J-A18026-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellant

v.

FRANKLIN T. ELLIS, JR

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 183 WDA 2019

Appeal from the Order Entered January 8, 2019

In the Court of Common Pleas of Indiana County Criminal Division at

No(s): CP-32-CR-0000863-2017

BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.: FILED MAY 19, 2020

The Commonwealth appeals from the order granting Appellee Franklin

T. Ellis, Jr.’s post-sentence motion for judgment of acquittal after a jury

convicted him of possession of a controlled substance and conspiracy to

deliver.1 The Commonwealth argues that the evidence was sufficient to

establish the elements of both offenses. We affirm in part, vacate in part, and

remand the matter for proceedings consistent with this memorandum.

The trial court summarized the relevant facts of this case as follows:

The charges against [Appellee] arose from events on the evening

of December 30, 2015, when the Pennsylvania State Police

conducted a controlled buy of heroin from an individual with an

outstanding arrest warrant, Alex Huber (Huber). The controlled

buy occurred at a bus garage, where a confidential informant ____________________________________________

1 35 Pa.C.S. § 780-113(a)(16) and 18 Pa.C.S. § 903, respectively.
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[(CI)] purchased $100.00 of heroin[2] from Huber with marked

bills. After the transaction, the informant told police that he had

followed Huber and observed him entering a room at the nearby

Twin Pines Motel. Upon approaching the motel, Pennsylvania

State Police Corporal Brennan Herr was able to observe Huber

inside a room through a small opening in the curtains. Corporal

Herr knocked and announced the presence of state police with a

warrant for Huber, and ordered him to open the door. Rather than

opening the door, Huber latched it from inside,[3] after which

Corporal Herr stated he would kick the door in if it was not opened.

When the door was not opened after this second command,

Corporal Herr kicked it in and entered the room.

Upon gaining access to the room, Corporal Herr could observe

[Appellee standing4] at a desk, although his view of [Appellee]’s

hands was partially obstructed by a large entertainment center.

Both Huber and [Appellee] were ordered to the ground; Huber

immediately complied, but [Appellee] did not. After failing to

comply a second time, [Appellee] was tased and taken into

____________________________________________

2 The criminal information indicated that Huber sold .19 grams of heroin to

the CI.

3 At trial, Corporal Herr testified that when he first approached the hotel room,

he saw Huber “sitting on the edge of the bed” through an opening in the

curtains. See N.T. Trial at at 26, 38. After Corporal Herr announced that he

had an arrest warrant for Huber and instructed him to open the door, he heard

the door lock. Id. at 34. When he entered the motel room seconds later,

Corporal Herr observed Huber sitting on a chair that was “a couple feet” to

the immediate left of the door and directly next to the bed. Id. at 34-35. At

that time, Appellee was located in the opposite corner of the room standing

at a desk, which was on the other side of an entertainment console and

approximately ten feet away from Corporal Herr. Id. at 27-28. Based on

these observations, Corporal Herr testified that although he could not say

“exactly what happened” in the room, he was “assuming [Huber] locked the

door and sat down on the chair.” Id. at 38.

4 For purposes of clarity, we note that although the trial court stated that

Appellee was sitting at the desk, Corporal Herr testified that Appellee was

standing at the desk when police entered the room. See N.T. Trial, 1/25/18,

at 27.
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custody. [Appellee] was found to have $856.00 in cash in his

pocket while Huber was found with $80.00 of the marked bills

from the controlled buy. The remaining $20.00 of buy money was

located after a later search of the room,[5,6] and a pipe and two

stamp bags of heroin[7] were located on the desk where [Appellee

had been standing]. At the time of his arrest [Appellee] did not

have any controlled substances or any of the buy money on his

person. The motel room had not been rented by either Huber or

[Appellee], but by another individual who returned after the police

gained entry.

Trial Ct. Op., 1/8/19, at 2.

The Commonwealth filed a criminal information charging Appellee with

possession with intent to deliver (PWID), criminal use of a communication

facility,8 possession, and conspiracy to deliver. On November 8, 2017, Appellee filed a motion in limine seeking to exclude text messages from the

cell phone that police found in the motel room. Following a hearing on January

17, 2018, the trial court granted Appellee’s motion.

