J.A21005/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

KAALEEM WILLIAMS, :

:

Appellant : No. 1937 EDA 2013

Appeal from the Judgment of Sentence June 7, 2013

In the Court of Common Pleas of Philadelphia County 

Criminal Division No(s).: CP-51-CR-0000450-2012

BEFORE: ALLEN, MUNDY, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 28, 2015

Appellant, Kaaleem Williams,1appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Plea after he was found 

guilty of, inter alia, possession with intent to deliver controlled substances2

(“PWID”), possessing a firearm with manufacturer number altered,3and 

conspiracy.4 He asserts the evidence was insufficient to sustain the verdicts 

and the imposition of a mandatory minimum sentence under 42 Pa.C.S. § 

 

*

Former Justice specially assigned to the Superior Court.

1 The appeal of Appellant’s co-defendant, Alex Banks, is pending at 1852 

EDA 2013.

2 35 P.S. § 780-113(a)(30).

3 18 Pa.C.S. § 6110.2.

4 18 Pa.C.S. § 903. 
J.A21005/15

- 2 -

9712.15is illegal under Alleyne v. United States, 133 S. Ct. 2151 (2013). 

We affirm the convictions, vacate the judgment of sentence and remand for 

resentencing. 

The trial court summarized the evidence adduced at Appellant and the 

co-defendant’s joint suppression hearing and nonjury trial as follows: 

[T]he Commonwealth presented the testimony of 

Philadelphia Police Investigator Daniel Thompson and 

Detective Timothy Connell and the following facts were 

established. The Officers testified credibly that around 

3:00 A.M. on December 6, 2011 five Philadelphia warrant 

officers arrived at 1716 North 55th Street in Philadelphia, 

Pennsylvania, to execute an arrest warrant for a resident 

of that address named Shaquita Brown. Three Officers 

were present, knocking on the front door while the 

remaining two Officers covered the rear of the property. 

Before entering the residence and during the subsequent 

search, Officers were under the belief that this property 

was a single family home. The Officer[s] testified that it 

was a regular twin house with a single front door with one 

doorbell and one lock. There was no intercom system, no 

sign of multiple mailboxes or apartment numbers or 

exterior locks on each door.

After a few minutes of knocking, one of the tenants 

answered the door; the Officers identified themselves and 

explained that they had a warrant for Shaquita Brown. 

This tenant was shown a picture, stated that he did not 

know her, admitted the officers into the entryway of the 

first floor and subsequently into his room to search for Ms. 

Brown. The Officers’ search of the room yielded no results 

 

5 Section 9712.1 provided, inter alia, that “[a]ny person who is convicted of 

[PWID] when at the time of the offense the person or the person’s 

accomplice is in physical possession or control of a firearm, whether visible . 

. . or within the actor’s or accomplice’s reach or in close proximity to the 

controlled substance, shall likewise be sentenced to a minimum sentence of 

at least five years of total confinement.”
J.A21005/15

- 3 -

and the tenant suggested that the Officers check the other 

rooms of the residence. The Officers proceeded to knock 

on the remaining doors in the hallway, following the same 

procedure of identifying themselves, stating that they were 

looking for resident Shaquita Brown, being admitted and 

searching the room. It took a few minutes of knocking on 

each door before they were answered and the inhabitants 

of each room appeared to have been sleeping with the 

lights turned off. The search of these rooms also yielded 

no results.

About twenty minutes after initially entering the 

building, the Officers reached the fourth and final door. 

Again, the Officers knocked on the door, which they 

described as a regular wooden bedroom door, and it took 

two to three minutes before [Appellant] responded asking, 

“Who’s there?” The Officers identified themselves, 

[Appellant] opened the door, was shown a picture of 

Shaquita Brown and a copy of the arrest warrant. The 

Officers asked if they could enter the room to search for 

Ms. Brown and [Appellant] said “okay”, agreeing to let 

them enter. . . . 

