J-S14015-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

MICHAEL WILLIAMS, :

:

Appellant : No. 735 EDA 2014

Appeal from the Judgment of Sentence February 12, 2014,

Court of Common Pleas, Philadelphia County,

Criminal Division at No. CP-51-CR-0010059-2013

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.: FILED APRIL 21, 2015

Michael Williams (“Williams”) appeals from the February 12, 2014 

judgment of sentence entered by the Court of Common Pleas, Philadelphia 

County, following a conviction of possession with intent to deliver a 

controlled substance (“PWID”), 35 P.S. § 780-113(a)(30), and knowingly 

and intentionally possessing a controlled substance (“K&I”), 35 P.S. § 780-

113(a)(16). For the reasons set forth herein, we affirm Williams’ conviction, 

but vacate his judgment of sentence and remand for resentencing. 

The facts and procedural history is as follows: 

On July 18, 2013, at 12:45 p.m., Officer [David] 

Rausch was conducting surveillance on the 2300 

block of Nichols Street in the city and county of 

Philadelphia, Pennsylvania. The officer observed 

[Williams] standing outside the row homes between 

2314 and 2316 Nichols Street, "talking to a couple of 

gentlemen on the block." "At approximately 12:50 

[p.m.], an unknown black male [wearing] a white 
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and blue shirt and black pants approached [Williams]

to engage in a brief conversation." The "unknown" 

male handed [Williams] money, which [Williams] 

placed in the back pocket of his shorts. [Williams] 

then walked across the street and entered an 

abandoned row home located at 2319 Nichols Street. 

[Williams] entered the premises through an unlocked 

door and remained inside for about twenty seconds. 

When [Williams] emerged, he walked back to the 

unknown male and "handed him small items," after 

which the individual walked away. Officer Rausch 

described this individual to back-up officers, but the 

officers could not locate him after he departed from 

[Williams]. (N.T., 2/10/14, pp. 14-18).

A few minutes later, at approximately 1:00 p.m., 

another black male wearing a blue shirt and tan 

pants approached [Williams] and handed him 

money, which [Williams] placed in the back pocket of 

his shorts. As before, [Williams] walked across the 

street, entered 2319 Nichols Street, and remained 

inside for about twenty seconds. When [Williams] 

emerged, he walked back to the unknown male and 

handed him "small items." Following this transaction, 

the unknown male walked away and was neither 

located nor stopped by back-up officers. (N.T., 

2/10/14, pp. 18-19).

At approximately 1:15 p.m., another individual 

approached [Williams] and handed him money, 

which [Williams] placed in the back pocket of his 

shorts. Same as the previous two transactions, 

[Williams] walked across the street, entered 2319 

Nichols Street, and remained inside for about twenty 

seconds. When [Williams] emerged, he walked back 

to the individual and handed him "items." Officer 

Rausch described this individual to back-up officers, 

including Officer [Steven] Shippen, who 

subsequently detained and identified the individual 

as Dwayne Carson. Officer Shippen recovered a 

silver metal container from Mr. Carson, which 

contained two Xanax pills, four Methadone pills, and 

one Roxicodone pill. (N.T., 2/10/14, pp. 19-20, 29).
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Following his transaction with Mr. Carson, [Williams] 

walked down Nichols Street toward Ridge Avenue, 

upon which Officer Rausch directed back-up officers 

to apprehend him. The arresting officer recovered 

$185.00 from the back pocket of [Williams’] pants, 

and was informed by [Williams] that [Williams] lived 

not at 2319 Nichols Street -- which he was seen 

entering three times -- but several blocks away at 

2812 West Marsden Street. The arresting officer 

recovered no narcotics from [Williams’] person (N.T., 

2/10/14, pp. 19-20, 27, 37).

Officers Rausch and [John] Mulqueeney (among 

other officers) subsequently searched the premises 

at 2319 Nichols Street. [According to] Officer 

Mulqueeney [] the sole piece of furniture in the 

premises was a couch located about ten feet from 

the front door. The residence "was obviously 

abandoned" and was covered with trash "all over the 

place." Officer Mulqueeney observed an "amber pill 

bottle" sitting beside a couch cushion, which 

contained sixty-six (66) Endoset pills weighing a 

total of 28.64 grams. When Officer Mulqueeney 

searched beneath the couch cushion, he discovered 

"one clear plastic baggie containing five clear heatsealed packets of ... crack cocaine," which weighed 

less than 2 grams. Although police officers 

discovered no paperwork linking [Williams] or 

anyone else to the abandoned property, [Williams] 

was the only person whom Officer Rausch observed 

enter or exit the premises. (N.T., 2/10/14, pp. 33-

38).

Trial Court Opinion, 8/22/14, at 2-4.