____________________________________________

5 Although Huber only had $80 of the buy money on his person, Trooper Evans

indicated that the remaining $20 was recovered from the floor in the area near

Huber. See N.T. Trial at 59.

6 Police recovered two cell phones that were registered to Huber. They also

found an additional cell phone that contained incoming messages, but had no

record of any outgoing messages. Police believed that the phone belonged to

Appellee.

7 The criminal information stated that the stamp bags contained .04 grams of

heroin. 8 35 Pa.C.S. § 780-113 (a)(30) and 18 Pa.C.S. § 7512(a).
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On January 25, 2018, Appellee proceeded to a jury trial. At the

conclusion of testimony, Appellee requested a judgment for acquittal on the

charges of PWID, conspiracy, and criminal use of a communication facility.

See N.T. Trial, 1/25/18, at 68. The trial court granted Appellee’s motion as

to PWID and criminal use of a communication facility,9 but denied relief on the

conspiracy charge. Id. at 73-75. That same day, the jury found Appellee

guilty of possession and conspiracy. On April 13, 2018, the trial court

sentenced Appellee to an aggregate term of two to ten years’ incarceration.10

On June 11, 2018, the trial court docketed Appellee’s untimely pro se

notice of appeal and request for appointed counsel. On June 13, 2018, the

trial court ordered counsel to continue representing Appellee on appeal and to

file a Pa.R.A.P. 1925(b) statement on Appellee’s behalf. See Order, 6/13/18.

The trial court explained that “if counsel, after consultation with [Appellee],

determines that a challenge to the sufficiency of the evidence is to be raised,

issues which must first be raised with the trial court, the court will grant a

motion to file a post-sentence motion nunc pro tunc.” Id. (some formatting

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9 As to PWID, the trial court concluded that there was insufficient evidence to

establish that the substance from the controlled buy was heroin, as it was “not

part of the lab report.” See N.T. Trial at 74. With respect to criminal use of

a communication facility, the trial court stated that “the only evidence we have

is that there were text messages and phone calls between the [CI] and Huber.

There is no evidence that [Appellee] was involved in or was the one making

or receiving those calls.” Id.

10 The certified record does not contain a transcript from the sentencing

hearing.
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altered). However, the trial court indicated that “[t]o do so, the appeal

pending with the Superior Court would have to be withdrawn.” Id.

On July 2, 2018, Appellee filed a petition for leave to file a direct appeal

nunc pro tunc. He also filed a Rule 1925(b) statement and a motion to

withdraw his pro se notice of appeal. The trial court scheduled a hearing for

July 31, 2018. On July 31, 2018, the trial court conducted a hearing at which Appellant,

trial counsel, and the Commonwealth appeared.11 On August 7, 2018, the

trial court ordered Appellee to withdraw his June 11, 2018 pro se notice of

appeal with this Court. See Order, 8/7/18. The trial court also instructed

Appellee to file a post-sentence motion nunc pro tunc on or before August 17,

2018, and scheduled a hearing for September 13, 2018.12 Id. The trial court

did not provide a deadline for Appellee to file a direct appeal.

On August 17, 2018, Appellee filed a motion to withdraw his pro se

notice of appeal. On September 11, 2018, Appellee filed a post-sentence

motion for judgment of acquittal in which he challenged both the sufficiency

and the weight of the evidence.

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11 The certified record does not contain a transcript of this hearing.

12 The certified record does not contain a transcript of this hearing.
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On January 8, 2019, the trial court granted Appellee’s post-sentence

motion and issued a memorandum explaining its decision.13 See Trial Ct. Op.

and Order, 1/8/19. On January 24, 2019, the Commonwealth filed a notice

of appeal. The Commonwealth also filed a timely court-ordered Pa.R.A.P.

1925(b) statement. On February 19, 2019, the trial court issued an order

adopting its January 8, 2019 opinion and order as its Rule 1925(a) opinion.