Upon entering the room to begin their search, the 

Officers immediately noticed the co-defendant[, Alex 

Banks,] sitting on the bed. Both [Appellant] and codefendant were fully clothed and wearing shoes. The room 

was described as similar to the others in the home — a 

regular style bedroom with an open doorway (but no door) 

leading into the bathroom. The room was small and 

contained only a twin sized futon bed; small refrigerator, 

broken dresser and television. The lights were on in 

addition to the television with the movie “Juice” playing. 

As the Officers began their search for Ms. Brown in the 

room, Officer Jones approached the co-defendant who was 

seated on the bed to show him a picture of Ms. Brown for

identification. Upon approaching [Appellant], the Officer 

looked to his left and saw what he believed to be narcotics 

in plain view in the broken dresser drawer that was 

completely missing its front panel. Officer Jones alerted 

the other Officers that there was something in the 

drawer—a “white-chunky substance” in plastic bags being 

held inside of a bigger clear plastic bag—that he believed 
J.A21005/15

- 4 -

to be crack cocaine. Upon further investigation of the 

drawer, the Officers were also able to view the handle of a 

handgun which prompted them to secure [Appellant] and 

codefendant as a cautionary measure to ensure the 

Officers’ safety. The Officers alerted their Sergeant to the 

discovery and were given orders to secure the scene and 

continue their search for Ms. Brown. While searching for 

her under the bed, an additional firearm, which they 

described as a “small submachine gun” with a bit longer 

barrel and a bigger clip was discovered. At the foot of the 

bed near the front door, a third handgun was recovered. 

The subsequent search of the bathroom also led to the 

discovery of “a big black trashbag” that was “full of 

marijuana”

Ms. Brown was not found in the room, so the Officers 

were ordered by their Sergeant to secure the contraband 

that they discovered by placing it in evidence bags, leaving 

them in the room, and transporting [Appellant] and codefendant to the Southwest Detectives headquarters. 

[Appellant and the co-defendant] provided different home 

addresses, neither of which was that residence. Officers 

secured the front and rear of the residence when they 

arrived and no one was seen exiting. Based on the 

contraband discovered during the search for Ms. Brown, 

additional Officers obtained and executed a search warrant 

in order to recover the items. . . . 

[T]he seizure analysis establish[ed] that 28.08 grams of 

crack cocaine were discovered in addition to 2.12 pounds 

of what tested positive as marijuana from the trash bags; 

that whoever possessed the drugs possessed them with 

the intent to deliver based on the amount, paraphernalia, 

scale and value—approximately $1,000 in crack cocaine 

and $3,000 in marijuana; the ballistics report establishing 

that two of the three firearms were operable at the time of 

recovery, while the third became operable after recovery 

and insertion of a new magazine; and that the serial 

number of the semi-automatic weapon was defaced by 

abrasion, gauging and restored by chemical etching.[6] 

 

6 Neither Appellant nor the co-defendant testified at trial. 
J.A21005/15

- 5 -

Trial Ct. Op., 7/14/14, at 2-6 (record citations omitted). On January 25, 

2013, the trial court found Appellant guilty of PWID, possessing a firearm 

with manufacturer number altered, and conspiracy. On June 7, 2013, the 

court imposed an aggregate sentence of five to ten years’ imprisonment, 

based, in part, on the mandatory minimum sentence in 42 Pa.C.S. § 9712.1. 

This timely appeal followed.7

Appellant presents the following questions for review:

Was not the evidence insufficient for conviction on all 

charges, insofar as the Commonwealth failed to prove that 

[Appellant] actually or constructively possessed the 

narcotics, paraphernalia, or firearms at issue, or conspired 

to do so?

Was not [Appellant’s] sentence illegal, in so far as he 

was subjected to a mandatory minimum sentence pursuant 

to 42 Pa.C.S. § 9712.1, which has been found to be 

unconstitutional?

Appellant’s Brief at 4.

