J. S 21 0 35 /1 9

NON
- PRECEDENTIAL DECISION

– SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :
: WILLIAM MOUNT , : No. 761 E DA 20 17

: Appellant :

Appeal from the Judgment of Sentence, September 29, 2016, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP

- 51

- CR

- 0004411

- 2014

BEFORE: STABILE , J., MURRAY, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 19, 2019

William Mount appea ls from the September 29, 2016 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County

following his conviction in a waiver trial of manufact ure, delivery, or

possession with intent to manufacture or deliver a controlled substance ;
possession of a controlled substance ; possession of drug paraphernalia ; and

possession of a small amount of marijuana

. 1 The trial court imposed a

sentence of 11 1⁄2 to 23 months’ incarceration with immediate parole and

4 years’ reporting probation on the possession with t he intent to deliver

conviction and no further penalty on the remaining convictions . We affirm.

The trial court set forth the following factual histo ry:

1 35 P.S . §§ 780

- 113(a)(30), (16), (32) , and (31), respectively.J. S 21 0 35 /1 9

- 2

- On February 11, 2014, a report was filed by the victim of a robbery stating that William Mount Jr. [ 2 ] had taken from the victim a Samsung Galaxy cellular phone and SEPTA TransPass at 58th Street and Woodland Avenue in the city and county of Philadelphi a. The victim identified William Mount, Jr. as the perpetrator having known Mount, Jr. from school and from an alleged previous robbery. On February 15, 2014, at approximately 6:05 p.m., detectives from the Southwest Detectives Division of the Philadelph ia Police Department executed a search warrant on 5944 Cobbs Creek Parkway in connection to the February 11[,] 2014 robbery. Upon entrance, officers determined that only one female friend of the suspect’s father, [ appellant] , was present in the home

.

Det ectives began to search the home and entered the basement area of 5944 Cobbs Creek Parkway. In the middle of the basement, officers encountered a windowless room with one single locked door that appeared to be recently constructed. The room was construct ed with sheetrock and had both a heating and ventilation system. The design of this particular room is consistent with others that are used for the exclusive purpose of growing marijuana. The detectives gained entry into the room and discovered a large q uantity of marijuana which then prompted a call for officers from the Narcotics Fiel d Unit

. Responding officers from the Narcotics Field Unit arrived to 5944 Cobbs Creek Parkway and began to inventory the contents of the windowless room in the basement. Within this room, officers from the Narcotics Field Unit catalogued: six freezer bags filled with approximately one pound each of marijuana; one trash bag filled with loose marijuana; one postal letter addressed to William Mount ; one large clear bag that contained multiple smaller unused bags that are consistently used for the packaging of narcotics; one

2 We note that appellant is William Mount, Sr. The alleged robbery suspect , who was the subject of the search warrant , was William Mount, Jr., appellant’s

son.J. S 21 0 35 /1 9

- 3

- scale with a power plug; one box, with a shipping label addressed to 428 West Wayne Avenue, containing drug paraphernalia, mari juana and a white digital scale; one handheld scale; and high powered lights consistent with marijuana growing operations. The Narcotics Field Unit, in total, recovered 8.8 pounds of marijuana with an approximate street value of between $39,000 and $78,00 0 dependent upon the quantities in which the marijuana is sold

. As officers from the Narcotics Field Unit prepared to leave 5944 Cobbs Creek Parkway, [appellant] arrived at the location

. [Appellant] i dentified himself to Officer Burgess of the Narcotics Field Unit and agreed to answer questions posed by the officer. [Appellant] denied any knowledge of the windowless room in the basement despite having stated he lived there for approximately one to [two] years

. Officer Burgess stated to [appellant] that the room had been recently constructed and [appellant] continued to deny any knowledge of the room altogether. Officer B urgess then placed [appellant] under arrest because he found the story of [appellant] not credible.

Trial court opinion, 8/16/17 at 1

- 3 (citations to notes of testimony omitted)

. The record reflects that following appellant’s sentencing, appellant filed

a timely post

- sentence motion on October 8, 2016. This motion was denied

by operation of law on February 8, 2017. See Pa.R.Crim.P. 72 0(B)(3)(a). On

February 18, 2017, appellant filed a timely notice of appeal. The trial court

ordered appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. The trial court

subse quently filed its Rule 1925(a) opinion.J. S 21 0 35 /1 9

- 4

-

Appellant raises the following issue for our review : 3

Whether the trial court erred in finding that the Commonwealth produced sufficient evidence to prove beyond a reasonable doubt that [a] ppellant constructively po ssessed the marijuana and marijuana paraphernalia found in the locked room in the basement of a home in which multiple people lived or were present at the time of the search [?]
Appellant’s brief at 4.