Williams was charged with PWID and K&I. On February 10, 2014, 

Williams waived his right to a jury trial and proceeded to a bench trial. At 

trial, the Commonwealth presented the testimony of Officers Rausch, 

Shippen, and Mulqueeney. Williams did not offer any witness or evidence. 
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At the conclusion of the Commonwealth’s case, the trial court found Williams 

guilty of both charges. 

On February 12, 2014, the trial court sentenced Williams to a 

mandatory minimum of five to ten years of incarceration on the charge of 

PWID. The trial court did not impose a penalty on the K&I charge. Williams 

did not file a post-sentence motion challenging his convictions or sentence.

On March 5, 2014, Williams filed a timely notice of appeal. On July 1, 

2014, Williams filed a statement of matters complained of on appeal 

pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. 

Pa.R.A.P. 1925(b). On appeal, Williams raises the following issues for our 

review:

1. [Whether] the verdict is against the weight of the 

evidence because the evidence was not beyond a 

reasonable doubt to convict [Williams] of Possessing 

With the Intent to Deliver the narcotics inside the 

abandoned house[?]

2. [Whether] the evidence was insufficient to support 

the verdict because there was insufficient evidence 

to convict [Williams] of the mandatory amount of 

narcotics recovered from inside the abandoned 

house[?]

Williams’ Brief at 3.

For his first issue on appeal, Williams argues that the trial court’s 

verdict is against the weight of the evidence. Id. at 8-10. Williams asserts 

that the trial court “abused [its] discretion by accepting the Commonwealth’s 

version of the events without considering the lack of evidence or 
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contradictory evidence recovered from the different parties and property.” 

Id. at 10. Williams contends that the verdict is against the weight of the 

evidence because the Commonwealth failed to introduce evidence that

Williams sold narcotics to the first two individuals he was observed 

interacting with, the narcotics recovered from the third alleged buyer did not 

match the narcotics found inside the house, and there was no evidence 

linking Williams to the house containing the narcotics. Id. at 9-10.

After reviewing the record, we conclude that Williams waived this issue 

for appellate review. Rule 607 of the Pennsylvania Rules of Criminal 

Procedure provides that “a weight of the evidence claim must be preserved 

either in a post-sentence motion, by a written motion before sentencing, or 

orally prior to sentencing.” Pa.R.Crim.P. 607. In this case, Williams did not 

file a post-sentence motion. Moreover, Williams did not preserve this issue 

in an oral or written motion prior to sentencing. We note that while the trial 

court makes no mention of waiver and addresses Williams’ claim in its 

1925(a) opinion, this Court has established that “[f]ailure to properly 

preserve the claim will result in waiver, even if the trial court addresses the 

issue in its opinion.” Commonwealth v. Thompson, 93 A.3d 478, 490 

(Pa. Super. 2014) (citing Commonwealth v. Lofton, 57 A.3d 1270, 1273 

(Pa. Super. 2012)). Accordingly, we will not address the merits of Williams’ 

claim.
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For his second issue on appeal, Williams presents a sufficiency of the 

evidence claim. Williams’ Brief at 10-12.1 Williams asserts that the 

Commonwealth failed to prove that he “was in possession or constructive 

possession of the narcotics found in the ‘abandoned property’ beyond a 

reasonable doubt.” Id. at 11. 

Our standard of review in assessing the sufficiency of the evidence is 

well settled:

The standard we apply in reviewing the sufficiency of 

the evidence is whether viewing all of 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 proving 

every element of the crime beyond a reasonable 

doubt by means of wholly circumstantial evidence. 

Moreover, in applying the above test, the entire 

 

1

 We note that in his concise statement of matters complained of on appeal, 

Williams raises a sufficiency of the evidence claim, stating that “[t]here was 

insufficient evidence to convict [him] of the mandatory amount of narcotics 

recovered from inside the abandoned house.” Although we could find this 

statement to be too vague to permit review, Williams’ brief presents 

argument relating to his PWID conviction, claiming that “the Commonwealth 

did not prove that [he] was in possession or constructive possession of the 

narcotics found in the ‘abandoned property’ beyond a reasonable doubt.” 

Williams’ Brief at 11. Accordingly, we address the merits of his claim. 
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record must be evaluated and all 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, is free to 

believe all, part or none of the evidence. 

Commonwealth v. Helsel, 53 A.3d 906, 917-18 (Pa. Super. 2012) (citing 

Commonwealth v. Bricker, 41 A.3d 872, 877 (Pa. Super. 2012)).

In order to sustain a conviction of PWID, “the Commonwealth must 

prove beyond a reasonable doubt that the defendant possessed a controlled 

substance and did so with the intent to deliver it.” Commonwealth v. 