Appellant first claims the evidence was insufficient to sustain the trial 

court’s verdicts because “[t]here [was] no evidence whatsoever that [he] 

lived in the apartment or was anything other than a transitory guest.” Id. at 

11. He asserts the contraband was “hidden away in a dresser, under the 

bed, or in a black plastic trash bag in the bathroom” and there was “no 

evidence [he] ever exercised control[,] ever even touched them or knew 

about them.” Id. According to Appellant, “the facts here are far less 

 

7 Appellant timely complied with the trial court’s order to file and serve a 

Pa.R.A.P. 1925(b) statement.
J.A21005/15

- 6 -

damaging than those” in cases where the evidence of constructive 

possession was found to be lacking. Id. at 13 (discussing Commonwealth 

v. Rodriguez, 618 A.2d 1007 (Pa. Super. 1993), and United States v. 

Jenkins, 90 F.3d 814 (3d Cir. 1996)). Similarly, Appellant asserts his mere 

presence in the apartment did not establish his participation in or knowledge 

of a conspiratorial agreement. Id. at 14-15. We are constrained to 

disagree. 

Our review is governed by the following principles: 

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-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 proof 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 the 

evidence actually received must be considered. . . . 

Commonwealth v. Bricker, 882 A.2d 1008, 1014 (Pa. Super. 2005) 

(citation omitted).

Constructive possession requires proof of the ability to 

exercise conscious dominion over the substance, the power 

to control the contraband, and the intent to exercise such 
J.A21005/15

- 7 -

control. Constructive possession may be established by 

the totality of the circumstances. . . . 

Id. (citations omitted). However, “‘[g]uilt by association is unacceptable.’ 

Further, ‘mere presence of one person, among a group at a scene of 

contraband, is not a strong factor indicative of guilt.’” Commonwealth v. 

Thompson, 779 A.2d 1195, 1199 (Pa. Super. 2001) (citations omitted). 

We note that in both Rodriguez and Jenkins, the evidence 

established that other parties were responsible for the residence searched or 

the contraband found therein. In Rodriguez, officers executed a search 

warrant on an apartment and arrested Joseph Aquino. See Rodriguez, 618 

A.2d at 1008. Aquino was identified as the perpetrator in a drug sale that 

gave rise to the search warrant, was in physical possession of contraband 

and cash, and had mail in his name in the apartment. Id. Officers 

recovered additional contraband in the apartment. Id. Officers also found 

the defendant hiding in a closet, next to a jacket with three baggies of 

cocaine inside a cigarette pack in the side pocket. Id. The defendant was 

arrested following a struggle. Id. The defendant had no contraband on his 

person and had no personal items in the apartment. However, he was in 

physical possession of a key to the apartment. Id. Following his conviction, 

this Court concluded the defendant’s possession of the key and presence in 

Aquino’s apartment was insufficient to prove constructive possession of the 

contraband. Id. at 1009. We emphasized there were no indication he 
J.A21005/15

- 8 -

resided at the apartment, engaged in criminal activity, or was aware of the 

presence of contraband. Id. 

In Jenkins, officers pursued two suspects into an apartment. 

Jenkins, 90 F.3d at 816. There, they found the defendant and another 

individual, Sam Stallings, seated on a couch, in their underwear, with three 

bags of cocaine, firearms, and paraphernalia for packaging the cocaine on 

the coffee table in front of them. Id. Stallings and one of the suspects who 

initially led officer to the apartment were identified as residents of the 

apartment. Id. at 817. The Jenkins Court reversed the defendant’s 

conviction, concluding there was no “decisive nexus” between the defendant 

and the contraband beyond the evidence of his proximity to the contraband 

and his presence in Stallings apartment. Id. at 820.

