J-S57004- 14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : BRYAN JOHNS, : : Appellant : No. 1470 EDA 2013

Appeal from the Judgment of Sentence April 25, 2013, Court of Common Pleas, Philadelphia County, Criminal Division at No. CP- 51

- CR -0004774-2011 BEFORE: DONOHUE, MUNDY and STABILE, JJ. MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 06, 2014 Bryan Johns (“Johns”) appeals from the April 25, 2013 ju dgment of sentence entered by the Philadelphia County Court of Common Pleas following his convictions of possession of a controlled subs tance with intent to deliver and possession of drug paraphernalia. 1 We affirm. The testimony adduced at trial reveals the following relevant facts. At approximately 9:00 p.m. on February 10, 2011, Office r Jeffrey Middleton, a surveillance officer with the Philadelphia Police Depar tment’s Narcotics Enforcement Team, set up surveillance in the 1300 block of East Price Street. N.T., 2/26/13, at 32, 35. He was in plain clothes and on foot, approximately 50 to 60 feet from the house located at 1351 East Price Street. Id. at 35. In the one hour and twenty minutes he conduct ed

1 35 P.S. § 780-113(a)(30), (32).J-S57004- 14

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surveillance, he observed on three occasions people come o nto the porch at 1351 East Price Street, engage in a brief conversation with Johns and hand Johns an unknown amount of money. Id. at 41, 49-50, 52. On all three occasions, Johns thereafter walked inside the house, retur ned two- to -three minutes later and handed the person “small items” that O fficer Middl eton could not see from a distance. Id. at 41-43, 49-50, 52. Officer Middleton radioed his backup officers each time the purchasers left the porch of 1351 East Price Street, and Officer Jennifer Skrocki effectua ted the arrest of the second purchaser, Gal en Whitaker (“Whitaker”). Id. at 44-45, 50, 52-53, 101. Officer Skrocki recovered two clear vials with cle ar lids containing crack cocaine from Whitaker. Id. at 100. After the third transaction, Johns left the porch of 1351 East Price Street. Id. at 54. Officer Middleton radioed to his backup office rs to stop Johns, which was done by Officer Seante Warren. Id. at 55. He recovered $49 from Johns’ person during the search incident to arr est. N.T., 2/27/11, at 11. No narcotics were recovered from Johns. N.T., 2 /26/11, at 89. When police filled out the biographical report, John s provided 1351 East Price Street as his address. Id. at 104. Officer Middleton and his sergeant “cleared the house” to ensure to that no one was inside. Id. at 56. Believing there would be evidence and contraband inside, the police then obtained a search war rant for 1351 East Price Street. Id. at 57-58. From a bedroom on the third floor of th e houseJ-S57004- 14

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police recovered a piece of mail with Johns’ name and a ddress; Johns’ Pennsylvania identification card; a scale; eight clear ba ggies with an apple logo; numerous new, unused red-tinted baggies; a box o f sandwich bags; a clear bag with new, unused clear vials with clear lids; a nd a gray box with two sandwich bags, one containing 103 clear glass vial s with plastic lids that were filled with crack cocaine and the other containing 26 red-tinted packets filled with marijuana. Id. at 59-60. According to Officer Middleton, the vials containing the narcotics recovered from Whitaker were i dentical to the vials recovered from the search of the house. Id. at 61. Johns’ father, Bryan Johns, Sr. (“Johns Sr.”), testified on Johns’ behalf and stated that Johns did not live at 1351 East Price S treet in February of 2011. N.T., 2/27/13, at 94. He testified that he returned home from a meeting at approximately 8:15 p.m., at which time Jo hns was helping his grandmother unload groceries. Id. at 95-96. According to Johns Sr., no more than six minutes later, the police came and placed him and other friends and family members who were at the house in ha ndcuffs. Id. at 97- 98. He did not observe Johns selling drugs. Id. at 100. Johns Sr. was unaware that there were drugs in a third-floor bedro om in his house. Id. at 102. He testified that there were two bedrooms locat ed on the third floor of the house, and they were “just open” to any close family member that needed a place to stay. Id. at 103. Although Johns stayed at his father’sJ-S57004- 14

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house sometimes, Johns Sr. testified that Johns never slep t on the third floor. Id. at 112. After two days of testimony, the jury convicted Johns o f the aforementioned offenses. On April 25, 2013, the tria l court sentenced Johns to two to four years of incarceration followed by six y ears of probation. Johns did not file any post-sentence motions. He filed a timely notice of appeal on May 23, 2013, followed by a court-ordered concise statement of errors complained of on appeal. He raises two issues for our review:
1. Whether the evidence was sufficient to support a conviction for possession with intent to deliver [a] controlled substance and related offenses?
2. Whether [the] verdict was against the weight of the evidence? Johns’ Brief at 4. We begin with Johns’ challenge to the sufficiency of th e evidence.

