motel] on 

numerous drug investigations.” N.T., 4/11/2017, at 29. In addition, Detective 
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Pitzer saw both Appellant and Simms engaging in suspicious activity directly 

from a motel room where it had been reported that drug activity was 

occurring. Thus, even though police did not see Appellant with the Crown 

Royal bag, the scale, or the cocaine between the mattresses, a jury could 

reasonably infer Appellant, as well as the others in the room, constructively 

possessed them. As we have pointed out,

although “mere presence” at a crime scene cannot alone sustain 

a conviction for possession of contraband: “a jury need not ignore 

presence, proximity and association when presented in 

conjunction with other evidence of guilt. Indeed, presence at the 

scene where drugs are being processed and packaged is a material 

and probative factor which the jury may consider. Drug dealers 

of any size and [illegal drug] manufacturers probably are reticent 

about allowing the unknowing to take view of or assist in the 

operation.”

Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa. Super. 2014) (quoting 

United States v. Robinson, 978 F.2d 1554, 1557-58 (10th Cir. 1992)). 

Based on the foregoing, a jury could reasonably infer that Appellant was 

involved in the drug-related activity occurring in the motel room; thus, we 

conclude evidence was sufficient to sustain Appellant’s convictions.

We now turn to Appellant’s second claim, where he contends that the 

verdict is contrary to the weight of the evidence. See Appellant’s Brief at 15. 

We review this claim mindful of the following.

We have held that [a] motion for new trial on the grounds that 

the verdict is contrary to the weight of the evidence, concedes 

that there is sufficient evidence to sustain the verdict. Our 

Supreme Court has described the standard applied to a weightof-the-evidence claim as follows:
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The decision to grant or deny a motion for a new 

trial based upon a claim that the verdict is against the 

weight of the evidence is within the sound discretion 

of the trial court. Thus, the function of an appellate 

court on appeal is to review the trial court’s exercise

of discretion based upon a review of the record, rather 

than to consider de novo the underlying question of 

the weight of the evidence. An appellate court may 

not overturn the trial court’s decision unless the trial 

court palpably abused its discretion in ruling on the 

weight claim. Further, in reviewing a challenge to the 

weight of the evidence, a verdict will be overturned 

only if it is so contrary to the evidence as to shock 

one’s sense of justice.

Commonwealth v. Cash, 137 A.3d 1262, 1270 ([Pa.] 2016). A 

trial court’s determination that a verdict was not against the 

interest of justice is [o]ne of the least assailable reasons for 

denying a new trial. A verdict is against the weight of the evidence 

where certain facts are so clearly of greater weight that to ignore 

them or to give them equal weight with all the facts is to deny 

justice. [W]e do not reach the underlying question of whether the 

verdict was, in fact, against the weight of the evidence.... Instead, 

this Court determines whether the trial court abused its discretion 

in reaching whatever decision it made on the motion[.]

Commonwealth v. Williams, 176 A.3d 298, 312 (Pa. Super. 2017) (some 

citations and quotation marks omitted).

Here, Appellant contends that the jury verdict was

based solely on speculation given that the only facts relied upon 

by the Commonwealth to connect [Appellant] to any wrongdoing 

whatsoever were that he was present in a motel room where drugs 

and contraband that clearly did not belong to him were found, and 

he had a discussion with the occupants of a vehicle located in front 

of the motel room where he was arrested. 

Appellant’s Brief at 15.

In this case, the trial court concluded that the jury verdict did not shock 

its conscience. Trial Court Opinion, 7/20/2017, at 10. We discern no abuse of 
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discretion in that conclusion. Despite Appellant’s arguments to the contrary, 

as discussed supra, the Commonwealth established more than Appellant’s 

mere presence in the motel room, including seeing him engaging in suspicious 

activity and finding cash on his person. Thus, we discern no abuse of the 

discretion in the trial court’s conclusion, and Appellant is not entitled to relief 

on this claim.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/6/2018