Thus, Rodriguez and Jenkins emphasized the absence of a sufficient 

nexus establishing control over the contraband vis-à-vis a party implicated 

in the criminal activity. See Rodriguez, 618 A.2d at 1009; see also

Jenkins, 90 F.3d at 820. Although it is well settled that “mere presence” is 

insufficient to establish constructive possession under those circumstances, 

this Court has also opined that a fact-finder 

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.
J.A21005/15

- 9 -

United States v. Robinson, 978 F.2d 1554, 1557–1558 

(10th Cir. 1992) (internal quotations and citations 

omitted); see also Rivas v. United States, 783 A.2d 

125, 138 (D.C. 2001) (en banc) (“a claim of innocent 

presence becomes decidedly less plausible in an 

environment (vehicular or otherwise) that is rife with 

evidence of ongoing drug production or distribution, such 

as a manufacturing or cutting facility, a warehouse, or a 

staging or preparation area where a large quantity of 

drugs or drug paraphernalia is exposed to view”); United 

States v. Batista–Polanco, 927 F.2d 14, 18 (1st Cir. 

1991) (casting doubt upon the “hypothesis that 

participants in a [large-scale heroin packaging] scheme 

would permit a noncontributing interloper to remain for an 

extended period of time in a small apartment while their 

conspicuous criminal conduct continued unabated [since 

s]uch is not normally the conduct that one would expect of 

conspirators engaged in conduct which by its nature is 

kept secret from outsiders”) (internal quotations, citations, 

and corrections omitted); United States v. Staten, 581 

F.2d 878, 885 n. 67 (D.C. Cir. 1978) (“[i]t would seem 

that the voluntary presence of the accused in an area 

obviously devoted to preparation of drugs for distribution 

is a circumstance potently indicative of his involvement in 

the operation”).

Commonwealth v. Vargas, 108 A.3d 858, 869 (Pa. Super. 2014) (en 

banc).

Instantly, the record, when viewed in a light most favorable to the 

Commonwealth, provided a reasonable basis for the trial court’s finding that 

the “small room” in which Appellant and the co-defendant were found “was 

most likely used exclusively for packaging drugs.” See Trial Ct. Op. at 12. 

We cannot disregard (1) the presence of $4,000 worth of narcotics—

including the “giant garbage bag” containing marijuana and vials located 

near the shower, (2) the presence of multiple firearms—one of which had its 
J.A21005/15

- 10 -

serial number obliterated, or (3) the absence of any paraphernalia for 

personal use. See Vargas, 108 A.3d at 869-70. The combination of these 

factors all strengthened the inference that the apartment was a location for 

securing narcotics that were packaged for future sales. See id. 

Moreover, the evidence did not give rise to a suggestion of innocent 

presence in the room. See Rodriguez, 618 A.2d at 1009; see also

Jenkins, 90 F.3d at 820. The only furnishings were a futon-style bed, a 

small refrigerator, a dresser, and a television. N.T., 1/25/13, at 30, 37-38. 

The dresser only contained “a T-shirt or two,” and there was no evidence of 

mail addressed to any individual. Id. at 52-53. Both Appellant and the codefendant provided police officers information that they did not live in the 

building. Neither Appellant nor the co-defendant had a relationship to the 

apartment or a legitimate occupant of the building, despite their presence in 

the apartment at 3:00 A.M. 

We also note the record belies Appellant’s assertion that he was 

unaware of the contraband. Instantly, the arresting officer testified the 

suspected cocaine and the handle of the firearm located in the broken 

drawer was immediately apparent. See N.T., 1/25/13, at 31-32. The 

record further established that the doorway to the bathroom was open, the 

trash bag in the bathroom was left open, and the vials and marijuana in the 

trash bag were similarly in plain view. Id. at 36, 39. Thus, we detect no 
J.A21005/15

- 11 -

merit to Appellant’s assertion that he had no knowledge of the narcotics or 

firearms. 