The Commonwealth raises the following issues, which we have

reordered for purposes of this appeal:

[1.] Whether the trial court erred in law and/or abused its

discretion in granting Appellee’s post-sentence motion where, in

viewing the evidence in a light most favorable to the

Commonwealth as the verdict winner, sufficient evidence was

presented during the Appellee’s jury trial to support the jury’s

guilty verdict of possession of a controlled substance?

[2.] Whether the trial court erred in law and/or abused its

discretion in granting Appellee’s post-sentence motion where, in

viewing the evidence in a light most favorable to the

Commonwealth as verdict winner, sufficient evidence was

presented during the Appellee’s jury trial to support the jury’s

guilty verdict of conspiracy to delivery of a controlled substance?

Commonwealth’s Brief at 7.

First, with respect to the possession charge, the Commonwealth argues

that “the record clearly supports a finding that [Appellee] had the power to

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13 The trial court did not address whether Appellee timely filed his post- sentence motion nunc pro tunc following the trial court’s August 7, 2018 order. Nonetheless, the trial court accepted Appellee’s September 11, 2018 post- sentence motion nunc pro tunc as timely, and neither party disputes that

ruling.
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control the contraband” which was “openly displayed on a desktop within feet

from Appellee.” Id. at 38-39. The Commonwealth refers to Corporal Herr’s

testimony that after police entered the motel room, Appellee “continued to

move his hands in the vicinity of where the drugs were located despite clear

commands to desist.” Id. at 40. Therefore, the Commonwealth contends

that there was sufficient evidence to establish that Appellee constructively

possessed heroin. Id. at 39-40. Appellee responds that police “never observed Appellee physically

touching heroin and did not believe Appellee to be under the influence of

heroin.” Appellee’s Brief at 9. Appellee asserts that his “mere presence in a

room rented by a third party without more is insufficient to prove beyond a

reasonable doubt that he possessed heroin found within that room.” Id.

Our well-settled standard of review is as follows:

In passing upon a post-verdict motion for judgment of acquittal,

a trial court is limited to determining the presence or absence of

that quantum of evidence necessary to establish the elements of

the crime. To determine the legal sufficiency of evidence

supporting a jury’s verdict of guilty, this Court must view the

evidence in the light most favorable to the Commonwealth, which

has won the verdict, and draw all reasonable inferences in its

favor. We then determine whether the evidence is sufficient to

permit a jury to determine that each and every element of the

crimes charged has been established beyond a reasonable doubt.

It is the function of the jury to pass upon the credibility of the

witnesses and to determine the weight to be accorded the

evidence produced. The jury is free to believe all, part or none of

the evidence introduced at trial. The facts and circumstances

established by the Commonwealth need not be absolutely

incompatible with the defendant’s innocence, but the question of

any doubt is for the jury unless the evidence be so weak and
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inconclusive that as a matter of law no probability of fact can be

drawn from the combined circumstances.

Commonwealth v. Hoffman, 198 A.3d 1112, 1118 (Pa. Super. 2018)

(citation omitted).

In drug possession cases, the Commonwealth must prove that a

defendant knowingly or intentionally possessed a controlled substance. See

35 P.S. § 780-113(a)(16). Possession can be established by “proving actual

possession, constructive possession, or joint constructive possession.”

Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018) (citation

omitted) appeal denied, 202 A.3d 42 (Pa. 2019).

Where a defendant is not in actual possession of the prohibited

items, the Commonwealth must establish that the defendant had

constructive possession to support the conviction. 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, meaning that the

defendant has 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.

It is well established that, as with any other element of a crime,

constructive possession may be proven by circumstantial

evidence. In other words, the Commonwealth must establish

facts from which the trier of fact can reasonably infer that the

defendant exercised dominion and control over the contraband at

issue.

Id. at 36-37 (citations, brackets, and quotation marks omitted).

“[T]he power and intent to control the contraband does not need to be

exclusive to the defendant,” as “constructive possession may be found in one

or more actors where the item [at] issue is in an area of joint control and
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equal access.” Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa. Super.

2014) (citation omitted). “Nevertheless, 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.” Id.

(citation and quotation marks omitted).