Appellant claims that the Commonwealth failed to pres ent sufficient

evide nce to establish constructive possession of the controlled substance

–
marijuana

– and of drug paraphernalia beyond a reasonable doubt to support

appellant’s conviction s

. ( Id. at 10.) Specifically, appellant argues:

Notably, the room in the basement was locked and the police never found the key. Had something connected [appellant] to that basement room such as the key or mail which was definitively addressed to him, the evidence may have been sufficient. But here, the Commonwealth sh owed only that he shared a house which was found to have marijuana and other grow equipment in the basement. The Commonwealth did not even establish that [appellant] had access to the marijuana because the room was locked and he did not have the key.

Id. at 13 (citation omitted).

3 We note that after filing the Rule 1925(b) statement , appellant’s coun s el, Mark A. Hinrichs, Esq., accepted new employment and on October 27, 2017 , filed a petition to withdraw with this court. In a per curiam order dated December 5, 2017, this court granted counsel’s request to w ithdraw and directed the trial court to determine appellant’s eligibility for court

- appointed counsel and appoint new counsel , if required . On August 16, 2018, Zak Goldstein, Esq. , was appointed new counsel and subsequently filed a brief on behalf of appe llant.J. S 21 0 35 /1 9

- 5

-

Our standard and scope of review for a sufficiency of the evidence claim

is well settled.

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact

- finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact

- finde r. 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 inco nclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proof or proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial eviden ce. Moreover, in applying the above test, the entire record must be evaluated and all the evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, i s free to believe all, part or none of the evidence.

Commonwealth v. Pappas , 845 A.2d 829, 835

- 836 (Pa.Super. 2004)

(citation omitted).

“‘ [ I]n narcotics possession cases, the Commonwealth may meet its

burden by showing actual, constructive, or joint cons tructive possession of the

contraband. ’” Commonwealth v. Roberts , 133 A.3d 759, 767 (Pa.Super.

2016), appeal denied , 145 A.3d 725 (Pa. 2016) ; quoting Commonwealth

v. Vargas , 108 A.3d 858, 868 (Pa.Super. 2014) ( en banc ), appeal denied , 121 A.3d 496 (Pa. 2015)

. When the contraband is not found on the appellant,J. S 21 0 35 /1 9

- 6

-

the Commonwealth must establish that appellant had constructive possession

of the seized items to support the conviction

. See Commonwealth v.

Brown , 48 A.3d 426, 430 (Pa.Super. 2012), appeal denied , 63 A.3d 1243

(Pa. 2013).

Constructive possession is a legal fiction, a pragmatic

construct to deal with the realities of criminal law enforcement. Constructive possession is an inference 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 application, we have held that constructive possession may be established by the totality of the circumstances.

Roberts , 133 A.3d at 767

- 768, quoting Brown , 48 A.2d at 430

.

Here , appellant argues that the Commonwealth failed to show that the

letter and the box label were “definitely addressed to” appellant. (Appellant’s

brief at 13.) I t is , however, the totality of the circumstances that the

trier

- of

- fact must consider to determine if constructive possession existed.

See Roberts , 1 33 A.3d at 76 8

.
The trial court found that “[t]he presence of [appellant’s] mail in the

room make[s] it likely that [appellant] had access to [the room] and had the

power to exercise control over its contents.” (Trial court opinion, 8/16/17

at 6.) The trial transcript reflects that t he narcotics detective testified that

appellant’s name was on both the letter and the label on the box contai ning

the marijuana and drug paraphern alia and the items were found in the lockedJ. S 21 0 35 /1 9

- 7

-

room in the basement of appellant’s house , as reflected on the polic e property

receipts

. (Notes of testimony , 7/18/16 at 19

- 20, 27; see also

Commonwealth Exhibits C

- 2 and C

- 3.) Appellant testified that he was aware

of the room in his basement and that the room existed pr ior to the other

residents moving into the house. (Notes of testimony, 7/18/16 at 38

- 39,

42

- 43.) Appellant claimed, however, that he did not know the contents of the

room but offered no explanation as to ho w or why his mail was found in the

room. ( Id. at 38

- 46.) Additionally, a ppellant was responsible for the electric

bill , and the cost of the power to operate the large high

- powered lamps used

in the “grow house” would have been reflected in those bills. ( Id. at 41

- 42.)

Based upon the totality of the circumstances, it was more likely than not

that appellant constructively possessed the marijuana and drug paraphernalia

found in the locked room in his basement. See Commonwealth v. Walker , 874 A.2d 667 (Pa.Super. 2005) (holding that the presence of mail with

defendant’s name on it in a room that also contained drugs and drug

paraphernalia established constructive possession). Therefore, in viewing all

of the evidence and the inferences drawn from that evidence in the light most

favorable to the Commonwealth, as the verdict winner, there was sufficient

evidence for the trial court, as trier

- of

- fact, to find that appellant possessed

marijuana with the intent to deliver and that he possessed drug paraphernalia.

Judgment of sentence affirmed.J. S 21 0 35 /1 9

- 8

-

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/19/19