J-S39022-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NAFIS ANTUAN FAISON,

Appellant No. 2037 MDA 2015

Appeal from the Judgment of Sentence March 25, 2015

in the Court of Common Pleas of Lycoming County

Criminal Division at No.: CP-41-CR-0000126-2014

BEFORE: STABILE, J., PLATT, J.*, and STRASSBURGER, J.*

MEMORANDUM BY PLATT, J.: FILED MAY 17, 2016

Appellant, Nafis Antuan Faison, appeals nunc pro tunc from the 

judgment of sentence1imposed following his jury conviction of possession 

with intent to deliver a controlled substance (PWID)2and related charges. 

On appeal, Appellant challenges the sufficiency and weight of the evidence 

supporting his PWID conviction. We affirm.

The trial court aptly summarized the factual history of this case as 

follows:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Appellant purports to appeal from the order denying his post-sentence 

motion; we have corrected the caption to reflect that his direct appeal 

properly lies from the judgment of sentence. See Commonwealth v. 

W.H.M., Jr., 932 A.2d 155, 158 n.1 (Pa. Super. 2007). 

2 35 P.S. § 780-113(a)(30).
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This matter arises from police recovery of about 500 

grams of cocaine in apartment #2 (Apartment) at 2017 W. 4th

Street in Williamsport (Property) on December 12, 2013. The 

evidence at trial established the following. The Apartment 

belonged to Demetrius Simpson ([Simpson]) who resided there 

with his [nine] year old son. Simpson’s one[-]year[-]old 

daughter stayed with him about three days per week. . . . On 

December 12, 2013, upon request, Simpson allowed [Appellant] 

to spend the night at his apartment. When at his apartment, 

[Appellant] typically stayed in the dining room and usually slept 

on the couch.

On December 12, 2013, [Appellant] was the subject of a 

police investigation.[3] Police learned that the Property was a 

possible location for [Appellant]. Police surveilled the Property. 

Police observed individuals going in and out of the Apartment. 

They appeared to stay only a few minutes. According to 

Simpson, [Appellant] had four visitors at the [A]partment on 

that date, two of whom Simpson knew; one stayed for [twenty]-

[thirty] minutes, and another, [Joshua] Colley (Colley), stayed 

for only [ten]-[fifteen] minutes. After observing Colley leave the 

Apartment, [p]olice performed a traffic stop and a “[T]erry 

frisk”[4] on Colley. This revealed a clear plastic baggy containing 

cocaine in Colley’s left front pocket and one Alprazolam pill in his 

front pocket of his jeans. [After police placed Colley in 

handcuffs, he admitted that Appellant was at the Apartment].

[At approximately 8:45 p.m.,] [u]pon believing that 

[Appellant] was in the Apartment, [p]olice decided to make 

contact with the occupants of the second floor of the residence. 

Police knocked and banged loudly on the door of the Apartment, 

and announced their presence. “[C]haos erupted as [Appellant] 

jumped out a second floor window.” A loud crash or bang-like 

crash noise sounded from the front of the house.

____________________________________________

3 The investigation was based on a fugitive warrant for Appellant. (See N.T. 

Trial, 1/21/15, at 70).

4 Terry v. Ohio, 392 U.S. 1 (1968).
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[Appellant] jumped out of the second floor bedroom 

window and fled the Apartment. The only remaining individuals 

police found in the [A]partment were Simpson and his [nine]

year old son. Trooper Lancer Thomas heard police yell that 

there was a runner. The runner was [Appellant]. No other 

runners were observed. Tpr. Thomas chased [Appellant]. After 

a foot chase, police apprehended [Appellant]. Police conducted 

a search of [Appellant] incident to arrest and found $3,879.00 

on [Appellant’s] person, a small plastic pill type bottle containing 

three oxycodone pills and a small bag of marijuana. Police 

recovered $3,879.00 in his front left pocket in the following 

denominations: eleven one[-]hundred dollar bills, nine fifty dollar 

bills, [and 116] twenty dollar bills. In the right pocket there was 

one five dollar bill and four one dollar bills. 