For the Commonwealth to prove constructive possession where

more than one person has access to the contraband, the

Commonwealth must introduce evidence demonstrating either

[the defendant’s] participation in the drug related activity or

evidence connecting [the defendant] to the specific room or areas

where the drugs were kept. However, an intent to maintain a

conscious dominion may be inferred from the totality of the

circumstances . . . . [and] circumstantial evidence may be used to

establish a defendant’s possession of drugs or contraband.

Id. (citation and quotation marks omitted).

Here, the trial court evaluated the Commonwealth’s evidence for the

possession charge as follows:

In the instant matter, the two stamp bags of heroin at issue were

on a desk in an area that both Huber and [Appellee] had access

to; however, beyond that, no evidence exists that [Appellee]

participated in any drug related activity or was connected to that

specific area. There is no evidence that [Appellee] was involved

in the packaging or sale of the heroin, or that [Appellee] was

under the influence of heroin. Furthermore, other than his mere

presence, nothing connects [Appellee] to the motel room, which

was rented to a third individual who was absent when the police

arrived. For these reasons, there is insufficient evidence to

establish that [Appellee] was in possession of the heroin in the

motel room.

Trial Ct. Op. at 6-7.
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Based on our review of the record, we disagree with the trial court’s

conclusion that Appellee’s presence in the motel room was the only evidence

connecting him to the heroin. At trial, Corporal Herr testified that after he

entered the motel room, he observed Appellee standing at a desk. See N.T.

Trial at 27. Corporal Herr ordered Appellee to get on the ground, but Appellee

“continued to mess around” with items on the desk. Id. at 28. After Corporal

Herr fired his taser at Appellee and placed him under arrest, police recovered

two stamp bags of heroin from the desk where Appellee had been standing.

Id. at 30. Viewing this evidence in the light most favorable to the

Commonwealth as verdict winner, there was sufficient evidence for the jury

to find that Appellee constructively possessed the heroin.14 See Hoffman, 198 A.3d at 1119, see also Vargas, 108 A.3d at 868. Accordingly, we are

constrained to reverse the trial court’s judgment of acquittal and reinstate the

jury’s guilty verdict for the possession charge. Hoffman, 198 A.3d at 1119.

Next, the Commonwealth argues that there was sufficient evidence to

support Appellee’s conviction for conspiracy to deliver. Commonwealth’s Brief

at 25. Relying on Commonwealth v. McCall, 911 A.2d 992 (Pa. Super.

2006), the Commonwealth asserts that although Appellee “did not physically

handle the drugs transacted during the controlled buy, he clearly took an

____________________________________________

14 Further, the fact that Huber was present in the room, or that a third party

rented the room, does not compel a different result. See Commonwealth

v. Hall, 199 A.3d 954, 962 (Pa. Super. 2018) (stating that the Commonwealth

does not “have to disprove others’ constructive possession of the contraband,

or establish which of the others was in joint possession, in order to present

legally sufficient evidence” of a defendant’s constructive possession).
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active role in the illicit transaction.” Id. at 35. The Commonwealth argues

that there was sufficient evidence to demonstrate “an association between

Appellee and Huber as the alleged conspirators due to their close proximity

and having been discovered in the open motel room together just minutes

after Huber engaged in a controlled buy.” Id. at 31. The Commonwealth

points to evidence that (1) although Huber had $80 of the buy money, the

remaining $20 was on the floor of the motel room where Appellee was

arrested; (2) Appellee had $856 in small denominations, which is consistent

with drug sale proceeds; and (3) while the motel room was registered to

another individual, both Huber and Appellee were in the room immediately

after the drug transaction, suggesting that they had independent access to

the room. Id. at 32. Appellee responds that he “merely existed in a motel room that Huber

traveled to after a drug transaction.” Appellee’s Brief at 15-16. He argues

that there was no evidence that he knew about the drug buy or that he was

in communication with Huber before it occurred. Id. at 13-14. Further,

Appellee states that although Trooper Evans testified that a “prerecorded

twenty [] dollar bill used in the controlled buy was in the motel room, he could

not testify as to its proximity to [Appellee]. All of the remaining buy money,

eighty [] dollars, was found on Huber’s person.” Id. at 13. Therefore, he

asserts that there was insufficient evidence to support his conspiracy

conviction. Id. at 17.
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“To sustain a conviction for [PWID], the Commonwealth must establish

the defendant knowingly or intentionally possessed a controlled substance

without being properly registered to do so, with the intent to . . . deliver it.” Commonwealth v. Dix, 207 A.3d 383, 390 (Pa. Super. 2019) (citations

omitted).