In sum, we discern no error in the trial court’s determination that 

Appellant and the co-defendant were not mere social visitors. Rather, 

based on the totality of the circumstances—including the nature of the 

apartment and the indicia that it was exclusively used to store contraband 

for sale—we conclude that the court was entitled to find that Appellant and 

the co-defendant constructively possessed the contraband. In contrast to 

Rodriguez and Jenkins, there was no evidence an identified party used the 

apartment to sell drugs or was responsible for packaging the drugs. 

Accordingly, we discern no merit to Appellant’s arguments that the absence 

of evidence regarding his connection to the apartment or the contraband 

warranted relief. 

With respect to Appellant’s conspiracy conviction, we note that

“to sustain a conviction for criminal conspiracy, the 

Commonwealth must establish that the defendant (1) 

entered into an agreement to commit or aid in an unlawful 

act with another person or persons, (2) with a shared 

criminal intent and (3) an overt act was done in 

furtherance of the conspiracy.” . . . 

The essence of a criminal conspiracy is the common 

understanding that a particular criminal objective is 

to be accomplished. Mere association with the 

perpetrators, mere presence at the scene, or mere 

knowledge of the crime is insufficient. Rather, the 

Commonwealth must prove that the defendant 

shared the criminal intent, i.e., that the [defendant] 

was an active participant in the criminal enterprise 

and that he had knowledge of the conspiratorial 
J.A21005/15

- 12 -

agreement. The defendant does not need to commit 

the overt act; a co-conspirator may commit the overt 

act.

“Proof of a conspiracy is almost always extracted from 

circumstantial evidence. The Commonwealth may present 

a ‘web of evidence’ linking the defendant to the conspiracy 

beyond a reasonable doubt. The evidence must, however, 

rise above mere suspicion or possibility of guilty collusion.” 

We have held that, “[a]mong the circumstances which are 

relevant, but not sufficient by themselves, to prove a 

corrupt confederation are: (1) an association between 

alleged conspirators; (2) knowledge of the commission of 

the crime; (3) presence at the scene of the crime; and (4) 

in some situations, participation in the object of the 

conspiracy.” 

Vargas, 108 A.3d at 873-74 (citations omitted). 

As we have discussed above, the evidence gave rise to an inference 

that Appellant and the co-defendant were, at a minimum, participants in a 

conspiracy to store and secure narcotics for future sales. In light of that 

same evidence, we discern no basis upon which to disturb the trial court’s 

determination that there existed a criminal agreement to so do. See id. 

Thus, no relief is due. 

Lastly, Appellant claims his sentence, which was based on the 

mandatory minimum sentence under 42 Pa.C.S. § 9712.1, is illegal under 

Alleyne. Appellant’s Brief at 45. The Commonwealth does not object to

resentencing without reference to Section 9712.1. Commonwealth’s Brief at 

24-25. 

This Court has held that Section 9712.1 is unconstitutional in its 

entirety. See Commonwealth v. Newman, 99 A.3d 86, 103 (Pa. Super. 
J.A21005/15

- 13 -

2014) (en banc). Moreover, an Alleyne challenge is available to defendants 

whose cases are on direct appeal. See id.; Commonwealth v. Riggle, ___ 

A.3d ___, ___, 2015 WL 4094427 at *4 (Pa. Super. July 7, 2015). 

Therefore, we remand for resentencing “without consideration of any 

mandatory minimum sentence.”8 See Newman, 99 A.3d at 103. 

Accordingly, we affirm the convictions, vacate the judgment of sentence, 

and remand this matter for resentencing. 

Convictions affirmed. Judgment of sentence vacated. Case remanded 

for resentencing. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/28/2015

 

8 We note that before trial, the Commonwealth also asserted that a 

mandatory minimum sentence under 18 Pa.C.S. § 7508, for the weights of 

the controlled substances, could apply. N.T., 1/25/13, at 6. However, 

Section 7508 has also been held unconstitutional in light of Alleyne and 

Newman. See Commonwealth v. Mosley, 114 A.3d 1072, 1089-91 (Pa. 

Super. 2015).