Bricker, 882 A.2d 1008, 1015 (Pa. Super. 2005). It is well settled that “[i]n 

narcotics possession cases, the Commonwealth may meet its burden by 

showing actual, constructive, or joint constructive possession of the 

contraband.” Commonwealth v. Vargas, __ A.3d ___, 2014 WL 7447678, 

at *8 (Pa. Super. Dec. 31, 2014) (quoting Commonwealth v. Thompson, 

428 A.2d 223, 224 (Pa. Super. 1981)). In this case, the police did not 

discover the narcotics on Williams’ person. Thus, we must determine 

whether the Commonwealth sufficiently established that Williams had 

constructive possession of the narcotics. 

This Court has established that 

[c]onstructive 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 
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“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) (quoting 

Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (internal 

citations omitted)). “The Commonwealth may sustain its burden by means 

of wholly circumstantial evidence, and we must evaluate the entire trial 

record and consider all evidence received against the defendant.” Brown, 

48 A.3d at 430 (citing Commonwealth v. Markman, 916 A.2d 586, 598 

(Pa. 2007)).

In this case, the record reflects that the narcotics were discovered 

inside of an abandoned house located at 2319 Nichols Street. N.T., 2/10/14, 

at 23-24, 34-35. Officer Rausch testified that Williams did not use a key to 

enter the property. Id. at 16. Officer Mulqueeney further testified that 

“[t]he front door was open, it was shut, but you could tell it wasn’t latched. 

It was a wooden door you could push open[.]” Id. at 35. The police officers 

did not find anything in the house linking Williams to the property. Id. at 

26. Thus, the record does not contain evidence to establish exclusive 

control over the property. In these situations, “where more than one person 

has equal access to where drugs are stored, presence alone in conjunction 

with such access will not prove conscious dominion over the contraband. .... 

‘[T]he Commonwealth must introduce evidence connecting [the defendant] 
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to the specific room or areas where the drugs were kept.’” Vargas, 2014 

WL 7447678, at *8 (quoting Commonwealth v. Ocasio, 619 A.2d 352, 

354-55 (Pa. Super. 1993)). Upon review of all the facts and circumstances 

in this case, we conclude that the evidence presented at trial was sufficient 

to connect Williams to the specific area where the police officers discovered 

the narcotics to prove that he had control and possession of them. 

Officer Rausch testified that he observed Williams engage in three 

separate hand-to-hand transactions wherein Williams would accept money 

from an individual, walk into the front door of the abandoned house at 2319 

Nichols Street, exit the property approximately twenty seconds later, and 

hand the individual small items. Id. at 15-19. The police officers testified 

that they discovered five heat-sealed packets of crack cocaine and an 

unlabeled “amber pill bottle” containing sixty-six (66) pills, located inside the 

abandoned house, nestled in a couch cushion. Id. at 23-24, 34-35. The 

couch was located inside of the abandoned house, approximately ten feet 

from the door. Id. at 34. The house contained no other furniture. Id. at 

35. The police officers’ testimony that Williams entered the house for a 

mere twenty seconds therefore establishes that Williams only had enough 

time to access those areas of the house close to the door. Thus, the police 

officers’ testimony regarding the close proximity of the front door to the 

couch and the testimony that the house was otherwise vacant, is sufficient 
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to establish circumstantial evidence connecting Williams to the specific area 

where the narcotics were found.

Moreover, although the house located at 2319 Nichols Street was 

abandoned and unsecured in that no key was needed to enter and the door 

was not latched, the police officers testified that no one other than Williams 

entered or exited the property during the relevant period in question. This 

evidence establishes that although Williams was not the only person with 

access to the property generally, Williams was the only person with access 

to the property at the time the police officers discovered the narcotics. In 

Commonwealth v. Hutchinson, 947 A.2d 800 (Pa. Super. 2008), this 

Court determined that the appellee “had the ability and intent to exercise 

conscious control and dominion over the [narcotics] ... when only he had 

access to the same at the relevant time.” Id. at 807. Pursuant to our 

standard of review, viewing the evidence in the light most favorable to the 

Commonwealth as verdict winner, we are not persuaded that the evidence 

was so weak and inconclusive so as to be insufficient to establish that 

Williams constructively possessed the narcotics discovered in the abandoned 

house to support a conviction of PWID. Accordingly, we do not disturb the 

trial court’s determination in this respect. 