“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.”

Commonwealth v. Melvin, 103 A.3d 1, 42 (Pa. Super. 2014) (citation

omitted). “Once the trier of fact finds that there was an agreement and the

defendant intentionally entered into the agreement, that defendant may be

liable for the overt acts committed in furtherance of the conspiracy regardless

of which co-conspirator committed the act.” Commonwealth v. Barnes, 871

A.2d 812, 820 (Pa. Super. 2005) (citation omitted).

The essence of a criminal conspiracy is a common understanding,

no matter how it came into being, that a particular criminal

objective be accomplished. Therefore, a conviction for conspiracy

requires proof of the existence of a shared criminal intent. An

explicit or formal agreement to commit crimes can seldom, if ever,

be proved and it need not be, for proof of a criminal partnership

is almost invariably extracted from the circumstances that attend

its activities. Thus, a conspiracy may be inferred where it is

demonstrated that the relation, conduct, or circumstances of the

parties, and the overt acts of the co-conspirators sufficiently prove

the formation of a criminal confederation. The conduct of the

parties and the circumstances surrounding their conduct may

create a web of evidence linking the accused to the alleged

conspiracy beyond a reasonable doubt.
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Melvin, 103 A.3d at 42-43 (citation omitted). In McCall, the defendant was convicted of PWID and conspiracy to

deliver based on his involvement in four drug transactions conducted by his

co-defendant. McCall, 911 A.2d at 992. On appeal, the defendant argued

that there was no evidence that he directly participated in the drug sales. Id.

at 997. This Court explained that although the defendant “did not physically

handle the drugs transacted” by his co-defendant, he “clearly took an active

role in the illicit enterprise.” Id. at 997. Specifically, the Court explained:

[The defendant] was observed working as a lookout . . . during

three of the transactions in question, and he received money from

his cohort seller immediately after two sales. Indeed, when

arrested, [the defendant] possessed a copious amount of money

($1,508) in small denominations consistent with drug sale

proceeds, while, in comparison, the seller possessed only $64.

In contrast to the passive bystander or acquaintance merely

present at the scene of a crime, roles which will not sustain a

conviction for conspiracy, [the defendant] actively participated in

several crucial respects to enable his cohort to sell crack cocaine

to numerous buyers. It was thus appropriate for the fact-finder

to infer an agreement between [the defendant] and his cohort to

deliver crack cocaine based upon [the defendant’s] participation

in the enterprise carrying out the deliveries.

Id.

Here, the trial court addressed the Commonwealth’s evidence for

conspiracy to deliver as follows:

To sustain [Appellee]’s conspiracy conviction it must be proven

beyond a reasonable doubt that [Appellee] had an agreement with

Huber to deliver heroin; that [Appellee] and Huber had a shared

criminal intent to facilitate the delivery of heroin; and that either

[Appellee] or Huber engaged in an overt act in furtherance of

delivering heroin. Here, the overt act, as alleged by the
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Information, is Huber’s delivery of heroin to the [(CI)], but there

is no evidence that [Appellee] had an agreement with Huber or

that the two shared any criminal intent. [Appellee] was not

present at the controlled buy, and there is no evidence as to

[Appellee]’s whereabouts prior to or during that time. The only

evidence of [Appellee]’s location was his presence in a motel room

rented by a third party when the police served their warrant on

Huber. Furthermore, none of the buy money or illegal substances

were found on [Appellee]’s person.