Police searched the Apartment and found large quantities 

of drugs. In the dining room/living room area, police found a 

black backpack sitting on the couch. Inside the black backpack, 

police discovered a grocery bag with 179.16 grams of cocaine, 

another package with 319.86 grams of cocaine and a scale 

containing cocaine residue. Police also found a tan jacket 

hanging on the dining room table which contained 13.65 grams 

of cocaine in the front right pocket of the jacket. [Appellant] 

had been staying in the dining room area and typically slept on 

the [couch] where the backpack was found. Police found the 

backpack on the same couch where an iPhone was charging. 

The telephone number for the iPhone was the same number 

listed as a contact for “Nore New” on Simpson’s phone. Simpson 

identified [Appellant] as “Nore.” Simpson testified that the 

backpack, jacket and iPhone did not belong to him or his 

children. Simpson allowed others to stay at his Apartment on 

other occasions, and those people would usually sleep on the 

couch. However, there was no testimony that anyone other than 

[Appellant] was staying the night on December 12, 2013.

(Trial Court Opinion, 7/13/15, at 2-4) (record citations, footnotes and some 

quotation marks omitted).

On January 21, 2015, the jury found Appellant guilty of the abovementioned offenses. On March 25, 2015, the trial court sentenced Appellant 

to an aggregate term of not less than five nor more than ten years’ 
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incarceration. It entered an opinion and order denying Appellant’s timely 

post-sentence motion on July 13, 2015. On November 17, 2015, in 

response to Appellant’s petition filed pursuant to the Post Conviction Relief 

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, the court entered an order 

reinstating his direct appeal rights nunc pro tunc. This timely appeal 

followed.5

Appellant raises two issues for our review:

I. Whether the Commonwealth failed to introduce sufficient 

evidence that [Appellant] constructively possessed the 

cocaine found in another’s residence[?]

II. Whether the verdict rendered by the jury was contrary 

to the weight of the evidence presented at trial[?]

(Appellant’s Brief, at 7) (unnecessary capitalization omitted).6

In his first issue, Appellant challenges the sufficiency of the evidence 

supporting his PWID conviction. (See id. at 12-16). Specifically, he argues 

the Commonwealth failed to establish his constructive possession of the 

cocaine found in the backpack and tan jacket at the Apartment. (See id.). 

This issue does not merit relief. 

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5

Pursuant to the trial court’s order, Appellant filed a timely concise 

statement of errors complained of on appeal on January 25, 2016. The 

court issued an opinion on January 28, 2016, in which it relied on its 

previous opinion entered July 13, 2015. See Pa.R.A.P. 1925. 

6 The Commonwealth filed a letter advising that it would not be filing a brief 

and that it relies on the opinion and order of the trial court. (See 

Commonwealth’s Letter, 3/16/16). 
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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 

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 none of the evidence.

Commonwealth v. Giordano, 121 A.3d 998, 1002-03 (Pa. Super. 2015), 

appeal denied, 131 A.3d 490 (Pa. 2016) (citations omitted). 

The Controlled Substance, Drug, Device and Cosmetic Act defines the 

crime of PWID as follows:

(a) The following acts and the causing thereof within the 

Commonwealth are hereby prohibited:

* * *

(30) Except as authorized by this act, the manufacture, 

delivery, or possession with intent to manufacture or deliver, a 

controlled substance by a person not registered under this act, 

or a practitioner not registered or licensed by the appropriate 

State board, or knowingly creating, delivering or possessing with 

intent to deliver, a counterfeit controlled substance.

35 P.S. § 780-113(a)(30).
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“To convict a person 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) (citation omitted). Where a defendant was 

not in actual physical possession of the drugs recovered, the Commonwealth 

is required to establish that he had constructive possession of them. 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.

Id. (citation 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.” 

Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa. Super. 2014) (en 

banc), appeal denied, 121 A.3d 496 (Pa. 2015) (citation and internal 

quotation mark omitted).
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Also relevant to Appellant’s sufficiency claim is the precept that 

“evidence of flight is generally admissible to support an inference of 

consciousness of guilt[.]” Commonwealth v. Johnson, 910 A.2d 60, 66 

(Pa. Super. 2006), appeal denied, 923 A.2d 1173 (Pa. 2007) (citation 

omitted). 