Finally, we note that in his brief, Williams references the validity of his 

sentence and states that “[i]f this Court wishes to retroactively apply 

Commonwealth v. Newman, [99 A.3d 86, 97-98, 103 (Pa. Super. 2014) 
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(en banc) (finding the imposition of a mandatory minimum sentence 

unconstitutional and remanding the case “for the re-imposition of sentence 

without consideration of any mandatory minimum sentence”)], Appellant 

would be pleased to get a new sentencing hearing without any mandatory 

minimum being applied.” Williams’ Brief at 11. In its opinion, the trial court 

does not address the merits of any challenge to Williams’ sentence. The trial 

court presumed that because Williams’ claim of error was vague and 

because counsel did not dispute the five to ten year mandatory minimum or 

the weight of the narcotics discovered at the abandoned house, Williams’ 

challenge was directed to the sufficiency of the evidence to sustain his PWID 

conviction. 

Although Williams failed to preserve a challenge to his sentence on 

appeal, this Court has established that “a challenge to a sentence premised 

upon [mandatory minimum sentences] implicates the legality of the 

sentence and cannot be waived on appeal.” Newman, 99 A.3d at 90. 

Moreover, it is well settled that this Court may address the legality of a 

defendant’s sentence sua sponte. Commonwealth v. Watley, 81 A.3d 

108, 118 (Pa. Super. 2013) (en banc), appeal denied, 95 A.3d 277 (Pa. 

2014). Accordingly, we will address the legality of Williams’ sentence.

The trial court sentenced Williams to a mandatory minimum sentence 

of five to ten years of incarceration under 18 Pa.C.S.A. § 7508(a)(2)(ii), 

which provides, in relevant part:
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§ 7508. Drug trafficking sentencing and penalties

(a) General rule.—Notwithstanding any other 

provisions of this or any other act to the contrary, 

the following provisions shall apply:

* * *

(2) A person who is convicted of violating section 

13(a)(14), (30) or (37) of The Controlled Substance, 

Drug, Device and Cosmetic Act where the controlled 

substance or a mixture containing it is classified in 

Schedule I or Schedule II under section 4 of that act 

and is a narcotic drug shall, upon conviction, be 

sentenced to a mandatory minimum term of 

imprisonment and a fine as set forth in this 

subsection:

* * *

(ii) when the aggregate weight of the compound or 

mixture containing the substance involved is at least 

ten grams and less than 100 grams; three years in 

prison and a fine of $15,000 or such larger amount 

as is sufficient to exhaust the assets utilized in the 

proceeds from the illegal activity; however, if at the 

time of sentencing the defendant has been convicted 

of another drug trafficking offense: five years in 

prison and $30,000 or such larger amount as is 

sufficient to exhaust the assets utilized in and the 

proceeds from the illegal activity;

* * *

18 Pa.C.S.A. § 7508(a)(2)(ii).

In Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013), the United 

States Supreme Court held that facts that increase mandatory minimum 

sentences “must be submitted to the jury and found beyond a reasonable 
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doubt.” Id. at 2155.2 This Court subsequently determined that the decision 

in Alleyne renders “Pennsylvania mandatory minimum sentencing statutes 

that do not pertain to prior convictions[] constitutionally infirm insofar as 

they permit a judge to automatically increase a defendant’s sentence based 

on a preponderance of the evidence standard.” Watley, 81 A.3d at 117 

(footnote omitted). 

In Thompson, this Court addressed the constitutionality of the 

mandatory minimum sentence that is at issue in the case at bar, holding 

that section 7508(a)(2)(ii) cannot be constitutionally applied in light of 

Alleyne, as “the facts that permit[] application of [the] mandatory sentence 

[are] not determined by the fact-finder nor proven beyond a reasonable 

doubt.” Thompson, 93 A.3d at 493-94. This Court thereafter determined 

that section 7508 is unconstitutional in its entirety under Alleyne. See 

Fennell, 105 A.3d at 20; see also Cardwell, 105 A.3d at 754-55. In 

reaching its conclusion, the Fennell and Cardwell Courts relied upon the 

holding in Newman wherein this Court determined that “it is manifestly the 

province of the General Assembly to determine what new procedures must 

be created in order to impose mandatory minimum sentences in 

 

2

 This Court recently noted that under the Due Process Clause, a defendant 

that elects a non-jury trial is “entitled to have the extra element of the 

aggravated offense found by the factfinder beyond a reasonable doubt 

pursuant to Alleyne.” Commonwealth v. Fennell, 105 A.3d 13, 17 (Pa. 

Super. 2014); Commonwealth v. Cardwell, 105 A.3d 748, 751 (Pa. 

Super. 2014).
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Pennsylvania following Alleyne.” Newman, 105 A.3d at 18. As this Court 

has provided an express determination that the statute under which the trial 

court sentenced Williams is unconstitutional, we are bound by the result. 

Accordingly, we conclude that the trial court’s sentence pursuant to section 

7508(a)(2)(ii) is illegal and must be vacated.

Judgment of sentence vacated. Case remanded for resentencing 

without imposition of a mandatory minimum term. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/21/2015