The [trial c]ourt recognizes that conspiracy can be proven by

circumstantial evidence, such as the circumstances and conduct

of the parties surrounding a criminal episode, however, the

evidence concerning [Appellee]’s involvement fails to rise to this

level. [Appellee]’s mere association with Huber at the motel and

[Appellee] having a significant amount of cash in his pocket are

factors to be considered among all the circumstances, however,

with nothing more, are insufficient to prove an agreement to

commit an unlawful act. Accordingly, the elements for a

conviction of conspiracy to delivery of a controlled substance have

not been satisfied, and this charge must be dismissed.

Trial Ct. Op. at 5 (some formatting altered).

Based on our review of the record, and viewing the evidence in the light

most favorable to the Commonwealth, we agree with the trial court that there

was insufficient evidence to support Appellee’s conviction for conspiracy to

deliver. See Hoffman, 198 A.3d 1119; see also Melvin, 103 A.3d at 43. Here, unlike in McCall, the evidence did not establish that Appellee

participated in any aspect of Huber’s transaction with the CI.15 See McCall, 911 A.2d at 997. There was no evidence that Appellee served as a lookout ____________________________________________

15 We note that Appellee’s possession charge was based on the two stamp

bags of heroin recovered from the motel room, not the heroin used in the

controlled-buy operation.
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during the drug transaction, or that he communicated with Huber prior to or

during the sale. Huber conducted the sale at a bus garage and then went

back to the motel room. After the police entered the motel room to arrest

Huber, they encountered Appellee, for the first time.16

Although Appellee had a large amount of cash in small denominations,

he did not have any of the buy money. The evidence established that Huber

had $80 of the buy money and the remaining $20 was recovered from the

motel room floor. See Commonwealth v. Ocasio, 619 A.2d 352, 355 (Pa.

Super. 1993) (stating that the defendant’s “possession of a large sum of

money in small denominations, without more, does not prove that [he] was

involved in drug sales”).

Finally, although Appellee constructively possessed two stamp bags of

heroin, this fact does not establish his participation in the conspiracy. There

____________________________________________

16 The concurring and dissenting memorandum states that the Commonwealth

relied on four facts to establish Appellee’s participation in the conspiracy,

including that “Appellee locked the hotel room door rather than comply with

police directives to open it” and that “Huber was not in possession of all of the

proceeds from the sale to the CI.” See Concurring and Dissenting Mem. at 2.

However, neither of these assertions are supported by the record. Even

viewing the record in a light most favorable to the Commonwealth, the

Commonwealth’s evidence did not support the inference that Appellee locked

the motel room door. See N.T. Trial at 26-35 (Corporal Herr testified that he

saw Huber near the motel room door before and after he heard the door lock;

at that time, Appellee was at a desk on the opposite side of the room,

approximately ten feet away). Further, the Commonwealth’s own witness

testified that Huber did have possession over all of the buy money. See id.

at 59 (Trooper Evans testified that although $20 of the buy money was on the

floor, it was recovered from the area near Huber).
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was no evidence linking the two stamp bags of heroin to Huber or the

controlled buy. Further, Trooper Evans testified that during the search of the

motel room, police also recovered “a glass pipe commonly used for smoking.” See N.T. Trial at 51; cf. Commonwealth v. Jones, 874 A.2d 108, 121 (Pa.

Super. 2005) (stating that “surrounding circumstances, such as lack of

paraphernalia for consumption” may establish that a defendant’s intent to

deliver a controlled substance).

Therefore, we agree with the trial court that, as a matter of law, the

evidence was insufficient to support Appellee’s conspiracy conviction. See

McCall, 911 A.2d at 997; Melvin, 103 A.3d at 42. Accordingly, the

Commonwealth is not entitled to relief on this issue.

In sum, we conclude that the Commonwealth presented sufficient

evidence to sustain the jury’s guilty verdict for possession of a controlled

substance. Accordingly, we must reverse the judgment of acquittal as to

possession and reinstate the jury’s guilty verdict on that charge and remand

the matter for resentencing. However, we affirm the trial court’s judgment of

acquittal for conspiracy to deliver.

Order affirmed in part and vacated in part. Case remanded for further

proceedings. Jurisdiction relinquished.

Judge Musmanno joins the memorandum.

Judge Bowes files a concurring and dissenting memorandum.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/19/2020