Here, the record reflects that Appellant was one of two adults at the 

Apartment where a large quantity of cocaine was found; that he was staying 

at the residence as an overnight guest; and that a number of visitors, 

including Joshua Colley who had cocaine on his person, left the residence 

after staying only a brief period of time. (See N.T. Trial, 1/21/15, at 20-21, 

31, 87, 90, 92-94). When police knocked and announced their presence at 

the Apartment, Appellant jumped out of a second-story window and ran 

away from the residence. (See id. at 73, 96, 102-03). Trooper Thomas 

pursued him on foot, and when he advised that he was a member of law 

enforcement, Appellant did not stop; he instead “ran very fast.” (Id. at 

104; see id. at 103). Police apprehended him and found nearly $4,000.00 

in various denominations of cash in his pants pocket, along with marijuana 

and Oxycodone pills. (See id. at 132-34, 138).

In a search of the Apartment, police recovered a large amount of 

cocaine from a partially open backpack on the sofa where Appellant slept, 

and additional cocaine in the tan jacket he wore earlier that day. (See id. at 

27, 29-30, 93-94, 108, 147). The backpack and jacket were located in the 
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same area of the Apartment where Appellant’s iPhone was charging. (See 

id. at 74-75, 155-56, 161).

Based on the totality of the circumstances, and viewing the evidence in 

the light most favorable to the Commonwealth, we determine that there was 

ample evidence indicating Appellant’s involvement in drug activity and 

“connecting [him] to the specific room or areas where the drugs were kept.” 

Vargas, supra at 868; see also Giordano, supra at 1002; Brown, supra

at 430. Thus, we conclude that the evidence fully supports the jury’s 

determination that Appellant constructively possessed the cocaine found in 

the Apartment. Accordingly, Appellant’s first issue does not merit relief.

In his second issue, Appellant challenges the weight of the evidence 

supporting his PWID conviction,7claiming that there was no evidence 

connecting him to the backpack, and the only witness linking him to the tan 

jacket, Simpson, had a vested interest in the outcome of the trial. (See

Appellant’s Brief, at 16-17). We disagree.

Our well-settled standard of review is as follows:

The finder of fact is the exclusive judge of the weight of 

the evidence as the fact finder is free to believe all, part, or none 

of the evidence presented and determines the credibility of the 

witnesses.

As an appellate court, we cannot substitute our judgment 

for that of the finder of fact. Therefore, we will reverse a jury’s

____________________________________________

7 Appellant preserved his weight claim by raising it in a post-sentence 

motion. See Pa.R.Crim.P. 607(A)(3).
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verdict and grant a new trial only where the verdict is so 

contrary to the evidence as to shock one’s sense of justice. A 

verdict is said to be contrary to the evidence such that it shocks 

one’s sense of justice when the figure of Justice totters on her 

pedestal, or when the jury’s verdict, at the time of its rendition, 

causes the trial judge to lose his breath, temporarily, and causes 

him to almost fall from the bench, then it is truly shocking to the 

judicial conscience.

Furthermore, where the trial court has ruled on the weight 

claim below, an appellate court’s role is not to consider the 

underlying question of whether the verdict is against the weight 

of the evidence. Rather, appellate review is limited to whether 

the trial court palpably abused its discretion in ruling on the 

weight claim.

Commonwealth v. Toritto, 67 A.3d 29, 35 (Pa. Super. 2013), appeal 

denied, 80 A.3d 777 (Pa. 2013) (citation and quotations marks omitted). 

“[T]he trial court’s denial of a motion for a new trial based on a weight of the 

evidence claim is the least assailable of its rulings.” Commonwealth v. 

Weathers, 95 A.3d 908, 911 (Pa. Super. 2014), appeal denied, 106 A.3d 

726 (Pa. 2015) (citation omitted).

Here, the trial court found that the jury’s verdict was in full accord with 

the evidence and with its sense of justice. (See Trial Ct. Op., at 11). The 

evidence plainly reflected that the cocaine was in the area of the Apartment 

where Appellant stayed, in and next to his personal possessions, and that he 

fled from police with drugs and a significant amount of cash on his person. 

(See id. at 10-11). After review of the record, we conclude that the trial 

court did not palpably abuse its discretion by denying Appellant’s weight 

claim. See Toritto, supra at 35. Therefore, Appellant’s second issue does 

not merit relief. Accordingly, we affirm the judgment of sentence. 
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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/17/2016