“ Whether sufficient evidence exists to support the verdi ct is a question of law; our standard of review is de novo and our scope of review is plenary.” Commonwealth v. Murray , 83 A.3d 137, 151 (Pa. 2013). We review the evidence in the light most favorable to the verdict wi nner to determine whether there is sufficient evidence to allow the jury to find every element of a crime beyond a reasonable doubt. Commonwealth v. Cahill , 95 A.3d 298, 300 (Pa. Super. 2014).

In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-J-S57004- 14

- 5 - finder. In addition, we note that the facts and 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 non e of the evidence. Id. (citation omitted). Johns asserts that the evidence presented was insufficie nt to prove that he possessed the drugs and paraphernalia in question . Johns’ Brief at 9-12. The trial court found that the Commonwealth p resented adequate evidence that Johns constructively possessed the contraband , warranting his convictions. Trial Court Opinion, 11/21/13, at 7- 8. The trial court is correct in finding that because Johns was not in actual physical possession of the drugs seized from the resi dence, the Commonwealth had to prove constructive possession. Commonwealth v. Hopkins , 67 A.3d 817, 820 (Pa. Super. 2013), appeal denied, 78 A.3d 1090 (Pa. 2013). Constructive possession is a legal fiction, a pragmatic

construct to deal with the realities of criminal law enforcement. Constructive possession is an inferenceJ-S57004- 14

- 6 - arising from a set of facts that possession of the contraband was more likely than not. 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 applicatio n, we have held that constructive possession may be established by the totality of the circumstances. Id. at 820 -21 (citation omitted). The evidence presented reveals that police observed Jo hns selling drugs from the porch of 1351 East Price Street. N.T., 2/26/13, at 41-43, 49-50, 52. Police recovered the drugs Johns sold to Wh itaker, which were packaged identically to drugs found on the third floor of 1351 East Price Street. Id. at 61, 100. In a drawer located in the same bedroom , police also found Johns’ Pennsylvania iden tification card and a piece of mail bearing his name. Id. at 59-60. Although the identification card did not list 1351 East Price Street at Johns’ address, Johns indicated to po lice that he lived there. Id. at 104. This evidence sufficiently proves that Johns constructively possessed the drugs in question. See Commonwealth v. Walker , 874 A.2d 667, 678 (Pa. Super. 2005) (constructive po ssession of drugs found in a basement office where the defendant w as present at the home when police conducted the search; the defendant to ld police he lived there; and police found mail in the office bearing t he defendant’s name). Johns states that it is his belief that police plante d the Pennsylvania identification card and mail bearing his name in the t hird floor bedroom. HeJ-S57004- 14

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asserts that this belief is supported by the fact that t he police included Johns’ Pennsylvania identification number on the biog raphical report, but Johns supposedly did not have his identification card on him, and the fact that the police did not take any photographs of the m ail allegedly found on the third floor. Johns’ Brief at 10 -11. We disagree. First, viewing the evidence in the light most favorable to the Commonwea lth, as our standard of review requires, the record does not support a findi ng that the police planted the items. Second, this challenge implicates th e weight of the evidence, not its sufficiency, and thus entitles him to n o relief on his challenge to the sufficiency of the evidence. As the evidence of record supports the verdict , we find no merit to Johns’ sufficiency claim. As his second issue on appeal, Johns asserts that the wei ght of the evidence does not support his conviction. Johns’ Brief at 12 -13. This issue is waived, as Johns failed to raise it either at senten cing or in a postsentence motion. Pa.R.Crim.P. 607(A); Commonwealth v. Thompson , 93 A.3d 478, 490 (Pa. Super. 2014). Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 10/6/2014